Anil Kumar P. vs State of Kerala and Others

Ashok Bhushan, C.J.

The petitioner, who claims to be a political activist, has filed this writ petition as a public interest litigation alleging violation of directions of the Election Commission of India issued vide letter dated 9.1.2014, insofar as the 4th respondent is being continued on different posts in city of Thiruvananthapuram for about last 10 years.

The petitioner''s case is that election to the Kerala Legislative Assembly is expected to be announced by the Election Commission of India any day as the term of present Legislative Assembly expires in May, 2016. Along with the announcement of election, the Model Code of Conduct will come into force. It is contended that one of the important stipulations in the directives of Election Commission of India is that officers directly connected with the election do not serve in places where they served for long and should be transferred out prior to the commencement of the election process. It is stated that 4th respondent has managed to remain in one place jumping from one post to another post and he has been posted as District Collector in February, 2014. It is further contended that 4th respondent ought to have been transferred out of district before the code of conduct of election is enforced.

The petitioner in this context has submitted complaints dated 14.2.2016 to the Chief Election Commissioner, Election Commission of India, Chief Secretary to Government and Chief Electoral Officer, Thiruvananthapuram. The petitioner''s case is that inspite of complaints having been submitted, no action on the complaints has been taken. The complaints have neither been considered, nor respondents 1 to 3 have responded to the complaints so far. The petitioner with the above allegations, has come up in the writ petition praying for the following reliefs:

"i) To declare that the continuance of the 4th respondent in any one of the official positions of Thiruvananthapuram district at the time of the impending elections to the Kerala Legislative Assembly, is illegal and in violation of the Model Code of Conduct issued by the Election Commission of India and particularly letter dated 09.01.2014 addressed to all Chief Electoral Officers and Chief Secretaries to Governments of all the States and Union Territories by the Chief Election Commission of India.

ii) To issue a Writ of Mandamus commanding the State of Kerala to immediately transfer the 4th respondent outside the Thiruvananthapuram district to some other place before the date of elections to the Kerala Legislative Assembly is announced by the Election Commission of India."

Smt. Girija Gopal, learned Special Government Pleader opposing the writ petition contends that the present writ petition be not entertained as a public interest litigation. It is contended that petitioner has filed the writ petition on account of his personal grievance. Since in the year 2012, he had filed a writ petition seeking action against the 4th respondent in which, he could not succeed and due to the said grudge, he has filed this writ petition which is motivated by his personal grudge and no public interest is involved in the writ petition.

It is further submitted by the learned Special Government Pleader that petitioner in the writ petition has referred to directives dated 9.1.2014 of the Election Commission of India which was issued with regard to General Election to the House of People, 2014 and is not applicable with regard to the Kerala Legislative Assembly, 2016, since the Election Commission of India has already issued directives dated 15.12.2015 to the Chief Secretary to Government with regard to General Elections of the State Assembly to be held in 2016. It is submitted that according to the instructions dated 15.2.2015, an exception is carved out in directive (iii) according to which, the case of the 4th respondent is fully covered. It is submitted that as directed in the letter dated 15.2.2015 reviews have already been conducted and the 4th respondent being covered by the directive (iii), has not been transferred.

It is submitted that the 4th respondent has been appointed as District Collector, Thiruvananthapuram only on 17.2.2014. It is contended that 4th respondent has conducted the General Election, 2014 as Returning Officer of Thiruvananthapuram and Attingal and there was no complaint regarding the conduct of election by him. It is further stated that Chief Electoral Officer has already sent his report dated 29.2.2016 with regard to the 4th respondent to the Election Commission of India.

The learned Special Government Pleader has produced the copy of directives of Election Commission of India dated 15.2.2015 as well as the report dated 29.2.2016 submitted by the Chief Electoral Officer. It is contended that there is no merit in the writ petition and the same deserves to be dismissed.

Sri. Murali Purushothaman, the learned standing counsel appearing for the State Election Commission has also contended that after receipt of the letter from Election Commission of India dated 19.2.2016 with regard to posting of the 4th respondent, a detailed report has been submitted on 29.2.2016 by the Chief Electoral Officer and Principal Secretary to Government to the Election Commission of India, which report has also been handed over by the State Election Commission.

Although the learned Special Government Pleader has contended that this writ petition be not entertained as a public interest litigation since it is actuated by personal grudge of the petitioner, looking at the nature of the issues raised in the writ petition, we are not inclined to enter into those allegations and throw the writ petition on the above ground. The Election Commission of India as per Article 224 of the Constitution of India has superintendence and control over the elections and the directives issued by the Election Commission of India in exercise of powers under Article 224 have to be complied with.

There cannot be two opinions about desirability of conducting the ensuing Assembly Election, 2016 fairly and in accordance with the directives issued by the Election Commission of India. The petitioner in paragraph (3) of the writ petition has referred to the directive dated 9.1.2014 issued by the Election Commission of India on the basis of which, it is contended that 4th respondent ought to have been transferred out of Thiruvananthapuram before the assembly elections commence. It is useful to extract the directives as contained in its letter dated 9.1.2014 quoted in paragraph (3), which is to the following effect:

"As you might be aware that the General Election to the House of the People (Lok Sabha), 2014 is to be held shortly. The Commission, in its task of conducting free and fair elections has followed the consistent policy to ensure that officers, who are connected with the conduct of elections in the States, do not serve in their home districts or places where they have served for long and decided that no officer connected with elections, directly or indirectly should be allowed to continue in the present district of posting:-

(a) If she/he is posted in her/his home district.

(b) If she/he has completed three years in that district during last four years or would be completing 3 years on or before 31.05.2014."

The above directive clearly indicates that the Election Commission of India has directed that no officer connected with the elections directly or indirectly should be allowed to continue in the present district of posting:- (a) If she/he is posted in her/his home district, (b) If she/he has completed 3 years in that district during last 4 years or would be completing 3 years on or before 31.5.2014. Perusal of the letter clearly indicate that the said directive was issued with regard to the General Election to the House of the People (Lok Sabha), 2014.

The learned Special Government Pleader as well as the learned counsel appearing for the State Election Commission has handed over the directives dated 15.2.2015 of the Election Commission of India which has been issued, especially with regard to General Elections, 2016 to the State Legislative Assembly, Assemblies of different State, including the State of Kerala.

Learned counsel for the respondents have relied on sub-clause (iii) which contains directives of the Central Election Commission of India that a detailed review be undertaken in all districts, and all such officers be posted out of their home districts or out of the district which they have completed or will complete, on the aforesaid date, tenure of three years out of the last four years. It is useful to extract the directive (iii) which is to the following effect:

"(iii) The Commission further desires that a detailed review may, therefore, be undertaken in all districts, and all such officers be posted out of their home districts or out of the district which they have completed or will complete, on the aforesaid date, tenure of three years out of the last four years, immediately. While moving such officers, care should be taken that they are not posted to their home districts. While calculating the period of three years, promotion to a post within the district is to be counted. While carrying out this review it must be borne in mind that these instructions do not apply to officers posted in the State headquarters of the department concerned."

The report which have been handed over by the Special Government Pleader as well as the learned counsel for State Election Commission dated 29.2.2016 states as follows:

"Please refer to the letters under reference. It may be informed that Shri. Biju Prabhakar IAS, District Collector, Thiruvananthapuram has declared Alappuzha District as his home District and he had never been posted as District Collector, Alappuzha so far. He joined duty as District Collector, Thiruvananthapuram on 17/02/2014 and has conducted the General Elections to HPC, 2014 as the Returning Officer of Thiruvananthapuram and Attingal HPCs.

While working in the post of Assistant Secretary in Survey & Land Records Department, he was conferred IAS on 16/03/2009 and thereafter he held the posts of Project Director, Bhoomi Keralam, Director of Lotteries, Managing Director, Kerala Medical Services Corporation, Commissioner of Food Safety and Director of Public Instructions, before being posted as District Collector, Thiruvananthapuram and all these posts were head quarter posts and as such, does not come under the 3 year transfer norms, as provided under Para (iii) of reference Ist cited."

From the report, it is clear that home district of the 4th respondent is Alappuzha and he has been posted as District Collector, Thiruvananthapuram only on 17.2.2014. It is also stated in the report that the 4th respondent has been posted to other posts in the district viz., Assistant Secretary in Survey & Land Records Department, Project Director, Bhoomi Keralam, Director of Lotteries, Managing Director, Kerala Medical Services Corporation, Commissioner of Food Safety and Director of Public Instructions, before he being posted as District Collector, Thiruvananthapuram. The exception on which respondents gave reliance under directive (iii) is as follows:

"...While carrying out this review it must be borne in mind that these instructions do not apply to officers posted in the State headquarters of the department concerned."

The above directives in paragraph (iii) as noted above clearly exempt postings in the State headquarters of the department concerned. The 4th respondent''s posting in Thiruvananthapuram prior to 17.2.2014 was in the State headquarters of the department concerned. The State relying on the directives in clause (iii) had not posted the 4th respondent out of Thiruvananthapuram which is the report submitted by the Chief Electoral Officer dated 29.2.2016 to the Election Commission of India.

From the above facts, we are satisfied that no case has been made out to entertain this writ petition as a public interest litigation. The writ petition is, therefore, dismissed.