Charan Singh vs Chief Election Commission And Others

Ramesh Ranganathan, CJ

Heard Sri Ankit Sah, learned counsel for the petitioner, Sri Shobhit Saharia, learned counsel for the Chief Election Commission, Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, and Sri T.A. Khan, learned Senior Counsel appearing on behalf of the third respondent.

This writ petition is filed allegedly in public interest seeking a writ of mandamus directing the respondents to transfer the 4th respondent from the present place of posting as Additional District Magistrate (Finance and Revenue), Haridwar in terms of Clause 4 / 6. 1 of Circular No. 437 dated 16.01.2019.

While it is debatable whether the jurisdiction of this Court under Article 226 of the Constitution of India can be invoked to enforce the Circulars issued by the Chief Election Commission of India, we are satisfied, in the facts and circumstances of the present case, that even if we proceed on the premise that such Circulars are enforceable under Article 226 of the Constitution, the continuance of the 4th respondent in Haridwar does not offend the Circular of the Election Commission of India dated 16.01.2019.

Sri Paresh Tripathi, learned Chief Standing Counsel appearing on behalf of the State Government, would submit, on instructions, that the 4th respondent was working in Chamoli district from September, 2009 upto October, 2011, thereafter in Rudraprayag from October, 2011 to January, 2014, and in Dehradun district from February, 2014 to 30th September, 2015.

The 4th respondent, whose home district is said to be the district of Ayodhya in Uttar Pradesh, was posted as an Additional District Magistrate (Finance and Revenue) in Haridwar district on 4.10.2016. It is in the light of these facts that one has to examine whether or not the Circular issued by the Election Commission of India on 16.01.2019 has been violated.

Paragraph-2 of the Circular dated 16.01.2019 records that the Commission has been following a consistent policy that officers, directly connected with the conduct of elections in an election going State / UT, are not posted in their home districts or places where they have served for a considerably long period. The fact that the 4 th respondent has not been posted in his home district is evident from the fact that, while the home district of the 4th respondent is Ayodhya in Uttar Pradesh, he has been posted in Haridwar district of the State of Uttarakhand.

On the question whether the 4th respondent has served for a considerably long period in Haridwar district, in terms of Paragraph-2 of the Circular dated 16.01.2019, Paragraph-3 of the said Circular notes that the Commission had decided that no officer, connected directly with the elections, shall be allowed to continue in the present district of posting, (i) if he is posted in his home district; (ii) and if he has completed three years in that district during the last four years, or would be completing three years on or before 31st May, 2019. In terms of Paragraph 3, the Election Commission of India was obligated to direct the State Government not to continue an officer in the present district of posting, if he was posted in his home district, which in the present case is inapplicable, since the 4th respondent is posted at Haridwar district of Uttarakhand, and not in Ayodhya district of Uttar Pradesh.

In terms of Paragraph 3(ii), it is only if the 4th respondent has completed three years of service in Haridwar district during the last four years, or would complete three years on or before 31st May, 2019, would he be required to be shifted elsewhere from Haridwar district.

As noted hereinabove, the 4th respondent was posted, for the first time, in Haridwar district on 04.10.2016, and his three years' stint would end only on 03.10.2019, i.e. long after expiry of the prescribed cut-off date, i.e. 31st May, 2019. In the last four years, the 4th respondent has served for more than a year in Dehradun district, and would be completing two years eight months' of service in Haridwar district by 31st May, 2019. Since the 4th respondent does not fall within the ambit of either Clause (i) or Clause (ii) of Paragraph 3 of the Circular dated 16.01.2019, the State Electoral Officer was justified in not shifting him from Haridwar district.

Paragraph-4 of the Circular dated 16.01.2019 begins with the words "while implementing the above said instructions / transferring officers". It is evident, therefore, that it is only if an officer is required to be transferred from his present place of posting, in the light of what is stated in Paragraphs 2 & 3 of the Circular, is the Government required to ensure that such officers, who are shifted from their existing place of posting, are not posted in their home districts. Since the 4th respondent is an Additional District Magistrate, and does not fall within any of the enumerated categories in the second limb of Paragraph-4 of the Circular, the second limb of the said paragraph may not be attracted.

Paragraph 6.1 of the Circular dated 16.01.2019 stipulates that these instructions shall cover not only officers appointed for specific election duties like DEOs, Dy. DEOs, RO/AROs, EROs/AEROs, and officers appointed as nodal officers of any specific election works, but district officers like Additional District Magistrates, etc would also be governed thereby. Even if we proceed on the premise that the Additional District Magistrate would also be covered by the second limb of Paragraph-4, in the light of what is stated in Paragraph 6.1, both the first and the second limbs of Paragraph-4 are related to cases where a person, who is posted in a particular district, is required to be transferred by the State Electoral Officer. It is while transferring such a person, would the State Electoral Officer be required to bear in mind what is stated in Paragraph-4. The question whether a person should be transferred from the existing place of posting is governed by Paragraph 3 and, since the 4th respondent does not fall within the ambit of either clauses (i) or (ii) of Paragraph-3, Paragraph-4 has no application to his case.

The writ petition, as filed, is wholly misconceived and is, accordingly, dismissed. However, in the circumstances, without costs.