Jivan Lal Sahu vs State Of Chhattisgarh

Heard Mr. Shantam Awasthi, learned counsel for the appellant. Also heard Ms. Astha  Shukla, learned Government Advocate, appearing for respondents No. 1, 3, 5 & 6 and Mr. Sanjay Patel, learned counsel, appearing for respondents No. 2 and 4.

This appeal is directed against an order dated 21.02.2022 passed by the learned Single Judge, by which the learned Single Judge disposed of two writ petitions, being WPS No. 6576 of 2021 and WPS No. 6742 of 2021.

The present appeal is presented against WPS No. 6576 of 2021.

At the very outset, it will be relevant to take note of the fact that the Writ Appeal No. 131 of 2022, presented against the aforesaid judgment in connection with WPS No. 6742 of 2021, was dismissed by this Court holding as follows:

“6. The learned Single Judge has observed that Section 13-B(2) of the Act of 1950 would show that power to appoint Supervisor has been expressly conferred upon the Electoral Registration Officer and though by virtue of Section 13-C(2), the Assistant Electoral Registration Officer is competent to perform all or any of the functions of the Electoral Registration Officers, it would not entitle the Assistant Electoral Registration Officer to perform the functions which the Act of 1950 had conferred upon the Electoral Registration Officer, as the Assistant Electoral Registration Officer is subject to the control of the Electoral Registration Officer.

However, correctness or otherwise of this finding of the learned Single Judge is not required to be gone into in this appeal, as the very basis, on which the appellant has laid the foundation to mount the challenge to the order of transfer dated 16.11.2021, namely, the order dated 18.08.2021, is no longer in existence, the same having been revoked by the order dated 04.01.2022.”

It is an admitted position in WPS No. 6742 of 2021 that the petitioner in the aforesaid case was appointed as a Supervisor by the Assistant Electoral Registration Officer. While deciding the above two cases, reliance was placed by the learned Single Judge on the pleadings of WPS No.6742 of 2021.

The case presented by the petitioner is that he is holding the post of Patwari at Patwari Halka No. 09, Tahsil Bilaigarh, District Baloda Bazar-Bhatapara. The order of transfer dated 11.11.2021 was issued, transferring the petitioner to Patwari Halka No.53. By the said transfer order, total 35 numbers of Patwaris were transferred. One Biharilal Aditya, who was holding the post of Patwari at Halka No.43, was transferred to the place of the petitioner. It was pleaded in the writ petition that he was engaged as Supervisor at Tahsil Bilaigarh in furtherance of preparation of electoral rolls.

Mr. Awasthi submits that the present case stands on a different footing as there is no revocation of the order of appointment of the petitioner as Supervisor and the learned Single Judge did not advert to the necessary facts as pleaded in the writ petition. Therefore, this Court is required to consider as to whether while serving as a Supervisor, the State Government was competent to issue the order of transfer without obtaining necessary approval from the Election Commission of India.

What is significant to note is that the petitioner had not placed on record any document by which he had been appointed as a Supervisor. The claim of the petitioner that he was appointed as a Supervisor rests on a document (Annexure P/4), by which certain Patwaries were asked to appear for training on 30.10.2021 at 1:00 pm and in that list, the name of the petitioner appeared at Sl. No.16. Though there is no pleading in the writ petition, it is submitted by him that the aforesaid list was forwarded to him by the Additional Tahsildar through Whatsapp. He admits that no copy of order of appointment as Supervisor was ever served on the petitioner.

On instruction, Ms. Shukla submits that one Karuna Ahir, who was holding the post of Additional Tahsildar, had issued the said letter. She further submits that there is no order on record by which the petitioner was appointed as Supervisor though it is a fact that the petitioner had discharged some duties as a Supervisor. In the absence of order of appointment of the petitioner as Supervisor on record, no steps could be taken to revoke the order. She submitted that petitioner is holding the post of Patwari in the same Halka for last more than 12 years. It is submitted by her that pursuant to the interim order passed by this Court, the petitioner, as on date, continues to hold the post of Patwari in Halka No.9.

In the absence of any order by which the petitioner was appointed as Supervisor, it is not possible to hold only because of the fact that his name appeared in a list issued by the Additional Tahsildar requiring him to attend training as a Supervisor, that the petitioner was appointed as Supervisor by a competent authority.

It is not known what is the basis for including the name of the petitioner in the said list. Assuming that the petitioner cannot be transferred while he was asked to discharge the duties as a Supervisor, to succeed in a writ petition, the petitioner has to demonstrate that he was validly appointed to discharge duties for revision of electoral rolls. The petitioner has failed to establish that he was duly appointed to discharge the functions of Supervisor.

It is also not disputed by Mr. Awasthi that the petitioner has remained as Patwari of Patwari Halka No.09 for last 12 years.

The Patwari, who was supposed to take charge from the petitioner of Patwari Halka No. 9, has now been transferred to Palwari Halka No. 24, in view of the interim order granted in favour of the writ petitioner.

It is also submitted by Ms. Shukla that Patwari Halka No. 53, in the meantime, is filled up by another incumbent.

Having regard to the submissions made by the learned counsel for the parties, we are of the considered opinion that there is no merit in this appeal. However, we record that in view of the subsequent developments, the original order of transfer has been rendered infructuous.

Accordingly, this appeal is disposed of providing that the State Authorities may pass a fresh order of transfer if considered expedient in the interest of public service.