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RAM NIHORE MISHRA & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Ram Nihore Mishra & Others v. State Of U.P. & Others - SPECIAL APPEAL DEFECTIVE No. 121 of 2007 [2007] RD-AH 2272 (12 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 32

Special Appeal No.121 of 2007 (D)

Ram Nihore Mishra & Others v. State of U.P. & Others

                  And

Special Appeal No.171 of 2007

Gorakh Nath Yadav & Another v. State of U.P. & Others

Hon'ble S. Rafat Alam, ACJ.

Hon'ble Krishna Murari, J.

At the outset, Shri W.H. Khan, learned counsel for the appellants states that he has been instructed not to press special appeal no.121 of 2007 on behalf of appellant no.3.  Therefore, the special appeal no.121 of 2007, in respect of appellant no.3, is dismissed as not pressed.

Both these appeals, under the Rules of the Court, are filed against the judgment dated 1.2.2007 of the Hon'ble Single Judge dismissing Civil Misc. Writ Petition Nos.4142 of 2007 and 4272 of 2007 and therefore, as requested by the learned counsels for the parties, are heard together and being disposed of by this common judgment.

We have heard Shri W.H. Khan, learned counsel for the appellant and Shri B.N. Singh, learned counsel appearing for the Election Commission.

It appears that the appellants, being aggrieved by the order of their transfer, filed Civil Misc. Writ Petition Nos.4142 of 2007 and 4272 of 2007 challenging the order of transfer inter alia on the ground that the order of transfer has been issued on the direction of the Election Commission, who has no authority or jurisdiction unless and until the election of the legislative assembly or parliament is notified and thus, it is not within the competence and domain of the Election Commission of India to have issued such directives.  The Hon'ble Single Judge having heard the learned counsel for the parties found that the petitioner-appellants have, admittedly, stayed for more than three years, the order of transfer passed by the competent authority is not in violation of any statutory rules and regulations thus, there is no scope for interference and thus, dismissed the writ petitions with further direction to the Director General of Police to implement the directives issued by the Election Commission of India forthwith.

It is urged by the learned counsel for the appellants that general elections in the State of Uttar Pradesh having not been notified, guidelines/directions issued by the Election Commission of India pertaining to transfer/posting of the officers, are without jurisdiction inasmuch as the powers conferred upon the Commission with regard to superintendence, direction and control in respect of election can be exercised by it only on the commencement or during elections i.e. only after elections are notified.

It is submitted that the Hon'ble Single Judge did not appreciate that without the elections being notified it was not within the domain and competence of the Commission to have issued guidelines/ directions and the impugned order of transfer issued in pursuance to the said guidelines/directions were illegal and unsustainable.

On the other hand, Sri B. N. Singh appearing for the Commission submitted that it is undisputed that elections in the State of Uttar Pradesh are due to be held in 2007 and in order to ensure free and fair elections, the Commission has issued guidelines/directions in exercise of powers of superintendence vested in it by Article 324 of the Constitution of India.

We have given our anxious consideration to the argument advanced by the leaned counsel for the parties.

The term "superintendence, direction and control" used in Article 324 of the Constitution of India vesting powers in the Election Commission for conduct of all elections to parliament, legislature of every State as well as elections to the Office of President, Vice-president have a very wide connotation. Hon'ble Apex Court in the case of Election Commission of India versus Ashok Kumar (2000) 8 SCC 216 in paragraph 13 has observed as follows: -

"13.   Article 324 of the Constitution contemplates constitution of the Election Commission in which shall vest the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the legislature of every State and of elections to the offices of President and Vice-President held under the Constitution. The words "superintendence, direction and control" have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion. Article 329 of the Constitution provides as under:

"329. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution_

(a) the validity of any law relating to the delimitation of constituencies of the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature."

In view of the aforesaid interpretation of the Hon'ble Apex Court, it cannot be said that the Election Commission would assume jurisdiction to exercise powers conferred by Article 324 of the Constitution of India only on the commencement of elections i.e. only after the elections are notified. Power which though may not have been specifically provided or conferred but are necessary to be exercised for effective exercise of powers provided or conferred are, as a matter of fact, implied powers conferred on the authority by implication. Hon'ble Apex Court while considering the scope and ambit of the powers conferred on Election Commission by Article 324 of the Constitution of India to cancel a poll in the entire constituency in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 has observed in paragraph 88 and 89 as follows: -

"88. Black's Law Dictionary explains the proposition thus;

"Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant."

89. This understanding accords with justice and reason and has the support of Sutherland. The learned Addl. Solicitor General also cited the cases in Matajog Dubey v. H. C. Bhari (1955) 2 SCR 925 at P. 937: (AIR 1956 SC 44 at pp. 50, 51) and Commissioner of Commercial Taxes v. R.S. Jhaver (1968) I SCR 148 at pp. 154, 155: (AIR 1968 SC 59 at pp. 62, 63) to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vast incidental powers. He illustrated his point by quoting from Sutherland (Frank E. Horack Jr. Vol.3).

"Necessary implications: Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated, "An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty ........... That which is clearly implied is as much a part of a law as that which is expressed." The reason behind the rule is to be found in the fact that legislation is enacted to establish broad or general standards. Matters of minor detail are frequently omitted from legislative enactments, and "if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the legislature likely to be defeated.

The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws delegating powers to public officers and administrative agencies. The powers thus granted involve a multitude of functions that are discoverable only through practical experience.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

A municipality, empowered, by statute to construct sewers for the preservation of the public heath, interest and convenience was permitted to construct a protecting wall and pumping plant which were necessary for the proper working of the sewer, but were essential to public heath. A country school superintendent, who was by statute given general supervisory power over special election, was permitted to issue absentee ballots.. The power to arrest has been held to include the power to take finger prints, and take into custody non-residents who were exempted from the provisions of a licensing statute."  

Article 324 of the Constitution of India vests the power of superintendence, directions and control of elections in the Election Commission.  The word ''superintendence' is of very wide connotation and it includes all incidental and ancillary functions, which are necessary for successful exercise of power conferred by Article 324 on the Commission for conduct of elections. Exercise of such power being in furtherance of and as an aid to the performance of duty imposed upon the Commission by the Constitution is necessarily to be read in the power of superintendence, direction and control of elections conferred upon the Commission for holding free and fair elections.

Thus, the contention of the learned counsel for the appellants that such guidelines/directions could not have been issued by the Election Commission, prior to the election being notified, is totally misconceived and cannot be accepted.

Second contention that the cut off date being 16.12.2002 in the order dated 29.12.2006 issued by the Director General of Police, only such officers could have been transferred under the aforesaid order, who have completed the period of three years prior to 16.12.2002, is also misconceived and cannot be accepted.  Clauses (2) and (3) of the order dated 29.12.2006 are extracted hereinbelow: -

"(2) foxr pkj o"kksZa (fnukad 16&12&2002 ls izkjEHk esa) esa ls rhu o"kZ dh lsok ,d gh tuin esa iwjh djus okys vf/kdkjh@deZpkjh dks mlh tuin esa rSukr u j[kk tk;A

(3) d`Ik;k ek0 fuokZpu vk;ksx ds layXu i= esa vafdr 15&fCkUnqvksa ij funsZ'kksa ls vius tksu ds v/khuLFk lHkh vf/kdkfj;ksa dks Hkh izdkj voxr djkrs gq, rn~uqlkj tuin esa fujh{kd@mifujh{kdksa dh rSukrh fd;s tkus ds iwoZ muds orZeku fu;qfDr dh vof/k dks bafxr djrs gq, mUgsa izLrkfor tuin esa fu;qDr djus dk izLrko layXu izk:i esa v/khgLrk{kjh dks fnukad 05&01&2007 rd miyC/k djkuk lqfuf'pr djsa] rkfd eq[; pquko vf/kdkjh rSukrh ds lEcU/k esa fopkj foe'kZ fd;k tk lds% &

(d) ---------------------------------------

([k) rhu o"kZ dh vof/k dh x.kuk gsrq dehZ ds iwoZ inksa ij ml tuin esa fu;qfDr vof/k dks lfEefyr fd;k tk;A fu;qfDr dh x.kuk gsrq (iwoZ fu;qfDr;ksa dks lfEefyr djrs gq,) dV vkQ MsV 16&12&2002 fu/kkZfjr gSA

(x) dehZ dh fu;qfDr gsrq izLrkfor tuin ds lUnHkZ esa ;g Hkh ns[k fy;k tk; fd og ml tuin esa rSukfr dh fu/kkZfjr vof/k iw.kZ u fd;k gksA

(?k) ftu dfEkZ;ksa ds lsok fuo`fRr esa 16 fnlEcj 2006 ls N% ekg 'ks"k jg x;s gks] mUgsa LfkkukUrj.k izfdz;k ,oa pqukoh fM;wVh ls eqDr j[kk tk;A

(p) m0fu0 l'kL= iqfyl ds LfkkukUrj.k dk izLrko Hkh vyx ls izf"kr fd;k tk;A"

Placing heavy reliance on the aforesaid clauses and cut off date specified therein it has been sought to be argued on behalf of the appellants that only those officers, who were posted in the respective districts on or before 16.12.2002 were liable to be transferred and since the appellants were posted in District- Sonbhadra after cut off date i.e. 16.12.2002 they did not come within the ambit of the guidelines and thus their transfer orders are illegal and arbitrary and the learned single judge has wrongly and illegally ignored this vital aspect.

We do not find any force in the submission for the reason that a careful reading of the aforesaid two clauses does not indicate in any manner that only those officers are to be transferred who were posted in their respective districts on or before the cut off date i.e. 16.12.2002. On the contrary, guidelines/directions of the Commission as well as the policy framed by the State Government dated 26.12.2006 as well as order dated 29.12.2006 passed by the Director General of Police clearly provides that the officers, who have completed three years in the present district of posting during the last four years, should not be allowed to continue in that district and should be transferred to other place.  26.12.2002 was determined as cut off date to calculate the period of four years. Only interpretation, which could be given to the aforesaid clauses, is that those officers, who have completed three years of posting in a particular district out of last four years to be computed from 16.12.2002, are required to be transferred. Cut off date 16.12.2002 is in reference to the period of 4 years, which is to be counted from the said date. The object was to transfer out the officers who had completed three years in a particular District during the last four years to ensure free and fair elections.  The Commission issued the directives on 26.12.2006 and the State Government determined 26.12.2002, as the cut off date to compute the period of 4 years and there appears to be no illegality in the same.

It has next been contended that both the appellants in Special Appeal No. 171 have been posted in District Sonbhadra only on 10.4.2006 as such they are not covered under the guidelines/directives of the Election Commission and have illegally been transferred, even though they have not completed three years. Again we are not impressed with this submission. The details of the posting of the two appellants of Appeal No. 171 as set out in the affidavit filed in support of stay application are as under: -

Appellant No. 1

Sl.No. Dates Transfer & Posting Place

1. 05.05.2003 Transferred from District Balrampur to District Sonbhadra as Sub Inspector

2. 06.04.2006 District Sonbhadra to Varanasi Headquarter(out of turn promotion)

3. 06.4.2006 Joined at Varanasi Headquarter

4. 07.04.2006 Transferred from I.G. Camp Varanasi to Mirzapur Range

5. 07.04.2006 Joined at Mirapur Range

6. 10.04.2006 Transferred from DIG Mirzapur Range to District Sonbhadra

7. 11.04.2006 As S.P. Sonbhadra to Dudhi as S.H.O.

Appellant No. 2

SlNo. Dates           Transfer & Posting place

1. 06.07.2002 District Ballia to Sonbhadra as Sub Inspector

2. 06.04.2006 District Sonbhadra to Varanasi Headquarter(out of turn promotion)

3. 06.04.2006 Joined at Varanasi Headquarter

4. 07.04.2006 Transferred from I.G. Camp Varanasi to Mirzapur Range

5. 07.04.2006 Joined at Mirzapur Range

6. 10.4.2006 Transferred From DIG Mirzapur Range To District Sonbhadra

7. 11.04.2006 As S.P. Sonbhadra to Dudhi as S.H.O.

A perusal of the same goes to show that appellant no. 1 was posted in District Sonbhadra vide order dated 5.5.2003 and he continued there till 6.4.2006 when he was given out of turn promotion and transferred to Varanasi Headquarter. On 7.4.2006, he was transferred from Varanasi to Mirzapur range and on 10.4.2006 he was again transferred to District Sonbhadra. Thus, within a period of four days he again came to be posted at District Sonbhadra. Same is the position with the appellant no. 2. He also came to be posted at District Sonbhadra just after 4 days of his being transferred out from the said District.

The purpose for issuing guidelines for transfer and posting of the officers in order to ensure free and fair elections is very obvious. Officers posted in a particular district for a long period may develop liaison with the political big wigs and other influential people of the said district and to avoid their interference in the conduct of free and fair elections such officers are to be transferred out from the said District. In case, the argument advanced on behalf of appellants in Appeal No. 171 is accepted, the very purpose would stand frustrated as except for a brief period of 4 days they have continued in District Sonbhadra from 5.5.2003 and 6.7.2002, respectively i.e. for more than three years during the last four years. They cannot be allowed to take shelter behind technicality of having been posted out from District Sonbhadra for just four days during the last three years and to defeat the very object and purpose of guidelines/instruction of the Election Commission.    

Even otherwise, it is well settled that transfer is an exigency of service and an employee holding transferable post can be transferred at any point of time and he has no vested right to continue at any particular place of posting. Grounds for interference by the Courts in the order of transfer are very limited. Interference can be made on the ground of mala fide or violation of any statutory provision. The scope of interference by the Court in regard to transfer of members of armed forces is far more limited and narrow as observed by Hon'ble Apex Court in the case of Major General J. K. Bansal v. Union of India, 2005 (107) FLR 37 relied upon by the learned single judge in the judgment under appeal. The transfer order of the appellants not being outcome of any mala fide exercise of powers or violative of any statutory provision or passed by any authority not competent to do so is not liable to interference by this Court and the appellants being members of police force are supposed to obey and carry out the same.

No other point is urged.

The Hon'ble Single Judge in the order under appeal has fully considered in detail all the aspects and there is no factual or legal error in the same and for the foregoing discussions, we have no reason to take a different view.

At this stage, learned counsel for the appellants submitted that Ram Nihore Mishra, appellant no. 1, in appeal no. 121-07(D) is suffering from severe "Lumber Spondylosis with right Para-central Disc. Extrusion L5/S! IV Disc Leading to Secondary Lumber Canal Stenosis with right SI Traversing Nerve Root Impingement" and cannot move.  Our attention has been drawn to supplementary affidavit filed today enclosing the prescription and medical certificates issued by treating doctors. We are of the view that where an employee because of transfer visits with some hardship, may be on account of illness, he can make representation in this regard before the appropriate authority.  Therefore, Ram Nihore Mishra, appellant no.1 may make representation before the competent authority and we have no manner of doubt that in case such representation is made by him, the same shall be considered and disposed of expeditiously, preferably within a period of two weeks from the date of filing of such representation.

With the aforesaid observation, both the special appeals, being without merit, are dismissed but without costs.

12.2.2007

A.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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