Election-Time Transfers

 

 

 

 

THROUGH the judgment of a batch of writ petitions filed by the State of Maharashtra Home Department’s Additional Chief Secretary and others challenge was raised to the common decision of the Maharashtra Administrative Tribunal of July 19, 2024 whereby the Tribunal decided various Original Applications that had been preferred by police personnel in the rank of Police Inspector, Assistant Police Inspector and Police Sub-Inspector, who had been transferred by the order of February 26, 2024 in view of the directives issued by the Election Commission of India (ECI).

 

The Member of the Tribunal was of the view that the transfer orders that had been issued in view of the directives of the ECI would lose their efficacy at the conclusion of the general elections and hence the transfers effected on that basis were in the nature of deemed deputation of the concerned police personnel during that period. On December 21, 2023, the ECI issued communication to the Chief Secretary of all States and Union Territories as well as respective Chief Electoral Officers stating therein that no officer connected directly with elections should be permitted to continue in the current revenue district of posting if he/she was posted in his/her home district and if he/she had completed three years in that district during the last four years or would be completing three years on/or before June 30, 2024. In the light of aforesaid communication of January 21, 2023 issued by the ECI and communication of February 22, 2024 issued by the Chief Election Officer, Maharashtra State, the Addl. Director General of Police, Maharashtra issued transfer orders to about 73 police personnel. In the judgment of these writ petitions delivered by Justice Atul S Chandurkar and Justice Rajesh S. Patil on February 7, 2025 at the Bombay High Court in Mumbai, have stated that in the HC’s view, the contention raised by the police personnel in these proceedings that the orders of transfer having been issued in view of the directives of the ECI on account of general elections and at the conclusion of such elections the deemed deputation of such police personnel ought to come to an end, cannot be accepted.

 

A similar contention raised by relying upon the decision of the Karnataka High Court in Election Commission of India and others has been repelled in the decision of the case – Mahendra Eknath Mali. The HC has expressed agreement with the view taken in the Mahendra Eknath judgement and followed the same. Though The Tribunal’s attention was drawn to this judgement, however, without considering the ratio of the said decision, the Tribunal sought to follow the ratio of the decision of the HC in the Election Commission of India and others case. Since the judgment of the Karnataka HC was considered by the division bench in Mali’s case and was distinguished, the decision in the Mali’s case was binding on the Tribunal. Having failed to apply the ratio of the said decision to the present proceedings, the Tribunal has taken a view, which is contrary to ratio of the High Court decision in Mali’s case. It is true that the provisions of section 4(4) and 4(5) of the Act of 2005 were under consideration in the said decision.

 

Though the same would not make much difference as the said provisions provide an exception to the normal tenure of a government servant and permit a mid-term transfer being effected in exceptional circumstances and for administrative exigencies. A similar power has been conferred by section22-N (2) of the Act of 1951 which came to be exercised by the Home Department. Moreover, as required under the Act of 2005, the matter in the present case was referred. The High Court is, therefore, of the considered opinion that the Tribunal having failed to apply the ratio of the decision of the Mali’s case to these proceedings and incorrectly held that the orders of transfer were in the nature of “deemed deputation” and that at the end of elections, the transferred police personnel were entitled to be reverted to their initial place of posting. For this reason, a case for interference in exercise of extra-ordinary jurisdiction has been made out. After considering the Circular of December 21, 2023 and communication of February 2, 2024, the power conferred by section 22-N(2) of the Act of 1951 was invoked and 73 officers came to be transferred. Since the transfers in question have been effected, only in view of the directives of the ECI, it cannot be said that there is absence of any public interest or absence of any exceptional case in transferring the concerned officers.

 

The Circular of December21, 2023 being binding on the State Government it would be an exceptional circumstance to invoke the power conferred by section 22-N(2) of the Act of 1951 for effecting a mid-term transfer. The HC has held that the Tribunal was not justified in holding that the transfer orders issued to the concerned police personnel were to remain effective only till the time the elections were held. The orders of transfer do not indicate that that those were to remain in force only till such time the elections were to conclude. Hence, these orders are to be treated as orders of mid-term transfer and not limited for any particular period.

 

The High Court has made it clear that it would be open to the Home Department to fill in vacancies by following the prescribed procedure. It would also can take into consideration any request made by the concerned police officers to consider their request for being posted at such vacant post. In result, the Bombay High Court has quashed and set aside the impugned order passed by the Maharashtra Administrative Tribunal Member and dismissed the Original Applications raising challenge to the transfer orders. Further, it would however be open to the State Home Department to fill- in any existing vacancies in accordance with law after considering any request/ representation made in that regard.