Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. allowed the writ petition of the petitioner and quashed his transfer order.

The petitioner was working on the post of District Supply Officer, Ranchi in the year 2016. He was transferred to the post of Secretary, Regional Transport Authority, Ranchi on 20-08-2016. He joined on the said post on 24-08-2016. Within six months of his joining, he was again transferred to Pakur. On 31-01-2019, he was transferred from Pakur to Ranchi. He joined on the said post on 05-02-2019. Again on 18-02-2019, the petitioner was transferred from Ranchi to Simdega as Director, Accounts Administration & Self Employment, District Rural Development Authority, Simdega.

Learned counsel for the petitioner, P.A.S. Pati, submitted that the transfer of the petitioner in such a short span was not in consonance with the transfer policy. Atanu Banerjee, the learned counsel for the respondent, submitted that the transfer was in exigency of services and maintained that the transfer was not intended with any malice but was only done because there was a shortage of competent officers at Simdega.

The Court relying on the counter affidavit of the respondents observed that the main reason for transferring the petitioner was the direction of the Election Commission of India because of the ensuing Lok Sabha election. The Court went through the direction in question and found that it was not applicable to the concerned petitioner.

Further, the Court relied on Uttam Kujur v. State of Jharkhand, 2008 (2) JCR 306 (Jhr), which held that that where the State has laid down a transfer policy and prescribed procedure, unexplained deviation from it will render the transfer invalid and arbitrary.

In view of the above, the Court allowed the writ petition and quashed the transfer order, as contained in Memo No. 1540 dated 18-02-2019.[Manoj Kumar v. State of Jharkhand, 2019 SCC OnLine Jhar 515, decided on 16-05-2019]

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. upheld an order passed by the Election Commission of India, dated 1-4-2019, whereby the petitioner — Additional Director General of police, Jharkhand — was forthwith divested from his present assignment and was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi.

A complaint was made against the petitioner that he indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections of 2016. On receipt of the complaint, departmental proceedings were initiated against him and an FIR was registered for committing election offence, on the directions of the Election Commission of India. Meanwhile, elections to the 17th Lok Sabha were announced. A letter was received by the Election Commission with the information of pending inquiry against petitioner. On receiving the letter, the Commission issued an order divesting him of the present assignment and directing him to report to the Resident Commissioner. It was also directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the electoral process. Aggrieved, the petitioner challenged the aforesaid order.

The High Court noted that Article 324 of the Constitution provides for the establishment of Election Commission of India and vests in it the power of superintendence, direction and control of elections. In Court’s opinion, Article 324 empowers the Commission to issue any notification, circular or direction to conduct free, fair, smooth and uninfluential elections, where there is no special law, either found by the Parliament or by State Legislature to deal with the situation. The Court perused Section 28-A of the Representation of the People Act, 1951 which provides that all the officers which have been ‘designated’ under Part 4 of the Act, shall be deemed to be on deputation of the Election Commission and they will be under control, superintendence and discipline of the Commission.

Notably, the State of Jharkhand has issued a notification designating Additional Director Generals of Police as ‘designated officers’. Therefore, the present petitioner was also a designated officer for the purpose of Section 28-A. Thus, the Election Commission had got full control over the petitioner, a ‘designated officer’, and could give him directions and could also restrict and regulate him. It could decide the nature of the job to be performed by the petitioner and the manner of its performance. The Commission could also restrict or forbid him from performing any work, to achieve the ultimate goal of conducting free and fair elections.

The Court held that the order directing the petitioner to report to the Resident Commissioner in New Delhi was for all-purpose an order of ‘transfer’, which is an incident of service. It was noted that the Election Commission had framed a Model Code of Conduct which, among all other things, formulated the policy of transfer/posting of Government officials during the elections. However, observed the Court, that the MCC is a general provision which cannot be universally applied. It is not a closed document.

Orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, and these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28-A.

On the facts of the case, it was found that there was sufficient material before the Election Commission to pass the impugned order. The orders could have been passed by the Commission not only under the MCC but also under Article 324 read with Section 28-A. Thus, there was no illegality in the impugned order. As such, the petitioners challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner was dismissed.

However, regarding the direction that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process, the court held that such a blanket order was unreasonable and could not be sustained in the eye of the law. It was directed that if the petitioner applies for grant of leave, the Election Commission should consider the same on its own merit. [Anurag Gupta v. Election Commission of India, 2019 SCC OnLine Jhar 474, dated 03-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The Bench of Sudhir Bhargava, CIC, while dealing with an issue in respect of Electronic Voting Machine stated that EVM (Electronic Voting Machine) is information under RTI Act.

In the present case, the appellant had filed the application under Right To Information Act, 2005 before the Central Public Information Officer (CPIO), Election Commission of India seeking an Electronic Voting Machine. Appellant filed the second appeal on the grounds that the respondent wrongly denied the information.

Contentions placed by the appellant:

Appellant stated that as per Section 2(f) and 2(i) of the RTI Act, the definition of ‘information’ and ‘record’ includes model or any sample which ultimately qualifies EVM as “information” and should be provided to him under Section 6(1) of the RTI Act. Appellant further requested the commission to direct CPIO, ECI to provide the desired information to him free of cost and impose a penalty against CPIO under Section 20 of RTI Act.

Conclusion [Decision taken by CIC]

CIC Bench concluded its order by stating the definition of information under Section 2(f) of RTI Act, i.e.

Section 2(f) – “Information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, order, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Therefore, noting the above, the Commission stated that EVM is available in a material form and also as samples, as admitted by the respondent during the hearing, is information under the RTI Act. The contention that the software installed in the EVM is an intellectual property of a third party, disclosure of which would harm the competitive position of the third party concerned, commission directed the CPIO, ECI to provide an appropriate reply, as per the provisions of the RTI Act, since it could not have been denied under Section 6(1) of the Act.

With the above position of facts and circumstances along with the conclusion pronounced, the appeal was disposed of. [Razak K. Haidar v. CPIO, Election Commission of India, Order dated 11-02-2019]

Case BriefsHigh Courts

Delhi High Court: A few days back on 16th February, the Additional Sessions Judge had granted parole to applicant Mukhtar Ansari who is a sitting MLA from Mau Constituency and has been so for last 4 terms. Aggrieved by the order, the Election Commission approached the High Court contending that it is bestowed with extensive powers under Article 324 of the Constitution and where an order of the Court would adversely affect and obstruct the Election Commission in conducting free and fair elections, the Election Commission would be within its jurisdiction to challenge the same placing reliance on  Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, 1978 (1) SCC 405Election Commission of India v. State of Haryana1984 Suppl SCC 104;  A.C. Jose v. Sivan Pillai, 1984 (2) SCC 656 and Union of India v. Association for Democratic Reforms, 2002 (5) SCC 294.

The Commission even submitted before the Court that Question No. 49 of Frequently Asked Questions to Model Code of Conduct for Guidance of Political Parties and Candidates, stateS that before grant of custody parole, the Election Commission ought to have been consulted. However, the same was not done in the case of respondent. Counsel for the petitioner further submitted if the criminal antecedents of the respondent are taken into account, it is apparent that it would affect the free and fair process of election stating that not only the impugned order has been passed without issuing notice to the Election Commission, it also violates the directions issued by the Election Commission during the elections, namely, Instruction No. 13 in this regard.

The petitioner further contended that democracy is the basic feature of the Constitution of India which rests on a system of free and fair elections and no candidate has a fundamental right to be elected or to campaign as per his choice relying on  Indira Nehru Gandhi v. Raj Narain1975 Supp SCC 1;  Jyoti Basu v. Debi Ghosal, 1982 (1) SCC 691 and  Kuldip Nayar v. Union of India, 2006 (7) SCC 1.

Election Commission informed the Bench of the incidents to show that while canvassing, law and order problems were created and various FIRs were registered in 2012 while he was released and in January, 2017 as well, FIR had been registered wherein supporters of respondent were found creating law and order situation. On this, the Court observed that the legal right of a candidate to contest an election does not translate into a legal right to canvass for his candidature and held that even if the trial court was not appraised with the relevant rules placed by ECI, the High Court had power under Section 482 CrPC to stop the abuse of process. Accordingly, disposing off the petition, the Court set aside the impugned order. [Election Commission of India v. Mukhtar Ansari, 2017 SCC OnLine Del 7199, dated 27.02.2017]

 

Case BriefsHigh Courts

High Court of Bombay at Goa: The Election Commission had issued certain guidelines for conducting exit polls on 4th February, 2017, that was the day of polling in Goa. The petitioners, a local media news channel had filed a writ petition challenging the guidelines of Election Commission.

The counsel on behalf of the ECI put forth before the Court that no exit polls would be conducted on the day of polling in the States mentioned in the ECI notification dated 31.01.2017. To this, the counsel for the petitioner contended that such a stand was contrary to Section 126-A of the Representation of Peoples Act as well as of what could be understood by the plain reading of the notification itself while pointing out the fact that such exit polls have been conducted previously as well in Goa. It was brought to the light of the Court that S. 126-A as well as the notification bar the dissemination and publication of the results of the exit polls, but do not put any bar on conducting them.

The Court observed that the arguments of the petitioners were worth considering after the reply of Election Commission was filed. However, the Bench refused to interfere and to grant ad interim protection to petitioners and directed the ECI to issue a clarification on the notification by evening. [SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. V. UNION OF INDIA, WP No. 143 of 2017 decided on 3.02.2017]