The Allahabad High Court while allowing the petition held that if during the currency period of election notification, any transfer order has been passed without seeking prior approval or permission from the Election Commission, that order would be non est in the eyes of law.
A Single Bench of Justice Rajesh Singh Chauhan passed this order while hearing a petition filed by Ravi Prakash Mishra.
The Court has passed order dated 31.07.2024, which reads as under:-
“S.M Singh Royekwar, counsel for the petitioner, Sandeep Sharma, Standing Counsel for the State and Anindra Shastri, counsel for the opposite party No 8.
Yoyekwar, counsel for the petitioner has assailed the impugned transfer order dated 20.07.2024, passed by the District Panchayat Raj Officer, Gonda, whereby the petitioner who is serving on the post of Assistant Development Officer (Panchayat), has been transferred from Vikas Khand Wazirganj to Vikas Khand Mujehna, District-Gonda on the ground that the State Election Commission has notified election of Panchayat on 15.07.2024 and election for Block Wazirganj is to be conducted pursuant to the election notification.
As per Royekwar, after the notification having been issued by the State Election Commission, the administrative authority cannot transfer an employee from one place to another place even in the same district without taking prior permission from the State Election Commission.
On being confronted counsel for the State Election Commission as to whether any permission/ approval has been given transferring the petitioner and the same query has been put from Sandeep Sharma counsel for the State as to whether the authority concerned has taken consent from the Election Commission, both the counsels appearing for the opposite parties have requested that some short time may be given them to seek specific instructions on that point.
List/ put up this case on 02.08.2024 as fresh. On that date, this matter may be taken up immediately after fresh cases.
Till the next date of listing, the status-quo as on today i.e 31.07.2024, shall be maintained.”
Counsel for the State Election Commission and Standing Counsel, both, have stated that before issuing the impugned transfer order dated 20.07.2024 no approval/ permission has been taken from the State Election Commission.
S.M Singh Royekwar has drawn attention of the Court towards para-6 (Ka) of the Model Code of Conduct, which categorically provides that during the currency period of election notification, no employee of the area would be transferred/ appointed/ promoted and if such transfer etc is necessary on account of compelling circumstances, prior permission/ approval from the State Election Commission would be required.
Therefore, Royekwar has submitted that since no prior permission/ approval has been taken transferring the petitioner from one place to another place during the currency period of election notification, the impugned transfer order would be illegal, arbitrary and uncalled for, therefore, the same is liable to be quashed.
He has further submitted that if the aforesaid transfer order has been executed and any person has submitted joining at the transferred place, even then such joining would be quashed for the reason that such transfer order would be non-est and void ab-initio.
Standing Counsel has submitted that opposite party no.7 has submitted joining pursuant to the transfer order dated 20.07.2024.
“Having heard counsel for the parties and having perused the material available on record and also the decision of the Division Bench of the Court in re; R.K Mittal (supra), I am of the considered opinion that if during the currency period of election notification, any transfer order has been passed without seeking prior approval or permission from the Election Commission, that order would be non est in the eyes of law and therefore, it would be treated as if no transfer order has been passed, thus, the execution thereof, if any, would be meaningless. If on account of the fact that one person has submitted his joining at the transferred place pursuant to the illegal and unwarranted transfer order during the currency period of election notification, then the very purpose of issuing election notification and the Model Code of Conduct would be frustrated”, the Court observed while allowing the petition.
Therefore, the Court set aside/ quashed the transfer order dated 20.07.2024.
The Court directed the District Panchayat Raj Officer, Gonda to permit the petitioner to serve at Vikas Khand Wazirganj where he was serving before passing the impugned transfer order dated 20.07.2024 and opposite party no.7 shall be permitted to discharge his duties at Vikas Khand Mujehna where he was serving before the impugned order of transfer.
“Not only the above, since this is an admitted fact that the District Panchayat Raj Officer, Gonda has passed the transfer order during the currency period of election notification without seeking prior permission or approval from the State Election Commission, therefore, the State Election Commission may seek explanation from the District Panchayat Raj Officer, Gonda to the effect that as to how he has issued the transfer order in violation of the Model Code of Conduct,” the order reads.