K.G. Balakrishnan, J.@mdashPetitioner challenges the direction issued by the Chief. Election Commission to the 2nd Respondent on the eve of by-election to the Guruvayur Assembly Constituency. Petitioner is a senior I.P.S. officer. He belongs to 1961 batch of direct recruits to Indian Police Service. He has worked in various capacities. By Government order dated 22nd April 1994, Petitioner was promoted to the grade of D.G. and I.G.P. with effect from 1st May 1994. The appointment of the Petitioner was against a retirement vacancy. At the time of this appointment, an Original Application filed by another senior I.P.S. officer was pending before the Central Administrative Tribunal, Ernakulam Bench. Petitioner therein claimed that he was entitled to be promoted to the rank of D.G.P. with effect from 1st May 1993. The Central Administrative Tribunal passed an order to the effect that the appointment to the post of D.G. and I.G.P. shall be with previous permission of the Tribunal. As the order of appointment of the Petitioner as D.G. and I.G.P. was made without such previous permission of the Tribunal it was brought to the notice of the Tribunal. The Tribunal passed an order permitting the State Government to make appointments in accordance with law and, thereafter 2nd Respondent passed Ext. P-4 order on 27th April 1994 whereby the Petitioner was promoted and posted as D.G. and I.G.P. with effect from 1st May 1994 in the retirement vacancy of the then D.G. and I.G.P. Another senior officer was also promoted to the grade of D.G. and I.G.P.
2. The Election Commission declared by-election to the Guruvayur Assembly Constituency as per notification dated 26th April 1994. On 3rd May 1994, 2nd Respondent received a communication from the Election Commission to the effect that the appointment of the Petitioner as D.G. and I.G.P. shall be immediately cancelled and status quo ante is to be restored. Second Respondent was directed to comply with the direction before 17.00 hours on 5th May 1994. Petitioner came to know of this communication and he has challenged the direction issued by the Election Commission as it adversely affects the rights of the Petitioner.
3. On behalf of the first Respondent a counter affidavit is filed wherein it is stated that the Government order dated 22nd April 1994 was quashed by the Central Administrative Tribunal, Ernakulam Bench on 25th April 1994 and, therefore, the order dated 22nd April 1994 has no effect. The formal valid order appointing the Petitioner to the post of Director General and Inspector General of Police was issued only on 27th April 1994 by which time not only had the announcement of by-election to the Guruvayur Assembly Constituency has been made but formal notification had also been issued on 25th April 1994. Detailed instructions have been issued by the Election Commission of India to the Executive Governments at the Centre and the States to adhere to certain norms during the period of election. These instructions were issued under Article 324 of the Constitution. The Officers posted in the cadre of D.G.P. and I.G.P. are directly connected with the election and are subject to the control of the Commission. Appointment of the Petitioner to the post of D.G.P./I.G.P. was made by the State Government on 27th April 1994 much after the election to the Guruvayur Assembly Constituency was made known to the Government and the Election Commission of India issued direction under Article 324 with a view to ensure free and fair election.
4. On behalf of the 2nd Respondent the Chief Secretary, Government of Kerala has filed an affidavit stating the circumstances under which the Petitioner was posted as D.G. and I.G.P. It is alleged that the Petitioner is entitled to get promotion to the post of D.G. and I.G.P. It is also alleged that the action of the Government is perfectly legal and there was no intention or attempt on the part of the 2nd Respondent to transfer an officer from his post after the commencement of the election. The appointment of the Petitioner was a routine affair which could not have been postponed for administrative season and in public Interest. The ban on transfer orders after the announcement of election is intended for preventing replacement off substitution of an officer who could have continued in the post but for the order of transfer. It is further stated that the first Respondent had completely ignored the object and the spirit of the ban on transfers. The Director General of Police does not come under any of the categories of persons who are actually connected or likely to be connected with the conduct of general election. The first Respondent has no authority to direct the 2nd Respondent to cancel the appointment of the Petitioner and to restore status quo ante.
5. The short question that arises for consideration is whether the first Respondent was legally empowered to issue such direction by virtue of the powers conferred under Article 324 of Part XV of the Constitution or u/s 13CC of the Representation of the People Act, 1950 or u/s 28A of the Representation of the People Act, 1951.
6. Articles 324 - 329 of the Constitution are the relevant provisions relating to the conduct of election to Parliament and Legislature of every State. Article 324 specifically states that the superintendence, direction and control of elections vests with the Electibn Commission. Article 324(6) of the Constitution is the specific provision by which the President or the Governor of a State had been given authority to make available to the Election Commission such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1) of Article 324. Section 13CC of the Representation of the People Act, 1950 and Section 28A of the Representation of the People Act, 1951 are the two other relevant provisions which give power to the Election Commission to exercise superintendence and control over the members of the staff engaged in election related works. Section 13CC of the Representation of the People Act, 1950 reads as follows:
13CC. Chief Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission.- The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during Which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipllpe of the Election Commission.
Section 28A of the Representation of the People Act, 1951 reads as follows:
28A. Returning Officer, presiding officer, etc., deemed to be on deputation to Election Commission.- The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
7. A reading of Article 324(6) of the Constitution read with Section 13CC of the Representation of the People Act, and Section 28A of the Representation of the People Act, show that the control, superintendence and discipline of the Election Commission could be extended to specific category of officials. The Election Commission can request to make available to the Commission or to Regional commission such staff as may be necessary for the discharge of the functions conferred on the Commission. These officers could be deployed for various works and they could be posted as returning officer, assistant returning officer, presiding officer, polling officer, etc. The Election Commission can also make a request to the President or the Governor of a State to make available such other police officers or members of the staff as are required for the fair and proper conduct of the election. The officers whose service is made available to the Election Commission are deemed to be on deputation to Election Commission during the period when they have been working, under the direction of the Election Commission. By virtue of the deeming deputation conferred on the Election Commission by Article 324(6) read with Section 13CC of the Representation of the People Act, 1950, the Election Commission gets control over these officers. It is clear that the control, superintendence and discipline over these officers will extend only during the period in which they are so employed. As regards Police officers, Section 28A of the Representation of the People Act, 1951 says that the Police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of dieclaration of the results of such election. The superintendence, control and discipline of the Election Commission will, extend only to such police officers who are designated for the conduct of election. From these provisions the power and authority of the Election Commission is clear and unambiguous.
8. The contention of the counsel for the Election Commission that when an election is declared the Commission will have power, contrOl and superintendence over the entire staff of the State including the police officers is clearly unsus tainable. The Election Commission does not have any power, control and superintendence over a police officer who is not designated for the purpose of ''election'' duty. As regards the members of the staff also Election Commission has no power or authority regarding transfer and posting either under Article 324(6) or u/s 13CC of the Representation of the People Act, 1950 and Section 28A of the Representation of the People Act, 1951. The power, control and superintendence of the Election Commission extepdi only over the staff deputed for election duty.
9. Counsel for the Election Commission further contended that Article 324 of the Constitution is a plenary provision vesting the whole responsibility for National and State election on the Election Commission and Article 324 would operate in areas left unoccupied by legislation and it gives a reservoir of power to the Election Commission. These matters were dealt with in two important decisions of the Supreme Court. In
Functions as referred to in Article 324(6) include powers as well as duties. It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with function. The Chief Election Commissioner has to pass appropriate orders on receipt of reports from the returning officer with regard to any situation arising in the course of an election and power cannot be denied to him to pass appropriate orders. Moreover, the power has to be exercised with promptitude. Whether an order passed is wrong, arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in him if it is there either under the Representation of the People Act or the rules made in that behalf, or under Article 324(1). The Commission is entitled to exercise certaih powers under Article 324 itself on its own right, in an area not covered by Representation of the People Acts and the rules.
10. Another decision reported in
(a) when there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections;
(b) where there is an Act and express rules made thereunder, it is not open to the Commission to override the Act or the rules and pass orders in direct disobedience to the mandate contained in the Act or the rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and rules) in the matter of superintendence, direction and control as provided by Article 324;
(c) where the Act or the rules are silent, the Commission has no doubt plenary powders under Article 324 to give any direction in respect of the conduct of election; and
(d) where a particular direction by the Commission is submitted to the Government tor approval as required by the rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given.
11. Counsel for the Election Commission contended that there is no parliamentary legislation or rule made in respect of control, superintendence and direction over the members of the staff deputed for election duty and therefore, the Election Commission can pass orders regarding the transfer and posting of any officer who has got amy connection with the conduct of election. I am unable to accept this contention. Powers of the Election Commission are clearly outlined under Article 324(6) read with Section 13CC of the Representation of the People Act, 1950 and Section 28A of the Representation of the People Act, 1951. The power superintendence and control could tye exercised in respect of officers who are deputed for election work. Counsel for the Election Commission further contended that D.G. and I.G.P. is an election related officer as he has got overall control over the entire police force of the State. Reliance was placed on Annexure-R-1 letter issued by the Election Commission. In Clause 4(iv) of the letter it is only stated that the Superintendent of Police, Deputy Superintendents of Police and Assistant Superintendents of Police and other senior level police officers like S.H.O. who are entrusted with the task of maintenance of law and order are election related officers. There is nothing in evidence to show that the service of these officers were requested by the Election Commission under Article 324(6) of the Constitution Further, there is nothing in evidence to show that the D.G. and I.G.P. was designated by the State for the conduct of election. There is also nothing in evidence to show that the Governor of the State made available to the Election Commission the service of the D.G. and I.G.P. for the conduct of the election. It is clear that the Election Commission had absolutely no control and superintendence over the D.G. and I.G.P. and the impugned direction passed by the Election Commission was without jurisdiction.
12. Counsel for the Election Commission argued that this O.P. itself is not maintainable under Article 226 of the Constitution and the remedy, if any, available to the Petitioner is to approach the Central Administrative Tribunal. This plea also cannot be accepted. In the original petition what is sought to be quashed is a direction by the Chief Election Commission to cancel the appointment of the Petitioner as D.G. and I.G.P. and to maintain status quo ante as on the date of declaration of the bye-election. The direction as such is not in respect of the posting, promotion or other service conditions of the Petitioner. Petitioner seeks only to quash a direction issued by the Election Commission. The Petitioner is definitely entitled to seek a judicial review of the same under Article 226 of the Constitution.
13. In short, the position is that the Petitioner, who is the D.G. and I.G.P. of the Statie was not under the administrative control of the Chief Election Commission. The Commission did not request to avail the service of the Petitioner under Article 324(6) of the Constitution. The power, superintendence and control of the Election Commission will extend over such officers, who are entrusted, with the election duties or whose services have been requested and obtained under Article 324(6) of the Constitution. The Election Commission can issue direction regarding posting and transfer of officers who are deputed for election duty or officers who are deemed to be on deputation to the Election Commission by virtue of the powers exercised by the Commission under Article 324(6) of the Constitution read with Section 13CC of the Representation of the People Act, 1950 and Section 28A of the Representation of the People Act, 1951. Petitioner is not an officer coming under any of these categories. The Election Commission was not authorised to give any direction to the State Government regarding the posting or transfer of the Petitioner. The direction given by the Election Commission regarding the posting of the Petitioner is only to be quashed. I set aside the direction issued by the Chief Election Commission and allow the Original Petition.
Parties to bear costs.
