Bombay High Court
The State Of Maharashtra Through Its ... vs Pramila Vitthal Kawale on 20 August, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
906 WP-11740-24.doc
BDP-SPS-
BHARAT
DASHARATH
PANDIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
CIVIL APPELLATE JURISDICTION
BHARAT
DASHARATH
PANDIT
Date: 2024.08.21
WRIT PETITION NO. 11740 OF 2024
18:34:05 +0530
The State of Maharashtra & Others ...... Petitioners.
V/s
Smt. Pramila Vitthal Kawale & Others ...... Respondents.
---
Dr. Birendra B. Saraf, Advocate General alongwith Mr. P. P. Kakade,
Government Pleader alongwith Mrs. R.A. Salunkhe, Assistant
Government Pleader for the petitioners-State.
Mr. Prashant Katneshwarkar, Senior Advocate instructed by Mr.
Prashant Nagargoje, Advocates for respondent No.1.
Mr. Ashutosh Kumbhakoni, Senior Advocate instructed by Mr. Akshay
Shinde, Advocate for respondent No.2.
Mr. S. J. Lavate, Advocate, Shri Bhupesh Singh, Law Officers to DGP,
MS, Mumbai present.
-----
CORAM: A.S. CHANDURKAR &
RAJESH S. PATIL, JJ.
DATE: 20th August, 2024
P.C.:-
1] The State of Maharashtra through its Home Department has
raised a challenge to the order dated 19/07/2024 passed by the
learned Member in a batch of Original Applications that has resulted in
treating the orders of transfer issued to various Police Officers in
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exercise of powers under Section 22-N of the Maharashtra Police Act
1951 (fort short, "the Act of 1951) as having lost their efficacy in view
of conduct of the general elections in May-June, 2024.
2] By an order dated 26/02/2024 various police officers including
the 1st respondent came to be transferred in compliance of the
directives issued on 21/12/2023 by the 2nd respondent - Election
Commission of India. The transfer order indicates that said transfers
had been effected in public interest after considering administrative
exigencies in exercise of powers conferred by Section 22-N of the Act of
1951. The Tribunal has proceeded to hold that the Notification, if any,
issued under Section 28-A of the Representation of the People Act,
1951 in respect of police personnel would cease to have effect upon
completion of the general elections, 2024. The period from the date of
such transfer till the completion of the general elections was held to be
period of deemed deputation of such police personnel. Since the
general elections had concluded, the police personnel were entitled to
be reverted back to their respective police establishments by treating
the transfer order as having perished.
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3] In the context of the provisions of Section 22-N of the Act of 1951
as well as Section 28-A of the Representation of the People Act, 1951
vis-a-vis directives issued by the Election Commission of India, the
matter requires consideration.
4] Issue notice to the Respondents, returnable in four weeks.
5] Advocate Mr. Prashant Nagargoje waives notice for the 1st
respondent, Advocate Mr. Akshay Shinde waives notice for the 2 nd
respondent.
6] We have heard the learned counsel for the parties on the prayer
for interim relief.
7] Dr. Birendra Saraf, the learned Advocate General on behalf of the
State of Maharashtra submits that Section 22-N(2) of the Act of 1951
empowers the competent authority to make mid-term transfers of any
police personnel in public interest and on account of administrative
exigencies. The Election Commission of India on 21/12/2023 had
issued a Directive to the Chief Secretary that he should ensure that no
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officer connected directly with the elections shall be allowed to
continue in the district of posting (i) if she/he is posted in her/his
home district or (ii) if she/he has completed three years in that district
during the last four years. In view of these directives, the orders of
transfer dated 26/02/2024 came to be issued. It could not be said that
the transfer orders were in the nature of "deemed deputation" as
observed by the Tribunal. Not withstanding the transfers being effected
mid-term in public interest, the transfer orders were to operate for the
regular tenure as prescribed. Consequence of the impugned order
passed by the Tribunal would require the Home Department to again
bring back the police personnel who had been transferred when, in
fact, such contingency was not provided in the transfer order. On
31/07/2024 the Election Commission of India had issued fresh
directives on the lines of its earlier directives dated 21/12/2023 in view
of the fact that assembly elections were now scheduled sometime in
November, 2024. Thus, the entire exercise that was undertaken
pursuant to the earlier directives dated 21/12/2023 would be required
to be again followed if the order passed by the Tribunal was
implemented. In absence of any challenge being raised either to the
directives issued on 21/12/2023 or 31/07/2024 by the Election
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Commission of India, the power exercised by the Home Department
under Section 22-N of the Act of 1951 could not be faulted. Hence, it
was submitted that the impugned judgment of the Tribunal ought to be
stayed during pendency of the writ petition.
8] Mr. Ashutosh Kumbhakoni, the learned Senior Advocate for the
Election Commission of India supported the prayer made on behalf of
the petitioners for the grant of interim relief. According to him, the
transfer orders were effected in compliance of the directives dated
21/12/2023. If the order of the Tribunal was implemented, same
would have a cascading effect which would undo the entire exercise
that was earlier undertaken. According to him, provisions of Section
28-A of the Representation of the People Act, 1951 related to "conduct
of any election" while the directives issued were with regard to
"connected directly with election". There was a marked difference in
both the expressions. It was only those police personnel who were
involved in the "conduct of any election" who were deemed to be on
deputation with the Election Commission of India under Section 28-A.
9] Mr. Prashant Katneshwarkar, the learned Senior Advocate for the
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1st respondent opposed the grant of any interim relief. At the outset, he
submitted that the Election Commission of India had not challenged
the order passed by the Tribunal if it was a party aggrieved by the said
judgment which resulted in going behind its Directives. Referring to
the Directives issued on 21/12/2023 by the Election Commission of
India, he submitted that both the contingencies provided by Clause-3
thereof ought to be satisfied for a police personnel to be transferred on
that basis. The 1st respondent had recently joined at Nasik City but as a
result of the order of transfer she was required to be shifted
immediately though she had not completed period of three years in the
said district. Reference was made to the provisions of Article 324 of the
Constitution of India as well as Section 28-A of the Representation of
the People Act, 1951 to submit that it was only during the period when
the elections were to be held that such transfer of police personnel was
intended. On conclusion of the general elections, the deemed
deputation would come to an end as rightly held by the Tribunal.
Referring to the judgment of the Division Bench in Smt. Jyoti Hanuman
Patil vs. The Principal Secretary (Revenue) and others in Writ Petition
No.9499 of 2016 with connected writ petitions decided on 07/12/2016
it was submitted that the State Government had failed to frame any
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policy in the matter despite same being required to be done. The
Tribunal having considered various decisions including judgment of the
Karnataka High Court in Election Commission of India vs. State of
Karnataka and others in Writ Petition No.17123 of 2013, there was no
case made out for grant of interim relief.
10] Having heard the learned counsel on the prayer for interim relief,
we are satisfied that a prima facie case has been made out by the
petitioners. The provisions of Section 28-A of the Representation of the
People Act, 1951 which contemplate a police officer who is designated
for the time being by the State Government for the conduct of any
election to be deemed to be on deputation to the Election Commission
for the period commencing from the date of the Notification calling for
such election till declaration of results of such election. In the present
case, the Directives issued by the Election Commission of India do not
relate to Section 28-A of the Representation of the People Act, 1951.
The impugned order of transfer indicates that same has been issued in
exercise of powers under Section 22-N(2) of the Act of 1951. Prima
facie, it cannot be said that such order of transfer was in the nature of
"deemed deputation" so as to lose its efficacy at the conclusion of the
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election. It is also to be noted that fresh Directives have been issued by
the Election Commission of India on 31/07/2024 in view of the
ensuing assembly elections. Permitting the impugned order passed by
the Tribunal to operate would require the transferred officers to
be re-posted and thereafter again be subjected to transfer in accordance
with the subsequent Directives. In view of aforesaid, there shall be
interim relief in terms of prayer clause-C until further orders.
11] Parties to act on the authenticated copy of this order.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J.]
