Transfer Order Passed During Operation Of Election Notification Without Prior Approval Of State Election Commission Not Sustainable: Allahabad HC

The Allahabad High Court has held that no notification transferring an employee involved in elections can be passed during the period where election notification is active except with prior permission of the State Election Commission. It was held that such transfer order is non est in law.

Petitioner was serving as Assistant Development Officer (Panchayat), when his transfer order issued by District Panchayat Raj Officer, Gonda transferring him from Vikas Khand Wazirganj to Vikas Khand Mujehna, District-Gonda. The transfer was made pursuant to the election notification dated 15.07.2024 which notified the elections of the Panchayat.

Counsel of petitioner argued that the administrative authority is not empowered to transfer an employee without prior approval of the State Election Commission. It was argued that para-6 (Ka) of the Model Code of Conduct provides that no employee in the area can be transferred during the currency period of election notification. Transfer/ appointment/ promotion can only be made in compelling circumstances with prior permission/ approval of the State Election Commission.

Reliance was placed on R.K. Mittal Vs. State of U.P. and another, where the Allahabad High Court held that transfer of employees may be controlled by the Election Commission only for free and fair elections as the political parties involved may want to post certain officers for their own gains.

Justice Rajesh Singh Chauhan 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 and therefore, it would be treated as if no transfer order has been passed, thus, the execution thereof, if any, would be meaningless.”

It was held that purpose of election notification and Model Code of Conduct would be defeated if the transferred person submits his joining during the currency period of the election notification.

Accordingly, the Court quashed the transfer order, directing that the petitioner be permitted to discharged duty at the place where he was posted prior to transfer.

Case Title: Ravi Prakash Mishra v. State Of U.P. Thru. Addl. Chief Secy. Panchayati Raj, Lko. And 7 Others 2024 LiveLaw (AB) 509 [WRIT - A No. - 5951 of 2024]

Case citation: 2024 LiveLaw (AB) 509

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