The Calcutta High Court on Tuesday dismissed a public interest litigation (PIL) petition challenging the Election Commission of India (ECI)’s orders for the transfer of various senior police officers and bureaucrats in West Bengal ahead of the State assembly elections.
A Division Bench of Chief Justice Sujoy Paul and Justice Partha Sarathi Sen said that other officers have already replaced those transferred by the ECI.
"Thus, as such there is no vacuum created in the system or in the administrative arena. The contention of Shri Naidu, learned senior counsel for the E.C.I. that in place of Chief Secretary and Home Secretary, officers who are 1 and 7 years senior to them respectively were posted, was not disputed by petitioner and the State. Thus, it cannot be said that administrative 'numb' has been created and Government will paralyse if till election, this arrangement has been made to ensure free & fair elections," the Bench ruled
It also declined to look into the aspect of impeachment proceedings initiated against Chief Election Commissioner (CEC) Gyanesh Kumar.
"More so, when no nexus between transfers and said motion could be established with accuracy and precision," it said.
The PIL filed by advocate Arka Kumar Nag had raised concerns that the ECI ordered a mass-scale transfer and removal of almost the entire senior administrative and police bureaucracy in West Bengal.
The ECI had recently ordered the replacement of the Chief Secretary, the Director General of Police, the Home Secretary, various District Magistrates, Superintendents of Police, and other senior officers from the Indian Administrative Services (IAS) and Indian Police Service (IPS). Subsequently, more officers were transferred.
Nag alleged that a large contingent of senior IPS officers from the West Bengal cadre were transferred out of the State on election observer duties to States like Tamil Nadu, Kerala, and Nagaland.
He argued that this "wholesale dismantling of the State's administrative machinery" ahead of the Assembly elections was not a bona fide exercise of power under Article 324 of the Constitution but a colourable and punitive measure.
The PIL also said that such actions are gravely prejudicial to the public interest and fundamentally violate the principles of federalism.
However, the Court opined that the petitioner as a practicing advocate cannot have grievance against transfer of officers unless such transfers result into injury to public interest.
"If officers are transferred for a short time i.e. till election, it cannot be said that administrative machinery in the State is paralysed and a „numb‟ like situation has been created," it added.
It cannot be said that the action is arbitrary, capricious or mala fide only because the ECI transferred a sizable number of officers, the Court further said.
"More so, when similar or more number of transfers/posting of officers had taken place nationwide," the judgment states.
While dismissing the plea, the Court said its judgment will not come in the way of the individual aggrieved officers to challenge their transfer orders in accordance with law.
Arguments
Senior Advocate Kalyan Bandopadhyay, appearing for the petitioner, on March 23 had submitted that even those not connected to elections were sent to different States.
"Five States are going to elections, they can take from 18 remaining States. If head of institutions is sent, what is happening to development in State," Banerjee asked.
He also highlighted the allegations against Chief Election Commissioner Gyanesh Kumar.
"There was impeachment motion against CEC Gyanesh Kumar. The allegation was that ECI is acting whimsically. Supreme Court has now said adjudicatory process will be done by judges," he said.
He said that while ECI has supervisory powers during poll period, the issue is whether the same can be exercised arbitrarily.
"I am well aware of supervisory power of ECI but the question is whether the ECI can act arbitrarily, whether ECI is bound by rule of law, whether it can destroy federal structural, when elected government is there, can ECI interfere," he asked.
Bandopadhyay also argued that elections cannot be a ground to transfer the entire executive power to the poll body.
"Entire power of running State cannot go to ECI. What will State do when number 1 person working is taken away. Who will look after development He works. What will ECI do if there is a disaster?" Banerjee demanded.
He further asked how the assessment of officers transferred including the Chief Secretary were made in an hurry and questioned the grounds on which such transfers were made.
"It has to be objective assessment( before transfer). Within one day, it has been assessed? Because he enjoys power? Experienced persons with impeccable record. ECI says 'go'. What assessment have you made? Because you want your choice people? I don’t know where they are getting the list," he argued.
He said that according to ECI, "everyone is bad". He alleged that the State of West Bengal is being targeted by ECI.
"Similarly, Chief Secretary is not there only for elections. There are other duties. Similarly DMs. Why this grudge? No other state it has been done. Only West Bengal," Bandopadhyay stated.
Senior Advocate Kalyan Bandopadhyay with Advocates Rahul Kumar Singh, Shrobana Sengupta and Kaushik Bandyopadhyay appeared for the petitioner.
Senior Advocates Dama Seshadri Naidu and Soumya Mazumdar with Advocates Anamika Pandey, Abhinav Thakur, Surjaneel Das, Kumar Utsav and Ghanshyam Pandey appeared for the ECI.
Advocate General Kishore Datta with Advocates Swapan Banerjee, Sumita Shaw, Diptendu Narayan Banerjee and Soumen Chatterjee appeared for the State of West Bengal.
[Read Judgment]