- (1.) THESE two writ petitions are by the State of Tamil Nadu represented by the Chief Secretary to the government of Tamil Nadu, Fort St. George , Madras . Since the two impugned orders in these two writ petitions are inter-related, I consider it convenient and appropriate to dispose of both the writ petitions by this common order.
(2.) IN W. P. No. 17239 of 1994 the prayer is to issue a writ of certiorari to quash the Order No. 434/i/id. 94 dated 30. 6. 1994 of the respondent. IN W. P. No. 17238 of 1994 the order No. 494/1/94mcs /724, dated 1994 of the respondent is sought to be quashed. 3. The facts to the extent they are relevant and necessary for the disposal of these writ petitions are the following: The respondent who is vested with the power of superintendence, direction and control over the preparation of electoral rolls and the conduct of elections had issued directions to the Chief Secretaries, of the States in India , directing preparation and distribution of identity cards to all eligible electors/ voters on or before 30. 11. 1994. The respondent has also issued the impugned circular dated 30. 6. 1994 prohibiting transfer of officers connected with the scheme of preparation and distribution of photo identity cards with effect from 1. 7. 1994 till the said work is completed. The petitioner states that the said circular dated 30. 6. 1994 imposing a complete ban on transfer of all officers connected with the scheme of identity cards with effect from 1. 7. 1994 till the said work of preparation and distribution of identity cards is completed, is totally without jurisdiction besides being arbitrary and unreasonable. This apart the said direction of the respondent is beyond its competence and is not traceable to either the provisions of the Constitution or any statute. This direction squarely and wholly interferes with and interdicts the executive power of the state in addition to creating serious administrative problems. Because of the said direction the State has been put to serious administrative problems. In the impugned circular it is stated that in the interest of smooth and timely issue of identity cards to the electors and to ensure the completion of the work by the stipulated time there shall be a complete ban on transfer of officers connected with the work of issuing identity cards with effect from 1. 7. 1994 till its completion. It has been repeatedly brought to the notice of the respondent and the Government of India that the task of taking up and completion of the preparation and distribution of identity cards would make it practically impossible for any Government to complete the work within the stipulated time having regard to the magnitude of the problem and the cost involved. If the ban on transfer of Officers would be continued till the completion of the work of preparation and distribution of identity cards it would completely immobilise the State Government and adversely affect the executive functioning of the administration. It is submitted that to place restrictions on the state Government in the matter of personnel management on the ground that it would distrupt the electoral process is stretching the argument and rationale to illogical extremes and indeed it interferes with the sovereign right of the state Government to determine exigencies of public interest and running the day-to-day administration of the State. The officers dealing with the preparation and distribution of identity cards who are designated as District election Officers or Electoral Registration Officers, are public servants who have a number of other functions and responsibilities such as the administration of law and order, running the development administration in the district, or attending to municipal or local body functions. The performance of these duties in the public interest would often override considerations of performance of functions related to electoral reform like the preparation of photo identity cards which is only one of the many functions being performed by them. The ban on postings and transfer of officers is therefore a severe and arbitrary constraint on the sovereign right of the State to determine the public interest and to make arrangement to run the affairs of the State government, their placement of its Officers for which the Election Commission has no jurisdiction.
(3.) THE following categories of Officers would be covered by the ban in which cases postings and transfers cannot be given effect to: i. District Election Officers ii. Electoral Registration iii. Assistant Electoral Registration Officers The posting and transfers of Officers in the District and sub-divisions are made on various grounds viz. , either to fill up vacancies consequent on the retirement of officers on superannuation or on complaints received, or in view of completion of a considerable period in that post, or on promotion to fill up the vacant post. Therefore, a complete ban on transfer will adversely affect the effective functioning of the administration, Since the state Government's ability to determine the public interest in the matters other than the election work will be put to severe contraints by such a curb or ban on transfer of Officers. Transfers are to be made under administrative exigencies or various types. On such occasions it would not be possible for the necessarily in Regular Divisional charges for a period of one year and they are not retained in the posts beyond the period of one year to enable all the Officers to work in the regular divisions/ taluks. It is stated that the process of issue of identity cards is a time consuming process and the state Government would certainly ensure that the transfers effected would in no way affect the work relating to the issue of identity cards entrusted by the election Commission. Hence, the writ petition is filed seeking for quashing the impugned directions contained in the circular dated 30. 6. 1994 placing total ban on transfer of all Officers connected with the work of preparation and distribution of identity cards with effect from 1. 7. 1994 till its completion on the grounds that, (a) the impugned circular issued by the respondent is wholly without jurisdiction. It is beyond the competence and power of the respondent vested under the Constitution or any other provision of law; (b) Under Art. 162 of the Constitution the Collectors in districts (Except Madras), Commissioner, Corporation of Madras in City. Revenue officer, Corporation Officers of Madras, Revenue Divisional Officers/sub collectors, Asst. Collectors, Commissioners, Corporation of Madurai and coimbatore, Municipal Commissioners, Salem and Tiruchirapalli Municipalities. Tahsildar (Elections), Asst. Revenue Officer Corporation of Madras, Taluk tahsildars, All Municipal Commissioners (except Salem and Tiruchirapalli Municipalities ). State Government to seek prior concurrence of the election Commission or to wait for its clearance in every case as suggested by the respondent. To illustrate, an officer selected for training abroad under the Colombo Plan in May, 1993 had to be relieved to undergo training but the ban would apply to his relief since he is a District Election Officer, assistant Collectors on completion of the training have to be given their first postings to the Revenue divisions which cannot be dragged on till the completion of issue of identity cards. Similarly posts which fall vacant consequent on the retirement of the incumbents would have to be filled up immediately. Further as a matter of policy Revenue Divisional Officers and tahsildars have to work Executive power of the State is co-extensive with the legislature. Entry 41 of List II of the Seventh Schedule to the Constitution read with proviso to Art. 309 of the Constitution relate to State Public services, which confer exclusive jurisdiction on the State to enact laws and to pass executive orders in respect of State Services. Hence, the impugned directions imposing ban on transfer constitutes a serious inroad into the powers of the State Executive; (c) The scheme of preparation and issue of identity cards does not require particular officers of the State, and their continuance in the same position is not a sine quo non for the preparation and supply of identity cards. Therefore imposing ban on transfer of all such Officers till the said work is completed is wholly irrational and arbitrary having no nexus with the object sought to be achieved. The order No. 494/1/94/mcs/724 dated 3. 8. 1994 of the respondent impugned in W. P. No. 17238 of 1994 is a consequential order pursuant to the orders issued earlier by the respondent on the same subject relating to ban on transfers, in which besides other things, it is stated that it is necessary to obtain the concurrence of the respondent before any officer connected with the said operation is transferred. Since the facts and grounds stated in this writ petition are identical to the facts stated and grounds raised in W. P. No. 17293 of 1994 it is not necessary to repeat them. ;