- (1.) V. K. Shukla, J. Petitioners are members of U. P. Police Force. Election Commission of India, New Delhi on 16-12-2006 addressed letter to the Chief Secretaries to the Governments of Punjab, Chandigarh; Uttar Pradesh, Lucknow and Uttranchal, Dehradun and Chief Electoral Officers of Punjab, Chandigarh, Uttar Pradesh, Lucknow and Uttranchal, Dehradun and subject matter of aforesaid letter was General Elections to the Legislative Assemblies of the States of Punjab, Uttar Pradesh and Uttranchal, and posting of the Officers. In the said letter it was mentioned that General Elections to the Assemblies of the States of Punjab, Uttar Pradesh and Uttranchal, is to be held earlier next year and the Commission in the interest of the free and fair elections, has followed the consistent policy to ensure that officers who are connected with the conduct of elections in the States, do not serve in their home districts or places where they have served for long. Commission on the lines of the instructions issued earlier has decided that no officer connected with elections, directly or indirectly, should be allowed to continue in the present district or posting : (a) if she/he is posted in her/his home district (b) If she/he has completed three years in that district during last four years. Said instructions have been made applicable qua officers appointed for specific election duties like District Election Officers, Returning Officers and Assistant Returning Officer but also other district level officers like Additional District Magistrate, Deputy Collectors, Sub-Divisional Magistrate, Tehsildars, Block Development Officers. Qua in the Police Department, instructions have been made applicable to range, IGs, DIGs, SPs, and Sub-Divisional Heads of Police, Inspectors, Sub- Inspectors, Sergeant Majors, or equivalent who are responsible for deployment of force in the district election time. Commission desired that a detailed review may, therefore, be undertaken there ensuing election in all districts or districts where incumbents have completed a tenure of three years out of last four years and while moving officers, who have completed three years in a district out of last four years, care should be taken so that they are not posted to their home district. While calculating the period of three years, promotion to a post within the district is to be counted. While carrying out this review it has been clarified that these instructions do not apply to officers posted at State Headquarters. The State Government accepted this position that Elections are due as such on 26-12-2006 Special Secretary, Government of Uttar Pradesh issued requisite directions and thereafter Additional Director General of Police (Establishment) has issued order dated 29-12-2006 directing, that if any officer and employee has completed three years service from 15-12-2002 in any district he may not be kept in said district. Pursuant thereto petitioners have been transferred. At this juncture both the writ petitions have been filed.
(2.) LEARNED Counsel for the petitioners Sri Yogesh Agrawal and Sri Satish Chaturvedi contended with vehemence that in the present case Legislative Assembly Election till date has not been notified as such it was not at all in the competence and domain of the Election Commission of India to have issued said directives as such in the present case Election Commission of India has totally transgressed and over stepped its jurisdiction, as such transfer order which have been passed is unsustainable. Sri Shashank Shekher, learned Counsel representing State respondents, as well as Sri P. N. Rai, representing State Election Commission, and Sri B. N. Singh learned Counsel representing Election Commission of India, respondent No. 2 on the other hand contended that undisputed position is that elections are due in the State of Uttar Pradesh and in furtherance of free and fair elections, the Election Commission of India in exercise of its power of superintendence, has given directives and said directives have been faithfully complied with and as far as petitioners are concerned none of their legal rights have been infringed as petitioners have no vested right to claim their continuance at one particular place as such no interference is warranted. After respective arguments have been advanced Article 324 of Constitution of India is being looked into : 324. Superintendence, direction and control of elections to be vested in an Election Commission.- (1) The superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections of parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission ). (2) The Election Commission shall consist of the Chief Election Commission and such number of other Election Commissions, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners, shall be subject to the provisions of any law may in that behalf by Parliament, be made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (1 ). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine : Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment : Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall when so requested by the Election Commission, make available to Election Commissioner or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commissioner by Clause (1 ).
(3.) BARE perusal of the aforesaid provision as contained in Part- XV of the Constitution of India, Article 324 of the Constitution of India shows that power of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution has been vested in Election Commission. Authority of Election Commission, under Article 324 of Constitution of India has been subject matter of consideration by Hon'ble Apex Court and this Court. Hon'ble Apex Court in the case of Mohinder Singh Gill (supra) AIR 1978 SC 851, wherein order of countermanding was passed, concluded that Election Commission in our democratic scheme is a central figure and a high functionary, and discretion vested in it will ordinarily be used wisely, not rashly. Election Commission has power to direct re-poll of a particular polling. Constitution contemplates free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances. The avowed object is to confer the Commission with the authority to push forward free and fair election with expedition and fairness imports in itself that no wrong doer candidate benefits by his own wrong. Relevant extract of the said judgment contained in paragraphs 60, 90, 91 and 93 are being quoted below : " (60) Nobody will deny that the Election Commission in our democratic scheme is a central figure and a high functionary. Discretion vested in him will ordinarily be used wisely, not rashly, although to echo Lord Camden. Wide discretion is fraught with tyrannical potential even in high personages, absent legal norms and institutional checks, and relaxation of legal canalisation on generous `vip' assumptions may boomerang. Natural justice is confused in certain aspects, especially in relation to the fourfold exceptions but forward by the respondents. (90) Having regard to statutory setting and comprehensive jurisdiction of the Election Court we are satisfied that it is within its powers to direct a re-poll of particular Polling Stations to be conducted by the specialized agency under the Election Commission and report the results and ballots to the Court. Even a re-poll of postal ballots, since those names are known can be ordered taking case to preserve the secrecy of the vote. The Court may, if necessary, after setting aside the election of Rule 3 (if there are good grounds therefor) keep the case pending, issue directions for getting available votes, order recount and/or partial re-poll, keep the election petition pending and pass final order holding the appellant elected if - only if - valid grounds are established. Such being the wide ranging scope of implied powers we are in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Court's powers to grant and Sri Rao's alarm is unfounded. (91) Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion in a judgment and so it is meet that we synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings : 1. (a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate. 2. (a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the commission, shall act in conformity with not in violation of, such provisions but where such law is silent Article 324 is reservoir or power to act for the avowed purpose of not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance of such cannons can reasonably and realistically be required of it as fairplay-in- action in a most important area of the constitutional order, viz. elections fairness, does not import an obligation to see that no wrong doer candidate benefits by his own wrong, to put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. whether it has been complied with is left open for the Tribunal's adjudication. 3. The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as prescribed in Article 329 (b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law. (93) We conclude stating that the bar of Article 329 (b) is as wide as the door of Section 100 and read with Section 98. The writ petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach on this view of the law ubi jus ibi remedium is vindicated, election injustice is avoided and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal clauses in an area of national moment, the parties are the occasion by the people are the beneficiaries and so costs must not be visited on a particular person. Each party will bear his own costs. ";