The Calcutta High Court on Tuesday (31st March) dismissed a Public Interest Litigation (PIL), which challenged transfers of senior bureaucrats and police officials ordered by the Election Commission of India (ECI) ahead of the assembly elections in West Bengal. A Bench of Chief Justice Sujoy Paul and Justice Partha Sarathi Sen observed that just because a large number of transfers have been made, it does not make the action of the ECI arbitrary, capricious, or mala fide.
“Merely because the ECI had transferred a sizable number of officers, it cannot be said that the action is arbitrary, capricious or mala fide. More so, when a similar or larger number of transfers/postings of officers had taken place nationwide,” the High Court remarked.
The ECI has the power to pass such orders
The High Court noted that the petitioner, an advocate, did not dispute the Election Commission’s power to pass the transfer orders. “On a careful reading of the petition in general and para 28 in particular, leaves no room for any doubt that the petitioner has not disputed the existence of power with E.C.I. to transfer/shift the officers after issuance of election notification to ensure free and fair election,” the High Court stated. Furthermore, the High Court rejected the petitioner’s contention that the mass transfer of officials “numb” like situation in the State. “…in the present case, it is seen that when one officer is transferred, another has occupied his position. Thus, as such, there is no vacuum created in the system or in the administrative arena,” the court said.
The petitioner could not establish that the ECI orders were arbitrary
The judges said that the PIL was not maintainable because there is no harm to the public interest in the present case. They added that, since the petitioners are advocates in the present case, they cannot be aggrieved by transfer orders involving state officials. “…if officers are aggrieved, who were subjected to transfer, they can certainly file an appropriate proceeding against such transfer before an appropriate forum. However, as held in this judgement, if injury is to ‘public interest’ then only a public interest litigation can be maintained at the behest of any member of the public,” the judges said. “The transfer is an incident of service. If a transfer order runs contrary to any statutory provision, the aggrieved employee/officer can assail it in appropriate proceedings,” they added.
The High Court said that the petitioners could not establish that the ECI’s orders were used in an arbitrary manner and resulted in an injury to a public interest. “In our view, the legality, validity and propriety of transfer orders which have not caused any public injury cannot be gone into in a public interest litigation,” the High Court said.
The scope of judicial review is limited with respect to administrative decisions
The High Court clarified that its power to exercise judicial review on administrative decisions is limited unless it is found that there is arbitrariness or a lack of authority. “The ECI has taken administrative decisions to transfer/shift the officers. It is trite that the scope of judicial review of administrative decisions is limited. If an administrative order is found to be passed without authority or shown to be palpably illegal, interference can be made,” the High Court said.
“In our opinion, since in the entire body of the petition, the petitioner being a practicing advocate and a legally trained person has not pleaded regarding any breach of any Central/State Legislation and not pleaded that Election Commission did not have the authority or jurisdiction to shift/transfer officers, in this PIL we are not inclined to undertake any academic exercise to examine as to whether ECI otherwise has any such power or not,” the judges said dismissing the petition.
