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Judgment
Sujoy Paul, J.—By invoking jurisdiction of this Court under Article 226 of the Constitution, the petitioner has assailed the transfer order dated 08.08.2013 (Annexure P/1). Another order of the same date Annexure P/2 is also called in question, whereby respondent No. 3 is transferred in place of the petitioner. Shri Amit Lahoti, Advocate for the petitioner, submits that the petitioner''s designation is Secretary "B" Grade Mandi. The respondent No. 3 is working on deputation on the post of Senior Auditor. He is unsuitable to substitute the petitioner. In addition, it is contended that on 05.08.2013 the District Election Officer has appointed the petitioner as Zonal/Sector Officer to conduct Vidhan Sabha election of 2013. Thus, by placing reliance on section 13CC of The Representation of People Act, 1950 (1950 Act) and section 28(A) of Representation of People Act, 1951 (1951 Act), It is contended that the petitioner shall be treated to be on deemed deputation to the Election Commission after issuance of Annexure P/9. Thus, the employer has no authority to transfer the petitioner. It is further contended that infact neither petitioner nor the employer were aware of the order dated 05.08.2013 passed by District Election Officer/Collector. The petitioner came to know about this order only after filing of this petition and therefore, it was brought on record by way of amendment. It is contended that the employer was also not aware of order dated 05.08.2013 before issuing the impugned transfer orders Annexure P/1 and P/2. It is further contended that withstanding executive order dated 05.08.2013, another executive order which will have a different effect, cannot be passed.
Per Contra, Shri S.P. Jain, Advocate for the respondents No. 1 & 2 and Shri Arvind Dudawat, Advocate for the respondent No. 3 submit that the respondent No. 3 is suitable and can very well replace the petitioner. The petitioner has worked under respondent No. 3 for more than two years. No service condition of the petitioner is violated by the impugned order. It is contended that protection of sections 13CC and 28A of the aforesaid Acts are available only from the date of issuance of election notification. The said notification is admittedly issued on 04.10.2013 and therefore, prior to it no protection is available. However, the learned counsel for the respondents have not disputed the contention of Shri Lahoti that the factum of issuance of order dated 05.08.2013 was not known to the employer till passing of impugned orders dated 08.08.2013 Annexure P/1 and P/2.
Although parties have taken diametrically opposite stand on various issues aforesaid, admitted position is that the transfer orders are passed on 08.08.2013 and on that date the parties were not aware about the passing of the order by the District Election Officer dated 05.08.2013. In this view of the matter, it is obligatory on the part of the employer to examine the aspect whether after passing of the order dated 05.08.2013, it was open to the Mandi to transfer the petitioner and respondent No. 3. In the said backdrop, I deem it proper to dispose of this petition with the following directions:-
(i) The petitioner and respondent No. 3 may prefer representation within 10 days from today for and against the impugned transfer orders Annexure P/1 & P/2 and submit it before the respondents No. 1 & 2. They may take all possible grounds in the said representation.
(ii) In turn, the official respondents shall consider and decide the said representation expeditiously. Till decision of the representation, the interim order passed by this Court shall remain in force.
It is made clear that this Court has not expressed any opinion on the merits of the case. Petition is disposed of.