Ravinder Kumar Luthra vs Election Commission Of India & Ors.

Harvinder Kaur Oberoi, Member (J)

The learned counsel for the applicant, along with the learned counsel for the respondent, appeared and mentioned the matter. They requested that M.A. No. 1616/2025 be taken up for hearing on 27.05.2025 itself in view of the directions issued by the Hon'ble High Court vide order dated 19.05.2025 in Writ Petition No. 6491 of 2025.

Both parties also sought permission to file written submissions. Permission was accordingly granted, and written submissions have since been filed by both sides.

Learned counsel for the Respondents/ECI, applicant in MA, states that the Election Commission of India (ECI) is a constitutional body established under Article 324 of the Constitution of India. It is responsible for the conduct of elections and preparation of electoral rolls. The ECI is empowered under Article 324(6) of the Constitution and Section 13CC of the Representation of the People Act, 1950 ("RP Act") to requisition and deploy staff for the purpose of preparation of electoral rolls and conduct of elections. The transfer of the applicant is temporary and necessitated by the imminence of elections in the State of Bihar.

He submitted that the applicant's contention that the office of the Chief Electoral Officer (CEO) is inferior to that of the ECI is misconceived. The office of the CEO is established under Section 13A of the RP Act and is also recognized under Article 324 of the Constitution. The CEO functions under the superintendence and control of the ECI and is entrusted with the supervision of preparation of electoral rolls and conduct of elections.

4.1 He further submitted that it is a settled position of law that an order of transfer does not warrant judicial interference unless it violates legally enforceable rights. There is no recruitment rule or term of employment which restricts the authority of the ECI to transfer the applicant. The ECI has issued similar temporary transfer orders for other employees to the offices of the State Chief Electoral Officers in states where elections are imminent. These transfers are administrative measures intended to ensure better coordination and efficient conduct of elections. In view of the above, the Interim Order dated 14.02.2025 deserves to be vacated.

Learned counsel for the respondents, drawing attention to the DoPT OM dated 08.10.2018, stated that although the said OM provides exemption from routine transfer/rotational transfer, the same is not applicable in the case of the Election Commission of India (ECI), as the ECI is an independent constitutional body and is not bound by the DoPT OM. Therefore, the said OM is not applicable in the present matter.

He further submitted that vide OM dated 28.10.2024, the DoPT has categorically clarified that "the instructions issued by the Department are in respect of Central Civil Posts and Services and do not apply to autonomous statutory bodies." The ECI, being a constitutional body, is therefore not governed by the said OM.

It was submitted that the ECI has not adopted the OM dated 08.10.2018 and, read with the DoPT OM dated 28.10.2024, the said exemption is not applicable in the present case.

Furthermore, learned counsel submitted that even under Clause 3 of the said OM, the exemption is limited to cases involving disabilities caused by neurological conditions such as Multiple Sclerosis and Parkinson’s disease.

He submitted that the applicant, in his representation before the competent authority, did not furnish any proof regarding the disability of his parents due to either Multiple Sclerosis or Parkinson’s disease. As such, the disposal of the representation by the competent authority was valid and based on the applicant’s written submissions and oral hearing.

On the other hand, learned counsel for the applicant vehemently opposed the submissions of the respondents. He stated that the applicant’s father is aged above 90+ years and is suffering from Parkinson’s disease, while the applicant’s mother is around 85 years old. He submitted that the applicant is the primary caregiver for his parents and, therefore, qualifies for exemption under the OM dated 08.10.2018.

It was admitted that the applicant’s family consists only of his unmarried sister and his aged parents. Since both the applicant and his sister are unmarried, and the sister occasionally assists in caregiving, the applicant remains the primary caregiver.

Counsel submit that in the written submissions filed by the applicant, disability certificates dated 26.05.2025, certifying the disability of the applicant’s father and mother are placed on record. Both certificates have been obtained and issued recently and were not submitted before the competent authority, this Tribunal, nor before the Hon’ble High Court of Delhi.

Learned counsel further submitted that the applicant’s parents, being of advanced age, are undergoing treatment for Parkinson’s disease. The treatment records have been filed along with the Original Application (OA). In one of the documents, it is shown that the applicant’s sister had accompanied the mother to the doctor. He further submitted that while the sister occasionally provides assistance, the applicant continues to be the primary caregiver.

The Hon’ble High Court, vide order dated 19.05.2025 in Writ Petition No. 6491 of 2025, has held that:-

“5. One of the contentions advanced by Mr. Saini before us is that the transfer was in the teeth of an Office Memorandum dated 8 October 2018 issued by the Department of Personnel and Training, which exempts employees whose dependants are suffering from certain categories of ailments which fall under the Rights of Persons with Disabilities Act, 2016, and of whom the concerned employees the primary care giver, from routine transfer/rotational transfer, except subject to administrative constraints.

The petitioner had specifically addressed a representation to the respondents on 30 January 2025, seeking the benefit of the aforesaid OM dated 8 October 2018. The representation was rejected by the respondents on 3 February 2025. We find that, in the OA, a specific and detailed ground assailing this rejection has been taken by the petitioner

Though Mr. Sidhant Kumar, learned Standing Counsel for the ECI submits that this point was not argued before the Bench on 8 May 2025, we are of the opinion that, given the peculiar facts of this case, it would be in the interests of justice if the Tribunal is requested to consider the aforesaid plea, of the petitioner, regarding the petitioner's entitlement to the benefit of the DOPT OM dated 8 October 2018.

We, accordingly, dispose of this writ petition with a request to the Tribunal to take up the matter on 27 May 2025 on which date the Tribunal would consider the arguments of the petitioner predicated on the aforesaid DOP&T OM dated 8 October 2018 and decide on the same day, or failing which, as expeditiously as possible.

We make it clear that the petitioner shall not be entitled to re-argue any aspect which is covered by the order dated 8 May 2025, under challenge in the present writ petition. The arguments would be restricted to the entitlement of the petitioner to stay based on the DOP&T OM dated 8 October 2018.”

In view of the above, the arguments have been heard and concluded. This is the second round of litigation. The applicant had earlier approached this Tribunal in the first round in OA No. 5035/2024 which was decided on 27.12.2024, wherein the Tribunal had passed the following order:

“12. Considering the above and in view that the challenge to the posting order, as well as the OMs preferred by the applicant, are hitting at the root of the matter. It would be appropriate if the respondents are directed to decide the pending representation and to take a call concerning the objections raised by the applicant regarding the OMs and the consequent posting/transfer order.

Accordingly, the competent authority amongst the respondents is directed to decide on the representation of the applicant within four weeks from the date of receipt of a certified copy of this order. While, completing the aforesaid exercise, the respondents shall treat the grounds taken in the OA as part of the representation and also afford an opportunity of a personal hearing to him. It is also made clear, that no coercive steps, concerning the impugned transfer/posting order dated 18.12.2024 shall be taken by respondents till that time.”

It was in pursuance of the order passed in the first round that the applicant’s representation was considered. One of the grounds raised in the representation was the claim for exemption under the OM dated 08.10.2018, in view of the alleged disability of the applicant’s parents.

It is an admitted fact that the disability certificate, which is the sole documentary proof of the claimed disability, was not filed along with the representation, nor was it placed before the competent authority. Consequently, the applicant’s representation was rejected and disposed of by the competent authority vide order dated 03.02.2025.

While disposing of the representation, the competent authority recorded the following observations:

“17. The said DoPT's OM states a policy of consideration of certain classes of primary health care providers to the people suffering from disability to be considered for exemption from routine transfer and posting. The DOPT OM has a noble objective and is applicable to a small set of employees who are managing an unintentional and unexpected situation in their family. Equating sons of aged parents, which fortunately we all should have, with a primary caregiver of a certified Divyang (above a certain threshold of disability) would lead to expansion of applicability of the said DOPT OM to almost all employees. The DoPT's letter enlist a novel intention of helping a certain category of employees in genuine need, expanding it to the employees whose parents are suffering from ailments related to advanced age, may not be in the interests of the intended beneficiaries due to expected increase in such numbers due to dilution of a grounds of consideration.

This office has no intention to re-interpret the findings of the doctors. The doctors would have given the best treatment to his parents. However, at the time of hearing, both of them were at their place of residence. The applicant has submitted that he is unmarried and currently residing in Gurgaon, although his local address in the Service Records is different. And his Home Town address as recorded in his Service Book is: Flat No. 547, LIG Flats, Phase-1, Urban Estate, Dugri, Ludhiana, Punjab, Pin Code - 141002, which is a permanent residence of his sister.

C. Office of CEO, Bihar is a subordinate office to his position in ECI.”

At that stage the respondents have rightly rejected the representation on the ground that the applicant failed to establish that the disability pertained to the applicant or that either of the parents were hospitalized on the relevant date. Accordingly, no fault can be found with the order passed by the respondents at that stage.

However, the applicant has now produced disability certificates and supporting documents which materially alter the factual scenario. In view of this subsequent development and the new evidence now placed on record, it would be appropriate to direct the competent authority of the respondent to verify the said documents and reconsider the representation of the applicant accordingly.

In the OA the applicant has also challenged the disposal of his representation. Let the competent authority take a decision on the applicant’s representation, in the light of the newly submitted evidence, within a period of three weeks from the date of receipt of this order.

The interim order dated 14.02.2025 shall continue to remain in force until such time as the representation is decided by the competent authority, and for a further period of two weeks thereafter.

In view of the above, the Miscellaneous Application as well as the Original Application stand disposed of. It is clarified that we have not decided upon or commented on any of the grounds raised in the Original Application.

There shall be no order as to costs.