Calcutta High Court (Appellete Side)
Arka Kumar Nag vs Election Commission Of India And Others on 31 March, 2026
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble The Chief Justice Sujoy Paul
And
The Hon'ble Justice Partha Sarathi Sen
WPA (P) 141 of 2026
Arka Kumar Nag
vs.
Election Commission of India and others
For the Petitioner : Mr. Kalyan Bandopadhyay, Sr. Adv.
Mr. Rahul Kumar Singh, Adv.
Ms. Shrobana Sengupta, Adv.
Mr. Kaushik Bandyopadhyay, Adv.
For the ECI : Mr. DamaSeshadri Naidu, Sr. Adv.
Mr. Soumya Mazumdar, Sr. Adv.
Ms. Anamika Pandey
Mr. Abhinav Thakur
Mr. Surjaneel Das
Mr. Kumar Utsav
Mr. Ghanshyam Pandey
For the State : Mr. Kishore Datta, AG
Mr. Swapan Banerjee
Ms. Sumita Shaw
Mr. Diptendu Narayan Banerjee
Mr. Soumen Chatterjee
Hearing concluded on : 27.03.2026
2
Judgment on : 31.03.2026
PER, SUJOY PAUL, CJ.:
1. In this Public Interest Litigation (PIL), the petitioner an
advocate by profession has prayed that impugned transfer
orders issued by the ECI without assigning justifiable
reasons and attaching a stigma be set aside and quashed.
2. Admittedly, the petitioner is a counsel representing the State
Government before this Court.
Contention of Petitioner:
3. It is contended that on 15.03.2026 at 3 p.m. the Election
Commission of India (ECI) issued a notification declaring
elections in five States of the country. After issuing the
notification, the Chief Secretary, Home Secretary, Director
General of Police (DGP), certain District Magistrates and
Superintendents of Police were transferred. The Principal
Secretary of certain departments who were taking care of
development activities of the State were also transferred.
One officer Shri Jagdish Prasad was transferred as observer
3
to Tamil Nadu. The party in power in State of West Bengal
has sent an impeachment notice for removal of respondent
no. 9. The mass transfer of officers who were working for the
welfare of people in the State will have cascading effect on
the functioning of the State.
4. Shri Kalyan Bandopadhyay, learned Senior Counsel
appearing for the petitioner submits that the above action
has an impact as if emergency is imposed by invoking Article
356 of the Constitution. Learned counsel for the petitioner
urged that under Article 324 of the Constitution, the ECI
certainly has power to make necessary arrangement for
conduct of free, fair and smooth election. However, the said
Article does not give any unfettered power to the ECI. The
ECI cannot act in an arbitrary or mala fide manner. The ECI,
a constitutional body needs to act in tune with rule of law.
The impugned action of transferring officers in sizable
numbers disturbs the federal structure and amounts to
interference in the activity of an elected Government. The
ECI has only supervisory power and cannot act in the
manner it has acted presently. By placing reliance on the
4
communication dated 15.03.2026 Annexure „P3‟, it is
contended that while posting the officers elsewhere, it was
directed that they be not engaged in election duties.
However, Shri Jagdish Prasad an officer of State of West
Bengal has been transferred as „observer‟ to the State of
Tamil Nadu relating to the election to be held in that State.
Thus, stand of the ECI is mutually inconsistent and cannot
be appreciated.
5. The next submission of learned Senior Counsel is that
during SIR process, the ECI did not invoke Article 324 of the
Constitution and did not transfer the officers. When SIR
process was going smoothly, there was no occasion for
picking the officers for transfer/shifting after election process
began. 63 police officers and 16 IAS officers have been
transferred. Thereafter, a sizable number of subordinate
officers have been transferred by the ECI. This fact has been
brought by filing supplementary affidavits. 16 officers are
sent out of West Bengal. The Chief Secretary represents the
State Government. During the hearing of a pending matter
WP (C ) No. 1089 of 2025 (Mostari Banu vs. The Election
5
Commission of India & Ors.) before the Apex Court, the
Chief Secretary represented the State before the Supreme
Court. In order to deprive the State from the benefit of
service of experienced officers, the officers have been
transferred in large numbers which is bad in law and mala
fide exercise of power.
6. Shri Bandopadhyay vehemently contended that in view of
Constitution Bench judgment of Supreme Court in Mohinder
Singh Gill & Anr. vs. The Chief Election Commissioner,
New Delhi & Ors., reported in (1978) 1 SCC 405, the ECI
is required to act in consonance with the laws made by the
parliament. Only when there is a vacuum, it can exercise all
supervision and control. By placing reliance on Section
13CC of Representation of People Act 1950 (RP Act, 1950)
and Section 20A of Representation of People Act, 1951 (RP
Act, 1951) it is canvassed that the transfer/deputation of
officers can take place only inconsonance with the statutory
provisions and ECI does not have any unbridled power.
7. Section 20B of RP Act of 1951 is relied upon and it is
contended that „observer‟ has to be from the same State.
6
Much emphasis is laid on the word „Government‟ used in
Section 20B. By taking this court to the dictionary meaning
of the „Government‟ from Black‟s Law Dictionary and Article
20 of the Constitution, he submits that the word
„Government‟ means the concern State which in the present
case is State of West Bengal. Article 367 of Constitution and
Section 3 (23) of General Clauses Act were relied upon to
submit that the word „Government‟ used in Section 20B
must be read as State Government i.e. Government of West
Bengal in the present case.
8. Shri Bandopadhyay submits that the ECI may place reliance
on certain „hand books‟ and „manuals‟ issued by it but no
such guideline can prevail over the constitution and the
statutory provisions ingrained in Representation of People
Act, 1950 and 1951.
9. Heavy reliance is placed on (2023) 9 SCC 1 (Government of
NCT of Delhi vs. Union of India) to bolster the submission
that without civil servants, the existence of Government itself
is impossible. Government‟s development plans cannot take
place in absence of an efficient bureaucracy. The constituent
7
assembly debate mentioned in para 111 of this judgment
were referred to show that civil service officers are part of the
„triple chain‟. The returning officers can be deputed as per
Section 21 of the Representation of People Act, 1951 in
consultation with the State Government. This has been the
practice till previous election but ECI in this election has
given complete go by to this established practice. He relied
upon A.C. Jose v. Sivan Pillai &Ors., (1984) 2 SCC 656;
State of West Bengal &Ors. v. Dipak Mishra, (2022) 13
SCC 250; All India Matua Mahasangha & Ors. v. State
of West Bengal &Ors., 2025 SCC OnLine Cal 7213;
Dipak Mishra v. State of West Bengal & Ors., 2025 SCC
OnLine Cal 1281; Janak N. Vyas v. State of
Maharashtra with Girish Dattatraya Mahajan v. State
of Maharashtra, PIL(L) No.5741 of 2022 with PIL(L)
No.6549 of 2022.
10. Shri Kalyan Bandopadhyay, learned senior counsel, placed
reliance on the expression „designated for the time being by
the State Government‟ used in section 28A of R.P. Act of 1951.
He also placed reliance on sections 21, 22 and 26 to show the
8
difference in the language employed therein. To elaborate, it is
submitted that in section 21, the words „consultation with
Government‟ are there whereas in Section 22 the said words
are absent. Thus, the legislative intent is clear as to when the
„consultation‟ is must.
11. By placing reliance on Election Commission‟s Manuals on
which Shri Naidu, learned senior counsel, placed reliance,
the next submission is that clause-1.2.1 shows that Director
General of Police needs to initiate certain works six months
before the time of tentative elections. Thus, D.G. needs to
remain there at the Headquarter and gains experience. New
D.G. cannot fulfil this requirement. It is further submitted
that for Inter-State co-ordination, Chief Secretary is
responsible under Clause-11.3 of the Manual. By placing
reliance on B.S. Minhas vs. Indian Statistical Institute
and others reported in 1983(4) SCC 582, M.C. Mehta vs.
Union of India reported in 2007(1) SCC 110 and
Constitution Bench judgment in Lalita Kumari vs.
Government of Uttar Pradesh and Others reported in
2014(2) SCC 1, it is urged that the Manuals are executive
9
instructions but at the same time, these guidelines are
binding on Election Commission. M/s. Kranti Associates
Pvt. Ltd. and Another vs. Sh. Masood Ahmed Khan and
Others reported in 2010 (9) SCC 496 is referred to highlight
that the ECI was obliged to assign reasons for such transfer.
12. Shri Bandopadhyay, learned senior counsel, tried to
distinguish the judgments on which Shri Naidu, learned
senior counsel, placed reliance. It is submitted that in the
judgments of Nutan Thakur (PIL) and Election
Commission of India & Ors. reported in 2014 SCC OnLine
All 15680 and Lalji Shukla &Anr. Vs. Election
Commission of India &Ors. reported in 2002 SCC OnLine
All 39 the violation was of All India Services Rules and not of
any provision of the R.P. Act of 1950 or 1951.
13. To sum up, learned senior counsel for petitioner submits
that under Article 324, the ECI can exercise such powers
which are not otherwise therein other laws including the R.P.
Acts of 1950 and 1951. In the instant case, the transfer
orders of officers are issued in violation of section 28A of R.P.
10
Act, 1951 and for this reason alone, the orders are bad in
law.
14. Lastly, learned senior counsel for petitioner urged that the
locus standi in a case of this nature is not of much
importance because matter involves a public interest.
15. Shri Bandyopadhyay, learned Senior Counsel appearing for
the petitioner relied on Article 324(6) and urged that the
Governor can provide “such staff” to the E.C.I. provided their
exists the recommendation of Cabinet as required under
Article 163 of the Constitution.
Contention of Advocate General:
16. Shri Kishore Datta, learned Advocate General at the outset
submits that he is supporting the petitioner. By criticizing
the impugned action of ECI, he submits that the attempt of
ECI is to „Numb‟ the Government for the benefit of the
present dispensation in the Central Government. Election
jurisprudence is governed by part-XV, Article 324 of the
Constitution and by statutory provision of Representation of
People Act, 1950 and 1951. Article 324 gives power to the
11
ECI for preparation of Electoral Role and for conduct of
elections. However, in view of order of Supreme Court in
Mostari Banu (supra), presently, the task of adjudication of
objections regarding inclusion/exclusion in the voter list is
entrusted to the judicial officers and appellate tribunals are
also constituted pursuant to the order of Supreme Court.
17. Article 324 (6) is referred to submit that the words used
therein are „such staff‟. This does not mean that the entire
staff of a State comes within the control and supervision of
ECI during election. Article 327 of Constitution and Entry
72 of list 1 is also referred to bolster the submission that the
ECI does not have power to do the things as it likes. Instead,
ECI is controlled by Sections 13A, 13AA and 13B of
Representation of People Act, 1950 in relation to certain
category of officers. Section 28A of Representation of People
Act, 1950 makes it clear that only „such officers‟ involved in
election duties as proposed by State Government can be sent
on deputation.
18. Shri Kishore Datta, learned Advocate General also placed
reliance on the Constitution Bench judgment of Supreme
12
Court in Mohinder Singh Gill (supra) and A.C. Jose vs.
Sivan Pillai & Ors. reported in (1984) 2 SCC 656.
19. Two Single Bench Judgments of Kerala High Court T.V.
Madhusoodanan v. The Chief Election Commissioner &
Anr., 1994 SCC OnLine Ker 22 and T.V. Madhusoodanan
v. Chief Election Commission & Anr., 1994 SCC Online
Ker 579 were relied upon to submit that transfer of officers
is bad in law and impermissible. The said judgments of
Kerala High Court were recently referred by Jharkhand High
Court in Manjunath Bhajantri vs. Election Commission of
India &Ors., reported in 2024 SCC OnLine Jhar 2378.
20. By placing reliance on Constitution Bench judgment reported
in (1974) 4 SCC 1 (E.P. Royappa v. State of Tamil Nadu
& Anr.) it is urged that the post of Chief Secretary is very
important post and the Chief Secretary could not have been
shifted from the said post. ECI has started functioning as
political opponent which action deserves to be deprecated.
He also placed reliance on PonParamaguru, Director
General of Police (Retd.), No.12, Balaji Avenue,
Thirumalai Road, T. Nagar, Chennai-600017 & Ors. v.
13
State of Tamil Nadu, rep. by its Chief Secretary, Fort St.
George, Chennai-600009 & Ors., 2006 (2) CTC 241.
21. Learned Advocate General placed a short note of submission
and raised almost same point which was lastly raised by Shri
Bandyopadhyay. By placing reliance on 1997(2) SCC 745
(Bhuri Nath & Ors. Etc. The Sewa Committee vs. The
State of Jammu & Kashmir & Ors.). It is urged that the
staff can be provided to the E.C.I. by the Governor upon
recommendation of the State Cabinet.
22. Heavy reliance is placed on the Constitution Bench (7
Judges) judgment of Supreme Court in the case of S. P.
Gupta vs. Union of India reported in AIR 1982 SC 149. It
is submitted that since the present matter involves a public
interest, anybody from the public can raise the issue
involved in the said matter. The „locus‟ is not of much
significance.
Contention of ECI:
23. Shri D.S. Naidu, learned Senior Counsel representing the
ECI placed reliance on Constituent Assembly debates and
14
urged that our forefathers conceptualized an independent
impartial constitutional body which will undertake the
exercise of conducting free, fair and smooth elections. The
ECI is a neutral constitutional body and all allegations made
against the ECI are without any basis.
24. By referring to the credential of the petitioner, it is submitted
that the petition has not approached the court with clean
hands, clean mind, clean heart and clear objective. Reference
is made to the judgment in State of Jharkhand v. Shiv
Shankar Sharma & Ors. reported in (2022) 19 SCC 626.
It is argued in the PIL that the petitioner has suppressed the
fact that he is a government pleader representing the present
dispensation in State of West Bengal.
25. Rule 56 of the Rules of High Court at Calcutta relating to
Applications under Article 226 of the Constitution of India
was referred to show that the present petition does not fall
within the ambit of this Rule.
26. The documents filed by petitioner were internal
correspondence between the ECI and the State Government.
Shri Naidu, Senior Counsel urged that how petitioner could
15
lay his hands on these confidential documents is a big
question. This shows the petitioner has filed this petition to
canvass political interest and this PIL cannot be said to be
filed in public interest.
27. The document dated 17.03.2026 is produced to show that a
sizeable number of all India service officers have been
transferred/shifted by ECI in various States. The number of
officers so shifted in other States were highlighted to
establish that the argument of Shri Bandopadhyay that ECI
has adopted a vindictive approach against the State of West
Bengal is not correct. In administrative exigency and in
order to conduct free and fair elections, the decision to
transfer/shift officer has been taken nationwide. The
number of officers shifted in other States is much higher
than the number of officers shifted in West Bengal.
28. Shri Naidu, learned Senior Counsel urged that Chief
Secretary of West Bengal who had been shifted, recently
occupied the post of Chief Secretary. She is replaced by an
officer who is one year senior to her. Similarly, Home
Secretary is substituted by another officer who is 7 years
16
senior to the present one. Thus, the prospects of people are
not going to be affected for want of experienced officers.
29. Placing reliance on certain paragraphs of writ petition
wherein allegations are made against senior political
functionaries and their connivance etc. is pleaded with
respondent no. 9, it is urged that no such person has been
impleaded Eo nomine. Thus, petition suffers from non-
joinder of parties. The political allegations are made to settle
political scores.
30. Shri Naidu, learned Senior Counsel for ECI also placed
reliance on Article 324 (1) and (6) of constitution and by
taking this court to entire legal journey right from the
judgment of Mohinder Singh Gill (supra) till date,
contended that the ECI has taken the action inconsonance
with the powers vested in it under Article 324 of the
Constitution. Articles 324 to 329 of Constitution are self-
contained code which permitted the ECI to function as a
neutral umpire, the function which it is carrying out.
31. From the book „How India Votes’ (5th Edition) authored by
S.K. Mendiratta former legal adviser, ECI, it is urged that the
17
similar challenge to transfers of officers before various High
Courts failed. Reliance is placed on Division Bench
Judgment of Allahabad High Court in Lalji Shukla & Anr.
Vs. Election Commission of India &Ors. reported in 2002
SCC OnLine All 39. For the same purpose, an order of
Supreme Court in Ravi Bhusan vs. Election Commission
of India WP (C ) 697 of 2015 was referred by contending
that when such transfers were challenged before the
Supreme Court, interference was declined and accordingly,
petitioner withdrew the petition with liberty to approach the
ECI. In support of both contentions, Shri Naidu placed
reliance on the number of orders/judgments which are filed
in two volumes namely; Mostari Banu v. The Election
Commission of India &Ors., WP(C ) No.1089 of 2025,
Supreme Court of India; K. Jayaram & Ors. v. Bangalore
Development Authority &Ors., (2022) 12 SCC 815; Ashok
Kumar Pandey v. State of West Bengal, (2004) 3 SCC
349; Election Commission of India & Anr. v. State of
Karnataka & Ors., 2013 SCC OnLine Kar 3830; State of
Andhra Pradesh v. Election Commission of India & Anr.,
18
Writ Petition No. 4376 of 2019, High Court of Andhra
Pradesh; Rameshwar Oraon v. State of Bihar & Ors.,
1995 SCC OnLine Pat 105; Moti Lal v. Mangla Prasad &
Ors., 1958 SCC OnLine All 288; Union of India v.
Association for Democratic Reforms & Anr., (2002) 5
SCC 294; Mohinder Singh Gill & Anr. v. The Chief
Election Commissioner, New Delhi & Ors., (1978) 1 SCC
405; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.,
(2010) 9 SCC 655; Sanjoy Das v. Registrar General,
Hon’ble High Court at Calcutta & Anr., 2024 SCC
OnLine Cal 7949; Ashok Shankarrao Chavan v.
Madhavrao Kinhalkar & Ors., (2014) 7 SCC 99; Sadiq
Ali & Anr. v. Election Commission of India &Ors., (1972)
4 SCC 664; In the Matter of Special Reference No.1 of
2002 (Gujarat Assembly Election Matter), (2002) 8 SCC
237; State of Jharkhand v. Shiv Shankar Sharma &
Ors., (2022) 19 SCC 626; Nutan Thakur (PIL) and
Election Commission of India & Ors., 2014 SCC OnLine
All 15680; Anurag Gupta v. Election Commission of
India & Ors., 2019 SCC OnLine Jhar 474.
19
32. The press note dated 17.03.2026 issued by ECI (supra) was
referred to specifically highlight that as on 17.03.2026, in
Jharkhand 40, in Madhya Pradesh 49, in West Bengal 23 all
India service officers were deployed. The same press note
shows that in Tamil Nadu 25, in a small State of Kerala 16
All India Service Officers were deployed. Thus, the argument
of Shri Bandopadhay that State of West Bengal is unique
about shifting of all India service officers is factually
incorrect.
33. The „hand book‟ for police and other „hand books‟ for
conducting election prepared by ECI were relied upon which
deal with the duties of Chief Secretary and other Government
functionaries during elections.
34. Shri Naidu, learned Senior Counsel for the E.C.I. reiterated
his stand and placed reliance on “explanation” appended
under Section 20B of Representation of People Act, 1951. It
is urged that this explanation negates the contention of Shri
Bandyopadhyay, learned Senior Advocate that observer can
be appointed in the same State to which he belongs. For this
20
purpose, he also placed reliance on Section 3(23) of General
Clauses Act to explain that definition of “Government”
includes Central and State both.
35. The parties confined their arguments to the extent indicated
above.
36. We have heard the parties at length and perused the record.
Findings:
37. The contentions of learned Senior Counsel for the petitioner
and learned Advocate General shows that they have raised
objections about the very competence/authority of E.C.I. to
transfer/shift the officers. However, in para 28 of writ
petition, the petitioner categorically pleaded that power to
transfer officers though vested in the E.C.I., it must exercise
such power with caution and responsibility. This
extraordinary power is not meant to be used indiscriminately
or as a matter of routine. Para 28 of the petition reads as
under:
“28. That the petitioner respectfully submits that the power to
transfer officers, though vested in the Election Commission of
21India to uphold the principle of a level playing field during
elections, is one that must be exercised with caution and
responsibility. This extraordinary power is not meant to be
deployed indiscriminately or as a matter of routine; rather, it is to
be invoked only in instances where there exist concrete,
substantiated, and credible allegations or inputs against specific
officers, pointing to conduct that could potentially undermine the
fairness or impartiality of the electoral process. The intention
behind vesting such a power with the Election Commission is to
address situations involving particular officers whose continuance
in their present posts may give rise to legitimate concerns
regarding their neutrality or administrative integrity.”
(Emphasis Supplied)
38. On a careful reading of the petition in general and para 28 in
particular, leaves no room for any doubt that 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.
39. In the writ petition, the petitioner needs to plead and prove
his case. One cannot be permitted to argue beyond the
pleadings. [See: State of M.P. v. Narmada Bachao
Andolan, (2011) 7 SCC 639:
8. It is a settled proposition of law that a party has to plead its
case and produce/adduce sufficient evidence to substantiate the
averments made in the petition and in case the pleadings are not
complete the court is under no obligation to entertain the pleas.
22
9. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534: AIR
1988 SC 2181], this Court has observed as under:
“13. … In our opinion, when a point which is ostensibly a point of
law is required to be substantiated by facts, the party raising the
point, if he is the writ petitioner, must plead and prove such facts
by evidence which must appear from the writ petition and if he is
the respondent, from the counter-affidavit. If the facts are not
pleaded or the evidence in support of such facts is not
annexed to the writ petition or the counter-affidavit, as the
case may be, the court will not entertain the point. … there
is a distinction between a pleading under the Code of Civil
Procedure and a writ petition or a counter-affidavit. While in a
pleading, that is, a plaint or a written statement, the facts and not
[the] evidence are required to be pleaded, in a writ petition or in
the counter-affidavit not only the facts but also the evidence in
proof of such facts have to be pleaded and annexed to it.”
(emphasis added)
A similar view has been reiterated by this Court in Larsen &
Toubro Ltd. V. State of Gujarat [(1998) 4 SCC 387: AIR 1998
SC 1608], Atul Castings Ltd. V. Bawa Gurvachan Singh
[(2001) 5 SCC 133: AIR 2001 SC 1684] and Rajastan Pradesh
Vaidya Samiti v. Union of India [(2010) 12 SCC 609: AIR 2010
SC 2221].
10.Pleadings and particulars are required to enaqble the court to
decide the rights of the parties in the trial. Thus, the pleadings
are more to help the court in narrowing the controversy involved
and to inform the parties concerned to the question (s) in issue, so
that the parties may adduce appropriate evidence on the said
23
issue. It is settled legal proposition that “as a rule relief not
founded on the pleadings should not be granted”. Therefore,
a decision of a case cannot be based on grounds outside the
pleadings of the parties.
11. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues
clearly defined and to prevent cases being expanded or
grounds beding shifted during trial. If any factual or legal
issue, despite having merit, has not been raised by the
parties, the court should not decide the same as the
opposite counsel does not have a fair opportunity to answer
the line of reasoning adopted in that regard. Such a
judgment may be violative of the principles of natural
justice. (Vide Ramj Sarup Gupta v. Bishun Narain Inter College
[(1987) 2 SCC 555: AIR 1987 SC 1242] and Kalyan Singh
Chouhan v. C.P. Joshi [(2011) 11 SCC 687: AIR 2011 SC 1127].)
12. It cannot be said that the rules of procedural law do
not apply in PIL. The caution is always added that every
technicality in the procedural law is not available as a defence in
such proceedings when a matter of grave public importance is for
consideration before the court. (Vide Rural Litigation and
Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504: AIR
1988 SC 2187])
13. Strict rules of pleading may not apply in PIL, however, there
must be sufficient material in the petition on the basis of which the
court may proceed. The PIL litigant has to lay a factual
foundation for his averments on the basis of which such a person
claims the reliefs. The information furnished by him should
not be vague and indefinite. Proper pleadings are
24
necessary to meet the requirements of the principles of
natural justice. Even in PIL, the litigant cannot approach
the court to have a fishing or roving enquiry. He cannot
claim to have a chance to establish his claim. However, the
technicalities of the rules of pleading cannot be made
applicable vigorously, Pleadings prepared by a layman
must be construed generously as he lacks the standard of
accuracy and precision particularly when a legal wrong is
caused to a determinate class. (Vide A. Hamsaveni v. State
of T.N. [(1994) 6 SCC 51: 1994 SCC (L&S) 1277 : (1994) 28 ATC
240], Ashok Kumar Pandey v. State of W.B. [(2004) 3 SCC
349: (2011) 1 SCC (Cri) 865: AIR 2004 SC 280], Prabir Kumar
Das v. State of Orissa [(2005) 13 SCC 452] and A. Abdul
Farook v. Municipal Council, Perambalur [(2009) 15 SCC
351].)
16. In view of the above, it is evident that there were no pleadings
before the High Court on the basis of which the writ petition could
be entertained/decided. Thus, it was liable to be rejected at
the threshold for the reason that the writ petition suffered
for want of proper pleadings and material to substantiate
the averments/allegations contained therein. Even in the
case of a PIL, such a course could not be available to the
writ petitioners. Delay/Laches.”]
(Emphasis Supplied)
40. In the instant case, it is clear like noon day that petitioner has
raised eyebrows because sizable number of officers were
transferred by ECI. In view of the aforesaid pleadings, where
25
existence of power of ECI to transfer/shift officers is admitted,
we are not inclined to conduct any roving enquiry and analysis
to examine whether the E.C.I. otherwise had any such power
or not.
41. This is equally settled that the petitioner must independently
plead and establish its own case. It cannot solely take benefit
of opposite side‟s weakness/strength. Thus, merely because
State is supporting the petitioner, the petitioner cannot be
permitted to travel beyond the scope of the pleadings. Thus,
the supporting stand of State Government will not improve the
case of the petitioner. Similarly, State a respondent in the
matter cannot enter into the shoes of petitioner.
42. It was strenuously contended by learned Senior Counsel for
the petitioner and learned Advocate General that because of
transfer of a sizable number of officers and staff, there is a
vacuum created or if we borrow the word used by learned
Advocate General, there is a “numb” like situation in the State.
Upon examining the rival stands, we do not find much
substance in the said contention. No doubt, bureaucracy
26
plays a vital role in implementing the policies and decisions
taken by ministers and Government and in their absence, the
policies cannot be translated into reality, in the instant case,
in place of transferred officers other officers have joined. The
Apex Court in Government of NCT (supra) has rightly
underlined the importance of the officers in implementing the
government decisions. However, 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 contention of Shri
Naidu, learned senior counsel for the E.C.I. that in place of
Chief Secretary and Home Secretary, officers who are 1 and 7
years senior to them respectively were posted, was not
disputed by petitioner and the State. Thus, it cannot be said
that administrative „numb‟ has been created and Government
will paralyse if till election, this arrangement has been made to
ensure free & fair elections.
43. The petitioner has submitted about initiation of impeachment
proceedings against respondent no.9. However, we do not see
27
any reason to deal with this aspect at all in the present matter.
More so, when no nexus between transfers and said motion
could be established with accuracy and precision.
44. Learned Advocate General placed heavy reliance on a
Constitution Bench (Seven Judges) judgment of the Supreme
Court in S.P. Gupta (supra). The relevant portion read thus:
“If the State or any public authority acts beyond the scope of its
power and thereby causes a specific legal injury to a person or to
a determinate class or group of persons, it would be a case of
private injury actionable in the manner discussed in the preceding
paragraphs. So also if the duty is owed by the State or any public
authority to a person or to a determinate class or group of
persons, it would give rise to a corresponding right in such person
or determinate class or group of persons and they would be
entitled to maintain an action for judicial redress. But if no
specific legal injury is caused to a person or to a determinate class
or group of persons by the act ort commission of the State or any
public authority and the injury is caused only to public interest,
the question arises as to who can maintain an action for
vindicating the rule of law and setting aside the unlawful action or
enforcing the performance of the public duty. If no one can
maintain an action for redress of such public wrong or public
injury, it would be disastrous for the rule of law, for it would be
open to the State or a public authority to act with impunity beyond
the scope of its power or in breach of a public duty owed by it.
The courts cannot countenance such a situation where the
28observance of the law is left to the sweet will of the authority
bound by it, without any redress if the law is contravened. The
view has therefore been taken by the courts in many decisions
that whenever there is a public wrong or public injury caused by
an act or omission of the State or a public authority which is
contrary to the Constitution or the law, any member of the public
acting bona fide and having sufficient interest can maintain an
action for redressal of such public wrong or public injury.”
(Emphasis Supplied)
45. A minute reading of the above paragraph makes it crystal clear
that if the act of the State/public authority is without
jurisdiction i.e. beyond the scope of power, which resulted into
a legal injury to a person or a class of persons, it gives rise to a
right to such a person or class of persons to maintain action
for judicial redress. As per this judgement, if officers are
aggrieved, who were subjected to transfer, they can certainly
file 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
public.
29
46. In the instant case, as noticed above, the petitioner is a
practising advocate and cannot have grievance against
transfer of officers unless such transfers result into injury to
public interest.
47. As analysed above, if officers are transferred for a short time
i.e. till election, it cannot be said that administrative
machinery in the State is paralysed and a „numb‟ like situation
has been created.
48. A Division Bench of Karnataka High Court in case of ECI vs.
State of Karnataka (supra) came to hold that ECI must have
confidence over a particular officer. The relevant Para reads as
under:
“The Election Commission has no obligation to give reasons for
opting for such officers. Similarly, they are under no obligation to
give reasons why the person incumbent is not required. It is the
matter of confidence the Election Commission has in a
particular officer. Having regard to the number of days
these persons are going to be displaced, there is no
obligation cast on the Election Commission either to give
reasons or point out in what circumstances these transfers
are effected. It is made clear that when a Government servant is
transferred on a direction issued by the Election Commission, the
said direction is to be understood in the context of conducting free
and fair election.”
30
(Emphasis Supplied)
49. The Court even held that having regard to a number of days
these persons are going to be displaced, there is no obligation
on the ECI to either give reason or point out under what
circumstances these transfers are effected. In clear terms, it
was held that such transfer orders issued by ECI must be
understood in the context of conducting free and fair election.
50. A Division Bench of Andhra Pradesh High Court in the case of
State of Andhra Pradesh vs. ECI (supra) also opined that
ECI is not required to assign reasons while transferring the
officers for a limited period i.e. from the date of notification till
the date of declaration of election results.
51. A Division Bench of Allhabad High Court (at Lucknow Bench)
in the case of Nutun Thakur (supra) considered the
judgement of Supreme Court in the case of Union of India vs.
Association for Democratic Right reported in (2002) 5 SCC
294 and opined that ECI has wide powers to undertake
exercise of transfer to ensure free and fair election.
52. No doubt, the learned senior counsel for the petitioner and the
learned Advocate General have taken pains to refer to various
31
Sections of Representation of Peoples Act 1950 and 1951 to
bolster their submission that right from the Constitution
Bench judgement of Supreme Court in the case of Mohinder
Singh Gill (supra) till A.C. Jose (supra) the law is well settled
that under Article 324 of the Constitution of India the ECI has
wide powers but the same are subject to two limitations,
namely, (i) when Parliament or any State Legislature makes a
valid law relating to or in connection with election, the Election
Commission shall act in conformity with and not in violation of
such provisions, (ii) secondly, the Election Commission is
responsible to the rule of law and must act bona fide.
53. 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.
32
54. Merely because the ECI had transferred a sizable number of
officers, it cannot be said that action is arbitrary, capricious or
mala fide. More so, when similar or more number of
transfers/posting of officers had taken place nationwide.
55. The ECI has taken administrative decisions to transfer/shift
the officers. This is trite that scope of judicial review on
administrative decisions is limited. If administrative order is
found to be passed without authority or shown to be palpably
illegal, interference can be made. Another view is possible, is
not a ground for interference. For this reason also, we find no
justification in interfering with the same. [See: 2006 (10) SCC
645 (Ganesh Bank of Kurundwad Ltd. V. Union of India);
2006 (2) SCC 1 (Rameshwar Prasad (VI) v. Union of India);
2013 (6) SCC 602 (S.R. Tewari v. Union of India); 2005 (5)
SCC 181 (State of NCT of Delhi v. Sanjeev) and 2002 (3)
SCC 496 (Haryana Financial Corpn. V. Jagdamba Oil
Mills.)]
56. The contention of Shri Naidu, learned senior counsel for the
ECI is based on the said „press note‟ dated 17.03.2026 which
shows that the posting/transfer of IAS officers in good
33
numbers is a pan India exercise. The contention of Shri
Naidu, based on the said „press note‟ is not disputed either by
the petitioner or by the State. Thus, we find no reason to hold
that while shifting/transferring officers of State of West
Bengal, ECI did any step motherly treatment.
57. The transfer is an incident of service. If transfer order runs
contrary to any statutory provision, the aggrieved
employee/officer can assail it in appropriate proceedings.
58. 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.
59. In the light of judgment of Hon‟ble Supreme Court in S.P.
Gupta (supra), only such injuries, which has an impact on
public at large can form part of a PIL. In the case in hand, the
petitioner could not make out any such case, which
establishes with accuracy and precision that transfer order of
officers will lead to any administrative collapse, deprivation to
public from the fruits of beneficiary schemes.
60. The petitioner made an effort to establish a political nexus
between certain senior politicians and the respondent no.9.
34
However, as rightly pointed out by learned counsel for the ECI,
no such persons against whom allegations of connivance,
pressure tactics etc. were alleged were impleaded by name.
Thus, no allegation of malice can be entertained against the
ECI. Apart from bald pleadings, no material could be placed to
establish any such nexus.
61. The petitioner and State have cited number of judgments to
bolster their submission that ECI had acted contrary to
statutory provisions ingrained in R.P. Act, 1950 and 1951. In
absence of any foundation regarding this in the body of
petition lack of authority of ECI, we do not see any reason to
examine the said aspect.
62. At the cost of repetition, in paragraph 28 of the PIL filed by a
practicing advocate, it is averred that Election Commission
has power to transfer the officers but such power cannot be
used in an arbitrary manner.
63. Thus, existence of power with ECI is not in dispute. It could
not be established that the power is used in an arbitrary
manner, which resulted into any injury to public interest. In
35
absence of establishing this elementary ingredient to maintain
a PIL, petition cannot be entertained.
64. Thus, in the tune of Constitution Bench Judgment of Supreme
Court in S.P. Gupta (supra), we are constrained to hold that
the writ petitioner could not establish that because of transfer
of officers, any public injury is caused.
65. Thus, PIL sans substance and is accordingly dismissed.
66. However, before parting with, we deem it proper to observe
that this judgment will not come in the way of the individual
aggrieved officers to challenge their transfer order in
appropriate proceedings in accordance with law. It is
noteworthy that two single bench cases of Kerala High Court
in T.V. Madhusoodanan (supra), the challenge to the transfer
orders was made by the aggrieved officer.
67. No costs.
I Agree.
(Sujoy Paul, CJ.)
(Partha Sarathi Sen, J.)