1 2026:CGHC:6682 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 255 of 2026 1 - Shishir Kumar Sharma S/o Late Dr. J.D. Sharma Aged About 60 Years Presently Posted As Block Development Officer, Janpad Panchayat, Berla, District Bemetara, Chhattisgarh --- Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Chhattisgarh Department Of Panchayat And Rural Development, Mantralaya, Mahanadi Bhavan, Atal Nagar, Nava Raipur, District - Raipur, Chhattisgarh 2 - Under Secretary Chhattisgarh Department Of Panchayat And Rural Development, Mantralaya, Mahanadi Bhavan, Atal Nagar, Nava Raipur, District - Raipur, Chhattisgarh 3 - Incharge Chief Executive Officer Janpad Panchayat, Berla, District Bemetara, Chhattisgarh 4 - Incharge Assistant Project Officer Jila Panchayat, Bemetara, Chhattisgarh 5 - Dipti Mandavi Currently Posted As Assistant Project Officer, Jila Panchayat Bemetara, Chhattisgarh 6 - Election Commission Of India, Through Its Chief Electoral Officer, D.K.S. Bhawan, Old Mantralaya Premises Indrawati Block, Shashti Chowk, Raipur, District Raipur C.G. --- Respondent(s) (Cause title is taken from CIS system) For Petitioner : Mr. Pankaj Singh, Advocate For Respondents/State No.1 & 2 : Ms. Diksha Gouraha, Dy.G.A. For Respondent No.5 : Mr. Raghavendra Pradhan, Advocate For Respondent No.6 : Mr. Rakesh Kumar Jha, Advocate BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2026.02.07 14:40:31 +0530 2 Hon'ble Shri Justice Parth Prateem Sahu Order On Board 05/02/2026 1. Petitioner has filed this petition seeking following relief (s):- “10.a) Issue an appropriate writ, order or direction, including a writ of certiorari, quashing and setting aside the impugned transfer order dated 16.12.2025, bearing No. ESTB-102(1)/557/2025, issued by Respondent No. 2, whereby the petitioner has been transferred from Janpad Panchayat, Berla, District Bemetara, in an arbitrary and illegal manner; 10.b) Issue an appropriate writ, order or direction restraining the respondents from giving effect to the impugned transfer order dated 16.12.2025, and direct that the petitioner be allowed to continue on his present post/place of posting; 10.c) Declare that the impugned transfer order is illegal, arbitrary and unconstitutional, being in violation of the binding directions of the Election Commission of India issued under Article 324 of the Constitution of India, as well as violative of Articles 14 and 21 of the Constitution of India; 10.d) To pass any other order in favor of Petitioner as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case with cost.” 2. Learned counsel for petitioner submits that petitioner is employee of Panchayat and Rural Development Department of State of Chhattisgarh and was holding substantive post of Block Development Officer, Janpad Panchayat Berla, District Bemetara. Thereafter has assigned duty to work as Incharge Chief Executive Officer, Janpad Panchayat Berla. Vide order dated 24.10.2024, petitioner was 3 transferred from the office of Janpad Panchayat Khairagarh, District Khairagarh – Chhuikhadan -Gandai to the office of Janpad Panchayat Berla, District Bemetara as Incharge Chief Executive Officer and since then petitioner is continuously working as Incharge Chief Executive Officer, Janpad Panchayat Berla, District Bemetara. Vide impugned order Annexure P-1 dated 16.12.2025, petitioner is again transferred to the office of Zila Panchayat Bemetar as Incharge Assistant Project Officer, Zila Panchayat Bemetara. Transfer of petitioner vide order impugned (Annexure P-1) is in violation of the Section 13CC of the Representation of the People Act, 1950 (Hereinafter referred to as ‘the Act of 1950’). To substantiate his submission, he would submit that petitioner was deputed as Additional Assistant Electoral Registration Officer (AAERO) by the Collector-cum-District Election Officer, Bemetara vide order dated 28.11.2025 and he is engaged in the work of Special Intensive Revision (SIR). As petitioner is deputed to complete the work of revision of the electoral rolls, and petitioner being an employee within the control of Election Commission, State Government could not have passed the order of transfer. He also pointed out that Chief Electoral Officer, Chhattisgarh, Raipur wrote letter to the Chief Secretary, State of Chhattisgarh on 27.10.2025 mentioning that employees of the State Government, who are engaged in special intensive revision (SIR) work being deputed as District Electoral Officer, Deputy District Electoral Officer, Electoral Registration Officer, Assistant Electoral Registration Officer, Booth Level Officer Supervisor, Booth Level Officer not to be transferred during period of revision of electoral rolls without prior permission of Election Commission of India and to issue such directions accordingly. 4 He contended that respondents/State without considering the directives issued by the Chief Electoral Officer, State of Chhattisgarh and the provisions under Section 13CC of the Act of 1950, has passed the order of transfer, therefore, on the date of passing an order of transfer, respondent No.1 was not having jurisdiction to pass such order of transfer with respect to petitioner. He also contended that petitioner has been subjected to frequent transfer. He contended that when order of transfer so far as it relates to petitioner is without jurisdiction then it is nullity in the eyes of law since inception. In support of his contention, he places reliance on the decision of Hon’ble Supreme Court in case of Jagmittar Sain Bhagat v. Health Services, Haryana, reported in (2013) 10 SCC 136. 3. Learned Sate counsel submits that reply has been filed stating that petition is devoid of any substance, therefore, it be dismissed. It is submitted on behalf of State that submission of learned counsel for petitioner that petitioner cannot be transferred without prior permission of Election Commission during SIR period, is not correct. Petitioner being a government servant cannot claim any fundamental right to continue at a particular place of posting. Transfer is an exigency of service. Transfer order can be challenged only if it is with mala fide or is made in violation of statutory provisions, which is missing in this case. In support of his contention, he paced reliance upon the decision of Hon’ble Supreme Court in case of Rajendra Singh v. State of U.P., reported in (2009) 15 SCC 178. She further contended that the word used in the letter dated 27.10.2025 and the letter dated 19.12.2025 of the Chief Electoral Officer is a request, therefore, it is directory in nature and not mandatory, there is no prohibition for the State to pass 5 order of transfer. Hence, there is no requirement of seeking prior approval for affecting the transfer of employee of the State Government. It is also contention of learned counsel for respondents/State that after transfer of petitioner, respondent No.5 is posted in place of petitioner, whose substantive post is Assistant Project Officer, therefore, she is equally competent and having experience to perform the duties of the Chief Executive Officer as well as the duty of SIR and replacement of such person like petitioner will not cause hindrance in any manner to the work of Election Commission of India. Order of transfer is temporary as it mentioned until further orders. 4. Learned Counsel for Election Commission/Respondent No.6 in fact would support the contention of learned counsel for petitioner and the grounds raised in the writ petition. He would submit that just before initiation of proceedings of SIR, Chief Electoral Officer, State of Chhattisgarh wrote letter to Chief Secretary, State of Chhattisgarh requesting not to transfer employees, who are engaged in the SIR work with different designations as mentioned therein. He also contended that in the said letter dated 27.10.2025, it is clearly mentioned that employees engaged in SIR work will be in a control, superintendence and discipline of Election Commission of India according to the provision of Section 13CC of the Act of 1950. After coming across the order of transfer of State of Chhattisgarh, Chief Electoral Officer, State of Chhattisgarh again wrote letter to the State Government requesting to cancel the order of transfer as it is not in the tune of the letter issued by the Election Commission of India No.23/2025-ERS (Vol.-II), dated 27.10.2025 (Para-4). He contended that employees engaged in SIR work are under control, 6 superintendence and discipline of Election Commission of India under Rule 13CC, therefore, also, transfer of petitioner, who is engaged in SIR work, is bad-in-law. Respondent No.6 further wrote letter on 22.12.2025 requesting to cancel order of transfer dated 16.12.2025. 5. Learned counsel for respondent No.5 would vehemently opposes the submission of learned counsel for petitioner as also the submission of learned counsel for Election Commission/respondent No.6. He would submit that writ petition is filed with inordinate delay. A person sleeping over on his right, cannot be granted any relief as prayed at later period of time. Order of transfer is dated 16.12.2025 and writ petition is filed only on 07.01.2026. He next contended that petitioner pursuant to the order of transfer (Annexure P-1) was relieved on 22.12.2025 and joined the transferred place of posting on the same day i.e. on 22.12.2025. Order of transfer is executed by petitioner, therefore, now the executed order of transfer cannot be permitted to be challenged by petitioner when petitioner instead of handing over the charge on 22.12.2025 went on leave since 22.12.2025. He also contended that after joining of respondent No.5 in place of petitioner, she has been engaged in SIR work in place of petitioner, which is reflecting from the documents and photographs as annexed along with reply. He also contended that letters, which are relied upon by learned counsel for petitioner issued by the Chief Electoral Officer, State of Chhattigarh it is a request letter, therefore, it is directory and it cannot be applied as mandatory. Purpose and the intent of letter dated 27.10.2025 and 19.12.2025 is to be gathered from its contents. It is a letter of request not to transfer the State Government employee so that proceedings of the SIR may continue without any interruption, which in the facts of the 7 case is continuing as respondent No.5 is discharging the work of Assistant Electoral Registration Officer in place of petitioner. He also brought to the notice of this Court that digital signature certificate is also issued to respondent No.5, as also LPC is transferred to transferred place of posting of respondent No.5. 6. I have heard learned counsel for parties and perused the documents placed on record. 7. In the facts of the case, submission made by learned counsel for respective parties, consideration of the Court is as to whether the State Government could have issued an order of transfer of an employee engaged in SIR work, under the directives of the Election Commission of India even after receipt of request letter issued by the Chief Electoral Officer, State of Chhattisgarh. And further whether the State Government is having jurisdiction to transfer government employees engaged in SIR in teeth of the provision under Section 13CC of the Act of 1950 with prior consent of Election Commission of India. 8. Petitioner in this petition as also the counsel for respondent No.6/Election Commission of India has placed on record the copy of letter dated 27.10.2025 written by Chief Electoral Officer, Chhattisgarh Raipur to Chief Secretary mentioning that employees and officials engaged in the work of SIR will be under control, superintendence and discipline of Election Commission and further requested in the same letter not to transfer the employees, who has been engaged in SIR work in capacity of Roll Observer, District Electoral Officer, Deputy District Electoral Officer, Electoral Registration Officer, Assistant 8 Electoral Registration Officer, Booth Level Officer Supervisor, Booth Level Officer not to be transferred without permission of Election Commission of India and requested to issue necessary direction in this regard. Perusal of Annexure A-3 filed along with writ petition would show that based on the letter written by Chief Electoral Officer, Chhattisgarh, Chief Secretary, State of Chhattisgarh had marked on the letter ‘suitable instructions to be issued’. 9. The Act of 1950 is an act enacted by the parliament and it is a Central Act. Under the Act of 1950, specific Section has been inserted w.e.f. 15.03.1989 i.e. Section 13CC, which is extracted below for ready reference :- “13CC. Chief Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission.—The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.]” 10. Perusal of the aforementioned provision would show that it clearly mentions that any officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed. 9 11. Since the date of issuance of order of engagement of petitioner and other employees/officers of the State Government in SIR work, which is related to preparation, revision and correction of the electoral rolls, petitioner is under deemed deputation to the Election commission. If the provisions is specifically enacted under the Central Act, then the provision under the law has to be given effect to and it is to be seen that it is not overlooked or violated even if by senior officials of the State Government. 12. In case at hand, the Chief Electoral Officer, Chhattisgarh prior to issuing an order dated 28.11.2025 engaging the person by name and post to be appointed as Additional Assistant Electoral Registration Officer have issued letter on 27.10.2025 addressing to the Chief Secretary that employee/officials of the State Government engaged in SIR work shall remain in control, superintendence and discipline of Election Commission of India under the provision of Section 13CC of the Act of 1950. The Chief Secretary has marked that suitable ‘instruction to be issued’. It is not a case where the State Government has raised any objection to the letter written by the Chief Electoral Officer of State of Chhattisgarh under the Election Commission of India, but it appears that list of officers may not have been brought to the notice of the authority while issuing the order of transfer, subject mater of challenge in this writ petition with respect to petitioner. It is further case that after getting knowledge about some of the employee engaged in SIR work by the impugned transfer order dated 16.12.2025, the Chief Electoral Officer of State of Chhattisgarh wrote letter requesting to cancel the said order. This letter is also not 10 questioned by the State of Chhattisgarh questioning the authority of the Chief Electoral Officer of Chhattisgarh. 13. The Constitution provides for a Parliamentary form of Government. It is onerous task of conducting free and fair election, which is assigned to the Election Commission. Election Commission does not have its own independent machinery to conduct elections or to make preparation pre-election like, preparing, correcting, revising electoral rolls before the parliamentary and elections for the legislature of the State. Under Article 324 of the Constitution of India, provides that, superintendence, direction and control of elections to be vested in an Election Commission of India so that election can be conducted in peaceful and fair manner. 14. The nature of work, which is assigned to Election Commission under Article 324 of Constitution, it may not be possible to conduct election in fair and appropriate manner unless the directions issued by the Election Commission are implemented and respected. 15. In case of Kanhaiya Prasad Sinha Vs. Union of India (UOI) and Ors. (FB), reported in AIR 1990 Pat 189, justice S. Ali Ahmad, J. while speaking for himself has observed that “in case the directions so issued by the Commission are not respected then in appropriate cases the Court may examine the same and pass appropriate orders. But this is a matter purely between the Commission and the concerned States. Justice S.B. Sanyal, J. while speaking for himself in agreement with the view taken by the Justice S. Ali Ahmad, J. observed that “Article 324(1) of the Constitution is the reservior of the powers of the Election Commission to get election conducted in a purest manner. 11 The directions issued for the said purpose is meant to be respected and obeyed. Whether the directions issued are directory or mandatory is beside the point. The Court reserves its opinion on this for an appropriate case. Suffice it to say that disobedience of lawful directions may lead to a breakdown of constitutional machinery. A healthy convention must develop in the country to respect the directions issued from time to time by the Election Commission of India. The office of the Election Commission of India cannot be viewed to be weak because of no express punitive power is conferred upon it for disobedience of its lawful directions. Strength of the power is implicit because the entire edifies of our democratic Constitution is founded upon the proper functioning of this institution.”. 16. Justice R.N. Prasad, J. while agreeing with the view of Justice Ali Ahmad J. and justice S.B. Sanyal, J. had observed that “the Election Commission under Art. 324 has been era-powered to issue directions and instructions to State Governments and other authorities mentioned in the article. The State Government is constitutionally obliged to respect and comply with the instructions issued by the Election Commission and not to disregard or ignore them”. 17. One more aspect of the case is that petitioner is transferred to the post of Incharge Assistant Project Officer. The issue of transfer of an employee to fill up the post of Assistant Project Officer by transfer came up for consideration before this Court in case of Rupesh Kumar Pandey Vs. State of C.G. and other WPS NO. 1320 of 2017, wherein the post is to be filled up either by direct recruitment or deputation and in the said case, there was no order of deputation, but that defence 12 taken to be held as an after thought, and allowed the writ petition. In the case at hand also, the order of transfer, subject matter of challenge Annexure A-1 dated 16.12.2025 is not an order of sending petitioner on deputation, but it is simple order of transfer, therefore, also, transfer of petitioner to the post of Incharge Assistant Project Officer is not sustainable. 18. The decision of Division Bench relied upon by learned counsel for private respondent No.5 that once the transfer order is executed, question of its cancellation does not arise, is on different facts and is not applicable to the facts of the case, therefore, respondent No.5 cannot get any benefit from the said decision. 19. If the facts of the case are to be considered in light of the decision of Full Bench of Patna High Court, it is apparent that it is a case that, before petitioner approaches this Court, the Chief Electoral Officer of the State of Chhattisgarh, again wrote a letter to cancel the order of transfer dated 16.12.2025, the letter would necessarily will be with respect to the employees shown to be transferred, who are engaged in SIR work. The order of transfer is challenged within 20 days and therefore, it cannot be said that petition is filed with delay. 20. For the foregoing discussions made here-in-above the transfer of petitioner, who is engaged in SIR work is not sustainable in the eyes of law. Accordingly, the impugned order of transfer dated 16.12.2025 (Annexure A-1) so far as it relates to petitioner is hereby quashed. 21. Accordingly, this writ petition is allowed. Sd/- Sd/- (Parth Prateem Sahu) Judge Balram