The Telegraph
Monday , April 28 , 2014
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Mitra defends order but poll panel sceptical

Calcutta, April 27: Bengal chief secretary Sanjay Mitra today wrote to the Election Commission defending his order on the post-poll reinstatement of eight senior officials it had transferred, but poll panel sources said his logic was unlikely to be accepted.

The commission might possibly direct Mitra to issue a fresh order overruling the previous one, officials at the poll panel’s Delhi headquarters told The Telegraph.

If Mitra fails to comply, they added, the poll panel has the power to remove him as chief secretary.

The commission had on April 7 removed a district magistrate, two additional district magistrates and four superintendents of police from election duty following Opposition complaints that these officials were biased towards the state’s ruling party. It transferred another police superintendent to fill a vacant post.

For two days, the Bengal government adopted a defiant stance, with Mamata Banerjee alleging a “conspiracy” and daring the commission to arrest her before accepting advice not to get into a showdown.

On April 10, a day after the state complied with the commission directive, Mitra issued an order saying the officials would be reinstated after the election process ended on May 28.

“Such a reinstatement order can enable these officials, despite their removal from election-related duty, to exert undue influence on the election process,” a poll commission source said.

On April 25, the commission wrote to Mitra asking why he had issued the April 10 order without consulting it.

In his reply today, Mitra said he had not violated the model code of conduct because his order would come into effect only after the poll process ended, said sources at Nabanna, the new state secretariat.

“However, any such transfer order, even if it is effective after the polls, has to be cleared by the commission while the model code is in place,” a Nabanna source said.

He said the commission had sent its April 25 letter after Mitra had ignored an earlier verbal warning, sent via Bengal chief electoral officer Sunil Kumar Gupta.

“The commission had expressed its displeasure to the chief secretary through Gupta, saying such an order cannot be issued (unilaterally) when elections are on.”

But on April 23, Mitra —who was not the competent authority to issue the April 10 reinstatement order anyway —tried to get it regularised by instructing the home department and the personnel and administrative reforms department to issue the same order. The commission’s letter to Mitra followed two days later.

Nabanna sources said that in his reply, Mitra has cited a Karnataka High Court order of April 17 last year on the poll panel’s transfer of eight IAS officers in the southern state in the run-up to Assembly elections. The Central Administrative Tribunal (CAT) had stayed the transfers on the ground that they violated the IAS (Cadre) Rules.

The high court upheld the transfers citing the commission’s constitutional powers but said that all eight would automatically stand reinstated once the poll process was over.

While passing the verdict, the court also ruled that the commission was not obliged to cite reasons for such transfers, and observed that these transfers did not necessarily question the officials’ integrity.

“The Bengal chief secretary cannot interpret a Karnataka High Court order, issued in a different context after the CAT got involved, to suit the Bengal government’s ends. In that case, the Karnataka government had not issued any reinstatement order, it was the removed officials who had sought reinstatement,” a Nirvachan Sadan source said.

“Mitra can move court if he wants. Any such plea is likely to go in the commission’s favour, given the powers vested in it by the Constitution.”

The source said the commission would examine Mitra’s letter tomorrow. “If what we hear about the content of Mitra’s letter is true, it is not likely to be acceptable,” he said.

“The commission might instruct him to issue a fresh order overruling the April 10 order. A similar measure could be adopted for the April 23 order too.”