The Supreme Court has dismissed a petition challenging the mass transfer of IAS/IPS and other officers in Bengal by the Election Commission, observing that such shifts are “common and routine”, but kept “open” the issue relating to the “question of law” on whether such transfers should be with concurrence of the state where an election is held.

“There is nothing new in such transfers. It is not happening in Bengal alone. It has been happening for over 30-40 years in other states…,” a bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi told senior advocate Kalyan Banerjee appearing for the PIL petitioner and advocate Arka Kumar Nag on Thursday.

Referring to the arguments that over 1,000 special observers had been deployed in different roles during the current phase of the Assembly polls by the EC, the CJI said the appointment of independent observers in fact would ensure free and fair elections.

“An observer from outside the state is always ideal,” Justice Kant remarked.

As a last-ditch effort, Banerjee said the Supreme Court should keep open the “question of law” as to whether the EC could make such mass transfers without the “concurrence” of the state for future elections, and not for the present polls. The bench agreed to the same. The bench, while dismissing the petition, said the question of law about the issue of concurrence of the state for such transfers was “kept open” in the foreseeable future.

Arya has filed the present appeal challenging a Calcutta High Court judgment which had on March 31 dismissed his petition challenging the “illegal and unconstitutional” transfers.

In the present appeal filed through advocate-on-record Vivek Singh, Nag has submitted that the “Election Commission under the garb of poll preparedness has transferred 63 IPS Officers including in the offices of DG & IGP and 16 Civil Servants including the Chief Secretary of the State and the Principal Secretary Department of Home and Hill Affairs of the Government of West Bengal without consulting the State of West Bengal”.

According to the petitioner, the EC, without citing any reason, has arbitrarily and illegally transferred the officers within Bengal and in other poll-bound states in contravention of Article 324 of the Constitution of India, read with provisions of the Representation of People Act 1950 and 1951.

“Further, in some transfer orders, the Election Commission has categorically stated that the officers transferred out shall not be posted in any election-related posts till the completion of elections. The same is without any complaint against such officer or assigning any reason for such illegal and arbitrary action.

The whimsical transfers at the behest of Respondent No. 1 (ECI) smacks of mala fide and arbitrariness. The mass transfers of IAS and IPS officers in West Bengal would lead to an administrative catastrophe where in highest administrative posts are being manned by new officers.”

The petition also said the mass transfer was an attempt to paralyse the bureaucracy in Bengal.