Positioning of key officers in Election: Election Commission Should Take Action

Election commission should invoke its authority under Article 324 to ensure that the Centre and the States do not position senior officers whose tenures are unduly extended, in order to safeguard the integrity of elections


Shri Rajiv Kumar, Chief Election Commissioner, Election Commission of India (ECI)
Shri A C Pandey, Election Commissioner, Election Commission of India (ECI)
Shri Arun Goel, Election Commissioner, Election Commission of India (ECI)

Dear S/Shri Rajiv Kumar/ Pandey/ Goel,

Both the Centre and several States are positioning their favourite officers in crucial positions to make sure that they play a role to their liking during the general elections due to be held shortly. In some cases, such favourite officers who ought to have retired earlier are being given extensions in service so that they may remain in important positions during the coming elections. Often, such extensions are granted in brazen violation of the norms to be strictly complied with in the case of retiring officers. 

To cite one such case, two years ago, Shri Durga Shankar Mishra who was a Secretary at the Centre was given an extra-ordinary extension two days before his retirement and repatriated to his parent State, UP to be posted as the State’s Chief Secretary. In UP, he has been given further extensions, duly endorsed by the Department of Personnel at the Centre, in a departure from the established norma applicable in such cases. Even after all such out-of-the-way extensions, Shri Mishra was to retire at last on December 31, 2023. Once again, just a couple of days before the scheduled date of his retirement, he was given yet another extension, evidently endorsed once again by the Department of Personnel (https://timesofindia.indiatimes.com/city/lucknow/up-chief-secretary-ds-mishra-gets-3rd-extension-till-june-30/articleshow/106411918.cms). It is obvious that his term has been extended so that he may be in a position to oversee the Lok Sabha elections this year. This certainly casts a shadow on the way general elections are likely to be conducted in UP. 

Similarly, the Centre granted extensions in tenure one after the other in the case of the Enforcement Director, at a time when there was an outcry from political parties in opposition that investigating agencies such as the Enforcement Directorate (ED) were being used selectively against them by the ruling political executive. The manner in which the Centre had granted extensions to the officer posted as the ED was objected to by the apex court when the matter came up before them as a result of a PIL (https://www.livelaw.in/top-stories/supreme-court-extends-ed-director-sk-mishras-term-till-september-15-in-national-interest-233762). To the best of my knowledge, the Centre is yet to appoint a regular Enforcement Director and the ED is still being headed by an “acting” incumbent, a situation that does not inspire public confidence (https://economictimes.indiatimes.com/news/india/centre-appoints-rahul-navin-as-the-next-enforcement-directorate-chief/articleshow/103697928.cms). 

There are several sensitive departments at the Centre which are headed by incumbents who are on similar extensions. For example, the present Chairman of CBDT is an officer whose tenure stands extended to cover the timeframe extending beyond the Lok Sabha elections (https://www.livemint.com/news/govt-extends-cbdt-chairman-nitin-guptas-tenure-till-june-2024-11696070363415.html). The Centre giving such tenure extensions, with an eye on elections, is prima facie unacceptable, not only from the point of view of good governance but also from the point of view of ensuring that elections are conducted in a free and fair manner with a level playing ground provided for political parties.

I earnestly believe that this calls for an effective, prompt intervention from the Election Commission in a manner that facilitates conducting elections in a free and fair manner. The Commission has ample authority under Article 324 of the Constitution to intervene in such a matter, even outside the timeframe when the Model Code of Conduct (MCC) is in force. T

he apex court made the following observation on 2-5-2002 in WP(C) 294/2001 [Civil Appeal 7178/2001] (Association for Democratic Reforms vs Union of India & Others):

where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition…”

I feel that it is not just a choice before the Commission to intervene in this matter or not. It is more an obligation cast on the Commission by Article 324. Not invoking its Constitutional authority at such an appropriate time would imply a breach of that obligation.

All the political parties and the public at large expect the Commission to be vigilant in such matters and do everything within its Constitutional ambit to ensure the integrity of the electoral process. I hope that the Commission will unhesitatingly fulfil that expectation.


Yours sincerely,

E A S Sarma
Former Secretary to the Government of India

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