Full Judgment Text
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PETITIONER:
ELECTION COMMISSION OF INDIA
Vs.
RESPONDENT:
STATE BANK OF INDIA STAFF ASSOCIATION LOCAL HEAD OFFICE
DATE OF JUDGMENT07/02/1995
BENCH:
AHMADI A.M. (CJ)
BENCH:
AHMADI A.M. (CJ)
MOHAN, S. (J)
SINGH N.P. (J)
CITATION:
1995 AIR 1078 1995 SCC Supl. (2) 13
JT 1995 (2) 61 1995 SCALE (1)466
ACT:
HEADNOTE:
JUDGMENT:
1. Both these appeals can be disposed of by this common
judgment as the question under consideration in both cases
bears on the language of clause (6) of Article 324 of the
Constitution of India.
2. The Election Commission of India is the appellant in
both the appeals, Ar-
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ticle 324 of the Constitution vests in the Election
Commission the power of superintendence, direction and
control of the preparation of electoral rolls for, and the
conduct of, all elections to Parliament and to the
Legislature of every State.
3. Clause (6) of Article 324 reads as under:
"The President, or the Governor of a State,
shall, when so requested by the Election
Commission, make available to the Election
Commission or to a Regional Commissioner such
staff as may be necessary for the discharge of
the functions conferred on the Election
Commission by clause (1)".
4. Article 327 enables Parliament to make provision with
respect to all matters relating to, or connected with,
elections to either House of Parliament or to the House or
either House of Legislature of a State including the
preparation of electoral rolls, the delimitation of
constituencies and all other matters necessary for securing
the due constitution of such House or Houses.
5. In exercise of the power vested in the Parliament under
these Articles it enacted the Representation of the People
Act, 1950 and the Representation of the People Act, 1951
(hereinafter referred to as ’the 1950 and 1951 Acts’,
respectively). The 1950 Act provides for the allocation of
scats and the delimitation of constituencies for the purpose
of elections to the House of People and the Legislatures of
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the States, the qualifications of voters at such elections,
the preparation of electoral rolls and the matters connected
therewith. The 1951 Act provides for the conduct of
elections to the Houses of Parliament and to the House or 1
louses of the Legislature of each State, the qualifications
and disqualifications for membership of those Houses, the
corrupt practices and other offenses at or in connection
with such elections. Sections 26 of 1951 Act enables a
District Election Officer to appoint a Presiding Officer for
each polling station. Section 159 of the said Act reads as
follows:
159. Staff of every local authority to be
made available for election work. Every local
authority in a State shall, when so requested
by a Regional Commissioner appointed under
clause (4) of article 324 or the Chief
Electoral Officer of the State, make available
to any returning officer such staff as may be
necessary for the performance of any duties in
connection with an election."
6. From a conspectus of the above provisions it seems
clear to us that on the request of the Election Commission
the President or the Governor of the State must make
available to the Election Commission such staff as may be
necessary for the discharge of functions conferred on the
Election Commission under clause(1) of Article 324. In view
of clause (6) of Article 324 the President or the Governor
of the State when requested will make available to the
Election Commission the services of such staff as may be
necessary for the discharge of the functions conferred on
the Election Commission. By this, it is meant that the
persons whose services may be placed at the disposal of the
Election Commission must be persons who are either employees
of the Central Government or of the State Government.
Again, in view of Section 159 extracted above when a
requisition is made by the Regional Commissioner, the local
authority shall make available its staff for the purpose of
duties in connection with an election.
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7. Thus far there is no dispute but the controversy arises
in view of the action taken by the District Election Officer
making the following requisition:
"OFFICE OF THE DISTRICT ELECTION OFFICER-Cum-DISTRICT MAG-
ISTRATE-
Ref.No.522/Elec. Patna, the 22nd, Sept.91
ELECTION TOP PRIORITY
To
Chief General Manager
State Bank of India
Jajej Road Patna
Sub: List of Officers & Staff for appointment as presiding
Officers & Polling Officer in Mid Term Parliamentary
Election 1 Assembly bye-election, 1991.
Sir,
I am to inform you that services of large number of
Officers & staff will be required for appointment as
Presiding Officers, Polling Officers and Patrolling-Ballot
Box collecting Officers in the forth coming Mid-term
Parliamentary Election & Assembly bye-election, 1991 in this
district.
You are requested to send complete 1.11.1991 certain orders
were issued by list of officers and staff of your office &
the said District Election Officer appoint field officers
located in the District Patna ing and deputing some of the
employees under you in the proforma given below in of the
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State Bank of India on election duty TRIPLICATE through
Special Messenger to Shri Keshav Prasad, Additional District
Magistrate (Establishment), Patna.Collectorate, Patna latest
by 5th October, 1991 positively. Such Officer or Staff who
is either female or disabled or appointed as cashier or
deployed on night guard duties or is unavoidably necessary
to be retained as Skeleton Staff in you office or is on long
leave or training deputation may please be suitably
indicated in the remarks column against his/her name in the
list so that they may be considered for exemption from
Election Duties as far as possible and practicable. You are
also requested to certify that no officer or staff has been
left out.
Please give full name & exzct location & addresss of the
office on the top of the list to facilitate service of
appointment letters, Telephone number of your office &
residence, if available may also be indicated below the
address.
I sincerely hope that you will extended your full co-
operation & the list relating to your office complete in all
respect will be made available to Shri Keshav Prasad,
Additional District Magistrate (Establishment), patna
Collectorate latest by 5th October, 1991 positively.
Please accord highest priority. Please acknowledge receipt.
Yours faithfully,
sd/-
(ARBIND PRASAD)
DISTRICT ELECTION OFFICER
cum-District Magistrate
Patna."
8. It appears, on 30.10.1991 adn 1.11.1991 certain orders
were issued by the said District Election Officers
appointing and deputing some of the employees of the State
Bank of India on elections to the Barh Parliamentary
Costituency and Pali Assembly constituency which were to be
held on 16.11.1991. Thereupon the first respondent filed a
writ petition (CWJC No. 7815 of 1991) in the High court of
Patna
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praying for quashing these communications on the ground that
the District Election Officer had no authority to
requisition the services of the Bank employees for election
duty.
9. While this writ petition was pending, sometime in May,
1993, in connection with the polling to be held in 35-Patna
Parliamentary Constituency, similar letters of appointment
of employees of the State Bank of India for election duty
were issued by the District Election Officer, Patna.
Therefore, the first respondent moved an ,application for
amendment to include a challenge to these letters of
appointment as well. The amendment was allowed.
10.The High Court, by the impugned judgment dated 21.5.1993,
held that the District Election Officer had no power under
Section 26 of the 1951 Act to requisition the services of
employees of the State Bank of India for election duty. The
High Court took the view that the State Bank of India was
not a local authority within the meaning of Section 159 of
the 1951 Act. Accordingly, the High Court quashed the
orders and issued a writ in the nature of mandamus-
commanding the Election Commission of India not to
requisition the services of the employees of State Bank of
India in exercise of its power under Section 26 of the 1951
Act.
11.It may here be mentioned that during the pendency of the
writ petition, the counsel for the Election Commission
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brought to the notice of the High Court that by a judgment
dated 7.11.1989 the High Court of Rajasthan had quashed the
order of the District Election Officer, Ajmer dated 8.8.1989
by which he had requisitioned the services of the employees
of the Life Insurance Corporation of India, Ajmer for
election duty. This was in Writ Petition No.4644 of 1989,
Civil Appeal No. 4611 of 1989 is against that judgment.
12.The submission of Mr.S. Murlidhar, learned counsel for
the appellant, Election Commission of India, in Civil Appeal
No.6026 of 1993 run thus:
Under Article 3249 the superintendence, direction, control
and the conduct of all elections to Parliament and to the
Legislature of every State vests in the Election Commission.
These elections have to be conducted fairly and property. A
large number of officers are required to man a number of
polling stations that are required to be set up in each
State. For each polling station five personnel are required
in the minimum. That is why clause (6) of Article 324 of
the Constitution of India envisages that when a request is
made by the Election Commission or a Regional Commissioner,
the President or the Governor will provide such staff as may
be necessary for discharging the functions stated in clause
(1) thereof. The question then is, whether the words ’such
staff’ occurring clause (6) are to be confined only to the
staff under the Government? In this connection, Article 327
may also be seen. In regard to all matters concerning the
elections, the Parliament can make provision by law. In
exercise of that power the 1950 and 1951 Acts came to be
enacted. Therefore, in ascertaining the meaning of ’such
staff’ we will have to necessarily look at the 1950 and 1951
Acts.
13. Section 13A of the 1950 Act deals with the Chief
Electoral Officer for each State. He will have to be a
Government
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servant. Similarly, Section 13A deals with the District
Election Officers. Under Section 13CC, Officers and staff-
members employed in connection with the preparation,
revision and correction of the electoral rolls are deemed to
be on deputation. They are subject to control,
superintendence and discipline of the Election Commission.
Similarly, under Section 28A of the 1951 Act Returning
Officers, Presiding Officers, etc., arc deemed to be on
deputation and are subject to control, superintendence and
discipline of the Election Commission.
14. Section 21 of the 1951 Act enables the Election
Commission to nominate a Returning Officer. So also an
Assistant Returning Officer can be appointed by the Election
Commission. Both are expected to be Government Officers or
employees of a local authority. In contrast, under Section
26, a Presiding Officer for polling station could be anyone,
not necessarily a Government servant or an employee of a
local authority. This is an important distinction. Section
13A talks of breaches of official duty in connection with
election and includes the District Election Officers,
Returning Officers, Polling Officers etc. So also Rules 17
(c), 34, 35 and 53(2) speak of non-Government servants as
well. In support of the submission reliance was placed on
the decisions in K.P. Roy v D. Rules, District Magistrate,
Howrah AIR 1971 Calcutta 461 and the judgment in Civil
Appeal No.4611 of 1989. In the first case Railway employees
were involved while in the latter employees of Life
Insurance Corporation were involved.
15. Before the High Court, an argument was raised that the
State Bank of India must be held to be a local authority
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under Section 159 of the 1951 Act. That argument is not
advanced before us.
16. Mr. Dushyant Dave, learned counsel for respondents 1 to
5 in Civil Appeal No.6026 of 1993 countered: the source of
power to requisition the services being Article 324, court
should first read the plain words of clause (6). That
clause clearly states that the request must be made to the
President or the Governor of a State. On receipt of such a
request from the Election Commission, such staff as may be
necessary for discharge of the function under clause (1)
must be made available to the Election Commission or
Regional Commissioner. No doubt, under Article 327 the
Parliament may empower drafting the services of others by
enactment of law. That is why Section 29 of the 1950 Act
and Section 159 of the 1951 Act talk of the obligation of
the local authority to make its staff available. Merely
because anyone could be appointed as Presiding Officer or
polling Officer does not necessarily lead to the conclusion
that services of any person even though not a Government
servant could be sought under Article 324(6) If the power,
as contended by the appellant, is granted to the Election
Commission, it will become an imperium in inperio.
Therefore, it was expressly negatived by this Court in
Digvijay Mote v. Union of India and others 1993 (3) SCC 175
at 178.
17. Now, we come to Article 324. It will be useful to
extract the following clauses of the said Article which have
a bearing on the issues involved:
"324. Superintendence, direction and control
of elections to be vested in an Election
Commission. -(1) The superintendence,
direction and control of the preparation of
the electoral rolls for,
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and the conduct of, all elections to Parlia-
ment and to the Legislature of every State and
of elections to the offices of President and
Vice-President held under this Constitution
shall be vested in a Commission (referred to
in this Constitution as the Election
Commission).
xxx xxx xxxxx xxx
324 (4) Before each general election to the
House of the People and to the Legislative
Assembly of each State, and before the first
general election and thereafter before each
biennial election to the Legislative Council
of each State having such Council, the
President may also appoint after consultation
with the Election Commission such Regional
Commissioners as he may consider necessary to
assist tile Election Commission in the
performance of the functions conferred on the
Commission by clause(1)."
18. We have already extracted clause (6) of Article 324
which empowers the Election Commission to request the Presi-
dent, or the Governor of the concerned State to make
available such staff as may be necessary for it to carry out
its duty under clause (1). Such a provision was necessary
for the obvious reason that since the Election Commission
has to hold elections at intervals it is not required to
maintain a huge staff at considerable expense to the
exchequer and therefore the power to seek on request such
staff as is necessary came to be engrafted in the constitu-
tion itself
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19. We assume that the powers of the Election Commission
under Article 324 are plenary. Therefore, the Election
Commission may issue any direction in the matter of conduct
of elections. But the questions is, in the garb of conduct
of elections, can the Election Commission usurp the power
not vested in it? This will depend on the understanding of
clause (6) of Article 324. For the conduct of elections
when the Election Commission makes a request to the
President or the Governor to make available the staff they
are obliged to provide the services. What is the meaning of
’such staff? According to Mr. Dushyant Dave we should refer
to Article 310 which talks of a member of Civil Service (in
contradistinction to Defence Service of the Union or the
State), holding office during the pleasure (Durante bene
placito) of President or the Governor. Obviously ’such
staff’ can only mean that staff which is under the control
of the President or the concerned Governor and not any staff
over which they do not exercise control. It could mean only
that staff on which the President or the Governor, as the
case may be, would be in a position to exercise disciplinary
powers should they refuse the President’s or Governor’s
directive. Although the Constitution-makers did not say the
Union or the State Governments but only the President or the
Governor, it Is obvious they would have to act consistently
with Articles 74(1) and 163(1), respectively. Therefore, on
a request by the Election Commission the services of those
Government servants who are appointed to public services and
posts under the Central or State Governments will have to be
made available for the purpose of election. When the
Constitution came into force the services of these officers
were readily available. Of course, there were also local
authorities and the services of the employees of the local
authorities were also available. That is why Section 159 of
the 1951 Act provides that on request from the Regional
Commissioner or the Chief Electoral Officer of the State,
the local au-
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thority of the State shall make available to any Returning
Officer such staff as may be necessary to carry out the
duties in connection with an election.
20. It is important to note that their services came to be
made available as Returning Officers and Assistant Returning
Officers under Sections 21 and 22 of the 1951 Act introduced
by Amendment Act 47 of 1966. Barring the services of these
officers does the Election Commission have power to
requisition the Services of any other person? The argument
of the appellant is based on several sections of the 1950
and 1951 Acts. We have referred to the relevant provisions
of the two Acts hereinbefore.
21. Merely because the provisions of the two Acts require
that they must be officers of Government or local authority,
unlike in the case of officers falling under Section 27 of
the 1951 Act, it does not, in our opinion, follow that the
services of the officers of the State Bank of India could be
requisitioned. Section 26 of the 1951 Act is not a source
of power at all. It does not, in any manner, enable the
Election Commission to draft in the services of officers
other than officers of Government and local authority. To
draw inspiration from these sections to support an argument
that the services of any person could be drafted for the
purpose of election is untenable. May be, to conduct the
elections many polling stations are set up. Consequently,
the services of many persons may be required. May be, the
Election Commission may draw the minimum staff from the
banks to ensure that the banking business is not disrupted
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but the question here is of power and not discretion. If
there is power it may be exercised with circumspection and
minimum staff may be requisitioned but if there is no power
the question of the mode of its exercise will not arise at
all. It is a question of existence of power and not the
manner of its exercise.
22. Article 324 does not enable the Election Commission to
exercise untrammeled powers. The Election Commission must
trace its power either to the Constitution or the law made
under Article 327 or Article 328. Otherwise as was held by
this Court in Digvijay Motes Case (supra) (in which one of
us, Mohan,J., was a party) it would become an imperium in
imperio which no one is under our constitutional order.
23. In K.P. Roy’s case (supra) it dealt with the
appointment of Railway employees as Polling or Presiding
Officers. The question was whether the consent of these
officers whose services were requisitioned was necessary?
This has no bearing on the issue under our consideration.
Besides, Railway employees are Government servants.
24. The penalty provisions under the two Acts on which
reliance was placed cannot but relate to those officers who
are covered thereunder and not any person as is urged by the
Election Commission. There can be no question of invoking
the penalty provisions against those employees whose
services the Election Commission cannot requisition. We
are, therefore, unable to appreciate how these provisions
found in two statutes can be of any assistance in
determining the scope and ambit of the power to requisition
the services of employees belonging to different
organisations. In our view, there is no cooperation.
25. The decision of this Court in Sukhdev Singh v.
Bhagatram (1975) 3 S CR 619 and the decision of the
Allahabad High Court in the Case of Shyam Lal Sharma v. Life
Insurance Corporation & Another (1970) 2 FLR 357 are not
relevant for our purpose. The question there was whether
rules or regulations framed in exercise of statutory powers
prohibiting employees from indulging in political activities
and taking part in electioneering etc., could be legally
made. No such question arises here.
26. In view of the foregoing discussion, we hold the
impugned communications issued by the District Election
Officer-cum-District Magistrate, Patna have been rightly
quashed by the High Court of Patna. Equally so, the High
Court of Rajasthan was right in quashing the order of the
District Election Officer, Ajmer dated 8.8.1989. We
therefore, uphold the impugned judgments of the High Courts.
The civil appeals are accordingly dismissed. However, there
shall be no order as to costs.
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