Research › Browse › Judgment

Kerala High Court · body

1999 DIGILAW 259 (KER)

Mukundan v. District Electoral Officer

1999-06-25

K.NARAYANA KURUP, T.M.HASSAN PILLAI

body1999
Judgment :- K. Narayana Kurup, J. This appeal is directed against the dismissal of O.P. No. 6868/96 in which the appellants figure as petitioners. The appellants are employees of the Central Institute of Fisheries Technology which is functioning under an autonomous body known as Indian Council of Agricultural Research (I.C.A.R.), the status of the same as another authority' under Art.12 of the Constitution of India is covered by the decision of the Supreme Court reported in P.K. Ramachandra Iyer v. Union of India (AIR 1984 SC 541). The ICAR, though amenable to the writ jurisdiction as an 'other authority'; its employees are not government servants in the strict sense of the term. According to the appellants they do not fall in the category of 'such staff under the control of the President or the Governors of the States whose services can be requisitioned for election duty under Art.324(6) of the Constitution. In support of their contention they relied on the decision of the Supreme Court reported in Election Commission of India v. State Bank of India (AIR 1995 SC 1078) wherein the apex court held that the services of the Bank employees and employees of the Life Insurance Corporation are not liable to be requisitioned under Art.324(6) of the Constitution since according to the Court they are not "such staff as mentioned in the aforesaid article. The Court held as follows: "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. The expression such staff in Art.324(6) 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, could 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 Arts.74(1) and 163(1), respectively. 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 Arts.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 Government 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 S.159 of the 1951 Act provides that on request from the Regional Commissioner, or the Chief Electoral Officer of the State, the local authority of the State sublimate available to any Returning Officersuch staff as may be necessary to carry out the duties in connection with an election. Merely because of the provisions of the Representation of People Act, 1950 and representation of People Act, 1951 require that they must be officers of Government or local authority, unlike in the case of officers falling under S. 27 of the 1951 Act, it does not, follow that the services of the officers of the State Bank of India could be requisitioned. S.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 but the question here is of power and not discretion. If there is power it may be exercised will 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. Article 324 does not enable the Election Commission to exercise untrammelled powers. It is a question of existence of power and not the manner of its exercise. Article 324 does not enable the Election Commission to exercise untrammelled powers. The Election Commission must trace its power either to the Constitution or the law made under Art.327 or Art.328. Otherwise it would become an emporium in imperia which no one is under our constitutional order". Exts. P1 to P16 are communications received by the petitioners calling upon them to perform election duty in various places in the Mattancherry and Njarakkal Assembly Constituencies and the Ernakulam Parliamentary Constituency. The challenge in the Original Petition was directed against Exts. P1 to P16 and for a declaration that compelling the petitioners to perform election duty and to work under officers of the Government of Kerala who are inferior in ranks, status and pay scale is violative of Arts.14,16 and 19 of the Constitution of India. A learned single judge as per the judgment under appeal dismissed the Original Petition mainly relying on Art.329(b) of the Constitution which is an express bar to interference by courts in electoral matters. Right from Ponnuswamy's case (AIR 1952 SC 64 - N.P. Ponnuswamy v. The Returning Officer, Namakkal Constituency) the consistent view taken by the Supreme Court is that normally all disputes relating to the election are to be resolved by filing an election petition and not otherwise. Interpreting Art.329(b) of the Constitution of India, the Supreme Court in the decision reported in Hari Vishnu Kamath v. Ahmad Ishaque & Ors. (AIR 1955 SC 233) held that "where an election under Art.329(b) is used in a comprehensive sense as including the entire process of election commencing with the issue of notification and terminating with the declaration of election of a candidate, an application under Art.226 challenging the validity of any of the acts forming part of that process will be barred". The learned single judge, relying on the aforesaid observation and observations of like nature, held that the present Writ Petition is not maintainable under Art.226. We are afraid that the learned single judge erred in holding the view that Art.329(b) is a bar to the maintainability of the Writ Petition. It has to be noted that Art.329(b) covers only the actual election process and matters connected therewith and it has absolutely no relevance to performance of election duty by an individual. We are afraid that the learned single judge erred in holding the view that Art.329(b) is a bar to the maintainability of the Writ Petition. It has to be noted that Art.329(b) covers only the actual election process and matters connected therewith and it has absolutely no relevance to performance of election duty by an individual. The duty performed by an individual in relation to election cannot be treated as part of election process. Art.329(b) only excludes the jurisdiction of the Courts to entertain any matter relating to 'election' which can be questioned only by an election petition under the law prescribed by the appropriate Legislature. 'Election' in this context means the entire process culminating in a candidate being declare elected. By reason of this clause, acceptance or rejection of a nomination paper by a Returning Officer cannot be challenged by a suit or an application under Art.226; the only remedy would be an election petition. Likewise any matter which arises while the elections are in progress, viz. at every stage from time of the issue of the notification appointing a date for nomination till the result is declared can be agitated only by an election petition and not otherwise. In the aforesaid view, none of the decisions relied on by the learned single judge is relevant to determine the scope and amplitude of Art.329(b) in the context of performance of election duty by an individual which is squarely covered by statutory provisions under the Representation of People Act and Art.324(6) of the Constitution of India. Since the bar under Art.329(b) is not attracted to the facts of the present case, we are of the considered view that the Writ Petition is maintainable and the learned single judge went wrong in dismissing the Original Petition on that ground. The finding in that regard is hereby vacated. 2. Since the petitioners have already rendered duty pursuant to Exts. The finding in that regard is hereby vacated. 2. Since the petitioners have already rendered duty pursuant to Exts. P1 to P16, the question as to whether their services are liable to be requisitioned in exercise of the powers conferred under Art.324(6) of the Constitution has become academic to be decided as and when their services are really requisitioned on a future occasion, in which event, it will be open for the petitioners to raise all contentions especially the contentions based on Art.324(6) of the Constitution as interpreted by the Supreme Court in Election Commission of India v. State Bank of India (AIR 1995 SC 1078). The appeal is disposed of as above.