Raghu Nath v. District Magistrate/District Election Officer
2002-09-06
S.N.SRIVASTAVA
body2002
DigiLaw.ai
JUDGMENT : S.N. Srivastava, J. The present petition has been filed for the relief of a writ of certiorari quashing the order of transfer on deputation contained in Annexure-1 and further a writ of mandamus commanding the opposite parties not to give effect to the order contained in Annexure-1. The Petitioner Nos. 1 to 11 are serving on the post of Instructor. Foreman and Assistants under the Director, Government Central Textile Institute Kanpur, Petitioners who are arrayed as Petitioner Nos. 12 to 17 are serving on the posts of Instructors under the Director, Training and Employment U. P. Lucknow and Petitioners who are arrayed as Petitioner Nos. 18 to 22 are ministering on the posts of Lecturers under the Principal, Government Polytechnic, Kanpur. 2. A composite petition has been filed by all the Petitioners canvassing the validity of the order 29.8.2002 passed by the District Magistrate/District Election Officer, Kanpur Nagar in respect of one Sri Raghunath arrayed as Petitioner No. 1 in the instant petition whereby the aforestated Petitioner has been deployed on election duties for the period of general election to the Legislative Assembly of Jammu and Kashmir scheduled to be held in four phases, i.e., on 16.9.2002, 24.9.2002, 1.10.2002 and 8.10.2002. The aforesaid deployment is studded with certain incentives and special remuneration enumerated in the order itself. It is stated by the learned Counsel that similar orders have been made in respect of other Petitioners also and to avoid bulk of the petition, they have not been annexed to the petition. 3. Main feature constitutive of the grievances of the Petitioners is that the Petitioners have been drafted for election duty in Jammu and Kashmir sans their consent and to prop up his contention, the learned Counsel has placed credence on Government Order dated 19.11.1954. It has also been contended by the learned Counsel that the names of the Petitioners have been selectively picked out for deployment on election duty in Jammu and Kashmir. 4. Sri Ashok Nigam, counsel appearing for the Election Commission, in opposition, contended that the State Government acting on the request of the Election Commission to spare and make available the requisite staff for being deployed on election duty in Jammu and Kashmir, passed the orders impugned herein in exercise of the powers as envisaged under Article 324(6) of the Constitution of India.
He denied any arbitrariness in the selection of the Petitioners and vehemently contended that the they have been selected on the basis of their technical know-how in handling the E.V.M. and also considering their past experience and practical knowledge in that, they have already served in the previous elections held in the State of Uttar Pradesh as Presiding Officers. The learned Counsel has unraveled the entire list of those who have been deployed on election duty in the State of Jammu and Kashmir and a split-up thereof, unfolds the correct picture and it is that out of 27 districts, 2534 employees have been screened for being deployed on election duty and out of them, 160 employees are Urdu teachers and 140 are Urdu translators. He further submitted that 240 employees including Petitioners have been screened for election duty in Jammu and Kashmir on the basis of their technical know-how in handling the E.V.M. The learned Counsel further clarified that from Kanpur alone, 100 Urdu teachers have been deployed on election duty in Jammu and Kashmir. The learned standing counsel, in his turn, put weight to the arguments advanced by Sri Nigam appearing for the Election Commission and lent full support to the impugned order stating that the order was rightly passed in exercise of powers under Article 324(6) of the Constitution of India. 5. Article 326 (1) and (6), being germane to the controversy involved in this petition, may be excerpted below for proper appraisal of the respective submissions of the learned Counsel for the parties : 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, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). x x x x x x x (6) 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).
x x x x x x x (6) 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). The facts beyond the pale of controversy were that Jammu and Kashmir assembly elections are scheduled to be held in four Phases, i.e., 16.9.2002, 24.9.2002, 1.10.2002 and 8.10.2002. It also brooks no dispute that the Election Commission had made a formal request to the State of U. P. to spare such staff for being deployed on election duty in Jammu and Kashmir Assembly Election and acting on the request made by the Election Commission, the Governor in exercise of powers under Article 324(6) passed the orders impugned herein. The learned Counsel for the Petitioners has filed supplementary affidavit annexing thereto order passed by the Chief Election Officer, U. P. dated 9.8.2002 and it is discernible from paragraph 3 of the said order that Urdu teachers, Urdu translators and other employees who are equipped with the know-how of handling the E.V.M. (Master Trainer) are required for smooth conduct of the assembly election in the Jammu and Kashmir. It is, in no Delphic terms, envisaged in the order that ladies, the persons of higher age and such persons who are not keeping good health have been spared of election duty in Jammu and Kashmir. Concededly, the Petitioners are serving in different institutions imparting technical education holding posts of instructors, teachers and some of them are lecturers in electronic discipline and having due regard to their technical know-how and qualification, they have been rightly selected for deployment on election duty in the Jammu and Kashmir. 6. The learned Counsel for the Petitioner as stated supra, has relied upon Government Order dated 19.11.1954 a perusal of which crystallises the picture that it deals with deputation of employees to the Central Government, other State Government and Union Territories. The minimum period for deputation covered by this G.O. is three years which may be extended. Having gone through the contents of this G.O., I am of the view that this G.O. is unavailing to the Petitioners inasmuch as it is not attracted for application to the present case.
The minimum period for deputation covered by this G.O. is three years which may be extended. Having gone through the contents of this G.O., I am of the view that this G.O. is unavailing to the Petitioners inasmuch as it is not attracted for application to the present case. It is worthy of notice here that orders for deployment on election duty were passed by the Governor acting on the request of the Election Commission in exercise of powers under Article 324 of the Constitution of India and the deputation of the Petitioners for election duty should not be confused with deputation as envisaged in the G.O. (supra) and the contention of the learned Counsel for the Petitioner that under the Government Order, consent of the concerned deputationist is a pre-requisite condition does not commend to me for acceptance. It is not disputed that in exercise of powers under Article 324(1), the Election Commission could request any State to make available staff, which may be necessary for discharge of functions conferred on Election Commission. The Election Commission in addition to the staff of the State where the elections are going to take place, may request to the other States as well. There is no such prohibition or restriction that only the employees of particular State may be assigned for election duty by the Commission for discharge of functions conferred on Election Commission by Clause (1) of Article 324 of the Constitution of India. The word "a State" is of pivotal important in this regard. 7. Sri Ashok Nigam, learned Counsel for the Election Commission has cited certain decisions to bring home the point. The first decision cited by the learned Counsel is a decision pronounced by Delhi High Court in L.P.A. No. 96 of 1996 and C. M. No. 1002 of 1996 where this question was dealt with in the matter of Municipal Corporation of Delhi. The Delhi High Court reckoned with the arguments and held that the State could make available the Staff of Local authorities for election duty in the State of Jammu and Kashmir. The Patna High Court was seized of similar question in Janki Saran Prasad and Ors. v. State of Bihar and others, C.W.J.C. No. 339 of 1983.
The Delhi High Court reckoned with the arguments and held that the State could make available the Staff of Local authorities for election duty in the State of Jammu and Kashmir. The Patna High Court was seized of similar question in Janki Saran Prasad and Ors. v. State of Bihar and others, C.W.J.C. No. 339 of 1983. In this case, the power under Article 324(6) of the Constitution was elaborately considered and it was held that the State Government could issue appropriate orders after receiving the request from the Election Commission. In the present case, the Governor has already passed appropriate orders after receiving request from the Election Commission. 8. On the aspect of discrimination, it is worthy of notice that no such material has been brought to bear by the Petitioners to sustain their claim of having been discriminated for deployment on election duty and there is no element of arbitrariness discernible in the impugned order passed by the Governor. It is not repudiated that the Petitioners are persons equipped with technical know-how in handling E.V.M. and it is more than apparent from the materials on record that they have been selected on the basis of requirements of the Election Commission for election duty in the State of Jammu and Kashmir and to facilitate the election in which E.V.M. has to be extensively used and in the circumstances, the order passed by the Governor was perfectly justified which was passed in consonance with the provisions of Article 324 of the Constitution of India. The allegations of 'pick-and-choose' have been made vaguely and disjointedly without there being anything on the record to sustain such allegations. 9. As a result of foregoing discussions, the petition fails and is dismissed in limine. Before parting with the case, it may be observed that the Election Commission shall take all possible steps to provide personal security to each of the Petitioners and other persons deployed on election duty in Jammu and Kashmir assembly election. Let a copy of this order be supplied to Sri Ashok Nigam learned Counsel for the Election Commission for necessary information to the Commission and consequent appropriate action in the matter forthwith.