S.B. Mhase, J.
1. Rule, made returnable forthwith by consent of the parties and heard.
2. These petitioners have approached this Court under Article 226 of the Constitution of India challenging the orders passed by the District Collectors and District Election Officers appointed for the ensuing Maharashtra State Assembly Election whereby these officers have requisitioned the staff of the Petitioner institutions. These petitions relate to the Thane District, Mumbai District and Mumbai Suburban District areas only and Orders issued by the District Collector and District Elections officers for those areas only.
3. The Petitioner in Writ Petition No. 8052 of 2009 is a public sector undertaking which is established under the Life Insurance Corporation Act XXXI of 1956 having its central office at Yagakeshema, Jeevan Bima Marg, Mumbai 400 021 and branches all over India. Writ Petition Nos. 8039 of 2009, 8089 of 2009 and 8111 of 2009 are filed by the cooperative banks established under the Maharashtra Cooperative Societies Act, 1960. They are under the regulatory control of the Reserve Bank of India. They too have their branches within the area of operation as per the permission granted by the Reserve Bank of India.
4. At this stage, we need not go into the figures of the requisitioned staff of each of the Petitioner - organisation, that will be dealt with in subsequent part of this judgment. The common ground which is raised in these petitions is that the staff belonging to the Petitioners cannot be requisitioned under the provisions of the Representation of Peoples of India Act, 1951 (hereinafter for short 'the Act of 1951') read with Article 324 of the Constitution of India. In support of the said contentions, the Petitioners have relied upon a judgment of the Apex Court in the matter of the Election Commission of India v. State Bank of India Staff Association, Local Head Office Unit, Patna and Ors. reported in : 1995 Supp(2) SCC 13. Relying upon the said judgment it was sought to be contended that the staff of the Petitioners cannot be requisitioned for election duty. In reply to this, learned Counsel appearing for the Election Commission submitted that Section 159 of the Act of 1951 which was considered by the Apex Court in the above referred judgment has undergone a sea change by the subsequent amendment, and therefore the said judgment is not applicable after the said amendment.
5. After going through the said judgment we find that Section 159 as it stood earlier was as under:
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. After amendment Section 159 reads thus:
159. Staff of certain authorities to be made available for election work. - (1) The authorities specified in Sub-section (2) 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.
(2) The following shall be the authorities for the purposes of Sub-section (1), namely:
(i) every local authority;
(ii) every university established or incorporated by or under a Central Provincial or State Act;
(iii) a Government company as defined in Section 617 of the Companies Act, 1956;
(iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.
7. Thus, amendment in Section 159 has been carried out by Act No. 12 of 1998 which came into effect from 23rd December 1997. As against that, judgment of the Apex Court which is referred to above has been delivered in the year 1995 arising from an order dated 21st May 1993 of the Patna High Court. On a plain comparison of the preamended and amended Section 159, we find that Section 159 as was considered by the Apex Court has undergone a sea change and especially by Sub-section (2) now the following authorities have been included in the said Section.
(i) every local authority;
(ii) every university established or incorporated by or under a Central Provincial or State Act;
(iii) a Government company as defined in Section 617 of the Companies Act, 1956;
(iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.
8. Though the Petitioners may not be falling in first three classes, petitioners are covered under Sub-section 2(iv) above, namely, any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government. The Petitioner - Life Insurance Corporation of India has admittedly been established under ... the Life Insurance Corporation Act XXXI of 1956 and rest of the Petitioners, namely Cooperative Banks who are carrying on their business of banking, have been established under the Maharashtra Cooperative Societies Act, 1960 and regulated under the Banking Regulations Act, 1949 as is applicable to the Cooperative Banks. In so far as the LIC and the Cooperative Banks are concerned, in our view, the same would come within the sweep of Sub-section 2(iv) of Section 159 of the Act of 1951. However, Shri. S. M. Oak, the learned Counsel appearing for the Petitioners in Writ Petition Nos. 8039 of 2009, 8089 of 2009 and 8111 of 2009, i.e., the Cooperative Banks assailed the very applicability of Section 159 to the Cooperative Banks and made submissions which we would deal with in the latter part of this judgment.
9. The principal submission on behalf of the Petitioners as advanced by the learned Senior Counsel R. A. Dada was that the mandate of Section 159 has not been followed by the Respondents as has been observed by the Apex Court in the matter State Bank of India Staff Association (supra) and as per the guidelines of the Election Commission. He submitted that the requisition under Section 159 has been made in the present petitions by the District Collectors and the District Election Officers. He submitted that, the officer who has issued the requisition letters is not empowered under Section 159. In short, the submission is that the Regional Commissioner appointed under Clause (4) of Article 324 of the Constitution of India or the Chief Electoral Officer of the State can only requisition the staff under Section 159 and the District Election Officers and District Collectors are not empowered by this section to issue requisitioning orders and requisition the staff.
It is further submitted that there is nothing on record to indicate that the orders have been issued by the Chief Electoral Officer of the State of Maharashtra and/or the Regional Commissioner appointed under Clause (4) of Article 324 of the Constitution of India. In reply to this submission, learned Counsel for the Respondents though initially tried to rely upon Section 159 of the Act of 1951, has submitted and which has also been contended in the affidavit in reply that the power to requisition the staff flows from Section 26 of the Act of 1951. It is submitted that the power which is possessed by the District Election Officer under the said section is independent of Section 159 of the Act of 1951. He submitted that therefore in the facts and circumstances of the present case Section 159 is not attracted and it is Section 26 which will govern the orders passed by the District Election Officer.
10. Learned Counsel for the Respondent also tried to rely upon Section 13AA(4) of the Representation of Peoples Act, 1950 (hereinafter for short 'the Act of 1950'). The submission on behalf of the Respondents is that Section 26 of the Act of 1951 read with Section 13AA of the Act of 1950 confers powers on the District Election Officer to requisition the staff as per the orders issued by him which are impugned in the present petitions.
In view of the said submission it is relevant to reproduce Section 26 of the Act of 1951. It is as follows:
26. Appointment of presiding officers for polling stations.
(1) The district election officer shall appoint a presiding officer for each polling station and such polling officer as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in our about the election:
Provided that if a polling officer is absent from the polling station, the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in our about the election, to be the polling officer during the absence of the former officer, and inform the district election officer accordingly;
Provided further that nothing in this subsection shall prevent that district election officer from appointing the same person to be the presiding officer for more than one polling station in the same premises.
(2) A polling officer shall, if so directed by the presiding officer, perform all or any of the functions of a presiding officer under this Actor any rules or orders made there under.
(3) If the presiding officer, owing to illness or other unavoidable cause, is obliged to absent himself from the polling station, his functions shall be performed by such polling officer as has been previously authorised by the district election officer to perform such functions during any such absence.
(4) References in this Act to the presiding officer shall, unless the context otherwise requires, be deemed to include any person performing any function which he is authorised to perform under Sub-section (2) or Sub-section (3), as the case may be.
11. Section 13AA of the Act of 1950 reads thus:
13AA. District Election Officers.
(1) For each district in a State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a district election officer who shall be an officer of Government:
Provided that the Election Commission may designate or nominate more than one such officer for a district if the Election Commission is satisfied that the functions of the office cannot be performed satisfactorily by one officer. (2) Where more than one district election officer are designated or nominated for a district under the proviso to Sub-section (1), the Election Commission shall in the order designating or nominating the district election officers also specify the area in respect of which each such officer shall exercise jurisdiction.
(3) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the preparation and revision of the electoral rolls for all Parliamentary, Assembly and Council constituencies within the district.
(4) The district election officer shall also perform such other functions as may be entrusted to him by the Election Commission, and the Chief electoral officer.
Since the reliance has been placed only on Sub-section (4) we only underline the said part of the section.
12. Section 159 draws its source from Article 327 of the Constitution of India and it is an independent provision than Article 324(6). Article 324(6) permits the Election Commission to make a request to the President, or the Governor of the State, when so requested by the Election Commission, to 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).
13. Thus, Article 324(6) permits a requisitioning of the staff for the election work at the request of the Election Commission by the President or the Governor of the State. However, this will cover the staff which is under the President or the under the Government of the State, namely, the central government employees or the State Government employees. This aspect has been clarified by the Apex Court in paragraph 20 of the cited (supra) judgment, when the Apex Court considered the meaning of 'such staff' appearing in the said section. Following passage from the said judgment is relevant:
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 contradiction 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 Governor concerned 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.
14. We have dealt with this aspect because one of the submissions on the part of the Respondents was to rely upon Article 324(6) to say that they have the power to requisition the staff under Article 324(6) of the Constitution of India. But as we have pointed out though Article 324(6) operates so far as the Central and State Government employees are concerned, it cannot be extended to the authorities of which staff can be requisitioned in view of the provision of Section 159. In short, we find that Section 159 is a separate and independent provision than Article 324(6) and to make such provision Article 327 is the source for legislative competence. Therefore, attempt made by the learned Counsel for the respondent to rely upon Article 324(6) does not impress us in any manner and more specifically in view of the observations of and the law laid down by the Apex Court in the judgment cited (supra).
15. In view of the submissions of the learned Counsel for the Respondents we have to find out whether under Section 26 of the Act of 1951 there is a power to requisition the staff of the Petitioner - institutions, independently of Section 159. The obvious answer would have to be No. Section 26 gives power to the District Election Officer to appoint a Presiding Officer for each polling station and such polling officers or officer as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election. Therefore this is only a power to appoint the Presiding Officer for polling stations and the polling officers. However, for making such appointment, from what source the District Election Officers should draw the officers has not been provided in the said section. Since no provision is made in the said section as to from which source, the District Election Officer can appoint the said officers, such power cannot be read into said section. If such power is read in Section 26, assuming for the moment it is so, Section 159 of the Act of 1951 becomes redundant. It is a basic principle of interpretation of the statutes that a provision in the statute should not be interpreted in such a manner which will render the other provision or provisions from the said statute as redundant. Therefore, we are of the view that, that the submission of the learned Counsel for the Election Commission that Section 26 of the Act of 1951 gives such power to requisition the staff, is without any merit.
16. Next question to be considered is whether Section 13AA of the Act of 1950 confers any power. Section 13AA deals with District Election Officers and Sub-section (4) of the said section provides that the District Election Officers shall also perform such other functions as may be entrusted to him by the Election Commission, and the Chief Electoral Officer. Therefore reading Sub-section (4), the District Election Officer may perform any other duties and functions other than that which are provided under Section 13AA provided the Election Commission and the Chief Electoral Officer of the State has entrusted those functions to him. However, what is important to note is that this provision of delegation of powers from the Act of 1950 cannot be read into the Act of 1951. The purpose and object of the Act of 1950 is to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to the House of the People and the Legislatures of State, the qualifications of voters at such elections, the preparations of electoral rolls [the manner of filling seats in the Council of States to be filled by representatives of Union territories, and matters connected therewith. Therefore, the delegation of powers from the Election Commissioner or the Chief Electoral Officer has to be considered in the light of the object of the Act of 1950, for which the provisions have been made by Parliament. The object of Sub-section (4) of Section 13AA of the Act of 1950 is not to provide for the delegation of powers in respect of the acts to be done under the Act of 1951. One cannot read provisions of one Act into another Act unless the Legislature by specific provision made to that effect has stated that the provisions of one Act can be read into the other Act. Therefore, unless there is a separate provision, the provisions of one Act cannot be read into another Act. Such a provision we do not find in the Act of 1951.
17. Therefore the assistance of Sub-section (4) of Section 13AA of the Act of 1950 cannot be taken by the respondents in order to justify the orders which according to them have been passed under Section 26 and not under Section 159.
18. Apart from that, assuming for a moment that Sub-section (4) of Section 13AA of the Act of 1950 permits the Respondents to pass such orders, still the Election Commission and the Chief Electoral Officer have not passed any order entrusting or delegating the powers to the respondents. Therefore, viewed from any angle the argument advanced on behalf of the respondents is misfounded and would therefore have to be rejected.
19. Apart from this, what is important to be noted is that even this point is no more resintegra for this Court as the said issue has been dealt with by the Apex Court in the judgment (supra). It has to be noted that in the said judgment the staff of the State Bank of India was requisitioned. The State Bank of India could not be termed as a local authority under Section 159 as it then stood. Therefore to justify the act of requisitioning the Respondents had taken recourse to Section 26 of the Act of 1951. So dealing with that the Apex Court has observed in paragraph 22 that:
22. Merely because the provisions of the two Acts require that they must be officers of the Government or local authority, unlike the case of officers falling Under Section 26 of 1951 Act, it does not in our opinion, follow that the 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 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 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.
20. Thus the Apex Court having found that Section 26 of the Act of 1951 is not attracted, ultimately the requisition was not approved by it. Thus, viewed from any angle, we find that the submission made on behalf of the respondents is misfounded and has been advanced loosing sight of the fact that the Apex Court has already dealt with this issue and laid down the law which is binding as against the respondents.
21. We have noted that under Section 159 of the Act of 1951 the power to requisition the staff is with the Regional Commissioner appointed under Clause (6) of Article 324 or the Chief Electoral Officer of the State. Since we have noted that the orders requisitioning the staff of the Petitioners have been issued by the District Election Officers, we wanted to know from the Respondents as to whether there was any delegation of powers to the District Election Officers under any of the provisions of the Act. We also wanted to know from the respondent as to whether any orders for requisitioning the staff have been passed by the Regional Commissioner appointed under Clause (6) of Article 324 or by the Chief Electoral Officer of the State. Learned Counsel for the Respondents made a statement that the President has not appointed any Regional Commissioner under Article 324(6) of the Constitution of India. He further stated that the Chief Electoral Officer of the State of Maharashtra has not requisitioned any staff invoking Section 159 of the Act of 1951 and thirdly he made a statement that the power to requisition the staff under Section 159 of the Act of 1951 has not be delegated to the District Election Officer or to any other officer. Since these statements came orally we asked the respondent to submit it in writing before us. Accordingly, memo or pursis has been placed on record which is signed by the Joint Chief Electoral Officer and the learned Counsel for the Respondents making the above statements. Thus, it is clear that the orders requisitioning the staff, which are to be issued under Section 159 by the Chief Electoral Officer in the State of Maharashtra have not been so issued. Since the Regional Commissioner has not been appointed under Article 324(6), we need not deal with that aspect. The ultimate result is that all the orders passed by the District Election Officers are in breach and violation of Section 159 of the Act of 1951. Since we have noted the pursis and the memo, we also asked the learned Counsel for the Respondents whether the facts stated in the said memo are only applicable to the constituencies with which the Petitioners are concerned or it is the state of affairs so far as all the assembly constituencies in the State of Maharashtra. On instructions of the Joint Chief Electoral Officer who is present in Court, it was reported that this is a state of affairs through out the State of Maharashtra. Resultantly, all the orders which have been passed by every District Election Officer in the State of Maharashtra requisitioning the staff are in breach of Section 159 of the Act of 1951. We are issuing this declaration in the above petitions only for the purpose of avoiding the flood of petitions to this Court after the instant writ petitions are disposed of. Incidentally, the petition filed by the LIC concerns the requisition in the entire State. Therefore, we make it clear that it is not necessary for every institution or organisation to approach this Court, after this judgment and all the orders passed by the Respondents and more specifically by the District Election Officers in the State of Maharashtra in breach of Section 159 are quashed and set aside. So also the orders which are under challenge before this Court are also quashed and set aside.
22. Though the learned senior counsel Shri. R. A. Dada appearing for the LIC and Shri. Y. R. Naik, learned Counsel appearing for other Cooperative banks did not seriously question the power of the Respondents to requisition the staff of their respective institutions and also did not dispute the applicability of Section 159 to their respective institutions, learned Counsel for the Petitioner Shri. S. M. Oak in Writ Petition Nos. 8039 of 2009, 8089 of 2009 and 8111 of 2009 questioned the very applicability of Section 159 to the cooperative banks and consequently the requisitioning of its staff on the said ground. It was the submission of Shri. Oak that since the power of Parliament to legislate in so far as the Representation of Peoples Act is concerned is traceable to Article 327 of the Constitution of India, Section 159 of the Act of 1951 could not travel beyond Article 326(4) so as to include the categories of staff beyond what is contemplated under Article 326(4), namely, the Central Government and State Government employees, and therefore resorting to Section 159 to requisition the staff of the cooperative banks would result in violation of Article 327 of the Constitution of India.
The second submission of the learned Counsel Shri. Oak was that though Section 159 of the Act of 1951 has undergone a substantial change whereby Sub-section 2(iv) of the said section the staff of the authorities and institutions satisfying the conditions mentioned therein could be requisitioned. It was the submission of the learned Counsel Shri. Oak that the authority or the institution has to satisfy all the conditions mentioned in Clauses (a), (b) & (c) of the said Sub-section 2(iv) together so as to come within the sweep of said Sub-section 2(iv). It was further submitted by Shri. Oak that if they are not taken together and the conditions are applied separately, it would result in a sweeping power being vested with the Respondents whereby even the staff of the private limited companies can be requisitioned as they all are controlled by some regulatory measures by the Central Government or the State Government and would result in the Election Commission becoming an 'imperiom in imperio'. It was further submitted by Shri. Oak that the cooperative banks though established under the Maharashtra Cooperative Societies Act, 1960, are not funded by the State Government and are therefore beyond the scope of Section 159 of the Act of 1951.
23. Taking the first submission of the learned Counsel Shri. Oak, it would be pertinent to note that the Petitioners in the said Writ Petitions have not challenged the vires of Section 159 of the Act of 1951 as being unconstitutional on the touchstone of Article 324 of the Constitution of India. Hence in the absence of such a challenge the question that arises is as to whether it is open for the Petitioners to contend that Section 159 of the Act of 1951 transgresses the provisions of Article 324 of the Constitution of India. Be that as it may, though Article 324 of the Constitution of India is the plenary power of the Election Commission in the matter of conduct of elections, in so for Article 324(6) of the Constitution of India is concerned the same covers only the Central and the State Government employees. Hence, by the Act of 1951 under Section 159 as it initially stood the staff of the local authorities were covered. However by an amendment in the year 1997, the Legislature, i.e., the Parliament. cast the net wider so as to include the staff of the various institutions mentioned therein. In our view Section 159 of the Act of 1951 is an independent provision by resorting to which the Election Commission can requisition the staff other than the employees of the Central and State Governments. There is, therefore, no inconsistency between the said provisions. Moreover, the power under Section 159 is to be exercised by the Regional Commissioners or the Chief Electoral Officer of the State who are representatives of the Election Commission in the matter of conduct of elections and on the said ground also there is no inconsistency.
24. In so far as the second submission of learned Counsel Shri. Oak is concerned, we do not find any merit in the same. In so far as the Cooperative Banks are concerned the same are established under a State Act, namely, the Maharashtra Cooperative Societies Act, 1960 and the State Government invariably contributes to the share capital. It is an undisputed fact that the cooperative banks are under the administrative control of the State Government through the Registrar of the Cooperative Societies in so far as their management is concerned. In so far as the banking operations are concerned, it is undisputed that they are under the regulatory control of the Reserve Bank of India under the Banking Regulation Act, 1949. In our view, therefore, they satisfy the test laid down in Sub-section 2(iv) of Section 159 of the Act of 1951. As regards the interpretation of Sub-section 2(iv) is concerned, since the Petitioners represented by learned Counsel Shri. Oak, i.e., the Cooperative banks, satisfy the test laid down in subsection 2(iv) and as we have recorded a finding to that effect, we do not feel the necessity to embark upon the exercise as to whether Clauses (a) to (c) have to be satisfied cumulatively for the applicability of the said Sub-section 2(iv) or not. Assuming that the said clauses have to be satisfied together as held by us, the cooperative banks satisfy the condition laid down in Sub-section 2(iv). We therefore do not find any merit in the submission of the learned Counsel for the Petitioners Shri. Oak that the Cooperative Banks are not covered by Section 159 of the Act of 1951.
25. Having found that the action of the respondents in requisitioning the staff is legally not sustainable, we would like to deal with the factual position and in what manner the power has been exercised by the officers of the respondents violating the judgment of Apex Court (supra) and even the guidelines issued by the Election Commission to that effect.
26. Though in each petitions there are figures of the requisitioned staff, we only take the facts in the petition filed by the Life Insurance Corporation of India. Though we would deal with the facts and figures as given in the petition, it would be appropriate to make reference to the following observations of the Apex Court in State Bank of India Staff Association (supra).
May be, to conduct the elections many polling stations are set up. Consequently, the services of many persons may be required. May be 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 with circumspection and minimum staff may be requisitioned
27. Therefore since we have found that after the amendment of Section 159 of the Act of 1951 there is a power to requisition the staff, it is necessary to consider in what manner the power should be exercised. The underlined portion from the observations of the Apex Court shows that if there is a power, it may be exercised with circumspection and minimum staff may be requisitioned. Therefore, in any circumstances the power cannot be utilized in a way to disrupt the business of the petitioners or the institutions similarly situated like the petitioners.
28. It appears that probably the Election Commission has taken a cognizance of these observations of the Apex Court and therefore in the Handbook which is for the Returning Officers, the Election Commission has laid down guidelines, which are contained in Chapter III of the said Handbook.
POLLING PERSONNEL.
2.1 For the purpose of efficient control of the polling personnel and of economy in expenditure on traveling allowances, etc., each district, as far as practicable, should use its own personnel. All the available personnel working under the State and Central Government officers in the State, as well as under the local bodies, have to be mobilized and an assessment of the availability of the requisite number has to be made well in advance. This requires forethought and planning. The Commission has already asked Central Government and State Governments, who, in turn, have issued instructions to all heads of departments and offices of the Central and State Governments to furnish to the District Election Officer data of number of officers in different categories. It would facilitate your task of making suitable selection of polling personnel. As the polling parties are to be comprised of a proper mix, to the extent possible, of Central Government/Central PSU and State Govt/State PSU employees, separate database for such officials are to be prepared by you. Some of these Central Government officials may also be deployed as Micro Observers.
2.2 The database of the above officials should also contain the AC number and name, Part number and the Serial Number of the electoral roll in which he has been enrolled in addition to his residential address and address of office where posted. The sponsoring authorities are expected to discharge a greater role to ease the burden on the DEO/RO especially in ensuring delivery of appointment letters and other urgent communications from the DEO/RO to their own officials. All the sponsoring authorities may be asked to appoint a nodal officer with telephone facilities that could be contacted by the election authorities in time of need.
2.3 Section 159 of the R.P. Act, 1951 has been amended by the R.P. (Amendment) Act, 1998 (Act No. 12 of 1998). According to the said Section 159, as amended, t he following authorities, when so requested by the Chief Electoral Officer of the State, shall make available to nay Returning Officer such staff as may be necessary for the performance of any duties in connection with an election:
(i) every local authority;
(ii) every university established or incorporated by or under a Central Provincial or State Act;
(iii) a Government company as defined in Section 617 of the Companies Act, 1956;
(iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.
In view of the above amendment to law, staff of any of the above mentioned authorities, companies, institutions, concerns or undertakings could be requisitioned and put on election duty, in addition to employees of Central and State Governments.
2.3 In case where employees of local bodies, namely, Municipalities, Panchayat Samitis, Zila Parishads, etc., are engaged for polling duties at a polling station, it need be ensured that the Presiding Officer and the Sr. Polling Officer of a polling station (who in the event of absence of Presiding Officer is to function as Presiding Officer) should not both be the employees of local authorities. Further except the first polling officer, who does the identification, the other polling officers could be employees of local authorities. Bank employees may be drafted to the minimum extent possible, only in a constituency, where sufficient number of Government Employees are not available and/or in emergent circumstances such as strikes, etc., by the government employees. Care should be taken to see that normal functioning of the banks do not get disputed; and bank employees drafted on election duty may, whenever possible, be kept on the reserve and only in unavoidable circumstances, should they be put on duty.
The Commission has exempted following persons from drafting for election duty The officers and staff of following departments will not be requisitioned for deployment of election duty:
(a) The Officers and staff of following departments will not be requisitioned for deployment of election duty:
(i) Senior Officers of the Indian Forest Service.
(ii) Doctors and Compounders working in veterinary hospitals.
(iii) Officers working in Grade - B (Cattle Extension Officer) in veterinary hospitals.
(iv) Medical Practitioners.
(v) Territorial Staff of Forest Department.
(vi) All India Radio.
(vii) Doordarshan.
(b) The operations / technical staff of BSNL, MTNL, UPSC and educational institutions will be requisitioned for election duty only in unavoidable circumstances.
(c) Officer / Staff of Commercial Bank located in rural area and if happens to be a single officer branch, need not be deployed.
It is clarified that while drawing persons for election duties, you should explore the possibility of asking for persons from all such Corporations/PSUs in the area instead of asking from one Corporation /PSU only so that it is not too much of a strain on a particular organisation.
28. We reproduce the following chart from Writ Petition No. 8052 of 2009 which is filed by the Life Insurance Corporation of India.
Sr. No .
Branch Office Code
No. of employees whose data was given
No. of employees who have received election Duty orders.
Name of the District Election Officer.
Address.
1.
935
78
73
Shri. Vishwas Patil
153 Dahisar Assembly Constituency
2.
891
62
58
As above
160. Kandivli East Vidhan Sabha Office.
3.
89C
52
42
As above
Hemraj High School, Borivli(E)
4.
89G
36
36
As above
Fatima High School Vidyavihar (W)
5.
890
54
48
As above
BMC Prabhodhankar K.S .Thakeray Natyamandir, Borivali(W)
6.
888
58
38
As above
163, Goregaon Vidhan Bhavn
7.
887
63
53
167, Vile Parle Vidhan Sabha
8.
9N
59
30
As above
Hemraj High School
9.
88A Mulund
45
41
10
88C Ghatkopar
38
38`
11
88E Ghatkopar
41
40
12.
88Q Chembur
22
22`
13.
889 Vikhroli
48
44
14.
894 Mulund
63
58
15.
928
56
56
16.
939
59
54
17
91R
58
53
18
88M
40
40
On perusal of this chart it will be noticed that in most of the cases more than 80% of the available staff at these branches have been requisitioned. That means if the orders of the Election Officers are to be obeyed some of the branches would be required to be closed during the training because the staff is being requisitioned for the period of 5 days so as to train them for being put on election duty. This shows that there is non application of mind and therefore the exercise of power by the Election Officers is absolutely arbitrary. The guidelines which are issued by the Election Commission have been ignored by them while exercising the powers. Their conduct appears to be to ride roughshod over everything so as to complete the elections. Arbitrariness in the exercise of powers is writ large in so far as the requisitions made in the other petitions also.
29. We are told at the bar and the list has been given of the banks which have branches in the Thane area. What we find is that though there are near about 50 banks in Thane area, the staff has however been requisitioned only from 5 banks who are before this Court. In fact, the requisitioning of the staff of those institutions which are covered under Section 159 of the Act of 1951 should be considered by the respondents in a manner so that the minimum staff from each of the institutions is taken so as to satisfy the requirements of the respondents. In our view if minimum of the staff of the institution in consultation with the Nodal officers of each institution is requisitioned, neither the business of the institution will be affected nor there will be a problem for the election machinery to conduct the elections. However we regret to note that the selectively some institutions are selected ignoring the fact that it is likely to result in hardship in the business of the said institutions. We cannot forget that all these institutions are service providers to the public. Therefore, without affecting their business the work of elections has to be completed. Therefore, in the said context the Apex Court has stated that the power even though possessed by the respondents shall be used with circumspection and minimum staff may be requisitioned.
30. The Respondents have also placed on record the figures in respect of availability of the staff. We find from the guidelines that the respondents are entitled to requisition 125% staff required for election duty and beyond that they cannot requisition. We do not desire to go into the said aspect as to how much staff is required and how much staff is to be requisitioned. In our view since the power is of the Chief Electoral Officer of the State of Maharashtra to requisition the staff, he should take into consideration the availability of the staff from the State Government and Central Government and thereafter keeping in mind the guidelines prescribed, may requisition the staff of the institution which are covered under Section 159 of the Act of 1951 in consultation with the Nodal officers of the said institutions keeping in mind the guidelines contained in Chapter III of the Handbook of the Returning Officer and also the judgment of the Apex Court as has been pointed in the matter of State Bank of India Staff Association (supra).
31. Though we have presently quashed and set aside the orders of requisition, it will be open for the Chief Electoral Officer of the State of Maharashtra, after following the due procedure to requisition the staff. We thus make it clear that the Chief Electoral Officer of the State of Maharashtra is at liberty to issue a legal and valid requisition staff of the institutions covered under Section 159 of the Act of 1951 and act in accordance with law. Hence we pass the following order.:
O R D E R:
(1) All the above Writ petitions are allowed.
(2) The orders of the requisition of the staff passed by the respondent - District Election Officers are hereby quashed and set aside.
(3) We also quash and set aside the similar orders passed by the District Election Officers in the State of Maharashtra.
(4) So far as the Writ Petition No. 8052 of 2009 filed by LIC is concerned, each of the orders of the District Election Officers passed through out the State of Maharashtra are hereby quashed and set aside.
(5) We hope and expect that in view of the infirmities pointed out by us in requisitioning the staff of the various institutions covered under Section 159, the Respondents will take appropriate steps to pass the legal and valid orders by following the procedure.
(6) We make it clear at the cost of repetition that it will be open for the Chief Electoral Officer of the State of Maharashtra to issue legal and valid requisition orders for staff of the organisations covered by Section 159 of the Act of 1951 and act in accordance with law.
(7) Rule made absolute accordingly.