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CASE NO.: Appeal (civil)  5659 of 2007

PETITIONER: Election Commission of India

RESPONDENT: St. Mary’s School and Others

DATE OF JUDGMENT: 06/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5659 OF 2007 [Arising out of S.L.P. (Civil) No. 21963 of 2004]

S.B. SINHA, J :

1.      Leave granted.

2.      A short but interesting question, as to how conflict in two  constitutional rights should be balanced,  is involved in this appeal which  arises out of a judgment and order dated 11.08.2004 passed by a Division  Bench of the Delhi High Court in Writ Petition (Civil) No. 1076 of 2003.

3.      Respondent No.1 is an unaided school.  It is governed by the  provisions of the Delhi School Education Act, 1973 (for short, ’the Act’) and  the rules framed thereunder.  It filed a writ petition in public interest,  questioning the action of the appellant and the respondents Nos. 2 to 5  herein as regards utilizing the services of the teachers of the Government  schools for various purposes during school timings, as a result whereof the  students reading in the said schools are deprived of obtaining  instructions  from their teachers  during such period.  In the writ petition it was pointed  out that  the absence of teachers occur due to their deployment for non- educational purposes; and as the teaching and administrative staff of these  schools have been used by the State agencies as well as the appellant herein  for various other duties outside school during school hours including:     

?       Polling duties to general election to Lok Sabha ?       Polling duties to general election to Delhi Legislative  Assembly

?       Polling duties to MCD elections

?       Gurudwara election

?       Revision of polling lists

?       Pulse polio drive

?       Preparation of census lists

?       Surveys on malaria, pollution etc.

4.      The Act and the Rules framed thereunder which govern the field  mandate that all the schools in Delhi have to function for a minimum of 210  days in a year.  It was pointed out that although the extent of the period  differed, the teachers were asked to perform polling duties for a few months

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and also for census duties for considerable period.  The writ petition  highlighted that absence of teachers from the school for a long time resulted  in unfinished courses, high drop out rates, poor results and inability to  compete in open examinations, such as medicine, engineering etc. and/or to  get admission in other prestigious or professional colleges.  It was contended  that an informal survey  conducted by the petitioner therein demonstrated  that  about 9,00,000 students had enrolled themselves in class 1 of the  schools run by the Municipal Corporation of Delhi, but only 50,000 of them  appeared in the secondary examination.

5.      The Municipal Corporation of Delhi (MCD) in  its counter affidavit  contended that absence of the teachers and other administrative staff of  schools for performing duties allocated by the officers of the Election  Commission is in national interest.  In the counter affidavit, it was, stated:      

"3.     That the main work assigned to teachers is in  relation to teaching work.  However, in the larger  national interest, some of the teachers are called  upon to do some other Government work relating  to public interests like polio vaccination,  preparation of voter list, etc.   

4.      That only during the work of census in the year  2001, a slightly large number of teachers were  required for the purpose.  Even for this purpose, to  take care that the teaching activities are not  hampered in any manner, letter No. F-4/12/2000  dated 04.02.01, referring to the Order of Lt.  Governor of the NCT of Delhi having been passed,  whereby the enumerators were directed to perform  their census enumeration duties before/after their  normal school hours.  The census work is  conducted only once in a decade."

5.      That it is reiterated that it is seen that the  government work relating to public interest done  by the teachers does not hamper the teaching  activities.  The additional government public work  is some time assigned to some of the teachers in  national interest."

6.      The New Delhi Municipal Committee (NDMC) in its additional  affidavit filed before the High Court, stated :

"2.     That the total number of sanctioned posts of  teachers in NDMC Schools are about 1200.  For  polling duty, almost 90% of the teaching staff is  deployed on duty.  For census work in the year  2000 and enumeration work in the year 2001, 90%  of the staff were assigned  duty.  For Revision of  electoral rolls, almost 50% of the teaching staff is  put on duty.

3.      For polling duties, the Election Commission  deploys the teachers of the NDMC Schools for the  purposes of holding Parliamentary Elections, Delhi  Assembly Elections and even Municipal  Corporation Elections.  Generally the elections are  held on Sundays, but before the actual polling  takes places, the teaching staff is called for three  working days for the purposes of training,  collection of election material etc.  In the year  1998-99, all the elections were held i.e.

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Parliamentary, Delhi Assembly and Corporation  Elections and hence the teachers were not on duty  for 9 working days.

4.      That in the year 2001, when the work of Special  Revision of Electoral Roll was required to be  conducted, the then Chief Electoral Officer  informed the Respondent NDMC that the said  work shall be conducted by the teachers between  13.9.2001 to 12.10.2001 by the teachers.  Initially  it was supposed to be a part time job, however, it  was later on converted into a full time work so as  to complete the assignment within the prescribed  time."

7.      During the pendency of the writ petition before the  High Court, the  Government of  NCT of Delhi issued  a circular letter, relevant portion  whereof is as under :  

"This duty binds the State-Governments to provide  the requisite number of staff to the Election Commission  for conducting elections and taking into consideration the  insufficient number of staff available in generalist cadre,  the government proposes to utilize the services of  teaching staff for the following duties :

(a)     Election Duty (b)     Revision of Electoral Rolls

(b)     Revision of Electoral Rolls : For the intensive  revision of electoral rolls, we require approximately  55,000 employees whereas the Cadre strength of the  General cadre of the Govt. of NCT of Delhi is only  around 9000.  In view of this, the services of teachers are  indispensable for intensive Revision of Election Rolls.   This intensive revision of electoral rolls is not a regular  process and this takes place with a periodicity of 4 to 5  years as per instructions of the Election Commission of  India.    

       The Summary/Special Revision of Electoral Rolls  takes place once in a year and the services of teachers are  normally not utilized and this is managed within the  cadre strength.  However, in some of the institutions that  are declared as designated locations, the services of the  Head of the Institution are taken to receive the Form and  they are declared as Designated Officers.  Normally,  these officials are not engaged in teaching and handle the  work in addition to their administrative duties.  They are  assisted  by non-teaching staff.

       The Staff thus deployed function under the  superintendence and control of the Chief Electoral  Officer and remain under the administrative control of  Chief Electoral Officer during this period.

       Elections being a sovereign function of the State,  the work of conduct of elections cannot be delegated to  persons who are not employees of government or to any  non-governmental agency, parastatal organizations etc.

       The Government draws staff from every govt.  department and it is not true that only teachers are  deployed for election work.  Staff from other categories

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from almost every department is engaged for election  duty.

       However, with a view to ensure that election work  does not come in conflict with the interest of education,  the respondent Government would like to take the  following steps to ensure that teaching work is least  affected :

(i)     As far as possible the revision of Electoral roll  shall be taken up during holidays or teachers  would be deployed to perform the work on  holidays.

(ii)    The teachers who are on non-teaching posts i.e.  Physical Education Teachers, Drawing Teachers,  Librarian and Lab Assistants, Yoga instructors etc.  would be deployed for election work.

(iii)   The teaching hour loss, if any, shall be  compensated by holding extra classes, so that the  minimum prescribed teaching hours are completed.

(iv)    The Principals/Heads of Institutions will be  directed to make internal adjustment of time tables  and reschedule the classes for making up any  possible teaching losses."     

8.      Learned counsel appearing for the parties, however, as it appears from  the impugned judgment, accepted before the High Court that the services of  the teachers should be utilized for non-teaching purposes only on a day  which is not a working day for the students.   

9.      The Election Commission is, thus, before us.

10.     Mr. K.K. Venugopal, learned Senior Counsel appearing on behalf of  the appellant, would, inter alia, submit :  (i)     Holding of an elections is a sovereign function.   (ii)    The Election Commission having regard to the provisions  contained in the Constitution of India as also the Representation  of the People Act, 1951 is required to conduct elections for the  purpose of upholding democracy.   (iii)   Democracy being a basic feature of the Constitution of India, it  is obligatory on the part of the Election Commission to ensure  that the citizens who are entitled to vote are not deprived of  their right and those who are not entitled thereto are not  permitted to do so.   (iv)    In terms of the provisions of clauses (1) and (6) of Article 324  of the Constitution of India, it is mandated that whenever the  Election Commission asks for deployment of staff for the  purpose of conducting elections, it is obligatory on the part of  the President of India or the Governor of the State to make such  number of staff made available to it,  and with a view to fulfill  the said constitutional object, the Parliament amended Section  159 of the 1951 Act so as to  provide : "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

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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 (1  of 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." (v)     The High Court, in that view of the matter could not have  issued any direction which may for all intent and purport  interfere with the electoral process.   

11.     Learned counsel appearing on behalf of the Municipal   Corporation of Delhi, New Delhi Municipal Committee and Union of India  adopted the submissions of  Mr. Venugopal.

12.     Ms. Reena George, learned counsel appearing on behalf of the writ  petitioner-respondent, on the other hand, submit that : (a)     the impugned order having been passed in terms of  consent of the parties, this Court should not  exercise its jurisdiction under Article 136 of the  Constitution of India.   (b)    Right to education being a fundamental right having  regard to Article 21A of the Constitution of India,  it is obligatory on the part of the State to ensure  that the students are not deprived thereof.   

(c)     In the affidavit filed on behalf of the NDMC, it  was clearly demonstrated that in some schools  where teaching or instructions are imparted for   Class IX or X students, no teacher was available  for a period of two months.   (d)    The purpose for which the education is imparted in  the schools is to see that the Government in the  municipal schools must ensure that they compete  with the standard maintained by the private  schools.

13.     Indisputably, for upholding the democracy and the democratic values,  holding of elections is imperative.  There cannot also be any doubt or  dispute that keeping in view the constitutional mandate provided for under  clauses (1) and (6) of Article 324 of the Constitution of India, the President  of India or the Governor of a State i.e. the Central Government as also the  State Government have a duty to make  available to the Election  Commission, or to a Regional Commissioner such staff,  as may be  necessary for the discharge of functions conferred on the Election  Commission by clause (1) in terms whereof a power of superintendence,  direction and control of  elections is to be vested in the Election  Commission, if request in this regard is made.   Article 327 of the  Constitution of India empowers the Parliaments to make laws with respect to  all matters relating to, or in connection with, elections to either House of the  Parliament or to the House or either House of the Legislature of a State  including the preparation of the electoral rolls, the delimitation of  constituencies and all other matters necessary for securing the due  constitution of such House or Houses.   The Parliament with a view to give effect to the said constitutional  functions enacted the Representation of the People Act, 1950 (1950 Act) and  the Representation of the People Act, 1951 (1951 Act).  

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15.     We may notice certain provisions of the said Acts.

1950 Act : Section 13-A of 1950 Act provides for the designation or nomination  of the Chief Electoral Officers, by the Election Commissioner; whereas  Section 13-AA provides for designation or nomination of a District Election  Officer, who is to be an officer of Government.  Sections 13B, 13CC and Section  29 of the 1950 Act read as under :

"13B - Electoral registration officers. - (1) The  electoral roll  for each parliamentary constituency in the  State of Jammu and Kashmir or in a Union territory not  having a Legislative Assembly, each assembly  constituency and each Council constituency shall be  prepared and revised by an electoral registration officer  who shall be such officer of Government or of a local  authority as the Election Commission may, in  consultation with the Government of the State in which  the constituency is situated, designate or nominate in this  behalf.  (2) An electoral registration officer may, subject to  any prescribed restrictions, employ such persons as he  thinks fit for the preparation and revision of the electoral  roll for the constituency." "13CC. Chief Electoral Officers, District  Election Officers, etc., deemed to be on deputation to  Election Commission. - The officers referred to in this  Part and any other officer or staff employed in  connection with the preparation, revision and correction  of the electoral rolls for, and the conduct of, all elections  shall be deemed to be on deputation to the Election  Commission for the period during which they are so  employed and such officers and staff shall, during that  period, be subject to the control, superintendence and  discipline of the Election Commission." "29. Staff of local authorities to be made  available. - Every local authority in a State shall, when  so requested by the chief electoral officer of the State,  make available to any electoral registration officer such  staff as may be necessary for the performance of any  duties in connection with the preparation and revision of  electoral rolls."

1951 Act :

Sections 2(1)(bb) and 2(1)(cc) of 1951 Act provide for the meanings  of  the terms "Chief Electoral Officer" and the "District Election Officer",  who would be an officer appointed under Sections 13-A and 13-AA of the  1950 Act.         Part IV of 1951 Act, does not lay down any procedure for  requisitioning of a person for being appointed as the Returning Officer, an  Assistant Returning Officer ; or Presiding Officer, or Polling Officer. However, it may be noticed that after Section 22, which provides for  appointment of Assistant Returning Officers a proviso was added by reason  of Act No. 47 of 1966 in terms whereof  the words "an Officer of  Government or of a local authority" had been inserted.

Sections 26, 28A, 151 and Section 159 read as under :

       "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 or officers as he thinks necessary, but

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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: 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 or 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 sub-section  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 Act or any rules or orders  made thereunder, (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 contest 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." "28A. Returning officer, presiding officer, etc.,  deemed to be on deputation to Election Commission. -  The returning officer, assistant returning officer,  presiding officer, polling officer and any other officer  appointed under this Part, and any police officer  designated for the time being by the State Government,  for the conduct of any election shall be deemed to be on  deputation to the Election Commission for the period  commencing on and from the date of the notification  calling for such election and ending with the date of  declaration of the results of such election and  accordingly, such officers shall, during that period, be  subject to the control, superintendence and discipline of  the Election Commission."  "151.- Casual vacancies in the State Legislative  Councils. - When before the expiration of the term of  office of a member elected to the Legislative Council of a  State, his seat becomes vacant or is declared vacant or his  election to the Legislative Council is declared void, the  Election Commission shall, by a notification in the  Official Gazette, call upon the Council constituency  concerned or the members of the Legislative Assembly  of the State, as the case may be, to elect a person for the  purpose of filling the vacancy so caused, before such date  as may be specified in the notification, and the provisions  of this- Act and of the rules and orders made thereunder  shall apply, as far as may be, in relation to the election of  a member to fill such vacancy." "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

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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 (1  of 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."   19.     We may, however, notice that prior to enactment of Act No. 12 of  1998 in terms of Section 159 of the 1951 Act the obligation to make  available to any Returning Officer such staff as may be necessary in  connection with an election was only confined to the local authority.

20.     The question as to whether the staff of the State Bank of India could  be requisitioned for the purpose came up for consideration before this Court  in Election Commission of India v. State Bank of India Staff Association,  Local Head Office Unit, Patna and Others [(1995) Supp. 2 SCC 13], wherein  this Court upheld the judgment and order of the Division Bench of the Patna  High Court, opining that the officers of the State Bank of India cannot be  requisitioned in terms of Section 26 of the 1951 Act or otherwise.   

21.     The constitutional and statutory scheme would lead to a realistic  conclusion when emphasis was laid that it is for the Central Government and  the State Governments alone to provide for the requisite staff.  How would  they do it is one thing.  It may be by fresh recruitment for the purposes for  which the staff are requisitioned or for deployment or by way of deputation.   Indisputably, there are certain functions which may be performed only by  the Government staff.  For the said purposes they may be sent on deputation  e.g. Sections 21 and 22 of the 1951 Act provides for the Returning Officers  and Assistant Returning Officers who must be an officer of Government or  of a local authority.  Therefore, their services can be requisitioned under  clause (6) of Article 324 of the Constitution of India as also Section 159 of  the 1951 Act.  The Election Commission or the Regional Commissioner, as  the case may be,  is also entitled to request for requisitioning the services of  the persons in the employment of the Government or the local authority and  others who may not be officers of the Government or the local authority.   The services of other employees who are not officers may also be  requisitioned.  The Parliament was aware that in an election, requisition of  services of the employees of the Central Government or the State  Governments may prove to be insufficient and, thus, a direction for  appointment of the staff from amongst the officers of the local authority and  others have been made.

22.     On the other hand, however, right  to education is held to be a  fundamental right.  It was so stated in Mohini Jain v. State of Karnataka   [(1992) 3 SCC 666] in the following terms : "12. "Right to life" is the compendious expression for all  those rights which the courts must enforce because they  are basic to the dignified enjoyment of life. It extends to  the full range of conduct which the individual is free to  pursue. The right to education flows directly from right  to life. The right to life under Article 21 and the dignity  of an individual cannot be assured unless it is  accompanied by the right to education. The State  Government is under an obligation to make endeavour to

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provide educational facilities at all levels to its citizens."  23.     The aforementioned ratio has been affirmed with certain modification  by this Court in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh &  Others [(1993) 1 SCC 645], expressly stating :  "\005Having regard to the fundamental significance of  education to the life of an individual and the nation, and  adopting the reasoning and logic adopted in the earlier  decisions of this Court referred to hereinbefore, we hold,  agreeing with the statement in Bandhua Mukti Morcha  27 that right to education is implicit in and flows from  the right to life guaranteed by Article 21. That the right to  education has been treated as one of transcendental  importance in the life of an individual has been  recognised not only in this country since thousands of  years, but all over the world. In Mohini Jai,n the  importance of education has been duly and rightly  stressed. The relevant observations have already been set  out in para 7 hereinbefore. In particular, we agree with  the observation that without education being provided to  the citizens of this country, the objectives set forth in the  Preamble to the Constitution cannot be achieved. The  Constitution would fail\005"

24.     Article 45 is the only provision in our Constitution which fixes a time  limit during which the State is to provide for free and compulsory education  for children until they complete the age of 14 years.  The Constitution has  been amended keeping in view the aforementioned provisions as also the  decision of this Court in Unni Krishnan (supra) by inserting Article 21A of  the Constitution of India, which reads as under :                          "The right to education which flows from Article  21 is not an absolute right.  It must be construed in the  light of directive principles.  A true democracy is one  where education is universal, where people understand  what is good for them and the nation and the right to  education have to be determined.  Right to education,  understood in the context of Articles 45 and 41, means  that every child/citizen of this country has a right to free  education until he completes the age of fourteen years  and (b) after child/citizen completes 14 years, his right to  education is circumscribed by the limits of the economic  capacity of the State and its development.  It is  significant that among the several articles in Part IV, only  Article 45 speaks of a time limit; no other article does.  It  is not a mere pious wish and he Sate cannot flout the said  direction even after 44 years on the ground that the  article merely calls upon it to "endeavour to provide" the  same and on the further ground that the said article is not  enforceable by virtue of the declaration in Article 37.   The passage  of 44 years more than four time the period  stip0ulated in Article 45 has converted the obligation  created by the article into an enforceable right.  At least  now the State should honour the command of Article 45.   It must be made a reality."

25.     Sixty years of independence, however, has not brought about the  desired result of imparting compulsory education to all the children.   Education is one of the most important functions of the State.  The State has  a basic responsibility in regard thereto.             26.     In Brown v. Board of Education [(98 L.Ed. 873 : 347 US 483 (1954)],  Earl Warren, CJ, speaking for the US Supreme Court emphasized the right  to education in the following terms :           "Today, education is the most important function

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of the State and local Governments\005It is required in the  performance of our most basic responsibility, even  services in the armed forces.  It is the very foundation of  good citizenship.  Today it is the principal instrument in  awakening the child to cultural values, in preparing him  for later professional training, and in helping him to  adjust normally to his environment.  In these days it is  doubtful any child may reasonably be expected to  succeed in life if he is denied the opportunity of an  education."  

27.     The provisions of the 1950 and 1951 Acts although were enacted in  terms of Article 324 of the Constitution of India, the same must be given  restricted meaning.  Holding of an election is no doubt of paramount  importance.  But for the said purpose the education of the children cannot be  neglected.  Therefore, it is necessary to maintain the balance between the  two.   

28.     With an advent of technology requisitioning of a large number of  people for carrying out the election may not be necessary.  We may notice  that the Election Commission has different roles to play.  Preparation of an  electoral rolls, revision of electoral rolls, when objections are filed, hearing  the parties and determining the objections, enumeration of the voter list and  to hold elections as and when due.  The Election Commission  and its  officers, in our opinion, can formulate an effective scheme to see that the  services of a large number of teachers are not required.  The State admittedly  is not in a position to perform its sovereign function of imparting education.   Such functions necessarily are required to be performed by the private  actors.  Those students who are in a position to get admission in the public  schools presumably would also be in a position to appoint tutors whereas  those students who are admitted to the Government schools ordinarily would  be from the middle or lower middle class or poor families.  The state of  primary education in India is in deplorable condition.  There admittedly is a  heavy drop outs from the schools particular from amongst the girl schools.   The question if right to exercise franchise whereupon the emphasis is laid by  Mr. Venugopal is an important one, right to education is also no less  important being a fundamental right.  

29.     The Human Rights Conventions have imposed a duty on the  Contracting States to set up institutions of higher education which would  lead to the conclusion that the citizens thereof should be afforded and  an  effective right of access to them.  In a democratic society, a right to  education is indispensable in the interpretation of right to development as a  human right.  [See Leyla Sahin v. Turkey, decided by the European Court of  Human Rights on 10th November, 2005]. Thus, right to development is also  considered to be a basic human right.   

30.     It is probably with that end in view the counsel appearing for the  Election Commission had also joined the other counsel appearing for the  respondents, to suggest the court that the services of the teachers may not be  requisitioned on the days on which the schools are open.  Submission of Mr.  Venugopal that such a contention had not been made by the learned counsel  appearing on behalf of the Election Commission cannot be accepted.    31.     We have, however, considered the matter at some details as the  question in regard to the application of the constitutional right and in  particular fundamental right cannot be thwarted only by reason of a  concession made by a counsel.

32.     We would, however, notice that the Election Commission before us  also categorically stated that as far as possible teachers would be put on  electoral roll revision works on holidays, non-teaching days and non- teaching hours; whereas non-teaching staff be put on duty any time.  We,  therefore, direct that all teaching staff shall be put on the duties of roll

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revisions and election works on holidays and non-teaching days.  Teachers  should not ordinarily be put on duty on teaching days and within  teaching  hours.  Non-teaching staff, however, may be put on such duties on any day  or at any time, if permissible in law.   

33.     Subject to the aforementioned modifications, this appeal is dismissed.   However, in the facts and circumstances of this case, there shall be no order  as to costs.