Patna High Court
State Bank Of India Staff Association ... vs Election Commission Of India And Ors. on 21 May, 1993
Equivalent citations: 1994(42)BLJR128
Author: B.P. Singh
Bench: B.P. Singh, S.B. Sinha
JUDGMENT B.P. Singh, J.
1. The petitioners herein are the State Bank of lndia Staff Association, local Head Office Unit, State Bank of lndia Officers' Association, Local Head Office and three employees of the State Bank of India working in its Local Head Office at Patna. They had originally challenged the requisition made by the District Election Officer-cum-District Magistrate, Patna, dated 22nd September, 1991 (Annexure-1) calling upon the Chief General Manager of the State Bank of India to furnish the list of employees of the State Bank of India with full particulars for the purpose of deputing such employees on election duty. They had also challenged the letters dated 30th October, 1991 and 1-11-1991 (Annexure-2 series) issued by the District Election Officer appointing and deputing some of the employees of the State appointing and deputing some of the employees of the State Bank of India on election duty in connection with the elections to the Barb Parliamentary and Pali Assembly Constituencies schedule to be held on 16-11-1991. The writ application was admitted for hearing on 11-11-1991, but no interim order was passed having regard to the fact.that the election was to be held on 16th November, 1991, and this Court did not wish to dislocate the arrangements made for holding the election. However, this Court Observed in the interim order that it will be open to the respondents to reconsider the matter and to make alternative arrangement, if so advised. The respondents were directed to file their counter-affidavit within three weeks, and it was directed that the writ application be placed for final disposal on 16th December, 1991. No counter-affidavit has been filed, and for whatever reasons, the writ application could not be disposed of on 16th .December, 1991.
2.. Thereafter, the District Election Officer-cum-District Magistrate, Patna, issued similar letters of appointment which were communicated to the Assistant General Manager of the State Bank of India appointing several employees of the State Bank of India as Presiding Officers and Polling Officers in connection with the Parliamentary election to be held on 19th May, 1993 from the 35 Patna Parliamentary Constituency. The petitioners filed an application for amendment of the writ application, and have challenged the letters of appointment issued by the District Election Officer, which have been annexed as Annexure-4 series, Such letters were communicated to the persons so appointed by the Assistant General Manager of the State Bank of India requesting them to attend the training programme for election duty as per the details given in the letters of appointment. The letters of appointment are said to have been issued under Sub-section (1) of Section 26 of the Representation of People Act, 1951 (Act 43 of 1951). The application came up for orders on 6th May, 1993. The respondents were granted time to file objections by Friday, 7th May, 1993. It was further directed that the writ application be placed for hearing at the top of the Hat on 10th May, 1993, having regard to the fact that the ejection was to be held on 19-5-1993. No objection to the amendment application has been filed and, accordingly, the amendment application was allowed and the parties were heard at length on 10th May, 1993 and llth May, 1993. Since no formal orders has been recorded allowing the application for amendment of the writ application, we hereby formally allow the amendment application.
3. The petitioner have challenged the legality and validity of the letters of appointment (Annexure-4 series) on the ground that neither any constitutional provision, nor any law, authorises the District Election Officer to requisition the services of the employees of the Bank to perform election duty in connection with the Parliamentary election. On the other hand, the respondents contend that the constitutional provisions as well as the laws enacted by the Parliament fully authorise the District Election Officer to appoint the employees of the State Bank of India to perform the duties as Presiding Officers or Polling Officers in connection with the Parliamentary election.
4. Article 324 of the Constitution of India vests in the Election Commission the power of superintendence, direction and control of the prepration of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State. Clause (4) of Article 324 of the Constitution empowers the President of India to appoint, in consulation with the Election Commission, Regional Commissioner to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (i). Clause (6) of Article 324 provides as follows :
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).
5. Article 327 of the Constitution empowers the Parliament from time to time by law to make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the Houses or either House of the Legislature of a State, including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Similarly, power has been vested' in the Legislature of a State to make provision with respect to elections to the Legislature, in so far as provision in that behalf is not made by the Parliament.
6. In exercise of power vested in the Parliament under Article 327 of the Constitution, the Parliament has enacted the Representation of the People Act, 1950 and the Representation of the People Act, 1951 (hereinafter referred to as 'the Act of 1950' and 'the Act of 1951'). Apart from Clause (6) of Article 324 of the Constitution, two other provisions may be noticed, namely, Section 26 and Section 159 of the Act of 1951. For the sake of convenience the relevant part of Section 26 and Section 159 are reproduced below :
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 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.
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.
7. It will be noticed from Clause (6) of Article 324 that on the request of the Election Commission the President or Governor of a State is obliged 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). The request has to be made by the Election Commission to the President or the Governor of State, as the case may be. Under Section 159 of the Act 1951 every 'local authority' in a State is obliged to make available to any Returning Officer such staff as may be necessary for the performance of duties in connection with an election provided the requisition is made to it by the Regional Commissioner appointed under Clause (4) of Article 324 of the Constitution. It was not disputed before us that under Clause (6) of Article 324 of the Constitution the President of India or the Governor of a State are obliged to make available to the Election Commission the services of such persons as may be employed in connection with the affairs of the Union or the affairs of the State, meaning thereby that the persons whose services may be placed at the disposal of the Election Commission must be persons who are either employees Of the Central Government or of the State Government. It can neither be contended, nor was it contended, before us, that the services of employees of the State Bank of India are required to be made available to the Election Commission under Article 324(6) of the Constitution. It was contended on the other hand that the services of the employees of the State Bank of India have been requisitioned under Section 159 read with Section 26 of the Act of 1951. The respondents contend that the State Bank of India is a 'local authority' within the meaning of Section 159 and, therefore, the District Election Officer was within his rights in appointing employees of the Bank as Presiding Officer/Polling Officers in connection with the election. The petitioners, however, contend that the expression 'local authority' has a well accepted connotation in law, and by no stretch of imagination can it be contended that the State Bank of India is a 'local authority', within the meaning of Section 159 of the Act of 1951. The words 'local or other authorities' are used in Article 12 of the Constitution of India. Similarly, the expression is defined in Sub-section (31) of Section 3 of the General Clauses Act, 1897 as follow :
3 (31). 'Local authority' shall mean a municipal Committee, district board, body of Port commissioner or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.
Having regard to the definition of the said term as contained in the General Clauses Act, and the authoritative pronouncements of the Supreme Court in several decisions including and , it is not possible to hold that the State Bank of India is a 'local authority'. The question is not res-Integra. No doubt the State Bank of India has bean constituted under the provisions of the State Bank of India Act, 1955. It is a statutary Corporation having a distinct legal entity, but that by itself does not give it the attributes and characteristics of a local authority. The State Bank of India has been constituted to carry on the business of banking and other business in accordance with the provisions of the aforesaid Act, and for the purpose of taking over the undertaking of the Imperial Bank. An Authority, in order to be a local authority, must be of like nature and character as a Municipal Committee, District Board or Body of Port Commissioners possessing therefore many, if not all, of the distinctive attributes and characteristics of a Municipal Committee, District Board or Body of Port Commissioners but possessing one essential feature, namely, that it is legally entitled to or entrusted by the Government with, the control and management of Municipal or local fund, it must have a separate legal existence and function in a defined area and must ordinarily wholly or partly, directly or indirectly, be elected by the inhabitants of the area. These and several other characteristics of a local authority were emphasised by the Supreme Court in Union of India (UOI) v. R.C. Jain supra). It cannot be contended, nor was it contended, that the State Bank of India is a subordinate branch of the Government activity and is in the nature of a democratic institution managed by the representatives of the people functioning for public purposes and entrusted with the performance of civil duties and functions which would otherwise be governmental duties and functions. It is not entrusted by the Government with the control or management of a local fund.
8. Faced with this situation and the well-settled position in law, the learned Advocate General contended that the State Bank of India is not a 'local authority' in the sense the expression is ordinarily understood in law, or in the sense the expression has been defined under the General Clauses Act. He submitted that for the purpose of Section 159 a 'local authority' must be understood to mean any authority operating within a local limit. The sub mission must be rejected. There is nothing in the context nor is there any compelling reason which may persuade us to give to the expression 'local authority' a meaning different than what has been assigned to it under the General Clauses Act, and interpreted by several decisions of the Supreme Court of India and High Courts. In any event, it cannot even be said that the State Bank of India operates within a local jurisdiction, because by the very nature of its functions it operates throughout the territory of India and also has branches in foreign countries. It is, therefore, futile to contend that the State Bank of India being a 'local authority', the services of its employees can be requisitioned for election work under Section 159 of the Act of 1951.
9. There is yet another objection of the petitioners to the issuance of the letters of appointment (Annexure-4 series). It was submitted that even if it is assumed that under Section 159 the services of employees of the State Bank of India, treating the State Bank of India as a local authority, can be requisitioned, the same can be done only ion the request of the Regional Commissioner appointed under Clause (4) of Article 3.44 of the Chief Electoral Officer of the State. The language of the section is unambiguous. The jurisdiction to requisition the services of employees of local authority is vested by law in the Regional Commissioner or the Chief Electoral Officer of the State, In the instant case, both Annexure-1 as well as Annexure-4-series have been issued under the signature of the District Election Officer. No material has been produced before the Court to satisfy the Court that either the Regional Commissioner or the Chief Electoral Officer of the State had earlier requisitioned the services of the employees of the State Bank of India for the performance of duties in connection with the election. It was, therefore, rightly contended that in absence of a valid requisition by the competent authority, the District Election Officer could not appoint, any employee of the State Bank of India as Presiding Polling Officer. The objection must be upheld and this furnishes an additional ground for quashing Annexure-1 and Annexure-4 series.
10. It was then contended that in any event the scope of Section 26 of the Act of 1951 was wide enough to vest in the District Election Officer the power to appoint 'any person' as a Presiding Officer or a Polling Officer, except any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election. The submission proceeds on the basis that in the matter of appointment of Presiding Officer or Polling Officer, the power vested in the District Election Officer, is not controlled by any other provision of law. Logically, the argument goes to the extent that even a private individual may be requisitioned to perform the duties or Presiding Officer or Polling Officer, unless he is disqualified in terms of Section 26. The submission overlooks the constitutional as well as the legislative scheme incorporated in the Act of 1951. Under Clause (6) of Article 324, the President or the Governor of a State, as the case may be, on a request made by Election Commission, is obliged to make available to the Commission employees of the Central or the State Government to enable the Commission to discharge functions conferred on it by Clause (1) of Article 324. The framers of the Constitution considered it necessary to incorporate such a provision in the Constitution itself, because in its absence, it may have been impossible for the Election Commission to discharge its functions without the aid of the Central Government or State Government employees. But for Clause (6) of Article 324, the Election Commission could not requisition the services of such Government employees. Likewise, while enacting the Act of 1951, the Parliament in its wisdom incorporated Section 159 obliging any 'local authority' in a State to make available to any Returning Officer such staff as may be necessary for the performance of duties in connection with an election. This was subject to the condition that a request was so made by the Regional Commissioner. It will be noticed that there is no provision either in the Constitution or the Act of 1951 granting any special remuneration to the persons who are called upon to perform such duties in connection with an election. The reason is obvious, because if the State Government or the Central Government employees or the employees of a local authority are called upon to render services in connection with an election, they do so as State Government or Central Government employees or employees of a local authority, who in any event pay them the pay and allowances payable to them. It will indeed be unreasonable to think that a private citizen can be called upon to render such services without any compensation. It may be that a self-employed person or an ordinary citizen cannot render such services without prejudice to his own pecuniary and other interest. It is for this reason that the Constitution as well as the Act of 1951 provide for the requisitioning of services of only persons employed either by the Central Government or the State Government or a local authority. From the very fact that the sources from which such personal can be requisitioned for election work have been specified by the Constitution as well as by Legislation it must follow that the sources from which such personnel can be requisitioned must be only those specified and no other.
11. It was then contended on behalf of the respondents that if Sections 21, 22 and 29 of the Act of 1951 are read together, it will be apparent from the difference in the language employed that while designating or nominating a person to be a returning officer or an Assistant Regurning Officer the law provides that he must be an officer of the Government or of a local authority, no such qualification is prescribed for the appointment of Presiding Officer or Polling Officer. It was, therefore, submitted that only in the case of Returning Officer and Assistant Returning Officer it was mandatory that the person nominated should be an officer of the Government or of a local authority, and by implication such qualification was not prescribed for a person appointed as Presiding officer or Polling Officer under Section 26. There are several reasons why this contention cannot be accepted. Sections 21 and 22 of the Act of 1951 do provide that a Returning Officer or an Assistant Returning Officer must be an officer of the Government or of a local authority. Obviously, those sections refer to officers whose services can be requisitioned under Article 324(6) of the Constitution and Section 159 of the Act of 1951 It may be that the Election Commission or the Regional Commissioner, as the case may be, may request for the requisitioning of services of persons in the employment of Government or local authority, 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. Sections 21 and 22 only prescribe that a person appointed as Returning Officer or Assistant Returning Officer must be an officer of the Government or local authority, and not a person who is not an officer. So understood a conjoint reading of Sections 21, 22 and 26 of the Act of 1951 must lead to the necessary inference that the officers to be appointed under Part IV of the Act of 1951 must be officers whose services can be requisitioned by the Election Commission or by the Regional Commissioner. It would be impermissible to read into Section 26, by implication, a power in favour of the District Election Officer, wider than the power vested by a constitutional provision in the Election Commission or by legislation in the Regional Commissioner. Section 26 cannot be so interpreted as to render Article 324(6) of the Constitution and Section 159 of the Act 1951 redundant. Those provisions were incorporated in the Consitution and in the Act of 1951, because in the absence of those provisions services of employees of Government or local authorities could not be requisitioned. If Section 26 of the Act of 1951 is to be given such a wide scope, there could have been no purpose behind incorporating Article 324(6) in the Consitution and Section 159 in the Act of 1951. 1 have no doubt that Section 25 cannot have a wider application than Article 324(6) of the Constitution and Section 159 of the Act of 1951. In my view, Section 26 only vests in the District Election Officer the power to appoint Presiding Officer and Polling Officer, but the persons so appointed must be persons whose services can be requisitioned under Article 324(6) of the Consitution or Section 159 of the Act of 1951, meaning thereby the employees of the State or Central Government and of local authorities only. Much reliance was placed upon the judgment of the Calcutta High Court, . In my view, the question which has arisen in the instant case was not even urged for consideration of the Court in that case. The petitioners before the Calcutta High Court were Railway employees employed by the Central Government, and their objection was to the effect that they could not be requisitioned and appointed for election duty without their consent. Their plea was rejected by the High Court. The ratio of that case, therefore, will not apply to the instant case; and the observations made by the Court must be under stood in the context in which they were made.
12. Counsel for the respondents then contended that the power vested in the District Election. Officer under Section 26 is an independent power conferred by status, and must be understood without reference to the provision contained in Article 324(6) of the Constitution and Section 59 of the Act of 1951. I have already held that such an interpretation is not possible, as that would attribute redundancy to a constitutional provision as also a statutory provision. This apart, no procedure has been prescribed in Section 26 of the Act of 1951 as to how the District Election Officer shall exercise his power to requisition the services of those who are neither Government employees not employees of local authorities. Apart from the absence of any procedure for requisitioning their services, there is nothing in the Act to provide any guidance as to how and in respect of whom such power may be exercised. There is complete absence of any provision regulating the exercise of such power. There is no provision in the Act which provides for the con sequences that may follow if such a person who has been appointed a Presiding Officer or Polling Officer under Section 26, refuses to perform that duty. A private citizen, for instance, cannot be punished for the breach of an order in the absence of a law prescribing the punishment. The absence of such provisions, therefore, necessarily lead to the inference that Section 26 was not intended to be given such a wide application so as to be wider in its scope than Article 324(6) of the Constitution, and Section 159 of the Act of 1951. In any event, if Section 26 is understood to confer on the District Election Officer such wide and unbriddled powers without any guidance, the provision itself must be held to be arbitrary and unreasonable and, therefore, void. It is a well accepted principle of interpretation that where two views are possible, that view must be preferred which does not expose the law to the risk of being declared invalid. The presumtion is in favour of constitutionality of a legislation, and by interpretation such a legislation should not rendered invalid, if it is reasonably possible to interpret it is a manner which supports the presumption of validity. In the instant case the question of reading down Section 26 does not arise, because, in my view, there is no scope for giving it such a wide application as is claimed for it on behalf of the respondents.
13. The learned Advocate General referred to the Hand Book for Returning Officers issued by the Election Commission of India and the Consolidated Instructions also issued by the Election Commission of India. Under Chapter III of the Hand Book it is provided that all the available personnel working under the State or the Central Government Officers in the State as well as the local bodies, statutory bodies and Corporations and Public Sectors Undertakings have to be mobilised, and an assessment of the availability of the requisite number has to be made well in advance. He also referred to Annexure-XXI of the Hand Book which prescribes the form in which the order of appointment of Presiding and Polling Officers is to be made. Reading the two he submitted that the Election Commission in the discharge of its functions unders Artile 324 of the Constitution of India has taken a view that personnel working in the statutory bodies and Corporations and Public Sector Undertakings can also be appointed as Presiding and Polling Officers under Section 26 of the Act of 1951. Referring to Item No. 23 of the Consolidated Instructious, which contains the Election Commission's letter dated 7th January, 1984, he submitted that the precise question as to whether the employees of Banks could be drafted for election duty, was considered by the Election Commission in detail and after considering the matter at length the Commission did not agree to exemption of employees of Nationalised Banks from Election duty, but only directed that Bank Employees may be drafted to the minimum extent possible only in a contingency where sufficient number of Government Employees were not available, and care should be taken to see that normal functioning of the Banks are not interrupted etc. Relying upon the decision of the Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner , he submitted that the power conferred on the Election Commission under Article 324 of the Constitution is DO doubt subject to the laws made by the Parliament under Section 327 of the Constitution, but urged that if directions/instructions issued by the Election Commission are not inconsistent with any law made by Parliament, the same must be upheld, His further submission was that these instructions were only supplemental in nature, and were not inconsistent with any provision of the Act of 1950 or the Act of 1951, The Election Commission was entrusted with the task of holding fair elections and, therefore, many unforseen situations may arise for which there may be no express provision in the Act of 1950 or the Act of 1951. Obviously, in such cases the Election Commission must issue necessary directions/instructions consistent with the provisions of the Constitution, and the laws made under Article 327 of the Constitution of India, If, therefore, the Commission had taken a decision that employees of Nationalised Banks should not be exempted from election duty, in the absence of compelling reasons, this Court must uphold the validity of the directions/instructions issued by the Election Commission.
14. The broad legal proposition formulated by the learned Advocate Genera! is unexceptional, but difficulties arise in applying the well-settled principles to the facts of this case. I have already held that having regard to the provisions of Article 324(6) of the Constitution and Section 159 of the Act of 1951, the power to appoint Presiding and Polling Officers under Section 26 of the Act of 1951 must apply only to such employees of the Government or local authority whose services have been requisitioned under the aforesaid provisions. If this be the correct legal position, the instructions/directions! issued by the Election Commission are inconsistent with the constitutional provisions and the provisions of the Act of 1951. The submission that they are merely supplemental in their application must, therefore, be rejected, since it must be held that they are inconsistent with whose provisions.
15. It was faintly submitted by the learned Advocate General that it is the fundamental duty of every citizen of India to defend the country and render national service, when called upon to do so. He submitted that in a democratic set up elections must be held, and for conducting such elections it is necessary to call upon citizens to render services in connection with the holding of elections. He, therefore, submitted that if employees of the Bank were called upon to render such services, they could not arise any valid objection. While it is true that it is the duty of every citizen of India to render national service when called upon to do so, the question can be consider ed when a scheme for national service is formulated and citizens are called upon to render such national service. Every public service need not be a national service, and the question can be considered when a scheme for national service is formulated. So far as the election duty is concerned, the Constitution as well as the laws have made adequate provisions to which I have referred earlier, for requisitioning the services of persons in connection with the election work, Since the matter is governed by express constitutional and legislative provisions, there is no scope for inferring such a duty on the basis of Article 51-A of the Constitution of India. The law envisages that the State and Central Government employees and the employees of local authorities on request being made by the competent authority can be deputed and detained for election duty. It necessarily follows that in the absence of any other provision authorising requisititioning of services of others, such as Bank employees, they cannot be asked to perform election duty.
Equally futile is the reliance placed upon clause (2) of Article 23 of the Constitution, which authorises the State to impose compulsory service for public purposes. The power to impose compulsory service for public purposes is vested in the State and not in the District Election Officer. The State in the context must mean either the President of India or the Governor of a State. Such a compulsory service may also be imposed by law passed by the Legislature. In the absence of a law or an order passed by the President of India or the Governor of a State, the District Election Officer cannot impose compulsory service for public purposes even assuming that the compulsion to render election duty is in the nature of compulsory service for public purposes. We may only notice, without deciding the objection urged on behalf of the petitioners, that having regard to the laws enacted by the Parliament, which deal with all matter relating to requisition of services for election purpose, no executive authority is empowered to act contrary to the dictates of such laws by assuming power under Clause (2) of Article 23 of the Constitution.
16. I, therefore, hold that the District Election Officer in exercise of his powers under Section 26 of the Act of 1951 cannot requisition the services of the employees of the State Bank of India, since the employees of the State Bank of India are not State or Central Government employees as envisaged by Article 324(6) of the Constitution of India, nor are they employees of a local authority whose services can be requisitioned under Section 159 of the Act of 1951.
17. This writ application is, therefore, allowed and Annexure-4 series, the letters appointing employees of the State Bank of India as Presiding Officers/Polling Officers are quashed. The respondents are directed not to requisition the services of the employees of the State Back of India for election work under Section 26 of the Act of 1951, There will be no order as to cost.
S.B. Sinha, J.--While agreeing with the judgment of my learned brother B.P. Singh, J., I would like to add a few words of mine.
19. Article 324 of the Constitution of India confers a power of Superintendence, direction and control of elections to be vested in an Election Commission.
20. Clause (6) of Article 324 mandates the President, or the Governor of State, to make available to the Election Commission or to a Regitional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1), if request in this regard is made.
21. Article 327 of the Constitution of India empowers the Parliament to make law with respect to all matters relating to, or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due Constitution of such house or Houses.
22. The Paliament in exercise of the aforementioned provisions enacted Representation of the People Act, 1950 and Representation of the People Act, 1951.
The said two acts cover the entire field of legislation relating to Elections.
23. 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. The District Magistrate, Patna admittedly has been nominated as the District Election Officers.
24. Sections 2(1)(bb) and 2(1)(cc) of 1951 Act provide that the meaning of "Chief Electoral Officer" and the "District Election Officer" would be an officer appointed under Sections 13-A and 13-AA of the 1950 Act.
25. Part IV of 1950 Act provides for the administrative machinary for the conduct of election
26. It is now well known that although the headings of Sections may not be used for the purpose of interpretation of a provision, the language whereof is clear and unambigous but the same, may have to be taken into consideration where two interpretations are possible.
The heading prefixed to a Section can be referred to in construing of an Act. [See Bhinka v. Charan Singh 1969 SC 960 and Director of Public Prosecutions v. Schlldkamp 1969(3) All ELR 1640J.
27. 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.
28. 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 in place of "an Officer of Government", the "words or of a local authority" had been inserted.
The said amendment is indicative of the fact that whenever the Parliament intended that services of any employees of the local authority has to be requisitioned, that can be done. The Parliament was aware that in an election, requisition of services of the employees of the Central Government or State Government may prove to be insufficient and thus a provision for appointment of Assistant Returning Officer from amongst the Officers of the Local Authority also was made.
29. Section 159 of 1951 Act provides that every 'Local Authority' in a State shall, when so requested by a Regional Commissioner appointed under Clause (4) of Article 324 of 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.
30. The learned Advocate General has contended, as has been noticed by my learned brother, that the Election Commission by reason of instructions directed requisioning of services not only 'of Local Authority' but also of the services of employees of 'Statutory Bodies' ; Other Authorities and 'Public Sector Undertakings'.
31. As noticed by my learned brother emphasis has also been laid upon Section 26 of the said Act which empowers the District Election Officer to appoint a Presiding Officer or a Polling Officer.
32. However, from a perusal of the requisition sent by the {respondent No. 2 in terms of Annexure-1 to the writ application, it is evident that requisition bad been sent not only for the purpose of appointment of Presiding Officer or Polling Officer, bat also for Patrolling-cum-Ballot Box Collecting Officers.
33. It is now well Known that a statutory authority must exercise its jurisdiction within the four corners of the Statute or not at all.
34. A statute as is well known has to be given a contexual meaning. If ordinary or liberal meaning given to Statute renders the same unconstitutional, the same may be avoided.
35. A Statute is presumed to be consitutional.
However, in order to save the constitutionality of the Statute in a given situation it may have to be read down. But invalid statute cannot be made valid by resorting to the rules of 'reading down'.
Reference in this connection may be made to Delhi Transport Corporation v. D.T.C. Mazdaor Congress 1991 SC 101, it has been held as follows :
In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning that it can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity.
36. The aforementioned principles of law have to be borne in mind in order to consider the submissions of the learned Advocate General to the effect that Section 26 of the Act empowers a District Polling Officer to requisition the services of 'any person'.
If such a meaning is given, the same would lead to absurdity as in exercise of the said power the District Election Officer may ask any person to perform the duties of Presiding Officer or Polling Officers although no provision exists for payment of any salary or any allowances to him either under the Constitution of India or under 1951 Act and/or the rules framed thereunder.
37. Such a meaning if the contention of the learned Advocate General is accepted, may also deprive a private person of his living who may be carrying on any business or profession. Such a power being without any guideline must be held to be arbitrary and violative of Articles 14, 21 and 23 of the Consitution of India.
38. In this connection, it is relevant to notice that Clause (2) of Article 23 authorises only the State for imposing compulsory services for public purposes.
The word 'State' for the purpose of Article 23 of the Constitution of India cannot be given the same meaning as defined in Article 12 thereof. Article 12 defines 'State' with the words 'unless the context otherwise requires'.
39. The District Election Officer is not a 'Slate' even within the meaning of Article 12 of the Constitution of India. He is merely an Officer of the State having been authorised by the Election Commissioner to perform the statutory duties of the District Election Officer under the provisions of the Representation of People Act. He being, a statutory authority, is required to act within the four corner of the Statute.
From the scheme for requisitioning of services of the persons for the purpose of conduct of election as envisaged under Clause (6) of Article 324 of the Consitution of India, it is evident that it is for the President of India or the Governor of a State to make available to the Election Commission or the Regional Commissioner such staff as may be necessary for discharge of the functions, conferred on the Election Commission by Clause (1). The President or the Governor, therefore, alone is entitled to requisition the services of any person who is, not within their administrative control meaning thereby who is not an employees of the Central Government or the State Government, as the case may be.
40. Under Clause (2) of Article 23 of the Constitution of India, the State can requisition the services of any person It, therefore, logically follows that the services of any person cannot be requisitioned except by the President or Governor of the State.
41. Further the 1951 Act, takes within its umbrage all matters relating to requisition of services whether of human beings or of properties both movable and immovable.
Section 159 of the 1951 Act only authorises the Regional Commissioner to requisition the services of the employees of the local authority. It is, therefore, clear that only the President of India, Governor of a State or the Regional Commissioner are entitled to requisition the services of persons.
Such a power has not been conferred upon the District Election Officers.
42. In this situation, there is no escape from the conclusion that the District Election Officer can only appoint a person as Presiding Officer or as Polling Officer whose services have been requisitioned either by the Election Commission or by the Regional Commissioner. If any other meaning is given to the provisions of the 1951 Act. the same would lead to an anamolous situation which may render Section 6 constitutionally vulnerable.
43. Reed Dickerson in his book "The Interpretation and Application of Statutes" (1975), at page 95 has said :
On the necessity of legislative purpose to legislative interpretation, Liewellyan has said, 'If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense'. Hart and Sacks have inquired whether it is not true that 'The meaning of statute is never plain unless it fits with some intelligible purpose'.
44. The learned Author at Page 105, while dealing with the importance of context, said :
The essence of a language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called a' conceptual map of human experience.' As with any map, it has little or no significance apart from what it mirrors.
Contexual interpretation of Section 26 of the 1951 Act, therefore, leads to one conclusion that the District Election Officer cannot requisition the services of any person whether he is in private service or carrying on business or profession or otherwise.
45. Our attention has, however, been drawn to Chapter III of the 'Handbook for Returning Officers' issued by the Election Commission of India in the year 1984.
The Election Commission is also a creature of Statute. It may, in a given situation, regard beiny had to the emergency, have to exercise such power as may be necessary for smooth conduct of election. Such is not the position here.
46. The power to requisition the services of the employees of the State Bank of India has been exercised by the District Election Commissioner and not by the Election Commisson.
47. No counter affidavit has been filed in this case to show that the impugned order has been passed at the behest of the Election Commission or under its authority. Even no material has been brought on records to demonstrate that the services of the employees of the State Bank of India are re required, as sufficient number of staff for conduct of election is not available from amongst the employees of the Central Government, State Government or the Local Authority.
48. The observations made by the Supreme Court in Mohinder Singh Gill's case (supra) upon which strong reliance has been placed by the Advocate General must be understood in the light of facts and situation obtaining thereof.
49. It is well known, as was observed by Lord Hasbury in Qulnn v. leathem (1900) 1 All ELR (Reprint) page 1 at p. 6, that a 'decision is an authority for what it decides and not logically can be deduced therefrom'..
50. It is also well known that a judgment of the Supreme Court has to be read in a reasonable manner find like any other documents in its entirety.
In Central Coalfields Ltd. v. State of Bihar 1993 PLJR 617 a Division Bench of this Court (of which I was a member) observed as follows :
It is also well known that judgment of a court is not to be read as a statute.
In General Electric Co., v. Renusagar Power Co. , it was held :
As often enough pointed by us, words and expressions ased in a judgment are not to be construed in the same manner as statutes or as word and expressions defined in statutes. We do not have any doubt that when the words, 'adjudication of the merits of the controversy in the suit' were used by this Court in State of U. P. v. Janki Saran Kailash Chandra the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to over only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of. such objection cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier a broad view has to be taken of the principles involved and narrow had technical interpretation which tends to defeat the object of the legislation must be avoided.
It is now well known that a decision is an outhority for what it decides and not what logically can be deduced therefrom. It is also well-settled that a point not argued does not create a binding precedent with regard thereto.
In Rajeshwar Prasad Mishra v. The State of West Bengal and Anr. AIR 1965 SC 1887, it was held :
Article 141 empowers the Supreme Court to decide the law and not enact it. Hence the observation of the Supreme Court should not be read as statutory enactments, It is also well known that ratio of a decision is the reasons assigned therein, Dias on 'Jurisprudence' at page 139 observed :
Knowing the law.--What is 'law in a precedent is its rulling or ratio decidendi, which concerns future litigations as well as those involved in the instant dispute. Knowing the law in this context means known how to extract the ratio decidendi from cases. Statements not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. Three shades of meaning can be attached to the expression 'ratio decidendi'. The first, which is the translation of it, is the reason for (or of) deciding. Even a finding of fact may this sense be the ratio decidendi. Thus a judge may state a rule and then decide that the facts do not fall within it. Secondly, it may mean the rule of law preferred by the Judge as the basis of his decision, or thirdly it may mean' the rule of law which others regard as being a binding authority.
There is a temptation to suppose that a case has one fixed ruling which is 'there'(and discoverable here and now and pace and for all. This is not so, for the ratio is not only the ruling given by the deciding judge for his decision, but any one of a series of rulings as elucidated by subsequent interpretations. The pronouncement of the Judge who decided the case is a necessary stop towards ascertaining the ratio, but the process by no means ends there, subsequent interpretation is at least as significant, sometimes more so. 'It is not sufficient' said Jessel M. R. That the case should have been decided on a principle if that principle is not itself a right principle, or one not applicable to the case ; and it is for a subsequent Judge to say whether or not it is a right principle, and, if not, he may himself lay down the true principle.
51. In Mohindsr Singh Gill's case (supra), the Supreme Court merely held that Election Commission had the power to issue instructions in relation to a matter which is not covered either under the Constitution of India or the parliamentary legislation enacted in terms of Article 327 thereof.
52. As noticed hereinbefore, the matter relating to requisitioning of the services of any person has been laid down both under the Constitution as also under 1951 Act.
Thus the entire field of requisitioning the services of persons stands covered which cannot, therefore, be supplemented by issuing any executive instructions by the Election Commission.
53. Part III of the Returning Officer's Handbook even does not contain any executive instructions relating to the requisitioning of Officers by any particular authority. Such a power besides being non-existent, cannot be deciphered from a circular letter issued for the purpose of use of the Returning Officer so as to authorise any statutory authority to requisition the services of the employees of a Statutory Corporations other authorities or Public Sector Undertakings.
54. Hand Book for Returning Officers is meant for use of Returning Officers and thus the same does not and cannot be said to have empowered the District Election Officer to requisition the ser vices of the employees of Statutory Corporation or a Public Sector Undertakings, in terms thereof.
Even in K.P. Roy v. D. Rudra upon which reliance has been placed by the Advocate General, it has clearly been held that the District Election Officer cannot (sic) any person as Presiding Officers or Polling Officers in terms of Section 26(1) of the 1951 Act.
55. The contention of the Advocate-General to the effect that the word 'local authority' must in the context be held to mean 'any authority in the locality, is stated to be rejected'. The word 'local authority' has a definite connotation. Apart from the fact that the said words have been used in Article 12 of the Constitution of India ; 'local authority has been defined in Section 3(31) of the General Clauses Act as also Section 5(d) of the Bihar and Orissa Local Self-Government Act. In view of the provisions of the General Clauses Act, the word 'local authority' occurring in Section 26(1) and Section 159 of the Act must be given the same meaning as contained in Section 3(31) thereof.
56. In any event the absence of power to requisition the services of an employees of the statutory Corporation or Public Sector Undertaking etc. must be held to be 'corpus omissus' which cannot be supplied by this Court.
57. Further contention of the learned Advocate-General is that from the letter of the Election Commission, it would appear that at least since 1984 the services of the Bank employees have been requisitioned.
It in now a trite law that a practice cannot be override the Statute and Statutory regulations.
Reference in this connection may be made to Bihar prodesk Secondary Teachers Association v. State of Bihar 1993 (1) PLJR 352.
58. For the reasons aforementioned, I concur with the operative portion of the judgment of my learned brother.