Bombay High Court
Gokul Shrirang Mundhe And Others vs The State Of Maharashtra And ... on 5 May, 2017
Bench: S.V. Gangapurwala
1 W.P.No.1514/17 with connected W.Ps.
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.1514 OF 2017
1. Gokul S/o Shrirang Mundhe,
Age 43 years, Occ.Lecturer
in New Arts, Commerce and
Science College, Parner,
Dist.Ahmednagar.
2. Laxman S/o Kisan Pathare,
Age 57 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, Dist.
Ahmednagar.
3. Sunil S/o Narayan Pokale,
Age 62 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner,
Dist.Ahmednagar.
4. Pradip S/o Shiaram Mutkule,
Age 46 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
5. Anil S/o Chandrabhan Kale,
Age 46 years,
Occ.Lecturer in New Arts,
Commerce and Science College,
Parner, Dist.Ahmednagar.
6. Sukhdev S/o Laxman Kadam,
Age 47 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner,Dist.Ahmednagar.
7. Ravindra S/o Narayanrao Deshmukh,
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2 W.P.No.1514/17 with connected W.Ps.
Age 47 years, Occ.Lecturer
in New Arts, Commerce and
Science College, Parner,
Dist.Ahmednagar.
8. Sajan S/o Laxman Kapade,
Age 50 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, Dist.
Ahmednagar.
9. Sambhaji S/o Mahipati Kale,
Age 50 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, Dist.
Ahmednagar.
10. Raghunath S/o Eknath Najan,
Age 46 years, Occ. Lecturer in
New Arts, Commerce and Science
College, Parner, Dist.Ahmednagar.
11. Rahul S/o Saidaji Diggikar,
Age 42 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, Dist.
Ahmednagar.
12. Vijay S/o Punju Deore,
Age 51 years,
Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, Dist.
Ahmednagar.
13. Vijaykumar S/o Subhrav Raut,
Age 40 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
14. Dattatray S/o Vinayak Dalvi,
Age 58 years, Occ.Lecturer
in New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
15. Sanjay S/o Mohan Gaikwad,
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3 W.P.No.1514/17 with connected W.Ps.
Age 46 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
16. Deepak S/o Pandharinath Sontake,
Age 38 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
17. Dattatray S/o Sheshrao Ghungarde
Age 42 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
18. Yuvaraj S/o Manohar Waghere,
Age 35 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
19. Avinath S/o Vishnupanth
Mancharkar, Age 53 years,
Occ.Lecturer in New Arts,
Commerce and Science College,
Parner, District
Ahmednagar.
20. Hanumant S/o Yedu Gaikwad,
Age 48 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar.
21. Bhimraj S/o Jayram Kakade,
Age 52 years, Occ.Lecturer in
New Arts, Commerce and Science
College, Parner, District
Ahmednagar. ... Petitioners.
Versus
1. The State of Maharashtra
through its Chief Secretary,
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4 W.P.No.1514/17 with connected W.Ps.
General Administration
Department, Mantralaya,
Mumbai-32.
2. The Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
3. The Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
4. The State Election Commission,
through its Secretary,
Mumbai.
5. The Returning Officer,
Zilla Parishads and Panchayat
Samitis General Elections,
2017, Taluka Parner,
District Ahmednagar. ... Respondents.
...
Mr.S.B.Talekar, advocate for the petitioners.
Mrs.V.S.Patil, A.G.P. for the State.
Mr.S.T.Shelke, advocate for Respondent Nos.4 and
5.
...
WITH
WRIT PETITION NO.1473 OF 2017
1. Raju S/o Baliram Gore,
Age 48 years, Occ.Service,
2. Jairam S/o Gena Mete,
Age 58 years, Occ.Service.
3. Suryakant S/o Murlidharrao
Jogdand, Age 49 years,
Occ.Service,
4. Ghansham S/o Dharbaji Gore,
Age 51 years, Occ.Service,
5. Angad S/o Govindrao Pawar,
Age 54 years, Occ.Service.
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6. Suryakant S/o Dashrathrao Gire,
Age 53 years, Occ.Service.
7. Nanasaheb S/o Shankarrao Gaikwad,
Age 49 years, Occ.Service,
8. Balajisingh S/o Ramkishansingh
Thakur, Age 42 years, Occ.Service,
9. Sahebrao S/o Ramrao Maldode,
Age 41 years, Occ.Service.
10. Namdeo S/o Nivarati Mundhe,
Age 47 years, Occ.Service,
11. Ramesh S/o Baloji Mahewar,
Age 50 years, Occ.Service.
12. Nanasaheb S/o Pundhlikrao
Suryawanshi, AGe 50 years,
Occ.Service.
13. Amrut S/o Sawaji Jadhav,
Age 50 years, Occ.Service.
14. Ramesh S/o Mohanrao Dhondge,
Age 52 years, Occ.Service,
15. Navnath S/.o Nivrutti Bendre,
Age 34 years, Occ.Service.
16. Madhav S/o Marotirao Kendre,
Age 44 years, Occ.Service.
17. Jayram S/o Shriram Suryawanshi,
Age 34 years, Occ.Service,
18. Sanjaykumar S/o Virbhadrappa
Mandge, Age 52 years, Occ.Service.
19. Subhash S/o Ramkrishna Gundawar,
Age 52 years, Occ.Service.
20. Balaji S/o Babanrao Bondare,
Age 46 years, Occ.Service,
21. Shivraj S/o Subhanrao Mangnale,
Age 41 years, Occ.Service,
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22. Shivaji S/o Mansingrao Kendre,
Age 48 years, Occ.Service,
23. Dhananjay S/o Manikrao Pawar,
Age 52 years, Occ.Service.
24. Dr.Limbraj S/o Sopanrao Ravangave,
Age 54 years, Occ.Service,
25. Dr.Namdeo S/o Tukaram Khandare,
Age 52 years, Occ.Service.
All R/o C/o Shri Sant Gadage
Maharaj Mahavidyalaya Loha,
Tq.Loha, Dist.Nanded. ... Petitioners.
Versus
1. The State of Maharashtra,
through its Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2. The State Election Commission,
through its Commissioner,
Madam Kama Road, New
Administrative Building,
Opp. Mantralaya, Mumbai.
3. The Returning Officer for the
Zilla Parishad, Panchayat Samiti,
Elections Loha, Tq.Loha,
District Nanded. ... Respondents.
...
Mr.A.G.Ambetkar, advocate for the petitioners.
Mrs.V.S.Patil, A.G.P.for the State.
Mr.S.T.Shelke, advocate for Respondent Nos.1 and
2.
WITH
WRIT PETITION NO. 1643 OF 2017
1. Dr. Parshuram S/o Vithalrao Pawar
Age: 42 years, Occu: Service,
2. Dr. Sainath S/o Bhanudas Zangade
Age: 33 years, Occu: Service,
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7 W.P.No.1514/17 with connected W.Ps.
3. Dr. Ramrao S/o Baburao Rampure
Age: 49 years, Occu: Service,
4. Dr. Bharat S/o Vithalrao Shinde
Age: 45 years, Occu: Service,
5. Dr. Nanasaheb S/o Balasaheb Patil
Age: 45 years, Occu: Service,
6. Dr. Shradhanand S/o Babasaheb Mane
Age: 45 years, Occu: Service,
7. Dr. Dhondiram S/o Panditrao Gadgile
Age: 35 years, Occu: Service,
8. Dr. Kalidas S/o Prabhakar Gudade
Age: 40 years, Occu: Service,
9. Dr. Sanjay S/o Prakashrao Balaghate
Age: 35 years, Occu: Service,
10. Dr. Varsha Fakira Dabhade
Age: 35 years, Occu: Service,
11. Dr. Sukhdeo S/o Govindrao Chavan
Age: 44 years, Occu: Service,
12. Dr. Gangadhar S/o Nagorao Sontakke
Age: 46 years, Occu: Service,
13. Dr. Sanjay S/o Namdeorao Gadpayale
Age: 46 years, Occu: Service,
14. Raghunath S/o Bhimrao Mortate
Age: 55 years, Occu: Service,
15. Dr. Mohan S/o Munjaji Damare
Age: 46 years, Occu: Service,
16. Chandrakant S/o Marotrao Lohande
Age: 49 years, Occu: Service,
All R/o C/o. Madhavrao Patil Art,
Commerce and Science College Palam,
Tq. Palam, Dist. Parbhani ... Petitioners.
VERSUS
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8 W.P.No.1514/17 with connected W.Ps.
1. The State of Maharashtra,
Through its Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2. The State Election Commission,
Through its Commissioner,
Madam Kama Road, New
Administrative Building,
Opp. Mantralaya, Mumbai.
3. The Returning Officer for the,
Zilla Parishad, Panchayat Samiti
Elections Palam, Tq. Palam,
Dist. Parbhani ... Respondents
...
Mr.A.G.Ambetkar, advocate for the petitioners.
Mrs.V.S.Patil, A.G.P. for the State.
Mr.P.S.Paranjape, advocate for Respondent No.2.
...
WITH
WRIT PETITION NO. 1697 OF 2017
1. Bakhale Dr. Sukhdeo Rakhmaji,
Age: 57 years, Occu:
Associate Professor,
2. Waghmare Bhausaheb Sagaji,
Age: 57 years, Occu:
Associate Professor,
3. Bawake Dr. Balasaheb Bhimaji,
Age: 53 years, Occu:
Associate Professor,
4. Kalamkar Dr. Rajendra Parvati,
Age: 54 years, Occu:
Associate Professor,
5. Nagpure Vijay Bhausaheb,
Age: 35 years, Occu:
Associate Professor,
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9 W.P.No.1514/17 with connected W.Ps.
6. Sayyed Sadik Bashir,
Age: 50 years, Occu:
Associate Professor,
Petitioners No. 1 to 6
R/o. C/o. C.D. Jain College of
Commerce, Shrirampur,
Dist. Ahmednagar.
7. Dalvi Dr. Anup Sahdeo
Age: 40 years, Occu: Professor,
8. Niphade Bhaskar Vinayakrao
Age: 54 years, Occu: Professor,
9. Cholke Sunil Pandurang
Age: 53 years, Occu: Professor,
10. Sangle Dr. Mohan Dattu
Age: 54 years, Occu: Professor,
11. Chaudhari Chandrabhan Bhanudas
Age: 39 years, Occu: Professor,
12. Khilari Dr. Sunil Prabhakar
Age: 53 years, Occu: Professor,
13. Tonde Babasaheb Sakharam
Age: 43 years, Occu: Professor,
14. Khilare Dr. Shashikant Kuber
Age: 42 years, Occu: Professor,
15. Kale Dr. Chandrakant Narhari
Age: 38 years, Occu: Professor,
16. Pawar Dr. Kulbhushan Wamanrao
Age: 40 years, Occu: Professor,
17. Varpe Dr. Babasaheb Dadabhau
Age: 52 years, Occu: Professor,
18. Baddhe Pravin Vishnu
Age: 46 years, Occu: Professor,
19. Gagare Amirtkumar Shankarrao
Age: 40 years, Occu: Professor,
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20. Lokhande Dr. Ganesh Vishnu
Age: 37 years, Occu: Professor,
21. Shelke Dr. Balasaheb Shankar
Age: 42 years, Occu: Professor,
22. Auti Eknath Dharmaji
Age: 60 years, Occu: Professor,
23. Gardi Balu Pandurang
Age: 42 years, Occu: Professor,
24. Kakde Genudas Nivrutti
Age: 53 years, Occu: Professor,
25. Pawar Nanasaheb Chandrabhan,
Age: 48 years, Occu: Professor,
26. Barve Ramdas Vitthal
Age: 55 years, Occu: Professor,
27. Jagtap Rajendra Ramesh
Age: 39 years, Occu: Professor,
28. Ingle Chetan Devidas
Age: 36 years, Occu: Professor,
29. Vaidya Dr. Sanjay Govindrao
Age: 44 years, Occu: Professor,
30. Rahane Ashok Bhausaheb
Age: 44 years, Occu: Professor,
Petitoners No. 7 to 29
R/o. C/o. R.B.N.B. College,
Shrirampur, Dist. Ahmednagar.
31. Dr. Nannar Ramdas Kisan,
Age: 54 years, Occu:
Associate Professor,
32. Bhoye Chandrakant Murlidhar,
Age: 40 years, Occu:
Associate Professor,
33. Mengal Narayan Hemaji,
Age: 36 years, Occu: Librarian,
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34. Shinde Bhagwat Asaram,
Age: 38 years, Occu:
Associate Professor,
35. Karvar Anil Kisan,
Age: 54 years, Occu:
Associate Professor,
36. Patole Vijay Santu,
Age: 42 years, Occu:
Associate Professor,
Petitioners No. 30 to 36
R/o. C/o. S.S. Bharti
College of Education,
Shrirampur,Dist. Ahmednagar.... Petitioners.
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2. The State Election Commission,
New Administrative Building,
Opp. Mantralaya, Madam Kama Road,
Mumbai-32.
3. The Returning Officer for
holding the elections of
Zilla Parishad & Panchayat
Samiti,Shrirampur, Dist.
Ahmednagar. ... Respondents
...
Mr.P.B.Shirsath, advocate for the petitioners.
Mrs.V.S.Patil, A.G.P. for the State.
Mr.S.T.Shelke, advocate for Respondent Nos.2 and
3.
...
WITH
WRIT PETITION NO. 1698 OF 2017
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12 W.P.No.1514/17 with connected W.Ps.
1. Dattaprasad S/o Dnyandeo Palwe
Age: 42 years, Occ: Service,
2. Dr. Prashant S/o Suresh Salve
Age: 36 years, Occ: Service,
3. Ashok S/o Vaijinath Shinde
Age: 51 years, Occ: Service,
4. Dr. Ashok S/o Raghuji Dolas
Age: 40 years, Occ: Service,
5. Dr. Abhimanyu S/o Ramkisan Dhormare
Age: 34 years, Occ: Service,
6. Ananda S/o Hiraman Ghongade
Age: 40 years, Occ: Service,
7. Arjun S/o Shankar Kerkal
Age: 37 years, Occ: Service,
8. Arun S/o Mahadeo Rakh
Age: 38 years, Occ: Service,
9. Dr. Ashok S/o Kadubhau Kanade
Age: 44 years, Occ: Service,
10. Dr. Bhagwan S/o Dinkar Sangale
Age: 45 years, Occ: Service,
11. Bramhanand S/o Jalindar Darade
Age: 26 years, Occ: Service,
12. Dr. Ajaykumar S/o Madhukar Palwe
Age: 46 years, Occ: Service,
13. Vijay S/o Yashwant Deshmukh
Age: 45 years, Occ: Service,
All R/o. C/o. Babuji Avhad
Mahavidyalaya, Pathardi, Tq.
Pathardi,Dist.Ahmednagar. ... Petitioners
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
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13 W.P.No.1514/17 with connected W.Ps.
Rural Development Department,
Mantralay, Mumbai-32
2. The State Election Commission,
Through its Commissioner,
Madam Kama Road, New
Administrative Building,
Opp. Mantralaya, Mumbai.
3. The Returning Officer for the,
Zilla Parishad, Panchayat Samiti
Elections Pathardi, Tq. Pathardi,
Dist. Ahmednagar ... Respondents
...
Mr.A.G.Ambetkar, advocate for the petitioners.
Mrs.V.S.Patil, A.G.P. for the State.
Mr.S.T.Shelke, advocate for Respondent Nos.2 and
3.
...
WITH
WRIT PETITION NO. 1712 OF 2017
1. Sanntosh Savleram Bhujbal
Age: 41 years, Occ: Service,
R/o At post Bhalwani,
Taluka-Parner
District-Ahmednagar.
2. Vasant Murlidhar Nikale
Age: Major years, Occ: Service,
R/o At Post Rahata
Taluka- Rahata
District- Ahmednagar.
3. Ashok Sampat Pise
Age: Major years, Occ: Service,
R/o At Post-Karjat
Taluka-Karjat
District-Ahmednagar
4. Balbhim Bhausaheb Gawade
Age: Major years, Occ: Service,
R/o At Post Chawarsangavi
Taluka-Shrigonda,
District-Ahmednagar
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5. Rushikesh Haribhau Khodade
Age: Major years, Occ: Service,
R/o At Post-Chakan,
Taluka- Khed, Dist. Pune.
6. Mahedag Asaram Patil
Age: Major years, Occ: Service,
R/o At Post-Pimpri
District-Pune.
7. Santosh Jabaji Lagad
Age: Major years, Occ: Service,
R/o At Post-Athwad,
Taluka and District-Ahmednagar
8. Bapusaheb Babasaheb Thorat
Age: Major years, Occ: Service,
R/o At Post-Takali Bhan,
Taluka-Shrirampur,
District-Ahmednagar
9. Sanjay Gajaba Thube
Age: Major years, Occ: Service,
R/o At Post- Kanhur Pathar,
Taluka & District-Ahmednagar
10. Vandas Pandurang Pund
Age: Major years, Occ: Service,
R/o At Post-Aarangaon,
Taluka & District-Ahmednagar
11. Ashok Bhanudas Navale
Age: Major years, Occ: Service,
R/o At Post-Karmala,
District-Solapur.
12. Bhagwat Ganpat Yadav
Age: Major years, Occ: Service,
R/o At Post-Karjat
Taluka-Karjat, District-Ahmednagar
13. Bhaskar Nivrutti More
Age: Major years, Occ: Service,
R/o At Post-Karjat
Taluka-Karjat, District-Ahmednagar
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14. Kalyan Rajendra Watane
Age: Major years, Occ: Service,
R/o At Post-Devdhanora,
Taluka-Kalamb, Dist. Ahmednagar
15. Dattatray Malhari Chaudhari
Age: Major years, Occ: Service,
R/o At Post-Marwad,
Taluka-Mangalveda, District-Solapur
16. Pradeep Gopinath Magar
Age: Major years, Occ: Service,
R/o At Post-Jeur,
Taluka & District-Ahmednagar
17. Ashok Sahebrao Mhaske
Age: Major years, Occ: Service,
R/o At Post-Dahigaon,
Taluka & District-Ahmednagar.
18. Dagadu Shripati Kumbhar
Age: Major years, Occ: Service,
R/o At Post-Keloshi,
Taluka-Radhanagari, District-
Kolhapur
19. Baban Namdeo Kumbhar
Age: Major years, Occ: Service,
R/o At Post- Uplai,
Taluka-Barshi, District-Solapur
20. Ajit Popat Ingle
Age: Major years, Occ: Service,
R/o At Post-Karjat,
District-Ahmednagar
21. Pradip Mahadev Jagtap
Age: Major years, Occ: Service,
R/o At Post-Uplai,
Taluka- Madha,
District-Solapur
22. Mohammad rizwan Khan
Age: Major years, Occ: Service,
R/o At Post- Karjat,
District-Ahmednagar. ... Petitioners.
VERSUS
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1. The State Election Commission,
Maharashtra State
Through
The Chief Election Officer,
Maharashtra State,
General Administrative Department,
Madam Kama Road,
Hutatma Rajguru Chowk,
Mantralaya Extension, Mumbai-32
2. The Returning Officer
Zilla Parishad and Panchayat
Samiti Election 2017
Having Office at Tahsil Office,
Karjat, Taluka-Karjat,
District-Ahmednagar ... Respondents.
...
Mr.A.K.Gawali, advocate for the petitioners.
Mrs.V.S.Patil, A.G.P. for the State.
Mr.S.T.Shelke, advocate for Respondent Nos.1 and
2.
...
CORAM : S.V.GANGAPURWALA AND
K.L.WADANE,JJ.
Reserved on : 08.03.2017.
Pronounced on : 05.05.2017.
JUDGMENT (Per S.V.Gangapurwala,J.)
1. Rule. Rule made returnable forthwith.
With the consent of the parties, the petitions
are taken up for final hearing.
2. All these Writ Petitions are based on
similar set of facts and involve common question
of law, as such are decided together.
3. The petitioners herein are the
Associate Professors, Lecturers and the members
of the teaching staff of respective Colleges.
These petitioners are allotted election duty for
the elections of Zilla Parishad and Panchayat
Samiti. The petitioners assail the orders of the
Respondents allotting them election duty.
4. Mr.Talekar, learned counsel for the
petitioner in his lucid manner canvassed
following propositions :
a) Article 243-K of the Constitution of
India deals with the elections to Panchayat
Samiti. Article 243-K(4) provides that subject
to the provisions of the Constitution, the
Legislature of a State may, by law, make
provision with respect to all matters relating
to, or in connection with elections to
Panchayats. 243ZA(2) similarly deals with
elections to the Municipalities. Though the said
articles are brought into force with effect from
24.4.1993, the State Legislature has not yet
passed any law with regard to conduct of the
elections of the Panchayats or Municipalities on
the lines of the Representation of the People
Act, 1950 and the Representation of the People
Act, 1951.
b) In absence of any Legislation by the
State in this regard, the State Election
Commissioner does not have power to utilise the
services of the School or College teachers for
the purpose of holding elections of Zilla
Parishads, Panchayat Samitis and Corporations.
c) The Maharashtra Zilla Parishad and
Panchayat Samitis Act, 1961 and the Rules framed
thereunder do not provide for requisitioning of
staff for election. Similarly the Panchayats and
Municipalities Elections (Requisition of staff,
premises, vehicles etc.) Order, 1995 (hereinafter
referred to as Order 1995) passed by the State
Election Commissioner on 2.3.1995 and more
particularly clause 2 thereof specifically
provides for requisitioning of staff for
election, the teachers are excluded therefrom.
The learned counsel submits that in absence of
any power, the Respondents could not have
requisitioned the services of the members of the
teaching staff of the Colleges and the Schools.
d) The Election Commission has to act as
per law. When the Parliament or any State
Legislature has made valid law relating to or in
connection with elections then the Election
Commissioner shall act in conformity and not in
violation of such law. The learned counsel
relies on the judgment of the Apex Court in the
case of "M.S.Gill Vs. Chief Election Commissioner
reported in (1978) 1 SCC 405.
e) While requisitioning the services of
the petitioners, the Respondents have not
followed the dictum of the Apex Court in the
matter of "Election Commission of India Vs.
St.Mary's School" reported in (2008) 2 SCC 390,
wherein it is held that the teaching staff can be
put on duties of election work only on holidays
and non-teaching days. The said order is by
consensus. In the present case, the State
Election Commission has asked the petitioners to
undergo training on 4.2.2017, 10.2.2017 and
15.2.2017 all being working days. The said
judgment was delivered considering the provisions
in Section 159 of Representation of People Act,
1951 which required staff of certain authorities
to be made available for election works including
the staff of any institution which is financed
wholly or substantially by funds provided
directly or indirectly by Central Government or
the State Government. There is no similar
provision in the Order of 1995 passed by the
State Election Commissioner,Maharashtra. As such
the services of the members of the teaching staff
of the private Colleges and Schools though aided
can not be requisitioned for election duty.
f) The Respondents have also violated the
judgment of this Court delivered in
W.P.No.7482/2016, wherein this Court directed to
appoint people such as retired teachers, retired
Government servants on contract basis for the
purpose of performing the election duty in
consultation with the State Government. The
Election Commission was further directed to
consider about appointment of permanent staff for
that purpose. This Court had further made it
clear that under no circumstances,
teachers/lecturers/professors shall be asked to
do election duty on working days as directed by
the Apex Court.
g) The Order of 1995 is unconstitutional.
The State Election Commissioner, Maharashtra
State can not act as a super-Legislature and
thereby arrogate the powers of law making unto
himself. Clause 9 of Order 1995, prescribes
punishment for offences under sub-clauses (1) or
(2) of clause (9) with imprisonment for a term
which may extend to one year or with fine or with
both. The State Election Commissioner,
Maharashtra has prescribed far more severe
punishment than provided under Section 134 of the
Representation of People Act, 1951 for breaches
of official duties in connection with elections.
The State Election in the garb of passing order
for regulating the conduct of elections can not
take upon itself a purely legislative activity
which has been reserved only to Parliament and
the State Lagislature. The learned counsel
relies on the judgment of the Apex Court in the
case of "A.C.Jose Vs. Sivan Pillai" reported in
(1984) 2 SCC 656.
h) The State Government is under
obligation to provide educational facilities at
all levels to his citizens. Right to Education
is implicit in the right to life which is also
considered as a basic structure of the
Constitution. It can not be dispensed even for
holding elections for Panchayats and
Municipalities.
i) The teachers who are requisitioned are
illtreated at the hands of the Revenue Officers,
Returning Officers. There is lack of
accommodation, pick and choose policies are
adopted by the Returning Officer while
requisitioning the staff. The petitioners are
required to work under Class III employees which
itself is derogatory. The Respondents have merely
denied the allegations regarding illtreatment,
lack of accommodation, non-payment of allowances.
In fact specific instances are given in the
petition to that effect.
5. Mr.Shelke, learned counsel for the
Respondent Nos.4 and 5 eruditely put forth
following submissions :
a) The allegations and averments made
about illtreatment and other aspects is without
any basis, substance and proof. The Apex Court
has held in the case of "Election Commission of
India Vs. St.Mary's School" referred to supra
that number of Government/Semi Government/Local
bodies employees fall short of required hands for
conducting elections and the Election Commission
has to requisition other staff like School
Teachers etc. The said judgment is consensual.
In the present case the services of the teachers
are required for election duty. The Government
also declares holiday on the day of poll.
Training is also given to the petitioners on the
holidays.
b) In absence of Legislation for
requisition of staff for election, the State
Election Commission has legitimately under his
powers issued order dated 2.3.1995. Clause 2 of
the said order so also the expression in the
explanation "any body" constituted under any law
for the time being in force will have to be
interpreted liberally, so as to include the
College also which is established under the
Maharashtra University Act. The Election
Commission is the reservoir of power and can
issue necessary instructions or orders for fair
and free elections. The learned counsel relies
on the judgment of the Apex Court in the case of
"Mohinder Singh Gill Vs. Chief Election
Commissioner" reported in [(1978)] SCC
405,"A.C.Jose Vs. Sivan Pillai" reported in [AIR
(1984) SC 921], "Union of India Vs.
Association for Democratic Reforms" reported in
[(AIR (2002) SC 2112 and "Prashant Bamb Vs. State
and others" reported in [2007(4) Mh.L.J.341].
c) It is further submitted by the learned
counsel that Section 9-A(4) of Maharashtra Zilla
Parishad and Panchayat Samiti Act, 1961 also
empowers the Election Commissioner to issue such
special or general orders or directions
consistent with the provisions of the Act for
fair and free election. The Election Commission
invoking the constitutional and statutory
provisions has issued the order dated 2.3.1995.
d) Chapter II of the Maharashtra Zilla
Parishads (Electro Divisions and Conduct of
Elections) Rules, 1961 also permits the Collector
to appoint Returning Officer and it is the
general duty of the Returning Officer to do all
such acts and things as may be necessary for
effectually conducting the elections of Zilla
Parishad and Panchayat Samiti. In view of this
provision, the Returning Officer has issued
orders soliciting services of the petitioners.
To illustrate, in Parner Taluka around 1717
persons were required for election purpose and
the staff of Government/Semi Government/Local
body was not sufficient to meet the requirement
and, therefore, the petitioners were
requisitioned.
f) The learned counsel further submits
that Section 27 of the Right of Children to Free
and Compulsory Education Act, 2009 also
authorises the Election Commissioner to allot
election duties to teachers. The State Election
Commissioner has issued order dated 11.11.2008
that training of election duties be given on
holidays as far as practicable.
g) The election work is a national work
and the citizens including the petitioners are
required to contribute in this work. The
employees of Departments rendering essential
services are not assigned election duties.
h) The teachers command high respect of
the society including the Returning Officer. The
allegations that they are treated like slaves or
beasts is false. In our civilized society, it
can not be thought of that the teachers are given
the treatment like slaves. The Returning
Officers are Class I gazetted Officers and the
Polling staff work under Officer and not under
Zonal Officer. The allegations that Zonal
Officers abuse Presiding Officers in most filthy
language and that they are required to work under
inhuman conditions, so also that Returning
Officer adopt the policy of pick and choose while
requisitioning the staff are totally incorrect.
i) The election duty is a pious
obligation, in order to strengthen the democracy,
it is expected of everyone to contribute in this
holy work. The Writ Petition be dismissed.
6. We have considered the submissions
canvassed by the learned counsel for respective
parties, so also the provisions of the different
statutes relied by the respective parties and the
Order of 1995 issued by the State Election
Commission.
7. Article 243-K dealing with elections to
Panchayat and Article 243-ZA of the Constitution
of India dealing with elections to the
Municipalities empowers the Legislature of the
State to legislate and make provision with
respect to all matters relating to or in
connection with elections to
Panchayats/Municipalities. These articles have
been introduced with effect from 24.4.1993,
however, as yet the State Legislature has not
passed any law as contemplated under said Article
243-K and 243-ZA on the lines of the
Representation of the People Act, 1950 and 1951.
8. Section 159 of the Representation of
People Act, 1951 specifically provides that the
authorities specified in sub-section (2) shall
when so requisitioned 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.
University established under the Central
Provincial or State Act is included therein, so
also any other institution, concern or
undertaking 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 or
the State Government is also included in it. The
staff of such institution, University can be
requisitioned for the purpose of election. The
said provision of Section 159 of Representation
of People Act would be applicable for the
elections to the houses of Parliament and to the
house or houses of the Legislature of each State.
The State Legislature though empowered under
Article 243-K(4) and Article 243-ZA(2) to enact
laws for conduct of election of
Panchayats/Municipalities has not enacted any law
till date. The State Election Commission, as
such has issued the order on 2.3.1995 namely the
Panchayats and the Municipalities Elections
(Requisitioning of staff, premises, vehicles
etc.) Order 1995. The said order applies to the
Panchayats and/or Municipalities. The same was
necessitated because the relevant State Acts
under which the Panchayats and the Municipalities
are constituted did not provide for
requisitioning the staff, premises, vehicles that
may be required at or for an election to a
Panchayat or a Municipality. The State Election
Commission, as such has exercised its powers in
issuing the said order. The Election Commission
has plenary powers to cope with certain situation
which may not be provided for in the enacted laws
and rules.
9. Clause 2 of the Order 1995 is relevant
for consideration in the present matter. The
same reads as under :
"2. Requisitioning of Staff
for election. - Every State Government
Department or Office, local authority,
Corporation owned or controlled by the
State Government, or a company or any
subsidiary company set up by the State
Government, in the State shall, when
so requested, in the case of any
election to a Municipal Corporation,
by the Municipal Commissioner
concerned or, in any other case, by
the Collector, or by an officer
authorised by the Municipal
Commissioner or, as the case may be,
by the Collector (hereinafter in the
Order referred to as "the
requisitioning authority"), make
available to them such staff as may be
necessary for the performance of any
duty in connection with the
preparation and revision of electoral
roll or list of voters and the conduct
of election.
Explanation. - For the
purpose of this clause, -
(1) the expression "a
corporation" means any body corporate
and shall include a society registered
under the Societies Registration Act,
1860 (21 of 1860) in its application
to the State of Maharashtra or any
body constituted under any law for the
time being in force;
(2) the expression "a
corporation controlled by the State
Government" shall include a
corporation in which not less than
twenty five per cent of the paid up
share capital is held by the State
Government;
(3) the expression "staff"
shall include officers."
10. Perusal of the said clause 2, it is
manifest that it deals with the powers to
requisition the staff for election. Explanation
to the said clause 2 explains terminologies
appearing in clause 2. The said provision
explicitly provides that every State Government
Department or office, local authority,
Corporation owned or controlled by the State
Government or a company or any subsidiary company
set up by the State Government in the State shall
when so requisitioned by the Municipal
Commissioner in case of election to a Municipal
Corporation or by the Collector make available to
them such staff as may be necessary for the
performance of any duty in connection with the
preparation and revision of electoral roll or
list of voters and the conduct of election.
The expression "Corporation" has been
explained in clause (1) of Explanation to clause
(2) which means any body corporate and also
includes a society registered under the Societies
Registration Act, or any body constituted under
any law for the time being in force. The meaning
of expression Corporation clarified in clause (1)
of Explanation is referable to a Corporation
owned by the State Government. It includes a
society registered under the Societies
Registration Act, however, such a Corporation is
the one owned by the State Government and an
expression a Corporation controlled by the State
Government has been explained in clause (2) of
the Explanation which means it includes a
Corporation in which not less than twenty five
per cent of the paid up share capital is held by
the State Government. Clause (2) of the order
1995 which empowers requisition of staff for
election has to be a person employed or working
in a State Government Department or office, a
local authority, Corporation owned or controlled
by the State Government.
11. We have to read an Explanation in the
context of the provision. An explanation does not
enlarge the scope of the original Section that it
is supposed to explain. It is settled law that
explanation to Section is not a substantive
provision by itself. It is entitled to explain
the meaning of the words contained in the Section
or clarify certain ambiguities. The explanation
should be read so as to harmonise with and clear
up any ambiguity in the main Section. It should
not be so construed as to alter the ambit of the
Section. Its basic function is to elucidate the
main provision.
12. We will have to read and interpret the
explanation to clause 2 of Order 1995 keeping in
view the aforesaid principle of Interpretation.
The expression "Corporation" referred to in
clause 1 of the Explanation is the one referrable
to Corporation owned by the State Government and
the Corporation as referred to in clause 2 of
Explanation is the one referable to Corporation
controlled by the State Government. Private
aided Colleges are excluded from the purview of
clause (2) of Order of 1995. Interpreting the
said clause (2) even liberally we can not include
priviate aided Colleges even remotely within the
realm of clause (2) of the Order of 1995. No
doubt, the Commissioner has the power to issue
an order for requisition of staff but the order
of 1995 as it stands excludes from its operation,
the staff of private aided/unaided Colleges.
Private aided Colleges can not be included within
the realm of expression Corporation owned or
controlled by the State Government. The private
College is not a local authority nor a State
Government Department or Office nor a subsidiary
Company set up by the State Government. If the
said clause (2) would have been on the lines of
Section 159 of the Representation of People Act,
1951 then it could have been possible to hold the
teachers working in aided Colleges receiving
grant-in-aid from the Government to be liable for
requisition for election duty. In absence of
similar clause in Order of 1995, it will not be
possible to hold that the teachers working in
private aided/unaided Colleges can be subjected
to requisition for the purpose of election duty.
The reliance placed on Maharashtra Zilla
Parishads (Electoral Divisions and Conduct of
Election) Rules, 1962, more particularly, the
powers of the Returning Officer to appoint
Presiding and/or Polling Officers would not enure
to the benefit of the Respondents. The Returning
Officer can appoint a Presiding Officer only from
a staff which is requisitioned.
13. It is true that Section 27 of the Right
of Children to Free and Compulsory Education Act,
2009 suggest that teachers can be deployed for
decennial population census, disaster relief
duties or duties relating to elections to the
local authority or the State Legislature or
Parliament, as the case may be. However, the
provisions of the Right of Children to free and
Compulsory Education Act, would be applicable to
the extent of primary teachers i.e. teachers
teaching from lst to 8th standard as the said Act
is applicable for primary Schools imparting
elementary education from Ist to 8th standard.
The same would not apply to the teachers of
higher secondary or Colleges.
14. There can not be any dispute that
conduct of election is a pious obligation of the
State and every citizen is required to contribute
for the conduct of free and fair elections.
There is no bar for the lecturers of Colleges
offering voluntary services. In the case of
"Election Commission of India Vs. St.Mary's
School" referred to supra, Order of 1995 issued
by the State Election Commissioner was not the
subject matter of discussion nor in any of the
judgments of the Division Bench of this Court
referred to by the learned counsel it appears
that the order of 1995 was a subject matter of
debate.
15. Considering the aforesaid, it would not
be within the powers of the Respondents to
requsition the teachers of the aided/unaided
Colleges for the purpose of election relying upon
Order of 1995 issued by the State Election
Commission. As it is held that the said order is
not applicable to the teachers of aided/unaided
Colleges and they do not come within the purview
of clause (2) of the said Order, needless to
state the other clauses with regard to punishment
etc. would also not apply to them. It appears
that the elections are already over. As the
order of 1995 stands today, it will have to be
held that the services of the teachers of the
Colleges can not be requisitioned for the
election of the Panchayats and Municipalities.
As we have held that the order of 1995 would not
empower the Respondents to requisition the
services of the staff of private aided and
unaided Colleges for the elections of Panchayats
and Municipalities. The other prayers would not
survive.
16. Rule made absolute accordingly. No
costs.
Sd/- Sd/-
(K.L.WADANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/WP1514.17
