Calcutta High Court (Appellete Side)
Nilay Kumar Maitra & Anr vs Chief Election Commissioner & Ors on 3 July, 2023
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03.07.2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. 14861 of 2023
Nilay Kumar Maitra & Anr.
Vs.
Chief Election Commissioner & Ors.
Mr. Amarnath Sukul
...for the petitioners
Mr. S. Bandopadhyay,
Mr. Arka Kumar Nag
...for the State
Mr. Anuran Samanta
...for the E.C.I.
Learned counsel appearing for the petitioners
contends that the petitioners, who are Professors in
Government Colleges, being classified under Group-A
equivalent to senior officers, have been drafted to do
polling duties in polling stations without complying
with the Circular issued by the Commission itself on
February 16, 2010, which stipulates that, without
specific reasons to be recorded in writing by the
District Election Officer, such appointments cannot be
made in respect of Group-A or equivalent senior
officers.
Learned counsel appearing for the State of West
Bengal submits that in a similar matter, a coordinate
Bench was pleased to observe that there is dearth of
polling officers in the entire State and, as such, the
2
petitioners therein were directed to do their election
duties subject, however, to maintaining proper
seniority.
However, there are two distinctions between the
said judgment and the present case. First, in the
present case, despite service, the State Election
Commissioner is not being represented on several
occasions. Secondly, there is nothing on record to
indicate that the petitioners insist upon their hierarchy
being maintained. The dispute in the present case is
not regarding maintaining the hierarchy in doing
election duties but regarding drafting of the petitioners
for polling duties as a whole.
As such, the present issue is distinct and different
from that which arose before the learned Single Judge.
Vide communication No. 464/INST/2009/EPS
dated February 16, 2010, the Under Secretary of the
Election Commission of India clearly issued a directive
on the subject of requisition of staff for election
purpose.
It was specified in the first paragraph thereof that
the Election Commission of India had directed the
Chief Electoral Officers of all States/Union Territories
to adhere strictly in true spirit to the guidelines while
making appointments and requisitioning staff for the
conduct of free and fair polls.
3
In the second paragraph thereof, it is stipulated
that the Commission further desires that Group A or
equivalent senior officers, including teaching staff of
universities, colleges, etc., should not be drafted for
polling duties in polling station premises without
specific reasons to be recorded in writing by the
District Election Officer, where such appointments
become unavoidable.
It is seen from the array of parties in the present
writ petition that the Chief Electoral Officer, West
Bengal has been impleaded as respondent no. 3.
Learned counsel appearing for the Chief Electoral
Officer, who is also appearing for the Election
Commission of India, submits that the Chief Electoral
Officer has no role to play in drafting of the petitioners.
The game of passing the buck is a common
malady in our country. Unfortunately, when high
authorities are also afflicted with the same ailment, it
is unfortunate for the common litigant.
In the present case, the Chief Electoral Officer,
through counsel, by-passes his liability by saying that
he has no role to play in drafting of the petitioners as
polling officers.
Since the communication dated February 16,
2010 clearly stipulates that the Chief Electoral Officers
were directed to ensure that the stipulation therein are
complied with, in the absence of any action on the part
of the Chief Electoral Officer, the State Election
Commission had no business to draft the present
petitioners, who are senior teaching staff of universities
and colleges, for polling duty without complying with
the Circular dated February 16, 2010.
There is nothing on record or produced by the
respondents to indicate that either specific reasons for
drafting the petitioners were recorded or that the
appointment of the petitioners in polling stations was
unavoidable.
The court cannot proceed on the basis of
conjecture and surmise in calculating the total number
of polling stations and indicating as to what is the
exact number of polling officers required, more so, in
the teeth of the Circular referred to above.
Hence, there being nothing on record to justify the
appointments of the present petitioners, who are
Professors, equivalent to Group-A senior staff in the
colleges and universities, the same cannot stand the
scrutiny of law due to patent violation of the above-
referred Circular.
Accordingly, W.P.A. No. 14861 of 2023 is allowed
on contest, thereby directing the respondent-
authorities to release the petitioners from election duty
in the oncoming Panchayat Election.
However, it is made clear that nothing in this
order shall prevent the respondent-authorities, be it
the Chief Electoral Officer and/or any other
appropriate election authority, to draft the professors
of colleges and universities for doing election duty,
subject to compliance of all necessary formalities,
including those stipulated in the Circular dated
February 16, 2010. If such regulations and law are
complied with, there will be no impediment in such
drafting being done with regard to such
officers/professors.
There will be no order as to costs.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance of all necessary formalities.
(Sabyasachi Bhattacharyya, J.)
