Somjit Ray And Others vs The State Of West Bengal And Others
2023 Latest Caselaw 4163 Cal

                      In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          WPA No. 15075 of 2023

                          Somjit Ray and others
                                    Vs.
                    The State of West Bengal and others

                                   With

                          WPA No. 15079 of 2023

                         Biplab Biswas and others
                                    Vs.
                    The State of West Bengal and others


    For the petitioners
    In WPA No.15075 of 2023        :      Mrs. Sonali Mitra,
                                          Ms. Samriddhi Bose

    For the petitioners
    In WPA No.15079 of 2023        :      Mr. M. N. Roy,
                                          Mr. B. Nandy

    For the State                  :      Mr. S. N. Mookherjee,
                                          Mr. Sirsanya Bandopadhyay,
                                          Mr. Arka Kumar Nag

    For the
    State Election Commission      :      Mr. Kishore Datta,
                                          Ms. Sonal Sinha,
                                          Ms. Sumita Shaw,
                                          Mr. Sujit Gupta,
                                          Mr. Sayan Datta,
                                          Mr. Soumen Chatterjee
    For the
    Election Commission of India :        Mr. Anuran Samanta


    Hearing concluded on            :     05.07.2023

    Judgment on                     :     07.07.2023
                                       2


     Sabyasachi Bhattacharyya, J:-



1.

The petitioners in both the matters are Professors/teachers in various

Government colleges/universities. The present challenge has been

preferred against the deployment of the petitioners as Presiding

Officers in the ongoing Panchayat Elections, to be deputed at the

polling stations. Learned counsel for the petitioners argues that as

per the Notification dated February 16, 2010 issued by the Elections

Commission of India (ECI), 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 further

submitted that even the West Bengal State Election Commission

(SEC), in its notification dated May 10, 2018, clarified that seniority of

officials should properly be taken care of while giving election related

duty and it should be ensured that a senior official is not put on duty

under an official who is quite junior to him/her.

2. The learned Advocate General, appearing on behalf of the State, places

reliance on the judgment of a co-ordinate Bench of this Court reported

at 2019 SCC OnLine Cal 754 [All Bengal State Government College

Teachers' Association and another Vs. Election Commission of India

and others]. The learned Single Judge held in connection with an

election proceeding, that the Polling Officers report to the Presiding

Officers who, in turn, report to the Chief Electoral Officer of the State.

Therefore, in such hierarchy of things, a Presiding Officer, at which

the members of the first petitioner therein are likely to be appointed in

the election process, will not be placed below any person lower in

rank. A submission was recorded that the Court need not pass orders

on surmise, apprehension and conjectures which, according to the

learned advocate appearing for the ECI, at that stage of the writ

petition.

3. Thus, it is argued that the engagement as Presiding Officer in a polling

station of the petitioners was not derogatory to their seniority in any

manner, since the Presiding Officer was the senior-most officer

functioning in the booth.

4. The learned Advocate General also cites a judgment rendered by a

Division Bench of this Court presided over by the Chief Justice, in

connection with a Public Interest Litigation, where the relevant

provisions of The West Bengal State Election Commission Act, 1994

(for short, "the 1994 Act") and The West Bengal Panchayat Elections

Act, 2003 (in brief, "the 2003 Act") were considered. The Division

Bench also considered the relevant portions of the handbook of the

Returning Officer (Panchayat Election) with regard to selection of

polling personnel. It was held therein that in view of the provisions

laid down under the 1994 Act read with the 2003 Act with regard to

appoint of Presiding Officers and Polling Officers, the Court was of the

considered view that persons who do not suffer any disqualification for

appointment as Presiding Officers and Polling Officers as specially

provided under Section 6 of the 1994 Act read with Section 28(1) of

the 2003 Act can be appointed as Presiding Officers and Polling

Officers. Following the said judgment, a Learned Single Judge of this

Court, vide Order dated June 28, 2023 passed in WPA No.15252 of

2023 [Joydeep Sengupta and others Vs. The West Bengal State Election

Commission and others], also held in similar line, upon considering the

submission of the State that there would be acute shortage of

Presiding Officers and it would be difficult to manage the election

procedure if all Assistant Professors are exempted of their polling

duty.

5. The learned Advocate General next relies on a judgment of the

Supreme Court in Kishansing Tomar Vs. Municipal Corporation of the

City of Ahmedabad and others, reported at (2006) 8 SCC 352. In the

said judgment, the primacy of the SEC was recognized by the

Supreme Court by observing that it enjoys the same status in its

domain as the ECI with regard to superintendence, direction and

control as well as conduct of elections.

6. Learned counsel for the petitioners, in reply, submits that, within the

Scheme of Section 29 of the 2003 Act, the general duty of the

Presiding Officer at a polling station is to keep peace and order therein

and to see that the poll is fairly taken and counting of votes is done.

Such activity, however, as per the said Section, is subject to the

general guidance, superintendence and control of the Panchayat

Returning Officer, who is generally a Block Development Officer

having lower pay-scale than the petitioners. Hence, it is submitted

that the superintendence and control of the Panchayat Returning

Officer, who is quite junior to the petitioners, would operate in

contravention of the Notification dated May 10, 2018 issued by the

SEC.

7. Heard learned counsel for the parties. As per Section 6(5) of the 1994

Act, the appointment of a Presiding Officer, in which post the

petitioners have been allotted, is made by the Panchayat Returning

Officer, who is usually a District Magistrate. Under Section 23(2) of

the 2003 Act, the Panchayat Returning Officer usually, subject to the

direction and control of the Commission, does all such acts and things

as may be necessary for effectually conducting the election in the

manner provided under the said Act. Under Section 28(1) of the 2003

Act, subject to the provisions of Section 6(5) of the 1994 Act, the

Panchayat Returning Officer shall, with the prior approval of the

District Panchayat Election Officer, appoint a Presiding Officer for

each polling station and such number of Polling Officer or Officers to

assist the Presiding Officer as he thinks necessary but shall not

appoint any person who has been employed by or on behalf of or has

been working for a candidate in or about the election as a Presiding

Officer or a Polling Officer.

8. A composite reading of Section 28(1) of the 2003 Act with Section 6(5)

of the 1994 Act indicates that the appointment of Presiding Officers in

Panchayat Elections shall be made by the Returning Officer, with the

prior approval of the District Panchayat Election Officer, who is of the

rank of a District Magistrate, thus, not junior to the petitioners. As

such, the appointment of the Presiding Officer at the polling stations,

although made by the Returning Officer, has to be with approval of the

Electoral Officer.

9. Another factor which has to be considered is that that Notification

dated May 10, 2018 provides that seniority of officials should be

properly taken care of and it should be ensured that a senior official is

not put on duty under an official who is quite junior to him/her.

10. A Presiding Officer, in his/her activity as a Presiding Officer, is

confined to the polling station. The limited duty of the Presiding

Officer, over and above booth duty, is to ensure that the election

documents are submitted to the Returning Officer.

11. Although Section 29 of the 2003 Act provides that the work of the

Presiding Officer will be subject to the general guidance,

superintendence and control of the Panchayat Returning Officer, the

Returning Officer does not have a direct role to play within the polling

station, which is the domain of activity of a Presiding Officer, where

the Presiding Officer has the prerogative to keep peace and order and

to see that the poll is fairly taken and counting of votes is done. In

discharging such job, also taking into account the Handbook cited by

the learned counsel for the petitioners in respect of the scope of work

of Presiding Officers issued by the Election Commission of India, it is

seen that the Presiding Officer has to maintain a diary where several

important entries regarding the polling are to be made. Naturally,

such job cannot be entrusted to a person not having sufficient

educational acumen to deal with the issues involved. A short note at

the end of the said Handbook states that the diary kept by the

Presiding Officer has to be forwarded to the Returning Officer with the

voting machine, Visit Sheet, `16-Point Observer‟s Report‟ and other

sealed papers. The physical act of forwarding the same to the

Returning Officer does not imply subjugation of the Presiding Officer

under the Returning Officer in any manner whatsoever.

12. Interpreted rationally, the Notification dated may 10, 2018 issued by

the SEC can only imply that a senior official is not put on duty under

an official who is quite junior to him/her. Since the Polling Officers

are Government Employees and have a lower pay-scale than the

petitioners, it cannot be said by any stretch of imagination that the

Presiding Officer is "put on duty" under an official who is quite junior

to him/her. That apart, the service cadre of Professors in colleges and

universities is entirely different from that of the Returning officer and,

as such, the general power of supervision of the Returning Officer

cannot be said to be a deterrent to officials senior to him/her in

performing their duties.

13. In any event, such appointment cannot be said to be demeaning, since

the Presiding Officer has absolute authority within the polling station,

which is the entire sphere of their deployment. The general powers of

superintendence referred to in the provisions of law are not on such a

serious footing that those powers would be construed to put the

Presiding Officer "on duty under an official who is quite junior to

him/her".

14. Insofar as the judgment of the learned Single Judge in All Bengal State

Government College Teachers' Association and another (supra) is

concerned, it was observed on the submission of the ECI that in the

hierarchy of things a Presiding Officer will not be placed below any

person lower in rank.

15. In fact, the same is also evident from the Scheme of both the statutes

as discussed above.

16. The Notification dated February 16, 2010, in any event, is not

germane in the present context, since the same was issued by the ECI

with regard to elections of Parliament and State Legislatures. The

SEC has co-equal jurisdiction with the ECI in respect of Panchayat

Elections and exercises the same unfettered authority which the ECI

wields in respect of Parliamentary and Legislative elections. Hence,

the said Notification is not binding in the present case at all.

17. As held by the Division Bench in the Public Interest Litigation referred

to by the State, persons who do not suffer any disqualification for

appointment as Presiding Officers and Polling Officers under Section 6

of the 1994 Act, read with Section 28(1) of the 2003 Act, can be

appointed as Presiding Officers and Polling Officers. In the present

case, the said consideration is satisfied and, as such, there is nothing

special to exclude the petitioners from being deployed for election

duty, having been contemplated as eligible to be so deployed under

the law.

18. The judgment of Kishansing Tomar (supra) is not directly relevant in

the present context, as none of the parties disputes the unfettered

powers of the SEC with regard to Panchayat Elections under the

Scheme of the 2003 Act and the 1994 Act.

19. Another factor which has to be considered is that the pay-scale of the

Returning Officers (BDO) has been argued by the petitioners to be

lower than that of the petitioners. However, mere pay-scale, in the

absence of any other factor, may not be a determinant of seniority, if

the service is not the same. The service where a BDO is employed is

entirely different from that of senior staff in colleges and universities

and the two are not comparable in terms. As such, there is no

occasion to hold that the petitioners, if deployed as Presiding Officers

in polling booths, would be put on duty under an official "who is quite

junior to him/her". Hence, there is no merit in the writ petitions.

20. Accordingly, WPA No.15075 of 2023 and WPA No.15079 of 2023 are

dismissed on contest, without any order as to costs.

21. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )