Akhil Dilli Prathmik Shikshak ... vs Govt. Of Nct Of Delhi (Gnctd)
2008 Latest Caselaw 1396 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P.(C) 5019/2008

                                        Date of order: August 20, 2008


        AKHIL DILLI PRATHMIK SHIKSHAK SANGH
            (REGD.)                               ..... Petitioner
                          Through Mr. Ranjit Sharma, Advocate

                           versus

        GOVT. OF NCT OF DELHI & ORS               ..... Respondents
                           Through Mr. P.C. Chopra with Mr.S.K.
                           Mendiratta, Advocate for ECI.
                           Mr. N.Waziri with Mr. V.K. Tandon,
                           Advocate for GNCTD.
                           Ms. Maninder Acharya, Advocate for MCD.
        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE DR. JUSTICE S. MURALIDHAR


        1.      Whether Reporters of local papers may be
                allowed to see the judgment?                      Yes
        2.      To be referred to the Reporter or not?            Yes
        3.      Whether the judgment should be reported
               in Digest?                                         Yes

                             ORDER

1. This petition filed by Akhil Dilli Prathamik Shikshak Sangh under

Article 226 of the Constitution of India seeks the following relief:

"(a) Issue an appropriate writ quashing the directive of the respondent dated 25.4.2008 and similar other directives whereby the MCD teachers have been directed to carry out verification of voters I-card in addition to their normal duty of teaching which is contrary to general public interest and breach of fundamental rights of the children below 14 years of age."

2. The question of deploying teachers employed in schools run by the

state government or municipal corporations for work connected with the

conduct of elections, including revision of electoral rolls in terms of the

Representation of the People Act 1950 („RP Act 1950‟), was considered by

the Supreme Court in Election Commission of India v. St. Mary's School

(2008) 2 SCC 390. The said decision was rendered in an appeal filed by the

Election Commission of India against the judgment dated 11th August 2004

passed by this Court in WP (C) 1076 of 2003 in which a statement was

recorded that the respondents Government of the National Capital Territory

of Delhi („GNCTD‟), the New Delhi Municipal Council („NDMC‟) and the

Municipal Corporation of Delhi („MCD‟) had accepted that the services of

the teachers would be utilized for non-teaching purposes only on a day

which was not a working day for the students. Before the Supreme Court it

was contended by the Election Commission of India that under Article 324

(6) of the Constitution of India the Central Government and State

Government have a duty to make available to the Election Commission of

India adequate staff for the discharge of its functions and powers of

superintendence, direction and control of elections under Article 324 of the

Constitution. A reference was made to Section 29 of the RP Act 1950 which

mandates that every local authority shall, when so requested by the Chief

Electoral Officer of the State, make available to any electoral registration

officer such staff as is necessary for the performance of the duties in

connection with the preparation and revision of electoral rolls. It was

observed by the Supreme Court that (SCC, p.402): "the question if the right

to exercise franchise is an important one.... right to education is also no less

important being a fundamental right." Thereafter the Supreme Court, while

dismissing the appeal of the Election Commission of India, observed as

under (SCC, p.403):

"33. We would, however, notice that the Election Commission before us also

categorically stated that as far as possible teachers would be put on electoral roll revision works on holidays, non-teaching days and non-teaching hours, whereas non- teaching staff shall be put on duty any time. We, therefore, direct that all teaching staff shall be put on the duties of roll revisions and election works on holidays and non-teaching days. Teachers should not ordinarily be put on duty on teaching days and within teaching hours. Non- teaching staff, however, may be put on such duties on any day or at any time, if permissible in law." (emphasis supplied)

3. The above judgment of the Supreme Court should have laid to rest

any doubts whether teachers could be deployed for the work in connection

with elections during school working days and hours. However, this petition

by an association primary school teachers in Delhi suggests otherwise. Its

genesis is in a communication dated 21st March 2008 written by the Chief

Secretary, GNCTD to the Commissioner of MCD which reads as under:

"The Election Commission of India will hold the Assembly elections in December 2008 and has stressed on the need to appoint Booth Level Officers who are to function as the officials in the community who would regularly add and suggest names within the area of the polling booths. They would be compensated for doing the work which is normally done after office hours and on holidays. The shortage of officers for doing this work was discussed with the Election Commission and it is informed that the coverage of primary school teachers of MCD is fairly large and they could be inducted to function as Booth Level Officers. They would be compensated for doing the extra work after the teaching hours.

I shall be grateful if you kindly give a list of all the

teachers of which there are almost 15000 in the MCD, from the existing data base of the teachers. The list could be given to the Chief Electoral Officer (CEO) Ms. Satbir Silas, who give the names to the Deputy Commissioners who are Returning Officers. You may also like to issue order to the DEOs of MCD to cooperate with the Returning Officers/ Deputy Commissioners and give the names of the teachers who could be identified as Booth Level Officers. This is not a very tiring job since it is only for updation of the data which could be done after office hours and they would be suitably compensated for this work."

4. Acting on the above letter the Commissioner, MCD supplied to

GNCTD a list of primary school teachers who could be deployed as Booth

Level Officer („BLO‟) for the work of verification of voter identity cards.

This list included female, male and disabled teachers. It is apparent that this

was done essentially because there are around 15,000 teachers on the rolls of

the MCD and they, therefore, constitute the largest percentage. Letters were

issued to individual teachers placing their services as BLOs with the

Election Commission of India. It was stated in each such letter issued by the

Electoral Registration Officer (ERO) that during the duration of their tenure

as BLO they would be under the disciplinary control of the Election

Commission of India. One such letter dated 25th April 2008 has been

enclosed to the writ petition and is in a standard format. It is this letter that is

that is the subject matter of challenge in this petition.

5. It appears that in Delhi the work of verification of the voter I-cards

had to be extended beyond 1st July 2008 i.e. beyond the date on which the

schools reopened after the summer vacations. The MCD then informed the

Chief Electoral Officer that "the teacher would be spared for the photo

electoral rolls programme after the school hours only."

6. The grievance of the primary school teachers through the petitioner

Association is that they have been put to great inconvenience by being

deployed for the electoral roll work without availing a single day of the

summer vacations and even thereafter. Over 9000 female teachers have been

asked to carry out voter I-Card verification door-to-door in various colonies

for more than 12 hours per day. In comparison, only 200 employees of the

non-teaching staff have been deployed for such work. It is submitted that if

they were expected to carry on the verification work after the school hours it

would affect their health and the quality of their teaching would suffer. This

in turn would be detrimental to the interests of students. Many of the female

teachers have to travel considerable distances which makes it both unsafe

and inconvenient for them.

7. The further grievance made is that the impugned order dated 25 th

April 2008 issued by the ERO did not offer any option to the teacher to

decline such posting as BLO even if any of them was in some genuine

personal difficulty. It is pointed out that there have been instances where

mandatory orders were issued by the EROs to even disabled and female

teachers threatening disciplinary action if they failed to report for duty.

8. In response to the notice issued to it by this Court, the Election

Commission of India has filed an affidavit in which it states as under:

"9. As submitted above, the Election Commission requires the services of staff for carrying out the work of preparation of electoral rolls. It is for the Govt. and Local Authorities to provide such staff.

When the Chief Electoral Officer, Delhi experienced difficulty in getting the services of sufficient number of officials for performing the duties of BLO, the Election Commission discussed the issue with the Chief Secretary of Delhi on March 18, 2008. Thereafter, the Chief Secretary, Delhi vide his letter dated March 21, 2008, requested the Commissioner of MCD to provide to the Chief Electoral Officer, Delhi the list of teachers of MCD Schools who could be appointed as BLOs. Neither the Election Commission nor the Chief Electoral Officer requested for providing the MCD Teachers for appointment as BLOs. The teachers and the Delhi Government staff whose names were provided to the Chief Electoral Officer were appointed as BLOs.

10. As submitted above, it is the function of the Central and State Government to decide as to which employees it should make available for election duty in terms of the request from the Commission. In any case, the requirement of the Commission for staff for election duty is for a very short duration and is not likely to hamper studies in school if the teachers are appointed for work of revision of electoral roll or conduct of election. Further, considering that the Central and State government are bound under law to provide the staff for election duties from time to time, it is the duty of the said Governments to so arrange its affairs that in so deploying its staff the other constitutional duties of the said government do not suffer." (emphasis supplied)

9. In addition it was stated before us by Mr. S.K. Mendiratta and Mr.

P.C.Chopra learned counsel appearing for the Election Commission of India

that as long as its requirement for adequate staff for the work of verification

of electoral rolls was provided, the Election Commission of India would not

insist that only teachers should be sent for such work. It is pointed out that

in terms of the judgment of the Supreme Court in St.Mary's School, further

directions have been issued by the Election Commission of India on 20 th

January 2008 to all the CEOs of the different states in which it was, inter

alia, stated:

"4. Whenever the teachers are used as Booth Level Officers for the purpose of door-to-door verification, for finding out cases of photo mismatches in the photo roll etc., the same exercise shall be done during non-teaching hours and on holidays.

5. Whenever needed, the period for enumeration work may be extended for this purpose so that the enumeration work is carried out without hampering the teaching hours."

10. On its part, the MCD in its affidavit has stated that it had to provide

teachers for the work of revision of electoral rolls in compliance with the

direction issued by the GNCTD on 21st March 2008. It is stated that the

teachers who were attending the school in the first shift were being assigned

electoral duties in the afternoon and vice-versa. Ms. Maninder Acharya,

learned Standing counsel for the MCD further stated that it would be

prepared to even offer non-teaching staff if the GNCTD did not insist that

teachers alone should be deployed for the work of verification of electoral

rolls.

11. It was urged by learned counsel for the petitioner at the hearing on

13th August 2008 that disabled and female teachers who are facing genuine

difficulties should be spared from the work of door-to-door verification of

electoral rolls. It was further submitted that no disciplinary action should be

initiated against disabled and female teachers for not reporting for duty as

BLOs. In the circumstances, on 13th August 2008 the following order was

passed:

"1. Mr. Waziri, learned Standing counsel appearing for the GNCTD seeks further one week time to take instruction.

2. List on 20th August 2008.

3. If the disabled teachers and female teachers make an application for exemption, such application will be considered by the Election Commission of India and exemption will be granted in an appropriate case and the staff will be placed by the MCD.

4. It is also made clear that no further action will be taken in respect of show cause notice issued to any of the disabled teachers and female teachers till further orders."

12. Today, Mr. Waziri, learned counsel for the GNCTD states that its

request to the MCD that teachers should be deployed for the verification of

electoral rolls was on account of their constituting the largest percentage of

MCD employees. A chart has been placed on record to show that of the total

number of BLOs appointed for the verification work, MCD teachers

constituted 76.42%, the non-teaching staff of GNCTD around 20.67% and

the rest were from the staff of the NDMC and the GNCTD. However, it is

fairly stated by Mr. Waziri that in future the GNCTD is willing to deploy for

any election or electoral roll work an adequate mix of both teaching and

non-teaching staff of the MCD, NDMC and GNCTD so that a

disproportionate burden of the work does not fall on the MCD teachers.

13. In regard to the question whether school teachers can be deployed for

work in connection with the preparation or verification of electoral rolls, or

any election related work, the judgment of the Supreme Court in St. Mary

School is unambiguous and binding. It has been clearly held that "all

teaching staff shall be put on the duties of roll revisions and election works

on holidays and non-teaching days. Teachers should not ordinarily be put on

duty on teaching days and within teaching hours." In other words teachers

can be deployed for election related work only on non-teaching days, and

only in exceptional circumstances should they be deployed for such work on

teaching days and then again only beyond teaching hours.

14. We are told that the present work of verification of electoral rolls will

definitely be completed in the NCT of Delhi by September 12, 2008. As far

as the present grievance is concerned in the facts and circumstances noticed

hereinbefore, this Court considers it expedient to direct that the interim order

passed by this Court on 13th August 2008 will continue to operate till such

time the verification exercise is complete.

15. As regards any similar deployment hereafter of the teachers employed

with any of the respondents for any election related work or work in

connection with the preparation or verification of electoral rolls, it is

directed as follows:

(i) All the respondents will strictly abide by the judgment of the Supreme

Court in Election Commission of India v. St. Mary School.

(ii) Every female teacher or disabled teacher facing some genuine difficulty

should be offered an option of declining to be deployed for any election or

electoral roll related work during teaching days and teaching hours. This will

be on a case-by-case basis on an application by the concerned teacher.

Obviously this should be done prior to finalizing the list of staff to be

deployed for election related work.

(iii) When a request is made by the Election Commission of India to any of

the respondents for staff for election or electoral roll related work, there

should be sufficient mix of teaching and non-teaching staff deployed so that

a disproportionate burden work does not fall on the teaching staff. As far as

is practicable, for the work related to elections or electoral rolls, the

deployment of disabled teachers should be avoided.

16. With the above directions, this petition and the pending application

stand disposed of.

CHIEF JUSTICE

S.MURALIDHAR, J AUGUST 20, 2008 rk