H.P. State Election Department vs The Jurisdiction Of The Election ...
2022 Latest Caselaw 4057 HP

                                             Reported
    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 2nd DAY OF JUNE, 2022
                         BEFORE
       HON'BLE MS. JUSTICE JYOTSNA REWAL DUA




                                                    .

      CIVIL WRIT PETITION (ORIGINAL APPLICATION)
                    No.640 of 2020
      Between:-





      H.P. STATE ELECTION DEPARTMENT,
      NON GAZETTED EMPLOYEES ASSOCIATION,
      THROUGH ITS PRESIDENT VINOD SHARMA
      S/O LATE SHRI SOM KRISHAN SHARMA,
      R/O SOM NIWAS, MINI KUFTADHAR, SHIMLA





                                        ......PETITIONER
      (BY MRS. RANJANA PARMAR, SENIOR ADVOCATE
       WITH MR. KARAN SINGH PARMAR, ADVOCATE)

      AND

    1. STATE OF HIMACHAL PRADESH
       THROUGH SECRETARY (ELECTIONS)
       TO THE GOVERNMENT OF HIMACHAL PRADESH,


       SHIMLA-2
    2. SECRETARY FINANCE TO THE GOVERNMENT
       OF HIMACHAL PRADESH, SHIMLA-2




    3. CHIEF ELECTORAL OFFICER,
       HIMACHAL PRADESH, KASUMPTI,





       SHIMLA-9.
    4. CHIEF ELECTION COMMISSIONER OF INDIA,
       THROUGH ITS SECRETARY, NEW DELHI





                                    ......RESPONDENTS
      (MR. ARVIND SHARMA, ADDITIONAL ADVOCATE
      GENERAL WITH MR. NARENDER SINGH THAKUR,
      DEPUTY ADVOCATE GENERAL, FOR R-1 TO R-3,
      MR. ANKUSH DASS SOOD, SENIOR ADVOCATE WITH
      MR. ARJUN LALL, ADVOCATE, FOR R-4)
      JUDGMENT RESERVED ON : 18.05.2022
      PRONOUNCED ON :        02.06.2022




                                   ::: Downloaded on - 02/06/2022 20:04:44 :::CIS
                                       2



            This petition coming on for hearing this day, the Court
    passed the following:
                                 ORDER

The employees working in different capacities in

.

the State Election Department are members of the

petitioner, a registered Association. The short and simple

point being put forth by the petitioner is that the

respondents are required to pay honorarium to such of the

employees of State Election Department, who perform

duties in Vidhan Sabha Elections.

    2.              Pleadings


    2(i).           Pleadings of petitioner:-

The petitioner has pleaded that its members

have been working in the Election Department and

performing election duties assigned to them, be it for the

Parliamentary or the State Legislative Assembly Elections.

Honorarium for discharging election duties was paid by the

respondent-State till 1998. In the year 1998, simultaneous

elections were held for Parliament and Vidhan Sabha/State

Legislative Assembly. Members of the petitioner-Association

on election duty were paid honorarium for Parliamentary as

well as State Legislative Assembly elections, but

subsequently, the State stopped paying honorarium for

duties performed by the members of the petitioner-

Association (employees of the State Election Department) in

State Legislative Assembly elections. Petitioner-Association

.

pointed out its grievances regarding requirement to pay

honorarium to its members for performing duties in State

Legislative Assembly elections. These grievances though

were considered by the respondents in various meetings,

however, they have not been redressed till date.

2(ii). Pleadings of respondents No.1 to 3:-

The State of Himachal Pradesh through the

Secretary (Elections), Secretary (Finance) to the

Government of Himachal Pradesh and Chief Electoral

Officer, Himachal Pradesh have filed a common reply. Their

reply states that honorarium for Lok Sabha and Vidhan

Sabha elections was being paid to the election staff since

1977. The Election Commission of India in its letter dated

23.06.1998, had directed all the States to pay honorarium

to all Officers and Staff of Election Department at the rate

of one month's pay for the conduct of all elections to

Parliament and State Legislative Assemblies or

simultaneous elections. With effect from the year 1998, in

the State of Himachal Pradesh honorarium is being paid to

the Election staff only for Lok Sabha general elections.

Honorarium in connection with general elections to Vidhan

Sabha was discontinued by the State Government w.e.f.

1998 owing to 100% liability on the State. 100%

.

expenditure on account of Lok Sabha election is borne by

the Government of India and in case of Vidhan Sabha

election, 100% expenditure is borne by the respective State

Government. In case of simultaneous elections to Lok

Sabaha & Vidhan Sabha, the expenditure is borne on the

basis of 50:50 by Government of India & State Government.

It has further been stated in the reply that the matter for

paying honorarium to the officers and staff of the Election

Department in connection with conduct of Vidhan Sabha

elections was taken up many times with the State Finance

Department, but the Finance Department regretted its

inability to approve the proposals. Finance Department's

view as expressed in office communication dated

30.06.2017 is that the Election Staff has little extra work

during elections, but for the rest of the time, they have very

little work, therefore, there is no justification to pay them

honorarium.

2(iii). Pleadings of respondent No.4:-

Respondent No.4, i.e. Election Commission of

India, has filed its separate reply to the writ petition. The

stand therein is that anomalies, inconsistencies and

discrepancies existed in matter of payment of honorarium

to the officers appointed for the conduct of elections. In

.

order to bring uniformity and for removing doubts

pertaining to payment of honorarium in respect of elections

held to Parliament and State Legislative Assemblies, the

Election Commission of India issued letter dated

23.06.1998, directing the State Governments to pay

honorarium to all Officers and employees directly connected

with elections in the States not exceeding one month's pay

of the concerned employees. It has further been submitted

that vide letter dated 26.02.2014, respondent No.4 had

informed all the States of its decision to increase the fixed

component of remuneration to Booth Level Officers from

Rs.3000/- per annum to Rs.5000/- per annum. Directions

were accordingly issued to the State Governments to make

necessary provision in the budget for meeting the

expenditure on account of increased remuneration. The

stand of Election Commission of India is that instructions

issued in letter dated 23.06.1998 make no distinction

between Parliamentary and State Legislative Assembly

elections regarding payment of honorarium. It has further

been informed that in States of Punjab, Haryana &

Rajasthan and Union Territory of Chandigarh, honorarium

for general elections to State Legislative Assembly is being

paid by the concerned State Government. Respondent No.4

.

has admitted the contention of the petitioner that

honorarium is liable to be paid to the officers and staff of

the Commission for the duties performed by them in

Vidhan Sabha/State Legislative Assembly Elections.

3. I have heard the submissions advanced by

learned counsel for the parties who have reiterated their

respective stands taken in pleadings and also gone through

the material available on record. With the assistance of

learned counsel for the parties, I have also considered the

applicable legal provisions and the law on the subject.

4. Observations

4(i). Petitioner's claim of honorarium for performing

duties during State Legislative Assembly elections, is based

upon letter dated 23.06.1998 issued by the Election

Commission of India (respondent No.4). It will be apposite

to reproduce the contents of this letter, which are germane

for adjudicating the grievances raised in the writ petition:-

"The Chief Secretaries/Administrators, All States and Union Territories.

Subject: General Elections-Payment of honorarium-

regarding.

It has been brought to the notice of the Commission that some anomalies exist in matter of payment of Honorarium to the officers appointed/designated as District Election Officers, Returning Officers, Assistant Returning Officers, etc. for the conduct of general elections in the State. On the one hand some of the States have been

.

granting a minimum of one month pay as honorarium to non-

gazetted staff for the conduct of elections, on the other, officers designated by the Commission as DEOs, ROs, AROs, etc. are being paid Rs.500/- to Rs.1200/-.

The above position has resulted in a situation where in some cases the staff in lower grades are getting more amount as honorarium than the DEOs, ROs etc. Taking into account the ground realities and in order to bring uniformity and to clarify any doubts, the Commission has decided that -

(i) the payment of honorarium should be made equitable to all employees directly connected with elections in the States and Union Territories.

(ii) Payment of such honorarium should not exceed the total

pay of one month of the concerned employees.

(iii) Such payments will be made in respect of all elections

held to Parliament and Assemblies.

(iv) The categories of staff who shall be eligible for payment of honorarium will be decided by the State Government concerned in consultation with the Chief Electoral

Officer of the State/UT concerned.

Kindly acknowledge.

Yours faithfully Sd/-

Secretary"

Respondent No.4 has admitted issuing the above

extracted letter. It is the pleaded case of respondent No.4

that for removing the anomalies and inconsistencies

existing in matter of payment of honorarium to the Officers

appointed for the conduct of elections, letter dated

23.06.1998 was issued. The letter states that payment of

honorarium should be made equitable to all employees not

exceeding total pay of one month of the concerned

employee, who is directly connected with the elections in

the States and Union Territories. The letter also states that

.

payments of honorarium are to be made in respect of

elections held not only to the Parliament but also to the

State Legislative Assemblies. It will also be worthwhile to

extract relevant pleadings in verbatim from the reply filed to

the writ petition by respondent No.4:-

"2. That it is hereby submitted that it was observed by the Election Commission of India that anomalies, inconsistencies and discrepancies exist in matter of payment of Honorarium to the officers appointed for the

conduct of elections. Therefore, Election Commission of

India issued the letter dated 23rd June, 1998 in order to bring uniformity and remove doubts pertaining to the payment of honorarium in respect of all elections held to Parliament and Legislative Assemblies. Parawise reply .....

6.IX. That the contents of the para are admitted to the extent that honorarium is liable to be paid to the officers and staff of the Commission for the duties performed by them in the Vidhan Sabha Elections..............

XII.B.That the contents are denied to the extent that actions of replying respondent in any manner against the

relevant rules and instructions. In fact, the instructions dated 23.06.1998 issued by the Election Commission of India are equally applicable, and there is no distinction

for both i.e. Parliamentary Elections as well as for the Legislative Elections......................."

From the pleadings of the parties, it is also

borne out that in neighbouring States of Punjab, Haryana,

Rajasthan and Union Territory of Chandigarh, the

concerned State Government is paying honorarium for

general elections to the Legislative Assembly. Respondent

No. 4 has also submitted in para 6.X of its reply that from

time to time, it has "raised the matter for allowing one

.

month's basic pay equivalent honorarium for Vidhan Sabha

Election. However, subject to the directions of this Hon'ble

Court in the present matter, it is submitted that the

replying respondent will again raise the matter and direct

the Government of Himachal Pradesh to make necessary

provisions in the budget for meeting the expenditure and

for allowing one month's basic pay equivalent honorarium

for Vidhan Sabha Elections."

In view of the pleadings of the parties, the core

issue that arises for determination is whether the

instructions issued by the Election Commission of India

dated 23.06.1998 are binding upon the respondent-State.

For deciding this issue, Article 324(1) of the Constitution of

India may first be referred to, which reads as under:-

"324. Superintendence, direction and control of

elections to be vested in an Election Commission.-(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)."

By now, it is well settled that the words

'superintendence, direction, control' and 'conduct of all

elections' have been used in Article 324 in broadest terms

.

covering entire election process. The superintendence,

direction, control and conduct of all elections to the

Parliament & Legislative Assembly of every State vests in

the Election Commission. The phrase 'conduct of elections'

has been held to be of wide amplitude, which would include

power to make all necessary provisions for conducting free

and fair elections. In Union of India Versus Association

for Democratic Reforms and another, (2002) 5 SCC

294, one of the question that arose for consideration was

whether the Election Commission was empowered to issue

directions as ordered by the High Court. The Hon'ble

Supreme Court considered various precedents including the

decision in Mohinder Singh Gill v. Chief Election

Commissioner, (1978) 1 SCC 405. In para 20 of the

judgment, the Hon'ble Apex Court observed that when the

Act or Rules are silent on a particular subject and the

authority implementing the same has constitutional or

statutory power to implement it, the Court can necessarily

issue directions or orders on the said subject to fill the

vacuum or void till the suitable law is enacted. The Hon'ble

Apex Court summed up the legal and constitutional

position in para 46 of the judgment. The principles relevant

for the purpose of resolving present controversy, as

.

summed up in para 46 of the judgment, are as under:-

"46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated

that:

1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word "elections" is used in a wide sense to include the entire process

of election which consists of several stages and embraces many steps.

2. The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections,

the Commission is required to act in conformity with

the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its

own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by

the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till

there is legislation on the subject. In Kanhiya Lal Omar case the Court construed the expression "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order

issued to a particular individual or a precept which many may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders."

The role of Election Commission and the extent to

which it can exercise its power under the constitutional

framework, again came up for consideration in Public

Interest Foundation and others Versus Union of India

and another, (2019) 3 SCC 224. Mohinder Singh Gill's

.

case, supra, was noticed by the Hon'ble Apex Court in this

judgment, wherein it was held that constitutionally

appointed authority, the Election Commission, takes over

the whole conduct and supervision of the mammoth

enterprise involving a plethora of details and variety of

activities and starts off with the notification of the timetable

for the several stages of the election. An administrative

machinery and technology to execute these enormous and

diverse jobs is fabricated by the Act, creating officers,

powers and duties, delegation of functions and location of

polling stations. For holding free and fair elections, the

Election Commission is vested with comprehensive

responsibilities of superintendence, direction and control of

conduct of elections covering powers, duties and functions

that may be administrative or other, depending upon the

circumstances. The directions issued in Mohinder Singh

Gill's case, supra, regarding role of Election Commission

were noticed in Public Interest Foundation's case as under:-

"66. Further, the Court observed in Mohinder Singh Gill that a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of

elections and can be saved by Article 324 provided it is bona fide and necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. The Court ruled that even Article 324 does not exalt the Commission into a law unto itself. Broad authority does

.

not bar scrutiny into specific validity of a particular

order. Having said that, the Court passed the following directions: (SCC p.452, para 92) "92. ... '... 2(a) The Constitution contemplates a free

and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This, responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.

(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the

Commission shall act in conformity with, not in violation of such provisions but where such law is

silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the

rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important

area of the constitutional order, viz., elections. Fairness does import an obligation to see that no

wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt natural justice enlivens and applies to the specific case of order for total re- poll although not in full panoply but inflexible

practicability. Whether it has been complied with is left open for the Tribunal adjudication."

67. In the concurring judgment in Mohinder Gill, Goswami, J., with regard to Article 324, observed thus in para 113 (SCC pp.459-60) "113. ...Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope

for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no

.

hedging in Article 324. The Commission may be

required to cope with some situation which may not be provided for in the enacted laws and the rules."

Thus the superintendence, direction, control

and conduct of all elections to parliament and legislature of

every State vest in the Election Commission. The phrase

'conduct of elections' has been held to be of wide amplitude,

which would include power to make all necessary

provisions for conducting free and fair elections. Article 324

is a reservoir of power for Election Commission to act for

the purpose of pursuing the goal of a free and fair election.

The Election Commission has plenary power and its view

has to be given weightage. It has power to supervise the

conduct of free and fair election. However, the power has its

limitations. The Election Commission has to act in

conformity with law made by Parliament and it cannot

transgress the same.

4(iii). It is not the case of respondents No.1 to 3 that

there is any legislation on the subject, which debars the

State Government from paying honorarium to the Election

staff discharging duties in elections to Legislative Assembly.

The field then would be governed by Article 324 of the

Constitution of India. The instructions issued by the

Election Commission of India regarding paying honorarium

.

would then be binding on the State Government. Issuance

of letter dated 23.06.1998 by the Election Commission of

India is an admitted position. The genesis of instructions

contained in this letter was the anomalies existing in

different States in respect of payment of honorarium to the

election staff discharging duties in elections to the

Parliament as well as to State Legislative Assemblies. For

removing the anomalies, the Election Commission of India

circulated these instructions. The instructions are self-

speaking that :- honorarium is payable to the election staff

engaged in discharging election duties, be it for

Parliamentary or for State Legislative Elections ; No

distinction can be made for paying honorarium for the

purpose of Parliamentary as well as for State Legislative

Assembly Elections ; The instructions do not differentiate

between the Parliament and State Legislative Assembly

Elections for purpose of payment of honorarium.

Respondent No.4-Election Commission of India

has taken a specific stand that honorarium at the rates

fixed by it, is payable not only for performing election duties

for the Parliamentary elections, but also for the elections to

State Legislative Assemblies. For denying honorarium to the

concerned staff for performing duties in State Legislative

.

Assembly elections, the State Government cannot take

shelter behind the view of the Finance Department that the

"election staff may have little extra work during election but

rest of the time they have very little work. Therefore, there

is no justification to pay honorarium." It is not in dispute

that honorarium for performing duties in Parliamentary

Elections is being paid to concerned staff of State Election

Department in terms of instructions issued by respondent

No. 4. Nature of work and duties performed in Elections be

it for Parliament or for the State Legislative Assembly,

essentially remains the same. It is not for the Finance

Department to decide the issue of payment of honorarium

to the officers and employees of Election Department

directly connected with elections to State Legislative

Assembly. The superintendence, direction and control with

respect to conduct of all elections to the Parliament and

Legislature of the State vest with the Election Commission

of India. The Finance Department of the State Government

cannot sit over the directions/instructions issued by the

Election Commission of India, source of which lies in Article

324 of the Constitution of India.

In terms of Section 13 CC of the Representation

.

of the People Act, 1950 (in short 'Act'), the Officers referred

to in Part IIA of the Act and all other officers or staff

employed in connection with the preparation, revision and

correction of the electoral rolls for, and the conduct of, all

elections are to be deemed to be on deputation to the

Election Commission for the period, during which they are

so employed. Such Officers and staff during that period are

subject to the superintendence, control and discipline of the

Election Commission. Section 13CC of the Act reads as

under:-

"13CC. Chief Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission.- The officers referred to in this Part and

any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls, for and the conduct of, all elections shall be

deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be

subject to the control, superintendence and discipline of the Election Commission."

Similar provision exists under Section 28A of the

Representation of the People Act, 1951 is as under:-

"28A. Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission.- The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this

Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of

.

such election and accordingly, such officers shall,

during that period, be subject to the control, superintendence and discipline of the Election Commission."

Conclusions & Directions

5. From the above discussions, following

conclusions are drawn :-

(i). The Officers performing election duties in terms

of provisions of The Representation of the People Act are to

be deemed to be on deputation to the Election Commission

for the period during which they are so employed. Such

staff during that period is subject to the control,

superintendence and discipline of the Election Commission

of India.

(ii). The superintendence, direction, control and

conduct of all elections to the Parliament and to the

Legislature of every State vest in the Election Commission

of India.

(iii). Article 324 of the Constitution of India is a

reservoir of power to the Election Commission of India to

act for the purpose of ensuring fair and free elections. The

words 'superintendence, direction, control and conduct of

all elections' used in Article 324 of the Constitution are of

wide amplitude, which include the power to make all

necessary provisions for conducting free and fair elections

.

including issuing instructions to cope up with some

situations, which may not be provided for in the enacted

laws and rules.

(iv). The Election Commission has to act in

conformity with the laws made by the Legislature and it

cannot transgress the same.

(v). Instructions dated 23.06.1998 issued by the

Election Commission of India pertain to grant of

honorarium to the staff of State Election Department

performing duties in Elections. There is no law enacted by

the respondent-State prohibiting grant of honorarium to the

staff of State Election Department engaged for performing

duties in Elections to State Legislative Assembly. The

instructions issued by Election Commission of India on

23.06.1998 have binding effect upon the respondents-State.

These instructions are equally applicable, providing no

distinction between the honorarium to be paid for the

Parliamentary as well as for the State Legislative Assembly

Elections. Nature of work and duties performed in

Elections be it for the Parliament or for the State

Legislative Assembly, essentially remains the same.

Honorarium for performing duties in Parliamentary

elections is being paid to the concerned staff of State

.

Election Department in terms of instructions issued by the

Election Commission of India. The honorarium in terms of

instructions issued by Election Commission of India to the

concerned staff for performing duties in State Legislative

Assembly cannot be denied on account of untenable view of

the State Finance Department.

In view of the aforesaid discussion, this writ

petition is allowed. Respondents No.1 to 3 are directed to

henceforth pay honorarium to all the Officers and

employees of the State Election Department performing

election duties for the conduct of elections to the State

Legislative Assembly, in terms of instructions dated

23.06.1998 (Annexure R-1) issued by respondent

No. 4-Election Commission of India.

The petition stands disposed of in the above

terms, so also the pending miscellaneous application(s), if

any.

Jyotsna Rewal Dua Judge 2nd June, 2022 Mukesh