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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

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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.

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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

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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

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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.)