Hon'ble Ran Vijai Singh,J.
(Delivered by Hon'ble Ashok Bhushan, J.) These four writ petitions have been filed by Life Insurance Corporation of India, challenging the orders , passed by the District Election Officer, Kanpur Nagar by which the officers/employees of the Corporation have been engaged for conduct of the elections of the graduate constituency. Facts and issue raised in all these writ petitions being similar, have been heard together and are being decided by this common judgment. For deciding all the writ petitions, it is sufficient to refer the pleadings of writ petition No. 65773 of 2010 The Life Insurance Corporation of India is established by Life Insurance Corporation Act, 1956. The District Election Officer by orders impugned in the writ petition, has informed the Head of the Department/Head of the Office of Life Insurance Corporation of India Zonal office, Kanpur that officers and employees of the Corporation have been deputed for conduct of elections to the Legislative Council Kanpur Khand Teachers Graduate Constituency Election 2010. The petitioner's case in the writ petition is that officers and employees of the Life Insurance Corporation of India cannot be directed to perform the election duties. Reference in the writ petition has been made of the Division Bench judgment of this Court dated 7.9.2010, passed in writ petition No. 41501 of 2008, Life Insurance Corporation of India and others Vs. Additional City Magistrate (ii), the interim order dated 12.10.2010, passed by the Division Bench in writ petition No. 62772 of 2010, Life Insurance Corporation of India Vs. D.M./District Election Officer and another, as well as another, (iii) judgment dated 27.10.2010 of this Court in writ petition No. 64288 of 2010, Life Insurance Corporation of India and others Vs. District Magistrate/D.E.O. and another and judgment of the apex Court reported in AIR 1995 S.C. 1078 Election Commission of India Vs. State Bank of India, Patna and others. The reliefs claimed in all the writ petitions are to the similar effect. In writ petition No. 65773 of 2010 following reliefs have been claimed:
"a) issue a writ, order or direction, including a writ in the nature of certiorari quashing the order dated 30.10.2010 (Annexure-5) passed by the respondent no. 2 appointing 9 Officers/employees working in the Central Zone Office, Kanpur Nagar of the petitioners Life Insurance Corporation of India to participate in Graduate Constituency Election 2010;
b) issue a writ, order or direction, including a writ in the nature of mandamus directing the respondents not to compel the officers/employees working in the Zonal Office, Kanpur Nagar of the petitioner Corporation to participate in Graduate Constituency Election 2010 in pursuance of the order dated 30.10.2010 in pursuance of the order dated 30.10.2010 issued in this regard by respondent no. 2;"
Sri Prakash Padia, leaned Counsel for the petitioners challenging the orders impugned, contended that staffs and officers of the Life Insurance Corporation of India cannot be deputed for election duties. It is contended that earlier employees and officers working with the Life Insurance Corporation of India were called for election duties, which were challenged by the Life Insurance Corporation of India in writ petition No. 41501 of 2008 in which an interim order was passed on 19.8.2008 and the writ petition was subsequently allowed by the judgment of the Division Bench dated 7.9.2010. Reference has been made to the interim order dated 12.10.2010 passed in writ petition No. 62772 of 2010 Life Insurance Corporation of India Vs. D.M./ District Election Officer and another and Division Bench judgment dated 27.10.2010 passed in writ petition No. 64288 of 2010. Sri Padia placed reliance on the judgment of the apex court in Election Commission of India (supra) in which the orders passed by the District Election Officers deputing the staff of State Bank of India was questioned before the High Court and the High Court allowed the writ petition against which the Election Commission of India filed appeal and the appeal was dismissed, holding that the State Bank of India is not covered within the definition of 'local authority' hence, under section 159 the Staffs of the State Bank of India could not be deputed the duty pertaining to elections of Parliament or Legislative Assembly. Sri Padia further submits that with regard to the Panchayat Election, the State Election Commission, U.P. itself has issued a circular dated 23.9.2010, directing all the District Magistrates /District Election Officers to exempt staffs and officers of the Life Insurance Corporation of India from election duty. Learned Counsel for the petitioners has also referred to and relied on the provisions of Article 324(6) of the Constitution of India and submits that unless the orders are passed by the President of India or Regional Election Commissioner, no officer or employee of the Life Insurance Corporation of India can be entrusted any election duty towards conduct of election of Parliament or Assembly.
Learned Standing Counsel appearing for the respondents has refuted the submissions of learned Counsel for the petitioner and submits that officers and staffs of the Life Insurance Corporation of India can very well be entrusted election duties in accordance with the provisions of Representation of the People Act, 1951. It is submitted that earlier only the staff under the control of the State and Union as well as staffs of the local authorities could have been deputed for election duties but section 159 of the Representation of the People Act having been amended, the Life Insurance Corporation of India is also now included under the amended provisions. It is submitted that the judgment of the apex Court in the case of Election Commission of India (supra), which considered the provisions of unamended section 159 is no longer helpful to the petitioners after amendment of the definition of section 159. With regard to Division Bench Judgment of this Court dated 7.9.2010, it has been submitted that the said judgment having not considered section 159 as amended, is distinguishable and not applicable in the facts of the present case.
We have considered the submissions of learned counsel for the parties and have perused the record.
Part XV of the Constitution of India deals with "ELECTIONS". Article 324 provides for Superintendence, direction and control of elections to be vested in an Election Commission. Article 327 provides for the power of Parliament to make provision with respect to elections of the Legislatures. Articles 324 and 327 of the Constitution of India are quoted below:
"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 272 shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor _273 of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
327. Power of Parliament to make provision with respect to elections to Legislatures.- Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses."
Article 324 (6) of the Constitution of India on which reliance has been placed by counsel for the petitioner provides that when so requested by the Election Commission, the President or the Governor of the State shall make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for discharge of the functions conferred on the Election Commission by Clause (1). Article 324 vests power of 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 in an Election Commission. Article 324(6) enables the Election Commission to request the President or the Governor of the State to make available such staff as may be necessary. Article 327 specifically provides that subject to the provisions of the Constitution of India, Parliament may from time to time by law make provision with respect to matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of the electoral rolls. The Parliament in exercise of its power under Article 327 and all other enabling power has enacted the Representation of the People Act, 1950 (hereinafter referred to as "1950 Act") to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to the House of the people and Legislatures of the State, the qualifications of voter at such elections and the preparations of electoral rolls, the manner of filling seats in the State and the matters connected therewith. The Parliament enacted the Representation of the People Act, 1951 (hereinafter referred to as "1951 Act") for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Section 13A of 1950 Act provides for Chief electoral officers, Section 13AA provides of District election officers. Section 13 A and Section 13AA of the 1950 Act are quoted below:
"13A. Chief electoral officers.--(1) There shall be for each State a chief electoral officer who shall be such officer of Government as the Election Commission may, in consultation with that Government, designate or nominate in this behalf.
(2) Subject to the superintendence, direction and control of the Election Commission, the chief electoral officer shall supervise the preparation, revision and correction of all electoral rolls in the State under this Act.
13AA. District election officers.--(1) For each district in a State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a district election officer who shall be an officer of Government:
Provided that the Election Commission may designate or nominate more than one such officer for a district if the Election Commission is satisfied that the functions of the office cannot be performed satisfactorily by one officer.
(2) Where more than one district election officer are designated or nominated for a district under the proviso to sub-section (1), the Election Commission shall in the order designating or nominating the district election officers also specify the area in respect of which each such officer shall exercise jurisdiction.
(3) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the preparation and revision of the electoral rolls for all parliamentary, assembly and council constituencies within the district.
(4) The district election officer shall also perform such other functions as may be entrusted to him by the Election Commission and the chief electoral officer."
Section 29 of the 1950 Act provides as follows:
"29. Staff of local authorities to be made available .-- Every local authority in a State shall, when so requested by the chief electoral officer of the State, make available to any electoral registration officer such staff as may be necessary for the performance of any duties in connection with the preparation and revision of electoral rolls."
According to Section 2(cc) of 1951 Act, "district election officer" means the officer appointed under section 13A of the Representation of the People Act, 1950. Section 20 A of 1951 Act provides for General duties of district election officer which are as follows:
"20A. General duties of district election officer. --(1) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of the State.
(2 ) The district election officer shall also perform such other functions as may be entrusted to him by the Election Commission and the chief electoral officer."
Section 26 of 1951 Act provides for Appointment of presiding officers for polling stations. Part X of 1951 Act contains heading "Miscellaneous" Section 159 of 1951 Act , which is material for the present case as it exists in the Statute Book is as follows:
"159. Staff of certain authorities to be made available for election work.--(1) The authorities specified in subsection (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election.
(2) The following shall be the authorities for the purpose of sub-section (1), namely:--
(i) every local authority;
(ii) every university established or incorporated by or under a Central, Provincial or State Act;
(iii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government."
Section 159 as it existed and was substituted by Act No. 12 of 1998 w.e.f. 23.12.1997 prior to the Amendment Act 159 was to the following effect:
"159. Staff of every local authority to be made available for election work. ( Every local authority in a State shall, when so requested by a Regional Commissioner appointed under clause (4) of Article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election."
After having noticed the relevant Constitutional provisions and the provisions of 1950 Act and 1951 Act, the submissions of the petitioners' counsel that the election duty can be entrusted in accordance with Article 324(6) may be considered now. As noticed above Article 324 (6) is an enabling power of the Election Commission to request for such staff to be deputed by the President or the Governor of the State. Under Article 327 of the Constitution of India, the Parliament has enacted 1950 Act and 1951 Act. Both the aforesaid Acts having been enacted for the purposes as noted above, the source of power to requisition officers and employees for performing election duties can be traced from 1950 Act and 1951 Act also. The submission of the learned counsel for the petitioner that engagement of the officers and staffs should be only done in accordance with Article 324(6) of the Constitution of India, is misconceived and ignores the statutory provisions and scheme of 1950 and 1951 Act.
In the writ petition, the main ground for challenging the impugned order is that the Life Insurance Corporation of India is not covered by the definition of the local authority and for election duties only the employees of the State and the Union and the Local Authorities can be engaged and the Life Insurance Corporation of India being not covered by the definition of the local authority, the direction issued by the District Election Officer is illegal. For this submission, much reliance has been placed by learned counsel for the petitioner on the judgment of the apex Court in Election Commission of India (Supra). It is useful to refer the said judgment in detail which has been relied by counsel for the petitioners. Election Commission of India had filed two appeals, challenging the judgment and order of the Patna High Court as well as Rajasthan High Court regarding conduct of elections. The District Election Officer had issued an order on 22.9.1991, directing the Chief General Manager, State Bank of India forwarding list of the officers and staffs for appointment of Presiding Officers for mid-term parliamentary elections and Assembly by-election. The said order was challenged before the Patna High Court. The Patna High Court allowed the writ petition taking the view that District Election Officer had no power under section 26 of the 1951 Act to requisition the services of the employees of the State Bank of India, it being not a local authority within the meaning of Section 159 of the 1951 Act. Following was observed in paragraph 9:
"9. The High Court, by the impugned judgment dated 21-5-1993, held that the District Election Officer had no power under Section 26 of the 1951 Act to requisition the services of employees of the State Bank of India for election duty. The High Court took the view that the State Bank of India was not a local authority within the meaning of Section 159 of the 1951 Act. Accordingly, the High Court quashed the orders and issued a writ in the nature of mandamus commanding the Election Commission of India not to requisition the services of the employees of State Bank of India in exercise of its power under Section 26 of the 1951 Act."
The apex Court referring to the Constitutional provisions of 1951 Act, took the view that officer of the State Bank being not such staff which may be engaged under section 159, the orders were without jurisdiction following was laid down in paragraphs 18, 20 and 21:-
"18. We assume that the powers of the Election Commission under Article 324 are plenary. Therefore, the Election Commission may issue any direction in the matter of conduct of elections. But the question is, in the grab of conduct of elections, can the Election Commission usurp the power not vested in it? This will depend on the understanding of clause (6) of Article 324. For the conduct of elections when the Election Commission makes a request to the President or the Governor to make available the staff they are obliged to provide the services. What is the meaning of 'such staff? According to Mr. Dushyant Dave we should refer to Article 310 which talks of a member of Civil Service (in contradistinction to Defence Service of the Union or the State), holding office during the pleasure (Durante bene placito) of President or the Governor. Obviously 'such staff' can only mean that staff which is under the control of the President or the concerned Governor and not any staff over which they do not exercise control. It could mean only the staff on which the President or the Governor, as the case may be, would be in a position to exercise disciplinary powers should they refuse the President's or Governor's directive. Although the Constitution-makers did not say the Union or the State Governments but only the President or the Governor, it is obvious they would have to act consistently with Articles 74(1) and 163(1), respectively. Therefore, on a request by the Election Commission the services of those Government servants who are appointed to public services and posts under the Central or state Governments will have to be made available for the purpose of election. When the Constitution came into force the services of these officers were readily available. Of course, there were also local authorities and the services of the employees of the local authorities were also available. That is why Section 159 of the 1951 Act provides that on request from the Regional Commissioner or the Chief Electoral Officer of the State the local authority of the State shall make available to any Returning Officer such staff as may be necessary to carry out the duties in connection with an election.
20. Merely because the provisions of the two Acts require that they must be officers of Government or local authority, unlike in the case of officers falling under Section 27 of the 1951 Act, it does not, in our opinion, follow that the services of the officers of the State Bank of India could be requisitioned. Section 26 of the 1951 Act is not a source of power at all. It does not, in any manner, enable the Election Commission to draft in the services of officers other than officers of Government and local authority. To draw inspiration from these sections to support an argument that the services of any person could be drafted for the purpose of election is untenable. May be, to conduct the elections many polling stations are set up. Consequently, the services of many persons may be required. May be, the Election Commission may draw the minimum staff from the banks to ensure that the banking business is not disrupted but the question here is of power and not discretion. If there is power it may be exercised with circumspection and minimum staff may be requisitioned but if there is no power the question of the mode of its exercise will not arise at all. It is a question of existence of power and not the manner of its exercise.
21. Article 324 does not enable the Election Commission to exercise untrammelled powers. The Election Commission must trace its power either to the Constitution or the law made under Article 327 or Article 328. Otherwise as was held by this Court Digvijay Mote's case, (1993 AIR SCW 2895) (Supra) (in which one of us, Mohan J., was a party) it would become an imperium in imperio which no one is under our constitutional order."
It is relevant to note that the judgment of the apex Court was considering the unamended section 159 as quoted above. Subsequent to the judgment of the apex Court, section 159 has been amended with effect from 23.12.1997 and apart from staffs of the local authority, three more other new categories have been added in section 159, which could be requisitioned for conduct of the election duties. Section 159 (2) (iv) embraces in itself any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government. Life Insurance Corporation of India having been established by the Parliamentary Act namely; Life Insurance Corporation Act 1956, is clearly covered by section 159 (2)(iv). Thus, the engagement of the staffs of the L.I.C. after the amendment of the Section 159, cannot be questioned on the ground that Life Insurance Corporation of India is not covered within the definition of the local authority. The judgment of the apex Court in Election Commission of India (supra) is not applicable in the context of amended section 159 thus, the above judgment does not help the petitioners in this case. The next judgment relied by learned Counsel for the petitioner is the Division Bench Judgment of this Court in Life Insurance Corporation of India and others Vs. Additional City Magistrate and others, writ petition No. 41501 of 2008 decided on 7.9.2010 (Annexure-1 to the writ petition) In the said judgment the Division Bench, while allowing the writ petition made following observation:
"The employees/officers are working with the Life Insurance Corporation, who have been called for to prepare the electoral roll, identity card etc. and conducting the elections by the Additional City Magistrate, Agra. They cannot be called for either by the Collector or by the Returning Officer in view of clear cut provision contained in Section 28-A of The Representation of the People Act, 1950 and the law laid down by the Apex Court in Election Commission of India (supra).
In this view of the matter, the writ petition succeeds and is allowed. The impugned orders passed by the respondents are quashed. No order as to costs."
Section 159 as amended w.e.f. 23.12.1997, was not placed before the Division Bench deciding the aforesaid case. Reliance was placed on the judgment of the apex Court in Election Commission of India (supra) which is no longer applicable in view of the amendment of section 159. Only section 28A was placed before the Division Bench and the Section 159 of 1951 Act as amended was not placed before the Division Bench, in the said judgment no such proposition could be read that Staff and Officers of the Life Insurance Corporation of India cannot be requisitioned for conduct of the election duties of the Legislative Council.
Learned Counsel for the petitioners has relied on an another Division Bench Judgment in writ petition No. 64288 of 2010, Life Insurance Corporation of India and others Vs. District Magistrate/D.E.O. and another decided on 27.10.2010. The said judgment is based on the circular issued by the State Election Commission of India dated 23.9.2010. The Circular dated 23.9.2010 of the State Election Commission of India has been filed as Annexure-2 to the writ petition, which is a letter issued by the Additional Commissioner of the State Election Commission informing the decision of the Commission that in Panchayat General Election 2010, the officer and Staffs of Life Insurance Corporation of India be exempted. The said order was relevant for general Panchayat Election 2010 and have no effect with regard to conduct of election of Legislative Council. The Division Bench in the aforesaid judgment dated 27.10.2010 having been based on the Circular of the State Election Commission, is not relevant with regard to the election of the Legislative Council and the directions passed by the Division Bench was only with regard to the election of Panchayat 2010 and does not help the petitioners in any manner.
Another detailed interim order dated 28.5.2010, passed by the Division Bench of this Court in writ petition No. 28736 of 2010, Life Insurance Corporation of India & others Vs. Municipal Commissioner, Kanpur has been relied, which has been filed as Annexure-8 to the writ petition. The said case was considering the requisition of staffs of Life Insurance Corporation of India for the purposes of census. Section 4-A of the Census Act as noticed by the Division Bench are to the following effect:
" 4A. Staff of every local authority to be made available for taking census-- Every local authority in a State shall, when so directed by a written order by the Central Government or by an authority appointed by that Government in this behalf, make available to any Director of Census Operations such staff as may be necessary for the performance of any duties in connection with the taking of census."
The said Division Bench judgment was considering the requisition of Staff for the purpose of Census Act and as per section 4 A, the Staff of local authority is to be made available for taking census. In the said case, there was no consideration of requisition for Legislative Assembly Election. Although section 159 unamended has been noticed by the Division Bench but the said order at best can relate with regard to Census Act, 1948 and is clearly distinguishable. None of the submissions of the counsel for the petitioners has any substance. In the writ petition no other ground has been raised for challenging the orders passed by the District Election Officer.
Section 159(1) provides that the authorities specified in sub-section (2) shall, when so requested by a Regional Commissioner or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election. The writ petition does not raise any ground that Chief Electoral Officer of the State has not issued any such direction. As noticed above, the District Election Officer is to perform such functions as may be entrusted to him by the Election Commission and the Chief Electoral Officer. Neither any ground having been raised on the aforesaid point nor any submission having been made, it is not necessary for us to express any opinion as to whether the requisition of staff is on the basis of the direction of the Chief Electoral Officer or not.
No ground have been made out to interfere with the impugned orders. The petitioner is not entitled to any relief in the writ petition.
All the writ petitions are dismissed.
Dated: 8.11.2010 L.A./-