(Delivered by Hon'ble F.I. Rebello, Chief Justice) The writ petitioners have approached this Court in respect of the order dated 05.04.2010, whereby respondent no.1 had directed the petitioners to submit the list of officers/employees and the further reminder dated 17.04.2010, whereby the petitioners were informed that failing which action would be taken under the provisions of the Census Act, 1948. It is the case of the writ petitioners that in response to these letters, on 26.04.2010, a reply was given by the Regional Officer stating that the Life Insurance Corporation of India is a Central Corporation created by an Act of Parliament and does not fall under the definition of Local Authority in the State. The further stand was that the Corporation is engaged in commercial services involving vital public services and deployment of their officers/employees for census will gravely hamper the business. The writ petitioners have further stated that without taking into consideration their reply and without application of mind, a direction has been given on 11.05.2010 to submit the list of officers/employees as demanded vide earlier letters on prescribed format.
2. According to the writ petitioners, they have 290 persons including officers and employees working with the writ petitioner no.2-Zonal Office at Kanpur, out of which 15 are Class IV employees, 112 Class III employees and 163 Class I Officers. It is the specific stand of the writ petitioners that they are not the 'Local Authorities' in the State. Reference is made to the various provisions of the Census Act, 1948 (hereinafter referred to as 'the Act').
3. The principal contention, therefore, urged is that as the writ petitioner no.1 is not a Local Authority, respondent no.1 could not have issued a direction directing the petitioners to send their officers/employees for the purpose of census operations. Learned counsel has placed reliance on the judgement of the Supreme Court in the case of Election Commission of India Vs. State Bank of India, Patna and others, AIR 1995 SC 1078.
4. On behalf of respondent no.1, an affidavit has been filed. It is contended that the writ petitioners have principally urged the following contentions:-
"(a) The officers/employees of Life Insurance Corporation of India do not fall within the ambit of Section 4A of the Census Act, 1948 and, as such, they are not liable to be sent for census work.
(b) The petitioner-corporation does not fall within the definition of local authority for the purpose of Section 4A of the Census Act, 1948.
(c) The petitioner-corporation provides essential services to the general public and if the staff is sent for census work, then the entire functioning of the corporation will be affected."
5. The respondents relied on the notification and the rules framed under the Act (hereinafter referred to as 'the Census Rules, 1990'). Reliance has also been placed on Rule 3 of the Census Rules, 1990, which hereinafter shall be referred to as the Rules. It is submitted that it is open to the State-respondents to have called on the writ petitioners to make available their officers/employees working within their jurisdiction for the purpose of the census work. It is, therefore, submitted that in these circumstances, there is no merit in this writ petition and consequently, the interim order granted by this Court should be vacated.
6. Considering the above, we may now consider the contentions as urged on behalf of the writ petitioners herein. For that purpose, we will have to consider the provisions of the Act and the Rules.
7. We may note that at the hearing of this petition, a copy of the Census Act, 1948 was placed before us, as published in the AIR Manual. At the same time, we have the benefit of the Act as downloaded from the website. This exercise is being done in view of certain words in Section 7 of the Census Act as published in the AIR Manual and on the website differ. For the purpose of discussion, we may refer to the provisions of Section 4 of the Act, which reads as under:-
"4. Appointment of census staff.- (1) The Central Government may appoint a Census Commissioner to supervise the taking of the census throughout the area in which the census is intended to be taken and [Directors of Census Operations] to supervise the taking of the census within the several States.
(2) The State Government may appoint persons as census-officers [with such designations as that Government may deem necessary] to take, or aid in, or supervise the taking of, the census within any specified local area and such persons, when so appointed, shall be bound to serve accordingly.
(3) A declaration in writing, signed by any authority authorised by the State Government in this behalf, that any person has been duly appointed a census-officer for any local area shall be conclusive proof of such appointment.
(4) The State government may delegate to such authority as it thinks fit the power of appointing census-officers conferred by sub-section (2).
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."
8. We are however concerned with Section 4 (2) of the Act. In exercise of powers under Section 4 (2) of the Act, the State Government has issued a notification dated January 18, 2010, wherein the following Officers have been designated as Census Officers and they also set out the local area of operation. It will be further seen that in exercise of power under sub-section (4) of Section 4 of the Act, the Governor has been pleased to delegate to the authorities referred to in paragraph-1, the powers of appointing Census Officers in respect of the areas within their Local Areas.
Their respective Nagar Nigams of Kanpur, Agra, Varanasi, Allahabad, Lucknow, Meerut, Moradabad, Aligarh, Ghaziabad, Bareilly, Gorakhpur, Jhansi and Saharanpur.
3-All Additional District Magistrates (Finance & Revenue) District Census Officer Their respective Districts 4-All Basic Shiksha Adhikari Additional District Census Officer Their respective Districts 5-All District Economics & Statistics Officer Deputy District Census Officer Their respective Districts 6- All Sub-District Magistrates Sub-Divisional Census Officer Their respective Sub-Division excluding the Nagar Nigams referred to in item no.2.
7- Deputy Commissioners of Nagar Nigams Town Census Officer Their respective areas within the Nagar Nigams referred to in item no.2.
8- Executive Officers of Nagar Palika Parishads, Cantonment Boards and Nagar Panchayats.
Town Census Charge Officer Their respective areas within the Nagar Palika Parishads, Cantonment Boards and Nagar Panchayats.
9-All Tehsildars Tehsil Census Charge Officer Their respective Tehsils Charge Nagar Nigams, Nagar Palika Parishads, Cantonment Boards and Nagar Panchayats.
10- All Block Development Officers Additional Tehsil Census Charge Officer Their respective Vikas Khand as per the jurisdiction of Tehsil.
11- All Assistant Basic Shiksha Adhikari Assistant Tehsil Census Charge Officer Their respective Vikas Khand as per the jurisdiction of Tehsil.
As an illustration, all Commissioners of the Nagar Nigams have been appointed as Additional Principal Census Officers in the respective Nagar Nigams.
9. Reference was then made to Section 4A, which we are not reproducing. It would be clear from Section 4A itself that there is power in the Central Government to direct any Local Authority in the State or when so directed by an authority appointed by that Government in this behalf, to 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. Then we have Section 7 of the Act, which reads as under:-
"7. Power to call upon certain persons to give assistance.- The District Magistrate, or such authority as the State Government may appoint in this behalf for any local area, may, by written order which shall have effect throughout the extent of his district or of such local area, as the case may be, call upon -
(a) all owners and occupiers of land, tenure-holders, and farmers and assignees of land revenue, or their agents,
(b) all members of the district, municipal, panchayat and other local authorities and officers and servants of such authorities, and
(c) all officers and members of staff of any factory, firm or establishment, to give such assistance as shall be specified in the order towards the taking of a census of the persons who are, at the time of the taking of the census, on the lands of such owners, occupiers, tenure-holders, farmers and assignees, or in the premises of factories, firms and other establishments, or within the areas for which such local authorities are established, as the case may be, and the persons to whom an order under this section is directed shall be bound to obey it and shall, while acting in pursuance of such order, be deemed to be public servants within the meaning of the Indian Penal Code."
We may only point out that there was a dispute as to whether the word in the first line of Section 7 of the Act is 'as' or 'or'.
10. By virtue of Rule 3 of the Census Rules, 1990, power has been conferred on the State Government and the Union Territory Administrations in order to aid the taking of the census within their States or Union Territories, to appoint officers from the categories as set out in the rules. The said rule reads as under:-
"3. Appointment of Census Officers:- The State Governments and the Union territory Administrations in order to aid the taking of the census within their States or Union territories, may appoint officers from against the category mentioned in column 2 as census officers within their jurisdictions with such designation mentioned in column 1 of the Table below:-
TABLE Designation Officers to be appointed
1. Principal Census Officer District Collectors/Magistrates/Commissioners or administrative heads of Corporations or any nominated Officer.
2. District/Additional district/Deputy district/Sub-divisional district/City/Additional City Census, Officer.
District Collectors/Magistrates/Officers assisting District Collectors/Magistrates/Commissioner/District Sub-divisional Officers or Revenue Divisional Officers.
3. Charge Officer/Assistant Charge Officer/Additional Charge Officer and Sub-Charge Officer.
Tehsildars/Additional Tehsildars/Mamlatdars/Block Development Officer/Chief Administrative Officer of towns/Executive Officers and other Officers.
4. Supervisor Officers generally of a rank higher than enumerators or any person.
5. Enumerator Teachers, Clerks or any official or any person.
11. The other relevant provision, would be the provision of the General Clauses Act, which defines the local authority as:-
"local authority" shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund."
12. From a conspectus of the provisions of the Act as also the provisions of the Rules and the General Clauses Act, it would be clear that the writ petitioners herein would not be a local authority within the meaning of the General Clauses Act and in the absence of the local authority being defined under the Census Act, the definition of the General Clauses Act, will have to be noted.
Even otherwise, the view that we are taking that the writ petitioner no.1 would not be the local authority, also follows from the judgment in the case of State Bank of India (supra). That was a provision under the provisions of the Representation of the People Act. There also a contention was raised that considering Section 159 of the Representation of the People Act, it was open for the Election Commission to requisition the officers/employees of the local authority and accordingly, a notice was served on the State Bank of India to make available its officers/employees. That was the subject matter of challenge there. The writ petitions were allowed by the High Court, against which an appeal was preferred by the Election Commission of India. After considering the various provisions of law, the Court was pleased to observe that it was not open to the Election Commission to draft in the services of officers other than officers of Government and local authority. The State Bank of India was held not to be a local authority. It was specifically observed that the section to which reference was made to is not a source of power at all enabling the Election Commission to draft in the services of officers other than officers of the Government and the local authority. The Court observed that to conduct the elections many polling stations may be set up. Consequently, the services of many persons may be required. The Court further observed that 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 is of power and not discretion and 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.
13. Our attention is also invited to the judgment of a Division Bench of the Bombay High Court in The Thane Janta Sahakari Bank Vs. Election Commission of India & Ors. [Legal Digest, October 2009, 282] decided on 25th of September, 2009. We are again not concerned with that, as it does not refer to the Census Act, but the provisions of the Representation of the Peoples Act, in respect of which, our opinion is the issue is covered to the case of State Bank of India (supra).
14. The question for our consideration is as to whether respondent no.1 could have made a demand on the writ petitioners and directed them to make available their officers/employees for the purpose of conducting of the census operations. We firstly, proceed on the basis that the writ petitioner no.1 is not a local authority. If the petitioner no.1 is not a local authority, then in respect of the services of such employees, as contemplated under Section 4A of the Act, no order could be made by the Central Government. In the instant case, there is no order by the Central Government. Therefore, Section 4A of the Act is not the source of power in such cases. Respondent no.1, pursuant to being appointed in terms of Section 4 (2) of the Act is thus empowered to discharge duties. This provision however, does not confer power on the respondents to call on the officers/employees of petitioner no.1.
15. That power, in our opinion, can be localised in Section 7 of the Act. The officers/employees of the writ petitioners would be covered by the expression 'establishment', as they are working in an establishment. Once, they are found working in an 'establishment', in our opinion, the only question is as to whether the power should be exercised by the District Magistrate or by any authority notified by the State Government under Section 4 (2) of the Act, depending on whether the expression is 'as' or 'or'. If the Act as downloaded from the website is taken into consideration, the expression used is 'or' and not 'as' and thus it is not only the District Magistrate, but other authorities can also be appointed by the State Government for any local area, which the State Government has done under Section 4 (2) of the Act. Respondent no.1 is one such authority. The demand has been made by respondent no.1 in respect of the officers/employees working in the Kanpur Branch of the Life Insurance Corporation. Therefore, it was well within the jurisdiction of respondent no.1, considering that power has been conferred to call on the writ petitioners to make available the names of their officers/employees for the purpose of carrying on the census operations.
16. Alternatively, even if we assume that the expression is not 'or' and is 'as' then at the highest, the power can be exercised by the District Magistrate, who is the Principal Census Officer insofar as the whole district is concerned. Insofar as the Nagar Nigams are concerned, they are only a part of the district and thus the Municipal Commissioners have been notified as Additional Principal Census Officers. So, if in the event, respondent no.1 has no jurisdiction, then the District Magistrate in respect of the district would have jurisdiction. As such, at the highest, it can be said that respondent no.1 would not have been an authority to issue a direction to the writ petitioners, as such power is vested with the District Magistrate. However, considering that in various other writ petitions, interim orders were passed directing the petitioners, like the writ petitioners, to make available not more than 25% of their officers/employees and as the census operations are going on, no useful purpose would be served by quashing the orders dated 05.04.2010 and 17.04.2010 and the subsequent orders. In fact, in the order dated 05.04.2010, a reference has been made to the Notification dated January 18, 2010. Thus, in any view of the matter, no relief can be granted as sought for.
However, at the same time, we may note that though respondents may call on the writ petitioners to make available the officers/employees for the purpose of census operations, in exercise of that power, the working of the writ petitioners themselves should not be affected as observed in the case of State Bank of India (supra). If there be power, it has to be exercised with circumspection and minimum staff can be requisitioned. We, therefore, direct the respondents that if and when a notification is required to be issued under Section 7 of the Act, then from the Institutions like the writ petitioners, requisition should be, at any rate, not more than 25% of the available staff within the area of the jurisdiction conferred on the officers.
17. With the above observations, this writ petition is disposed of. Interim order dated 28.05.2010 stands vacated.
Dated:4th March, 2011 RKK/- (Chief Justice) (Vineet Saran, J) Hon'ble Ferdino I. Rebello, Chief Justice Hon'ble Vineet Saran, J. Writ petition is disposed of. For orders, see order of date passed on separate sheets. Dt/-4 March, 2011 RKK/-(28736/10) (F.I. Rebello, CJ) (Vineet Saran, J)