Bombay High Court
IN REF ORDER DT. 29 DECEMBER 2025 PASSED BY THE MUNICIPAL COMMISSIONER BRIHANMUMBAIversusTHE MUNICIPAL COMMISSIONER BMC CUM DISTRICT ELECTION OFFICER AND ORS
- Decided
- Disposal
- Disposed Off
Holding
Court staff cannot be requisitioned for municipal election duties except in exceptional circumstances and only with prior approval of the High Court, affirming clause 10.5 of the Election Commission of India’s guidelines.
Summary
The Bombay High Court, acting suo moto, examined a dispute arising from the Municipal Commissioner’s attempt to requisition High Court and subordinate court staff for the Brihanmumbai Municipal Corporation elections. The Court noted that Section 159 of the Representation of Peoples Act, 1951 does not list courts as authorities whose staff can be called for election work, and that constitutional provisions (Arts. 235, 243K, 243ZA) grant the High Court control over its staff and the State Election Commission authority over municipal elections. Affidavits from the State, the Municipal Commissioner, the State Election Commission and the Election Commission of India confirmed that requisition of court staff is permissible only in exceptional circumstances with prior High Court approval. The Court affirmed clause 10.5 of the Election Commission of India’s 2023 guidelines, requiring such prior approval, and restrained the Municipal Commissioner from further requisitioning. Consequently, the petition was disposed of, and the Court’s direction on future requisitions was made binding.
Issues considered
- Whether the Municipal Commissioner can requisition High Court and subordinate court staff for municipal election duties under Section 159 of the Representation of Peoples Act, 1951.
- Whether the State Election Commission or the Election Commission of India have authority to direct such requisition of court staff.
- Whether the High Court's administrative decision exempting its staff from election duty is binding on other authorities.
- Whether prior approval of the High Court is required for requisitioning judicial officers or staff in exceptional circumstances.
- Interpretation of constitutional provisions Articles 235, 243K and 243ZA in relation to control over court staff and conduct of municipal elections.
Legislation cited
- Representation of Peoples Act, 1951 — s. 159
Subjects
- election duty
- requisition of court staff
- high court jurisdiction
- representation of peoples act
- constitutional law
- suo moto jurisdiction
- exceptional circumstances
- electoral administration
Judgment
BDP 78 SMWP-4-25-HC Suo moto(1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
CIVIL APPELLATE JURISDICTION
PANDIT
Digitally signed by
BHARAT
DASHARATH
PANDIT
SUO MOTU WRIT PETITION NO.04 OF 2025
Date: 2026.03.26
12:18:14 +0530
In Re : Order dated 29th December 2025 passed by the Municipal
Commissioner, Brihanmumbai.
Mr. Milind Sathe, AG with Ms. Neha S. Bhide, GP with Ms. Jyoti
Chavan, Addl. G.P. and Ms. G.R. Raghuwanshi, AGP for the
State.
Mr. Ravi Kadam, senior advocate with Mr. Pralhad Paranjape and
Mr. Santosh Mali, Advocates for the Respondent-BMC.
Mr. Akshay Pansare i/b Mr. Sachindra B. Shetye, Advocates for
the Respondent-State Election Commission.
Mr. Akshay P. Shinde, Advocate for the Respondent-Election
Commission of India.
CORAM : SHREE CHANDRASHEKHAR, CJ &
GAUTAM A. ANKHAD, J.
DATE : 4TH MARCH 2026
PER, GAUTAM A. ANKHAD, J.
On the eve of the elections to the Brihanmumbai
Municipal Corporation, the staff members of the High Court
as well as the subordinate Courts were requisitioned for
election duty by the Municipal Commissioner-cum-District
Election Officer, Brihanmumbai Municipal Corporation,
Mumbai. In view of the urgency of the matter, this Court took
suo motu cognizance on 30th December 2025, upon the
Registry placing the relevant record before this Court. On the
same day, a detailed order was passed inter alia directing the
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Municipal Commissioner, BMC-cum-District Election Officer
not to act upon the ex parte communication dated 22nd
December 2025, which had been directly addressed to the
Court staff. By the said order, the Municipal Commissioner
was restrained from issuing any communication requisitioning
the services of staff of the High Court or the subordinate
Courts for election duty. The Municipal Commissioner was
also directed to file a personal affidavit indicating the source of
power and jurisdiction under which such directions had been
issued. The order dated 30th December 2025 is extended and
quoted:-
“P.C. :
This Court has been convened in view of the urgency
in the matter when the records were produced by the
Registry before one of us (Chief Justice) in the afternoon.
2. Accordingly, necessary instructions were issued for
intimating the learned Advocate General, the learned
counsels for the State Election Commission, BMC and
Election Commission of India about sitting of the Court at
08:00 p.m. today.
3. The Registrar was informed that the learned Advocate
General is travelling and in his place Ms. Jyoti Chavan, the
learned Additional Govt. Pleader appeared for the State of
Maharashtra.
4. When this Court assembled at around 08:00 p.m., Ms.
Komal Punjabi, the learned counsel for the BMC sought a brief
adjournment for seeking instructions in the matter.
5. It was on 16th September 2008 that a decision was
taken in the meeting of the Administrative Judges’ Committee
of the High Court of Bombay that the staff of the High Court
and the subordinate Courts is exempted from the election
duty. It was further resolved and decided in the said meeting
of the Administrative Judges’ Committee that no information
regarding the staff of the subordinate Court, if sought from the
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Principal Judge, City Civil and Sessions Court Bombay shall
be provided to any authority. Under Article 235 of the
Constitution of India, the High Court exercises complete control
and superintendence over the subordinate Courts including
the staff. It was in the light of the Constitutional provisions
pertaining to the High Court under Chapter V and subordinate
Courts under Chapter VI that the aforementioned decision
seems to have been taken by the Administrative Judges’
Committee on 16th September 2008.
6. The State Election Commission constituted under
Article 243-K, may request the Governor of State to make
available to the State Election Commission such staff as may
be necessary for the discharge of functions conferred on the
State Election Commission under Clauses (1) and (2) of Article
243K. Clause (4) provides that the Legislature of the State may
by law make provision for all matters relating to or in
connection with elections to the Panchayats (in this case
Municipalities). Under Article 243 ZA, the superintendence and
control of the preparation of electoral rolls for and the conduct
of all the elections to the Municipalities shall be vested in the
State Election Commission referred to under Article 243K.
Clause (2) further provides that the Legislature of the State
may by law make provision with respect to all matters relating
to or in connection with elections to the Municipalities. We may
further refer to Section 159 of the Representation of People’s
Act, 1951 captioned as “staff of certain authorities to be made
available for election work”. Section 159 provides that the
authorities specified in sub-section (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. Sub-section (2) enumerates the authorities for the
purposes of sub-section (1), but, on a glance at sub-section (2)
we find that the High Court or the subordinate Courts do not
find mention therein.
7. Mr. Suryakrishnamurthy, the Deputy Secretary of State
Election Commission has also joined the Court proceeding in
virtual mode. He has made a statement on instructions that the
State Election Commission though an independent body
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normally does not requisition the Court staff and follow the
instructions issued by the Election Commission of India
wherever necessary and if not contrary to the policy of the
State Election Commission.
8. We may also indicate that on 7th June 2023, the
Election Commission of India issued a communication to the
Secretary, Department of Personnel and Training, Ministry of
Personnel Government of India, the Secretary, Ministry of
Defence, Government of India, Chief Secretaries of all States
and Union Territories, and Chief Electoral Officers of States
and Union Territories, the paragraph 10.5 of which reads as
under :-
“10.5. The present practice of obtaining the prior
approval of the High Court before engaging judicial
officers/staff, under exceptional circumstances, for
election work to continue.”
9. We may further indicate the controversy regarding
powers to requisition the officer or staff engaged in Courts and
Tribunals came up for consideration before this Court on
numerous occasions. In Writ Petition (L) No.6968 of 2024 filed
by the Charity Commissioner, Maharashtra, a Division Bench
observed that any authority or the Electoral Registrar Officer
or Collector cannot pass any order requiring the Charity
Commissioner or for that matter any other authority to make
available its staff having regard to the exercise of the powers
by the Charity Commissioner which is in the nature of quasi
judicial/judicial. The direction issued as regards requisitioning
the staff of the Charity Commissioner was stayed vide order
dated 1st March 2024. Similar order seems to have been
passed in PIL No.109 of 2009 (Consumer Court’s Advocates’
Association v. State of Maharashtra & Ors.).
10. The Registrar has brought to our notice that without
any communication or information the staff of the subordinate
Courts were issued letter dated 22 nd December 2025 by the
Municipal Commissioner, BMC-cum-District Election Officer
directing them to report for duty on 30 th December 2025
between 03:00 p.m. to 05:00 p.m. On receiving such
communication, the In-Charge Chief Metropolitan Magistrate,
Esplanade, Mumbai informed the Collector, Mumbai District
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(Mumbai City) and the Commissioner and District Election
Officer, BMC that the High Court has taken a decision vide
General/Adm./Jud./2009 dated 31st March 2009 regarding
the staff member of the subordinate Courts and made a
request for exempting the Court staff from election duty. A
similar communication was issued by the Registrar (Inspection
II) on 26th December 2025 attaching a copy of the General
Order dated 31st March 2009. The Registrar (Inspection II) has
brought to our notice that a similar communication was sent to
the Municipal Commissioner, BMC-cum-District Election Officer
through email on 26th December 2025 at 05:04 p.m.
11. Notwithstanding the aforementioned communication, a
letter dated 29th December 2025 was issued on him in the
capacity of the Municipal Commissioner addressed to Chief
Judicial Magistrate, Mumbai intimating that the request for
exempting the staff of the subordinate Court has been
declined.
12. At the outset, Ms. Komal Punjabi, the learned counsel
appearing for the Brihanmumbai Municipal Corporation made
a request after the Court reassembled at 8.45 p.m. to
withdraw the communication dated 29 th December 2025
issued under the signature of the Municipal Commissioner-
cum-District Election Officer.
13. However, this request is declined and the Municipal
Commissioner-cum-District Election Officer is directed to file his
own personal affidavit indicating the powers and jurisdiction
under which he has issued directions to the subordinate staff
of the District Judiciary to report for duty on 30 th December
2025 between 03:00 p.m. to 05:00 p.m. for election duty.
14. Having regard to the decision of the High Court taken in
the meeting of the Administrative Judges’ Committee and the
Constitutional and statutory provisions, we hereby direct the
Municipal Commissioner, BMC-cum-District Election Officer not
to take any action pursuant to the ex-parte communication
dated 22nd December 2025 directly sent to the Court staff.
The Municipal Commissioner, BMC-cum-District Election Officer
is restrained from issuing any letter/communication to the
Court staff of High Court or subordinate Courts requisitioning
their services for election duty.
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15. The affidavit filed by the Municipal Commissioner, BMC-
cum-District Election Officer shall be complete in all respect with
proper averments and supporting documents.
16. Let an affidavit be filed on behalf of (i) State Election
Commission (ii) Election Commission of India, and (iii) State of
Maharashtra within the same time.
17. Post this matter on 5th January 2026, to be taken up as
first matter at 11:00 a.m.
18. Let a copy of this order be communicated to the learned
counsels appearing for the parties through usual modes as well
as email, WhatsApp etc.”
2. We have heard Dr. Milind Sathe, the learned Advocate
General for the State of Maharashtra; Mr. Ravi Kadam, the
learned senior counsel for the Brihanmumbai Municipal
Corporation; Mr. Akshay Pansare, the learned counsel for the
State Election Commission; and Mr. Akshay P. Shinde, the
learned counsel for the Election Commission of India. Pursuant
to the directions issued on 30 th December 2025, affidavits have
been filed. The relevant portions of the affidavit dated
2nd January 2026 of the Additional Chief Secretary, General
Administration Department, Government of Maharashtra are
reproduced hereinbelow:
“5. Section 159 of Representation of Peoples Act, 1951 in
Part-X under heading “Miscellaneous”, of that Act provides
that staff of certain authotities specified in Sub-section (2)
shall be made available for election work when so
requested by the Regional Commissioner or Chief Electoral
Officers of the State. However, the High Court or the
subordinate Courts are righlty not mentioned in Section
159.
6. Therefore, it is submitted that the services of the staff of
this Hon’ble Court or that of the subordinate Courts cannot
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and ought not to be requisitioned by the Central Election
Commission or the State Election Commissions for election
duty except in exceptional circumstances and that also
cannot be done without leave of this Hon’ble Court.
7. As far as State Goernment is concerned during the
election process, the responsibility cast upon it is to make
necessary arrangements as requisitioned by the Election
Commission and in the actual conduct of the election
process the State has no role to play.”
3. Dr. Bhushan Gagrani, Municipal Commissioner, BMC-
cum-District Election Officer has also filed an affidavit dated
5th January 2026 stating as under:
“7. Thus, considering the Constitutional mandate
empowering the State Election Commission, the provisons
of the BMC Act and the Orders passed by the State
Election Commission on 2 March 1995 and 18 July 2018,
the Municipal Commissioner can exercise the powers for
requisitioning of necessary staff. There was some
ambiguity as regards the requisitioning of various
categories of staff, however at this juncture, I hasten to
add that the letter dated 29 Decemebr 2025 regarding the
requisitioning of the Court staff was issued under an
inadvertent interpretation of the Orders and the provisions
of the Act. That there was no intention to lower the majesty
of the Court and to flout orders passed.
11. Considering the requirement of a large numbers by a
letter dated 7 October 2025, the BMC wrote to the
Secretary, General Administrative Department, State of
Maharashtra to share details of employees who could be
assigned election duty. Hereto annexed and marked as
Exhibit “D” is a copy of letter dated 7 October 2025.
12. On 30th October 2025, the General Administration
Department forwarded the said letter to Finance
Department for providing the said informaton. On 12
November 2025, a list of 38,188 employees was made
available by Director, Audit and Treasury Directorate,
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Mumbai Government of Maharashtra. In the said list, the
staff that could be requisitioned and as provided by the
State Government included the names of Court staff.
Hereto annexed and marked as Exhibit “E” is a copy of
email dated 12.11.2025 by attaching employees data
extracted from the Sevaarth system.
13. In the circumstances, the standard form letters were
issued to the Government and Court Staff in exercise of
powers conferred by the BMC Act and the Orders of the
State Election Commission dated 18 July 2018. In
response we have received in all around 5000 requests for
exemption. Given the time fixed by the Supreme Court it
was not possible to process each request with detailed
consideration.
14. I was facing emergent circumstances, however, I
should have been more prudent and circumspect in dealing
with the letter dated 23 December 2025 from the Chief
Judicial Magistrate. I realize now that I should have
appreciated the purport of his letter and ought not have (in
my haste to fulfill my mandate) misread and
misinterpreted the letter and its contents. My misreading
was unintentional and inadvertent. I have always held the
Court in the highest regard and have never had any
intention of violating the orders or directions of the Hon’ble
Court. I say that on a fuller reflection I ought to have
appreciated that notwithstanding the list provided by the
State Government, the Court staff could only be
requisitioned by following the ECI’s mandate of seeking a
prior approval of the Hon’ble High Court.
15. I say that in these circumstances I unconditionally
withdraw the requisition of Court staff and the withdrawal
of the letter dated 29 December 2025 be accepted and I
submit that the affidavit be accepted.”
4. Dr. Bhushan Gagrani, Municipal Commissioner, BMC-
cum-District Election Officer has filed further affidavit dated
5th January 2026 stating as under:
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“1. I say that after the Hon’ble High Court passed an
Order on 30 December 2025 injuncting me from acting
in furtherance of the Notice dated 22 December 2025,
a direction/letter was issued on the very next day, i.e.
on 31 December 2025 to all the Returning Officers
extractng a copy of the Court’s Order dated 30
December 2025. By that letter, they were informed
that the concerned employee should not be issued
Show Cause Notice nor telephonically asked to report
for duty. Hereto annexed and marked Exhibit “1” is
a copy of the Direction dated 31 December 2025.
2. However, despite the said letter (perhaps before it
was recived), on the same day i.e. 31 December 2025,
Show Cause Notices were issued by the Central
Election Office under my digital signature to certain
staff working in the Office of the Sheriff, Bombay.
Hereto annexed and marked as Exhibit “2” is a copy
of one such Show Cause Notice issued on 31
December 2025.
3. When this was brought to my notice yesterday,
i.e. on 4 January 2025, I directed the Deputy
Returning Officer to withdraw and revoke the same as
all elections duties of the staff of the Sheriff had
already been cancelled. Hereto annexed and marked
as Exhibit “3” is a copy of the email sent.
4. I say that I had immediately acted upon the
Hon’ble Court’s order by addressing a direction dated
31 December 2025 to all concerned.”
5. Mr. K. Suryakrishnamurty, Deputy Secretary, State
Election Commission, Maharashtra has also filed an affidavit
dated 3rd January 2026 stating as under:
“11. I say that the provisions of Representation of
Peoples Act, 1951 are not applicable for conduct of
Local Body Elections. The Local Body Elections are
conducted under the provisions of Local Acts enacted
by State Legislature. As stated above since there are
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no separate provisions in any of the Local Acts similar
to Section 159 of Representation of Peoples Act, 1951,
for making staff of certain authorities available for
election work/election duties. The State Election
Commission in exercising its plenary powers under
Article 243K and 243ZA and under the provision of
relevant Local Acts, have issued the order dated 2nd
March, 1995, which deals with the direction to the
authorities for requisition of staff for election duties to
the election of local body. The said order has been
subsequently amended on 18th July, 2018, both these
orders are already annexed to this affidavit.”
6. Mr. Manohar Parkar, Joint Chief Electoral Officer,
Maharashtra State has also filed an affidavit dated 5 th January
2026 stating as under:
“5. It is therefore at this juncture itself respectfully
submitted that ECI has no role, involvement, or
jurisdiction in matters pertaining to municipal
elections, including the decisions relating to
requisitioning of staff for such elections.
10. Apart from various instructions contained in the
said leter, para 10.5 which is also reproduced in the
order dated 30/12/2025 passed in the present
proceeding and which is relevant for the purpose of
the present proceedings reads thus:
“The present practice of obtaining the prior
approval of the High Court before engaging
judicial officers/staff, under exceptional
circumstances, for election work should
continue.”
11. Bare perusal of the above instruction would
show that it is under exceptional circumstances and
with prior approval of the concerned Hon’ble High
Court, Judicial officers/staff can be requisitioned for
election work related to Parliament, State Legislature,
or elections to the offices of the Hon’ble President and
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Hon’ble Vice-President. However, as aforesaid the
present case is not concerning any of the aforesaid
elections or to any requisition made by this
Respondent.”
7. Based on the statements in the aforesaid affidavits and on
instructions from the respective authorities, it is jointly
submitted by the learned counsels that the administrative
direction in clause 10.5 of the Guidelines dated 7 th June 2023
issued by the Election Commission of India which mandate that
prior approval of the High Court must be obtained before
engaging judicial officers or staff for election work and that such
engagement can only be called in exceptional circumstances can
be made a judicial order so as to avoid any future controversy.
For the sake of convenience, clause 10.5 is quoted:
“10.5 The present practice of obtaining the prior approval of
the High Court before engaging Judicial Officers/staff,
under exceptional circumstances, for election work should
continue.”
8. In view of the above, the statements made by the learned
counsels appearing for the State of Maharashtra,
Brihanmumbai Municipal Corporation, Election Commission of
India and the State Election Commission are accepted.
Consequently, clause 10.5 of the Guidelines dated 7 th June
2023 stands affirmed and shall operate as a binding direction of
this Court. It is clarified that recourse to judicial officers or staff
of the High Court or subordinate Courts in the State of
Maharashtra and Goa for election duty shall be resorted to only
in exceptional circumstances. Any such request must set out
the exceptional circumstance and the necessity of requisitioning
judicial staff. Such a written communication by the concerned
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authority shall be addressed to the Registrar General of this
Court. Upon receipt of such communication, the Registrar
General shall place the same before the Chief Justice on the
administrative side for appropriate orders. No requisition shall
be enforced or acted upon, unless prior written approval of the
Chief Justice is obtained.
9. The Registrar (Judicial-I) shall forward a copy of this order
to all concerned authorities for information and compliance. In
view of the above directions and the statements recorded, Suo
Motu Writ Petition no. 4 of 2025 stands disposed of.
[GAUTAM A. ANKHAD, J.] [CHIEF JUSTICE]
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