Holding

Teachers of government schools may be deployed for election duties only on holidays, non‑teaching days or hours, while non‑teaching staff may be used at any time, preserving the balance between the right to education and the duty to conduct elections.

Summary

The petitioners, an unaided school governed by the Delhi School Education Act, challenged the Election Commission’s practice of deploying teachers from government schools for election‑related duties during school hours, alleging that it disrupted education and violated the right to education. The Delhi High Court had directed that teachers be used only on non‑teaching days, a decision the Election Commission appealed. The Supreme Court examined the constitutional mandate under Articles 324(1), 324(6) and 327, which obliges the central and state governments to make staff available for elections, and balanced it against the fundamental right to education under Article 21 and Article 45. While affirming the paramount importance of conducting elections, the Court held that education cannot be ignored and therefore directed that teachers may be requisitioned only on holidays, non‑teaching days or hours, whereas non‑teaching staff may be used at any time. The appeal was dismissed, with no order on costs.

Issues considered

The constitutionality of requisitioning government school teachers for election duties during school hours.
Whether the right to education under Article 21/Article 45 can limit the Election Commission’s power under Article 324.
Whether the High Court’s direction interferes with the sovereign function of conducting elections.

Legislation cited

Companies Act, 1956s. Section 617
Constitution of Indias. Article 21, s. Article 324(1), s. Article 324(6), s. Article 327, s. Article 41, s. Article 45
Delhi School Education Act, 1973
Representation of the People Act, 1950s. Section 13-A, s. Section 13-AA, s. Section 13B, s. Section 13CC, s. Section 29
Representation of the People Act, 1951s. Section 151, s. Section 159, s. Section 2(1)(bb), s. Section 2(1)(cc), s. Section 26, s. Section 28A

Subjects

election dutyright to educationfundamental rightsArticle 324Article 21Article 45teacher deploymentbalance of rightspublic interest litigation

Judgment

J I

-+ ELECTION COMMISSION OF INDIA A
v.
ST. MARY'S SCHOOL AND ORS.

DECEMBER 6, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]
\
Constitution of India, 1950: Articles 324(1), (6) and 327-
Election Commission utilizing services of teachers of Government
Schools for holding elections, revision ofpolling lists etc. during school c
timings-Challenge to, on the ground that absence of teachers from
school resulted in unfinished course, poor result, high drop out rate
and failure to compete in open examination and consequently defeat
right to education-Held: Holding of elections is imperative for
-\ '
upholding democracy and democratic values-But for said purpose, D
education of children cannot be neglected-Necessity to maintain
balance between the two-Election Commission directed that teaching
staff be put on duties of roll revisions and election works only on
holidays and non-teaching days-Election duty-Representation ofthe
People Act, 1951-ss.21, 22 and 159-Representation of the People E
Act, 1950-Delhi School Education Act, 1973.
The writ petitioner-respondent No.1, an unaided school
governed by the provisions of the Delhi School Education Act, 1973,
filed a writ petition in public interest questioning the action of
appellant Election Commission and respondents No.2 to 5 in utilizing F
the services of teachers of Government Schools for various purposes
including polling duties to elections, revision of polling lists,
preparation of census lists etc. during school timings. The grievance
of the writ petitioner was that absence of teachers from schools for
a long time resulted in unfinished courses, high drop out rates, poor G
results and inability to compete in open examination, such as
~ -1 medicine, engineering etc. or to get admission in professional
colleges.

971 H
972 SUPREME COURT REPORTS [2007] 12 S.C.R.

A The counsel for the parties accepted before High Court that
the services of teachers should be utilized for non-teaching purposes
only on a day which is not a working day for students. The Election
Commission filed the instant appeal.

Dismissing the appeal, the Court
B
HELD: 1. Indisputably, for upholding the democracy and the
democratic values, holding of elections is imperative. Keeping in
view the constitutional mandate provided for under clauses (1) and
(6) of Article 324 of the Constitution of India, it is the duty of the
c Central Government as also the State Governments to make
available to the Election Commission, or to a Regional
Commi~sioner such staff, as may be necessary for the discharge of
functions conferred on the Election Commission. Article 327 of the
Constitution empowers the Parliament to make laws with respect to
D all matters relating to, or in connection with, elections to either
House of the Parliament or to the House or either House of the >
Legislature of a State including the preparation of the electoral rolls,
the delimitation of constituencies and all other matters necessary
for securing the due constitution of such House or Houses. The
E Parliament with a view to give effect to the said constitutional
functions enacted the Representation of the People Act, 1950 and
the Representation of the People Act, 1951.
[Para 13) [981-F-H; 982-A-B]

2. It is for the Central Government and the State Governments
F alone to provide for the requisite staff. They may do it by fresh
recruitment for the purposes for which the staff are requisitioned or
by deployment or by way of deputation. Indisputably, there are
certain functions which may be performed only by the Government
staff. For the said purposes they may be sent on deputation, e.g.,
G ss. 21 and22 of the 1951 Act provide for the Returning Officers and
Assistant Returning Officers who must be officer of Government or
of a local authority. Therefore, their services can be requisitioned
under clause (6) of Article 324 of the Constitution as also ss.159 of
the 1951 Act. The Election Commission or the Regional
H Commissioner, as the case may be, is also entitled to request for
J
'
ELECTION COMMISSION OF INDIA v. ST. MARY'S 973
SCHOOL
requisitioning the services of persons in the employment of the A
-+ Government or the local authority and others who may not be officers
of the Government or the local authority. The Parliament was aware
<
that in an election, requisition of services of the employees of the
Central Government or the State Governments may prove to be
insufficient and, thus, a direction for appointment of the staff from B
amongst the officers of the local authority and others have been
' -/ made. [Para21] [986-C-F]

3. The right to education is also held to be a fundamental right.
Sixty years of independence, however, has not brought about the
desired result of imparting compulsory education to all the children. c
Education is one of the most important functions of the State. The
State has a basic responsibility in regard thereto. Holding of
elections is no doubt of paramount importance. But for the said
purpose education of children cannot be neglected. Therefore, it is
necessary to maintain the balance between the two. D
[Paras 22, 25 and 27) [986-G; 988-E; 989-A]
Election Commission of India v. State Bank of India Staff
Association, Local Head Office Unit, Patna and Ors., [1995) Supp. 2
SCC 13; Mohini Jain v. State ofKarnataka, [1992) 3 SCC 666; Unni
E
Krishnan, JP. & Ors. v. State ofAndhra Pradesh & Ors., [1993) 1 SCC
645 and Brown v. Board of Education, 98 L.Ed. 873 : 347 US 483
(1954), referred to.

4. With the advent of technology, requisitioning of a large
number of people for carrying out elections may not be necessary. F
The Election Commission has different roles to play. Preparation of
electoral rolls, revision of electoral rolls, when objections are filed,
hearing the parties and determining the objections, enumeration of
voter lists and to hold elections as and when due. The Election
Commission and its officers can formulate an effective scheme to G
see that services of a large number of teachers are not required.
~ -1
The State admittedly is not in a position to perform its sovereign
function of imparting education. Such functions necessarily are
required to be performed by the private sector. Those students who
are in a position to get admission in public schools presumably would H
974 SUPREME COURT REPORTS [2007] 12 S.C.R.

A also be in a position to appoint tutors whereas those students who
are admitted to Government schools ordinarily would be from the
middle or lower middle class or poor families. The state of primary
education in India is in a deplorable condition. There admittedly is
a heavy drop outs from the schools particularly from amongst the
B girl schools. The right to education is also no less important, being
a fundamental right. [Para 28] [989-B-E]

5. The Human Rights Conventions imposed a duty on the
Contracting States to set up institutions ofhighcr education which
C would lead to the conclusion that the citizens thereof should be
afforded an effective right of access to them. In a democratic society,
right to education is indispensable in the interpretation ofright to
development as a human right. Thus, right to development is also
considered to be a basic human right. [Para 29) [989-F-G]

D Leyla Sahin v. Turkey, decided by the European Court ofHuman ,.
Rights, on 10th November, (2005), referred to.
6. The Election Commission also categorically stated that as
far as possible teachers would be put on electoral roll revision works
on holidays, non-teaching days and non-teaching hours; whereas
E
non-teaching staff be put on duty any time. Therefore, it is directed
that all teaching staff shall be put on duties of roll revisions and
election works on holidays and non-teaching days. Teachers should
not ordinarily be put on duty on teaching days and within teaching
hours. Non-teaching staff, however, may be put on such duties on
F any day or at any time, if permissible in law.
[Para 32) [990-C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5659 of
2007.
G From the Judgment and final Order dated 11.8.2004 of the High
Court of Delhi at New Delhi in Writ Petition (Civil) No. 1076 of2003. ,_
K.K. Venugopal, Meenakshi Arora, S.K. Mendiratta, S. Gupta and
Ankur Talwar for the Appellant.
H
ELECTIONCOMMISSIONOFINDIAv. ST.MARY'S 975
SCHOOL [SINHA, J.]
R.K. Shukla, Reena George, Prashant Bhushan, D.S. Mahra, A
Rashmi Malhotra, Indira Sawhney, Anil Katiyar, Sanjiv Sen and Praveen
Swamp for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted. B
(
) 2. A short but interesting question, as to how conflict in two
constitutional rights should be balanced, is involved in this appeal which
arises out of a judgment and order dated 11.08.2004 passed by a Division
Bench of the Delhi High Court in Writ Petition (Civil) No. 1076 of2003.
c
3. Respondent No. l is an unaided school. It is governed by the
provisions of the Delhi School Education Act, 1973 (for short, 'the Act')
and the rules framed thereunder. It filed a writ petition in public interest,
questioning the action of the appellant and the respondents Nos. 2 to 5
herein as regards utilizing the services of the teachers of the Government D
' '
J schools for various purposes during school timings, as a result whereof
the students reading in the said schools are deprived of obtaining
instructions from their teachers during such period. In the writ petition it
was pointed out that the absence of teachers occur due to their
deployment for non-educational purposes; and as the teaching and E
administrative staff of these schools have been used by the State agencies
as well as the appellant herein for various other duties outside school
during school hours including:
* Polling duties to general election to Lok Sabha
F
* Polling duties to general election to Delhi Legislative Assembly
* Polling duties to MCD elections
* Gurudwara election
* Revision of polling lists
G
* Pulse polio drive
} ~
* Preparation of census lists
* Surveys on malaria, pollution etc.
H
976 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 4. The Act and the Rules framed thereunder which govern the field
mandate that all the schools in Delhi have to function for a minimum of
210 days in a year. It was pointed out that although the extent of the
period differed, the teachers were asked to perform polling duties for a
few months and also for census duties for considerable period. The writ
B petition highlighted that absence of teachers from the school for a long
time resulted in unfinished courses, high drop out rates, poor results and
inability to compete in open examinations, such as medicine, engineering
etc. and/or to get admission in other prestigious or professional colleges.
It was contended that an informal survey conducted by the petitioner
c therein demonstrated that about 9,00,000 students had enrolled
themselves in class 1 of the schools run by the Municipal Corporation of
Delhi, but only 50,000 of them appeared in the secondary examination.
5. The Municipal Corporation of Delhi (MCD) in its counter affidavit
contended that absence of the teachers and other administrative staff of
D schools for performing duties allocated by the officers of the Election
'
Commission is in national interest. In the counter affidavit, it was, stated: >
""'J. That the main work assigned to teachers is in relation to
teaching work. However, in the larger national interest, some
of the teachers are called upon to do some other Government
E
work relating to public interests like polio vaccination,
preparation of voter list, etc.
4. That only during the work of census in the year 2001, a slightly
large number of teachers were required for the purpose. Even
F for this purpose, to take care that the teaching activities are
not hampered in any manner, letter No. F-4/12/2000 dated
04.02.01, referring to the Order of Lt. Governor of the NCT
of Delhi having been passed, whereby the enumerators were
directed to perform their census enumeration duties before/
after their normal school hours. The census work is conducted "
G
only once in a decade."
5. That it is reiterated that it is seen that the government work '-

relating to public interest done by the teachers does not hamper
the teaching activities. The additional government public work
H is some time assigned to some of the teachers in national
ELECTIONCOMMISSIONOFINDIAv. ST.MARY'S 977
SCHOOL [SINHA, J.]
interest." A
6. The New Delhi Municipal Committee (NDMC) in its additional
affidavit filed before the High Court, stated :
"2. That the total number of sanctioned posts of teachers in NDMC
Schools are about 1200. For polling duty, almost 90% of the B
'~ teaching staff is deployed on duty. For census work in the year
2000 and enumeration work in the year 2001, 90% of the staff
were assigned duty. For Revision of electoral rolls, almost 50%
of the teaching staff is put on duty.
3. For polling duties, the Election Commission deploys the c
teachers of the NDMC Schools for the purposes of holding
Parliamentary Elections, Delhi Assembly Elections and even
Municipal Corporation Elections. Generally the elections are
held on Sundays, but before the actual polling takes places,
' . the teaching staff is called for three working days for the D
' purposes of training, collection of election material etc. In the
year 1998-99, all the elections were held i.e. Parliamentary,
Delhi Assembly and Corporation Elections and hence the
teachers were not on duty for 9 working days.
4. That in the year 2001, when the work of Special Revision of E
Electoral Roll was required to be conducted, the then Chief
Electoral Officer informed the Respondent NDMC that the
said work shall be conducted by the teachers between
13.9.2001 to 12.10.2001 by the teachers. Initially it was
supposed to be a part time job, however, it was later on F
converted into a full time work so as to complete the
assignment within the prescribed time."
7. During the pendency of the writ petition before the High Court,
the Government ofNCT of Delhi issued a circular letter, relevant portion G
whereof is as under :
/-~
"This duty binds the State-Governments to provide the requisite
number of staff to the Election Commission for conducting elections
and taking into consideration the insufficient number of staff available
H
978 SUPREME COURT REPORTS [2007] 12 S.C.R.

A in generalist cadre, the government proposes to utilize the services
of teaching staff for the following duties :
(a) Election Duty
(b) Revision of Electoral Rolls
B
(b) Revision of Electoral Rolls : For the intensive revision of
electoral rolls, we require approximately 55,000 employees
whereas the Cadre strength of the General cadre of the Govt. of
NCI of Delhi is only around 9000. In view of this, the services of
c teachers are indispensable for intensive Revision of Election Rolls.
This intensive revision of electoral rolls is not a regular process and
-
this takes place with a periodicity of 4 to 5 years as per instructions
of the Election Commission oflndia.
The Summary/Special Revision of Electoral Rolls takes place
D once in a year and the services of teachers are normally not utiliz.ed
and this is managed within the cadre strength. However, in some
of the institutions that are declared as designated locations, the
services of the Head of the Institution are taken to receive the Form
and they are declared as Designated Officers. Normally, these
E officials are not engaged in teaching and handle the work in addition
to their administrative duties. They are assisted by non-teaching
staff.
The Staff thus deployed function under the superintendence and
control of the Chief Electoral Officer and remain under the
F administrative control of Chief Electoral Officer during this period.
Elections being a sovereign function of the State, the work of
conduct of elections cannot be delegated to persons who are not
employees of government or to any non-governmental agency,
G parastatal organizations etc.
The Government draws staff from every govt. department and
it is not true that only teachers are deployed for election work.
Staff from other categories from almost every department is
engaged for election duty.
H
_J

ELECTION COMMISSION OF INDIA v. ST. MARY'S 979
SCHOOL [SINHA, J.]
.+ However, with a view to ensure that election work does not A
come in conflict with the interest of education, the respondent
Government would like to take the following steps to ensure that
teaching work is least affected :
(!) As far as possible the revision of Electoral roll shall be taken
up during holidays or teachers would be deployed to perform B
' -j the work on holidays.
(ii) The teachers who are on non-teaching posts i.e. Physical
Education Teachers, Drawing Teachers, Librarian and Lab
Assistants, Yoga instructors etc. would be deployed for
election work.
c
(iii) The teaching hour loss, if any, shall be compensated by holding
extra classes, so that the minimum prescribed teaching hours
are completed.

{
(iv) The Principals/Heads oflnstitutions will be directed to make D
internal adjustment of time tables and reschedule the classes
for making up any possible teaching losses."
8. Learned counsel appearing for the parties, however, as it appears
from the impugned judgment, accepted before the High Court that the E
services of the teachers should be utilized for non-teaching purposes only
on a day which is not a working day for the students.
9. The Election Commission is, thus, before us.
10. Mr. K.K. Venugopal, learned Senior Counsel appearing on F
behalf of the appellant, would, inter alia, submit :
(i) Holding of an elections is a sovereign function.
(ii) The Election Commission having regard to the provisions
contained in the Constitution of India as also the
G
Representation of the People Act, 1951 is required to conduct
, -} elections for the purpose of upholding democracy.
(ill) Democracy being a basic feature of the Constitution of India,
it is obligatory on the part of the Election Commission to ensure
that the citizens who are entitled to vote are not deprived of H
980 SUPREME COURT REPORTS (2007] 12 S.C.R.

A their right and those who are not entitled thereto are not r- .
permitted to do so.
(iv) In terms of the provisions of clauses (1) and (6) of Article 324
of the Constitution of India, it is mandated that whenever the
Election Commission asks for deployment of staff for the
B purpose of conducting elections, it is obligatory on the part of
the President oflndia or the Governor of the State to make
such number of staff made available to it, and with a view to
fulfill the said constitutional object, the Parliament amended
Section 159 of the 1951 Act so as to provide:
c
"159. Staff of certain authorities to be made available for
election work.-
(I) The authorities specified in sub-section (2) shall, when so
requested by a Regional Commissioner appointed under clause (4)
D 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 purposes of sub-
section (1), namely:--
E
(i) every local authority;
(ii) every university established or incorporated by or under a
Central, Provincial or State Act;

F (iii) a Government company as defined in section 617 of the
Companies Act, 1956 (I 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
G provided, directly or indirectly, by the Central Government or
a State Government."
(v) The High Court, in that view ofthe matter could not have issued
any direction which may for ail intent and purport interfere with
the electoral process.
H
ELECTION COMMISSION OF INDIA v. ST. MARY'S 981
SCHOOL [SINHA, J.]
~
-t-
11. Learned counsel appearing on behalf of the Municipal A
Corporation of Delhi, New Delhi Municipal Committee and Union of India
adopted the submissions of Mr. Venugopal.
12. Ms. Reena George, learned counsel appearing on behalf of the
writ petitioner-respondent, on the other hand; submit that:
B
'-' (a) the impugned order having been passed in terms of consent
of the parties, this Court should not exercise its jurisdiction
under Article 136 of the Constitution oflndia.
(b) Right to education being a fundamental right having regard
to Article 21 A of the Constitution of India, it is obligatory on c
the part of the State to ensure that the students are not deprived
thereof.
(c) In the affidavit filed on behalf of the NDMC, it was clearly
demonstrated that in some schools where teaching or
D
instructions are imparted for Class IX or X students, no teacher
was available for a period of two months.
(d) The purpose for which the education is imparted in the
schools is to see that the Government in the municipal schools
must ensure that they compete with the standard maintained E
by the private schools.
13. Indisputably, for upholding the democracy and the democratic
values, holding of elections is imperative. There cannot also be any doubt
or dispute that keeping in view the constitutional mandate provided for
under clauses (1) and (6) of Article 324 of the Constitution oflndia, the F
President of India or the Governor of a State i.e. the Central Government
as also the State Government have a duty to make available to the Election
Commission, or to a Regional Commissioner such staff, as may be
necessary for the discharge of functions conferred on the Election
Commission by clause (1) in terms whereof a power of superintendence, G
I ../ direction and control of elections is to be vested in the Election
Commission, if request in this regard is made. Article 327 of the
Constitution of India empowers the Parliaments to make laws with respect
to all matters relating to, or in connection with, elections to either House
of the Parliament or to the House or either House of the Legislature of a H
982 SUPREME COURT REPORTS [2007] 12 S.C.R.

A State including the preparation of the electoral rolls, the delimitation of f- '
constituencies and all other matters necessary for securing the due
constitution of such House or Houses.
The Parliament with a view to give effect to the said constitutional
B functions enacted the Representation of the People Act, 1950 (1950 Act)
and the Representation of the People Act, 1951 (1951 Act).
15. We may notice certain provisions of the said Acts.
1950 Act:
c Section 13-A of 1950 Act provides for the designation or nomination
of the ChiefElectoral Officers, by the Election Commissioner; whereas
Section 13-AA provides for designation or nomination of a District
Election Officer, who is to be an officer of Government.
Sections 13B, 13CC and Section 29 of the 1950 Act read as under:
D
"1 JB - Electoral registration officers. - (1) The electoral roll
for each parliamentary constituency in the State of Jammu and
Kashmir or in a Union territory not having a Legislative Assembly,
each assembly constituency and each Council constituency shall
E be prepared and revised by an electoral registration officer who
shall be such officer of Government or of a local authority as the
Election Commission may, in consultation with the Government of
the State in which the constituency is situated, designate or nominate
in this behalf.
F (2) An electoral registration officer may, subject to any
prescribed restrictions, employ such persons as he thinks fit for
the preparation and revision of the electoral roll for the
constituency."

G "1 JCC. 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
H shall be deemed to be on deputation to the Election Commission
),

ELECTION COMMISSION OF INDIA v. ST. MARY'S 983
SCHOOL [SINHA, J.]
-'1- for the period during which they are so employed and such officers A
and staff shall, during that period, be subject to the control,
superintendence and discipline of the Election Commission."
"29. Staffoflocal 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 B
' _,\
registration officer such staff as may be necessary for the
performance of any duties in connection with the preparation and
revision of electoral rolls."

1951 Act: c
Sections 2(1 ){bb) and 2(1 )(cc) of 1951 Act provide for the meanings
of the terms "Chief Electoral Officer" and the "District Election Officer",
who would be an officer appointed under Sections 13-A and 13-AA of
the 1950 Act.
> I
D
~
.Part IV of 1951 Act, does not lay down any procedure for
requisitioning of a person for being appointed as the Returning Officer,
an Assistant Returning Officer; or Presiding Officer, or Polling Officer.
However, it may be noticed that after Section 22, which provides
for appointment of Assistant Returning Officers a proviso was added by E
reason of Act No. 47of1966 in terms whereof the words "an Officer of
Government or of a local authority" had been inserted.
Sections 26, 28A, 151 and Section 159 read as under :
"26 - Appointment of presiding officers for polling F
stations. - ( 1) The district election officer shall appoint a presiding
officer for each polling station and such polling officer or officers
as he thinks necessary, but he shall not appoint any person who
has been employed by or on behalf of, or has been otherwise
working for, a candidate in or about the election: G
;~
Provided that if a polling officer is absent from the polling station,
the presiding officer may appoint any person who is present at the
polling station other than a person who has been employed by or
on behalf of, or has been otherwise working for, a candidate in or
H
)_

984 SUPREME COURT REPORTS (2007] 12 S.C.R.

A about the election, to be the polling officer during the absence of
the former officer, and inform the district election officer accordingly:
Provided further that nothing in this sub-section shall prevent
that district election officer from appointing the same person to be
the presiding officer for more than one polling station in the same
B
premises.
(2) A polling officer shall, if so directed by the presiding officer,
perform all or any of the functions of a presiding officer under this
Act or any rules or orders made thereunder,
c (3) If the presiding officer, owing to illness or other unavoidable
cause, is obliged to absent himself from the polling station, his
functions shall be performed by such polling officer as has been
previously authorised by the district election officer to perform such
functions during any such absence. \
D )
(4) References in this Act to the presiding officer shall, unless
the contest otherwise requires, be deemed to include any person
performing any function which he is authorised to perform tmder
sub-section (2) or sub-section (3), as the case may be."
E "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
F 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
G the control, superintendence and discipline of the Election
Commission."
·-
"151.- Casual vacancies in the State Legislative Councils. -
When before the expiration of the term of office of a member
H elected to the Legislative Council of a State, his seat becomes
~-

ELECTIONCOMMISSIONOFINDIAv. ST.MARY'S 985
SCHOOL [SINHA,J.]
-i-- vacant or is declared vacant or his election to the Legislative A
Council is declared void, the Election Commission shall, by a
notification in the Official Gazette, call upon the Council
constituency concerned or the members of the Legislative
Assembly of the State, as the case may be, to elect a person for
the purpose of filling the vacancy so caused, before such date as B
'~ may be specified in the notification, and the provisions of this-Act
and of the rules and orders made thereunder shall apply, as far as
may be, in relation to the election of a member to fill such vacancy."
"159. Staff of certain authorities to be made available for
election work. - (I) The authorities specified in sub-section (2) c
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. D
i
(2) The following shall be the authorities for the purposes of sub-
section (1 ), namely:--
(i) every local authority;
E
(ii) every university established or incorporated by or under a
Central, Provincial or State Act;
(rii) 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 F
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."
G
19. We may, however, notice that prior to enactment of Act No.
I~ 12of1998 in terms of Section 159 of the 1951 Act the obligation to
make available to any Returning Officer such staff as may be necessary
in connection with an election was only confined to the local authority.
H
986 SUPREME COURT REPORTS [2007) 12 S.C.R.

A 20. The question as to whether the staff of the State Bank of India r-
could be requisitioned for the purpose came up for consideration before
this Court in Election Commission ofIndia v. State Bank ofIndia Staff
Association, Local Head Office Unit, Patna and Ors., [1995) Supp.
2 SCC 13, wherein this Court upheld the judgment and order of the
B Division Bench of the Patna High Court, opining that the officers of the
State Bank of India cannot be requisitioned in terms of Section 26 of the
1951 Act or otherwise.
21. The constitutional and statutory scheme would lead to a realistic
conclusion when emphasis was laid that it is for the Central Government
C and the State Governments alone to provide for the requisite staff. How
would they do it is one thing. It may be by fresh recruitment for the
purposes for which the staff are requisitioned or for deployment or by
way of deputation. Indisputably, there are certain functions which may be
performed only by the Government staff. For the said purposes they may
D be sent on deputation e.g. Sections 21 and 22 of the 195 l Act provides
for the Returning Officers and Assi.stant Returning Officers who must be
an officer of Government or of a local authority. Therefore, their services
can be requisitioned under clause (6) of Article 324 of the Constitution
oflndia as also Section 159 of the 1951 Act. The Election Commission
E or the Regional Commissioner, as the case may be, is also entitled to
request for requisitioning the services of the persons in the employment
of the Government or the local authority and others who may not be
officers of the Government or the local authority. The services of other
employees who are not officers may also be requisitioned. The Parliament
F was aware that in an election, requisition of services of the employees of
the Central Government or the State Governments may prove to be
insufficient and, thus, a direction for appointment of the staff from amongst
the officers of the local authority and others have been made.
22. On the other hand, however, right to education is held to be a
G fundamental right. It was so stated in Mohini Jain v. State ofKarnataka,
[l 992] 3 sec 666 in the following terms :
"12. "Right to life" is the compendious expression for all those rights
which the courts must enforce because they are basic to the
H dignified enjoyment oflife. It extends to the full range of conduct
ELECTION COMMISSION OF INDIA v. ST. MARY'S 987
SCHOOL [SINHA, J.]
which the individual is free to pursue. The right to education flows A
directly from rightto life. The right to life under Article 21 and the
dignity of an individual cannot be assured unless it is accompanied
by the right to education. The State Government is under an
obligation to make endeavour to provide educational facilities at
all levels to its citizens." B
23. The aforementioned ratio has been affirmed with certain
modification by this Court in Unni Krishnan, JP. & Ors. v. State of
Andhra Pradesh & Ors., [1993] 1 SCC 645, expressly stating:
" ... Having regard to the fundamental significance of education to C
the life of an individual and the nation, and adopting the reasoning
and logic adopted in the earlier decisions of this Court referred to
hereinbefore, we hold, agreeing with the statement in Bandhua
Mukti Morcha 27 that right to education is implicit in and flows
. '
from the right to life guaranteed by Article 21. That the right to D
education has been treated as one of transcendental importance
in the life of an individual has been recognised not only in this
country since thousands of years, but all over the world. In Mohini
Jain, the importance of education has been duly and rightly
stressed. The relevant observations have already been set out in E
para 7 hereinbefore. In particular, we agree with the observation
that without education being provided to the citizens of this country,
the objectives set forth in the Preamble to the Constitution cannot
be achieved. The Constitution would fail. .. "
24. Article 45 is the only provision in our Constitution which fixes a F
time limit during which the State is to provide for free and compulsory
education for children until they complete the age of 14 years. The
Constitution has been amended keeping in view the aforementioned
provisions as also the decision of this Court in Unni Krishnan (supra)
by inserting Article 2 lA of the Constitution of India, vv'hich reads as under: G
"The right to education which flows from Article 21 is not an
absolute right. It must be construed in the light of directive
principles. A true democracy is one where education is universal,
where people understand what is good for them and the nation
H
988 SUPREME COURT REPORTS [2007] 12 S.C.R.

A and the right to education have to be determined. Right to lt-
education, understood in the context of Articles 45 and 41, means
that every child/citiz.en of this country has a right to free education
until he completes the age of fourteen years and (b) after child/
citiz.en completes 14 years, his right to education is circumscribed
B by the limits of the economic capacity of the State and its
development. It is significant that among the several articles in Part
IV, only Article 45 speaks of a time limit; no other article does. It
is not a mere pious wish and he Sate cannot flout the said direction
even after 44 years on the ground that the article merely calls upon
c it to "endeavour to provide" the same and on the further ground
that the said article is not enforceable by virtue of the declaration
in Article 37. The passage of 44 years more than four time the
period stipOulated in Article 45 has converted the obligation created
by the article into an enforceable right. At least now the State
D should honour the command of Article 45. It must be made a
reality." ~ .
25. Sixty years of independence, however, has not brought about
the desired result of imparting compulsory education to all the children.
Education is one of the most important functions of the State. The State
E has a basic responsibility in regard thereto.

26. In Brown v. Board ofEducation, (98 L.Ed. 873 : 347 US 483
(1954), Earl Warren, CJ, speaking for the US Supreme Court emphasiz.ed
the right to education in the following terms :
F 'Today, education is the most important function of the State ',..
and local Governments .. .It is required in the performance of our
most basic responsibility, even services in the armed forces. It is
the very foundation of good citiz.enship. Today it is the principal
instrument in awakening the child to cultural values, in preparing
G him for later professional training, and in helping him to adjust
normally to his environment. In these days it is doubtful any child
may reasonably be expected to succeed in life ifhe is denied the ~

opportunity of an education."
27. The provisions of the 1950 and 1951 Acts although were enacted
H
ELECTION COMMISSION OF INDIA v. ST. MARY'S 989
SCHOOL [SINHA, J.]
in tenns of Article 324 of the Constitution oflndia, the same must be A
-+ given restricted meaning. Holding of an election is no doubt of paramount
importance. But for the said purpose the education of the children cannot
be neglected. Therefore, it is necessary to maintain the balance between
the two.
28. With an advent of technology requisitioning of a large number B
''!. of people for carrying out the election may not be necessary. We may
notice that the Election Commission has different roles to play. Preparation
of an electoral rolls, revision of electoral rolls, when objections are filed,
hearing the parties and determining the objections, enumeration of the voter
list and to hold elections as and.when due. The Election Commission and c
its officers, in our opinion, can fonnulate an effective scheme to see that
the services of a large number of teachers are not required. The State
admittedly is not in a position to perform its sovereign function of imparting
education. Such functions necessarily are required to be perfonned by
the private actors. Those students \\ho are in a position to get admission D
f in the public schools presumably would also be in a position to appoint
tutors whereas those students who are admitted to the Government
schools ordinarily would be from the middle or lower middle class or poor
families. The state of primary education in India is in deplorable condition.
There admittedly is a heavy drop outs from the schools particular from E
amongst the girl schools. The question if right to exercise franchise
whereupon the emphasis is laid by Mr. Venugopal is an important one,
right to education is also no less important being a fundamental right.
29. The Human Rights Conventions have imposed a duty on the
F
~ Contracting States to set up institutions of higher education which would
lead to the conclusion that the citizens thereof should be afforded and an
effective right of access to them. In a democratic society, a right to
education is indispensable in the interpretation of right to development as
a human right. [See Leyla Sahin v. Turkey, decided by the European
G
Court of Human Rights on 10th November, 2005]. Thus, right to
.)
development is also considered to be a basic human right.
30. It is probably with that end in view the counsel appearing for
the Election Commission had also joined the other counsel appearing for
the respondents, to suggest the court that the services of the teachers may H
990 SUPREME COURT REPORTS [2007] 12 S.C.R.

A not be requisitioned on the days on which the schools are open.
Submission of Mr. Venugopal that such a contention had not been made
by the learned counsel appearing on behalf of the Election Commission
cannot be accepted.
31. We have, however, considered the matter at some details as the
B question in regard to the application of the constitutional right and in
particular fundamental right cannot be thwarted only by reason of a _,.
concession made by a counsel.
32. We would, however, notice that the Election Commission before
c us also categorically stated that as far as possible teachers would be put
on electoral roll revision works on holidays, non-teaching days and non-
teaching hours; whereas non-teaching staff be put on duty any time. We,
therefore, direct that all teaching staff shall be put on the duties of roll
revisions and election works on holidays and non-teaching days. Teachers
D should not ordinarily be put on duty on teaching days and within teaching
hours. Non-teaching staff, however, may be put on such duties on any \•
day or at any time, if permissible in law.
33. Subject to the aforementioned modifications, this appeal is
dismissed. However, in the facts and circumstances of this case, there shall
E be no order as to costs.
D.G. Appeal dismissed.

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