Holding

The Court held that the Election Commission’s power under Article 324(6) is limited to staff under the control of the President or Governor, and therefore it cannot requisition employees of the State Bank of India or any other non‑government entity.

Summary

The Election Commission of India sought to requisition a large number of officers and staff of the State Bank of India for election duties under Article 324(6) of the Constitution. The State Bank Staff Association challenged the requisition, arguing that the Commission had no power under Section 26 of the Representation of People Act, 1951 and that the bank was not a local authority under Section 159. The Supreme Court examined the scope of Article 324(6) and held that "such staff" can only mean personnel under the control of the President or Governor, i.e., government servants or local‑authority employees. Consequently, the Court ruled that the Commission could not draft employees of the State Bank of India, and that Section 26 does not confer a power to requisition non‑government staff. The penalty provisions of the election statutes therefore do not apply to such employees. The Court upheld the High Courts' orders quashing the requisition and dismissed the appeals.

Issues considered

The extent of the Election Commission's power under Article 324(6) to requisition staff for election duties
Whether Section 26 of the Representation of People Act, 1951 authorises the Commission to draft employees of the State Bank of India
Whether the State Bank of India qualifies as a 'local authority' under Section 159 of the Representation of People Act, 1951
Whether penalty provisions of the Representation of People Acts apply to employees whose services cannot be requisitioned
Whether the Election Commission's powers under Article 324 are untrammeled or limited to government and local‑authority staff

Legislation cited

Constitution of Indias. Article 163(1), s. Article 324(6), s. Article 327, s. Article 328, s. Article 74(1)
Representation of People Act, 1951s. Section 159, s. Section 26

Subjects

Article 324Election Commissionstaff requisitionRepresentation of People ActSection 26Section 159State Bank of Indialocal authorityconstitutional lawelectoral law

Judgment

f
'

ELECTION COMMISSION OF INDIA A
v.
STATE BANK OF INDIA STAFF ASSOCIATION LOCAL HEAD
OFFICE UNIT, PATNA AND ORS. ETC.

FEBRUARY 7, 1995
B
(A.H. AMHADI, CJ, S. MOHAN AND N.P. SINGH, JJ.]

"'~ Constitution of India, 1950: Article 324 (6}-lnterpretation of-Election
Commission-Requisition of staff for election duty-Expression 'Such staff C
refers to staff which is under the control of President or Governor-Requisition
of staff of State Bank of India held not permissible-Held Commission's
power under Article 324 is not untrammelled.

Representation of People Act, 1951: Section 26 and 159. Elec-
tions-Conduct of-Requisition of staff for duty-Held section 26 does not D
enable the commission to draft in the services of officers other than officers
of Government and local authority.

The District Election Officer-Cum-District Magistrate, Patna ad-
dressed a letter dated 22nd September, 1991 to the Chief General Manager,
State Bank of India, Patna requisitioning the services of large number of E
· officers and staff of the State Bank fol'. appointment as Presiding Officer
and Polling Officer for Mid-term Parliamentary Election and Assembly
by-election, 1991. Further by its orders dated 30th October, 1991 and 1st
November, 1991 he appointed and deputed some of the employees of the
State Bank on election duty. The respondent-Bank Association filed a F
petition before the Patna High Court challenging these communications
which quashed the orders on the ground that (i) the District Election
Officer had no power under section 26 of the Representation of People Act,
1951 to requisition the services of employees of the State Bank of India for
election duty; (ii) the State Bank of India was not a local authority within G
the meaning of section 159 of the 1951 Act. ID. the connected appeal also
the High Court of Rajasthan quashed the order of the District Election
, .J,· Officer, Ajmer dated 8.8.89 by which he has requisitioned the services of
the employees of Life Insurance Corporation of India, Ajmer for election
duty. Against the decision of both the High Courts, Election Commission
of India preferred appeals before this Court contending that under section H
935
936 SUPREME COURT REPORTS [1995] 1 S.C.R.

A 26 of 1951 Act, anyone could be appointed as Presiding Officer for polling
station and not necessarily a Government servant or an employee of local.
authority. t
On behalf of the respondents, it was contended that merely because
anyone could be appointed as Presiding Officer or Polling Officer does not
B necessarily lead to the conclusion that the services of any person even
though not a government servant could be sought under Article 324(6) of
the Constitution.

Dismissing the appeals and upholding the impugned judgments of
C the High Court, this Court

HELD : 1. The impugned communications issued by the Distrkt
Election Officer-cum-District Magistrate, Patna have been rightly quashed
by the High Court of Patna. The High Court of Rajasthan was also right
in quashing the order of the District Election Officer, Ajmer dated
D 8.8.1989. [946-GJ
2. Clause (6) of Article 324 empowers the Election Commission to
request the President, or the Governor of the concerned State to make
available such staff as may be necessary for it to carry out its duty under
clause (1). Obviously 'such starr can only mean that staff which is under
E the control of the President or the concerned Governor and not any staff
over which they do not exercise control. It could mean only that 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
F Union or the State Government 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
t.he services of those Government servants who are appointed to public
services and posts under the Central or State Government can be made
G available for the purpose of election. [944-C, G, H, 945-A]
3. 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 it would become an imperium in imperio which no one is under
H our constitutional order. [946-A] ·
f
ELECilONCOMMN. v. STATE BANK OF INDIA STAFF ASSN. [AHMADI, Cl.) 937

Digvijay Mote v. Union of India and Ors., [1993] 3 S.C.C. 175, referred A
to.

K.P. Roy v. D. Rudra, Distt. Magistrate, Howrah, AIR (1971) Cal 461;
Sukhdev Singh v; -Bhagatram, [1975] SCR 619 and Shyam Lal Shanna v.
Life Insurance Corporation and Anr., (1970) 2 FLR 357; distinguished.
B
4. Under Section 26 of the Representation of People Act, 1951, a
Presiding Officer for polling station could be anyone, not necessarily a
Government servant or an employee of a local authority. However, section
26 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. [942-G, 945~F]
c
5. The penalty provisions under the Representation of People Act,
1950 and 1951 cannot be invoked against those employees whose services
the Election Commission cannot requi!lition. [946-D]
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6026 of
1993 Etc.

From the Judgment and Order dated 21.5.93 of the Patna High Court
in C.WJ.C. No. 7815of1991.
E
S. Muralidhar for the Appellant.

D.A. Dave, Ms. Nishan Bagchi and Ms. Indu Malhotra for the
Respondent Nos 2 and 5.

B.B. Singh for the Respondent No. 6. F
Sanjay Kapoor and M.K. Michael for the Respondent No. 7.

M.A. Krishnamoorthy for the Respondent in C.A. No. 4611/89

The Judgment of the Court was delivered by G
AHMADI, CJ. Bot~ these appeals can be disposed of by this common
judgment as the question under consideration in both cases bears on the
language of clause (6) of Article 324 of the Constitution of India.

The Election Commission of India is the appellant in both the H
938 SUPREME COURT REPORTS (1995) 1 S.C.R.

A appeals. Article 324 of the Constitution vests in the Election Commission
the power of superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to Parliament and to
the legislature of every State.

Clause (6) of Article 324 reads as under :
B
"The President, or the governor 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)"
c
Article 327 enables Parliament to make provision with respect to all
matters relating to, or connected with, elections to either House of Parlia-
ment or to the House or either House of the Legislature of a State
including the preparation of electoral rolls, the delimitation of constituen-
D cies and all other matters necessary for securing the due constitution of ·-
such House or Houses.

In exercise of the power vested in the Parliament under these Ar-
ticles it enacted the Representation of the People Act, 1950 and the
Representation of the People Act, 1951 (hereinafter referred to as 'the
E 1950 and 1951 Acts' respectively). The 1950 Act provides for the allocation
of seats and the delimitation of constituencies for the purpose of elections
-to the House of People and the Legislatures of the States, the qualifications
of voters at such elections, the preparation of electoral rolls and the
matters connected therewith. The 1951 Act provides for the conduct of
F elections to the Houses of Parliament and to the House or Houses of the
Legislature of each State, the qualifications and disqualifications for mem-
bership of those Houses, the corrupt practices and other offences at or in
connection with such elections. ,Section 26 of 1951 Act enables a District
Election Officer to appoint a Presiding Officer for each polling station.
G Section 159 of the said reads as follows :
"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
H any returning officer such staff as many be ne~ssary for the
I
(
ELECilONCOMMN.v.STATEBANKOFINDIASTAFFASSN.[AHMADl,CJ.) 939

performance of any duties in connection with an election." A
From a conspectus of the above provisions it seems clear to us that
on the request of the Election Commission the President or the Governor
of the State must make available to the Election Commission such staff as
may be necessary for the discharge of functions conferred on the Election
Commission under clause (1) of Article 324. In view of clause (6) of Article B
324 the President or the Governor of the State when requested will make
available to the Election Commission the services of such staff as may be
necessary for the discharge of the functions conferred on the Election
Commission. By this, it is meant that the persons whose services may be
placed at the disposal of the Election Commission must be persons who C
are either employees of the Central Government or of the State Govern-
ment. Again, in view of Section 159 extracted above when a requisition is
made by the Regional Commissioner, the local authority shall make avail-
able its staff for the purpose of duties in connection with an election.

Thus far there is no dispute but the controversy arises in view of the D
action taken by the District Election Officer making the following requisi-
tion:

"OFFICE OF THE DISTRICT ELECTION OFFICER-CUM-
DISTRICT MAGISTRATE
E
Ref. No 522/Elec. Patna, the 22nd Sept. 91

ELECTION TOP PRIORITY

To
F
Chief General Manager
State Bank of India
Jajej Road, Patna

Sub : List of Officers & Staff for appointment as Presiding G
Officers & Polling Officers in Mid Term Parliamentary
Election I Assembly bye-election, 1991.

Sir,

I am to inform you that services of large number of officers & H
940 - SUPREME COURT REPORTS [1995] 1 S.C.R.

A staff will be required for appointment as Presiding Officers, Polling
Officers and Patrolling-cum-Ballot Box Collecting Officers in the
forth coming Mid-term Parliamentary Election & Assembly Bye-
election, 1991 in this district.

You are requested to send complete list of offieers and staff
B of your office & field offices located in the District Patna under
you in the proforma given below in TRIPLICATE through Special
Messenger to Shri Keshav Prasad, Additional District' Magistrate
(Establishment), Patna Collectorate, Patna latest by 6th October,
1991 positively. Such Officer or Staff who is either female or
c disabled or appointed as cashier or deployed no night Guard
duties, or is unavoidably necessary to be retained as Skeleton Staff
in your office or is on long leave or training deputation may please
be suitably indicated in the remarks column against his/her name
in the list so that they may be considered for exemption from
Election Duties as far as possible and practicable. You are also
D requested to certify that no officer or staff has been left out.

Please given full name & exact location & address of the office
on the top of the list to facilitate service of appointment letters,
Telephone number of your office & residence, if available may also
E be indicated below the address.

I sincerely hope that you will extend your full co-operation &
the list relating to your office complete in all respect will be made
' available to Shri Keshav Prasad, Additional District Magistrate
(Establishment), Patna Collectorate latest by 5th October, 1991
F positively.

Please accord highest priority. Please acknowledge receipt.

Yours faithfully,
Sd/-
G (ARBIND PRASAD)
DISTRICT ELECTION OFFICER
cum-District. Magistrate
PATNA."

H It appears, on 30.10.1991 and 1.11.1991 certain orders were _issued by
(
\
ELECTIONCOMMN. v. SfATEBANKOFINDIASTAFJ: ASSN. (AHMADI, CJ.) 941

the said District Election Officer appointing and deputing some of the A
. employees of the State Bank of India on election duty in connection with
the Elections to the Barh Parliamentary Constituency and Pali Assembly
Constituency which were to be held on 16.11.1991. Thereupon the first
respondent filed a writ petition (CWJC No. 7815 of 1991) in the High
Court of Patna praying for quashing these communications on the ground B
that the District Election Officer had no authority to requisition the
services of the Bank employees for election duty.

While this writ petition was pending, sometime in May, 1993, in
,Y' connection with the polling to be held in 35-Patna Parliamentary Con-
stituency, similar letters of appointment of employees of the State Bank of C
India for election duty were issued by the District Election Officer, Patna.
Therefore, the first respondent moved an application for amendment to
, include a challenge to these letters of appointment as well. The amendment
was allowed.

D
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 E
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.

It may here be mentioned that during the pendency of the writ F
• 1- petition, the counsel for the Election Commission brought to the notice of
the High Court that by a judgment dated 7.11.1989 the High Court of
Rajasthan had quashed the order of the District Election Officer, Ajmer
dated 8.8.1989 by which he had requisitioned the services of the employees
of the Life Insurance Corporation of India, Ajmer for election duty. This
was in writ Petition No. 4644 of 1989. Civil Appeal No. 4611 of 1989 is G
against that judgment.

The submissions of Mr. S. Muralidhar, learned counsel for the

run thus: · .. - --
appellant, Election Commission of India, in Civil Appeal No. 607.6. of 1993
H
942 SUPREME COURT REPORTS (1995) 1 S.C.R.

A Under Article 324, the superintendence, direction, control and the
conduct of all elections to Parliament and to the Legislature of every State
vests in the Election Commission. These elections have to be conducted
fairly and properly. A large number of officers are required to man a
number of polling stations that are required to be set up in each State. For
B each polling station five personnel· are required in the minimum. That is
why clause (6) of Article 324 of the Constitution of India envisages ·that
when a request is made by the Election Commission or a Regional Com-
missioner, the President or the Governor will provide such staff as may be
necessary for discharging the functions stated in Clause (1) thereof. The
question then is, whether the words 'such staff occurring in clause (6) are
C to be confined only to the staff under the government? In this connection,
Article 327 may also be seen. In regard to all matters concerning the
elections, the Parliament can make provision by law. In exercise of that
power the 1950 and 1951 Acts came to be enacted. Therefore, in ascertain-
ing the meaning of 'such staff we will have to necessarily look at the 1950
D and 1951 Acts.

Section 13A of the 1950 Act deals with the Chief Electoral Officer
for each state. He will have to be a Government servant. Similarly, Section
13AA deals with the District Election officers. Under Section 13CC,
Officers and staff-members employed in connection with the preparation,
E revision and correction of the electoral rolls are deemed to be on deputa-
tion. They are subject to control, superintendence and discipline of the
Election Commission. Similarly, under Section 28A of the 1951 Act
Returning Officers, Presiding Offices, etc., are deemed_ to be on deputation
and are subject to control, superintendence and discipline of the election
F Commission.

Section 21 of the 1951 Act enables the Election Commission to
nominate a Returning Officer. So also an Assistant Returning Officer can
be appointed by the Election Commission. Both are expected to be
Government Officers or employees of a local authority. In contrast, under
G Section 26, a Presiding Officer for polling station could be anyone, not
necessarily a Government servant or an employee of a local authority. This
is an important distinction. Section 134. talks of breaches of official duty in
connection with election and includes the District Election Officers,
Returning Officers, Polling Officers, etc. So also Rules 17(C) 34, 35 and.
H 53(2) speak of non-government servants as well. In support of the submis-.
ELECTION COMMN. v. STATE BANK OF INDIA STAFF ASSN. (AHMADI, CJ.] 943

sions reliance was placed on the decisions in K.P. Roy v. D. Rudra, District A
Magistrate, Howrah, AIR (1971) Calcutta 461 and the judgment in Civil
-t Appeal No. 4611 of 1989. In the first case Railways employees were
involved while in the latter employees of Life Insurance Corporation were
involved.

Before the High Court, an argument was raised that the State Bank B
of India must be held to be a local authority under Section 159 of the 1951
Act. That argument is not advanced before us.

Mr. Dushyant Dave, learned counsel for respondents 1 to 5 in Civil
Appeal No. 6026 of 1993 countered: the source of power to requisition the C
services being Article 324, court should first read the plain words of clause
(6). That clause clearly states that the request must be made to the
President or the Governor of a State. On receipt of such a request from
the Election Commission, such staff as may be necessary for discharge of
the function under clause (1) must be made available to the Election
Commission or Regional Commissioner. No doubt, under Article 327 the D
Parliament may empower drafting the services of others by enactment of
v- law. That is why section 29 of the 1950 Act and section 159 of the 1951 Act
. talk of the obligation of the local authority to make its staff available.
Merely because anyone could be appointed as Presiding officer or Polling
Officer does not necessarily lead to the conclusion that services of any E
person even though not a Government servant could be sought under
Article 324(6). If the power, as contended by the appellant, is granted to
the. Election Commission, it will become an imperium in imperio. There-
fore, it was expressly negatived by this Court in Digvijay Mote v. Union of
India and Others, [1993] 3 SCC 175 at 178.
F
Now, we come to Article 324. It will be useful to extract the following
clauses of the said Article which have a bearing on the issues involved :

"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, G
and the conduct of, all elections to Parliament and to the Legisla-
ture of every state and of elections to the offices of President and
Vice-President held under this Constitution shall be vested in a
Commission (referred to in this Constitution as the Election Com-
mission). H
944 SUPREME COURT REPORTS [1995] 1 S.C.R.

A xxx xxx xxx xxx
t
324(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 Presi-
B dent may also appoint after consultation with the Election Com-
mission such Regional Commissioners as he may consider
necessary to a&sistthe Election Commission in the performance of
the functions conferred on the Commission by clause (1)."

C We have already extracted clause (6) of Article 324 which empowers
the Election Commission to request the President, or the Governor of the
concerned State to make available such staff as may be necessary for it to
carry out its duty under clause (1). Such a provision was necessary for the
' obvious reason that since the Election Commission has to hold elections at
D intervals it is not required to maintain a huge staff at considerable expense
to the exchequer and therefore the power to seek on request such staff as
is necessary came to be engrafted in the constitution itself. -y

We assume that the powers of the Election Commission under
Article 324 are plenary. Therefore, the Election Commission may issue any
E direction in the matter of conduct. of elections. But the question is, in the
garb of conduct of elections, can be 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
F 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 contradiction 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
G concerned Governor and not any staff over which they do not exercise
control. It could mean only that staff on which the President or the
Governor, as the case may be, would be in a position to exercise discipli-
nary powers should they refuse the President's or Governor's directive.
Although the Constitution-makers did not say the Union or the State
H Governments but only the President or the Governor, it is obvious they
ELECTION COMMN. v. STATE BANK OF INDIA STAFF ASSN. [AHMADI, CJ.] 945

would have to act consistently with Articles 74(1) and 163(1), respectively. A
Therefore, on a request by the Election Commission the services of those
--t 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
B
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. c
It is important to note that their services came to be made available
as Returning Officers and Assistant Returning Officers under Sections 21
and 22 of the 1951 Act introduced by Amendment Act 47 of 1966. Barring
the services of these officers does the Election Commission have power to D
requisition the services of any other person? The argument of the appellant
is based on several sections of the 1950 and 1951 Acts. We have referred
to the relevant provisions of the two Acts hereinbefore.

Merely because the provisions of the two Acts required that they E
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 .10t a source of power at all. It
does not in any manner, enable the Election Commission to drift in the F
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 G
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. H
946 SUPREME COURTREPORTS (1995) 1 S.C.R.

A Article 324 does not enable the Election Commission to exercise
untrammeled powers. The Election Commission must trace its power
either to the Constitution or the law made under Article 327 or Article 328.
t
Otherwise as was held by this Court in _Digv.ijay M9te's case (supra) (in
which one of us, Mohan, J., was a partly) it would become an impe1ium in
B impe1io which no one is under our constitutional order.
In KP. Roy's (supra) it dealt with the appointment of Railway
employees as Polling or Presiding Officers. The question was whether the
consent of these officers whose services were requisitioned was necessary?
This has no bearing on the issue under our consideration. Besides, Railway -;.: .
C employees are Government servants.
The penalty provisions under the two Acts on which reliance was
placed cannot but relate to those officers who are covered thereunder and
not any person as is urged by the Election Commission. There can be no
question of invoking the penalty provisions against those employees who
D services the Election Commission cannot requisition. We are, therefore,
unable to appreciate how these provisions found in two statutes can be of
any assistance in determining the scope and ambit of the power to requi-
sition the services of employees belonging to different organisations. In our
view, there is no co-relation.
E
The decision of this Court in Sukhdev Singh v. Bhagatram, [1975) 3
SCR 619 and the decision of the Allahabad High Court in the case of
Shyam Lal Sharma v. Life Insurance Corporation & Another, (1970) 2 FIR
357 are not relevant for our purpose. The question there was whether rules
or regulations framed in exercise of statutory powers prohibiting employees
F from indulging in political activities and taking part in electioneering, etc,
could be legally made ..No such question arises her.!.

In view of the foregoing discussion, we hold the· impugned com-
munications issued by the District Election Officer-cum- District
G Magistrate, Patna have been rightly quashed by the High Court of Patna.
Equally so, the High Court of Rajasthan was right in quashing the order
of the District Election Officer, Ajmer dated 8.8.1989. We, therefore,
uphold the impugned judgments of the High Courts. The civil appeals are
accordingly dismissed. However, there shall be no order as to costs.

H T.N.A. Appeals dismisse~.