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Unaided engineering and polytechnic colleges staff can be requisitioned by EC for election duty: Bombay HC

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The Times Of India
10th October, 2019 23:11 IST

MUMBAI: In a significant judgment, Bombay high court held that Election Commission of India and the state election commissioner can requisition the staff of unaided engineering and polytechnic colleges in Maharashtra for the forthcoming assembly elections this month.

The HC bench of Justices SC Dharmadhikari and Gautam Patel discarded a challenge raised in two separate petitions to such requisitions of their individual institutional members, recently made by the regional election commission. Petitions were filed in court by The Association of the Managements of Polytechnics, through its President Balasaheb Deoram Wagh, K.K. Wagh Polytechnic,Nashik and Prof. Kallapa S Bandi, and the other by The Association of the Management of Unaided Engineering Colleges (Maharashtra) and one of it’s member college.

The HC noted that the argument before it as canvassed by the associations’ counsel Chandana Salgaonkar Radia was that “permanently unaided educational institutions imparting education in specified courses are out of the purview” of a clause under under the Representation of People Act and that unaided colleges which do not receive any grant from the government cannot be asked to join in for election duties. These institutions are not controlled by the state she argued.

But rebutting such stand and pointing out that the law was clear ECI counsel Pradeep Rajagopal said the challenge must fail. The petitions could not have been filed even by them for there is no legal right vesting in favour of either the Association or the institution he argued adding If at all a complaint can be made with regard to requisition of the staff, that complaint can be made only by the staff members individually.

No rights of the Association are invaded, he argued adding that only the affected parties can approach this Court. The word “person” is defined in the RP Act.

The HC bench after analysing the Constitutional provisions and the RP Act and the duties of the ECI in holding elections held that plain language of the Act itself provides for such requisition.

It held, “the Regional Commissioner or the Chief Electoral Officer can invoke Section 159 of the RP Act of 1951 by making a request to the member institute of the...Association.”

“We have only gone by the plain language of the applicable statute, namely, the RP Act of 1951,”the bench said.

The HC after a harmonious reading of earlier judgments together with the statutes in the field said they “leave us in no manner of doubt that there is a control by the respective Governments on the activities of the petitioners/member institutions. “

“These institutions may have been operating on permanent no grant or no aid basis but that by itself is not decisive much less conclusive. Nobody can function as an educational institution uncontrolled or unregulated by either Governments. The regulation in this case is so comprehensive that it takes care of not only the component of fees to be charged but the manner in which admissions have to be made. The admissions to the courses would have to abide by all the norms prescribed by an expert body – AICTE, the State Government and that would include abiding by the Constitutional and other reservations,” held the HC holding that thus the requisition power over them exists and is valid.

The authorities whose staff can be requisitioned are specified in the section 159 of RP Act itself. Sub-section (1) indicates the power whereas sub-section (2) sets out the authorities who can be called upon or who can be requested by the Regional Commissioner or the Chief Electoral Officer of the

State to make available to any Returning Officer such staff as may be necessary for the performance of any duties in connection with the election.

The HC noted, “We have a democratic form of government. It is a representative democracy. This form of Government mandates holding of elections periodically to the House of the People and the Legislative Assembly in each State. That such elections have to be held in a free and transparent manner is equally the mandate of the law.

The Constitution of India itself provides for establishment of an independent and autonomous commission known as the Election Commission and vest in it all powers necessary for the administration, supervision and holding of elections. These vast powers are to be exercised in tune with the mandate of the laws made by the parliament. That the laws made by the parliament would provide for vesting of additional or incidental and ancillary powers in the Election Commission for holding a free and fair election is but consequential to the conferment of the main power. Infact, the powers of the Election Commission are coupled with a duty. It is the sole repository of the voter’s trust.

The HC analysed the RP Act and observed that Section (2) of Section 159 says that every local authority, every university established or incorporated by or under a Central, Provincial or State Act, a government company as defined in Section 617 of the Companies Act, 1956 are the authorities which can be requested by the regional commissioner or the chief electoral officer of the state to make available to any returning officer their staff.

In addition to every local authority, every university, a government company and defined in Section 617 of the Companies Act, there is another category and that is, any other institution, concern or undertaking. That such ‘other institution, concern or undertaking’ could be an educational institution which is established by or under a Central, Provincial or State Act is thus logical. This is distinct from a University established or incorporated by or under a Central, Provincial or State Act. It could be any other institution, concern or undertaking which is controlled or financed wholly or substantially by funds provided by the Central or State Government, but the section does not end there.

“The element of control or finance is very much there. That such control or finance can be direct or indirect. It is conceded that financing means by the providing of funds, wholly or substantially, by the Central or the State Government,” added the HC

It however had a careful perusal of a letter dated 18-7-2012 under which the Directorate of Technical Education, Government of Maharashtra permitted members of the Association to establish a college or an educational institution to impart engineering or polytechnic education or courses and relied on it to “effectively deal with the controversy before us.”

The letter was not challenged before the HC.

Advocate Salgaonkar Radia submitted that control would have to be understood in the context of funding and funding alone. “Such a reading of the clause is not permissible for that would mean “controlled” or “financed” are expressions conveying the same meaning. A control can be direct or indirect by the Central or a State Government and that is distinct from “financing wholly or substantially by funds provided by these Governments," held the HC.

“In the cases before us, merely because there is no funding or there is no financial aid does not mean that there is no control. To hold otherwise would mean that the Election Commission is hampered in requesting institutions other than every local authority, every university and a government company to make available to the returning officer such staff as may be necessary for the performance of any duties in connection with an election,” said the judgement of October 1, made available on October 10.

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