Case: Election Commission Of India Vs. St. Mary'S School

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 ofNo.1 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 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 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 hoursPolling duties to general election to Lok Sabhaii) Polling duties to general election to Delhi Legislative Assemblyiii) Polling duties to MCD electionsiv) Gurudwara electionv) Revision of polling listsvi) Pulse polio drivevii) Preparation of census listsviii) Surveys on malaria, pollutionAct 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 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 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 secondaryMunicipal Corporation of Delhi (MCD) in its counter affidavit contended that absence of the teachers and other administrative staff of schools for performing duties allocated by the officers of the Election Commission is in national interest. In the counter affidavit, it was,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 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 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 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 is some time assigned to some of the teachers in nationalNew Delhi Municipal Committee (NDMC) in its additional affidavit filed before the High Court,That the total number of sanctioned posts of teachers in NDMC Schools are about 1200. For polling duty, almost 90% of the 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 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 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 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 converted into a full time work so as to complete the assignment within the prescribedthe pendency of the writ petition before the High Court, the Government of NCT of Delhi issued a circular letter, relevant portion whereof is asduty 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 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) 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 NCT of Delhi is only around 9000. In view of this, the services of 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 of India.The Summary/Special Revision of Electoral Rolls takes place once in a year and the services of teachers are normally not utilized 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 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 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, 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.However, with a view to ensure that election work does not 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:(i) As far as possible the revision of Electoral roll shall be taken up during holidays or teachers would be deployed to perform 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.(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 of Institutions will be directed to make internal adjustment of time tables and reschedule the classes for making up any possible teachingcounsel appearing for the parties, however, as it appears from the impugned judgment, accepted before the High Court that the services of the teachers should be utilized for non-teaching purposes only on a day which is not a working day for theElection Commission is, thus, before us.

Court's reasoning:
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 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 behave, however, considered the matter at some details as the 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 awould, however, notice that the Election Commission before 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.