MAGADH UNIVERSITY Vs. BIHAR STATE ELECTION COMMISSION WITH

JUDGEMENT

(1.) PETITIONERS in these two writ petitions, pray for restraining the respondents from posting the petitioners or University teachers on election duties for the ensuing Lok Sabha election.

(2.) CWJC No. 4168. of 2009 is filed by Magadh University Post Graduate Teachers Association, Bodh Gaya. CWJC No. 4374 of 2009 is filed by the teachers of the College affiliated to Magadh University. A supplementary affidavit is also filed today in Court adding further grounds in the writ petitions. Since the election is nearing, the matter was heard and the learned counsel for the Election Commission submitted that he is ready to argue the matter even though supplementary affidavit is filed and served today in the morning. Heard both sides. Section 159 of the Representation of the People Act, 1951 (in short 'the Act '), directed the District Election Officer to make available for election work staff of certain establishments. Section 159 of the Act is as follows: - "159. Staff of certain authorities to be made available for election work. - (1) 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. ( 2) The following shall be the authorities for the purposes of sub -section (1), namely: - (i) every local authority; (ii) every University established or incorporated by or under a Central. Provincial or State Act: (iii) a Government company as defined in Section 617 of the Companies Act, 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 provided, directly or indirectly, by the Central Government or a State Government."

(3.) FIRST argument addressed before us is that University teachers were summoned for election duty by the District Electoral Officer although he is not authorized to do so. This is highlighted in the supplementary affidavit though it is not mentioned in the writ petition. It is argued that in view of Section 159(1), the authorities specified in sub -section (2) shall make available to any returning Officer such staff as may be necessary for the performance of any duty in connection with an election by a Regional Commissioner or the Chief Electoral Officer of the State and the District Magistrate or the District Returning Officer has no power to summon the teachers of the University to work for an election. Next contention is that considering the fact that right to education is a fundamental right, teachers cannot be summoned for election purpose as that would affect the education. Finally, it was contended that when there are sufficient Government Officers it was unnecessary for posting the University teachers for doing polling work. Third contention raised was that though sub -section (2) authorizes that staff of the University can be summoned, teachers are not included and teachers cannot be summoned. We shall consider the arguments in seriatum.