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TMI Blog2007 (12) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 hours including: Polling duties to general election to Lok Sabha ? Polling duties to general election to Delhi Legislative Assembly ? Polling duties to MCD elections ? Gurudwara election ? Revision of polling lists ? Pulse polio drive ? Preparation of census lists ? Surveys on malaria, pollution etc. 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 petition highlighted that absence of teachers from the school for a long time resulted in unfinished courses, high drop o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entary 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 prescribed time. 7. During the pendency of the writ petition before the High Court, the Government of NCT of Delhi issued a circular letter, relevant portion whereof is as under : This duty binds the State-Governments to provide the requisite number of staff to the Election Commission for conducting el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers, 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 teaching losses. 8. Learned counsel 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 the students. 9. The Election Commission is, thus, before us. 10. Mr. K.K. Venugopal, learned Senior Counsel appearing on 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 Representation of the People Act, 1951 is required to conduct elections for the purpose of upholding democracy. (iii) Democracy being a basic feature of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to Article 21A of the Constitution of India, it is obligatory on 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 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 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 of India, the 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 where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at period, be subject to the control, superintendence and discipline of the Election Commission. 29. Staff of local 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 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 : 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. 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 reason of Act No. 47 of 1966 in terms whereof the words an Officer of Government or of a local authority had been inserted. Sections 26, 28A, 151 and Section 159 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be subject to 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 elected to the Legislative Council of a State, his seat becomes vacant or is declared vacant or his election to the Legislative 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 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. - (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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 fundamental right. It was so stated in Mohini Jain v. State of Karnataka [(1992) 3 SCC 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 dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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 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 stip0ulated in Article 45 has converted the obligation created by the article into an enforceable right. At least now the State 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 has a basic responsibility in regard thereto. 26. In Brown v. Board of Education [(98 L.Ed. 873 : 347 US 483 (1954)], Earl Warren, CJ, speaking for the US Supreme Court emphasized the right to education in the following terms : Today, education is the most important function of the State and local Governments It is required in the performance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 us also categorically stated that as far as possible teachers would be put on electoral roll revision works on h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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