Calcutta High Court (Appellete Side)
The Election Commission Of India & Ors vs Rupa Banerjee Nee Samjpati on 21 April, 2026
Author: Shampa Sarkar
Bench: Shampa Sarkar
21.04.2026
Court No. 12
Item No. 01
Sandip/gc/CP
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
M.A.T. 719 of 2026
IA No : CAN 1 of 2026
CAN 2 of 2026
The Election Commission of India & Ors.
-Versus-
Rupa Banerjee Nee Samjpati
Mr. Jishnu Chowdhury, Sr. Adv.,
Ms. Anamika Pandey,
Ms. Sanskriti Agarwal,
Ms. Rishika Pandey,
Mr. Ghanshyam Pandey
...for the Appellants.
Mr. Biswaroop Bhattacharyya,
Mr. Arkaprava Sen,
Mr. Sayantan Kar,
Ms. Deboleena Mukherjee
.....for the applicant in CAN 2 of 2026
Mr. Abhratosh Majumder, Sr. Adv.,
Mr. Subhasis Chakraborty,
Mr. Aditya Mondal,
Mr. S. Chakraborty,
Ms. Sushmita Singh
....for the Respondents.
1. The appeal has been filed by the Election
Commission of India, the Chief Election
Commissioner and the Chief Electoral Officer,
West Bengal, being aggrieved by a judgment
and order dated April 17, 2026 passed in
W.P.A. 9020 of 2026.
2. By the order impugned the learned Court
disposed of the writ petition, inter alia, holding
that the Election Commission of India was free
to pass an order for appointing the writ
2
petitioners as per their rank, salary and in
conformity with the Circular dated 16/17th
February, 2010.
3. It is important to note here that the writ
petitioner was the President of the West Bengal
Government College Teachers’ Association, who
had moved the writ petition on the ground that
its members were aggrieved by their requisition
in the election duty and appointment as
presiding officers in the polling stations. The
members of the Association did not raise any
individual grievance. Prima facie, it appears
that His Lordship at various places of the
order, proceeded on the basis that the college
teachers who had been appointed as polling
officers had approached the writ court. His
Lordship came to a finding that the Election
Commission failed to produce any document to
show unavoidable circumstances which
required appointment of the petitioners as
presiding officers in the polling station.
4. It is also a matter of record that some of
the members of the said Association had
already accepted the appointment and had
undertaken training. His Lordship had taken
3
note of such fact and directed that those
members would not be affected by the order.
5. The allegations in the writ petition were
that, the Election Commission of India failed to
record reasons for engaging teachers of colleges
as presiding officers and had acted dehors its
own Circular dated February 16, 2010. The
relevant portion of which is quoted below:-
“In this connection the Commission
further desires that Group A equivalent
Senior Officers including teaching staff of
universities, colleges at should not be
drafted for “Polling duties” in polling
station premises who specific reasons to
be recorded in writing by the District
Election Officer, where such
appointments become unavoidable.
This may be brought to the notice of
all concerned.”
6. Further contention of the writ petitioner
was that the members had raised objections,
that they wanted to be placed as observers,
micro observers, etc. They had approached the
Commission by filing representations. Instead
of giving an audience to those members, the
Commission issued show cause notices.
7. The sum and substance of the allegations
in the writ petition were that:-
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a. Group-A or Senior Officers including
teaching staff of universities and colleges
should not be drafted for polling duties
without specific reasons to be recorded in
writing.
b. The Election Commission had not
undergone the above exercise before
requisitioning teachers from the various
colleges and universities and appointing
them as presiding officers.
c. Unless there was acute shortage of
man power in discharging polling duty,
teachers should not ordinarily be
requisitioned.
d. The college and university teachers
enjoyed the same UGC approved pay
scale, which was equivalent to Class-
I/Group-A scale of Central Government
employees and as such, the engagement
of sector officers/observers, who were
less qualified than the members of the
said association or who enjoyed lesser
pay, was contrary to the instructions of
the Commission.
e. The power conferred upon the Election
Commission under Article 324 of the
5Constitution read with the
Representation of the People Act, 1951
(hereinafter referred to as the “1951 Act”)
could not be exercised without following
the instructions issued by the
Commission itself from time to time.
8. In view of the provision of Section 19 of
the West Bengal Societies Registration Act,
1961, the writ petitioner being a person
aggrieved with the action of the appellants, had
preferred the writ petition on the allegation that
the fundamental rights of the members of the
society had been violated.
9. Mr. Chowdhury, learned Senior Advocate
for the appellants submits that the Election
Commission exercises powers of
superintendence and control over all elections.
This power has been vested upon the
Commission by the Constitution of India. The
Election Commission has the authority to pass
directions and pass orders as to the conduct of
elections. As no staff or personnel or work
force or human resource has been made
available to the Election Commission, the
Constitution permits the Election Commission
to request the Governor or the President, as the
6
case may be, to make available to the Election
Commission or to the Regional Commissioner,
such staff as may be necessary for the
discharge of the functions conferred on the
Election Commission under of Article 324.
10. Reference has been made to the provision
Section 159 of the 1951 Act in support of the
contention that the Commission can requisition
staff from government colleges and universities.
Reference was further made to the Hand Book
for Presiding Officers and for Observers.
11. We find that Part-IV of the Representation
of the People Act, 1951 deals with the
administrative machinery for the conduct of
elections. The power to nominate observers
has been vested in the Election Commission
under Section 20B of the 1951 Act. It provides
that the Election Commission may nominate an
observer, who shall be an officer of the
Government, to watch the conduct of election
or elections in a constituency or a group of
constituencies and to perform such other
functions as may be entrusted in them by the
Commission.
12. The observers nominated under sub-
section (1) have the power to direct the
7
returning officer for the constituency or for any
of the constituencies for which he has been
nominated, to stop the counting of votes at any
time before the declaration of the result or
direct not to declare the result, if in the opinion
of the observer, booth capturing had taken
place at a large number of polling stations.
Such direction can also be passed if papers
used at a polling station or at a place fixed for
the poll are unlawfully taken out of the custody
of the returning officer or are accidentally or
intentionally destroyed or lost or damaged or
tampered with to such an extent that the result
of the poll at that polling station or place
cannot be ascertained. When such decision or
direction is given to the returning officer by the
observer, the observer is also required by law to
make a report forthwith for the Election
Commission to take steps. As per the
explanation for the purpose of sub-section (2)
and (3), observer includes a Regional
Commissioner or any such officer of the
Election Commission as has been assigned
under the said section, the duty of watching
the conduct of election or elections in a
8
constituency or group of constituencies by the
Commission.
13. Section 26 of the 1951 Act, deals with
appointment of presiding officer. The first
proviso to Section 26 clarifies that, in the event
a polling officer appointed by the District
Election Officer is absent from the polling
station, the presiding officer may appoint any
person who is present at the polling station,
other than the person who has been employed
by or on behalf of, or has been otherwise
working for a candidate in the election, to be
the polling officer.
14. Thus, the first proviso to Section 26
clearly indicates that the presiding officer is
higher in rank than the polling officer so much
so that the presiding officer has the legal
authority to appoint a polling officer if the
polling officer appointed by the District Election
Officer is absent. Thus, the presiding officer
presides over the polling station on the day of
the poll. Section 27 deals with the general duty
of the presiding officer, i.e. to keep order in the
polling station and to see that the poll is taken
fairly.
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15. Whereas, from the Hand Book on
Observers, we find that the Election
Commission can only nominate observers who
are officers of the Government. The contention
of the writ petitioner in Paragraph 8 of the writ
petition and in the prayer is that, they should
be appointed as observers, micro observers,
etc. Such contention is not tenable in law, as
the observer has to be an officer of the
government.
16. Paragraph 8 of the writ petition is quoted
below:-
“8. The petitioner states that Government
College Teachers, WBES/WBGS cadres,
which is being represented by the
petitioner before this Hon’ble Court, on
several occasion have expressed their
grievance before the respondent
authorities but the respondent authorities
despite being aware of the government
circulars and orders are sitting tight over
the matter without taking any steps, due
to which the petitioner was constrained to
submit a representation dated 06.04.2026
before the respondent authorities inter
alia seeking that to conduct the West
Bengal Legislative Assembly Election
2026,-the College and University teachers
including teachers of Government Colleges
(WBES/WBGS) may be allotted different
duties under the, Election Commission of
India namely, Observer, Additional
Observer, Micro Observer, Additional
Micro Observer, Assembly level Master
Trainers, Counting Officials with
appropriate designation, etc. or other
duties commensurate with the rank and
pay matrix in congruence with the orders
issued by the Election Commission of
India, State Election Commission and
10different judgments of the Honourable
Court, but unfortunately till date the
respondent authorities have failed to take
any steps in regard to such representation
filed by the petitioner.”
17. The prayers in the writ petition are set out
hereunder:-
“a) Dispense with Rule 26 of the Writ
Rules;
b) A writ of and/or in the nature of
Certiorari directing the respondents and
their men, agents and servants to certify
and transmit the records pertaining to the
instant case before this Hon’ble Court SO
that conscionable justice may therein be
administered;
c) A writ of and/or in the nature of
Mandamus directing the respondent
authorities that the College and University
teachers including teachers of Government
Colleges (WBES/WBGS) may be allotted
different duties by modifying the current
assignment of duties which has already
been issued by the Election Commission of
India namely, Observer, Additional
Observer, Micro Observer, Additional Micro
Observer, Assembly level Master Trainers,
Counting Officials with appropriate
designations etc. or other duties
commensurate with our rank and pay
matrix in congruence with the orders issued
by the Election Commission of India, State
Election Commission and different
judgments of the Hon’ble Court;
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d) A writ of and/or in the nature of
Prohibition restraining the Respondents, its
men, employees and subordinates from
engaging and allotting duties the members
of the Society being represented by the
petitioner that is the Principals, Teachers
and Librarians of Government Colleges in
West Bengal in the ensuing West Bengal
Legislative Assembly Election, 2026 upon
due and expeditious consideration of the
written request submitted;
e) Rule NISI be issued in terms of
prayer (b) to (d) as above;
f) An interim order be passed
restraining the Respondents, its men,
employees and subordinates from members
of the Society being represented by the
petitioner that is the Principals, Teachers
including Librarians of Government
Colleges in West Bengal in the ensuing
West Bengal Legislative Assembly Election,
2026 upon due and expeditious
consideration of the written request
submitted;
g) Ad- interim order in terms of
prayers above;
h) Costs and incidentals;
i) Such further or other order or
orders as Your Lordships may seem fit and
proper for the ends of justice.”
18. An overview of the observer’s duty is
under clause 3 of the Hand Book which
provides that by dint of seniority and long
12
experience in administrative services, the
observers are expected to be in a position to
assist the Commission in the conduct of free
and fair polls. Thus, the first requirement for
an observer is to have longstanding
administrative experience. The observers are to
oversee efficient and effective management of
the electoral process at the field level. The
electoral process commences with the
notification and ends with the declaration of
the result. The observers are to perform duties
all through the election process. They are to
act as the eyes and ears of Election
Commission during the period of election and
provide direct inputs to the Commission from
the field as an interface with the election
machinery, the candidates, political parties and
the electors, in order to ensure that the Act,
Rule, provisions, instructions, guidelines are
being followed. We do not find that the
observers are playing a superior role over the
presiding officers. Rather, they are the
interface between the Commission and the
election machinery, involving candidates,
political parties, electors, etc. The observer is
also an interface with the R.O., D.E.O and
13
A.R.Os. The role of observers which is quoted
below, does not indicate that they have any
controlling function over the presiding officers,
or that the presiding officers are inferior to the
observers in any way. The fields of operation
are different for each category. Role of
observers from the Handbook is set out
hereunder :-
1. Section 20B of the Representation of
Peoples Act, 1951 has vested the
Observers with some statutory powers.
They are empowered to direct RO to stop
counting or not to declare for the reasons
specified in Section 208.
Besides the above-mentioned statutory
powers, they have got certain very
important roles to play which include: –
a) Observing the processes of
scrutiny of nominations and withdrawal of
candidature by the RO, and Report back to
the Commission promptly in case of any
irregularity,
b) Examination of the video clipping
of the nomination process as well as
making proper investigation on the
complaints received in connection with the
process of nomination. Also, to examine the
unresolved grievances by the candidate/
political parties about the allotment of
symbols;
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c) Effective monitoring of
implementation of MCC and detecting cases
of violation of the model code of conduct by
watching the video clippings of various
meetings and, if needed, even by visiting
important rallies to get first hand input,
enforcement of the defacement of property
act, training of Micro-Observers and such
other things;
d) Though checking the account of
expenditure of the candidates is entrusted
to Expenditure Observers, however,
General Observer are also required to do
so, in case of exigencies, if directed by the
Commission.
e) Tracking dispatch of postal ballot
papers to the service voters, ensuring the
setting up of the facilitation counters for
polling officials, police, and security
personnel etc., in accordance with the
recent guidelines of the Commission and
sending specific report in this regard to the
Commission.
f) Checking randomization software,
reviewing the process of randomization of
the polling personnel, obtaining report from
the DEO regarding first level
randomization; and
g) Observing and regulating the
counting process. Observer has to sign the
round wise counting sheets as proof of
his/her satisfaction. She/he can direct the
Returning Officer to stop counting of votes
or declaration of result, if she/he notices
15any irregularities and bring the matter to
the notice of the Commission for further
directions.
2. Apart from the direct executive role of
the observer, as enlisted above, Observers
are expected to observe and report on all
the steps involved in election management.
An illustrative list is as below:
A. Nominations, Scrutiny,
Withdrawal and Symbol allotment
I. The General Observers are
directed to reach the constituency
one day before the last day of
nomination and thus does not
observe the process of nomination in
person, however, during the first visit
they should get the video recording of
the nomination process from the RO
and see the recordings to get and
overview of compliance of ECI
Instructions and report major
violations, if any, with specific
reference to Commission’s
instructions regarding number of
people allowed to be present during
Nominations.
II. Scrutiny is a quasi-judicial
process and should be conducted by
the RO without any outside
influence. However, Observer can
ensure that RO is aware of the latest
instructions; he has the latest list of
disqualified candidates and the
latest symbol order.
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The Observer should observe
the scrutiny process and report
glaring error to the Commission. The
observer should send tabular
information of all rejected cases with
reasons thereof. Observers should,
however, abstain from directing or
advising the RO. Observer may
remind RO that the scrutiny
proceedings can be adjourned in
case an opportunity is to be provided
or if any legal provision needs to be
examined that requires time.
III. Allotment of symbol is a
process that is very technical and
requires due care. It should be
ensured that RO is aware of the
provision of issue of reserved
symbols and free symbols. He
should have the latest list of political
parties and election symbols.
Another important aspect to be kept
in mind is the symbol concession
orders issued by Commission. After
allotment of symbols, the list of
contesting candidates should be
prepared in Form 7A.
B. Electoral Roll Related
I. It should be ensured the EPICs
prepared during the last days are
properly distributed to the electors
and are not left with some
intermediary.
II. Although no deletions can be
made from the roll, absentee and
17
dead and duplicate voters should
still continue to be tracked and a
separate list of such voters should be
prepared Polling Station-wise that
can be used on the day of Poll.
III. The last supplement is prepared after the date of
withdrawal by manually marking the
mother roll and previous supplement
based on the last supplement. This
activity has to be closely observed
and ensured that efforts have been
made to avoid any mistakes at this
stage.
IV. It should be ensured that the
copies given to the candidates are
exactly the same as that which
would be used on the poll day by the
polling party. Observer should see
the latest instructions of the Election
Commission, dated 11.12.2013 on
this matter.
C. Campaign Period
I. During the campaign period,
General Observers should monitor
the implementation of Model Code of
Conduct (MCC) and measures to
prevent occurrence of electoral
offenses. In this regard, the
Observers should bring lapse to the
notice of DEO, CEO and report to the
Commission, if required but abstain
from any executive action on their
part.
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II. Meeting with candidates to explain
the provisions of Model Code of
Conduct and the instructions of
Commission thereunder.
III. Observe various events like
political meets, visits of star
campaigners etc.
IV. Monitor the work done by teams
constituted for enforcement of MCC.
V. Monitor dummy candidates,
surrogate advertisements, and paid
news.
VI. Review video recordings of
activities of those candidates for
whom video trailing has been
resorted to.
D. Pre-Poll Election Management
I. Monitor preparation of
dispatch of postal ballot papers to
service voters immediately after the
preparation of list of contesting
candidates i.e. Form 7-A.
II. The first randomization of the
election staff is done before the
Observers arrive. The second and
third randomization is, however,
done in the presence of Observers.
III. First level of EVMs/VVPATs
randomization is done before the
arrival of the Observer but the
second level randomization is done in
the presence of Observers.
IV. Training is an activity on
which special emphasis should be
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provided. Observers should monitor
that proper training is arranged for
the election staff, especially with
regard to recent instructions of EC
and related to operation of
EVMs/VVPATS.
V. Intermediate Storage and
Movement of Reserve EVMs and
VVPATS (P-2/P-3 dispatch and P+1
arrival of polling parties)
1. Ensure that a Govt,
building has been earmarked at the
cluster point for polling parties and
EVMs & VVPATS.
2. Ensure that locations of
intermediate strong room have been
informed to the all the contesting
candidate in writing.
3. Ensure that the
contesting candidates/their agents
have been informed about the date
and time of opening of strong room in
writing.
4. Ensure that proper
security arrangement has been made
to guard the strong room and all
EVMs & VVPATs provided to polling
parties or Sector Officer/Zonal
Magistrate are under cover of armed
police at all times.
5. Ensure that
arrangement for videography has
been made there.
VI. Monitor adherence to the
instructions of the Commission
20
regarding issue of postal ballot
papers to the polling staff and voting
through them.
VII. Visit polling stations and monitor
that all polling stations are visited by
election official for verification from
fitness angle. Verify whether the list
of polling stations is approved by the
Commission and the assured
minimum basic facilities have been
provided.
VIII. Go through the exercise of Vulnerability mapping and
identification of critical booths and
critical clusters done by the DEO/SP
and finalize and list of critical polling
stations and critical clusters.
IX. Discuss and approve the District
Security Plan with the DEO and the
SP and review the law-and-order
issue in general. Review the
availability of CPF, SAF and District
Police. Review the preventive
measures taken by the law-and-
order implementation machinery.
X. Review the Communication Plan
and confirm dry runs.
XI. Review Control Room arrangement and complaint monitoring system.
XII. Training and placement of Micro
Observers
XIII. Ensure that proper
arrangements for dispatch have been
21
made. The dispatch should normally
be on the day before the poll and any
exception should have prior approval
of the Commission.
XIV. Review counting arrangements.
E. Poll Day Management…
I. Monitor placement of Sector
Officers and Micro Observers.
II. Monitor conduct of mock polls
and receipt of mock poll
certificate in prescribed format
signed by PO. Review the
polling stations with no or only
one polling agent.
III. Review the pace of poll and
percentage of polling at regular
intervals.
IV. Keep track of occurrence of
any special events during the
poll day.
V. Keep track of any delays or
temporary suspension of poll.
VI. Report anything exceptional to
the CEO and the Commission.
VII. Ensure that proper
arrangements for receipt of
polling staff and polling
material are made. Every
receiving team should be well
equipped with a checklist of
items to be received. Ensure
that the non-statutory
documents are not locked with
the EVMs/VVPATs in that
strong room.
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VIII. Ensure that a “special counter”
is setup for receipt of polling
parties from those polling
stations where any special
events has been reported and
on receipt, proper
documentation, along with the
statement/report of the
Presiding Officer, if required, is
done.
IX. Ensure that proper
arrangements for receipt of
reserve EVM/VVPATs and non-
functional mock poll replaced
EVM/VVPATs from Sector
Officers immediately after
completion of poll as per ECI
instructions.
F. Post Poll
I. Scrutiny of documents
relating to poll is an important
analytical tool to analyze
proper conduct of elections and
taking re-poll decision.
Scrutiny is done for those
polling stations that fall within
the criteria as per
Commission’s instructions in
the presence of Observer on
the next day of the poll.
II. Report to the Commission
about the conduct of poll and
requirement of re-poll, if any.
G. Counting
23I. Review the arrangements for
counting made by the DEO.
II. The randomization of counting
staff is done in the presence of
Observer.
III. Monitor that the counting of
postal ballot taken up before
the EVMs but the EVM
counting is not held up till the
completion of postal ballot
counting.
IV. The Observer has to ensure
that the results as tabulated
by the counting staff and the
additional counting staff,
drawn from the central
government establishment,
tally.
V. Conduct random test for two
EVMs in every round and take
corrective action as per the
directions of ECI, in case any
mistakes are found.
VI. Ensure that during the
counting, round-wise results
are announced as and when
they are finalized.
VII. Certify proper completion of
counting process and allow RO
to declare results, if satisfied
with the counting process.
VIII. Report cases of recount to the
Commission.
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19. The duties of presiding officer, have been
broadly outlined in paragraph 12 of the Hand
Book on Presiding Officers, which is quoted
below:-
“12. PRESIDING OFFICER’S
DUTY-BROAD OUTLINE
As Presiding Officer, you are over all
in-charge of the Polling Station. Your
duties are to:
(i) Not miss any of the training
classes.
(ii) Keep in ready possession all
relevant instructions of the
Commission.
(iii) Fully acquaint yourself with
the latest rules and procedures
prescribed for the conduct of poll by
EVM with VVPAT.
(iv) Familiarize yourself thoroughly
with the operation of the EVM with
VVPAT and the functions of various
buttons and switches provided
therein.
(v) Ensure that, while collecting
election materials, all items have
been handed over to you as per the
list supplied along with the
materials as specified in Annexure-
3.
(vi) Set up the Polling Station as
per specification. Place the BU and
VVPAT in the respective Voting
Compartments. You should have a
clear idea of the arrangements to be
25made for setting up of the Polling
Station in a proper way especially to
secure secrecy of voting. regulation
of voters’ queue, protection of poll
proceedings free from outside
interference, etc. On arrival at the
Dispersal centre, you should also
ensure whether your Polling Station
has CAPF or police arrangement.
You should be aware if there is
Micro-Observer and digital
Camera/Web casting facility
available at the Polling Station.
(vii) Under no circumstances, the
Ballot Units, or the Control Units or
VVPATs should be placed on the
floor. They must be kept on a table;
Connect the Ballot Units and
VVPATs with their respective Units.
(viii) Demonstrate before the hour
fixed for actual commencement of
the poll to the candidates/agents
present that the voting machines are
clear and do not contain any votes.
(ix) Conduct mock poll for Polling
Agents to ensure that the EVM with
VVPAT is in perfect working
condition by letting the Polling
Agents record a few votes randomly
for each of the contesting candidate;
tally the CU result and VVPAT paper
slips count. The Commission’s latest
guideline stipulates that at least 50
votes will be cast in mock poll and
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at least one vote will be cast against
each candidate including NOTA.
(x) Clear the mock poll result from
CU and remove the mock poll slips
from the VVPAT drop box. Prepare
the Certificate of mock poll. (Part-1
of Annexure-5)
(xi) You should be clear that
according to the Commission’s
instructions, if there is no mock poll
at a Polling Station, there shall be
no poll at that Polling Station.
(xii) Remember that the votes
recorded at such mock poll must be
cleared from the Control Unit of the
voting machine so that no data
relating to the mock poll remains in
the memory of the machine and
paper slips must be taken out from
the VVPAT drop box, so that drop
box of VVPAT is empty after the
mock poll.
(xiii) Before the first voter signs in
Form 17A (Register of Voters), the
Polling Officer-I shall check with the
Presiding Officer and record in INK
in Form 17A that “Total in the
Control Unit is checked and found to
be Zero”.
(xiv) Ensure that on the green paper
seal fixed in the Control Unit for Lok
Sabha election only the candidates
for Lok Sabha Election or their
Polling Agents, who are present at
the Polling Station at that time, affix
27
their signatures, and similarly, on
the green paper seal fixed in the
Control Unit for Assembly Election,
the candidates for assembly election
or their Polling Agents alone affix
their signatures.
(xv) Demonstrate to the Polling
Agents and other persons present
that the marked copy of the electoral
roll (copy of the electoral roll to be
used for “marking” the names of
electors who are allowed to vote)
does not contain any remarks other
than those used for issuing postal
ballot papers.
(xvi) See that Voting Compartments
have been properly arranged with
appropriate posters pasted outside
to indicate clearly the election
pertaining to which the Ballot Unit
and VVPAT is kept inside.
(xvii) Ensure that the cables to
connect the Ballot Units and
VVPATs with their respective Control
Units are placed in such a way that
the cable is visible to everyone while
also ensuring that the voters are not
required to cross over them during
their movements inside the Polling
Station and the entire length of the
connecting cable is visible to all and
not hidden. It should also be
ensured that the cable does not
hang loose under the Voting
Compartment. Tape the connecting
28
wires of BU and VVPAT to the leg of
the table with “Transparent
Adhesive Tape” of half inch width in
such a manner that the wires do not
hang in the air so that the load of
hanging wire does not impact the
connecting switch of the BU and
VVPAT.
(xviii) Ensure that all the members of
the Polling Party are in position well
before the commencement of the poll
and all the material and records are
kept handy and ready to commence
poll at the appointed hour.
(xix) Prevent any member of the
Polling Party or any polling agent
from wandering here or there inside
the Polling Station and to keep them
seated in their allocated seats.
(xx) Commence the actual poll at
the stroke of the hour fixed for
commencement of poll. Before
commencing the poll, the
candidates, or their agents, who are
present at the Polling Station and
the Polling Officers, should be
briefed about the maintenance of
secrecy of vote. The provisions of
Section 128 of the Representation of
the People Act, 1951 should be read
out and brought to their notice.
(xxi) Read out the declaration aloud
to the hearing of all persons present
in Polling Station and sign on the
29
declaration and obtain signature of
such Polling Agents as are present
and willing to affix the same. If any
Polling Agent declines to affix his
signature, the Presiding Officer
should record the names of such
Polling Agent without declaration
and make a declaration in a
prescribed form about the
demonstration of the voting
machine, marked copy of the
electoral roll and the Register of
Voters and obtain signature of
candidates or their Polling Agents
(Annexure-6].
(xxii) During the progress of poll,
keep a close watch on the
movements of the voters and be
alert and watchful so that no voter
goes away without voting and go on
recording the relevant events as and
when they occur in the Presiding
Officer’s Diary [Annexure-7].
(xxiii) Ensure that during the first
hour of the poll when polling is
generally brisk, no member of the
Polling Party shows any slackness
in the duties allocated to him.
(xxiv) Check the total votes casted
periodically with the Control Unit
and ensure that voters have voted
according to their serial numbers
given on the voter’s slip.
30
(xxv) Ensure that in simultaneous
election, copies of Form 17C
[Annexure-8] for parliamentary
election are supplied to Polling
Agents of the candidates in
Parliamentary Constituency only
and copies of Form 17C [Annexure-
8] for the Assembly Election are
given only to the agents of
candidates of assembly
constituency.
(xxvi) At regular intervals check the
Ballot Unit(s) and VVPAT to ensure
that the voters have not tampered
with it in any manner. You have a
right under rule 490 of the Conduct
of Elections Rules, 1961 to enter the
Voting Compartment in such cases
and to take such steps as you may
consider necessary to ensure that
the Ballot Unit is not tampered with
or interfered with in any way and
that the poll progresses smoothly
and orderly. However, be careful
that, whenever you enter the Voting
Compartment, do not enter the
compartment alone. You should
permit and take one or two or more
Polling Agents present at the Polling
Station to accompany you.
(xxvii) To regulate the proceedings in
the Polling Station for peaceful and
smooth conduct of poll, much tact is
required, but at the same time you
should be firm and impartial. If any
31
incident takes place at the Polling
Station and is not reported by you,
but reported from any other source,
the Commission may take a serious
view and initiate action against you.
(xxviii) Close the poll at the hour
fixed for the purpose by the Election
Commission, even if the
commencement of poll was delayed
for any reason. However, all voters
present at the Polling Station at the
closing hour of poll shall be allowed
to vote even if that means
continuing of poll for some more
time. It should also be ensured that
after the closing hour of poll nobody
joins the queue of voters. For this
purpose, you should distribute
numbered slips, signed by you, to
all the voters standing in the queue
starting such distribution of slips
from the last person standing in the
queue. After all electors have cast
their votes and no one is left, then
the Polling Officer shall put a red
line after entry of last sign there
giving date and time. Press ‘Close’
button of the Control Unit after all
voters in queue cast their votes. You
should loudly announce about the
closing hour of the poll before 15
minutes of the closing hour.
(xxix) Ensure that at the close of
poll, you are required to prepare an
“Account of Votes Recorded” in Part I
32
of Form 17C [Annexure-8) and
obtain the signature of the Polling
Agents in the column specified for
the purpose in that Form.
Authenticated copies of such
account of votes recorded are
required to be given to the polling
agent of each candidate present at
the Polling Station. You are also
required to make a declaration
regarding furnishing of such copies
to the candidates’ agents in the form
prescribed by the Commission.
(xxx) After the close of poll, the
voting machine with VVPAT and all
election papers should be sealed
and secured in the manner
prescribed by the Election
Commission. Candidates or their
agents present at the Polling Station
shall also be allowed to affix their
seals, if they so desire, on the voting
machine & VVPAT and the election
papers, in addition to your seals.
You should carefully follow the
relevant instructions about the
sealing and securing of voting
machines & VVPAT and election
papers so that no mistake is
committed.
(xxxi) It is your personal
responsibility to hand over the duly
sealed and secured voting machine
& VVPAT and all election papers to
the officer responsible for the
33
collection thereof, under proper
receipt.
(xxxii) Your duties, in brief, at
various stages are given in
Annexure-9 under five different
heads for your ready reference and
convenience.
(xxxiii) Check Memo: To ensure that
you have fulfilled the various
statutory requirements in connection
with the election, the Election
Commission has drawn up a Check
Memo for you, which is given in
Annexure-10. The said check memo
should be properly maintained by
you.
(xxxiv) You are permitted to carry
your mobile phones in silent mode.
20. The presiding officer is in overall charge of
the polling station. Although, allegations have
been made that persons who are stenographers
and clerks have been made sector officers,
Clause 1.14 of the said Hand Book provides
that sector officers act as an interface between
the presiding officer and the returning officer
and the presiding officer may take extra
material for the elections from the sector
officer. The position of a sector officer is not
superior to the presiding officer.
34
21. We find that another grievance of the
petitioner was that while assigning the role of
presiding officer, the DEOs of different districts
failed to understand the comparative
structures of the pay matrix and the hierarchy
of the entry level basic pay.
22. According to Mr. Majumder, learned
Senior Advocate who appeared for the writ
petitioner, the following exercises would have to
be done by the Commission before appointing
college teachers:-
a) Calculation as to the number of polling
stations and the number of Presiding Officers
required at such polling stations.
b) Ascertaining whether the other departments
of the Government from which such staff
could be requisitioned would be adequate or
not.
c) Upon having completed the above exercise
reasons be recorded as to why teachers from
colleges and universities would be required to
act as presiding officers at polling station.
d) For the above exercise, a reasoned decision
would have to be taken as to whether the
number of other staff at its disposal were
either inadequate or incompetent to discharge
the duty as polling officer. If Group B level
35staff were available, the question of
requisitioning Group A level staff did not arise.
e) Inspite of several opportunities given by the
learned Single Judge, the Election
Commission failed to produce records to show
that the above exercises were actually
undertaken.
23. According to Mr. Majumder, the Election
Commission acted arbitrarily and in utter
disregard and disrespect to the teachers who
were requisitioned and were asked to act as
presiding officers, although, persons lower in
rank and having lower pay had been appointed
as observers, micro observers.
24. Unfortunately, the writ petitioner failed to
make a distinction between the members who
had already accepted such appointment and
proceeded for training and those who were
aggrieved. The writ petition also did not
demonstrate how each of the members who
was appointed, had been placed under a
person less qualified or lower in rank or having
lesser income than the said member.
25. We find that the learned Judge did not
deem it necessary to ask the writ petitioner,
who is the president of the association, to
demonstrate before the Court such aspect. A
36
supplementary affidavit was filed to fill up this
lacuna in the pleadings. In paragraph 6
thereof, it has been stated that a document was
discovered which would show that
stenographer, a supervisory grade typist and
workshop instructor had been appointed as a
sector officer and assistant sector officer. This
averment does not indicate that the members of
the society who belong to Class-I/Group-A
officers were placed under the sector officers or
assistant sector officers. We have already
discussed the role of the sector officers and we
do not find that the presiding officer has been
placed below any Sector Officer or assistant
sector officer. The presiding officer is not
required to report to them. All that the
presiding officer is required to do is to obtain
materials if required during the polls from the
sector officers, who may be the custodian of
such materials. Sector officers only act as as
an interface between the presiding officer and
the returning officer.
26. Moreover, the role of the observer is all
comprehensive and has to be undertaken at
different levels. At the field, at the headquarters
and all through the elections. Whereas, the
37
teachers who are required to discharge a more
serious obligation towards education are being
placed as in-charge of the polling station for a
single day to ensure fair election and their
functions appear to be independent and
impartial.
27. We do not find any overlapping of duties.
The high position that a teacher holds in
society and the respect which the teacher
enjoys from each and every citizen has not been
compromised in any way. It is a solemn duty of
all citizen to serve in national interest and this
solemn duty outweighs personal preference.
28. Mr. Majumder placed reliance on the
Circular of 2023 and submitted that the
learned Judge had rightly observed that the
said Circular of 2023 did not mention that the
Circular of 2010 had been superseded. Prima
facie, we are unable to accept such contention
as the Circular of 2023 at paragraph 2 clearly
states that the same has been issued in
supersession to all previous instructions. The
same is quoted below:-
“2. Conduct of elections and preparation of
electoral rolls involve diverse activities at
various levels which require involvement of
sizeable number of officials and filed level
38functionaries of various authorities,
including the Governments, in such
exercises. The Commission has always
endeavored (sic) to ensure free and fair
elections and, in this regard, has issued
numerous instructions on various crucial
aspects of election process including
requisition of staff for election duties. Now,
in supersession of all the previous
instructions in the matter, a revised and
consolidated instruction is being issued by
the Commission for scrupulous compliance
by all concerned authorities.”
29. Clause 6 of the Circular 2023 has been
heavily relied upon by Mr. Majumder to
substantiate that adequate care should be
taken by the District Election Officer in calling
for names of officers from different departments
of the Central Government, State Governments,
PSUs, banks and other institutions. Their scale
of pay, rank and status should be mentioned in
the requisition order itself.
30. It is further submitted by Mr. Majumder
that the Chief Electoral Officer should set a
uniform criteria for the State as a whole for
requisition of staff on the basis of rank, status,
scale of pay etc. and the upper bench mark set
up by the Chief Electoral Officer would be most
appropriate to avoid confusion and litigation. In
39
drawing up the seniority list of officials required
for election duty, the District Level Officer must
consider the pay, rank and status of the
officials nominated and classify them
accordingly for purposes of randomization as
per the detailed instructions already available.
31. Each citizen has a duty to render service
in national interest and uphold the democracy
for which we stand. Requisition of staff by the
Commission is permitted by the Constitution
under Article 324(6) and the power has been
vested in the Commission by the Constitution
itself. Section 159 of the 1951 Act was
incorporated by the legislature to carry forward
the constitutional mandate under Article 324
(6). Article 324 and Section 159 are quoted
below:-
324 (6) The President, or the Governor 1
*** 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).
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
40necessary 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 (1
of 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.]
32. The authorities specified under 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. An authority
includes every university established or
incorporated by or under the central
provisional or the state Act. Sub-Clause 4 of
Sub-Section (2) provides that staff can be
requisitioned from any other institution which
is established by or under a central or state Act
or which is controlled or financed wholly or
substantially by funds provided directly or
indirectly by the Central Government or State
Government. It is an admitted position that the
members of the society who are allegedly
41
aggrieved by their appointment as presiding
officers are employees of colleges fully
controlled by the State Government. Thus,
prima facie, their appointment is neither illegal
nor contrary to the constitutional mandate or
the legislative mandate.
33. Mr. Majumder highlights the instructions
of 2010 and 2023 to substantiate that a list of
college teachers with their pay and rank in
order of seniority had not been prepared prior
to requisitioning those teachers to discharge
the role of presiding officers.
34. However, we are of the, prima facie view,
that this guideline operates in the nature of
instructions, as to how to place the staff so as
to ensure that they are not placed lower to
persons having an inferior rank or lesser
income. In the case in hand, we have, prima
facie, found that the role of presiding officer is
not subordinate to either an observer or a
sector officer. Moreover, the handbook of
observers clearly states that an observer has to
be an officer of the Government. Moreover, the
observers’ duty is far greater and spreads over
four months at various levels, whereas the
college teachers have to discharge their duty as
42
presiding officers only for the polling day at the
polling stations in order to ensure smooth and
fair election.
35. Mr. Biswaroop Bhattacharya, learned
counsel sought to intervene in the proceeding
and has filed CAN 2 of 2026. The said
intervener is a teacher of Basanti Devi College
who is also aggrieved by the appointment as a
presiding officer and is further aggrieved by the
show cause notice issued because the
intervener failed to attend the training. A
separate writ petition has already been filed by
the intervener challenging the show cause
notice and we are not inclined to decide such
issue prior to the writ court exercising its
jurisdiction. We have permitted Mr.
Bhattacharya to argue on the point of law and
his arguments are similar to those of Mr.
Majumder. In addition, Mr. Bhattacharya has
relied upon on the decision of the Hon’ble Apex
Court in the matter of Election Commission of
India vs. State Bank of India Staff
Association, Local Head Office Unit Patna
and Ors., reported in 1995 Suppl. (2) SCC 13,
to urge before us that a requisition from the
President or the Governor should have been
43
made by the Election Commission for staff to
man the election and conduct the election.
36. In our, prima facie, view, the decision does
not help Mr. Bhattacharya, in the sense that
the said decision was rendered before
incorporation of the amended provision of
Section 159 of the 1951 Act.
37. We have considered the 2023 Circular and
we find that Clause (c) to paragraph 6 thereof
provide that the polling officer should be under
the presiding officer and that has been
followed. The learned Single Judge observed
that the commission did not indicate the
unavoidable circumstances which necessitated
that a huge number of teachers were required
to be appointed as presiding officers for smooth
and fair election. In our opinion, this issue will
be decided at the final hearing of the appeal.
38. The decision in Kishorebhai
Khamanchand Goyal vs. State of Gujarat &
Anr., reported in (2003) 12 SCC 274, in our,
prima facie, view will not apply in view of
paragraph 2 of the 2023 Circular.
39. Moreover, the most important question is
whether the writ court could have cancelled the
appointment of college teachers as presiding
44
officers by allowing the writ petition on the
basis of the pleadings and averments in the
writ petition and without considering the
constitutional mandate and the Act of 1951.
40. Moreover, we also find that five days prior
to the scheduled date of election when the
training was being imparted, the order was
passed. The effect of the order impugned before
us will result in a chaotic situation. The
Election Commission will not be in a position to
either requisition fresh persons to act as
presiding officers and more importantly impart
training to them.
41. His Lordship also did not conclude what
exactly would be the role of college teacher,
which would commensurate with their rank.
42. Under such circumstances, we stay the
operation of the impugned judgment and order
dated April 17, 2020, passed in WPA 9020 of
2026. The consequence of such stay will follow.
43. The connected applications being CAN 1 of
2026 and CAN 2 of 2026 are disposed of. The
issues raised in CAN 2 of 2026 can be raised
before the learned writ court.
45
44. The required number of informal paper
books to be filed by the appellants within six
weeks.
45. Liberty to mention the appeal after the
paper books are ready.
46. Parties are directed to act on the basis of
the server copy of this order.
(Shampa Sarkar, J.)
(Ajay Kumar Gupta, J.)