# Om Prakash v. State of U.P. and another

- **Citation:** (2010) 3 ILRA 1077
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-21
- **Case number:** Writ Petition No.6610 (M/B) of 2002
- **Bench:** F.I. Rebello, C.J. Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-and-another-41726
- **Pages:** 9

## Text

3 All] Om Prakash V. State of U.P. and another
1077
and for poverty bargain such a transplant
for some money, we would like to
reiterate that the provisions of the Act,
1994 and the Rules 1995 have to be
strictly complied with by all doctors and
hospitals irrespective of the fact whether
they are Government hospitals, private
hospital, private practitioner or nursing
homes etc. and any violation of the
provisions of the Act in transplantation
would entail the consequence as given
under the Act.

66. We, therefore, conclude with a
note that it is the responsibility of all the
doctors and hospitals to facilitate the
treatment in a deserving case to the
patient who is in emergent need of
transplantation of human organs by
following the provisions of the Act and
the Rules at the earliest and the
Authorization Committees so formed
have the responsibility to give permission
only when they are satisfied about the
statutory
requirements
having
been
fulfilled. with promptitude. The delay in
giving such treatment sometimes may
prove fatal, for the ailing who has a right
to live a longer life which life should be
as comfortable as it could be. Transplant
of human organ can not be refused for the
reasons which do not flow from the Act
aforesaid.

67. We, therefore, dispose of this
petition finally with the direction that the
petitioner
may
approach
the
Fortis
Hospital or SGPGI as per her liking and
discretion, where she would be provided
the necessary treatment/operation, as may
be medically advisable, with immediate
promptness as she is waiting for the
transplant for the last six years or so, by
following the instructions given in Rule
6F(c)(xi).

Subject to aforesaid directions, the
petition is disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No.6610 (M/B) of 2002

Om Prakash

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Constitution of India Art. 229 (2), 283,
360 readwith Allahabad High Court
officers and Staff (Condition of Service
and Conduct Rules 1976-Rule 38, 40stay of encashment leare of class 3rd and
4th employees-on ground of financial
scarcity
whether
the
G.O.
Denying
encashment ultra vires to Article 283?
held-'No' Power exercised by the Chief
Justice with regards to salary fund etc.
subject to approval of Govt.-facility of
leave encashment can not be treated as
property of employee-No applicability of
Art-360 or 283 -fundamental Rule 103
provides-encashment of leave-Power to
issue instructions about payment of
encashment-includes
power
of
withdrawal or stay granting- power of
Govt. providing service conditions based
on financial capacity-Rule discharged.

Held: Para 15

Salary and allowances form part of the
conditions of service as contemplated
under Article 309 of the Constitution of
India. As discussed earlier, by virtue of
the Subsidiary Rules, which flow from
Rule 103 of the Fundamental Rules, the
Government
provided
for
leave
encashment by surrender of earned
leave, but that was subject to the orders
issued by the Government in this regard
from time to time. The Government
issued an Office Memorandum. If it was
1078 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
open to the State Government, by
administrative instructions, to provide
for leave encashment, that would also
include the power to withdraw and/or to
stay the Office Memorandum. This is not
a case of reduction of pay but staying
operation of a provision providing for
leave encashment. It, therefore, cannot
be said that there is no power in the
Government to withdraw or stay the
leave encashment and if it is so, it
cannot be said that the part of the
impugned Government Order is ultra
vires or violative of Article 229 (3) of the
Constitution of India.
Case law discussed:
(1998) 3 SCC 72, (2003) 4 SCC 239, [AIR
1976 SC 123], [AIR 1975 SC 889], [AIR 1971
SC 1850], AIR 1960 All.193.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Rule. By consent of parties, heard
forthwith.

2. The writ petitioner is in the
employment of respondent no.2. By means
of the present writ petition, the writ
petitioner
seeks
to
challenge
the
Government Order dated 27.12.1999 by
which, the State Government stayed the
rule providing for encashment of leave in
respect of Groups C and D employees. The
writ petitioner is a Group-C employee.
This writ petition is purported to raise not
only his personal grievance, but also off all
similarly situated employees of respondent
no.2.

It is the case of the writ petitioner that
the impugned Government Order is
arbitrary, unconstitutional and illegal on
the ground that at the time of filing of the
petition there was no financial hardship,
but in pursuance of the impugned
Government Order, till date, the State
Government is not providing for leave
encashment. Though in the writ petition
issue was also raised regarding L.T.C.
facility, as that is being subsequently paid,
has not been argued.

3. The writ petitioner is in the service
of respondent no.2. Conditions of service
are regulated by Article 229 of the
Constitution of India and the rules framed
thereunder. For that purpose, we may
gainfully referred to Rule 40 of the
Allahabad High Court Officers and Staff
(Conditions of Service and Conduct)
Rules, 1976 (hereinafter referred to as 'the
Rules, 1976'), which reads as under:-

"40. Regulation of other matters.--
(1) All officers and servants of the Court
shall be subject to the superintendence and
control of the Chief Justice.

(2) In respect of all matters (not
provided for in these rules) regarding the
conditions of service of officers and
servants of the Courts including matters
relating to their conduct, control and
discipline, the rules and orders for the time
being
in
force
and
applicable
to
Government
servants
holding
corresponding posts in the Government of
Uttar Pradesh shall apply to the officers
and servants of the Court subject to such
modifications, variations and exceptions, if
any, as the Chief Justice may, from time to
time, specify.

Provided that no order containing
modifications, variations or exceptions in
rules or orders relating to salaries,
allowances, leave or pensions shall be
made by the Chief Justice except with the
approval of the Governor:

Provided further that the said powers
exercisable under rules and orders of
Government of Uttar Pradesh by the
3 All] Om Prakash V. State of U.P. and another
1079
Governor shall be exercised by the Chief
Justice or by such officer as he may, by
general or special order, direct.

(3) If any doubt arises in regard to a
particular post in the establishment being
corresponding to a post in the State
Government, the matter will be decided by
the Chief Justice."

4. Similarly, Article 229 of the
Constitution of India, reads as under:-

"229. Officers and servants and the
expenses
of
High
Courts.--
(1)
Appointments of officers and servants of a
High Court shall be made by the Chief
Justice of the Court or such other Judge or
officer of the Court as he may direct:

Provided that the Governor of the
State may by rule require that in such cases
as may be specified in the rule no person
not already attached to the Court shall be
appointed to any office connected with the
Court save after consultation with the State
Public Service Commission.

(2)Subject to the provisions of any
law made by the Legislature of the State,
the conditions of service of officers and
servants of a High Court shall be such as
may be prescribed by rules made by the
Chief Justice of the Court or by some other
Judge or officer of the Court authorized by
the Chief Justice to make rules for the
purpose:

Provided that the rules made under
this clause shall, so far as they relate to
salaries, allowances, leave or pensions,
require the approval of the Governor of the
State.

(3) The administrative expenses of a
High
Court,
including
all
salaries,
allowances and pensions payable to or in
respect of the officers and servants of the
court,
shall
be
charged
upon
the
Consolidated Fund of the State, and any
fees or other moneys taken by the Court
shall form part of that Fund."

5. The grievance of the writ
petitioner
is
that
in
the
impugned
Government Order, it was provided that
after March, 31, 2000, further instructions
will be issued. However, to the writ
petitioner's
knowledge,
no
further
instructions have been issued. It is pointed
out that when there is any financial
instability in any part of India or any part
of Territory, it is open to the President
under Article 360 of the Constitution of
India,
to
issue
by
proclamation
a
declaration of financial emergency. In the
absence of any such proclamation or
declaration as prescribed under Article 360
of the Constitution of India, the impugned
Government Order could not have been
issued and consequently, it is illegal and
unconstitutional.
There
are
others
averments, which are not necessary to be
referred to, as they are not relevant for
considering the main prayer clause, which
is impugning the Government Order dated
27.12.1999 and consequential relief by
way of a writ of mandamus to provide for
leave encashment to the writ petitioner as
well as other employees.

6. The principal grounds raised by
the writ petitioner in the writ petition are:
(a) that paragraph 2 of the impugned
Government
Order
is
against
the
provisions
of
Article
229
of
the
Constitution
of
India;
(b)
that
the
impugned Government Order is against the
provisions
of
Article
360
of
the
1080 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Constitution
of
India;
(c)
that
the
impugned Government Order is violative
of Article 283 of the Constitution of India
and (d) that the implementation of the
impugned Government Order is against the
fundamental right of the writ petitioner as
well as other employees.

7. A counter affidavit has been filed
on behalf of respondent no.1. It is set out
that the government servant earns leave in
respect of the period spent on duty which
is called Earned Leave. Earned Leave of
31 days is to be credited in advance in the
leave account of every government servant
in half yearly installments in each calender
year. 16 days Earned Leave shall be
credited on first day of January and 15
days Earned Leave on the first day of July
of every calender year. In case, an
employee renders lesser duties in the next
6 months, the same is adjusted @ two and
half days per month.

8. For the first time, the facility of
encashment of Earned Leave, credited to the
leave account of the government employee,
was made available w.e.f. 1.4.1973, vide
G.O.
dated
24.3.1973
with
certain
conditions. The same was suspended, vide
G.O. dated 23.8.1974. The same was again
provided by G.O. dated 10.10.1974 and
again was affected in a modified form w.e.f.
30.10.1981.
The
benefit
of
leave
encashment was provided to the employees
of the State Government by means of the
Government Order and initially the same
was not referred in the Financial Rules.
Subsequently, vide G.O. dated December
21, 1992, the provisions to the said effect
were made, by making amendment to Rule
81-B and Subsidiary Rule 157-A of the
Fundamental Rules, according to which, a
government servant may be permitted to
surrender a portion of earned leave at his
credit and allowed cash payment in lieu
thereof in accordance with orders issued by
the Government in this regard from time to
time.

9. Considering the financial position
of the Government, vide Government Order
dated 29.1.1999, a provision was made to
deposit the money of leave encashment of
Group C and D State Government
Employees in their General Provident Fund
till 31.3.1999 and with regard to the
Officers of Group A and B, benefit of leave
encashment was stopped w.e.f. the calender
year of 1999. On account of the critical
financial condition of the State, facility of
leave encashment to Group C and D
employees was stayed, vide Government
Order dated 27.12.1999 and the same was
extended till further orders, vide G.O. dated
13.4.2000 and at present such facility is
stayed.

By amendment made in the Financial
Hand Book, it has been provided that a
Government servant may be permitted to
surrender a portion of earned leave at his
credit and allowed cash payment in lieu
thereof in accordance with the orders issued
by the Government in this regard from time
to time. The benefit of leave encashment
has not been stopped to the Group C and D
employees but only stayed and there is no
requirement of making amendment in the
Financial Hand Book.

10. The facility of leave encashment
according
to
the
State
is
not
the
fundamental right of an employee. As a
matter of fact, earlier the employees of the
State
Government
were
allowed
to
surrender a part of their earned leave during
his service period. The same has, however,
been abolished with regard to Group A and
B Officers. In respect of Group C and D
3 All] Om Prakash V. State of U.P. and another
1081
employees, the same has been stayed. The
State Government, it is contended, is not
bound to provide the facility of leave
encashment in service and the reasons for
suspending the facility of leave encashment
have been mentioned in the Government
Order dated 27.12.1999

11. Under the proviso to Sub-Article
(2) of Article 229 of the Constitution of
India, it has been provided that the rules
made under this clause shall, so far as they
relate to salaries, allowances, leave or
pensions, require the approval of the
Governor of the State. Therefore, without
approval of the Governor of the State, it
would not be proper to make such payments
on account of salaries, allowances, leave or
pension. The facility of leave encashment
during the service period cannot be treated
as property of an employee. The question,
therefore, of applicability of Articles 360
and 283 of the Constitution of India will not
arise. The salaries of the employees are paid
from the consolidated fund of State and
insofar as the leave encashment is
concerned, it has only been stayed.

It is, therefore, stated that there is no
merit in the contentions advanced on behalf
of the writ petitioner and consequently, the
writ petition may be dismissed.

12. Considering the contentions
advanced, we have been called upon to
answer the following questions:-

(1) Whether there is any rule framed
by the Chief Justice in exercise of the
powers conferred under Article 229 of the
Constitution of India, whereby an employee
of respondent no.2 is entitled to leave
encashment and if so, whether it is open to
the
Government,
by
an
Office
Memorandum, to withdraw the facility of
leave encashment?

(2) Whether considering Articles 229
(3) of the Constitution of India, refusal to
allow leave encashment is violative of
Article 266 read with Article 360 of the
Constitution of India?

(3) Can it be said that the Circular,
most specifically paragraph 2, is violative of
Article 283 of the Constitution of India?

13. We may first deal with question
no.1.
Conditions
of
service
of
the
employees of respondent no.2 are governed
by Article 229 of the Constitution of India.
The conditions of service of the officers and
servants of a High Court, shall be such, as
may be prescribed by rules made by the
Chief Justice of the Court or by some other
Judge or officer of the Court authorized by
the Chief Justice to make rules for the
purpose, provided that the rules made under
this clause shall, so far as they relate to
salaries, allowances, leave or pensions,
require the approval of the Governor of the
State. The Chief Justice, therefore, has
absolute control insofar as the employees of
the High Court are concerned vis a vis the
control by the High Court over the subordinate Courts. See High Court of
Judicature of Rajasthan Vs. Ramesh
Chandra Paliwal (1998) 3 SCC 72 and
High Court of Judicature of Rajasthan
Vs. P.P. Singh (2003) 4 SCC 239. Article
229 (3) of the Constitution of India further
sets out that the administrative expenses of
a High Court, including all salaries,
allowances and pension payable to or in
respect of the officers and servants of the
Court,
shall
be
charged
upon
the
Consolidated Fund of the State, and any
fees or other money taken by the Court shall
form part of that Fund. We have earlier
1082 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
reproduced Rule 40 of the Rules, 1976. In
terms of the said Rules, in matters
pertaining to conditions of service, the rules
and orders for the time being in force and
applicable to Government servants holding
corresponding posts in the Government of
Uttar Pradesh, shall apply to the officers and
servants of the Court subject to such
modifications, variations and exceptions, if
any, as the Chief Justice may, from time to
time, specify. Thus, it would be clear that in
the absence of any other rules, the rules
framed by the Government would be
applicable in terms of Rule 40. As set out in
the affidavit of respondent no.1, the
provision for leave encashment was made
for the first time w.e.f. 1.4.1973, vide
Government Order dated 24.3.1973. It is
not necessary to refer to the subsequent
orders, as we have already set them out
earlier. We may only refer to the Uttar
Pradesh Subsidiary (First Amendment)
Rules, 1992. Rule 80 (1) (xiii) as substituted
by the Uttar Pradesh Subsidiary (First
Amendment) Rules, 1992 and notified on
December 21, 1992, reads as follows:-

"80
(1)
Earned
Leave--
The
following procedure shall deemed to have
come into force with effect from January 1,
1978 in regard to calculation of an earned
leave in respect of Government servants
serving in the State for the period spent on
duty from the date of commencement of
continuous service:-

(xiii)a government servant may be
permitted to surrender a portion of earned
leave at his credit and allowed cash
payment for leave so surrendered by him in
accordance with the orders issued by
Government in this regard from time to
time."

14. The Government in exercise of its
executive
powers
had
issued
Office
Memorandum dated October 30, 1981 and
subsequent
Office
Memorandums
by
which, provision was made for leave
encashment as set out therein. Therefore,
considering Article 229 (3) read with Rule
40 of the Rules, 1976, the provisions for
payment of leave encashment to the Group
C and D employees of the High Court
would be governed by the Subsidiary Rules
and Office Memorandums. This would be
so considering Rule 40 of the Rules, 1976,
which made applicable to the allowances
available to the Government employees
holding the corresponding posts in the
service of the State Government. The law as
to the scope of Article 229 of the
Constitution of India and the powers of the
Chief Justice, to make rules, has been
settled by a series of judgments of the
Supreme Court. We may gainfully refer to
the State of A.P. Vs. Gopal Krishna
Murthi [AIR 1976 SC 123]. We may also
gainfully refer to the judgments in State of
Assam Vs. Bhuban [AIR 1975 SC 889]
and Gurumoorthy Vs. A.G. [AIR 1971 SC
1850]. It would, thus, be clear that an
employee holding Group C and D post in
the service of the High Court would only be
entitled to the leave encashment, if rule to
that effect, has been made by the Chief
Justice in consultation with the Governor of
the
State.
The
Government
cannot,
therefore, direct withholding or payment of
allowances of High Court employees once
rules have been made and notified. See:
Akhil Kumar Bhattacharya Vs. State of
U.P., AIR 1960 All. 193. The question,
therefore, will be considering the rule made
by the Chief Justice. In the Rules of 1976,
Rule 40 refers to government rules and
orders for encashment of leave and salary
etc. Once an office memorandum has been
stayed and has not been given effect to, in
3 All] Om Prakash V. State of U.P. and another
1083
our opinion, the language of Rule 40 of the
Rules, 1976 would result in holding that the
Group C and D employees of the High
Court would not be entitled to leave
encashment,
as
it
is
stayed.
Leave
encashment was being paid pursuant to the
Office Memorandum. It has been stayed
pursuant to another Office Memorandum.
Insofar as Group A and B Officers are
concerned, that has been totally withdrawn.
Considering Rule 80 (xiii) of the Rules of
1992 read with rule 40 (2) of the High Court
Rules, the Office Memorandum providing
for encashment of earned leave in respect of
employees of the High Court holding Group
C & D posts is also stayed.

15. Another incidental question for
our consideration, is as to whether it is open
to the State Government to have stayed the
payment
of
leave
encashment.
The
conditions of service of government
employees are governed by Article 309 of
the Constitution of India and the rules made
thereunder and in the absence of any rule,
by administrative instructions and Office
Memorandums, as made from time to time.
Salary and allowances form part of the
conditions of service as contemplated under
Article 309 of the Constitution of India. As
discussed earlier, by virtue of the Subsidiary
Rules, which flow from Rule 103 of the
Fundamental
Rules,
the
Government
provided for leave encashment by surrender
of earned leave, but that was subject to the
orders issued by the Government in this
regard from time to time. The Government
issued an Office Memorandum. If it was
open
to
the
State
Government,
by
administrative instructions, to provide for
leave encashment, that would also include
the power to withdraw and/or to stay the
Office Memorandum. This is not a case of
reduction of pay but staying operation of a
provision providing for leave encashment.
It, therefore, cannot be said that there is no
power in the Government to withdraw or
stay the leave encashment and if it is so, it
cannot be said that the part of the impugned
Government Order is ultra vires or violative
of Article 229 (3) of the Constitution of
India, as the Chief Justice in making the
rules has made applicable the Government
rules and orders. The issue of staying
payment of an allowance no doubt will be
subject to Article 14 of the Constitution of
India. If the State forms an opinion that the
conditions are such, that the financial
burden on account of payment of leave
encashment, may be a small amount, for the
time being, is resulting in financial hardship
or the expression used as 'critical financial
condition', it cannot be contended on behalf
of the writ petitioner that the payment of
leave encashment ought not to have been
stayed or stopped in the absence of any
specific Act or Rule or any other
Legislation and that the State Government
is bound to pay the leave encashment, or to
disclose how its financial position is critical.
The writ petitioner has nowhere placed any
material to hold that the impugned circular
is a colourable exercise of power and/or to
that extent, it is arbitrary. In the absence of
any material, it is not possible for this Court
to hold that it would not be open to the State
Government to have issued the impugned
order. The order staying the payment of
leave encashment is a matter of policy
decision of the State Government. The State
apart from paying salary to its employees is
also
bound
to
implement
economic
programmes
for
the
benefit
of
its
economically backward sections of the
Society. If, therefore, the State has taken a
decision considering its financial position to
stay the Office Memorandum, we cannot
find fault with that action. The first
contention
is,
therefore,
accordingly
answered.
1084 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

16. We then come to the second
question as to what is the effect of the
provisions of Articles 360 and 266 of the
Constitution of India read with Article 229
(3) of the Constitution of India. Article 229
(3) of the Constitution, charges the
administrative expenses of a High Court,
including all salaries, allowances and
pension on the Consolidated Fund of the
State. Article 266 of the Constitution of
India provides for a Consolidated Fund of
India and further provides as to which
moneys or revenues would be included in
the Fund called as 'the Consolidated Fund of
India'. Thus, it is only in the event that
allowances are payable, then it shall be
chargeable on the Consolidated Fund of
India maintained under Article 266 of the
Constitution of India. Once we have held
that presently the leave encashment is not
available, the question of payment under
Article 266 of the Constitution of India
would not arise. Hence this contention is
also liable to be rejected and is hereby
rejected.

17. One more contention is based on
Article 283 of the Constitution of India. In
our opinion, placing reliance on Article 283,
is totally misplaced. All the Article 283 of
the Constitution of India provides for, is that
the custody of the Consolidated Fund of
India and other funds will be regulated by
law made by the Parliament and, until
provision in that behalf is so made, shall be
regulated by rules made by the President.
As we have set out while dealing with
Article 266 of the Constitution of India, on
the facts and circumstances of the case,
Article 229 (3) of the Constitution of India
is not attracted. Hence question of
considering Article 283 is not, in any way,
relevant
for
deciding
the
present
controversy. Accordingly, that argument is
also rejected.

18. The last argument as advanced is
based on Article 360 of the Constitution of
India. Article 360 is the power in the
President. If the President is satisfied that a
situation has arisen whereby financial
stability or credit of India or of any part of
the territory thereof is threatened, he may by
a Proclamation make a declaration to that
effect. Therefore, it is the executive power
of the President. Merely because the State
Government, in its Office Memorandum,
has set out that the payment of leave
encashment has been stayed on account of
critical financial condition of the State, it
does not ipso facto mean that the financial
emergency as contemplated in Article 360
of the Constitution has arisen. As noted
earlier, financial emergency would arise
when the President so holds under Article
360 of the Constitution of India. We are not
dealing with the issue as to whether it is
open to the President, in respect of the
States and the Unions, to impose financial
emergency merely because the State has
decided not to waive the stay on
encashment of leave because of its financial
condition. The expression used is 'financial
stability or credit of India or of any part of
the territory thereof. It is true that under
Article 1 (3) of the Constitution of India, the
territory of India shall comprise, amongst
others, the territories of the States, and that
would also include the State of Uttar
Pradesh. The President, having not issued
any declaration under Article 360 of the
Constitution
of
India,
the
argument
advanced is devoid of substance and merit.
We must also deprecate the practice of
raising such frivolous grounds in a matter of
Seirous
jurisprudential
issue.
Merely
because the State is not in a position to pay
an allowance, a petitioner cannot plead
Article 360. It is always within the right of a
State to fix conditions of service based on
its financial capacity. The only challenge in
3 All] Sri Gyanendra Kumar Singh and others V. The Election Commissioner of India. and others 1085
such matters may be under Articles 14 and
16 of the Constitution of India. Hence, this
contention is also rejected.

19. In the light of the above, rule
discharged. However, there shall be no
order as costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 8250 of 2010

Sri Gyanendra Kumar Singh and
others

 ...Petitioner
Versus
The Election Commissioner of India and
others

 ...Respondent

Counsel for the Petitioners:
Shri Akhilesh Kalra

Counsel for the Respondents:
Shi O.P. Srivastava

Constitution of India Art.171 readwith
Representation
of
People
Act
1950
Section 27 and Registration of Electors'
Rule, 1960-Rule 31-Validity of Guidelines
issued of Election Commission requiring
physical presence of those graduates of
constituency-whether ultra vires-being
contrary to Art. 171-held- 'No'-various
reasons dismissed.

Held: Para 13

In our opinion, considering the above
discussions, it is not possible to hold that
the Guidelines issued are ultra vires.
They are in furtherance of the powers
conferred on the Election Commission
under Sections 21, 22, 23 and 27 of the
Act and the Rules framed thereunder and
Article 324. Section 27 of the Act itself
sets out that every person, who is
ordinarily a resident in a graduates'
constituency and has, for at least three
years before the qualifying date, been
either a graduate of a University in the
territory of India or in possession of any
of the qualifications specified under
clause (a) of sub-section (3) by the State
Government concerned, shall be entitled
to be registered in the electoral roll for
that constituency. Thus, the procedure
adopted by the Election Commission to
restrict those who are ineligible, and the
criteria adopted, cannot be said to be
contrary and ultra vires the Act. In our
opinion, they are in furtherance of the
mandate
cast
on
the
Election
Commission
to
purify
the
electoral
process
and
to
keep
away
the
undesirable and unwanted persons who
seek to destroy the democratic process.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. By means of the present petition,
the petitioners seek a declaration that the
Guidelines dated 03.12.2009 issued by the
Election Commission of India (hereinafter
referred to as the 'Election Commission')
are illegal and void and also all
consequential orders and directions. The
submission is that the Guidelines are ultra
vires Article 171 of the Constitution of
India read with Section 27 of the
Representation of the People Act, 1950
and Rule 31 of the Registration of
Electors' Rules, 1960.

2. The case of the petitioners is that
the Election Commission published a
public notice vide Press Note dated
18.12.2009, whereby the residents of the
graduates' constituency of Kanpur were
called upon to get their names included in
the electoral roll in accordance with the
terms and conditions contained in the
Guidelines dated 03.12.2009. The public
notice required the residents, otherwise