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IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. of 2021
Tamil Nadu High – Higher Secondary School
-Graduate Teachers Association
Rep by its Founder – President
No,3A, Abdul Razak Street,
A2 Ivory Tower, Saidapet
Chennai 600 015 ….. Petitioner
1. The Chief Electoral officer
State of Tamil Nadu
Fort St. George
Chennai- 600 009
2. The Election Commission of India,
New Delhi – 110 001 …. Respondents
AFFIDAVIT OF PETITIONER
I, Dr.A.Mayavan, son of Mr.Ayyavu, Indian, aged about 73 years, representing Tamil Nadu High & Higher Secondary School Graduate Teachers Association as its President having office No,3A, Abdul Razak Street,# A2 Ivory Tower, Saidapet, Chennai 600 015 at do hereby solemnly and sincerely affirm and state as follows.
1. I state that I am the Founder-President of petitioner Association, registered under Societies Registration Act. And I am retired as Graduate Teacher in Govt aided School, I am authorized to file this writ petition and I am well acquainted with the facts and circumstances of the case to depose herein below.
2 I submit that the forthcoming Tamil Nadu State Legislative Assembly General Election 2021 is scheduled to hold before May 2021. The motto and the high goal of Election commission of India is that “No voter to be left behind” for conducting of free and fair election. The respondents are being the highest Constitutional authority have been vested with extraordinary powers, they are guided by The Constitution of India, the Representation of People Act 1950 and 1951, Conduct of Election Rules 1961, Hand book of Returning Officer and other various instructions, notifications and orders issued time to time according to change of time and circumstances under the power of Article 324 of Constitution. Every General election is mammoth task to maximise the electors’ participation, hence the respondents have taken initiative program “SVEEP- Systematic Voter Education and Electoral Participation”, starting from the year 2009. It is well known fact that Election duty officials predominantly drawn from public servants, and substantially comprise of those are being eligible in the electoral roll of that election. This category of election duty staff are classified as “VOTERS ON ELECTION DUTY” which is large section of eligible voters.
3. The petitioner further states that the second respondent under the reservoir power of Article 324 of Constitution published instructions under Hand Book for Returning Officers which is explanation and making officers understand easily the provisions of RP Act 1951 and CE Rules 1961. The legal instructions of the Hand book for RO where two modes are prescribed in Chapter 11.12.1 where according to their Election duty, either to cast by using EDC-Election duty Certificate if they are posted within their own constituency, OR to cast their vote thorough postal ballot if they posted out of their constituency, the detailed procedures and time line also prescribed in the same chapter of Handbook of RO.
4. I state that Chapter 11.12.6 and 7 of that Hand book elaborately deals with issuance of postal ballot and casting of votes in facilitation centre, they are given training in four special sessions in training centres to conduct elections in the filed level along with voters. In each districts the District Election Officers usually draw about 2000 to 4000 teachers and government staff for each assembly constituency. Hence in each DEO would draw about 15,000 voters on duty according the numbers of Legislative Assembly Constituencies situated. Accordingly, the DEO at first instant issue orders of voters on election duty to conduct elections. On the basis of the said duty order, DEO part special training at special training centres and the DEO group about 600-800 voters on election duty to part training in each training centre.
5. I state that each training centres are overcrowded, hence there would be usually havocs in distribution of pre-filled Form 12A and Form 12B to the voters on election duty by the Nodal Officer of DEO to apply for postal ballots at second or third training session. Hence most of the voters on election duty were used to be left out by Nodal Officer in supplying the pre-filled such Forms. Actually, the RO would only come to know the valid candidates at third session of training class to the voters on election duty and get ready the postal ballots in between 3rd class and 4th class. And on 4th and last session that is one day prior to polling day, the RO would issue polling station duty orders allocating polling stations to each voters on election duty, only then the voters on election duty would know whether they have to apply postal ballots under Form 12A when they are posted election duty out of their constituency or to apply Form 12B for EDC as they are posted election duty with in the constituency.
6. I state that and the voters on election duty are also supplied entire election material like documents, records, intelligible ink, some apparatus of sealing materials, candles and particularly the EVMs. Once they are supplied the very vital EVMs on their hands, it is burden and responsibility to reach safely with all election materials and transporting them to the polling stations. The polling stations would be situated about 5 to 30 kms radius distance for which they have to arrange transportation and get prepared with their personal necessary belongings like dresses, medical kit, etc., for next two days that is till they safely delivery the polled EVMs and connected records to reach the Counting Centres. Which is nothing but a devoted uphill Himalayan task to complete without error. Further the voters on election duty shall reach the polling stations prior day/evening of polling date to take charge of the polling station to get prepared the polling stations for next day to regular polling.
7. I state that under such hurried rush hour, the voters on election duty those are posted out of their constituency, they would rush the Gazetted officer to obtain attestation on their postal ballots declaration. Further it is pertinent to note that the sheer failure of issuing postal ballots to the eligible voters on election duty occur when the voter on election duty serves in another district but have registered vote in their native district, it is not known to the native District Election Officer whether the particular voter/government staff has been selected for election duty in their serving district. Hence the eligible voter on election duty resides another district would not get either pre-filled Form 12A or 12B or Postal ballots unless the serving District Election Officer sending the details of voters on election duty to their native District Election Officer.
8. I state that since there are no proper coordination between the District Election Officers to share the details of the voters on election duty those are having vote in another district, the highest goal of second respondent is miserably failed to achieve “no voter to be left behind” by the DEOs and also the first respondent join the band wagon of failure of achieving free and fair election of “no voter to be left behind” in supervising and conducting election.
9. I state that despite the second respondent have issued instructions as Constitutional authority under the Hand Book of Returning Officers extensively for the postal ballots to voters on election duty which is corresponding provisions in RP Act 1951 and CE Rules 1961, the competent authorities like DEOs and ROs are somehow failed to comply and the instructions duly and diligently but the instructions are just in paper. Further the single gazetted officer is posted in the each training centres and huge rush of the voters on election duty to obtain attestation in their postal ballots declaration is not just simple task to the gazetted officer. It is so cumbersome laborious work to the gazetted officer to discharge duty of attesting declaration of postal ballots for voter on election duty in single duty which is one of the major reasons for failure of achieving motto “ No voters to be left behind”. I further state that Because the attesting officer should append full signature with date and write in hand or put a stamp showing his designation & office address after verification each work order of polling stations of voters on election duty, name of them, EPIC number, constituency name and number, part number, serial number of the electoral roll in the declaration form 13A which is crucial for postal ballots.
10. I state that since it is never possible for one gazetted officer to attest about 300 to 400 declarations of postal ballots after verification of each details singly when the voters on election duty were already handed over the above said election materials and they have to transport the said materials as well they have to reach their destination of polling stations on that day evening itself. Even they somewhat got postal ballots in such rush, they have to rush to their destinations with their personal belongings for at least 3 days with EVMs and connected records. Hence they have no time to cast their vote and reach post box to send RO for counting. There are many and continuous incidents that after declaration of results, the postal ballots used to arrive very lately to RO office despite it is valid postal ballots. That’s how the paramount goal of second respondent “No Voters to be Left Behind” as part of free and fair election.
11. I state that my averments are not just allegations, but it is field level truth and failure of competent election official which would prove how the motto of second respondent is miserably failed as per the records of the election commission’s website. The truth can be seen in naked eyes in the following tabular column which are taken from the website of first and second respondents.
Year of Election Polled Postal Ballots as per Form 20
Invalid Postal Ballots as per Form 20 % of Rejected Postal Ballots
1 2011 TN Assembly General Election
1,29,413 23,319 18.02%
2 2016 TN Assembly General Election
3,30,380 25,883 7.83 %
3 2019 Parliament General Election
2,30,731 24,824 10.77%
During the 2019 Parliament General Election, the first respondent failed in discharging their duty as election official under section 20 of the RP Act 1951 that Subject to the superintendence, direction and control of the Election Commission, the chief electoral officer of each State shall supervise the conduct of all elections in the State under this Act. Despite the first respondent have delegated power to the superintendence, direction and control of the District Election Officers particularly in postal ballots. Further the second respondent very specifically fixed responsibility on postal ballots issues since there was lots failure, the DEOs the reasons known to them they fail in conduct free and fair election and the level the ROs also become part of such miserable failure in conducting free and fair election of No voters to be left behind.
12. I state that since there was large numbers of voters on election duty were left out issuing Form 12A, 12B and Postal ballots, there was several agitations were taken out by the voters on election duty since they were not given their right of franchise to exercise. Therefore, one of the affected voters on election duty who is office bearer of our association filed writ petition in WP 14420 of 2019 before the Hon’ble Court. The first respondent was exposed as to how it failed in superintendence and conduct of election as “no voters to be left behind”. The Hon’ble Court was pleased to observe their grave failure as below and issued direction to the first respondent to publish the details of issuance of the postal ballots in its website. But it was not done. The hon’ble Court observed in the order dated 17.05.2019 in para No. 6 held that out of 4,35,003 voters on election duty were enumerated by the District Election Officers for the Parliament General Election 2019. Out of 4,35,003 voters on election duty 3,97,291 were issued postal ballots. So at first instance 37,712 eligible voters were left out from exercising their franchise just because of DEOs faulty database.
13. I state that this is how the DEOs defeated the motto of ECI’s “no voter to be left behind” and free and fair election in the superintendence of the first respondent. These numbers of voters were left out without postal ballots prior to the counting. Further, after result it was found more damages to the free and fair election process just because of DEOs and respondents’ failure in supervising them. Having the DEOs failed to follow the mandatory procedure laid down by the 2nd respondent/ECI to arrange required number Gazetted Officers in facilitation centres to attest declaration of postal ballots, during counting of Parliament General Election 2019, there were 24,912 postal ballots were rejected for want of gazetted officer attestation out of 2,23,527 postal ballots. Therefore, totally out of 4,35,003 voters on election duty of 62,624 [37,712 + 24,912] voters on election duty (about 15%) of civil staff electors votes were wasted in the course of election exercise. Therefore, the major force of our members teachers in conducting the elections were affected a lot in every successive election, and they are made to scapegoat and they were not given their right of exercising their franchise which is enshrined under article 19(1) off the Constitution of India.
14. I state that since we teachers/government staff are substantial workforce of conducting election, the ECI have issued detailed guidelines in the Hand Book of Returning Officers in Chapter XI, Para 11.12.3 where the ECI cast upon duty and responsibility on each District Election Officers to prepare “database” of voters on election duty from the final electoral roll dated 20.01.2021. The database should necessarily have information about the No. and Name of Assembly Constituency, Part No., Serial No. of the Part where the persons are enrolled as voter. The EPIC number, address of each person should also be consisted in the database with address of training centres where the postal ballots forms and postal ballots to be issued. At present 68,324 polling stations were declared under the final electoral roll dated 20.01.2021. The second respondent in previous election enumerated about 4,35,003 eligible voters on election duty for election duty for the 67,775 polling stations. Now the second respondent issued guidelines by Email in Letter No. 3776/Ele-1/2020-9 dated 19.01.2021 to increase polling stations as post covid19 pandemic situation about 23,000, i.e more than 90,000 polling stations for the forth coming Tamil Nadu State Legislative Assembly General Election 2021. Hence the second respondent would require about 6,00,000 eligible voters on election duty from the final electoral roll.
15. I state that under these circumstances, the under the superintendence, direction and control the District Election Officers are about to start enumerating voters on election duty from the final electoral roll dated 20.01.2021. The eligible voters of our members are about to be enumerated for voters on election duty for the election duty of election staff such as all Sector Officers, Zonal Officers, Returning Officers, Asst. Returning Offices, District Election Officers, Deputy District Election Officers, Presiding Officers, Polling Station Officers, Polling Station staff, Control Room and other election related officers, Micro Observers, all Police personnel, (Home Guards if they deployed for election duty in that district), Drivers, Conductors, Cleaners of vehicles engaged for election work, Videographers those were engaged for election work. And under the superintendence, direction and control of the first respondent the voters on election duty about 6,00,000 would be issued order of election duty.
16. I state that the voters on election duty is going to be in huge number those are going to be backbone of the respondents for conducting election which is uphill task. And duty bound in assisting to fulfil the ECI’s goal of “no voters to be left behind” by adopting some practical process to achieve 100% polling of voters on election duty. Therefore, we would like to submit some valuable suggestion and practically achievable solution to achieve 100% eligible voters made to poll as part of “no voters to be left behind”. At this time as first instances the first respondent have sufficient time to superintendence, direction and control of DEOs and ROs to prepare flawless data base of voters on election duty of our members as prescribed in Hand Book of RO in Chapter 11.15 from final electoral roll. In second instances of his superintendence, control and direction the date base shall be flawless and issue “election duty order” to our members. Third instances, the first respondent under his superintendence, direction and control issue direction to the District Election Officers and Returning Officers to make “mark” in electoral roll of voters on election duty and issue Election Duty Certificate on the basis of their “election duty order” issued by the District Election Officer to comply the great goal of the second respondent’s “no voters to be left behind” as part of free and fair election.
17. I state that then, usually the ROs finalises the list of valid candidates and print ballot sheets to fix in the Ballot Units just about maximum 5-6 days after last date for withdrawal of nominations. As per election laws/schedule there are 15 days from the last date of withdrawal of nomination and date of polling. So in first 6 days from the last date of nomination, the ROs used to complete the printing of postal ballots and fixing ballots in Ballot Units of EVMs. Then there would be about 10 days period available between polling date. The DEOs shall conclude the last and final training class prior to 6 days of polling and shall be issued Election Duty Certificate 6 days prior to the polling date instead of issuing postal ballots on silence day.
18. I state that having the second respondent already issued guidelines dated 19.01.2021 to establish additional polling stations to DEOs and second respondent also issued guidelines dated 02.02.2021 to ROs to run extra mile for collecting absentee voters’ vote such as covid19 affected, 80 plus and Persons with Disability by establishing 4 to 5 polling teams. Therefore there would be no issues that the ROs may establish 5 to 6 polling stations at the office his premises to facilitate the voters on election duty with Election Duty Certificate to exercise their franchise in EVMs in regular manner prior to the at least 2 to 3 days of regular polling by utilising the 6 days available for ROs between fixing ballot sheets in Ballot Units and date of poll. Then the ROs may at the prior date of polling can supply the EVMs and connected materials, records to the voters on election duty to reach their destinations of polling stations according to the orders allocating the polling stations by the RO. Hence there will be no printing cost, postal cost, paper wastage but giving full opportunity to them exercise their franchise and enjoy their right under Article 19(1) of constitution.
19. I state that therefore, each voters on election duty voters’ right of exercising their franchise would be fully available and the after the completion of polling, the similar process of keeping EVMs in Strong Room may be followed in a regular manner, and all the voters on election duty would be leaving to their polling stations to discharge their duty of conducting election with satisfaction of casting their votes according to their choice of candidate not of symbol or unknown candidate. This would also minimize the cost of the ECI regarding postal charges and man power. More particularly, the main goal of ECI “No voters would be left behind” and “free and fair election” would be achieved in transparent manner.
20. I state that when the second respondent have taken mammoth task of collecting each absentee voters’ vote by spending huge money and more man power to achieve its goal of no voters to be left behind, but our suggestion is very simple as no more money involved, no more man power involved, cost cutting management and less paper work in election by seeking to establish 4 to 5 polling stations to cast poll in EVMs at office of ROs for voters on election duty to exercise their franchise since they are major force as well they are back bone of the conducting elections and seeking to extend the facility given to the newly absentee voters but respondents have not applied its mind and have not considered our representation dated 30.01.2021 which directly affects our right to vote, hence this Public interest writ petition with further
a) the members of the petitioner’s association gainfully rely upon the astute separate opinion in summary of conclusions rendered by Lordship Mr. Justice P.Venkatarama Reddi J in PUCL Vs UOI dated 13.03.2003 in WP (C) No. 490/2002 as follows :
“…(V) (2) The right to vote at the elections to the House of people or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
Hence, handing over the postal ballots on silence day preceding poll day creates havoc, contrary to chapter 11.12.7 of Handbook and consequently eligible electors on election duty as defined in Chapter 11.2.3 of Handbook for Returning officer did not get their statutory right to cast their vote according to their choice of candidate, thereby affecting Article 19(1)(a) right to expression of free choice.
b) the respondents are fully aware that the present system of voting by electors on election duty has its own demerits, it was also referred in the Handbook of Returning officer, despite the admitted fact that hardship faced by election duty officials in para 5 of counter affidavit WP.No. 14420 of 2019, And Chapter 11.12.2, the valuable practical suggestion made after collecting inputs from the hundreds of teachers that the procedures issued in Chapter were not followed in letter and spirit and postal ballots were issued only on last day of training session, and one Gazetted officer has to perform his verification, and then attestation for hundreds of teachers, hence chapter 11.12.6,7, and 8 of Handbook for RO has its own defects at supervisory level, hence petitioner’s suggestion that the postal ballots voting ought to be completed prior date of polling as per the guidelines of absentee voters issued by the second respondent dated 02.02.2021.
c) since the election duty voters polled their votes in the special polling station, the RO can indicate the Postal Ballot entry in the electoral roll against the name of such electors to show that postal ballots were issued, so that duplication of voting can be prevented, and this practice is already in practice, and reaffirmed in guideline dated 02.02.2021.
d) the RO may share the list of voters to petitioner association for facilitation of smooth polling, since we are the part of election system direct connected with teachers, and they can verify and guide them properly and also may find any voters on election duty is left out.
e) the respondents have decided that voter per polling station not exceeding 1000 in numbers, hence election duty officials in every constituency needs a one polling station and 3-5 auxiliary polling station to avoid crowd and Covid-19 measures, the pre approval of 2nd respondent is necessary for creating new polling station and for auxiliary polling station, the DEO has to prepare draft list of polling station and call for objection from public, and stack holders as per 3.3 of manual of polling station issued by 2nd respondent, hence petitioner ought to be heard before finalizing the polling stations.
f) The petitioner is claiming that the Hand book of Returning officer chapter 11.2.1 (d) defines “A voter on election duty” means Polling agent, Polling Officer, or Presiding Officer, security personnel, or any other such public servant who is an elector in the constituency appointed for election duties and by reason of his being on election duty, not able to vote at the polling station where he is entitled to vote. The respondents took initiation/ facility for the absentee voters by taking several visits to each and every voter/elector should be cast their vote, as if conveying the message that every single vote is important, but on the other hand large number of identifiable electors cum voters on election duty were left out in every successive election, the unacceptable, and can be avoidable by very little effort of the respondents.
g) the Conduct of election Rules 49 provides for “Notified polling station” for polling of postal ballots prior to 15 days of actual polling, hence the respondent is bound to comply, and Rule 20 of CE Rules 1961 mandates so as to enable every single Voters of election duty to cast their vote. However the rule 20 CE rules and 1961nevver followed in election, therefore, the request for EVM’s in notified polling station also reduce the printing of ballots papers reduce environmental pollution.
h) the Rule 49-G of conduct Election prescribes the certain facilities to women voters, but this provision not at all enforced at the time of getting attestation of postal ballots, the rush and time constraint the valuable votes get wasted due to non enforcement/supervision by competent authorities.
21. I submit that we the Association involved in the welfare of Teachers, Educational policy related issues. I further submit that Association filing this writ petition in the public interest to exercise their statutory right and to take part in democracy, and earlier filed public interest litigation in W.P.No. 8082 of 2020 praying this Hon’ble court to postpone conduct SSLC exam after attaining normalcy in the State of Tamil Nadu, the was allowed on 11.06.2020. I further state that this Public interest litigation is not intended for personal gain or oblique motive and I further submit that I have filed this petition out of Association fund, Association is income tax assessee, PAN No. AAZPR6883M, I submit that to my knowledge and belief no Public interest litigation arising on the same issue has been filed by me, or pending before this Bench of the Hon’ble High Court of Madras.
It is therefore prayed that this Hon’ble court may be pleased to Ad interim direction, directing the 1st respondent under his supervisions direction, control and conduct of election to publish the data base of voters on election duty enumerated by competent authorities for forthcoming Tamil Nadu State Assembly General Election 2021 pending disposal of the writ petition and thus render justice.
It is therefore prayed that this Hon’ble Court may be pleased to issue writ or writs in the nature of Writ of Mandamus, directing the1st respondent to consider petitioners representation dated 30.01.2021 u/s 20A of Representation of people Act 1951 to issue order to the competent authorities to facilitate requisite number of Notified polling stations to the Voters on Election duty to cast their votes through EVM’s on the basis of Election Duty Order in their respective constituencies as electors/voters on election duty at least 3 days prior to polling in order to achieve motto of “No voters to be left behind” as part of free and Fair election and pass such other order or orders as that may be deem fit and proper of the facts and circumstances of the case herein for the interest of democracy.
Solemnly affirmed at Chennai
on this 2nd day of February,2021 Before me
and signed his name in my
presence. Advocate :: Chennai.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. of 2021
Tamil Nadu High – Higher Secondary School
-Graduate Teachers Association
Rep by its Founder – President
1. The Chief Electoral officer
State of Tamil Nadu
And another …Respondents
AFFIDAVIT OF THE PETITIONER
M/s. C.DURAIRAJ [2208/2010]
Counsel For petitioner