Section 26 of the Representation of People Act, 1951, confers power on the District Election Officer to appoint persons irrespective of their consent as polling or presiding officers, and such a construction is in consonance with the object of the statute and purpose for which it has been enacted. The provision does not infringe the fundamental rights guaranteed under Articles 19 and 21 of the Constitution.

( 1 ) THIS Rule and a number of Writ Petitions have been heard together as they involve common questions or law. Facts are not more or less disputed though the plea raised on behalf of the petitioners that there exists such insecurity that it is not possible for them to act when appointed as Presiding or Polling Officers in the ensuing election without racing the risk to their life or personal safety is contested and denied by the respondents. All the petitioners feel themselves aggrieved by the orders passed by the respective District Election Officers under Section 26 of the Representation of People Act, 1951 (Act 43 of 1951) (hereinafter referred to as the said Act) appointing them against their will either as Polling Officer or as Presiding Officer in the ensuing election. They are all praying for an appropriate Writ for Betting aside the said orders,

( 2 ) IT would be sufficient if the facts and circumstances which led to the impugned order in the Rule itself are only set out in this decision.

( 3 ) ON January 18, 1971, the District Election Officer Howrah wrote a letter to the Divisional Accounts Officer, Eastern Railway, Howrah asking from him a list of staff of his Office who could be appointed as Presiding or Polling Officers. In answer to this letter the Divisional Accounts Officer on January 25, 1971, informed the District Election Officer that the staff serving under him have expressed their unwillingness to discharge any function as Presiding or Polling Officer in view of insecure conditions prevailing in the State. On January 28, 1971, the Divisional Accounts Officer, however, sent names of eight persons who are willing to act as such. The District Election Officer was not satisfied with the same and he on February 2, 1971, wrote a letter to the Divisional Accounts Officer threatening him with prosecution if he fails to furnish a list of all employees serving under him. It is only under this compulsion that the District Accounts Officer sent on February 5, 1971 a complete list of employees. Immediately thereafter the employees themselves made a representation to the District Election Officer intimating their unwillingness to act as Polling or Presiding Officer on the same ground as referred to in the letter dated January 25, 197 J of the Divisional Accounts Officer. In spite of these representations on February 12, 1971 an order was passed under Section 26 (1) (3) of the said Act appointing the petitioner to be the Polling Officer at Dhandoli, Police Station Shyampore District Howrah. It is this order which is the subject-matter of challenge in this Rule.

( 4 ) UNDER similar circumstances the other petitioners in the other Writ Petitions on which Rules have not yet been issued are disputing similar orders appointing them cither as Presiding Officer or as Polling Officer.

( 5 ) MR. Dutta Sharma appearing in support of this Rule and following him Mr. Sinha and Mr. Palit appearing in support of the other Writ Petitions have raised certain issues of far reaching consequences. They contend that Section 26 of the said Act gives no authority to the District Election Officer to appoint anyone cither as a Presiding Officer or as a Polling Officer except with his consent and as such the impugned orders are ultra vires the powers of the District Election Officer. Alternatively, it is contended by them that if the said provision be interpreted to confer such a power on the District Election Officer it must be deemed to be void being violative of the fundamental rights guaranteed under Article 19 and Article 21 of the Constitution. It should, however, be noted that though the petitioners in the Writ Petition had pleaded that the impugned orders infringe their fundamental rights there is no specific pleading of unconstitutionality so far as this provision of the Act is concerned and in the manner contended for by Mr. Sinha.

( 6 ) MR. Advocate-General appearing for the District Election Officer and Mr. Bose