Setback for TMC: Supreme Court dismisses plea against deploying central government staff for counting in Bengal

“No further orders are necessary…except to reiterate the statement of Senior Advocate D S Naidu that the circular dated April 13, 2027, will be implemented in true letter and spirit,” the bench said.

Senior Advocate Kapil Sibal, appearing for the TMC, pointed out that as per the circular, which is part of the ECI’s handbook, there had to be “random selection of state government and central government employees” for counting duty, but only central government employees were being deployed.

Countering this, Naidu said, “The returning officer has the overarching power and is from the state government…And everything happens under his supervision. He picks up by way of randomisation, both the counting supervisor and also the counting assistant. And we have alternated in such a way that if the first one is from the central government, the other is from the state government and vice versa.”

“Thereafter, each candidate will have his own agents. If there are 10 tables, there will be 10 agents. They will be just watching the proceedings…it’s a completely misplaced apprehension…,” he added.

‘Hardly matters whether state or central employee’

At the outset, Sibal said the circular appointing central government employees was issued to district electoral officers (DEOs) on April 13, but “we came to know of it only on April 29”. He added, “These things don’t happen. On the contrary, advance notice is given. There are meetings with the DEOs every two days. They don’t tell us anything about it.”

Sibal said, “They say they have an apprehension that in every booth in West Bengal, there is going to be trouble. Where do they get that apprehension from? This is shocking. They already have a central government nominee, micro-observer. Now they want another central government nominee, for what purpose?”

He said the circular itself said that a state government nominee should also be included. “They don’t appoint. Article 324 is not a wild horse…,” he said. Article 324 vests the power of superintendence, direction, and control of elections in the Election Commission.

“They want another central government nominee because they fear a possible irregularity. That’s pointing a finger at the state government,” the senior counsel said.

Justice Bagchi said, “All these persons, the nominees, be it of the central or the state, in discharge of their duties for counting are under the control of the Election Commission. If the Commission has total control, it hardly matters whether they are a state government or central government employees.”

On the apprehension of irregularities in counting, Justice Bagchi said, “That’s a subjective satisfaction.”

Sibal questioned why the ECI had not communicated the fact of appointment of central government employees to the state. Justice Bagchi pointed out that a circular had already been issued and there was no need to confer with political parties.

“So far as you are concerned, there is no reason of conferring with the political parties,” Justice Bagchi said. “Your counting agents will be there, counting agents of all contesting candidates will be there…and then on every table, three persons: a counting supervisor, a counting assistant, a micro-observer.”

The judge added, “Micro-observer, as per rule, will be a central government employee. So far as the counting supervisor/counting assistant may be of the central government, may be of the state government, the categories are different…When that option is open, we can’t hold that the EC notification is contrary to the regulations which say atleast one of them will be a central government employee…”.

Justice Bagchi said even if the circular were to say both the counting agent and counting supervisor were to be central government employees, “still then, we could not have faulted them because” the relevant clause “says the pool of counting supervisor and counting agent will be from Class B and Class C..of either the state government or the central government. So to choose from only one pool cannot be said to be incorrect. It’s within jurisdiction.”

No such arrangement in 4 other states: What the TMC argued

The TMC had moved the high court against a communication issued by the additional chief electoral officer on April 30 mandating that at least one among the counting supervisors or counting assistants at each counting table be a central government or PSU employee.

The TMC had argued that it was issued without any jurisdiction. The party also contended that the Election Commission has not made any such arrangement in four other states, which also went to the polls along with Bengal.

Rejecting the TMC plea, the high court had said: “It is the prerogative of the office of the Election Commission of India to appoint the counting supervisor and counting assistant either from the state government or the central government. This court does not find any illegality…”.

The high court also noted that counting is conducted under CCTV surveillance and that apart from the counting supervisor and the counting assistant, micro-observers, counting agents of the candidates contesting the election and counting personnel will also be in the counting room.

“Only the counting supervisor and the counting assistants will not be in the counting room. Micro-observers, counting agents of the candidates who are contesting the election and counting personnel will also be in the counting room. Thus, it is impossible to believe the allegation made by the petitioner,” the high court said.

It, however, made it clear that if any malpractice occurs during the counting, the petitioner would be at liberty to challenge the same in an election petition. “If the petitioner finds that during the counting, the central government employees who have been appointed as counting supervisors and counting assistants favoured the candidate of the BJP…, the petitioner has the liberty to challenge the same in an election petition,” the high court had said.