In Mat No. 411 of 2023- MADR HC- Division Bench of Madras High Court delivers split verdict in plea concerning rejected nominations for election of West Bengal Pharmacy Council
Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya [19-05-2023]

Read More: West Bengal Pharmacy Council v Rusha Podder

Simran Singh

New Delhi, May 26, 2023: By way of an intra court appeal, the Division Bench of the Madras High Court delivered a split verdict pertaining to the matter of where the West Bengal Pharmacy Council (authority) had questioned the correctness of the order dated 28-02-2023 in a writ filed by the respondents praying for:

1.  issuance of writ of mandamus to direct the appellants-authorities to forthwith grant a hearing of the objections raised by them vide email dated 01-01-2023
2. issue a writ of prohibition to restrain the appellant-authority from sending election papers to the electors on 09-01-2023 and 10-01-2023
3. issuance of a writ of certiorari to quash the notice dated 20-12-2022 by which the appellant council published the list of accepted or rejected candidates for the election to the West Bengal Pharmacy Council.

While the Chief Justice T.S. Sivagnanam affirmed the impugned order and was of the view that that entire election process thus far conducted was directed to be scrapped off, he also directed that the correctness of all the rejected nominations were to be considered in accordance with Rules of Rule 5(1) of the Rules for The Election of Members including the President and The Vice-President of the West Bengal Pharmacy Council and of the Members of the Executive Committee of the s[1] aid Council (Election Rules).

However, Justice Hiranmay Bhattacharya set aside the impugned order and stated that the writ court should not have embarked upon an enquiry into the reasons for rejection of nomination papers as the objection did not fall within the parameters of Rule 5(1) of the Election Rules.

Factual Matrix

In the mater at hand, on the date of the scrutiny, the respondents were not informed as to the reasons for rejection, therefore, they sent e-mail on 19-12-2022 at about 4 P.M. wherein they requested for reasons of rejection of their nomination within 24 hours. The respondents had sent another e-mail on 01-012023 stating that the reason for cancellation of their nominations was in non-compliance in respect of professional address and non-compliance of date of birth with the submitted documents since the list of documents required relating to the same had not been mentioned anywhere in Form C and all of them had already been submitted at the time of registration and therefore, it was incorrect to reject their nominations and requested that their nominations may be accepted. Since the respondents were not favoured with any reply, they had filed the said writ petition.

The impugned order stated that the rejection of the nomination of the respondents were flawed and directed the appellants-authorities to reconsider the nominations in accordance with Rule 5(1) of the Election Rules. The appellants-authorities were further directed to give effect to the final list or notice published on 20-12-2022 only after the direction was complied with. Further it was observed that since the last election of the council was held in 2007 and the tenure of office had expired in 2013, no prejudice was caused if the question of the respondents candidatures was decided within the time directed. The appellant-authorities being aggrieved by the said order had preferred the present appeal.

Issue for consideration

1. Whether the rejection of the nomination of the respondents was in accordance with the Rule 5 of the Election Rules.
2. Whether the impugned judgment was justified in allowing the objections against the order of rejection of nomination papers in an application under Article 226 of the Constitution of India.

Chief Justice T.S. Sivagnanam noted that Rule 5 of the Election Rules stated that on the date and the time as fixed for the scrutiny of nominations vide notification under Rule 2, the Returning Officer would scrutinise all the nomination papers strictly with reference to the final electoral roll and decide which of them were in order and which were not. Nomination papers which did not comply with the requirements of Rule 3 would be rejected. If there were any objection by any candidate to the decision of the Returning Officer, it must be made forthwith, and the objection would be heard by the Returning Officer and two Members of the Council, not being candidates for the election, appointed by the President and their decision thereon would be final.

Upon perusing the notification issued by the first appellant dated 20-12-2022, the Chief Justice noted that the reason for rejection of the nomination of the respondent was nonspeaking. Thus, the Court had a serious doubt as to whether the enmass rejection of 25 nominations, including the respondent’s, was apparently for certain other reasons which were best known to the people in the helm of affairs of the appellants-authority. The Bench was surprised to note that out of 35 nominations which were filed, 25 nominations had been rejected and only 10 nominations were stated to be valid.

“This trend is very anomalous and rather surprising casting a cloud on the entire process of election adopted by the appellants. I am conscious of the fact that there are several decisions of the Hon’ble Supreme Court which hold that once an election process has commenced, the same shall not be interdicted. At the same time when glaring irregularities and illegalities are pointed out, should the Court shut its eyes to reality and refuse to grant any indulgence to the aggrieved.”

Chief Justice Sivagnanam dealt with the issue of maintainability while referring to Election Commission of India v.  Ashok Kumar which had considered whether there was any conflict between the jurisdiction conferred on the High Courts under Article 226 of the Constitution and the embargo created by Article 329 and if so, how would they co-exist. The Bench was of the view that there was no absolute bar for entertaining a writ petition when exceptional and extraordinary circumstances existed which will justify the Court exercising power under Article 226 to bypass alternate remedies. “If the monstrosity of the situation or other exceptional circumstance cries for timely jurisdictional interdict or mandate, the Court should not hesitate to exercise its extraordinary power under Article 226 of the Constitution.” The Bench was of the view the respondents were fully justified in approaching the Writ Court.

Chief Justice Sivagnanam noted that when the election notice was published on 12-12-2022, the schedule of the election had been mentioned however, the publication of the list of valid nominations had not been specifically mentioned and no date and time had been notified. Further, the date on which the list of valid nomination would be published had not been mentioned in the notification which appeared to be a very serious lacuna.

Chief Justice stated that on the date of scrutiny of nomination i.e. on 19-12-2022, it was clear that some of the respondents were present but it was not in dispute that the reason for rejection of the nomination was not disclosed to the respondents or to the other 21 candidates whose nominations had been rejected. “The grievance redressal mechanism under Rule 5(1) of the Election Rules was not an empty formality. The word ‘immediate’ occurring in Sub-rule (1) of Rule 3 had to be given an interpretation based on the facts and circumstances. If the candidate whose nomination had been rejected and had not been put on notice as to the reasons for rejection could not be called upon to file their objection immediately because the person aggrieved had not been intimated as to on what grounds his nomination was rejected.”

That apart, Chief Justice Sivagnanam further noted that the Rule also stated that the objections would be heard by the Returning Officer with two Members of the Council not being candidates for election appointed by the President and their decision would be final. Thus, the Rule contemplated an opportunity of being heard, and that too in person. Thus, it was evidently clear that the people at the helm of affairs of the first appellant and the second appellant had abused their powers vested with them.

Chief Justice in fact stated that it was not clear as to how the persons whose terms of office had expired in the year 2013 continued to claim himself as President and members of the Council and in spite of the process being lingering so long, the State Government had not taken any action to remedy the situation.

Chief Justice Sivagnanam opined that the nomination was in accordance with Form C thus, there could be no ground to reject such a nomination and the reasons set out for rejection of the nomination of the respondents were clearly outside the scope of the requirements. Thus, the Court affirmed the impugned order which had allowed the writ petition and had directed the objection raised by the respondents to be considered by the Committee which was to be constituted in terms of Rule 5(1) of the Election Rules.

Chief Justice Sivagnanam was of the view that the entire election process thus far conducted, was required to be scrapped. Thus, the election process needed to be pushed back to the said date and the objections of the respondents as well as the other 21 candidates whose nominations were rejected had to be considered by the 3 Member committee.

Justice Hiranmay Bhattacharya disagreed with the reasons and the conclusion arrived at by the Chief Justice and stated that the Pharmacy Act, 1948 (Pharmacy Act) provided for a proper mechanism where any dispute arose regarding any such election, the same would be referred to the State Government, whose decision would be final.

Justice Bhattacharya made a conjoint reading of Section 24 of the Pharmacy Act and Rule 23 of the Rules made under the Pharmacy Act which stated that the power to decide any dispute arising regarding such election had been vested upon the State Government who shall exercise the jurisdiction vested upon it by the statute which conferred such jurisdiction. Section 24 used the expression “any dispute arises regarding any such election” which was a very wide connotation and necessarily implied that any dispute arising out of such election would be raised only before the authority vested with such power under the statute and in the manner and the time as prescribed under the relevant Rules. This Court had to thus, consider whether rejection of nomination could be said to be a dispute arising out of such election and the right to contest the election flowed from the said statute. Therefore, such right would have to be exercised strictly in accordance with the provisions of such statute and would be subject to the limitations imposed by it.

Justice Bhattacharya stated that sub rule (2) of Rule 5 entitled every nominee and one duly authorised representative or his proposer or seconder to be present at the time of scrutiny. The object behind insertion of such provision was to afford an opportunity to a nominee to raise an objection at the spot in case he was aggrieved by the decision of the Returning Officer. Though no time limit has been fixed for filing of objection under Rule 5(1) but the said rule used the expression ‘forthwith’.

Upon a harmonious reading of sub rules (1) and (2) of Rule 5, Justice Bhattacharya held that the objection against rejection of nomination was to be made immediately and without any delay i.e., it should be made at the spot or within a reasonable time immediately thereafter. Even if for some reason, the objection against nomination could not be made at the spot, the same had to be done within a reasonable time. Reasonable time, however, would depend on the facts of each case. In this regard it was to be borne in mind that the list of nominated candidates were to be published after the last date of withdrawal of nominations and several steps were to be undertaken thereafter in terms of the relevant rules more particularly Rule 8 thereof. Record revealed that in pursuance of Rule 8(1) of the Election Rules, the names of the nominated Registered Pharmacist was published on 27-12-2022 in the Kolkata Gazette. The authorities could not, however, be faulted for publication of the names of nominated candidates in terms of Rule 8(1).

“The objections were filed only after such publication for reasons best known to the writ petitioners. Considering the relevant dates for scrutiny of nomination; withdrawal of nomination and the publication of the names of nominated candidates, the objection filed on January 1, 2023 cannot be held to be within the reasonable time in the facts of the case on hand. Therefore, the objection filed on January 1, 2023 against the order of rejection is a highly belated one. For such reason, I hold that the objection dated January 1, 2023 cannot fall within the parameters of Rule 5(1).”

Justice Bhattacharya was of the view that the writ court should not have embarked upon an enquiry into the reasons for rejection of nomination papers as the objection did not fall within the parameters of Rule 5(1). It was not in dispute that 3 out of 4 respondents were present at the time of scrutiny. Therefore, it would be deemed that they were aware of the reasons for rejection of their nominations at the time of such scrutiny. The remaining writ petitioner, for reasons best known to him/her did not attend at the time of scrutiny. However, their request for disclosing the reasons for rejection was duly complied with. The respondents even after being made aware of the reasons for rejection did not avail of the remedies provided under the statute promptly and in the manner as provided therein. Therefore, no injustice can be said to have been done to the writ petitioner as alleged by them.

Justice Bhattacharya held that improper rejection of nomination, could not be assailed by filing an application under Article 226 of the Constitution and impugned judgement was not justified in allowing the objection against rejection of nomination while the election was in progress.

In view thereof, the impugned order was set aside and the Returning Officer was directed to conclude the election process and to publish the result within 4 weeks from the receipt of the order. The respondent nos. 1 to 4 as well as any other aggrieved person were left free to approach the competent authority as per the Pharmacy Act and the rules framed thereunder for referring the dispute in accordance with law. However, it was made clear that the Court had not entered into the merits of the objections raised against the order of rejection of nominations and the same were left open to be decided at the appropriate stage.