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Allahabad High Court · body

2010 DIGILAW 2259 (ALL)

SHRAWAN KUMAR v. STATE OF U. P.

2010-07-30

PRADEEP KANT, RITU RAJ AWASTHI

body2010
JUDGMENT By the Court.—Notice on behalf of respondent Nos. 1 and 2 has been accepted by the learned Chief Standing Counsel and on behalf of respondent No. 3, by Sri B.K. Singh. 2. With the consent of the parties’ counsel, the petition is being disposed of finally at the admission stage. 3. The elections of U.P. State Pharmacy Council are scheduled to take place for election of six members of the State Pharmacy Council under Section 19(a) of the Pharmacy Act, 1948. 4. The necessary notification was published on 30.4.2010, wherein the date upto which the nomination paper was to be filed, was fixed as 24.7.2010, upto 5 O’ clock in the evening. The scrutiny of nomination paper was to be done on 26.7.2010 at 11:00 a.m. and the withdrawal of nomination papers was to be done on 29.7.2010 upto 5 O’ clock in the evening. The ballot papers are to be sent between 2.8.2010 to 30.9.2010 to its members for casting their votes. The ballot papers are to be returned in the office of the Council on 21.10.2010 and the voting is to take place on 22.10.2010 from 8 O’ clock in the morning. 5. The petitioners being desirous of contesting the aforesaid election, submitted their nomination papers as per the proforma prescribed under Rule 6(3) of the Uttar Pradesh Pharmacy Rules. Rule 6(4) of the aforesaid rules prescribes as under: “6(4) The candidate shall sign the nomination paper declaring that he is willing to serve on the Council, if elected, failing which the nomination paper shall be invalid.” 6. The petitioners did not make their declaration on the nomination paper, but admittedly on the date of scrutiny of nomination papers, they have furnished their declaration on a plain paper separately, so as to comply with the aforesaid requirement of declaration. 7. The Director General, Medical & Health Services, U.P., who is also acting as President of the Pharmacy Council, directed the election officer to accept the declaration. It was thereafter, that the nomination papers have been rejected by the election officer, saying that the required declaration on the nomination form has not been given under Rule 6(4) of the Rules. 8. Dr. It was thereafter, that the nomination papers have been rejected by the election officer, saying that the required declaration on the nomination form has not been given under Rule 6(4) of the Rules. 8. Dr. L.P. Misra, appearing for the petitioners, has drawn the attention of the Court to the prescribed proforma, as given under the rules for filing the nomination papers (Form-B), which does not show any column for making any such declaration on the nomination paper itself. 9. Submission is that in the absence of any specific column being provided in the aforesaid statutory proforma of nomination paper, the candidates cannot be allowed to write anything, may be the declaration of their own and, therefore, if the petitioners had furnished the said declaration, that too before the scrutiny of nomination forms, there was no occasion for the returning officer to reject the nomination on such a ground. 10. Emphasis is also being supplied on the directions issued by the Director General, Medical and Health, who is also acting as President of the Pharmacy Counsel, who directed the election officer for acceptance of declaration. 11. Sri B.K. Singh appearing for respondent No. 3 also does not dispute that the nomination paper of a prospective candidate has to be filled in, in the given statutory proforma and that the said proforma does not show any such column for making any such declaration. 12. Sri Singh also brings to the notice of the Court that at various times, representations have been made to the State Government for amending various rules, but in the absence of any amendment being made, it was not possible to effect any change in the prescribed proforma. 13. The elections are governed by the rules known as U.P. Pharmacy Rules, 1955, which prescribe the rules for conducting the elections and have been framed under Clause (b) of sub-section (2) of Section 46 of the Pharmacy Act, 1948. 14. Rule 5(1) of the aforesaid rules says that ‘in the case of first election under Section 19(a) of the Act the Registrar of the Registration Tribunal shall act as the Returning Officer. 14. Rule 5(1) of the aforesaid rules says that ‘in the case of first election under Section 19(a) of the Act the Registrar of the Registration Tribunal shall act as the Returning Officer. In all other subsequent elections under the above said section, the President or any other person authorized by him in his behalf shall be the Returning Officer and such Returning Officer shall, some time not less than seventy days, nor more than ninety-eight days before the day on which the term of office of such members will expire and as soon as conveniently may be after the occurrence of any vacancy arising from death or in any manner as set forth in Section 25 of the Pharmacy Act, issue a precept to the electorate concerned and shall publish in the Gazette notice inviting in Form “A” the submission of nomination.’ 15. The Director General, Medical & Health Services, is acting as President and the Registrar is functioning as election officer of the Pharmacy Council under the directives issued by the Court. 16. Rule 6(1) prescribes the procedure for filling up the vacancies by the electorates, wherein sub-rule (3) specifically mandates the candidates to fill in, the nomination papers strictly in accordance with the rules on Form “B”. Rule 6(3) reads as under : “(3) Candidates qualified for election must be proposed and seconded by persons qualified as electors. The nomination paper should be in Form “B”. No elector shall propose or second the nomination of more persons than are required to fill up the vacancy or vacancies. Provided also that if more nominations than are required to fill up the vacancy or vacancies be subscribed by the same elector, all nominations subscribed by him shall be held to be void.” 17. Sub-rule (4) of Rules 6, as already observed, requires the candidate to sign the nomination paper declaring that he is willing to serve on the Council, if elected, failing which the nomination paper shall be invalid. 18. A perusal of the statutory proforma of the nomination paper shows that there is no column where the candidate’s declaration as required under Rule 6(4), can be made. 19. The language used in Rule 6(4) makes it mandatory for the candidate to give the aforesaid declaration. The consequence of his failure to give such a declaration would result into holding the nomination as invalid. 19. The language used in Rule 6(4) makes it mandatory for the candidate to give the aforesaid declaration. The consequence of his failure to give such a declaration would result into holding the nomination as invalid. If such a penal consequence is given in filling the nomination form, it is essential and rather obligatory upon the State Government to prescribe the nomination form in a manner where such a column does exist, so that mandatory requirement of rules stands complied with and the candidates do not feel any difficulty in giving such a declaration. 20. Sri B.K. Singh says that there is discrepancy in the nomination form and the Rules, therefore, if a declaration is given even separately, that is to be accepted, but such a declaration should be given alongwith the nomination form or on or before the date of scrutiny. 21. We are also informed that the election process in the State Pharmacy Council is slightly different where the ballot papers containing the names of all the candidates whose nominations have been accepted are sent to the voters and they cast their votes by postal ballot and that such a process has not yet started and rather the ballot papers are not yet printed. 22. We, in the facts and circumstances of the case and for the reasons stated above, are of the considered opinion that merely on the basis of declaration being made separately on the date of scrutiny by the petitioners, their nominations could not have been rejected by the election officer, particularly when the President himself directed that the declaration be accepted. 23. We, under the circumstances, quash the order dated 26.7.2010 rejecting the nomination forms of the petitioners. Let a writ of certiorari be issued for the purpose. 24. The nomination papers so filed alongwith the declaration shall be taken as valid nominations and the respondents shall accordingly, get the ballot papers printed with the name of the petitioners. 25. We also take notice of the argument of the learned counsel for the petitioners that the nomination papers of various candidates, which have been accepted, gave the declaration on the nomination form itself, whereas there was no such column nor any declaration, which is not provided in the prescribed form, could have been made on the form and rather such a declaration would be in violation of the statutory rules. 26. 26. Considering the aforesaid plea and for the reasons given above and on being satisfied that there is a discrepancy in the rules, which require immediate cure by the State Government, we have permitted the petitioners to contest the election and have quashed the order passed by the returning officer. 27. We have been informed by the learned counsel for both the parties, that there are some more persons, whose forms have been rejected on this very ground. 28. We, therefore, further provide that the benefit of this order would be available to all the candidates, who have submitted their nomination forms and whose nominations have been rejected solely on the ground that the required declaration was not given in the prescribed proforma, if they have furnished the declaration even separately, upto the date of scrutiny of nomination papers. In case, no such declaration has been given by such candidates till the date of scrutiny, they would not be entitled to any benefit of this order. 29. The writ petition is disposed of accordingly. 30. Before parting, we may clarify that we have not interfered with the process of election, but rather we have tried to facilitate the election by removing the aforesaid discrepancy. 31. Let a copy of this order be sent to the Chief Secretary, Government of U.P. and the Medical Secretary, U.P., so as to ensure the removal of the aforesaid discrepancy. 32. Let a certified copy of this order be supplied to the learned counsel for the parties on payment of usual charges, today itself. —————