Kerala High Court
Returning Officer/Additional ... vs Dr. Pragalbh M.R on 21 November, 2017
Author: Antony Dominic
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939
WA.No. 2387 of 2017 () IN WP(C).35838/2017
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AGAINST THE JUDGMENT IN WP(C) 35838/2017 DATED 21-11-2017
APPELLANT(S)/1ST RESPONDENT IN W.P.(C):
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RETURNING OFFICER/ADDITIONAL SECRETARY,
OFFICE OF THE RETURNING OFFICER,
DIRECTORATE OF AYURVEDA MEDICAL EDUCATION,
ROOM NO.101, AROGYA BHAVAN BUILDING,
3RD FLOOR, PUTHENCHANTHAI,
THIRUVANANTHAPURAM-695001.
BY SR.GOVERNMENT PLEADER SRI. V. TEKCHAND
RESPONDENT(S)/PETITIONER & ADDITIONAL RESPONDENTS 2 & 3 IN W.P.(C):
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1. DR. PRAGALBH M.R.,
S/O.MITHRA KUMAR.G, PUSTHAK,VNRA 117,
PTP NAGAR, THIRUVANANTHAPURAM.
2. MIDHUN.R.G,
SAIRAM(H),NEAR DHOOMAVATHI TEMPLE,
MANNIPADY, R.D.NAGAR,KUDLU.P.O,
KASARAGOD-671 124, KERALA.
3. ABHILASH.L.S,
L.S.BHAVAN,POTTAKUZHI,PLAMOOTTUKADA.P.O 695122,
THIRUVANANTHAPURAM, KERALA.
R1 BY SRI. R.T. PRADEEP
R BY SRI.S.V.PREMAKUMARAN NAIR
R2 & R3 BY SRI.SAIJO HASSAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29-11-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sou.
Antony Dominic, Ag.CJ
&
Dama Seshadri Naidu, J
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W.A. No. 2387 of 2017
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Dated this the 29th day of November, 2017
J U D G M E N T
Antony Dominic, Ag.CJ This appeal is filed by the first respondent in writ petition No.35838 of 2017. The writ petition was filed by the first respondent herein mainly impugning the rejection of his nomination as candidate to the Central Council of Indian Medicine. As is seen from Ext.R1(a), the nomination of the appellant was rejected for the reason that his proposer and seconder were not present for scrutiny and hence according to the Returning Officer, the genuineness of the signature of the proposer and the seconder could not be verified. In the judgment under appeal, taking the view that the rules governing the election did not require a candidate to present his proposer and seconder at the time of scrutiny, the learned Single Judge has allowed the writ petition and issued directions for enabling the first respondent to contest in the election. It is this judgment, which is under challenge.
W.A.2387/17 2
2. We heard learned Government Pleader appearing for the appellants, Sri. R.T. Pradeep, learned counsel appearing for the first respondent and Sri. Saijo Hassan, learned counsel appearing for respondents 2 and 3, the proposer and the seconder.
3. Apart from the contentions on the merits of the matter, one contention raised by the learned Government Pleader was that by the publication of Ext.P2 election notification and the subsequent steps taken by the Returning Officer, the election process had commenced and that therefore, it was impermissible for the learned Single Judge to have interfered with the process of election by issuing directions enabling the first respondent to contest in the election. This contention was disputed by the learned counsel appearing for the first respondent pointing out that the learned Single Judge has not stalled the election process, but only issued directions for including the candidature of first respondent also in the election process.
4. Having considered the submissions made, we are inclined to agree with the learned Government pleader. As we have already seen, the cause of action, which led the first W.A.2387/17 3 respondent to file writ petition is the rejection of his nomination. Submission of nomination, its scrutiny and rejection are processes after commencement of election process upon issuance of the notification as evidenced by Ext.P2. The law is trite that once election process has commenced, the Courts should not entertain challenges against such process and thereby stall the election process. This is all the more so, when the statute itself provides for alternative remedies to the aggrieved, which in this case is the remedy provided under Section 4(2) of the Indian Medical Council Act. In this context, we may refer to the judgment of the Apex Court in Shaji K. Joseph v. V. Viswanath and Others [2016 (2) KHC 33 (SC), which arose out of the rejection of a nomination filed by a candidate in an election to the Dental Council of India. In that case, the writ petition was allowed by this Court and the judgment was confirmed in appeal also. However, the appeal filed before the Apex Court against that judgment was allowed and one of the reasons assigned by the Apex Court reads as under:
"14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon W.A.2387/17 4 publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of respondent no.1 for contesting the election is concerned, though prima facie it appears that respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally Courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the Courts, possibly no election would be completed without Court's order. Very often, for frivolous reasons candidates or others approach the Courts and by virtue of interim orders passed by Courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.
15. This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the Courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra)"
Therefore, in the light of the law thus laid down, we are unable to sustain the judgment of learned Single Judge. Accordingly, W.A.2387/17 5 this appeal is allowed. The judgment of the learned Single judge is set aside making it clear that it would be open to the first respondent to take recourse to the remedy under Section 4 (2) of the Indian Medical Council Act and the rules governing the same. Needless to say that any such reference made under Section 4(2) shall be disposed of on an expeditious basis.
Sd/-
Antony Dominic, Acting Chief Justice Sd/-
Dama Seshadri Naidu, Judge sou.29/11.
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