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HC rejects petition of dismissed Asst Prof whose paper for Lok Sabha election not accepted
4/21/2024 10:31:23 PM
Early Times Report
JAMMU, Apr 21: Justice Sindhu Sharma of Jammu & Kashmir and Ladakh High Court dismissed the petition of Abdul Bari Naik dismissed Assistant Professor who was dismissed by J&K Govt interest of the security of the State, seeking direction to Election Comission of India to accept his form to contest Lok Sabha Election from Rajouri-Anatnag Seat.
The petitioner seeking direction to the respondents to accept the candidature of the petitioner after completion of all the requisite formalities and consequently allow the petitioner to contest as independent candidate for upcomingAnantnag-Rajouri Parliamentary seat 2024."
The contention of the petitioner is that he is an activist having strong and robust background of having served the people of Jammu & Kashmir for last so many years. He being actively involved in public life is desirous of contesting the upcoming parliamentary elections 2024 from Anantnag-Rajouri Parliamentary seat as an independent candidate. The respondent No. 3 has not accepted the candidature of the petitioner despite completion of all requisite formalities. It is submitted that the petitioner was dismissed from services vide order dated 30.04.2021, and although he has assailed the order of dismissal before the Central Administrative Tribunal, Srinagar Bench, this dismissal is a ground for rejecting the candidature of the petitioner for contesting the upcoming parliamentary elections 2024 from Anantnag-Rajouri Parliamentary seat.
It is averred that the petitioner was conveyed verbally by the respondent No. 2 that since his services are terminated by the Government, therefore, he is to furnish a certificate from the respondent No. 1 as per Section 9 of The Representation of the Peoples Act, 1951. The petitioner, thereafter, filed a detailed representation before respondent No. 1 on 23.03.2024, and the respondents have asked the petitioner to appear before them on 04.04.2024.
The petitioner appeared on the scheduled date along with requisite record but respondents have not taken any decision on the same. The petitioner, thus, seeks indulgence of this Court to allow him to submit his nomination papers, as according to him, he is eligible to contest the elections as there is no bar under any provision of law to disentitle him from contesting the elections. The requirement of certificate under Section 9 of The Representation of the Peoples Act, 1951 would come into force only after the scrutiny of his nomination papers, when the respondents can reject the candidature of the candidate. and it is only then the respondents can reject the nomination papers of the petitioner. The respondents have singled out the petitioner by not accepting his nomination paper for vexatious reasons.
During the course of hearing counsel for Election Commission of India, Mr. M.I. Dar submits that they have considered the representation of the petitioner for issuance of certificate under Section 9 of The Representation of the Peoples Act, 1951 and this request of the petitioner was not accepted by the Commission in view of the fact that his dismissal from the service was by invoking Article 311(2) of the Constitution of India relating to the interest of the security of the State. Copy of the same is placed on record. The petitioner was communicated the decision on 16.04.2024, but he has not brought this fact to the notice of the Court on 18.04.2024.
Sr. AAG Mohsin Qadri, appearing on behalf of respondents UT submit that the authorized representative of the petitioner had taken two forms from the Returning Officer i.e. respondent No. 3, but these forms have not been submitted till date, therefore, there the question of not entertaining the nomination form does not arise at all. It is further submitted that the petitioner was dismissed from service as such his nomination paper was to be accompanied by a certificate issued in the prescribed manner by Election Commission and he would not be a duly nominated candidate unless his nomination was accompanied by a certificate issued by the Election Commission under Section 9(2) of the Act.
Adv Jehangir Dar, counsel for respondent Nos. 2 &3 has also raised a preliminary objection to the maintainability of the writ petition. He has submitted that since the election process has already started, the same shall not be called in question except by election petition as there is bar for interference of the courts in electoral matters. Reliance has been placed on the constitutional bench judgment in case titled "N.P. Ponnuswami Vs. Namakkal Constituency and others", AIR 1952 SCC 39 and submitted that the writ petition for filing nomination paper is not maintainable.
He notification for election of parliamentary seat of Anantnag-Rajouri was notified by respondent No. 3 vide notice dated 12.04.2024. As per the notification issued by respondent No. 3, the candidates were to file their nomination till 19.04.2024 to the Returning Officer or the Assistant Returning Officer. The scrutiny of the nomination papers as well as withdrawal would take place on 20.04.2024 and 22.04.2024.
The respondents have raised the issue regarding maintainability of the writ petition. The electoral process, admittedly, has already started with the publication of the notification dated 12.04.2024 and the last date for filing nomination was 19th of April 2024. It is well settled that if the election process has started the only course open is to file an election petition and the court has no power to interfere with the election process.
Justice Sindhu Sharma after hearing both the sides in length observed that the question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out latter, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, it any, are rectified, there will be no meaning in enacting a provision like article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting view may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it."
Justice Sindhu Sharma further observed that the petitioner, thus, was aware that he been dismissed from the office was disqualified for a period of five years of the dismissal till he provides a certificate from Election Commission that he has not been dismissed for corruption or disloyalty to the State. That is precisely why the petitioner made a representation and even appeared before the Election Commission. The petitioner, however, did not reveal the rejection of his application when the matter was taken up for consideration on 18th and 19th of April, 2024.
The Election Commission having rejected the request of the petitioner, as such, the petitioner was not a duly nominated person in terms of the Act and his nomination papers even if he had presented the same could not be accepted. Justice Sindhu Sharma further observed that in view of the law laid down above, this writ petition is not maintainable and this apart, otherwise also, there is no merit in the same. In view of the aforesaid facts and circumstances, the writ petition is dismissed both on the grounds of maintainability as well as on merit.
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