Bhooma Laxmamma Vs. State Election Commissioner and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - ashok kumar air2000sc2979 (ii) the proposition contained in clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no hearing was given provided that such challenge is made before issue of notification for holding election.orderg.s. singhvi, c.j.1. this appeal is directed against order dated 4-9-2006 passed by the learned single judge whereby he declined to entertain the writ petition filed by the appellant questioning the election of respondent no. 4 as sarpanch of the daddavada gram panchayat, komarole mandal, pakasam district.2. the main ground on which the appellant questioned the election of respondent no. 4 was that the stage-ll election officer-cum returning officer, daddavada gram panchayat (respondent no. 3) had accepted the application made by his agent for recount of the votes but without undertaking the recount, he declared the result of election.3. in the counter filed by respondent no. 3 it was categorically averred that till the declaration of result of election, no one filed any application for recount of the votes.4. on a consideration of the pleadings of the parties, the learned single judge refused to entertain the prayer made by the appellant on the ground that he has an effective alternative remedy by way of an election petition.5. we have heard sri v. mallik, learned advocate for the appellantand perused the record. in our opinion, the discretion exercised bythe learned single judge not to entertain the writ petition does notsurfer from any infirmity. rather, the view taken by him is inconsonance with the law laid down by the supreme court and this courtin a series of decisions. without burdening the judgment withplethora of judicial precedents, we may only refer to the recentdecision of the divisional bench in eppala china venkateswarlu v. secretary to government 2006 (5) alt 538 (d.b.). the division bench of which one of us (the chief justice) was a member reviewed the entire case law on the subject and laid down the following propositions.(1) the word 'election' appearing in article 243o andthe provisions contained in the 1994 act and the rules framed thereunder bears larger connotation. it embraces and includes all steps commencing from the date of notification by the competent authority, whereby the electorates are called upon to elect sarpanchas, and ward members and ending with declaration of result. reservation of offices of sarpanch and wards in favour of scheduled castes, scheduled tribes, backward classes and women, preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny of nomination papers and withdrawal thereof, publication of the list of eligible candidates, allotment of symbols, appointment of election agents, the conduct of poll, counting of votes, declaration of results and all other ancillary steps taken for the purpose of holding elections fall within the ambit of the term 'election'. n.p. ponnuswami v. returning officer, namakkal constituency : [1952]1scr218 , mohinder singh gill v. chief election commissioner : [1978]2scr272 , election commission of india v. shivaji : [1988]1scr878 and election commission of india v. ashok kumar : air2000sc2979 (2)(i) the bar contained in article 243o, which begins with non-obstante clause, debars all courts from entertaining any challenge to law relating to delimitation of constituencies or allotment of seat made or purporting to be made under article 243k or election to the panchayats. this bar also operates against the high court's power of judicial review under article 226. n.p. ponnuswami v. returning officer. namakkal constituency : [1952]1scr218 , durga shankar mehta v. raghuraj singh air 1952 sc 520, election commission of india v. shivaji : [1988]1scr878 and election commission of india v. ashok kumar : air2000sc2979 (ii) the proposition contained in clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no hearing was given provided that such challenge is made before issue of notification for holding election. state of u.p. v. pradhan sangh kshetra samiti 1995 supp. (2) scc 305(iii) the bar contained in art. 243o operates only till the adjudication on election dispute by an adjudicatory forum created by or under any law made by the legislature of the state, an order made by an adjudicatory forum constituted under the law made by the state legislature can be called in question by filing a petition under article 226 of the constitution.(3) the bar contained in article 243o operates at all stages of the election i.e., notification issued by the state election commission calling upon the electorate to elect sarpanches and ward members; reservation of offices of sarpanches in favour of scheduled castes, scheduled tribes, backward classes and women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and withdrawal thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result.(4) the bar contained in art. 243-o(b) does not operate qua challenge to the constitutionality of a statutory provision relating to elections, though, even in such a case, the high court will be extremely loath to pass an interlocutory order which has the effect of stalling or jeopardizing the process of election or which may result in the constitutional hiatus on account of indirect violation of article 243k(3) read with article 243k(1).(5) the observations made in harnek singh v. charanjit singh 2005 (7) scj 682 have to be read in the light of the law laid down by the constitution benches in n.p. ponnuswami v. returning officer, namakkal constituency : [1952]1scr218 , durga shankar mehta v. raghuraj singh : [1955]1scr267 , mohinder singh gill v. chief election commissioner : [1978]2scr272 and by three judges bench in election commission of india v. ashok kumar : air2000sc2979 (6) the high court may entertain petition under article 226 of theconstitution if the prayer contained in such petition does not have the effect of interpreting or delaying the process of election election commission of india v. ashok kumar : air2000sc2979 .6. by applying the aforementioned propositions to the facts of the case in hand, we hold that the only remedy available to the appellant to question the election of respondent no. 4 is by way of election petition and the learned single judge rightly refused to entertain the writ petition in view of the bar contained in article 243o of the constitution of india.7. in the result, the appeal is dismissed.8. as a sequel to dismissal of the appeal, wamp no. 2171 of 2006 field by the appellant for interim relief is also dismissed.

Judgment:
ORDER

G.S. Singhvi, C.J.

1. This appeal is directed against order dated 4-9-2006 passed by the learned Single Judge whereby he declined to entertain the writ petition filed by the appellant questioning the election of respondent No. 4 as Sarpanch of the Daddavada Gram Panchayat, Komarole Mandal, Pakasam District.

2. The main ground on which the appellant questioned the election of respondent No. 4 was that the Stage-ll Election Officer-cum Returning Officer, Daddavada Gram Panchayat (respondent No. 3) had accepted the application made by his agent for recount of the votes but without undertaking the recount, he declared the result of election.

3. In the counter filed by respondent No. 3 it was categorically averred that till the declaration of result of election, no one filed any application for recount of the votes.

4. On a consideration of the pleadings of the parties, the learned Single Judge refused to entertain the prayer made by the appellant on the ground that he has an effective alternative remedy by way of an election petition.

5. We have heard Sri V. Mallik, learned advocate for the appellantand perused the record. In our opinion, the discretion exercised bythe learned Single Judge not to entertain the writ petition does notsurfer from any infirmity. Rather, the view taken by him is inconsonance with the law laid down by the Supreme Court and this Courtin a series of decisions. Without burdening the judgment withplethora of judicial precedents, we may only refer to the recentdecision of the Divisional Bench in Eppala China Venkateswarlu v. Secretary to Government 2006 (5) ALT 538 (D.B.). The Division Bench of which one of us (the Chief Justice) was a member reviewed the entire case law on the subject and laid down the following propositions.

(1) The word 'election' appearing in Article 243O andthe provisions contained in the 1994 Act and the rules framed thereunder bears larger connotation. It embraces and includes all steps commencing from the date of notification by the competent authority, whereby the electorates are called upon to elect Sarpanchas, and Ward Members and ending with declaration of result. Reservation of offices of Sarpanch and Wards in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women, preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny of nomination papers and withdrawal thereof, publication of the list of eligible candidates, allotment of symbols, appointment of election agents, the conduct of poll, counting of votes, declaration of results and all other ancillary steps taken for the purpose of holding elections fall within the ambit of the term 'election'. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency : [1952]1SCR218 , Mohinder Singh Gill v. Chief Election Commissioner : [1978]2SCR272 , Election Commission of India v. Shivaji : [1988]1SCR878 and Election Commission of India v. Ashok Kumar : AIR2000SC2979

(2)(i) The bar contained in Article 243O, which begins with non-obstante clause, debars all Courts from entertaining any challenge to law relating to delimitation of constituencies or allotment of seat made or purporting to be made under Article 243K or election to the Panchayats. This bar also operates against the High Court's power of judicial review under Article 226. N.P. Ponnuswami v. Returning Officer. Namakkal Constituency : [1952]1SCR218 , Durga Shankar Mehta v. Raghuraj Singh AIR 1952 SC 520, Election Commission of India v. Shivaji : [1988]1SCR878 and Election Commission of India v. Ashok Kumar : AIR2000SC2979

(ii) The proposition contained in Clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no hearing was given provided that such challenge is made before issue of notification for holding election. State of U.P. v. Pradhan Sangh Kshetra Samiti 1995 Supp. (2) SCC 305

(iii) The bar contained in Art. 243O operates only till the adjudication on election dispute by an adjudicatory forum created by or under any law made by the Legislature of the State, An order made by an adjudicatory forum constituted under the law made by the State Legislature can be called in question by filing a petition under Article 226 of the Constitution.

(3) The bar contained in Article 243O operates at all stages of the election i.e., notification issued by the State Election Commission calling upon the electorate to elect Sarpanches and Ward Members; reservation of offices of Sarpanches in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and withdrawal thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result.

(4) The bar contained in Art. 243-O(b) does not operate qua challenge to the constitutionality of a statutory provision relating to elections, though, even in such a case, the High Court will be extremely loath to pass an interlocutory order which has the effect of stalling or jeopardizing the process of election or which may result in the constitutional hiatus on account of indirect violation of Article 243K(3) read with Article 243K(1).

(5) The observations made in Harnek Singh v. Charanjit Singh 2005 (7) SCJ 682 have to be read in the light of the law laid down by the Constitution Benches in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency : [1952]1SCR218 , Durga Shankar Mehta v. Raghuraj Singh : [1955]1SCR267 , Mohinder Singh Gill v. Chief Election Commissioner : [1978]2SCR272 and by three Judges Bench in Election Commission of India v. Ashok Kumar : AIR2000SC2979

(6) The High Court may entertain petition under Article 226 of theConstitution if the prayer contained in such petition does not have the effect of interpreting or delaying the process of election Election Commission of India v. Ashok Kumar : AIR2000SC2979 .

6. By applying the aforementioned propositions to the facts of the case in hand, we hold that the only remedy available to the appellant to question the election of respondent No. 4 is by way of election petition and the learned Single Judge rightly refused to entertain the writ petition in view of the bar contained in Article 243O of the Constitution of India.

7. In the result, the appeal is dismissed.

8. As a sequel to dismissal of the appeal, WAMP No. 2171 of 2006 field by the appellant for interim relief is also dismissed.