Vanathi Srinivasan. Vs. the Chief Electoral Officer. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the appellant- university on march 1, 1996 issued an advertisement for filling up the posts of deputy registrar and assistant registrar by direct recruitment. the minimum qualification prescribed for appointment as assistant registrar was as under:-respondent no.1, who was an employee of the university, made applications both for the posts of deputy registrar and assistant registrar. respondents 4 and 5 were placed in the select list at ranks iv and v respectively. on the basis of the select list, prepared by the selection committee, respondent nos. 4 and 5 were appointed as assistant registrars. 5. the writ petition was opposed by the university. it was, accordingly, submitted that respondent no.1 was ineligible for appointment to the post of assistant registrar. the division bench found and held that respondent no.1 was not eligible to be considered for the post of deputy registrar and, hence, rejected his case in so far that post is concerned. coming, however, to the post of assistant registrar, the division bench took the view that selection committee had not assigned any reason for putting respondent nos. 4 and 5 above respondent no.1 in the select list. no material has been produced before us to show that it is the selection committee which upon assessment of merit of the appellant and respondent nos. 4 and 5, found appellant was less meritorious than the respondent nos. 4 and 5. in the first place the division bench overlooked that according to the statutory eligibility criterion only a section officer or a p.a.-cum-stenographer was eligible to be considered for appointment as assistant registrar and respondent no.1 was a head assistant. the division bench seems to have overlooked that while respondent nos. 4 and 5 were at ranks iv and v in the select list, respondent no.1 was at rank xiii and by brining him at par with respondent nos. 4 and 5, the division bench clearly ignored the claims of the seven candidates who figured in between from rank vi to xii and who were above respondent no.1.1. the petitioner who is the practicing advocate, has filed this writ petition for issuance of writ of mandamus to direct the second respondent, the returning officer of mylapore constituency, to reexamine the nomination papers of the third respondent and reject the same, if the affidavit submitted by the third respondent did not disclose full and correct information with regard to the assets of the third respondent and his spouse. 2. the facts of the case lie in a narrow campus.the third respondent filed his nomination as a candidate for the mylapore constituency. according to the petitioner, the third respondent's spouse also had filed her nomination for the same constituency which was rejected by the second respondent. according to the petitioner, the nomination papers of the third respondent was also liable to be rejected on account of non-disclosure of full and correct information. it is stated that the affidavit filed by the third respondent also suffers from several discrepancies, non-disclosure, incomplete information and misinformation. it appears that the petitioner has given her objections to the second respondent on 28.03.2011 and it is stated that the second respondent is bound to consider the same and pass orders and as the second respondent has failed to pass orders it prompted, the petitioner to file this writ petition. 3. heard the learned counsels appearing for the parties.4. it is contended by the learned counsel for the petitioner that the third respondent, who was a member of parliament for many times and even functioned as union minister should be honest in disclosing the information which is given by way of affidavit and any false information or non-disclosure would interfere with the free exercise of electoral right of the voter. the learned counsel would further submit that the petitioner has loco standi to submit her objections to the nomination filed by the third respondent and pursuant to the decision of the hon'ble supreme court, the election commission had issued circular, wherein, it had mandated all candidates to give affidavit disclosing information and therefore, the second respondent should pass an order on the petitioner's objection. 5.in peoples union for civil liberties (pucl) vs. union of india,(air 2003 sc 2363) the validity of the representation of people (amendment) ordinance, 2002, was challenged. their lordships took note of the decision of the hon'ble supreme court in union of india vs. association of democratic reforms, [(2002) 5 scc 294], and observed that inspite of the said judgment, the question as to whether that the amendment to the representation of the people act, 1951, is in accordance with, what has been declared in the said judgment has to be decided. their lordships after elaborately considering the matter summarized their conclusion in paragraph 129 of the judgment. sub-para 9 of para 129 would be relevant for the purpose of this case, which reads as follows:-129.....(9) the election commission has to issue revised instructions to ensure implementation of section 33-a subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. the election commission s orders related to disclosure of assets and liabilities will still hold good and continue to be operative. however, direction 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced. (emphasis supplied)6. in view of the judgment render by the hon'ble supreme court insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination papers on the ground of furnishing wrong information or suppressing material information should not be enforced. therefore, if the prayer sought for by the petitioner is to be granted, it would be in direct violation of the direction issued by the hon'ble supreme court as referred to above. therefore, the relief sought for by the petitioner cannot be granted. 7. for the above reasons, a writ of mandamus as sought for by the petitioner cannot be granted as it is barred in terms of the decision of the hon'ble supreme court in the case of pucl vs. union of india, referred supra, and therefore, the writ petition is dismissed and not maintainable. however, there shall be no order as to costs.

Judgment:
1. The petitioner who is the practicing advocate, has filed this writ petition for issuance of writ of Mandamus to direct the second respondent, the Returning Officer of Mylapore Constituency, to reexamine the nomination papers of the third respondent and reject the same, if the affidavit submitted by the third respondent did not disclose full and correct information with regard to the assets of the third respondent and his spouse.

2. The facts of the case lie in a narrow campus.

The third respondent filed his nomination as a candidate for the Mylapore constituency. According to the petitioner, the third respondent's spouse also had filed her nomination for the same constituency which was rejected by the second respondent. According to the petitioner, the nomination papers of the third respondent was also liable to be rejected on account of non-disclosure of full and correct information. It is stated that the affidavit filed by the third respondent also suffers from several discrepancies, non-disclosure, incomplete information and misinformation. It appears that the petitioner has given her objections to the second respondent on 28.03.2011 and it is stated that the second respondent is bound to consider the same and pass orders and as the second respondent has failed to pass orders it prompted, the petitioner to file this writ petition.

3. Heard the learned counsels appearing for the parties.

4. It is contended by the learned counsel for the petitioner that the third respondent, who was a Member of Parliament for many times and even functioned as Union Minister should be honest in disclosing the information which is given by way of affidavit and any false information or non-disclosure would interfere with the free exercise of electoral right of the voter. The learned counsel would further submit that the petitioner has loco standi to submit her objections to the nomination filed by the third respondent and pursuant to the decision of the Hon'ble Supreme Court, the Election commission had issued circular, wherein, it had mandated all candidates to give affidavit disclosing information and therefore, the second respondent should pass an order on the petitioner's objection.

5.In Peoples Union for Civil Liberties (PUCL) vs. Union of India,(AIR 2003 SC 2363) the validity of the Representation of People (Amendment) Ordinance, 2002, was challenged. Their Lordships took note of the decision of the Hon'ble Supreme Court in Union of India vs. Association of Democratic Reforms, [(2002) 5 SCC 294], and observed that inspite of the said Judgment, the question as to whether that the amendment to the Representation of the People Act, 1951, is in accordance with, what has been declared in the said Judgment has to be decided. Their Lordships after elaborately considering the matter summarized their conclusion in paragraph 129 of the Judgment. Sub-para 9 of para 129 would be relevant for the purpose of this case, which reads as follows:-

129.....(9) The Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission s orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, Direction 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced. (emphasis supplied)

6. In view of the Judgment render by the Hon'ble Supreme Court insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination papers on the ground of furnishing wrong information or suppressing material information should not be enforced. Therefore, if the prayer sought for by the petitioner is to be granted, it would be in direct violation of the direction issued by the Hon'ble Supreme Court as referred to above. Therefore, the relief sought for by the petitioner cannot be granted.

7. For the above reasons, a writ of mandamus as sought for by the petitioner cannot be granted as it is barred in terms of the decision of the Hon'ble Supreme Court in the case of PUCL vs. Union of India, referred supra, and therefore, the writ petition is dismissed and not maintainable. However, there shall be no order as to costs.