Page No.# 1/10
GAHC010041742022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1548/2022
RATUL SARMAH
S/O- LATE RATNA DEV SARMAH, R/O- PALASHBARI, WARD NO. 3,
KAMRUP, ASSAM, PIN- 781128.
VERSUS
UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC
GRIEVANCES AND PRISON, DEPARTMENT OF PERSONNEL AND
TRAINING, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI-110001.
2:THE STATE ELECTION COMMISSION
REPRESENTED BY THE COMMISSIONER
ADITYA TOWER
SECOND FLOOR
OPPOSITE DOWNTOWN HOSPITAL
G.S. ROAD
DISPUR
GUWAHATI-781006.
3:THE SECRETARY
STATE ELECTION COMMISSION
ADITYA TOWER
SECOND FLOOR
OPPOSITE DOWNTOWN HOSPITAL
G.S. ROAD
DISPUR
GUWAHATI-781006.
4:THE DEPUTY COMMISSIONER
KAMRUP
Page No.# 2/10
AMINGAON.
5:THE MAGISTRATE
PALASHBARI MUNICIPAL BOARD
MIRZA
KAMRUP
ASSAM
6:SUDHANNA CHANDRA KALITA
S/O- LATE BEJORAM KALITA
R/O- PALASHBARI WARD NO. 3
P.O.
AND P.S. PALASHBARI
DIST.- KAMRUP
ASSA
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 04-03-2022 Heard Mr. K. N. Choudhury, learned senior counsel assisted by Ms. N. Mahanta, learned counsel for the petitioner and Mr. K. Gogoi, learned Central Government Counsel for the respondent No. 1. Also heard Mr. R. Dubey learned Standing Counsel, State Election Commission, Assam for respondent Nos. 2, 3 & 5, Mr. D. Nath, learned Senior Government Advocate, Assam for respondent No. 4 and Mr. M. Biswas, learned counsel for the private respondent No. 6.
2. The State Election Commission, Assam, respondent No. 2 in exercise of the power conferred under Article 243ZA of the Constitution of India read with Sections 12-A and 26 of the Assam Municipal Act, 1956, as amended, issued Notification No. SEC.145/2019/426 dated 09.02.2022 calling upon the voters of 80 (eighty) Municipal Boards of Assam to elect Commissioners from their respective Wards, including 10 (ten) numbers of Wards of Palashbari Municipal Board notifying the Time Schedule as follows:-
Page No.# 3/10 Sl. Events Date No.
15.02.2022 (Tuesday)
1 Last Date of making nominations (11:00 AM to 03:00 PM)
17.02.2022 (Thursday)
2 Scrutiny of nomination papers (10:00 AM to 04:00 PM)
Publication of List of validly nominated
3 Candidates 17.02.2022 (Thursday)
Last Date for Withdrawal of Candidature 20.02.2022 (Sunday)
4 (11:00 AM to 03:00 PM)
Publication of List of Contesting
5 Candidates 20.02.2022 (Sunday)
06.03.2022 (Sunday)
6 Date of Poll (08:00 AM to 04:00 PM)
09.03.2022 (Wednesday)
(From 08:00 AM till
7 Counting of Votes completion of Counting
process)
3. As per the said Notification dated 09.02.2022, all the provisions of the Model Code of Conduct came into force with immediate effect.
4. The petitioner is a nominated candidate of the recognized political party BJP and he submitted his candidature for election to the post of Commissioner of Ward No. 5 of the Palashbari Municipal Board before the concerned Magistrate-cum-Returning Officer with regard to said Palashbari Municipal Board Election, 2022. Finding his nomination as a candidate of BJP being valid, the concerned Magistrate-cum-Returning Officer of the Palashbari Municipal Board Election, 2022 of District-Kamrup on 17.02.2022 notified the name of the petitioner as a lone candidate in the relevant Form-V as provided under Rule 26 (9) of the Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956 in the list of validly nominated candidates for Election to the post of Commissioner of Ward No. 5 of Palashbari Municipal Board.
5. After the notified date and time of withdrawal of candidature on 20.02.2022, the concerned Magistrate-cum-Returning Officer with regard to said Palashbari Municipal Board Election, 2022 notified the name of the petitioner in the Form-VIII as a sole candidate i.e., the list of contesting candidates for Election to the post of Commissioner of Ward No. 5 of Palashbari Municipal Board with Page No.# 4/10 allotted symbol 'Lotus' notifying that the petitioner has been elected uncontested to the election of Ward No. 5 of Palashbari Municipal Board.
6. One Sudhanna Chandra Kalita, whose nomination to the Election to the post of Commissioner of Ward No. 5 of Palashbari Municipal Board, 2022 as a candidate of regional political party AJP was rejected on 17.02.2022 by the concerned Magistrate-cum-Returning Officer of Ward No. 5 of Palashbari Municipal Board on the ground that he does not have the requisite educational qualification as provided under Section 15(1)(xiii) of said 1956 Act.
7. On 18.02.2022, said respondent No. 6 approached the State Election Commission, Assam and submitted a representation before the said authority stating that no opportunity was granted to him by the concerned Magistrate before cancelling his nomination paper. He also stated that he passed High School Leaving Certificate (HSLC) Examination (Class-X) in the year 1979 conducted by the Board of Secondary Education Assam (SEBA), thereafter, enrolled himself in the Indian Army on 11.10.1980, where he was promoted to the rank of Junior Commissioned Officer (Subedar/Clerk) and on attaining the age of superannuation, after serving in the Indian Army for a period of 28 years, he was discharged from said service on 31.10.2008. He submitted that the Government of India in the Ministry of Personnel Public Grievance and Pensions (Department of Personnel & Training) by an Office Memorandum No. 15012/8/82/Est.(D) dated 12.02.1986 specified that the Ex-servicemen, like the petitioner, who had put in 15 years of service in the Armed Forces having minimum qualification of Matriculation is considered eligible for appointment to a post for which essential educational qualification prescribed is Graduation.
8. As such, in terms of the said O.M. dated 12.02.1986 and as he had put more than 15 years of service in the Armed Forces, the respondent No. 6 claimed before the learned District Judge that on 31.10.2008, the authorities in the Indian Armed Forces issued him a Graduation Certificate considering him to be an eligible candidate for appointment to any reserved vacancy having educational qualification as Graduation. He also stated that cancellation of his nomination paper is not tenable in law and in that regard, he relied upon a judgement of the Hon'ble Punjab and Haryana High Court to show that the Graduation Certificate issued by the Indian Armed Forces shall be treated at par with a Graduation Certificate issued by any University/Educational Institution.
9. Since his said representation dated 18.02.2022 was not responded by the State Election Commission, Assam, said Sudhanna Chandra Kalita, being aggrieved with cancellation of his nomination paper as a candidate for Election to the post of Commissioner of Ward No. 5 of Palashbari Municipal Board, he preferred an appeal under Section 16(C) of the Assam Municipal Act, 1956 read Page No.# 5/10 with Rule 104-A of the Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956 as amended before the learned District Judge, Kamrup, Amingaon being Misc. Appeal No. 01/2022 narrating the same facts that he had submitted a representation before the State Election Commission, Assam.
10. In addition to the above, the said respondent No. 6 urged before the District Judge, Kamrup, Amingaon that the authorities had ignored the mandatory provisions of Sub-Section 2 of Section 15 which unequivocally provides that; where a question arises as to whether a Commissioner has become subject to any disqualification mentioned in Sub-Section 1, the question shall be referred for determination to the District Judge of the District in which the Municipality is located. Said respondent No. 6 as an appellant stated before the learned District Judge that his nomination was cancelled unilaterally without following the provisions of Section 15 (2) of the said Act making the action ultra- vires of the provisions of the said 1956 Act.
11. Said respondent No.6 before the District Judge, Kamrup also stated about the amendment of Section 15 (1) of said 1956 Act on 26.09.2019 inserting clauses (xi), (xii) and (xiii) after clause (x) in Sub-Section 1 of Section 15 of said 1956 Act.
12. Considering that Section 15(1)(xiii) of the Assam Municipal Act, 1956 as amended does not mention in respect of any exclusion of Graduation Certificate issued by the Armed Forces as well as considering the judgement of the Hon'ble Punjab and Haryana High Court in the case of Krishan Singh Yadav Vs. Union of India & others decided on 18.02.2020 and also considering the provisions of Section 15(2) holding that the matter was neither referred to the District Judge nor the said appellant respondent No. 6 herein was heard before rejection of his candidature, the learned District Judge, Kamrup, Amingaon by order dated 24.02.2022, passed in said Misc. Appeal No. 01/2022 while admitting the same and issuing notice to the respondents therein, in the interim, directed the respondents to allow the appellant, Sudhanna Chandra Kalita to contest the ensuing Municipal Election as a candidate in Ward No. 5 of Palashbari Municipal Board to be held on 06.03.2022 on the basis of his nomination, fixing 03.03.2022 for service report and objection.
13. Being aggrieved with the said order of the learned District Judge, Kamrup, Amingaon dated 24.02.2022, passed in Misc. Appeal No. 01/2022, the petitioner i.e., candidate of Election to the Ward No. 5 of Palashbari Municipal Board who was declared as Elected Uncontested notifying in Form-VIII on 20.02.2022 by the concerned Magistrate of Palashbari Municipal Board Election, 2022, preferred this writ petition praying amongst others for issuance of writ of Certiorari setting aside the impugned order dated 24.02.2022 and also for issuance of Mandamus directing the respondents to forthwith Page No.# 6/10 recall/rescind/cancel and/or forbear from giving effect to the impugned order dated 24.02.2022 with interim prayer to suspend/stay the operation of the said impugned order dated 24.02.2022.
14. Petitioner has placed a copy of the Gazette Notification dated 04.09.2019 regarding the Assam Municipal (Amendment), Act, 2019 relating to amendment of Section 15 inserting clauses (xi), (xii) and (xiii) after clause (x) in the Sub-Section 1 of said Section 15 of the said Assam Municipal Act, 1956.
15. Petitioner submitted that the Graduation Certificate issued by the Indian Armed Forces to the respondent No. 6 herein is to be considered only in cases where there is a reserved vacancy for ex- servicemen requiring educational qualification of Graduation. But the same cannot be considered for any other purpose, including for the purpose of election to the Municipal Board since the said respondent does not have a valid and requisite Class XII (10+2) or equivalent examination passed Certificate from any Council or Board recognised either by the State Government or by the Central Government.
16. In this regard, the petitioner by placing the Notification No. 15012/8/82-Est (D) dated 12.02.1986 of the Government of India, Ministry of Personnel, Public Grievance and Pensions (Department of Personnel & Training) submitted that the said Graduation Certificate issued by the Indian Armed Forces relates to re-employment of ex-servicemen in Central Civil Services and Posts where there is reserved vacancy in Group-C post, who has put in not less than 15 years of service in the Armed Forces of the Union may be considered eligible for appointment to the posts for which the essential qualification prescribed is Graduation.
17. Petitioner also submitted that once a notification is issued by the State Election Commission declaring election, any dispute including alleged improper rejection of nomination paper can only be challenged by way of election petition after declaration of result. Though, the 1956 Act and the Rules framed thereunder provide a remedy to an aggrieved candidate to challenge rejection of nomination paper before the forum envisaged therein but in terms of Article 329 (b) read with Article 243 ZG(B) under Part XV and Part IXA respectively of the Constitution of India where such recourse is impermissible.
18. Petitioner also brought to the notice of the Court that the Additional Deputy Commissioner, Kamrup, Amingaon by its communication No. KEL.9/MB Election/2020/Pt. dated 15.02.2022 wrote to the Secretary of Assam State Election Commission seeking clarification about the Graduation Certificate issued by the Indian Armed Forces declaring the said Certificate as a qualification certificate for appointment in Graduate Post and whether the said certificate can be considered as a Graduation Page No.# 7/10 Certificate for the purpose to contest Municipal Election and to file nomination as a candidate in that regard. In response to the same, the Secretary of Election Commission, Assam by communication No. SEC.145/ 2019/Pt./144 dated 17.02.2022 informed the Deputy Commissioner, Kamrup, Amingaon that the Graduation Certificate issued by the Indian Armed Forces cannot be treated as a Graduation Certificate as sought for by the letter dated 15.02.2022 as the same is applicable for a specific purpose only and it cannot be treated as Graduate equivalent for all purposes. On the basis of said clarification dated 17.02.2022 of the State Election Commission, Assam, the concerned Magistrate of Palashbari Municipal Board Election, 2022 by a speaking order dated 17.02.2022 rejected nomination paper of the respondent No. 6 Sudhanna Chandra Kalita as a candidate for contesting Municipal Board Election 2022 from Ward No. 5 of Palashbari Municipal Board holding that the Graduation Certificate issued to him by the Indian Armed Forces, submitted along with his nomination paper, cannot be considered as minimum Educational Qualification Certificate required for contesting the Municipal Board Election.
19. Mr. Choudhury, learned Senior counsel appearing for the petitioner relied on the judgement of the Hon'ble Supreme Court in the cases of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in (1978) 1 SCC 405 and State of Goa & another Vs. Fouziya Imtiaz Shaikh & another reported in (2021) 8 SCC 401.
20. Mr. M. Biswas, learned counsel for the private respondent No. 6, i.e., the appellant who preferred the said Misc. Appeal No. 01/2022 before the Court of learned District Judge, Kamrup, Amingaon raised the question of maintainability and in that regard, relied on the Judgment of the Hon'ble Apex Court in the cases of Nagar Rice & Flour Mills and others Vs. N.Teekappa Gowda & Brothers and others reported in (1970) 1 SCC 575 as well as Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & others reported (1976) 1 SCC 671.
21. Mr. Biswas, also placed the copy of the judgment passed by the Hon'ble Punjab and Haryana High Court in the case of Krishan Singh Yadav Vs. Union of India & others decided on 18.02.2020 and also a judgment of the Hon'ble Supreme Court in the case of Sansar Chand Atri Vs. State of Punjab and others reported in (2002) 4 SCC 154 relating to the Graduation Certificate issued by the Indian Armed Forces for those who are Matriculate and have served 15 years and above in the Indian Armed Forces and with regard to reservation of post for ex-servicemen, Mr. Biswas, has also placed the para relating to injustice from the Maxwell on Interpretation of Statues.
22. Mr. Biswas, submitted that the provisions of Section 16 (C) of the Assam Municipal Act, 1956 as amended read with Rule 104-A of the Rules for the Election of Commissioner of Municipal Boards Page No.# 8/10 under the Assam Municipal Act, 1956 allows any such aggrieved whose nomination has been rejected by the Magistrate/Returning Officer of the concerned Municipal Board Election to prefer an appeal before the District Judge, which is a valid provision and is still in force and not under challenge in any forum. As such, Mr. Biswas, submitted that the impugned order dated 24.02.2022 passed in Misc. Appeal No. 01/2022 by the learned District Judge, Kamrup, Amingaon that is preferred by the present respondent No. 6 does not call for any interference and this writ petition is not maintainable and should be dismissed.
23. Mr. Dubey, learned Standing counsel, State Election Commission, Assam placed before the Court that the stand of the State Election Commission, Assam regarding the certificate of Graduation issued by the Indian Armed Forces to the respondent No. 6 has been clarified by the said authority in its letter No. SEC.145/ 2019/Pt./144 dated 17.02.2022, noted above and that the said Graduation Certificate issued to the respondent No. 6 cannot be considered for any other purpose except for re- employment of ex-servicemen to any reserved vacancy under the relevant Rules of the re-employment of ex-servicemen where the essential qualification prescribed is Graduation and where the said ex- servicemen is only a Matriculate and has put 15 years of service in the Armed Forces.
24. Mr. Dubey, learned Standing counsel, Election Commission, Assam also placed that as on date, the provision of Section 16 (C) of the Assam Municipal Act, 1956 is in force and that said Misc. Appeal No. 01/2022 preferred by the respondent No. 6 is pending before the District Judge, Kamrup, Amingaon and by its order dated 03.03.2022, it is now fixed on 15.03.2022 for submission of objection of the respondents and or hearing. Mr. Dubey, placed reliance of the judgment of the Hon'ble Bombay High Court (Nagpur Bench) in the case of Vijaykumar Maniklal Bang Vs. Maharastra and others reported in 1997 (1) MH.L.J. 637.
25. Considered the judgements and other relevant documents submitted by the parties as well as the provisions of the Constitution of India and the Assam Municipal Act, 1956 and Rules framed under it.
26. Section 15 of the Assam Municipal Act, 1956 was amended by the Assam Municipal (Amendment) Act, 2019 where in the Sub-Section 1 of said Section 15 after clause (x), new clauses
(xi), (xii) and (xiii) have been inserted by Notification No. LGL.125/2003/123 dated 04.09.2019 by the State Government in the Legislative Department and the said Notification dated 04.09.2019 was published in the Assam Gazette Extraordinary on 04.09.2019 itself. Section 15 (1) (xiii) of said 1956 Act reads as follows:-
15. Ineligibility for election. - (1) No person shall be eligible for election as Page No.# 9/10 Commissioner of a Municipal Board if such person -
(xiii) Has not passed the Class XII or equivalent examination under any Council or Board recognised by the State or the Central Government, as the case may be: Provided that in the case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Back Ward Classes (MOBC), the minimum educational qualification shall be HSLC or equivalent examination passed under any Board or Council recognised by the Central or the State Government, as the case may be.
27. As per Section 15 (1) (xiii) of said 1956 Act, a general candidate shall be eligible to contest Municipal Election if he or she passed Higher Secondary (10 + 2) Examination under any Council or Board recognised by the State or the Central Government, as the case may be. However, the said qualification is relaxed in case of the candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and More Other Back Ward Classes, where the minimum educational qualification is only HSLC (Class X) or equivalent examination passed under any Board or Council recognised by the Central or the State Government, as the case may be.
28. Respondent No. 6 is only a Matriculate and he belongs to general category. But due to his service in the Armed Forces for 15 years and more, the Indian Armed Forces issued him Graduation Certificate in terms of the Government of India in the Ministry of Personnel Public Grievance and Pensions (Department of Personnel & Training) issued by the Office Memorandum No. 15012/8/82/Est.(D) dated 12.02.1986 that pertains to a statutory Rule under Article 309 of the Constitution of India namely, the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 whereby Rule 6 of the said 1979 Rules, was amended by the Ex-servicemen (Re- employment in Central Civil Services and Posts) (Amendment) Rules, 1986 inserting Sub-Rules 4 & 5 in the said Rule 6 and further, Rule 6(A) had been inserted after Rule 6 considering eligibility of an Ex- servicemen who is a Matriculate and rendered not less than 15 years of service in the Armed Forces of the Union for appointment to any reserved vacancy in Group-C post for which the educational qualification prescribed is Graduation and where (a) work experienced of technical or professional nature is not essential or (b) though non-technical professional work is prescribed as essential yet the appointing authority is satisfied that the ex-servicemen is expected to perform the duty of the post by undergoing on the job training for a short duration.
29. As such, said Graduation Certificate issued by the Indian Armed Forces relates to the Ex- servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 only and respondent No. 6 could not place anything regarding application of the said Graduation Certificate issued by the Indian Armed Forces as applicable for other statutory provisions including Section 15(1)(iii) of the Page No.# 10/10 Assam Municipal Act, 1956.
30. The provisions of Section 15 (2) of the said 1956 Act, stipulates that - if any question arises as to whether a Commissioner has become subject to any disqualifications mentioned in Clause (i) to (ix) of Sub-Section (1) the question shall be referred for determination to the District Judge of the District in which the Municipality is located.
31. Section 3(5) of the said 1956 Act, defines - " The Commissioner" means the person for the time being appointed or elected to conduct the affairs of any Municipality under that Act.
32. In the case in hand, the respondent No. 6 is not yet a Commissioner as defined under the 1956 Act since he is neither appointed nor elected till date and further as on date, Clauses (xi), (xii) and (xiii) of Sub-Section (1) of Section 15 of said 1956 Act have not been inserted after Clause (i) to
(ix) of Sub-Section (2) of Section 15 of said 1956 Act by way of any amendment. Therefore, the said respondent No. 6 cannot take any advantage under the provisions of Section 15(2) of said 1956 Act.
33. Except making a submission that Section 16(C) lost its efficacy being not amended within the specified time as specified in the Constitution of India, there is no challenge to the provision of Rule 16(C) of said 1956 Act, in this petition.
34. Further, the District Judge, Kamrup, Amingaon is yet to pass a final order in said Misc. Appeal No. 01/2022.
35. Considering the above, this Court in exercise of its writ jurisdiction, is not inclined to interfere with the order dated 24.02.2022 passed by the learned District Judge, Kamrup, Amingaon in said Misc. Appeal No. 01/2022 preferred by the respondent No. 6 herein, which is pending before the said Court for necessary adjudication.
36. However, it is made clear that the learned District Judge, Kamrup, Amingaon while disposing of the said Misc. Appeal No. 01/2022 preferred by the respondent No. 6, shall pass its own independent order, without being influenced by any such observation made herein above.
37. For the reasons above, this writ petition stands dismissed.
JUDGE Comparing Assistant