AO/458/2022
2023 Latest Caselaw 2764 UK

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                               A.O. No. 458 of 2022
                               Hon'ble Vivek Bharti Sharma, J.

Present Mr. A.S. Rawat, Senior Counsel assisted by Mr. Vipin Singh, counsel for the appellant.

Mr. Tej Singh Bisht, Standing Counsel for the State/respondent no.1.

Present Mr. Sanjay Bhatt, counsel for the respondent no.2, 3 & 4.

Present Mr. Nagesh Aggarwal, counsel for respondent no.5.

2. Counsel for the appellant would submit that the appellant and respondent no. 5 have submitted the nomination form to contest the election for the post of Member, Zila Panchayat, Ward No. 15, Block Jaunpur, District Tehri Garhwal; that, the appellant filed objection against the candidature of respondent no. 5 on the ground that he had not even passed the High School examination; that, the objection of the appellant was considered by the Returning Officer and rejected the candidature of respondent no.5 for the said nomination; that, as there were only two candidates and the candidature of respondent no. 5 was rejected on the objection of the appellant, therefore, the appellant was declared un-opposed.

3. Thus, feeling aggrieved by the same, the respondent no. 5 preferred a Writ Petition (M/S) No. 3756 of 2019 before this Court; that, the said writ petition was disposed by vide judgment and order dated 19.08.2020 by referring the matter to the District Magistrate, Tehri Garhwal. In compliance of the same, the respondent no.5 preferred election petition before the District Magistrate, Tehri Garwhal and the said court vide impugned judgment dated 02.09.2020 referred the matter to the District Judge, Tehri Garhwal. The District Judge, Tehri Garhwal allowed the election petition of respondent no.5 by setting aside the order of Returning Officer held the said post vacant and directed the re- election the Member from said Ward.

4. The counsel for respondent no. 5 would submit that in the impugned judgment the District Judge, Tehri observed in para 21 that vide Notification of the year 2016 issued from the Chief Minister Secretariat the validity of certificate of 10th class the Grameen Mukt Vidhyalayi Shiksha Sansthan was given and as the respondent no. 5 had passed his High School Examination from this institution in October, 2015, therefore, rejection of his candidature was not lawful.

5. Per contra, counsel for the appellant would submit that even if it is presumed for sake of argument that Notification No. 882(1)/P.P.S./C.M./2016 dated 10th March, 2016 was valid even then this notification does not give the retrospective effect of validity to all the certificate issued by Grameen Mukt Vidhyalayi Shiksha Sansthan prior to the issuance of this notifications, therefore, the impugned judgment is unsustainable in the eyes of law. Hence, this appeal.

6. In response counsel for the respondent no.5 would submit that the notification dated 10.03.2016 issued by the Secretariat of Chief Minister (supra) has to be read in conjunction with the letter no. 459/P.P.S./C.M./2015 dated 03.12.2015 (annexed at Annexure-8 to the appeal) and the letter no. Nil/P.P.S./C.M./ 2015 dated 18.03.2015.

He would further submit that Rule 14 of Uttarakhand School Education Regulations, 2009 gives the list of Education Boards those are members of the Council of Indian Education Board and in the said list, the Chhattisgarh State Open School from where the respondent no.5 has passed the High School, is listed at Serial No. 8.

7. In the light of the arguments addressed by the counsel for the parties and the documents filed with the appeal, this Court thinks that the matter certainly requires deliberations.

8. Senior counsel for the appellant would further submit that in compliance of the impugned judgment the notification for elections to the post of Member Zila Panchayat Ward No.15, Block Jaunpur, District Tehri Garhwal is issued by the Authority and election is to be held on 05.10.2023 and if the proceeding of the election is not stayed, then the appeal would be infructuous.

9. The counsel for respondent nos. 2, 3 & 4 opposed the said submission and would submit that as per law once the process of the election is started then the same cannot be stayed by any of the Court. Thus, he seeks time to place law on the said point before this Court on the next date fixed.

10. Counsel for the respondents seeks and is granted time to file objections to the stay application (IA 01 of 2022).

11. Put up on 26.09.2023 for hearing of the Stay Application (IA 01 of 2022).

(Vivek Bharti Sharma, J.) 20.09.2023 Kaushal