A challenge to an improper rejection of nomination in connection with an election process under Rule 5(1) of the Election Rules is amenable to challenge in a writ petition under Article 226 of the Constitution of India. The objection raised by the writ petitioners regarding the rejection of their nominations falls within the parameters of Rule 5(1) and the reasons therefor can be enquired into by the writ court.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The appeal appears before this Court on reference for resolution of a difference of opinion between the two Hon’ble Judges of the Division Bench which decided the appeal. By the Order dated February 7, 2024, two points of reference were formulated as follows:

i. Whether the challenge to an improper rejection of nomination in connection with an election process can be the subject-matter of challenge in a writ petition;

ii. Whether the writ court can embark upon an enquiry into the reasons for rejection of nomination papers as in the present case, as the objection does not fall within the parameters of Rule 5(1).

2. The appeal arises from an Order passed by the learned Single Judge in WPA No. 509 of 2023 whereby the learned Single Judge upheld the challenge to the refusal to entertain the writ petitioners’ objection to the cancellation of their nominations by the appellant no. 2, the Registrar of the West Bengal Pharmacy Council (for short, “the Council”). While allowing the writ petition, the learned Single judge was pleased to direct the Registrar of the Council, that is, appellant no. 2 herein to reconsider the nominations filed by the four writ petitioners (who are respondents in the appeal) in accordance with the Pharmacy Act, 1948 and the Rules framed under the said Act for the election of members including the President and the Vice-President of the Council and of the members of the Executive Committee of the said Council, including Rule 5(1), within a period of three weeks from the delivery of the judgment. Consequential orders were also passed.

3. The Presiding Judge of the Division Bench, that is, the Hon’ble the Chief Justice dismissed the appeal by scrapping the entire election process thus far conducted and restoring the same to the stage where the scrutiny of nominations was conducted. While affirming the order of the learned Single Judge, the Hon’ble the Chief Justice also directed the Observer to be nominated by the Government to ensure that the entire election process is conducted in a free and fair manner without any irregularity or complaints. It was directed further that not only the correctness of the rejection of the nominations of the writ petitioners should be considered but also that such of those 21 nominations which were rejected, whoever files objection, is required to be considered by the Committee in terms of Rule 5(1) of the Election Rules. Further consequential directions were also passed.

4. The learned junior member of the Division Bench, however, allowed the appeal, directing the Returning Officer (RO) to conclude the election process and publish the result as expeditiously as possible but positively within four weeks from the receipt of the server copy of the order. While doing so, the learned Judge observed in paragraph 53 of the judgment that in his considered view, the writ court should not have embarked upon an enquiry into the reasons for rejection of nomination papers as the objections do not fall within the parameters of Rule 5(1) in view of the observations made by him.

5. Secondly, it was held that the improper rejection of nomination cannot be assailed by filing an application under Article 226 of the Constitution of India and the learned Single Judge was not justified in allowing the objection against rejection of nomination while the election was in progress.

6. Learned senior counsel appearing for the appellants, that is, the Council and its Registrar argues that Rule 5(1) of the Election Rules provides that if there is any objection by any candidate to the decision of the RO while scrutinizing the nominations, it must be made forthwith, and the objection shall be heard by the RO and two members of the Council, not being candidates for the election, appointed by the President and their decision thereon shall be final. Thus, thrust is laid on the expression “forthwith”. Since no specific time has been stipulated to qualify the expression “forthwit