Non-compliance with election notice requirements is not always fatal; absence of demonstrated prejudice can render such provisions directory rather than mandatory.

1. Challenge in this petition is to the order dated 23-7-2013 (Annexure P - 1) passed by respondent No. 1 allowing the application filed by the private respondents under S.24 of the Pharmacy Act, 1948 (for short the "Act of 1948") calling in question the election of the members of the Chhattisgarh State Pharmacy Council where the petitioners herein were also elected as such.

2. Facts of the case in brief are that as per S.19 of the Act of 1948 in every State there would be a pharmacy council consisting of six members, elected from amongst themselves by registered pharmacists of the State. Vide order dated 16-2-2012 passed by the State Government one Dr. R. R. Sahni, Joint Director, Health Services was appointed as returning officer for conducting election of 6 members of Chhattisgarh State Pharmacy Council as provided under S.19 (a) of the Act of 1948. On 04-5-2012 vide Annexure P - 2 a notification for election was issued giving the complete election programme and pursuant thereto election was held on 18-6-2012 followed by counting being done on 20-6-2012. After counting, all the petitioners were declared elected as members of the State Pharmacy Council. In the meanwhile, notification dated 4-5-2012 was challenged by respondents 4 and 6 herein in Writ Petition No. 1107/2012. However, as during pendency of the said writ petition the election had already taken place, the petition was withdrawn with liberty to file an application before the State Government under S.24 of the Act of 1948 challenging the election of the petitioners. Before the State Government three elections petitions were filed - first by respondents 4 and 6 namely Manohar Kumar Jethani and Kesharmal Agrawal; second by respondent No. 5 namely Vasudev Jotwani and the third by respondent No. 7 namely Kamal Chandrakar. In their election petitions various ground were taken by the respondents including that of violation of R.20 of the Pharmacy (MP / CG) Rules, 1978. According to the private respondents, the returning officer had issued the notification on 4-5-2012 whereas term of the outgoing body was to expire on 5-6-2012 and therefore as per the requirement of the Rules the notification was not issued 60 days prior to expiry of term of the outgoing body but it was issued just 30 days prior to the said term.

3. After hearing the preliminary arguments of the private respondents, vide order dated 23-7-2012 the respondent No. l has declared the election of the petitioners as null and void solely on the ground that there was non compliance of the mandatory provisions of R.20(i) of the Rules and that the notification was not issued 60 days prior to the expiry of term of the outgoing body and it is this order which is under challenge in this petition.

4. Counsel for the petitioners submits as under : -
(i) that the provisions of R.20(1) of the Rules, 1978 are not mandatory and are merely directory in nature and therefore, non - compliance of the said rule will not vitiate the entire election;
(ii) that ever if the notification has not been issued prior to the stipulated period of 60 days, it will not vitiate the election as no prejudice has been caused to anyone and ultimately, the election has been successfully conducted by the Returning Officer;
(iii) that the notification has been issued by the Returning Officer, who was not within the control of the members of the Pharmacy Council and present is not a case where any allegation has been made against the Returning Officer for not issuing the notification prior to the stipulated period of 60 days;
(iv) though in the imp