VIJAYBHAI FULABHAI PATEL & ANR. Vs GUJARAT SECONDARY AND HIGHER SECONDARY EDUCATION BOARD & ORS

2. The petitioners have filed the present writ petition under Article 226 of the Constitution seeking following prayers.

(i) to set aside the voters'' list for the elections of Gujarat Secondary and Higher Secondary Education Board-Sanchalak Constituency Group-3;

(ii) to direct and strike-off the name of the Respondent No.3 from the voters'' list as well as the list of contesting candidates for the elections of Gujarat Secondary and Higher Secondary Education Board-Sanchalak Constituency Group-3 being dehors the principles, policy, etc.;

(iii)the Respondent No.2 not to permit the voters'' in the voters'' list for the elections of Gujarat Secondary and Higher Secondary Education Board-Sanchalak Constituency Group- 3 to vote in the elections whose names are therein the voters'' list dehors the policy and principles or in the alternative their votes may not be counted being dehors the principles and policy.

2.1 At the time of issuance of notice on 19th December, 2016, the following order was passed as regards the interim relief.

2.2 Thereafter the respondents filed their affidavit-in-reply and pleadings were completed by the parties. As recorded in the order dated 19th January, 2017, learned advocates for the parties stated that the pleadings were complete and they jointly requested to finally consider the petition.

3. The Gujarat Secondary and Higher Secondary Board is to be constituted by electing members Class B, in terms of provision of Section 3(2)(vii) of Gujarat Secondary and Higher Secondary Education Act, 1972. As per the said provision, four members shall be elected by the representatives of the management of the registered Secondary and Higher Secondary Schools which are registered either under the Societies Registration Act, 1860 or the Bombay Public Trust Act, 1950. They would from amongst themselves elect the members in the manner prescribed. The eligibility for inclusion in the list of voters is provided that though a particular trust may be running more than one school under its management, it will be entitled to only one vote through its one representative to be named for the purpose of preparation of list of voters.

3.3 The petitioners by producing the copy of the voters list on record of the petition, contended that names of the schools which are under the same management-the Trust have been repeated and therefore, more than one representatives of the Trust have been included in the list of voters and they all would cast votes. It was submitted that this would amount to duplication of voters from one Trust and would disregard the principle of one-Trust-one- representation which the yardstick to be applied for the eligible voters. It was submitted that because of this irregularity, the election result would be artificially controlled and persons who could not have been allowed as eligible voters would cast their votes.

4. The second respondent Board through its Deputy Chairman & Election Officer filed affidavit-in- reply contesting the petition and opposing the prayers. In addition to the ground that the election process had commenced, following is stated with regard to the preparation of list of voters.

(ii) After receipt of the corrected voters'' list from the offices of the District Education Officers, the corrections were affected and the preliminary voters'' list was prepared accordingly;

(iii) The preliminary voters'' list was displayed for the public at large during the period from 11th November, 2016 to 19th November, 2016 at the offices of all the District Education Officers;

(iv) A public advertisement was also published in the daily newspaper and objections were invited from the public at large;

4.1 It is the further case of the respondent that two formats were provided by the Board to the District Education Officers for providing details of the voters, firstly under communication dated 19th December, 2015 and thereafter by communication dated 02nd January,2016. The first format solicited information about the school. As there were two formats available with the District Education Officers, certain schools used the first format in which name of the Trust was not mentioned. It is stated that there are about 883 voters in all four groups of the constituencies representing school managements. It was orally stated that this is out of 1,684 Trusts.

4.2 Learned advocate for the Board submitted that adequate measures and sufficient care are taken to ensure that principle of one-Trust-one- representation is adhered to and one Trust is not permitted to cast two votes through two representatives. This submission was supported by further affidavit dated 18th January, 2017 in which it is stated as under on oath.

"the Board will allow those voters to cast their votes who will have the identification certificate with photographs issued by the District Education Officers. It is further submitted that all the concerned District Education Officers have clarified that they have noticed some duplications in the voter list but looking to the fact that as they have issued identification certificate consisting photographs to only one representative of each trust which may be running school or schools. Under the circumstances, there is no scope to cast any additional vote from the same trust. The Photo-id issued by DEO is compulsory for each voter and only one such photo-id is issued to the representative trust which may be running one or more schools. It is further submitted that at the time of voting, indelible ink on finger of the voters is used and the voter-id also has to be surrendered to the presiding officer and the same has to be sent to the officer of the Board with other election materials."

4.3 Learned advocate for the respondent Board submitted that in the election matters normally the remedy should be allowed to pursued only after the elections are over. In this regard he invited attention of the Court to sub-regulations 31, 32 and 33 in the Appendix to Regulation 5 of the Gujarat Secondary and Higher Secondary Education Regulations, 1974, dealing with the procedure for election of members of the Board. Sub-regulation 31 is about custody of ballot papers after the counting of vote is completed. Sub-regulations 32 and 33 reads as under.

33. Destruction of ballot papers. On the expiry of one month from the date of the publication of the result of the election or where the validity of an election has been challenged in a competent court on the expiry of three months from the date of the decision of the competent court, Returning Officer, shall with the previous sanction of the Board destroy the ballot papers including both those in the ballot boxes and those in the sealed packets, and other documents relating to the election."

4.4 It was submitted on the basis of the aforesaid sub-regulations which refer to the proceedings before the court after the elections are over and provide for preservation of ballot papers, etc., that it is indicative of remedy to challenge the election after the elections are over. It was submitted that petitioners may file a civil suit, if aggrieved, after the elections. Reading the aforesaid provision in light of the well settled principle that court would not interfere with the election process and that the allegations of irregularities and illegalities in the elections should be postponed to be tried after the elections, submission of learned advocate for the respondent Board has substance.

4.5 The third respondent also filed affidavit- in-reply submitting inter alia that the petitioners did not raise any objection to his candidature when opportunity is available. It was submitted on demurer that even otherwise the case of the petitioners was misplaced in asmuch as the respondent had already written to the second respondent Board on 13th December, 2016 whereby he requested to delete his name which was shown as member of B.Ed. College. It was contended that the third respondent had the eligibility and capacity to contest and his candidature was rightly accepted. It could be said that name of the third respondent figured in the voters list on the basis of which his nomination to contest the election was accepted.

5. Having considered the total facts, the contentions of the petitioners and the counter of the respondents, the case of the petitioners that principle of one-Trust-one-representation is likely to be violated in the actual voting has been refuted by the Board, by stating inter alia that voting would be allowed on the basis of the certification of the photo identity card to be issued by the District Education Officer concerned. It was emphasised with reference to what is stated in the affidavit-in-reply and in particular in the further affidavit quoted hereinabove, that the representative voter would be allowed to cast vote on the basis of photo identity card issued by the District Education Officer in which the identification of the voter would be qua the Trust he is to represent. It is also stated that the Trust concerned would issue necessary authorisation in favour of one representative chosen by it. Further that the District Education Officer would have verified such authenticity and identity, it was stated.

5.2 The dimensions of the controversy and the aspects unfolded from the case of the petitioners as countered by the respondent-Board, really takes the subject controversy to the arena in futuro. Even if taking the case of the petitioners at its face value, whether two representatives of one Trust would act as voter, in any view, is to be a prospective happening which, in any case, is rebutted by the specific stand of the Board that voting would be vouchsafed by photo identity card which would again have been issued on the basis of authorisation by the Trust to that particular person. It is not possible to pre-judge and to conclude that one-Trust-one-vote principle would not be adhered to or would be disregarded in the election in question for the constituency concerned. The writ proceedings is indeed not a proper means to adjudicate the controversy of above nature which have factual facets to be gone into which can be done only before appropriate forum at appropriate time and certainly not at this stage in these proceedings.

5.3 The entire controversy, in its ultimate analysis, therefore, projects itself in the realm of fact finding inquiry. It would be a process of fact- detection and be the matter of evidence as to whether two persons on behalf of one Trust cast their vote in the election, thereby committing breach of the voting rules. Though learned advocate for the petitioners attempted to demonstrate repetition of the name of the school, that by itself may not be an aspect to conclude that the voting would take place in breach of principle of one-Trust-one-representation because as per the say of the respondent Board the verification would be done by the District Education Officer concerned and the voters would be certified to be eligible with photo identity proof and such person would be exercising their franchise. The controversy as posed is not fit to be gone into and to be examined in the writ jurisdiction.

5.4 Summing up on the nature of controversy and the challenge to the election, the real dispute, if any, could become ripe after the actual votes are cast and being in the nature of in futuro dispute which would again be involving disputed questions of facts in its sequel to be dealt with by a fact finding adjudicatory exercise. The said aspect and consideration necessarily takes the subject matter controversy out of and away from the writ jurisdiction to travel to the sphere where the writ powers would not legitimately extend. Therefore the remedy for the petitioners has to be any other remedy to the exclusion of writ remedy.

5.5 In any case, the elections in question are underway. The only stage left in the process is casting and counting of votes. Neither the process could be interfered in the writ jurisdiction at this stage, nor the Court could prohibit the declaration of result after finally examining the controversy and upon considering the case of both the sides. It is a trite principle that elections of any body which is a democratic process, has to be allowed unhindered unless they are found to be fraught with gross or stark illegality. Such could not be said to be a case here. The remedy of the petitioners has to be a post- election remedy. The principle of non-interference by the courts in the election process has been reiterated by the Supreme Court right from the decision in N.P. Ponnuswami Vs Returning Officer [AIR 1952 SC 64] upto the decision in Shaji K. Joseph Vs V. Viswanath [(2016) 4 SCC 429] as well as umpteen number of decisions of this Court. In the facts of the present case, there is no reason why the said principle should be adhered to in the domestic process of elections to the respondent No.2 Board to allow to be concluded uninterrupted, keeping however available post-election room and remedy for redressal.

6. In the aforesaid conspectus, this petition is not entertained; however the petitioners are left with liberty to agitate for the very prayers made in this petition challenging the elections in question as well as challenging acceptance of candidature-cum- nomination of the third respondent by availing remedy post-elections. The petitioners may, after the elections are over, initiate appropriate proceedings before the appropriate forum in accordance with law for asserting and agitating their case. If such remedy is availed, the court/forum concerned would deal with and decide the same appropriately after permitting the parties to lead the evidence in the matter.

6.1 In the event the petitioners availing such remedy, rejection of this petition would not influence the said proceedings in any way. It is observed that in order to enable the petitioners to effectively avail post-election remedy initiating appropriate proceedings, in terms of Sub-regulations 32 and 33 Regulation 5 of the Gujarat Secondary and Higher Secondary Education Regulations, 1974, the respondent Board shall not destroy the ballot papers, other papers relating to voting, the result-sheet as well as the photo identity cards so as to preserve the evidence in that form.

7. With the aforesaid observations, clarification and directions, writ jurisdiction is not exercised for the prayers made in this petition and the petition is hereby dismissed. Notice is discharged. Interim relief stands vacated.

In the facts and circumstances of the case, the direction issued in order dated 19th December, 2016, more particularly in paragraph 6.1 of the said order, shall continue to operate till 27th January, 2017.