P L D 1984 Lahore 1 (PLP)

34(1) The election of any candidate shall not be called in question except by means of an election petitioner, which shall state clearly the nature of the objection and be presented to the Returning Officer within ten days of the declaration of result.

38. In case any day fixed by Part II of these Statutes for any purpose happens to be a University holiday, the day next following shall be considered to be the day fixed for that purpose and the programme for preparation of Electoral Rolls be adjusted accordingly.

3. Now the factual background of the controversy may be stated. The Registrar (Returning Officer) issued notification, dated 13‑5‑1983, specifying the dates for submission of enrollment forms, publication of preliminary electoral rolls, objections thereto, publication of final electoral rolls as well as submission of nomination forms and the date of poll etc. This schedule was revised vide notification, dated 14‑6‑1983. Under the revised schedule the dates for giving the notice inviting nomination papers, for receiving nomination papers, affixing the names of the nominees, scru tiny, affixing the list of validly nominated candidates, withdrawal of candidature, despatch of nomination papers and the election were changed. The dates fixed for other purposes were the same as the notifi cation itself was issued on 14‑6‑1983. It may be noted here that the date of receiving nomination papers was 11th September, 1983 and the date of scrutiny and the date for affixing the list of validly nominated candidates, outside the Registrar's Office was 17th September, 1983 as per the revised notification The other important dates of the schedule may be reproduced: ‑ Sr. No Subject Date

1. Date of issuing notice notifying dates of enrollment and election 19thMarch, 1983

2. Last date for receiving application forms for enrolment 12th April, 1983

3. Publication of Preliminary Electoral Rolls 26th April, 1983

4. Last date for filing of claims and objections 7th May, 1983

5. Last date for disposal of claims and objections, by the Registrar 14th May, 1983

6. Intimation of change of address 17th May, 1983

7. Last date for submission of applications for revision of orders of the Registrar under 5 above 24th May 1983

8. Last date for disposal of applications for revision of Registrar's orders by the Revision Committee 4th June, 1983

9. Publication of additions to and deletions from the Preliminary Electoral Rolls 7th June, 1983

4. The petitioner as well as respondent No. 2 submitted their respective forms for enrolment to the Registrar, respondent No.

1. The relevant columns of the enrolments form filed by the petitioner read as under‑ Length of service ... 7 years 5 months. Designation ... Lecturer. College ... Lahore College. These entries of the form of respondent No. 2 read as under: ‑ Length of service 17 years (15+2 years service in C. B. Colleges, Rawalpindi). Designation ... Vice‑Principal (Professor). College ... Queen Marry College. Respondent No. 2 was transferred and posted as Principal Government College for Women, Samanabad, Lahore w. e. f. 6th April 1983, vide a Notification, dated 30‑3‑1983, of the Education Department, Government of the Punjab. Respondent No. 2 admittedly took over the charge of the Principal on the said date but intimation of the same was not given to the Returning Officer, despite the fact that the last date for receiving application form for enrolment was 18‑4‑1983; last date for intimating the change of address was 17‑5‑1983, and the last date for publication of additions and deletions from Preliminary Electoral Rolls was 7‑6‑1983. Even the petitioner did not file objections in this regard before the Registrar though the objections could be filed by 7‑5‑1983, and the last date for revision of the orders of the Registrar en the claims and objections was 24‑5‑1983. The case of the petitioner is that she was not aware, on the said dates, of the fact that respondent No. 2 had been promoted and posted as Principal. It was asserted that an objection to the nomination papers was, however, sub mitted to the Returning Officer on 17‑9‑1983, at 8 a.m. at his residence but the same was not heeded to. As against this the case of the Returning Officer was that the said objection was presented to him at his residence at 12 noon but by that time the list of validly nominated candidates had been issued and affixed. Both sides have filed affidavits in support of their respective assertions and so the time by which the objection was filed has become a matter of dispute. Another objection to the nomination paper of respondent No. 2 was also received but the same, it was asserted, was received after the issuance of the aforesaid list. Learned counsel for the peti tioner further submitted that 17‑9‑1983, having been declared a holiday, the scrutiny of the nomination papers was in fact undertaken or should have been undertaken on the next opening day, i.e. 20‑9‑1983, in view of the provisions contained in para. 38 of the Statute reproduced above. It was further pointed out that 11th of September, 1983, was the date fixed for receiving nomination papers but as the said day was a public holiday, the nomination papers were received also on the next opening day i.e. 12th of September. It was asserted that in order to deprive the petitioner of the seat to which she has become entitled, the position was male fide taken that the list of validly nominated candidates was issued on 17‑9‑1983, and that too before receipt of objections filed by the petitioner. It was submitted by the learned counsel for the petitioner relying on the affidavits filed that no list was affixed on 17‑9‑1983, and that the acceptance of nomination papers of respondent No. 2 was male fide and that the petitioner is being illegally required to contest the poll. These allegations were denied vehemently on behalf of respondent No. 1 by pointing out that on coming to know that respondent No. 2 had been posted as Principal, the Returning Officer (respondent No. 1) addressed a letter on 20‑9‑1983, informing the respon dent No. 2 that even if she chooses to contest the election to one of the seats meant for teachers she will be liable to be removed from the said seat under section 11(6)(iv) of the Punjab University Act, 1973, and that she will be contesting the said seat of the Academic Council at her own risk and subject to the operation of the provisions of law and the result of the Election petition, if filed. On the above premises it was argued that the allegation of male fide is not only unfounded but is also uncalled for. Then allegation of mala fide even otherwise is without substance as the particulars needed for establishing mala fides of statutory functionaries have neither been given nor the assertions contained in the affidavits are sufficient t prove allegation of mala fides. Even otherwise the stance taken by respon dent No. 1 before me would show that the action of acceptance of the nomi nation paper was not male fide. It was submitted by learned counsel for respondent that the Returning Officer was not in a position to recall his order accepting the nomination paper as the list of validly nominated candidates had already been issued in ignorance of the fact that respondent No. 2 had been promoted and posted as Principal vide Notification, dated 30‑:‑1983, as neither the petitioner nor the respondent had informed the Returning Officer of the said fact before issuance of the aforesaid list. It was added that as stated in letter dated 20th September, 1983 of the Returning Officer the respondent No. 2 is contesting the election at her own risk and that in case she succeeds she will be liable to be deseated and removed from the member ship of the Academic Council in view of the provisions of section 11(6)(iv) of the Act. Learned counsel argued that in view of the posting of respon dent No. 2 as Principal the Vice‑Chancellor would be duty bound in view of the provisions of section 15 of the Act to move for the removal of respondent No. 2 from the membership and the Chancellor would also be under legal obligation to remove her from the membership under section 11 of the Act. Lastly he submitted that the remedy of election petition being available to the petitioner this Court ordinarily is not inclined to interfere in exercise of Constitutional jurisdiction.

5. The contentions of the learned counsel for respondent No. 2 may be summed up: ‑ (i) The alternate adequate remedy by way of election petition being available under para. 34 of the Statutes, the Constitutional jurisdiction cannot be allowed to be invoked; (ii) the determinative date for seeing the eligibility of a candidate for the election to fill the seat of six Principals and 6 Teachers provided by clauses (xi) and (xii) of subsection (1) of section 27 is the date of filing application form for enrolment as the entries of electoral roll are final in view of the fact that under para. 17 of the Statutes the particulars to be given in the nomination paper are to be the same as appear in the Electoral Roll. Elaborating this submis sion it was argued that as per para. 14 of the Statutes any person whose name appears in the Rolls is entitled to be elected and that no further qualification need be possessed by the candidate and that the Returning Officer cannot go into the validity or otherwise of the entries of a final Electoral Roll; (iii) the posting of a teacher as a "Principal" merely brings about a change in the functioning of a person and such change of‑ the func tions need not be intimated as at any later date the said person may again be retransferred and posted as a teacher. It was argued that posting as Principal is not promotion as the posts of lecturers and principals are interchangeable and fall in the same Grade of pay (iv) the provision relating to change of address contained in the Election Statutes is directory and not mandatory and omission to intimate the change of address cannot be visited with any penalty. The address to be intimated in the application for enrolment has to be one of the place at which the applicant normally resides or carries his works or teaches. The change in the address if not intimated will not be of any consequence as under para. 23 of the Statutes the ballot papers are to be despatched not at the address given in the enrolment form which is then incorporated in the Electoral Roll but at the address given in the Register of Teachers and Principals. According to the learned counsel such a Register is being maintained independently and separately of the Electoral Rolls by the Registrar of the University. The failure to intimate the change of address, according to the learned counsel was inconsequential; (v) no provision exists in the Statute for filing objection to the nomina tion papers. The scrutiny to be conducted by the Returning Officer is a unilateral affair and a candidate is not to be given a hearing and that the only ground on which nomination paper is to be rejected is that the particulars given in the nomination paper do not tally with the entries of Electoral Roll.

6. I propose to deal first with the submission regarding applicability or otherwise of section 11(6)(iv) and the objection as to non‑maintainability of the constitution petition. As regards the submission that respondent No. 2 if elected would be liable to be removed under section 11(6)(iv) of the Act, it was submitted by the learned counsel for respondent No. 2 that such an eventuality may not arise as the respondent No. 2 by then may be transfer red from the post of Principal and posted as a Professor in another College, and that in any case this power of removal is to be invoked in the case of a member who has "ceased to hold the qualification" after being elected and as such this provision is not attracted to a case of pre‑election dis qualification. It is true that distinction has to be made between pre‑election disqualification, or total want or absence of requisite qualification or loss of qualification during election or after the election. The question whether the provisions of clause (iv) of subsection (6) of section 11 apply only to the post, election disqualification or loss of requisite qualification, need not be examined in this case as this question does not directly arise here. For the purposes of this case it is sufficient to observe that admittedly‑the power available under the aforesaid provision has not yet been exercised and the fact that such a power exists in law fails to furnish sufficient reason for refusing relief to the petitioner, as in any case the petitioner cannot admit tedly be declared elected under the aforesaid provision.

7. Coming to the objection as to non‑maintainability of the constitution petition as alternate remedy of election petition is provided by Statute 34, it is pertinent to recapitulate that it was conceded on behalf of the Return ing Officer that respondent No. 2 was not and is not qualified to contest the election against the seats meant for the teachers of the affiliated Colleges as she has been posted as a principal and that the Returning Officer has no power to intervene as that the fact of posting of respondent No. 2 as a Principal was known after acceptance of the nomination papers and issuance of the list of validly nominated candidates. Thus, the failure to act and to declare the petitioner as having been elected unopposed is due to the reason that the Statute do not provide for rejection of the nomination papers which have been once accepted. In other words it stands indirectly conceded that the petitioner though has a right to be declared as having been elected, cannot be so declared as the Statutes do not contain neces sary provision for conceding the said right. Even according to the learned counsel for respondent No. 2, the entries of the Electoral Rolls, being final and binding the validity or otherwise of these entries cannot be gone into by the Returning Officer. It may be noted here that there is no specific provision in the Statutes to the effect that the Election Rolls are final or that the corrections made therein after the voters have been called upon to elect shall not be taken into consideration till the election is over like the one w find in sections 20 and 23 of the Electoral Rolls Act, 1974 or in section 18 o the Punjab Local Government Ordinance, 1979. Despite the absence o such a specific provision, the scheme contemplated in paras. 3 to 14 read with para. 17 of the Statutes can only be achieved if the Electoral Rolls finally published are treated as final for the purposes of a given election. What is the extent of the finality so attaching and in which sense the Electoral Rolls are final? These aspects will be examined and answered at the appropriate stage hereafter. At this stage, it may, however, be added that under the Election Laws, the effect of finality so attaching to the Electoral Rolls is that if objection to any entry in the Rolls is not taken under the rules and the Electoral Rolls had become final then the Election Tribunal stands precluded from enquiring into the question of his possessing the qualification as a voter, Reference may be made to Syed Aminuddin Chowdhry v. The Election Tribunal, Chittagong and others (P L D 1968 S C 235), a case relating to objection on the ground that successful candidate was not entitled to be enrolled as a voter in a particular Unit. In the instant case also the objection is similar, i.e., respondent No. 2 having been posted as Principal since 6‑4‑1983 was not qualified to be enrolled as a teacher and his name should have appeared in the Elecoral Rolls of the Principals. I am also aware of the rule laid down in Rashid Ahmad Rahmani v. Mirza Barkat Ali and others (P L D 1968 S C 301) wherein the Tribunal went into the question of correctness or otherwise of Election Roll in a case where Registration Officer's Order including a name in Electoral Roll was patently and manifestly against the provisions of rules and beyond the powers of the said Officer. The Supreme Court upheld the said order observing as under It will suffice to say that this is one of the extreme cases where the Tribunal, for justice and fairplay and in public interest has set aside the election because the Registration Officer in violation of his statutory duty amended the final electoral roll and the authorities concerned declined to exercise their jurisdiction in the matter. In these circumstances, the Tribunal was justified to act in aid of justice and to give relief to the appellant. To hold that though the voter has a right to claim that the Registration Officer should perform his statutory duty, yet he has no remedy in the situation that has arisen would amount to denial of statutory right to him. Such a proposition cannot be accepted. No doubt, in the Statutes the grounds on which the election of a returned candidate may be called into question in an election petition have not been given but the principle laid down in the above‑cited precedents may apply. This question may also be left open for consideration in an appropriate case. For the purposes of considering the question of maintainability of the petition, it may be noted that in the case in hand the Returning Officer was faced with a situation which is not provided for, by the Statutes. Does that mean that the petitioner should be denied the right, if otherwise under the Statutes a right has accrued to her? It was argued that the petitioner is entitled to be declared elected unopposed on account of the fact that on being posted as a principal, respondent No. 2 who had filed the nomination paper remained no longer qualified either to be enrolled as a teacher or to be elected against the seat reserved for the teachers. If this contention is accepted then refusal to intervene at this, juncture would amount to denying the statutory right of the petitioner. Moreover, the relief which is sought by the petitioner in this constitution petition might not be available to her in the election petition. It is also well‑settled that though a candidate may be unseated by reason of his disqualification, the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. The petitioner may not, therefore, get the relief which is sought by her in this petition. It will, therefore, be seen that the remedy of election petition provided by the Statutes cannot be considered to be an1r adequate remedy for the purposes of the petitioner. The constitution petition filed by the petitioner in view of above cannot be considered to be not also seek support from the observations made by maintainable. I may also seek support from the observation made by Hamoodur Rehman, J., in the case of Presiding Officer v. Sadruddin Ansari and another (P L D 1967 S C 569). These observations read as under: ‑ Though Article 98 of the Constitution has been couched in every wide terms it may safely be assumed that it incorporates within it orders or directions in the nature of those which could have been issued under the prerogative writs of mandamus, prohibition and certiorari. So far as these writs are concerned, the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discre tion to interfere where there is another "adequate and specific legal remedy competent to afford relief upon the same subject‑matter". It has been often said that a relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such a remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdiction it is necessary, as observed by Ferris in his book on Extra ordinary Legal Remedy (page 247) that the other remedy must be both specific and adequate in the sense that it must be "competent to afford relief upon the very subject‑matter of the application and be equally convenient, beneficial and effective. Again, the question of rejection of nomination papers was agitated before this Court in constitution jurisdiction and the necessary relief was afforded in the case reported in Sharif Husain v. Iqbal Ahmad, Registrar, University of the Punjab (P L D 1975 Lah.974) In the circumstances of the present case and for the reasons given above the preliminary objection is repelled.

9. The pivitol question in this case is whether respondent No. 2 possessed the requisite qualifications to contest for one of the seats reserved for the six teachers of affiliated Colleges under clause (xii) of subsection (1) of section 27 of the Act. According to the learned counsel for respon dent No. 2 as per para. 14 of the Statute a person, whose name appears in the Electoral Roll of the teachers is eligible to be elected to the said seat and that no other qualification has been provided for in the relevant law. This contention is devoid of substance. No doubt para. 14 of the Statute provides that no person shall be qualified to vote or to be elected at any election held under these Statutes unless his name is on the Electoral Roll but that is not the only qualification required for being elected as member of the Academic Council. Section 27(1)(xii) provides for the other qualifica tions which the candidate must also possess. This clause may be repro duced 27(1) The Academic Council shall consist of (xii) six teachers of affiliated colleges, having at least five years, service in an affiliated college, other than the Principal to be elected by the teachers of all such colleges from amongst themselves, of whom at least one shall be from professional colleges and one from the women's colleges. This clause read with para. 14 of the Statutes leaves no room for doubt, that entry of the name of a candidate in the Electoral Roll is not sufficient to entitle him to be elected to one of the seats of teachers and that only those teachers whose name appear in the Electoral Roll and who have served fort the required number of years in the affiliated college are to offer them selves for election to any of the six seats and the election to these seats of teachers is to be restricted to the teachers of the affiliated colleges. More over, out of these six seats of teachers, at least one is to go to the profes sional colleges and one to the women's college. It may further be noted that for enrolment of the name in the Electoral Roll, length of service is not one of the prescribed conditions as para. 3 of the Statute provides that a list of all teachers containing their respective dates of appointment, the name of the college of which the applicant for enrollment is a teacher, is to be main tained. As against this only those teachers of the affiliated colleges can con test the election who have five years service to their credit and whose names appear in the Electoral Roll on the day of filing the nomination papers. It will, therefore, be seen that in that sense the entries of the Electoral Roll are not final and that the Returning Officer is under legal obligation to reject the nomination papers if a candidate is not possessed of the requisite qualifications. Moreover, the very perusal of clauses (xi) and (xii) of sub section (1) of section 27 of the Act shows that principals of affiliated colleges' "teachers of the affiliated colleges" have been treated as a class separate from each other for filling the said 12 seats. The words "other than principals" used in clause (xii) leave no room for any doubt whatsoever. It will further be noted that expression "teacher" defined in the Act as well as in the Statutes means: Professors, Associate Professors, Assistant Professors and Lecturers engaged whole‑time by the University or by a college but the scheme and the legislative intent contained in sections 23, 25 and 27 of the Act obviously treats the teachers of the rank of Professors/Associate Professors/ Associate Professors and Lecturers of the Teaching Department of the University and the principals and teachers of whatever status and ranks of the affiliated colleges each, as belonging to district and separate category for the purposes of membership of the Senate, the Syndicate and the Academic Council. The argument that a professor may be appointed at one point of time as a Principal of an affiliated College and at other as a teacher in an affiliated College and that these posts are interchangeable is of no conse quence. The position of posting and appointment as Principal or as a teacher other than principal is to be seen and the election for these seats is to be restricted to the respective categories as otherwise the whole scheme of the constitution of these authorities would stand violated. The eligibility provision contained in para. 14 of the Statute cannot be interpreted to have conferred such a finality to the Electoral Roll which may have the effect of rendering the provisions of the Act and the Statutes redundant or ineffec tive. The entries of the Electoral Rolls even where declared to be final, the finality so attaching to the entries in the Electoral Rolls is to be confined to the object and to the purpose for which the Electoral Roll is prepared, namely, to confer the right to vote. See Muhammad Tufail v. Muhammad Salim and others (PLD 1967Kar. 104), Sirujul Islam Khan v. Akram Mondal (PLD 1969SC5) and Riaz Muhammad Khan Mazari v. Murid Hussain and others (1980 S C M R 548). It has been demonstrated above that the entry in the Electoral Roll qualifies a person to exercise the right of vote but that alone is not sufficient for being elected if the other prescribed qualifications are wanting. The Electoral Roll prepared under the Statute as such is neither sacrosanct nor it can be contended that as the name appears in the Electoral Roll the candidate must be taken to have possessed the requisite statutary qualifications. The provisions of para. 10 of the Statute which provides for intimation of the change of address is also not without purpose. It will be seen that in the application form for enrolment information is to be given in the relevant columns about the length of service, the designation and the college where the applicant is serving besides the address at which the ballot‑paper is to be sent. The ordinary dictionary meaning of the term "Designation" is as follows: ‑ Statement of profession, trade, residence for the purpose of identification. Again, the form prescribed for nominating the Principal and Teacher is one and the same, and in this prescribed nomination form "Designation" of the person nominated is to be indicated. The respondent No. 2 did not score out the word "prin cipal" from the form and in the column of "Designation" she described herself as a "professor". Now the term professor in the context of the provision of the Act and the Statutes fails to convey the correct information. The term "professor" in the ordinary parlance is used with reference to teacher of highest rank in specific faculty or branch of learning; one who holds a chair in a University or one of its colleges. A teacher may be a Professor or Associate Professor or Assistant Professor. Again Professor may be a Principal or may not be a principal. The column of designation provided in the application form for enrolment and the nomination paper is meant to convey the information that the person applying and the person pro posed and nominated belongs either to the category of "principals" or to the "Teachers other than Principals". Had the respondent No. 2 been specific in replying the relevant column of the nomination papers and had she given the true information that on the day of filing the nomination papers she was a Principal, her nomination paper was bound to be rejected. It may be pointed out that in the application form for enrolment she while replying the designation column wrote as under : Vice‑Principal (Professor). The entry of Professor against the designation column in the nomination paper was improper as in the final Electoral Rolls published the word Professor was not included. The Returning Officer in all fairness should have sought the necessary explanation. Again respondent No. 2 admittedly took over the post of Principal, on 6‑4‑1983. She even failed to intimate the change of address by the due date i.e. 17‑5‑1983. She cannot be allowed to reap any benefit out of her own fault or omission to, intimate her changed address in compliance with the provisions of the Statute and the Schedule of Election. She cannot likewise be allowed to contend that the Electoral Rolls published are sacrosanct, final and binding on the Returning Officer as well as the petitioner, the other candidate, as no penalty has been provided for failure to intimate the change of address and that the provisions of the election laws are always held to be directory and not mandatory. It is apparent that had the respondent No. 2 given the intimation of change of address she would have been enrolled as a principal and not as a teacher. It was argued that the word "address" wherever used in the Statutes means either place of residence or the place where a person teaches and this address is to be furnished for the purpose of dispatching ballot‑papers and that' due to failure to intimate the changed address, no prejudice was caused or has resulted as the ballot‑papers are to be despatched in view of the provisions of para. 23 of the Statutes at the address given in the Register of teachers and principals being maintained separately by the Registrar of the University i. e. the Returning Officer. Firstly, the contention that a separate register of addresses of teachers and principals is being maintained is factually incorrect. On enquiry it was clarified that no such register of the addresses of teachers and principals is being maintained by the Returning Officer and that only the Electoral Roll prepared under the Statute which contain the addresses is being maintained. Even otherwise the word "Register" used in para. 23 of the Statute is not to mislead any one as according to the Oxford Dictionary the word "Register', amongst others means:‑ a list; catalogue; as the name of certain officials of authoritative records or books of record, e. g. (d) of those entitled to vote in Parliamentary or Municipal Elections. Electoral list thus prepared can rightly be called Register of teachers and principals of the affiliated Colleges. In this Electoral list though no separate column of "Designation" has been provided for yet under the "column of address" in the case of principals the entry of "principal" has been recorded against every such name alongwith date of ap pointment. The column of address of the Electoral Roll as such is important as it indicates whether a person enrolled is a principal or a teacher other than principal though one common Electoral Roll has been prepared for both the categories of teachers. For all the reasons above, I am of the considered view that respondent No. 2 is not qualified to be elected to fill any of the seats of six teachers provided for in clause (xii) of subsection (I) of section 27 of the Act. The absence of requisite qualification is apparent and as such accepting the petition it is hereby declared that respondent No. 2 is not entitled even to be proposed or nominated for election to any of the said seats of the Academic Council. The failure to reject the nomination paper of the respondent No. 21 for want of knowledge of the actual state of affairs cannot entitle her to participate in the election.

10. The obvious result of the above declaration is that the petitioner is the only validly nominated candidate for the aforesaid seat of the Academic Council provided under section 27 (1) (xii) of the Act and resultantly the Returning Officer is hereby directed to give effect to the above declaration and to act in accordance with the provisions of para. 20, clause (ii) of the Statute and to declare the petitioner to be elected to the said seat of the Academic Council of the University. In the facts and circumstances of the case the parties are left to bear their own costs. M. Z. M. Petition granted.