Case: Madhuker G. E. Pankakar Vs. Jaswant Chobbildas Rajani &amp; Ors

The first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President of the Basscin Council (and the third raises virtually the same point but refers to the bhibendi Municipal Council) under the Maharashtra Municipalities Act, 1965 (the Municipal Act, for short) has led to long and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and harmonizing and illumining which, by interpretative effort, has drained us of our faith in the blessings of simplicity, certainty and consistency in Indian codified law. We may pardonably, but hopefully, permit ourselves by way of constructive criticism of perfunctoryproliferating source ofit was oncea Code, all our troubles and cares would magically vanish. The law, codified, would become stable, predictable and certain. The rules of law, purified, would be accessible to, and understood by, not only the legal establishment of bench and bar but the people asGrent E. Gilm orelaw, codified, has proved to be quite as unstable, unpredictable, andthe common law, uncodified, had ever been. The rules of law, purified, have remained the exclusive preserve of the lawyers; the people are still very much in our toils and clutches as they ever were if not moreby H. R. Hahlo in Codifying the Common Law: ProtractedLaw. Rev. January 1975, p. 23,law has necessarily to be Statutory, but a code can be clear in its scheme and must be such thatelections should become the rule. Legislative nemesis, in the shape of ambiguity induced litigation is a serious political misfortune in the area of elections where lay men go to the polls and peoples verdicts get bogged down in court disputes, attended with desperate delays. Some intelligent care at the d rafting stage, some vision of the whole scheme in the framers, will reduce resort to legal quarrels and appellate spirals so that the time consumed in this Court in resolving conflicts of construction in comparatively less important legislations can be spared for more substantial issues of general public importance.Civil Appeals Nos. 1315 and 1316 ofShri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri Samant, a voter in that municipal area, made common cause and filed two election petitions challenging the declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality ofresume of relevant facts sufficient to appreciate the contentions may straightway be set out. We are confining, as suggested by counsel, to the twin appeals relating to Bassein since the fate of Bhibandi must follow suit. Three candidates, including the two already mentioned, had filed nomination papers on October 21, 1974 for the presidential election of the Municipal Council. At the time of the scrutiny which took place two days later, no objection was raised to the nomination of Dr. Parulekar by anyone and, on the withdrawal of the third candidate within time, there was a straight fight between the appellant and the first respondent. The poll battle which took place onfound the appellant victor and he was so declared. The frustrated first respondent and his supporter, 2nd respondent, challenged the return of the appellant by separate election petitions under s. 21 of the Municipal Act. The sole ground on which the petitioners were founded was that Dr. Parulekar, the returned candidate, was disqualified under s. 16(1) (g) of the Municipal Act, the lethal vice alleged against him being that on the date of nomination he was holding an office of profit under the Government, as he was then, admittedly, working as a panel doctor appointed under the Employees State Insurance Scheme (acronomically, the ESI scheme), a beneficial project contemplated by the ESI Act, 1948. Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11, 1974. Thus, before the actual polling took place, but after the nomination, he had ceased to be on the ESI panel. Another circumstance which may have some significance in the overall assessment of the justice of the case, although of marginal consequence on the law bearing upon the issues debated at the bar, is that the appellant has been a councilor of the aforesaid municipality since 1962 and he has also been a doctor on the ESI panel throughout the same span of years and no one has chosen to raise the question of disqualification on this score up till the 1st respondent fell to his rival and had no other tenable ground of attack. Necessity is the mother of invention and the respondents, aided by the cute legal ingenuity, may be, dug up the disqualification of office of profit and, indeed, wholly succeeded before the Election Tribunal, the Joint Judge of Thana. The Trial Judge not merely voided the appellants elect ion but declared the 1st respondent President since he was the sole surviving candidate. This order of the Joint Judge has been assailed before us in the two appeals, after securing leave under Art. 136.Three main contentions have bee n urged before us by Shri Bhatt, counsel for the appellant, which we will formulate and deal with one by one, although on the merits the most formidable issue is as to whether figuring in the medical list under the ESI scheme amounts to holding an office of profit under Government. With a view to get a hang of the major plea, it is necessary to study the scheme of the ESI Act, even as to get a satisfactory solution of the other two points we have to gather the ensemble of provisions dealing with disqualification of candidates and the triple remedies provided in that behalf by the Municipal Act. The discussion, to be put in proper focus, requires formulation of the submissions of counsel, the foremost in importance an d intricacy being whether a doctor on the Medical List made by theof the State holds an office of profit within the meaning of s. 16(1) (g) of the Municipal Act. Next in the order of priority is the question whether a petition for setting aside an election of President on the ground of disqualification for being a councilor is permissible under s. 21 of the Municipal Act in view of the special provision in s. 44 of the said Act and the rules regarding objections to nominations and appeal there from framed under that Act. The last question which, in a sense, is interlinked with the earlier one is as to whether, assuming the appellant to be disqualified, the first respondent can be declared the returned candidate or President,the necessity for a freshelected, as it were, through the judicial constituency of discretionary power.

Reasoning:
We cannot equate it with the post of a peon or security gunmen who too has duties to perform or a workshop where Government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for Legal Aid to the Poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadeo fit into a legal scheme. In the former, an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside office of profit. It was a casual engagement, not exalted to a permanent position, occupiedby A or B. In Mahadeo, a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted the offices oflike standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discernedas in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable towith a governmentalsquarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons insocial projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium ofunder our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose heCourts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods oflaw, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate betweenthe light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Electionthe present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.