V.D. Misra, C.J.
1. The Indian Medicine Central Council Act, 1970 (the Act) provides for the constitution of the Central Council of Indian Medicine under Section 3, Sub-section (1) of Section 3 empowers the Central Government to constitute a Central Council by a modification in the official gazette consisting of members mentioned therein Clause (a) empowers the Central Government to determine the number of members not exceeding five in accordance with First Schedule 'for each of the Ayurveda, Siddha and Unani system of medicine.' from each State in which a State Register of Indian Medicine is maintained. The members are 'to be elected from amongst themselves by persons enrolled on that Register as practitioners of Ayurveda Siddha or Unani, as the case may be', The Central Government, has determined that one member representing Ayurveda and one member representing Unani system of medicine for the State of Himachal Pradesh are to be on the Council. The elections are to be held in accordance with the Indian Medicine Central Council (Electron) Rules. 1975. Dr. P. N. Chaturvedi, Director of Ayurveda. Himachal Pradesh, (respondent No. 2). has been appointed as the Returning Officer by the Central Government for conducting the elections in this State.
2. The Returning Officer issued a notice of elections in terms of Rule 7 fixing the date, time, and place for the receipt of nomination papers and their scrutiny despatch of voting papers to the voters, the pos the scrutiny, and the countering of votes. This notice is Annexure-A. The nomination papers were required to be submitted to be Returning Officer either personally or by registered post so as to reach him before 3 P.M. on 10.5.1983. The scrutiny was to be done at 11 A.M. on 11.5.1983. A candidate could withdraw his candidature by notice in writing signed by him and delivered to the Returning Officer within seven days of the scrutiny of the nomination papers. In the event of contest, ballot papers to the electors were to be sent by most by the Returning Officer by14-6-.1983. The date for the poll was fixed for 14-7-1983. The scrutiny and counting of votes was to commence in the office of the Returning Officer at 11 A. M. on 16-7-1983. Only those candidates who fulfilled the qualifications laid down in Section 5 of the Act could contest.
3. The petitioners and some others duly filed their nomination papers On scrutiny only the nomination papers of the petitioners were found in order for the election of one member from amongst the practitioners of Ayurveda system of medicine. Now instead of holding the election the Returning Officer adopted a novel procedure. He wrote a letter (Annex B) to respondents Nos. 4 and 5 and others on 11-5-1983 informing them that their nomination papers were not valid since either the proposer or theseconder were not enrolled on the Register as 'practitioners of Ayurveda but were enrolled as practitioners of Unani. Each addressee was informed that he was given a chance to submit his fresh nomination papers up to 16.5.1983 at 11 A. M. and that the scrutiny would fee done the same day at 3 P. M. They were also informed that nomination papers of the present petitioners had been found to be in order. Fresh nomination forms were sent to each one of the addressee. The result was that respondents Nos. 4 and 5 sent their nomination papers. Respondent No. 3. who had not filed his nomination paper earlier, now decided to file it. He as well as respondent No. 4 filed their nomination papers before 16.5.1983 and these ware accepted. Respondent No. 5 is stated to have filed his nomination paper on 17-5-1983, which was also accepted. Now the result was that whereas only two nomination on papers of the petitioners were found valid according to the notice issued under Rule 7, three more candidates, that is respondents Nos. 3, 4 and 5, were also allowed to contest the election. The petitioners have filed this writ petition Challenging the candidature of respondents Nos. 3 to 5.
4. Excepting the Union of India and the Returning officer, respondents Nos. 1 and 2 , no one has filed the return. The Returning Officer has explained the position in detail. It is stated that five nomination papers for Ayurveda seat and one for Unani seat were received. It was noticed that persons enrolled as practitioners of Unani had either proposed or seconded the candidates for Ayurvedaseat and vice versa. The candidates were supplied a copy of the election rules which did not say that members are to be elected by the practitioners from amongst themselves in each system of Indian medicine. Therefore, 'it was considered that the error on the part of the candidate had occurred probably for want of knowledge. Keeping in view this fact Shri Dhani Ram Sharma and Shri B.D. Sharm for Ayurvedic seat and Shri Daulat Ram Bharaj for Unani seat were given a chance to submit fresh nomination papers by 11.00 A. M.on 15-5-1983 and the date of the scrutiny of nomination papers was fixed or the same day at 3.00 P.M. This was done in the interest of giving justice to all and also in the interest of State.' This is said to have been done in the exerciseof hte powers vested in the Returning Officer under Rule 6. It is also submitted that respondent No. 5. Shri Braham DuttSharma had in fact submitted his nomination papers within the extended date and not on 17-5-1983. The nomination paper of respondent No. 3. Dr. Surinder Kumar Sharma, who had filed it for the first time, was accepted : 'simply for the reason that the time for filing revised nominations had already been extended for respondents Nos. 4 and 5 and for Sim Dault Ram Bharaj for Unani seat.'
5. Obviously the Returning Officer is quite innocent about the sanctity of law and the rules regarding the elections. Had he studied the rules carefully, he would have found that he had no power to revise the schedule of elections especially when the petitioners had beenduy nominated as the candidates. It was not for him to advise the candidates about the mistakes they had made and then to give them, another chance to file their nomination papers. He compounded the folly by even accepting the nomination paper of respondent No. 3 Dr. Surinder Kumar Sharma, who had not earlier filed Ms nomination paper. The reason for accepting his nomination paper is absurd indeed. If his intention was to expend the date of nomination for all and sundry, then justice demanded that everyone in the State was informed by a proper notice.
6. The Returning Officer has sought shelter under Rule 6 for his action. This rule reads;--
'Returning Officer to decide questions relating to right of persons to stand for or vote at election--
If any question arises as to whether a person is or is not entitled in vote in the election or to stand for the election the question shall be referred to the Returning Officer who shall decide the same.'
7. We do not know by what stretch of imagination the Returning Officer considered this rule to empower him to write personal letters to the candidates whose nomination papers were rejected, to extend the date of filing the nomination papers in respect of these persons, and to fix a new date for scrutiny.
8. During the course of hearing we called upon the Returning Officer to produce the record he had maintained of those elections. The record was scrutinised by us while he was present in the Court. It was noticed that his P-A. Shri Ram Rattan Sharma. who was also present in Court, had received most of the nomination papers, made the necessary endorsements, filled in the blanks regarding the date and time on which the nomination papers were received, and the Returning Officer had merely signed them. We also noticed that none of the nomination papers contained any endorsement of its having been accepted or rejected. It was all in violation of the rules. Rule 9 (2) requires the Returning Officer to 'forthwith endorse thereupon the date and hour of receipt' of each nomination paper, Rule 11 (3') enjoins upon the Returning Officer to 'endorse on each nomination paper his decision either accepting or rejecting it and if the nomination paper is rejected, he shall record in writing a brief statement of his reasons for rejecting it.' On the notified date of scrutiny, that is 11-5-1983, it was the duty of the Returning Officer to endorse on each nomination paper his decision about its acceptance or rejection. However, the record reveals that though no such endorsement was made, he had only accepted the nomination papers of the two petitioners. It may be noticed that petitioner No. 1 had protested to the Returning Officer about the latter's extending the date of filing the nomination papers. His letter is Annexure-C. In answer thereof the Returning Officer wrote a letter (Annexure-D) stating that he had 'discretionary power to extend the date of nomination depending upon the circumstances.' Needless to say that we have not been shown any provision of law or rule which gives him such a discretion.
9. The scrutiny of the record also reveals that the Returning Officer hadsigned some nomination papers long after they were received. For example, there are nomination papers of one Shri Shakti Kumar Sharma. There is an endorsement in the margin that these were received on 4-5-1983 at 2 P. M. We have been informed that this endorsement is of the aforementioned p. A. to the Returning Officer. The Returning Officer has signed the nomination form on 10-5-1983. Similarly the nomination papers of Daulat Ram Bharaj were received in the office of the Returning Officer on 13-5-1983 but he signed these only on 16-5-1983. Similarly Dhani Rum Sharma's nomination papers were received in the office on 12-5-1983 but were signed by the Returning Officer on 16-5-1983. In other words, no sanctity was attached by the Returning Officer to the filing of the nomination papers before him.
10. Mr. P. A. Sharma. Central Government standing Counsel, submits that since the disputes regarding the election have to be referred to the Central Government for its decision in terms of Section 4 (2) of the Act, the petition should be dismissed on this preliminary objection. Section 4 relates to the mode of election. It reads as under:--
'(1) An election under Clause (a) or Clause (b) of Sub-section (1) of Section 3 shall be conducted by the Central Government in accordance with such rules as may be made by it in this behalf.
(2) Where any dispute arises regarding any election to the Central Council it shall be referred to the Central Government whose decision shall be fital.
11. No doubt, the disputes regarding the elections are to be decided by the Central Government. But then, as in the instant case, where a Returning Officer acts without jurisdiction, his action has to be struck down forthwith since it is non est. Had the election been conducted under the rules and thereafter the dispute had arisen, then, of course, it was for the Central Government to decide that dispute.
12. In the circumstances discussed above, we have no hesitation in striking down the action of the Returning Officer extending the date for nomination papers and accepting those filed by respondents Nos. 3 to 5. We would, therefore, allow) this petition with costs and direct the Returning Officer to hold the election to select one member for Ayurveda seat from amongst the petitioners by issuing fresh ballot papers and fixing a freshdate for the receipt of the same. Counting of the votes, and declaration of the result. Costs shall be paid by respondents Nos. 1 and 2. Counsel's fee Rs. 300/-.