Material facts of the case for the purpose of appreciating the contentions raised by learned counsel for the parties before this Court are that the petitioners and respondents No. 2 and 3 filed their nomination papers for the election of Chairman and Vice Chairman from Union Council No. 77, Ghazi Pur, Tehsil Khanpur Distt. Rahim Yar Khan. Last date for submission of nomination papers was 7.10.2015. The Returning Officer for the said union council vide order dated 10.10.2015 rejected nomination papers of respondents No. 2 and 3 on the ground that the nomination papers did not carry signatures either of the proposer or of the seconder. Feeling aggrieved of the said order, respondents No. 2 and 3 filed an appeal before the Appellate Authority as provided under Rule 14(10) of the Punjab Local Government (Conduct of Election) Rules, 2013. The said appeal was accepted, above-mentioned order dated 10.10.2015 of the Returning Officer was set aside and the Returning Officer was directed to provide an opportunity to respondents No. 2 and 3 to correct their nomination papers. By not accepting the said order the petitioners who are rival candidates of respondents No. 2 and 3 have approached this Court by way of instant Constitutional petition.
2. Learned counsel for the petitioners contends that it was incumbent upon respondents No. 2 and 3 to submit duly completed nomination papers as required by law/rules but they failed to fulfill this mandatory requirement as such the Returning Officer was justified in rejecting their nomination papers but the learned appellate authority/respondent No. 1 adopted a novel procedure alien to law by facilitating the said respondents to fill lacunae by providing opportunity to correct their nomination papers which is against the mandates of Rules 12 and 14 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 and thus the impugned order is nullity in the eye of law and is liable to be set aside.
3. Learned Law Officer could not seriously defend the impugned order of appellate authority whereby respondents No. 2 and 3 were given opportunity to correct their nomination papers.
Learned counsel for respondents No. 2 and 3, however, with hectic efforts defended the impugned order by referring sub Rule (7) of Rule 14 of the Punjab Local Governments (Conduct of Elections)
Rules, 2013 whereby the Returning Officer was required not to reject the nomination papers of a candidate on the ground of any defect which was not of substantial nature and defect of procedural nature was allowed to be remedied. Learned counsel submits that it was sheer omission that signatures of the proposer and seconder could not be obtained on the nomination papers and submits that the said proposer and seconder have sworn affidavits in this regard and that they are even today present before this Court and are ready to sign the nomination papers.
4. Arguments pro and contra have been heard and record perused.
5. The order dated 10.10.2015 depicts that the Returning Officer rejected nomination papers of respondents No. 2 and 3 on the ground that the nomination papers were not signed by the proposer and the seconder. The ensuing local government elections are being held under the Punjab Local Government Act, 2013. Under Section 144 of the said Act certain rules have been framed by the government which are cited as the Punjab Local Governments (Conduct of Elections) Rules 2013 (hereinafter to be called 'The Rules'). Rule 12 of the Rules deals with Nomination for elections. According to sub Rule (1) of Rule 12 after the announcement of the Election Schedule by the Election Commission, the Returning Officer is obliged to give a public notice in Form-I inviting nominations. Sub Rule (2) says that any voter of a constituency may propose or second the name of any duly qualified person to be a candidate for an election of a member or the Chairman and the Vice Chairman of a Union Council. Sub-rule (3) deals with the procedure and requirements to be adopted. Since this sub-rule is of vital importance for the purpose of adjudication of this petition as such relevant portion of the same is reproduced hereunder for facility of reference: "12(3) Every nomination shall be made by separate nomination paper which shall be signed both by the proposer and seconder and shall, on solemn affirmation made and signed by the candidate or, as the case may be, the candidates for an election of:
(i) the Chairman and the Vice Chairman of a Union Council as joint candidates in Form-II(A).
A bare perusal of this provision of law would reveal that a candidate for an election of a Chairman and vice Chairman of a Union Council as joint candidates is obliged to file nomination paper in Form-II(A), which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made, be signed by both the joint candidates. The question is if a nomination paper is not signed by both the proposer and the seconder or by either of them, should they subsequently be allowed to sign the same not being a defect of substantial nature as provided by Rule 14(7) of the Rules or the nomination papers should be out-rightly rejected considering the same to have been filed in contravention of the provisions of Sub Rule (3) supra, as has been done by Returning Officer in the present case?
Sub Rule (6) of the Rules enumerates that every nomination paper shall be delivered by the candidate or his proposer or seconder to the Returning Officer who shall assign a serial number to the nomination paper and endorse thereon the name of the person presenting it and acknowledge the receipt of the nomination paper specifying the date and time of receipt, and inform such person of the time, date and place at which he shall hold scrutiny. Sub Rule (10) provides that the objection, if any, shall be taken into consideration at the time of scrutiny of nomination papers. Rule 14 relates to scrutiny. Since this rule relates to the heart of the issue involved in this petition as such relevant portion of the same is also reproduced hereunder:
14. Scrutiny.- (1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers, and any voter of the constituency with the permission of the Returning Officer, before the commencement of the scrutiny, and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under rule 12.
(2)The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide an objection raised by any such person to a nomination.
(3) The Returning Officer may, either on his own accord or on an objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:
(a) the candidate is not qualified to be elected as a member, a Chairman and a Vice Chairman, or a Mayor and a Deputy Mayor;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of rule 12 or rule 13 has not been complied with; or the signature or thumb impression of the proposer or the seconder is not genuine.
6. A careful examination of Rule 14 in conjunction with Rule 12 (3) (quoted above) would make it clear that nomination papers of a candidate for election must be signed both by the proposer and the seconder under Rule 12(3) and in case this requirement is not fulfilled, the nomination papers merits to be rejected under Rule 14(3)(c). A question may arise at this juncture as to whether signature of proposer or the seconder are mandatory or directory in nature. Clause (c) to Sub rule
(3) of Rule 14 comes to rescue this query. This clause is punitive in nature which provides that if any provision of rule 12 or rule 13 has not been complied with the Returning Officer, may reject a nomination paper. This penal clause makes the requirement enumerated in Rule 12 as mandatory.
Therefore, it was obligatory for the candidate(s) along with proposer and seconder to put their signatures on the nomination papers as mandated by Rule 12(3) and non-signing of nomination paper of the candidate by the proposer and the seconder is fatal in character and is not curable.
Another query may creep into one's mind as to whether omission of signatures of the proposer or the seconder on the nomination papers is a substantial defect or this deficiency can be allowed by the Returning Officer to be cured under the powers provided in sub rule (7) of Section 14. For facility of reference said provision may also be reproduced which runs as under: 14(7). The Returning officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.
Bare reading of this rule would reveal that the power of the Returning Officer has been controlled for not rejecting the nomination papers on any defect which is not of substantial nature and he has been empowered to allow a candidate to remove a defect of procedural nature such as an error with regard to the name, serial number or other particulars of his own or of his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls. But a defect/non-fulfillment of a mandatory provision is not a procedural defect but a substantial defect which cannot be allowed to be remedied by exercising powers under sub rule (7) quoted above and even the appellate authority cannot allow a candidate to remove such deficiency under the garb of making correction in the nomination form and that too after expiry of cut-off date. While dealing with a case of like nature, the Hon'ble Supreme Court in the case titled Muhammad Jamil v. Munawar Khan and others (PLD 2006 SC 24) held as under: "The Returning Officer is empowered to reject a nomination form on conducting summary enquiry and he had no jurisdiction to allow a candidate to submit further explanation of the assets owned by him during the process of scrutiny. It is to be observed that such concession if extended to a candidate, would tantamount to allow him an opportunity to make up deficiency if any in submitting nomination papers. Essentially such concession cannot be extended to candidate after the expiry of date of filing of nomination papers, as it would mean that period of filing nomination papers along with Declaration Form No. XIX has been extended to his benefit, which is prohibited in view of following principle of Law highlighted in Bindra's (7th Edition 1984 678) Dr. Haq Nawaz v.
Balochistan Public Service Commission and others (1996 CLC 58) as under: "As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtains with respect of public officers. When a statute directs things to be done by a private person within specified time and makes his rights dependent on proper performance thereof, unless the failure to perform in time may injure the public or individuals the statute is mandatory. When an individual is the person not complying, he has no grounds for complaint.
Under statutes of procedure, failure to complete required steps within the time specified is fatal to the case."
7. Crux of the above discussions and observations is that compliance of requirements made under Rule 12(3) by a candidate while filing his nomination papers is mandatory in nature and non- compliance of the same is a substantial defect which entails penal consequence in shape of Rule 14(3) and cannot be cured under rule 14(7) and thus the Returning Officer has rightly rejected the nomination papers of respondents No. 2 and 3 and that the appellate authority has no powers to validate an invalid nomination paper and that too after the closer of cut-off date as it would mean a fresh nomination to be made which cannot be allowed. The Appellate Authority erred in law while directing the Returning Officer to afford an opportunity to respondents No. 2 and 3 herein to correct their nomination papers.
8. All the above facts taken together persuade me to hold that the impugned order of the appellate authority is Alien to law and as such not sustainable. Resultantly, this petition is accepted, impugned order dated 19.10.2015 passed by respondent No.1 is set aside and the order dated 10.10.2015 passed by the Returning Officer whereby he rejected the nomination papers of respondents No. 2 and 3, is upheld.