¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆww

÷Êª v ]

1193

∑˝§◊Ê¢∑§ xÆ ]

⁄UÊÿ¬È⁄U, ‡ÊÈ∑˝§ﬂÊ⁄U, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆwwóüÊÊﬂáÊ |, ‡Ê∑§ v~yy

÷Êª 1

⁄UÊíÿ ‡ÊÊ‚Ÿ ∑§ •ÊŒ‡Ê

‚Ê◊Êãÿ ¬˝‡ÊÊ‚Ÿ Áﬂ÷Êª

◊¢òÊÊ‹ÿ, ◊„UÊŸŒË ÷ﬂŸ, ŸﬂÊ ⁄UÊÿ¬È⁄U, •≈U‹ Ÿª⁄

ŸﬂÊ ⁄UÊÿ¬È⁄U, •≈U‹ Ÿª⁄U ÁŒŸÊ¢∑§ wy ¡ÍŸ wÆww

∑˝§◊Ê¥∑§ ß¸U v-Æx/wÆww/∞∑§-w.ó⁄UÊíÿ ‡ÊÊ‚Ÿ ∞ÃŒ˜mÊ⁄UÊ üÊË ß¸UÁ◊‹ ‹∑§«∏Ê, ÷Ê.¬˝.‚. (wÆÆx), ‚Áøﬂ, ‹Ê∑§ •ÊÿÊª, ⁄UÊÿ¬È⁄U ∑§Ê

•SÕÊÿË M§¬ ‚ •ÊªÊ◊Ë •ÊŒ‡Ê ¬ÿ¸ãÃ ‚Áøﬂ, ¿UûÊË‚ª…∏U ‡ÊÊ‚Ÿ ∑§ ¬Œ ¬⁄U ¬ŒSÕ ∑§⁄UÃÊ „ÒU.

üÊË ‚ÈäÊÊ∑§⁄U π‹πÊ, ÷Ê.¬˝.‚. (wÆvw), ‚¥øÊ‹∑§, ª˝Ê◊ÊlÊª ÃÕÊ •ÁÃÁ⁄UÄÃ ¬˝÷Ê⁄U ¬˝’¥äÊ ‚¥øÊ‹∑§, ¿U.ª. „USÃÁ‡ÊÀ¬ Áﬂ∑§Ê‚ ’Ê«¸U

∞ﬂ¥ ¬˝’¥äÊ ‚¥øÊ‹∑§, ¿U.ª. ◊Ê≈UË∑§‹Ê ’Ê«¸U, ¬˝’¥äÊ ‚¥øÊ‹∑§, ¿U.ª. „UÊÕ∑§⁄UÉÊÊ Áﬂ∑§Ê‚ ∞ﬂ¥ Áﬂ¬áÊŸ ‚¥ÉÊ ◊ÿÊ¸ÁŒÃ, ⁄UÊÿ¬È⁄U ∑§Ê •SÕÊÿË M§¬ ‚

•ÊªÊ◊Ë •ÊŒ‡Ê ¬ÿ¸ãÃ ‚Áøﬂ, ‹Ê∑§ •ÊÿÊª, ⁄UÊÿ¬È⁄U ∑§ ¬Œ ¬⁄U ¬ŒSÕ ∑§⁄UÃÊ „ÒU.

‚¢øÊ‹∑§, ◊Èº˝áÊ ÃÕÊ ‹πŸ ‚Ê◊ª˝Ë, ¿UûÊË‚ª…∏U mÊ⁄UÊ ‡ÊÊ‚∑§Ëÿ ˇÊòÊËÿ ◊Èº˝áÊÊ‹ÿ, ⁄UÊ¡ŸÊ¢ŒªÊ¢ﬂ ‚ ◊ÈÁº˝Ã ÃÕÊ ¬˝∑§ÊÁ‡ÊÃówÆww.

¬¢¡ËÿŸ ∑˝§◊Ê¢∑§

“¿UûÊË‚ª…∏U/ŒÈª¸/Æ~/wÆvx-wÆvz.”

“Á’¡Ÿ‚ ¬ÊS≈U ∑§ •ãÃª¸Ã «UÊ∑§

‡ÊÈÀ∑§ ∑§ ŸªŒ ÷ÈªÃÊŸ (Á’ŸÊ «UÊ∑§

Á≈U∑§≈U) ∑§ ¬˝·áÊ „UÃÈ •ŸÈ◊Ã. ∑˝§◊Ê¢∑§

¡Ë. w-ww-¿UûÊË‚ª…∏U ª¡≈U/x} Á‚.

‚. Á÷‹Êß¸, ÁŒŸÊ¢∑§ xÆ-z-wÆÆv.”

¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ

¬˝ÊÁœ∑§Ê⁄U ‚ ¬˝∑§ÊÁ‡ÊÃ

Áﬂ·ÿó‚ÍøË

÷Êª v.ó(v) ⁄UÊÖÿ ‡ÊÊ‚Ÿ ∑§ •ÊŒ‡Ê, (w) Áﬂ÷Êª ¬˝◊ÈπÊ¥ ∑§ •ÊŒ‡Ê,

(x) ©Uëø ãÿÊÿÊ‹ÿ ∑§ •ÊŒ‡Ê •ÊÒ⁄U •Áœ‚ÍøŸÊ∞¢, (y)

⁄UÊÖÿ ‡ÊÊ‚Ÿ ∑§ ‚¢∑§À¬, (z) ÷Ê⁄UÃ ‡ÊÊ‚Ÿ ∑§ •ÊŒ‡Ê •ÊÒ⁄U

•Áœ‚ÍøŸÊ∞¢, ({) ÁŸﬂÊ¸øŸ •ÊÿÊª, ÷Ê⁄UÃ ∑§Ë •Áœ‚ÍøŸÊ∞¢,

(|) ‹Ê∑§-÷Ê·Ê ¬Á⁄UÁ‡ÊCÔU.

÷Êª w.óSÕÊŸËÿ ÁŸ∑§Êÿ ∑§Ë •Áœ‚ÍøŸÊ∞¢.

÷Êª x.ó(v) ÁﬂôÊÊ¬Ÿ •ÊÒ⁄U ÁﬂÁﬂœ ‚ÍøŸÊ∞¢, (w) ‚Ê¢ÁÅÿ∑§Ëÿ

‚ÍøŸÊ∞¢.

÷Êª y.ó(∑§) (v) ¿UûÊË‚ª…∏U Áﬂœÿ∑§, (w) ¬˝ﬂ⁄U ‚Á◊ÁÃ ∑§

¬˝ÁÃﬂŒŸ, (x) ‚¢‚Œ ◊¥ ¬È⁄U—SÕÊÁ¬Ã Áﬂœÿ∑§, (π) (v)

•äÿÊŒ‡Ê, (w) ¿UûÊË‚ª…∏U •ÁœÁŸÿ◊, (x) ‚¢‚Œ˜Ô ∑§

•ÁœÁŸÿ◊, (ª) (v) ¬˝ÊM§¬ ÁŸÿ◊, (w) •¢ÁÃ◊ ÁŸÿ◊.

vv~x

¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆww

[ ÷Êª v

1194

üÊË ‚ÈäÊÊ∑§⁄U π‹πÊ mÊ⁄UÊ ∑§Êÿ¸÷Ê⁄U ª˝„UáÊ ∑§⁄UŸ ∑§ ÁŒŸÊ¥∑§ ‚ ⁄UÊíÿ ‡ÊÊ‚Ÿ, ÷Ê⁄UÃËÿ ¬˝‡ÊÊ‚ÁŸ∑§ ‚ﬂÊ (ﬂÃŸ) ÁŸÿ◊, wÆv{ ∑§ ÁŸÿ◊-

vw ∑§ Ã„UÃ ‚Áøﬂ, ‹Ê∑§ •ÊÿÊª ∑§ •‚¥ﬂªË¸ÿ ¬Œ ∑§Ê ¬˝ÁÃDUÊ ∞ﬂ¥ Á¡ê◊ŒÊ⁄UË ◊¥ ÷Ê⁄UÃËÿ ¬˝‡ÊÊ‚ÁŸ∑§ ‚ﬂÊ ∑§ ∑§ÁŸDU ¬˝‡ÊÊ‚ÁŸ∑§ ﬂÃŸ◊ÊŸ ∑§

‚¥ﬂªË¸ÿ ¬Œ ∑§ ‚◊∑§ˇÊ ÉÊÊÁ·Ã ∑§⁄UÃÊ „ÒU.

¿UûÊË‚ª…∏U ∑§ ⁄UÊíÿ¬Ê‹ ∑§ ŸÊ◊ ‚ ÃÕÊ •ÊŒ‡ÊÊŸÈ‚Ê⁄U,

∑§◊‹¬˝ËÃ Á‚¥„U, ‚Áøﬂ.

ŸﬂÊ ⁄UÊÿ¬È⁄U, •≈U‹ Ÿª⁄U ÁŒŸÊ¢∑§ y ¡È‹Êß¸U wÆww

∑˝§◊Ê¥∑§ ∞»§ z-w/wÆww/∞∑§ (v).ó⁄UÊíÿ ‡ÊÊ‚Ÿ ∞ÃŒ˜mÊ⁄UÊ ◊ÊŸŸËÿ ãÿÊÿ◊ÍÁÃ¸ üÊË ‚¥¡ÿ •ª˝ﬂÊ‹, ãÿÊÿÊÁäÊ¬ÁÃ, ¿UûÊË‚ª…∏U ©UìÊ

ãÿÊÿÊ‹ÿ Á’‹Ê‚¬È⁄U ∑§Ê ÁŒŸÊ¥∑§ wy »§⁄Uﬂ⁄UË, wÆww ‚ Æy ◊Êø¸, wÆww Ã∑§ (Æ~ ÁŒŸ) ∞ﬂ¥ ÁŒŸÊ¥∑§ Æ} ◊Êø¸, wÆww ‚ v| ◊Êø¸, wÆww Ã∑§ (vÆ

ÁŒŸ) ∑§Ê ¬ÍáÊ¸ ﬂÃŸ ÷ûÊÊ ‚Á„UÃ ‹ÉÊÈ∑Î§Ã •ﬂ∑§Ê‡Ê ∑§Ë ∑§ÊÿÊ¸ûÊ⁄U SﬂË∑Î§ÁÃ ¬˝ŒÊŸ ∑§⁄UÃÊ „ÒU.

¿UûÊË‚ª…∏U ∑§ ⁄UÊíÿ¬Ê‹ ∑§ ŸÊ◊ ‚ ÃÕÊ •ÊŒ‡ÊÊŸÈ‚Ê⁄U,

‚¥¡ÿ •ª˝ﬂÊ‹, ‚¥ÿÈÄÃ ‚Áøﬂ.

ŸﬂÊ ⁄UÊÿ¬È⁄U, •≈U‹ Ÿª⁄U ÁŒŸÊ¢∑§ wv ¡ÍŸ wÆww

∑˝§◊Ê¥∑§ ’Ë-v-w/wÆww/∞∑§/y.ó⁄UÊíÿ ‡ÊÊ‚Ÿ ∞ÃŒ˜mÊ⁄UÊ ÁŸêŸÁ‹ÁπÃ •äÊËˇÊ∑§/Ã„U‚Ë‹ŒÊ⁄UÊ¥ ∑§Ê ⁄UÊíÿ ¬˝‡ÊÊ‚ÁŸ∑§ ‚ﬂÊ ∑§ ∑§ÁŸDU

üÊáÊË ﬂÃŸ◊ÊŸ ◊¥ Á«Uå≈UË ∑§‹Ä≈U⁄U ∑§ ¬Œ ¬⁄U ﬂÃŸ ◊ÒÁ≈˛UÄ‚ ‹ﬂ‹ vw ◊¥ ¬ŒÊãŸÃ ∑§⁄UÃ „ÈU∞, ©Uã„¥U ∑§Êÿ¸÷Ê⁄U ª˝„UáÊ ∑§⁄UŸ ∑§ ÁŒŸÊ¥∑§ ‚ •SÕÊß¸U M§¬

‚ •ÊªÊ◊Ë •ÊŒ‡Ê Ã∑§ ŸËø ŒÁ‡Ê¸Ã ÃÊÁ‹∑§Ê ◊¥ ©UŸ∑§ ŸÊ◊ ∑§ ‚ê◊Èπ ∑§ÊÚ‹◊ (y) ◊¥ Œ‡ÊÊ¸ÿ •ŸÈ‚Ê⁄U ¬ŒSÕ ∑§⁄UÃÊ „ÒU —ó

∑˝§.

•ÁäÊ∑§Ê⁄UË ∑§Ê ŸÊ◊

ﬂÃ¸◊ÊŸ ¬ŒSÕÊ¬ŸÊ

ŸﬂËŸ ¬ŒSÕÊ¬ŸÊ

(v)

(w)

(x)

(y)

üÊË ‡ÊÁ‡Ê∑È§◊Ê⁄U øÊÒäÊ⁄UË

Ã„U‚Ë‹ŒÊ⁄U, ªÊÒ⁄‘U‹Ê-¬á«˛UÊ-◊⁄UﬂÊ„UË

Á«Uå≈UË ∑§‹Ä≈U⁄U, ’‹⁄UÊ◊¬È⁄U ⁄UÊ◊ÊŸÈ¡ª¥¡

üÊË ⁄U◊‡Ê ∑È§◊Ê⁄U ◊Ê⁄U

Ã„U‚Ë‹ŒÊ⁄U, Á’‹Ê‚¬È⁄U

Á«Uå≈UË ∑§‹Ä≈U⁄U, ⁄UÊÿª…∏U

üÊË ⁄UÊ◊⁄UÃŸ ¬˝‚ÊŒ ŒÈ’

Ã„U‚Ë‹ŒÊ⁄U, ’Ê‹ÊŒ

Á«Uå≈UË ∑§‹Ä≈U⁄U, ’‹ÊÒŒÊ’Ê¡Ê⁄U-÷Ê≈UÊ¬Ê⁄UÊ

üÊË ◊ÊÿÊŸ¥Œ ø¥º˝Ê

Ã„U‚Ë‹ŒÊ⁄U, ◊È¥ª‹Ë

Á«Uå≈UË ∑§‹Ä≈U⁄U, ’SÃ⁄U

üÊË ¡ªÃ⁄UÊ◊ ‚Ã⁄¥U¡

Ã„U‚Ë‹ŒÊ⁄U, ⁄UÊÿª…∏U

Á«Uå≈UË ∑§‹Ä≈U⁄U, ‚⁄UªÈ¡Ê

üÊË ‚È⁄‘U‡Ê ∑È§◊Ê⁄U ‚Ê„ÍU

Ã„U‚Ë‹ŒÊ⁄U, ∑§Ê⁄U’Ê

Á«Uå≈UË ∑§‹Ä≈U⁄U, ’Ê‹ÊŒ

⁄UÊ◊∑È§◊Ê⁄U ‚ÊŸ∑§⁄U

Ã„U‚Ë‹ŒÊ⁄U, ŒÈª¸

Á«Uå≈UË ∑§‹Ä≈U⁄U, ’◊Ã⁄UÊ

üÊË ◊ŸÊ¡ ∑È§◊Ê⁄U πÊá«U

Ã„U‚Ë‹ŒÊ⁄U, Á’‹Ê‚¬È⁄U

Á«Uå≈UË ∑§‹Ä≈U⁄U, ∑§Ê⁄U’Ê

©U¬⁄UÊÄÃ ¬ŒÊãŸÁÃÿÊ¥ ŒÊ ﬂ·¸ ∑§Ë SÕÊŸÊ¬ãŸ •ﬂÁäÊ ∑§ Á‹∞ „UÊªË ÃÕÊ ¬ŒÊãŸÃ •ÁäÊ∑§ÊÁ⁄UÿÊ¥ ∑§Ë ‚ﬂÊ∞¥ ¿UûÊË‚ª…∏U ⁄UÊíÿ ¬˝‡ÊÊ‚ÁŸ∑§ ‚ﬂÊ

(ﬂªË¸∑§⁄UáÊ, ÷ÃË¸ ÃÕÊ ‚ﬂÊ ∑§Ë ‡ÊÃZ) ÁŸÿ◊, v~|z ∑§ ¬˝ÊﬂäÊÊŸÊ¥ ∑§ •¥Ãª¸Ã ‡ÊÊÁ‚Ã „UÊªË.

©UÄÃ •ÊŒ‡Ê ◊ÊŸŸËÿ ¿UûÊË‚ª…∏U ©UìÊ ãÿÊÿÊ‹ÿ, Á’‹Ê‚¬È⁄U ◊¥ ŒÊÿ⁄U ÿÊÁø∑§Ê WP (PIL) NO. 91/2019, S. Santosh Kumar

Vs. State of Chhattisgarh & Other’s ◊¥ ¬ÊÁ⁄UÃ •¥ÁÃ◊ •ÊŒ‡Ê ∑§ •äÿÊäÊËŸ „UÊªË.

¿UûÊË‚ª…∏U ∑§ ⁄UÊíÿ¬Ê‹ ∑§ ŸÊ◊ ‚ ÃÕÊ •ÊŒ‡ÊÊŸÈ‚Ê⁄U,

Ä‹◊ã≈UËŸÊ ‹∑§«∏Ê, •ﬂ⁄U ‚Áøﬂ.

¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆww

÷Êª v ]

1195

⁄UÊ¡Sﬂ Áﬂ÷Êª

∑§ÊÿÊ¸‹ÿ, ∑§‹Ä≈U⁄U, Á¡‹Ê ⁄UÊÿª…∏U, ¿UûÊË‚ª…∏U ∞ﬂ¢ ¬ŒŸ ©U¬-‚Áøﬂ, ¿UûÊË‚ª…∏U ‡ÊÊ‚Ÿ, ⁄UÊ¡Sﬂ ∞ﬂ¥

•Ê¬ŒÊ ¬˝’¥äÊŸ Áﬂ÷Êª

⁄UÊÿª…∏U, ÁŒŸÊ¥∑§ xÆ ¡ÍŸ wÆww

÷Í-•¡¸Ÿ (¬Í⁄U∑§) ¬˝. ∑˝§. Æ|/•-}w/wÆv~-wÆ.ó÷Í-•¡¸Ÿ ¬˝∑§⁄UáÊ ◊¥ ◊„UÊ¬˝’¥äÊ∑§ ∞Ÿ≈UË¬Ë‚Ë Ã‹Êß¸U¬Ê‹Ë ∑§Ê‹ ◊Êß¸UÁŸ¥ª ¬Á⁄UÿÊ¡ŸÊ

ÉÊ⁄UÉÊÊ«∏Ê mÊ⁄UÊ ª˝Ê◊-’«∏◊Ê‹, ¬.„U.Ÿ¥.-xÆ, Ã„U‚Ë‹ ¬È‚ÊÒ⁄U Á¡‹Ê-⁄UÊÿª…∏U, ∑§Ë ÁŸ¡Ë ÷ÍÁ◊ ∑È§‹ ⁄U∑§’Ê y.zxz „U. ∞Ÿ≈UË¬Ë‚Ë Ã‹Êß¸U¬Ê‹Ë ∑§Ê‹

◊Êß¸UÁŸ¥ª ¬Á⁄UÿÊ¡ŸÊ ∑§ ⁄‘U‹ ‹Êß¸UŸ „UÃÈ ÷Í-•¡¸Ÿ ∑§ ¬˝SÃÈÃ ¬˝SÃÊﬂ ∑§ •ÊäÊÊ⁄U ¬⁄U ÷Í-•¡¸Ÿ •ÁäÊÁŸÿ◊ ∑§ Ã„UÃ äÊÊ⁄UÊ-vv(v) ∑§Ë •ÁäÊ‚ÍøŸÊ ÃÕÊ

äÊÊ⁄UÊ-v~ ∑§Ë •ÁäÊ‚ÍøŸÊ ∑§Ê ¬˝∑§Ê‡ÊŸ ¬˝ÊﬂäÊÊŸÊ¥ ∑§ •ŸÈ‚Ê⁄U Á∑§ÿÊ ¡Ê∑§⁄U ¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ ◊¥ ∑˝§◊‡Ê— ÁŒŸÊ¥∑§ Æy-Æ{-wÆwv ÃÕÊ ÁŒŸÊ¥∑§ Æv-

vÆ-wÆwv ∑§Ê ∑§⁄UÊÿÊ ªÿÊ „ÒU.

øÍ¥Á∑§ •’ ◊„UÊ¬˝’¥äÊ∑§ ∞Ÿ≈UË¬Ë‚Ë Ã‹Êß¸U¬Ê‹Ë ∑§Ê‹ ◊Êß¸UÁŸ¥ª ¬Á⁄UÿÊ¡ŸÊ ÉÊ⁄UÉÊÊ«∏Ê ∑§ mÊ⁄UÊ ÷Í-•¡¸Ÿ ∑§Ë ∑§Êÿ¸ﬂÊ„UË „UÃÈ ‚Áê◊Á‹Ã ©UÄÃ

÷ÍÁ◊ ‚ ∑È§‹ π‚⁄UÊ Æ| ◊¥ ‚ ∑È§‹ ⁄U∑§’Ê Æ.x~w „U. ÷ÍÁ◊ ⁄‘U‹ ‹Êß¸UŸ ◊¥ ¬˝÷ÊÁﬂÃ Ÿ„UË¥ „UÊŸ ∑§ »§‹SﬂM§¬ ÷Í-•¡¸Ÿ ∑§Ë ∑§Êÿ¸ﬂÊ„UË ‚ ◊ÈÄÃ ∑§⁄UŸ

∑§ •ŸÈ⁄UÊäÊ ¬⁄U ÷Í-•¡¸Ÿ •ÁäÊÁŸÿ◊ ∑§Ë äÊÊ⁄UÊ-~x (v) ∑§ •ŸÈ‚Ê⁄U ¬˝àÿÊs⁄UáÊ Á∑§ÿÊ ¡ÊÃÊ „ÒU.

¬˝àÿÊs⁄UáÊ „UÃÈ ÷ÍÁ◊ ∑§Ê Áﬂﬂ⁄UáÊ —ó

ª˝Ê◊-’«∏◊Ê‹, ¬.„U.Ÿ¥. - xÆ

∑˝§.

π. Ÿ¥.

⁄U∑§’Ê „U.

(v)

(w)

(x)

xÆ|/z

Æ.Ævy

xÆ~/v

Æ.vzx

wy|/vπ

Æ.Æ}~

wwÆ/v

Æ.Æxw

xÆ|/v

Æ.Æv{

wy}/w

Æ.Æw}

wy{

Æ.Æ{Æ

∑È§‹

Æ.x~w

÷Í-•¡¸Ÿ ∑§Ë ∑§Êÿ¸ﬂÊ„UË ‚ ◊ÈÄÃ Á∑§ÿ ¡Ê ⁄U„U ÷ÍÁ◊ ∑§Ê éÿÊÒ⁄UÊ •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ¡Sﬂ), ⁄UÊÿª…∏U ∑§ ∑§ÊÿÊZ‹ÿ ◊¥ ŒπÊ ¡Ê

‚∑§ÃÊ „ÒU.

¿UûÊË‚ª…∏U ∑§ ⁄UÊíÿ¬Ê‹ ∑§ ŸÊ◊ ‚ ÃÕÊ •ÊŒ‡ÊÊŸÈ‚Ê⁄U,

÷Ë◊ Á‚¥„U, ∑§‹Ä≈U⁄U ∞ﬂ¥ ¬ŒŸ ©U¬-‚Áøﬂ.

¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆww

[ ÷Êª v

1196

Áﬂ÷Êª ¬˝◊ÈπÊ¥ ∑§ •ÊŒ‡Ê

∑§ÊÿÊ¸‹ÿ •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ.) «UÊ¥ª⁄UªÊ¥ﬂ, Á¡‹Ê-⁄UÊ¡ŸÊ¥ŒªÊ¥ﬂ (¿U.ª.)

«UÊ¥ª⁄UªÊ¥ﬂ, ÁŒŸÊ¥∑§ wx ◊ß¸U wÆww

⁄UÊ¡Sﬂ •ŸÈﬂÎÁûÊ ¬òÊ

¬˝∑§⁄UáÊ ∑˝§◊Ê¥∑§ wÆwvvvÆ~wÆÆÆÆÆv ’/vwv ﬂ·¸ wÆwÆ-wv

∑˝§◊Ê¥∑§/vxw~/¬˝-v/•.Áﬂ.•./wÆww.ó¬˝∑§⁄UáÊ •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË «UÊ¥ª⁄UªÊ¥ﬂ ‚ ¬˝ÊåÃ ¬˝∑§⁄UáÊ ∑§Ê •ﬂ‹Ê∑§Ÿ Á∑§ÿÊ.

•ÊﬂŒ∑§ªáÊ ‚ÊŸ‚Êÿ ∞ﬂ¥ •ãÿ ª˝Ê◊ﬂÊ‚Ë ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê, Ã„U‚Ë‹ ¿ÈUÁ⁄UÿÊ, Á¡‹Ê ⁄UÊ¡ŸÊ¥ŒªÊ¥ﬂ mÊ⁄UÊ ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê ∑§Ê ⁄UÊ¡Sﬂ ª˝Ê◊

∑§Ê Œ¡Ê¸ ¬˝ŒÊŸ ∑§⁄UŸ ’Ê’Ã˜ ∑§‹Ä≈U⁄U ◊„UÊŒÿ ∑§ ‚◊ˇÊ •ÊﬂŒŸ ¬˝SÃÈÃ Á∑§ÿÊ ªÿÊ „ÒU (ﬂÃ¸◊ÊŸ ◊¥ ‚ÊÀ„U≈UÊ‹Ê, ª˝Ê◊ ªÊ«∏‹ﬂÊ„UË ∑§Ê ÷Êª „ÒU) ¡Ê

∑§ÊÿÊ¸‹ÿËŸ ôÊÊ¬Ÿ ∑˝§◊Ê¥∑§/xy}{/÷Í.•./‚.•.÷Í.•./wÆwv ⁄UÊ¡ŸÊ¥ŒªÊ¥ﬂ ÁŒŸÊ¥∑§ Æ{-vÆ-wÆwv ∑§ ◊Êäÿ◊ ‚ •Êﬂ‡ÿ∑§ ∑§Êÿ¸ﬂÊ„UË „UÃÈ •ŸÈÁﬂ÷ÊªËÿ

•ÁäÊ∑§Ê⁄UË (⁄UÊ.) «UÊ¥ª⁄UªÊ¥ﬂ ∑§Ê ¬˝Á·Ã Á∑§ÿÊ.

©UÄÃ ‚¥’¥äÊ ◊¥ •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ.) «UÊ¥ª⁄UªÊ¥ﬂ ‚ ôÊÊ¬Ÿ (¡Ê¥ø ¬˝ÁÃﬂŒŸ) ¬˝ÊåÃ Á∑§ÿÊ ªÿÊ. •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ.)

«UÊ¥ª⁄UªÊ¥ﬂ mÊ⁄UÊ ¬˝ÊåÃ ¬òÊ ∑˝§◊Ê¥∑§ vvv/¬˝.-v/•.Áﬂ.•./wÆww «UÊ¥ª⁄UªÊ¥ﬂ Æ|-Æv-wÆww ◊¥ ©UÀ‹π Á∑§ÿÊ ªÿÊ „ÒU, Á∑§ ŸÊÿ’ Ã„U‚Ë‹ŒÊ⁄U πÈí¡Ë

ﬂÎûÊ ¿ÈUÁ⁄UÿÊ mÊ⁄UÊ ¬˝∑§⁄UáÊ Œ¡¸ ∑§⁄U ©UŒ˜ÉÊÊ·áÊÊ ∑§Ê ¬˝∑§Ê‡ÊŸ ∑§⁄UÊÿÊ ªÿÊ, ÁŸÿÃ ‚◊ÿÊﬂÁäÊ ◊¥ ∑§Êß¸U •Ê¬ÁûÊ ¬˝ÊåÃ Ÿ„UË¥ „ÈU•Ê. ©UÄÃ ‚¥’¥äÊ ◊¥ ª˝Ê◊

¬¥øÊÿÃ ªÊ«∏‹ﬂÊ„UË ‚ ¬˝SÃÊﬂ ¬˝ÊåÃ Á∑§ÿÊ ªÿÊ. ª˝Ê◊ ¬¥øÊÿÃ ªÊ«∏‹ﬂÊ„UË mÊ⁄UÊ ª˝Ê◊ ¬¥øÊÿÃ ªÊ«U‹ﬂÊ„UË ∑§ ≈UÊ‹Ê ‚ÊÀ„U≈UÊ‹Ê ∑§Ê ⁄UÊ¡Sﬂ ª˝Ê◊ ∑§Ê

Œ¡Ê¸ ¬˝ŒÊŸ Á∑§ÿÊ ¡ÊŸ ‚ﬂ¸ ‚ê◊ÁÃ ‚ ÁŒŸÊ¥∑§ Æw-vÆ-wÆwv ¬˝SÃÊﬂ ∑˝§◊Ê¥∑§ Æx ¬ÊÁ⁄UÃ Á∑§ÿÊ ªÿÊ „ÒU. ⁄UÊ¡Sﬂ ÁŸ⁄UËˇÊ∑§ ∞ﬂ¥ „UÀ∑§Ê ¬≈UﬂÊ⁄UË ‚

Á’ãŒÈﬂÊ⁄U ¡Ê¥ø ¬˝ÁÃﬂŒŸ ◊¥ªÊÿÊ ªÿÊ ¡Ê ÁŸêŸÊŸÈ‚Ê⁄U „ÒU —ó

∑˝§.

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◊Í‹ ª˝Ê◊

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‚ÊÀ„U≈UÊ‹Ê

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(w)

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∑È§‹ πÊÃŒÊ⁄UÊ¥ ∑§Ë ‚¥ÅÿÊ

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1197

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•ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ.) «UÊ¥ª⁄UªÊ¥ﬂ ‚ ¬˝ÊåÃ ≈˛UÁ‚¥ª Ä‹ÊÚÕ ŸÄ‡ÊÊ •ŸÈ‚Ê⁄U ¬˝SÃÊÁﬂÃ ŸﬂËŸ ⁄UÊ¡Sﬂ ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê ∑§Ë øÊÒ„UŒ˜ŒË

ÁŸêŸÊŸÈ‚Ê⁄U „ÒU —ó

©UûÊ⁄U ◊¥

ª˝Ê◊ ªÊ«U‹ﬂÊ„UË

ŒÁˇÊáÊ ◊¥ ó

¡¥ª‹ ‚⁄U∑§Ê⁄U

¬Íﬂ¸ ◊¥

ª˝Ê◊ ◊Ê‚Í‹∑§‚Ê

¬Á‡ø◊ ◊¥ ó

ª˝Ê◊ ’«∏ªÊÚﬂ

¬˝SÃÊÁﬂÃ ŸﬂËŸ ⁄UÊ¡Sﬂ ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê ∑§Ë ‚Ë◊Ê ∑§Ê ≈˛UÁ‚¥ª Ä‹ÊÚÕ ŸÄ‡ÊÊ ◊¥ ‹Ê‹ SÿÊ„UË ‚ ÃÕÊ ª˝Ê◊ ªÊ«U‹ﬂÊ„UË ∑§ ‡Ê· ‚Ë◊Ê ÷Êª

∑§Ê „U⁄‘U SÿÊ„UË ‚ Áøã„UÊ¥Á∑§Ã Á∑§ÿÊ ªÿÊ „ÒU.

©UÄÃ ÃâÿÊ¥ ∑§ •ÊäÊÊ⁄U ¬⁄U •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ.) «UÊ¥ª⁄UªÊ¥ﬂ mÊ⁄UÊ ¬˝ÁÃﬂÁŒÃ Á∑§ÿÊ ªÿÊ „ÒU, Á∑§ ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê ∑§Ê ªÊ«∏‹ﬂÊ„UË

‚ •¬ﬂÁ¡¸Ã ∑§⁄U ŸÿÊ ⁄UÊ¡Sﬂ ª˝Ê◊ ÉÊÊÁ·Ã ¡ÊŸÊ ©UÁøÃ „UÊªÊ.

¿U.ª. ÷Í-⁄UÊ¡Sﬂ ‚¥Á„UÃÊ v~z~ ∑§Ë äÊÊ⁄UÊ {}, |x ∑§ •¥Ãª¸Ã ª˝Ê◊Ê¥ ∑§Ê Áﬂ÷ÊÁ¡Ã ∞ﬂ¥ ‚¥ÿÊÁ¡Ã Á∑§ÿ ¡ÊŸ ∑§Ê ’¥ŒÊ’SÃ •ÁäÊ∑§Ê⁄UË ∑§Ê

¬˝ÊåÃ „ÒU. ‚¥Á„UÃÊ ∑§Ë äÊÊ⁄UÊ ~Æ-~v ∑§ Ã„UÃ˜ ’¥ŒÊ’SÃ •ÁäÊ∑§Ê⁄UË ∑§Ë ‚◊SÃ ‡ÊÁÄÃÿÊ¥ ⁄UÊ¡Sﬂ ‚ﬂ¸ˇÊáÊ ’¥Œ „UÊ ¡ÊŸ ‚ ∑§‹Ä≈U⁄U ∑§Ê ¬˝ŒûÊ „ÒU.

ﬂÃ¸◊ÊŸ ◊¥ ⁄UÊ¡Sﬂ ‚ﬂ¸ˇÊáÊ ’¥Œ „UÊŸ ‚ ¿U.ª. ÷Í-⁄UÊ¡Sﬂ ‚¥Á„UÃÊ ∑§Ë äÊÊ⁄UÊ ~Æ, ‚„U¬Á∆UÃ äÊÊ⁄UÊ |x ∑§ •¥Ãª¸Ã ’ŸÊÿ ÁŸÿ◊Ê¥ ∑§ Ã„UÃ˜

ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê, Ã„U‚Ë‹ ¿ÈUÁ⁄UÿÊ ∑§Ê Áﬂ∑§Ê‚ ÁﬂSÃÊ⁄U ∑§Ë ŒÎÁCU ÃÕÊ ¬˝Õ◊ ŒÎCUÿÊ ¬ÊòÊÃÊ „UÊŸ ‚ ª˝Ê◊ ‚ÊÀ„U≈UÊ‹Ê, Ã„U‚Ë‹ ¿ÈUÁ⁄UÿÊ ∑§Ê ⁄UÊ¡Sﬂ ª˝Ê◊

ÉÊÊÁ·Ã Á∑§ÿÊ ¡ÊÃÊ „ÒU.

¬˝∑§⁄UáÊ •ŸÈÁﬂ÷ÊªËÿ •ÁäÊ∑§Ê⁄UË (⁄UÊ.) «UÊ¥ª⁄UªÊ¥ﬂ ∑§Ë •Ê⁄U •ÊŒ‡Ê ∑§ Á∑˝§ÿÊãﬂÿŸ ∞ﬂ¥ ¬Ê‹Ÿ „UÃÈ ¬˝Á·Ã Á∑§ÿÊ ¡Êﬂ.

ÃÊ⁄UŸ ¬˝∑§Ê‡Ê Á‚ã„UÊU,

∑§‹Ä≈U⁄U.

¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆww

[ ÷Êª v

1198

∑§ÊÿÊ¸‹ÿ ◊ÈÅÿ ÁŸﬂÊ¸øŸ ¬ŒÊÁœ∑§Ê⁄UË, ¿UûÊË‚ª…∏U

‡ÊÊSòÊË øÊÒ∑§, ¬È⁄UÊŸÊU ◊¢òÊÊ‹ÿ ¬Á⁄U‚⁄U, ⁄UÊÿ¬È⁄U

⁄UÊÿ¬È⁄U, ÁŒŸÊ¥∑§ | ◊Êø¸ wÆww

»§Ê.∑˝§-v}/Æx/ÁŸﬂÊ¸øŸ ÿÊÁø∑§Ê/wÆv~-ww.ó÷Ê⁄UÃ ÁŸﬂÊ¸øŸ •ÊÿÊª, Ÿß¸ ÁŒÀ‹Ë mÊ⁄UÊ ¡Ê⁄UË •Áœ‚ÍøŸÊ ‚¢ÅÿÊ }w/¿U.ª.-Áﬂ.‚./

(Æv/wÆv~)/wÆww/wyvz ÁŒŸÊ¢∑§ xv ¡Ÿﬂ⁄UË wÆww ‹Ê∑§ ¬˝ÁÃÁŸÁœàﬂ •ÁœÁŸÿ◊, v~zv (v~zv ∑§Ê yx) ∑§Ë œÊ⁄UÊ vÆ{ ∑§ •ŸÈ‚⁄UáÊ ◊¥, ÷Ê⁄UÃ

ÁŸﬂÊ¸øŸ •ÊÿÊª ∞ÃŒ˜ÔmÊ⁄UÊ ÁŸﬂÊ¸øŸ •¡Ë¸ ‚¢ÅÿÊ-Æv/wÆv~ ◊¥ ÁŒ∞ ª∞ ©UìÊ ãÿÊÿÊ‹ÿ, ¿UûÊË‚ª…∏U Á’‹Ê‚¬È⁄U ∑§ ÃÊ⁄UËπ wy Ÿﬂê’⁄U, wÆwv ∑§

•ÊŒ‡Ê ∑§Ê ⁄UÊÖÿ ∑§ ‡ÊÊ‚∑§Ëÿ ⁄UÊ¡¬òÊ ◊¥ ‚ﬂ¸‚ÊœÊ⁄UáÊ ∑§Ë ¡ÊŸ∑§Ê⁄UË „UÃÈ ¬˝∑§ÊÁ‡ÊÃ Á∑§ÿÊ ¡ÊÃÊ „ÒU.

(÷ÈﬂŸ‡Ê ÿÊŒﬂ)

◊ÈÅÿ ÁŸﬂÊ¸øŸ ¬ŒÊÁœ∑§Ê⁄UË.

÷Ê⁄UÃ ÁŸﬂÊ¸øŸ •ÊÿÊª

ÁŸﬂÊ¸øŸ ‚ŒŸ, •‡ÊÊ∑§ ⁄UÊ«U, Ÿß¸ ÁŒÀ‹Ë-vvÆÆÆv

Ÿß¸ ÁŒÀ‹Ë, ÃÊ⁄UËπ xv ¡Ÿﬂ⁄UË, wÆwwóvv ◊ÊÉÊ, v~yx (‡Ê∑§)

‚¢. }w/¿U.ª.-Áﬂ.‚./(Æv/wÆv~)/wÆww.ó‹Ê∑§ ¬˝ÁÃÁŸÁœàﬂ •ÁœÁŸÿ◊, v~zv (v~zv ∑§Ê yx) ∑§Ë œÊ⁄UÊ vÆ{ (π) ∑§ •ŸÈ‚⁄UáÊ

◊¥, ÷Ê⁄UÃ ÁŸﬂÊ¸øŸ •ÊÿÊª ∞ÃŒ˜ÔmÊ⁄UÊ ÁŸﬂÊ¸øŸ •¡Ë¸ ‚¢. Æv/wÆv~ ◊¥ ÁŒÿ ªÿ ©UìÊ ãÿÊÿÊ‹ÿ, ¿UûÊË‚ª…∏U, Á’‹Ê‚¬È⁄U ∑§ ÃÊ⁄UËπ wy Ÿﬂê’⁄U, wÆwv

∑§ •ÊŒ‡Ê ∑§Ê ¬˝∑§ÊÁ‡ÊÃ ∑§⁄UÃÊ „ÒU.

HIGH COURT OF CHHATTISGARH, BILASPUR

Election Petition No. 1 of 2019

Order reserved on : 8-10-2021

Order delivered on : 24-11-2021

PETITIONER

Tarika Tarangni, W/o Nirmal Lakra, aged about 39 years, Village Post Punjipatra,

Tahsil Tamnar, Distt.-Raigarh (C.G.).

VERSUS

RESPONDENTS :

Chakradhar Singh Sidar, Vill. Post Katakliya, Tahsil Lailunga, District-Raigarh,

Pin 496113.

Satyanand Rathiya, Vill. Roopali, Post Kolam, Tahsil Tamnar, District Raigarh,

Pin 496107.

Darshana Sidar, Vill. Kamrga, Post Katakliya, Tahsil Lailunga, District Raigarh,

Pin 496113

Sunil Minj, Village Bhuya Pani, PO Kurra, Katakliya, Tah. Lailunga, Distt.

Raigarh, Pin 496113.

Hridayaram Rathiya, At/PO Kurra, Tahsil Lailunga, Distt. Raigarh (C.G.), Pin-

496113.

¿UûÊË‚ª…∏U ⁄UÊ¡¬òÊ, ÁŒŸÊ¢∑§ w~ ¡È‹Êß¸U wÆww

÷Êª v ]

1199

Govind Singh Neti, Village Godhi, Tahsil Tamnar, District Raigarh, Pin-496107

Shivpal Bhagat, Village Sarasmal, PO Lailunga, Tahsil Tamnar, District Raigarh,

Pin 496113.

Suresh Kumar, Village Ghatgaon, Post Ghatoon, Distt. Raigarh (C.G.) Pin 496113.

State Election Commission, Through State Election Commissioner, Near D.K.S.

Bhawan, Old Mantralaya Road, Moti Bagh, Raipur, Chhattisgarh 492001.

10.

The Returning Officer (deleted)

For Election Petitioner

Mr. Manohar Lal Sharma, Mr. Santosh Kumar Pandey and Mr. T. L.

Bareth, Advocates.

For Respondent No. 1

Mr. B. P. Sharma and Mr. Hari Agrawal, Advocates.

For Respondent No. 2 to 9 :

None present.

E. P. No. 1/2019

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

The election petitioner herein has called in question the election of respondent No. 1 herein (returned

candidate) from Legislative Assembly Constituency No. 15 Lailunga (ST), District Raigarh, on the ground

enumerated under Section 100(1) (c) of the Representation of the People Act, 1951 (for short, ‘the Act of

1951’) that her nomination papers have been improperly rejected by the Returning Officer by its order dated

3-11-2018 vide Exhibits P-6A & P-6B.

Election Petition by the Election Petitioner :—

2.1)

The election petitioner has filed this election petition stating inter alia that on 6-10-2018, the

Election Commission of India published in the Government official Gazette of Chhattisgarh, the

election notification dated 6-10-2018 under Section 15 of the Act of 1951 and declared assembly

election in the State of Chhattisgarh and notified the dates of Chhattisgarh Legislative Assembly

(Vidhan Sabha) elections to the polls in two phases. In order to contest election from Constituency

No. 15 Lailunga (ST), District Raigarh, the election petitioner herein obtained one set of nomina-

tion paper from the Returning officer to file her nomination in the said election and on 31-10-2018

vide Exhibit P-1 she filed her nomination paper with affidavit and in reply to para (2) of Part 3A of

the said nomination paper, she has categorically declared that she was not holding any office of

profit under Central or State Government and it is the case of the election petitioner that the

Returning Officer i.e. respondent No. 10 herein (deleted) called her in office and directed her to

file second nomination paper with correct answer to para (2) of Part 3A of the said nomination

paper whether she was holding any office under Central or State Government, and she was in-

formed that in case the second nomination paper is not filed, the first nomination paper is likely to

be rejeted, on which the petitioner, on 1-11-2018, filed her second set of nomination paper for the

said constituency with affidavit vide Exhibit P-2 declaring at para (2) of Part 3A that she was

holding the post of Rural Health Officer (Female) and due to long absence from service, the De-

partment did not permit her presence and did not allow her to appear and join the service since last

two years.

2.2)

It is the case of the election petitioner that vide Exhibit P-3, the Returning Officer fixed the date of

scrutiny on 1-11-2018/3-11-2018 and on 1-11-2018, she was served with document Exhibit P-4

asking her to produce documents relating to her Government service by 2-11-2018 up-to 3 p.m.

and thereafter, in compliance thereof, she filed an affidavit Exhibit p-5 stating that she was in

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1200

Government job as Rural Health Officer (RHO) (Female) in Sub-Health Centre, Kurrog & Bahirkela;

Community Health Centre, Tamnar, and Primary Health Centre, Saraipali, and she was on leave

from 28-7-2016 to 31-7-2016, thereafter, on 5-11-2016, when she communicated her joining, same

was not accepted by letter dated 10-11-2018 and as such, she finally concluded that no departmen-

tal enquiry was instituted against her and since she is not in service from 1-8-2016 to 2-11-2018, on

the pressure of Jindal Company, her services have been terminated and thus, she is not holding any

office of profit. Both the nomination papers were considered by the Returning Officer and

vide Exhibits P-6A & P-6B, the two nomination papers were rejected by the Retuning Officer on

3-11-2018 holding that she has not filed any document to show that she has been terminated from

service or she has resigned from service. On 20-11-2018, polling of that constituency took place

and after 11-12-2018, counting process was completed and respondent No. 1 was declared elected

from the said constituency which has been called in question by the election petitioner in this

election petition.

2.3)

It is the further case of the election petitioner that her nomination papers have improperly been

rejected, as the first set of nomination paper filed by her to contest the election from ConstituencyNo.

15 Lailunga (ST), District Raigarh was not rejected by the Returning Officer till date, therefore,

she was entitled to contest the election. It is further submitted that since the first set of nomination

paper was rejected only after she filed the second set of nomination paper and since the 1st set of

nomination paper had no objection/defect of any kind, therefore, the Returning Officer could not

have rejected the first nomination paper by rejecting the second nomination, it is a clear case of

violation of Section 36 of the Act of 1951 and contrary to law and as such, both the nomination

papers have improperly been rejected in violation of Section 36(3) of the Act of 1961. As such, her

nomination papers have improperly been rejected and consequently, the election of respondent

No. 1 deserves to be declared void.

Written Statement by the Returned Candidate :—

3.1)

Written statement has been filed only by respondent No. 1 denying the averments made in the

election petition stating that rejection of two nomination papers of the election petitioner by the

Returning Officer is fully justified and the election petitioner in her election petition has not dis-

puted the fact that she was working in the Department of Health as Rural Health Officer (Female)

and the election petitioner was under misconception that due to her long absence and on account of

some outside forces, her services have been terminated which is false to the knowledge of the

petitioner herself. As such, the petitioner was in Government service on the date of filing nomina-

tion paper and she could not file documents showing that she has resigned from service or she has

been terminated from service in accordance with the relevant provisions contained in the Chhattisgarh

Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, (the Rules of 1966’) and

therefore she is not qualified for being elected as a Member of Legislative Assembly and her

nomination has rightly been rejected.

3.2)

Specific statement has been made by respondent No. 1 in paragraph 40 of the written statement

stating inter alia that since the election petitioner was in Government service, the Returning Of-

ficer vide Exhibit P-4 has rightly granted one day time till 2-11-2018 up to 3 p.m. to the election

petitioner to file documents qua the Government service, but the petitioner could not substantiate

that she has already resigned from service. It has been further averred that although the petitioner

has filed affidavit vide Exhibit P-5 that her services have been terminated, but documents demon-

strating her termination were not filed, therefore, vide Exhibits P-6A & P-6B, the Returning Of-

ficer was justified in rejecting her nomination papers, as the petitioner’s services can be terminated

except only in accordance with the Rules of 1966. Therefore, the nomination papers of the peti-

tioner have rightly been rejected by the Returning Officer. It has also been pleaded that qualifica-

tions for membership of a Legislative Assembly have been stated in Section 5 of the Act of 1951

which has to be read along with Article 191(1)(a) of the Constitution of India which provides that

a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assem-

bly or Legislative Council of a State, if he holds any office of profit under the Government of India

or the Government of any State specified in the First Schedule, other than an office declared by the

Legislature of the State by law not to disqualify its holder. Since the petitioner was holding the

office of profit as she was, on the date of scrutiny of nomination paper, in Government service

being Rural Health Officer (Female) which is an office of profit and which is a disqualification of

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1201

membership being a Government servant, drawing or entitled to draw salary from the Government

on account of holding post, therefore, the petitioner was disqualified under Article 191(1)(a) of the

Constitution of India and as such, the Returning Officer was fully justified in rejecting the nomina-

tion papers after affording opportunity of hearing to the petitioner and as such, the election petition

is liable to be dismissed.

Issues and Findings on the Issues :— On the basis of pleadings made by parties, following issues were

framed and corresponding asnwers/findings are noted against each one of them :—

S. No.

Issues

Findings

(1)

(2)

(3)

Whether the election of respondent No. 1 from

“NO”

Lailunga Legislative Assembly Constituency

No. 15 (Scheduled Tribe), Distt. Raigarh, is

liable to be declared void under Section 100(1)

for improper rejection of election petitioner’s

nomination paper by order dated 3-11-2018 by

the Returning Officer on the ground of her

being in service of the State Government ?

Whether the election petition as framed and

This issue has already been adjudicated as

filed is liable to be dismissed for non-compliance

preliminary issue by order dated 26-7-2021

of the mandatory provisions of the Representa-

and review petition against that order has

tion of the People Act, 1951 including the

also been dismissed by order dated 4-10-

proviso to Section 83 of the said Act and Rule

2021.

94A of the Conduct of Election Rules, 1961 ?

Relief and cost(s) which the election petitioner

Election petitioner is not entitled for any

is entitled for ?

relief as per paragraph 42 of this judgment.

In order to prove her case that her nomination papers were improperly rejected by the Returning Officer,

though the election petitioner has entered into the witness box as PW-1, but she has not filed her affidavit

under order 18 Rule 4 of the CPC and only in her examination-in-chief before the Court, she has exhibited

documents Exhibits P-1 to P-5, P-6A & P-6B. When the evidence of the election petitioner commenced on

10-9-2021, learned counsel for respondent No. 1 has filed an application under Order 18 rule 4 of the CPC

that the election petitioner has not filed her affidavit under Order 18 Rule 4 of the CPC, therefore, she is not

entitled to record her evidence and prayed for a direction to the election petitioner to comply with the

mandatory statutory provisions contained in Order 18 Rule 4 of the CPC while proceeding with examina-

tion/evidence of herself and/or her witnesses on which the order was reserved and to be considered at the

time of final hearing/order.

Since the election petitioner did not choose to file affidavit under Order 18 Rule 4 of the CPC before

commencement of trial of election petition and only choose to enter the witness box to prove the documents

vide Exhibits P-1 to P-5, P-6A & P-6B, it is the choice of the election petitioner to file or not to file affidavit

under Order 18 Rule 4 of the CPC, but she cannot be compelled to do so as she had already entered the

witness box on 10-9-2021 and she has been extensively cross-examined by and on behalf of respondent No.

1. As such, this application I.A. No. 12/2021 is accordingly disposed of.

Similarly, learned counsel for respondent No. 1 raised a strong objection that the documents Exhibits P-1 to

P-6, P-6A & P-6B are inadmissible in evidence and the election petitioner cannot prove those documents.

Documents Exhibits P-1 to P-6, P-6A & P-6B are public documents and certified copies of which have been

produced before the court at the instance of the election petitioner and which have been marked as exhibits.

It is well settled law that more marking of a document as an exhibit does not dispense with the proof of the

document (See Sait Tarajee Khimchand and others V. Yelamarti Satyam and others¹). Therefore, the objec-

tion raised on behalf of respondent No. 1 in this regard is hereby rejected.

AIR 1971 SC 1865

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1202

In order to prove her case, the election petitioner examined herself as PW-1 and has produced documents

Exhibits P-1 to P-5, P-6A & P-6B on 10-09-2021. Similarly. in opposition. though respondent No. 1 did not

enter into the witness box, his election agent namely, Om Sagar Patel (DW-1) has entered into the witness

box and Returning Officer Ashok Kumar Marbal has been examined as DW-2. Respondent No. 1 has brought

documents Exhibits D-1 to D-8 on record. Ashok Kumar Marbal (DW-2) - Returning Officer has proved his

signature on Exhibits P-4, P-6A & P-6B and also stated that he has rejected the nomination papers vide

Exhibits P-6A & P-6B by order dated 3-11-2018.

Submissions on behalf of the parties :—

9.1)

Mr. Manohar Lal Sharma, learned counsel appearing on behalf of the election petitioner, would

submit as under :—

The Returning Officer — respondent No. 10 herein (deleted) has acted in improper

manner firstly, by examining the nomination paper at the time of submission (before the

date of scrutiny) and directed for submission of documents regarding Government service

vide Exhibit P-4 and secondly, by rejecting both the nomination papers on the same date

on the ground of the election petitioner being in Government service and has not filed

documents showing resignation or otherwise, particularly when the election patitioner in

her first nomination, has not said that she is a holder of the office of profit, as such, her

nomination papers were improperly rejected.

The election petitioner was not in Government service as Rural Health Officer (Female)

at the relevant point of time as her services were terminated on the pressure applied by

Jindal company and she is not in service from 1-8-2016 to 2-11-2018 and she was not

holding the office of profit as she has clearly stated in the affidavit filed before the Return-

ing Officer vide Exhibit P-5 on 2-11-2018. The order of the Returning Officer vide Exhib-

its P-6A & P-6B was totally a wrong and perverse order and is violative of Article 21 of

the Constitution of India and is also violative of Sections 30, 35 & 36 of the Act of 1951.

The election petitioner was never holding any office of profit and she has been terminated

and is covered by Section 25F of the Industrial Disputes Act, 1947, and relied upon the

following judgments of the Supreme Court and other High Courts :—

Mohinder Singh Gill and another V. The Chief Election Commissioner, New

Delhi and others² (Supreme Court).

Bangalore Water-Supply & Sewerage Board, etc. V. R. Rajappa and others³

(Supreme Court).

The Divisional Forest Manager v. Shri Vinayak Kume⁴ (Bombay High Court).

State of Rajasthan and other v. Harish Chandra Sharma and others⁵ (Rajasthan

High Court).

Mukundbhi Mangaldas Shrimali v. State of Gujarat⁶ (Gujarat High Court).

9.2)

Mr. B. P. Sharma and Mr. Hari Agrawal, learned counsel appearing for respondent No. 1, would

submit that the Returning Officer has acted as per the directions contained in the Handbook for

Returning Officer 2018 issued by the State Election Commission, which provides that he shall take

decision by conducting preliminary examination of nomination papers immediately upon receiving

the same and asking for submission of relevant documents relating to Government sevice. Thus, as

per the directions/instructions, the Returning Officer has to scrutinize all the nomination papers

together in view of the provisions contained in clause 6.5 of the aforesaid Handbook and as such,

both the nomination papers were rightly rejected by the Returning Officer on 3-11-2018 vide

Exhibits P-6A & P-6B, Since the election petitioner was in Government service, Rule 5 of the

Chhattisgarh Civil Services (Conduct) Rules, 1965, bars a Government servant to take part in an

AIR 1978 SC 851

AIR 1978 SC 548

W.P. No. 3208/2011, decided on 27-9-2011

RLW 2006 (4) Raj 3028

Special Civil Application No. 11028/2001, decided on 30-6-2016

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1203

election to the legislature or the local authority. Similarly, unless an express order after departmen-

tal enquiry is passed, merely on account of absence from duty after expiry of leave, it cannot be

presumed that her services have been terminated in view of Rule 24 of the Chhattisgarh Civil

Services (Leave) Rules, 1977. It was also submitted that since the election petitioner was admit-

tedly in Government service and she was holding the office of profit in terms of Article 191(1)(a)

of the Constitution of India, she was disqualified from contesting election and being chosen as a

Member of Legislative Assembly and as such, her nomination papers were rightly rejected by the

Returning Officer and thus, the election petition deserves to be dismissed.

10.

Except respondent No. 1 other respondents have not chosen to appear and contest the election petition and

no written statement was filed on their behalf, as such, they have been proceeded ex parte in this election

petition.

11.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and

also went through the record with utmost circumspection.

12.

Reasons for finding on issues :—

Issue No. 1 :— For the sake of convenience, issue No. 1 is divided in two parts in the following manner :—

Whether, on the date of filing nomination papers vide Exhibits P-1 & P-2, the election petitioner

was in Government service in the Department of Health, as Rural Health Officer (Female) under

the State of Chhattisgarh and as such, the Returning Officer - respondent No. 10 herein (deleted)

was justified in rejecting her nomination papers on the ground of she being in Government service

by taking both the nomination papers simultaneously ?

and/or

Whether, the election petitioner was disqualified for being chosen as a Member of Legislative

Assembly on account of her holding the post of RHO (F) under the Government of Chhattisgarh

being an office of profit and therefore in terms of Article 191(1)(a) of the Constitution of India

disqualified from being chosen as a Member of Legislative Assembly ?

13.

The election petitioner being an elector for Legislative Assembly Constituency No. 15 Lailunga (ST),

District Raigarh, in order to contest election from the said constituency submitted her first nomination

paper to the Returning Officer vide Exhibit P-1 on 31-10-2018 in which in Part 3A, para (2), she has clearly

stated that she is not holding any office of profit either under the state Government or under the Union of

India and thereafter, she submitted second nomination paper vide Exhibit P-2 on 1-11-2018 at 2.45 p.m.

clearly stating in Part 3A, para (2), that she was holding the office of profit as Rueal Health Officer (Female)

in the Department of Health, but on account of her long absence, her joining has not been accepted and for

last two years, she has not been allowed to work in the district office. The Returning Officer vide Exhibit P-

3 after Preliminary examination on 1-11-2018 at 3.12 p.m. issued document Exhibit P-4 directing the

election petitioner to produce documents qua her Government service by 2-11-2018 till 3p.m. in compli-

ance of Exhibit P-4, the election petitioner filed affidavit Exhibit P-5 in which she has stated that from 8-8-

2002 to 31-7-2016, she was in regular Government service as RHO (F) in Sub-Health Centre, Kurrog &

Bahirkela; Community Health Centre, Tamnar, and Primary Health Centre, Saraipali, and she was on leave

from 28-7-2016 to 31-7-2016, but thereafter, she has not been allowed to join, and finally, in paragraph 10,

she has concluded that from 1-8-2016 to 2-11-2018, for two years, she is not in Government service and

under the pressure of Jindal company, her services have been terminated and she is not holding office either

under the Central or State Government. The election petitioner has filed documents in nine pages along

with the affidavit which have been produced and exhibited by respordent No. 1 and Proved by the election

petitioner vide Exhibits D-1 to D-8. On receipt of documents Exhibit P-5 and Exhibits D-1 to D-8, the

Returning Officer vide Exhibits P-6A & P-6B, rejected both the nomiation papers, as the election petitioner

herself has admitted being in Government service but she has not produced any document of resignation

demonstrating that her resignation has been accepted by the competent authority within the time limit fixed

and accordingly, proceeded to reject the nominations vide Exhibits P-6A & P-6B and thereafter, the elec-

tion as scheduled was held in which respondent No. 1 has been declared elected which is sought to be

challenged by the petitioner on the sole ground that her nomination papers have been improperly rejected

by the Returning Officer.

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14.

The first and foremost objection that has been taken on behalf of the election petitioner is that both the

nomination papers Exhibits P-1 & P-2 were considered and rejected simultaneously, they ought to have

been considered separately it is the case of the petitioner that the Returning Officer made preliminary

examination of her first nomination paper and directed her to file second nomination paper, and under the

threat of rejection of her first nomination paper, she has filed the second nomination paper.

15.

Mr. Ashok Kumar Marbal, who at the relevant point of time functioned as Returning Officer, has been

examined as DW-2. In his evidence before the Court, he has clearly stated that following the procedure

prescribed in the Handbook for Returning Officer 2018 issued by the State Election Commission and the

procedure prescribed for scrutiny of nomination papers and upon preliminary examination as prescribed in

clause 5.11.1 and in view of the fact that the petitioner herself having stated in Exhibit P-2 that she is

holding the office of profit being RHO (F) in the Department of Health and her joining has not been

accepted on account of long absence, Exhibit P-4 was issued to her in the format prescribed in the said

Handbook to which the petitioner has submitted reply in shape of affidavit Exhibit P-5 and as per the

procedure contained in clause 6.5 of the aforesaid Handbook, both the nomination papers have scrutinized

simultaneously.

16.

In order to decide the said plea, it would be appropriate to notice clause 6.5.1. of the Handbook for Return-

ing Officer 2018 contained in clause 6.5. which provides for Scrutinization of all nomination papers. Clause

6.5.1. states as under :—

“6.5.

All Nomination Papers to be Scrutinized

6.5.1.

Returning Officer should then take up nomination papers one after another and scrutinize

them, If more than one nomination paper has been presented by or on behalf of one

candidate, he/she should take them up together and scrutinize them one after another. It

whould not be correct or legal to pass over other nomination papers of a candidate

without scrutiny, merely because one ore more nomination papers of that candidate have

been already found valid by the Returning Officer.”

17.

A careful persual of the aforesaid provision would show that if more than one nomination paper has been

presented by or on behalf of one candidate, all nomination papers have to be taken together and have to be

scrutininzed one after another, meaning thereby, all the nomination papers have to be taken together and

they are not supposed to be decided separately. in the instant case, since the election petitioner has filed two

nomination papers vide Exhibits P-1 & P-2 for contesting the election in Lailunga Assembly Constituency

No. 15 (ST), both the nomination papers were considered together by the Returning Officer and in view of

reply made by the petitioner in Part 3A, para (2) of Exnibit P-2 that she was holding the office of profit but

she has not been allowed to join, Exhibit P-4 was issued to the petitioner and thereafter, considering her

affidavit Exhibit P-5, both the nomination papers were rejected vide Exhibits P-6A & P-6B. As such, the

Returning Officer has rightly followed the procedure and rightly took-up the nomination papers Exhibits P-

1 & P-2 together and rightly considered the same together as per the procedure prescribed by considering

the two nomination papers filed by one candidate and thus, no objection could have been taken in that

respect that both the nomination papers could have been decided separately. The procedure followd by the

Returning Officer in considering both the nomination papers simultaneously is in accordance with clause

6.5, of the Handbook for Returning Officer 2018 and otherwise also, it is established practice to consider the

two nomination papers of one candidte together, which cannot be said to be erroneous of illegal in law. I do

not find any merit in the contention raised by learned counsel for the petitioner that both the nomination

papers could not have been considered simultaneously at the time of scrutiny and therefore the nomination

paper Exhibit P-1 could have been rejected as there was no objection in that regard.

18.

It is the case of the election petitioner that though she was holding the post of Rural Health Officer (Female)

in the Department of Health as a regular Government servant from 8-8-2002 to 31-7-2016 and she remained

on leave from 28-7-2016 to 31-7-2016, but thereafter, when she submitted letter dated 5-11-2016 for join-

ing, it was not accepted and number of letters vide Exhibits D-1 to D-3 were submitted by her for joining

and finally, she was given a letter by the Block Medical Officer, Tamnar to obtain permission from the Chief

Medical & Health Officer, Distt. Raigarh to join in the Government service, vide Exhibit D-4, thereafter,

she also submitted letters to the CMHO, Distt. Raigarh, videe Exhibit D-5 to D-8, but she was not allowed

to join in service and thus, she is not in Government service from 1-8-2016 to 2-11-2018 and as such, her

services have been terminated on the pressure of Jindal company and she is not holding any office of profit

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under the State or the Central Government. Document Exhibit P-2 is the document of the election petitioner

herself in which she has stated in Part 3A, para (2), as under :—

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(v)

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(w)

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◊È¤Ê Á¡‹Ê ∑§ÊÿÊ¸‹ÿ ‚ ∑§Êÿ¸ ◊¥ ©U¬ÁSÕÃ „UÊŸ ∑§Ë •ŸÈ◊ÁÃ Ÿ„UË¥ ŒË ªß¸U „ÒU.

19.

It is appropriate to mention here that Exhibit P-2 is the document of the election petitioner herself and in her

cross-examination, paragraph 5, she has clearly stated the aforesaid fact to be correct. Similarly in the

affidavit submitted by her before the Returning Officer (Exhibit P-5), she has specifically stated that she

was in Government service from 8-8-2002 to 31-7-2016 as RHO (F) in Sub-Health Centre, Kurrog &

Bahirkela, Community Health Centre, Tamnar; and Primary Health Centre, Saraipali. As such, the fact of

the election petitioner being a Government servant on the date of nomination is not in dispute. What she has

stated in Exhibit P-2, in Part 3A, para (2) as well as in Exhibit P-5 is that she was not allowed to join despite

several letters Exhibits D-1 to D-3 & D-5 to D-8 and no departmental enquiry was held against her and she

is not in Government service from 1-8-2016 to 2-11-2018 for last two years and on the pressure of Jindal

company, her services have been terminated and she is not holding the office of profit and same amounts to

oral termination of service.

20.

As such, it is duly established from the aforesaid facts that the election petitioner was appointed as regular

Government servant in the Department of Health as RHO (F) in August, 2008, she was a regular Govern-

ment servant and she continued on the post up to 31-7-2016. On 28-7-2016, she proceeded on leave up to

31-7-2016, but thereafter, on 5-11-2016, it is her case that she was not allowed to join in the Government

service which is apparent from Exhibit D-1 to D-3 and vide Exhibit D-4, the Block Medical Officer, Tamnar

asked her to seek permission from the CMHO, Distt. Raigarh which she submitted asking for her joining

vide Exhibit D-5 to D-8, but she was not permitted to join. As such it is a case of absence from service after

expiry of leave.

21.

Rule 24 of the Chhattisgarh Civil Services (Leave) Rules, 1977 (for short, ‘the Rules of 1977’) provides the

consequence of absence from duty after expiry of leave. It states as under :—

“24.

Absence after expiry of leave.—

(1)

Unless the authority competent to grant leave extends the leave, Government servant who

remains absent after the end of leave is entitled to no leave salary for the period of such

absence and that period shall be debited against his leave account as though it were half

pay leave to the extent such leave is due, the period in excess of such leave due being

treated as extraordinary leave.

(2)

Willful absence from duty after the expiry of leave renders a Government servant liable to

disciplinary action.”

22.

A careful perusal of the aforesaid rule would show that in case of long absence or remaining absent after the

end of leave without grant by the competent authority, the Government servant is entitled to no leave salary

for the period of such absence and that period shall be debited against his leave accout. Similarly, by virtue

of sub-rule (2) of Rule 24 of the Rules of 1977, willful absence from duty after the expiry of leave renders

a Government servant liable to disciplinary action. Pursuant to the departmental proceeding. a Government

servant can be inflicted the penalties set-out in Rule 10 of the Rules of 1966 which can be minor penalties

as well as major penalties and which rests exclusively within the jurisdiction and domain of the disciplinary

authority. However, in view of Rule 24(2) of the Rules of 1977, long absence after expiry of leave will not

amount to authomatic termination of service as for termination of service there has to be a departmental

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1206

enquiry in case of regular Government servant in accordance with the Rules of 1966 and penalty of termi-

nation can be inflicted as major penalty after recording a finding of grave misconduct, except in cases

covered by 2nd proviso to sub-clause(2) of Article 311 of the Constitution of India, where the authority

empowered to dismiss or remove/reduce him in rank is satisfied that for some reason, to be recorded by that

authority in writing, it is not reasonably practicable to hold such inquiry.

23.

Admittedly, in the present case, on the own showing of the election petitioner vide Exhibit P-5 in paragraph

9, it has clearly been stated that no departmental enquiry was instituted against her and as such, there is no

order of termination passed against her. The petitioner has only stated in paragraph 10 of Exhibit P-5 that

she is not in Government service with effect from 1-8-2016 to the date of scrutiny i.e. 2-11-2018 and her

services have been terminated that too on the pressure of Jindal company and she is not holding any office

of profit which the Returning Officer didi not accept holding that since the petitioner is in regular govern-

ment servant and she has not produced the order of termination or letter of resignation within the time limit

given by him, therefore, in that view of the matter, her nomination papers are rejected. and thus, the Return-

ing officer didi not accept the fact of oral termination from service claimed by the election petitioner.

24.

At this stage, it would be extremely relevant to notice Rule 5 of the Chhattisgarh Civil Services (Conduct)

Rules, 1965 (for short, the Rules of 1965’) by which the Government servants are barred from participating

in the election of any legislature or local authority. Sub-rule (4) of Rule 5 of the Rules of 1965 states as

under :—

“5.

Taking part in politics and elections.— (1) to (3) XXX

XXX

(4)

No Government servant shall canvas or otherwise interfere with, or use his influence in

connection with or take part in, an election to any legislature or local authority :

Provided that —

(i)

a Government servant qualified to vote at such election may exercise his right to

vote, but where he does so, he shall give no indication of the manner in which he

proposes to vote or has voted ;

(ii)

a Government servant shall not be deemed to have contravened the provisions of

this sub-rule by reason only that he assists in the conduct of an election in the due

performance or a duty imposed on him by or under any law for the time being in

force.

Explanation.— The display by a Government servant on his person, vehicle or

residence of any electoral symbol shall amount to using his infliuence

in connection with an election within the meaning of this sub-rule.”

25.

A focused glance of the aforesaid provision would show that the legislature has designedly thought it

expedient to restrain/injunct the government servant eiher to canvas or otherwise interfere with, or use his

influence in connection with or take part in, an election to any legislature or local authority. The legislative

object of enacting such rule is that the status enjoyed by the candidates shall not be allowed to be prejudicial

via-a-vis candidates who do not enjoy such a status. As such. the election petitioner being a regular Govern-

ment servant on the date of filling nomination was by virtue of Rule 5(4) of the Rules of 1965 specifically

prohibited from taking part in the election to the legislature, as the said provision is imperative in nature

being the legislative injunction restraining the Government servant from taking part in election to any

legislature or local authority, in any manner whatsoever.

26.

In the matter of Chet Ram V. Jit Singh⁷, the Supreme Court considered rule 22(4) of the Department of

Posts, Gramin Dak Sewak (Conduct and Employment) Rules, 2001 which contained prohibition against

taking part in election to any legislative or local authority and held that since there is a specific prohibition

in statutory rules against taking part in elections of legislative assembly or local authority, the candidate is

(2008) 14 SCC 427

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disqualified from constesting in the election. It has been observed in paragraph 9 of the report as under :—

“9.

Indisputably, the terms and conditions of a Gramin Dak Sewak are governed by the provisions of

the Rules ;

sub-rule (4) of Rule 22 whereof reads as under :

“22.

(4)

No Sevak shall canvass or otherwise interfere with or use his influence in con-

nection with, or take part in an election to any legislative or local authority.”

The said Rules were framed in terms of proviso appended to Article 309 of the Constitution of

India. The terms and conditions of employment of a Gramin Dak Sewak are governed by statutory

rules. The Rules framed in terms of the proviso appended to Article 309 of the Constitution of India

indisputably govern only government employees. It was, therefore, for appellant to show that he

was not governed by the Rules.”

27.

Since the election petitioner was specifically prohibited by sub-rule (4) of Rule 5 of the Rules of 1965 from

taking part in election and the said rule is statutory in nature, the petitioner contested the election in direct

conflict with specific prohibition contained in the above-stated rule applicable to her.

28.

In view of the above-stated finding, the plea of termination advanced by learned consel for the petitioner

has no force and accordingly it is rejected. Similarly, the judgments cited by Mr. Manohar Lal Sharma,

learned counsel, are clearly inapplicable and distinguisheble to the facts of the present case.

29.

Now, the question for consideration is, whether the election petitioner was disqualified for being chosen as

Member of Legislative Assembly on account of her holding the office of profit under the Government of

Chhattisgarh ?

30.

In order to adjudicate the plea, it would be appropriate to notice the provision contained in Article 191

(1)(a) of the Constitution of India which states as under :—

“191.

Disqualifications for membership.— (1) A person shall be disqualified for being chosen as, and

for being, a member of the Legislative Assembly or Legislative Council of a State —

(a)

if he holds any office of profit under the Government of India or the Government of any

State specified in the First Schedule, other than an office declared by the Legislature of

the State by law not to disqualify its holder,”

31.

The principal contained in Article 191 of the Constitution of India is based on sound public policy of

ensuing impartiality and neutrality in public service and avoidance of conflict between duty and interest of

an elected member enabling him to carry-on his duties, freely and fearlessly without being subjected to any

governmental pressure thereby maintaining purity of legislature. The object of said provision Article 191

(1)(a) of the Constitution is to disqualify a person from membership of legislature, if he/she is obliged to the

Government for an office which carries benefit or profit and thus, compromising his/her independence.

32.

An ‘office of profit’ is an office which is capable of yielding a profit or pecuniary gain. In order to be an

office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary

benefits such as providing for official accommodation or even a chauffeur driven car. Holding an office the

Central or state Government to which some pay, salary emolument, remuneration or non-compensatory

allowance are attached is “holding an office of profit”. The question whether a persons holds an office of

profit is required to b interpreted in a realistic manner.

33.

For deciding the question as to whether one is holding an office of profit or not, what is relevant is, whether

the office is capable or “yielding” a profit or “pecuniary gain” and not whether the person actually obtained

monetary gain. If the ‘pecuniary’ gain is receivable in connection with the office, then it becomes an office

of profit, irrespective of the fact whether such pecuniary gain is actually received or not. If the office carries

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with it, or entitles the holder to any pecuniary gain other than reimbursement of out of pocket/actual

expenses, then the office will be an office of profit. (See Jaya Bachchan V. Union of India⁸.)

34.

The Supreme Court in the matter of Shivamurthy Swami Inamdar V. Agadi Sanganna Andanappa⁹ while

taking into consideration its earlier decision in the matter of Ravanna Subanna v. G. S. Kaggeerappa¹⁰ laid

down the tests for finding out whether an office in question is an office under a Government and whether it

is an office of profit. It has been observed by their Lordships of the Supreme Court in Shivamurthy Swami

Inamdar (supra) as under :—

“14.

Therefore before the provisions of that Article can be attracted, it must be established that he was

holding an office under the Union or the State Government and that that office was an office

of profit and thereafter we must see whether the disqualification relating to that office has been

removed by any Parliamentary legislation. In other words, the office in question must have been

held under a Government and to that some pay, salary, emoluments or allowance is attached. The

word ‘profit’ connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount

would not be material; but the amount of money receivable by a person in connection with the

office he holds may be material in deciding whether the office really carries any profit-see Revenna

Subanna v. G. S. Kaggerappa (AIR 1954 SC 653). This Court in several decisions has laid down the

tests for finding out whether an office in question is an office under a government and whether it is

an office of profit. Those tests are : (1) Whetther the Government makes the appointment; (2)

Whether the Government has the right to remove or dismiss the holder; (3) Whether the Govern-

ment pays the remuneration; (4) what are the functions of the holder? Does he perform them for

the Government and (5) Does the Government exercise any control overr the performance of those

functions? see abdul Shakur v. Rikhab Chand¹¹; Ramappa v. Sangappa¹²; and Govinda Basu v.

Sankari Prasad¹³. ......”

35.

Similarly, in the matter of Biharilal Dobray v. Roshan Lal Dobray¹⁴, the Supreme Court while considering

the earlier decisions and highlighting the object of enacting Article 191(1)(a) of the Constitution of India,

held in paragraph 5 as under :—

“5.

The object of enacting Article 191 (1) (a) is plain. A person who is elected to a Legislature should

be free to carry on his duties fearlessly without being subjected to any kind of governmental

pressure. If such a person is holding an office which brings him remuneration and the Government

has a voice in his continuance in that office, there is every likelihood of such person succumbing to

the wishes of Government. Article 191 (1)(a) is intended to eliminate the possibility of a conflict

between duty and interest and to maintain the purity of the Legislatures. The term “office of profit

under the Government” used in the above clause though indeterminate is an expression of wider

import than a post held under the Government which is dealt with in Part XIV of the Constitution.

For holding an office of profit under the Government a person need not be in the service of the

Government and there need not be any relationship of master and servant between them. An office

of profit involves two elements, namely, that there should be an office and that it should carry some

remuneration. In order to determine whether a person holds an office of profit under the Govern-

ment several tests are ordinarily applied such as whether the Government makes the appointment,

whether the Government has the right to remove or dismiss the holder of the office, whether the

Government pays the remuneration, whether the functions performed by the holder are carried on

by him for the Government and whether the Government has control over the duties and functions

of the holder. Whether an office in order to be characterised as an office of profit under the Govern-

ment should satisfy all these tests or whether any one or more of them may be decisive of its true

nature has been the sbject matter of several cases decided by this Court but no decision apppears to

lay down conclusively the characteristics of an office of profit under the Government although the

Court has no doubt determined in each case whether the particular office involved in it was such an

office or not having regard to its features.”

AIR 2006 SC 2119

1971 (3) SCC 870

AIR 1954 SC 653

1958 SCR 387

1959 SCR 1167

(1964) 4 SCR 311

(1984) 1 SCC 551

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36.

Similarly, in the matter of Satrucharla Chandrasekhar Raju v. Vyrichertla Pradeep Kumar Dev and an-

other¹⁵, again the Supreme Court set-out some of the tests/principles for determining whether a person holds

an office of profit under the Government and summarized the legal principles in paragraphs 11 and 18 as

under :—

“11.

On a careful examination of the ratio laid down in the above-mentioned cases some of the tests or

principles that emerge for determining whether a person holds an office of profit under the Govern-

ment, may be summarised thus:

“(1)

The power of the Government to appoints a person in office or to revoke his appointment

at its discretion. The mere control of the Government over the authority having the power

to appoints, dismiss, or control the working of the officer employed by such authority

does not disqualify that officer from being a candidate for election as a member of the

Legislature.

(2)

The payment from out of the Government revenues are important factors in determining

whether a person is holding an office of profit or not of the Government. Though payment

form a source other than the Government revenue is not always a decisive factor.

(3)

The incorporation of a body corporate and entrusting the functions to it by the Govern-

ment may suggest that the statute intended it to be a statutory corporation independent of

the Government. But it is not conclusive on the question whether it is really so indepen-

dent. Sometimes, the form may be that of a body corporate independent of the Govern-

ment, but in substance, it may just be the alter ego of the Government itself.

(4)

The true test of determination of the said question depends upon the degree of control the

Government has over it, the extent of control exercised by very other bodies or commit-

tees, and its composition, the degree of its dependence on the Government for its financial

needs and the functional aspect, namely, whether the body is discharging any important

Governmental function or just some function which is merely optional from the points of

view of the Government.”

18.

Articles 102(1)(a) and 191(1)(a) are incorporated in order to eliminate or reduce the risk of conflict

between the duty and interest amongst the members of the Legislature and to ensure that the

Legislature does not contain persons who have received benefits from the Executive and who

consequently being under an obligation might be amenable to its influence. Therefore this object

must be borne in mind in interpreting these Articles. It is in this context the words “under the

Government” so far as the present case is concerned, become more relevant and should be exam-

ined from that perspective keeping in view the necessary power to appoint or remove.”

37.

In the matter of Shibu Soren v. Dayanand Sahay and others¹⁶, the Supreme Court took under review the

earlier decisions on the point and observed in paragraphs 24, 25, 26 and 27 as under :—

“24.

In Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404, the

appellant had been appointed as a single teacher in a primary school by the Project officer of the

Integrated Tribal Development Agency (ITDA). The High Court held that the appeliant was hold-

ing an “office of profit” and had, thus, incurred a disqualification envisaged by Article 191(1)(a) of

the Constitution. Setting aside the order of the High Court, and allowing the appeal it was held by

this Court: SCC p. 428-29, para 29

“29.

What emerges from the above discussion is that the Government has some control over

the ITDA which is set up as a project, since it provides funds and sanctions the posts; the

District Collector is appointed as Project Officer and some officers are ex officio members

of the ITDA which carries out the object of providing compulsory education in tribal

areas. But the ITDA is a registered sociaty having its own constitution. Though the Project

Officer is the District Collector, he acts as a different entity. The power to appoint or to

remove teachers is not with the Government but with the Project Officer. The Government

(1992) 4 SCC 404

(2001) 7 SCC 425

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1210

may have control over the appointing authority but has no direct control over the teachers.

The small post that appellant holds in ITDA is only that of a teacher who is directly under

the control of the Project Officer. In such a situation the question of any conflict between

his duties and interests as an elected member does not arise since it cannot be said that he,

as a teacher, can be subjected to any kind of pressure by the Government which has

neither the power to appoint him nor to remove him from service. Taking a practical view

of the substance of these factors into consideration, we are of the view that the appellant

cannot be held to be holding an office of profit under the Government”.

(emphasis supplied)

25.

From a resume of precedents noticed above we find that in order to attract disqualification

contained in Article 102(1)(a), a person must not only be holding “an officer” but that

office must be “an office of profit” and should be “under the Government” and should be

an office other than an office declared by the completent legislature by law not to dis-

qualify its holder. The first question which comes to the fore, therefore is as to when can

a person be said to be “holding an office of profit” under the Government.

26.

The expression “office of profit” has not been defined either in the Constitution or in the

Representation of the People Act. In common parlance, the expression “profit” connotes

an idea of some pecuniary gain. If there is really some gain, its label — “honorarium” —

“remuneration” — “Salary” is not material — it is the substance and not the form which

matters and even the quantum or amount of “pecuniary gain” is not relevant — what

needs to be found out is whether the amount of money receivable by the person concerned

in connection with the office he holds, gives to him some “Pecuniary gain”, other than as

“compensation” to defray his out-of-pocket expenses, which may have the possibility to

bring that person under the influence of the executive, which is conferring that benefit on

him.

27.

With a view to determine whether the office concerned is an “office of profit”, the court

must, however, take a realistic view. Taking a broad or general view, ignoring essential

details is not desirable nor is it permissible to take a narrow view by which technicality

may overtake reality. It is a rule of interpretation of statutes that the statutory provisions

are so construed as to avoid absurdity and to further rather than defeat or frustrate the

object of the enactment. Courts, therefore, while construing a statute avoid strict con-

struction by construing the entire Act. (See with advantage Ashok Kumar Bhattacharyya

v. Ajoy Biswas¹⁷, Tinsukhia Electric supply Co. Ltd. v. State of Assam¹⁸, and CIT v. J.H.

Gotla¹⁹.)”

38.

In Jaya Bachchan (supra), the Supreme Court has considered clause (1) (a) of Article 102 of the Constitution

of India, which is pari materia to Article 191 (1) (a) of the Constitution, and following the earlier decisions,

held as under :—

“6.

Clause (1) (a) of Article 102 provides that a person shall be disqualified for being chosen as, and

for being, a member of either House of Parliament if he holds any office of profit under the Gov-

ernment of India or the Government of any State, other than an office declared by Parliament by

law not to disqualify its holder. The term “holds an office of profit” though not defined, has been

the subject-matter of interpretation, in several decisions of this Court. An office of profit is an

office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central

or State Government, to which some pay, salary, emolument, remuneration or non-compensatory

allowance is attached, is “holding an office of profit”. The question whether a person holds an

office of profit is required to be interpreted in a realistic manner. Nature of the payment must be

considered as a matter of substance rather than of form, Nomenclature is not important. In fact,

mere use of the word “honorarium” cannot take th payment out of the purview of profit, if there is

pecuniary gain for the recipient. Payment of honorarum, in addition to daily allowances in the

nature of compensatory allowances, rent free accommodation and chauffeur driven car at State

(1985) 1 SCC 151

(1989) 3 SCC 709

(1985) 4 SCC 343

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expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence consti-

tute profit. For deciding the question as to whether one is holding an office of profit or not, what is

relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the

person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection

with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is

actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain

other than reimbursement of out of pocket/actual expenses, then the office will be an office of

profit for the purpose of Article 102(1)(a). This position of law stands settled for over half a century

commencing from the decisions of Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653;

Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870; Satrucharla

Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev. (1992) 4 SCC 404 and Shibu Soren v.

Dayanand Sahay, (2001) 7 SCC 425.”

39.

In the matter of State Election Commissioner, Bihar, Patna and others v. Janakdhari Prasad and others²⁰, the

Supreme Court has held that the nature of disqualification has to be strictly construed keeping in mind that

right to contest an election is not a fundamental right out the said right may be curtailed under valid

statutory provision.

40.

Finally, in the matter of Narayan Dinbaji Jambhule v. Dr. Deorao Madguji Holi and others²¹, the Bombay

High Court in facts similar to the case in hand held that respondent No. 5 therein who was employed as

Medical Officer, in Class-II, Group “A” Services and was in employment of State Government on the day

on which he submitted nomination for Assembly Elections, held office of profit as contemplated by Article

191 (1) (a) of the Constitution of India and thus, he stands disqualified to be chosen as member of Legisla-

tive Assembly as per Article 191(1)(a) of the Constitution and Section 100(1)(a) of the Act of 1951 and

quashed the election of the returned candidate (respondent No. 5) holding that he was not qualified to be

chosen as a member of Legislative Assembly.

41.

Reverting to the facts of the present case in the light of the aforesaid legal proposition flowing from the

decisions rendered by the Supreme Court and the Bombay High Court in Narayan Dinbaji Jambhule (su-

pra), it is quite vivid that the election petitioner being Rural Health Officer (Female) and thereby a regular

Government servant on the roll of the State Government on the date on which she submitted nomination

paper for assembly election, and though on the date of submission of nomination paper, she was not actually

working on account of her joining not being accepted by the competent authority, but she was admittedly, a

Government servant who was entitled to draw, salary and allowances, as such, was holding the office of

profit and therefore disqualified from being chosen as a member of Legislative Assembly and therefore the

Returning Officer is justified in rejecting her nomination papers vide Exhibits P-6A & P-6B. The election

petitioner has failed to demonstrate that her nomination papers were improperly rejected by the Returning

Officer within the meaning of Section 100(1)(c) of the Act of 1951.

Relief and cost :—

42.

As a fallout and consequence of the aforesaid discussion, the election petition deserves to be and is accord-

ingly dismissed. in the facts and circumstances of the case, parties shall bear their own cost(s).

43.

A copy of this order be sent to the State Election Commission forthwith as required by Section 103 of the

Act of 1951.

Sd/-

SANJAY K. AGRAWAL,

Election Judge.

•ÊŒ‡Ê ‚,

„USÃÊ./-

(Ÿ⁄‘Uãº˝ ŸÊ. ’È≈UÊÁ‹ÿÊ)

ﬂÁ⁄UDU ¬˝äÊÊŸ ‚Áøﬂ,

÷Ê⁄UÃ ÁŸﬂÊ¸øŸ •ÊÿÊª.

(2018) 8 SCC 1

2017 (2) Mh. L. J. 807

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1212

ELECTION COMMISSION OF INDIA

Nirvachan Sadan, Ashoka Road, New Delhi-110001

New Delhi, dated 31st January, 2022—11 Magha, 1943 (Saka)

No. 82/CGH-LA/(01/2019)/2022.—In pursuance of Section 106 (b) of the Representation of the People

Act, 1951 (43 of 1951), the Election Commission hereby publish Order dated the 24th November, 2021 of the High

Court of Chhattisgarh, Bilaspur, in Election Petition No. 01 of 2019.

HIGH COURT OF CHHATTISGARH, BILASPUR

Election Petition No. 1 of 2019

Order reserved on : 8-10-2021

Order delivered on : 24-11-2021

PETITIONER

Tarika Tarangni, W/o Nirmal Lakra, aged about 39 years, Village Post Punjipatra,

Tahsil Tamnar, Distt.-Raigarh (C.G.).

VERSUS

RESPONDENTS :

Chakradhar Singh Sidar, Vill. Post Katakliya, Tahsil Lailunga, District-Raigarh,

Pin 496113.

Satyanand Rathiya, Vill. Roopali, Post Kolam, Tahsil Tamnar, District Raigarh,

Pin 496107.

Darshana Sidar, Vill. Kamrga, Post Katakliya, Tahsil Lailunga, District Raigarh,

Pin 496113

Sunil Minj, Village Bhuya Pani, PO Kurra, Katakliya, Tah. Lailunga, Distt.

Raigarh, Pin 496113.

Hridayaram Rathiya, At/PO Kurra, Tahsil Lailunga, Distt. Raigarh (C.G.), Pin-

496113.

Govind Singh Neti, Village Godhi, Tahsil Tamnar, District Raigarh, Pin-496107

Shivpal Bhagat, Village Sarasmal, PO Lailunga, Tahsil Tamnar, District Raigarh,

Pin 496113.

Suresh Kumar, Village Ghatgaon, Post Ghatoon, Distt. Raigarh (C.G.) Pin 496113.

State Election Commission, Through State Election Commissioner, Near D.K.S.

Bhawan, Old Mantralaya Road, Moti Bagh, Raipur, Chhattisgarh 492001.

10.

The Returning Officer (deleted)

For Election Petitioner

Mr. Manohar Lal Sharma, Mr. Santosh Kumar Pandey and Mr. T. L.

Bareth, Advocates.

For Respondent No. 1

Mr. B. P. Sharma and Mr. Hari Agrawal, Advocates.

For Respondent No. 2 to 9 :

None present.

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