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IN THE HIGH COURT OF JUDICATURE AT PATNA

Election Petition No.4 of 2014

Ram Niranjan Roy son of Shri Rameshwar Roy, resident of N6, Officers' Flat,

New Punaichak, Patna-23 and President of Rasshtravadi Loktantrik Party

Petitioner/s

Versus

1 . The State of Bihar through Chief Secretary (Deleted)

Dr. Pratima, Returning Officer, 05- Sitamarhi Parliamentary Consistency-

cum District Magistrate, Sitamarhi (Bihar)

Chief Electoral Office, 7 Mangals Road, Patna (Deleted)

Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New

Delhi (Deleted)

Principal Secretary, Home (Police) Department, Government of Bihar, Patna

(Deleted)

Ram Kumar Sharma son of Mahesh Prasad Sharma, Village- Nanpur,

TolaBegaha, P.O.-Sirsi, P.S.-Nanpur, District- Sitamarhi, the returned

candidate

Respondent/s

Appearance :

For the Petitioner/s

Mr. Ram Niranjan Roy (in person)

For the Respondent No. 2: Mr. Sidharth Prasad

CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR

CAV JUDGMENT

Date: 21 -06-2017

1.The present application was filed under Section 80, 80A and 81 of the

Representation of People Act, 1951 (hereafter referred to as the "R.P. Act") read with

Article 329(b) of the Constitution of India for the following reliefs:-

(i) To hold and declare that the rejection of nomination papers

nos. 38 and 39 of the petitioner by Returning Officer —cum-

District Magistrate, Sitamarhi/ Respondent No. 2 in the said

election is bad in law and .fit to be set aside.

(ii) To hold and declare the election of the returned candidate/ Respondent No.

6 front (15-SitamrhiParliamentary Constituency void.

(iii) To hold and declare that pursuant t o th e e lec tio n f or 05-

S it am ar hi Parliamentary constituency being void, the Election

Commission Of India shall hold fresh election for it."

2. Short fact of the case is that the petitioner was a Candidate for

election of Lok Sabha, which was schedule to be held in the year 2014 for 05 -

ॢबहर गजट [सधरण 5 ०सत बर 21

Sitamarhi Parliamentary Constituency. The election process was initiated on

12.04.2014 and election was held on 07.05.2014. Thereafter, result was declared

on 16.05.2014. The petitioner had filed nomination paper on 19.04.2014 as a

candidate of Rashtravadi Loktantrik Party for the said election. The petitioner was

an Officer of Bihar Police Service and also President of Bihar Police Seva Sangh.

He was lastly posted as Deputy Superintendent of Police, Criminal

Investigation Derirtment, Bihar, Patna. It has been stated in the petition that he was

fighting for his promotion to the rank of Superintendent Of Police and to the Cadre

of Indian Police Service on the plea that Officers of his batch were already

promoted to the rank of Superintendent of Police as well as to the Cadre of

Indian Police Service. The election petitioner vide his letter dated 31.12.2013

addressed to the Principal Secretary, Home (Police) Department , Government of

Bihar intimated for voluntary retirement with effect from 31.03.2014 after

granting him promotion to the rank of Superintendent Of Police from

03.02.200,9. The said application for voluntary retirement was given three months

before, but since he received no response from the Department in respect

of his intimation of voluntary retirement, he sent another letter on

25.02.2014 to the Principal Secretary, Home (Police) Department, Government

of Bihar stating therein that he was resigning from his post after 31.03.2014, if

application for voluntary retirement was not accepted by the Government.

Thereafter, the petitioner was informed vide letter no. 2165 dated 12.03.2014 issued

by the Deputy Secretary, Home (Police) Department, Bihar that his application for

voluntary retirement was conditional and the post of Superintendent Of Police

belongs to the Cadre of Indian Police Service. The petitioner thereafter

replied and reiterated that he may be allowed voluntary retirement with effect

from 31.03.2014 after giving him promotion to the post of Superintendent Of

Police, or otherwise, he would resign from his post after 31.03.2014. Thereafter, the

petitioner tendered his resignation from his post on 01.04.2014 and he joined a

Political Party named as Rashtravadi Loktantrik Party on 02.04.2014. He

decided to contest the Parliamentary Election of 2014 from 05- Sitamarhi

Parliamentary Constituency and he filed nomination papers on 19.04.2014 as a

candidate of Rashtravadi Loktantrik Party before the Returning Officer- cum -

District Magistrate , Sitamarhi. Along with his nomination papers he attached

photo copy of resignation - letter. Thereafter, the Returning Officer issued a

check- list on 19.04.2014 itself. It has been pleaded in the petition that as per the

check- list all required documents were filed with the nomination papers and no

document was to be filed further. However, on 21.04.2014 which was the

date of scrutiny of the nomination papers, the Returning Officer- cum- District

Magistrate, Sitamarhi rejected nomination papers nos. 38 and 39 of the

petitioner mentioning therein that petitioner was holding an office of profit on

21.04.2014 under the State Government and he had not submitted papers

regarding acceptance of his resignation- letter by the Government. .After

rejection of nomination papers of the petitioner the election process proceeded

and held on scheduled date and in the said election one Sri Ram Kumar

Sharma was declared as the returned candidate. Initially, the petitioner, alter

rejection of his nomination papers, had filed a writ petition vide CWJC No. 8451

of 2014, which stood dismissed on 09.05.2014 primarily on the ground that in view

of the provisions contained in Article 329(b) of the Constitution of India in

ॢबहर गजट [सधरण 5 ०सत बर 21

election dispute writ petition was not maintainable. Thereafter, the petitioner filed

the present election petition on 30.6.2014. Initially, the petitioner had arrayed six

persons as respondents in the following seriatim:-

(1)

The State of Bihar Though Chief Secretary.

(2)

Dr. Pratima, Returning Officer, 05-Sitamarhi Parliamentary

Constituency-cum-District Magistrate , Sitamarhi (Bihar).

(3)

Chief Electoral Officer, 7 Mangals Road, Patna

(4)

Chief Election Commissioner, Nirvachan Sadan, Ashoka Road,

New Delhi

(5)

Principal Secretary, Home (Police) Department Government of

Bihar, Patna

(6)

Ram Kumar Sharma, son of Mahesh Prasad Sharma, village-

Nanpur, Tola-Begaha, P.O.-Sirsi, P.S.-Nanpur, District- Sitamarhi,

the returned candidate"

3. Since number of unnecessary persons were added as respondents, the stamp

reporter had pointed out defects. Finally. the petitioner with the permission of the

court deleted the names of respondent nos. 1, 3, 4 and 5 from the record. The

petitioner after filing an affidavit was permitted to appear in person. Finally , by

order dated 19.02.2015 after valid service of notice on two surviving respondents, after

appearance of respondent no. 2 vide order dated 19.02.2015 the court decided to proceed

ex -parte against the returned candidate i.e. Sri Ram Kumar Sharma, who despite valid

service of notice had not appeared and after hearing the parties by the said order i.e. the

order dated 19.02.2015 following issues were framed:-

"1. Whether the election petition

(correctly petitioner) can be held holding an office of profit on

21.04.2014 under the State Government on the date of filing of

his nomination papers i.e. 19.04.2014 for which scrutiny was

held on 21.04.2014 justifying rejection of his nomination

papers?

Whether the nomination paper filed by the election petitioner

was improperly rejected by the Returning Officer of 05

Sitamarhi Parliamentary Constituency?

Whether the demand of the paper with regard to acceptance of

resignation letter of the petitioner by the State Government

made by the Returning Officer —cum-District Magistrate

was sudden and uncalled for?

Whether the letter dated 31.12.2013 was a valid offer of

voluntary retirement from the service of the State and the

respondent State was bound to accept the same?"

4. Since in the election petition certain facts were made in paragraph nos. 16 to 20 of

the election petition against the Returning Officer, on the prayer of petitioner, he was allowed

not to delete the name of respondent no. 2/ Returning Officer- cum - District Magistrate

from the record and as such, in the present case the Returning Officer -cum -District Magistrate,

Sitamarhi appeared and filed a written statement justifying the rejection of nomination papers of

the election petitioner. In the case besides filing list of documents, on behalf of the election

petitioner list of witnesses was also filed. The list of witnesses filed by the election

petitioner contains the following names :-

ॢबहर गजट [सधरण 5 ०सत बर 21

(a) List of official witnesses:-

(i) Dr. Pratima, Returning Officer, 05-Sitmarhi Parliamentary Constituency-

cum-District Magistrate, Sitamarhi, (Bihar)/ respondent no. 2

(ii) Mr. Amir Subhani, Principal Secretary , Home (Police) Department,

Government of Bihar, Patna

(b) List of non -official witnesses:-.

(i) Sri Ravindra Jha, son of Jiwachha Jha , villageParoha, P.O.- Parasauni,

P.S. -Dumra, District -Sitamarhi

(ii) Sri Sanjit Raut, son of Sri Jaikun Raut, Village-Hanuman Nagar,

P.O.- Lalpur, P.S. - Nanpur, district - Sitamarhi

(iii) Sri Neeraj Kumar Son of Sri Rajakumar Jha, village-Paroha,

P.O.- Parasauni, P.S.-Dumra, District - Sitamarhi .

5. During trial of the present election petition from the list of witnesses

submitted on behalf of the election petitioner only one official witness namely Mr.

Amir Subhani, Principal Secretary, Home (Police) Department, Government of Bihar,

Patna was examined and cross- examined, however, none of other witnesses

mentioned in the list of witnesses submitted on behalf of the petitioner was examined nor

the election petitioner bothered to take effective steps for getting them examined as

witnesses. Besides one official witness the election petitioner himself got examined as

P.W. 2. So far other cited witnesses are concerned, deposition on affidavit of one Sri

Ravindra Jha was brought on record, however during trial he was not produced either

to identify his signature on his deposition on affidavit, which has been brought on

record nor he was tendered for his cross- examination.

6. Since all the four issues, which were framed in the present case are inter-related,

all the issues are required to be dealt with conjointly. The election petitioner who has

appeared in person has argued that once he had tendered application for his voluntary

retirement on 31.12.2013, after expiry of three months even in case of non -acceptance

of his application for voluntary retirement, it was deemed to be accepted, and as such,

there was no further requirement to produce any document regarding acceptance of his

application for voluntary retirement and on 31.03.2014 he had ceased to be a

Government Servant. Accordingly, he was not to be treated as disqualified under

Article 102(1)(a) of the Constitution of India from contesting the election. To

substantiate his submission that after expiry of three months from the date of

submission of his application for voluntary retirement he had ceased to be

Government Servant, he has placed reliance on a judgment of the Hon'ble Apex

Court reported in AIR 1978 SC 17 DINESH CHANDRA SANGMA Versus STATE

OF ASSAM AND OTHERS. He has argued that after submission of nomination papers i.e.

on 19.04.2014, had there been any defect in the nomination papers, those defects were required

to be indicated in the check- list which was issued by the Returning Officer after submission of

nomination papers, nor petitioner was asked to produce any letter either with respect to

acceptance of his application for voluntary retirement or acceptance of his resignation-letter. He

submits that even after receiving no response regarding acceptance of his voluntary retirement,

the petitioner on 1^St April , 2014 had tendered resignation- letter, however, the election petitioner

was never asked by the Returning Officer to satisfy her regarding the judgments that he was

not a Government Servant on the date of filing of nomination papers. According to the election

petitibner after issuance of check- list on 19.04.2014 suddenly on the date (1)f scrutiny of

nomination papers i.e. on 21.04.2014 the Returning Officer asked him to produce letter of

acceptance of his resignation- lett& Though the petitioner requested for granting some time to

ॢबहर गजट [सधरण 5 ०सत बर 21

apprisIz her with the legal position, his nomination papers in form nos. 38 and 39 was rejected

vide Annexure VII and VIIA to the election petition, which has been brought on record along

with verification of the election petitioner. He has argued that in view of Section 36 (5) of the

R.P. Act it was duty on the part of the Returning Officer to grant some time to enable the

election petitioner to satisfy the Returning Officer with the rulings of the Supreme

Court, however, contrary to the statutory provisions, his nomination papers were

rejected. He has placed reliance on (2012 ) 1 SCC 762 RAMESH ROUT

Versus RABINDRA NATH ROUT on the point that had there been any missing

documents in the nomination papers, in the check- list those facts were required to be

incorporated, however on 19.04.2014 after submission of nomination papers the check-

list was issued in which no infirmity was shown. He has also placed reliance on AIR

2001 SC 2583 Shibu Soren v. Dayanand Sahay on the point that merely on the

ground that his resignation was not accepted it will not be deemed that he was

holding an office of profit on the date of either submission of nomination papers or

scrutiny of nomination papers. Besides the aforesaid judgments the petitioner has also

referred other judgments which were noticed by this Court however, considering the

fact that those decisions were not having any bearing for adjudication of the

present case, this Court is refrained from incorporating all such case laws.

7. In the present case the respondent no. 2/ the Returning Officer —cum-

Collector , Sitamarhi has filed a written statement wherein it has been indicated that

election petitioner had filed nomination papers as a candidate for election to the House Of

People i.e. Lok Sabha for 05- Sitamarhi Parliamentary Constituency on 19.4.2014 in last

General Election of 2014 but since the election petitioner had been an officer of Bihar

Police Service he was required to submit such documents on the date of filing of

nomination papers, which might prove that election petitioner was not continuing on the

post of any profit on the date of nomination as a candidate of the General Election to

the Lok Sabha, 2014. However, during scrutiny of the nomination papers filed by the

candidates for Lok Sabha Election of 2014 it was found that election petitioner had not

submitted any document relating to acceptance of his resignation from the

Government Service as a proof of discontinuation from the post of profit which the

petitioner was holding, so the Returning Officer found that the petitioner cannot be accepted

as a candidate for election to the House Of People for 05 - Sitamarhi Parliamentary

Constituency as per the provisions laid down under Article 102 (1) (a ) of the Constitution

of India and hence nomination of the petitioner was rejected by the Returning Officer.

8. During trial of the case in the deposition of P.W. 1, who is official witness and

was examined as per list of witnesses submitted by the election petitioner, it is evident that

on the date of submission of nomination papers or on the date of scrutiny of

nomination papers the petitioner had not ceased to be a Government Servant. In the

Examination- in -Chief of P.W. 1 Mr. Amir Subhani, Principal Secretary , Department

of Home, lie has stated that the election petitioner had requested for his voluntary

retirement with effect from 31.03.2014 with granting promotion to the post of

Superintendent Of Police. He has further stated that petitioner had also made a

communication stating therein that if no decision is taken regarding voluntary

retirement by 31.03.2014 then he may resign. Thereafter, he has further stated that the

Deputy Secretary, Home ( Police ) Department had written a letter to the petitioner

stating that his representation for voluntary retirement was conditional because

he had asked for voluntary retirement with promotion to the post of Superintendent

Of Police. Accordingly , he was intimated to do the needful. In his cross- examination

P.W. I has answered that petitioner had sent a letter on 1^st April , 2014 indicating

ॢबहर गजट [सधरण 5 ०सत बर 21

about his resignation with effect from the same date whereupon letters were sent

to the Vigilance Department and Building Department for vigilance clearance and no

dues, which was necessary before acceptance of resignation. He has also answered to the

question asked by the election petitioner in his cross -examination that notification to the

extent of his voluntary retirement was issued on 16.02.2015. P.W. 1 was also cross-

examined on behalf of the respondent no. 2 / Returning Officer-cum-Collector and

in his further cross- examined P.W.1 has stated that petitioner submitted an

application for V.R.S. on 31^st December 2013 and again resignation letter was

sent on 1^st April, 2014. A letter was sent on 9^th May , 2014 and reminder on 11^th July, 2014

to the Police Headquarter asking for no dues certificate. Another letter was sent on 9^th

May , 2014 to the Vigilance Department asking for vigilance clearance. Letters were

sent on 12^th August, 2014 and reminder on 24^th September, 2014 to the Police

Headquarter demanding the required information. The petitioner was asked through

letter dated 3^rd November , 2014 to give a declaration about no dues. Reminders

were again sent on 3 ^rdNovember , 2014 to the Vigilance Department. A

letter was sent on 18^th December, 2014 to the Executive Engineer of the Department

asking for no dues and a letter was sent on the same date to the Financial Personnel

Claim Cell asking for no dues. P.W. 1 has reiterated in his cross —examination that the

election petitioner was holding post of profit on 19.04.2014 i.e. the date of submission

of nomination paper and on 21.04.2014 i.e. the date of rejection of nomination papers

and at that point of time the election petitioner was on the post of Deputy

Superintendent Of Police. In the deposition on affidavit of election petitioner who was

examined as P.W. 2 the election petitioner has reiterated that he had resigned from his

post on 01.04.2014 after his representation for voluntary retirement with effect from

31.03.2014 was not accepted by the State Government. In paragraph no. 8 of his

deposition on affidavit he has stated that on the date of scrutiny i.e. on 21.04.2014 the

Returning Officer suddenly demanded the papers regarding acceptance of his

resignation- letter by the State Government however, in his cross- examination

the P.W. 2 i.e. the election petitioner namely, Sri Ram Niranjan Roy in specific

term has admitted that on the date he presented his nomination papers his

resignation was not accepted and his voluntary retirement from service was

accepted now. It was accepted with effect from February , 2015. Of -course deposition

on affidavit of Sri Ravindra Jha who was cited as a witness in the list of witnesses

submitted by the petitioner was brought on record he was not tendered even either to

accept his signature on affidavit or for cross —examination. For just decision in the matter

this Court has also perused his affidavit. In the said affidavit he has reiterated that on

the date of scrutiny i.e. on 21.04.2014 the Returning Officer suddenly demanded paper

regarding acceptance of resignation-letter otherwise, he has reiterated about the fact

that the election petitioner had tendered resignation on 01.04.2014.

9. Sri Sidharth Prasad, learned counsel who has appeared on behalf of the

respondent no. 2 i.e. Returning Officer - cum- Collector, Sitamarhi has argued that in

view of the evidences brought on record it is evident that on the date of either filing

of nomination papers or on the date of scrutiny the petitioner was not in a position to

satisfy that either his application for voluntary retirement or his resignation from

Government service was accepted by the competent authority. Even in his cross-

examination election petitioner has categorically accepted that on the date of

either nomination or scrutiny his resignation was not accepted nor his voluntary

retirement was accepted and finally, his resignation was accepted with effect from

ॢबहर गजट [सधरण 5 ०सत बर 21

February , 2015 whereas, nomination .papers were filed on 19.04.2014 and

scrutiny was held on 21.04.2014. He submits that in any event on the date of

filing of nomination or on the date of scrutiny he had not ceased to be a

Government Servant and since he was holding a post of profit in the Government of

Bihar in view of Article 102 (1) (a) of the Constitution of India he was not eligible to

contest the election in question and as such, the Returning Officer had rightly

rejected his nomination paper on the date of scrutiny. It has already been noticed that

in the said election Sri Ram Kumar Sharma was elected as the returned candidate

however, he has chosen not to appear in the present proceeding and as such, the

case has proceeded ex -parte against him.

10. So far as Ramesh Rout Case (Supra ) is concerned the petitioner may

not get any benefit from the said judgment. In the said case there was some defect in

signing Form A and B in ink, which was curable after being informed by the

Returning Officer at the time of scrutiny of the nomination paper whereas, in the

present case it is admitted that on the date of nomination the petitioner had not ceased

to be a Government Servant in absence of acceptance of his application for voluntary

retirement or resignation- letter. So far application for voluntary retirement of the petitioner is

concerned which was submitted on 31s^t December, 2013 it is evident that application for

voluntary retirement of the petitioner was conditional. He was making prayer for allowing

him to take voluntary retirement after promoting him as Superintendent Of Police from

the post of Deputy Superintendent of Police. In normal course only those applications for

voluntary retirement can be entertained wherein there is no condition. In a case of

conditional voluntary retirement application, principle of deemed acceptance of such

voluntary retirement after expiry of three months may not be applicable since acceptance

of voluntary retirement is dependent on fulfillment of the conditions imposed in the

application for voluntary retirement. In view of this proposition and peculiar facts of the

present case even petitioner may not get any benefit. So far Dinesh Chandra Sangma

Case (Supra) is concerned, the said cash has got no relevance for adjudication of the present

case. In the said case notice for voluntary retirement was without any condition 'whereas, in

the present case the petitioner had tendered application for V.R.S. with condition that he should

be promoted as Superintet

lident Of Police. Similarly, the petitioner may not get any benefit from

Sayed Muzaffar Mir Case i.e. 1994 AIR SCW 4228 Union of India and others v. Sayed

Muzaffar Mir. In the resent case the petitioner had submitted application for voluntary

retirement on condition of granting him promotion as Superintendent Of Police which was also

replied by the Department that since it was conditional it may not be accepted. So far Shibu Soren

Case (Supra) ) is concerned ag

lain it has got no relevance for adjudication of the present case.

In the present case the petitioner was obviously holding a post of profit in the

Government of Bihar and as such, he was disqualified ! to be a candidate in view of the

provisions contained in Article 10(1)(a) of the Constitution of India. So far Ashok Kumar

Bhattacharyya case i.e. AIR 1985 SUPREME COURT 211 Ashok Kumar Bhattachatyya

v. Ahoy Biswas and others is concerned, in the said case the candidate was an

Accountant —in- charge in Agartala Municipality which was considered by the Hon' bile

Apex Court to be not a Government whereas, in the present case the petitioner was

continuing as Dy. S.P. in the Government of Bihar. The election petitioner had also raised a

ॢबहर गजट [सधरण 5 ०सत बर 21

plea that in view of Section 36 (5) of the R.P. Act it was necessary to allow time to the election

petitioner to rectify the defects in the nomination papers on the date of its 'scrutiny. So far

provision contained in Section 36 (5) of the R.P. Act is concerned it is very clear that the

Returning Officer while cJinducting scrutiny on the appointed date shall not allow any adjournmnt

of the proceedings however, proviso suggests that if objection is aised by the Returning

Officer the concerned candidate may be alio^-Led time to rebut it not later than the next date

but one following the (late fixed for scrutiny. Even for the time being if it is assumed that any

error was committed by the Returning Officer in not granting further time, in any event this error was

not sufficient for interference with the election process. In the present case even till the date Of

hearing of this election petition the election petitioner was not in a riosition to satisfy that on the

date of filing nomination papers or on the date of scrutiny of the nomination papers he was not a

Governmen^It Servant rather in his cross -examination the election petitioner, who was

examined as P.W. 2, himself has accepted that his voluntary retirement was accepted

with effect from the month of February , 2015 whereas in the case nomination paper was

filed on 19.04.2014 and scrutiny was conducted on 21.04.2014 on which date his

nomination in form nos. 38 and 39 was rejected. In form no. 38 and 39 which have been

brought on record as Annexure VII and VIIA to the present petition in categorical terms it has

been stated as follows:

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**laoh{kk ds Øe esa ik;k x;k

**laoh{kk ds Øe esa ik;k x;k dh vH;FkhZ }kjk jkT; ljdkj fn 21@4@14 dks ykHk dk in /kkj.k djrs gSaA laoh{kk dh frfFk rd

dh vH;FkhZ }kjk jkT; ljdkj fn 21@4@14 dks ykHk dk in /kkj.k djrs gSaA laoh{kk dh frfFk rd

/kkfjr in ls R;kx i= dks jkT; }kjk eatwjh laca/kh dkxtkr lefiZr ugha dj ldsA lafo/kku ds m)j.k

/kkfjr in ls R;kx i= dks jkT; }kjk eatwjh laca/kh dkxtkr lefiZr ugha dj ldsA lafo/kku ds m)j.k Sec 102(1) ¼d½ ds

¼d½ ds

vuqlkj Hkkjr ljdkj ;k jkT; ljdkj ds v/khu ykHk dk in

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11. On perusal of the evidences as well as leadmgs all the aforesaid issues which

were framed are decided arinst the petitioner.

12. On the basis of evidences on record it is established that either on the date

of filing nomination pa ers.or on the date of scrutiny the petitioner had not brought any letter

issued on behalf of the Government to show either acceptance of his voluntary retirement or

acceptance of his resignation letter and as sudh, on the said date the petitioner was holding

an office of profit ^lunder the Government of Bihar. Nor in the present proceeding any

document has been brought on record to show that any notification or order was issued by

the Parliament not to disqualify such office. It would be appropriate to incorporate

provisions contained in Article 102 of the Constitution of India which is as follows:-

"102. Disqualifications for membership.- (1) A person shall be

disqualified for being chosen as, and for being, a member of either House of

Parliament —

(a)

holds

any

office

profit

under

the

G o v er n m e n t o f I n di a or t h e Government of

any State, other than an office declared by Parliament

by law not to disqualify its holder;

(b)

if he is of unsound mind and stands so declared by a

competent court;

(c)

if he is an undischarged insolvent;

ॢबहर गजट [सधरण 5 ०सत बर 21

(d)

if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is

under any acknowledgment of allegiance or

adherence to a foreign State;

(e)

if lie is so disqualified by or under any law made by

Parliament.

(2). A person shall be disqualified for being a member of either

House of Parliament if lie is so disqualified under the Tenth Schedule."

13. In view of the fact that the election petitioner was occupying an office of profit

under the Government of Bihar on the date of nomination as well as scrutiny, his

nomination papers was rightly rejected by the Returning Officer- cum —Collector,

05-Sitamarhi Parliamentary Constituency. Accordingly, the election petition stands dismissed.

(Rakesh Kumar)

Praftil/-

AFR/NAFR

NAFR

CAV DATE

02-05-2017

Uploading Date

22 -06-2017

Transmission

Date

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ELECTION COMMISSION OF INDIA

———

NOTIFICATION

Nirvachan saclan, Ashoka Road New Delhi-110001/ Dated 8^th August, 2017, 17 Bhadrapada, 1940 (Saka)

No. 82/ES-1/EP/(4/2014)/BR-HP/2017 : In pursuance of Section 106(b) of the

Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby

publishes Order dated the 21^st June, 2017 of the High Court of Judicature at Patna in

Election Petition No. 4 of 2014.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Election Petition No.4 of 2014

Ram Niranjan Roy son of Shri Rameshwar Roy, resident of N6, Officers' Flat,

New Punaichak, Patna-23 and President of Rasshtravadi Loktantrik Party

Petitioner/s

Versus

1 . The State of Bihar through Chief Secretary (Deleted)

Dr. Pratima, Returning Officer, 05- Sitamarhi Parliamentary Consistency-

cum District Magistrate, Sitamarhi (Bihar)

Chief Electoral Office, 7 Mangals Road, Patna (Deleted)

Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New

Delhi (Deleted)

Principal Secretary, Home (Police) Department, Government of Bihar, Patna

(Deleted)

ॢबहर गजट [सधरण 5 ०सत बर 21

Ram Kumar Sharma son of Mahesh Prasad Sharma, Village- Nanpur,

TolaBegaha, P.O.-Sirsi, P.S.-Nanpur, District- Sitamarhi, the returned

candidate

Respondent/s

Appearance :

For the Petitioner/s

Mr. Ram Niranjan Roy (in person)

For the Respondent No. 2: Mr. Sidharth Prasad

CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR

CAV JUDGMENT

Date: 21 -06-2017

1.The present application was filed under Section 80, 80A and 81 of the

Representation of People Act, 1951 (hereafter referred to as the "R.P. Act") read with

Article 329(b) of the Constitution of India for the following reliefs:-

(i) To hold and declare that the rejection of nomination papers

nos. 38 and 39 of the petitioner by Returning Officer-cum-

District Magistrate, Sitamarhi/ Respondent No. 2 in the said

election is bad in law and .fit to be set aside.

(iv) To hold and declare the election of the returned candidate/ Respondent No.

6 front (15-SitamrhiParliamentary Constituency void.

(v) To hold and declare that pursuant t o th e e lec tio n f or 05-

S it am ar hi Parliamentary constituency being void, the Election

Commission Of India shall hold fresh election for it."

2. Short fact of the case is that the petitioner was a Candidate for election

of Lok Sabha, which was schedule to be held in the year 2014 for 05 -Sitamarhi

Parliamentary Constituency. The election process was initiated on 12.04.2014 and election

was held on 07.05.2014. Thereafter, result was declared on 16.05.2014. The petitioner

had filed nomination paper on 19.04.2014 as a candidate of Rashtravadi Loktantrik Party

for the said election. The petitioner was an Officer of Bihar Police Service and also

President of Bihar Police Seva Sangh. He was lastly posted as Deputy

Superintendent of Police, Criminal Investigation Derirtment, Bihar, Patna. It has been

stated in the petition that he was fighting for his promotion to the rank of Superintendent

Of Police and to the Cadre of Indian Police Service on the plea that Officers of his batch

were already promoted to the rank of Superintendent of Police as well as to the Cadre

of Indian Police Service. The election petitioner vide his letter dated 31.12.2013

addressed to the Principal Secretary, Home (Police) Department , Government of

Bihar intimated for voluntary retirement with effect from 31.03.2014 after granting

him promotion to the rank of Superintendent Of Police from 03.02.200,9. The said

application for voluntary retirement was given three months before, but since he

received no response from the Department in respect of his intimation of

voluntary retirement, he sent another letter on 25.02.2014 to the Principal

Secretary, Home (Police) Department, Government of Bihar stating therein that he was

resigning from his post after 31.03.2014, if application for voluntary retirement was not

accepted by the Government. Thereafter, the petitioner was informed vide letter no. 2165

dated 12.03.2014 issued by the Deputy Secretary, Home (Police) Department, Bihar that

his application for voluntary retirement was conditional and the post of Superintendent

Of Police belongs to the Cadre of Indian Police Service. The petitioner thereafter

replied and reiterated that he may be allowed voluntary retirement with effect from

31.03.2014 after giving him promotion to the post of Superintendent Of Police, or

ॢबहर गजट [सधरण 5 ०सत बर 21

otherwise, he would resign from his post after 31.03.2014. Thereafter, the petitioner

tendered his resignation from his post on 01.04.2014 and he joined a Political Party

named as Rashtravadi Loktantrik Party on 02.04.2014. He decided to contest the

Parliamentary Election of 2014 from 05- Sitamarhi Parliamentary Constituency and

he filed nomination papers on 19.04.2014 as a candidate of Rashtravadi Loktantrik

Party before the Returning Officer- cum -District Magistrate , Sitamarhi. Along with

his nomination papers he attached photo copy of resignation - letter. Thereafter, the

Returning Officer issued a check- list on 19.04.2014 itself. It has been pleaded in the

petition that as per the check- list all required documents were filed with the

nomination papers and no document was to be filed further. However, on

21.04.2014 which was the date of scrutiny of the nomination papers, the Returning

Officer- cum- District Magistrate, Sitamarhi rejected nomination papers nos. 38 and

39 of the petitioner mentioning therein that petitioner was holding an office of profit

on 21.04.2014 under the State Government and he had not submitted papers

regarding acceptance of his resignation- letter by the Government. .After rejection of

nomination papers of the petitioner the election process proceeded and held on

scheduled date and in the said election one Sri Ram Kumar Sharma was declared as

the returned candidate. Initially, the petitioner, alter rejection of his nomination papers,

had filed a writ petition vide CWJC No. 8451 of 2014, which stood dismissed on

09.05.2014 primarily on the ground that in view of the provisions contained in Article

329(b) of the Constitution of India in election dispute writ petition was not

maintainable. Thereafter, the petitioner filed the present election petition on 30.6.2014.

Initially, the petitioner had arrayed six persons as respondents in the following

seriatim:-

(1) The State of Bihar Though Chief Secretary.

(2) Dr. Pratima, Returning Officer, 05-Sitamarhi Parliamentary

Constituency-cum-District Magistrate , Sitamarhi (Bihar).

(3) Chief Electoral Officer, 7 Mangals Road, Patna

(4) Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New

Delhi

(5) Principal Secretary, Home (Police) Department Government of

Bihar, Patna

(6) Ram Kumar Sharma, son of Mahesh Prasad Sharma, village-

Nanpur, Tola-Begaha, P.O.-Sirsi, P.S.-Nanpur, District- Sitamarhi, the

returned candidate"