Patna High Court
Pramod Singh Chandravanshi vs Sri Som Prakash Singh on 25 April, 2014
Equivalent citations: AIR 2014 PATNA 156
Author: Navaniti Pd Singh
Bench: Navaniti Prasad Singh
Election Petition No 4 of 2011
In the matter of an Election Petition under Sections 80, 80A and 81 of
the Representation of the People Act, 1951
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Pramod Singh Chandravanshi, son of Sri Ramashish Prasad, Resident of Village -
Bagdiha, PO & PS - Guraru, District - Gaya
.... .... Petitioner
Versus
Sri Som Prakash Singh, son of Sri Ishwar Dayal Singh, Resident of Village -
Makrain, PO - Dalmiya Nagar, PS - Dehri, District - Rohtas at Sasaram
.... .... Respondent
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Appearance :
For the Petitioner/s : Mr Shashi Bhushan Kumar Manglam, Advocate with
M/s Ravi Ranjan Chandan & Anita Kumari, Advocates
For the Respondent/s: Mr Som Prakash Singh (In Person)
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CORAM: HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH
ORAL JUDGMENT
Navaniti Pd Singh, J
By this election petition, the election petitioner has
challenged the election of the sole respondent who has been declared
elected as a Member of the 15th Bihar Legislative Assembly from 220
Obra General Assembly Constituency for which the last date for filing
nomination paper was 03.11.2010. The date of scrutiny of nomination
paper was 04.11.2010. The last date for withdrawal of candidature
was 06.11.2010. The voting had taken place on 20.11.2010 and
counting was done and results declared on 24.11.2010.
2 The election petitioner was the official candidate of Janta
Dal (United). He had been elected from the said Constituency on
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
2
earlier occasion as well. He lost to the sole respondent who was the
independent candidate.
3 The solitary ground on which the election of sole
respondent has been challenged is that the respondent was disqualified
in terms of Article 191 (1) (a) of the Constitution of India as he was in
Government employment when his nomination paper was accepted
after scrutiny and when the results were declared. In fact, it is alleged
that technically, he continues to be in Government employment even
today.
4 In the election petition, it is alleged that sole respondent
was selected in the Police Service in 1994 and, at the relevant time,
was Sub Inspector (SI) of Police. At the time of filing of his
nomination paper, he did not disclose whether he was in service or
not. In fact, at the time of scrutiny, one Satya Narain Singh, the
official candidate for Rastriya Janta Dal (RJD) raised an objection that
is on 04.11.2010 specifically urging that the sole respondent was SI.
The sole respondent was issued notice by the Returning Officer and
the sole respondent immediately filed his reply stating that his
resignation from Police Service had been accepted by the Deputy
Inspector General (DIG) of Police, Central Range, Patna in the
afternoon of 03.11.2010 whereafter he had filed his nomination. A
fax copy of the order of DIG accepting the resignation of the sole
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
3
respondent was filed. Accordingly, the Returning Officer, on
04.11.2010, accepted the nomination paper, as filed by the sole respondent on 03.11.2010, to be valid. Upon elections being held, the sole respondent was declared successful as a winning candidate. The election petitioner was the first losing candidate. It is, therefore, urged by the election petitioner that as the nomination of the winning candidate was wrongly accepted, his election be declared to be void as he was not qualified or rather he was disqualified under Article 191 (1) (a) of the Constitution of India. The consequence would be not to declare election petitioner as elected but to order reelection.
5 It is alleged in the election petition that the manner in which DIG accepted the resignation was wrong both on account of lack of jurisdiction and procedurally. It is further alleged in the election petition that there were other departmental proceedings pending in the district of Aurangabad, Bihar where the sole respondent was posted as SI and those departmental proceedings were still pending and had not been concluded. That being so, the resignation, as tendered by the sole respondent, should not and could not have been accepted.
6 In the written statement filed by the sole respondent, the stand taken was that the sole respondent had contemplated for contesting elections long before the elections were announced. He Patna High Court E.P. No.4 of 2011 dt.24-04-2014 4 tendered his resignation and requested the DIG, Central Range, Patna that the departmental proceeding be directed to be concluded at an early date so that his resignation could be accepted and he is not prejudiced in any manner. Accordingly, directions were issued and departmental proceedings were concluded. Upon this information being received, DIG, Central Range, Patna accepted sole respondent's resignation on 03.11.2010, a copy of which was later received by the sole respondent in the afternoon of 04.11.2010 and it is, after the acceptance of resignation on 03.11.2010, that he filed his second nomination, the first nomination paper by the sole respondent having been filed on 02.11.2010. It is, thus, the stand of the sole respondent that the resignation having been accepted by the DIG before he filed his second nomination, he did not suffer from any constitutional disability to contest the elections.
7 In reply to paragraph 34 of the plaint, which clearly asserted that there were other departmental proceedings pending which are still pending, the reply of the respondent is in paragraph 29 of the written statement denying any such proceeding and alleging that the statement is false, fabricated and concocted. It is specifically stated in the written statement, in paragraph 29, that there was only one departmental proceeding pending against the sole respondent and the same was disposed of and resignation accepted before he filed his Patna High Court E.P. No.4 of 2011 dt.24-04-2014 5 second nomination paper.
8 The further stand in the written statement is that the resignation was duly, properly accepted and that being so, he was validly elected and his election could not be challenged.
9 Upon these pleadings, issues were framed as under with agreement of parties and the parties proceeded for trial.
(1) Whether the acceptance of resignation of sole respondent not being in accordance with law, it would be deemed that the sole respondent continued to be in Government service and, as such, was disqualified from contesting election? (2) Whether the acceptance of nomination paper of the sole respondent by the Returning Officer without proof of acceptance of sole respondent's resignation vitiated the acceptance of nomination of sole respondent and his nomination ought to have been declared void?
10 Let it be noted that all along the proceedings, the sole respondent represented himself in person.
11 In support of the election petition, the election petitioner examined himself as the sole witness.
12 Exhibit 1 is a show cause dated 06.06.2010 issued by the Senior Superintendent of Police (SSP), Patna asking the petitioner to show cause as to why departmental proceedings should not be initiated against him and why he should not be suspended. Exhibit 2 is the Memo dated 30.06.2010 by which departmental proceedings Patna High Court E.P. No.4 of 2011 dt.24-04-2014 6 were initiated against the sole respondent. Exhibit 3 is the letter of resignation of the sole respondent from Police Service dated 16.08.2010. This letter is addressed to Inspector General (IG) of Police, Patna Zone, Patna. Exhibits 4 and 4a are the entire ordersheet of this departmental proceeding of district Patna at various stages. Exhibit 4/2 is the communication dated 10.11.2010 sent by the SSP, Patna to the sole respondent intimating him to the order of punishment as passed by him on 03.11.2010.
13 Now coming to the manner in which this departmental proceeding proceeded. From the ordersheet, it is clear upon the detailed considerations as are to be found in Exhibit 4/1 that the departmental proceeding having concluded in a manner on 02.11.2010, the enquiry officer, who was the Assistant Superintendent of Police (ASP) at Fatuha submitted her report in the said departmental proceeding on 03.11.2010. Exhibit 4/2 would further show that the SSP received the enquiry report dated 03.11.2010 on the same day at Patna and on the same day, he passed final orders holding the sole respondent guilty and the order was then sent for entry as a District Order on the same day. The sole respondent was visited with two black marks as a punishment. Exhibit 5 now would show that this order of the SSP passed on 03.11.2010 pursuant to enquiry report dated 03.11.2010 was then placed on the same day before the DIG of Patna High Court E.P. No.4 of 2011 dt.24-04-2014 7 Police, Central Range, Patna before whom the sole respondent's resignation was pending though addressed to IG. On the same day that is 03.11.2010, the DIG, in view of the departmental proceeding having been concluded, accepted the resignation of the sole respondent from Police Service. Exhibit 5/1 is a fax message of this acceptance of resignation of sole respondent by the DIG and the order in relation thereto as was communicated by the office of the DIG to the District Magistrate (DM), Aurangabad on 04.11.2010 at about 1 pm and it also has the seal of the office of the DM, Aurangabad. This is the order that was purportedly produced by the sole respondent before the Returning Officer. Exhibit 6 is the first set of nomination papers filed by the sole respondent which was filed on 02.11.2010 and Exhibit 6/1 is the second set of nomination paper filed by the sole respondent on 03.11.2010. This second nomination paper, filed on 03.11.2010, was filed at 2.33 pm in the office of the DM, Aurangabad. Exhibit 7 is the entire ordersheet of the Returning Officer in relation to the nominations filed and the scrutiny. These are the documents in support of the contention that the acceptance of resignation by the sole respondent was wrongly and incompetently done.
14 Then are Exhibits 8 and 9 which are information supplied pursuant to queries made under Right to Information Act intimating Patna High Court E.P. No.4 of 2011 dt.24-04-2014 8 that there was departmental proceeding pending against the sole respondent in Aurangabad district which records were sent to this Court as well by Exhibit 9. Exhibit 10 is the chargesheet alongwith the departmental proceedings as against the sole respondent at Aurangabad. These evidences were brought to show that when the resignation of sole respondent was being accepted by the DIG at Patna, there was another departmental proceeding also pending to the knowledge of the sole respondent and, as such, it was not open to the DIG to accept the resignation till all departmental proceedings had been concluded.
15 It may be noted here that Exhibits 8, 9 and 10 were all brought on record upon recall of the election petitioner as they had been received after he had already deposed. The sole respondent was given several opportunities to rebut this evidence which was brought on record but it was not utilized.
16 In sum and substance, the argument of the election petitioner was two folds based upon the aforesaid evidences. The first line of submission was that if we look into the facts and the manner in which the acceptance of resignation was orchestrated, it would be clear that it was wrongly done. A pending departmental proceeding was abandoned by the sole respondent. The ASP at Fatuha concludes the proceedings on 02.11.2010, draws up and sends Patna High Court E.P. No.4 of 2011 dt.24-04-2014 9 the enquiry report on 03.11.2010 to the SSP. It is received in the office of the SSP on 03.11.2010 itself who passes the final order of punishment hand to hand on the same day that is 03.11.2010 and it somehow reaches the office of the DIG on the same day that is 03.11.2010 who, immediately on that very day, passes an order that in view of the departmental proceeding having been concluded, the resignation is accepted and then this order is faxed by him on 04.11.2010 to the DM, Aurangabad within which district Obra Assembly Constituency lies, the last date for filing nomination paper being 03.11.2010. This cannot be said to be a valid exercise of power even if it be assumed that the DIG was the competent authority. Three independent officials pass three different orders from three different offices, all on the same day. The second line of submission is that merely because a person decides to resign from service, the service agreement or contract does not come to an end. It has got to be accepted and so long as a departmental proceeding is pending, it cannot be accepted. Reference has been made to the sole respondent's letter (Exhibit G) to the SSP, Patna clearly stating and requesting that the departmental proceedings be concluded at an early date to facilitate acceptance of his resignation and to Exhibit 5/1, the order of DIG clearly stating, wrongly though, that as departmental proceeding has ended, the resignation is accepted, tacitly admitting that so long as Patna High Court E.P. No.4 of 2011 dt.24-04-2014 10 departmental proceedings are not concluded, resignation cannot be accepted.
17 In defence, sole respondent examined himself as a witness. His stand would be that as the DIG, as per Police Manual, had the authority to remove a person from service, dismiss a police personnel from service, he would necessarily have the power to accept the resignation. He, thus, brought on record evidence to show the disciplinary powers of the DIG which is Exhibit A. The further stand of the sole respondent would be that though when he filed his first nomination paper that is Exhibit 6 on 02.11.2010, his resignation had not yet been accepted, therefore, he waited and, on 03.11.2010, the last day of filing his nomination, once his resignation was accepted by the DIG, he, thereafter, filed his nomination paper which was validly filed. On 04.11.2010, when in course of scrutiny, the RJD candidate took an objection, a notice was issued to him (Exhibit B) by the Returning Officer to show cause. Exhibit C is sole respondent's response enclosing therewith the copy of order of DIG, Central Range, Patna which copy is already on record as Exhibit 5/1 which is the fax copy of the order of DIG as sent by the DIG to the DM, Aurangabad at about 1 pm on 04.11.2010. The further case of the sole respondent was that he had much earlier decided to contest the forthcoming election. He had, accordingly, tendered his resignation Patna High Court E.P. No.4 of 2011 dt.24-04-2014 11 and had sent his resignation on 16.08.2010 (Exhibit 3). He was requesting the authorities to conclude departmental proceedings so as to enable him to contest the elections consequent upon his resignation being accepted. As to the other pending departmental proceedings, the contention of the sole respondent would be that there is no law that provides that pending departmental proceedings, resignation cannot be accepted and if that be so, it was irrelevant whether another departmental proceeding was pending or not once resignation was accepted by the DIG.
18 It was further argued on behalf of the sole respondent, on basis of various judgments of the Apex Court, that unless the election petitioner pleads and establishes that the results of election were materially affected as a consequence of wrongful acceptance of nomination paper of a candidate, elections cannot be set aside. The judgments, as relied for the said proposition, inter alia, are Tek Chand -Versus- Dile Ram (2001) 3 SCC 290, Shiv Charan Singh - Versus- Chandra Bhan Singh (1988) 2 SCC 12, Mangani Lal Mandal -Versus- Bishnu Deo Bhandari (2012) 3 SCC 314, Sri Uma Ballav Rath -Versus- Sri Maheshwar Mohanty & Ors (1999) 3 SCC 357 and Jabar Singh -Versus- Genda Lal (1964) 6 SCR 54.
19 He would further submit that whether elections were materially affected is a question of fact which has to be established by Patna High Court E.P. No.4 of 2011 dt.24-04-2014 12 pleading material particulars, the onus of which is on the petitioner and in absence thereof, the election petition itself ought to be dismissed. For this, he relied on judgments of Samant N Balkrishna & Ors -Versus- George Fernandez & Ors (1969) 3 SCC 239, Udhav Singh -Versus- Madhav Rao Scindia 1976 SCR (2) 246 and Azhar Hussain -Versus- Rajiv Gandhi 1986 (SUPP) SCC 315.
20 The sole respondent raises another issue that is whether the resignation was validly accepted or not is not a question that can be gone into in these proceedings and the validity of the action of acceptance of resignation cannot be collaterally challenged. For this, he placed reliance on the judgment of the Apex Court in the case of Hari Bansh Lal -Versus- Sahodar Prasad Mahto & Ors (2010) 9 SCC 655.
21 These being the issues, the evidences and submissions, the question is whether the sole respondent can be held to be holding office of profit at the time when he filed his nomination paper and at the time when he was declared elected.
22 In my view, the first question to be decided is whether it is open to the election petitioner to raise the question of validity of the action taken by the DIG in accepting the resignation of the petitioner. As noted above, the sole respondent submits that whether the resignation was validly accepted or not cannot be challenged in a Patna High Court E.P. No.4 of 2011 dt.24-04-2014 13 collateral manner in these proceedings that is in an election petition. To my mind, the answer has to be in favour of the election petitioner for two reasons. Once Constitution provides for a disability then whether the disability is attracted or not is a question that the Court has to necessarily decide. The second is based on a recent decision of the Apex Court in the case of P H Paul Manoj Pandian -Versus- P Veldurai (2011) 5 SCC 214. That case also arose out of an election petition. The election was challenged on the ground that the winning candidate, whose election was under challenge, was under contract of the Government of the State. The plea taken was that the contract had been terminated. The termination was challenged before the Madras High Court where the election petition was filed and in the election petition itself. The High Court, on an analysis of the evidence, held that the termination of the contract was validly done and, as such, the winning candidate was not under contract of Government. The matter was taken up in appeal to the Apex Court. In this appeal from the election petition, the Apex Court went into the question of validity of termination of the contract and held that it was incompetently terminated and, as such, it held that on the day when nomination paper was filed and the results were declared, the elected candidate was under the contract of the Government and, thus, his election was set aside and the appeal was allowed. The order of the High Court Patna High Court E.P. No.4 of 2011 dt.24-04-2014 14 was reversed. This, in my view, concludes the issue whether the question of validity of acceptance of resignation can be or cannot be gone into by this Court. In view of the authority above, this question is open to be examined by this Court in these proceedings. This objection of the sole respondent is, thus, overruled.
23 The next question that arises is what is the effect of pending departmental proceeding vis-à-vis acceptance of resignation. On behalf of the election petitioner, it is contended that there were several departmental proceedings pending against the sole respondent. That being so, unless the departmental proceedings were concluded, the DIG, even if he was competent to accept the resignation, could not have accepted the resignation. This is based on fundamental principles as there is no provision either in the Service Code or in the Police Manual in regard to resignation. He further points out that the sole respondent himself had repeatedly requested the authorities to conclude all the departmental proceedings at an early date so that his resignation may be accepted. Reference has been made to Exhibit G, a letter written by the sole respondent to the SSP, Patna clearly stating that pending departmental enquiries, his resignation would not be accepted and that would prejudice him because he was intending to contest the Assembly Elections. He could so contest only if his resignation is accepted. Learned counsel for the election petitioner Patna High Court E.P. No.4 of 2011 dt.24-04-2014 15 further points out and submits that it is for this reason when, in paragraph 34 of the plaint, it was specifically mentioned that there were other departmental proceedings pending, in paragraph 29 of the written statement, the sole respondent denied pendency of any other departmental proceeding. He went a step further to say that the said allegation was concocted, false and fabricated but in course of the trial, evidence was brought on record by virtue of Exhibits 8 and 9 to show that there was at least one departmental proceeding that was pending in the district of Aurangabad where the sole respondent had been posted as SI. The sole respondent was given opportunity to rebut the official records that were produced before the Court upon summons being issued. He chose not to do so. From those proceedings, as contained in Exhibits 8 and 9, it is apparent that the sole respondent had appeared in those proceedings. Thus, it is clear that, as a matter of fact, a departmental proceeding was pending against the sole respondent of which he was fully aware and which has not yet been concluded. Let it be noted that in those departmental proceedings, the Superintendent of Police, Aurangabad had made a recommendation for the extreme punishment of dismissal from service. The sole respondent then submitted that as he had been transferred from Aurangabad to Patna in a different Range, the proceeding, as initiated or pending at Aurangabad, came to an end. I Patna High Court E.P. No.4 of 2011 dt.24-04-2014 16 am unable to accept this. A disciplinary proceeding, once initiated, can only end in three manners, either it is concluded by punishment or exoneration or it is set aside by a Court of competent jurisdiction or it abates by reason of death or superannuation of a person. No disciplinary proceeding lapses or comes to an end merely because a person is transferred from one Range to another. Apparently knowing this, the sole respondent was not ready to accept this fact.
24 Now it is well settled that resignation from service is a bilateral act. A person may have a right to resign but that resignation is always subject to acceptance. An employer has a right to refuse an employee the right to resign for various reasons. Persons, holding responsible post in public administration, cannot simply resign and walk away. They have certain duties. It is also a matter of contract where notwithstanding the right to resign, that is dependent upon its acceptance. When departmental proceedings have been initiated, an order of punishment, which may have different ramification, can be passed only so long as master-servant relationship exists. There cannot be any order of punishment in a departmental proceeding if the master-servant relationship comes to an end. If an employee tenders his resignation then pending disciplinary proceedings would become meaningless if resignation is accepted without concluding the disciplinary proceedings. That cannot be because, as noted above, Patna High Court E.P. No.4 of 2011 dt.24-04-2014 17 disciplinary proceedings can come to an end only in three manners, as indicated above. If the resignation is accepted then no effective punishment can be given. Thus, before resignation can be accepted, the authorities are bound to find out if any disciplinary proceeding is pending or not and if those proceedings are pending, they have first to be concluded one way or the other. Once all departmental proceedings are concluded only then an authority, competent to accept the resignation, can accept the same. When we look to the facts of the present case, as brought on record, it would be seen that the sole respondent was aware of this position so was the DIG because Exhibit G, the letter dated 01.10.2010 of the sole respondent to the SSP, Patna clearly states that he had come to know that his resignation was not being accepted merely because departmental proceedings were pending and had not been concluded. Then if we refer to Exhibit 5/1, the order of the DIG dated 03.11.2010 accepting sole respondent's resignation, the DIG clearly states that as the departmental proceeding has concluded, the resignation can now be accepted and was accepted. Thus, both the sole respondent and the DIG were fully aware and conscious of the legal position.
25 Thus, it is held that so long as departmental proceedings are pending and not concluded, a resignation cannot be accepted. From the evidence, as noted above, I had found that there was at least Patna High Court E.P. No.4 of 2011 dt.24-04-2014 18 one other departmental proceeding that was pending in which there had been a recommendation for dismissal of the sole respondent. That proceeding remains unconcluded. The sole respondent was aware of it having appeared in it. Thus, in my view, in view of these facts, it is difficult to hold that had this fact been brought to the notice of the DIG, DIG would have accepted the resignation. To the contrary, from the order of the DIG itself, it is apparent that had he been informed of this pending proceeding, he would not have accepted the resignation. Thus, I can safely hold that the resignation, as accepted by the DIG, was wholly without jurisdiction as law did not permit him to accept the resignation pending departmental proceeding.
26 Even otherwise, I am constrained to hold that the manner in which the whole thing was orchestrated shows that the resignation was wrongly accepted. As noted above, in the departmental proceeding that was pending at Patna, the sole respondent appeared and gave in writing that he had no evidence to lead and he is ready to face any punishment. The proceedings were concluded on 02.11.2010. On the next day, that is 03.11.2010, which was also the last date for filing nomination paper, the Enquiry Officer at Fatuha draws up the enquiry report and finds the sole respondent guilty. Somehow and very unusually, the enquiry report instantly reaches the Patna High Court E.P. No.4 of 2011 dt.24-04-2014 19 SSP at Patna on the same day and is directly put up to him and he immediately, hand to hand, passes an elaborate order of punishment. Then again, it is not known, as to how it instantaneously reaches the office of the DIG on the same very day and DIG looks into it and passes the final order accepting the resignation on the same very day. All this is happening within a few hours in the first half of 03.11.2010. It is so because as per sole respondent's own deposition, having come to know that his resignation has been accepted at about 2.30 pm on 03.11.2010, he files his second set of nomination paper which is Exhibit 6/1. Thus, in a span of about three hours, the enquiry report is prepared, signed at Fatuha, carried to Patna, the SSP peruses it, passes an elaborate order of punishment. It is then carried to the DIG who studies it and, in view of the conclusion of the departmental proceeding, passes an order of acceptance of resignation. Pertinent to note that 03.11.2010 was the last for filing nomination paper. If these brief facts are kept in mind, can it be said that the resignation was bona fide accepted. The answer has to be an emphatic no. The further fact to be noted here is that the resignation being accepted by the DIG, the DIG suo motu then faxes the same and on the next day, that is 04.11.2010, the moment question is raised at the time of scrutiny, a FAX message is sent to the DM, Aurangabad. Sole respondent, at that time, was at Aurangabad. He produced a copy of Patna High Court E.P. No.4 of 2011 dt.24-04-2014 20 this faxed order before the Returning Officer. Who had the access to the DIG to ask him to fax the letter and that too to the DM, Aurangabad. The DM, Aurangabad, with his seal, then hands over the copy of the letter to the sole respondent to be produced before the Returning Officer. These are highly unusual, suspicious and non- bona fide steps. It is for these reasons one has to hold that acceptance of resignation was not a bona fide act. It was not a bona fide exercise of power. It was, thus, a bad exercise and an invalid exercise. That being so, it has got to be held that the resignation having been improperly accepted, the acceptance is ineffectual and the resignation itself is then ineffectual. The consequence thereof is that the sole respondent would be deemed to be in Government service and would suffer from constitutional disability under Article 191 (1) (a) of the Constitution.
27 In view of the fact that the sole respondent has raised issue with regard to maintainability of the election petition, it is necessary to decide the same as well. According to the sole respondent, it was mandatory on the part of the election petitioner to plead material facts to show that acceptance of nomination paper of the sole respondent, even though it was invalid, would materially affect the results. As noted above, he had relied on several decisions of the Apex Court. I have examined all those decisions. They do not Patna High Court E.P. No.4 of 2011 dt.24-04-2014 21 apply to the facts of this case. In those cases, the invalid nomination papers were accepted of candidate other than the winning candidate. The nomination of a losing candidate was used as a ground to challenge the election results. Courts negatived it because of the mandatory nature of Section 83 read with Section 101 of the Representation of the People Act, 1950 (hereinafter referred to as the Act) which makes it mandatory to plead facts necessary to show that the results would have been materially affected. Courts held that if the nomination of the losing candidate was wrongly accepted, it cannot be said as to who would have got the votes as was polled in his favour. There is a chance of scattering of votes among various contestants. Unless with certainty, it could be pointed out that the votes would inure to the election petitioner and this fact could be established, no relief could be granted. Here, the situation is entirely different. Here, it is winning candidate whose nomination is alleged to have been wrongly accepted. Nothing more has to be shown because if the winning candidate's nomination is wrongly accepted, that itself shows that the result is materially affected. A person, whose nomination ought not to have been accepted, is allowed to participate in the election and he is declared elected, even though ineligible. Apart from this, there is yet another answer. Sole respondent's election has been challenged because he suffers from a Patna High Court E.P. No.4 of 2011 dt.24-04-2014 22 constitutional disability or constitutional disqualification. A person, who is constitutionally disqualified, can never be accepted as a representative of the people. Thus, this issue, as raised by the sole respondent, is misconceived.
28 I may also state that in view of provisions of Section 100 (1) (a) of the Act which takes within its sweep the provisions of Article 191 (1) (a) of the Constitution, there is no necessity of showing that the elections would be materially affected as is required under Section 100 (1) (d) of the Act. There is a distinction between the two provisions that is Section 100 (1) (a) and 100 (1) (d) of the Act in this regard. The present case is solely based on the provisions of Section 100 (1) (a) of the Act and not in relation to 100 (1) (d) of the Act.
29 In the result, there is no escape from holding that the resignation of the sole respondent was invalidly, improperly and wrongly accepted. The acceptance of resignation not being valid, it would be deemed that the sole respondent was in Government service at the time when he filed his nomination paper which was accepted and he contested the elections. That being so, he suffered from constitutional disability and, as such, it has to be declared that the election of the sole respondent is null and void.
30 The Election Commission of India is directed hence to Patna High Court E.P. No.4 of 2011 dt.24-04-2014 23 make necessary arrangements for fresh poll in respect of the said Constituency.
31 The Election Petition is, thus, allowed.
Patna High Court, (Navaniti Prasad Singh, J) The 25th of April, 2014, AFR/M E Haque/