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CASE NO.: Appeal(Civil) 2730  of  2000

PETITIONER: TEK CHAND

       Vs.

RESPONDENT: DILE RAM

DATE OF JUDGMENT:       24/01/2001

BENCH: R.C.Lahoti, S.V.Patil

JUDGMENT:

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     J U D G M E N T

     Shivaraj V.  Patil, J.

     Aggrieved  by the judgment and order dated  24.03.2000 passed  by  the High Court of Himachal Pradesh  in  Election Petition  No.   2/98,  setting  aside the  election  of  the appellant  from  61-Nachan (S.C.) Assembly Constituency  and declaring  it  void,  this  appeal has  been  filed  by  the appellant  under  Section  116-A of  the  Representation  of People  Act, 1951 (for short ‘the RPA), calling in question the  correctness and validity of the said judgment and order of the High Court.

     The  material  and relevant facts, to the extent  they are  considered  necessary for the disposal of this  appeal, are set out as under.

     The  respondent  Dile Ram filed the election  petition challenging  the  election of the appellant  from  61-Nachan (S.C.)  Assembly Constituency in Himachal Pradesh,  pleading that  the nomination papers were filed by the appellant, the respondent  and others.  He was set up as a candidate by the Bhartiya  Janata  Party  (BJP)  and   the  appellant  was  a candidate  sponsored by the Indian National Congress  (INC). After the scrutiny and withdrawal of nomination papers, five candidates remained in the field.  The polling took place on 28.02.1998.   The  appellant  was declared  elected  by  the Returning Officer on 02.03.1998 after the counting of votes. The  votes  secured  by  the five candidates  are  as  given below:-

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     ------------------------------------------------------ Sr.   Name of the candidate Party Number of No.  affiliation votes polled

     1.  Sh.  Tek Chand Indian National 14,390 Congress

     2.  Sh.  Dile Ram Bhartiya Janata 13,631 Party

     3.  Sh.  Sohan Lal Janata Dal 328

     4.  Sh.  Damodar Himachal Vikas 9,182 Party

     5.     Sh.     Nikka       Ram    Independent    2,287 -----------------------------------------------------

     The  respondent sought for setting aside the  election of  the  appellant on the ground that it was void  as  Nikka Ram,  one of the contesting candidates mentioned at Sr.  No. 5  above  was holding office of profit under  Government  of Himachal  Pradesh  on the date of filing of  his  nomination paper  as  well  as on the date of  scrutiny  thereof.   The Returning  Officer  ought  to have rejected  his  nomination paper  as per Section 36(2)(a) of the RPA.  According to the respondent,  Nikka  Ram  was working as Junior  Engineer  in Irrigation  and Public Health Department of Himachal Pradesh on the relevant dates and was holding office of profit under the  State Government and as such, he was disqualified  from contesting  the  election in view of the bar  created  under Article  191  (1)(a)  of  the Constitution  of  India.   His nomination  paper was improperly and wrongly accepted by the Returning  Officer which in turn had materially affected the result  of  the  election  in so far  as  it  concerned  the returning candidate  the appellant.

     In  support  of  the grounds  of  challenge,  material averments  are  made in paras 4-5 of the election  petition, which  were  denied  in the written statement filed  by  the appellant.   Since the High Court has set out the  pleadings of  the  parties  in  sufficient  details,  we  consider  it unnecessary  to  repeat them.  According to the  respondent, Nikka Ram was an active worker of the Rashtriya Swayam Sevak Sangh  (RSS)  and was closely associated with the cadre  and workers  of RSS and BJP;  the vote bank of the respondent as well  as the said Nikka Ram by and large was common as  both of  them  were  in  contact with the BJP  and  RSS  workers, supporters  and  well-wishers;   having failed  to  get  BJP ticket,  Nikka  Ram  filed  his   nomination  paper  as   an independent  candidate  only with an object to cut into  the votes  of the respondent and damage his chances of election. Hence,  the  result of the election so far it concerned  the appellant had been materially affected.

     The  appellant  denied that nomination paper of  Nikka Ram  was  wrongly and improperly accepted by  the  Returning Officer.   It  was  also  denied   that  acceptance  of  his nomination  paper  had  materially affected  the  result  of election  insofar as it concerned the appellant.   According to him it was wrong to say that a mere margin of votes would determine  or would be relevant to determine that result  of election has been materially affected.  He also pleaded that he  was  not a member or active worker of BJP or RSS and  he did  not campaign in the election for votes as belonging  to BJP.

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     Certain  preliminary  objections were taken as to  the maintainability  of  the election petition.  By  a  detailed order  dated 3.8.1998, the High Court held that the petition did  not  suffer from any fatal defect so as to  entail  its dismissal at the threshold.  Since, thereafter main election petition  itself was disposed of after a full dressed  trial on  merits by the impugned judgment, it is unnecessary to go into further details on this aspect.

     In  the  light of these pleadings of the parties,  the learned trial Judge framed the following issues:-

     1.   Whether  the nomination paper of shri Nikka  Ram was  improperly  and  wrongfully accepted by  the  Returning Officer?  OPP

     2.   If  Issue  No.   1 is proved  in  favour  of  the petitioner,  whether  the  result of the election  has  been materially  affected  so far as it concerns the election  of the respondent?  OPP

     3.   Whether  Shri Nikka Ram was holding an office  of profit   under  Government  of   Himachal  Pradesh  and  was disqualified  for being chosen as member o Himachal  Pradesh Legislative Assembly?  OPP

     4.  Whether Shri Nikka Ram was an active member of the Rashtriya  Swayam  Sewak Sangh (R.S.S.) as alleged.  If  so, its effect?  OPP

     The  trial court took up issue nos.  1&3 together  and after  discussion  in the light of evidence, concluded  that the  nomination  paper  of  Nikka  Ram  was  improperly  and wrongfully  accepted  by  the Returning Officer  as  he  was holding  an  office of profit under the State Government  on the date of filing of his nomination paper as well as on the day  of  their  scrutiny by the Returning  Officer  and  was disqualified  for  being chosen as a Member of the  Himachal Pradesh Legislative Assembly.

     Issue   nos.    2&4  were   taken  up   together   for consideration  stating that they were inter-connected.   The findings were recorded on these issues also in favour of the respondent  holding  that  by   the  improper  and  wrongful acceptance  of the nomination paper of Nikka Ram, the result of  election  has  been  materially affected so  far  as  it concerned  the election of the appellant.  In view of  these findings, the election petition was allowed, the election of the  appellant  was  set aside declaring it  as  void  under Section 100(1)(d)(i) of the RPA.

     Shri  D.D.   Thakur,  learned senior counsel  for  the appellant, urged that:

     1.  the High Court committed an error in not accepting the  arguments  advanced on behalf of the appellant that  in view  of  the  proviso to sub-rule (2) of Rule 48-A  of  the Central Civil Services (Pension) Rules, 1972 (for short the Rules),  the  voluntary retirement sought for by Nikka  Ram became  effective  from  the date of expiry  of  the  period specified  in the notice dated 5.12.1994;  before the expiry of  the said period admittedly no communication was made  to said  Nikka  Ram  either  accepting  or  refusing  voluntary retirement  sought  by him;  the High Court wrongly  brushed

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aside  this  argument  stating that there  was  overwhelming evidence on record to show that the voluntary retirement was not accepted.

     2.   Nikka  Ram  gave   notice  on  5.12.1994  seeking voluntary  retirement under the Rules;  no communication was made  to  him till 28.2.1998, that is, the date of  election itself;   no  action  was  taken   against  Nikka  Ram   for participating  in  election;   in response to  letter  dated 25.3.1998  of the respondent a reply was given on  26.3.1998 long  after the result of election was declared on 3.3.1998. In  these circumstances by operation of the proviso to  Rule 48-A(2) of the Rules Nikka Rams voluntary retirement became effective from the date of expiry of the period specified in the  notice.   As such Nikka Ram ceased to be  a  Government servant  under  the State and was not holding an  office  of profit.   Thus he did not suffer any disqualification during the  relevant period and acceptance of his nomination  paper was absolutely right and justified.

     3.   The respondent did not specifically plead  giving material particulars as to how the result of the election so far  it concerned the appellant had been materially affected and he failed to establish the same by cogent and acceptable evidence;   merely  because the votes secured by  Nikka  Ram were  three times more than the difference of votes  secured by the appellant and the respondent, it could not be said as to  how  the  votes  secured by Nikka Ram  could  have  been distributed  in the absence of any pleading and evidence  in this  regard;  no material was placed to show that trend  or pattern  of voting when in all there were five candidates in the field.

     4.  The approach of the High Court in appreciating the evidence  placed  on  record was not  consistent  with  well established  principles;  the High Court simply accepted the statements of the witnesses including that of the respondent made  in  examination-in-chief   without  considering  their evidence  brought on record in their cross-examination;  the evidence  of  the  appellant  and   his  witnesses  led   in rebuttal/defence  was not considered along with the evidence led on behalf of the respondent applying the same standards. In  short,  the  analysis and appreciation of  the  evidence brought  on  record by the High Court was not objective  and appropriate.

     Shri  P.S.   Mishra,  learned senior counsel  for  the respondent, submitted:

     1.  that the findings recorded by the High Court based on  evidence  are  quite  justified  and  they  may  not  be disturbed.  2.  The standard and burden of proof in the case on hand cannot be equated to the one which is required in an election  petition filed on the ground of corrupt practices, i.e.,  as in a quasi criminal case;  in the present case the burden  of  proof having regard to the ground raised in  the election  petition should be considered at par with a burden of  proof  as in any civil case.  3.  Having regard  to  the facts and circumstances of the case, the evidence brought on record  and the 2287 votes secured by Nikka Ram, which  were three times more than the difference of votes secured by the appellant  and the respondent, i.e., 759, the High Court was right  in  declaring  the election of  the  appellant  void. Further,  the court cannot expect proof in a case like  this which is almost impossible so as to establish how the wasted

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votes  would  have  been distributed  among  the  contesting candidates.   4.  Looking to the Fundamental Rule 56(k)  and the  Pension Rules the acceptance of voluntary retirement of Nikka  Ram  by  competent authority was mandatory;   in  the absence  of  such  acceptance he should be treated  to  have continued  in  Government service;  acceptance of  voluntary retirement  after the expiry of the period specified in  the notice   was  not  automatic;    acceptance   of   voluntary retirement  may be from a date later than the date specified in  the  notice  of voluntary retirement and  the  voluntary retirement could become effective from the date of expiry of the  period  mentioned in the notice having regard  to  Rule 48-A  read as a whole along with Fundamental Rules  touching the  question  of voluntary retirement.  We  have  carefully considered  the submissions made by the learned counsel  for the  parties  in  the light of the  pleadings  and  evidence brought  on record.  The following two points arise for  our consideration and decision in this appeal:  - 1.  Whether at the  relevant time Nikka Ram was holding an office of profit being in the service of the State of Himachal Pradesh and as such  his nomination paper was improperly accepted, and,  if so  2.   whether the result of the election, insofar  as  it concerned  the  appellant, had been materially  affected  to declare  it  void.  Section 100, to the extent relevant  for the  purpose  of  this case, reads:  -  100.   Grounds  for declaring  election  to  be  void.    (1)  Subject  to  the provisions  of  sub-  section (2) if the High  Court  is  of opinion

     (a)  ..........   (b) ..........  (c) ..........   (d) that  the result of the election, in so far as it concerns a returned candidate, has been materially affected

     (i) by the improper acceptance of any nomination.

     In  an  election  petition  where  an  election  of  a returned  candidate is impeached under section  100(1)(d)(i) of  the  RPA,  it  is not enough only to  establish  that  a nomination  of  a  candidate was  improperly  accepted.   In addition,  it has to be further established that such  wrong acceptance  of nomination paper has materially affected  the result  of the election in so far it concerned the  returned candidate.   In  this view, in this case, having  regard  to facts and contentions, we think it is appropriate to take up the second point set forth above for consideration first.

     In  support of his case, the respondent (the  election petitioner)  examined  PWs  1-10   including  himself.   The appellant (the respondent in the election petition) examined RWs  1-13  including  himself in rebuttal.  The  High  Court having  rightly  stated in para 73 of the judgment that  the onus  was  very heavy on the respondent on issue no.  2  and that  burden  had to be discharged by him not  only  through specific  and  proper  pleadings  but  also  through  cogent evidence but went wrong in its approach while discussing the evidence  and  recording  finding on issue no.   2.   As  is evident  from the discussion made by the High Court in paras 80-104  on the evidence led by the parties, the approach was almost  one-sided.  In accepting the case of the  respondent and  his  witnesses,  as spoken to  in  examination-in-chief without  focusing the attention on what was brought about in the  cross-  examination  of these witnesses to  test  their truthfulness,  correctness,  probability  or  veracity,  the learned  trial  judge  failed  to  objectively  analyse  and

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evaluate   the  evidence.   Further   the  evidence  led  by appellant  was also not kept in view while appreciating  the evidence of the respondent and his witnesses.

     As   is  evident  from   the  election  petition,  the respondent  did not specifically plead that Nikka Ram was  a member  of  RSS and / or BJP except stating that he  was  an activist  or  actively associated with them;   no  documents were produced to establish that he was a member of RSS and / or BJP;  similarly nothing was placed on record to show that he  applied for and failed to get ticket from BJP to contest the  election as a BJP candidate;  however it is stated that the  vote bank was common for both, the respondent and Nikka Ram.  It is further stated that Nikka Ram secured 2287 votes whereas  the margin of difference between the votes  secured by  the appellant and the respondent was only 759.  As  such the  votes  secured  by Nikka  Ram  were  disproportionately large,  being three times more than the margin of difference between  the  votes  secured  by   the  appellant  and   the respondent;   had  the  nomination paper of Nikka  Ram  been rejected,  the  votes  polled  in   his  favour  would  have definitely  been polled in favour of the respondent as those were pro-BJP and anti- establishment.  The main plank of the campaign  of  Nikka Ram was asking for votes in the name  of Shri  Atal Bihari Vajpayee;  he being an RSS activist  would stand by the side of Shri Atal Bihari Vajpayee if elected as MLA.  Hence improper acceptance of nomination paper of Nikka Ram had materially affected election of the appellant so far he  was  concerned.  It is not pleaded as to the pattern  or trend  of voting so as to show how the wasted votes  secured by Nikka Ram could have been distributed.  In his deposition the  respondent  (PW1) has not spoken to as to the trend  of voting  or  possible  distribution  of  votes  between   the contesting  candidates but for Nikka Ram being in the field. He  referred  to  greeting cards said to have been  sent  to several  persons and he received one Exbt.  PW1/1 which  was marked  subject  to  objection but ultimately that  was  not admitted  in  evidence.   In examination-in-chief,  he  also stated  that Nikka Ram had connection with RSS and was  also associated  with  BJP.  He did not assert or say that  Nikka Ram  was  member  of  RSS  and / or  BJP.   He  admitted  in cross-examination that in 1993 also, the appellant contested and  won  the  election as an  independent  candidate.   The respondent  lost  the  election by a margin of  7300  votes. Congress candidate in that election got only 3000 votes.  In 1989 election to Lok Sabha, Mr.  Maheshwar Singh was the BJP candidate.  He secured 5500 votes in this constituency, more than the Congress candidate and the respondent who contested the  Assembly  election in the year 1990 as a BJP  candidate got less votes than the BJP Parliamentary candidate.  He has admitted that witnesses cited by him were the BJP activists; they were office bearers of the party prior to 1991.  He has further  stated  that one Ganga Singh, a former M.P.   is  a resident  of his constituency and his Panchayat.  He was not aware  whether the said Ganga Singh supported him or opposed him.   He was President of the BJP earlier.  He has  further admitted  that it is correct that Nikka Ram never made  any request  for  being  made  a member of  the  BJP  in  Nachan constituency.   I  have  no  proof to the  effect  that  the request  was made by Nikka Ram for obtaining the BJP  ticket for  Nachan  constituency.   I  do   not  have  the   record indicating  that Nikka Ram was the active member of the BJP. The  request  for  being  made a member is  to  be  formally accepted  by  an  authority.   I am not  aware  whether  the request made by Nikka Ram was accepted. In his evidence, he

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stated  that  he  never found Nikka Ram  canvassing  in  his presence.   He  only heard some people telling that  he  was trying  to  tell that after winning the election,  he  would formally  join  BJP.   He  was   unable  to  give  names  or particulars  of  those  some persons who  were  telling  so. Although  he  made a statement that some members of the  BJP joined  Nikka Ram, he could not give their names, parentage, village,  place,  time and their whereabouts.  As  to  Exbt. PW1/1,  he admitted that it was not written in his presence; it  was not signed by Nikka Ram in his presence and that his name,  date  and other particulars were also not written  in his  presence.  He stated that this card was received by him through  post.   However, he did not have the possession  of the envelope with him.  In the cross-examination, he further admitted  that wife of Nikka Ram had defeated the  candidate of  BJP in Zila Parishad elections and that she secured 3700 votes.   The  BJP candidate secured 1200 votes only.  It  is also  admitted  that wife of Nikka Ram was the President  of Chatar   Panchayat  to  which   Tek  Chand,  the  appellant, belonged.  She defeated both the Congress and BJP candidates for the presidentship of the Panchayat.  Nothing was brought on  record  to show that the relationship between Nikka  Ram and  his  wife were strained or they belonged  to  different political  parties or ideologies.  From this evidence of the PW1,  it  is not at all possible to hold that Nikka Ram  was either  a  member of RSS or BJP or was  actively  associated with  them.   One of the cardinal principles of evidence  is that  the best possible evidence should be placed before the court for establishing a particular fact or a relevant fact. Either  to  the membership or association of Nikka Ram  with RSS  or  BJP, no documentary evidence was placed  on  record such    as   membership     register,   application    form, correspondence or his participation in any of the programmes or  activities  of RSS or BJP.  So much so,  no  documentary evidence was placed on record to show the trend of voting or distribution  of  votes  between the  contesting  candidates belonging  to  different  political parties  or  independent candidates  during  previous elections of  either  assembly, parliament or panchayat elections.  No other witness for the respondent  spoke  about  the possible  distribution  of  so called  wasted votes.  Having regard to the evidence and  in the  absence of positive and cogent evidence lead on  behalf of  the respondent it is not possible to hold that how  many out of the votes secured by Nikka Ram could have gone to the respondent  so as to say that the result of the election was materially  affected  so  far as it concerned  the  returned candidate.   Looking to the above evidence it cannot be said that in this constituency all along BJP was leading and that the  contest  was only between two parties or that it was  a strong  hold  of BJP.  There were in all five candidates  in the  field.  Damodar, candidate sponsored by Himachal  Vikas Congress  secured  9182 votes and Sohan Lal, Janata Dal  328 votes.   It  is  also not possible to  say  with  reasonable certainty  or guess that all the votes secured by Nikka  Ram or  more  than  759 votes could have gone in favour  of  the respondent if Nikka Ram was not in the field that too in the absence  of  any  material  to show the  trend  or  probable distribution of wasted votes.  Further, there were two other candidates  also in the field.  In this situation, how these 2287  votes  of Nikka Ram could have been distributed  among the remaining four candidates cannot be judicially guessed.

     The  statement of PW1 that all witnesses cited by  him were  active  workers  of BJP is to be kept  in  mind  while appreciating  their evidence.  PW4 is one Ranvir.  He stated

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that  he was the President of the BJP of Mandi Sadar and  he filled  up  membership  form of Nikka Ram for BJP.   In  the cross-examination,  he  has  admitted that Nikka  Ram  never applied  for being enrolled as a member from Nachan  Mandal; he  applied for the membership from the Mandi  constituency; membership  was never given to him from Nachan constituency. He  admitted that PW5, Ram Swarup, was the General Secretary of  BJP  of  Mandi district;  PW6, Joginder Singh,  was  the active  member  of  BJP from Nachan constituency.   He  also stated  that membership register of Nachan would be with its President  but  the  said register was  not  produced.   The evidence  of  this  witness did not help the  respondent  to establish  that  Nikka  Ram  was member of  BJP  or  he  was associated  with RSS or he was active worker of RSS or  BJP. PW5  stated  that Nikka Ram was one of the activists of  the BJP.    He  was  aspiring  for   BJP  ticket   from   Nachan constituency.  In his cross-examination, he stated that they had  the list of the members of the BJP and that the name of Nikka  Ram  appeared therein but he could not  produce  that record.   He  further  stated  that names  of  members  were received  from Mandals and then the list was prepared;   the name  of  Nikka Ram was received from Mandi  Mandal.   Those records were not produced.  He, however, further stated that the  membership of the BJP had not been conferred upon Nikka Ram.   PW6, is Joginder Singh, proposer of the respondent in the election.  He filed objection to the nomination paper of Nikka  Ram.  In his evidence he stated that he was an active participant in the RSS and Nikka Ram was associated with the activities  of  the  RSS  and BJP.   The  Returning  Officer directed  him to produce evidence that Nikka Ram was in  the active  service.  He could not produce evidence as the  time given  was  too  short.  In the  cross-examination,  he  has stated  that resignation was given by Nikka Ram in the  year 1995.   He  had  no  personal knowledge as  to  whether  the resignation  was  accepted  or  not.  He did  not  make  any written  request to the Returning Officer to grant more time to  place  the record.  PW7, Nand Lal, was the President  of the  Gram Panchayat Bara, from 1990 to 1995.  He stated that he  was associated with the BJP;  Nikka Ram used to come and meet  with a request to vote for BJP;  when he was unable to get  the  BJP  ticket,  he told he was the  worker  of  BJP, therefore,  the  votes  should be given to him;   Nikka  Ram claimed  himself as the man of Shri Atal Bihari Vajpayee  on the  ground  that  he  belonged  to  that  party.   In   the cross-examination,  he admitted that he had no proof of  the fact  that Nikka Ram was an active member of the BJP.   PW8, Uma  Dutt,  stated that he became a member of the BJP  after his  retirement.   Nikka  Ram  was Junior  Engineer  in  his Circle.  He had known and seen Nikka Ram as an active member of the BJP.  In his cross-examination he said that he helped the  respondent  in  the election.  He was not aware  as  to which Pradhan of Gram Panchayats belonged to which party and for  which  party  they worked.  He was also not  aware  who worked  for  the  BJP  or  for   the  Congress  or  for  the independent  candidate.   His evidence is of no help to  the respondent.   PW9,  Prem Chaudhary, stated that he knew  the appellant  and  Nikka Ram;  Nikka Ram belonged to  RSS;   he received  a greeting card;  he also belonged to RSS;  during election,  Nikka Ram was soliciting votes as being member of BJP.   In the cross-examination, he stated that he  received the  card  in  March 1997.  He had not seen  any  record  of membership  of Nikka Ram.  He stated that Nikka Ram attended training  camp of the RSS with him but did not remember  the date  nor the month nor the year.  He further stated that he helped  Nikka  Ram during the election, as he was one  among

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them.   The  last  witness PW10 examined in support  of  the election  petition  was  Dhameswar  Dutt,  Pradhan  of  Gram Panchayat,  Jhungi since 1993.  He stated that a meeting was held in the Panchayat.  In that meeting, Nikka Ram said that he  belonged  to  BJP and was follower of Shri  Atal  Bihari Vajpayee.   He further stated that the speech made by  Nikka Ram did not have any impact on the members of the Panchayat. He denied that he was the active member of the BJP, although PW1  himself  had stated that all his witnesses belonged  to BJP.   From this evidence, it cannot be said that the burden of  proof placed on the respondent (election petitioner) was discharged.   By this evidence, it was not established  that Nikka  Ram  was either a member or activist of RSS and /  or BJP.   There  was  also  no evidence to  establish  that  he applied  for  BJP  ticket and the same was  denied  to  him. Similarly,  there  was  no  evidence to  establish  that  he campaigned  in  the  election that he belonged to  BJP;   he would  join  BJP  in  case he was elected and  that  he  was supporter  of Shri Atal Bihari Vajpayee.  Further there  was nothing  to establish that voters of BJP and Nikka Ram  were common.   On  the other hand wife of Nikka Ram contested  an election  as an independent candidate and defeated both  BJP and  Congress  candidates.   Having regard to the  trend  of voting  in  the  previous elections, as brought out  in  the cross-examination  of PW1 and in the absence of any evidence as  to  the distribution of wasted votes, it cannot be  said that  votes polled in favour of Nikka Ram would have gone in favour  of  the respondent if his nomination paper  had  not been  accepted.  This being the position, it is not possible to  hold  that  the  result of the election  in  so  far  it concerned  the  returned candidate was materially  affected. Unfortunately,  the  High  Court   has  recorded  a  finding otherwise.   The  High  Court  has   found  fault  with  the appellant  saying  that  there was no rebuttal  evidence  as against  the  so called positive and cogent evidence led  on behalf  of  the respondent (election petitioner), even  when the  respondent failed to establish his case by  discharging burden  of proof placed on him.  Even otherwise the rebuttal evidence  is very much there as contained in evidence of RWs 1-13.

     RW1,  K.D.   Lakhanpal, the Returning Officer, in  his evidence  has  stated  that  Nikka Ram  was  an  independent candidate.  One Joginder Singh (PW6) raised objection to the nomination  paper  of Nikka Ram.  At 12.15 PM  on  5.2.1998, time was given to Joginder Singh to prove his objection upto 3.00 PM that Nikka Ram was in Government service.  He failed to  prove  his objection by 3.00 PM.  The Returning  Officer waited  for him upto 6.25 PM;  even then he did not  produce any  proof and no extension of time was sought for on behalf of  the objector beyond 6.25 PM.  On the basis of the record available,  he accepted the nomination paper of Nikka Ram by rejecting  the objection of Joginder Singh on the ground  of lack  of  proof.   In the cross-examination, he  denied  the suggestion that time sought for to furnish proof by Joginder Singh  was denied.  The appellant was examined as RW-2.   In his evidence, while rebutting the case of the respondent and supporting   his   defence,  he   has  clearly  denied   the suggestions  in the cross-examination to the contrary.   RW2 in  his evidence has further stated that Nikka Ram contested the  election as an independent candidate.  He and Nikka Ram belong  to same Panchayat.  Nikka Rams wife Raj Kumari  was the  Pradhan of said Gram Panchayat.  She defeated both  BJP and  Congress candidates in the election of Pradhan of  Gram Panchayat.   The BJP candidate had polled 250 votes  whereas

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she  had  polled 750 votes.  In the Zila Parishad  election, she  had  polled  approximately 3,700 votes  while  the  BJP candidate had polled 1200 votes.  Out of 40 Gram Panchayats, 30-32  have  Congress  elected Pradhans.   During  election, Nikka  Ram  had been canvassing for vote as  an  independent candidate  and  did not appeal in the name of any  political party.   It  was denied that Nikka Ram was active worker  of RSS.   It was also denied that because of the propaganda  of Nikka Ram, the votes of BJP supporters which would have been in  the  normal  course polled in favour of  the  respondent instead  went  in favour of Nikka Ram.  He also  denied  the suggestion  that  in case nomination paper of Nikka Ram  had not been accepted, the respondent would have been successful in  the election.  The appellant also denied that he had put up  Nikka  Ram  as  a candidate for  the  said  election  by financing  him so as to cut into the votes of Dile Ram  (the respondent).   The High Court did not accept his evidence on the  ground  that in cross-examination, certain  suggestions were  made  although they were denied and that RW-2 did  not raise  any  objection to the nomination paper of Nikka  Ram. RW-3,  Raju,  in his evidence has stated that Nikka Ram  had appointed  him as polling agent at Chachyot polling  station and he had accompanied Nikka Ram for canvassing votes in his favour and he heard Nikka Ram saying to the voters that they all  had seen what Dile Ram had done and also what Tek Chand had  done  and  they should vote him as he  is  an  educated person.   He  further stated that he had not  canvassed  for votes  on  the  ground  of being an  active  member  of  any political  party  nor he had asked for votes in the name  of any  political  party.   His  evidence   was  sought  to  be discredited  on  the ground that he reached Shimla  in  jeep belonging  to  the  appellant in order to give  evidence  in court and he had stayed previous night with the appellant in MLA  hostel.   Assuming, the witness was interested but  did not  support the case of the election petitioner in any  way on whom the burden of proof was heavy to establish his case. RW4,  Hemraj,  stated that he was a worker of Nikka  Ram  as well  as  his  polling agent at Khanet-II  polling  station. According  to  him, Nikka Ram asked for votes holding out  a promise  that he would get minor work done such as repair of roads  etc.  He did not say that he would join any political party in case he was elected and that he did not canvass for or  seek votes in the name of any political party.   Nothing was said as to why his evidence was discarded.  The evidence of  RW5,  Kamla  Devi, is also to the same  effect  and  she stated  that during election campaign in her presence  Nikka Ram  had not announced himself to be a worker of BJP nor did he  say that his leader was Shri Atal Bihari Vajpayee.  RW6, Charandas  has  deposed that Nikka Ram had asked  for  their votes  by  saying  that  he  was  a  person  from  the  same constituency  and  that  he  would give  better  account  if elected  and that he had not canvassed for votes in the name of  BJP nor he had stated that in case of being elected,  he would  join  that  party.  RW7, Dhanram Das and  RW8,  Dayal Singh, have also stated that Nikka Ram did not ask for votes in the name of BJP and he had also not canvassed saying that he would join BJP in case he is elected.  The High Court has commented on the evidence of RW8 saying that he had not been able  to  tell the date of Nikka Rams visit to his  village nor  the  names of the persons who accompanied him  on  that occasion.   Nothing  more is said as to why the evidence  of these witnesses should not be accepted.  The evidence of RWs 9-13  are  also  more or less to the same effect.   No  good reasons  are given by the High Court for not accepting their evidence.   The  learned  trial Judge in  the  judgment  has

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stated  that the respondent pleaded his case in the election petition  in  a positive and forthright manner and also  has led positive and reliable evidence.  Placing strong reliance on  Chhedi  Ram  vs.  Jhilmit Ram and Others [(1984)  2  SCC 281],   concluded  that  by   improper  acceptance  of  the nomination  paper  of  Nikka Ram who was  disqualified  from contesting  the election on the relevant date and the number of  votes  polled by him, namely 2287 which would be in  the nature of wasted votes, the substantial majority of the said wasted  votes would have been polled by the respondent,  had Nikka  Ram not been in the electoral fray. In view of  this conclusion,  the learned trial Judge held that the result of the  election  insofar it concerned the appellant  has  been materially  affected to the detriment of the respondent  who would  have  been otherwise the successful  candidate.   The argument  advanced  on behalf of the appellant that in  case nomination  paper of Nikka Ram had been rejected, it was not necessary  that all votes polled by him would have gone only to the respondent and not to the other candidates when there were  two  other  candidates in the field and  one  of  them namely  Damodar  of Himachal Vikas Congress had polled  9182 votes,  was  lightly brushed aside saying that there was  no merit  in  that argument inasmuch as the respondent had  led positive  and  cogent  evidence to show that Nikka  Ram  cut deeply  into  the  votes  of the  respondent  by  contesting election  as  a  parallel BJP candidate.  We are  unable  to agree  with  the  statement  of  the  High  Court  that  the respondent  led  positive and cogent evidence to  show  that Nikka  Ram  cut deeply into the votes of the  respondent  by contesting the election as a parallel BJP candidate as it is not  supported by cogent and acceptable evidence.  On behalf of  the  appellant, it was also urged before the High  Court that  in  order to succeed on the ground that the result  of the  election  had been materially affected in so far as  it concerned  the returned candidate by the improper acceptance of  the nomination paper of Nikka Ram, the respondent had to establish by positive evidence that the wasted votes polled, would   have  been  otherwise  polled   in  favour  of   the respondent.   In  support  of this contention, the  case  of Vashit  Narain Sharma vs.  Dev Chandra and others [(1995)  1 SCR  509]  of  this Court was cited.   This  contention  was rejected saying that in the present case the petitioner has adduced  satisfactory and positive evidence to show that the wasted  votes  polled  by  Nikka Ram  would  in  substantial majority  have been polled otherwise by the petitioner.   So the  question  of finding being speculative  or  conjectural does  not arise on the facts of this case. Here again,  the High  Court  was  not correct in the light of  the  evidence brought on record.

     In  Vashit  Narain Sharma vs.  Dev Chandra and  others [1955  (1)  SCR 509], a three Judge Bench of this Court  has expressed  the view that whether the result of the  election has  been  materially affected should not be judged  by  the mere  increase  or  decrease in the total  number  of  votes secured  by the returned candidate but by proof of the  fact that  the wasted votes would have been distributed in such a manner  between the contesting candidates, which would  have brought  about  the  defeat of the  returned  candidate  and burden of proof in this regard lies upon the petitioner, who questions the validity of the election and that the election of  a  returned  candidate  cannot  be  set  aside  on  mere possibility  or conjecture as to the distribution of  wasted votes.

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     This Court in Samant N.  Balakrishna etc.  vs.  George Fernandez  and others etc.  [1969 (3) SCR 603] has  referred to  and  followed Vashit Narain case (supra).  In para 2  at page  644  of that judgment it is stated, thus:  -  In  our opinion  the  matter  cannot be considered  on  possibility. Vashist  Narains  case insists on proof.  If the margin  of votes  were  small  something might be made  of  the  points mentioned  by Mr.  Jethmalani.  But the margin is large  and the  number of votes earned by the remaining candidates also sufficiently  huge.   There  is no room,  therefore,  for  a reasonable judicial guess.  The law requires proof.  How far that  proof  should  go  or what it should  contain  is  not provided  by  the  Legislature.  In Vashists  case  and  in Inayatullah   v.   Diwanchand  Mahajan   (15  ELR  210)  the provision  was held to prescribe an impossible burden.   The law  has  however remained as before.  We are bound  by  the rulings  of this Court and must say that the burden has  not been  successfully  discharged.   We   cannot  overlook  the rulings of this Court and follow the English ruling cited to us.

     [emphasis supplied]

     This  Court  in  Shiv Charan Singh vs.   Chandra  Bhan Singh  [(1988)  2 SCC 12], after referring to Vashit  Narain case  (supra) and Chhedi Ram vs.  Jhilmit Ram [(1984) 2  SCC 281],  dealing with an election petition filed on the ground under  Section 100(1)(d)(i) itself, has clearly stated  that the burden of strict proof is on election petitioner;  it is not  permissible  to act on conjectures and surmises;   mere fact  that  number  of votes polled by  a  candidate,  whose nomination  was  improperly accepted, was greater  than  the margin  of  votes polled by the returned candidate  and  the candidate  securing the next highest number of votes not  by itself  was  conclusive proof of the material effect on  the election  of the returned candidate.  Paras 10 and 11 of the judgment read thus:  -

     10.   In  the  instant  case Shiv  Charan  Singh  the appellant  had polled 21,443 votes and Roshan Lal had polled 16,946  the next highest number of votes.  There was thus  a difference  of  4497 votes between the votes polled  by  the appellant  and  Roshan Lal.  Kanyaiya Lal  whose  nomination paper had improperly been accepted, had secured 17,841 votes which were wasted.  The election petitioners did not produce any   evidence  to  discharge   the  burden  that   improper acceptance   of  the  nomination   paper  of  Kanhaiya   Lal materially  affected  the  result  of the  election  of  the returned candidate.  On the other hand the appellant who was the  returned candidate produced 21 candidates  representing cross-section  of the voters of the constituency.  All these witnesses  had  stated  before the High court  that  in  the absence  of  Kanhaiya  Lal  in  the  election  contest,  the majority  of the voters who had voted for Kanhaiya Lal would have  voted  for Shiv Charan Singh the appellant.  The  High Court  in our opinion rightly rejected the oral testimony of the  witnesses  in view of this courts decision in  Vashist Narain Sharma case.  The High Court however having regard to the  votes  polled by the appellant Roshan Lal and  Kanhaiya Lal  held  that  the result of the election  was  materially affected.  The High Court held that in view of the fact that difference  between  Shiv  Charan Singh  the  appellant  and Roshan  Lal was only 4497 and Kanhaiya Lal, whose nomination was  improperly accepted had secured 17,841 votes  therefore

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it  could  reasonably  be concluded that  the  election  was materially   affected.   In  our   opinion  the  High  Court committed  error declaring the appellants election void  on speculations and conjectures.

     11.  Indisputably, the election petitioners had failed to  discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason  of  improper acceptance of the nomination  paper  of Kanhaiya  Lal.   In  the absence of  any  positive  evidence produced by the election petitioners, it was not open to the High  Court  to  record  findings that  the  result  of  the election was materially affected.  The High Courts findings relating  to  the  material  affect on  the  result  of  the election  are  based on conjectures and surmises and not  on any evidence.  The legislature has, as noted earlier, placed a  difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of  improper  acceptance of nomination paper of a  candidate (other  than  the returned candidate) and if such burden  is not  discharged the election of the returned candidate  must be  allowed to stand as held by this court in Vashist Narain Sharma  and in Paokai Haokip [(1969) 1 SCR 637] case.  It is true  that  the burden placed on the election petitioner  in such  circumstances is almost impossible to discharge.   But in  spite  of the fact that this Court had highlighted  this question  on  more  than one occasion,  Parliament  has  not amended  the  relevant provisions although the Act has  been subjected  to  several amendments.  It is manifest that  law laid  down  by this Court in Vashist Narain Sharma case  and Paokai Haokip case holds the field and it is not permissible to  set  aside  the election of a returned  candidate  under Section  100(1)(d) on mere surmises and conjectures.  If the improperly  nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonable certainty the manner and the proportion in  which the voters who exercised their choice in favour of the  improperly  nominated  candidate would  have  exercised their votes.  The courts are ill-equipped to speculate as to how  the voters could have exercised their right of vote  in the   absence  of  improperly   nominated  candidate.    Any speculation  made  by  the court in this  respect  would  be arbitrary  and contrary to the democratic principles.  It is a  matter  of common knowledge that electors exercise  their right of vote on various unpredictable considerations.  Many times   electors  cast  their   vote  on  consideration   of friendship,  party  affiliation, local  affiliation,  caste, religion,  personal relationship and many other imponderable considerations.   Casting of votes by electors depends  upon several  factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their  choice  in  the absence of the  improperly  nominated candidate.   No inference on the basis of circumstances  can successfully  be  drawn.  While in a suit or proceedings  it may  be possible for the court to draw inferences or proceed on  probabilities  with regard to the conduct of parties  to the  suit  or proceedings, it is not possible to proceed  on probabilities  or  draw inferences regarding the conduct  of thousands  of voters, who may have voted for the  improperly nominated  candidate.   In  the instant case there  were  11 contesting  candidates.   If Kanhaiya Lal  whose  nomination paper  had been improperly accepted was not in the  election contest,  it  is  difficult to say in  what  proportion  the voters  who  had  voted  for him would have  voted  for  the remaining candidates.  There is possibility that many voters

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who  had gone to the polling station to cast their votes  in favour  of Kanhaiya Lal may not have gone to exercise  their vote  in favour of the remaining candidates.  It is probable that in the absence of Kanhaiya Lal in the election contest, many  voters would have voted for the returned candidate  as he  appeared  to  be  the most  popular  candidate.   It  is difficult  to comprehend that the majority of the voters who exercised  their choice in favour of Kanhaiya Lal would have voted for the next candidate Roshan Lal.  It is not possible to  forecast how many and in what proportion the votes would have  gone  to one of the other remaining candidates and  in what  manner  the wasted votes would have  been  distributed among  the  remaining contesting candidates.  In this  view, the  result of the returned candidate could not be  declared void on the basis of surmises and conjectures.

     [Emphasis supplied]

     Further in our country as the things stand, all voters do  not  belong  to or are affiliated to one  or  the  other political  party.  Large majority of them may be neutral  or independent  or  not  committed.  In this  case,  Nikka  Ram contested   the  election  as   an  independent   candidate, obviously,  on  a  symbol  other   than  those  allotted  to recognized  political parties.  Hence it cannot be said that all  2287  votes secured by Nikka Ram were from common  vote bank  of  BJP.   May be, many out of those  voters  did  not belong to any political party.

     In  para 12 of the same judgment it is clearly  stated that  decision  of this court in Chhedi Rams case  did  not overrule  earlier  decisions  in Vashit  Narain  Sharma  and Paokai Haokip cases and added that Chhedi Rams case did not lay down any different law and that decision turned upon its own  facts.   In  Chhedi Rams case the  difference  between successful  candidate and the candidate who had secured  the next  highest  number  of  votes was 373  only.   While  the candidate   whose  nomination  paper   found  to  have  been improperly  accepted had polled 6710 votes, i.e., almost  20 times  of  the difference of number of votes secured by  the successful  candidate  and the candidate securing  the  next highest  number  of votes.  In that situation result of  the election was held to have been materially affected.

     In  Chhedi  Ram vs.  Jhilmit Ram and others [(1984)  2 SCC  281],  it is held that the burden of establishing  that the  result of election has been materially affected due  to the  improper  acceptance  of nomination is  on  the  person impeaching the election.  If, having regard to the facts and circumstances  of  a case the reasonable probability is  all one  way, the burden may be said to have been discharged and a  court  must not lay down an impossible standard of  proof and  hold  a fact as not proved.  It is added that  question must  depend  on  the facts,  circumstances  and  reasonable probabilities  of the case, particularly, when votes secured by  a  candidate, whose nomination was improperly  accepted, was disproportionately large as compared with the difference between  the votes secured by the returned candidate and the candidate securing the next highest number of votes.  In the case  we  are dealing with the facts and  circumstances  are entirely  different.  The reasonable probability is not  all one way in favour of respondent.  On the other hand there is no  cogent  and reliable evidence to probablise the case  of the respondent.

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     A   three   Judges  Bench  of   this   Court   in   J. Chandrasekhara Rao vs.  V.  Jagapathi Rao and others [(1993) Supp.   2  SCC 229], after referring to other  decisions  of this Court including Chhedi Rams case (supra) has held that Chhedi Rams case did not overrule the earlier decisions and that  Chhedi  Rams  case rested on its own  facts.   It  is further  expressed that a decision in the election  petition can  be given only on the positive and affirmative  evidence and not merely on speculation and suspicion, however, strong they may be.  Para 18 of the said judgment reads:  -

     18.   Thus  it  can be seen from  all  the  aforesaid decisions  of  this  Court  that  it  is  for  the  election petitioner  to prove by positive and reliable evidence  that either   improper  acceptance  of   the  nomination  of  the candidate  or  on  account of the  non-compliance  with  the provisions  of the Constitution or the Act, Rules or  orders etc.   that the wasted votes would have been distributed  in such  a  manner  among  the remaining  candidates  that  any candidate  other  than  the returned  candidate  would  have polled  the highest number of valuable votes.  Such a burden of  proof  maybe difficult, say impossible, but  the  courts cannot  set aside the election of the returned candidate  on surmises  and  conjectures  unless established  by  positive evidence  that  the election of the returned  candidate  has been materially affected.

     [emphasis supplied]

     In  spite  of  this   Court  explaining  the  position clearly,  as above, in relation to Chhedi Rams case in  two subsequent  decisions  of three Judges Bench in Shiv  Charan Singh  and  Chandrasekhara Rao cases (supra), strangely  the High  Court  misread  Chhedi  Rams case  and  preferred  to support  its  view from that case as against  aforementioned decisions  and other decisions of this Court.  We may repeat that  in  the aforementioned decisions it is clearly  stated that the Chhedi Rams case was decided on its own facts.

     In  Uma  Bhallav  Rath (Smt.) vs.   Maheshwar  Mohanty (Smt.) and others [(1999) 3 SCC 357], this Court has taken a view  that  election of a returned candidate cannot  be  set aside  on  presumptions, surmises or  conjectures.   There must   be  clear  and  cogent   proof  in  support  of   the allegations.   Applying  the principles stated and law  laid down  by  this Court in the aforementioned decisions and  in the facts and circumstances of the case having regard to the evidence  placed on record we have no hesitation in reaching the  conclusion  that  the High Court committed  a  manifest error  in concluding that the result of the election of  the appellant  had  been  materially   affected  on  account  of improper  acceptance  of the nomination paper of Nikka  Ram. No  doubt,  in  appeal court will be slow  in  disturbing  a finding  of fact recorded by the trial court based on proper appreciation  of  evidence  but it is also the duty  of  the appellate  court to disturb it if the burden of proof is not discharged  by  cogent, positive and acceptable evidence  in the  light  of  law laid down by this Court.  More  so  when there   is  non  consideration  of  material  evidence   and appreciation of evidence is not objective and one sided.

     In  a  democratic  set up, an election of  a  returned candidate   should  not  be   easily  vulnerable  to   vague

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allegations or to averments made in an election petition not substantiated  or supported by positive, cogent and reliable evidence.   The verdict given by the majority of voters in a constituency  in favour of an elected candidate to represent a constituency in a State Legislative Assembly or Parliament cannot  be  lightly annulled or negatived in the absence  of specific,  acceptable and convincing evidence in support  of the grounds raised in an election petition.  Being the Court of  first appeal when the finding recorded by the High Court in  this  case  is  not based  on  proper  appreciation  and objective  assessment  of  evidence brought  on  record,  as discussed  above,  we  have no impediment in  reversing  the finding recorded by the High Court.

     Thus  viewed  from  any angle and even  assuming  that nomination  paper  of Nikka Ram was improperly  accepted  we hold  that  the  election  of  the  appellant-the   returned candidate in so far it concerned him had not been materially affected.  The point No.  2 is answered accordingly.

     In  view  of our finding recorded on point no.  2,  we could  have  disposed  of this appeal  without  any  further discussion  on  point No.  1.  Since the learned counsel  on both  sides took pains in elaborately arguing on this  point as  well,  we  will  examine   and  consider  the  same  for completion.

     Answer  to this question depends on whether Nikka  Ram was in Government service on the date of filing and scrutiny of  his nomination paper.  Nikka Ram gave an application for voluntary  retirement  on  5.12.1994 to  the  Superintending Engineer,  Irrigation  and  Public  Health,  Circle  Rampur, District  Shimla, Himachal Pradesh.  In that application  he has  stated  that he had completed 20 years of  service  and sought  voluntary  retirement with all benefits of  service. The  said application mentioned also of three months notice with  a  request  that he may be retired  with  effect  from 28.2.1995.   According to the respondent, as pleaded in para 4  of  the election petition, the said application made  for voluntary  retirement  had not so far been accepted  by  the Government  and  Nikka  Ram still  continued  in  Government service.   Copy of the letter dated 26.3.1998 issued by  the Superintending Engineer certifying that voluntary retirement application  of  Nikka Ram had not been accepted, was  filed alongwith the election petition.  Exbt.  PW3/1 is said to be the  Office  Order of the IPH Deptt.  dated 18.12.1996;   it says  that  an  inquiry under Rule 14 of the  Central  Civil Service  (Classification, Control and Appeal) Rules, 1965 is being  held  against Nikka Ram and the Inquiry Authority  to inquire  into the charges framed was appointed.  Of  course, the  nature and contents of the charges were not  indicated. Exbt.   PW3/2  is  a  letter   dated  29.12.1994  from   the Superintending  Engineer,  IPH, Circle Rampur, addressed  to the  Executive  Engineer.  In the letter it is  stated  that Nikka  Ram  had sought voluntary retirement from  Government service  with effect from 28.2.1995 by giving three  months notice.   Further  the Executive Engineer was  requested  to examine  the  case properly as required under the  Rule  and send  No  Demand Certificate as well as Vigilance  Clearance Certificate  alongwith  specific  comments to  take  further action.   It  is further indicated that if not the  detailed position  be  intimated to this office immediately, the  VVC may  be obtained personally from the E-In-C, IPH Department, Shimla,  as  well as from the C.N.  Dharmshala  immediately. Copies  were  sent  to other authorities to  take  immediate

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action.   Exbt.  PW3/1 is another letter dated 2.4.1998 from the  Superintending  Engineer addressed to Nikka Ram at  his home address stating that his voluntary retirement as sought could  not  be accepted for the reason that total length  of his service was 19 years 10 months and 6 days which was less than 20 years.  One more letter Exbt.  PW3/2 dated 26.3.1998 from  the  Superintending  Engineer  was  addressed  to  the respondent  in reply to his letter dated 25.3.1998 informing that issue of voluntary retirement of Nikka Ram had not been finalized  due  to  some departmental  formalities  and  his request  for voluntary retirement had not been accepted till date.   In response to the application dated 6.8.1998 of the respondent,  Exbt.   PW3/3 dated 7.8.1998 was issued  giving various  details of the departmental formalities and hurdles indicating  that  his  voluntary  retirement  could  not  be accepted.

     It  is not disputed that the appointing authority  did not  refuse  to grant the permission for  retirement  before expiry of the period specified in the said application dated 5.12.1994  given  by Nikka Ram.  Further,  no  communication whatsoever  was made to him within the said period.   During the  course  of  the  argument before the  High  Court,  the learned counsel for the parties referred to Rule 48-A of the Rules,  of course, placing their own interpretation.   Since the said Rule is material and has bearing on the question to be determined, it is extracted below:-

     48-A.    Retirement  on  completion   of   20   years qualifying service.

     (1)  At  any  time  after  a  Government  servant  has completed  twenty  years  qualifying service,  he  may,  by giving  notice  of not less than three months in writing  to the appointing authority, retire from service.

     Provided  that  this  sub-rule shall not  apply  to  a Government  servant, including scientist or technical expert who is

     (i)  on  assignments  under the Indian  Technical  and Economic  Co- operation (ITEC) Programme of the Ministry  of External Affairs and other aid programmes.

     (ii)  Posted  abroad in foreign based offices  of  the Ministries / Departments.

     (iii)  On a specific contract assignment to a  foreign Government,  unless, after having been transferred to India, he  has  resumed the charge of the post in India and  served for a period of not less than one year.

     (2)  The  notice of voluntary retirement  given  under sub-rule  (1)  shall  require acceptance by  the  appointing authority;

     Provided  that where the appointing authority does not refuse  to  grant the permission for retirement  before  the expiry  of  the  period specified in the  said  notice,  the retirement shall become effective from the date of expiry of the said period.

     ..........................................

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     Under sub-rule (1) of the said Rule, at any time after completion  of  20 years qualifying service,  a  Government servant  could give notice of not less than three months in writing  to  the  appointing authority for  retirement  from service.   Under  sub-rule (2), voluntary  retirement  given under   sub-rule  (1)  shall   require  acceptance  by   the appointing  authority.   In the proviso to sub-rule  (2)  of Rule  48-A, it is clearly stated that in case the appointing authority  does  not  refuse  to grant  the  permission  for retirement  before the expiry of the period specified in the said  notice, the retirement shall become effective from the date of expiry of the said period.

     It  is  clear from sub-rule (2) of the Rule  that  the appointing  authority  is required to accept the  notice  of voluntary  retirement given under sub-rule (1).  It is  open to  the  appointing  authority to refuse  also  on  whatever grounds  available  to it but such refusal has to be  before the  expiry  of  the period specified in  the  notice.   The proviso  to sub-rule (2) is clear and certain in its  terms. If  the  appointing authority does not refuse to  grant  the permission  for  retirement before the expiry of the  period specified  in  the  said notice, the retirement  sought  for becomes  effective  from  the  date of expiry  of  the  said period.   In this case, admittedly, the appointing authority did  not  refuse to grant the permission for  retirement  to Nikka  Ram before the expiry of the period specified in  the notice  dated 5.12.1994.  The learned senior counsel for the respondent   argued  that  the   acceptance   of   voluntary retirement   by  appointing  authority  in  all   cases   is mandatory.   In  the absence of such express acceptance  the Government  servant continues to be in service.  In  support of  this submission, he drew our attention to Rule 56(k)  of Fundamental Rules.  He also submitted that acceptance may be on  a  later  date, that is, even after the  expiry  of  the period  specified in the notice and the retirement could  be effective  from the date specified in the notice.  Since the proviso to sub- rule (2) of Rule 48-A is clear in itself and the  said Rule 48-A is self-contained, in our opinion, it is unnecessary  to  look  to other provisions, more so  in  the light  of  law  laid down by this Court.  An  argument  that acceptance  can be even long after the date of the expiry of the  period  specified in the notice and that the  voluntary retirement  may become effective from the date specified  in the  notice, will lead to anomalous situation.  Take a case, if  an application for voluntary retirement is accepted  few years  later  from  the date specified in  the  notice  and voluntary  retirement  becomes  operative from the  date  of expiry  of  the  notice  period itself, what  would  be  the position  or status of such a Government Servant during  the period from the date of expiry of the notice period upto the date  of  acceptance  of  the voluntary  retirement  by  the appointing  authority?   One either continues in service  or does  not  continue in service.  It cannot be both that  the voluntary  retirement  could be effective from the  date  of expiry  of  the period mentioned in the notice and  still  a Government  servant  could  continue  in  service  till  the voluntary  retirement is accepted.  The proviso to  sub-rule (2) of Rule 48-A of the Rules does not admit such situation.

     This  Court in a recent judgment in the case of  State of  Haryana and others vs.  S.K.Singhal [(1999) 4 SCC  293], after  referring  to  few earlier decisions  of  this  Court touching  the  very point in controversy in para 13  of  the

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judgment has held thus :-

     13.   Thus, from the aforesaid three decisions it  is clear  that if the right to voluntarily retire is  conferred in  absolute  terms as in Dinesh Chandra Sangma case by  the relevant  rules  and there is no provision in the  rules  to withhold  permission in certain contingencies the  voluntary retirement  comes into effect automatically on the expiry of the period specified in the notice.  If, however, as in B.J. Shelat  case and as in Sayed Muzaffar Mir case the authority concerned  is empowered to withhold permission to retire  if certain conditions exist, viz, in case the employee is under suspension  or in case a departmental enquiry is pending  or is  contemplated,  the  mere pendency of the  suspension  or departmental enquiry or its contemplation does not result in the  notice for voluntary retirement not coming into  effect on  the  expiry  of the period specified.  What  is  further needed  is that the authority concerned must pass a positive order  withholding  permission  to   retire  and  must  also communicate  the  same  to the employee as  stated  in  B.J. Shelat case and in Sayed Muzaffar Mir case before the expiry of the notice period.  Consequently, there is no requirement of  an order of acceptance of the notice to be  communicated to the employee nor can it be said that non-communication of acceptance  should be treated as amounting to withholding of permission.

     In   our  view,  this   judgment  fully  supports  the contention  urged on behalf of the appellant in this regard. In  this  judgment,  it  is observed that  there  are  three categories  of  rules  relating  to  seeking  of   voluntary retirement  after  notice.   In  first  category,  voluntary retirement  automatically  comes  into force  on  expiry  of notice  period.   In second category also, retirement  comes into  force  unless an order is passed during notice  period withholding  permission  to  retire and  in  third  category voluntary  retirement  does  not   come  into  force  unless permission  to  this  effect  is granted  by  the  competent authority.   In  such a case, refusal of permission  can  be communicated even after the expiry of the notice period.  It all  depends upon the relevant rules.  In the case  decided, the   relevant  rule  required   acceptance  of  notice   by appointing  authority  and the proviso to the  Rule  further laid   down   that   retirement   shall  come   into   force automatically  if  appointing  authority   did  not   refuse permission  during  the  notice  period.   Refusal  was  not communicated  to the respondent during the notice period and the  court held that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him  that  he could not be deemed to have voluntary  retired had  no effect.  The present case is almost identical to the one decided by this Court in the aforesaid decision.

     This  Court  in B.J.  Shelat vs.  State of  Gujarat  & Ors.   [  (1978)  2 SCC 201 ] while dealing with a  case  of voluntary  retirement,  referring  to Bombay  Civil  Service Rules,  Rule  161(2)(ii)  proviso  and  Rule  56(k)  of  the Fundamental  Rules,  in  similar   situation,  held  that  a positive action by the appointing authority was required and it  was  open  to  the   appointing  authority  to  withhold permission  indicating  the  same   and  communicating   its intention  to the Government Servant withholding  permission for  voluntary  retirement and that no action can  be  taken once  the Government servant has effectively retired.  Paras

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9 and 10 of the said judgment read thus :

     9.  Mr.  Patel next referred us to the meaning of the word  withhold  in  Websters   Third  New   International Dictionary  which is given as hold back and submitted that the  permission should be deemed to have been withheld if it is not communicated.  We are not able to read the meaning of the  word withhold as indicating that in the absence of  a communication it must be understood as the permission having been withheld.

     10.   It  will  be useful to refer  to  the  analogous provision  in the Fundamental Rules issued by the Government of  India  applicable  to the Central  Government  servants. Fundamental  Rule  56(a) provides that except  as  otherwise provided in this Rule, every Government servant shall retire from  service on the afternoon of the last day of the  month in   which  he  attains  the   age  of  fifty-eight   years. Fundamental  Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay  Civil Services Rules conferring an absolute right on the  appropriate authority to retire a Government servant by giving   not   less  than   three  months  notice.    Under Fundamental Rule 56(k) the Government servant is entitled to retire  from  service  after  he has  attained  the  age  of fifty-five  years  by giving notice of not less  than  three months  in writing to the appropriate authority on attaining the age specified.  But proviso (b) to sub-rule 56(k) states that  it  is open to the appropriate authority  to  withhold permission  to  a  Government servant under  suspension  who seeks  to  retire  under  this   clause.   Thus  under   the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right  but  is  subject  to  the  proviso  where  under  the appropriate   authority  may  withhold   permission   to   a Government  servant under suspension.  On a consideration of Rule 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government Servant its decision to withhold permission to retire on one of the grounds specified in the proviso.

     In  this decision effect of Rule 56(k) of  Fundamental Rules  is also considered which answers the argument of  the learned  counsel for the respondent on this aspect.  It  may also  be  noticed  that  under Rule 48-A  in  Government  of Indias  decision giving instructions to regulate  voluntary retirement it is stated, Even where the notice of voluntary retirement given by a Government servant requires acceptance by  the appointing authority, the Government servant  giving notice  may  presume acceptance and the retirement shall  be effective  in  terms  of  the notice  unless  the  competent authority  issues an order to the contrary before the expiry of the period of notice.

     If  we  accept  the  argument of  the  learned  senior counsel for the respondent, even if the refusal of voluntary retirement  is not communicated within the period  specified in  notice,  the  voluntary retirement cannot  be  effective unless  it  is  accepted  by the  appointing  authority,  no meaning  and effect can be given to the proviso to  sub-rule (2)  to Rule 48-A.  It is cardinal rule of construction that no  word  or  provision should be  considered  redundant  or superfluous in interpreting the provisions of a statute or a rule.

     The   High   Court  looking  to  the   letters   dated

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29.12.1994,  18.12.1996,  2.4.1998, 26.3.1998  and  7.8.1998 came  to  the  conclusion that Nikka Ram was  in  Government service  on  the date of filing nomination paper.  The  High Court  also observed that there was glaring omission on  the part of the appellant in not controverting the pleadings and evidence of the respondent with regard to Nikka Ram being in Government  service at the relevant time and also relied  on the  oral evidence in this regard to say that Nikka Ram  was holding  office of profit by being in Government service  on the  date  of  filing  nomination  paper  and  as  such  his nomination  paper was wrongly accepted.  It is not disputed, as  already stated above, that no communication was given to Nikka  Ram before the expiry of the period specified in  the notice of voluntary retirement.  Nikka Ram was not examined. Exbt.   PW3/2, letter dated 26.3.1998, Exbt.  PW3/3,  letter dated  2.4.1998 and Exbt.  PW3/3 letter dated 7.8.1998  were of  dates  subsequent  to the date of filing  of  nomination paper  and even declaration of the result of the election on 2.3.1998.   On the basis of the material available on record on  the  date  of scrutiny of nomination  paper,  there  was nothing  to  show  that Nikka Ram  continued  in  Government service  in  view  of  the admitted  position  that  he  had submitted  application  for voluntary retirement  by  giving notice  on 5.12.1994 and no refusal was communicated to him, refusing   acceptance   of   voluntary   retirement   before 28.2.1995.   By virtue of Rule 48-A, as discussed above, the voluntary retirement of Nikka Ram came into force and became effective  from 28.2.1995.  Neither Nikka Ram nor Government of  Himachal  Pradesh are parties to this appeal before  us. In  this  appeal we do not wish to deal with the  status  of Nikka  Ram  in  relation  to   Government  service  or   the respective  rights and contentions, if any, of Nikka Ram and State   Government  in  regard  to   his  service  and   the consequences  that  may  follow.  For the  purpose  of  this appeal  it  is enough to say that on the date of filing  and scrutiny  of  nomination  paper of Nikka Ram, he  should  be deemed  to  have  been voluntarily retired by  operation  of proviso to sub-rule (2) of Rule 48-A.

     I.As.   2/2000 and 3/2000 are filed for impleadment of Nikka Ram and State of Himachal Pradesh and for modification of  the order dated 24.7.2000 respectively.  Application for impleadment  was made on the ground that Nikka Ram and State of  Himachal  Pradesh were not made parties to the  election petition.   The decision, one way or the other, on the point whether the said Nikka Ram ceased to be a Government servant or  continued  to  be in Government service  may  result  in serious  consequences  affecting the rights of Nikka Ram  or the  State  Government  as the case may be.   Since  neither Nikka  Ram nor the State of Himachal Pradesh were  necessary or  proper parties to be impleaded in the election petition, we  do not think it appropriate to allow I.A.  No.   2/2000. Hence  it  is rejected.  We, however, wish to add  that  the order  passed  or  observations made in this appeal  on  the point  of acceptance of the nomination paper of Nikka Ram on the  ground  that he had ceased to be in Government  service having regard to the proviso to sub-rule (2) of Rule 48-A on the  available  material on the date of his  nomination  and scrutiny,  will  be  without  prejudice to  the  rights  and contentions  either of Nikka Ram or the State Government  in relation  to service of Nikka Ram.  No order is necessary in I.A.  3/2000.

     In  the  result,  for the reasons stated  above,  this appeal  merits  acceptance.   Hence,  it  is  allowed.   The

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judgment and order of the High Court impugned in this appeal are  set  aside and the election petition stands  dismissed. Parties to bear their own costs.