JUDGMENT

Kapadia, J.-Whether the election petition filed by the appellant was lacking in material facts as required under section 83(1)(a) of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act") is the question which arises for determination in this appeal referred under section 116-A of the said Act.

2. The appellant was a member of Indian Administrative Service having 40 years service to his credit and who was 59½ years old. By letter dated 13.3.2002, he sought voluntary retirement under rule 16(2) of All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as "the 1958 Rules") with immediate effect. Appellant was registered as an elector at 535, Halqa No. 62, Mujeggar Plot No. 9A, Section-6, Faridabad in the State of Haryana and eligible to contest election to Rajya Sabha, in which two vacancies had occurred which were to be filled from the State of Haryana. A notification was issued to fill up the two vacancies under which the last date of filing the nomination papers was 14.3.2002, the date of scrutiny was 15.3.2002, last date of withdrawal was 18.3.2002 and the date of polling was 27.3.2003. The appellant sought voluntary retirement from service as he wanted to contest the election to Rajya Sabha. On 15.3.2003, the Returning Officer rejected the nomination papers of the appellant on the ground that rule 16 of the 1958 Rules warranted giving three months previous notice to the appointing authority and since the said period had not elapsed on the date of scrutiny the appellant was holding the office of profit on that day and, therefore, stood disqualified under Article 102(1)(c) of the Constitution. On 18.3.2002, election results were announced, since there was no contest after rejection of the nomination papers submitted by the appellant. Aggrieved, the appellant filed election petition No. 27 of 2002 in the High Court on the ground that his nomination papers had been wrongly rejected by the Returning Officer. In the election petition, he stated that on completion of 40 years of service and on attaining the age of 59 1/2 years, he was eligible to seek voluntary retirement under the 1958 Rules; that he had applied for the same through proper channel on 13.3.2002; that he had also made a request to the appointing authority to waive notice period of three months for seeking voluntary retirement; that he had relinquished the charge on 13.3.2002; and consequently, he was not holding office of profit with the Government on that day and, therefore, he was eligible to seek election to Rajya Sabha. In the election petition, the appellant further pleaded that his request was duly received by the Government of India, Ministry of Personnel - appointing authority and also by Government of Haryana at Chandigarh. He further averred that he sought voluntary retirement on account of illness of his wife and after resigning voluntarily from his post, he had filed nomination papers. He further averred that on the date of the scrutiny, he was present when he brought to the notice of the Returning Officer the factum of his voluntary retirement but the Returning Officer disregarded the provisions of the 1958 Rules as also the provisions of All India Services (Conditions of Service-Residuary Matters) Rules, 1960 [hereinafter referred to as "the 1960 Rules"] as also Fundamental Rules, 1922. In the election petition, the appellant had alleged that the action of the Returning Officer in rejecting his nomination papers was not justified as the appointing authority has the power under the 1960 Rules to relax the condition and to waive the notice period of three months in the case of an employee who seeks voluntary retirement. He further stated that since his nomination papers were rejected, there was no contest and results were declared on 18.3.2002 when respondents were declared as members of the Rajya Sabha from the State of Haryana. In the light of the above allegations, the appellan