Judgment

S. R. DAS J. : The question here is whether an election to a State Legislative Assembly is invalidated when the member s nomination was either proposed or seconded, or both, by a Government servant or servants.

2. The appellant was a Minister in the State of Orissa. He was nominated as a candidate for the Orissa Legislature Assembly and was later declared to have been elected. One of his rivals was the 1st respondent who filed an election petition challenging the election on a number of grounds, among them, the following.

3. The appellant had filed about two dozen nomination papers. In five of them the proposer was a Government servant and in four the seconder. The 1st respondent stated that this was the first step in a scheme to get the assistance of Government officers in furtherance of the appellant s election and to "use and utilise" them "for the purposes of the election." There were also other allegations which we need not consider here.

4. The appellant made counter allegations against the 1st respondent, whom he had defeated, but they do not concern us either.

5. The Election Tribunal framed twelve issues and examined 101 witnesses, but when it came to make its order it proceeded to decide only two issues instead of deciding the whole case. It held that as the proposers and seconders referred to above were admittedly Government servants, that constituted a major corrupt practice and so invalidated the election under section 123(8) of the Representation of the People act, 1951 (No. XLIII of 1951). The other of two decided issues does not concern this appeal.

6. The appellant thereupon petitioned the High Court for a writ of certiorari under Article 226 of the Constitution. The High Court refused to interfere. The learned Judges held that there was no want of jurisdiction in the Tribunal and that the Tribunal s view of the law was a possible and reasonable one, accordingly, as the High Court was not a Court of appeal from the Tribunal, they were not called upon to decide the question as a Court of appeal.

7. The appellant was granted special leave to appeal by this Court against the order of Election Tribunal. A question of great public importance affecting Government servants is involved and we deem it right to examine the question under our special jurisdiction under Article 136.

8. The only sections we are called upon the consider are sections 33 (2) and 123 (8). The former provides that -

"Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950 (XLIII of 1950) may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filed......"

According to the latter -

"The obtaining or procuring or abetting ......... by a candidate or his agent or, by any order person with the connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate s election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person"

shall be deemed to be a major corrupt practice for the purposes of the Act. A corrupt practice of this kind entails disqualification for membership (section 140).

9. Section 33(2) is general and confers the privilege of proposing or seconding a candidate for election on every person who is registered in the electoral roll provided he is not disqualified under section 16 of the Act of 1950. That section excludes three classes of persons but not Government servants unless of course they happen to fall within those classes. Therefore, so far as section 33 (2) is concerned, a Government servant is entitled to nominate or second a candidate for election unless he happens to fall in one of the three excluded categories. The question is whether section 123 (8) takes away from Government servants that which section 33 (2) given to them. We do not t