JUDGMENT

VENKATARAMIAH, J.:—At the conclusion of the hearing of the above appeals on November 16, 1983, we pronounced the following order:

"Heard counsel for the parties. The appeals are allowed and the order of the High Court is set aside without any order as to costs."

2. We now give our reasons.

3. Two questions arise for consideration in these three appeals which are filed against the judgment and order dated July 10, 1981 of the High Court of Allahabad in Election Petition No. 7 of 1980. They are:

1. Whether the Secretary of a State Legislative Assembly is not qualified to be appointed as the Returning Officer at an election held to fill a seat in the Rajya Sabha?

2. Whether a person elected as a member of a Legislative Assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha?

4. In February, 1980 the Legislative Assembly of the State of Uttar Pradesh was dissolved by the President by issuing a notification under Article 356 of the Constitution. A notification was issued by the Governor of Uttar Pradesh under Section 15 (2) of the Representation of the People Act 1951 (hereinafter referred to as the Act) in April, 1980 calling upon all the Assembly constituencies in Uttar Pradesh to elect members to the Legislative Assembly. After the results of the elections in all the constituencies held pursuant to the said notification were declared, the Election Commission of India issued a notification containing the names of the members elected for the said constituencies as required by Section 73 of the Act on June 9, 1980. The elected members were notified that they could take the oath as required by Article 188 of the Constitution at the Session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days. In the meanwhile on June 17, 1980, the Election Commission issued a notification calling upon the elected members of the Uttar Pradesh Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha. By that notification, the Election Commission fixed the following programme for the purpose of the said election:

(a) 24-6-1980 - as the last date for making nomination.

(b) 25-6-1980 - as the date for scrutiny of the nomination papers.

(c) 27-6-1980 - as the last date for withdrawal of candidature.

(d) 4-7-1980 - as the date on which a poll, if necessary, would be taken.

(e) 7-7-1980 - as the date before which the election had to be completed.

5. Shri S. P. Singh, Secretary of the Uttar Pradesh Legislative Assembly was appointed as the Returning Officer and Shri Uma Shankar, Joint Secretary as the Assistant Returning Officer for conducting the aforesaid election.

6. Pashupati Nath Sukul, the appellant in Civil Appeal No. 1775 of 1981 (hereinafter referred to as the appellant) and Nem Chandra Jain, respondent No. 1 were nominated as the candidates at that election. At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds- (i) that the appellant was disqualified as he was a Government servant and (2) that the proposer of the candidature of the appellant was not qualified to propose his candidature as he had not yet taken the oath as required by Article 188 of the Constitution. The appellant pleaded that as he had retired voluntarily from the Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer of his candidature was an elected member of the Legislative Assembly who was competent to make the proposal even though he had not taken the oath as provided in Article 188 of the Constitution. The objections of respondent No. 1 were overruled and the nomination papers of both the appellant and respondent No. 1 were accepted by the Returning Officer. At the poll which took place on July 4, 1980, th