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 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 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 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 resignat