D.A.MEHTA

1. Rule. Considering the urgency and the subject matter of the petition, with consent of the parties, the petition is taken up for final hearing and disposal today. The learned AGP appearing on behalf of the respondents authorities is directed to waive service.

2. The brief facts necessary for the present are that the petitioner filled up nomination form for the post of Sarpanch of the Gram Panchayat of village Bamroli, Taluka: Jetpur-Pavi, District Vadodara pursuant to notification dated 31.12.2007 relating to election of members and sarpanch of the aforesaid gram panchayat. It is an admitted position that the post in question, namely of the sarpanch, relates to Socially and Educationally Backward Class (woman), while the ward in question was Anusuchit AdiJati (woman). The election schedule provided for scrutiny of nomination forms to be undertaken on 7.1.2008 from 11.00am onwards till the point of time the scrunity was complete. The nomination form of the petitioner came to be rejected vide communication/order dated 7.1.2008 (Annexure-C), whereunder, the reason assigned for rejection is stated to be that the petitioner is shown to have surname 'Rathva' in the voters list while the certificate produced showing the caste of the petitioner is having surname 'Bariya'.

3. The learned advocate for the petitioner has challenged the aforesaid order of rejection of the nomination form on the ground that the nomination has been rejected due to malafide and arbitrariness on behalf of the respondent no. 2. That even if the objection which has been taken up by the Returning Officer is a valid objection, the said objection can at best be termed to be a technical objection which is rectifiable under Rule 12(3) and the Proviso thereunder of the Gujarat Panchayats Elections Rules, 1994 (the Elections Rules). According to the petitioner, there are other such instances denoting difference in the name as mentioned in caste certificate and the names as recorded in voters list, but only the petitioner has been singled out while permitting other candidates, who are similarly situated, to contest the election without rejecting their nomination on the same ground. The names of two such candidates have been mentioned in paragraph no. 3(B) of the petition. The allegation regarding malafide is based on the capacity of Returning Officer, by virtue of being Mamlatdar ( Civil Supplies Department ) and the husband and another person, of the two candidates, being closely known to the Returning Officer as the said gentleman runs a fair price shop in the village.

4. Upon notice having been issued the Returning Officer has tendered affidavit-in-reply wherein same ground regarding discrepancy in the name as recorded in the voters list and the surname as appearing in the caste certificate, has been reiterated. It is further stated that once the notification issued on 31.12.2007 under Rule 9(2) of the Elections Rules specifies that the post of sarpanch is to be filled up by a Baxipanch candidate the petitioner is not entitled to contest the election because the surname 'Rathva' denotes a scheduled tribe which cannot be considered as equivalent to Other Backward Class (O.B.C.) as specified. Further reason which has been advanced in the affidavit-in-reply, but does not find mention in the impugned order, is that the petitioner has contested as a Scheduled Tribe candidate on the basis of her surname 'Rathva' in 2003 and cannot now be permitted to rely upon the benefit of 'Bariya' surname for contesting the seat reserved for OBC candidates. The Court need not consider the aforesaid reason which has appeared for the first time in the affidavit-in-reply and is not forming the basis of the impugned order.

5. Learned AGP appearing on behalf of the respondents authorities has placed reliance on the rojkam stated to have been drawn up on 7.1.2008 by the Returning Officer to show compliance with the requirements of the Elections Rules. However, on plain r