The Election Commission has the power to change the official candidate of a political party even after the withdrawal of candidature, and its decision cannot be challenged by way of an election petition.

P.D. Kudal, J.-This election petition has been filed by an elector against the returned candidate Shri Gui Mohammad respondent No. 1. The petitioner claims himself to be an elector of the Rajasthan Legislative Assembly Constituency No. 42 (John Bazar, Jaipur) and, thus, claims himself to be entitled to file the petition. The election to the John Bazar Rajasthan Legislative Assembly Constituency No. 42, Jaipur was held on 13th June, 1977, and the result was declared on 14th June, 1977.

2. TheJanata Party applied for the symbol of’ Haldhar within wheel’ as the official symbol of the Janata Party. This symbol was allotted by the Election Commission to the Janata Party. The nomination could be filed within 11/5/1977 to 18/5/1977. The withdrawals could be made up to 3 p.m. on 21-5-1977. Originally, the Janata Party decided to adopt Gul Mohammad, respondent No. 1, as its official candidate from the Johari Bazar Constituency No. 42. A communication was sent to the Election Commission on behalf of the Janata Party to that, effect. Later on, the Janata Party decided to field respondent No. 5, Shni Mohammad Sayeed Khan as an official candidate of the Janata Party. The decision of the Janata Party to adopt Shni Mohammad Sayeed Khan was communicated to the Election Commission by the General Secretary of the Janata Party. The Election Commission and in turn the Chief Electoral Officer Rajasthan issued and allotted the official symbol ‘Haldhar within wheel’ of the Janata Party to Shni Mohammad Sayeed Khan. The specimen of the symbol and identity card bearing candidature of the Janata Party was also given to Shni Mohammad Sayeed Khan, the list published under Section 37 of the Representation of the People Act, 1951, showing therein Mohammad Sayeed Khan as the official candidate of the Janata Party, has been produced and has been marked as Annexure 1.

3. The General Secretary of the Janata Party, however, on 22-5-1977, again requested the Election Commission to allot the official symbol of the Janata Party to the respondent No. 1 Shri Gul Mohammad. The Chief Electoral Office, Rajasthan acting on the directions of the Election Commission allotted the official symbol of the Janata Party, i.e. ‘Haldhar within wheel’ to Shri Gul Mohammed, The elections were held and Shri Gul Mohammad contested as the official candidate of the Janata Party on the authorised symbol ‘Haldhar within wheel’ of the Janata Party. Shri Gul Mohammad was returned elected to the Rajasthan Legislative Assembly. The main grievance of the petitioner is that in the year 1977, there was a great wave in favour of the Janata Party and whosoever was allotted the official ticket of the Janata Party won the elections. The contention of the petitioner is that the individuality of the candidate was of little consequence and votes were cast in favour of the individual who was officially adopted by the Janata Party. The petitioner has raised an important question of law --whether the Election Commission could change an official candidate of a political party after the time limit fixed for withdrawal of the candidature had elapsed. In substance, the contention of the

petitioner is that once the time-limit for withdrawal of candidature is over, the Election Commission is left with no discretion or jurisdiction to alter or change the official candidate or to allot them the official symbol reserved for recognised national political parties.

4. On the contrary, it has been contended by the respondents that the Election Commission has ample powers to entertain an application for changing the official candidate even after the period of withdrawal of the candidature is over. The contention is that para 13 of the Election Symbols (Reservation & Allotment) Order, 1968, postulates a limit on the rights of a political party to choose its official candidate for allotment of a symbol reserved for it. The provisions of this para, it was contended, are primarily meant at facilitating the work o