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IN THE HIGH COURT OF RAJASTHAN
Arun Bhansali, J.
Pankaj Choudhary - Appellant
Versus
Kailash Choudhary - Respondent
Election Petition No. 6 of 2019
Decided on : 27-04-2021
Sections 80, 80A, 81 and 100(1)(c) - Representation of the People Act, 1951 - The court discussed the provisions of Sections 9, 33(3), and 36 of the Act, which require a candidate to produce a certificate from the Election Commission to contest elections if they have been dismissed from government service for corruption or disloyalty. The court emphasized that the Returning Officer must reject the nomination if the mandatory certificate is not provided, regardless of subsequent events. The judgment highlights the importance of compliance with the Act's provisions and the Returning Officer's obligation to make decisions based on the facts as they exist on the date of scrutiny.
Fact of the Case:
The petitioner, an erstwhile IPS Officer, filed an election petition questioning the election of respondent No.1 from the Barmer Parliamentary Constituency, alleging improper rejection of his nomination due to the absence of a mandatory certificate under Section 33(3) of the Act.
Finding of the Court:
The court found that the nomination of the petitioner was rightly rejected by the Returning Officer due to the absence of the mandatory certificate as required by the Act. The subsequent issuance of the certificate by the Election Commission did not nullify the rejection of the nomination, as the decision must be based on the facts as they existed on the date of scrutiny.
Issues: The issues framed by the court were whether the nomination of the petitioner was improperly rejected and whether the election petition was liable to be rejected due to non-compliance with the provisions of Section 33(3) of the Act.
Ratio Decidendi: The court emphasized that the Returning Officer must make decisions based on the facts as they exist on the date of scrutiny, and the subsequent issuance of the certificate did not affect the rejection of the nomination. The judgment highlights the importance of compliance with the Act's provisions and the Returning Officer's obligation to reject nominations if the mandatory certificate is not provided.
Final Decision: The election petition was dismissed with costs, as the court found no substance in the petitioner's claims.
JUDGMENT
Arun Bhansali, J. - This election petition under Sections 80, 80A, 81 and 100(1) (c) of the Representation of the People Act, 1951 ('the Act') has been filed by the petitioner calling in question the election of respondent No.1 from the Barmer Parliamentary Constituency of Rajasthan.
2. It is, inter alia, indicated in the petition that the Election Commission of India ('ECI') notified the following schedule for holding election to various Parliamentary Constituencies including Barmer Parliamentary Constituency as under:-
" Sr.No. Particulars Date 1. Date of issuing the gazette notification 02.04.2019 2. Last date for filing nomination 09.04.2019 3. Date for scrutiny of nomination 10.04.2019 4. Last date for withdrawal of nomination 12.04.2019 5. Date of polling 29.04.2019 6. Date of counting/declaration of results. 23.05.2019 "
3. It is indicated that the petitioner is an erstwhile IPS Officer appointed by the Govt. of India in Rajasthan Cadre. He was dismissed from service vide order dated 19.02.2019 passed by the Govt. of India, Ministry of Home Affairs for violating the Conduct Rules, 1968. It is claimed that as the petitioner was a proposed candidate for the Barmer Parliamentary Constituency for Parliamentary Elections to be held between April-May, 2019, he contacted the Secretary, ECI through Fax, E-mail, WhatsApp and personally handed over a letter to the ECI on 01.04.2019 requesting issuance of certificate under Sections 9(2) and 33(3) of the Act, which was necessary for the petitioner to contest the elections.
4. The notification for Parliamentary Elections was issued on 02.04.2019 and as per the schedule, last date for filing nomination for Barmer Parliamentary Constituency was 09.04.2019, the scrutiny was held on 10.04.2019 and the last date of withdrawal of nomination was 12.04.2019. The petitioner filed his nomination papers for Barmer Parliamentary Constituency on 08.04.2019.
5. It is indicated in the petition that the nomination papers were not accompanied by certificate envisaged under Section 33(3) of the Act.
6. It is alleged that the ECI, despite the letter dated 01.04.2019, did not issue certificate to the petitioner, however the Under Secretary of ECI issued a letter dated 04.04.2019 to the Chief Electoral Officer, Rajasthan, Jaipur regarding miscellaneous complaints and required it to take appropriate action, in consonance, the Chief Electoral Officer, Rajasthan, Jaipur addressed a letter dated 06.04.2019 to the Secretary, ECI indicating that the certificate was required to be issued by the ECI, New Delhi.
7. It is then indicated in the petition that scrutiny of the nomination papers was held on 10.04.2019, the petitioner made a request to ECI on 10.04.2019 at around 1.03 PM seeking issuance of requisite certificate under Section 33(3) of the Act, however, the same was not responded to. As a result, the nomination form of the petitioner was rejected by the Returning Officer as per Section 36(2)(b) of the Act in absence of requisite certificate.
8. It is then indicated that the petitioner wrote a letter/representation to the ECI on 11.04.2019 indicating his interest to contest the election from Bikaner Parliamentary Constituency and again requiring it to issue certificate by 5 PM on the same date, however, as the requisite certificate was not issued, S.B. Civil Writ Petition No. 5356/2019 was filed seeking direction for issuance of certificate, wherein on 12.04.2019, a order was passed directing the ECI to pass a speaking order on or before 16.04.2019. Pursuant to the said direction, the ECI issued certificate under Section 9(2) and 33(3) of the Act indicating that the charge against the petitioner does not involve 'corruption or 'disloyalty to State'.
9. The petitioner on receiving the certificate applied to the Chief Electoral Officer, ECI, New Delhi praying that he must be allowed to contest election from Barmer Parliamentary Constituency, however, the same was not permitted.
10. Based on the above averme
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