Surinder Sarup, J.— The present Election Petition has been filed by Shri Dile Ram challenging the election of the respondent Shri Tek Chand from 61-Nachan (S.C. Assembly Constitutency in Himachal Pradesh, elections for which were held as per the following programme : (i) Filing of nomination papers. 28.1.1998 to 4.2.1998 (ii) Scrutiny of nomination papers. 5.2.1998 (iii) Withdrawal of nomination papers. 7.2.1998 as last date for the withdrawal of the candidature (iv) Allotment of symbols 7.2.1998 after 3.00 p.m. (v) Date of polling, if necessary. 28.2.1998 (vi) Counting of votes. 2.3.1998

2. It is pleaded in the Election Petition that various nomination papers were filed by the candidates including the petitioner and the respondent. The petitioner was set-up as a candidate by the Bhartiya Janta Party (B.J.P.) and the respondent was sponsored by the Indian National Congress (I.N.C.). After scrutiny and withdrawal of nomination papers, five candidates were left in the field for the said constituency. Polling as scheduled took place on 28th February, 1998. After the counting of votes had been completed the result of the election was declared by the Returning Officer on 2nd March, 1998, and the five contestants in the fray secured their respective votes as follows:

Sr. No. Name of candidate Party affiliation Number of votes polled 1. Sh. Tek Chand Indian National Congress 14,390 2. Sh. Dile Ram Bhartiya Janta Party 13,631 3. Sh. Sohan Lal Janta Dal 328 4. Sh. Damodar Himachal Vikas Congress 9,182 5. Sh. Nikka Ram Independent 2,287 The respondent having secured the highest number of valid votes i.e. 14,390, as against 13,631 valid votes secured by the petitioner, was declared duly elected from the said constituency.

3. The petitioner has laid challenge to the election of the respondent and has sought a declaration to the effect that the same is void and should be set aside inasmuch as one of the five candidates who contested the said election i.e. Shri Nikka Ram was disqualified from contesting the election. As such, his nomination paper was improperly and wrongly accepted by the Returning Officer of the said election, which in turn has materially affected the result of the election insofar as it concerns the returned candidate i.e. the respondent.

4. As per the case set-up in the election petition said Nikka Ram was holding office of profit under Government of Himachal Pradesh on the day of filing of his nomination paper as well as on the day of scrutiny thereof. The precise plea is that the Returning Officer ought to have rejected the nomination paper of said Shri Nikka Ram as required under Section 36(2)(a) of the Representation of the People Act, 1951, hereinafter called "the Act". It has been stated that the said Shri Nikka Ram was working as a Junior Engineer in Irrigation and Public Health Department of Himachal Pradesh on the relevant dates, referred to above. He was posted in that capacity in the office of the Superintending Engineer Irrigation and Public Health, Rampur Circle, Rampur, District Shimla. In other words, on the date of filing of the nomination paper as well as on the date of scrutiny, he was holding office of profit under the Himachal Pradesh Government and, as such, was disqualified from contesting the election in view of the bar created under Article 191 (l)(a) of the Constitution of India.

5. For facility of reference the above said two provisions are reproduced here-below: Article 191 (l)(a) of the Constitution of India "191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State— (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder." 36 (2)(a) of the Representation of the People Act, 1951 "36. Scrutiny of n