JUDGMENT :

J.K. Mohanty, J. - Petitioner who was serving as the Headmaster of Kantor M. E. School, an aided educational institution, since 1972, in order to contest the Panchayat Samiti (Chairman) election!of Parajanga Panchayat Samiti, submitted his resignation on 2.1.1984 to the Managing Committee. The Managing Committee of the School held its meeting on 4. 1. 1984 and the petitioner was intimated about acceptance of the resignation by the Secretary of the school with effect from 5.1.1984 vide Annexure-1. Prior to this the petitioner had given notice to the Managing Committee that he no longer wanted to continue in service. He had to resign from service as u/s 45(1) (j) of the Orissa Panchayat Samiti Act (hereinafter called 'the Act') a person who is a teacher in any school recognised under the provisions of the Orissa Education Code shall not be eligible to stand for election. On 8. 2. 1984 the petitioner filed his nomination paper before opposite party No. 1, the S. D. O., who was the Election Officer. Opposite parties 2 to 11 also filed nomination papers. On 9. 2. 1984 opposite party No. 1 scrutinised the nomination paper of the petitioner and rejected the same vide his order in Annexute-2 which is quoted below for reference.

" The candidate is a Headmaster of Kantor M. E. School which is an aided school. He has resigned from his service which has been accepted by the Managing Commitee and the Managing Committee has relieved him. As per Rule 10-A of Orissa Education Act, the services of a teacher of an aided educational institution shall not be terminated without obtaining the prior approval in writing of the Circle Inspector of Schools having jurisdiction in the case of a teacher of a school. Sri Durgaprasad Sahu is a candidate for the post of Chairman of the Panchayat Samiti, Patjang and he could not produce the approval of his resignation by the Circle Inspector of Schools. The process has remained incomplete. As such his case is rejected."

On 10.2.1984 petitioner filed this writ petition before this Court challenging the validity of the order passed in Annexure-2 on the ground that Section 10-A of rhe Orissa Education Act has no application to this case and the approval of the Circle Inspector of Schools is not necessary as it is not a case of termination of service and the Managing Committee is competent to accept the resignation and this has been duly done. On 20. 2. 1984 this Court admitted rhe writ patition. The election was held as scheduled on 17. 2. I984 and opposite party No. 8, Rabinarayan Sahoo, was declared elected as Che Chairman of the Panchayat Samiti vide Annexure-3 dated 22.2.1984. Thereafter on 7.3.1984 petitioner fried election petition before the Election Commissioner (Subordinate Judge, Dhenkanal) and challenged the election. Subsequently he amended the writ petition and added a prayer to the writ petition to declare the election of opposite party No. 8 as Chairman void and to quash the notification in Annexure-3. On 5.9.1984 petitioner filed a petition before the Subordinate Judge, Dhenkanal, to withdraw his election petition. On 20. 9. 1984 the Subordinate Judge granted permission to the petitioner to withdraw the election petition subject to depositing a cost of Rs. 25/- and directed that the notice of withdrawal shall be published in the official gazette. The notice of withdrawal was published in the Orissa Gazette on 25.1.1985.

2. Opposite patty No. 8, who has been elected as the Chairman of the Panchayat Samiti, has filed counter. In his counter he has. Questioned the maintainability of this writ petition. According to him, the election can only be challenged by an election petitions Section 44-A of the Act provides that no election of a person as a member of a Samiti held under this Art shall be called in question except by an election petition presented in accordance with the provisions, of this Chapter, The petitioner having filed an election petition before the Election Commissioner (Subordin