Manoj Kumar Singh v. The State Of Bihar

Heard learned counsel for the petitioner, the State, the State Election Commission and the counsel appearing on behalf of respondent no. 7. The petitioner is aggrieved by order dated Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012

20.9.2011, passed by the State Election Commissioner, Bihar in Case No. 13 of 2011 disqualifying the petitioner under Section 136(2) of Bihar Panchayat Raj Act, 2006 from holding the post of Member, Zila Parishad on the ground that the petitioner’s resignation from the post of Nyay Mitra was a fabricated document and an afterthought produced after respondent no. 7 challenged his election. The State Election Commission while considering this aspect of the matter has held that the report of the District Magistrate, Buxar is not reliable and has further held that the petitioner ought to have annexed his resignation letter along with his nomination paper. The facts are that the petitioner was appointed as a Nyay Mitra. He resigned from the post on 20.2.2011. On his resignation letter, the Sarpanch has written “ ” and forwarded it to the Block Development Officer on 20.2.2011 itself. The Block Development Officer has further signed on the resignation letter and sent a copy to the Sub-divisional Officer as well as the Panchayat Raj Office.

The resignation letter has been annexed by respondent no. 7 in his affidavit which indicates that it bears the signature of the Sarpanch showing “ ” and the signature of the Block Development Officer. Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012 The argument on behalf of the State Election Commission and respondent no. 7 is that there are chain of circumstances which would show that the petitioner had fabricated this document and infact the acceptance of the Sarpanch was not sufficient for the purposes of accepting the resignation of the petitioner as Nyay Mitra. Relying on Annexure-7 which are the guidelines issued by the State Election Commission, the counsel for the respondent no. 7 submits that Clause 5 indicates that the returning officer should not reject the nomination paper of a candidate if he has annexed the resignation letter with his nomination paper. Similarly it is mentioned at Clause ( ) that the concerned authority cannot reject the resignation letter along with acceptance and doubt the validity of such resignation letter and acceptance.

The clauses aforesaid referred to by respondent no. 7 are meant for the concerned authority who accepts the nomination paper or scrutinizes the nomination paper before the election is held. It does not make it incumbent on the candidate or requires that the candidate should necessarily annex the resignation letter along with his nomination paper which would also be apparent from the nomination form. The nomination form which has been annexed with the counter affidavit of the Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012 State does not include a column, which would require the candidate to declare as to whether he is or was working as a government employee, at any time before filing of the nomination paper. Under these circumstances, this Court does not find that the reasoning of the State Election Commission is justified and the State Election Commission could not have rejected the plea of the petitioner on the ground that he had not annexed the resignation letter with his nomination paper.

The fact that the petitioner did not annex the resignation letter with the nomination paper and the fact that the vacancy created by the resignation of the petitioner, was filled up by way of a stop gap arrangement, goes to indicate that the production of the resignation paper is an afterthought. At this stage, it would be proper to refer to Annexure-4 which is an enquiry made by the District Magistrate-cum-District Election Officer, Buxar which was placed before the State Election Commission. The documents show that the petitioner had resigned which was accepted by the Sarpanch on 20.2.2011 i.e. the date on which the petitioner offered his resignation. On 21.2.2011 the Sarpanch forwarded the resignation letter to the Block Development Officer who has duly signed on the said resignation letter. The Block Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012 Development Officer has thereafter addressed a letter dated

22.6.2011 to the Block Development Officer regarding the resignation of Manoj Kumar Singh, the petitioner from the post of Nyay Mitra. All these documents indicate that the petitioner had resigned much before he had filed his nomination paper which was filed on 1.3.2011. There can be no reason why the State Election Commission should disbelieve the report and enquiry held by the District Magistrate, Buxar. It cannot be believed that the Sarpanch, the Block Development Officer and the District Magistrate would be in connivance with the petitioner and are out to help him to retain the post as Member, Zila Parishad. Therefore, the order of the State Election Commission rejecting the report of the District Magistrate, Buxar appears to be without any basis. Merely by saying that it does not appear to be correct cannot make the said report and the documents annexed false or fabricated. It has also been argued on behalf of respondent no. 7 that the Block Development Officer is the Nodal Officer and it was essential for the Block Development Officer to accept the resignation of the petitioner. Even if, it is presumed that the Block Development Officer is the Nodal Officer, this objection is put to naught by the fact that after the Sarpanch accepted the Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012 resignation, the Block Development Officer counter signed on the said letter which indicates that he too had accepted the resignation of the petitioner. Counsel for the petitioner on the other hand, refers Rule 7 of Bihar Gram Katchary Nyay Mitra Rules, 2007 which envisages that the Samiti consisting of the Sarpanch, other Panches and Secretary would conduct the business of the Panch. It provides that the Block Development Officer would be acting as a facilitator to help the Samiti to act in accordance with the provisions of the law. Thereby meaning that infact the Block Development Officer is not really a Nodal Officer. However, this controversy is not very relevant in view of the fact that the Block Development Officer has accepted the resignation of the petitioner by counter signing on his letter. Lastly it has been argued by the counsel for the State Election Commission that Rule 38 of the Bihar Panchayat Election Rules, 2006 envisages that the candidates must file their resignation letters. Rule 38 reads as follows:

Filling of nomination paper by Candidates.-(1) Any person may file a nomination paper as a candidate to fill up any seat provided he is qualified to be elected for that seat under the provisions of the Ordinance and not disqualified under Section 136 of the Act]1. Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012 (2) Each nomination paper under sub-rule (1) shall be filed in Form-6. This provision does not help the State Election Commission in holding that the petitioner was not duly qualified. The qualification will be examined as per rule by the Returning Officer or can be called in question under Section 136(2) of the Bihar Panchayat Act. It is a question which has to be examined in the facts of each given case. Form-6 has already been discussed earlier in the order which does not indicate that a candidate is required to mention whether he has resigned from any government post. Lastly the State Election Commission has relied upon a unreported decision of this Court in CWJC No. 6087 of 2011, dated 8.4.2011. The question in the said case is whether an application for resignation would amount to acceptance of the resignation. The decision aforesaid could not apply in the facts of this case as in the present case the resignation has already been accepted by the concerned authority. For the reason mentioned in this order, I find that the order dated 20.9.2011 is not based on cogent and legal grounds. I, therefore, quash the order of the State Election Commission as also the part of the order whee it has been held Patna High Court CWJC No.18229 of 2011 (3) dt.02-01-2012 that post stands vacated by virtue of the order dated 20.9.2011. It goes without saying that the consequential order passed on