Civil Appeal No 1177 NCE of 1986
From the Judgment and order dated 1711986 of the Allahabad High Court Election Tribunal in Election Petition No 54 of 1985
RK Garg and Ravi Parkash Gupta for the Appellant
Qamarrudin and Mrs Qamarrudin for the Respondents
The Judgment of the Court was delivered by 633 VENKATARAMIAH J
This appeal is filed under section 116A of the Representation of the People Act 195 l hereinafter referred A to as the Act  by the appellant against the Judgment dated January 17 1986 of the High Court of Allahabad in Election Petition No 34 of 1985 dismissing the Election Petition
The election to the Uttar Pradesh State Legislative Assembly from Constituenc No 41 Gunnaur Village Mirzapur District Baduan took place in early March 1985
16 candidates contested at the said election
Respondent No I Smt
Pushpa Devi was declared elected having secured 23006 votes
The next highest number of votes was secured by Shri Naurangi Singh
He secured 20735 votes
The difference between the votes secured by Respondent No l and the votes secured by Respondent No 2 was in the order of 227 l votes
Respondent No 8 who was working as a teacher in the Babu Ram Singh Intermediate College Baburala Baduan was also one of the candidates in the election
He secured 3606 votes which were more than the difference between the votes secured by Respondent No and by Respondent No 2
The appellant who was an elector at the said election filed the Election Petition out of which this appeal arises contending that Respondent No 8 who was working as a teacher in the Babu Ram Singh Intermediate College Baburala Baduan was holding an office of profit under the State Government and therefore the acceptance of his nomination by the Returning officer was illegal
Since Respondent No 8 secured 3606 votes which were higher than the difference between the votes secured by Respondent No I and the votes secured by Respondent No 2 the election of Respondent No I should be considered as having been materially affected by the wrongful acceptance of the nomination paper of Respondent No 8 and the election of Respondent No 1 was liable to be set aside
The Election Petition was contested by Respondent No 1
It was pleaded by Respondent No 1 that the acceptance of the nomination paper of Respondent No 8 was not illegal since Respondent No 8 was not holding an office of profit under the State Government and secondly even if the acceptance of the nomination paper of Respondent No 8 was illegal the election could not be set aside since the result of the election was not materially affected thereby
The High Court held that the acceptance of the nomination paper of Respondent No 8 was not illegal as Respondent No 8 was not holding an office of profit under the State Government and it further held that even if the acceptance of the nomination paper of Respondent No 8 was illegal the appellant had not established that the result of the election of Respondent No I had been materially affected on the facts and in the H 634 circumstances of the case
The High Court accordingly dismissed the petition
Aggrieved by the judgment of the High Court the appellant has filed this appeal
Since it is possible to dispose of this appeal on the second ground we do not propose to express any opinion in this case on the question whether Respondent No 8 was in fact holding an office of profit under the State Government or not on the date on which the nomination paper was filed or on the date of the election
We leave the said question open
In order to decide the second question it is necessary to set out the relevant part of section 100 of the Act which reads thus 100
Grounds for declaring election to be void 1 Subject to the provisions of sub section 2 if the High Court is of opinion          c that any nomination has been improperly rejected or d that the result of the election in so far as it concerns a returned candidate has been materially affected i by the improper acceptance of any nomination or   Section 100 of the Act makes a distinction between the effect of improper rejection of any nomination and the effect of the improper acceptance of any nomination on the election
If a nomination of any person at an election has been improperly rejected the election of the returned candidate is liable to be set aside without any further proof because it is difficult to visualise the number of votes which the person whose nomination has been rejected would have secured at the election and there is every likelihood of the returned candidate not securing the highest number of votes
It is for this reason clause c of section 1001 of the Act states that if the High Court is of the opinion that any nomination has been improperly rejected it shall declare the election of the returned candidate to be void
Sub clause i of clause d of sub section 1 of section 100 of the Act is however worded differently
It says that if the High Court is of opinion that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of any nomination it 635 shall declare the election of the returned candidate as void
Sub clause i of clause d of section 100 I of the Act requires a petitioner in an election petition to establish two grounds in order to get the election of the returned candidate set aside namely i that there has been improper acceptance of any nomination and ii that by reason of the entry of the candidate whose nomination has been improperly accepted into the contest the result of the election insofar as the returned candidate is concerned has been materially affected
The reason for making a distinction between a case falling under clause c of section 1001 of the Act and a case falling under sub clause i of clause d of section 100 I of the Act can be explained with reference to a hypothetical case
Let us assume that the returned candidate has secured at an election 30000 votes and 20000 votes have been secured by a candidate who has secured the next highest number of votes
We shall assume that a third candidate whose nomination paper had been improperly accepted has secured just 1000 votes
In this case even if it is held while deciding an election petition that the nomination of the third candidate has been improperly accepted there is no justification to set aside the election of the successful candidate because even if all the votes secured by the third candidate are added to the candidate who has secured the next highest number of votes he would be a person who has secured 21000 votes and the successful candidate would still be a person who has secured the highest number of votes at the election
In this hypothetical case it has to be held that the result of the election has not been materially affected at all
Such election petition has necessarily to be rejected
This Court was called upon to decide a case similar to the present one in Vashist Narain Sharma vs Dev Chandra and others
 In that case the returned candidate Vashist Narain Sharma had secured 12868 votes and Vireshwar Nath Rai secured the next highest number of votes ie10996
The difference in the number of votes secured by these two candidates was 1872
Another candidate by name Dudh Nath at the election whose validity was in issue in that case had secured 1983 votes
There were also two other candidates in the field
One of the grounds in the election petition out of which the above case arose was that the election of the returned candidate was liable to be set aside since the nomination paper of Dudh Nath had been improperly accepted by the Election Commissioner
The Court in that case held that the burden of proving that the result of the election had been materially affected on account of the improper acceptance of a nomination was on the petitioner and that even if there was wrongful acceptance of the nomination having regard to the number of votes secured by the several candidates it was not possible to hold that the 636 result of the election had been materially affected
In Samant N Balakrishna etc
vs George Fernandez and Ors etc
  section 100 ldi of the Act again arose for consideration
In that case this Court commented at pages 643 644 on the decision in Vashist Narain Sharma s case supra thus Mr Chari relies upon the rulings of this Court where it has been laid down how the burden of proving the effect on the election must be discharged
He referred to the case reported in Vashist Narain Sharma vs Dev Chandra and Surendra Nath Khosla vs Dilip Singh and the later rulings of this Court in which Vashist Narain s case has been fol
lowed and applied
In our opinion the matter cannot be considered on possibility
Vashist Narain s case insists on proof
If the margin of votes were small something might be made of the points mentioned by Mr Jethmalani
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge
There is no room there fore for a reasonably judicial guess
The law requires proof
How far that proof should go or what it should contain is not provided by the Legislature
In Vashist s case and in Inayatullah vs Diwanchand Mahajan the provision was held to prescribe an impossible burden
The law has however remained as before
we are bound by the rulings of this Court and must say that the burden has not been successfully discharged
We cannot overlook the rulings of this Court and follow the English rulings cited to us
 The very same question was considered by this Court in Chhedi Ram vs Jhilmit Ram and others by a bench of which one of us Venkataramiah J was a member
The judgment in that case was delivered by Chinnappa Reddy J
In that case the returned candidate Jhilmit Ram had secured 17 822 votes and Chhedi Ram the runner up had secured 17449 votes
Thus the difference between the successful candidate and the candidate who secured next highest votes was 373 votes
There were four other candidates of whom Moti Ram secured 6710 votes
Chhedi Ram challenged the election of Jhilmit Ram on the ground that Moti Ram was a Kahar by caste not entitled to seek election from the reserved constituency ie his nomination had been improperly accepted and the result of election was materially affected
The High Court found that Moti Ram was a Kahar by caste 637 and not a member of the scheduled Castes
Having arrived at the conclusion that Moti Ram s nomination had been accepted improperly the High Court was not prepared to set aside the election of Jhilmit Ram as it took the view that the result of the election had not been shown to have been affected in view of the improper acceptance of the nomination of Moti Ram
The election petition in that case was therefore dismissed
Chhedi Ram then preferred an appeal to this Court against the judgment of the High Court
This Court allowed the appeal
In the course of the judgment Chinnappa Reddy J Observed thus 2
We are afraid the appeal has to be allowed
Under section l001d of the Representation of the People Act 195 1 the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of any nomination
True the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election
The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself
On the other hand the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the candidate who got the next highest number of votes
In both these situations the answers are obvious
The complication arises only in cases where the candidate whose nomination was improperly accepted has secured a large number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes
The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate so as to upset the result of the election but whether a sufficient number of voters would have so done would ordinarily remain a speculative possibility only
In this situation the answer to the question whether the result of the 638 election could be said to have been materially affected must depend on the facts circumstances and reasonable probabilities of the case particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes the votes secured by the candidate whose nomination was improperly accepted bears to the number of votes secured by the successful candidate
If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes it would be next to impossible to conclude that the result of the election has been materially affected
But on the other hand if the number of votes secured by the candidate whose nomination was improperly accepted is disproportinately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved
Under the Indian Evidence Act a fact is said to he proved when after considering the matters before it the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists
If having regard to the facts and circumstances of a case the reasonable probability is all one way a court must not lay down an impossible standard of proof and hold a fact is not proved
In the present case the candidate whose nomination was improperly accepted had obtained 67 10 votes that is almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes
Not merely that
Th number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number 639 Of votes secured by the successful candidate it was a little over one third
Surely in that situation the result of the election may safely be said to have been affected
 In the case before us Respondent No I had secured 23006 votes and Respondent No 2 had secured 20735 votes
The margin thus was of 22371 votes
Respondent No 8 the validity of whose nomination was questioned had secured 3606 votes
It is no doubt true that if we assume that all the 3606 votes secured by Respondent No 8 would have gone to Respondent No 2 Respondent No 2 would have been the successful candidate
at the election
Having regard to the facts of this case we feel that it is not possible to hold that the appellant in this appeal has established that the result of the election of the returned candidate had been materially affected because the difference between the votes secured by Respondent No 1 and the votes secured by Respondent No 2 was 2272 votes
Respondent No 8 had secured only about 1 7th of the number of votes polled by the Respondent No l and there were 15 candidates excluding respondent No 8 contesting the election
It is not possible to reach a finding in this case by making a judicial guess that all the 3606 voters who had voted in favour of Respondent No 8 would have cast their votes in favour of Respondent No 2 alone
Even if about 1350 of them had cast their votes in favour of any of the other 14 candidates including the returned candidate Respondent No 2 could not have become the candidate who had secured the highest number of votes at the election
At this stage it is relevant to refer to the observation of Gulam Hasan J In Vashist Narain Sharma s case supra which run thus But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected
That is a matter which has to be proved and the onus of proving it lies upon the petitioner
It will not do merely to say that all or majority of the wasted votes might have gone to the next highest candidate
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates
While it must be recognised that the petitioner in such a case of confronted with a difficult situation it is not possible to relieve him of the duty imposed upon him H 640 by section 1001c and hold without evidence that the duty has been discharged
Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand
 In the case before us we are of the view that the High Court was right in observing that the appellant or any other party had not placed satisfactory evidence to reach the conclusion that all or a sufficient number of the wasted votes which had been cast in favour of Respondent No 8 would have gone in favour of Respondent No 2 had Respondent No 8 not been one of the candidates at the election
The High Court has on the evidence before it held that in the context particularly of the poll being heavy and the contestants being large in number 16 in all it remains unreasonable to guess that if the respondent No 8 were excluded from the arena of contest the wasted votes would have gone to the respondent No 2 thereby enabling him to succeed
The burden Iying upon the petitioner remains clearly undischarged and the speculative possibility does not attain the level of proof
 We agree with the above observation of the High Court since the appellant has not discharged the burden which clearly lay on him or proving that the result of the election had been materially affected even assuming that the nomination of Respondent No 8 had been improperly accepted
This appeal should therefore fail
We accordingly dismiss it
We however make no order as to costs
NPV Appeal dismissed


Summary:
 The appellants had joined the government service as clerks cum typists before the bifurcation in May 1960 of the State of Bombay into Maharashtra and Gujarat States
The Subordinate Secretariat Service then consisted of four grades i Clerk cum typist ii Junior Assistant iii Senior Assistant and iv Superintendent
On the formation of Gujarat State Government business in the secretariat was divided into nine separate Departments so far as the Subordinate service was concerned
Later by a government Resolution a common cadre of Superintendents for all the departments was created and promotion to the post of the Superintendent was directed to be made out of a common list of senior assistants and by another resolution the grades of the senior assistants and junior assistants were merged into one post termed as Assistant and a common seniority list of the Assistants was prepared
In October 1974 by another Resolution a common cadre of the clerks cum typists was created and promotion to the post of Assistant was provided therefrom
This October Resolution of the government was challenged before the High Court by two writ petitions
In the meantime the Gujarat Subordinate Secretariat Service Seniority of Assistants Rules 1977 were framed which were to come into operation with retrospective effect from May 1960
Rule 4 of the Rules laid down the principle for determining seniority by providing that seniority among promotees Assistants inter se shall be fixed on the basis of their length of service in the joint cadre of clerk cum typist for all Departments of the Secretariat as a whole
The High Court passed an order dismissing the two writ petitions
The order of the High Court is appealed against by Special Leave in this Court mainly on the ground that the retrospective operation of the Rules regarding seniority takes away the vested rights of the appellants of their prospects of promotions
Dismissing the appeal the Court 612  HELD A Common cadre was created for increasing efficiency A and in the interests of discipline
After the formation of the common cadre general feeling of dissatisfaction owing to disparity of seniority was generated
The 1977 rules were introduced to ease that situation
The scheme of the Rule regarding seniority protected the rank then held by every member of the service notwithstanding the alteration of seniority on the new basis
To that extent the 1977 rules were not retrospective
615B C There was no challenge to the creation of the common cadre
Secondly the rules of seniority are a matter for the employer to frame and even though the prospects of promotion were likely to be prejudiced by the introduction of some new set of rules to regulate seniority if the rules were made bona fide to meet the exigencies of the service no entertainable grievance could be made and the appellants have no grievance to make
615E FI Mervyn vs Collector of Customs Bombay and others 1966 3 SCR600 Roshan Lal Tandan vs Union of India 19681 SCR185 and State of Jammu  Kashmir vs Triloki Nath Khosa  others 1974 I SCR 771 relied upon