vil Appeal Nos977  978 of 1988
From the Judgment and Order dated 17121987 Tribunal Bangalore of the Karnataka Administrative in Application No 4743 of 1986T
PP Rao RB Datar SR Bhat P Chowdhary PR Ramasesh and RP Wadhwani for the appearing parties
The Judgment of the Court was delivered by RANGANATH MISRA J
These are appeals by special leave the first one by Nagaraja the main contestant and the second by the State of Karnataka challenging the decision of the Karnataka State Administrative Tribunal by which the Tribunal accepted the claim of inter se seniority of re spondent No 1
In the Directorate of Youth Services of the State there are posts of Assistant and Deputy Directors
Appellant Nagaraja joined service under the State Government as a Lecturer on 691966 and came on deputation as Editor of Youth Karnataka  from 18th of August 1976
While working as such Editor he was confirmed as an Assistant Director in the Youth Directorate
On 27th of March 1978 Nagaraja was temporarily promoted as the Deputy Director for a period of six months
On 20th of October 1978 an order was made promoting 697 Nagaraja regularly as Deputy Director and on 22121978 his appointment was made on regular basis with effect from 273
Gudodagi respondent No 1 was recruited directly as Deputy Director on 2871978
He joined on 781978 and was confirmed in the said post on 781980
The draft Gradation List was published on 2511983 wherein Nagaraja was shown just above Gudodagi
Accordingly he represented against this placement by claiming seniority over Nagaraja and when that was not accepted and the final Gradation List was published on 14th of December 1983 maintaining the position shown in the draft list Gudodagi filed a writ petition before the Karnataka High Court which on the constitution of the State Administrative Tribunal was transferred to it
The Tribunal on heating parties has held that Gudodagi was senior to Nagaraja as the promotion of 27th of March
1978 in favour of Nagaraja was a temporary measure and after the six months expired Nagaraja was really not con tinuing as Deputy Director
The order of December 1978 could not provide a regular retrospective promotion in view of the special Rules obtaining in the State
Accordingly the Tribunal directed re drawing up of the seniority list by showing Nagaraja below Gudodagi
Thereupon these two ap peals have been filed one by Nagaraja and the other by State of Karnataka
The promotional order of 27th March 1978 read thus Pending consultation with the Karnataka Public Service Commission Shri N Nagaraja Assistant Director Youth Services is temporarily promoted to officiate as Deputy Director Youth Services in the grade Rs900 1750 in the Department of Youth Services for a period of six months with immediate effect from the date of taking over charge of the post or until further orders whichever is earlier The Tribunal has found that Nagaraja had taken over charge as Deputy Director on 13th of April 1978 and the six month period had expired on 13th of October 1978
His regular promotion was notified on 20th of October 1978
Therefore the Tribunal has not accepted Nagaraja as Deputy Director between 13th of October and 20th of October
To meet that situation the notification of 22nd December 1978
had been made which read thus In continuation of Government Notification   dated 698 2731978 Sri N Nagaraja Assistant Director of Youth Services is regularly promoted to officiate as Deputy Direc tor of Youth Services with effect from 27th March 1978 ie date from which he was promoted to officiate against the post   The Tribunal has found that under Karnataka State Civil Services Regulation of Promotion Pay  Pension Act 1973 no retrospective promotion is admissible unless the situa tion comes within the various clauses of rule 2
The in stant case according to the Tribunal was not covered by rule 2 and therefore the order of 22nd of December 1978 giving a retrospective promotion from 2731978 was not justified
Once that notification goes Gudodagi being a direct recruit from 781978 would be entitled to seniority
We have analytically examined the judgment of the Tribu nal with reference to the submissions made at the Bar
We have also seen the provisions of the 1973 Act referred to above and see no justification to take a view different from what has been taken by the Tribunal
From the sequence of events with reference to the dates an impression is avail able to be formed that attempt was made to place Nagaraja above Gudodagi by making shifting orders between 2731978 and 22121978
Nagaraja was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director
Taking the broad aspects of the matter into consideration we are satisfied that the conclusion reached by the Tribunal can not be said to be wrong and therefore does not call for any interference
The appeals are dismissed
There would be no order as to costs
NVK Appeals dis missed


Summary:
Election to the Legislative Assembly of the State of Madhya Pradesh was held in February 1985
For Constituency No 14 Lahar Distt
Bhind nomination papers were filed before 6th February 1985 and scrutiny done on February 7 1985
During the scrutiny the nomination paper of Ramprakash who was one of the candidates was rejected by the Returning Officer
The order rejecting the paper reads as under Candidate is not identified as per electoral roll
His rep resentative has accepted this mistake also
Hence rejected
Advised for correction but did not correct
The candidate did not correct after advising to correct mistake
Even did not appear at the time of Scrutiny to correct mistake
Hence rejected
See Section 334 RPA Result of the election was declared on  5th March 1985 and the appellant declared elected
The election of the appellant was challenged by the Respondent who was one of the voters of the constituency through an election petition on several grounds the main ground being the wrongful rejection of the nomination paper of Ramprakash
On the pleadings of the parties the High Court framed issue No 1 which reads as under i Whether rejection of the nomination paper of Rampra kash by the Returning Officer was illegal as alleged The High Court on an analysis of the evidence came to the conclusion that the entire story advanced by the elec tion petitioner and his witnesses was a fabrication and deserved to be rejected outright
How 504 ever after recording this finding the learned single judge of the High Court went on to hold that the candidate s absence was immaterial and the Returning Officer could have himself found out the electoral number of the candidate Ramprakash readily with a little effort without the assist ance of any of the persons mentioned in Section 361 of the Act and that the defect in the nomination paper cannot be held to be of a substantial character
Issue No 1 was thus decided in favour of the election petitioner as a result of which the election petition was allowed and the election of the appellant declared void
Hence this appeal by the elect ed candidate
Allowing the appeal and setting aside the judgment of the High Court this Court HELD There is no statutory duty cast on the Returning Officer to himself look through the entire electoral roll of a particular part with a view to finding out the correct identity of a candidate at the time of the scrutiny even though neither the candidate himself nor any other represen tative on his behalf was present to cure the defect
516B D A perusal of the circumstances put forward by the wit nesses at the time of scrutiny and rejection of the nomina tion paper of Ramprakash shows that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Ramprakash
The order passed by the Returning Officer re jecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per elec toral roll
His representative had accepted the mistake also and was advised for correction but did not correct the same
The candidate did not correct after advising to correct the mistake
It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mis take
In the circumstances mentioned above we have no hesi tation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash
509A C 
It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature
It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature where the identity of the candidate can be ascertained by him on the material made available to him
He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect
Howev er in case neither the candidate nor his representative be present and without removing such defect in the 505 nomination paper the identity of the candidate cannot be ascertained then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the material placed before him and to remove such defect himself
509D F Lila Krishan vs Mani Ram Godara  Ors 1985 Suppl
SCRI 592 Dalip Kumar Gon
vs Durga Prasad Singh AIR 1974 SC 2343 Amolak Chand vs Raghuveer Singh  and Brij Mohan vs Sat Pal   referred to