1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.7217 OF 2010 Namdeo Mainaji Shirsat ..PETITIONER -VERSUS- The State of Maharashtra and others. ..RESPONDENTS ......... Mr.S.S. Thombre, advocate for petitioner. Mr.S.T. Shelke, advocate for respondent nos.2 and 3. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 11 st August, 2010. PER COURT : 1. By this Petition, the petitioner challenges, rejection of his nomination paper from the reserved constituency. 2. The petitioner had filed nomination from ward no.4 of the village panchayat. Out of two nomination forms filed by him, one nomination form from the open category came to be accepted because it was filed first in time and nomination form from the reserved category was rejected only on the ground that it was subsequently filed. 3. The Returning Officer referred to the office order dated 2 13.11.2007. I have perused the office order and the observations of the Division Bench in “Sudhar Vithal Misal V/s State of Maharashtra” {2007(6) All M.R. 773), founded on which, the office order is issued by the Election Commissioner. The Hon’ble Division Bench of this Court observed : “Although we do not intend to issue directions for modification of circular dated 7.5.2007, we intend to suggest that the Commission may consider modification of inviting the candidate before commencing the scrutiny of nominations to elect as to which nomination he desires to withdraw and which he desires to be considered for scrutiny. The Commission may take the decision on the issue only if the individual does not respond and fails to elect before the scrutiny. It may also reconsider if in such cases (where candidate does not respond) whether first nomination should be considered for scrutiny or the last (subject to fact that it is filed before the expiry of time limit for filing nominations), because subsequent nomination is the result and reflection of second thoughts of the candidates." 4. Perusal of the above observations would make it amply clear that the Returning Officer is required to give option to the candidate to express his intention regarding withdrawal of 3 either of the nomination form. Infact, the date for withdrawal of nomination is scheduled today. The Returning Officer did not call upon the petitioner to exercise the option by any communication nor the petitioner himself gave any remark on his nomination paper from the reserved consistency, seeking withdrawal of his candidature therefor. Under these circumstances, his nomination form from the reserved category could not have been rejected outrightly and only on basis of the certain instructions issued by the Election Commission. For, the said instructions have been given in pursuance to the observations made by the Division Bench and the said observations are not to the effect that the choice is available with the Returning Officer but the choice is required to be given to the candidate himself for which the Returning Officer has to act as catalyst agent. 5. In view of the aforegoing reasons, the Petition is allowed. The petitioner’s counsel makes a statement that he shall withdraw the candidature from open category from the said ward on the date of scrutiny, and therefore, his nomination only from the reserved category may be accepted by the Returning Officer. The Petition is disposed of accordingly. 6. The parties to act upon the copy of this order duly 4 authenticated by the Court Shirestedar, which shall be furnished immediately. (V.R.KINGAONKAR) JUDGE gas/wp7217.10