IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5234 of 2011 PALTI DEVI . Versus THE STATE OF BIHAR & ORS . ----------- 2. 28.03.2011 I.A. No. 2274 of 2011 is stated to have been filed on 26.3.2011 after serving copy on the counsel for the State Election Commission to implead it as a party respondent no. 8. The office shall place the I.A. on record. After hearing counsel for the parties, the amendment being formal in nature is allowed. Heard learned counsel for the petitioner, the State and for the State Election Commission. The petitioner was a Vikas Mitra appointed on contract by the State Government for a period of 11 months. It is submitted that she joined the post on 29.3.2010 and the term was thus to expire on 28.2.2011. She submitted her resignation on 1.3.2011 which was accepted by the District Magistrate on 8.3.2011. Her nomination came to be rejected on 7.3.2011 for absence of any documentary evidence with regard to the acceptance of the resignation. 7.3.2011 was the last date for filing of nomination and the scrutiny was fixed from 8.3.2011 to 10.3.2011. On the aforesaid facts, the first submission is that if the contractual appointment came to an end by 2 operation of law on 28.2.2011, the disqualification attached to her nomination by virtue of the appointment under Section 136(i)(d) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the „Act‟) automatically ceased on that date. Any resignation submitted on 1.3.2011 was superfluous and of no consequence in so far as the questions of law are concerned. Alleging mala fide it was next submitted that there was no occasion to reject her nomination on the last date for filing of nominations when scrutiny of the same was to commence from the next date. Assuming though not admitting whether need for any formal resignation was there, even that stood fulfilled before the last date for scrutiny of nomination. Reliance has been placed on a Bench decision reported in A.I.R. 1960 Patna 589 (Ramchandra Prasad Vs. Sub-Divisional Magistrate, Madhubani & Ors.) in support of the submission that appropriate directions and relief with regard to acceptance of the nomination can be granted under Article 226 of the Constitution of India. Counsel for the State and the State Election Commission have submitted that there is no averment that the status of the petitioner as a Vikas Mitra was not renewed after 28.2.2011 or that she had not applied for any such renewal. It is submitted that under Rule 116 of the Bihar Panchayat Election Rules, 2006, the petitioner 3 has adequate remedy in the matter on facts before the State Election Commission. The Supreme Court in AIR 1952 SUPREME COURT 64 "N. P. Ponnuswami v. Returning Officer, Namakhal Constituency, Namakkal, Salem Dist." has observed as follows at Paragraph- 9, with regard to the necessary lack of jurisdiction in writ Court to interfere even with a wrong order rejecting a nomination :- “9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question Article 392 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the 4 grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.” The case of Ramchandra Prasad (supra) sought to be relied upon is distinguishable on its own facts as the foundation of the order was on a finding that the order suffered from an error apparent on the face of the record. That is not the case presently which as discussed is raising debatable issues for which the facts shall have to be primarily established first. Learned counsel for the petitioner at this stage submits that the petitioner has filed a representation before the State Election Commission on 10.3.2011. There is no such material on the record. However, if what the petitioner contends is correct, let it be treated as an application under Rule 116 of the Election Rules and disposed off expeditiously upon presentation of a copy of this order forthwith, considering that the elections are fixed for the 24th of April 2011. The contention on behalf of the State Election Commission with regard to the printing of ballot papers 5 etc. are matters more appropriately to be examined by it while considering any application under Rule 116 of the Election Rules. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)