CHANDUL LAL Vs. RAM DASS

JUDGEMENT

(1.) This appeal under the Jammu and Kashmir Representation of the Peoples Act No. 4 of 1957 (hereinafter referred to as the act") is directed against a judgment of the High court of Jammu and kashmir allowing an election petition filed by the respondents. Respondent No. 1, the appellant, and one Chajju Ram Saloch were the three candidates who filed their nomination for election to the Jammu and kashmir Legislative Assembly from the Ramnagar Scheduled Caste constituency. On the date of scrutiny, which was 23/01/1967 the nomination paper of Saloch was rejected by the Returning Officer on the ground that he was holding an office of profit under the government of Jammu and Kashmir which disqualified him from being a candidate for election to the Legislature under S. 69 of the Constitution of Jammu and Kashmir. Thereafter, there was a straight contest between the appellant and Respondent No. 1. The appellant, having secured a larger number of votes, was declared elected. An election petition was then filed by respondent No. 1 challenging the election of the appellant Respondent no. 2, who was a voter, joined respondent No. 1 in filing this election petition. The election of the appellant was challenged as void under s. 108 (1) (c) of the Act on the ground that the nomination of Saloch had been improperly rejected.

(2.) The Returning Officer rejected the nomination paper of Saloch on the ground that he happened to be in government service and was, thus holding an office of profit as was clear from Agricultural Order No. 20/b, dated 19/01/1967 copy of which was produced before him by the counsel for the appellant. The other candidates requested for adjournment on the 23/01/1967 when this objection was taken at the time of the scrutiny and, as prayed by them, the hearing of the objection was adjourned till 11 o'clock of 24/01/1967. The returning Officer noted that, even on the next bearing, Saloch failed to produce any documentary proof from the Agriculture Department or any other proof of not being in service, though be had been asked to produce a certificate from the Agriculture Department to rebut the objection. He having failed to do so, his nomination was rejected. In the election petition the plea taken was that this rejection of the nomination paper was not justified as, in fact, Saloch was not holding any office of profit under the Jammu and Kashmir government on 23/01/1967, which was the date of scrutiny. In contesting the election petition the appellant supported the rejection of the nomination of Saloch not only on the ground mentioned by the Returning Officer, but in addition, on two other pleas. These two pleas were that Saloch was below the prescribed age of 25 years at the relevant time, and that he failed to comply with the provisions of S. 44 and 45 of the Act These two new grounds need not detain us, as learned counsel for the appellant arguing the appeal did not urge them before us. He confined his submissions to the disqualification under 9.69 of the Constitution of Jammu and kashmir and urged that the nomination was rightly rejected by the returning Officer on that ground. The High court did not accept this defence of the appellant, held that the rejection of the nomination paper of Saloch was not justified and declared the election of the appellant void. This decision of the High court is impugned in this appeal.

(3.) The facts, on the basis of which the question has to be decided as found by the High court, are not in dispute On the 12th of October 1962, Saloch took a loan from the government of Jammu and Kashmir to meet expenses for studying for the B. Sc. Agriculture Degree at Ranchi and executed an agreement, one of the conditions of which was that, on completion of his training, it would be obligatory on the loan-scholar to serve the Jammu and Kashmir government, if called upon to do so, for a period of at least seven years on such emoluments and terms and to such capacity as the government may determine from time to time, though the government was under no obligation to appoint Saloch in the government service ' Saloch completed his studies and in September, 1966, he applied for appointment to a post in the Agriculture Department of the government. On 19/01/1967, an appointment order was issued in the following terms :- "agriculture Order No 20/e, dated Jammu 1 9/01/1967. Shri Chajju Ram Saloch B. Sc. , Agriculture, son of Shri Avtar chand, r/o Basant Garh. Tehsil and Post Office Ramnagar is hereby appointed as temporary Agricultural Assistant in the grade of 250-500 and posted at government Agriculture farm, Talab Tilco Jammu. He should report immediately to the undersigned. (Sd. ) B. S. JOG, director, Agricultural Camp, Jammu. " saloch did not receive the appointment letter until after the date of scrutiny though be stated during the trial of the election petition that he was 'old by his friends about his appointment so that be approached the Director of Agriculture to join the service. He actually took charge of the post on 3/02/1967, and did not serve anywhere earlier than that date. It was after joining the Department that he actually saw the appointment order in the office of the Director of Agriculture. At the lime of scrutiny, Saloch had filed an affidavit before the returning Officer stating that he has not joined any government service. that he was not performing any government duty, and that be had not received any appointment order.