DR.BARNABAS HEMBROM Vs. KAMLESH ORAON & ANR

JUDGEMENT

(1.) Petitioner has filed present Election Petition seeking indulgence of this Court to declare the election of opposite party no.1, the returned candidate of 68, (Schedule Tribe), Vidhan Sabha Constituency, Gumla, P.O., P.S. & District - Gumla to be void in view of the provision enshrined under Section 100 (1) (c) of The Representation of the People Act, 1951 on the ground that nomination of the petitioner was improperly rejected by opposite party no.2 i.e. the Returning Officer, Gumla Constituency, 68, (Schedule Tribe), Vidhan Sabha Constituency, Gumla, P.O., P.S. & District - Gumla.

(2.) The facts behind filing of this Election Petition are as follow: - By notification no.1378 dated 18.09.2007 the petitioner appointed as a Member (Social Worker), Juvenile Justice Board, Gumla by the Government of Jharkhand. That the Election Commission of India by notification no.598 dated 17.11.2009 notified the 4th phase of Jhar Vidhan Sabha Election, 2009 which includes 68, (Schedule Tribe), Sabha Constituency, Gumla, P.O., P.S. & District - Gumla. The petitioner, being eligible in all respects to be as a candidate by registered un -recognized political party known as Jharkhand Party, filed nomination paper in four sets before the Returning Officer, Gumla Constituency, 68, (Schedule Tribe), Vidhan Constituency, Gumla, P.O., P.S. & District - Gumla on 23.11.2009 within the time prescribed by the Returning Officer in terms of the provisions enshrined under Section 33 of The Representation of the People Act, 1951. The scrutiny nomination paper was held on 25.11.2009 as per the date fixed by the Returning Officer and the respective candidates/representatives/agents were present before the Returning Officer, Gumla. Sri Joy Fredrik Baxla, a candidate set up by Indian National Congress filed a written complaint on 25.11.2009 before the Returning Officer, Gumla contending that the petitioner was a Member of Juvenile Justice Board, Gumla and as such he was holding an office of profit and hence, his being a candidate in the election is illegal. complaint so filed by Sri Joy Fredrik Baxla was registered as Election Complaint Case No.01 of 2009. To meet out the objection raised, the petitioner produced his resignation letter dated 20.11.2009 addressed to the Principal Magistrate and the Judge -in -Charge, Civil Court, Gumla but the Returning Officer, Gumla Constituency, 68, (Schedule Tribe), Vidhan Sabha Constituency, Gumla, P.O., P.S. & District - Gumla, by order dated 26.11.2009 rejected the nomination paper of the petitioner on the ground that the petitioner, being a Member of Juvenile Justice Board, Gumla was holding an office of profit which would be evident from order dated 25.11.2009 and 26.11.2009 passed in Election Complaint Case No.01 of 2009. It is disclosed that the petitioner has challenged said order of rejection of his nomination by filing writ application being W.P.(C ) No.5568 of 2009 but it stood dismissed on 03.12.2009 by this Hon'ble Court with liberty to the petitioner to file Election Petition in view of the provision enshrined in Article 329 of the Constitution of India. The election of 68, (Schedule Tribe), Vidhan Sabha Constituency, Gumla, P.O., P.S. & District - Gumla was held o 12.12.2009 and the result was declared on 23.12.2009 and opposite party no.1 was declared as returned candidate. In the present case, nomination paper of the petitioner was rejected in view of purported exercise of power by the Returning Officer, as per the provision enshrined under Article 191 of the Constitution of India and he was disqualified by the concerned Returning Officer on the ground that he was holding an office of profit at that point of time and the resignation tendered by him was not accepted by the competent authority. Therefore, whole case rests on the point as to whether the petitioner being a member of Juvenile Justice Board, Gumla as social worker in terms of Rule 3(1) of Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 was holding the office of profit or not. Rule 3(1) of the said 2003 Rules reads thus: - "3. Juvenile Justice Board: - (1) The Board shall consist of a Judicial Magistrate of the first class and two social workers of whom at least one shall be a woman, forming a bench."

(3.) It is contended that Jharkhand Assembly (Removal of Disqualification) Act, 2006, Clause/entry 11 of the Schedule of this Jharkhand Assembly (Removal of Disqualification) Act, 2006 is pari meteria with entry/clause 5 of the Schedule of Bihar Legislature (Removal of Disqualification) Act, 1950. Entry 11 of the Schedule of this Jharkhand Assembly (Removal of Disqualification) Act, 2006 reads as follows: - "11. The offices of the Chairman or member of any Committee or body appointed by the central or a State Government or by a servant to the Government; provided that the Chairman or any member of such Committee or body does not receive any remuneration other than compensatory allowance. Explanation (i) For the purpose of this item "compensatory allowances" shall mean -