JUDGMENT B. Mukherji, J. - This is a petition under Article 226 of the Constitution praying for a writ of certiorari to quash an order made by the first respondent on the 24th December, 1956. 2. The facts giving rise to this petition were these:- 3. The petitioner and respondent No. 2 Asha Ram contested the election of Sarpanch of the Nyaya Panchayat of village Palar in the district of Jhansi. Asha Ram was elected as against the petitioner. The petitioner therefore filed an election petition challenging Asha Ram's election. Among other grounds, one ground taken by him was that Asha Ram was below the age of 30 years and therefore not a competent person to be elected a Sarpanch. Another ground taken was that Asha Ram had been holding an office of profit, inasmuch as, he was working as a collection Amin on a salary of Rs. 85/- per mensem. 4. Asha Ram attempted to meet both the objections. The first, he attempted to meet by pleading that he had been granted an exemption. In regard to the second ground of attack he pleaded that he had tendered his resignation from the post mentioned above on the 29 August, 1956, that is, on the day of the election but actually prior to the election. 5. Rule 85 of the Rules framed under the U.P. Panchayat Raj Act prescribes the qualifications of Panches. This is what that rule says:- "A person shall not be qualified to be appointed a Panch of a Nayaya Panchayat unless he- (a) is able to read and write Hindi in Devanagri Script, and (b) is thirty years or over in age." Sec. 5-A of the Act lays down the qualifications for holding office under the Gaon Sabha or Nyaya Panchayat. It says : "A person shall be disqualified for being chosen, nominated or appointed to, and for holding any office in the Gaon Sabha or the Gaon Panchayat, or the Nyaya Panchayat constituted under Sec. 42, if he (only the relevant portion of the section is being quoted):- (a)........................... (b) holds any office of profit under a State Government or the Central Government or a local authority (other than a Gaon Sabha or Nyaya Panchayat) ." 6. (b) holds any office of profit under a State Government or the Central Government or a local authority (other than a Gaon Sabha or Nyaya Panchayat) ." 6. The question that arose for determination by the authority who was competent to decide the election petition filed by the petitioner against Asha Ram, therefore, was:- Whether Asha Ram was competent under the law to be elected a Nyaya sarpanch because of his disability in the matter of age and employment. As I have pointed out, Asha Ram tried to steer clear of both these objections by setting forth his own case. On his contentions the questions that arose were whether Asha Ram had a valid exemption in regard to age, as also in regard to the disability entailing from his holding an office of profit under the State Government. 7. Sec. 43 of the Panchayat Raj Act provides for the constitution of the Nyaya Panchayat. That section is in these words:- "There shall be appointed by the prescribed authority five persons or such lesser number of persons as may be fixed under Sec. 12-A of prescribed qualifications out of the persons elected in accordance with sub-sec. (6) of Sec. 12 and Sec. 12-A to be Panches of the Nyaya Panchayat and the persons so appointed shall, not with-standing anything hereinbefore contained, not be members of Gaon Pancahyat:- Provided that where suitable persons possessing the prescribed qualifications are not available for such appointment any or all of such qualifications may be relaxed by the prescribed authority." 8. In connection with "relaxation of the qualifications" what is to be noticed is that the relaxation can only be granted by the prescribed authority. "Prescribed authority" has been defined by Sec. 2 (q) as meaning "an authority to be notified as such by the State Government whether generally or for any particular purpose." It may be mentioned at this stage that the second respondent Asha Ram relied on an exemption granted, allegedly to him, by an Additional District Magistrate. It is conceded by counsel for the parties that the prescribed authority for granting an exemption was the District Magistrate and not an Additional District Magistrate. Schedule I to the Rules also indicates that for purposes of granting an exemption the District Magistrate was the appropriate prescribed authority. It is conceded by counsel for the parties that the prescribed authority for granting an exemption was the District Magistrate and not an Additional District Magistrate. Schedule I to the Rules also indicates that for purposes of granting an exemption the District Magistrate was the appropriate prescribed authority. So that there could be no question that the relaxation in the instant case had been granted by a person who was not competent under the law to grant the said relaxation. In this connection it would be interesting to observe the manner in which this relaxation was granted and this appears from the testimony of Mahendra Bahadur, a witness who had been called on behalf of Asha Ram himself to prove the necessary exemption in his favour. Asha Ram, who was the Head Clerk of the District Panchayat Officer and who had the custody of all the relevant records, stated that in his office there were cyclostyled copies of orders signed by the Additional District Magistrate - even the signature of the Additional District Magistrate was cyclostyled - for purposes of granting exemptions whenever exemptions were sought. The actual certificate of exemption has not, however, been filed in this case. The evidence of Mahendra Bahadur further indicates that no specific or separate orders were made in individual cases : merely cyclostyled forms kept ready and handy were utilised, it appears to me, as a matter of routine and exemptions were granted. There was no evidence to indicate that any authority ever exercised its mind on the question whether or not Asha Ram was a fit person in whose case an exemption could be granted. It is important in this connection to bear in mind the statutory direction given in Sec. 43 of the Panchayat Raj Act, and that direction is to the effect that an exemption was to be granted when suitable persons possessing the prescribed qualifications were not available for appointment as Nyaya Sarpanch. There was nothing to indicate that there were no suitable persons available for appointment. One cannot but regret to find provisions of law given effect to in such a cavalier fashion. There was nothing to indicate that there were no suitable persons available for appointment. One cannot but regret to find provisions of law given effect to in such a cavalier fashion. Nyaya Panchayats are important bodies on whom falls , the responsibility of deciding disputes between citizen and therefore if in the case of appointments to such offices as those of Nyaya Panches statutory authorities act not in accordance with law, then in my view they do not start the Nyaya Panchayat under good auspices. 9. Learned counsel for Asha Ram contended that whatever may have been the procedural error that error did not materially affect the election and therefore I should not interfere with the election. The breach that has taken place in this particular case was not a procedural breach but went to the very root of the matter, namely, affected the capacity of the second respondent from being placed where he was. In my view, it cannot be contended that the election of a legally unqualified person does not materially affect the result of an election. 10. In regard to the second objection, namely, that Asha Ram was holding an office of profit under the State Government, it was attempted to be met by Asha Ram by saying that he had tendered his resignation on the day of the election. We have to bear in mind the fact that even though Asha Ram tendered his resignation from the office he was holding on the day of election yet that resignation had not been accepted on the day of the election, for the resignation, we find, was accepted on the 14th September, 1956. So long as the resignation of Asha Ram had not been accepted it could not be said that he was not holding an office of profit. A Government servant cannot get out of service by an unilateral act of sending in a resignation. The resignation has to be accepted before it can have effect. A person submit-ting a resignation has the right to change his mind and withdraw his resignation before the resignation is accepted. So that by merely sending in his resignation Asha Ram could not be deemed to be out of office. The resignation has to be accepted before it can have effect. A person submit-ting a resignation has the right to change his mind and withdraw his resignation before the resignation is accepted. So that by merely sending in his resignation Asha Ram could not be deemed to be out of office. I am supported in this view of mine by the majority opinion expressed in the case of Bahori Lal Paliwal v. District Magistrate, Bulandshahr, A.I.R. 1956 Allahabad 511 This disqualification too, therefore, started Asha Ram in the face. 11. Counsel for the second respondent contended that the question as to whether or not Asha Ram was competent should have been raised and could be raised only at the time when Asha Ram had been nominated as Nyaya Sarpanch. This contention, in my opinion, has no substance, for under Rule 83-B of the U.P. Panchayat Raj Rules any dispute relating to the election of a person as Sarpanch or sahayak Sarpanch was to be decided in the manner prescribed in Rule.26" for decision of disputes relating to election of Up-Pradhan. Rule 26 (1) of the Rules is in these words:- "Any person desiring to dispute the election of an Up-Pradhan (by virtue of Rule 83-B we have to read here the word 'Sarpanch') shall within 30 days after the date of election present an application to the Sub-Divisional Officer of the Division in which Sabha concerned is situated setting forth the grounds on which he disputes the election................." 12. Rule 26 has now been amended but we are not concerned in this case with the amended rule: we are concerned with the rule that has been quoted above, for the amendment came subsequent to the election and the filing of the election petition. 13. For the reasons given above I allow the petition, quash the order of the first respondent dated the 24th December, 1956, and send this case back to him for decision in accordance with law. The petitioner will have the costs of this petition from the seem" respondent.