P. K. SHYAMSUNDAR, J. ( 1 ) IN this election petition filed under Section 81 of the representation of the People Act, 1951 (hereinafter referred to as 'the act') the election of the 8th respondent herein, narayaoarao manahalli to the Karnataka legislative assembly from No. 4, bidar assembly constituency is sought to be called in question by the petitioner who was also a candidate seeking election to the assembly from the very constituency via No. 4 bidar assembly constituency. It is common ground that elections were held for filling-up the seat from bidar 4 constituency on 24th noveraher, 1989 persuant to a calendar of events published by the returning officer who is a nonparty herein, well in advance and in accordance with law. In the calendar of events the last date for receiving nominations was 31st october, 1989 with the date fixed for scrutiny being 2nd november, 1989 at 11 a. m. before the returning officer. The calendar also fixed the fourth of november, 1989 as the last date for withdrawing of the nominations, the date of the polling itself being the 24th november, 1989. ( 2 ) IT transpires from the uncontroverted pleadings in the case that amongst others the petitioner, the 8th respondent-narayanarao manahalli, 12th respondent-vaijinathrao suryavanshi and the 14th respondent-shambuling had filed their nomination papers. At the hustings respondent-12 was declared elected having polled 24,922 votes as against 23,330 polled by the petitioner. Respondent-12- vaijinathrao suryavanshi polled 4,480 votes while the 14th respondent-shambuling polled only 2,588 votes. ( 3 ) TOUCHING the particulars of the number of votes polled by the various contestants, there is absolutely no controversy since they are borne out by the poll results, ex. P. 2. From a perusal of the poll results it becomes evident that between the successful candidate narayanarao manahalli and the runner-up, the petitioner herein, the difference was only 1,662 votes. Complaint of the petitioner is that he would have really closed- in on the 12th respondent and would have indeed outstripped him at the hustings if only the 12th respondent-vaijinathrao suryavanshi who happened to be a member of the S. C. had not contested the election at all. Complaint of the petitioner is that he would have really closed- in on the 12th respondent and would have indeed outstripped him at the hustings if only the 12th respondent-vaijinathrao suryavanshi who happened to be a member of the S. C. had not contested the election at all. He alleges that the votes polled by respondent-12 aggregating in all 4,480 would have been substantially garnered by him because he was a candidate for the cong-i party, the successor to the Indian national congress which had all along, right from the day of deliverance of this country from foreign bondage was championing the cause of the S. C. and st. Communities. It is pointed out that respondent-8 fought the elections under the banner of the bj. p. an organization known for its communal feelings being staunchily pro-hindu and, therefore, anti-harijan and even anti-muslim. Thus, it is his case that if only respondent-12- suryavanshi had stayed away from the poll-fray he would have won the election decisively being the automatic choice of the s. c/s. t. voters. It is in this context the petitioner alleges that respondent-12 who literally run him aground by taking away more than 4,000 votes from the traditional vote bank of the cong-i could not have contested the elections at all because he was at all relevant times viz. The date on which he filed the nomination paper, the date on which the nomination paper was scrutinised and the date of poll, respondent-12 was a government servant still in office and had, therefore, suffered a telling disqualification enjoined under Section 100 (1) of the act being a person holding an office of profit. It is also alleged that respondent-12 by himself would not have offered himself as a willing candidate at the hustings but his induction into the poll-fray was a clever ploy employed by forces hostile to the cong-i with a view to split the votes that would have otherwise been polled by the cong-i candidate. It is thus mentioned that being aware -of the disabilities or the disqualifications suffered by respondent-12 as a government servant precluding him from contesting any election, another manoeuvre had been adopted to plant a resignation letter purportedly in the hand of respondent-12 stated to have been duly transmitted by him to the asst. Director of agriculture, department of agriculture, bidar on whose establishment he was, then, serving as a ministerial officer. Director of agriculture, department of agriculture, bidar on whose establishment he was, then, serving as a ministerial officer. It is pointed out the aforesaid letter of resignation had been made affective from an anterior date viz. 11th march, 1989. According to the petitioner the endeavour as aforesaid had all been engineered by some unforseen hand with a view to put up hurdles in the way of the petitioner at the poll. It is further pointed out that even with all this free-wheeling by his foes their machinations proved totally futile because the alleged resignation had not become effective at all for non-acceptance. Even now, it is obvious, respondcnt-12, suryavanshi remained and continued to remain a government servant throughout the relevant period somuch so the acceptance of his nomination paper was clearly in contravention of the act and, according to the petitioner, if nomination of respondent-12 had been rejected by the returning officer as it should have been, in all probability he would have garnered a substantial number of votes secured by respondent-12 thus emerging as the successful candidate in the election. He, therefore, asserts that because of the improper acceptance of the nomination of respondent-12, suryavanshi, the result of the election had been materially affected and basing himself on this ground the petitioner seeks to set at nought the return of respondent-8, narayanarao manahalli as the successful candidate (sic) the said election. Therefore, it is, he asks for such a declaration in this election petition. ( 4 ) THERE are in all 18 respondents in this petition including respondent-8, narayanarao manahalli and respondent-12, suryavanshi who is stated to have (sic) the pitch for (sic ). In my view the other important person who probably tilted the scales against the petitioner is shambuling, respondent-14 who is also a S. C. candidate. He had secured 2,588 votes. It is a matter of some regret that with the exception of respondent-11 -rodda veershetty, who had contested the election as an independent candidate having polled 245 votes and ofcoursc respondent-8, the successful candidate, noneelse had chosen to appear before court to join issue with the petitioner. Every one i. e. other than respondent-8 and respondent-12 remained ex-parte. It is a matter of some regret that with the exception of respondent-11 -rodda veershetty, who had contested the election as an independent candidate having polled 245 votes and ofcoursc respondent-8, the successful candidate, noneelse had chosen to appear before court to join issue with the petitioner. Every one i. e. other than respondent-8 and respondent-12 remained ex-parte. On top of it, at the trial after the petitioner entered the witness box and placed on record four innocuous documents ex-s. P. 1 to p. 4 and with this limited exertion he sought to rest, thereafter it was the non-entity rodda veershetty (respondent-11) who entered the witness box. The returned candidate respondent-8, narayanarao manahalli did not choose to put in appearance. I must, however, mention at this juncture that both the 8th and 11th respondents had filed statements apropos the election petition. Respondent-8 in his objection statement declared in very strong words, the allegations made by the petitioner laiquiddin particularly with reference to the claim that cong-i had at all time been looked upon by S. C. /s. t, and other minority groups as their patronic angel dubbing it as wistful thinking by a man having lost the battle was thereafter crying hoarse. ( 5 ) THE 12th respondcnt-vaijinathrao to whom the petitioner attributes his debacle, did not even file an objection statement. The 11th respondent-rodda veershetty in his statement supported the petitioner making it clear that he was an ardent supporter of cong-i and its policies. He too sang all familiar (sic) tune that had it not been for the entry of respondent-12 into the poll-fray the election of the petitioner would never have been in doubt. From the pleadings in the case it becomes evident that no one had ventured to raise any objection in writing to the candidature of respondent-12, suryavanshi on the score of the man being in government service at the time of scrutiny of the nomination paper by the returning officer. Laiquiddin had to admit not being present on that day that he at any rate had not raised this objection. Veershetty -respondent - 11 claims that he had raised this objection orally. He also mentions that some others had also raised this objection. It is common ground that the nomination paper of suryavanshi had been accepted on the date of scrutiny without any demurrer by the reluming officer. Veershetty -respondent - 11 claims that he had raised this objection orally. He also mentions that some others had also raised this objection. It is common ground that the nomination paper of suryavanshi had been accepted on the date of scrutiny without any demurrer by the reluming officer. What is more even a verification of this allegation with reference to the returning officer is rendered impossible because the returning officer himself is not a party herein. The records of the returning officer were also not made available to the court since nobody took the initiative to call for them. To make matters more difficult and probably more obscure, respondent-8 whose poll victory was in jeopardy did not step into the witness box and the counsel appearing for him took the stand that the petitioner having failed to make out even a prima facie case against his client, the latter was not bound to take the stand even in his own support. ( 6 ) IN this situation wherein the parties have taken stances structured purely on hyper-technicalities and on hard-core legalities, the simple question as to whether a person had ceased to be a government servant following the tendering of his resignation became difficult to resolve. It may be mentioned at this stage that respondent-8, narayanarao manahalli in his objection statement did not either accept or deny the petitioner's case that suryavanshi, the interloper herein, had not tendered resignation to the post he held under the government or whether the resignation had become effective with its acceptance or whether it had remained inanimate nestling in the files of a government office. The categorical statement made by him at paras 21 and 22 by respondent-8 amply demonstrate the stand of the petitioner that it was something that he would not worry himself as all that was for respondent-12 to explain. In this state of the pleadings the following are the issues raised : (i) whether the nomination paper of the 12th respondent has been improperly accepted? (ii) if so, whether such improper acceptance of the nomination paper of 12th respondent had materially affected the result of the election? (iii) what order ? ( 7 ) POINT No. 1 :- as mentioned herein before all the oral and documentary evidences in the case came through the examination of laiquiddin, the petitioner herein. Rodda veershetty, respondent-11, merely gave oral evidence. (iii) what order ? ( 7 ) POINT No. 1 :- as mentioned herein before all the oral and documentary evidences in the case came through the examination of laiquiddin, the petitioner herein. Rodda veershetty, respondent-11, merely gave oral evidence. No document was produced by him or marked in his evidence. Ex. P. 1 produced by the petitioner is a copy of the certificate issued by the returning officer declaring the eighth respondent as duly elected to the legislative assembly from 4-bidar assembly constituency. Ex. P. 2 is the results of election showing various details such as the name of candidate, the party to which each one of them was affiliated to and the number of votes polled by each one of them. Ex. P. 3 is a hand-written letter addressed to the petitioner by asst. Director of agriculture, bidar giving information about the service particulars of respondent-12, suryavanshi and ex. P. 4 is the nomination paper filed by suryavanshi in which he had declared categorically that he was qualified in every manner for contesting the election and that he did not suffer from any disqualification in that behalf. The acceptance by the returning officer of the nomination paper of suryavanshi under ex. P. 4 appears to be absolute and seems to proceed as if there was no objection whatsoever to such acceptance. In this background of the pleadings and the evidence led, i shall now proceed to consider the issues themselves. ( 8 ) THE core of the first issue relates to the allegeddisqualification stated to have been incurred by respondent-12, suryavanshi on the ground that he was on the date of filing of the domination paper and as a matter of fact even subsequently he had continued to be a government servant and was, therefore, disabled from contesting the polls as a serving officer of the government held an office of profit that created a bar for such a person to become a member of the state legislature, as enjoined by article 191 (a) of the constitution. It might in this connection be useful to set out in brief the conceptus of the Provisions which required to be considered for recording a finding on this issue. It might in this connection be useful to set out in brief the conceptus of the Provisions which required to be considered for recording a finding on this issue. Section 36 of the act enjoins the returning officer to examine the nomination papers and decide all the objections made to any nomination after a summary enquiry and reject any nomination paper if it was found to suffer from any defect of a substantial character. Where a nomination paper is rejected the returning officer shall record in writing the reasons for such rejection. The next provision under the act to be referred to is Section 100 thereof. It provides the grounds under which the high court can declare an election void. For our purpose clause (a) and subclause (i) of clause (d) are relevant, and the same are"grounds for declaring election to be void: subject to the Provisions of sub-section (2) if high court is of opinion - (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this act or the government of union territories Act, 1963; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, the high court shall declare the election of the returned candidate to be void. " (emphasis supplied) in this case, however, the bar enacted by the Provisions (supra) do not operate against the 'returned candidate respondent-8, narayanarao manahalli who did not admittedly suffer from the disqualifications adumbrated, being himself a freelance. But the, his election victory is said to be imperilled by improper acceptance of the nomination paper filed by some other candidate who had suffered from a disqualification as enjoined under article 191 (a) of the constitution, subject ofcourse to production of decisive material to establish that the result of the election had thereby been materially affected by such improper acceptance. Article 191 (a) of the Constitution reads :"191. Article 191 (a) of the Constitution reads :"191. (1) a person shall be disqualified for being chosen as, and for being, a member of the legislative assembly or legislative council of a state (a) if he holds any office of profit under the government of India or the government of any state specified in the first schedule, other than an office declared by the legislature of the state by law not to disqualify its holder;"the foregoing Provisions clearly pose a threat to the returned candidate if some one else in the poll-fray had suffered any disqualification enjoined under article 191 of the constitution. Precisely, the situation in this case is just that. The election of the returned candidate in the november, 1989 polls is now threatened by the petitioner who seeks herein a declaration at the hands of this court adjudging the election of the returned candidate to be void because the nomination paper of 12th respondent, suryavanshi had been improperly accepted in that although the candidate in question was clearly under a disqualification he had still been allowed to run at the hustings. ( 9 ) I have earlier referred to the problems created by the petitioner and the contesting respondents in not producing material that would have easily clinched the issue one way or the other. 1 have referred to the stand adopted by the two sides and the tendency displayed to stick to their drystick rights basing themselves on the doctrine of burden of proof, its discharge or failure thereof. The situation in this case reminds me of what one of the learned judge's of privy council lord shah of dunfurlane said long years ago in the case of mungesam pillai v gnana sambandha pandora sannadhi, AIR 1917 PC 6 (a) which appositely applies here. This is what his lordship said :"a practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of onus of proof, and failing accordingly, to furnish to the courts the best material for its decision. This is what his lordship said :"a practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of onus of proof, and failing accordingly, to furnish to the courts the best material for its decision. With regard to third parties this may be right enough they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which could throw light upon the proposition. "the above observations have been quoted with approval by the supreme court in hiralal v badkulal, AIR 53 SC 225. The High Court of Mysore in hussain khan v nijalingappa, AIR 1968 Mysore 19 which was also an election petition has frowned upon the practice of a party to the litigation desisting from producing the best evidence available in which event the court could draw an adverse inference against that party although the burden of proving a particular issue may entirely and exclusively be on the other side. That was a case in which the burden of proving corrupt practice being exclusively and entirely on the petitioner it was held non the less, the respondent was not absolved of the responsibility to assist the court in producing the best evidence available and the omission on his part be taken note of for drawing such inference against him as may appear just and reasonable. If I have drawn attention to the foregoing dicta it is only to highlight the unhelpful attitude of the party litigants in this case who appeared to indulge more in shadow boxing than to stage a valiant fight in court after placing all the cards on the table so that a just decision could be arrived at on the facts of the case. I have made these observations with a view to emphasise the need to be more candid and to display a better quality of rectitude in these matters, which can be done not merely transcending but also by rising above the desire to succeed somehow in the litigation, unmindful of the fact whether the truth of the matter becomes i casualty in the course of the legal battle staged from behind artifical props. A simple fact situation that could have been easily unravelled by production of some evidence which was well within the reach of either side has been deliberately shunned indicating that the two contestants desired to attain a result favourable to them by adopting (sic) attitude not certainly a criterion that can endear itself to the court or be welcome to it. ( 10 ) BE that as it may the question in cidentallyarises whether the objection based on the disability affecting the 12th respondent was ever raised at all before the returning officer. Section 36 to which I have adverted to earlier enjoins a duty on the returning officer to consider all the objections raised by any one to the acceptance of a nomination paper and to record a decision thereon if need be by making such enquiry as deemed fit albeit in a summary fashion. The provision also enjoins the returning officer not to reject any nomination paper unless it could be done for a substantial reason. Herein admittedly the petitioner had not raised any objection to the acceptance of the nomination paper of the 12th respondent at the time of scrutiny thereof by the returning officer the reason being on the date of scrutiny admittedly he was not present and nor was any authorised representative of ha was in attendance. The returned candidate, the 8th respondent, also does not profess to have raised any objection to the acceptance of the nomination paper in question on any ground muchless on the ground now canvassed for con- sideration. In his objection statement it is simply pointed out the fact of the person being or not being a government servant was not something on which he alone could shed any light and, therefore, he was not in a position to either vouch for or deny the same. In his objection statement it is simply pointed out the fact of the person being or not being a government servant was not something on which he alone could shed any light and, therefore, he was not in a position to either vouch for or deny the same. But the case of the petitioner is although he had not raised any objection before the returning officer some other's had raised the objection. In the pleadings he makes it clear that he had access to information of respondent-12 still continuing to be a government servant only after the elections were over vide para 7 of his petition. In his evidence he makes the position clear. This is what he states:"although I was not present on the date of scrutiny I was informed that the other candidates had raised objections to the candidature of respondent-12 on the ground that he still continued to be a government servant as on the date of scrutiny. The returning officer was the district officer for minority and backward classes, bidar. I say that the returning officer was personally aware of the fact that respondent-12 was a government servant at the time of scrutiny of the nomination papers. "the 11th respondent, rodda veershetty, who was one of the candidates at the poll, did in the course of the written statement assert that he and some others had raised the objection but that the returning officer had, however, proceeded to accept the nomination paper of the 12th respondent without paying any heed to the in oral objections. Later at the trial veershetty examined himself as r. w. i and said :"i was present at the time of scrutiny. Scrutiny took place on 2nd november, 1989 at about 11 a. m. i raised objection regarding the nomination paper of respondent -12, suryavanshi who was contesting as an independent candidate. My objection was that respondent-12 was an in-service government servant on that day and, therefore, was ineligible to contest the election. On that day he was working as office superintendent in the asst. Director's office of agriculture at bidar. Like me respondents-1,10, and 18 and even some others bad raised objections in regard to the acceptance of nomination paper of respondent-12. On that day he was working as office superintendent in the asst. Director's office of agriculture at bidar. Like me respondents-1,10, and 18 and even some others bad raised objections in regard to the acceptance of nomination paper of respondent-12. I state on oath that although i and the others raised the aforesaid objection touching the candidature of respondent-12 the returning officer did not make a record of the said objection and nor did he give a finding on our objection. "in the course of the cross-examination, he said:"it is not true to suggest that suryavanshi filed the nomination paper, only after tendering his resignation to the post held by him. It is not true to suggest that on the date of scrutiny the resignation of respondent-12 had been accepted. / do not know if the objections raised to the nomination of respondent-12 had been rejected by the returning officer after passing an order in writing. " (emphasis supplied) when it was pointed out to the learned counsel for the petitioner Mr. Subbiah that in the light of the factual controversy as to whether any objection was taken to the acceptance of the nomination paper of 12th respondent by any one present at the time of the scrutiny, the presence of the returning officer in-charge case was essential and more so because he could have assisted the court in placing on record what really had transpired before him on the date of scrutiny of the nomination papers, Mr. Subbiah demurred against this point of view urging emphatically that the presence of the returning officer in an election petition was not at all necessary or enjoined by law. Granting that such is the position in law i will now proceed to ascertain whether at all, any objection had been raised by any one to the acceptance of the 12th respondent's nomination paper on the date of scrutiny and shall do so on the basis of available material. ( 11 ) TO start with the petition makes it clear that the petitioner himself was unaware of the disability suffered by the 12th respondent on the date of filing of the nomination paper. From the tenor of the pleadings it becomes clear that he came to know of the same much later an aspect which he affirms in his evidence to which I have already adverted to. From the tenor of the pleadings it becomes clear that he came to know of the same much later an aspect which he affirms in his evidence to which I have already adverted to. But, then, what is of significance is the absence of any allegation in the petition filed long after the dust had settled down in the election process that to the petitioner's knowledge and information, some others including the 11th respondent had raised such an objection if not in writing atleast orally but that the returning officer had omitted to consider the same. The llth respondent in his statement adverts to the circumstance of he and others having raised such an objection at the time of scrutiny of the 12th respondent's nomination papers and to the omission of the returning officer to pay heed to the same. He repeats this in the course of his testimony as r. w. i but in the cross-examination he did admit that he was unaware whether the returning officer had passed separate order, in writing on this controversial issue. I am not inclined to set store on the assertion of the 11th respondent that he had raised any objection to the acceptance of the first respondent's nomination paper. He seems to be a camp follower of the petitioner and displayed a tendency to support him willy-nilly. The reluctance displayed by the petitioner in either making the returning officer a party-respondent or to summon the records of the returning officer inclines me to the view that such hesitancy could be attributed only to the omission by any one to raise any objection whatsoever to the acceptance of respondent-12s nomination paper at the time of scrutiny. This should also explain the attitude of the parties to stick to their drystick rights divorced from the duty to assist the court in this matter by making a clean breast of the whole thing. This should also explain the attitude of the parties to stick to their drystick rights divorced from the duty to assist the court in this matter by making a clean breast of the whole thing. I think i should also follow suit by pointing out that all said and done the returning officer in accepting or rejecting the nomination paper performs a statutory duty enjoined on him under Section 36 of the act and is, therefore, entitled to the protective armour of presumption in law that attends all official acts enjoining an inference that unless there was any indication to the contrary it must be presumed that the official act performed has been performed in the manner enjoined by law. A perusal of the controversial nomination paper at ex p. 4 indicates that it has been accepted by the returning officer, being satisfied that it merited such acceptance. At the back of the nomination paper at ex. P. 4 there appears the following declaration: earlier under clause (e) there is a declaration by the candidate that to the best of his information and knowledge he had every qualification to fill a place in the Karnataka legislature and that he did not suffer from any disqualification. These two declarations juxtaposed to each another do indicate that the candidate had made a categorical statement that he suffered from no disability as would preclude him from becoming a member of the assembly. The returning officer had inturn recorded a positive decision in that behalf by accepting the nomination paper. In betweea there is no reference to any voice of dissent having been raised on the date of scrutiny and I am sure if there were any objections the returning officer would not have hesitated to records decision in that behalf. In these circumstances, the presumption, that the returning officer had acted in accordance with law arises and that presumption i must say has not been rebutted by the evidence produced on behalf of the petitioner and the llth respondent. I may in this connection refer to the legal maxim 'omnia praesumuntur rite esse acta' which means everything is deemed to have been rightly performed untif the contrary is shown. Therefore, in the circumstances of the case, without more the presumption attaching to the performance of any official duty correctly and in accordance with law is afortiori attracted. I may in this connection refer to the legal maxim 'omnia praesumuntur rite esse acta' which means everything is deemed to have been rightly performed untif the contrary is shown. Therefore, in the circumstances of the case, without more the presumption attaching to the performance of any official duty correctly and in accordance with law is afortiori attracted. It, therefore, follows the case of the petitioner that although objection was taken to the acceptance of the nomination paper of respondent-12 the same was not considered by the returning officer cannot be accepted. But, then, it does not mean that the 12th respondent if he did suffer from any disqualification precluding him from entering the fray had nonetheless participated in the election, parties are not precluded from canvassing the disability suffered by the 12th respondent, in the course of an election petition laid subsequently. They are certainly entitled to canvass the same dehors the question whether they had or had not raised any objection before the returning officer. I shall now proceed to consider the core controversy in this petition, touching the disqualification suffered by 12th respondent. ( 12 ) ACCORDING to the petitioner the 12th respondent was at all times a government servant. The particulars produced by him at ex. P. 3 make that aspect clear but also inter alia refers to a resignation letter sent by the 12th respondent enjoining its acceptance with effect from llth march, 1989 and of the fact that the said letter had been received by the official superior of the 12th respondent on 2-11-1989 which was the date set for scrutiny of the papers of all the candidates intending to contest the elections from the 4th bidar coretituency. It is the petitioner's case that even that resignation letter was a planted document and had been fabricated. He, therefore, urges little or no notice should be taken of the bogus resignation letter. In other words, his case is (sic) 12th was respondent continuing in service as a government servant without let or hindrance and that in fact he had not resigned at all in which event the disqualification of holding an office of profit which precluded such a person from becoming a member of the legislature under article 191 of the Constitution was clearly attracted. Again on a fact which in normal circumstances should not have attracted any controversy at all the court had to set its own course, to ascertain the truth or otherwise of this matter since no evidence other than the service particulars at ex. P. 3 and the self-serving testimony of f. w. i that 12th respondent had incurred a disqualification as aforesaid was sought to be placed on record. Learned counsel Mr. Subbaiah for the petitioner appears to think that it was not incumbant on him to do anything more than what he had done in the matter, in that of producing the service particulars of the 12th respondent and the alleged resignation by the 12th respondent, which according to him, was a belated ploy and that as a matter of fact there was no resignation at all. Repeatedly counsel pointed out the 8th respondent had not even chosen to appear before this court in person (sic) and much less denied the allegations made by the petitioner in the course of the election petition apropos the fact of the alleged resignation by the 12th respondent. Counsel points out that none of the others including the contesting respondent had not chosen to deny the aforesaid factor. As mentioned earlier the stand of manahalli respondent-8 is that apart from being unaware of the change in the status of the 12th respondent in that whether he had ceased to be a government servant on the date of scrutiny of the nomination paper, he appears to think that in any event his interest was not merely invincible but unassailable. Therefore, he did not even choose to step into the witness box. I have already pointed out the difficulties created for the court by the rigid stand taken by either side depending on the abstract doctrine of burden of proof somuch so i had to make a last ditch effort to find out whether the 12th respondent had in fact resigned and if so whether his resignation had been accepted. At my request learned government Advocate Sri jaggannath was good enough to provide me with the necessary information by producing the secretariat file in which a letter of joint director of agriculture on this topic is found. The letter was got marked with the consent of the parties appearing before me as ex. Cl. At my request learned government Advocate Sri jaggannath was good enough to provide me with the necessary information by producing the secretariat file in which a letter of joint director of agriculture on this topic is found. The letter was got marked with the consent of the parties appearing before me as ex. Cl. In the said letter dated 2-2-1990 it is stated: this letter is undisputed proof of the fact that the resignation tendered by the 12th respondent was not accepted by government because he owed some money to the government. Hence, for the purpose of this petition i must hold that vaijinathrao-respondent-12 although had resigned from the post of a ministerial office held by him in the department of agriculture, his resignation had not been accepted even to this day. So the position of the 12th respondent is of a government servant who had resigned from his post whose resignation however was yet to be accepted. It is precisely in this context the controversy adumbrated in the first issue arising in this election petition emanates in that the 12th respondent having resigned his job, what really is his status at present. Is he a freelance or is he a government servant still, because the fact situation is, the resignation tendered by him had not been accepted. ( 13 ) THE aforesaid point is no longer res integra concluded as it is by the two decisions of the Supreme Court in rajkumar v union of india, AIR 1969 SC 180 and kasalingam vp. s. g. college of technology, AIR 1981 SC 780. In rajkumar's case the court held that the resignation by a government servant became effective only after its acceptance and would after such acceptance be treated as complete even in the absence of communication of such acceptance to the government servant concerned. Supreme court pointed out that till the resignation was formally accepted, the government servant could still be a locus penetentiae. He can, until the resignation is accepted retract from such resignation and opt to be treated as one still in office. But once resignation was accepted by the appropriate authority, government servant had no right to recall or retract from the resignation for he cannot thereafter repent or grieve for the decision he had made earlier and cannot continue to be a penetentiae after the resignation is accepted. But once resignation was accepted by the appropriate authority, government servant had no right to recall or retract from the resignation for he cannot thereafter repent or grieve for the decision he had made earlier and cannot continue to be a penetentiae after the resignation is accepted. In rajkumar's case following is the dicta of the court :"he had no locus penetentiae to so withdraw his offer of resignation after it was accepted: (2) that the principle that an order terminating employment is not effective until it is intimated to the employee could not apply to the facts of the case; (3) that there is no Rule framed under article 309 of the Constitution about when the resignation becomes effectidve. " (emphasis supplied) the principle of this decision was later extended even to a member of a private college in tamil nadu in kasalingam v p. s. g. college of technology, AIR 1981 SC 780. The position, therefore, is the status of a government servant is rendered unalterable the moment his resignation is accepted. But till then it would be open to the government servant concerned to recall the resignation so as to ensure the continuance of the status-quo ante. But once the resignation is accepted the decision to (sic) becomes immutable. The government servant is thereafter rendered functus officio in the matter of withdrawing the resignation. What is more where statutory rules provide for tendering and acceptance of the resignation then the position would then be whether the rules have been complied with, resulting in the resignation becoming final the vinculum juris between the government and the servant having been snapped he ceases to be a government servant and cannot then seek to invoke the option of heitating at his wish or behest. But where the resignation is tentative it would still be open to the government servant to declare his obeisance to government by recalling his resignation. Now the Karnataka civil service rules provide for a situation like this under Rule 252 (a) which reads :"a resignation becomes effective when it is accepted and government servant is relieved of his duties. Where a resignation has not become effective and the government servant wishes to withdraw it, he has the right to do so and the authority which is competent to accept the resignation has no other option but to permit the government servant to withdraw the resignation. Where a resignation has not become effective and the government servant wishes to withdraw it, he has the right to do so and the authority which is competent to accept the resignation has no other option but to permit the government servant to withdraw the resignation. Where however the resignation has become effective, the government servant is no longer in government service and any request for withdrawal of the resignation in such cases should be summarily rejected irrespective of the time during which the request is made. "the said Rule makes it clear that so far as the state government is concerned the resignation by an officer of his post becomes effective and final only after it is accepted and the government servant is relieved of his duties but not until then. Untramelled by the general principles touching the question of resignation and its effectuation, governed as he is by the service rules referred to (supra) and regard also being had to the communication at ex. Cl, without more it becomes dear that the resignation of the 12th respondent not having been accepted he was very much a government servant when he not merely entered the poll-fray but also when he fought through it before ending up vanquished. For these reasons i must record a finding on the first issue that the 12th respondent being a government servant at all times, was disqualified from contesting the election and, therefore, the nomination paper submitted by him had been improperly accepted by the returning officer, ( 14 ) BEFORE parting with this topic it seems only proper for me to deal with a submission of Mr. Subbaiah, learned counsel for the petitioner, urging me to straightaway hold the 12th respondent to be still a government servant on the ground that the relevant allegations made by the petitioner in the petition had remained uncontroverted. I am afraid it is not possible to accept this proposition, particularly in an election matter where an election conducted at great cost, both in terms of money and labour, is at stake. I am afraid it is not possible to accept this proposition, particularly in an election matter where an election conducted at great cost, both in terms of money and labour, is at stake. It will be appropriate in these cases to forsake the Rule of non-traverse and order any party to directly prove the allegations made in the election petition, since a question of public policy is involved for ultimately it is a question of interposing a decision by the court against the poll mandate expressed by popular will at an election. The court, should, therefore, be a little more cautious and a little more reticent in countermanding a poll, relying on mere technicalities of the law. Taese observations i had to make because of the tight stand taken by the parties depending upon the technical law of pleadings and the abstract doctrine of burden of proof, in order to emphasise the salutary Rule that everybody must assist the court in ascertaining the truth and not simply counsel the court to administer Justice on hard-core technicalities that may quite often result in truth itself becoming a casualty. ( 15 ) ISSUE point No. 2:- this is the most crucialissue resting as it does on the question as to whether the results of the election have been materially affected or altered by the improper acceptance of the nomination paper of a disqualified candidate viz. The 12th respondent. I have already referred to the figures representing the total number of votes polled by the petitioner, the 8th respondent and the 12th respondent. To reiterate, they are: petitioner = 23,330, 8th respondent = 24,922 and 12th respondent = 4480. Although the petitioner appears to have run the successful candidate somewhat closely because the difference is only 1,592 votes, nonetheless his defeat is clearly decisive. The question now is whether the results of the poll itself had been materially affected because the 12th respondent's nomination paper which in the circumstances must be held to be certainly invalid had been improperly accepted. This question inturn depends on the fact situation as to how far it could have tilted the results and what would have been the position had respondent-12 not contested the election at all or if his nomination paper had been rejected by the returning officer at the initial stage itself resulting in respondent-12 being put out of action at the start itself. The question, as it is, is very speculative, for one does not know nor is there any scientific way to ascertain as to whom the votes polled by respondent-12 would have gone in his absence. Both sides, the petitioner as well as respondent-8, claim they would have got it and the petitioner is more vociferous for he contends that he represents a party that had always been the saviour of the downtrodden people like the s. cs. And s. ts. In his evidence he asserted that the bj. p. on whose behalf the 8th respondent contested and won the election, had always been known to be a non-secular organisation whom the minorities, the economically backward and more so the members of S. C. /s. t. communities never looked upon with favour. But in the cross-examination he had to admit that the jan sangh party which is the progenitor of the present day b. j. p. had won the 1970 elections in bidar and that the bj. p. bad improved its position in the 9th lok sabha, since dissolved, climbing from a mere single digit figure to 88. I do not thick i should be very much bothered about these facts and figures and nor should i concern myself with the slogans, tenets or doctrines of either the cong - i or the bj. p. the situation herein is somewhat in a flux and indicates that any decision on this aspect would be in the nature of hazarding a guess. But, there is, however, no evidence to show that the 4,000 and odd votes polled by respondent-12 were all cast by harijan voters and that no portion of those votes had been cast by any other Section of the society. Atleast on this aspect of the matter there could have been some evidence because it is easy to ascertain the polling booths from which the votes polled by respondent-12 had in main come. Evidence could have been lead to show that those poll booths were located in a predominantly S. C. and st. Areas. The fact that respondent-12 belonged to S. C. and being an educated and enlightened young man as even the sparse evidence on record goes to show, it may not be as contended by the petitioner that he had secured all his votes only from the harijans. That submission should be discarded purely as a wild conjecture. Areas. The fact that respondent-12 belonged to S. C. and being an educated and enlightened young man as even the sparse evidence on record goes to show, it may not be as contended by the petitioner that he had secured all his votes only from the harijans. That submission should be discarded purely as a wild conjecture. What is more there was yet another harijan candidate in the fray. He is respondent-12, shambuling. He had polled 2,588 votes as could be seen from ex. P. 2. Adverting to this aspect the petitioner state in his cross-examination as :"apart from respondent-12, respondent14 shambuling also belonged to S. C. (the witness volunteers that respondent-14 belonged to beda jangama caste and therefore not a real S. C.)"from the above it becomes clear that respondent-14 also was a member of S. C. notwithstanding the reservations expressed by the petitioner on this score that beda jangamas are not s. cs. Whether he was a real S. C. or pseudo S. C. the fact remains that he was a candidate in the fray and polled 2,588 votes. In this situation it is not easy to predict the end result of the election imagining a contest even in the absence of respondent-12. The possibilities 2 votes polled by respondent-12 may have been diverted to any of the other candidates in the fray cannot be lost sight of. There is no way one could say with reasonable'amount of certainity that such and such a candidate could have secured some of the votes polled by respondent-12. In such a piquant situation, it would be an act of extreme speculation to hold that if only respondent-12 had not contested the elections or had been disqualified at the outset, as it should have been done, the votes secured by him would have gone to respondent-14 or to respondent-8 or to anybody else. In such circumstances whether the petitioner would have triumphed over the 8th respondent is difficult to conceive of as a post-poll factor, in the absence of contest by respondent-12 at the polls. Mr. Subbaiah relied (sic) on a decision of the Supreme Court in AIR 1984sc \46,chhedi ram v jhilmit ram. In such circumstances whether the petitioner would have triumphed over the 8th respondent is difficult to conceive of as a post-poll factor, in the absence of contest by respondent-12 at the polls. Mr. Subbaiah relied (sic) on a decision of the Supreme Court in AIR 1984sc \46,chhedi ram v jhilmit ram. That was a case in which the difference between the votes secured by the successful candidate and the runner-up was only 373 votes, whereas the votes secured by one moti ram, whose nomination was found to be improperly accepted, was 6,710. In that situation the Supreme Court held that the result of the election had been materially affected by the improper acceptance of moti ram's nomination paper. Inter alia, the Supreme Court also examined the scope of Section 100 (l) (d) of the act. Their lordships apart from identifying the difficulty in making an adjudication in that behalf had indicated some guidelines which would assist in making a satisfactory decision in such matters. Suffice it to refer to the head note which reads :"where the candidate whose nomination was improperly accepted and obtained 6,710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, and the number of votes, secured by the candidates whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate is was a little one-third, the result of the election might safely be said to have been affected. ""under Section 100 (l) (d) the election of a returned candidate shall be declared to be void if the high court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. True the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has beet improperly accepted was that of the successful candidate himself. True the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has beet improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes. The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate so as to upset the result of the election, but whether a sufficient number of voters would have done so would ordinarily remain a speculative possibility only. In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was improperly accepted is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected. But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and it would have to be concluded that the fact was proved. Under the Evidence Act, a fact is said to be proved when after considering the mattcrs before it, the court either believes it to exist or considers its existence as probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down impossible standards of proof and hold a fact as not proved. (emphasis supplied) ( 16 ) IF we apply the ratio of the said decision to the facts of his case, it becomes clear that this would be a case in which probabilities come all ok way and, therefore, the court could not stretch itself to hold that the election of the returned candidate had been materially affected by the improper acceptance of the nomination paper of somebody else. Herein the differene between the petitioner and the successful candidate was 1,592 votes whereas the vasted votes being the votes polled by respondent-12. Was 4,498. It means the votes secured by the 12th respondent was less than 3 times. Juxtaposed to the votes secured by the successful candidate the votes secured by respondent-12 was less than 5%. Surely to say in such a case that all these votes or a substantial portion thereof would have been garnered by the petitioner so as to close the difference between the winner and the runner-up to make him the event of victor would be mere speculation. Surely to say in such a case that all these votes or a substantial portion thereof would have been garnered by the petitioner so as to close the difference between the winner and the runner-up to make him the event of victor would be mere speculation. On the other hand as pointed out by the Supreme Court in the decision referred to (supra), having regard to the fact situation and the probabilities, it would be more appropriate to hold that it was not proved that the result of the returned candidate was materially affected, as enjoined by Section 100 (d) of the act by the improper acceptance of the nomination paper of the 12th respondent. ( 17 ) POINT No. 3 :- regard being had to the finding on issue No. 2 the order to be made in this election petition is that it fails and hence dismissed but without any order as to costs for this is a case in which the successful candidate did not even enter the witness box and as it must become clear from the foregoing narrative he has neither been taxed nor taxed himself at all to strive for maintaining before court the success he had attained in the elections. --- *** --- .