JUDGMENT : (Umesh A. Trivedi, J.) [1] This Petition, under Articles 226 and 227 of the Constitution of India, is filed by the petitioner herein, who was respondent in the Election Petition No.1 of 2022, challenging the decision dated 06.02.2023 rendered by Principal Civil Judge, Lakhtar, whereby he allowed the same directing to cancel two votes cast by Manharsinh Nagubha Rana, Voter No.40 of Ward No.4 and Khumansinh Nagubha Zala, Voter No.64 of Ward No.6, on the ground that though they were issued postal ballot papers and in view of Rule 25 of the Gujarat Panchayat Election Rules 1994 (for short “the Rules”), they were prohibited to vote in any other manner except postal ballot, they have cast their vote at the polling station and thereafter cancelling those votes as identified by counterfoil Nos.00294 and 00311, votes received through postal ballot as also found from the ballot boxes, recounted and thereafter result be declared. [2] The petitioner is the original respondent who was declared elected Sarpanch of Modhvana Gram Panchayat by the Returning Officer, as on counting of votes, both the candidates i.e. petitioner as also respondent herein, found to have obtained equal votes, the Returning Officer declared elected candidate by lot, as provided under Rule 63 of “the Rules” and declared petitioner as elected Sarpanch of Modhvana Gram Panchayat. [3] However, respondent herein – Harpalsinh Ghanshyamsinh Rana challenged the validity of election of Modhvana Gram Panchayat in respect of Sarpanch is concerned by filing aforesaid Election Petition in the Court of Principal Civil Judge, Lakhtar on various grounds including illegality committed during the course of election as also corrupt practice employed by the petitioner as also other grounds, as mentioned in the Election petition, tendered by the respondent herein before the competent Court. After adducing the evidence before the Court by both the sides and producing and proving the documents on record, the learned Judge, by his impugned judgment and order, directed cancellation of two votes cast by two persons, referred to hereinabove, at a polling station, though they were to cast their vote through postal ballot only and by no other means permitted to cast their vote at the polling station and directed counting of votes after cancellation of two votes in accordance with “the Rules” framed therefore and declare result thereof afresh. [4] We have heard Mr. K.R.Dave, learned advocate appearing for the petitioner as also Mr. [4] We have heard Mr. K.R.Dave, learned advocate appearing for the petitioner as also Mr. A.B.Gateshaniya, learned advocate appearing for the respondent herein. [5] Mr. Dave, learned advocate for the petitioner submitted that even if it is presumed that those two voters were issued postal ballot, as concluded by the learned Judge after adducing evidence that they have not cast their vote twice, the election cannot be interfered with by the Court as the petitioner is declared elected in accordance with law. He has further submitted that as such, those two persons have not received postal ballots for the purpose of casting their vote, and therefore, even if they have been permitted to cast their vote at the polling station, there is no irregularity or illegality committed so as to necessitate cancelling the votes cast by them. He has further submitted that so far as the issue of corrupt practice employed by the petitioner, as alleged, found to be not proved by the respondent herein, and therefore, even if the Returning Officer permitted those two persons to cast their vote at the polling station, it cannot be termed as corrupt practice so as to declare the election invalid on that ground. He has further submitted that identifying the votes cast by aforesaid two persons by serial number, as done by the learned Judge, would amount to not maintaining secrecy of voting, as identified votes exposed for the purpose of cancellation, and therefore, the exercise undertaken by the learned Judge is erroneous and in breach of right of the voter at the election. [5.1] He has relied on a decision in the case of Vadivelu Versus Sundaram and Ors. reported in (2000) 8 SCC 355 , more particularly para – 11 thereof, wherein another decision of a Supreme Court is referred and para – 13 thereof is quoted for the proposition that justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. He has relied on a decision in the case of Mayurkumar Shivrambhai Vasava Vs. Bipinbhai Champakbhai Vasava & Ors. rendered by the coordinate Bench of this Court in Special Civil Application No.17022 of 2022 dated 01.09.2022, wherein very precedent, referred to hereinabove, is referred to. He has relied on a decision in the case of Mayurkumar Shivrambhai Vasava Vs. Bipinbhai Champakbhai Vasava & Ors. rendered by the coordinate Bench of this Court in Special Civil Application No.17022 of 2022 dated 01.09.2022, wherein very precedent, referred to hereinabove, is referred to. In para – 7 thereof, in respect of secrecy of ballot considered as sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of irregularity and illegality in counting. On the aforesaid arguments and the precedents relied on, Mr. K.R.Dave, learned advocate for the petitioner submitted that the petition be allowed and impugned judgment and order passed by the learned Judge be quashed and set aside. [6] As against that, Mr. A.B.Gateshaniya, learned advocate for the respondent submitted that since aforesaid referred two voters entitled to cast their vote through postal ballot as they were on election duty on the date of election of the Sarpanch of Modhvana Gram Panchayat, even if they have not been issued postal ballot, received postal ballot or cast their vote through postal ballot, they cannot be permitted to cast their vote in any other mode i.e. at the polling station, in view of Rule 25 of “the Rules”. He has further submitted that by filing election petition that very fact was specifically pleaded even quoting Rule 25(2) of “the Rules”, the fact remains that in view of document Exhibit -25 produced and proved, whereby it is evident that aforesaid two voters have applied for receiving postal ballot papers by way of application, as mentioned by the Election Officer of Modhvana Gram Panchayat, which is at page 104 of the compilation, in no case they would have been permitted to cast their vote at the polling station by the Election Officer / Returning Officer. The very fact that those two voters, referred to hereinabove, applied for postal ballot and they were assigned election duty as is clear from Exhibit -30, which is the information supplied under the Right to Information Act, that Khumansinh Nagubha Zala was on the date of election i.e. 19.12.2021 as a part of Gram Rakshak Dal allotted election duty at Village:- Vana-2, near S.T.Stand and Manharsinh Nagubha Rana allotted election duty as Member of Gram Rakshak Dal at Vana-3 near S.T.Stand, which is not disputed at all, and therefore, they are prohibited to cast their vote at the polling station in view of Rule 25(2) of “the Rules”. Furthermore, learned advocate for the respondent submitted that those two voters were related to the petitioner herein, maybe in the 2nd or 3rd generation but fact remains that as ascertained by respondent No.2 herein in his application and the evidence that they were brought to the polling station by the petitioner to cast their vote in the election of Modhvana Gram Panchayat. [7] Not only that, according to submission of learned advocate for respondent, corrupt practice was employed by the petitioner herein to bring the voters to the polling station by providing or procuring vehicle, which is specifically barred under “the Rules” to be employed, and therefore also, the election is required to be held invalid whereby petitioner declared elected Sarpanch of Modhvana Gram Panchayat. [8] On the aforesaid submissions, he has submitted that petition sans merit and therefore, it is required to be rejected and notice is required to be discharged and ad interim relief be vacated. [9] Having heard the learned advocates for the appearing parties and considering the documents annexed with the petition, impugned order and the documents which have been produced and proved on behalf of the parties, for determination of issue raised in this petition quoting Rule 25 of “the Rules” would be advantageous. [10] Rule 25 of “the Rules” reads thus: “25. Person entitled to vote by post.- (1) Save as otherwise provided, all persons voting at an election shall do so in person at the polling station provided for them. (2) The following persons shall be entitled to vote by post and in no other manner- (i) service voters and their spouses, if staying with them; (ii) electors subjected to preventive detenting under any law for the time being in force. (2) The following persons shall be entitled to vote by post and in no other manner- (i) service voters and their spouses, if staying with them; (ii) electors subjected to preventive detenting under any law for the time being in force. (iii) voters on election duty. EXPLANATION.- “Service Voter” means a voter who is- (a) a member of the armed forces of the Union; or (b) a member of a force to which the provisions of the Army Act, 1950 (46 of 1950) have been made applicable whether with or without modifications or (c) a member of an armed police force of a state, who is serving outside that State; or (d) a person who is employed under the Government of India, in a post outside India.” [11] Before examining “the Rules”, in the context of determining the law point, facts pleaded and proved in this case are required to be considered. [12] Manharsinh Nagubha Rana is shown at serial No.40 in the voter-list for Ward No.4 and Khumansinh Nagubha Zala is shown at serial No.64 in the voter-list for Ward No.6 in the list for election of the Sarpanch as well as Members of Modhvana Gram Panchayat in an election held on 19.12.2021. The counting of votes took place on 21.12.2021 at Model School, Lakhtar by the Election Officer of Modhvana Gram Panchayat for the purpose of Sarpanch. Initially, the counting of votes received through postal ballot came to be undertaken and thereafter, votes found from the ballot boxes came to be counted and a final outcome came to be recorded in Part – 1 and Part – 2 of a statement under Form No.27(A). Since both the candidates i.e. petitioner as also respondent herein got equal votes in the election of a Sarpanch of Modhvana Gram Panchayat, in view of Rule 62 of “the Rules”, Returning Officer determined to proceed and decide between those two candidates by lot as there were equal votes to both of them and the lot fell on petitioner, pursuant to which, he receives an additional vote and came to be declared elected by the Returning Officer. However, respondent herein who is defeated candidate for the post of Sarpanch of Modhvana Gram Panchayat, filed Election Petition before the competent Court under Section 31 of the Gujarat Panchayats Act,1993 (hereinafter referred to as “the Act”) challenging the same on the ground that despite two of the voters who were on election duty and asked for postal ballot through an application is proved vide document Exhibit -25, in view of Rule 25 of “the Rules”, they cannot vote at the polling station, the Returning Officer permitted them to cast their vote at the polling station, which has materially affected the result of the election of a Sarpanch of Modhvana Gram Panchayat. [13] By way of the aforesaid Election Petition, a further prayer was made that vote cast by them through ballot paper bearing serial number, and therefore, easily ascertainable and their votes found to be in breach of Rule 25 of “the Rules”, and therefore, it is required to be cancelled. It is further prayed in the Election Petition that those two voters cannot vote twice in the election of a Sarpanch. Over and above that, the aforesaid illegality alleged, it is further alleged that petitioner as a candidate of Sarpanch adopted corrupt practice in the election by bringing voters in a vehicle by him at the polling station, and therefore, it was requested to hold him disqualified to be elected as Sarpanch. As such, the charge of corrupt practice alleged against the petitioner has not been found favour with the learned Judge, and therefore, issue No.6 to that effect has come to be answered against the respondent – original election petitioner. [14] Considering Rule 25 of “the Rules” it is clear that normally all persons voting at an election shall do so in person at the polling station provided for them but service voters and their spouses, if staying with them, electors subjected to preventive detention under any law and voters on election duty shall be held entitled to vote by post and in no other manner. The explanation appended to Rule 25 of “the Rules” is in respect of service voters defined, and therefore, for the present purpose, the explanation is not useful. The explanation appended to Rule 25 of “the Rules” is in respect of service voters defined, and therefore, for the present purpose, the explanation is not useful. However, when “the Rules” provides specific prohibition in cases of voters enumerated in sub rule (2) of Rule 25 of “the Rules”, voting in election at the polling station, more particularly, when they had asked for postal ballot paper by applying to the Returning Officer, as proved vide Exhibit -25, aforesaid two voters were not entitled to cast their vote at the polling station except as provided under “the Rules” and Returning Officer should not have permitted to cast their vote at the polling station. Furthermore, there is no dispute that those two voters were on election duty and even otherwise it has been proved through Exhibit – 30 which is the information supplied pursuant to an application made by the respondent herein under the Right to Information Act, 2005 that on the date of election i.e. 19.12.2021, aforesaid two voters were on election duty who are public servant as they are part of Gram Rakshak Dal, at Village – Vana-2 near S.T.Stand and Vana-3 near S.T.Stand respectively. [15] Under Rule 27 of “the Rules”, the person employed on election duty has to send an application in form No.13 to the Returning Officer requesting for postal ballot paper to cast his vote at the election, which both the persons have prayed for as produced and proved vide document Exhibit -25, to which there is no dispute at all by the learned advocate for the petitioner also. However, sub rule (3) of Rule 27 of “the Rules” provides that if after issue of the election duty certificate to a voter on election duty, if such person ceases to be on election duty, he can be allowed to cast vote at any polling station of the electoral division other than the one in which but for the issue of such election duty certificate he would have been entitled to vote including the polling station where he was posted for duty. Therefore, it is clear that it is only in the case of a voter on election duty if he ceases to be on election duty and a request being made to the Returning Officer, such voters can be permitted to cast their vote at the polling station. Therefore, it is clear that it is only in the case of a voter on election duty if he ceases to be on election duty and a request being made to the Returning Officer, such voters can be permitted to cast their vote at the polling station. There is no evidence on record to the effect that aforesaid two voters ceased to be on a election duty on the day of election, and therefore, they were permitted to cast their vote at the polling station. It is not even the case of the declared elected candidate also that they cease to be on election duty on the date of election so as to enable them to cast their vote at the polling station. [16] The argument that the aforesaid two voters never received ballot papers, despite they had applied, as reflected from document Exhibit – 25, and therefore, since they have not cast their vote twice, there is nothing wrong if they were permitted to cast their vote at the polling station, cannot be accepted. As such, person who is on election duty cannot cast vote at the polling station dehors the Rule 25 of “the Rules” as they have been permitted to cast the vote by postal ballot alone and as per procedure prescribed under “the Rules” in no other manner. The reason for making such provision is also obvious that such person may be out of a polling station for duty at other places and it is practically impossible for him to even cast vote, leaving his election duty at the polling station, where he is a voter. At the same time, with a view to see that persons on election duty by coming to the polling station where they are voters, they may not influence, the Election Officer on election duty at the polling station so as to maintain the dignity and the secrecy of voting. However, despite application made for postal ballot paper for casting vote, if one has received it or not, is inconsequential as the persons who have been categorized in sub rule (2) of Rule 25 i.e. service voters and their spouses, electors subjected to preventive detention and voters on election duty shall cast their vote through post and in no other manner. Thus, it is clear that except as provided in sub rule (3) of Rule 27, no person on election duty, even if one ceases to be on election duty, can cast his vote at the polling station. However, in this case it is not even defence of the petitioner that aforesaid two voters ceased to be on election duty, and therefore, they were permitted to cast their vote at the polling station. Therefore, in view of clear language of Rule 25 of “the Rules”, receipt of postal ballot paper by such person is inconsequential once person has applied for postal ballot paper who is on election duty. Even the Returning Officer is obliged to see that persons who are to cast their vote by post may not exercise their franchise coming to polling station except in the case of sub rule (3) of Rule 27 of “the Rules” as otherwise it is the duty of the Returning Officer to ensure that voters enumerated in sub rule (2) of Rule 25 of “the Rules” is not allowed to vote at a polling station. Even if where a postal ballot paper and other papers, if undelivered, it is incumbent upon the Returning Officer to reissue by post, under certificate of posting or deliver them or cause them to be delivered to the voter personally on a request being made by him. Therefore, if a voter who has to cast his vote through postal ballot paper has not received the ballot paper, it is his duty to request the Returning Officer for reissue of the same. Therefore, a full proof mechanism is made under “the Rules” and it is required to be followed by one and all. Therefore, non receipt of postal ballot paper, in view of clear language of sub rule (2) of Rule 25 of the Rules, pales into insignificance, so as to permit voter on election duty to cast vote at polling station. [17] Another submission that vote of aforesaid two persons is identified and ordered to be cancelled, secrecy of the election is jeopardized, and therefore, it is beyond the powers of Court to cancel those votes and direct counting of the votes thereafter, and therefore, impugned order requires to be quashed and set aside, is again without any substance. [17] Another submission that vote of aforesaid two persons is identified and ordered to be cancelled, secrecy of the election is jeopardized, and therefore, it is beyond the powers of Court to cancel those votes and direct counting of the votes thereafter, and therefore, impugned order requires to be quashed and set aside, is again without any substance. As such, as coming out from evidence and record, counterfoil numbers of ballot papers establishes that they have voted at the polling station and nothing else. Even vote cast by any voter is not possible to be identified once it is dropped in ballot box. Therefore, there appears, no breach of secrecy of vote as asserted. However, as recorded in the impugned judgment, based on opinion of Presiding Officer and Polling Officer, Modhvana Gram Panchayat Election, Exhibit-47, postal ballot papers bearing counterfoil number 00294 and 00311 found from ballot boxes at the polling station. Thus, it is clear that votes which were supposed to be received in a sealed envelope as prescribed under “the Rules” separately in case of aforesaid two voters are not received in that manner but their ballot papers were found from the ballot boxes kept at the polling station. If once vote cast by the aforesaid two persons can be easily identifiable as it is an election of Sarpanch through ballot paper, those votes can be identified easily and cancelled by the competent Court. The cancelled votes, after identifying the same, is not required to be shown to anyone as it is in breach of Rule 25(2) of “the Rules”, and therefore, there is no question of breach of any secrecy as argued by the learned advocate for the petitioner. If at all, those cancelled votes are taken out for the purpose of counting, the Returning Officer was supposed to count the votes thereafter as directed by the learned Judge. [18] Reliance placed on the decision in the case of Vadivelu (Supra), more particularly para-11 thereof which also refers earlier Supreme Court decision in the case of P.K.K. Shamsudeen vs K.A.M. Mappillai Mohindeen & Ors. [ 1989 SCC 526 ] and para -13 thereof which is quoted, is also misplaced as even the Supreme Court has held that preservation of the secrecy of the ballot is sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. [ 1989 SCC 526 ] and para -13 thereof which is quoted, is also misplaced as even the Supreme Court has held that preservation of the secrecy of the ballot is sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. Keeping in mind the aforesaid principle, in the present case, the persons who were not to cast their vote at the polling station except as provided under “the Rules”, who were on election duty and they were supposed to cast their vote through postal ballot and in no other manner as provided under Rule 25(2) of “the Rules”, even if secrecy is not being maintained, much more than prima facie genuine need has arisen to identify those votes and taken those votes out of the consideration for the purpose of counting. Therefore, the reliance placed on the said decision is of no help to the petitioner. Another decision which is relied on in the case of Mayurkumar Shivrambhai Vasava (supra), is also not of any help to him as again reference of the judgment in the case of Vadivelu (Supra) is made in this decision and that is the purpose for citing the same, otherwise the said precedent is pertaining to recounting of votes whether can be ordered without conducting an inquiry or not, and therefore, the said decision is also not helpful to the petitioner. [19] However, in view of Rule 28(1) of “the Rules”, Returning Officer is obliged to ensure that voter, who has requested for postal ballot as per his entitlement in view of Rule 25, is not allowed to vote at a polling station. Here Returning Officer has failed to ensure that though those voters have not voted twice, fact remains that, they have applied for postal ballot as they were on election duty on the day of poll, not entitled to cast their vote at the polling station, they have cast their vote at polling station. [20] Thus, we find no substance in any of the submissions made by the learned advocate for the petitioner, and therefore, we see no reason to interfere with well reasoned judgment and order passed by the learned Judge allowing the Election Petition vide impugned order dated 06.02.2023 passed by Principal Civil Judge in Election Petition being No.1 of of 2022. [20] Thus, we find no substance in any of the submissions made by the learned advocate for the petitioner, and therefore, we see no reason to interfere with well reasoned judgment and order passed by the learned Judge allowing the Election Petition vide impugned order dated 06.02.2023 passed by Principal Civil Judge in Election Petition being No.1 of of 2022. Hence, there is no option but to reject the petition which is hereby, accordingly, rejected. [21] Mr. K.R.Dave, learned advocate for the petitioner, at this stage, requests for extension of interim relief which was granted in terms of Para 28(c) while issuing notice vide order dated 03.03.2023 passed by this Court. [22] Mr. A.B.Gateshaniya, learned advocate for the respondent herein submitted that the term of the elected Sarpanch is for 5 years and nearly 2 years are already over and the petitioner at the helms of affairs as Sarpanch who is not entitled to remain Sarpanch in view of the impugned order passed by the Tribunal and confirmed by this Court, the stay may not be extended any further. [23] Having heard the learned advocates for the appearing parties and keeping in mind the fact that after passing of an order by Election Tribunal, it was stayed with a view to see that petitioner elected Sarpanch exercises his right to challenge the same, which he has done and this Court has also further extended the said relief which is operating till today, keeping in mind the remainder of term, we deem it fit to stay this order for a further period up to 15th January, 2024. [24] In view of dismissal of main petition, connected Civil Application stands dismissed accordingly.