Dr. G. Jayachandran, J.

1. Heard Mr. A.E. Ravichandran, Learned Counsel for the Election Petitioner and Mr. T.V. Ramanujam, Learned Senior Counsel for the 1st respondent. For the respondents 2 to 14, there was no representation. Hence, called absent set ex parte. The Returning Officer, Radhapuram Constituency was initially arrayed as 15th respondent. Later struck off vide order dated 30.07.2019 of this Court passed in O.A. No. 1185 of 2018.

2. This Election Petition is filed in respect of election held for Radhapuram Assembly Constituency, Tamil Nadu, on 16.05.2016.' The Petition is filed under sections 80, 81, 82, 83, 84, 98(c), 100(d)(iii), 100(d)(iv), 101, 64 of the Representation of the People Act, 1951, read with Rule 24 (2), 54-A, 63, 66-A of the Conduct of Elections Rules, 1961, read with 2 of the Rules of the Madras High Court Election Petition, 1967, by Mr. M. Appavu, the candidate who lost the election by margin of 49 votes to the 1st respondent.

3. In nutshell, the election of the Returned candidate is challenged on the following grounds:-

i). As per Rule 54-A of the Conduct of Elections Rules, 1961, the Returning Officer of the Constituency should count the postal ballot papers first. In this case, the Returning Officer commenced counting of postal ballots on 19.05.2016 at 8.00 am, but unilaterally deferred counting the votes received through post, on receiving objections from either side. Resumed the counting of postal ballots at 3.00 p.m, after completion of counting the Electronic Voting Machines (EVM) votes.

ii). More than 200 postal votes were declared invalid without assigning reasons. The request to revivify the postal ballots after clarifying the ground on which the postal ballot papers were rejected not heeded by the Returning Officer and the Election Observer.

iii). The attitude of the Returning Officer and the Observer changed, after knowing the news about the overall leading of the party to which the 1st respondent belong. They not only refused to recount the postal ballots rejected as invalid, they added 200 inadmissible and invalid votes in favour of the 1st respondent against the objections raised.

iv). The petitioner and his Chief Agent Mr. Adhi Paramasivam, sat in Dharna peacefully inside the counting hall protesting against the unfair practice and procedure adopted by the Returning Officers. Through Para Military Force, the Petitioner and his Chief Agent were forcibly removed from the counting hall.

v). Till 18th round, the petitioner was leading by a margin of 1,321 votes. Taking advantage of the situation, the 19th, 20th and 21st rounds of the EVM counting was done in haste and improperly. The results for these three rounds were announced simultaneously, after manipulating the votes in favour of the 1st respondent. In the absence of the petitioner and his agent votes were inflated in favour of the 1st respondent by the Returning Officer. 348 votes in excess was added in favour of the 1st respondent as found in the table below:

vi). For the representation given by the petitioner on 19.05.2016 regarding rejection of more than 200 postal ballots, the Returning Officer gave reply through registered post on 20.05.2016 stating the declaration of Form -13 A, were attested by the Middle School Headmaster therefore, they are invalid. This reason is not proper or legal. As per the Rules, the Form 13-A has to be attested by a Gazetted Officer. In Tamil Nadu, the Government Employees are classified into 4 groups. A and B Group Officers are empowered to attest testimonies, certificates etc. The Middle School Headmasters drawing, Grade Pay of Rs. 4,700/- are Group B Officers. Therefore, they are competent to attest documents. The reason for rejecting the votes accompanied by Form 13-A attested by Middle school Headmaster is therefore not legal. The opinion of District Elementary Education Officer (D.E.E.O) which the Returning Officer rely upon is not in consonance to the Rules. The Returning Officer, ought not to have sought for clarification from a person incompetent to clarify the doubt. If he had any doubt about the competency of the Attesting Officer, he should have sought clarification from Election Commission.

vii). If the victory margin is less than the total number of postal ballots received, then, there should be a mandatory re-verification of all postal ballots, as per the Handbook for Returning Officers. In this case, the Returning Officer failed to follow the mandate in spite of request made by the petitioner.

4. The 1st respondent filed Original Applications Nos. 1035 & 1036 of 2016, to reject certain paragraphs of the petition and to reject the petition. Those applications were heard and dismissed by this court on 19.12.2016 holding that the Election Petition contains the concise statement of the material facts on which the petitioner relies and those material facts also disclosed in the cause of action for the ground specified in Section 100 of the Representation of Peoples Act. Against the dismissal of his applications, he preferred SLP(C). Nos. 11777-11778 of 2017, before the Hon'ble Supreme Court. On 20.02.2018, the said Special Leave to Appeal was dismissed as withdrawn.

5. Thereafter, the 1st respondent, has filed his counter statement, wherein, he has denied all the averments in the Election Petition specifically. In response to the issue of attestation, the 1st respondent has stated that, Rule-24 of the Conduct of Election Rules, 1961, says the attestation should be done in a particular manner. The voter, who is on election duty, has to get the attestation in Form 13-A only from a Gazetted Officer or the Presiding Officer of the Polling Station at which, he is on election duty. There cannot be en masse attestation. Para-10(e) of the letter dated 07.03.2014 of the Election Commission issued regarding guidelines for issuing ballot papers, states that for the purpose of attestation in FORM-13 A, atleast one Gazetted Officer shall be put on duty by the District Election Officer at each facilitation centre. That Gazetted Officer shall attest the declaration based on the identification of the voter through his identity documents.

6. In this case, about 200 postal ballots which were attested by incompetent persons namely Mr. Murugesan and Mr. Jayaseelan (both are Middle school Headmasters) were rightly rejected. They are not Gazetted Officers to attest Form-13 A. Their status has been clarified by the District Elementary Education Officer. Procedure of mass attestation unknown in law and cannot be called as valid attestation. Rule - 24 of the Conduct of Election Rules, 1961, uses two expressions for getting attestation in Form-13A declaration. 1. 'Gazetted Officer' 2. 'the Presiding Office of the Polling Station at which, the voter is on election duty'. The attestations of Form-13 A by two persons Mr. Murugesan and Mr. Jayaseelan, are not valid since, they are neither Gazetted Officers nor Presiding Officer of any polling station.

7. The voters through post has to get their Form-13 A attested from the Officers at facility centres created by the Election Commission or get attestation from the polling officer of their polling station at which the Elector is on election duty. The Postal ballots rejected were not attested by any one of the such persons. The G.O's referred in the petition to show Middle School Headmasters are competent to attest documents, does not apply for the attesting Form-13 A. Those Rules are related to attesting testimonies and certificates of students joining higher studies. Later, the Government thought fit that self attestation of the candidate is sufficient and dispensed with the procedure of insisting attestation of certificates by Group-A and Group-B Officers. Hence, the Government Order referred has been withdrawn later and no way helpful to the case of the petitioner. When the Statute says the declaration must be attested by a Gazetted Officer, no different interpretation can be given to the statute.

8. The Counting on 19.05.2016 commenced as per Rule-54 A of the Conduct of Election Rules, 1961. As per chapter 15.15.3.1 of the Hand Book for Returning Officer, the counting of votes started with counting of postal ballot papers. Counting of postal ballot proceeded without any break, except during lunch break. In view of the unruly behaviour of the petitioner's agents, the counting of postal ballot progressed slowly. The unruly behaviour of the petitioner and his agent inside the counting hall has been video graphed. Because, the victory margin is narrow. The petitioner has raised all sort of objection without any basis and truth.

9. After completion of the counting of votes polled, both in EVM's and post, the Election Officer have re-verified the postal ballot papers since, the margin between the petitioner and the 1st respondent was less than the total postal ballot polled. After re-verification, the results were announced. The Election Petition making bald and wield allegations against the counting staff is not maintainable. The Election Petition does not disclose material to show, what was objected and who made the objection and when the objection was made. The allegation against the Returning Officer about change in his attitude after hearing the Political party of the 1st respondent, leading, in majority of the Constituency in the general election is uncharitable, irresponsible and per se defamatory.

10. The counting process on 19.05.2016 went in accordance to Rules. The entire process was video graphed and the unruly behaviour of the petitioner and others who barged into the counting hall claiming to be media persons raising slogan and causing ruckus inside the counting hall are all recorded. Since the margin is thin, the Election Petitioner make find fault with all the Election officials who were discharging duties under the provision of Representation of Peoples Act.

11. The petitioner did not give any object/complaint/representation to the Returning Officer, on 19.05.2016. The allegation that counting of round 19th and thereafter, done in haste is denied. The results of each round including rounds 19th, 20th and 21st were announced, then and there. No inflation of votes made in those rounds in favour of the 1st respondent as alleged by the petitioner. Since the margin was narrow, the Election petitioner brought outsiders inside the counting hall at about 3.00 p.m and deliberately created confusion. Those unauthorised persons 'were removed by the police.

12. Emphasising that, no illegality in rejecting the postal ballots attested by Middle School Head Masters and no irregularity in counting of EVM's during the 19th, 20th and 21st rounds. The 1st respondent has stated that the election petition is not maintainable.

13. This Court, after considering the pleadings have formulated the following issues oh 18.04.2018:-

(i). Whether the election of the 1st respondent is void within the meaning of Section 100 (1)(d)(ii) and 100(1)(d)(iv) of the Representation of the People Act, 1951 and liable to set aside under the said provisions

(ii). Whether the election petitioner is entitled to the relief of recounting the votes recorded in electronic voting machine recovered under 19th, 20th and 21st rounds of counting.

(iii). Whether the election petitioner is entitled to the relief of recounting of all the postal ballots including" the postal ballots rejected as invalid.

(iv). Whether the election petitioner is entitled for further declaration that he has been duly elected to the Tamil Nadu Assembly Constituency from No. 228, Radhapuram Assembly Constituency held on 16.05.2016.

(v). To what other relief the petitioner is entitled to

14. The following additional issues were framed on 05.12.2018:-

(i) Whether the postal Ballot papers were properly and validly attested by the respective Gazetted Officer or Presiding Officer of the Polling Station wherein the respective voters were stationed/on duty

(ii). Whether there was any en masse attestation of all the ballot votes, by only a few Officers

(iii) Whether postal ballot papers were properly counted by the Returning Officer

15. The trial commenced with examination of the Election Petitioner/M. Appavu as P.W-1. 17 documents were marked as Ex. P.1 to Ex. P.17. Following PW-1/M. Appavu, his Counting Agent Mr. Adhi Parameswaran (P.W-2), Mr. R. Paul Pandi, (C.W-1) the Official who is presently in-charge of election documents and Thiru. Muruganandam (C.W. 2), who served as Returning Officer were examined. Exhibits C-1 to C-6 were marked.

16. This Election Petition is pegged on two points:-

(i). The counting of postal ballots were not done in accordance to procedure mandated under Rule-24 and Rule 54-A of, the Conduct of Election Rules 1961.

(ii). The counting of EVM for the 19th, 20th and 21st rounds of counting done violating the procedures laid in the statutes as well as Handbook for Returning Officers.

17. Regarding the challenge to rejection of postal ballots, the material facts relied by the petitioner to substantiate his claim and sustain this election dispute are the reasons stated by the Returning Officer for rejecting 203 postal ballots as invalid in Ex. P-7 and the letter of District Elementary Education Officer (D.E.E.O) annexed to it. The District Elementary Education Officer (D.E.E.O) is not the authority competent to say who are Gazetted Officers and who are not Gazetted Officers. Even assuming, he is competent, his opinion is contrary to the G.O. Ms 71 of Personnel and Administrative Reforms Department, dated 05.02.1996.

18. As far as, the lapse and violation during the 19th, 20th and 21st rounds of EVM counting, the petitioner harp on the facts that, the Returning Officer is duty bound to record the counting process through video. Though he admit the process of counting was recorded, he could not produce the CD. He had deposed that, he could not give a copy of the CD to the candidates, since it got struck. The master copy also when sought to be produced under subpoena, CW-1/R. Paul Pandi, has stated that the hard disk got corrupted. It was sent to technicians at Bangaluru but did not got it back.

19. Form 17-C, which is the contemporaneous documents prepared during counting of each round will contain the votes of each candidates secured booth wise, in Part-II. Whereas, Ex. C-1 to C-3, which is Form 17-C prepared enduring polling and counting only Part-I is filled, Part-II left unfilled. The Returning Officer, who is supposed to sign in Part-II has not filled the details required in Part-II and signed. In his evidence, C.W-2/P. Muruganantham, has deposed that Part-II of Form 17-C was filled up separated and kept in a different cover. Hence, that cover was unsealed and perused. This Court, found the replica of Part-II filled and kept separately, not signed by the Returning Officer in the column meant for his signature.

20. The Learned Senior Counsel appearing for the 1st respondent submitted that, when the provision of Representative Act and Rules framed thereunder, specifically say that, Form 13-A has to be attested by a Gazetted Officer, the provision of the cannot be subjected to interpretation. Unless the Election Commission has notified otherwise, the person attesting the Form 13-A must be any one of the Officer mentioned in the Rule. The Government Orders issued for different purpose cannot be taken for consideration to Election laws. When objections raised by the parties regarding the "validity of the postal ballots carrying declaration attested by Middle School Headmaster, the Returning Officer has promptly got clarification from the District Elementary Educational Officer, who is the Departmental Head of the Middle Schools. Therefore, no fault could be found in the action of the Returning Officer, nor the returned candidate be held responsible for it. In fact, in those covers, nobody know for whom the voters have cast his/her vote. The cover containing (the ballot not opened. Therefore, no malice or discrimination could be attributed to the conduct of the Returning officer or the Observer.

21. In respect of the submission made regarding Form 17-C, the Learned Senior Counsel for the 1st respondent would state that, the replica of Part-II duly filled kept in separate cover and marked as Exs. C-4 to C-6. Not appending it to Ex. C-1 to Ex. C-3 may be a lapse on the part of the Returning Officer, but not a violation of Rules. No prejudice to anybody caused due to that lapse. The substantial compliance of Rules which does not materially alters the result needs no interference.

Finding of the Court

22. By now, it is well settled legal preposition that the instructions contained in the Election laws are to be strictly construed. To the knowledge of this Court, the earliest judgment on this preposition was rendered in Jagan Nath v. Jaswant Singh AIR 1954 SC 64, wherein, it is stated that:-

"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action of law or a suit in equity but it is a purely statutory proceedings unknown to common law and court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with any petition seeking such interference must strictly conform to the requirement of law."
23. This Principle has been reiterated in Shri Banwari Dass v. Shri Sumer Chand and Others AIR 1974 SC 1032 [LQ/SC/1974/40] : (1974) 4 SCC 817 [LQ/SC/1974/40] : LNIND 1974 SC 40: Judgement rendered by Justices V.R. Krishna Iyer and R.S. Sarkaria, JJ) and the latest on this line is Sunil Kumar Kori and Another v. Gopal Das Kabra and Others AIR 2016 SC 4664 [LQ/SC/2016/1260] : (2016) 10 SCC 467 [LQ/SC/2016/1260] : LNIND 2016 SC 389 : (2016) 7 MLJ 363 [LQ/SC/2016/1260] : Judgement rendered by Justices Anil R. Dave and L. Nageshwara Rao, JJ)

24. So merely because, the margin is only 49 votes, recounting cannot be ordered unless the statutory requirements of Election law not strictly observed.

25. Before adverting to the facts, to find out whether statutory requirement of Election law observed or not, it is essential and imperative to extract the relevant Election laws, which are necessary to consider the rival submissions of the parties.

(i). The Representation of Peoples Act, 1951, reads as below:-

Section 100 (1) : Subject to the provisions of sub-section (2) if the 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

(b). that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;

or

(c). that any nomination has been improperly rejected; 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 or any nomination, or

ii). by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or

iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or

iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

(ii). Conduct of Election Rules, 1961, read as below:-

Rule 24: Recording of Vote:- (1) An elector who has received a postal ballot paper and desires to vote shall record his vote on the ballot paper in accordance with the directions contained in Part I of Form 13D and then enclose it in the cover in Form 13B.

(2) The elector shall sign the declaration in Form 13A in the presence of, and have the signature attested by, a stipendiary magistrate or such other officer specified below, as may be appropriate; to whom he is personally known or to whose satisfaction he has been identified-

(a) in the case of a service voter, such officer as may be appointed in this behalf by the Commanding Officer of the unit, ship or establishment in which the voter or her husband, as the case may be, is employed or such officer as may be appointed in this behalf by the diplomatic or consular representative of India in the country in which such voter is resident;

(b) in the case of a special voter, an officer not below the rank of a Deputy Secretary to Government;

(c) in the case of a voter on election duty, any gazetted officer [or the presiding officer of the polling station at which he is on election duty]

(d) in the case of an elector under preventive detention, the Superintendent of the Jail or the Commandant of the detention camp in which the elector is under detention; and

(e) in any other case, such officer as may be notified in this behalf by the Election Commission.

(iii). Rule-49 S Account of votes recorded, read as below:-

(1) The presiding officer shall at the close of the poll prepare an account of votes recorded in Form 17C and enclose it in a separate cover with the words 'Account of Votes Recorded' superscribed thereon.

(2) The presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in Form 17C after obtaining a receipt from the said polling agent therefore and shall attest it as a true copy.

(iv). Rule 54 A: Counting of votes received by post:-

(1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided.

(2) No cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such cover shall be counted.

(3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinise the declaration in Form 13A contained therein.

(4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained.

(5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief, description of its content.

(6) The returning officer shall then place all the declarations in Form 13A which he has found to be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and on which shall be recorded the particulars referred to in sub-rule (5).

(7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinise each ballot paper and decide the validity of the vote recorded thereon.

(8) A postal ballot paper shall be rejected-

[(a) if it bears any mark (other than the mark to record the vote) or writing by which the elector can be identified; or]

[(aa)] if no vote is recorded thereon; or

(b) if noted are given on it in favour of more candidates than one; or

(c) if it is a spurious ballot paper; or

(d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or

(e) if it is not returned in the cover sent along with it to the elector by the returning officer.

(9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given.

(10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more' than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.

(11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same.

(12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agent or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents

(v). Rule 56 C (2): Counting of votes reads as below:-

(1) After the returning officer is satisfied that a voting machine has in fact not been tampered with, he shall have the votes recorded therein counted by pressing the appropriate button marked "Result" provided in the control unit, whereby the total votes polled and votes polled by each candidate shall be displayed in respect of each such candidate on the display panel provided for the purpose in the unit.

(2) As the votes polled by each candidate are displayed on the control unit, the returning officer shall have,

(a) the number of such votes recorded separately in respect of each candidate in Part II on Form 17C;

(b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present; and

(c) corresponding entries made in a result sheet in Form 20 and the particulars so entered in the result sheet announced.

(Vi). Rule 63 Re-count of votes read as below:-

(1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same.

(2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to re-count the votes either wholly or in part stating the grounds on which the demands such re-count.

(3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.

(4) Every decision of the returning officer under sub-rule (3) shall be in writing and contain the reasons therefore.

(5) If the returning officer decides under sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall-

(a) do the re-counting in accordance with [rule 54A,] rule 56 or rule 56A, as the case may be;

(b) amend the result sheet in Form 20 to the extent necessary after such re-count;

and

(c) announce the amendments so made by

(6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a re-count shall be entertained thereafter.

Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2).

FORM 13-A
[See rule 23(1)(a)]
Declaration by Elector

Election to the*.............

(This side is to be used only when the elector signs the declaration himself)

I hereby declare that I am the elector to whom the postal ballot paper bearing serial number.............has been issued at the above election.

Date..................

Address.............

Signature of elector

Attestation of signature

The above has been signed in my presence by.............(elector) who** is personally known to me/has been identified to my satisfaction by........(identifier) who is personally known to me.

Signature of identifier, if any..........

Address................................

Signature of Attesting Officer

Designation.............................

Address................................

Date....................................

(This side is to be used when the elector cannot sign himself)

I hereby declare that I am the elector to whom the postal ballot paper bearing serial number...............has been issued at the above election.

Date...................

Signature of Attesting Officer on behalf of elector

Address of Elector......................
Certificate

I hereby certify that-

(1) the above named elector** is personally known to me/has been identified to my satisfaction by........(identifier) who is personally known to me.

(2). I am satisfied that the elector** is illiterate/suffers from..........(infirmity) and is unable to record his vote himself or sign his declaration;

(3). I was requested by him to mark the ballot paper and to sign the above declaration on his behalf and

(4). the ballot paper was marked and the declaration signed by me on his behalf in his presence and in accordance with his wishes.

Signature of identifier, if any........

Address..................

Signature of Attesting Officer............

Designation...............

Address...................

Date......................

*Here insert one of the following alternatives as may be appropriate:-

(1). House of the People from the..............constituency.

(2). Legislative Assembly from the.............constituency.

(3). Council of states by the elected members of the Legislative Assembly...............(state).

(4). Council of states by the members of the electoral college..........................(Union territory):

(5). Legislative Council by the members of the Legislative Assembly.

(6). Legislative Council from the............. constituency.

**Strike off the inappropriate alternative.

Hand book for Returning Officers:

15.14.1.9:- A CD containing the record of complete videography of counting process should be given by the Returning Officer to all candidates or their election agent free of cost after the counting process is over.

15.15.2.1:- Election Commission has permitted use of a facsimile (rubber stamp) for putting names of contesting candidates in Part - II of Form 17 C by the counting supervisors. The facsimile of contesting candidate names should be with candidate's number and name, in the same order as in ballot paper/Form 7 A. Furthermore, the entire facsimile should be in one block/stamp as in sample below. In case, the number of candidates is more than 20, then another block/stamp should be made for candidates from No. 21 onwards which would be stamped on the backside of the Form 17C. The stamping of name should be in the place provided for this purpose in Part - II of Form 17 C. In no case should the printed sheet be pasted in the space for Part -II.

15.15.5.1:- In case the victory margin is less than total number of postal ballots received then there should be a mandatory re-verification of all postal ballots. In the presence of Observer and the RO all the postal ballots rejected as invalid as well as the postal votes counted in favour of each and every candidate shall once again be verified and tallied. The Observer and the RO shall record the findings of revivification and satisfy themselves before finalizing the result. The entire proceeding should be video graphed without compromising the secrecy of ballot and the video-cassette/CD should be sealed in a separate envelope for future reference.

26. At this juncture, it is to be recorded that, the guidelines issued by the Election Commission to the Returning Officers are pursuant to the power conferred to the Election commission. Therefore, they bind the Returning Officers. They are part of election laws, (see Arikala Narasa Reddy v. Venkatara Ram Reddy Reddygari AIR 2014 SC 1290 [LQ/SC/2014/122] : (2014) 5 SCC 312 [LQ/SC/2014/122] :LNIND 2014 SC 82 and Uttamrao Shivdas Jankar v. Ranjitshing Viyaysinh Mohite-Patil AIR 2009 SC 2975 [LQ/SC/2009/1315] : (2009) 13 SCC 131 [LQ/SC/2009/1315] : LNIND 2009 SC 1318.

27. The Returning Officer, C.W. 2/P. Muruganantham, in his deposition has explained what happened on the day of counting when he started the counting of postal ballot. "The counting started at 8.00 am. Postal ballots were counted first. In the course of counting postal ballots, objection was raised by the agents of political parties regarding attestation made by Middle School Headmasters in Form 13-A kept in Cover-A. Since objection was raised, clarification was sought from the District Elementary Education Officer (D.E.E.O) To avoid waste of time, pending clarification, counting of EVM's started."

28. Therefore, the allegation of the petitioner that the counting of postal ballot not commenced first and the Returning Officer has violated Rule 54 A is not correct.

29. Regarding rejection of certain postal ballots, the explanation of the Returning Officer is as below:-

"Around 3.00 pm, I received clarification from D.E.E.O through FAX, wherein it is stated that the Middle School Headmasters are not Gazetted Officers. Thereafter, I resumed the counting of Postal ballots. The form 13-A attested by Middle School Headmasters were considered as invalid and therefore, the cover marked B containing postal ballots papers were not opened. As per the election hand book, Form 13-A accompanied with postal ballots should be attested by Gazetted Officer. In this election, I received 1508 postal votes out of which, 300 were found invalid for various reasons."
30. From the evidence of P.W-1, P.W-2 and C.W-2, there is no doubt in the mind of this Court that immediately, after commencement of counting postal ballots, the candidates and their representatives have objected regarding invalidating certain votes for want of proper attestation in Form - 13 A. The Returning Officer has stopped counting of postal ballots, sought clarification through District. Collector's Office. He got the clarification by 3.00 pm through FAX from D.E.E.O, that Middle School Headmasters are Non-gazetted Officers. Thereafter, the Returning Officer has proceeded with counting of Postal Ballots.

31. In this aspect, Ex. P-6 and Ex. P-7 (with annexures) are relevant' Exhibits to be referred. During the course of counting, the petitioner has given a letter to the Returning Officer in writing, alleging more than 200 postal votes attested by the Middle School Headmasters are not taken into account. He has sought for clarification/Government order, if any. Pending clarification, he has requested to stop the declaration of election result. The copy of this letter is marked as Ex. P-6. In response to this letter, the Returning Officer has given a reply dated 19.05.2016 saying that, the Elector who sign the declaration in Form - 13 A, should get attestation from any Gazetted Officer or Presiding Officer of the polling station, where posted. Those declarations which did not satisfy the conditions, were considered not valid. In addition, the D.E.E.O, Thirunelveli has also given the certificate that the Middle School Headmaster are Non-gazetted Officers. Therefore, the declarations attested by Middle School Headmasters were rejected. The reply of the Returning officer, dated 19.05.2019 and the fax message received from the D.E.E.O, Thirunelveli is marked as Ex. P-7.

32. Through these communications, Ex. P-6 and Ex. P-7 along with the fax message of D.E.E.O, Thirunelveli, one fact is made very clear. That is, the petitioner has protested the rejection of ballots during the counting itself. The counting of postal ballots got delayed due to his objection. The Returning Officer has consulting the P.A to Collector and on receipt of the certificate from D.E.E.O, Thirunelveli, he has rejected postal ballots accompanied with declarations attested by Middle School Head Masters.

33. D.W-2, after verifying the records, had deposed that out of 300 invalid votes, 203 votes were rejected since, they were not attested by Gazetted Officer. 14 were rejected since, the signature of the elector not attested. 28 votes were rejected since, they were attested by Notary Public, 7 votes were rejected since, they were attested by Private College Lecturers. 46 votes were rejected since Form -13 A was not enclosed. 2 votes were rejected since, it was related to the Radhapuram Constituency. Thus, the break up of postal votes held as invalid discloses that 203 votes were rejected on the doubtful point whether the Middle school Headmaster fall under the category of Gazetted Officer or not..

34. If the winning margin and vote rejected as invalid is vast, then this issue need not even considered since, under section 100 (1) (d) of the Representation of People Act, tribunal cannot interfere unless such rejection is going to materially affect the result of the returning candidate. But in this case, the winning margin is only 49 votes. The invalid votes on account of attestation by Middle school Head Master is 203. The hand book of the Election Commission mandates that, if the winning margin is less than the postal ballots, then the postal ballots must be re-verified. In this case, though the 1st respondent, in his counter contents that, the postal ballots were re-verified, the Returning Officer admits he did not recount or re-verify the postal ballots after knowing the winning margin was less than the postal ballots.

35. In the said peculiar situation, it is necessary to test whether the opinion given by D.E.E.O is correct and can his opinion prevail over the Government Orders relied by the petitioner.

36. The Learned Counsel for the Petitioner has produced the copy of G.O. Ms. No. 71 dated 05.02.1996, G.O. Ms. No. 189 dated 18.07:2007, G.O. Ms. No. 119 dated 09.09.2009, G.O. Ms. No. 158 dated 06.11.2009 and G.O. Ms. No. 23 dated 12.01.2011 all issued by the Personnel and Administrative Reforms (S) Department in the Government of Tamil Nadu.

37. The sum and substance of these Government Orders' indicates that, the Tamil Nadu Government has abolished the classification of its Servants as Gazetted and Non-Gazetted and started classifying them as Group A, Group B, Group C and Group D. Under G.O. Ms. No. 71 dated 05.02.1996, the Government has clarified that regarding discharge of Official duties, Group A and Group B posts correspond to the former Gazetted posts, those Gazetted posts (prior to abolition of Gazetted status) were allowed to retain the privilege of Gazetted status and exercise the power of attesting testimonials, certificate etc., In the year 2007, vide G.O. Ms. No. 189, the Government has permitted all Group B Government servants, who are drawing a salary in the pay scale between Rs. 5500/- to Rs. 10,000/- to attest true copies of certificates, testimonials, etc., In G.O. Ms. No. 119 dated 09.09.2009 employees in posts drawing Grade Pay of Rs. 4,400/- and above but below Rs. 6,600/- were classified under Group B. The classification of Gazetted and Non-gazetted Officers found in the Tamil Nadu Government Servants Conduct Rules, 1973 was deleted by virtue of G.O. Ms. No. 158 dated 06.11.2009. The G.O. Ms. No. 23 dated 12.01.2011 issued by the Finance Department had fixed the pay scale and grade pay of Middle School Headmaster as Rs. 9300-34800 + 4500. Therefore, it is clear as crystal that Middle School headmaster drawing pay scale of Rs. 9300 - 34800 with grade pay of Rs. 4500/- fall under the category of Group B Officers. They are deemed to be Gazetted Officers to attest testimonials, certificates, etc. The principle of 'ejusdem generis' to be applied while understanding the word "etcetera" found in these Government orders.

38. Therefore, the submission of the Learned Senior Counsel for the 1st respondent that, these GO's are for the purpose of attesting certificates and testimonial but not, for attesting declarations in Form - 13 A is unsustainable.

39. The other contention in defence raised by the Learned Senior Counsel for the 1st respondent, the returned candidate is that, when the Election Commission has arranged for Gazetted rank Officers in every facilitation centres, the necessity of getting attestation from two Middle School, Headmasters en masse creates doubt and probabilises rigging. Also the Learned Senior Counsel for the 1st respondent would drew the attention of this Court to G.O. Ms. 96 dated 23.09.2014 which has referred earlier Government order Nos. 71 and 189 and do away with attestation of certificates by Government Officers of Group B and above.

40. Nowhere in the Election Law en masse attestation of the declaration is prohibited. Neither the returning officer has rejected those postal ballots on that ground. Further, the G.O. Ms. No. 96, dated 23.09.2014 only withdrawn the requirement of attestation of certain categories, of certificates, and instead, it permits the individuals themselves to make self attestation of their certificates and produce the original at the time of interview. The reason for such decision is also stated in the said Government order.

41. For easy reference G.O. (Ms). No. 96 dated 23.09.2014 is extracted below:-

"Personnel and Administrative Reforms (AR-I) Department

G.O. Ms. No. 96

Dated: 23.09.2014

1) G.O. (Ms). No. 71, Personnel and Administrative' (S) Department, Dated 05.02.1996.

2). G.O. (Ms). No. 189, Personnel and Administrative (S) Department, Dated 18.07.2007.

Order

In the G.O. First and second read above, orders were issued to permit Group A & B Government Officers to attest true copies of certificates, testimonials etc. However, this method is not citizen-friendly and leads to great difficulty apart from much wastage of time to both citizens and Government Officials. Hence, there is a need to revise the existing procedure.

2. The Government have reviewed the existing practice of attestation by Government Officers with the following intentions:-

Reduction in unnecessary difficulty of people. Problem of submission of Applications with unavoidable deadlines.

Reduction in unnecessary piling up of records in the office.

Simplification of procedures.

Further, Originals for the attested copies are required to be produced at the time of interview for verification. Therefore, attestation by the Gazetted Officers does not really solve any purpose as the final verification is completed only after the originals are produced.

3. After review, the Government have decided to issue an omnibus Government Order to all departments to do away with attestation of certificates by Government Officers to Group B and above.

4. Accordingly, the Government direct all the departments, to do away with the practice of attestation of certificates by Government Officers of Group B and above and instead of provide for self attestation of certificates by the individuals themselves and they shall produce the originals at the time of interview or final appointments to the post as the case may be.

(By Order of the Governor)

P.W.C. Davidar

Principal Secretary to Government

42. On reading of the above Government order, the intention of the Government to issue this Order and the purpose of it can be easily understood. This Government Order does not take away the authorisation given by the government empowering the Group A and Group B Officers from attesting documents. It has done away with the procedure of insisting attestation of Officers for certain cases, where the self attestation by the candidate itself will be sufficient and the original documents can be verified at the later stage.

43. Therefore, the opinion of the D.E.E.O certifying that Middle School Headmasters are Non-Gazetted Officers is not factually correct in view of the Government Orders referred above.

44. In this connection, the 1st respondent contends that, when the law specifically say the declaration must be attested by a Gazetted rank Officer and if there is no classification in the Government of Tamil Nadu as Gazetted Rank Officer, then the Court need not take the role of interpreting the Election law by substituting something for the term Gazetted Officer, which is not in the statute. This endeavour must be left to the Election Commission. Prayer seeking interpretation of the statute under the guise of Election Petition is not maintainable.

45. It is to be placed on record that, the factual matrix of this case does not warrants any interpretation of statute. It only require to find out whether the conduct of the election by the Returning Officer done in accordance to law and any omission or commission on his part ought or might materially altered the result of the returned candidate.

46. The intention of getting attestation in the declaration is to ensure the identity of the elector. Unlike, direct voting in the booth, where the personal identity is seen and verified by the polling Officers and Presiding Officers, in case of postal ballots to prevent possibility of impersonations, Officers mentioned in the Rule are empowered to attest the identity of the elector. If the State Government has thought fit to classify their Officers with different terminology and confer power of attestation to Officers of certain rank and above, they must be considered as Gazetted Officers for the purpose of attesting Declaration in Form - 13 A.

47. While so, the rejection of 203 votes for the reason that the declarations are attested by Middle School Headmaster is not in consonance to the Conduct of Election Rules as well as the Tamil Nadu Government Servants Conduct Rules, 1973, as amended by G.O. Ms. No. 158 dated 06.11.2009.

48. C.W-2/P. Muruganatham (returning officer), has deposed that in the surcharged situation, having entertained doubt in view of objects raised by the candidates, he sought the help of P.A (G) to District Collector. In turn P.A (G) to' Collector has contacted the D.E.E.O, Thirunelveli. They have thought that D.E.E.O will be aware of the status of Middle School Head Masters. Unfortunately, it was not. His wrong certificate has lead to improper rejection of 203 votes.

49. It is pertinent to note at this juncture, that the recent communication of the Election commission dated 18.05.2019 regarding revision of the guideline for re-verification of postal ballots when margin of victory is less, says that, "the Commission's instruction for mandatory re-counting of all postal ballot papers on the ground that the margin of victory is less than the number of postal ballot has been revised to the effect that where the margin of victory is less than the number of Postal Ballot papers rejected as invalid at the time of counting, all the rejected Postal Ballot papers shall be mandatorily re-verified by the Returning Officer before declaration of result. Whenever, such re-verification is done, the entire proceedings should be video graphed as per the instructions in paragraph 7 of the Commission's letter No. 470/2009/EPS dated 21.01.2009."

50. The instruction of the Election commission at the time of General Election held in the year 2016 was in case of less victory margin, all the postal ballots should have been re-verified and video graphed as per the Commission's letter dated 21.09.2009. The Returning Officer has candidly admitted in the witness box that he did not follow the above instruction of the election commission.

51. The second limb of the election petition is the irregularities during the 19th, 20th and 21st rounds of counting. Form - 17 C is the form to be prepared during the polling and counting. It contains two parts. Part - I contains the Account of Votes Recorded. Part - II is Result of Counting. In Part - I of the Form, the polling agents present and the Presiding Officer has to sign. In Part II, the signatures of the candidate/agent present has to be obtained. The counting supervisor has to certify the votes tallies and put his full signature. Finally, the Returning Officer should sign the Part - II of Form - 17 C at he bottom. The entries in the Form - 17 C will be later consolidated and recorded in Form - 20, which is the Final result sheet.

52. Part - II of the Form - 17 C should be filled up as and when counting of each polling station is completed. It contains the details of vote secured by each candidates polling station wise. For each round of counting, separate Form - 17 C has to filed up. The representatives of each candidate present has to sign. The Presiding Officer and the Returning Office has to put their full signature to certify the votes recorded tallies. Ex. C-1 to Ex. C-3 are the Form -17 C for the rounds 19th, 20th and 21st. Ex. C-4 to Ex. C-6 are replica of Part - II of Form - 17 C for the above rounds. In Ex. C-1 to Ex. C-3, the Part - II remains blank. Ex. C-4 to Ex. C-6 are replica of Part - II. The scrutiny of Ex. C-1 to Ex. C-6 discloses the fact that the Form - 17 C not been properly recorded. The Returning Officer, in his evidence, has given his justification for recording Part - II of Form - 17 C separately. Even, if that explanation is accepted, there is no plausible reason from him for not signing Part - II of Form - 17 C, which mandates the Returning Officer to affix his signature. There is no plausible reason for not appending the replica of Part - II along with the Form - 17 C. The authority who should vouchsafe the fact that, the counting of each round was done properly and the account tallies is the Returning Officer by affixing his signatures in the Part - II of Form - 17 C. In this case, he has omitted to certify in the Part -II of Form-17C.

53. The petitioner alleges that the Returning Officer boosted the votes wrongly in favour of 1st respondent during the 19th round and thereafter. The Returning Officer has deposed that the petitioner and his agent were causing confusion in the counting hall. The relevant portion of the C.W-2/P. Muruganantham deposition is extracted below:-

"The results of the rounds 19, 20 and 21 was announced by me immediately before declaration of the final result. I deny the suggestion that the delay in announcing the results of 19, 20 and 21 rounds has caused confusion. The witness voluntary says that the delay in announcing the results was due to the tensed situation that was created. Immediately after the situation got eased, I proceeded to announce the results of the 19th, 20th and 21st rounds before declaration of the final result. I do not remember whether any objection."
54. The allegation in the Election Petition in paragraph No. 12 is that, 348 votes were boosted in favour of the 1st respondent during the 19th, 20th and 21st rounds. Neither the election petitioner nor his Agent P.W-2/R. Adhi Parameswaran, could produce any evidence how they were able to assert that votes were boosted. Therefore, based on bald allegations no roving enquiry could be made. In the absence of specific material evidence.

55. On scrutiny of Ex. C-1 to Ex. C-3 while marking, this Court found that Part - II of Form - 17 C blank and not filled with required details. Hence, this Court put specific question to the witness regarding this. The Court question and the answer of the witness is as below:

Court Question: What is the reason for not filling Form 17 C

Ans: In Part - II of Form 17 C shall be filled by the Table Supervisor and finally, they should obtain my signature. Due to commotion, the entries in Part II of Form 17 C were not made.

56. The replica of Part - II were marked as Ex. C-4 to Ex. C-6 through C. W-1. In Ex. C-4 to Ex. C-6, the Returning officer has not signed. The documentary evidence expose the false assertion of C.W-2/P. Muruganantham, in his testimony on oath. Therefore, this is not a case where the petitioner losing the election by slender margin making all sort of allegations without basis or an attempt to make roving enquiry. This is a specific case of improper rejection of valid votes received through post and violation of Rules during the 19th, 20th and 21st rounds of counting. The averments are based on material evidence and proved cogently.

57. As a result of the above discussion, this Court arrives at following conclusion:-

a) The declaration of the Returned candidate has been materially affected due to refusal/rejection of 203 Postal Ballots and by non-compliance with the provisions of the Representation of People Act, Rules and Orders made thereunder.

b) The Election Petitioner is entitled to the relief of revivification of all the Postal Ballots including the Postal Ballots rejected as invalid, in view of clause 15.15.5.1 under chapter XV of Hand Book for Returning Officers issued by Election Commission of India, 2014 (Reprint - 2016).

c) The counting of votes recorded in EVM's of 19th, 20th and 21st rounds of counting was not in compliance with the provisions of the. Being in contravention of Rule 56 C(2) of the Conduct of Election Rules, same has to be recounted.

d) The attestation made by the Middle School Headmasters in Form -13A are held valid. Those Postal Ballots are to be taken up for scrutiny and counted if it is otherwise in order.

e) No law prohibits en masse attestation of Postal Ballots if it is otherwise valid. The rejection of 203 Postal Ballots for being attested by Headmaster of Middle School is improper. Hence, it is imperative to recount and re-verify all the Postal Ballots received in the Election of No. 228 Radhapuram Constituency Assembly.

f) In view of omission in filling Part - II of Form - 17 C pertaining to 19th, 20th and 21st rounds, recounting of those EVM's of these rounds has to be conducted.

58. In the light of the above, the Election Commission of India, is hereby directed to produce the Control Units of EVM's pertaining to the rounds 19th/20th and 21st of No. 228, Radhapuram Constituency Assembly Election which held on 16.05.2016 and produce all the Postal Ballots received in the said election before the Registrar General, High Court, Madras, on 04.10.2019 at 11.30 a.m.

59. The Registrar General of Madras High Court, is directed to depute any of his Registrars to supervise the counting of all the Postal Ballots and EVM's of 19th, 20th and 21st rounds and submit the report to this Court immediately after completion of the counting.

60. The Election Commission of India, shall depute twenty four (24) persons having expertise in Election process to assist the recounting The candidates or any one on their behalf duly authorised by them shall be permitted in the Counting Hall One counsel on behalf of petitioner, 1st respondent and Election Commission is also permitted.

61. The Registrar General, High Court, Madras, shall take the permission of the Hon'ble The Chief Justice, to utilise any suitable hall in the High Court premises for the purpose of counting.