O.H.Mootham, C.J. - (1.) This is a petition under Article 226 of the Constitution. The petitioner was a candidate for election to the Lok Sabha at the last general election held in March 1957 from an Allahabad Parliamentary constituency. The petitioner was defeated at that election, and on the 27th April, 1957, he filed an election petition before the Election Commission challenging the validity of the election of the successful candidate. The Election Commission appointed the respondent, who is a retired Judge of the High Court at Patna, as the Election Tribunal. In the petition which is now before us the petitioner contends that the respondent could not be appointed a member of an Election Tribunal under the Representation of the People Act, 1951, and he prays for the issue of a writ, direction or order directing the respondent not to act as a member of the Election Tribunal.
(2.) The main contention of the petitioner, who has argued the petition in person, is that the respondent was not qualified for appointment as he was not a Judge of a High Court at the date of his appointment as the member of an Election Tribunal.
(3.) The question of the eligibility for appointment of the respondent turns upon the meaning which must be given to the second proviso to Sub-section (3) of Section 86 of the Representation! of the People Act, 1951. Sub-section (1) of that section provides that, if a petition is not dismissed under Section 85, the Election Commission shall refer the petition to an Election Tribunal for trial. Sub-sections (2) and (3) so far as they are material read as follows : "(2) For the purpose of constituting such Tribunals, the Election Commission shall obtain from the High Court of each State. . . .a list of persons who are District Judges in the State and are in the opinion of the High Court fit to be appointed as members nf Election Tribunals and shall maintain the list by making such alterations therein as the High Court may, from time to time, direct..... (3) Every Tribunal shall consist of a single member selected by the Election Commission from any of the lists maintained by it under Sub-section (2): Provided .... that if the Election Commission considers it expedient so to do, it may appoint a person who has been a Judge of a High Court as the member of a Tribunal.";