JUDGMENT
1. This petition has been filed for the issue of a writ of mandamus directing the Election Commissioner of India not to hold the general Assembly Elections for the constituency Varanasi Cantonment scheduled to be held on February 24, 1974. The petitioner has also prayed for a writ in the nature of mandamus to direct the Election Commissioner and the Returning Officer to decide his application dated January 17, 1974 for enabling him to select 'Ass' as his election symbol.
2. From the facts, as they appear on the petition and as stated by the learned counsel, the petitioner intended to contest the election from 241 Varanasi Cantonment Assembly Election Constituency and desired to have an 'Ass' as his symbol. For this purpose on January 17, 1974, he submitted an application to the Returning Officer and sent a similar application to the Election Commissioner, requesting that the petitioner may be allotted the symbol of 'Ass' at the time of his election. No orders, according to the petitioner, were passed on this application.
3. On 19-1-1974 the petitioner filed hip1 s nomination paper. In that nomination paper he indicated three choices of symbols. In order of preference they were 'Ass', 'Horse and Rider' and 'Cycle'. On 28th January, 1974 the Returning Officer allotted the petitioner the symbol of 'Horse and Rider'. In this respect the contention of the learned counsel is that the petitioner did not want to give the second and third choices, but he was compelled to give those choices by the Returning Officer.
4. Learned counsel has urged that once a citizen intends to contest an election he has a right to select a symbol of his choice and because he had indicated that he would have a symbol of 'Ass', the Returning Officer had no choice but to allot him that symbol. By not allotting that symbol the petitioner's right to seek free election has been affected and hence he has 'filed this petition for a mandamus to restrain the respondents from holding the election.
5. The elections are held in accordance with the provisions contained in the Conduct of Elections Rules, 1961. Rules 5 and 10 of these Rules are relevant. Rule 5 runs as under:
"5. Symbols for elections in Parliamentary and Assembly constituencies.-
(1) The Election Commission shall, by notification in the Gazette of India and in the official Gazette of each State, specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject.
(2) Where at any such election, more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and no other declaration as to symbols, shall be taken into consideration under Rule 10 even if that nomination paper has been rejected."
6. In Rule 10, Sub-rules 4 and 5 are relevant which run as under:
"10 (4), At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission.-
(a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and
(b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted.
(5) The allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit."
7. To give effect to Rules 5 and 10, the Election Commission of India framed the Election Symbols (Reservation and Allotment) Order, 1968. Paragraph 4 of this Order deals with allotment of symbol and rules that "in every contested election a symbol shall be allotted to a contesting candidate in accordance with the provisions of this order and different symbols shall be allotted to different contesting candidates at an election in the same constituency".
8. Paragraph 5 of this order classifies the symbols into reserved and free symbols. It states that "a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party" and "a free symbol is a symbol other than a reserved symbol."
9. The petitioner is an independent candidate. The choice of symbol by him is controlled by para 12 of the Order. It provides that an independent candidate shall choose and shall be allotted, in accordance with the provisions of the Order, one of the symbols specified as free symbols for that State, by notification under paragraph 17. Paragraph 17 of the Order specifies the list of symbols. Free symbols for the State of U.P. as specified, are 20, which include 'bicycle' and 'horse and rider' but do not include 'Ass'.
10. In our opinion these provisions read together cast a duty on the Election Commission to select and specify the symbols, and candidates are given a right to choose symbols out of the symbols so specified. The choice of the candidate is to be made only out of the symbols specified by the Election Commission. He cannot travel beyond the list of symbols specified by the Election Commission in the Official Gazette. It is apparent from Rule 5(1) and para. 17 referred to above, that a candidate has to indicate his choice of symbol out of those specified in the Gazette, and the Returning Officer has to allot such a symbol to the candidate in accordance with Rule 10 of the Conduct of Election Rules, 1961.
11. The petitioner could, therefore, have chosen, as his symbol, only one of the symbols specified in the Gazette. As 'Ass' was not a specified symbol he could not have chosen it. The Returning Officer thus committed no error in not allotting him the symbol of 'Ass',
12. Further, the fact remains that the petitioner had given on the nomination paper his alternative choice for the symbol of 'Horse and Rider'. Once the petitioner had given his choice of three symbols, and the Returning Officer had allotted him a symbol out of the three mentioned in the nomination paper, the petitioner can have no cause of grievance. The action of the Returning Officer, in these circumstances, cannot be said to suffer from any error of jurisdiction or any manifest error of law.
13. For the reasons given above we dismiss this petition.