VENKATARAMIAH - (1.) THE appellant is a person belonging to a Scheduled Tribe. At the last General Election held to the Lok Sabha he was declared duly elected from the Dadra and Nagar Haveli parliamentary Constituency by a substantial majority. After the declaration of the result of the election respondent 1, who was one of the defeated candidates, filed an election petition in Election Petition No. 1 of 1985 on the file of the High Court of Bombay calling in question the result of the election on the ground that the appellant was disqualified to be chosen as a member of the Lok Sabha on the date of the scrutiny of the nomination papers, because he held an office of profit under the Government other than an office declared by Parliament by law not to disqualify its holder. THE High Court accepted the contention of respondent 1 and set aside the election of the appellant by its judgment dated 2/04/1985. This appeal is filed under S. 116A Representation of the People Act, 1951 (hereinafter referred to as 'the Act') against the judgment of the High Court.
(2.) THE facts of the case may be summarised thus. Respondent I was a member of the last Lok Sabha. On 13-11-1984 elections to the present Lok Sabha were announced. THE appellant, who was holding the post of an Investigator as a temporary Government servant in the Union territory of Dadra and Nagar Haveli, decided to contest the election from the Dadra and Nagar Haveli Parliamentary Constituency, which was a constituency reserved for the members belonging to the Scheduled Tribes. He had been appointed on 2-5-1979 as a junior clerk on a temporary basis in the Administration of Dadra and Nagar Haveli. His appointment was subject to the conditions mentioned in the order of appointment and amongst the said conditions there were the following three conditions : "1. He will be governed by the Central Civil Services Rules. 2. THE appointment is purely on temporary basis and is liable to be terminated at one month's notice. To 5 . ... ... ... ... ... 6. Before resigning the post, he shall have To give one month's notice To the Administration failing which he shall have To remit one month's notice pay before he could be relieved from service ... ... ... .." 3. The above order of appointment was issued by the CollecTor of the Union terriTory of Dadra and Nagar Haveli, Silvasa. The relevant Central Civil Services Rules which governed the appellant were the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred To as 'the CCS Temporary Service Rules'). Rule 5(1) of the said Rules, which dealt with the termination of temporary service, read as follows : "5(1)(a). Termination of Temporary Service.- The service of temporary Government servant who is not in quasi-permanent service shall be liable To termination at any time by a notice in writing given either by the Government servant To the appointing authority or by the appointing authority To Government servant. (b) The period of such notice shall be one month. Provided that the service of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled To claim a sum equivalent To the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be for the period by which such notice falls short of one month." The last date for filing the nomination was 27-11-1984 and the date of scrutiny of the nomination papers was 28-11-1984. The appellant, who was then working as an InvestigaTor attached To the office of the Development and Planning Officer, Dadra and Nagar Haveli, Silvasa, wrote a letter on 21/11/1984 To the CollecTor of Dadra and Nagar Haveli, who was the appointing authority, tendering his resignation. The said letter read as follows : From: Shri Sitaram J. Gavali, InvestigaTor, Office of the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa Silvasa, 21/11/1984 To The Hon. CollecTor, Dadra and Nagar Haveli, Silvasa Respected Sir, As I intend To contest the forthcoming Parliament Election from Dadra and Nagar Haveli Parliamentary (Constituency), I the undersigned hereby give up my post of InvestigaTor which I am holding as temporary Government servant forthwith. As I am giving up my post forthwith I hereby tender my pay plus allowances of one month vide Demand Draft No. C-199981 from State Bank of India, Silvassa Branch dated 21-11-1984 of Rs. 1024.05 (Rupees one thousand twenty four and paise five only) in favour of Development and Planning Officer, Dadra and Nagar Haveli, Silvasa. Hence I cease To be a temporary Government servant from Today only. This letter of giving up my post as temporary Government servant is covered by Rule 5(1)(a) of CCS Temporary Service Rules. Yours faithfully,. Sd/- (S.J. GAVALI) InvestigaTor The said letter was submitted through the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa. Along with the said letter of resignation, as mentioned therein, he sent a demand draft drawn on the State Bank of India for a sum of Rs. 1024.05 paise which he was drawing as monthly pay plus allowances of the post he held immediately before that date. Since he did not get any reply from the Collector to his letter of resignation, on 23-11-1984 he met the Collector and also the Secretary to the Administrator of Dadra and Nagar Haveli who was the returning officer of the said election. Then on 24-11-1984 he wrote a letter to the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa which read thus :From Shri Sitaram J. Gavali, Silvasa Dt. 24/11/1984 To The Development & Planning Officer, Dadra and Nagar Haveli, Silvasa Sir, I have already submitted my application dated 21-11-1984 to the Hon. Collector through the Development and Planning Officer to relieve me from my post with immediate effect and as per the law, I also tendered a sum of Rs. 1024.05 by Demand Draft in favour of the Development & Planning Officer in lieu of one month notice. In view of the said provisions, I ceased to be a Government servant from that date. I had also requested on the same day to take the files and other records of the post held by me. It has been informed by you that the said files and records will be taken only after getting orders of the Collector. On 23-11-1984, I met the Hon. Collector and Secretary to the Administrator twice who have informed me that you (myself) are now no more a Government servant. As per application dated 21-11-1984, I ceased to be a Government servant from that date i.e. 21-11-1984. Under the circumstances, I submit herewith all files and other records along with all registers may kindly be taken in your possession so that in future I am eligible to file my nomination for Lok Sabha Election for Dadra and Nagar Haveli Parliamentary Constituency before the Returning Officer. I submit the above mentioned document today, i.e. 24-11-84 at 10.00 hrs. Kindly acknowledge the receipt of the same. Thanking you, Yours faithfully, Sd/- (S.J. Gavali)
(3.) HE submitted a copy of the above letter to the Collector, Dadra and Nagar Haveli also. The said letter referred to the fact that the appellant had met the Collector and also the Secretary of the Administrator on 23-11-1984 and that he had informed the Collector that he was no longer a Government servant. Along with the said letter he handed over all the files, records and registers, etc., which were with him along with a list thereof to the head of his office, that is, the Development & Planning Officer. HE thereafter filed his nomination paper on 24-11-1984. HE also filed an additional nomination paper on 26-11-1984. Since the appellant did not get any written reply from the Collector to the above letter of 24-11-1984 till 26-11-1984 he wrote another letter on 26-11-1984 to the Returning Officer. Dadra and Nagar Haveli Constituency. Silvasa, who was also the Secretary to the Administrator, which read thus : From Shri Sitaram J. Gavali, Silvasa Dt. 26/11/1984 To The Returning Officer, Dadra and Nagar Haveli, Silvasa Respected Sir, I had been working as temporary Government servant with the designation as 'Investigator' under the Nagar Haveli Administration. The terms of my service are regulated by the 'Central Civil Services (Temporary Service) Rules, 1965.' When Lok Sabha elections were declared on 13-11-1984, I took decision to contest the same. Dadra and Nagar, Haveli is reserved constituency for Scheduled Tribes. I belong to the Kokna Tribe which is a declared Scheduled Tribe covered by the Schedule to the 'Constitution (Dadra and Nagar Haveli) Schedule Tribes Order, 1962.' Since I intend to contest the election, I have given up my post of Investigator from 21-11-1984, under Rule 5(1)(a) of the C.C.S. Temporary Service Rules, 1965, my service can be terminated by me by giving a notice in writing to the appointing authority. Accordingly I have addressed a letter dated 21-11-1984 to the Collector, Dadra and Nagar Haveli informing him that I have given up my post of Investigator, and I cease to be a Temporary Govt. servant from the date of the letter. I say that under Rule 5 of the C.C.S. Rules, I am only required to give one month's notice and no further act is required to be done for termination of my services. In particular the same notice is neither to be replied to or even considered by the appointing authority. The said notice under Rule 5(1) has been given by me on 21-11-1984 a copy of the same is hereto annexed and marked Annexure A. I say that the said letter was received by the Collector's office on 21-11-1984 itself. That thereafter on 23-11-1984 one express Telegram has been sent by me to the Administrator, Dadra and Nagar Haveli informing him that I have given up my service as temporary servant on 21-11-1984. A copy of that telegram is hereto annexed as Annexure B. I say that I have ceased to be a Govt. servant on 21-11-1984 when I have given one month's notice pay. In any case there can be no doubt my services will come to end by operation of statute after the period, of one month, that is, say on 20-12-1984. Thus I will not be holding any office of profit with the Govt. of India on 24-12-1984 which is the declared date of election in Dadra and Nagar Haveli. Under the circumstances, I will have no disqualification for being chosen as a member of Parliament on 24-12-1984 as contemplated by Art. 102 of the Constitution. I am addressing this letter to you out of abundant caution as I fear that the sitting member of Parliament Mr. Ramji Pitia Mahala, who is a close friend of the Collector, Dadra and Nagar Haveli has improperly prevailed over the Collector, Dadra and Nagar Haveli to sleep over my letter dated 21-11-1984 and may take up the wrong contention that I will be holding an office of profit with the Central Govt. I once again state that without prejudice to my contention that I have ceased to be a Govt. servant on 21 -11-1984 itself, in any case I shall cease to be one on 20-12-1984. This position cannot be in dispute in view of the absolutely clear position of R. 5 of the C.C.S. Rules, 1965. For the sake of convenience the relevant portion of the said Rules and Art. 102 of the Constitution is reproduced in an annexure marked Annexure C. I pray that the aforesaid contention may be borne in mind when my nomination papers are scrutinised on 28/11/1984. Yours faithfully, Sd/. (SITARAM J. GAVALI) Copies of the above letter were sent by the appellant to the Administrator, Dadra and Nagar Haveli, Cabo Niwas, Panjim, Goa. Election Commission of India, Chief Electoral Officer, Dadra and Nagar Haveli and to SC/ST Commissioner for information and necessary action. On the same date he received a reply from the office of the Administrator, Dadra and Nagar Haveli which read as follows :No. ADM/SECT/MISC/SJG/84 Administration of Dadra and Nagar Haveli Silvasa, Dt. 26/11/1984 To Shri Sitaram J. Gavali, Investigator, (Through the D.P.O.) Dadra and Nagar Haveli, Silvasa I am directed to refer to your letter dated 21-11-1984, addressed to Collector, under which you had issued notice under Rule 5(1)(a) of CCS Temporary Service Rules and stated that you are giving up your post forthwith and had tendered pay and allowance of one month. In this connection I am directed to inform you that the said notice was examined in the Administration. Necessary legal opinion was also obtained . The case was also referred to the Government of India, in the Ministry of Home Affairs, through Crash Wireless Message dated 23-11-1984. As per Government of India's decision, your notice of termination of service takes effect on the expiry of the prescribed period of one month. There is no provision under Rule 5(1) of the CCS Temporary Service Rules under which a Government servant can deposit one month's pay in lieu of the purchase of period of notice. HEnce as per Rule 5(1) of the CCS Temporary Service Rules quoted by you, the notice of termination of your service will take effect only after the expiry of one month from the date of submission of notice. Sd/- (S.S. Kolvekar) governor to the Administrator Dadra and Nagar Haveli, Silvasa The above letter stated that the Ministry of Home Affairs, Government of India had been contacted by the Collector in connection with the letter of resignation submitted by the appellant on 21-11-1984 and necessary legal opinion had been obtained thereon. The said letter, however, informed him that there was no provision under R. 5(1) .CCS Temporary Service Rules, under which a temporary Government servant could deposit one month's pay in lieu of the period of notice issued under R. 5(1) of the said Rules and that the notice of termination of service issued by the appellant would, therefore, take effect only upon the expiry of one month from the date of the receipt of the notice. In other words, the said letter stated that the appellant would continue to be a temporary Government servant till 21-12-1994. In reply of the said letter, the appellant. wrote a letter dated 27-11-1984 to the Secretary to the Administrator, Dadra and Nagar Haveli which read thus: From Sitaram Jivyabhai Gavali, Silvasa 27/11/1984 To secretary to the Administrator, Dadra and Nagar Haveli, Silvasa Subject : Lok Sabha Election matter. Sir, I the undersigned Shri S J. Gavali beg to state as under : (1) I have received your letter No. ADM/Secy/Misc/SJG/84 dated 26-11-1984. I have been informed by you that the notice of termination of my services will take effect only after the expiry of one month from the date of submission of notice, In this connection, I am to state that I had been appointed as Jr. Clerk vide Administration Order No. ADM/ EST/ C/RCC/1466/1979 dated 2-8-79. The said appointment is subject to the conditions fixed by the administration. As per the condition No. 2 the appointment is purely on temporary basis and is liable to be terminated at one month's notice and as per the condition No. 6 before resigning the post, I have to give one month's notice to the Administration, failing which I have to remit one month's pay before I can be relieved from service. I have been promoted as Investigator by the Administration and my service conditions were continued. 2) I intended to contest the forthcoming Parliament election from this area and, therefore, I gave up my post and paid my one month notice pay on 21-11-1984 and tendered my notice by the said letter giving up my post as temporary Govt. servant. I have also submitted detailed representation to the Returning Officer, Dadra and Nagar Haveli, Silvasa on 25-11-1984. I have already given my charge to the Development and Planning Officer, Dadra and Nagar Haveli, Silvasa vide my letter dated 24-11-1984. 3) I am not holding any office of profit with the Govt. of India from 21-11-1984. I have tendered notice with immediate effect and also deposited one month's pay in lieu of notice as per the terms and conditions of my appointment. I have already given my charge. My notice became effective from that very day and does not require any formal acceptance as per rules. Under the above circumstances for being chosen as a member of Parliament. 4) Incidentally I would like to draw your kind attention that Administration has considered many cases, and accepted the resignation with immediate effect, when the Govt. servants have tendered their resignation with one month's pay as per the terms and conditions of their appointment orders. 5) The resignations of the following persons were accepted with immediate effect by the Collector, Dadra and Nagar Haveli. Silvasa. The said persons had paid one month's notice pay. JUDGEMENT_262_2_1987Html1.htm The Administration should take equal decision for all employees. But different decision taken for me is against law, equity and justice. 6) I am addressing this letter to you out of abundant caution as I fear that the sitting member of Parliament Mr. R. P. Mahala who is close friend of the present Collector has improperly prevailed over the Collector to sleep over my letter dated 21-11-1984 and taken wrong contention. 7) The reply given by your office vide letter No. ADM/Secy/Misc/SJC/84 dated 26-11-1984 is not as per law and against the relevant rules and regulations and terms of my appointment order. 8) My right to contest the election should not be deprived. I, therefore, request you to kindly look into the matter personally and give me justice properly. I am quite eligible to contest the election. I have explained clear position to you. I therefore request you to do the needful in the interest of natural justice and protect the right of citizen. If you take any adverse action for my election activities, I shall take all legal actions as per the circumstances of my case would warrant against you with your costs and consequences, which please note. Yours faithfully, Sd/- (S.J. Gavali) ;