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SUPREME COURT OF INDIA
E.S. VENKATARAMIAH AND M.P. THAKKAR, JJ.
Sitaram Jivyabhai Gavali, Appellant
Versus
Ramjibhai Potiyabhai Mahala and others, Respondents.
Civil Appeal No. 1632 of 1985, D/- 25-3-1987.
Advocates appeared :
Mr. Ram Jethmalani, Sr. Advocate; Mr. Kapil Sibbal, Sr. Advocate; Mr. & Mrs. R. Karanjawala, Advocates; Mr. Ejaz Mazbool and Ms. Priya Jaitley with them, for Appellant; Mr. T.S. Krishnamurthy Iyer, Sr. advocate: Ms. S.D. Lal, Advocate and Mr. H.K. Puri Advocate with him, for Respondents.
–The election candidate in the case of Sitaram Jivyabhai Gavali v. Ramjibhai Potiyabhai Mahala, AIR 1987 SC 1293, tendered letter of resignation before the date of scrutiny as per conditions of his appointment, so his nomination was accepted and he was eventually declared elected. His election was set aside on ground that he was holding an office of profit under the Government on the date of scrutiny of nomination paper as his resignation which was under the Service Rules would take affect only a month after its receipt and even if the resignation is treated to be one under the conditions in appointment letter the resignation did not take effect as the candidate was not relieved from service. It was held by the Supreme Court the appellants, resignation had become effective at least on the day on which the records were handed over, that is before the date of scrutiny and he had ceased to hold an office before the date of scrutiny. It was held that the Returning Officer had rightly accepted the nomination paper. In this case under the conditions of service the candidate could resign from the post by remitting one month’s pay plus allowance to the Government, which method was adopted and accepted by the Administration to bring about the termination of service of a temporary Government servant.
Judgment
VENKATARAMIAH, J. :- 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 April 2, 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 months notice.
3. to 5 . .........................
6. Before resigning the post, he shall have to give one months notice to the Administration failing which he shall have to remit one months 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 November 21, 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
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