Important Point: The disqualification will be attracted on juristic cessation of employee-employer relationship.

1. Heard Shri P.S. Wathore, Advocate for the petitioner and Shri G.N. Khanzode, Advocate for the respondent No.5.

2. The petitioner has filed this petition under Section 81 of the Representation of the People Act, 1951 (for short “Act of 1951”) praying that the decision of the Returning Officer dated 30th September, 2014 accepting the nomination paper of respondent No.5 Dr. Deorao Madguji Holi be quashed. The petitioner has prayed for declaration that the election of respondent No.5 from 68, Gadchiroli (S.T.) Legislative Assembly Constituency of State of Maharashtra is void. The petitioner has prayed that the election of respondent No.5 as Member of Legislative Assembly from the above Constituency be set aside and fresh elections for the above referred Constituency be ordered.

3. The challenge of the petitioner is substantially based on the ground that on the date of submission of the nomination paper, the respondent No.5 was holding “office of profit” being in Government employment as Medical Officer, in Class-II, Group “A” Services and, therefore, he was disqualified to contest the election and his nomination paper could not have been accepted by the Returning Officer. The claim of the petitioner is that because of the improper acceptance of the nomination paper of respondent No.5, the result of the election is materially affected and, therefore, the election of the respondent No.5 be set aside and fresh elections be ordered. The petitioner has relied on the provisions of Article 191(1)(a) of the Constitution of India and Section 100(1)(d)(i) of the Act of 1951.

4. It is not disputed by the contesting parties that the respondent No.5 Dr. Deorao Madguji Holi was working as Medical Officer on temporary basis in the payscale of Rs.8,000/-13,500/ when by order issued on 9th February, 2009 he was absorbed in the payscale of Rs.8,000/-13,500/ in Maharashtra Medical and Health Services Group “A”. Pursuant to the above order, the respondent no.5 continued in the post of Medical Officer.

According to the petitioner, the respondent No.5 continued as Medical Officer on 30th September, 2014 when the nomination paper of respondent No.5 was accepted by the Returning Officer. The petitioner claims that even subsequently i.e. on the date of voting and declaration of result and subsequent to that also, the respondent No.5 continued as the Medical Officer in the employment of the Government of Maharashtra.

According to the respondent No.5, he had given notice dated 19th August, 2013 disclosing his intention/ decision to resign from the post of Medical Officer w.e.f. 30th October, 2013. The issuance of the notice dated 19th August, 2013 and the receipt of it by the Additional Chief Secretary, Public Health Department, Mantralaya, Mumbai is not disputed. The contention of the respondent No.5 is that the notice given by him became effective from 19th September, 2013 and he ceased to be in the employment w.e.f 19th September, 2013.

The respondent No.5 relied on Clause (4) of the Government Resolution dated 2nd December, 1997 to substantiate the above contention. Clause (4) of the Government Resolution dated 2nd December, 1997 lays down that the Competent Authority shall immediately take action on receipt of notice of resignation and should intimate the decision taken by the Competent Authority on the proposal of the government employee regarding resignation, within one month. It lays down if the Competent Authority fails to communicate its decision to the government employee within one month from the date of receipt of the notice/application of resignation, then it will be deemed that the resignation of the government employee is accepted by the Competent Authority. Alternate case of the respondent No.5 is that his resignation became effective from 30th September, 2013 as per his letter of resignation. The respondent No.5 has pleaded and has led evidence to support his claim that he has not reported on duty since 1st October, 2013 and he is n