Bharucha, J.
1. The question that arises for determination in this election petition, is: was the first respondent disqualified for being chosen as a member of Parliament on the date fixed for the scrutiny of his nomination paper. It is not in dispute, since he is the returned candidate, that the acceptance of his nomination materially affected the result of the election.
2. On May 2, 1959 the first respondent was appointed a junior clerk in the Administration of the Union territory of Dadra and Nagar Haveli. His appointment letter set out, inter alia, the following conditions:
1. He will be governed by the Central Civil Service Rules.
2. The appointment is purely on temporary basis and is liable to be terminated at ONE month's notice.. ... ...
6. Before resigning the post he shall have to give one month's notice to the Administration failing which he should have to remit one month's notice pay before he could be relieved from service.
3. On November 13, 1984 general elections to Parliament were notified.
4. On November 21, 1984 the first respondent wrote a letter to the Collector, Dadra and Nagar Haveli (now referred to as 'the letter of termination'), which reads thus:
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 November 21, 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, Silvassa, 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.
5. On November 23, 1984 the first respondent sent a telegram to the Lt. Governor of Goa, Daman and Diu, who is the Administrator of Dadra & Nagar Haveli. He stated in the telegram that he
gave up my temporary post of investigator with crediting one month's pay plus allowances under Rules 5(l)(a) of Central Civil Services Temporary Service Rules on November 21, 1984 being temporary Government Servant for contesting the election of Dadra and Nagar Haveli constituency.
In the telegram the first respondent expressed anxiety that the Collector had not finalised the matter nor taken the records of his post and that he would be deprived of his right to contest the election if 'decision is not taken before 27-11-84'.
6. On November 24, 1984 the 1st respondent wrote to the Development & Planning Officer, Dadra and Nagar Haveli. He recorded that he had requested that the files and papers of his office be taken from him and that he had been informed by the Development and Planning Officer that they would be taken only after getting orders from the Collector. He submitted with the letter all the files and papers in his possession.
7. On November 26, 1984 the Secretary to the Administrator, Dadra and Nagar Haveli, wrote to the first respondent with reference to the letter of termination. He stated that
notice of termination of service take effect on the expiry of the prescribed period of one month. There is no provision tinder Rule 5(1) of the CCS Temporary Service Rules under which a Government servant can deposit one month 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.
8. On November 27, 1984 the 1st respondent replied to the Secretary to the Administrator saying, inter alia, this:
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 notice pay before I can be relieved from service.
I am not holding any office of profit with the Govt. of India from November 21, 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.
9. In the meantime, on November 26, 1984 the first respondent addressed a letter to the Returning Officer, Dadra and Nagar Haveli. The relevant portions of this letter read thus:
Since I intended to contest the elections, I have given up my post of Investigator from November 21, 1984. Under Rule 5(l)(a) of the C.C.S. Temporary Services 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 November 21, 1984 to the Collector Dadra and Nagar Haveli informing him that I have given up my post of Investigator and that 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 required to be replied to or even considered by the appointing authority. The said notice under Rule 5(1) has been given by me on November 21, 1984.
I say that I have ceased to be a Govt. Servant on November 21, 1984, when I have given one month's notice pay. In any case there can be no doubt my services will come to an end by operation of statute after the period of one month, that is say, on December 20, 1984. Thus I will not be holding any office of profit with the Govt. of India on December 24, 1984 which is 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 December 24, 1984 as contemplated by Article 102 of the Constitution of India..I once again state that without prejudice to my contention that I have ceased to be a Govt. Servant on November 21, 1984 itself, in any case I shall cease to be one on December 20, 1984. This position cannot be in dispute in view of the absolutely clear position of Rule 5 of the C.C.S. Rules 1965.
10. On November 28, 1984, the date fixed for scrutiny of nomination papers, the petitioner objected to the first respondent's nomination and the Returning Officer passed an order after a summary enquiry during which both sides were heard. He stated,
I have a doubt as to whether Shri Gavali Sitaram Jivyabhai (the 1st respondent) holds an office of profit as on today, under the Administration of Dadra and Nagar Haveli. Hence, I decide to give the benefit of this doubt to the candidate and accept this nomination.
11. On November 30, 1984 the list of contesting candidates for Dadra & Nagar Haveli Parliamentary Constituency was notified by the Returning Officer. The petitioner and the respondents were named therein.
12. On December 24, 1984 polling took place.
13. On December 28, 1984 the results of the election were declared and the 1st respondent was declared duly elected from the Dadra & Nagar Haveli Parliamentary Constituency.
14. On January 18, 1985 this petition was filed.
15. The correspondence was tendered in evidence by consent, Only the first respondent has given oral evidence. In his brief examination-in-chief he stated that he had met the Collector, Dadra & Nagar Haveli, on 22nd and 23rd November 1984 and requested him to take charge as he was giving up his post. The Collector did not give him a proper answer. On November 24, 1984 he made a written submission to the Development and Planning Officer tendering all his files and papers to him. The Development and Planning Officer accepted the letter and the files and papers. In cross-examination the 1st respondent admitted that when he handed over the files and papers to the Development & Planning Officer on November 24, 1984, it was an unilateral action on his part. The Development & Planning Officer had not issued to him .any receipt for the files and papers. He had only signed upon the office copy of the 1st respondent's application.
16. The relevant provisions of law must be noticed at the outset. Under Article 102(1)(a) of the Constitution of India a person is disqualified for being chosen as a member of Parliament if he holds any office of profit under the Government of India other than an office declared by Parliament by law not to disqualify its holder. It is not in dispute that the first respondent held, prior to November 21, 1984, an office of profit under the Government of India other than an office declared by Parliament by law not to disqualify its holder.
17. Section 100 of the Representation of the People Act, 1951, states that the High Court shall declare the election/ of a returned candidate to be void if it is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination. Section 36 of the said Act requires the Returning Officer, on the date fixed for scrutiny of nominations, to examine the nomination papers and to decide all objections which may be made to any nomination and, after such summary inquiry as he thinks necessary, reject any nomination, inter alia, on the ground that on the date fixed for the scrutiny of nominations the candidate is disqualified for being chosen to fill the seat under Article 102.
18. Rule 5(1)(a) of the Central Civil Services Temporary Service Rules, which are admittedly applicable to the 1st respondent, reads thus:
5(1)(a) The services of a 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 the 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.
19. It was submitted by Mr. C. J. Sawant, learned Counsel for the petitioner, that the 1st respondent was disqualified for being chosen as a member of Parliament for the period of one month from the date of service of the letter of termination i.e., until December 21, 1984, having regard to the provisions of the said Rule 5(1).
20. Mr. Mohite, learned Counsel for the first respondent, submitted, first, that the first respondent's appointment letter supplemented the conditions of his service prescribed under the said Rules and furnished the first respondent with two alternative modes of terminating his employment as a Government servant: while clause 2 of the appointment letter dealt with the mode of termination, provided under the said Rule 5(1), clause 6 provided the independent mode of resignation. Mr. Mohite submitted, next, that the letter of termination was a letter of resignation under clause 6 and was independent of the mode furnished by the said Rule 5(1). Mr. Mohite then submitted that the first respondent's resignation became effective on November 21, 1984 itself since it required no acceptance. In the alternative, Mr. Mohite submitted that, because of the proviso thereto, the 1st respondent was entitled under the provisions of the said Rule 5(1) to terminate his service forthwith by paying to Government the equivalent of one month's salary and allowances.
21. I proceed upon the assumption that the first respondent's appointment letter supplemented the conditions of his service prescribed by the said Rules and that clause 6 of the appointment letter furnished him with resignation as a mode of terminating his service.
22. The question that immediately arises is whether his letter of termination was a letter of resignation or a notice of termination of service under the said Rule 5(1).
23. What is in this context material in the letter of termination is this sentence:
This letter of giving up my post as temporary Government servant is covered by Rule 5(l)(a) of C.C.S. Temporary Service Rules.
This sentence establishes that the first respondent was not tendering his resignation independent of the provisions of the said Rule 5(1)(a) but was utilising its provisions to terminate his service with Government.
24. The first respondent's letter dated November 26, 1984 written to the Returning Officer leaves no doubt about this. He states therein that, since he intended to contest the election, he had given up his post from November 21, 1984 and that 'under Rule 5-(l)(a) of the C.C.S. Temporary Service Rules' his service could be terminated by him by giving a notice in writing to the appointing authority. 'Accordingly', he states,
I have addressed a letter dated November 21, 1984 to the Collector.
He states 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. ...The said notice under Rule 5(l)(a) has been given by me on November 21, 1984.
Further in the same letter the first respondent reiterates his stand that he had ceased to be a Government servant on November 21, 1984 itself and that, in any case, he would cease to be one on December 20, 1984, 'This position', he states,
cannot be in dispute in view of the absolutely clear position of Rule 5 of the C.C.S. Temporary Service Rules 1965.
25. Further affirmation of this position is found in the telegram addressed by the first respondent to the Lt. Governor wherein he states that he 'gave up his temporary post of investigator... under Rules 5(1)(a).
26. Also significant is the reply given by the first respondent to the letter dated November 26, 1984 addressed to him by the Secretary to the Administrator. He was informed therein that there was no provision under the said Rule 5(1) by which a Government servant could deposit one month's pay in lieu of the period of notice so that, under the provisions of the said Rule 5(1) quoted by himself, the notice of termination of his service would take effect only after the expiry of one month from the date of its submission. In his reply it was not stated by the 1st respondent that what he had done was to resign his service and that the said Rule 5(1) had no application. The reply demonstrates that the first respondent did not draw a distinction between the modes of termination of service furnished by clauses 2 and 6 of the appointment letter.
27. Mr. Sawant was right in pointing out that even in the written, statement of the fist respondent it is not averred in specific terms that the letter of termination was a letter of resignation or that it was independent of the provisions of the said Rule 5(1). What is guardedly stated is this:
Thus, out of abundant caution under legal advise Respondent No. 1 had drafted his letter dated November 21, 1984 so that it covered all methods for giving up his service viz. forthwith resignation and termination of service.
28. In the circumstances, I cannot accept the submission on behalf of the first respondent that the letter of termination was a letter of resignation under clause 6 of the appointment letter. There is no doubt in my mind that the first respondent was, by the letter of termination,, adopting the mode furnished by the said Rule 5(1) for terminating his service- with Government.
29. I proceed for the moment upon the basis that I am wrong in this and that the letter of termination is a letter of resignation. Clause 6 of the appointment letter, which is said by the first respondent's counsel to apply, requires the first respondent before resigning his post to give one month's notice; if he does not give one month's notice he is obliged to remit one month's notice pay 'before he could be relieved from service'. Where, therefore, as in this case, the resignation is tendered without one month's notice the first respondent has to be 'relieved from service'. It is, therefore, not the unilateral act of the first respondent that brings about the termination of his service.
30. It was contended by Mr. Mohite that the first respondent was relieved from service when he sent in his files and papers on, November 24, 1984. That he sent in his files and papers does not mean that he was relieved from service. It was, as he admitted in evidence, his own unilateral act. And it is crystal clear from the letter dated November 26, 1984 addressed to the first respondent by the Secretary to the Administrator that he was not relieved from service and that his service would stand terminated only after the expiry of one month, i.e., on December 21, 1984.
31. Ordinarily also, the resignation of a Government servant is effective only upon its acceptance. In Raj Narain v. Smt. Indira Nehru Gandhi : [1972]3SCR841 , the Supreme Court affirmed that when a public servant had invited by his letter of resignation the determination of his employment, his service normally stood terminated from the date on which the letter of resignation was accepted by the appropriate authority. In Union of India v. Gopal Chandra Misra : (1978)ILLJ492SC , it was said that service or office, by his own unilateral act of tendering resignation give up his service or office normally, the tender of the resignation became effective and his service or office tenure stood terminated when it was accepted.
32. I cannot, in the light of the terms of clause 6 of the appointment letter and these authorities, hold, as I am invited by counsel for the first respondent to do, that there was an absolute obligation cast upon Government to relieve the first respondent from service immediately upon the remission by him of one month's pay. The patent object of the notice period is to enable Government to appoint a substitute for the resigning Government servant so that the administration does not suffer. If the Government finds a substitute earlier than the notice period, it can then relieve its retiring servant. But if it does not, the retiring Government servant is obliged to serve for the duration of the notice period.
33. Mr. Mohite cited the judgment of the Supreme. Court in Raj Kumar v. Union of India : (1970)ILLJ13SC , It was there held that the termination of employment by an order passed by Government does not become effective until the order has been intimated to the servant; but where the Government servant has invited by his letter of resignation the determination of his employment, his services normally, stood terminated from the date on which his letter of resignation was accepted by the appropriate authority and, in the absence of any law or rule governing the conditions of his service to the contrary, it was not open to the servant to withdraw his resignation after it had been accepted by the appropriate authority. To the extent that the judgment says that the resignation of a Government servant becomes effective only when it is accepted, it is relevant and it assists the petitioner's, not the 1st respondent's case.
34. Mr. Mohite cited the judgment of a Division Bench of the Mysore High Court in M, Thiruvengadam v. The Indian Institute of Science A.I.R. [1954] Mys. 158. In this case the petitioner's contention, that his letter of resignation giving notice of six months did not amount to an unconditional resignation but required acceptance, was not accepted. From the terms of the letter, it seemed clear to the court that no acceptance was contemplated or required and that it was in the nature of a notice by which the petitioner said that he had resigned his job and would case to work from a date six months later. Nothing more was, therefore, necessary to be done either by him o by the employers in pursuance of the notice which had put am end to the contract of service in a manner stipulated between the parties. This judgment would have been apposite had the first respondent served a notice resigning his service one month after the receipt thereof. It has no application where the period of notice prescribed by the appointment letter is not given, in which event the appointment letter requires the servant to be relieved from service.
35. I conclude that, assuming that the letter of termination was a letter of resignation, the resignation became effective only one month after the date of its service, i.e., on December 21, 1984.
36. This brings me to consider the said Rule 5(1). Thereunder the services of a temporary Government servant are liable to be terminated at any time by notice in writing given either by the servant to the appointing authority or by the appointing authority to the servant, and the period of such notice is set at one month. The proviso thereto entitles the appointing authority to terminate the service of the servant forthwith and entitles the servant in that event to claim a sum equivalent to his pay and allowances for one month or for the period by which the appointing authority's notice falls short of one month. The 1st respondent's argument that the proviso gives the servant co-ordinate power to terminate his service forthwith upon payment to Government of the sum of one month's pay and allowances is, having regard to the precise language of clause (1) and its proviso, unacceptable.
37. Mr. Mohite relied in this context upon a judgment of the Supreme Court in V.P. Gindroniya v. State of M.P. : (1970)IILLJ143SC . The rule under consideration is set out in paragraph 12 of the judgment and is somewhat similar to the said Rule 5(1). Mr. Mohite sought to rely upon this judgment as holding that the proviso applies to a notice of termination given by a Government servant. In para 13 of the judgment the Supreme Court said.
There is hardly any room for dispute that the notice contemplated by the main Clause (a) of Rule 12 can be given either by the Government or its temporary servant. The rule in question specifically says so. It is not necessary for us in the present case to decide whether the two provisos to that rale or Clause (b) thereof apply to a notice given by a government servant. The appellant has assumed that those provisions also apply to a notice given under that rule. We shall for the purpose of this case proceed on the basis, of that assumption and see whether the appellant has satisfied that part of the rule also.
The Supreme Court was for the purposes of that case merely making an assumption. It came to no finding. The judgment, therefore, does not assist Mr. Mohite.
38. Summarising, I hold that the first respondent's letter of termination dated November 21, 1984 was a notice of termination of his service given under the provisions of the said r, 3(1); that the first respondent's service terminated upon-the expiry of one month of the date of service of the letter of termination, i.e., on December 21, 1984; that the 1st respondent was, consequently, holding an office of profit under the Government of India and was, under Article 102, disqualified for being chosen as a member of Parliament on the date of scrutiny of his nomination paper, i.e., on November 28, 1984; that the result of the election was materially affected as a result of the improper acceptance of his nomination; and that, therefore, his election is void.
39. I answer the issues thus:
Issue No. 1 : Not pressed by Mr. Mohite. Issue No. 2 : Not pressed by Mr. SawantIssue No. 3 : In the affirmativeIssue No. 4 : In the affirmativeIssue No. 5 : In the affirmative
40. Consequently, it is declared that the election of the first respondent to Parliament from the Dadra and Nagar Haveli Parliamentary Constitutency is void.
41. The first respondent shall pay to the petitioner the costs of the petition, quantified at Rs. 750/-. The petitioner shall be entitled to withdraw the said amount of Rs. 750/- from out of the amount of Rs. 2,0001- deposited by the first respondent in court and the first respondent shall be entitled to withdraw the balance amount of Rs. 1,250/-. The petitioner shall also be entitled to withdraw the amount of Rs. 2,0001- deposited by him in court.
42. Mr. Mohite applies for stay of the order.
43. The first respondent is present in person. Mr. Mohite, on his behalf and upon his instructions, gives an undertaking to court that he shall not, for a period of thirty days from today, participate in the proceedings of or vote in the Lok Sabha and that he shall attend the Lok Sabha only to record his presence.
44. Upon that undertaking, the order declaring the first respondent's election void is stayed for a period of thirty days from today.