# SITARAM JIVYABHAI GAVALI v. Jz - RAMJIBHAI PETIYABHAI MAHALA & ORS

- **Citation:** [1987] 2 S.C.R. 635
- **Court:** Supreme Court of India
- **Decided:** 1987-03-25
- **Case number:** Civil Appeal No. 1632 of 1985
- **Bench:** E.S. Venkataramiah Ano M.P. Thakkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sitaram-jivyabhai-gavali-v-jz-ramjibhai-petiyabhai-mahala-ors-9517
- **Pages:** 24

## Headnote

8
-~
Constitution of India, 1950, Article 102(1)(a) Disqualifications
for Membership of either House of Parliament-Appellant a temporary
Government servant tenders his resignation along with a month's salary
..-·F
as per clause 6 of his appointment order hands over the official records
in his possession, and files the nomination, explaining everything in the
covering letter to the Returning Officer-Whether the appellant could be c
said to hold an "office of profit under the Government" on the date of
-·y filing the nomination-Doctrine of Relation Forward, applicability ofDeemed date of resignation, what is-Whether Rule 5(1)(a) of the
Central Civil Services (Temporary Services) Rules, 1965, scope.
D
The appellant who belonged to Scheduled Tribe covered by the
Schedule to the Constitution (Dadra and Nagar Haveli) Schedule
Tribes Order, 1962, decided to contest the 1984 election from the Dadra
and Nagar Haveli Parliamentary Constitutency which was a constitutency reserved for the members belonging to the Scheduled Tribes. As
. 'l'
he was holding the post of an Investigator as a temporary Government E
servant governed by the Central Civil Services (Temporary Services)
-..
, Rules, 1965 and also by condition 6 of his appointment order, he wrote
a letter on November 21, 1984 to the Collector of Dadra and Nagar
Haveli, who was his appointing authority, tendering his resignation and
,.
enclosing a demand draft drawn on the State Bank of India for a sum of
Rs.1024.05 paise, being one month's notice pay. On 24.11.1984 at 10 F
--l
A.M. he wrote another letter to his immediate officer and submitted all
the records and files which were with him. He, thereafter, filed his
nomination paper on the same day i.e. two days before the last date for
filing the nomination papers. On 26.11.84, he wrote a letter to the
Returning Officer, bringing to his notice each and every fact leading to
his resignation and requesting the Returning Officer to note his contenG
lion that he ceased to be a government servant with effect from
-~
21.11.84, while scrutinising the nomination paper.
On the same date he received a reply from the office of the
Administrator Dadra and Haveli to the effect th'at his resignation wonld
take effect from 21.12.84 on the expiry of one month's notice and that H
635
636
SUPREME COURT REPORTS
(1987] 2 S.C.R.
A his remitting one month's notice pay was not contemplated under Rule
S(l)(a) of the Central Civil Services (Temporary Services) Rules, 1965,
as per the legal opinion obtained. On 27 .11.84, the appellant sent a
reply bringing to the Administrator's notice condition No. 6 of his
appointment order and also cases of six other officers whose resignaB
tions were accepted forthwith accepting one month's notice pay from
them. The appellant also alleged malafides and pressure by Respondent
No. 1, the then sitting member of the Parliament on the Collector. In
reply to the said letter, the Development and Planning Officer by his
letter dated 21.12.84 reiterated the Administrator's stand and returned
the.demand draft.
c
In the meanwhile on 28.11.84, i.e. the date of scrutiny of the
D
nomination papers, the Returning Officer overruled the objection
raised by Respondent No. 1 that since the appellant was holding an ·y::
office of profit under the Government he was disqualified to contest the
election.
In the said election, the appellant secured the highest number of
votes and he was declared elected. The election petition filed by Respondent No. 1 was allowed and the appellant's election was declared null
and void. The appeal preferred by the appellant under section 116 of
the Representation of People Act, 1951 was remitted to the High Court
for amendment of written statement, framing of fresh issues and
E
further findings of the High Court on them. All the four additional
issues framed were answered against the appellant and thereafter, the
said appeal was set for further hearing.
F
Allowing the appeal, the Court,
HELD: 1. The letter of r

## Text

_Characters 0–39,842 of 50,681. This is a partial read: ask again with offset=39842 for what follows._

SITARAM JIVYABHAI GAVALI
A
v.
,Jz
-
RAMJIBHAI PETIYABHAI MAHALA & ORS.
MARCH 25, 1987
[E.S. VENKATARAMIAH ANO M.P. THAKKAR, JJ.]
8
-~
Constitution of India, 1950, Article 102(1)(a) Disqualifications
for Membership of either House of Parliament-Appellant a temporary
Government servant tenders his resignation along with a month's salary
..-·F
as per clause 6 of his appointment order hands over the official records
in his possession, and files the nomination, explaining everything in the
covering letter to the Returning Officer-Whether the appellant could be c
said to hold an "office of profit under the Government" on the date of
-·y filing the nomination-Doctrine of Relation Forward, applicability ofDeemed date of resignation, what is-Whether Rule 5(1)(a) of the
Central Civil Services (Temporary Services) Rules, 1965, scope.
D
The appellant who belonged to Scheduled Tribe covered by the
Schedule to the Constitution (Dadra and Nagar Haveli) Schedule
Tribes Order, 1962, decided to contest the 1984 election from the Dadra
and Nagar Haveli Parliamentary Constitutency which was a constitutency reserved for the members belonging to the Scheduled Tribes. As
. 'l'
he was holding the post of an Investigator as a temporary Government E
servant governed by the Central Civil Services (Temporary Services)
-..
, Rules, 1965 and also by condition 6 of his appointment order, he wrote
a letter on November 21, 1984 to the Collector of Dadra and Nagar
Haveli, who was his appointing authority, tendering his resignation and
,.
enclosing a demand draft drawn on the State Bank of India for a sum of
Rs.1024.05 paise, being one month's notice pay. On 24.11.1984 at 10 F
--l
A.M. he wrote another letter to his immediate officer and submitted all
the records and files which were with him. He, thereafter, filed his
nomination paper on the same day i.e. two days before the last date for
filing the nomination papers. On 26.11.84, he wrote a letter to the
Returning Officer, bringing to his notice each and every fact leading to
his resignation and requesting the Returning Officer to note his contenG
lion that he ceased to be a government servant with effect from
-~
21.11.84, while scrutinising the nomination paper.
On the same date he received a reply from the office of the
Administrator Dadra and Haveli to the effect th'at his resignation wonld
take effect from 21.12.84 on the expiry of one month's notice and that H
635
636
SUPREME COURT REPORTS
(1987] 2 S.C.R.
A his remitting one month's notice pay was not contemplated under Rule
S(l)(a) of the Central Civil Services (Temporary Services) Rules, 1965,
as per the legal opinion obtained. On 27 .11.84, the appellant sent a
reply bringing to the Administrator's notice condition No. 6 of his
appointment order and also cases of six other officers whose resignaB
tions were accepted forthwith accepting one month's notice pay from
them. The appellant also alleged malafides and pressure by Respondent
No. 1, the then sitting member of the Parliament on the Collector. In
reply to the said letter, the Development and Planning Officer by his
letter dated 21.12.84 reiterated the Administrator's stand and returned
the.demand draft.
c
In the meanwhile on 28.11.84, i.e. the date of scrutiny of the
D
nomination papers, the Returning Officer overruled the objection
raised by Respondent No. 1 that since the appellant was holding an ·y::
office of profit under the Government he was disqualified to contest the
election.
In the said election, the appellant secured the highest number of
votes and he was declared elected. The election petition filed by Respondent No. 1 was allowed and the appellant's election was declared null
and void. The appeal preferred by the appellant under section 116 of
the Representation of People Act, 1951 was remitted to the High Court
for amendment of written statement, framing of fresh issues and
E
further findings of the High Court on them. All the four additional
issues framed were answered against the appellant and thereafter, the
said appeal was set for further hearing.
F
Allowing the appeal, the Court,
HELD: 1. The letter of resignation dated November 21, 1984
cannot be treated as one submitted under Rule 5(1) of the Central Civil
Services (Temporary Service) Rules, 1965. The proviso to Rule 5(1)
authorises only the appointing authority to terminate the temporary
service of the Government servant forthwith and that ou such termination the Government servant becomes entitled to claim a sum equivalent
G
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 service, or as the case may be for the period by which
such notice falls short of one month. There is no provision in the CCS
Temporary Service Rules which authorises a Government servant to
H bring about the termination of his temporary service as provided in
Rule 5(1) by paying a sum equivalent to the amount of his pay and
- '(
S.J. GAVAL! v. R.P. MAHALA
637
allowances of the period of notice at the same rates at which he was A
drawing them immediately before termination of his service or as the
case may be for the period by which notice falls short of one month. If
the letter of resignation was truly one which had been submitted under
Rule 5(1) of the CCS Temporary Service Rules which did not envision
tendering of one month's salary by the employee, there was no necessity
to tender a demand draft for Rs.1024.05. Such payment was contemp- B
lated only when the resignation was under condition No. 6 of the letter
of appointment issued in favonr of the appellant about which the
appointing authority could not have been unaware. If the concerned
authority had not realised that it was a resignation pursuant to such
conditions the said authority would have returned (instead of retaining)
the demand draft at once or at the ea;·liest. [6540; G-H; 655A-E]
c
1.2 The letter of resignation of the appellant was one which was
submitted pursuant to Condition No. 6 of his letter of appointment
which was one more method adopted and accepted by the Administration to bring about the termination of service of a temporary government servant. The said condition was only supplementary to the modes D
of termination of temporary service, referred to in Rule 5(1) of the CCS
Temporary Service Rules and it was not in any way inconsistent with
the said Rules. As a matter of fact it was not even suggested or faintly
hinted in the High Court that there was any such inconsistency. [ 656B-C]
1.3. It is well recognised that a new service condition may be E
brought into effect by an executive order and such condition would
remain in force as long as it is not repealed either expressly or by
necessary implication by another executive order or a rule made under
the proviso of Article 309 of the Constitution of India or by a statute. In
the facts and circumstances of the case, the material produced in the
Court and in the absence of any inconsistency between condition No. F
6 and any other order, rule, or law the letter of resignation is one
submitted pursuant to condition No. 6 in the letter of appointment
issued in the case of the appellant. [656C-E]
2.1 There has been full compliance with condition No. 6 of the
letter of appointment as a demand draft was enclosed being a month's G
notice pay and allowances. [656E-F]
2.2 The resignation contemplated under Condition No. 6 is not
the same as the letter of resignation which may be submitted by a
government servant on the acceptance of which he ceases to be a
government servant. In the case of an ordinary resignation which is H
638
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A
governed by the Memorandum No. 39/6/57-Ests. (A) Ministry of Home
Affairs dated 6th May, 1958 no question of paying a month's salary or
allowance to the Government would arise. In the absence of any rule or
executive order prescribing the method or manner in which a temporary government servant of the rank of an investigator could be
relieved from service under Condition No. 6 of the letter of appointment
B or any evidence adduced as to what practice had been in vogue as
regards relieving such a person, it must be held that it is implicit in such
a condition that the nature of his employment is such that he can be
relieved forthwith without the need for waiting for a month and that he
would be so relieved as was indeed done in the case of others governed
by such a condition. [657A·C)
c
2 .3 The appellant should be deemed to have been relieved from
his service at J0.00 A.M. on 24.ll.1984 and he had ceased to be a
Government servant before he submitted his nomination paper on
24.ll.1984. At 10.00 A.M. on 24.ll.1984, before the appellant submitted· his nomination paper to the Returning Officer, he had handed over
D
all the records, registers, files etc. which were with him to the head of
his office along with a letter, a copy of which was submitted to the
Collector, who was the appointing authority. This cannot be termed as
an unilateral act of the appellant. There was no refusal to accept the
records. There was no order to report for duty and discharge any
functions. The appellant had not, in fact, been paid any salary or alloE
wance for the period subsequent to 20.U.84, that is, the date previous
to the date of the letter of resignation. He had not attended and he was
not required to attend his office from 21.ll.84 except for handing over
the records, files, registers etc. on 24.ll.84. The appellant was not
asked by the Coll~ctor to attend the office till 21.12.84 nor grievance
was made against him for his absence in the wake of his resignation.
F
There was no disciplinary proceeding or any other kind of enquiry
pending against the appellant which required the appointing authority
not to relieve the appellant from his service in the public interest. And
there was no objection r1.1ised as a matter of fact on any ground to his
being trated as having ceased to be in service eventually till the expiry of
one month from the date of his service. It is not as if for administrative
G reasons his resignation was not acceptable for any reason. [657C·F)
3. The Returning Officer had rightly overruled the objection and
accepted his nomination paper. It is not established by the election
petitioner on whom the onus rested that the returned candidate held an
office of profit on the date of scrutiny or that his nomination paper was
H \l'rongly accepted by the Returning Officer. He cannot therefore suc·
y·
•
) ...
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..
•
S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.]
639
cessfully assail the election of the returned candidate, the appellant A
herein. [657G·H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1632
of 1985.
From the Judgment and Order dated 2.4.1985 of the Bombay B
High Court in Election Petition No. 1of1985.
Ram Jethmalani, Kapil Sibbal, Karanjawala, Mrs. R. Karanjawala, E jaz Mazbool and Ms. Priya J aitley for the Appellant.
T.S. Krishnamurthy Iyer, S.D. Lal and H.K. Puri for the C
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The appellant is a person belonging to
a Scheduled Tribe. At the last General Election held to the Lok Sabha D
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 the Ist Respondent, 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 E
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 the Ist Respondent and set aside the election of the
appellant by its judgment dated April 2, 1985. This appeal is filed F
under section 116-A of the Representation of People Act, 1951
(hereinafter referred to as 'the Act') against the judgment of the High
Court.
·
The facts,.of the case may be summarised thus. The Ist Respondent was a member of the last Lok Sabha. On 13.11.1984 elections to G
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
H
640
SUPREME COURT REPORTS
[1987] 2 S.C.R.
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:
B
c
D
"1. He will be governed by the Central Civil Services
Rules.
2. The appointment is purely on temporary basis and is 1liable to be terminated at ONE month's notice.
3.
4.
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.
E
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 ~ere 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:
F
G
H
"5(1)(a) Termination of Temporary Service-The service
of temporary Government servant who is not in quasipermanent 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 servioe of any such Government servant
may be terminated forthwith and on such termination the
•
S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.l
641
Government servant shall be entitled to claim a sum equiA
'""'(-
valent 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."
B
i
The last date for filing the nomination was 27 .11.1984 and the date of
"'-·-t'
scrutiny of the nomination papers was 28.11.1984. The appellant, who
was then working as an Investigator attached to the office of the
~ f-.
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 resig- c
nation. The said letter read as follows:
-y
"From:
Shri Sitaram J. Gavali,
Investigator,
D
Office of the Development &
Planning Officer,
Dadra and Nagar Haveli,
-y
Silvasa.
Silvasa, E
November 21, 1984.
().
To
The Hon. Collector,
iDadra and Nagar Haveli,
Silvasa.
F
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 G
,-J,,__
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 H
642
A
B
SUPREME COURT REPORTS
[1987] 2 S.C.R.
favour of Development and Planning Officer, Dadra and
N agar 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. GA VALi)
Investigator"
C 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 immeD diately 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 Se.cretary 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,
Dadta and Nagar Haveli, Silvasa which reads thus:
E
F
G
H
"From:
To
Sir,
Shri Sitaram J. Gavali,
Silvasa.
The Development & Planning
Officer,
Dadra and Nagar Haveli,
Silvasa.
Dt. 24. 11. 1984
I have already su.bmitted my application dated
21. II.1984 to the Hon. Collector through the Development
and Planning Officer to relieve me from my post with
-·+,..
'
S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.)
643
immediate effect and as per the law, f also tendered a sum A
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 B
me. It has been informed by you that the said files and
records will be taken only after getting orders of the
Collector.
On the 23.11.1984, I met the Hon. Collector and Secretary to the Administrator twice who have informed me C
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 nol)lina- D
tion 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)"
E
F
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 G
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
H
644
SUPREME COURT REPORTS
[1987] 2 S.C.R.
A Nagar Haveli Constituency, Silvasa, who was also the Secretary to the
y ....
Administrator, which read thus:
B
c
D
E
F
G
H
"From:
To
Shri Sitar~m J. Gavali,
Silvasa.
The Returning Officer,
Dadra and Nagar Haveli,
Silvasa.
Respected Sir,
Dt. 26.11.1984
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
declard 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, 1 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 (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
•
•
S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.]
645
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 Article 102
of the Constitution of India. 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 Rule 5
of the C.C.S. Rules, 1965. For the sake of convenience the
relevant portion of the said Rules and Article 102 of the
constitution of India is reproduced in an annexure marked
Annexure C.
I pray that the aforesaid contention may be bo"rne in
mind when my nomination papers are scrutinised on
28.11.1984.
A
B
c
D
E
F
Yours faithfully,
(SITARAMJ.GAVALI)" G
Copies of the above letter were sent by the appellant to the
Administrator, Dadra and Nagar Haveli, Ca~.o 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
h
A
B
c
D
E
F
G
646
SUPREME COURT REPORTS
[1987] 2 S.C.R.
Administrator, Dadra and Nagar Haveli which read as follows:
To
"No. ADM/SECT/MISC/SJG/84
Administration of
Dadra and Nagar Haveli,
Silvasa, date 26.11.1984.
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 Goverment 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
H the letter of resignation submitted by the appellant on 21.11. 1984 and
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S.J. GAVALI v. R.P. MAHALA (VENKATARAMIAH, J.]
647
necessary legal opinion had been obtained thereon. The said letter, A
however, informed him that there was no provision under Rule 5( I) of
the 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 Rule 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 Jetter stated that the appellant
would continue to be a temporary Government servant till 21.12.1984.
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:
To
Sitaram Jivyabhai Qavali,
Silvasa.
Secretary to the Administrntor,
Dac:lra and N~gar Haveli,
Silvasa
·
Subject: Lok &abha E:lection mlitter.
Sir,
27.)1.1984
I the μndersigIJed Shri S.J. Gayalj beg to state as
undel;
13
0
E
f
1. I have f!'Ceiyed your letter No. ADM/!>ecy/Misc/SJ0/84
411ted 26. ll.1984. I have been informec:I by you tl)at the
notice of terminalion of mY services 'fill take effect .pnly
after the expiry of one month from the date of sμbmissioQ
G
of notice. In this c.pnnection, I am to state that I hail been
appointed as Jr. Clerk yide Admjμistra!io!l Order !\lo.
ADM/EST/C/RCC/Hil6/J979 dated 2.8,79, The said app.Pintmem is
suJ:>je~t !P tl)e condi(i9ns fil>l'd by
t'1~
a4Ql·inistr.ation.
648
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SUPREME COURT REPORTS
[1987] 2 S.C.R.
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.
;
.A,.. --
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 N agar 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 mGnth'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
notice pay.
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. -+
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S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.]
649
Name
Shri J.V. Desai
Stockman, Khanvel
Shri C. V. Patel,
Stockman
Shri A-H. Patel,
Primary School Teacher
Shri D.G. Shah,
High School Teacher
Shri R_G. Chauhan, -
Primay School Teacher
Shri J.D. Patel,
Lineman, P_W.D.,
Silvasa_
(He was relieved on same day)
Date of acceptance
of resignation.
12.4. 78
31.1.1983
30.8.84
.7.1984
.10.1984
The Administration should take equal decision for all
employees. But different decision taken for me is against
A
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D
law, equity and justice.
E
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.
F
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.
G
I am quite eligible to contest the election. I have explained clear position to you. I therefore request you to do H
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650
SUPREME COURT REPORTS
.[1987] 2 S.C.R.
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)"
In the above letter, the appellant, specifically drew the attention
of the Administration to Condition No. 6 in his letter of appointment
which authorised him to resign his service on remitting 'one month's
notice pay'. He pleaded in the said letter ttiat since he had remitted
'one month's notice pay' and also handed over the charge by delivering
all the files, registers records etc. which were with him on 24.11.1984
he had ceased to be a Government servant. He also mentioned in the
said letter that earlier the Collector had accepted the resignations of
six temporary Government servants on payment of 'one month's
notice pay'. In reply to the above letter he got a reply from the
Development and Planning Officer, Dadra and Nagar Haveli, Silvasa
on December 21, 1984 along with the demand draft for Rs.1024.05
paise which had been deposited by the appellant on 21.11.1984. The
said letter read thus:
"Administration of
Dadra and Nagar Haveli, U.T.
(Department of Rural Development)
No. D PO /EST /EF-SJ G /84-85 /2153
To
Sir,
Shri Sitaram J. Gavali,
Investigator,
Dadra and Nagar Haveli,
At and Post: Khanval.
Silvasa, 21.12.1984.
1 am :directed to refer to this Administration's letter
No. A DH/SECY /MISC/SJC/84 dated 26. 11.84 and as
mentioned therein, your notice of termination of services
Y·
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:..t;
S.J.GAVALI v. R.P. MAHALA (VENKATARAMIAH, J.(
651
takes effect on the expiry of the prescribed period of one
A
month. There is no provision under Rule 5(1) of the CCS
(Temporary Services) Rules, 1965, under which the Government servant can deposit one month's pay in lieu of the
prescribed period of notice.
Under the circumstances, the demand draft of the
State Bank of India, Silvasa Branch bearing No. C-199981
dated 21.11.1984 of Rs.1024.05 received alongwith your
application dated 21.11: 1984 is returned herewith.
Kindly acknowledge the receipt for the same.
Yours faithfully.
Sd/-
B
c
Development and Planning Officer
Dadra and Nagar Haveli,
D
Silvasa."
In the meanwhile on 28.11.1984, i.e., the date of scrutiny of the
nomination papers, the Returning Officer passed the following order
overruling the objection which had been raised by the !st Respondent
to the nomination of the appellant:
E
""I have examined this nomination paper in accordance
with section 36 of the Representation of the People Act.
1955, and decide as follows:
An objection was raised during scrutiny of this nomination paper, by the authorised person of the candidate
Shri Mahala Ramjibhai Potiabhai, that Shri Gavali Sitaram
Jivyabhai is holding as on today, an office of profit under
the Administration of Dadra and Nagar Haveli and hence
F
he is disqualified to be a Member of House of People in
G
accordance with Article 1.02 of the Constitution of India. A
summary enquiry was held on this objection and both the
sides were heard. On the basis of arguments advanced and
evidence adduced before me I have a doubt as to whether
Shri Gavali Sitaram Jivyabhai holds an office of profit as on
today, under the Administration of Dadra and Nagar
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652
SUPREME COURT REPORTS
[1987] 2 S.C.R.
Haveli. Hence 1 decide to give the benefit of this doubt to
the candidate and accept this nomination.
Dadra and N agar Haveli, Silvasa
Sd/-
28.11.1984
Returning Officer
Accordingly, the nomination papers of the appellant were accepted
and since there was a contest, the poll took place on the appointed
day. At the said election, the appellant secured the highest number of
votes and he was declared as elected. As mentioned earlier, the !st
Respondent filed the election petition before the High Court. At the
conclusion of the trial, the learned Judge, who heard the election
petition, having noticed the presence of Condition No. 6 in the letter
of appointment issued to the appellant which enabled the appellant to
resign from his post by tendering one month's pay plus allowances,
held that the letter of resignation was one which had been served on
the Government under Rule 5(1)(a) of the CCS Temporary Rules and
was not one under Condition No. 6 of the letter of appointment. He
further held that even assuming that the letter of resignation had been
submitted pursuant to Condition No. 6 of the letter of appointment,
the resignation did not take effect, since the appellant had not been
'relieved from the service' as required by Condition No. 6 of the letter
of appointment before the date of scrutiny. He further held that the
submission of files, records, papers etc. by the appellant did not mean
that he had been 'relieved from service' as it was his unilateral act.
Accordingly, the learned Judge came to the conclusion that the resignation did not take effect till the expiry of one month from the date of
the letter of termination, i.e, till the expiry of December 21, 1984 and
consequently the appellant was holding an office of profit on the date
of scrutiny of the nomination paper. The learned Judge held that the
holding of the said office of profit amounted to a disqualification under
clause (a) of Article 102(1) of the Constitution of India. In the result
the election petition filed against the appellant was allowed and the
election of the appellant was declared as void under section 98 of the
Act.
The above appeal came up for hearing before this Court in~
March 1986. On that occasion, after hearing the learned counsel for
both the parties, this Court passed an order dated March I 1. 1986
remitting the case to the High Court under Order 41 Rule 25 of the
H Code of Civil Procedure. The said order reads thus:
;,.· -.
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S,J. GAVALI v, R.P, MAf!ALA lVENKATARAMIAH, J.]
653
"On hearing counsel and on going through the judgment of the High Court and the application for amendment
of the Written Statement now filed by the appellant (the
returned candidate who has been unseated) before us we
feel that the amendment prayed for should be allowed. The
matter will have to go back to the High Court for this
limited purpose with a direction to record and forward to
this Court its findings on the issues that may arise in the
light of the amended Written Statement and the additional
pleadings if any that may be filed by the election petitioner
A
B
in the election petition, We, therefore, in the interests of
justice allow the amendment of the Written Statement as
prayed and direct the High Court to try issues arising out of
the amended part of the Written Statement and additional
C
pleadings, if any, to be filed by the petitioner as per Order
41 Rule 25 CPC, We further direct the High Court to forward its findings to this Court on or before 31st August,
1986. The parties will be at liberty to adduce additional
evidence if they so desire. Upon the findings being recorded by the High court the parties are directed to file
their objections to the findings submitted by the High
Court on or before 15th of September, 1986. This case may
be posted in the 3rd week of September for further hearing.
The original record may be sent back to the High Court
alongwith a copy of this order within one week from
today,''
D
E
After the above order was passed the written statement of the
appellant before the High Court was amended and additional issues
were framed. After recording the evidence adduced by the parties and
hearing the parties, the High Court recorded its findings on the addiF
tional issues framed in the election petition and submitted them to this
Court, The additional issues. that were framed pursuant to the order
passed by this Court were these:
"L Whether the acceptance of the files and records in the
possession of the 1st respondent by the Development and
G
Planning Officer, Dadra and Nagar Haveli, amounted to
acceptance by conduct of the 1st respondent's resignation,
as alleged in paragraph SA of the statement of Defence?
2. Whether the absence of any negative response by 28th
November, 1984 to the 1st respondent's letter dated 25th
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654
SUPREME COURT REPORTS
[1987] 2 S.C.R.
November, 1984 submitted to the office of the Collector of
Dadra and Nagar Haveli amounted to acceptance by conduct by the Collector of the 1st respondent's resignation, as
alleged in the aforesaid paragraph?
3. Whether acceptance of the 1st respondent's application
made after 21st November, 1984 relates back to the date of
the application as alleged in the aforesaid paragraph?
4. Whether the Collector, by not passing any orders on the
application, is deemed to have accepted the resignation, as
alleged in the aforesaid paragraph?"
The learned Judge answered all the above issues in the negative
and agains< the appellant. The appeal was taken up for hearing again
after the receipt of the records from the High Court.
The first question which arises for consideration in this case is
D whether the letter of resignation dated November 21, 1984 should be
treated as one submitted under Rule 5(1) of the CCS Temporary
Service Rules. it is true that in the letter of resignation the appellant
states that 'this letter of giving up my post as temporary Government
y·. ~
servant is covered by Rule 5(1)(a) of the CCS Temporary Service
Rules' and that there is no specific reference to Condition No. 6 of the
E letter of appointment which authorised the appellant to resign from his
post by remitting one month's pay plus allowance to the Government.
Still in the circumstances of the case we feel that the finding of the
learned Judge of the High Court that it could be treated only as letter
--{:
of resignation under Rule 5(1)(a) of the CCS Temporary Service Rules
, Is unsustainable.