ivil Appeal No 1632 of 1985
From the Judgment and Order dated 241985 of the Bombay High Court in Election Petition No 1 of 1985
Ram Jethmalani Kapil Sibbal Karanjawala Mrs R Karanjawala Ejaz Mazbool and Ms Priya Jaitley for the Appellant
TS Krishnamurthy lyer SD Lal and HK Puri for the Respondents
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 elec tion the 1st Respondent who was one of the defeated candi dates 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 Gov ernment other than an office declared by Parliament by law not to disqualify its holder
The High Court accepted the contention of the 1st Respondent and set aside the election of the appellant by its judgment dated April 2 1985
This appeal is filed 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 1st Respondent was a member of the last Lok Sabha
On 1311
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 251979 as a 640 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 condi tions 1
He will be governed by the Central Civil Services Rules
The appointment is purely on temporary basis and is liable to be terminated at ONE month s notice
       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
         
The above order of appointment was issued by the Collec tor of the Union territory of Dadra and Nagar Haveli Silva sa
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 51 of the said Rules which dealt with the termination of temporary service read as follows 51a 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 service of any such Government servant may be terminated forthwith and on such termination the 641 Government servant shall be entitled to claim a sum equiva lent 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 2711
1984 and the date of scrutiny of the nomination papers was 2811
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 Have li who was the appointing authority tendering his resigna tion
The said letter read as follows From Shri Sitaram J Gavali Investigator Office of the Development  Planning Officer Dadra and Nagar Haveli Silvasa
Silvasa November 21 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 Constit uency I the undersigned hereby give up my post of Investi gator 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 21111984 of Rs102405 Rupees One Thousand Twenty four and paise five only in 642 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 51a of CCS Temporary Service Rules
Yours faithfully Sd SJ 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 102405 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 23111984 he met the Collector and also the Secretary to the Administrator of Dadra and Nagar HaveIi who was the returning officer of the said election
Then on 24111984 he wrote a letter to the Development  Planning Officer Dadra and Nagar Haveli Silvasa which reads thus From Shri Sitaram J Gavali Silvasa
24111984 To The Development  Planning Officer Dadra and Nagar Haveli Silvasa
Sir I have already submitted my application dated 21111984 to the Hon
Collector through the Development and Planning Officer to relieve me from my post with 643 immediate effect and as per the law t also tendered a sum of Rs 102405 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 the 23111984 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 21111984 I ceased to be a Govern ment servant from that date ie 21111984
Under the circumstances I submit herewith all files and other records along with all registers may kindly be taken in your posses sion so that in future I am eligible to file my nomination for Lok Sabha Election for Dadra and Nagar Haveli Parliamen tary Constituency before the Returning Officer
I submit the above mentioned document today ie 241184 at 1000 hrs
Kindly acknowledge the receipt of the same
Thanking you Yours faithfully Sd SJ Gavali 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 Secre tary of the Administrator on 23111984 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 24111984
He also filed an additional nomination paper on 26111984
Since the appellant did not get any written reply from the Collector to the above letter of 24111984 till 26111984 he wrote another letter on 26111984 to the Returning Officer Dadra and 644 Nagar Haveli Constituency Silvasa who was also the Secre tary to the Administrator which read thus From Shri Sitaram J Gavali Silvasa
26111984 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 1311
1984 I took decision to contest the same
Dadra and Nagar Hayeli 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 21111984 under Rule 51a of the CCS Temporary Service Rules 1965 my service can be terminated by me by giving a notice in writ ing to the appointing authority
Accordingly I have ad dressed a letter dated 21111984 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 CCS 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 21111984 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 21111984 itself
That thereafter on 23111984 one express Telegram has 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 21111984
A copy of that telegram is hereto annexed as Annexure B
I say that I have ceased to be a Govt
servant on 21111984 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 20121984
Thus I will not be holding any office of profit with the Govt
of India on 24121984 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 24121984 as contemplated by Article 102 of the Consti tution of India
1 am addressing this letter to you out of abundant caution as I fear that the sitting member of Par liament 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 21111984 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 con tention that I have ceased to be a Govt
servant on 21111984 itself in any case I shall cease to be one on 20121984
This position cannot be in dispute in view of the absolutely clear position of Rule 5 of the CCS 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 borne in mind when my nomination papers are scrutinised on 2811
Yours faithfully SITARAM J GAVALI Copies of the above letter were sent by the appellant to the Administrator Dadra and Nagar Haveli Caho Niwas Panjim Goa Election Commission of India Chief Electoral Officer Dadra and Nagar Haveli and to SCST Commissioner for infor mation and necessary action
On the same date he received a reply from the office of the 646 Administrator Dadra and Nagar Haveli which read as follows No ADMSECTMISCSJG84 Administration of Dadra and Nagar Haveli Silvasa date 26111984
To Shri Sitaram J Gavali Investigator Through the DPO Dadra and Nagar Haveli Silvasa
I am directed to refer to your letter dated 2111
1984 addressed to Collector under which you had issued notice under Rule 51a 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 exam ined 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 Wire less Message dated 23111984
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 51 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 51 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 SS 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 21111984 and 647 necessary legal opinion had been obtained thereon
The said letter however informed him that there was no provision under Rule 51 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 51 of the said Rules and that the notice of termina tion 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 21121984
In reply of the said letter the appellant wrote a letter dated 2711
1984 to the Secretary to the Administrator Dadra and Nagar Haveli which read thus From Sitaram Jivyabhai Gavali Silvasa
27111984 To Secretary to the Administrator Dadra and Nagar Haveli Silvasa Subject Lok Sabha Election matter Sir I the undersigned Shri SJ Gavali beg to state under 1
I have received your letter No ADMSecyMiscSJG84 dated 26111984
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 ADMESTCRCC14661979 dated 2879
The said appointment is subject to the conditions fixed by the administration
648 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 contin ued
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 21111984 and tendered my notice by the said letter giving up my post as temporary Govt
serv ant
I have also submitted detailed representation to the Returning Officer Dadra and Nagar Haveli Silvasa on 2511
I have already given my charge to the Development and Planning Officer Dadra and Nagar HaveIi Silvasa vide my letter dated 24111984
I am not holding any office of profit with the Govt
of India from 21111984
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
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
serv ants have tendered their resignation with one month s pay as per the terms and conditions of their appointment orders
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
649 Name Date of acceptance of resignation
Shri JV Desai 12478 Stockman Khanvel Shri CV Patel 3111983 Stockman Shri AH Patel 30884 Primary School Teacher Shri DG Shah  
High School Teacher Shri RG Chauhan 71984 Primary School Teacher Shri JD Patel
101984 Lineman PWD Silvasa
He was relieved on same day The Administration should take equal decision for all employees
But different decision taken for me is against law equity and justice
I am addressing this letter to you out of abundant cau tion as I fear that the sitting member of Parliament Mr RP Mahala who is close friend of the present Collector has improperly prevailed over the Collector to sleep over my letter dated 211 l1984 and taken wrong contention
The reply given by your office vide letter No ADM SecyMiscSJC84 dated 26111984 is not as per law and against the relevant rules and regulations and terms of my appointment order
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
1 have explained clear position to you
I therefore request you to do 650 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 SJ 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 that 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 24111984 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 serv ants on payment of one month s notice pay 
In reply to the above letter he got a reply from the Development and Plan ning Officer Dadra and Nagar Haveli Silvasa on December 211984 along with the demand draft for Rs102405 paise which had been deposited by the appellant on 21111984
The said letter read thus Administration of Dadra and Nagar Haveli UT Department of Rural Development No DPOESTEF SJG84 852 153 Silvasa 21121984
To Shri Sitaram J Gavali Investigator Dadra and Nagar Haveli At and Post Khanval
Sir I am directed to refer to this Administration s letter No ADHSECYMISCSJC84 dated 261184 and as mentioned therein your notice of termination of services 651 takes effect on the expiry of the prescribed period of one month
There is no provision under Rule 51 of the CCS Temporary Services Rules 1965 under which the Government servant can deposit one month s pay in lieu of the pre scribed period of notice
Under the circumstances the demand draft of the State Bank of India Silvasa Branch bearing No C 199981 dated 21111984 of Rs102405 received alongwith your application dated 21111984 is returned herewith
Kindly acknowledge the receipt for the same
Yours faithfully Sd Development and Planning Officer Dadra and Nagar Haveli Silvasa
 In the meanwhile on 28111984 ie the date of scru tiny of the nomination papers the Returning Officer passed the following order overruling the objection which had been raised by the 1st Respondent to the nomination of the appel lant 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 he is disqualified to be a Member of House of People in accordance with Article 102 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 l 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 652 Haveli
Hence I decide to give the benefit of this doubt to the candidate and accept this nomination
Sd 28111984 Returning Officer Dadra and Nagar Haveli Silvasa 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 1st 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 51a 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 resigna tion 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 sub mission of flies 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 ie 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 1021 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 11
1986 remitting the case to the High Court under Order 41 Rule 25 of the Code of Civil Procedure
The said order reads thus 653 On hearing counsel and on going through the judg ment of the High Court and the application for amendment of the Written Statement now filed by the appellant the re turned 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 in the election petition
We therefore in the interests of jus tice 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 plead ings 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
 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 additional 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 1
Whether the acceptance of the files and records in the possession of the 1st respondent by the Development and Planning Officer Dadra and Nagar Haveli amounted to ac ceptance by conduct of the 1st respondent s resignation as alleged in paragraph 5A 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 654 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 al leged 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 against 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 whether the letter of resignation dated Novem ber 21 1984 should be treated as one submitted under Rule 51 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 servant is covered by Rule 51a of the CCS Temporary Service Rules  and that there is no specific reference to Condition No 6 of the 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 circum stances 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 51a of the CCS Tempo rary Service Rules is unsustainable
Clause a of Rule 51 of the CCS Temporary Service Rules authorises the termination of temporary service of a Government servant who is not a quasi permanent servant 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
Clause b of Rule 51 of the CCS Temporary Service Rules prescribes the period of such notice as one month
The proviso to Rule 51 however authorises the appointing authority and not the Government servant to terminate the temporary service of the Government servant forthwith and that on such termination the Government serv ant becomes 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 service or as the case may be for the period by 655 which such notice fails short of one month
There is no provision in the CCS Temporary Service Rules which autho rises a Government servant to bring about the termination of his temporary service as provided in Rule 51 by paying a sum equivalent to the amount of his pay and allowances of the period of notice at the same rates at which he was 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
But it needs to be emphasized that in his letter of resignation the appellant had clearly conveyed that he was giving up the post held by him forthwith and he was tendering along with the said letter a demand draft drawn on the State Bank of India Silvasa Branch for a sum of Rs 102405 paisa
He also stated in the said letter that he would cease to be a temporary Government servant from that date
If the letter of resignation was truly one which had been submitted under Rule 51 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 102405 paise
Such payment was contemplated only when the resignation was under Condi tion No 6 of the letter of appointment issued in favour of the appellant about which the appointing authority could not have been unaware
If the concerned authority had not real ized that it was a resignation pursuant to such condition the said authority would have returned instead of retain ing the demand draft at once or at the earliest
That he did not do so tells its own tale
The existence of Condition No 6 in the letter of appointment is not in dispute
The appellant had drawn the attention of the Administration of the Dadra and Nagar Haveli to the acceptance of resignations of six officials who were similarly placed forthwith by the Administration on payment of one month s pay plus allow ances
It may also be noted that in his letter dated 2711
1984 the appellant had clearly stated in terms that the letter of resignation had been submitted in pursuance of Condition No 6 of his letter of appointment
The correct ness of the statement in the deposition of the Planning and Development Officer who was examined after remand that a letter dated 24111984 as per the original or Additional exhibit D 2 had been sent to the appellant informing the appel lant that his letter of resignation was under consideration is in dispute
The appellant has denied the receipt of the same
There is no evidence supporting the service of that letter on the appellant
This circumstance cannot there fore be treated as having been established
We therefore do not agree with the finding of the learned Judge of the High Court that the letter of resignation submitted by the appellant on 21111984 was one submitted under Rule 51 of the CCS Temporary Service Rules
It is further seen that the Administration has withdrawn by a specific order subse 656 quently the condition which authorised a temporary Govern ment servant to resign from his post forthwith by tendering a month s pay plus allowances
The letter of resignation of the appellant was one which was submitted pursuant to Condi tion 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
It is significant that the Ministry of Home Affairs had not noticed the existence of Condition No 6 when it was consulted by the Collector as this aspect was not brought to the notice of the Ministry
The said condition was only supplementary to the modes of termination of temporary service referred to in Rule 51 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 suggest ed or faintly hinted in the High Court that there was any such inconsistency
It is well recognised that a new service condition may be 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
It is not shown in the facts and circumstances of the case and the material produced in the Court that there is any inconsistency be tween Condition No 6 and any other order rule or law
In the circumstances we hold that the letter of resignation is one submitted pursuant to Condition No 6 in the letter of appointment issued in the case of the appellant
The next point for consideration is whether there has been full compliance with Condition No 6 of the letter of appointment of the appellant
Admittedly the demand draft for Rs 102405 paise which was equivalent to the pay plus allowances which the appellant was drawing every month immediately prior to the date of his letter of resignation had been tendered along with the letter of resignation as enjoined by Condition No 6
The only question that remains to be considered is whether the appellant had been relieved from his service by the Administration
Condition No 6 provided that 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 period pay before he could be relieved from service 
No rule or executive order prescribing the method or manner in which a temporary Gov ernment servant of the rank of an Investigator could be relieved from service under Condition No 6 of the letter of appointment is brought to our notice
Nor it is shown by adducing any evidence as to what practice had come to vogue as regards relieving such a person
The resignation 657 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 Govern ment servant
In the case of an ordinary resignation which is governed by the Memorandum No 35657 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
It is implicit in such a condition that the nature of his employment is such that he can be relieved forthwith with outthe 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
The only thing that has got to be decided in this case is whether the appellant had been actu ally relieved from service
There is no dispute that at 1000 AM on 24111984 before the appellant submitted his nomination paper to the Returning Officer he had handed over 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 allowance for the period subsequent to 20111984 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 21111984 except for handing over the records files registers etc
on 24111984 The appellant was not asked by the Collector to attend the office till 21121984 nor grievance was made against him for his absence in the wake of his resignation
There was no disciplinary proceed ing or any other kind of enquiry pending against the appel lant which required the appointing authority not to relieve the appellant from his service in the public interest
And there was no objection raised as a matter of fact on any ground to his being treated as having ceased to be in serv ice eventually till the expiry of one month from the date of his service
It is not as if for administrative reasons his resignation was not acceptable for any reason
It appears to us that the appellant s 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
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 candi date held an office of profit on the date of scrutiny or that his nomination paper was wrongly accepted by the Re turning Officer
He cannot therefore successfully assail the election of the returned candidate the appellant herein
In these circumstances we are of the view that the appellant 658 should be deemed to have been relieved from his service at 1000 AM on 24111984 and he had ceased to be a Govern ment servant before he submitted his nomination paper on 24111984
In the view we have taken it is not necessary to go into the question whether the Collector had deliberately delayed the acceptance of the resignation of the appellant with a view to assisting the 1st Respondent who was a Member of the last Lok Sabha as alleged by the appellant
We therefore allow this appeal set aside the judgment of the High Court and dismiss the election petition
The appellant is entitled to the costs both before the High Court and in this Court which we quantify at Rs5000
The 1st Respondent shall pay the costs of the appellant
The appeal is accordingly allowed
SR Appeal allowed


Summary:
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 Constituency which was a constituency reserved for the members belonging to the Scheduled Tribes
As he was holding the post of an Investigator as a temporary Government serv ant governed by the Central Civil Services Temporary Serv ices Rules 1965 and also by condition 6 of his appointment order he wrote a letter on November 21 1984 to the Collec tor of Dadra and Nagar Haveli who was his appointing au thority tendering his resignation and enclosing a demand draft drawn on the State Bank of India for a sum of Rs102405 paise being one month s notice pay
On 24111984 at 10 AM he wrote another letter to his immedi ate officer and submitted all the records and files which were with him
He thereafter filed his nomination paper on the same day ie two days before the last date for filing the nomination papers
On 261184 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 contention that he ceased to be a gov ernment servant with effect from 211184 while scrutinis ing the nomination paper
On the same date he received a reply from the office of the Administrator Dadra and Haveli to the effect that his resignation would take effect from 211284 on the expiry of one month s notice and that 636 his remitting one month s notice pay was not contemplated under Rule 51a of the Central Civil Services Temporary Services Rules 1965 as per the legal opinion obtained
On 271184 the appellant sent a reply bringing to the Admin istrator s notice condition No 6 of his appointment order and also cases of six other officers whose resignations were accepted forthwith accepting one month s notice pay from them
The appellant also alleged mala fides and pressure by Respondent No 1 the then sitting member of the Parliament on the Collector
In reply to the said letter the Develop ment and Planning Officer by his letter dated 211284 reiterated the Administrator s stand and returned the demand draft
In the meanwhile on 281184 ie the date of scrutiny of the nomination papers the Returning Officer overruled the objection raised by Respondent No 1 that since the appellant was holding an office of profit under the Govern ment 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 Repre sentation of People Act 1951 was remitted to the High Court for amendment of written statement framing of fresh issues and 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
Allowing the appeal the Court HELD 1
The letter of resignation dated November 21 1984 cannot be treated as one submitted under Rule 51 of the Central Civil Services Temporary Service Rules 1965
The proviso to Rule 51 authorises only the appointing authority to terminate the temporary service of the Govern ment servant forthwith and that on such termination the Government servant becomes entitled to claim a sum equiva lent 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 fails short of one month
There is no provision in the CCS Temporary Service Rules which authorises a Government servant to bring about the termination of his temporary service as provided in Rule 51 by paying a sum equivalent to the amount of his pay and 637 allowances of the period of notice at the same rates at which he was 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 resigna tion was truly one which had been submitted under Rule 51 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 Rs102405
Such payment was contemplated only when the resignation was under condition No 6 of the letter of appointment issued in favour 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 earliest
654D G H 655A E 12 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 termina tion of service of a temporary government servant
The said condition was only supplementary to the modes of termination of temporary service referred to in Rule 51 of the CCS Temporary Service Rules and it was not in any way inconsist ent 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 13
It is well recognised that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not re pealed 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 pro duced in the Court and in the absence of any inconsistency between condition No 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 21 There has been full compliance with condition No 6 of the letter of appointment as a demand draft was enclosed being a month s notice pay and allowances
656E F 22 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 638 governed by the Memorandum No 39657 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 serv ice under Condition No 6 of the letter of appointment 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 23 The appellant should be deemed to have been relieved from his service at 1000 AM on 24111984 and he had ceased to be a Government servant before he submitted his nomination paper on 24111984
At 1000 AM on 24111984 before the appellant submitted his nomination paper to the Returning Officer he had handed over 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 allowance for the period subsequent to 201184 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 211184 except for handing over the records files registers etc
on 241184
The appellant was not asked by the Collector to attend the office till 211284 nor grievance was made against him for his absence in the wake of his resignation
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 raised as a matter of fact on any ground to his being treated 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 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 Wrongly accepted by the Returning Officer
He cannot there fore suc 639 cessfully assail the election of the returned candidate the appellant herein
657G H