Appeal No 1749 of 1980
From the Judgment and Order dated 263
1980 of the Gujarat High Court in Special Civil Application No 1606 of 1975
DA Dave Vimal Dave R Karanjawala Mrs Manik Karanjawala Jitender Singh and PK Mullick for the Appellant
RR Goswami SK Dholakia PH Parekh Fazal HK Rathod and SC Patel for the Respondents
The following Order of the Court was delivered The State of Gujarat the appellant herein is aggrieved against a mandamus issued by the High Court of Gujarat on March 26 1980 in Special Civil Application No 160675 whereby its decision to impose a ratio while working out a Quota rule was upset
The minimum facts are these In the State Public Works Department there was an Electrical Engineering Branch
By Resolution dated July 10 1972 the services in the said branch wef May 1 1972 were trifurcated on the same pattern as was 386 done in other branches
The result was that the trifurcation ended into three cadres 1 Junior Engineers 2 Supervisors and 3 Over seers
The compartment of Over seers is a surplus age
There was only one Overseer at the relevant time and he stood retired
In substance it was a bifurcation between Junior Engineers and Supervisors the former being graduates and the latter being diploma holders
This exercise of the State Government was challenged in a writ petition before the High Court in Special Civil Application No 185573 which was negatived by the High Court by an order dated 2nd April 1975
The High Court directed that in working out the trifurcation the Government must provide criterion for promotion from the three independent cadres
In compliance thereof the State Government adopted a Resolution dated 2691975 introducing a quota rule effective from May 1 1972 at the ratio of 21 for Junior Engineers and Supervisors respectively for promotion to the posts of Deputy Engineers
The nine contesting respondents herein preferred a writ petition being Special Civil Application No 160675 before the High Court challenging the trifurcation as also the quota rule
The High Court repelled the challenge in so far as it related to the trifurcation and the adoption of quota rule but struck down the ratio of 21 holding it to be unjustified as also the disparity in qualifying service from both the channels
The High Court concluded as follows We are therefore of the opinion that though it was within the power of the State Government to bifurcate the unified cadre into two distinct cadres of Junior Engineers and Supervisors and though it was within the power of the State Government to prescribe a quota for both of them for the purpose of promotion to the higher posts of a Deputy Engineer there was no justification for prescribing the quota of 21 and a longer qualifying service for the Supervisors
Therefore the promotional rule which prescribes unequal quota and an unequal length of qualifying service for Supervisors for promotion to the posts of a Deputy Engineer is liable to be struck down
 And accordingly it did by issuing a mandamus
The State Government of Gujarat when appealing to this Court was unsuccessful in obtaining a stay of operation of the impugned judgment
387 As a consequence it had to obey the mandate of the High Court which was to the effect that the ratio of 21 could not be enforced
As a result the quota rule went out of gear
It was left open all the same to the State Government to make any other rational rule in that behalf
Even this Court on 18121980 at that juncture ordered Let the Government frame a fresh quota rule consistent with the High Court judgment under appeal for the purpose of making promotions during the pendency of the appeal  Pursuant thereto it appears that the State Government was constrained to introducing of a Rule under Article 309 of the Constitution
But before we advert to that Rule it would be relevant to mention that earlier in point of time by Notification dated July 4 1978 Rules known as Deputy Engineer Electrical Recruitment Rules 1978 were framed under Article 309 of the Constitution giving a statutory clothing to the Resolutions dated 10772 and 26975
Unfortunately these statutory provisions were not brought to the notice of the High Court nor were they put to challenge
The matter in the High Court proceeded on the assumption that an executive action of the State was under challenge
The necessary assumptions and presumptions well known to law and the placement of onuses went unnoticed
In this background and facing the situation so arising the State Government issued a Notification on April 12 1982 by causing a substitution in the earlier Rules of 1978 aforementioned by fixing t he promotional ratio from both sources at 11 but subjected them to the result of the instant litigation emerging from this Court
We stand deprived of the pleadings of the parties before the High Court
The pleadings now introduced do not help us
Significantly the High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 21 for Junior Engineers and Supervisors respectively
The tenor of the judgment of the High Court does however suggest that the executive flexibility with which the Government works could not justify the fixation of the ratio of 21
The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio
Had the factum of the legislation on the subject the Rules dated 471978 been brought to its notice perhaps the High Court s angle of vision would have been different
The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality
No such measure can ever be permanent that would hold good for all times to meet not only the present needs but also future exigencies as well
Hands of the State cannot to so 388 tied down
That would be a step retrograde to the growth and working of a democracy
The State is now left to devise a ratio other than the ratio of 21 and cause a variation
It cannot come to that ratio again
This appears to us an undesirable situation
It must be left to the State to get at it again
Though obeying the mandamus of the High Court the State must be free to arrive at the original ratio of 21
On some basis the Governor of the State appears to have legislated on the subject
It was on the writ petitioner s now respondents to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary violative of Article 14 of the Constitution
As said before no such data appears to have been placed before the High Court
On these circumstances we are left with no option but to upset the judgment of the High Court and remand the matter back to it for reconsideration
In doing so we may set at rest the controversy regarding difference of length of qualifying service from both sources
The controversy does not survive in view of Roop Chand Adlakha  Ors
vs Delhi Development Authority  Ors 1989 Supp
I SCC 116
The High Court need not advert now to the disparity in length of qualifying service from the channels of promotion
In the meantime however status quo needs to be preserved
The substituted Service Rules of 1982 shall continue to operate till the decision of the High Court and the promotions as before shall continue subject to the result of the judgment of the High Court
In these terms we allow the appeal and set aside the judgment
The High Court may pass appropriate orders afresh after permitting the parties to amend their pleadings if necessary and putting the onus on the writ petitioners to prove unfairness in the 1978 Rules or violation of Article 14 of the Constitution
Since it is an old matter we request the High Court to dispose it of as quickly as possible preferably within six months
No Costs
VPR Appeal allowed


Summary:
For election to the Himachal Pradesh Legislative Assembly from 60 Chachiot Assembly Constituency held during February 1990 fifteen persons including the appellant and one Karam Singh filed nomination papers
At the time of scrutiny an objection was raised against the nomination of Karam Singh on the ground that he was holding the office of Chairman Himachal Pradesh Khadi and village Industries Board which is an office of porfit within the meaning of Article 191 1 a of the Constitution and was therefore disqualified for being chosen as a member of the legislative Assembly
The Returning Officer upheld the objection and rejected the nomination of Karam Singh
The appellant was declared elected to the Legislative Assembly from the said Constituency
His election was challenged by the Respondents by filing election petitions in the High Court of Himachal Pradesh
The High Court found that the said rejection of nomination of Karam Singh was improper because on the date of scrutiny Karam Singh was not holding an office of profit and for that reason the election of the appellant was set aside
The appellant herein filed the present appeals under section 116 A of the Representation of the People Act challenging the judgment of the High Court of Himachal Pradesh 251 During the pendency of the appeals the Himachal Pradesh Legislative Assembly was dissolved
After considering the appeals on merits the Court which dismissing the appeals HELD  1
Inspite of the dissolution of the Himachal Pradesh Legislative Assembly the question arising for consideration cannot be said to have become academic because the invalidation of the election of the appellant may give rise to the liability to refund the allowances received by the Appellant
253G 255 B Loknath Padhan vs Birendra Kumar Sahu   distinguished
253G 201 Resignation  means the spontaneous relinquishment of one s own right and in relation to an office it cannotes the act of giving up or relinquishing the office
The act of relinquishment may be unilateral or bilateral depending on the return of the office and the conditions governing it
260F 202If the act of relinquishment is of unilateral character it comes into effect when such act indicating the intention to relinquish the office is communicated to competent authority
The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti
260G 203In cases where the act of relinquishment is of a bilateral character the communication of the intention to relinquish by itself would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish eg acceptance of the said request to relinquish the office and in such a case the relinquishment does not become effective or operative till such action is taken
260H261A B 301
From the provision of Section 7 of the HP Khadi and Village Industries Board Act 1966 the Act  it would appear that the act of relinquishment of the office of Chairman of the HP Khadi and Village Industries Board the Board is unilateral in character and the resignation from the said office takes effect when it is communicated without any 252 further action being required to be taken on the same
Since the Chairman of the Board is nominated by the Government of Himachal Pradesh under Section 42 of the Act resignation has also to be communicated to the Government of Himachal Pradesh ie the Head of the Department dealing with the Board and once it is so communicated it takes effect from the date of such communication if the resignation is in praesenti or from the date indicated therein if it is prospective in nature to be operative from a future date
263G H 264A B 302The resignation of Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh
It became effective on January 31 1990 when the letter of resignation was received by the Financial Commissioner cum Secretary Industries to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed
265D 303Since there is no requirement in the Act that the resignation of the Chairman of the Board should be notified in the Official Gazette as in the case of a member of the Board it cannot be said that the resignation of Karam Singh did not take effect till it was notified in the Official Gazette vide notification dated February 12 1990
265E Central Inland Water Transport Corporation Limited and Another vs Brojo Nath Ganguly and Anr  JK Cotton Spinning and Weaving Mills Company Ltd vs State of UP  Others   Lala Ram vs Gauri Shanker 1981 All
Law 1982 Raj Kumar vs Union of India 1968 SCR 857 Union of India vs Shri Gopal Chandra Misra  Ors  at p 21 and Glossop vs Glossop  Halsburys Law of England 4th Ed Vol 7 p 316 para 536 relied on
260D G 261G 262G