Case: Moti Ram Vs. Param Dev &amp; Another

The relevant facts relating to the rejection of the nomination of Shri Karam Singh are as under.The Himachal Pradesh Khadi and Village Industries Board (hereinafter referred to as the Board). has been established by the Government of Himachal Pradesh under Section 3 of H.P. Khadi and Village Industries Board Act, 1966 (hereinafter referred to as the Act). Section 4 provides for the constitution of the Board and init is laid down that the Board shall consist of not less than three and not more than nine members appointed by the Government of Himachal Pradesh after consultation with the Khadi and Village Industries Commission from amongst non-officials who in the opinion of Government of Himachal Pradesh have shown active interest in the protection and development of khadi and village industries and officials. In sub-s. (2) of Section 4 it is provided that the Government of Himachal Pradesh shall after consultation with the Khadi and Village Industries Commission, nominate one of t he members of the Board to be the Chairman thereof, Section 7 makes provision for resignation of office by members. Section 11 provides that the term of office and terms and conditions of service of the Chairman, Vice-Chairman, Secretary an d other members shall be such as may be prescribed. In exercise of the powers conferred by Section 35 of the Act, the Government of Himachal Pradesh has made the Himachal Pradesh Khadi and Village Industries Board Rules, 1966 (hereinafter referred to as the Rules). Rule 3 of the Rules prescribes that a member of the Board shall hold office for such period not exceeding three years as may be prescribed in the notification of his appointment which shall be notified in the Official Gazette and shall be eligible for re-appointment. Rule 7 provides for salary or honorarium and allowance payable to members. Sub-rule (1) of Rule 7 provides that the Chairman, the Vice-Chairman, the Secretary and othermembers of the Board shall be paid such salary or honorarium and allowances from the funds of the Board as the Government may from time to time fix. In sub- rule (2) of Rule 7, it is laid down that the Chairman, the Vice-Chairman, the secretary and other members of the Board shall also be entitled to draw travelling and daily allowances for journeys performed for attending the meetings of the Board or for the purpose of discharging such duties as may be assigned to them by the Board in accordance with the rules and orders issued by the Government from time to time at the highest rate admissible to Government servants of Grade 1. By notification dated September 2, 1982, issued in exercise of the powers conferred by Rule 7 of the Rules, the Governor of the Himachal Pradesh, ordered that the Chairman of the Board shall be entitled to pay and other allowances from the Funds of the Board at the following rates:-(1) Pay/remuneration/honorarium of Rs. 1500 p.m. (consolidate) Free electricity and water charges upto Rs. 1500 per year.(3) Use of a car or in lieu thereof a conveyance allowance of Rs. 300 per month. (4) Telephone facilities in office and at residence.(5) TA and medical expenses admissible to the officers of Highest First Gradenotification dated December 27, 1986, the Governor of Himachal Pradesh constituted the Board with immediate effect. Under the said order, the Board consisted of nine members including Shri Karam Singh Thakur. By the said order the Governor of Himachal Pradesh also nominated Shri Karam Singh Thakur as Chairman of the said Board. By notification dated December 20, 1989, the term of the Board was extended upto December 26, 1990. On October 18, 1989, Shri Karam Singh Thakur wrote a letter to the Financial Commissioner-cum-Secterary (Industries) to the Gover nment of Himachal Pradesh wherein it was stated that consequent upon amendment to Second Proviso to section (1) of section 6B of the Himachal Pradesh Legislative Assembly (Allowances and Pension of members) Act, 1971, his pension had been revised to Rs. 2400 per month with effect from February 4, 1989 and that on the basis of the said orders,he was authorised by the Senior DAG(A&), Himachal Pradesh, Shimla, by letter dated 6th July, 1989, to draw from Shimla Treasury the balance pension of Rs . 900 p.m. after adjusting the remuneration of Rs. 1500 which he had been drawing as remuneration from the Board and the pension of Rs. 900 p.m. plus relief due thereon from the Punjab National Bank through Treasury Officer, Shimla. By aforesaid letter, Shri Karam Singh intimated that he now intended not to draw the monthly remuneration of Rs. 1500 p.m. from the Board and that instead he would be drawing the gross pension of Rs. 2400 p.m. from the Treasury/Bank and he requested that no objection of the State Government to the said proposal may be conveyed to him at an early date. The said proposal made by Karam Singh was accepted by the Government of Himachal Pradesh and by notification dated January 8, 1990 issued under Rule 7(1) of the Rules, the Governor of Himachal Pradesh ordered that the remuneration of Rs. 1500 p.m. (consolidated) which was payable to the Chairman of the Board shall cease as per the request of the Chairman made vide his letter dated October 18, 1989.On January 31, 1990, Shri Karam Singh addressed a Letter to the Financial Commissioner-cum-Secretary (Industries) to the Governor of Himachal Pradesh in the followinghereby resign from the member ship and Chairmanship of the Himachal Pradesh Khadi and Village Industries Board. The resignation may kindly be accepted with effect from today Le. 31st January,the basis of the letter of January 31, 1990, which was received on the same day, the matter was processed in the office of Financial Commissioner-cum-Secretary (industries) and it was placed before the Chief Minister for his approval with the recommendation that the resign ation of Shri Karam Singh, Chairman, may be accepted. The Chief Minister gave his approval on February 4, 1990. On February 12, 1990, a notification was issued in the followingexercise of the powers vested in him under section 7 of the Himachal Pradesh Khadi and Village Industries Board Act, 1966, the Governor, Himachal Pradesh is pleased to accept the resignation of Shri Karam Singh Thakur, Chairman, H.P. Khadi and Village Industries Board, Shimla with immediatethe meanwhile, Shri Karam Singh filed his nomination papers for election to the Himachal Pradesh Legislative Assembly from the 60 Chachiot Assembly constituency. The scrutiny of the nomination papers was held on February 5, 1990. An objection was raised against the nomination of Shri Karam Singh on behalf of one of the candidates, vizSingh, on the ground that Shri Karam Singh was holding an office of profit and was disqualified for being chosen as a member of the Legislative Assembly. Shri Karam Singh was not present at the time of scrutiny but his proposer, Shri Mani Ram , Advocate, was present and he was requested to ensure the appearance of Shri Karam Singh before the Returning Officer on February 6, 1990 at 11.00 a.m. for hearing him in connection with the objection. The Returning Officer also directed Tehsildar (Elections) to enquire from the Secretary of the Board about the remuneration and other allowances being drawn by Shri Karam Singh in his capacity as chairman of the Board. The report of the Tehsildar was placed before the Returning Officer. Shri Mani Ram, Advocate, as proposer of Shri Karam Singh also submitted a reply to the Returning Officer on February 6, 1990 wherein it was stated that Karam Singh had resigned from the chairmanship on 29th or 30th of January 1990 and that the acceptance of the resignation was not kwown to Shri Karam Singh. By order dated February 7, 1990, the Returning Officer rejected the nomination of Shri Karam Singh on the view that were submission of the resignation unless it was accepted, could not be taken as deemed to have been accepted and that Shri Karam Singh was holding an office of profit as his resignation had not been accepted upto February 5, 1990 which was the date for scrutiny, and that he was not eligible to seek election as a candiate for the Himachal Pradesh Legislativethe High Court, it was submitted on behalf of the petitioners in the election petitions (respondents herein) that Shri Karam Singh had resigned with effect from January 31, 1990 vide his resignation letter of the said date and the said letter takes effect from January 31, 1990 itself. The High Court accepted the said contention and held that the Act is silent and contains no provision as to how and in wh at manner the resignation of the Chairman of the Board is to be accepted and therefore the holder thereof could bring his appointment to an end by resigning with effect from a particular date and he would then be deemed to have ceased to be Chairm an from the date itself notwithstanding its acceptance on a later date. The High Court was, therefore, of the view that Shri Karam Singh held no office of profit whatsoever in the Board on the date of scrutiny, i.e., February 5, 1990 since he ha d tendered his resignation on January 31, 1990. The High Court, further, found that in view of the letter dated October 18 1989 sent by Shri Karam Singh conveying his request of giving up the remuneration of Rs. 1500 per month (consolidated) which request was accepted by the State Government as pet notification dated January 8, 1990, pursuant to which Shri Karam Singh ceased to be entitled to draw the abovementioned remuneration with effect from January 8, 1990, Shri Karam Singh was not entitled to remuneration which could be classified as `profit for the office of Chairman of the Board held by him and after January 8, 1990, it could not be said that Shri Karam Singh was holding an office of profit and therefore the disqualification for membership of the Legislative Assembly of Himachal Pradesh could not attach to him. For the reasons aforesaid, the High Court held that the nomination of Shri Karam Singh was wrongly rejected by the Returning Officer.Shri Ganguli has assailed the findings recorded by the High Court on both the questions whereas Shri B. Datta, the learned senior counsel appearing for the respondents has supported the said findings. It is not disputed that in view of the amendment introduced in clause (a) of sub-s. (2) of Section 36 of the Representation of the People Act, 1951 by Act 40 of 1961, the relevant date for determining whether a candidate was qualified or disqualified for being chosen to fill the seat under the various provisions of Constitution mentioned therein, including Article 191, is the date fixed for scrutiny of nominations. In the instant case the said date was February 5, 1990. It is, therefore, necessary to determine whether Shri Karam Singh was holding an office of profit on February 1990.

Court's reasoning:
The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position. The resignation of Shri 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. Since there is no requirement in the Act that the resignation of the Chairman of the Bord 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 Shri Karam Singh did not take effect till it was notified in the official gazette vide notification dated February 12, 1990.The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the dat e of scrutiny, i.e., February 5, 1990, he was not holding an office of profit. For that reason, it has been rightly held that the nomination of Shri Karam Singh was improperly rejected by the Returningwe are in agreement with the view of the High Court that the nomination of Shri Karam Singh had been improperly rejected for the reason that he was not holding the office of the Chairman of the Board on the date of scrutiny, we do not consider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990.