Harilal Prajapati vs Rajendra Kumar

G.S. Solanki, J.—The petitioner has filed this petition under Section 80 read with S.81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act of 1951), against the election of the returned candidate viz. respondent to 81, Deosar Constituency of M.P. Legislative Assembly for which elections was held on 25.11.2013 and result was declared on 10.12.2013 inter-alia on the grounds that the petitioner is a voter of 81, Deosar Constituency for M.P. Legislative Assembly, his name is entered in voter list of Deosar Legislative Constituency No. 81, his name finds place at Serial No. 114 in Part 43 in District Singrauli.

It is pleaded that the petitioner was appointed as Medical Officer on contractual basis by order dated 4.9.2002 issued by the Commissioner of Health Service, Govt. of M.P., Bhopal. He was posted at Primary Health Center, Bindul, District Sidhi. Clause 13 of the aforesaid order specifically stipulates that either party can terminate the contractual appointment at any time by giving one month''s notice or one month''s contractual salary in lieu of notice. The petitioner was regularized as Asst. Surgeon Class II vide order dated 4.4.2008 passed by the State Government, Department of Health. The services of the petitioner were regularized in accordance with the provision of Medical Cadre Service Regularization Rules, 2005 as amended on 4.1.2007. In pursuance of aforesaid order of regularization, he was posted at District Hospital Waidhan, District Singrauli. The appointment and condition of service of Asst. Surgeon are governed by M.P. Health (Gazetted) Service Recruitment Rules, 1967 wherein Rule 19 provides that every person directly recruited to the service shall be appointed on probation for a period of two years, therefore, the petitioner was appointed on probation, though same was not specifically mentioned in the order of regularization dated 4.4.2008. The petitioner further pleaded that till date neither order of confirmation has been issued nor has the certificate of satisfactory completion of probation been issued, therefore, the petitioner continued to be a temporary employee of the State Government. Rule 12 of M.P. Govt. Servant (Temporary and Quasi permanent) Service Rules, 1960 provides that the temporary government servant may terminate his service at any time by giving in writing a notice to the appointing authority. Proviso to Rule 12 further stipulates that the service of temporary govt. servant may be terminated forthwith by giving him one month''s salary.

Since the petitioner was desirous of contesting election to State Legislative Assembly he submitted his resignation to the State Government on 1.11.2013. In the letter of resignation, it was specifically stated that the petitioner is resigning from his post with immediate effect. Said resignation letter was sent to the State Govt. through CMHO, Waidhan, District Singrauli, receipt whereof was acknowledged. Since the petitioner intended to retire with immediate effect, he deposited one month''s salary in lieu of notice amounting to Rs. 49,483/- on 1.11.2013 and received the receipt whereof.

The resignation letter of the petitioner was forwarded by Civil Surgeon cum Chief Hospital Superintendent, District Hospital Waidhan, District Singrauli to the Principal Secretary, Govt. of M.P., Department. of Public Health and Family Welfare Bhopal vide letter dated 6.11.2013. Information in regard to aforesaid resignation was also sent by aforesaid authority to the Commissioner, Health, Directorate of Health Service, Govt. of M.P. vide letter dated 6.11.2013. It is further pleaded that the resignation of the petitioner thus, came into effect w.e.f. 1.11.2013 and the petitioner ceased to be an employee of the State Government w.e.f. 1.11.2013 because there was no requirement in law of acceptance of his resignation by the appointing authority.

It is further pleaded that the petitioner belongs to Schedule Caste, therefore, he submitted his nomination form on 7.11.2013 as a candidate of Indian National Congress (for short the INC). On 8.11.2013 petitioner also submitted requisite form A and B issued by the INC sponsoring him as a candidate of said political party. The nomination form of the petitioner and other candidates were scrutinized by the returning officer of 81, Deosar, Legislative Assembly Constituency on 9.11.2013 and same was accepted and it was duly announced through public announcement system. The petitioner was present in the office of the returning officer who made marked a tick on his nomination paper indicating the same to be legal and valid. After aforesaid procedure, an objection was raised by one Vanshmani Prasad Verma, an independent candidate that the petitioner is not qualified to contest the election from 81, Deosar, Legislative Assembly Constituency because he is employed as Asst. Surgeon in the Department of Public Health and Family Welfare. The objection was raised firstly on the ground that the petitioner has submitted his nomination form while continuing in the government service without resigning from the said post and further a criminal case has been registered against him, therefore, he is not eligible to contest the election and, therefore, prayer was made that nomination form of the petitioner be rejected.

The returning officer took cognizance of the aforesaid objection and asked the petitioner to file reply of the same. The petitioner had sought time to file reply. Accordingly, the scrutiny of the nomination was deferred for 11.11.2013. In reply the petitioner specifically pleaded that he tendered his resignation from the post of Asst. Surgeon on 1.11.2013 with immediate effect and the said letter of resignation was duly communicated to the appointing authority. It was further pointed out that the petitioner had also deposited one month''s salary in lieu of the notice, therefore, he was ceased to be a government servant on 1.11.2013 and was eligible to contest the election of State Legislative Assembly.

Despite the ground taken in the reply, the returning officer rejected the nomination form of the petitioner vide order dated 11.11.2013 on the ground that petitioner is not qualified to contest the election as he holds the office of profit under the State Government. The petitioner made a representation against the order of the returning officer to the Chief Election Officer, M.P. and Chief Election Commissioner, Election Commission of India.

Since no action was taken on the representation of the petitioner, he filed a writ petition No. 20225/2013 before the High Court of M.P. which was disposed of with liberty to the petitioner to pursue his representation before the Election Commission of India, hence the petitioner has filed the instant election petition on the ground under Section 100(1)(c) of the Act of 1951 inter alia on the ground that the returning officer failed to appreciate that the petitioner was a temporary government servant and he had resigned from the govt. service on 1.11.2013 with immediate effect after depositing one month''s salary in lieu of notice. It is further pleaded that there was no such stipulation of acceptance of resignation by the appointing authority in his appointment order, therefore, the order passed by the returning officer is illegal and liable to be set aside, therefore, prayer has been made to declare the election of the respondent from 81, Deosar Constituency as null and void under Section 100(1)(c) of the Act of 1951.

Except the admitted facts of pleading of Paragraph Nos. 1 and 2, the respondent has denied the contentions of Paragraphs 3 to 14 which are the pleadings in regard to the service conditions of the petitioner. It is further denied that initially the nomination form of the petitioner was accepted by the returning officer. Though it is admitted that one Vanshmani Prasad Verma raised an objection about the validity of election nomination of the petitioner and the petitioner has not impleaded Vanshman Prasad Verma and the returning officer as parties in the instant petition, hence contents of Paragraph Nos. 17, 18, 19, 20, 21, 22, 23, 24 are specifically denied. He further made objection in regard to the non-compliance of Section 81(3) of the Act of 1951 in regard to the affidavit filed along with the election petition. On the basis of aforesaid denial and pleadings, the respondent has prayed for dismissal of the election petition.

On the basis of the pleadings made by the parties, the following issues were framed. The corresponding answer is noted against each one of them:-

REASONS FOR THE FINDINGS

Issue Nos. 1 and 3: Petitioner Harilal Prajapati has stated that initially he was appointed as the Medical Officer on contractual basis vide order dated 4.9.2002 and posted at Primary Health Center, Bindul, District Sidhi vide Ex.P-1, thereafter he was regularized as Asst. Surgeon Class II vide order dated 4.4.2008 (Ex.P-2). He further stated that till the date of tendering his resignation, he was not confirmed on the post of Assistant Surgeon. On 1.1.2013 he tendered his resignation from the post of Assistant Surgeon and sent his resignation letter to Chief Medical and Health Officer, Waidhan, District Singrauli and received the acknowledgment of aforesaid resignation (Ex.P-3). He has further stated that he did not given one month''s notice to the Government but he deposited one month''s salary vide receipt (Ex.P-4). His resignation letter was forwarded to the Principal Secretary, Government of M.P., Public Health and Family Welfare Department, Bhopal vide (Ex.P-5) and information (Ex.P-6) thereof was sent to him, thereafter he filed nomination paper for contesting the election of 81, Deosar Legislative Constituency on 7.11.2013. It is further stated that on 9.11.2013 initially the returning officer found his nomination form in conformity with the rules and marked a tick on his nomination paper thereafter one Vanshmani Prasad Verma raised an objection in regard to the fact that the petitioner has filed the nomination paper without resigning from the government service. The returning officer, after hearing both the parties, has illegally rejected the nomination paper of the petitioner on 11.11.2013. He has admitted in his cross-examination that initially he was appointed on contractual basis for a period of two years, thereafter his services were regularized on 4.4.2008. He further admitted that in order (Ex.P-2) dated 4.4.2008, it has not been specifically mentioned that he was appointed on probation. He further admitted that he received a copy of order dated 5.8.2014 (Ex.D-1) by which he has been suspended.

Dr. Suresh Kumar Salam (PW-2) has supported the statement of the petitioner and stated that the petitioner had tendered his resignation on 1.1.2013 and deposited one month''s salary i.e. a sum of Rs. 49,483/-. He further stated that the resignation of the petitioner was forwarded to the Principal Secretary, Government of M.P. Public Health and Family Welfare Department. He admitted in his cross-examination that he received a letter on 2.7.2014 from Directorate of Health Services that resignation of the petitioner has been rejected on 10.6.2014. He further admitted that the petitioner is still in government service.

In the instant election petition, the main question, which arises for consideration is whether on the date of tendering the resignation, the petitioner was a temporary employee or a permanent employee of Government of M.P.

Learned counsel for the petitioner has submitted that the petitioner was a temporary government servant and his services were governed by M.P. (Temporary and Quasi Permanent) Service Rules, 1960.

On the contrary, learned counsel appearing for the respondent has submitted that since the petitioner was regularized vide order dated 4.4.2008, therefore, he was a permanent government employee of Government of M.P. and acceptance of his resignation from the government service was necessary before filing the nomination paper.

To appreciate the rival contentions of the parties, it is necessary to consider and interpret the language of appointment orders (Ex.P-1 and P-2) of the petitioner. From a bare perusal of order (Ex.P-1) dated 4.9.2002, it reveals that the petitioner was appointed on contractual basis under the provisions of M.P. Public Health and Family Welfare Medical Cadre Contractual Services (Recruitment and Service Conditions) Rules, 2002 (hereinafter referred to as the Rules of 2002) wherein it is provided that these contractual services can be terminated by any of the parties by tendering one month''s notice or one month''s pay in lieu of notice. Further the services of the petitioner were regularized vide order (Ex.P-2) dated 4.4.2008 under the provision of M.P. Public Health and Family Welfare Medical Cadre Regularization of Contractual Appointment Rules, 2005 (hereinafter referred to as the Rules of 2005) as amended on 4.1.2007. Rule of the Rules of 2005 provides that the selection list preparation after screening and the appointments made from such selection list shall be treated as selected list and appointment made under the recruitment rules. As per Section 2(f), recruitment rules means the M.P. Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988. It is further stipulated in Rule 7 of the Rules of 2005 that the appointing authority shall make regular appointment from the selection list.

It is apparent from the perusal of aforesaid rules that by making the regular appointment under the Rules of 2005, the Government has appointed the petitioner has a regular employee of Government of M.P. on the post of Assistant Surgeon Class II. It is further revealed from order dated 4.4.2008 of regularization that a certificate is also mentioned in regard to the fact that in this appointment the provision of M.P. Public Service Reservation for SC/ST and other Backward Classes Act, 1994, which shows that it was a regular appointment of the petitioner.

M.P. Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988 has been repealed by M.P. Public Service and Family Welfare (Gazetted) Service Regularization Rules 2007 (hereinafter referred to as the Rules of 2007). It is provided under Section 24 that the order made or action taken under the Rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these rules. Rules of 2007 provides two types of procedures of appointment; first direct recruitment by selection and second appointment by promotion. Section 13 of the aforesaid rules stipulates that every person directly recruited to the service shall be appointed on probation for a period of 2 years but there is no such provision in regard to the person who has been appointed by way of promotion. Certainly, the petitioner was not directly recruited but he was appointed as promoted from the contractual service after consideration by the screening committee made under the aforesaid rules.

Learned counsel appearing for the petitioner has vehemently argued that the petitioner was a temporary employee of government of M.P., therefore, there was no need of order of acceptance of his resignation. Counsel has placed reliance on a decision of Apex Court in Sitaram Jivyabhai Gavali Vs. Ramjibhai Potiyabhai Mahala and Others, .

It is clear from orders (Ex.P-1 and P-2) that the petitioner was a permanent employee of Government of M.P. Initially he was appointed on contractual basis thereafter his services were regularized under the provisions of the Rules of 2005 and the same is governed by the Rules of 2007, hence the principle laid down in Sitaram Jivyabhai Gavali (supra) are not applicable to the case of the petitioner. Further the petitioner himself has admitted that he has been suspended by the Government of M.P vide order (Ex.D-1) dated 5.8.2014, this fact is supported by the statement of Dr. Suresh Kumar Salam (PW-2), who has stated that the petitioner is still in government service. In these circumstances, though the petitioner tendered his resignation on 1.1.2013 and deposited one month''s salary, still he is in service of Government of M.P. pursuant to his appointment as regular (permanent) government employee vide order dated 4.4.2008, consequently he ceased to be a temporary government servant. Thus, the order (Ex.P-14) passed by the returning officer on 11.11.2013 rejecting the nomination of of the petitioner cannot be said to be illegal because the facts as mentioned and discussed hereinabove show that the petitioner was a permanent government servant on the date of filing the nomination paper. Still his resignation has not been accepted by the Government of M.P. and mere tendering the resignation from the government service is not sufficient. Thus, it is proved on record that on the date of filing the nomination, the petitioner was holding the office of profit under the State Government. In other words, the petitioner was not ceased to be an employee of State Government. In view of the aforesaid discussion, the findings of Issue Nos. 1 and 3 are recorded in negative.

Issue No. 2: Since the sole case rests on the ground under Section 100(1)(c) of the Representation of the People Act, 1951 wherein it is not necessary to prove that the result of the election, insofar as it relates to the returned candidate, has been materially affected, in these circumstances, issue No. 2 has become redundant.

Issue No. 4: Though it is pleaded that there is non-compliance of Section 81(3) of the Representation of the People Act but nothing has been brought to the notice of this Court as to how the respondent has not complied with the provisions of Section 81(3) of the Representation of the People Act. In these circumstances, finding of issue No. 4 is not proved.

Issue No. 5: In view of the aforesaid discussion, the petitioner has failed to prove that on the date of filing the nomination paper, he was not holding any office of profit under the State Government and the nomination paper of the petitioner has been improperly rejected by the returning officer. Thus, I do not find any ground to make interference in this election petition. The election petition is liable to be dismissed, same is hereby dismissed.

The petitioner to bear his own cost and cost of the respondent.

Advocates'' fee as per schedule, if certified.

The office is directed to send a certified copy of this judgment to the Election Commission of Madhya Pradesh and the Speaker of State Legislative Assembly within a week.