Holding

The resignation under Condition 6 was effective on 24 Nov 1984, so the appellant was not holding an office of profit at the time of scrutiny and was not disqualified.

Summary

The appellant, a temporary government investigator, resigned by tendering a one‑month notice pay as required by Condition 6 of his appointment and handed over all official records on 24 Nov 1984, two days before filing his nomination for the Lok Sabha election. The respondent challenged his election, alleging that he was still holding an office of profit at the time of scrutiny on 28 Nov 1984, which would disqualify him under Article 102(1)(a) of the Constitution. The Supreme Court examined whether the resignation fell under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 or under the contractual Condition 6, and whether the resignation became effective before the nomination was scrutinised. The Court held that the resignation was effected pursuant to Condition 6, that the demand‑draft payment satisfied the notice requirement, and that the appellant was deemed relieved of service at 10 a.m. on 24 Nov 1984, before the scrutiny date. Consequently, he was not holding an office of profit and the Returning Officer was correct in accepting his nomination. The appeal was allowed, setting aside the High Court’s decision and dismissing the election petition.

Issues considered

Whether the appellant’s resignation under Condition 6 of his appointment is a resignation under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
Whether the resignation became effective before the date of scrutiny of the nomination papers.
Whether the appellant was holding an office of profit at the time of scrutiny, attracting disqualification under Article 102(1)(a) of the Constitution.
Whether the Returning Officer was justified in accepting the appellant’s nomination.

Legislation cited

Central Civil Services (Temporary Service) Rules, 1965s. Rule 5(1)(a), s. Rule 5(1) proviso
Constitution of Indias. Article 102(1)(a), s. Article 309
Representation of the People Act, 1951s. Section 116, s. Section 116-A, s. Section 36, s. Section 98

Subjects

office of profitdisqualificationelection lawtemporary government servantresignationCentral Civil Services RulesArticle 102Representation of the People Act

Judgment

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
as per clause 6 of his appointment order hands over the official records
..-·F 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
filing the nomination-Doctrine of Relation Forward, applicability of-
-·y Deemed 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 constitu-
tency 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
A.M. he wrote another letter to his immediate officer and submitted all
--l 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 conten- G
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 resigna-
tions were accepted forthwith accepting one month's notice pay from
B 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
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.

D In the said election, the appellant secured the highest number of
votes and he was declared elected. The election petition filed by Respon-
dent 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.

Allowing the appeal, the Court,

F 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 termina-
tion 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
drawing them immediately before termination of his service or as the A
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 Administra-
tion to bring about the termination of service of a temporary govern-
ment 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 tem-
porary 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 submit-
ted· 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 y·
functions. The appellant had not, in fact, been paid any salary or allo-
E 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·
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. Karanja-
-~ wala, 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 decla-
ration 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 Parlia-
ment 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 Respon-
dent 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 hold-
ing 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 Consti-
tuency, 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 condi-
tions there were the following three conditions:

"1. He will be governed by the Central Civil Services
B Rules.

2. The appointment is purely on temporary basis and is
liable to be terminated at ONE month's notice.
1-
3.
c 4.

5.

6. Before resigning the post, he shall have to give one
D 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
"5(1)(a) Termination of Temporary Service-The service
of temporary Government servant who is not in quasi-
permanent 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
G
authority to Government servant.

(b) The period of such notice shall be one month.

Provided that the servioe of any such Government servant
H 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 equi-
A
'""'(- 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-
nation. The said letter read as follows:
c
-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,
Dadra and Nagar Haveli,
i- 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 Govern-
ment servant forthwith. As I am giving up my post forth-
with 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 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 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.
B
Yours faithfully,
Sd/- -·+,..
(S.J. GAVALi) '
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 imme-
D 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 Col-
lector 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
"From:

Shri Sitaram J. Gavali,
Silvasa.
Dt. 24. 11. 1984
F
To

The Development & Planning
Officer,
Dadra and Nagar Haveli,
G Silvasa.

Sir,

I have already su.bmitted my application dated
21. II.1984 to the Hon. Collector through the Development
H 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 Develop-
ment & 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 Sec-
retary 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.
E
Thanking you,
Yours faithfully,
Sd/-
(S.J. Gavali)"

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 appel-
lant 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:

"From:
Shri Sitar~m J. Gavali,
Silvasa.
B
Dt. 26.11.1984

To
The Returning Officer,
Dadra and Nagar Haveli,
Silvasa.
c
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
D
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
E
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 writ-
ing to the appointing authority. Accordingly I have addres-
F
sed 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 termi-
G
nation of my services. In particular the same notice is
neither to be replied to or even considered by the appoint-
ing 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
H 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 A
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
B
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 c
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
D
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
E
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.
F
I pray that the aforesaid contention may be bo"rne in
mind when my nomination papers are scrutinised on
28.11.1984.

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 neces-
sary action. On the same date he received a reply from the office of the h
646 SUPREME COURT REPORTS [1987] 2 S.C.R.

Administrator, Dadra and Nagar Haveli which read as follows:
A
"No. ADM/SECT/MISC/SJG/84
Administration of
Dadra and Nagar Haveli,
Silvasa, date 26.11.1984.
B
To
Shri Sitaram J. Gavali,
Investigator,
(Through the D.P.O.)
Dadra and Nagar Haveli,
Silvasa.
c
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
D tendered pay and allowance of one month. In this connec-
tion 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 Gover-
ment of India, in the Ministry of Home Affairs, through -y·
Crash Wireless Message dated 23.11.1984. As per Govern-
E ment 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
F 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)
G Governor to the Administrator
Dadra and Nagar Haveli,
Silvasa"

The above letter stated that the Ministry of Home Affairs, Govern-
ment 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
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 Govern-
ment 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
13
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:

Sitaram Jivyabhai Qavali,
Silvasa.
0
27.)1.1984

To

Secretary to the Administrntor,
Dac:lra and N~gar Haveli,
Silvasa · E

- Subject: Lok &abha E:lection mlitter.

Sir,

I the µndersigIJed Shri S.J. Gayalj beg to state as f
undel;

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 ap-
p.Pintmem is suJ:>je~t !P tl)e condi(i9ns fil>l'd by t'1~
a4Ql·inistr.ation.
648 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 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 re-
signing 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.
B

I have been promoted as Investigator by . the
Administration and my service conditions were continued.
·+ .
;

.A,.. --
2. I intended to contest the forthcoming Parliament elec-
c tion 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 representa-
tion to the Returning Officer, Dadra and Nagar Haveli,
Silvasa on 25.11.1984. I have already given my charge to
D 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 imme-
E diate 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 accep-
-
tance as per rules. Under the above circumstances for
being chosen as a Member of Parliament.
F
4. Incidentally I would like to draw your kind attention
that Administration has considered many cases, and accep-
ted 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
G 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
H notice pay.
S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.] 649

Name Date of acceptance A
of resignation.

Shri J.V. Desai 12.4. 78
Stockman, Khanvel
Shri C. V. Patel, 31.1.1983 B
Stockman
. -+ Shri A-H. Patel,
Primary School Teacher
30.8.84

- ).... Shri D.G. Shah,
High School Teacher
c
Shri R_G. Chauhan, - .7.1984
Primay School Teacher
Shri J.D. Patel, .10.1984
Lineman, P_W.D.,
Silvasa_ D

(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. E

6. I am addressing this letter to you out of abundant cau-
tion 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.
G
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.

I am quite eligible to contest the election. I have ex-
plained clear position to you. I therefore request you to do H
650 SUPREME COURT REPORTS .[1987] 2 S.C.R.

A the needful in the interest of natural justice and protect the
right of citizen. If you take any adverse action for my elec-
tion 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.
B 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
c 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
D 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:
Y·
E
"Administration of
Dadra and Nagar Haveli, U.T.
(Department of Rural Development)
No. D PO /EST /EF-SJ G /84-85 /2153
Silvasa, 21.12.1984.
F

To
Shri Sitaram J. Gavali,
Investigator,
Dadra and Nagar Haveli,
G At and Post: Khanval.

Sir,

1 am :directed to refer to this Administration's letter
No. A DH/SECY /MISC/SJC/84 dated 26. 11.84 and as
H
mentioned therein, your notice of termination of services
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 Gov-
ernment servant can deposit one month's pay in lieu of the
prescribed period of notice.
B
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.
c
Yours faithfully.
Sd/-

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.
I 1955, and decide as follows:
:..t; F
An objection was raised during scrutiny of this nomi-
nation 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 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 H
652 SUPREME COURT REPORTS [1987] 2 S.C.R.

A Haveli. Hence 1 decide to give the benefit of this doubt to
the candidate and accept this nomination.

Sd/-
28.11.1984
Returning Officer
B Dadra and N agar 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 !st
c 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
D 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 '
l
E 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 resig-
nation did not take effect till the expiry of one month from the date of

F
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
G 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:
S,J. GAVALI v, R.P, MAf!ALA lVENKATARAMIAH, J.] 653

"On hearing counsel and on going through the judg-
ment of the High Court and the application for amendment A
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
I
limited purpose with a direction to record and forward to B
;., ~·· 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
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 for-
ward 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 re- D
corded 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 E
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 addi- F
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 H
654 SUPREME COURT REPORTS [1987] 2 S.C.R.

November, 1984 submitted to the office of the Collector of
A
Dadra and Nagar Haveli amounted to acceptance by con-
duct 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?"
t 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. Clause (a) of Rule 5(1) of the CCS Temporary .)<
F Service N.u!es authorises the termination of temporary service of a
Government servant (who is not a quasi-permanent servant) at any
tinie by ii notice in writing given either by the Government servant to
the appointing authority or by the appointing authority to the Govern-
ment servant. Clause (b) of Rule 5(1) of the CCS Temporary Service
Rules prescribes the period of such notice as one month. The proviso
G "to Rule 5(1), however, authorises the appointing authority and not the _.L ...
Government ser\'ant to terminate the temporary service of the
Go\ier'ninent servant forthwith and that on such termination the
Government servant 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
H termination of his ser\iice, or as the case may be for the period by
S.J. GAVALI v. R.P. MAHALA (VENKATARAMIAH, J.l 655

which such notice falls short of one month. There is no provision in the A
CCS Temporary Service Rules which authorises a Government servant
to 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
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. B
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.1024.05 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 C
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 paise. 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 ap- D
pointing authority could not have been unaware. If the concerned
authority had not realized that it was a resignation pursuant to such
condition the said authority would have returned (instead of retaining)
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 appoint-
ment is not in dispute. The appellant had drawn the attention of the E
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 allowances. It
may also be noted that in his letter dated 27 .11.1984 the appellant had
clearly stated in terms that the letter of resignation had been submitted
iii pursuance of Condition No. 6 of his letter of appointment. The F
correctness of the statement in the deposition of the Planning and
Development Officer, who was examined after remand that a letter
dated 24.11.1984 as per the original or Additional Ex. D 2 had been
sent to the appellant informing the appellant that his letter of resigna-
tion was under consideration, is in dispute. The appellant has denied
the receipt of the same. There is no evidence supporting the service of G
that letter oil the appellant. This circumstance cannot, therefore, 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 21.11.1984 was one submit-
ted under Rule 5(1) of the CCS Temporary Service Rules. It is further
see-ii that the Adi'llinistration has withdrawn by a specific order subse- H
656 SUPREME COURT REPORTS [1987) 2 S.C.R.

A quently the condition which authorised a temporary Government
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 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
B 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
5(1) of the CCS Temporary Service Rules and it was not in any way
c 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. It is well·recognised that a new service condition may be
bro11ght 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
D 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 between
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
E 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.1024.05 paise which
was equivalent to the pay plus allowances, which the appellant was ):
F 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 resign-
ing the post, he shall have to give one month's notice to the Adminis·
G tration 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 Government
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
H had come to vogue as regards relieving such a person. The resignation
S.J. GAVALI v. R.P. MAHALA [VENKATARAMIAH, J.) 657

contemplated under Condition No. 6 is not the same as the letter of
A
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 governed by the Memorandum No.
35/6/57-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, It is implicit in such a condition that the nature of his B
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. The only thing
that has got to be decided in this case is whether the appellant had
been actually relieved from service. There is no dispute that at 10.00
A.M. on 24.11.1984, before the appellant submitted his nomination
paper to the Returning Officer, he had handed over all the records,
c
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 D
had not, in fact, been paid any salary or allowance for the period
subsequent to 20.11.1984, 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 21.11.1984 except for handing over the records,
files, registers etc. on 24.11.1984. The appellant was not asked by the
Collector to attend the office till 21.12.1984 nor grievance was made E
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 J'
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 G
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 therefore
successfully assail the election of the returned candidate, the appellant
herein. In these circumstances we are of the view that the appellant H
658 SUPREME COURT REPORTS (1987] 2 S.C.R.

A should be deemed to have been relieved from his service at 10.00 A.M.
on 24.11.1984 and he had ceased to be a Government servant before
he submitted his nomination paper on 24.11.1984.

In the view we have taken it is not necessary to go into the
B question whether the Collector had deliberately delayed the accept·
ance 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. I .
~--
We, therefore, allow this appeal, set aside the judgment of the
High Court and dismiss the election petition. The appellant is entitled
C to the costs both before the High Court and in this Court which we
quantify at Rs.5,000. The 1st Respondent shall pay the costs of the y-
appellant. The appeal is accordingly allowed.

S.R. Appeal allowed.

:L..