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Civil Appeal No. 2922 of 1981.
Appeal by Special leave from the Judgment and Order dated the 23rd June, 1981 of the Karnataka High Court in Misc.
Petition No. 1 of 1981 in Election Petition No. 76 of 1978.
Petitioner in person.
P.R. Mridul, H.R. Bhardwaj, N. Nettar, G.S. Narayana, S.N. Bhatt and Hemant Sharma for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is directed against the order dated June 23, 1981 passed by the Karnataka High Court in Miscellaneous No. 1/81 arising out of Election Petition No. 76 of 1978.
On November 5, 1978, polling took place for electing a member to the Lok Sabha from No. 20 Chikmaglur Constituency and the result of the election was declared on November 8, 1978.
Respondent No. 2 was declared elected.
In all 28 candidates had participated in the election.
One of the contenders for the seat filed Election Petition No. 76 of 1978 before the Karnataka High Court on December 20, 1978 impleading the returned candidate as all other contesting candidates and three outsiders asking for setting aside the election of respondent 2 under section 100(1)(b) of the Representation of the People Act, 1951 ( 'Act ' for short), declaring Shri Virendra Patil, respondent 5 of the election petition, as the duly elected candidate from the constituency and for an order declaring respondents 2, 3 and 4 of the election petition to have been guilty of corrupt practices within the meaning of section 123 of the Act.
In view of the reliefs claimed it became necessary to implead all the contesting candidates as required under section 82 of the Act.
On March 26, 1979, respondent 29 of the election petition filed his written statement as also a petition of recrimination within the meaning of section 97 of the Act as against respondent 5 whom the election petitioner wanted to be declared as the duly elected candidate.
On October 4, 1979 the present appellant who was respondent 19 in the election petition filed his written statement.
The election petitioner who is respondent 1 in the appeal applied to the Court for deleting the 692 prayer in regard to the declaration of Shri Virendra Patil as the returned candidate.
On November 16, 1979, the court allowed the application and prayer (c) of the election petition under which the declaration of Shri Virendra Patil as the returned candidate was asked for was deleted.
The order of the High Court shows that there was no opposition to the request for deletion.
On November 23, 1979, a memorandum was filed for the deletion of respondents 5 to 31.
On July 23, 1980, on his own prayer respondent 2 of the election petition was deleted.
Simultaneously the names of the two other outsiders to the election petition being respondents 3 and 4 of the election petition were also deleted.
Respondent 29 filed a memorandum on August 1, 1980 for withdrawal of the prayer for recrimination as against Shri Virendra Patil.
This was a necessary sequel of the deletion of prayer (c) of the election petition.
On September 12, 1980 the High Court directed that names of respondents 5 to 31 excepting respondents 13 and 19 to the election petition would stand dropped.
Thus, in all three respondents were left in the election petition being original respondents 1, 13 and 19.
On September 30, 1980 the Court directed withdrawal of the recrimination petition as against Shri Virendra Patil by allowing the memorandum dated August 1, 1980.
The present appellant had objected to the request for withdrawal of the recriminatory petition.
Separate orders, viz., the order dated November 16, 1979 allowing deletion of prayer (c) of the election petition, the order dated September 12, 1980 deleting all the respondents excepting respondents 1, 13 and 19 of the election petition from the record, and the order dated September 30, 1980, permitting withdrawal of the recrimination petition, were all allowed to become final in the absence of any challenge.
On November 23, 1980 written statement was filed on behalf of original respondent 1 and issues were settled on January 5, 1981.
The Court indicated a trial schedule by requiring the documents to be filed on February 16, 1981 and recording of evidence was also directed to begin from the date and the trial was to proceed day to day.
On February 16, 1981, the election petitioner wanted adjournment.
The High Court was justified in giving only one adjournment as a last chance and fixing the trial on March 9, 1981, in view of the statutory mandate that an election petition shall be disposed of as far as practicable within six months from the date of presentation of the election petition as required by section 86 (7) of the Act.
On March 9, 1981, the election petitioner again asked for adjournment.
The High Court declined the prayer for adjournment and said: "On 693 the previous occasion, i.e. February 16, 1981, it was posted for commencement of evidence but neither the petitioner nor his witnesses were present.
However, at the request of the petitioners counsel the matter was adjourned to today as a last chance.
The list of witnesses and list of documents were also at the request of the petitioner 's counsel permitted to be filed before February 2, 1981 with notice to respondents.
This has not been done.
However, when the matter was called today the petitioner is absent; none of his witnesses is also present.
Shri K. Channabasappa, learned counsel for petitioner wanted to file the list of documents and witnesses today in Court and stated that the matter may be adjourned for trial to some other date.
In view of the circumstances that petitioner is absent in spite of the fact that this is the second date fixed for trial of the petition, I have no option except to dismiss this petition for non prosecution.
This election petition is accordingly dismissed.
There are three contesting respondents in this election petition viz., R 1, R 13 and R 19 Respondent 1 and R 13 are represented by Shri G. V. Shanta Raju, and Sri Vyas Rao respectively.
R 19 who appears in person is however absent. " On the same day respondent 19 to the election petition made an application praying for "recall of the order dated 9th March 1981 with reference to Election Petition No. 76 of 1978, and this respondent No. 19 may please be permitted to prosecute this election petition, and to submit his evidence, and this respondent may please be permitted to be substituted and to continue the proceedings of this election petition".
Respondent 19 amended this application and asked for restoration of the election petition.
The original respondent 1 filed objection to the request for restoration contending that the application for restoration was not maintainable and that respondent 19 had no locus standi to ask for restoration of the case.
There was no provision for transposition when an election petition was dismissed and, therefore, respondent 19 who could have filed an independent election petition within the time admissible under the Act could not ask for transposition.
On June 23, 1981, the High Court rejected the application after negativing the stand of respondent 19 that an election petition could not be dismissed for default and that a case of abandonment should be treated at par with abatement and withdrawal of the election petition.
On September 14, 1981, a petition for special leave was filed and upon leave being granted, this appeal by respondent 19 has come before us for final hearing.
694 At the hearing the appellant appeared in person.
Respondent 1 who was the election petitioner and respondent 3 who was respondent 13 before the High Court did not appear.
Thus the appellant has been heard in person and respondent 2 has been heard through counsel.
The appellant contended: (1) the earlier orders passed by the High Court, namely, the order dated November 16, 1979 by which prayer (c) was allowed to be deleted and the order dated September 30, 1980 by which respondent 29 was allowed to withdraw his prayer for recrimination as against original respondent 5, are in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not been followed, it must be held that the orders are a nullity and no party would be entitled to rely on them.
The appellant is, therefore, free to contend that these orders must be ignored and the High Court should be called upon to comply with the statutory provision relating to withdrawal of election petition before such permission can be granted; (2) an election petition once filed does not mean a contest only between the parties thereto but continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition of the respondent but is liable to be continued by any person who might have been a petitioner.
Therefore, an election petition cannot be dismissed for default and when the appellant who was himself entitled to file an election petition applied for permission to continue the case, the High Court should have given him the opportunity to continue the election petition; (3) the view taken by this Court in some cases that except in cases of withdrawal and abatement, the special provisions contained in the Act for notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable.
Apart from these contentions which we propose to examine, it is also necessary to consider whether the appellant, not being the election petitioner, could ask for the restoration within the ambit of Order IX, Rule 9 of the Code of Civil Procedure ( 'Code ' for short).
This Court has consistently taken the view that elections and election pisputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
As 695 early as 1952 when the first election under the Constitution took place, a Constitution Bench of this Court in N.P. Ponnuswami vs Returning Officer, Namakkal Constituency & Ors., (1) observed: "The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it." while dealing with an appeal in an election dispute arising out of the first series of elections under the Constitution, Mahajan, C.J., speaking for a Constitution Bench of this Court stated in Jagan Nath vs Jaswant Singh & Ors.(2): "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.
It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.
" In Charan Lal Sahu vs Nandkishore Bhatt & Ors.,(3) this Court observed: "The right conferred being a statutory right, the terms of that statute had to be complied with.
There is no question of any common law right to challenge an election, Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes.
If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity.
This Court has held that the right to 696 vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
" In N.P. Ponnuswami 's case it was pointed out that strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
In Jyoti Basu & Ors.
vs Debi Ghosal & Ors.,(1) this Court said: "A right to elect, fundamental though it is to democracy.
is, anomalously enough, neither a fundamental right nor a Common Law Right.
It is pure and simple, a statutory right.
So is the right to be elected.
So is the right to dispute an election.
Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation.
An election petition is not an action at Common Law, nor in equity.
It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies.
It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it.
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.
A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down.
In the trial of election disputes, Court is put in a straight jacket Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act." 697 That view has been endorsed in Arun Kumar Bose vs Mohd. Furkan Ansari & Ors.,(1) where two of us were parties to the decision.
The legal position is, therefore, well settled that election disputes are strictly statutory proceedings.
Chapter VI in Part III of the Act makes provision for the trial of election petitions.
Sub section (1) of section 87 provides: Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits.
" The same section makes provision for application of the Indian Evidence Act to trial of election petitions, subject to the provisions of the Act.
Keeping in view the detailed provisions in the Act for the trial of election petitions, a three Judge Bench in Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa & Ors.
,(2) indicated: "The effect of all these provisions (which previously were included in certain other sections of the Act) really is to constitute a self contained Code governing the trial of election petitions.
" We have already found that an election petition is a strict statutory proceeding.
An appeal lies to this Court under section 116A of the Act both on questions of law and/or fact from every order made by the High Court under sections 98 and 99 of the Act.
No other order is open to appeal under the statute.
When the application of the appellant to restore the election petition was rejected, an application under article 136 of the Constitution for grant of special leave was made.
In that the petitioner clearly prayed for leave against the order dated June 23, 1981.
Leave has, therefore, been granted to him to appeal against the order of the High Court made on that day.
The earlier orders dated November 16, 1979, September 12, 1980, and September 30, 1980, are not open to challenge in this appeal and Mr. Mridul for the respondent has rightly contended that these orders 698 have become final and cannot be assailed at this stage unless they can be shown to be nullity.
The appellant has taken the stand that an election dispute is not one between two sets of parties who are before the Court, but it is a dispute concerning the entire constituency.
That is the pronounced view of this Court.
In Inamati Mallappa Basappa 's case this Court observed: "Once this process has been set in motion (an election petition has been filed (by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end. ." This observation goes to show that an election petition once filed does not remain a contest only between the parties thereto but becomes a dispute in which the whole constituency is interested.
The Act makes provisions to meet certain eventualities in the course of the trial in Chapter IV of Part VI.
Two situations which have been covered by the statute are withdrawal and abatement of election petitions.
Sections 109 and 110 deal with withdrawal of election petitions, and sections 112 and 116 deal with the eventuality of death and non substitution leading to abatement.
Section 109 provides: "109.
Withdrawal of election petitions (1) An election petition may be withdrawn only by leave of the High Court; (2) where an application for withdrawal is made under sub section (1), notice there of fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official Gazette.
" Section 110 reads thus: "110.
Procedure for withdrawal of election petition (1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners; 699 (2) No application for withdrawal shall be granted if in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed; (3) If the application is granted (a) X X X (b) the High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly; (c) a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.
The question of abatement does not arise in this case.
It is, therefore, sufficient to state without extracting the provisions of sections 112 and 116 of the Act, that even in the case of death and non substitution, the Court is required to publish the notice in the official gazette.
Two questions become relevant at this stage: firstly, it has to be decided whether the earlier orders allowing prayer (c) to be deleted and the relief of recrimination to be omitted amounted to withdrawal of the election petition within the meaning of sections 109 and 100 of the Act; and secondly, whether on that account the orders are a nullity.
Prayer (c) in the election petition was concerned with the declaration of respondent 5, Shri Virendra Patil as duly elected from the constituency in question.
This relief was asked to be deleted.
No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted.
In opposition to the claim made in this prayer recrimination was filed by one of the respondents in the election petition.
But once prayer (c) was dropped, the relief 700 of recrimination could no more stand.
Consequently on the prayer of the recriminator that relief was also allowed to be omitted.
In view of the contention of the appellant, it is necessary to decide whether omission of prayer (c) comes within the ambit of section 109 of the Act.
Sub section (1) of section 109 provides that an election petition can be withdrawn only by leave of the High Court.
Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition.
There would be several instances where not withstanding the deletion of one relief, the election petition as such would continue to be alive.
In the cases which were cited before us referring to the applicability of Order XXIII, rule 1 of the Code, this aspect was examined with reference to withdrawal of the election petition.
We do not think that if one of the reliefs claimed in the election petition is asked to be omitted, it would come within the provisions of sub section
(1) of section 109 of the Act.
There is no reason why, if even after omission of a particular relief the election petition survives and is available to be tried in accordance with law, that omission or deletion should be treated as withdrawal of the election petition.
There may be cases where while asking for one definite relief as the main one in a lis several other reliefs are prayed for and after the pleadings are closed instances are not rare when untenable and unnecessary reliefs are asked to be omitted.
Amendment to omit such a relief does not amount to a prayer for withdrawal of the lis itself.
In this case the main relief of the election petitioner was setting aside of the election of respondent 2.
Along with it he had also claimed the relief that the original respondent 5 be declared to be duly elected.
Apart from the fact that no objection was raised when the prayer for deletion was made, the appellant did not challenge the order of the Court deleting the other parties and omitting the relief of recrimination and indeed he could not do so, since to the present appeal the other respondents are not parties and in their absence the validity of the Court 's order of deletion of the prayer for declaring respondent 5 as duly elected and the consequent deletion of the prayer for recrimination as also the omission of the other parties from the category of respondent to the election petition could not be allowed to be agitated as that would be contrary to rules of natural justice and likely to prejudice those parties without affording a reasonable opportunity to them of being heard.
Moreover, it may be noticed that special leave was obtained only against the subsequent order of June 23, 1981, and no challenge at all was raised against these previous orders.
It is, therefore, clear that the earlier orders 701 of the Court could not possibly be regarded as a nullity and the appellant is precluded from challenging those orders in this appeal.
When proceed next to examine whether the election petition could be dismissed in the absence of the election petitioner and whether the appellant could apply for its restoration though he himself was not the election petitioner, The basis of the appellant 's contention that the election petition cannot be dismissed for the absence of the election petitioner is that once an election petition is filed, it concerns the entire constituency.
Purity of the electoral process in a democracy, it is contended, is of paramount importance and an election petition cannot be permitted to be dismissed for default inasmuch as that would lead to situations brought about by manipulation, undue influence, fraud or winning over of the election petitioner.
The 2nd respondent 's counsel has not disputed before us and rightly in our view that purity of the electoral process is paramount in a democracy and an election petition should not be permitted to be abandoned by undue influence or pressure over the election petitioner.
It may be pointed out that there was no allegation of undue influence or pressure over the election petitioner to justify his conduct in this case.
It is relevant to mention that the 2nd respondent who was the elected candidate was expelled from the Lok Sabha in December 1978, and in August 1979, the Lok Sabha to which respondent 2 had been elected was dissolved.
It was after these supervening events that in October 1979 the request to delete prayer (c) was made and the other orders followed.
This explanation given by respondent 2 's counsel to justify the conduct of the election petitioner is a relevant feature.
There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default.
The appellant contended that default of appearance or non prosecution of the election petition must be treated as on par with withdrawal or abatement and therefor, through there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in sections 110 or 116 of the Act should be made applicable.
We see no justification to accept such a contention.
Non prosecution or abandonment is certainly not withdrawal.
Withdrawal is a positive and voluntary act while non prosecution or abandonment may not necessarily be an act of volition.
It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute.
In the case of withdrawal steps are envisaged to be taken 702 before the Court in accordance with the prescribed procedure.
In the case of non prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders.
We have already indicated that the Act is a self contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy.
In fact, the terms of section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
In many cases it has been held that an election petition can be dismissed for default.
A full Bench of the Punjab High Court in Jugal Kishore vs Dr Baldev Prakash.
had occasion to consider this question when Grover, J. delivering the judgment of the Court spoke thus: "It has been repeatedly said that an election petition once filed is not a contest only between the parties thereto but continues for the benefit of the whole constituency.
It is for that purpose that in the Representation of the People Act, 1951, provisions have been made in sections 109 and 110 relating to withdrawal of an election petition and sections 112 and 116 relating to abatement of such a petition the effect of which is that the petition cannot come to an end by the withdrawal there of by the death of the petitioner or by the death or withdrawal of opposition by the respondent, but is liable in such cases to be continued by any person who might have been a petitioner.
There is nothing in the entire Act providing or indicating that a similar procedure is to be followed in the event of a petitioner failing to prosecute the petition.
such failure can be due to various causes.
The petitioner can, by force of circumstances, be genuinely rendered helpless to prosecute the petition.
For instance, he may find that his financial condition has suddenly worsened and that he can no longer afford the expenses of litigation.
He may even, owing to exigencies of business or vocation or 703 profession, have to go to such a distant place from the seat of the High Court where the election petition is being tried that he may find it impossible to prosecute the petition in a proper manner.
There would be two courses open to him and that will depend entirely on his volition.
He can either file an application for withdrawal of the petition disclosing the circumstances which have brought about such a situation in which case there would be no difficulty in following the procedure laid down in sections 109 and 110 of the Act, or he may choose to simply absent himself from the Court or cease to give any instructions to the counsel engaged by him or fail to deposit the process fee and the diet money for witnesses or take the necessary steps for summoning the witnesses in which case the Court will have no option but to dismiss the election petition under the provisions of the Code of Civil Procedure which would be applicable to the election petitions in the absence of any express provisions in the Act.
The dismissal will have to be under the provisions contained in Order 9 or Order 17 of the Code.
It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition.
The provisions of the Code of Civil Procedure would, therefore, be applicable under section 87 of the Act.
I am further of the opinion that any argument which could be pressed and was adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of Record and possesses all the inherent powers of a Court while trying election petitions.
" It is relevant to note the observations of Hidayatullah, CJ in Sunderlal Mannalal vs Nandramdas Dwarkadas & Ors. where he indicated: "Now the Act does not give any power of dismissal.
But it is axiomatic that no Court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain 704 present.
The dismissal, therefore, is an inherent power which every tribunal possesses. ." Similar view has been expressed by another Full Bench of the Allahabad High Court in Duryodhan vs Sitaram & Ors.
A four Judge Bench of this Court in Rajendra Kumari Bajpai vs Ram Adhar Yadav & Ors.
referred to the Punjab case.
Fazal Ali, J. speaking on behalf of the Court quoted a portion of the judgment of Grover, J. which we have cited above and said: "We fully approve of the line of reasoning adopted by the High Court in that case.
" It, therefore, follows that the Code is applicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition.
Dismissal of an election petition for default of appearance of the petitioner under the provisions of either Order IX or Order XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petition for default do not apply.
The appellant was not the election petitioner.
Order IX, rule 9 of the Code (and not rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition.
That can be invoked in an appropriate case by the election petitioner only and not by a respondent.
By its own language, rule 9 provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit but he may apply for an order to set the dismissal aside.
Under this rule, therefore, an application for restoration can be made only by the petitioner.
Since it is a provision for restoration, it is logical that the provision should be applicable only when the party on account of whose default in appearance the petition was dismissed makes an application to revive the petition to its former stage prior to dismissal.
In the instant case the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration.
The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the event 705 of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent.
The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations.
Specific provisions have been made in the Act to deal with the two situations withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition has been permitted to substitute himself in the election petition and to pursue the same in accordance with law.
These provisions cannot be extended to an application under order IX, rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.
The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for partition.
In a suit for partition the position of the plaintiff and that of the defendant is interchangeable.
So long as the suit is pending a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can also ask for being transposed as a defendant.
The possibility of transposition during the pendency of the suit would not permit a defendant to apply for restoration of a suit for partition which is dismissed for default and the right to apply for transposition would certainly come to an end when the suit is no more alive.
In our opinion the respondent 's position in an election petition would not be higher than that.
We therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.
This Court in Dhoom Singh vs Prakash Chandra Sethi & Ors., held: "The legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement.
It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original 706 election petitioner or otherwise.
It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent.
It may be a case of casus omissus.
It is a well known rule of construction of statutes that "A statute, even more than a contract, must be construed, ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air".
A second consequent of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" (see Craies on Statute Law).
It seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act.
In the true cases of non compliance with the said provisions of law a question of intervention by another person may not arise.
But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section 86 (1).
Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate.
It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter.
If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose.
" The ratio of this decision as also the observations in Basappa 's case, the appellant contends, are wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded.
We do not think the appellant 's contention can be accepted The earlier 707 decisions of this Court do not in any way militate against the view taken in Dhoom Singh 's case (supra) and the observations made in Basappa 's case (supra).
Those decisions were not concerned with the question as to whether an election petition can be dismissed for default.
The concensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code would be applicable.
About eight years back this Court had occasion to point out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act.
We find that even earlier in Shcodhan Singh vs Mohan Lal Gautam, this Court had stated: "From the above provisions it is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other.
Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner.
The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds." (underlining is ours) We must assume that the legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made.
The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation.
At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law.
We may recall the observation of Lord Denning in Seaford Estates vs Asher; 708 "A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
" All the three contentions advanced on behalf of the appellant fail.
We have already taken the view that at the instance of the appellant the application for restoration was not maintainable.
Therefore, the appeal cannot be allowed and we cannot direct restoration of the election petition.
Accordingly the appeal fails and is dismissed and the order of the High Court is confirmed.
We leave the parties to bear their respective costs.
N.V.K. Appeal dismissed.

Output:
Respondent No. 2 who was one of 28 candidates participating in an election to a Lok Subha seat was declared elected.
One of the contenders, (Respondent No. 1) filed an Election Petition for setting aside the election of Respondent No. 2, under section 100 (1) (b) of the Representation of the People Act, 1951, and declaring Respondent No. 5 of the Election Petition as the duly elected candidate, and also for an order declaring Respondent Nos. 2, 3 and 4 as been quilty of corrupt practices under sections 123.
The returned candidate as also all other contesting candidates and 3 outsiders were impleaded as 688 respondents.
Respondent No. 29 of the Election Petition filed his written statement as also a petition of recrimination under section 97 against Respondent No. 5.
Respondent No. 19 in the Election Petition (Appellant in the appeal) filed his written statement.
The Election Petitioner (Respondent No. 1 in the appeal) applied to the court for deleting prayer (c) in the election petition regarding the declaration of Respondent No. 5 as the returned candidate, and the court allowed the deletion.
Later Respondent No. 29 filed a memorandum for withdrawal of the prayer of recrimination against Respondent No. 5.
After the court allowed withdrawal of the recrimination petition the appellant objected to the request.
Written statement was filed on behalf of Respondent No. 1, issues were settled, documents directed to be filed and the case adjourned for trial.
The election petitioner wanted an adjournment on the date the case was posted for trial.
The court gave a last chance and fixed the trial peremptorily having regard to the statutory mandate under section 86 (7) requiring an election petition to be disposed of within 6 months from the date of presentation.
On the date when the case was fixed for trial the election petitioner neither filed his list of witnesses nor list of documents and prayed for an adjournment.
The court refused the adjournment and dismissed the Election Petition.
On the same day, Respondent No. 19 made an application praying for recall of the order of dismissal and also for permission to prosecute the election petition, submit his evidence, and that he may be substituted to continue the proceedings of the Election Petition.
The original Respondent No. 1 objected and contended that the application was not maintainable and that Respondent No. 19 had no locus standi to ask for restoration.
It was further contended that there was no provision for transposition when an election petition was dismissed and Respondent No. 19 who could have filed an independent Election petition within the time admissible under the Act, and not having done so, could not ask for transposition.
The High Court rejected the application.
In the appeal to this Court it was contended on behalf of the appellant that: (1) the earlier order of the High Court by which prayer (c) was allowed to be deleted and the order by which Respondent No. 29 was allowed to withdraw his prayer for recrimination as against original Respondent No. 5 were in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not been followed, the order was a nullity and no party would be entitled to rely on them; (2) an election petition once filed does not mean a contest only between the parties there to but continues for the benefit of the whole constituency and cannot come to an end merely by withdrawn by the petitioner or by his death or by the death or withdrawal of opposition of the respondent, but is liable to be continued by any person who might have been a petitioner.
An election petition cannot be dismissed for default and when the appellant applied for permission to continue the case, the High Court should have given the opportunity to continue the election petition; and (3) that the view taken in some cases by this Court that except in cases of withdrawal and abatement, the special provision contained in the Act for 689 notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable.
Dismissing the appeal: ^ HELD: 1 (i) An election petition is liable to be dismissed for default in situations covered by Order IX or Order XVII of the Code of Civil Procedure and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.
[705 E F] In the instant case, at the instance of the appellant the application for restoration was not maintainable.
[708 B] (ii) Elections and election disputes are a matter of special nature and though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
Election disputes are strictly statutory proceedings.
[694 H, 697 A] N.P. Ponnususami vs Returning Officer Nanmakkal Constituency & Ors.[1952] S.C.R. 218; Jagan Nath vs Jaswant Singh & Ors. ; at 895; Charan Lal Sahu vs Nand kishore Bhatt & Ors. ; at 296; Jyoti Basu & Ors vs Debi Ghosal & Ors ; at 326 327; Arun Kumar Bose vs Mohl.
Furkan Ansari & Ors. ; referred to.
(iii) An election petition once filed does not remain a contest only between the parties there to but becomes a dispute in which the whole constituency is interested.
The Representation of People Act makes provisions to meet certain eventualities in the course of trial of election petitions in Chapter IV of Part VI.
Two situations which have been covered by the statute are withdrawal and abatement of election petitions.
Sections 109 and 110 deal with withdrawal of election petitions, and Sections 112 and 116 deal with the eventuality of death and non substitution leading to abatement.
Even in the case of death and non substitution, the Court is required to publish a notice, in the official gazette.
[693 C 698 E, 699 F] (iv) Sub section (1 of section 109 provides that an election petition can be withdrawn only by leave of the High Court.
Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition.
[700 B] In the instant case, prayer (c) in the election petition was concerned with the declaration of Respondent No. 5 as duly elected from the constituency.
This relief was asked to be deleted.
No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted.
In opposition to the claim made in this prayer, recrimination was filed by one of the respondents in the election petition.
But once prayer (c) was dropped, the relief of recrimination could no more stand.
[799 G 700 A] 690 2(i) Non prosecution or abandonment is certainly not withdrawal Withdrawal is a positive and voluntary act while non prosecution or abandonment may not necessarily be an act of volition.
It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute.
In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure.
In the case of non prosecution or abandonment, the election petitioner does not appear before the court and obtain any orders.
[701 H 702 A] (ii) The Act is a self contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy.
The terms of sec.
87 clearly prescribe that if there by no provision in the Act to the contrary, the provisions of the Code of Civil Procedure would apply and that would include Order IX Rule 8, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
[702 B] (iii) Dismissal of an election petition for default of appearance of the petitioner under the provisions of Order IX or Order XVII of the Code would be valid and would not be open to challenge on the ground that these provisions do not apply.
[704 D] Jugal Kishore vs Dr. Baldev Parkash.
AIR 1968 Punjab & Haryana 152 at 158 159; Duryodhan vs Sitaram & Ors.
AIR 1970 All.
1. approved.
Sunderlal Mannalal vs Nandramdas Dwarkadas & Ors.
A.I.R. 1958 M.P. 260 Rajendra Kumari Bajpai vs Ram Adhar Yadav & Ors at 260; referred to.
(iv) Order IX, Rule 9 (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition, and it can be invoked in an appropriate case by the election petitioner only and not by a respondent.
[704 E] In the instant case the election petitioner and not the appellant could have asked for the relief of restoration.
[704 G] 3.
The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code would be applicable.
The Court had occasion to point out that the Legislature had not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise.
The legislature could have removed the lacuna by amending the Act, particularly when many amendments have been made.
The fact that has been done leaves an impression that the Court had not misread the situation.
It is not for the Court to fill up any lacuna in the legislation.
[707 B C; F G] Dhoom Singh vs Prakash Chandra Sethi & Ors. ; at 599; Sheodhan Singh vs Monan Lal Gautam.[1969] 3 S.C.R 416 at 421. referred to. 691


Input:
ivil Appeal No. 1632 of 1985.
From the Judgment and Order dated 2.4.1985 of the Bombay High Court in Election Petition No. 1 of 1985.
Ram Jethmalani, Kapil Sibbal, Karanjawala, Mrs. R. Karanjawala, Ejaz Mazbool and Ms. Priya Jaitley for the Appellant.
T.S. Krishnamurthy lyer, S.D. Lal and H.K. Puri for the Respondents.
At the last General Election held to the Lok Sabha he was declared duly elected from the Dadra and Nagar Haveli Parliamentary Constituency by a substantial majority.
After the declaration of the result of the elec tion the 1st Respondent, who was one of the defeated candi dates, filed an election petition in Election Petition No. 1 of 1985 on the file of the High Court of Bombay calling in question the result of the election on the ground that the appellant was disqualified to be chosen as a member of the Lok Sabha on the date of the scrutiny of the nomination papers, because he held an office of profit under the Gov ernment other than an office declared by Parliament by law not to disqualify its holder.
The High Court accepted the contention of the 1st Respondent and set aside the election of the appellant by its judgment dated April 2, 1985.
This appeal is filed under section 116 A of the Representation of People Act, 1951 (hereinafter referred to as 'the Act ') against the judgment of the High Court.
The facts of the case may be summarised thus.
The 1st Respondent was a member of the last Lok Sabha.
On 13.11.
1984 elections to the present Lok Sabha were announced.
The appellant, who was holding the post of an Investigator as a temporary Government servant in the Union territory of Dadra and Nagar Haveli, decided to contest the election from the Dadra and Nagar Haveli Parliamentary Constituency, which was a constituency reserved for the members belonging to the Scheduled Tribes.
He had been appointed on 2.5.1979 as a 640 Junior Clerk on a temporary basis in the Administration of Dadra and Nagar Haveli.
His appointment was subject to the conditions mentioned in the order of appointment and amongst the said conditions there were the following three condi tions: "1.
He will be governed by the Central Civil Services Rules.
The appointment is purely on temporary basis and is liable to be terminated at ONE month 's notice.
. . . . . . . 4. . . . . . . 5. . . . . . . 6.
Before resigning the post, he shall have to give one month 's notice to the Administration failing which he shall have to remit one month 's notice pay before he could be relieved from service.
. . . . . . . . . .
The above order of appointment was issued by the Collec tor of the Union territory of Dadra and Nagar Haveli, Silva sa.
The relevant Central Civil Services Rules which governed the appellant were the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as ( 'the CCS Temporary Service Rules ').
Rule 5(1) of the said Rules, which dealt with the termination of temporary service, read as follows: "5(1)(a) Termination of Temporary Service The service of temporary Government servant who is not in quasipermanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to Government servant.
(b) The period of such notice shall be one month.
Provided that the service of any such Government servant may be terminated forthwith and on such termination the 641 Government servant shall be entitled to claim a sum equiva lent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be for the period by which such notice falls short of one month.
" The last date for filing the nomination was 27.11.
1984 and the date of scrutiny of the nomination papers was 28.11.
The appellant, who was then working as an Investigator attached to the office of the Development and Planning Officer, Dadra and Nagar Haveli, Silvasa, wrote a letter on November 21, 1984 to the Collector of Dadra and Nagar Have li, who was the appointing authority, tendering his resigna tion.
The said letter read as follows: "From: Shri Sitaram J. Gavali, Investigator, Office of the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa.
Silvasa, November 21, 1984.
To The Hon.
Collector, Dadra and Nagar Haveli, Silvasa.
Respected Sir, As I intend to contest the forthcoming Parliament Election from Dadra and Nagar Haveli Parliamentary (Constit uency), I the undersigned hereby give up my post of Investi gator which I am holding as temporary Government servant forthwith.
As I am giving up my post forthwith I hereby tender my pay plus allowances of one month vide Demand Draft No. C 199981 from State Bank of India, Silvassa Branch dated 21.11.1984 of Rs.1024.05 (Rupees One Thousand Twenty four and paise five only) in 642 favour of Development and Planning Officer, Dadra and Nagar Haveli, Silvasa.
Hence I cease to be a temporary Government servant from today only.
This letter of giving up my post as temporary Government servant is covered by Rule 5(1)(a) of CCS Temporary Service Rules.
Yours faithfully, Sd/ (S.J. GAVALI) Investigator" The said letter was submitted through the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa.
Along with the said letter of resignation, as mentioned therein, he sent a demand draft drawn on the State Bank of India for a sum of Rs. 1024.05 paise which he was drawing as monthly pay plus allowances of the post he held immediately before that date.
Since he did not get any reply from the Collector to his letter of resignation, on 23.11.1984 he met the Collector and also the Secretary to the Administrator of Dadra and Nagar HaveIi who was the returning officer of the said election.
Then on 24.11.1984 he wrote a letter to the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa which reads thus: "From: Shri Sitaram J. Gavali, Silvasa.
24.11.1984 To The Development & Planning Officer, Dadra and Nagar Haveli, Silvasa.
Sir, I have already submitted my application dated 21.11.1984 to the Hon.
Collector through the Development and Planning Officer to relieve me from my post with 643 immediate effect and as per the law, t also tendered a sum of Rs. 1024.05 by Demand Draft in favour of the Development & Planning Officer in lieu of one month notice.
In view of the said provisions, I ceased to be a Government servant from that date.
I had also requested on the same day to take the files and other records of the post held by me.
It has been informed by you that the said files and records will be taken only after getting orders of the Collector.
On the 23.11.1984, I met the Hon.
Collector and Secretary to the Administrator twice who have informed me that you (myself) are now no more a Government servant.
As per application dated 21.11.1984, I ceased to be a Govern ment 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 posses sion so that in future I am eligible to file my nomination for Lok Sabha Election for Dadra and Nagar Haveli Parliamen tary Constituency before the Returning Officer.
I submit the above mentioned document today, i.e. 24.11.84 at 10.00 hrs.
Kindly acknowledge the receipt of the same.
Thanking you, Yours faithfully, Sd/ (S.J. Gavali)" Submitted a copy of the above letter to the Collector, Dadra and Nagar Haveli also.
The said letter referred to the fact that the appellant had met the Collector and also the Secre tary of the Administrator on 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 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 644 Nagar Haveli Constituency, Silvasa, who was also the Secre tary to the Administrator, which read thus: "From: Shri Sitaram J. Gavali, Silvasa.
26.11.1984 To The Returning Officer, Dadra and Nagar Haveli, Silvasa.
Respected Sir, I had been working as temporary Government servant with the designation as 'Investigator ' under the Nagar Haveli Administration.
The terms of my service are regulated by the 'Central Civil Services (Temporary Service) Rules, 1965 '.
When Lok Sabha elections were declared on 13.11.
1984, I took decision to contest the same.
Dadra and Nagar Hayeli is reserved constituency for Scheduled Tribes.
I belong to the Kokna Tribe which is a declared Scheduled Tribe covered by the Schedule to the 'Constitution (Dadra and Nagar Haveli) Schedule Tribes Order, 1962. ' Since I intend to contest the election, I have given up my post of Investigator from 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 ad dressed 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 termination of my services.
In particular the same notice is neither to be replied to or even considered by the appointing authority.
The said notice under Rule (1) has been given by me on 21.11.1984 a copy of the same is hereto annexed and marked Annexure A.
I say that the said letter was received by the Collector 's office on 21.11.1984 itself.
That thereafter on 23.11.1984 one express Telegram has 645 been sent by me to the Administrator, Dadra and Nagar Haveli informing him that I have given up my service as temporary servant on 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 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 of the Consti tution of India.
1 am addressing this letter to you out of abundant caution as I fear that the sitting member of Par liament Mr. Ramji Pitia Mahala, who is a close friend of the Collector, Dadra and Nagar Haveli has improperly prevailed over the Collector, Dadra and Nagar Haveli to sleep over my letter dated 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 con tention 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 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.
I pray that the aforesaid contention may be borne in mind when my nomination papers are scrutinised on 28.11.
Yours faithfully, (SITARAM J. GAVALI)" Copies of the above letter were sent by the appellant to the Administrator, Dadra and Nagar Haveli, Caho Niwas, Panjim, Goa, Election Commission of India, Chief Electoral Officer, Dadra and Nagar Haveli and to SC/ST Commissioner for infor mation and necessary action.
On the same date he received a reply from the office of the 646 Administrator, Dadra and Nagar Haveli which read as follows: "No. ADM/SECT/MISC/SJG/84 Administration of Dadra and Nagar Haveli, Silvasa, date 26.11.1984.
To Shri Sitaram J. Gavali, Investigator, (Through the D.P.O.) Dadra and Nagar Haveli, Silvasa.
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 tendered pay and allowance of one month.
In this connection I am directed to inform you that the said notice was exam ined in the Administration.
Necessary legal opinion was also obtained.
The case was also referred to the Government of India, in the Ministry of Home Affairs, through Crash Wire less Message dated 23.11.1984.
As per Government of India 's decision, your notice of termination of service takes effect on the expiry of the prescribed period of one month.
There is no provision under Rule 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 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) Governor to the Administrator Dadra and Nagar Haveli, Silvasa" The above letter stated that the Ministry of Home Affairs, Government of India had been contacted by the Collector in connection with the letter of resignation submitted by the appellant on 21.11.1984 and 647 necessary legal opinion had been obtained thereon.
The said letter, however, informed him that there was no provision under Rule 5(1) of the CCS Temporary Service Rules under which a temporary Government servant could deposit one month 's pay in lieu of the period of notice issued under Rule 5(1) of the said Rules and that the notice of termina tion of service issued by the appellant would, therefore, take effect only upon the expiry of one month from the date of the receipt of the notice.
In other words, the said letter stated that the appellant would continue to be a temporary Government servant till 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 Gavali, Silvasa.
27.11.1984 To Secretary to the Administrator, Dadra and Nagar Haveli, Silvasa Subject: Lok Sabha Election matter Sir, I the undersigned Shri S.J. Gavali beg to state under: 1.
I have received your letter No. ADM/Secy/Misc/SJG/84 dated 26.11.1984.
I have been informed by you that the notice of termination of my services will take effect only after the expiry of one month from the date of submission of notice.
In this connection, I am to state that I had been appointed as Jr. Clerk vide Administration Order No. ADM/EST/C/RCC/1466/1979 dated 2.8.79.
The said appointment is subject to the conditions fixed by the administration.
648 As per the condition No. 2 the appointment is purely on temporary basis and is liable to be terminated at one month 's notice and as per the condition No. 6 before resigning the post, I have to give one month 's notice to the Administration, failing which I have to remit one month 's pay before I can be relieved from service.
I have been promoted as Investigator by the Administration and my service conditions were contin ued.
I intended to contest the forthcoming Parliament election from this area and therefore, I gave up my post and paid my one month notice pay on 21.11.1984 and tendered my notice by the said letter giving up my post as temporary Govt.
serv ant.
I have also submitted detailed representation to the Returning Officer, Dadra and Nagar Haveli, Silvasa on 25.11.
I have already given my charge to the Development and Planning Officer, Dadra and Nagar HaveIi, Silvasa vide my letter dated 24.11.1984.
I am not holding any office of profit with the Govt.
of India from 21.11.1984.
I have tendered notice with immediate effect and also deposited one month 's pay in lieu of notice as per the terms and conditions of my appointment.
I have already given my charge.
My notice became effective from that very day and does not require any formal acceptance as per rules.
Under the above circumstances for being chosen as a Member of Parliament.
Incidentally I would like to draw your kind attention that Administration has considered many cases, and accepted the resignation with immediate effect, when the Govt.
serv ants have tendered their resignation with one month 's pay as per the terms and conditions of their appointment orders.
The resignations of the following persons were accepted with immediate effect by the Collector, Dadra and Nagar Haveli, Silvasa.
The said persons had paid one month notice pay.
649 Name Date of acceptance of resignation.
Shri J.V. Desai 12.4.78 Stockman, Khanvel Shri C.V. Patel, 31.1.1983 Stockman Shri A.H. Patel, 30.8.84 Primary School Teacher Shri D.G. Shah, . .
High School Teacher Shri R.G. Chauhan, 7.1984 Primary School Teacher Shri J.D. Patel.
10.1984 Lineman, P.W.D., Silvasa.
(He was relieved on same day) The Administration should take equal decision for all employees.
But different decision taken for me is against law, equity and justice.
I am addressing this letter to you out of abundant cau tion as I fear that the sitting member of Parliament Mr. R.P. Mahala who is close friend of the present Collector has improperly prevailed over the Collector to sleep over my letter dated 21.1 l.1984 and taken wrong contention.
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.
My right to contest the election should not be deprived.
I, therefore, request you to kindly look into the matter personally and give me justice properly.
I am quite eligible to contest the election.
1 have explained clear position to you.
I therefore request you to do 650 the needful in the interest of natural justice and protect the right of citizen.
If you take any adverse action for my election activities, I shall take all legal actions as per the circumstances of my case would warrant against you with your costs and consequences, which please note.
Yours faithfully, sd/ (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 which authorised him to resign his service on remitting 'one month 's notice pay '.
He pleaded in the said letter that since he had remitted 'one month 's notice pay ' and also handed over the charge by delivering all the files, registers records etc.
which were with him on 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 six temporary Government serv ants on payment of 'one month 's notice pay '.
In reply to the above letter he got a reply from the Development and Plan ning Officer, Dadra and Nagar Haveli, Silvasa on December 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: "Administration of Dadra and Nagar Haveli, U.T. (Department of Rural Development) No. DPO/EST/EF SJG/84 85/2 153 Silvasa, 21.12.1984.
To Shri Sitaram J. Gavali, Investigator, Dadra and Nagar Haveli, At and Post: Khanval.
Sir, I am directed to refer to this Administration 's letter No. ADH/SECY/MISC/SJC/84 dated 26.11.84 and as mentioned therein, your notice of termination of services 651 takes effect on the expiry of the prescribed period of one month.
There is no provision under Rule 5(1) of the CCS (Temporary Services) Rules, 1965, under which the Government servant can deposit one month 's pay in lieu of the pre scribed period of notice.
Under the circumstances, the demand draft of the State Bank of India, Silvasa Branch bearing No. C 199981 dated 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.
Yours faithfully Sd/ Development and Planning Officer Dadra and Nagar Haveli, Silvasa.
" In the meanwhile on 28.11.1984, i.e., the date of scru tiny of the nomination papers, the Returning Officer passed the following order overruling the objection which had been raised by the 1st Respondent to the nomination of the appel lant: "I have examined this nomination paper in accordance with section 36 of the Representation of the People Act, 1955, and decide as follows: An objection was raised during scrutiny of this nomination paper, by the authorised person of the candidate Shri Mahala Ramjibhai Potiabhai, that Shri Gavali Sitaram Jivyabhai is holding as on today, an office of profit under the Administration of Dadra and Nagar Haveli and hence he is disqualified to be a Member of House of People in accordance with Article 102 of the Constitution of India.
A summary enquiry was held on this objection and both the sides were heard.
On the basis of arguments advanced and evidence adduced before me l have a doubt as to whether Shri Gavali Sitaram Jivyabhai holds an office of profit as on today, under the Administration of Dadra and Nagar 652 Haveli.
Hence I decide to give the benefit of this doubt to the candidate and accept this nomination.
Sd/ 28.11.1984 Returning Officer Dadra and Nagar Haveli, Silvasa Accordingly, the nomination papers of the appellant were accepted and since there was a contest, the poll took place on the appointed day.
At the said election, the appellant secured the highest number of votes and he was declared as elected.
As mentioned earlier, the 1st Respondent filed the election petition before the High Court.
At the conclusion of the trial, the learned Judge, who heard the election petition, having noticed the presence of Condition No. 6 in the letter of appointment issued to the appellant which enabled the appellant to resign from his post by tendering one month 's pay plus allowances, held that the letter of resignation was one which had been served on the Government under Rule 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 resigna tion had been submitted pursuant to Condition No. 6 of the letter of appointment, the resignation did not take effect, since the appellant had not been 'relieved from the service ' as required by Condition No. 6 of the letter of appointment before the date of scrutiny.
He further held that the sub mission of flies, records, papers etc.
by the appellant did not mean that he had been 'relieved from service ' as it was his unilateral act.
Accordingly, the learned Judge came to the conclusion that the resignation did not take effect till the expiry of one month from the date of the letter of termination, 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 Act.
The above appeal came up for hearing before this Court in March 1986.
On that occasion, after hearing the learned counsel for both the parties, this Court passed an order dated March 11.
1986 remitting the case to the High Court under Order 41 Rule 25 of the Code of Civil Procedure.
The said order reads thus: 653 "On hearing counsel and on going through the judg ment of the High Court and the application for amendment of the Written Statement now filed by the appellant (the re turned candidate who has been unseated) before us we feel that the amendment prayed for should be allowed.
The matter will have to go back to the High Court for this limited purpose with a direction to record and forward to this Court its findings on the issues that may arise in the light of the amended Written Statement and the additional pleadings if any that may be filed by the election petitioner in the election petition.
We, therefore, in the interests of jus tice allow the amendment of the Written Statement as prayed and direct the High Court to try issues arising out of the amended part of the Written Statement and additional plead ings, if any, to be filed by the petitioner as per Order 41 Rule 25 CPC.
We further direct the High Court to forward its findings to this Court on or before 31st August, 1986.
The parties will be at liberty to adduce additional evidence if they so desire.
Upon the findings being recorded by the High Court the parties are directed to file their objections to the findings submitted by the High Court on or before 15th of September, 1986.
This case may be posted in the 3rd week of September for further hearing.
The original record may be sent back to the High Court alongwith a copy of this order within one week from today.
" After the above order was passed the written statement of the appellant before the High Court was amended and additional issues were framed.
After recording the evidence adduced by the parties and hearing the parties, the High Court recorded its findings on the additional issues framed in the election petition and submitted them to this Court.
The additional issues that were framed pursuant to the order passed by this Court were these: "1.
Whether the acceptance of the files and records in the possession of the 1st respondent by the Development and Planning Officer, Dadra and Nagar Haveli, amounted to ac ceptance by conduct of the 1st respondent 's resignation, as alleged in paragraph 5A of the statement of Defence? 2.
Whether the absence of any negative response by 28th November, 1984 to the 1st respondent 's letter dated 25th 654 November, 1984 submitted to the office of the Collector of Dadra and Nagar Haveli amounted to acceptance by conduct by the Collector of the 1st respondent 's resignation, as al leged in the aforesaid paragraph? 3.
Whether acceptance of the 1st respondent 's application made after 21st November, 1984 relates back to the date of the application as alleged in the aforesaid paragraph? 4.
Whether the Collector, by not passing any orders on the application, is deemed to have accepted the resignation, as alleged in the aforesaid paragraph?" The learned Judge answered all the above issues in the negative and against the appellant.
The appeal was taken up for hearing again after the receipt of the records from the High Court.
The first question which arises for consideration in this case is whether the letter of resignation dated Novem ber 21, 1984 should be treated as one submitted under Rule 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 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 letter of appointment which authorised the appellant to resign from his post by remitting one month 's pay plus allowance to the Government.
Still in the circum stances of the case we feel that the finding of the learned judge of the High Court that it could be treated only as letter of resignation under Rule 5(1)(a) of the CCS Tempo rary Service Rules is 'unsustainable.
Clause (a) of Rule 5(1) of the CCS Temporary Service Rules authorises the termination of temporary service of a Government servant (who is not a quasi permanent servant) at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
Clause (b) of Rule 5(1) of the CCS Temporary Service Rules prescribes the period of such notice as one month.
The proviso to Rule 5(1), however, authorises the appointing authority and not the Government servant to terminate the temporary service of the Government servant forthwith and that on such termination the Government serv ant becomes entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be for the period by 655 which such notice fails short of one month.
There is no provision in the CCS Temporary Service Rules which autho rises a Government servant to bring about the termination of his temporary service as provided in Rule 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.
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 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 Condi tion No. 6 of the letter of appointment issued in favour of the appellant about which the appointing authority could not have been unaware.
If the concerned authority had not real ized that it was a resignation pursuant to such condition the said authority would have returned (instead of retain ing) the demand draft at once or at the earliest.
That he did not do so tells its own tale.
The existence of Condition No. 6 in the letter of appointment is not in dispute.
The appellant had drawn the attention of the Administration of the Dadra and Nagar Haveli to the acceptance of resignations of six officials who were similarly placed forthwith by the Administration on payment of one month 's pay plus allow ances.
It may also be noted that in his letter dated 27.11.
1984 the appellant had clearly stated in terms that the letter of resignation had been submitted in pursuance of Condition No. 6 of his letter of appointment.
The correct ness of the statement in the deposition of the Planning and Development Officer, who was examined after remand that a letter dated 24.11.1984 as per the original or Additional exhibit D 2 had been sent to the appellant informing the appel lant that his letter of resignation was under consideration, is in dispute.
The appellant has denied the receipt of the same.
There is no evidence supporting the service of that letter on the appellant.
This circumstance cannot, there fore, be treated as having been established.
We, therefore, do not agree with the finding of the learned Judge of the High Court that the letter of resignation submitted by the appellant on 21.11.1984 was one submitted under Rule 5(1) of the CCS Temporary Service Rules.
It is further seen that the Administration has withdrawn by a specific order subse 656 quently the condition which authorised a temporary Govern ment servant to resign from his post forthwith by tendering a month 's pay plus allowances.
The letter of resignation of the appellant was one which was submitted pursuant to Condi tion No. 6 of his letter of appointment which was one more method adopted and accepted by the Administration to bring about the termination of service of a temporary Government servant.
It is significant that the Ministry of Home Affairs had not noticed the existence of Condition No. 6 when it was consulted by the Collector as this aspect was not brought to the notice of the Ministry.
The said condition was only supplementary to the modes of termination of temporary service, referred to in Rule 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 suggest ed or faintly hinted in the High Court that there was any such inconsistency.
It is well recognised that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a rule made under the proviso of Article 309 of the Constitution of India or by a statute.
It is not shown in the facts and circumstances of the case and the material produced in the Court that there is any inconsistency be tween Condition No. 6 and any other order, rule or law.
In the circumstances we hold that the letter of resignation is one submitted pursuant to Condition No. 6 in the letter of appointment issued in the case of the appellant.
The next point for consideration is whether there has been full compliance with Condition No. 6 of the letter of appointment of the appellant.
Admittedly, the demand draft for Rs. 1024.05 paise which was equivalent to the pay plus allowances, which the appellant was drawing every month immediately prior to the date of his letter of resignation had been tendered along with the letter of resignation as enjoined by Condition No. 6.
The only question that remains to be considered is whether the appellant had been relieved from his service by the Administration.
Condition No. 6 provided that 'before resigning the post, he shall have to give one month 's notice to the Administration failing which he shall have to remit one month 's period pay before he could be relieved from service '.
No rule or executive order prescribing the method or manner in which a temporary Gov ernment servant of the rank of an Investigator could be relieved from service under Condition No. 6 of the letter of appointment is brought to our notice.
Nor it is shown by adducing any evidence as to what practice had come to vogue as regards relieving such a person.
The resignation 657 contemplated under Condition No. 6 is not the same as the letter of resignation which may be submitted by a Government servant on the acceptance of which he ceases to be a Govern ment servant.
In the case of an ordinary resignation which is governed by the Memorandum No. 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 employment is such that he can be relieved forthwith with outthe need for waiting for a month and that he would be so relieved as was indeed done in the case of others governed by such a condition.
The only thing that has got to be decided in this case is whether the appellant had been actu ally relieved from service.
There is no dispute that at 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, registers, files etc.
which were with him to the head of his office along with a letter, a copy of which was submitted to the Collector, who was the appointing authority.
This cannot be termed as an unilateral act of the appellant.
There was no refusal to accept the records.
There was no order to report for duty and discharge any functions.
The appellant had not, in fact, been paid any salary or allowance for the period subsequent to 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 against him for his absence in the wake of his resignation.
There was no disciplinary proceed ing or any other kind of enquiry pending against the appel lant which required the appointing authority not to relieve the appellant from his service in the public interest.
And there was no objection raised as a matter of fact on any ground to his being treated as having ceased to be in serv ice eventually till the expiry of one month from the date of his service.
It is not as if for administrative reasons his resignation was not acceptable for any reason.
It appears to us that the appellant 's resignation had become effective at least on the day on .which the records were handed over, that is before the date of scrutiny and he had ceased to hold an office before the date of scrutiny.
The Returning Officer had rightly overruled the objection and accepted his nomination paper.
It is not established by the election petitioner on whom the onus rested that the returned candi date held an office of profit on the date of scrutiny or that his nomination paper was wrongly accepted by the Re turning Officer.
He cannot therefore successfully assail the election of the returned candidate, the appellant herein.
In these circumstances we are of the view that the appellant 658 should be deemed to have been relieved from his service at 10.00 A.M. on 24.11.1984 and he had ceased to be a Govern ment 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 question whether the Collector had deliberately delayed the acceptance of the resignation of the appellant with a view to assisting the 1st Respondent, who was a Member of the last Lok Sabha, as alleged by the appellant.
We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss the election petition.
The appellant is entitled to the costs both before the High Court and in this Court which we quantify at Rs.5,000.
The 1st Respondent shall pay the costs of the appellant.
The appeal is accordingly allowed.
S.R. Appeal allowed.

Output:
The appellant who belonged to Scheduled Tribe covered by the Schedule to the Constitution (Dadra and Nagar Haveli) Schedule Tribes Order, 1962, decided to contest the 1984 election from the Dadra and Nagar Haveli Parliamentary Constituency which was a constituency reserved for the members belonging to the Scheduled Tribes.
As he was holding the post of an Investigator as a temporary Government serv ant governed by the Central Civil Services (Temporary Serv ices) Rules, 1965 and also by condition 6 of his appointment order, he wrote a letter on November 21, 1984 to the Collec tor of Dadra and Nagar Haveli, who was his appointing au thority, tendering his resignation and enclosing a demand draft drawn on the State Bank of India for a sum of Rs.1024.05 paise, being one month 's notice pay.
On 24.11.1984 at 10 A.M. he wrote another letter to his immedi ate officer and submitted all the records and files which were with him.
He, thereafter, filed his nomination paper on the same day 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 contention that he ceased to be a gov ernment servant with effect from 21.11.84, while scrutinis ing the nomination paper.
On the same date he received a reply from the office of the Administrator Dadra and Haveli to the effect that his resignation would take effect from 21.12.84 on the expiry of one month 's notice and that 636 his remitting one month 's notice pay was not contemplated under Rule 5(1)(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 Admin istrator 's notice condition No. 6 of his appointment order and also cases of six other officers whose resignations were accepted forthwith accepting one month 's notice pay from them.
The appellant also alleged mala fides and pressure by Respondent No. 1, the then sitting member of the Parliament on the Collector.
In reply to the said letter, the Develop ment and Planning Officer by his letter dated 21.12.84 reiterated the Administrator 's stand and returned the demand draft.
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 office of profit under the Govern ment he was disqualified to contest the election.
In the said election, the appellant secured the highest number of votes and he was declared elected.
The election petition filed by Respondent No. 1 was allowed and the appellant 's election was declared null and void.
The appeal preferred by the appellant under section 116 of the Repre sentation of People Act, 1951 was remitted to the High Court for amendment of written statement, framing of fresh issues and further findings of the High Court on them.
All the four additional issues framed were answered against the appellant and thereafter, the said appeal was set for further hearing.
Allowing the appeal, the Court, HELD: 1.
The letter of resignation dated November 21, 1984 cannot be treated as one submitted under Rule 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 Govern ment servant forthwith and that on such termination the Government servant becomes entitled to claim a sum equiva lent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be for the period by which such notice fails short of one month.
There is no provision in the CCS Temporary Service Rules which authorises a Government servant to bring about the termination of his temporary service as provided in Rule 5(1) by paying a sum equivalent to the amount of his pay and 637 allowances of the period of notice at the same rates at which he was drawing them immediately before termination of his service or as the case may be for the period by which notice falls short of one month.
If the letter of resigna tion was truly one which had been submitted under Rule 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 contemplated only when the resignation was under condition No. 6 of the letter of appointment issued in favour of the appellant about which the appointing authority could not have been unaware.
If the concerned authority had not realised that it was a resignation pursuant to such conditions the said authority would have returned (instead of retaining) the demand draft at once or at the earliest.
[654D; G H; 655A E] 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 Administration to bring about the termina tion of service of a temporary government servant.
The said condition was only supplementary to the modes of termination of temporary service, referred to in Rule 5(1) of the CCS Temporary Service Rules and it was not in any way inconsist ent with the said Rules.
As a matter of fact it was not even suggested or faintly hinted in the High Court that there was any such inconsistency.
[656B C] 1.3.
It is well recognised that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not re pealed either expressly or by necessary implication by another executive order or a rule made under the proviso of Article 309 of the Constitution of India or by a statute.
In the facts and circumstances of the case, the material pro duced in the Court and in the absence of any inconsistency between condition No. 6 and any other order, rule, or law the letter of resignation is one submitted pursuant to condition No. 6 in the letter of appointment issued in the case of the appellant.
[656C E] 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 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 638 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 temporary government servant of the rank of an investigator could be relieved from serv ice under Condition No. 6 of the letter of appointment or any evidence adduced as to what practice had been in vogue as regards relieving such a person, it must be held that it is implicit in such a condition that the nature of his employment is such that he can be relieved forthwith without the need for waiting for a month and that he would be so relieved as was indeed done in the case of others governed by such a condition.
[657A C] 2.3 The appellant 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.
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, registers, files etc.
which were with him to the head of his office along with a letter, a copy of which was submitted to the Collector, who was the appointing authority.
This cannot be termed as an unilateral act of the appellant.
There was no refusal to accept the records.
There was no order to report for duty and discharge any functions.
The appellant had not, in fact, been paid any salary or allowance for the period subsequent to 20.11.84, 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 21.11.84 except for handing over the records, files, registers etc.
on 24.11.84.
The appellant was not asked by the Collector to attend the office till 21.12.84 nor grievance was made against him for his absence in the wake of his resignation.
There was no disciplinary proceeding or any other kind of enquiry pending against the appellant which required the appointing authority not to relieve the appellant from his service in the public interest.
And there was no objection raised as a matter of fact on any ground to his being treated as having ceased to be in service eventually till the expiry of one month from the date of his service.
It is not as if for administrative reasons his resignation was not acceptable for any reason.
[657C F] 3.
The Returning Officer had rightly overruled the objection and accepted his nomination paper.
It is not established by the election petitioner on whom the onus rested that the returned candidate held an office of profit on the date of scrutiny or that his nomination paper was Wrongly accepted by the Returning Officer.
He cannot there fore suc 639 cessfully assail the election of the returned candidate, the appellant herein.
[657G H]