LexJAIPAL SINGH versus SMT. SUMITRA MAHAJAN AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
JAIPAL SINGH
v.
SMt. SUMITRA MAHAJAN AND ANR.
APRIL I, 2004
[V.N. KHARE, CJ. AND S.H. KAPADIA, J.]
Representation of the People Act, I95/; Ss. 3(/)(a) and 116-AIAll India
Services (Death-cum-Retirement benefits) Rules, I958; Rule 16(2):
A
B
Election to Rajya Sabha/Parliament-Filing of nomination paper by a C
member of Indian Administrative Sen,ice afier seeking voluntary retirement-
Nomination paper rejected by Returning officer on the ground that since the
notice period has not elapsed, he was holding office· of profit-Election
petition-Rejected by the High Court holding that the petitioner failed lo
disclose material facts-On appeal, Held: Election Petition is a matter of D
statutory right-It should contain concise statement of material facts for
determination-Facts pertaining to holding of office of profit 011 the date of
scrutiny of nomination paper, consideration of his application for voluntary
retirement by the concerned authority and status of application fur waiver of
notice period being material facts within the knowledge of the petitioner,
ought to have been disclosed by him-Hence, petition was rightly dismissed E
by the High Court-Constitution of India, 1950: Article 102(/)(cj.
·Words and Phrases:
'material facts' and 'material particulars '-Distinction between i11 the
context of Representation of People Act, 1951-Discussed.
F
'voluntary retirement' and 'resignation'-Disti11ctiu11 between in the
context of service jurisprudence-Discussed.
The questions which arose for consideration in this appeal were as to
whether the election petition was lacking in material facts as required under G
Section 83(l)(a) of the Representation of the People Act, 1951 and as to
whether the petition could have gone to trial.
It was contended by the appellant that he had disclosed all the material
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SlJPREMI COUR I' REJ>( IR rs
12110.fl 3 S.C.R.
A facts regarding his \'Oluntary retirement from service; that all the formalities
concerning his retirement from ser\'ice stood completed with the filing of
application of voluntary retirement; that he had made a request tu the
appointing authority for waiver of the notice period; that grnnting of waiver
of notice period or its consequences were questions of law do not require to
B be pleaded; and that relinquishment of the charge of the post was a disputed
fact which ought to have been decided at the stage of trial.
Dismissing the appeal, the Court
HELD: I. I An election petition is a matter of statutory right and the
material fact has to be decided in the context of the election petition under
C the Representation of People Act. As to the question, whether the petitioner
was holding office of profit on the date of scrutiny of the nomination paper,
the petitioner ought to have answered that before filing the nomination paper
he had reque>ted for waiver of the notice period; that the appointing authority
had received the notice on the specified date and that his request for wai\'cr
D stood granted on the date of scrutiny and he therefore ceased to be a
Govcrnmcnt serv:111t. These were material facts within his knowledge and
ought to have been pleaded in the election petition. Enn the letter of the
appcllaut seekin11, the waiver of the notice period did not form part of the
election petition. Hence the High Court was right in dismissing the election
E pelition li1r 11:rn1 of mall'l'ial facts. j681J-G-H; 690-Al
F
lut 1ull . • 1,,:.11 /._,-' :)~,·i1!t~ tUld ()J's. '" .-l ~-.\l\Ju1U L 'huril)' C'u1111uissiuner and Urs.,
l:?OO.tt 2 S.:ak 82 ""'I S.i11w111 :\'. liuikrishna v. CJeor:.;e Femunde=. 1196918 SCC
~..18, rck1 i •·d le:.
li111<·e v. Odhun1.\ /'1e~s Ltd. (1936) I KB 697, referred to.
1.2. The basic distinction between 'voluntary retiremc11t' and
·resignation' i> that in the C<Jse of resignation, it can be tendered at any time
but in the case of \'oluntary retirement, it can only 'be sought fur after
n:11derini: prescribed period of qualifying service. In the case of resignation,
G a prior pcrmi,sion is not mandatory while in the case of voluntary retirement,
pcrmb>ion ur concerned employer is requisite condition. Under rule 16 of the
1958 [{ules, an cmploy~c who seeks voluntary retirement has to give three
months no1icc to enable the employer to complete the designated mode of
acceptance. In a gi\'cn case. the appointing authority may refuse to waive the
notice period which shows that resignation may be uExcerpt shown. Read the full judgment & AI analysis in Lexace.