SITARAM JIVYABHAI GAVALI versus RAMJIBHAI PETIYABHAI MAHALA & ORS.

Citation: [1987] 2 S.C.R. 635 · Decided: 25-03-1987 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

SITARAM JIVYABHAI GAVALI 
A 
v. 
,Jz 
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RAMJIBHAI PETIYABHAI MAHALA & ORS. 
MARCH 25, 1987 
[E.S. VENKATARAMIAH ANO M.P. THAKKAR, JJ.] 
8 
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Constitution of India, 1950, Article 102(1)(a) Disqualifications 
for Membership of either House of Parliament-Appellant a temporary 
Government servant tenders his resignation along with a month's salary 
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as per clause 6 of his appointment order hands over the official records 
in his possession, and files the nomination, explaining everything in the 
covering letter to the Returning Officer-Whether the appellant could be c 
said to hold an "office of profit under the Government" on the date of 
-·y filing the nomination-Doctrine of Relation Forward, applicability of-
Deemed date of resignation, what is-Whether Rule 5(1)(a) of the 
Central Civil Services (Temporary Services) Rules, 1965, scope. 
D 
The appellant who belonged to Scheduled Tribe covered by the 
Schedule to the Constitution (Dadra and Nagar Haveli) Schedule 
Tribes Order, 1962, decided to contest the 1984 election from the Dadra 
and Nagar Haveli Parliamentary Constitutency which was a constitu-
tency reserved for the members belonging to the Scheduled Tribes. As 
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he was holding the post of an Investigator as a temporary Government E 
servant governed by the Central Civil Services (Temporary Services) 
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, Rules, 1965 and also by condition 6 of his appointment order, he wrote 
a letter on November 21, 1984 to the Collector of Dadra and Nagar 
Haveli, who was his appointing authority, tendering his resignation and 
,. 
enclosing a demand draft drawn on the State Bank of India for a sum of 
Rs.1024.05 paise, being one month's notice pay. On 24.11.1984 at 10 F 
--l 
A.M. he wrote another letter to his immediate 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 conten-
G 
lion that he ceased to be a government servant with effect from 
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21.11.84, while scrutinising the nomination paper. 
On the same date he received a reply from the office of the 
Administrator Dadra and Haveli to the effect th'at his resignation wonld 
take effect from 21.12.84 on the expiry of one month's notice and that H 
635 
636 
SUPREME COURT REPORTS 
(1987] 2 S.C.R. 
A his remitting one month's notice pay was not contemplated under Rule 
S(l)(a) of the Central Civil Services (Temporary Services) Rules, 1965, 
as per the legal opinion obtained. On 27 .11.84, the appellant sent a 
reply bringing to the Administrator's notice condition No. 6 of his 
appointment order and also cases of six other officers whose resigna-
B 
tions were accepted forthwith accepting one month's notice pay from 
them. The appellant also alleged malafides and pressure by Respondent 
No. 1, the then sitting member of the Parliament on the Collector. In 
reply to the said letter, the Development and Planning Officer by his 
letter dated 21.12.84 reiterated the Administrator's stand and returned 
the.demand draft. 
c 
In the meanwhile on 28.11.84, i.e. the date of scrutiny of the 
D 
nomination papers, the Returning Officer overruled the objection 
raised by Respondent No. 1 that since the appellant was holding an ·y:: 
office of profit under the Government he was disqualified to contest the 
election. 
In the said election, the appellant secured the highest number of 
votes and he was declared elected. The election petition filed by Respon-
dent No. 1 was allowed and the appellant's election was declared null 
and void. The appeal preferred by the appellant under section 116 of 
the Representation of People Act, 1951 was remitted to the High Court 
for amendment of written statement, framing of fresh issues and 
E 
further findings of the High Court on them. All the four additional 
issues framed were answered against the appellant and thereafter, the 
said appeal was set for further hearing. 
F 
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 Government servant fo

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