SRI MATHURA PRASAD Vs. SUB DIVISIONAL OFFICER HANDIA

JUDGEMENT

(1.) Respondent No. 2, Sri Ram Naresh Bhartiya, was declared elected Pradhan of Gaon Sabha Khaikhaicha, Tehsil Handia, district Allahabad at the election held on 1st June, 1972. The Petitioner, who was an unsuccessful candidate at the election challenged the election of Respondent No. 2 as Pradhan by means of a petition under Sec. 12-C of the U.P. Panchayat Raj Act on the sole ground that on the date when he filed his nomination paper for the office of Pradhan he was a Government servant and consequently disqualified from being chosen or elected and hence his nomination paper has been improperly accepted. The plea was rejected by the Sub-Divisional Officer. Aggrieved by the dismissal of his election petition the Petitioner has filed this writ petition.

(2.) To appreciate the submission made by the learned Counsel for the Petitioner it is useful to bear in mind that the date for filing of the nomination papers was 2nd May, 1972 and, as already stated, the election was held on 1st June, 1972. Respondent No. 2, who was a Government servant employed as the Assistant Soil Conservator Inspector, submitted his resignation from the post held by him on 1st May, 1972. The resignation letter remained under consideration with the authorities concerned and ultimately by an order dated 2/4th June, 1973 the Assistant Director, Agriculture and Soil Conservation, accepted his resignation with effect from 1st May, 1972. The Sub-Divisional Officer has taken the view that the resignation became effective with effect from 1st May, 1972 and consequently on the 2nd May, 1972 when the nomination paper was filed by Respondent No. 2. he was not a Government servant.

(3.) We have heard learned Counsel for the Petitioner and, in our opinion, the view taken by the Sub-Divisional Officer is patently erroneous. On the date when the nomination paper was filed Respondent No. 2 was holding the status of a Government servant because by that time his resignation letter had not been accepted. Even at the time when the election for the office of Pradhan took place on the 1st June, 1972, he continued to enjoy that status and retained the right to withdraw his resignation since it had not been accepted. The order dated 2/4th June, 1973 has the effect of wiping out his status as a Government Servant with effect from a retrospective date. No service rules containing a provision for retrospective acceptance of resignation applicable to Respondent No. 2 have been brought to our notice. Under the circumstances we are of the opinion that Respondent No. 2 must be deemed to have resigned from his post with effect from 2/4th June, 1973 when his resignation was in fact accepted. The recital contained in the letter accepting the resignation that it was being accepted from the 1st May 1972 must be ignored. We are supported in the view taken by us by the observations made by the Supreme Court in Raj Narain Vs. Smt. Indira, Nehru Gandhi AIR 1972 SC 1302. The relevant facts as emerge from the judgment of the Supreme Court are that Yashpal Kapoor, who was a Government Servant, tendered his resignation from the office he was holding on the 13th Jan., 1971. The resignation was accepted by the President on the 25th Jan., 1971. The notification disclosed that the resignation of Yashpal Kapoor had been accepted from the 14th Jan., 1971. A learned single Judge of this Court had taken the view while trying the election petition that Yashpal Kapoor must be deemed to have resigned from the 14th Jan., 1971, relying mainly on the recital contained in the notification issued disclosing the acceptance of Yashpal Kapoor's resignation. This approach was disapproved by the Supreme Court. It was observed by the Supreme Court in the above mentioned case that if retrospective acceptance of the resignation of a Government Servant is considered to be permissible, it might enable the Government to defeat the mandate of Sec. 123(1) of the Representation of the People Act. That approach to the problem, we are faced with, is in our opinion, eminently justified. We consequently hold that Respondent No. 2 was disqualified to be elected to the office of Pradhan of the Gaon Sabha concerned and his nomination paper had been illegally accepted.