NAYNA DNYANOBA PAWAR Vs. VIMAL NANDKISHOR MUNDADA

JUDGEMENT

(1.) By this petition, petitioner challenges election of Respondent No. 1 as Member of Legislative Assembly, State of Maharashtra, from 201 Kaij Constituency, on ground of illegal and improper rejection of her nomination by Respondent No. 2 and seeks declaration that election of the Respondent No. 1 as Member of Legislative Assembly, declared on 16th September, 2004, is null and void, and liable to be set aside.

(2.) The petitioner was appointed as Medical Officer Class-II at S.R.T.R. Medical College, Ambajogai, as per appointment letter dated 04-11-1991. Initially, her appointment was on probation and temporary. She was appointed on permanent basis through process of Maharashtra Public Service Commission in 1995. In or about September, 2003, she was transferred to Rural Hospital, Parali (Vaijanath). She was working as such when elections for Member of Legislative Assembly from 201 Kaij Constituency were declared. She hails from and is a voter from Kaij Constituency. She desired to enter active politics. So, she decided to resign the post of Medical Officer Class-II. She tendered her resignation letter on 13-09-2004 addressed to the Secretary, Public Health Department, Mantralaya, Mumbai. The resignation was to be routed through proper channel, and, therefore, she gave the letter of resignation to the Medical Superintendent, Rural Hospital, Parali (Vaijanath). He received the letter of resignation on 14-09-2004.

(3.) The petitioner alleges that she desired to immediately lay down the office, and hence, deposited one month's salary amount on 14-09-2004. The amount of one month's salary in lieu of one month's prior notice was deposited in accordance with the condition enumerated in Clause (3) (C) of the appointment letter. She asserts that the amount was so deposited as she did not want to await for one month and desired to quit the office immediately on submission of the resignation letter. She asserts that the Medical Superintendent issued "No Dues-cum-No Enquiry Certificate" in her favour and recommended that her letter of resignation may be accepted. The Medical Superintendent forwarded her resignation letter in requisite proforma to the competent authority. The last date for filing nomination papers for 201 Kaij Constituency was 22nd September, 2004 and the scrutiny of the nomination papers was fixed on next day i.e. 23rd September, 2004. The petitioner submitted her nomination paper as a candidate of Bhartiya Janata Party (BJP). The Respondent No. 1 was fielded as a candidate by the Congress Party. The Respondent No. 1 alongwith some other six candidates had filed nomination papers from the said Constituency. An objection was raised by the Respondent No. 1 to nomination of the petitioner on the ground that she was disqualified to contest the election in view of Article 191 (1) (a) of the Constitution of India. Tenor of the objection was that the petitioner was not validly relieved from the post because her resignation was not accepted at the relevant time. It was contended by the Respondent No. 1 that the petitioner was holder of office of profit being a Government servant as on the date of the scrutiny of the nomination papers. Therefore, she was disqualified for being elected as Member of the Legislative Assembly. The Respondent No. 1 contended that as per the norms laid down in Government Resolution dated 2nd December, 1997, the employment of the petitioner would stand continued until the resignation was accepted. The petitioner filed her representation to the Objection Petition on the same day. The Respondent No.2, however, rejected the nomination of the petitioner, holding that she was disqualified as on the date of scrutiny of the nomination papers. The Respondent No. 2 rendered order dated 23rd September, 2004 (Exh-G) accordingly, holding that the petitioner was disqualified under Article 191 (1) (a) of the Constitution of India and Section 33 (3) of the Representation of the Peoples Act, 1951, being holder of office of profit at the relevant time. Thus, she was set out of the fray in the process of election to the said Constituency. The respondent No. 1 was declared as returned candidate on 16-10-2004 as a result of said election.