SURABHI BHOOM RAO Vs. T BHANU PRASAD RAO

JUDGEMENT

(1.) THIS election petition, under Sec. 81 of the Representation of the People Act, 1951 (hereinafter referred to as 'the R.P. Act') is filed challenging the action of the second respondent in rejecting the nomination papers of the petitioner vide order in Reference No.H4/l215/2009, dated 16/3/2009 under Article 191 of the Constitution of India, and consequently declare election of the first respondent as returned candidate for the Legislative Council of the State of Andhra Pradesh from 20- Karimnagar Local Authorities Constituency as illegal and void.

(2.) THE brief facts that are necessary for disposal of this election petition may be stated as follows: THE petitioner is a resident of Korutla, Karimnagar District. He is a graduate. He was appointed as a Teacher in Schools run by Zilla Parishad, Karimnagar on 23.2.1977. While he was working as School Assistant Grade-II in Zilla Parishad Secondary School (for short, 'ZPSS'), Gatla Narasingapur, Karimnagar District, he went on leave with effect from 10.8.1990. He did not join duty thereafter due to domestic problems. Later, he submitted resignation to the said post held by him. Since then, for all purposes, he was no longer in employment of Zilla Parishad, Karimnagar as his name was removed from attendance registers, salary acquittance rolls and pay bills. Similarly, his name was not shown in the seniority list issued from time to time. However, to avoid complications, the petitioner submitted a letter dated 23/8/2003 to the District Educational Officer (for short, 'DEO'), Karimnagar through the Head Master, ZPSS, Gatla Narsingapur to communicate orders of acceptance of resignation. Basing on the said letter, the DEO, Karimnagar sought further information from the Head Master, ZPSS, Gatla Narsingapur vide Rc. No.4255/ A1/2003, dated 20.9.2003. THE petitioner has been involved in politics and public service since the year 2001 when he became a Member of Telangana Rashtra Samithi Party (for short, 'TRS Party'). THE petitioner is a registered voter in Korutla Constituency, Karimnagar District. THErefore, he is entitled, as per law, to contest the elections of the Legislative Council of State of Andhra Pradesh from 20-Karimnagar Local Authorities Constituency, and submitted his nomination in proper form on 13.3.2009 for contesting the election to the said constituency on behalf of the TRS Party. THE President of the TRS Party by notice in Form-BB addressed to the Chief Electoral Officer, Andhra Pradesh, Hyderabad and the Returning Officer, duly informed that on behalf of the TRS Party, the petitioner was set up as a candidate for the 20-Karimnagar Local Authority Constituency. Whereas, the second respondent submitted his nomination form on behalf of the Indian National Congress Party (hereinafter referred to as 'the Congress Party') for the said constituency. On 14.3.2009, the first respondent submitted objections before the second respondent-Returning Officer to the nomination filed by the petitioner. THE main objection of the first respondent was that the petitioner's nomination was hit by Article 191 of the Constitution of India as he was holding an office of profit as on the date of filing of nomination papers. In support of the said objection, the first respondent submitted a letter Rc.No.1617/ A1-09, dated 13/3/2009, addressed to the Chairman, Zilla Parishad, Karimnagar by the DEO, Karimnagar. On 14/3/2009, the petitioner was given a notice by the second respondent on the objections filed by the first respondent. In response thereto, the petitioner submitted his reply dated 16.3.2009 through his Counsel. THE Counsel of the petitioner had made oral submissions before the second respondent on 16.3.2009. THE petitioner was not paid any salary from that date onwards and his name was deleted from the records and he was never called upon to attend the job and he was not issued any notice by his employer either asking him to join duty or proposing to take any action. It is also stated that Teachers working in Zilla Parishad i.e., Local Authority, cannot be treated as holding office of profit under the Government of the State since Local Authority is distinct from Government of any State. THE second respondent, without properly considering the scope and purport of disqualification mentioned in Article 191 of the Constitution of India, and without considering the reply given by the petitioner in proper perspective, upheld the objections of the first respondent and held that since the process of resignation was still going on and acceptance of resignation was not completed and formal orders to that effect were not yet issued, disqualification of the petitioner subsists as on the date of scrutiny and accordingly declared the nomination of the petitioner as invalid and rejected the same by the impugned order. On the same day i.e. 16.3.2009, the only other contesting candidate by name Kanakala Raja Kumar Reddy, apart from the first respondent, was made to withdraw his nomination by the first respondent. THErefore, the second respondent declared the first respondent as unanimously elected as Member of Legislative Council from 20-Karimnagar Local Authorities Constituency on 16.3.2009. It is stated that the petitioner worked as School Assistant from 23.2.1977 to 9.8.1990 and went on leave from 10.8.1990 and did not join duty thereafter and resigned later. THE petitioner abandoned his service and never intended to join as he was well settled in business. Neither the DEO, Karimnagar nor the Zilla Parishad issued any notice of any kind at any time since the petitioner left his job in August, 1990 either calling upon him to join duty or proposing to take any action for his abandonment of service. Even otherwise, as per Rule 18-A of the Fundamental Rules, which came into force from 1.6.2007, a Government servant is deemed to have resigned if he is absent without authorization for a period exceeding one year. THErefore, the petitioner cannot be deemed as holding an office of profit under the Government on the date of filing his nomination papers or on the date of scrutiny. It is submitted that the scope and objective of the disqualification as stated in Article 191 of the Constitution of India is not to disqualify a person who has worked under the Government for sometime. THE second respondent, with an intention to favour the first respondent, has referred to a letter dated 13/3/2009 said to have been addressed by the DEO, Karimnagar to the Chairman, Zilla Parishad, Karimnagar, to show that the petitioner is working as a Government Teacher. Hence, the election petition.

(3.) THE main issue in this election petition is to examine the correctness and propriety of the order of the second respondent dated 16.3.2009, by which nomination filed by the petitioner was rejected.