Government Officer can contest Elections and get Reinstated in service

Petitioner was working as a Head Mistress of M.C. Primary School Delhi of the Municipal Corporation of Delhi. She was bitten by the bug to join politics. She sought permission to contest election as Councillor of MCD and tendered her technical resignation, since a person holding an office of profit, was barred from contesting municipal elections. The employer accepted her resignation with immediate effect. Employee lost the election. She sought permission to be permitted to withdraw the technical resignation, so that she could join back her duties at the earliest. Her request of withdrawal of resignation was turned down by competent authority.

The employer/authority contended that her resignation was accepted for participation in politics, and due to her participation in politics she becomes ineligible for job under Rule 5 of the CCS (Conduct) Rules. Employee contended that she fulfills the requisite conditions for being permitted withdrawal of the resignation in terms of Sub-Rules (4) and (5) of Rule 26 of CCS (Pension) Rules.

>>> Central Government Act

Article 14 in The Constitution Of India 1949

14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

>>> THE CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964

5. Taking part in politics and elections

(1) No Government servant shall be a member of, or be otherwise associated with, any political party or any organization which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity.

(2) It shall be the duty of every Government servant to endeavour to prevent any member of his family from taking part in, subscribing in aid of, or assisting in any other manner any movement or activity which is, or tends directly or indirectly to be, subversive of the Government as by law established and where a Government servant is unable to prevent a member of his family from taking part in, or subscribing in aid of, or assisting in any other manner, any such movement or activity, he shall make a report to that effect to the Government.

(3) If any question arises whether a party is a political party or whether any organization takes part in politics or whether any movement or activity falls within the scope of sub-rule (2), the decision of the Government thereon shall be final.

(4) No Government servant shall canvass or otherwise interfere with, or use his influence in connection with or take part in an election to any legislature or local authority:

Provided that -

(i) a Government servant qualified to vote at such election may exercise his right to vote, but where he does so, he shall give no indication of the manner in which he proposes to vote or has voted;

(ii) a Government servant shall not be deemed to have contravened the provisions of this sub-rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force.

EXPLANATION- The display by a Government servant on his person, vehicle or residence of any electoral symbol shall amount to using his influence in connection with an election within the meaning of this sub-rule.

>>> CCS (Pension) Rules, 1972

26. Forfeiture of service on resignation

(1)  Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service.

(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.

(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.

(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :-

(5) Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.

(6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.

>>>  Supreme Court of India:

"when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavits and otherwise."

Mohinder Singh Gill & Anr vs. The Chief Election

>>> Supreme Court of India:

“Denial of reinstatement in service to the petitioner and not treating the petitioner at par with others in the absence of any distinguishing feature, renders the respondent's action arbitrary and tantamount to denial of equality as guaranteed under Article 14 of the Constitution of India.”

Sengara Singh And Ors. vs State Of Punjab And Ors.

>>> 1. Petitioner-Nirmal Verma, has filed this writ petition, seeking quashing of impugned order bearing No.SRC/256/AEO/Admn./02 dated 31st May, 2002, by which her request for withdrawal of resignation was rejected. Petitioner also assails order bearing No.D/6242/AEO/KBZ/03 dated 10th March, 2003, by which her representation, seeking reconsideration of order dated 31st May, 2002 was not entertained.

2. Petitioner was working as a Head Mistress of M.C. Primary School, Dasghara-I, Delhi of the respondent/MCD. She was bitten by the bug to join politics. She sought permission to contest election as Councilor of MCD. Vide letter dated 24th. May, 2002, petitioner tendered her technical resignation, since a person holding an office of profit, was barred from contesting municipal elections. Respondent accepted her resignation with immediate effect, vide order No.D/AEO/Admn./114/2002. As fate would have it, petitioner, who contested as a BJP candidate, lost the election. Petitioner by letter dated 1st April, 2002, sought permission to be permitted to withdraw the technical resignation, so that she could join back her duties at the earliest. It was on the aforesaid letter that respondent passed the impugned order dated 31st May, 2002 (Annexure P-1). The Office order is a short one and may be reproduced for facility of reference:-

OFFICE ORDER

Reference to your application dated 01.04.2002, requesting for withdrawal of resignation from the post of H.M.

In this regard, it is inform you that your request of withdrawal of resignation has been turned down by competent authority. Because your's resignation was accepted for your participation in politics. Due to this participation in politics you become ineligible for job under Rule 5 of the CCS (Conduct) Rules.

This issues with prior approval of the competent authority.

Sd/-
31.5.02 Asst. Education officer (Admn)

3.The representation made thereafter, seeking reconsideration of the petitioner's case was also of no avail and was not entertained, as communicated by Annexure P-2.

4. Petitioner assails the impugned order. Respondents have declined the petitioner's request for withdrawal of the resignation on the solitary ground that she had participated in politics and as such she became ineligible for the job under Rule 5 of CCS (Conduct) Rules.

5. Petitioner rightly contends that while tendering her resignation, she had duly disclosed that she wished to contest the municipal elections. The resignation was duly accepted by the respondents. Accordingly, when petitioner participated or contested the election, she was not in service of the respondents. Evidently, Rule 5 of CCS (Conduct) Rules would not be attracted. A sine qua non, for its application is the participation in politics by a Government Servant. Petitioner was not a Government Servant then she contested the election. There is thus merit in the petitioner's contention that Rule 5 of the CCS (Conduct) Rules, would not be attracted and there would be no bar on the petitioner's application for withdrawal of the resignation being considered Petitioner next contended that under Rule 26(4) of CCS (Pension) Rules, resignation can be permitted to be withdrawn in the discretion of the respondent. Rule 26(4) of CCS (Pension) Rules, provides for such a contingency.

6. Petitioner claims that she fulfils the requisite conditions for being permitted withdrawal of the resignation in terms of Sub-Rules (4) and (5) of Rule 26. Moreover, it is not the respondents' case that petitioner was ineligible for withdrawal of resignation or not fulfilling the conditions, as laid down in Rule 26(4) of CCS (Pension) Rules. Rather the request was rejected on account of Rule 5 of CCS (Conduct) Rules, which was not attracted. Petitioner, in the instant case, had duly disclosed the purpose for which resignation was being tendered by her. The resignation did not involve any issue of integrity, efficiency or conduct. Petitioner has not been accused of any improper conduct during the intervening period i.e. from resignation becoming effective and seeking of its withdrawal.

7. The post of Head Mistress had also not been filled between the date of resignation and the date when the petitioner sought permission for withdrawal of resignation. Petitioner, without any loss of time, on 1st April, itself had requested for withdrawal of resignation and sympathetic consideration, disclosing that she had not been elected.

8. Petitioner also alleges hostile discrimination and arbitrariness in rejection of her request for withdrawal of resignation. Petitioner has cited the case of Sh. Rajinder Singh, an Assistant Teacher in MCD School, Sultan Puri, who had contested election of MLA from Bawana Constituency, in the year, 1993. He lost the election and requested for withdrawal of resignation. He was re-inducted in the employment of MCD and is working as Head Master in MCD Primary School. Recent case of Mrs. Durgesh Mohan Puria, Nursery Teacher, who contested the election for Delhi Legislative Assembly in November-December, 2003 from Karol Bagh Constituency, after resignation, was cited. The said Mrs. Durgesh Mohan Puria lost the election to the BJP candidate. She made a request or withdrawal of her resignation. Initially her request was not being accepted but later on her request for withdrawal of resignation was acceded to and she was directed vide letter No.2053/AEO/KB dated 21st June, 2004 to report to Head Master, Basti Ragr Pura, Arya Samaj Road.

Records of this case had been called for and the same shall be adverted to later in the judgment.

9. Petitioner has also placed reliance on the case of Shobha Ram v. MCD (WP(C). No. 4784/94), wherein Shobha Ram sought voluntary retirement, since he wanted to contest election of Legislative Assembly. He requested for voluntary retirement to be accepted w.e.f. November, 1993. He contested the election and lost. He thereupon sent a letter withdrawing his request for withdrawal of application for voluntary retirement, which had not been accepted. Respondents turned down the request for leave to withdraw the voluntary retirement and accepted the petitioner's request for voluntary retirement. The Court held that prior to acceptance of the application for voluntary retirement, petitioner was entitled to withdraw the same. The Court quashed the order additionally on the ground that requisite three months' notice had not been given. Learned counsel for the respondent, Mr. Ashok Bhasin, submitted that the above case would not help the petitioner, since the request for voluntary retirement had not been accepted and petitioner was well within his right to withdraw the same. The present case being distinguishable, where the resignation had been duly accepted.

10. Mr. Ashok Bhasin, learned counsel for respondent, sought to justify the non-acceptance of the request for withdrawal of resignation. In an affidavit dated 11th February, 2004, respondents contended that this was an extreme example of active participation in politics by contesting municipal elections. The conduct of the petitioner was thus claimed to be in contravention of Rule 5 of CCS (Pension) Rules. Besides, even as regards Rule 26(4) of CCS (Pension) rule, it was contended that losing the election cannot be recognized as a material change in circumstances, compelling the petitioner to withdraw her resignation. Mr. Bhasin submits that Rule 5 of CCS (Pension) Rules prohibits a Government Servant to participate in the politics and the person entering politics becomes ineligible for carrying on the job. Such a situation cannot be permitted where the petitioner at his whim and caprice can choose to join politics and in case he/she is not successful seeks to come back. As regards the case of Durgesh Mohan Puria, learned counsel submitted that even if there was a mistake or aberration committed, same would not confer on the petitioner any enforceable right to seek parity with an erroneous decision.

11. Having noted the factual matrix and the respective contentions and merits thereof, the position which emerges may be summarized as under:-

Respondent had declined the request on the ground of Rule 5 of CCS (Conduct) Rules. The bar under Rule 5 is on participation of Government Servant in politics. A sine qua non is the person being a Government Servant. In the present case, petitioner had specifically sought permission to contest the election and for this purpose had tendered her resignation. When she participated in politics, she was not a Government Servant. The rejection of the request by the impugned order on account of Rule 5 of CCS (conduct) Rules, is thus not sustainable as the Rule was not attracted.

12. The validity of the impugned order has to be judged on the ground taken by the respondents in the impugned order. It cannot be sought to be justified on grounds, which were not taken while rejecting the application. Reference may usefully be made to the judgment of the Supreme Court in Mohinder Singh Gil v. The Chief Election Commissioner reported at . The Court observed, "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavits and otherwise." Accordingly, the respondents, who did not reject the withdrawal of resignation under Rule 26(4) of CCS (Pension) Rules, cannot now seek to support the same there under.

13. This apart there is considerable merit in the petitioner's contention that the respondents have dealt with petitioner's case in a hostile and discriminatory manner, contrary to the practice and decisions taken by them in the cases of Rajinder Singh, Durgesh Mohan Puria and several others. The decision making process in the case of Durgesh Mohan Puria, where withdrawal of resignation was permitted, reveals that the criteria and the legal stand taken by the respondents was contrary to the stand takenn the present case.

Initially while processing the request of Ms. Durgesh Mohan Puria, the Headquarters (MCD), Administration noted that a case of similar nature namely of the petitioner Smt. Nirmal Verma, had been rejected and a writ petition had been filed in this Court. It was suggested that expert legal advice may be obtained in the matter. The Chief Legal Officer considered and examined the case regarding withdrawal of resignation of Smt. Durgesh Mohan Puria. The Chief Legal Officer concluded that the earlier stand, namely, resignation having been accepted and acted upon, could not be withdrawn, was not correct. The request had also been rejected resorting to Rule 5 of the CCS Conduct Rules, which prohibited taking part in political activities. The Chief Law Officer opined that the view that once resignation was accepted and given effect to, it cannot be withdrawn, appeared to be not legally correct. Further the appointing authority may permit a person to withdraw his resignation by virtue of Rule 26(4) of CCS Pension Rules. The case of Ms. Durgesh Mohan Puria was considered in the light of the aforesaid legal opinion and reprocessed. The Commissioner permitted the withdrawal of resignation of Ms. Durgesh Mohan Puria and the intervening period from 12.11.2003 to 20.6.2004 was treated as "dies non" and Ms. Durgesh Mohan Puria has been reinstated in service.

14. Ms. Durgesh Mohan Puria had also cited the following four cases in her representation, where the technical resignations, furnished to contest elections, had been permitted to be withdrawn subsequently upon the candidates losing in elections.

The cited incidents were:

(i) Shri Charan Singh Kandera resigned in 1983 and the resignation was accepted on 10.1.1983. At his request he was allowed to join duties vide orders dated 11.2.1983.

(ii) Mr. H.K. Chhillar, TGT, Directorate of Education resigned on 23.4.1991 to contest the elections. He lost the election and requested for withdrawal of his resignation and restoration of service on 16.7.1991. This was accepted on 8.9.1991 and he was reinstated in service.

(iii) Shri Rajinder Singh, Asstt. Teacher contested election from Bawana Assembly Constituency in 1993 as a Janta Dal candidate, after resigning from service. He lost the elections and requested for being taken back on duty which was acceded to.

(iv) Shri Pratap Singh, Assistant of CSS Cadre of Ministry of Home Affairs also sought voluntary retirement w.e.f. 5.11.98 to contest Assembly Elections. His services were also restored on the request made by him on losing in elections.

15. It would, thus, be seen that in the cases cited above and as also in Durgesh Mohanpuria's case which is the latest case processed after the petitioner's case, the respondents have taken a consistent position that legally it is permissible for them to allow withdrawal of resignation after its acceptance and have followed the practice of restoration of service. In the petitioner's case also accordingly there is no ground made out for adopting a different yardstick or contrary legal submission to defeat the petitioner's case. Petitioner had also within a month of the acceptance of her resignation and within a week of her losing the election requested for being permitted to withdraw the resignation in accordance with Rule 26(4) of CCS Pension Rules. It is not the case of respondents that petitioner was not having a good record or had been guilty of any misconduct or impropriety or it being a case of any doubt on the integrity etc. Denial of reinstatement in service to the petitioner and not treating the petitioner at par with others in the absence of any distinguishing feature, renders the respondent's action arbitrary and tantamount to denial of equality as guaranteed under Article 14 of the Constitution of India. Reference in this regard may be made to Sengara Singh and Ors. v. State of Punjab and Ors. Reported at .

The impugned orders are accordingly not sustainable. Writ of certiorari is issued quashing orders dated 31.5.2002, Annexure P-1 and order dated 10.3.2003 Annexure P-2. As noted earlier petitioner's resignation had been accepted on 4.3.2002 and she had sought withdrawal of the same on 1.4.2002. Upon failing to get any administrative relief in representation, petitioner filed writ petition in May,2003.

In view of the foregoing discussion, the petitioner's request for withdrawal of resignation is liable to be processed and allowed on the same basis and the legal position as adopted by respondents in the cases noted earlier. The intervening period is also liable to be treated as "dies non" as per their precedent. Respondents to process the petitioner's case and pass necessary orders within one month from today.

Delhi High Court
Nirmal Verma vs Mcd And Anr. on 18 March, 2005