Chattisgarh High Court
Tarika Tarangni vs Chakradhar Singh Sidar on 24 November, 2021
E.P.No.1/2019
Page 1 of 31
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Election Petition No.1 of 2019
Order reserved on: 8-10-2021
Order delivered on: 24-11-2021
Tarika Tarangni, W/o Nirmal Lakra, aged about 39 years, Village Post
Punjipatra, Tahsil Tamnar, Distt. Raigarh (C.G.)
---- Petitioner
Versus
1. Chakradhar Singh Sidar, Vill. Post Katakliya, Tahsil Lailunga, District
Raigarh, Pin 496113
2. Satyanand Rathiya, Vill. Roopali, Post Kolam, Tahsil Tamnar, District
Raigarh, Pin 496107
3. Darshana Sidar, Vill. Kamrga, Post Katakliya, Tahsil Lailunga, District
Raigarh, Pin 496113
4. Sunil Minj, Village Bhuya Pani, PO Kurra, Katakliya, Tah. Lailunga,
Distt. Raigarh, Pin 496113
5. Hridayaram Rathiya, At/PO Kurra, Tahsil Lailunga, Distt. Raigarh
(C.G.) Pin 496113
6. Govind Singh Neti, Village Godhi, Tahsil Tamnar, District Raigarh, Pin
496107
7. Shivpal Bhagat, Village Sarasmal, PO Lailunga, Tahsil Tamnar, District
Raigarh, Pin 496113
8. Suresh Kumar, Village Ghatgaon, Post Ghatoon, Distt. Raigarh (C.G.),
Pin 496113
9. State Election Commission, Through State Election Commissioner,
Near D.K.S. Bhawan, Old Mantralaya Road, Moti Bagh, Raipur,
Chhattisgarh 492001
10. The Returning Officer (deleted)
---- Respondents
------------------------------------------------------------------------------------------------------
For Election Petitioner: Mr. Manohar Lal Sharma, Mr. Santosh Kumar
Pandey and Mr. T.L. Bareth, Advocates.
For Respondent No.1: Mr. B.P. Sharma and Mr. Hari Agrawal, Advocates.
For Respondents No.2 to 9: -
None present.
------------------------------------------------------------------------------------------------------
E.P.No.1/2019
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Order
1. The election petitioner herein has called in question the election of
respondent No.1 herein (returned candidate) from Legislative
Assembly Constituency No.15 Lailunga (ST), District Raigarh, on the
ground enumerated under Section 100(1)(c) of the Representation of
the People Act, 1951 (for short, 'the Act of 1951') that her nomination
papers have been improperly rejected by the Returning Officer by its
order dated 3-11-2018 vide Exhibits P-6A & P-6B.
2. Election Petition by the Election Petitioner: -
2.1) The election petitioner has filed this election petition stating inter
alia that on 6-10-2018, the Election Commission of India published in
the Government official Gazette of Chhattisgarh, the election
notification dated 6-10-2018 under Section 15 of the Act of 1951 and
declared assembly election in the State of Chhattisgarh and notified
the dates of Chhattisgarh Legislative Assembly (Vidhan Sabha)
elections to the polls in two phases. In order to contest election from
Constituency No.15 Lailunga (ST), District Raigarh, the election
petitioner herein obtained one set of nomination paper from the
Returning Officer to file her nomination in the said election and on 31-
10-2018 vide Exhibit P-1 she filed her nomination paper with affidavit
and in reply to para (2) of Part 3A of the said nomination paper, she
has categorically declared that she was not holding any office of profit
under Central or State Government and it is the case of the election
petitioner that the Returning Officer i.e. respondent No.10 herein
(deleted) called her in office and directed her to file second nomination
paper with correct answer to para (2) of Part 3A of the said nomination
E.P.No.1/2019
paper whether she was holding any office under Central or State
Government, and she was informed that in case the second
nomination paper is not filed, the first nomination paper is likely to be
rejected, on which the petitioner, on 1-11-2018, filed her second set of
nomination paper for the said constituency with affidavit vide Exhibit
P-2 declaring at para (2) of Part 3A that she was holding the post of
Rural Health Officer (Female) and due to long absence from service,
the Department did not permit her presence and did not allow her to
appear and join the service since last two years.
2.2) It is the case of the election petitioner that vide Exhibit P-3, the
Returning Officer fixed the date of scrutiny on 1-11-2018/3-11-2018
and on 1-11-2018, she was served with document Exhibit P-4 asking
her to produce documents relating to her Government service by 2-11-
2018 up-to 3 p.m. and thereafter, in compliance thereof, she filed an
affidavit Exhibit P-5 stating that she was in Government job as Rural
Health Officer (RHO) (Female) in Sub-Health Centre, Kurrog &
Bahirkela; Community Health Centre, Tamnar; and Primary Health
Centre, Saraipali, and she was on leave from 28-7-2016 to 31-7-2016,
thereafter, on 5-11-2016, when she communicated her joining, same
was not accepted by letter dated 10-11-2016 and as such, she finally
concluded that no departmental enquiry was instituted against her and
since she is not in service from 1-8-2016 to 2-11-2018, on the
pressure of Jindal Company, her services have been terminated and
thus, she is not holding any office of profit. Both the nomination
papers were considered by the Returning Officer and vide Exhibits P-
6A & P-6B, the two nomination papers were rejected by the Returning
Officer on 3-11-2018 holding that she has not filed any document to
E.P.No.1/2019
show that she has been terminated from service or she has resigned
from service. On 20-11-2018, polling of that constituency took place
and after 11-12-2018, counting process was completed and
respondent No.1 was declared elected from the said constituency
which has been called in question by the election petitioner in this
election petition.
2.3) It is the further case of the election petitioner that her nomination
papers have improperly been rejected, as the first set of nomination
paper filed by her to contest the election from Constituency No.15
Lailunga (ST), District Raigarh was not rejected by the Returning
Officer till date, therefore, she was entitled to contest the election. It is
further submitted that since the first set of nomination paper was
rejected only after she filed the second set of nomination paper and
since the 1st set of nomination paper had no objection / defect of any
kind, therefore, the Returning Officer could not have rejected the first
nomination paper by rejecting the second nomination, it is a clear case
of violation of Section 36 of the Act of 1951 and contrary to law and as
such, both the nomination papers have improperly been rejected in
violation of Section 36(3) of the Act of 1961. As such, her nomination
papers have improperly been rejected and consequently, the election
of respondent No.1 deserves to be declared void.
3. Written Statement by the Returned Candidate: -
3.1) Written statement has been filed only by respondent No.1
denying the averments made in the election petition stating that
rejection of two nomination papers of the election petitioner by the
Returning Officer is fully justified and the election petitioner in her
election petition has not disputed the fact that she was working in the
E.P.No.1/2019
Department of Health as Rural Health Officer (Female) and the
election petitioner was under misconception that due to her long
absence and on account of some outside forces, her services have
been terminated which is false to the knowledge of the petitioner
herself. As such, the petitioner was in Government service on the
date of filing nomination paper and she could not file documents
showing that she has resigned from service or she has been
terminated from service in accordance with the relevant provisions
contained in the Chhattisgarh Civil Services (Classification, Control
and Appeal) Rules, 1966 (for short, 'the Rules of 1966') and therefore
she is not qualified for being elected as a Member of Legislative
Assembly and her nomination has rightly been rejected.
3.2) Specific statement has been made by respondent No.1 in
paragraph 40 of the written statement stating inter alia that since the
election petitioner was in Government service, the Returning Officer
vide Exhibit P-4 has rightly granted one day time till 2-11-2018 up to 3
p.m. to the election petitioner to file documents qua the Government
service, but the petitioner could not substantiate that she has already
resigned from service. It has been further averred that although the
petitioner has filed affidavit vide Exhibit P-5 that her services have
been terminated, but documents demonstrating her termination were
not filed, therefore, vide Exhibits P-6A & P-6B, the Returning Officer
was justified in rejecting her nomination papers, as the petitioner's
services can be terminated except only in accordance with the Rules
of 1966. Therefore, the nomination papers of the petitioner have
rightly been rejected by the Returning Officer. It has also been
pleaded that qualifications for membership of a Legislative Assembly
E.P.No.1/2019
have been stated in Section 5 of the Act of 1951 which has to be read
along with Article 191(1)(a) of the Constitution of India which provides
that a person shall be disqualified for being chosen as, and for being,
a member of the Legislative Assembly or Legislative Council of a
State, if he holds any office of profit under the Government of India or
the Government of any State specified in the First Schedule, other
than an office declared by the Legislature of the State by law not to
disqualify its holder. Since the petitioner was holding the office of
profit as she was, on the date of scrutiny of nomination paper, in
Government service being Rural Health Officer (Female) which is an
office of profit and which is a disqualification of membership being a
Government servant, drawing or entitled to draw salary from the
Government on account of holding post, therefore, the petitioner was
disqualified under Article 191(1)(a) of the Constitution of India and as
such, the Returning Officer was fully justified in rejecting the
nomination papers after affording opportunity of hearing to the
petitioner and as such, the election petition is liable to be dismissed.
4. Issues and Findings on the Issues: -
On the basis of pleadings made by the parties, following issues were
framed and corresponding answers / findings are noted against each
one of them: -
S.No. Issues Findings
1. Whether the election of respondent "NO"
No.1 from Lailunga Legislative
Assembly Constituency No.15
(Scheduled Tribe), Distt. Raigarh, is
liable to be declared void under
Section 100(1)(c) of the
Representation of the People Act,
1951 for improper rejection of election
E.P.No.1/2019
petitioner's nomination paper by order
dated 3-11-2018 by the Returning
Officer on the ground of her being in
service of the State Government?
2. Whether the election petition as This issue has already
framed and filed is liable to be been adjudicated as
dismissed for non-compliance of the preliminary issue by
mandatory provisions of the order dated 26-7-2021
Representation of the People Act, and review petition
1951 including the proviso to Section against that order has
83 of the said Act and Rule 94A of the also been dismissed by
Conduct of Election Rules, 1961? order dated 4-10-2021.
3. Relief and cost(s) which the election Election petitioner is
petitioner is entitled for? not entitled for any
relief as per paragraph
42 of this judgment.
5. In order to prove her case that her nomination papers were improperly
rejected by the Returning Officer, though the election petitioner has
entered into the witness box as PW-1, but she has not filed her
affidavit under Order 18 Rule 4 of the CPC and only in her
examination-in-chief before the Court, she has exhibited documents
Exhibits P-1 to P-5, P-6A & P-6B. When the evidence of the election
petitioner commenced on 10-9-2021, learned counsel for respondent
No.1 has filed an application under Order 18 Rule 4 of the CPC that
the election petitioner has not filed her affidavit under Order 18 Rule 4
of the CPC, therefore, she is not entitled to record her evidence and
prayed for a direction to the election petitioner to comply with the
mandatory statutory provisions contained in Order 18 Rule 4 of the
CPC while proceeding with examination / evidence of herself and / or
her witnesses on which the order was reserved and to be considered
at the time of final hearing / order.
6. Since the election petitioner did not choose to file affidavit under Order
E.P.No.1/2019
18 Rule 4 of the CPC before commencement of trial of election
petition and only choose to enter the witness box to prove the
documents vide Exhibits P-1 to P-5, P-6A & P-6B, it is the choice of
the election petitioner to file or not to file affidavit under Order 18 Rule
4 of the CPC, but she cannot be compelled to do so as she had
already entered the witness box on 10-9-2021 and she has been
extensively cross-examined by and on behalf of respondent No.1. As
such, this application I.A.No.12/2021 is accordingly disposed of.
7. Similarly, learned counsel for respondent No.1 raised a strong
objection that the documents Exhibits P-1 to P-6, P-6A & P-6B are
inadmissible in evidence and the election petitioner cannot prove
those documents. Documents Exhibits P-1 to P-6, P-6A & P-6B are
public documents and certified copies of which have been produced
before the court at the instance of the election petitioner and which
have been marked as exhibits. It is well settled law that mere marking
of a document as an exhibit does not dispense with the proof of the
document (see Sait Tarajee Khimchand and others v. Yelamarti
Satyam and others1). Therefore, the objection raised on behalf of
respondent No.1 in this regard is hereby rejected.
8. In order to prove her case, the election petitioner examined herself as
PW-1 and has produced documents Exhibits P-1 to P-5, P-6A & P-6B
on 10-9-2021. Similarly, in opposition, though respondent No.1 did
not enter into the witness box, his election agent namely, Om Sagar
Patel (DW-1) has entered into the witness box and Returning Officer
Ashok Kumar Marbal has been examined as DW-2. Respondent No.1
has brought documents Exhibits D-1 to D-8 on record. Ashok Kumar
1 AIR 1971 SC 1865
E.P.No.1/2019
Marbal (DW-2) - Returning Officer has proved his signature on
Exhibits P-4, P-6A & P-6B and also stated that he has rejected the
nomination papers vide Exhibits P-6A & P-6B by order dated 3-11-
2018.
9. Submissions on behalf of the parties: -
9.1) Mr. Manohar Lal Sharma, learned counsel appearing on behalf
of the election petitioner, would submit as under: -
1. The Returning Officer - respondent No.10 herein (deleted) has
acted in improper manner firstly, by examining the nomination
paper at the time of submission (before the date of scrutiny) and
directed for submission of documents regarding Government
service vide Exhibit P-4 and secondly, by rejecting both the
nomination papers on the same date on the ground of the
election petitioner being in Government service and has not
filed documents showing resignation or otherwise, particularly
when the election petitioner in her first nomination, has not said
that she is a holder of the office of profit, as such, her
nomination papers were improperly rejected.
2. The election petitioner was not in Government service as Rural
Health Officer (Female) at the relevant point of time as her
services were terminated on the pressure applied by Jindal
company and she is not in service from 1-8-2016 to 2-11-2018
and she was not holding the office of profit as she has clearly
stated in the affidavit filed before the Returning Officer vide
Exhibit P-5 on 2-11-2018. The order of the Returning Officer
vide Exhibits P-6A & P-6B was totally a wrong and perverse
order and is violative of Article 21 of the Constitution of India
E.P.No.1/2019
and is also violative of Sections 30, 35 & 36 of the Act of 1951.
The election petitioner was never holding any office of profit and
she has been terminated and is covered by Section 25F of the
Industrial Disputes Act, 1947, and relied upon the following
judgments of the Supreme Court and other High Courts: -
1. Mohinder Singh Gill and another v. The Chief Election
Commissioner, New Delhi and others2 (Supreme Court).
2. Bangalore Water-Supply & Sewerage Board, etc. v. R.
Rajappa and others3 (Supreme Court).
3. The Divisional Forest Manager v. Shri Vinayak Kurne 4
(Bombay High Court).
4. State of Rajasthan and others v. Harish Chandra Sharma
and others5 (Rajasthan High Court).
5. Mukundbhai Mangaldas Shrimali v. State of Gujarat6 (Gujarat
High Court).
9.2) Mr. B.P. Sharma and Mr. Hari Agrawal, learned counsel
appearing for respondent No.1, would submit that the Returning
Officer has acted as per the directions contained in the Handbook for
Returning Officer 2018 issued by the State Election Commission,
which provides that he shall take decision by conducting preliminary
examination of nomination papers immediately upon receiving the
same and asking for submission of relevant documents relating to
Government service. Thus, as per the directions / instructions, the
Returning Officer has to scrutinize all the nomination papers together
2 AIR 1978 SC 851
3 AIR 1978 SC 548
5 RLW 2006 (4) Raj 3028
6 Special Civil Application No.11028/2001, decided on 30-6-2016
E.P.No.1/2019
in view of the provisions contained in clause 6.5 of the aforesaid
Handbook and as such, both the nomination papers were rightly
rejected by the Returning Officer on 3-11-2018 vide Exhibits P-6A & P-
6B. Since the election petitioner was in Government service, Rule 5
of the Chhattisgarh Civil Services (Conduct) Rules, 1965, bars a
Government servant to take part in an election to the legislature or the
local authority. Similarly, unless an express order after departmental
enquiry is passed, merely on account of absence from duty after
expiry of leave, it cannot be presumed that her services have been
terminated in view of Rule 24 of the Chhattisgarh Civil Services
(Leave) Rules, 1977. It was also submitted that since the election
petitioner was admittedly in Government service and she was holding
the office of profit in terms of Article 191(1)(a) of the Constitution of
India, she was disqualified from contesting election and being chosen
as a Member of Legislative Assembly and as such, her nomination
papers were rightly rejected by the Returning Officer and thus, the
election petition deserves to be dismissed.
10. Except respondent No.1 other respondents have not chosen to appear
and contest the election petition and no written statement was filed on
their behalf, as such, they have been proceeded ex parte in this
election petition.
11. I have heard learned counsel for the parties and considered their rival
submissions made herein-above and also went through the record
with utmost circumspection.
12. Reasons for finding on issues: -
Issue No.1: -
E.P.No.1/2019
For the sake of convenience, issue No.1 is divided in two parts in the
following manner: -
1. Whether, on the date of filing nomination papers vide Exhibits P-
1 & P-2, the election petitioner was in Government service in
the Department of Health, as Rural Health Officer (Female)
under the State of Chhattisgarh and as such, the Returning
Officer - respondent No.10 herein (deleted) was justified in
rejecting her nomination papers on the ground of she being in
Government service by taking both the nomination papers
simultaneously?
and / or
2. Whether, the election petitioner was disqualified for being
chosen as a Member of Legislative Assembly on account of her
holding the post of RHO (F) under the Government of
Chhattisgarh being an office of profit and therefore in terms of
Article 191(1)(a) of the Constitution of India disqualified from
being chosen as a Member of Legislative Assembly?
13. The election petitioner being an elector for Legislative Assembly
Constituency No.15 Lailunga (ST), District Raigarh, in order to contest
election from the said constituency submitted her first nomination
paper to the Returning Officer vide Exhibit P-1 on 31-10-2018 in which
in Part 3A, para (2), she has clearly stated that she is not holding any
office of profit either under the State Government or under the Union
of India and thereafter, she submitted second nomination paper vide
Exhibit P-2 on 1-11-2018 at 2.45 p.m. clearly stating in Part 3A, para
(2), that she was holding the office of profit as Rural Health Officer
(Female) in the Department of Health, but on account of her long
E.P.No.1/2019
absence, her joining has not been accepted and for last two years,
she has not been allowed to work in the district office. The Returning
Officer vide Exhibit P-3, after preliminary examination, on 1-11-2018 at
3.12 p.m., issued document Exhibit P-4 directing the election
petitioner to produce documents qua her Government service by 2-11-
2018 till 3 p.m.. In compliance of Exhibit P-4, the election petitioner
filed affidavit Exhibit P-5 in which she has stated that from 8-8-2002 to
31-7-2016, she was in regular Government service as RHO (F) in
Sub-Health Centre, Kurrog & Bahirkela; Community Health Centre,
Tamnar; and Primary Health Centre, Saraipali, and she was on leave
from 28-7-2016 to 31-7-2016, but thereafter, she has not been allowed
to join, and finally, in paragraph 10, she has concluded that from 1-8-
2016 to 2-11-2018, for two years, she is not in Government service
and under the pressure of Jindal company, her services have been
terminated and she is not holding office either under the Central or
State Government. The election petitioner has filed documents in
nine pages along with the affidavit which have been produced and
exhibited by respondent No.1 and proved by the election petitioner
vide Exhibits D-1 to D-8. On receipt of documents Exhibit P-5 and
Exhibits D-1 to D-8, the Returning Officer vide Exhibits P-6A & P-6B,
rejected both the nomination papers, as the election petitioner herself
has admitted being in Government service but she has not produced
any document of resignation demonstrating that her resignation has
been accepted by the competent authority within the time limit fixed
and accordingly, proceeded to reject the nominations vide Exhibits P-
6A & P-6B and thereafter, the election as scheduled was held in which
respondent No.1 has been declared elected which is sought to be
E.P.No.1/2019
challenged by the petitioner on the sole ground that her nomination
papers have been improperly rejected by the Returning Officer.
14. The first and foremost objection that has been taken on behalf of the
election petitioner is that both the nomination papers Exhibits P-1 & P-
2 were considered and rejected simultaneously, they ought to have
been considered separately. It is the case of the petitioner that the
Returning Officer made preliminary examination of her first nomination
paper and directed her to file second nomination paper, and under the
threat of rejection of her first nomination paper, she has filed the
second nomination paper.
15. Mr. Ashok Kumar Marbal, who at the relevant point of time functioned
as Returning Officer, has been examined as DW-2. In his evidence
before the Court, he has clearly stated that following the procedure
prescribed in the Handbook for Returning Officer 2018 issued by the
State Election Commission and the procedure prescribed for scrutiny
of nomination papers and upon preliminary examination as prescribed
in clause 5.11.1. and in view of the fact that the petitioner herself
having stated in Exhibit P-2 that she is holding the office of profit being
RHO (F) in the Department of Health and her joining has not been
accepted on account of long absence, Exhibit P-4 was issued to her in
the format prescribed in the said Handbook to which the petitioner has
submitted reply in shape of affidavit Exhibit P-5 and as per the
procedure contained in clause 6.5. of the aforesaid Handbook, both
the nomination papers have scrutinized simultaneously.
16. In order to decide the said plea, it would be appropriate to notice
clause 6.5.1. of the Handbook for Returning Officer 2018 contained in
clause 6.5. which provides for Scrutinization of all nomination papers.
E.P.No.1/2019
Clause 6.5.1. states as under: -
"6.5. ALL NOMINATION PAPERS TO BE SCRUTINIZED
6.5.1. Returning Officer should then take up nomination
papers one after another and scrutinize them. If more than
one nomination paper has been presented by or on behalf
of one candidate, he/she should take them up together and
scrutinize them one after another. It would not be correct
or legal to pass over other nomination papers of a
candidate without scrutiny, merely because one ore more
nomination papers of that candidate have been already
found valid by the Returning Officer."
17. A careful perusal of the aforesaid provision would show that if more
than one nomination paper has been presented by or on behalf of one
candidate, all nomination papers have to be taken together and have
to be scrutinized one after another, meaning thereby, all the
nomination papers have to be taken together and they are not
supposed to be decided separately. In the instant case, since the
election petitioner has filed two nomination papers vide Exhibits P-1 &
P-2 for contesting the election in Lailunga Assembly Constituency
No.15 (ST), both the nomination papers were considered together by
the Returning Officer and in view of reply made by the petitioner in
Part 3A, para (2) of Exhibit P-2 that she was holding the office of profit
but she has not been allowed to join, Exhibit P-4 was issued to the
petitioner and thereafter, considering her affidavit Exhibit P-5, both the
nomination papers were rejected vide Exhibits P-6A & P-6B. As such,
the Returning Officer has rightly followed the procedure and rightly
took-up the nomination papers Exhibits P-1 & P-2 together and rightly
considered the same together as per the procedure prescribed by
considering the two nomination papers filed by one candidate and
thus, no objection could have been taken in that respect that both the
E.P.No.1/2019
nomination papers could have been decided separately. The
procedure followed by the Returning Officer in considering both the
nomination papers simultaneously is in accordance with clause 6.5. of
the Handbook for Returning Officer 2018 and otherwise also, it is
established practice to consider the two nomination papers of one
candidate together, which cannot be said to be erroneous or illegal in
law. I do not find any merit in the contention raised by learned
counsel for the petitioner that both the nomination papers could not
have been considered simultaneously at the time of scrutiny and
therefore the nomination paper Exhibit P-1 could have been rejected
as there was no objection in that regard.
18. It is the case of the election petitioner that though she was holding the
post of Rural Health Officer (Female) in the Department of Health as a
regular Government servant from 8-8-2002 to 31-7-2016 and she
remained on leave from 28-7-2016 to 31-7-2016, but thereafter, when
she submitted letter dated 5-11-2016 for joining, it was not accepted
and number of letters vide Exhibits D-1 to D-3 were submitted by her
for joining and finally, she was given a letter by the Block Medical
Officer, Tamnar to obtain permission from the Chief Medical & Health
Officer, Distt. Raigarh, to join in the Government service, vide Exhibit
D-4, thereafter, she also submitted letters to the CMHO, Distt.
Raigarh, vide Exhibits D-5 to D-8, but she was not allowed to join in
service and thus, she is not in Government service from 1-8-2016 to
2-11-2018 and as such, her services have been terminated on the
pressure of Jindal company and she is not holding any office of profit
under the State or the Central Government. Document Exhibit P-2 is
the document of the election petitioner herself in which she has stated
E.P.No.1/2019
in Part 3A, para (2), as under: -
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19. It is appropriate to mention here that Exhibit P-2 is the document of
the election petitioner herself and in her cross-examination, paragraph
5, she has clearly stated the aforesaid fact to be correct. Similarly in
the affidavit submitted by her before the Returning Officer (Exhibit P-
5), she has specifically stated that she was in Government service
from 8-8-2002 to 31-7-2016 as RHO (F) in Sub-Health Centre, Kurrog
& Bahirkela; Community Health Centre, Tamnar; and Primary Health
Centre, Saraipali. As such, the fact of the election petitioner being a
Government servant on the date of nomination is not in dispute. What
she has stated in Exhibit P-2, in Part 3A, para (2), as well as in Exhibit
P-5 is that she was not allowed to join despite several letters Exhibits
D-1 to D-3 & D-5 to D-8 and no departmental enquiry was held
against her and she is not in Government service from 1-8-2016 to 2-
11-2018 for last two years and on the pressure of Jindal company, her
services have been terminated and she is not holding the office of
profit and same amounts to oral termination of service.
20. As such, it is duly established from the aforesaid facts that the election
petitioner was appointed as regular Government servant in the
E.P.No.1/2019
Department of Health as RHO (F) in August, 2008, she was a regular
Government servant and she continued on the post up to 31-7-2016.
On 28-7-2016, she proceeded on leave up to 31-7-2016, but
thereafter, on 5-11-2016, it is her case that she was not allowed to join
in the Government service which is apparent from Exhibits D-1 to D-3
and vide Exhibit D-4, the Block Medical Officer, Tamnar asked her to
seek permission from the CMHO, Distt. Raigarh which she submitted
asking for her joining vide Exhibits D-5 to D-8, but she was not
permitted to join. As such, it is a case of absence from service after
expiry of leave.
21. Rule 24 of the Chhattisgarh Civil Services (Leave) Rules, 1977 (for
short, 'the Rules of 1977') provides the consequence of absence from
duty after expiry of leave. It states as under: -
"24. Absence after expiry of leave.--(1) Unless the
authority competent to grant leave extends the leave,
Government servant who remains absent after the end of
leave is entitled to no leave salary for the period of such
absence and that period shall be debited against his leave
account as though it were half pay leave to the extent such
leave is due, the period in excess of such leave due being
treated as extraordinary leave.
(2) Willful absence from duty after the expiry of leave
renders a Government servant liable to disciplinary action."
22. A careful perusal of the aforesaid rule would show that in case of long
absence or remaining absent after the end of leave without grant by
the competent authority, the Government servant is entitled to no
leave salary for the period of such absence and that period shall be
debited against his leave account. Similarly, by virtue of sub-rule (2)
of Rule 24 of the Rules of 1977, willful absence from duty after the
expiry of leave renders a Government servant liable to disciplinary
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action. Pursuant to the departmental proceeding, a Government
servant can be inflicted the penalties set-out in Rule 10 of the Rules of
1966 which can be minor penalties as well as major penalties and
which rests exclusively within the jurisdiction and domain of the
disciplinary authority. However, in view of Rule 24(2) of the Rules of
1977, long absence after expiry of leave will not amount to automatic
termination of service as for termination of service there has to be a
departmental enquiry in case of regular Government servant in
accordance with the Rules of 1966 and penalty of termination can be
inflicted as major penalty after recording a finding of grave
misconduct, except in cases covered by 2nd proviso to sub-clause (2)
of Article 311 of the Constitution of India, where the authority
empowered to dismiss or remove / reduce him in rank is satisfied that
for some reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry.
23. Admittedly, in the present case, on the own showing of the election
petitioner vide Exhibit P-5 in paragraph 9, it has clearly been stated
that no departmental enquiry was instituted against her and as such,
there is no order of termination passed against her. The petitioner has
only stated in paragraph 10 of Exhibit P-5 that she is not in
Government service with effect from 1-8-2016 to the date of scrutiny
i.e. 2-11-2018 and her services have been terminated that too on the
pressure of Jindal company and she is not holding any office of profit
which the Returning Officer did not accept holding that since the
petitioner is in regular Government servant and she has not produced
the order of termination or letter of resignation within the time limit
given by him, therefore, in that view of the matter, her nomination
E.P.No.1/2019
papers are rejected, and thus, the Returning Officer did not accept the
fact of oral termination from service claimed by the election petitioner.
24. At this stage, it would be extremely relevant to notice Rule 5 of the
Chhattisgarh Civil Services (Conduct) Rules, 1965 (for short, 'the
Rules of 1965') by which the Government servants are barred from
participating in the election of any legislature or local authority. Sub-
rule (4) of Rule 5 of the Rules of 1965 states as under: -
"5. Taking part in politics and elections.--(1) to (3) xxx xxx
(4) No Government servant shall canvas 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."
25. A focused glance of the aforesaid provision would show that the
legislature has designedly thought it expedient to restrain / injunct the
Government servant either to canvas or otherwise interfere with, or
use his influence in connection with or take part in, an election to any
legislature or local authority. The legislative object of enacting such
rule is that the status enjoyed by the candidates shall not be allowed
to be prejudicial vis-a-vis candidates who do not enjoy such a status.
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As such, the election petitioner being a regular Government servant
on the date of filing nomination was by virtue of Rule 5(4) of the Rules
of 1965 specifically prohibited from taking part in the election to the
legislature, as the said provision is imperative in nature being the
legislative injunction restraining the Government servant from taking
part in election to any legislature or local authority, in any manner
whatsoever.
26. In the matter of Chet Ram v. Jit Singh7, the Supreme Court considered
Rule 22(4) of the Department of Posts, Gramin Dak Sewak (Conduct
and Employment) Rules, 2001 which contained prohibition against
taking part in election to any legislative or local authority and held that
since there is a specific prohibition in statutory rules against taking
part in elections of legislative assembly or local authority, the
candidate is disqualified from contesting in the election. It has been
observed in paragraph 9 of the report as under: -
"9. Indisputably, the terms and conditions of a Gramin
Dak Sewak are governed by the provisions of the Rules;
sub-rule (4) of Rule 22 whereof reads as under:
"22.(4) No Sevak shall canvass or otherwise interfere
with or use his influence in connection with, or take part
in an election to any legislative or local authority;"
The said Rules were framed in terms of proviso appended
to Article 309 of the Constitution of India. The terms and
conditions of employment of a Gramin Dak Sewak are
governed by statutory rules. The Rules framed in terms of
the proviso appended to Article 309 of the Constitution of
India indisputably govern only government employees. It
was, therefore, for appellant to show that he was not
governed by the Rules."
27. Since the election petitioner was specifically prohibited by sub-rule (4)
of Rule 5 of the Rules of 1965 from taking part in election and the said
7 (2008) 14 SCC 427
E.P.No.1/2019
rule is statutory in nature, the petitioner contested the election in direct
conflict with specific prohibition contained in the above-stated rule
applicable to her.
28. In view of the above-stated finding, the plea of termination advanced
by learned counsel for the petitioner has no force and accordingly it is
rejected. Similarly, the judgments cited by Mr. Manohar Lal Sharma,
learned counsel, are clearly inapplicable and distinguishable to the
facts of the present case.
29. Now, the question for consideration is, whether the election petitioner
was disqualified for being chosen as Member of Legislative Assembly
on account of her holding the office of profit under the Government of
Chhattisgarh?
30. In order to adjudicate the plea, it would be appropriate to notice the
provision contained in Article 191(1)(a) of the Constitution of India
which states as under: -
"191. Disqualifications for membership.--(1) A person shall
be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council
of a State--
(a) if he holds any office of profit under the Government
of India or the Government of any State specified in the
First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its
holder;"
31. The principle contained in Article 191 of the Constitution of India is
based on sound public policy of ensuing impartiality and neutrality in
public service and avoidance of conflict between duty and interest of
an elected member enabling him to carry-on his duties, freely and
fearlessly without being subjected to any governmental pressure
E.P.No.1/2019
thereby maintaining purity of legislature. The object of said provision,
Article 191(1)(a) of the Constitution is to disqualify a person from
membership of legislature, if he / she is obliged to the Government for
an office which carries benefit or profit and thus, compromising his /
her independence.
32. An 'office of profit' is an office which is capable of yielding a profit or
pecuniary gain. In order to be an office of profit, the office must carry
various pecuniary benefits or must be capable of yielding pecuniary
benefits such as providing for official accommodation or even a
chauffeur driven car. Holding an office under the Central or State
Government to which some pay, salary emolument, remuneration or
non-compensatory allowance are attached is "holding an office of
profit". The question whether a person holds an office of profit is
required to be interpreted in a realistic manner.
33. For deciding the question as to whether one is holding an office of
profit or not, what is relevant is, whether the office is capable of
"yielding" a profit or "pecuniary gain" and not whether the person
actually obtained monetary gain. If the 'pecuniary' gain is receivable
in connection with the office, then it becomes an office or profit,
irrespective of the fact whether such pecuniary gain is actually
received or not. If the office carries with it, or entitles the holder to any
pecuniary gain other than reimbursement of out of pocket / actual
expenses, then the office will be an office of profit. (See Jaya
Bachchan v. Union of India8.)
34. The Supreme Court in the matter of Shivamurthy Swami Inamdar v.
Agadi Sanganna Andanappa9 while taking into consideration its earlier
8 AIR 2006 SC 2119
9 1971(3) SCC 870
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decision in the matter of Ravanna Subanna v. G.S. Kaggeerappa 10
laid down the tests for finding out whether an office in question is an
office under a Government and whether it is an office of profit. It has
been observed by their Lordships of the Supreme Court in
Shivamurthy Swami Inamdar (supra) as under: -
"14. ... Therefore before the provisions of that Article can
be attracted, it must be established that he was holding an
office under the Union or the State Government and that
that office was an office of profit and thereafter we must
see whether the disqualification relating to that office has
been removed by any Parliamentary legislation. In other
words, the office in question must have been held under a
Government and to that some pay, salary, emoluments or
allowance is attached. The word 'profit' connotes the idea
of pecuniary gain. If there is really a gain, its quantum or
amount would not be material; but the amount of money
receivable by a person in connection with the office he
holds may be material in deciding whether the office really
carries any profit--see Revenna Subanna v. G. S.
Kaggerappa (AIR 1954 SC 653). This Court in several
decisions has laid down the tests for finding out whether an
office in question is an office under a Government and
whether it is an office of profit. Those tests are : (1)
Whether the Government makes the appointment; (2)
Whether the Government has the right to remove or
dismiss the holder; (3) Whether the Government pays the
remuneration; (4) What are the functions of the holder?
Does he perform them for the Government and (5) Does
the Government exercise any control over the performance
of those functions? see Abdul Shakur v. Rikhab Chand11;
Ramappa v. Sangappa12; and Govinda Basu v. Sankari
Prasad13. ..."
35. Similarly, in the matter of Biharilal Dobray v. Roshan Lal Dobray14, the
Supreme Court while considering the earlier decisions and
highlighting the object of enacting Article 191(1)(a) of the Constitution
of India, held in paragraph 5 as under: -
10 AIR 1954 SC 653
11 1958 SCR 387
12 1959 SCR 1167
13 (1964) 4 SCR 311
14 (1984) 1 SCC 551
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"5. The object of enacting Article 191(1)(a) is plain. A
person who is elected to a Legislature should be free to
carry on his duties fearlessly without being subjected to any
kind of governmental pressure. If such a person is holding
an office which brings him remuneration and the
Government has a voice in his continuance in that office,
there is every likelihood of such person succumbing to the
wishes of Government. Article 191(1)(a) is intended to
eliminate the possibility of a conflict between duty and
interest and to maintain the purity of the Legislatures. The
term "office of profit under the Government" used in the
above clause though indeterminate is an expression of
wider import than a post held under the Government which
is dealt with in Part XIV of the Constitution. For holding an
office of profit under the Government a person need not be
in the service of the Government and there need not be
any relationship of master and servant between them. An
office of profit involves two elements, namely, that there
should be an office and that it should carry some
remuneration. In order to determine whether a person
holds an office of profit under the Government several tests
are ordinarily applied such as whether the Government
makes the appointment, whether the Government has the
right to remove or dismiss the holder of the office, whether
the Government pays the remuneration, whether the
functions performed by the holder are carried on by him for
the Government and whether the Government has control
over the duties and functions of the holder. Whether an
office in order to be characterised as an office of profit
under the Government should satisfy all these tests or
whether any one or more of them may be decisive of its
true nature has been the subject matter of several cases
decided by this Court but no decision appears to lay down
conclusively the characteristics of an office of profit under
the Government although the Court has no doubt
determined in each case whether the particular office
involved in it was such an office or not having regard to its
features."
36. Similarly, in the matter of Satrucharla Chandrasekhar Raju v.
Vyricherla Pradeep Kumar Dev and another15, again the Supreme
Court set-out some of the tests / principles for determining whether a
person holds an office of profit under the Government and
15 (1992) 4 SCC 404
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summarized the legal principles in paragraphs 11 and 18 as under: -
"11. On a careful examination of the ratio laid down in the
above-mentioned cases some of the tests or principles that
emerge for determining whether a person holds an office of
profit under the Government, may be summarised thus:
"(1) The power of the Government to appoint a person
in office or to revoke his appointment at its discretion.
The mere control of the Government over the authority
having the power to appoint, dismiss, or control the
working of the officer employed by such authority does
not disqualify that officer from being a candidate for
election as a member of the Legislature.
(2) The payment from out of the Government revenues
are important factors in determining whether a person
is holding an office of profit or not of the Government.
Though payment from a source other than the
Government revenue is not always a decisive factor.
(3) The incorporation of a body corporate and
entrusting the functions to it by the Government may
suggest that the statute intended it to be a statutory
corporation independent of the Government. But it is
not conclusive on the question whether it is really so
independent. Sometimes, the form may be that of a
body corporate independent of the Government, but in
substance, it may just be the alter ego of the
Government itself.
(4) The true test of determination of the said question
depends upon the degree of control the Government
has over it, the extent of control exercised by very other
bodies or committees, and its composition, the degree
of its dependence on the Government for its financial
needs and the functional aspect, namely, whether the
body is discharging any important Governmental
function or just some function which is merely optional
from the point of view of the Government."
18. Articles 102(1)(a) and 191(1)(a) are incorporated in
order to eliminate or reduce the risk of conflict between the
duty and interest amongst the members of the Legislature
and to ensure that the Legislature does not contain persons
who have received benefits from the Executive and who
consequently being under an obligation might be amenable
to its influence. Therefore this object must be borne in
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mind in interpreting these Articles. It is in this context the
words "under the Government" so far as the present case
is concerned, become more relevant and should be
examined from that perspective keeping in view the
necessary power to appoint or remove."
37. In the matter of Shibu Soren v. Dayanand Sahay and others 16, the
Supreme Court took under review the earlier decisions on the point
and observed in paragraphs 24, 25, 26 and 27 as under: -
"24. In Satrucharla Chandrasekhar Raju v. Vyricherla
Pradeep Kumar Dev, (1992) 4 SCC 404, the appellant had
been appointed as a single teacher in a primary school by
the Project Officer of the Integrated Tribal Development
Agency (ITDA). The High Court held that the appellant was
holding an "office of profit" and had, thus, incurred a
disqualification envisaged by Article 191(1)(a) of the
Constitution. Setting aside the order of the High Court, and
allowing the appeal it was held by this Court: SCC p. 428-
29, para 29
"29. What emerges from the above discussion is
that the Government has some control over the ITDA
which is set up as a project, since it provides funds and
sanctions the posts; the District Collector is appointed
as Project Officer and some officers are ex officio
members of the ITDA which carries out the object of
providing compulsory education in tribal areas. But the
ITDA is a registered society having its own constitution.
Though the Project Officer is the District Collector, he
acts as a different entity. The power to appoint or to
remove teachers is not with the Government but with
the Project Officer. The Government may have control
over the appointing authority but has no direct control
over the teachers. The small post that appellant holds
in ITDA is only that of a teacher who is directly under
the control of the Project Officer. In such a situation the
question of any conflict between his duties and
interests as an elected member does not arise since it
cannot be said that he, as a teacher, can be subjected
to any kind of pressure by the Government which has
neither the power to appoint him nor to remove him
from service. Taking a practical view of the substance
of these factors into consideration, we are of the view
that the appellant cannot be held to be holding an office
16 (2001) 7 SCC 425
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of profit under the Government."
(emphasis supplied)
25. From a resume of precedents noticed above we find
that in order to attract disqualification contained in Article
102(1)(a), a person must not only be holding "an office" but
that office must be "an office of profit" and should be "under
the Government" and should be an office other than an
office declared by the competent legislature by law, not to
disqualify its holder. The first question which comes to the
fore, therefore is as to when can a person be said to be
"holding an office of profit" under the Government.
26. The expression "office of profit" has not been defined
either in the Constitution or in the Representation of the
People Act. In common parlance, the expression "profit"
connotes an idea of some pecuniary gain. If there is really
some gain, its label - "honorarium" - "remuneration" -
"salary" is not material - it is the substance and not the
form which matters and even the quantum or amount of
"pecuniary gain" is not relevant - what needs to be found
out is whether the amount of money receivable by the
person concerned in connection with the office he holds,
gives to him some "pecuniary gain", other than as
"compensation" to defray his out-of-pocket expenses,
which may have the possibility to bring that person under
the influence of the executive, which is conferring that
benefit on him.
27. With a view to determine whether the office
concerned is an "office of profit", the court must, however,
take a realistic view. Taking a broad or general view,
ignoring essential details is not desirable nor is it
permissible to take a narrow view by which technicality may
overtake reality. It is a rule of interpretation of statutes that
the statutory provisions are so construed as to avoid
absurdity and to further rather than defeat or frustrate the
object of the enactment. Courts, therefore, while
construing a statute avoid strict construction by construing
the entire Act. (See with advantage Ashok Kumar
Bhattacharyya v. Ajoy Biswas17, Tinsukhia Electric Supply
Co. Ltd. v. State of Assam18, and CIT v. J.H. Gotla19.)"
38. In Jaya Bachchan (supra), the Supreme Court has considered clause
17 (1985) 1 SCC 151
18 (1989) 3 SCC 709
19 (1985) 4 SCC 343
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(1)(a) of Article 102 of the Constitution of India, which is pari materia
to Article 191(1)(a) of the Constitution, and following the earlier
decisions, held as under: -
"6. Clause (1)(a) of Article 102 provides that a person
shall be disqualified for being chosen as, and for being, a
member of either House of Parliament if he holds any office
of profit under the Government of India or the Government
of any State, other than an office declared by Parliament by
law not to disqualify its holder. The term "holds an office of
profit" though not defined, has been the subject-matter of
interpretation, in several decisions of this Court. An office
of profit is an office which is capable of yielding a profit or
pecuniary gain. Holding an office under the Central or
State Government, to which some pay, salary, emolument,
remuneration or non-compensatory allowance is attached,
is "holding an office of profit". The question whether a
person holds an office of profit is required to be interpreted
in a realistic manner. Nature of the payment must be
considered as a matter of substance rather than of form.
Nomenclature is not important. In fact, mere use of the
word "honorarium" cannot take the payment out of the
purview of profit, if there is pecuniary gain for the recipient.
Payment of honorarium, in addition to daily allowances in
the nature of compensatory allowances, rent free
accommodation and chauffeur driven car at State expense,
are clearly in the nature of remuneration and a source of
pecuniary gain and hence constitute profit. For deciding
the question as to whether one is holding an office of profit
or not, what is relevant is whether the office is capable of
yielding a profit or pecuniary gain and not whether the
person actually obtained a monetary gain. If the "pecuniary
gain" is "receivable" in connection with the office then it
becomes an office of profit, irrespective of whether such
pecuniary gain is actually received or not. If the office
carries with it, or entitles the holder to, any pecuniary gain
other than reimbursement of out of pocket/actual expenses,
then the office will be an office of profit for the purpose of
Article 102(1)(a). This position of law stands settled for
over half a century commencing from the decisions of
Ravanna Subanna v. G.S. Kaggeerappa, AIR (1954) SC
653; Shivamurthy Swami Inamdar v. Agadi Sanganna
Andanappa, (1971) 3 SCC 870; Satrucharla
Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev ,
(1992) 4 SCC 404 and Shibu Soren v. Dayanand Sahay,
(2001) 7 SCC 425."
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39. In the matter of State Election Commissioner, Bihar, Patna and others
v. Janakdhari Prasad and others20, the Supreme Court has held that
the nature of disqualification has to be strictly construed keeping in
mind that right to contest an election is not a fundamental right but the
said right may be curtailed under valid statutory provision.
40. Finally, in the matter of Narayan Dinbaji Jambhule v. Dr. Deorao
Madguji Holi and others21, the Bombay High Court in facts similar to
the case in hand held that respondent No.5 therein who was
employed as Medical Officer, in Class-II, Group "A" Services and was
in employment of State Government on the day on which he
submitted nomination for Assembly Elections, held office of profit as
contemplated by Article 191(1)(a) of the Constitution of India and thus,
he stands disqualified to be chosen as member of Legislative
Assembly as per Article 191(1)(a) of the Constitution and Section
100(1)a) of the Act of 1951 and quashed the election of the returned
candidate (respondent No.5) holding that he was not qualified to be
chosen as a member of Legislative Assembly.
41. Reverting to the facts of the present case in the light of the aforesaid
legal proposition flowing from the decisions rendered by the Supreme
Court and the Bombay High Court in Narayan Dinbaji Jambhule
(supra), it is quite vivid that the election petitioner being Rural Health
Officer (Female) and thereby a regular Government servant on the roll
of the State Government on the date on which she submitted
nomination paper for assembly election, and though on the date of
submission of nomination paper, she was not actually working on
account of her joining not being accepted by the competent authority,
20 (2018) 8 SCC 1
21 2017(2) Mh.L.J. 807
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but she was admittedly, a Government servant who was entitled to
draw, salary and allowances, as such, was holding the office of profit
and therefore disqualified from being chosen as a member of
Legislative Assembly and therefore the Returning Officer is justified in
rejecting her nomination papers vide Exhibits P-6A & P-6B. The
election petitioner has failed to demonstrate that her nomination
papers were improperly rejected by the Returning Officer within the
meaning of Section 100(1)(c) of the Act of 1951.
Relief and cost: -
42. As a fallout and consequence of the aforesaid discussion, the election
petition deserves to be and is accordingly dismissed. In the facts and
circumstances of the case, parties shall bear their own cost(s).
43. A copy of this order be sent to the State Election Commission forthwith
as required by Section 103 of the Act of 1951.
Sd/-
(Sanjay K. Agrawal)
Election Judge
Soma
