Kerala High Court
Selvaraj Francis vs Returning Officer on 21 October, 2004
Equivalent citations: AIR2005KER38, 2004(3)KLT889
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor, V. Ramkumar
JUDGMENT K.A. Abdul Gafoor, J.
1. The appellant attempted an Election Petition. He lost. Therefore, this appeal.
2. The appellant herein and the second respondent were the contesting candidates. The appellant lost in the election by 63 votes. He challenged the election of the second respondent on the ground that the second respondent continued to hold an office of profit as a Checking Inspector in the Kerala State Road Transport Corporation (for short "the K.S.R.T.C."), a public sector undertaking, not only on the date of submission of nomination paper, but also on the date of election and even on the date of declaration of the result. He further contends that, in order to show that the nomination paper filed by the second respondent was in order, the second respondent had manipulated documents in such a way that there was acceptance of his voluntary retirement before the nomination. Really, there was no voluntary retirement in the eye of law. There was no legal request for voluntary retirement, much less its acceptance as on the date of nomination. The Court below did not advert to these aspects in its legal perspective, it is contended.
3. Admittedly, the second respondent was a Checking Inspector in the services of the K.S.R.T.C., governed by the Rules in the Kerala Services Rules, as adopted by the K.S.R.T.C. It is contended that Rule 56 Part III of the Kerala Service Rules provided for voluntary retirement. The incumbent shall give notice in writing to the appointing authority or the pension sanctioning authority of his intention to retire, at least three months before the date on which he wishes to retire. Of course, the proviso to the said Rule gives power to relax the said period of notice. For that also, there shall be specific request and specific order from the appointing authority. There was no such request and there was no such order, it is contended. It is further contended that the order allowing voluntary retirement has been passed only on 28.9.2000 by the Personnel Officer, RW.2, the appointing authority. This was later than the declaration of the result of the election even. Therefore, as on the date of nomination, the date of poll and the date of declaration of the result, the second respondent continued to be an employee. Therefore, he held an office of profit disqualifying himself to be a candidate for an election of the Block Pahchayat.
4. It is contended by the second respondent that as is revealed by Ext.X4(b), there was sanction of voluntary retirement by the Personnel Officer. That was issued in the form of a formal order only on 28.9.2000. The officer who issued that order has deposed as RW.2 that even earlier than the date of that order, he had sanctioned voluntary retirement as is endorsed on Ext.X4(b). Therefore, voluntary retirement relates back even prior to the date of nomination. So, there is nothing irregular in this case. When thus a voluntary retirement is sanctioned by RW.2, there is a presumption of waiver of notice required under Rule 56(i) of the Rules. It is further contended that though there was a contention regarding manipulation, nothing of that sort had been proved by the appellant/election petitioner. Strict proof of the allegations contained in the Election Petition is a pre-requisite to allow an election petition. When the allegation of manipulation is not proved, the Election Petition ought not to have been allowed. Therefore, there is no reason for interference in this appeal.
5. The contention of the appellant before the Court below was that the second respondent continued to hold an office of profit, as there was no order in the eye of law permitting his voluntary retirement. The voluntary retirement can be permitted only in terms of the statute. The statute mentions about three months clear notice or a specific request in writing to waive the notice period and a specific order thereon. The entire files Ext.X4(b) reveal that no such request was made and no such exemption was allowed. It was without such exemption, that voluntary retirement is stated to be allowed. That means, it is nothing but a manipulation offending the mandatory part of the rules. Thus, based on Ext.X4 series, the allegation is proved.
6. The further contention of the appellant is that the second respondent continued to hold the office of profit, even on the date of declaration of the result. The basic proof of acceptance of voluntary retirement is the order dated 28.9.2000 passed by RW.2. In that order, RW.2 has not mentioned about his alleged earlier order dated 31.8.2000. In such circumstances, whatever stated in amplification of the order dated 28.9.2000 is only a camouflage to hide the manipulations alleged. Thus, until 28.9.2000 he continued to be holding the office of profit as a Checking Inspector.
7. Further, Ext.X4 discloses that the second respondent had put in an application for voluntary retirement on 30.8.2000 to the Managing Director of the K.S.R.T.C. Ext.X4(b), is much relied on by the second respondent as the sanction of voluntary retirement. It is only an undertaking in which, he clearly prayed that he may be exempted from the usual formalities as a special case consequent on voluntary retirement. In the margin of this undertaking, the Personnel Officer had approved it as a special case. The approval is thus only an exemption from the usual formalities and not a sanction of waiver of the notice nor a sanction of-voluntary retirement.
8. Sanction of voluntary retirement comes only by the order PLA1-03/7750/00 dated 28.9.2000 passed by the Assistant Personnel Officer in charge of the Personnel Manager, RW.2, The order dated 28.9.2000 says that the voluntary retirement has been sanctioned with effect from 31.8.2000. It does not refer to his earlier order, if any, allowing such retirement. Thus the voluntary retirement was sanctioned on 23.9.2000. There is no provision in law to allow a retirement with retrospective effect. Even if it is retrospective, that will not enable the second respondent, using an order dated 28.9.2000, to file a nomination paper for an election on 1.9.2000. The declaration of the result took place on 27.9.2000 prior to the issuance of the order of retirement. That means not only at the time of nomination, but also on the date of declaration of results, the second respondent was not qualified to contest the election, as he was thus holding an office of profit as an employee of a Public Sector undertaking.
9. If this kind of voluntary retirement is allowed, it will be easy for any person to contest an election and rejoin duty, in case he loses the election. If this kind of act is not a manipulation, what else is manipulation?
Hence the appeal is allowed and the election of the second respondent from Perayam constituency in Chittumala Block Panchayat is set aside. From today onwards, he shall not attend the meeting of the Block Panchayat. No costs.