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2024 DIGILAW 1202 (ALL)

Neelam Sharma v. Union of India

2024-05-03

BRIJ RAJ SINGH, SANGEETA CHANDRA

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JUDGMENT Heard Shri. Anand Mani Tripathi, learned counsel for the petitioner, Shri. Avinash Singh Vishen, learned counsel for respondent no.2 and learned Standing Counsel for respondent nos.3 to 5 and Shri. S.M. Singh Royekwar, learned counsel for appearing for Union of India. 2. The writ petition has been filed with the following main three prayers:- "(i). issue a writ, order or direction in the nature of MANDAMUS commanding thereby the respondents particularly the Respondent No. 3 to accept the nomination papers presented by the petitioner on 01.05.2024 by deeming the petitioner to be voluntarily retired as three months notice period as prescribed in Fundamental Rule 56 has already been lapsed and after curing the defects (b) & (c) as pointed out in the relevant extract of nomination papers dated 01.05.2024 (Annexure No. 2 of this writ petition) by the petitioner; (ii). Issue a writ, order or direction in the nature of MANDAMUS commanding thereby the respondents particularly the Respondent No. 3 to permit the petitioner for contesting 2024 Parliamentary Election from 35-Parliamentary Constituency Lucknow as the candidate of Rashtriya Uday Party in pursuance of nomination papers presented by the petitioner on 01.05.2024 by deeming the petitioner to be voluntarily retired as three months notice period as prescribed in Fundamental Rule 56 has already been lapsed and after curing the defects (b) & (c) as pointed out in the relevant extract of nomination papers dated 01.05.2024 (Annexure No. 2 of this writ petition) by the petitioner ; (iii) issue a writ, order or direction in the nature of MANDAMUS commanding thereby the respondents particularly the Respondent No. 3 to not to reject/return the nomination papers filed on 01.05.2024 by the petitioner for contesting 2024 Parliamentary Election from 35-Parliamentary Constituency Lucknow as the candidate of Rashtriya Uday Party on the ground of non-acceptance of voluntary retirement of the petitioner by the concerned department." 3. There was a mention of urgency for taking up this petition today itself as today is the last date for accepting nomination papers by the Returning Officer for on-going Lok Sabha Elections. 4. It is the case of the petitioner that the petitioner was initially appointed as Junior Assistant in the Group C Posts in the Irrigation Department and joined as Junior Clerk on 09.10.2003. She got promotions on the basis of her service and till 01.05.2024, she had completed more than 20 years of service. 4. It is the case of the petitioner that the petitioner was initially appointed as Junior Assistant in the Group C Posts in the Irrigation Department and joined as Junior Clerk on 09.10.2003. She got promotions on the basis of her service and till 01.05.2024, she had completed more than 20 years of service. She was working as Pradhan Sahayak in the office of Chief Engineer, (Parikalp) Irrigation and Water Resources Department, Government of U.P., Lucknow. 5. After completing 20 years of service with effect from 09.10.2003, she sought voluntary retirement from service with effect from 01.05.2024 by giving three months' prior notice as is required in by Rule 56 (c) and (d) of the U.P. Fundamental Rules published in Financial Hand book Volume II, Part II to IV. A copy of her application has been filed as Anenxure 1 to the writ petition. 6. The petitioner's application for voluntary retirement was processed by the Department and a letter has been sent on 19.04.2024 from the office of Chief Engineer to the office of Engineer-in-Chief. A copy of such letter is filed as Annexure 3 to the writ petition saying that no disciplinary proceedings are contemplated or pending against the petitioner and no dues of the Department are also liable to be recovered from her. 7. Learned counsel for the petitioner has argued that the petitioner knowing that she had retired from service filed her nomination papers on 01.05.2024 for contesting Lok Sabha Elections from Parliamentary Constituency No.35 i.e Lucknow as a candidate of Rastriya Uday Party. The nomination papers have been returned by the respondent no.3 by appending a note thereto indicating three defects of which one defect is regarding a requirement to submit an acceptance of voluntary retirement by the appointing authority and issuance of No Objection Certificate from the concerned department. The respondent no. 3 has granted time to the petitioner till today i.e. 03.05.2024 till 3:00 p.m., to submit No Objection Certificate and the acceptance by the appointing authority of her voluntary retirement. 8. Learned counsel for the petitioner has argued that the petitioner immediately approached the respondent no.5 on 01.05.2024 to procure acceptance of the concerned department of her voluntary retirement application dated 31.01.2024. However, no action has been taken in this regard, only no dues certificate has been issued way back on 19.04.2024. 9. 8. Learned counsel for the petitioner has argued that the petitioner immediately approached the respondent no.5 on 01.05.2024 to procure acceptance of the concerned department of her voluntary retirement application dated 31.01.2024. However, no action has been taken in this regard, only no dues certificate has been issued way back on 19.04.2024. 9. Learned counsel for the petitioner has placed reliance upon two judgments of the Hon'ble Supreme Court to show that when an application for voluntary retirement is moved giving notice of retirement with effect from a particular date and the appointing authority does not pass any order thereon it shall be deemed to have been accepted. He has referred to the State of Haryana and others v. S.K. Singhal, (1999) 4 SCC 293 and Tek Chand v. Dile Ram (2001) 3 SCC 290 . We have gone through the judgments of the Hon'ble Apex Court which has been cited before us. 10. Learned counsel appearing on behalf of respondent no.2 has raised a preliminary objection regarding the manner in which the three prayers have been framed in the writ petition. It has been submitted that till date, the nomination papers have not been rejected and the Returning Officer has only exercise its powers under Sections 33 and 36 of the Representation of People's Act by pointing out the defects for such nomination papers and asking the petitioner to cure such defects. It has also been pointed out that since no order has yet been passed rejecting nomination papers of the petitioner, this writ petition has been filed not challenging such rejection order but presuming that the Returning Officer has in fact rejected the nomination papers. It has been also argued that in case, nomination papers have been rejected wrongly as alleged by the petitioner then petitioner has remedy by filing an election petition under Representation of People's Act and no writ petition for such relief can be claimed straightway from this Court. 11. It has been argued that the election schedule has already been announced, Article 329 of the Constitution of India bars interference in writ jurisdiction as has been held by several judgments of the Hon'ble Supreme Court and of this court. 12. 11. It has been argued that the election schedule has already been announced, Article 329 of the Constitution of India bars interference in writ jurisdiction as has been held by several judgments of the Hon'ble Supreme Court and of this court. 12. Learned counsel for respondent no.2 has also placed reliance upon the judgments rendered by Hon'ble Supreme Court in the case of Ram Phal Kundu v. Kamal Sharma (2004) 2 SCC 759 and referred to para 24 of the said judgment, which in effect has placed reliance upon the judgment rendered by Constitution Bench of this Court in N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64 and judgments of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 and Election Commission of India v. Shivaji, (1988) 1 SCC 277. 13. Learned counsel for the petitioner has fairly accepted that rejection of nomination papers can be challenged in an election petition. He has also fairly accepted that Section 329 of the Constitution of India ordinarily bars jurisdiction of another court to entertain the writ petition after election notification is published. 14. Shri. Rajesh Kumar Tiwari, on the basis of instructions received from the office of Engineerin- Chief, Karmik-4 has informed this Court that the petitioner had taken two loans one from a Cooperative Society and another from Canara Bank where her salary account has been attached for payment of EMI/monthly installments and that her no dues certificate which was issued without noticing such facts had been cancelled by the Executive Engineer on 27.04.2024. A copy of such order issued by the Executive Engineer, have also been produced before this Court. Instructions are kept on record. 15. This Court finds no good ground to show interference on the basis of prayers as made before this Court in the writ petition in view of the law settled by the Supreme Court with regard to Article 329 of the Constitution of India. 16. The writ petition is dismissed.