Plea against rule prohibiting government employee to take part in politics

Srinagar, Sep 05: The High Court of J&K and Ladakh Thursday issued notice to the Election Commission of India (ECI) and the J&K government in response to a plea challenging among others, the rule prohibiting a government employee from taking part in politics.

A senior lecturer in the School Education Department has petitioned the court seeking its intervention to allow him to contest the assembly polls.

A division bench comprising Justice Atul Sreedharan and Justice Muhammad Yousuf Wani issued notice to the ECI through its Chief Election Commissioner, J&K’s Chief Electoral Officer, J&K, through its Chief Secretary and others for response after hearing Advocate Shafqat Nazir on behalf of the petitioner and Advocate General D C Raina.

The reply to the plea has to be filed within four weeks.

The counsel for the petitioner argued that the plea among others has thrown a challenge to “the vires of Rule 14 of the J&K Government Employees (Conduct) Rules, 1971, as the same prohibit a government employee for taking part in politics or anti-secular and communal activities.

The counsel submitted that his prayers are twofold – that the rule itself be declared ultra vires and be quashed as it prevents the petitioner from taking part in the elections as a prospective candidate to the Legislative Assembly without resigning from his service as senior lecturer in Political Science in the School Education Department.

“In the alternative Rule 14 be interpreted in a manner that does not prohibit a government employee from standing for elections to the state legislature provided that if he is elected, he would have to resign from his government service,” he said.

The counsel further argued that Rule 14 only prohibits taking part in politics or anti-secular and communal activities and does not prohibit taking part in the electoral process as a prospective candidate to the Legislative Assembly.

In support of his contention, the counsel placed before the court the rules governing government employees in Uttar Pradesh, Karnataka, Tripura and the Central Services, where the corresponding provision prohibits the government employee from taking part in election itself.

“Under the circumstances, the omission of the word ‘elections’ in Section 14 is a conscious omission in the rule,” the counsel said.

In the counter-arguments, Advocate General (AG) D C Raina drew the court’s attention to sub-Rule 3 of Rule 13 which, he said, had to be read in conjunction with Rule 14A.

He made the argument to clarify the ambiguity in the terms “politics”, “anti-secular”, and “communal activities” as these words had not been defined in the rules.

Sub-Rule 3 of Rule 13 lays an embargo on the government employee from uttering, writing or discussing or criticizing in public, in any meeting or any association or body, any policy or action taken by the government and also prohibits the government employee from participating in any discussion or criticism.

The AG submitted that on the basis of sub-Rule 3, participation in the electoral process and standing for election as a candidate to J&K (legislature) is an impossibility without being critical of the existing government and governance, existing policy of the governance and would be included through speeches, manifesto, in writing, and canvassing.

He said the same would otherwise be discussed or criticised in public.

The AG submitted that Rule 13(3) has not been challenged in the present petition, saying the examination of Rule 14 and whether it is ultra vires is an impossibility.

The AG also referred to Section 134-A of the Representation of Peoples Act, 1951 which provides for penalty for government employees for acting as election agents, polling agents, or counting agents.

“A government employee, if found acting as an election agent or a polling agent or a counting agent of a candidate at an election, should be punishable with imprisonment for a term which may extend to three months, or with fine, or with both,” he said.

The AG also submitted that 134-A when read in conjunction with Rule 14 and Rule 13 (3), prohibits the petitioner from standing for election.

“As regards Section 134 (A) of the RP Act 1951, prima facie we are unable to agree with the learned AG as Rule 134-A is a penal provision in an otherwise regulatory statute. Penal provisions have to be construed strictly as they provide for imprisonment and the loss of liberty,” the bench said. “Merely because it finds a place in a regulatory statute cannot be a reason to resort to a progressive interpretation of the said provision.”

The court observed that the rule of interpretation was clear and unambiguous and penal provisions had to be construed strictly.

“Under the circumstances, this court on a prima facie appreciation of Section 134-A of the RP Act, 1951, is of the view that the penalty to be imposed is only for persons who are government servants, but acting as election agents, or a polling agent or a counting agent of a candidate and does not extend or provide any penalty for a government employee standing as a candidate himself,” it stated.

Hyder Rasool, a law graduate and Reader of the Court also drew the bench’s attention to two provisions which the court found relevant for consideration in the case.

Firstly, he drew the court’s attention to Article 191 of the Constitution of India which provides for disqualification for membership for being chosen, as, and for being, a member of the Legislative Assembly or Legislative Council of a state by persons who are holding any office of profit under the Government of India or the government of any state and, an analogous provision in the J&K Re-organisation Act, 2019, and also analogous provisions of Section 27 of the J&K Reorganisation Act, 2019, which is in pari materia with Article 191 of the Constitution of India.

“All the views taken in this order are prima facie and they will be all subject to different interpretations by this court itself after hearing arguments,” the court said.