Jammu & Kashmir High Court To Examine Whether Govt Servants Can Stand For Assembly Elections Without Resigning

This comes in light of a challenge to Rule 14 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971, which restricts government employees from participating in politics.

Petitioner Zahoor Ahmad Bhat, a senior lecturer in the School Education Department, has petitioned the court seeking its intervention to allow him to contest the assembly polls.

Advocate Shafqat Nazir, representing the petitioner Bhat, argued that Rule 14 violates the democratic right of the petitioner to stand as a candidate in the upcoming Legislative Assembly elections without resigning from his post as a Senior Lecturer in Political Science.

The petitioner sought two primary reliefs:

1. The court declare Rule 14 ultra vires, as it imposes restrictions on the political participation of government servants.
2. Alternatively, the rule should be interpreted to allow government employees to contest elections without resigning, with the condition that they resign only if elected.

The petitioner further contended that Rule 14 does not explicitly prohibit standing in elections, unlike corresponding provisions in other states like Uttar Pradesh, Karnataka, Tripura, and for Central Government employees. He highlighted that Rule 14 only restricts participation in politics and anti-secular or communal activities but is silent on electoral participation, suggesting a deliberate omission in the drafting.

Advocate General D.C. Raina, opposing the petition, argued that Rule 14 must be read in conjunction with Rule 13(3), which prohibits government employees from criticizing the government's policies or participating in any political activities. According to Raina, participation in elections would necessarily involve criticism of government policies through speeches and public discussions, which would violate Rule 13(3). He stressed that this rule must be considered while interpreting Rule 14.

Additionally, the Advocate General referred to Section 134-A of the Representation of the People Act, 1951, which penalizes government servants acting as election agents, polling agents, or counting agents. He emphasized that standing for elections would violate both the Jammu and Kashmir Conduct Rules and the RP Act, reinforcing the prohibition on electoral participation by government servants.

On the Advocate General's reliance on Section 134-A of the RP Act, the court disagreed with the notion that this provision extends to government employees standing as candidates. It clarified that Section 134-A is a penal provision applicable only when government servants act as election agents or polling agents, not candidates themselves.

“... 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 agent, 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,” the bench, comprising Justices Atul Sreedharan and Mohammad Yousuf Wani, remarked.

The court also took note of Article 191 of the Constitution, which provides for disqualification from legislative membership for those holding an office of profit under the government and recorded,

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

Issuing notices to all respondents, including the Election Commission of India and the Jammu and Kashmir government, the court asked them to file their replies within four weeks and listed the case on October 21, 2024, for further hearing.

“In the meanwhile, the application of the petitioner dated 7th August 2024 be considered by the competent authority in accordance with law,” the bench concluded.

Case Title: Zahoor Ahmad Bhat Vs Election Commission of India

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