The Bombay high court on Thursday directed the Mumbai civic body to accept the resignation of Rutuja Latke, paving the way for her to file nomination for the Andheri (East) byelection as the candidate of the Shiv Sena faction led by Uddhav Thackeray.
The last date for submitting nominations is October 14.
Latke had on September 2 submitted a letter to the Brihanmumbai Municipal Corporation, with which she was employed as a clerk since 2006, requesting that it relax certain service conditions so that she can contest the November 3 byelection.
After the BMC rejected her request on September 29, Latke on October 2 submitted her resignation.
But the BMC did not take any decision.
She then moved the court alleging that the corporation was delaying its decision deliberately so as to stop her from contesting the election.
As per the Election Commission's rules, a government employee can not file nomination to contest an election until her or his resignation is accepted.
A division bench of Justices Nitin Jamdar and Sharmila Deshmukh on Thursday said the use or non-use of discretion by the BMC commissioner in this case was "arbitrary and malafide (done in bad faith)".
"The municipal commissioner has the discretionary power to accept the resignation and waive the notice period. According to us, the discretion is to be used for bonafide purposes. The use or non-use of discretion in this case is arbitrary and malafide," the court said.
The bench asked the concerned BMC official to accept the resignation and issue appropriate letter by 11 am on Friday.
"She is your employee....You should be helping her out. If an employee wants to resign and contest elections what is the difficulty? The petitioner is a clerk. Why is the municipal commissioner not using his discretion and taking a decision?" Justice Jamdar said.
"It is a clerk who wants to resign, just say yes or no. Don't give it so much importance. Don't burden us, we already have many matters pending," the court added.
The bench also asked the municipal body to file an affidavit and adjourned the matter to October 20.
This dispute should not have landed in the court in the first place as it was just an "employer-employee dispute", the judges remarked.
Earlier, the HC had asked the BMC's counsel Anil Sakhare to inform if the corporation was willing to take a decision on the resignation.
After taking instructions from the BMC, Sakhare said the civic body could not take immediate decision as it had received a complaint accusing Latke of corruption, bribery and "liaison."
"We will have to enquire into this complaint and only then we can take a decision," the lawyer said.
But the court noted that this complaint was filed on October 12, only a day earlier.
Latke's lawyer Vishwajeet Sawant questioned the intentions behind the filing of the complaint.
"The BMC is not supposed to be partisan and take political sides. But they are now doing exactly the same," advocate Sawant said.
Latke had no pending dues nor was she facing any enquiry, and in the normal course her resignation would have been accepted by the Joint Commissioner, he said.
Due to political circumstances it was pending for decision by the commissioner, he claimed.
Latke's petition alleged that the delay in the acceptance of her resignation seemed to be deliberate so as to prevent her from contesting the byelection.
The election in suburban Mumbai was necessitated by the death of Latke's husband and sitting Shiv Sena MLA Ramesh Latke.
She also said that she will contest the bypoll with the mashaal (flaming torch) symbol.
The petition did not mention the political party but the symbol had been granted to the Thackeray-led Sena.
The Andheri (East) byelection is the first electoral test of the Shiv Sena faction led by Uddhav Thackeray after the party split in June. It will also be the first election it will contest on its new symbol.
The Congress and Nationalist Congress Party, the other two members of the Maha Vikas Aghadi coalition, have pledged support to the 'Shiv Sena Uddhav Balasaheb Thackeray' party.
The BJP is likely to field Murji Patel. Its ally, the 'Balasahebanchi Shiv Sena', the splinter faction of the Sena led by Maharashtra Chief Minister Eknath Shinde, has not made its stand clear yet.
Speaking to reporters outside the court, Latke welcomed the decision and said she had got justice.
She would be fighting for the Uddhav Thackeray-led Shiv Sena, she said..
