Bombay High Court directs BMC to accept resignation of Rutuja Latke so that she can contest Maharashtra bye-polls

The Bombay High Court on Thursday directed the Brihanmumbai Municipal Corporation (BMC) to decide on the resignation filed by Rutuja Latke, wife of late Shiv Sena MLA Ramesh Latke, so that she can contest in the upcoming by-elections to the Andheri (East) constituency of the Maharashtra State Assembly..A bench of Justices Nitin Jamdar and Sharmila Deshmukh asked BMC why it could not clarify its stand on the issue."A clerk wants to resign, why are you not exercising the discretion? She wants to contest the election, tomorrow is the last date for nomination, when will you exercise discretion," the Court demanded.After taking instructions, Senior Advocate Anil Sakhare, appearing for BMC informed the Court that there was a complaint dated October 12 pending against Latke making allegations of corruption and liasoning along with allegations that she was not attending office. After hearing both sides for sometime, the Court directed BMC to issue a letter to Latke accepting her resignation by 11 am tomorrow."According to us the discretion is to be used for bonafide purposes. But we think that in this case it is malafide. The use or non use of discretion is arbitrary in this case. Prayer clause (a) will be allowed," the Court said. The Bench also indicated that BMC ought not give too much importance to this issue of resignation of a clerical staff. "It is not just the case of the petitioner, but it is our power to also oversee your discretion. We have to see the totality of the circumstances, it is a resignation letter. 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. And she is your own employee, help her out," the Court observed. .Latke, wife of late Shiv Sena MLA Ramesh Latke, has approached the High Court seeking directions to the BMC to accept her resignation as an employee of the municipal body, so that she can contest in the upcoming by-elections to the Andheri (East) constituency of the Maharashtra State Assembly.The bye-poll is taking place due to the fact that Latke's husband passed away in May this year. He was a Shiv Sena MLA before the party split up in June this year after Eknath Shinde faction walked out and allied with the BJP.According to the Election Commission rules, it is necessary for Latke to resign as a BMC employee before filing her nomination papers.Latke was speculated to be the candidate on behalf of Shiv Sena (Uddhav Balasaheb Thackeray) (SSUBT). However, her petition filed through advocate Prabhakar Jadhav, does not specify any political party..Senior Advocate Vishwajeet Sawant for Latke stated that she had voluntarily resigned and there was nothing pending against her. In light of this, all that remained was just a formal acceptance of her resignation. When Sakhare informed about the complaint, Sawant claimed that this move definitely showed the malafide intentions of the civic body. "They are taking sides now. They are not supposed to take political sides. Some partisan stand is being taken contrary to their own regulation" Sawant added. .Senior Advocate Anil Sakhare, appearing for BMC, pointed out that the employee was required to give an intention to resign a month before actually filing his/her resignation. "It cannot be a matter of right that a employee wants to resign, he gets to resign. The difficulty is that we have not taken decision on her resignation. Deemed acceptance because money is paid is no ground. She knew elections are coming. She could have applied before.," Sakhare argued. He further stated that as per Rule 28 of the BMC Service Rules, there was a discretion on the Municipal Commissioner or Deputy Commissioner to consider the resignation letter. .On the complaint, the Court noted it was filed on the same date as the petition, and hence "the less said the better". "Discretion is not to be used at the sweet will of the authority and in a whimsical manner. An entirely avoidable situation is created by the Municipal Corporation, the employer of the Petitioner, causing great prejudice to the Petitioner. Nothing is shown how the respondents are prejudiced if the Petitioner's resignation is accepted after waiving the period as has been done in the case of other employees" the Bench observed in the order..[Read order]