K.JAYACHANDRA REDDY - (1.) THIS is an appeal under S. 116-A of the Representation of the People Act, 1951 preferred against the order of the High court setting aside the election of the appellant who was elected as a member of the Andhra Pradesh Legislative Assembly from No. 8 Naguru (ST) constituency on the ground that he was holding an office of profit under the State government at the relevant time and was thus disqualified under Article 191(1 (a) of the Constitution of India for being chosen as a member of the Assembly.
(2.) THE appellant was appointed as a Single Teacher in a primary 1school run by the Integrated Tribal Development Agency ("ITDA" for short) by its Project Officer. He joined duty in January 1988 and was working in a school in Jiyyammavalasa Mandal in Vizianagaram district. On 2/08/1988 the Tribal Welfare Officer inspected the said school and is alleged to have noticed some irregularities and he kept the appellant under suspension pending inquiry by an order dated 23/08/1988. THE appellant questioned the .same before the Andhra Pradesh Administrative tribunal by filing a petition but the same was rejected. THEreafter by a letter dated 26/10/1989 the appellant submitted his resignation to the Project Officer who was the appointing authority. However, the Project Officer made an endorsement on the said letter that his resignation cannot be accepted in view of the pending enquiry. Subsequently the election programme for the Legislative Assembly was announced and the appellant filed his nomination and contested election from the above-mentioned constituency on 22/11/1989. Counting took place on No 26/11/1989 and on 27/11/1989 the appellant was declared duly elected. Respondent 1 who was one of the contesting candidate's and who lost the election, filed an election petition challenging the election of the appellant on the ground that the appellant was disqualified as he was holding an office of profit not only on the date of filing the nomination but also subsequently in view of the fact that his resignation was not accepted in view of the pending inquiry and therefore he shall be deemed to be holding an office of profit under the government. THE respondent also stated in his election petition that he was not aware of the appellant's disqualification at the time of the scrutiny of the nomination papers. THE appellant filed a written submission contesting the election petition inter alia contending that the ITDA under which he is deemed to be holding an office as a teacher was only a registered society under the Societies Registration Act and the said Society cannot be said to be the government nor is a part of the Government and that it is an independent body. It is also stated that since he has tendered his resignation on 26/10/1989 it shall be deemed to have come into effect from that date. The only issue that came up for consideration before the High court in the election petition was whether the first respondent i.e. appellant herein was holding an office of profit under the government of Andhra Pradesh on the date of his nomination and was disqualified to contest for the same. Evidence was led in by both the sides. The main contention of the appellant was that the ITDA was only a registered Society and even assuming that the government has some control over the sanction of posts and composition of the governing body of the ITDA it cannot be said to be the government or part of it or to be an instrumentality of the government. Therefore the appellant cannot be said to have been holding an office of profit and the mere fact that he was appointed as a teacher by the Project Officer of the Society he cannot be deemed to have been appointed by the government. The learned Judge after referring to the relevant clauses of memorandum of association of the Society held that (i) although the Society appears to be independent of the State government but in substance its activities are controlled by the officers of the government who are ex-officio members of the governing body. The Chairman as well as the Project Officer are the officers of the State government. A majority of the members of the governing body are the officers holding posts in the government by virtue of which they became the ex-officio members of the governing body. Thus for all practical purposes it is the officers of the government who control the activities of the Society; (ii) though the Project Officer is the appointing authority of the appellant but he is only a secretary of the Society by virtue of his being an officer in the government; (iii) the government sanctions the number of posts of teacher, Fixes their scales of pay; (iv) although the rules provide to have funds of its own by way of recurring and nonrecurring grants made by the government of India but it is the Government who sanctions the funds; (v) since the Civil Services (Classification, Control and Appeal) Rules of the State government are. being applied to the teachers of the Society, they must be deemed to have been treated as the employees of the government. The State has to provide free and compulsory education to all the children and primary education is also the responsibility of the State government and it is meeting expenditures out of its funds. Therefore the function of appointment of the teachers in the Society by the Project Officer is one of the governmental functions and thus the State government exercises almost full control. For the aforesaid reasons the High court held that the appellant was holding an office of profit and thus incurred the disqualification.
(3.) LEARNED counsel for the appellant before us contended that the reasons given by the High court by themselves, even if accepted to be correct, are not enough to conclude that the appellant was holding an office of profit and that one of the main tests is whether the government has got power to appoint and to dismiss the appellant from service and that admittedly the government has not the authority to dismiss him and this coupled with the fact that the Society is a registered society would clinch that the Society is not the government or a part of the Government and that the appellant was not holding an office of profit under the government. The learned counsel also submitted that some of the reasons given by the High court are not conclusive for holding that the Society is the government or a part of the government. Before we proceed further one aspect namely that the appellant ceased to be a teacher before he filed his nomination to contest the assembly election by virtue of the fact that he sent a letter of resignation to the post, has to be considered. Admittedly the resignation was not accepted by the day of his election and he was kept under suspension pending inquiry w.e.f. 23/08/1988 and he was being paid the subsistence allowance in accordance with the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules. The learned Judge of the High court has also mentioned in the judgment that the appellant did not persist on framing an issue in this regard and hence no specific issue was framed as to whether the resignation of the appellant was effective from the date he submitted his resignation and therefore he ceased to be a teacher. It appears that the said plea was not pressed at the time of hearing of the election petition. Therefore it follows that the appellant was holding the said post at the time of his nomination and election. The only question therefore to be considered is whether the first respondent was holding an office of profit under the State government.;