S.B.Sinha, J. - (1.) THE appellant herein was elected from 110 Naoboicha Legislative Assembly Constituency in the State of Assam. An election petition was filed by the first respondent herein questioning the election of the appellant in terms of Sections 110(1) of the Representation of the People Act, 1951 (hereinafter referred to and called as 'the said Act', for the sake of brevity), on the ground that he stood disqualified being the holder of a post of profit under the State of Assam. Background Facts :
(2.) THE appellant was said to have been appointed as an Assistant Teacher i 'Prabha Chariali M.E. Madarassa School' (hereinafter referred to as 'the said School'). He was working therein as an Assistant Teacher without any remuneration. Primary education is imported in the said School. It appears that the primary education in the State of Assam used to be governed by three Acts, known as 'Assam Basic Education Act, 1954', Assam, Elementary Education Act, 1962' and 'Assam Elementary Education Act, 1968'. In terms of the 1968 Act, the Regional Boards of Elementary Education were constituted which took over the management of elementary schools and pre-primary schools. There also existed a State Board of Elementary Education constituted under Section 4 of Assam Elementary Education Act, 1968. The State thereafter enacted the Assam Elementary Education (Provincialisation) Act, 1974 (Assam Act No. VI of 1975) to provide for provincialisation of the elementary education in the State of Assam, in terms whereof the services of employees of the different categories of the State Board and Regional Boards for Elementary Education were to be provincialised for the purpose of bringing them under the direct management and control of the State Government. Pursuant to or in furtherance of the said Act, all assets and liabilities of the State Board and all Regional Boards vested in the State Government. In terms of Section 3 of the 1974 Act, the services of all teachers of elementary schools and pre-primary schools maintained by the Regional Board of Elementary Education, all employees of the state board of Elementary Education, all teachers appointed by the Regional Boards of Elementary Education and all ministerial staff appointed by the State Board of Elementary Education were provincialised under the said Act. The consequence of vesting fo the institutions maintained by the authorities under the aforementioned three Acts is provided in Section 4A thereof which reads thus : "Services of all teachers and employees who rendered services under the following are taken over by the Government on provincialisation on 5th September, 1975 under the principal Act shall be deemed to be services under the Government and shall quality and count for pension and other retirement benefits."
(3.) SECTION 27(1) of the 1974 Act provides for rule making power. Pursuant toor in furtherance thereof. the State of Assam made rules for regulating the terms and conditions of services of teachers of elementary schools and employees employed therein known as 'the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 (hereinafter referred to as 'the 1981 Rules'). "Service" has been defined in Rule 2(xii) of the 1981 Rules to mean : "'Service' means service rendered under the State Board for Elementary Education constituted under the Assam Elementary Education Act, 1968 and service rendered under the Government before or after provincialisation both in respect of teachers and other employees." Rule 3(i) of the said Rules reads thus : "Terms and Conditions : The services of all teachers of Elementary Education taken over by the Government on provincialisation on 5th September, 1975, as provided under Section 3 of the Assam Elementary Education (Provincialisation) Act, 1974, as amended, shall be subject to the following conditions : (a) Services rendered during the repealed Acts :- The Assam Basic Education Act, 1954 (Act XXVI of 1954), the Assam Elementary Education Act, 1962 (Act XXX of 1962), and the Assam Elementary education Act, 1968 (Act XVIII) of 1969) shall be counted towards pension and other retirement benefits provided such services are substantive and permanent. Explanation : Services rendered temporarily against leave or deputation vacancies shall be excluded. (b) They shall be entitled to such scales of pay and allowances and other benefits as may be admissible to the teachers of corresponding rank of the Government School services with effect from the date of provincialisation. (c) They shall be superannuated on attaining 58 years of age." ;