K. N. Seth, J. - (1.) THE petitioner, the respondent Sri Behari Lal Dohrey and others were candidates for the election to the Uttar Pradesh Legislative Assembly from 308 Kanauj (S. C.) assembly constituency in the district of Farrukhabad, THE schedule of the aforesaid election was as follows : Last date for filing nomination 2nd May 1980. Date of Scrutiny 5th May, 1980. Date of election 25th May, 1980. THE nomination paper of the petitioner was rejected by the Returning Officer by his order dated 5-5-1980 on the ground that he held an office of profit under the Government of the State of U. P. and was consequently dis-qualified for being chosen as a member of the Legislative Assembly under Article 191 (1) (a) of the Constitution of India. THE polling took place on 28-5-81. Behari Lal Dohrey was declared elected on 1-6-1980. THE election of respondent Behari Lal Dohrey has been challenged in this petition.
(2.) THE petitioner was employed as an Assistant Teacher in the Basic Primary School, Sengarmau, Tahsil Kannauj, district Farrukhabad. THE institution was run and managed (?) (by Zila Parishad, Farrukhabad, and the petitioner) was an employee of the Zila Parishad, Farrukhabad. In July, 1972 U. P. Ordinance No. XIV of 1972 was issued whereupon all the basic institutions run and managed by local authorities including the Zila Parishad of Farrukhabad, were taken over by the Board of Basic Education, U. P. constituted in accordance with the provisions of U. P. Ordinance No. XIV of 1972. THE petitioner thereupon became an employee of the Board of Basic Education U. P. Ordinance No. XIV of 1972 was repealed by the U. P. Basic Education Act, 1972 (U. P. Act No. 34 of 1972). THE case set up by the petitioner was that he resigned from the post of Assistant Teacher of the Basic Primary School, Sengarmau on 28th April, 1980 and thereafter filed his nomination paper. It was asserted by the petitioner that he did not hold any office of profit under the Government of the State of U. P. and was not disqualified for being chosen as a member of the Legislative Assembly of U. P. Objections to the nomination paper of the petitioner were filed by respondent Behari Lal Dhorey. It was pleaded that on the date of filing the nomination the petitioner was working as an Assistant Teacher in the Basic Primary School, Sengarmau, and had not resigned form the service and consequently he was disqualified for being chosen as a member of the Legislative Assembly. The Returning Officer by his order dated 5th May, 1980 upheld the objection filed by the respondent and rejected the nomination paper of the petitioner.
(3.) IN his written statement in this Court the respondent has raised the same pleas which were raised before the Returning Officer. On the pleadings of the parties the following Issues were framed :- 1. Whether the nomination paper of the petitioner was improperly rejected by the Returning Officer ? If so, its effect ? 2. To what relief, if any, the petitioner is entitled ? At the hearing the learned counsel for the petitioner made a statement that the petition may proceed on the basis that the petitioner had not resigned and continued to be an Assistant Teacher in the basic primary school at the time of the filing of the nomination paper. At an earlier stage a statement on behalf of the petitioner was made that the petitioner would not examine any oral evidence.;