ASHOK KUMAR BHATTACHARJEE Vs. AJOY BISWAS AND 7 ORS.

JUDGEMENT

(1.) THE Petitioner is an elector of 7 Ramnagar Assembly Singh in the West Tripura Parliamentary Constituency. He contested the mid -term Lok Sabha Election held in 1980 from the West, Tripura Parliamentary Constituency as a nominee of Congress (I). There were six candidates including the Petitioner in the filed. The Respondent No. 1, Sri Ajoy Biswas, was a nominee of C.P.l. (M). The date for filing nomination was 8.12.79; the date of scrutiny of the nomination was 11.12.79; and the date of withdrawal was 13.12.79, The polling was held on 6.1.80, and the result of the election was declared on 8.1.80. The main contest was between the Petitioner and the Respondent No. 1. Respondent No. 1 secured 1,98,335 votes as against the Petitioner who secured 1,42,990 votes, The Respondent No. 1, having secured the highest number of votes, was declared elected. The Petitioner filed this election petition challenging the election of the Respondent No. 1, on various grounds of corrupt practices alleged to have been committed by him. It was also pleaded, inter alia that the Respondent No. 1 was disqualified for being chosen as, and for being, a member of the House of People, as he held an office of profit under the Government of Tripura, within the meaning of Article 102(1)(a) of the Constitution. A number of issues were framed in the petition on the pleadings of the parties, but the Petitioner has not pressed the other issues except the issue relating to the disqualification of the Respondent No. 1. Only one issue as such survived, namely:

(2.) IT is not disputed that on the date of the filing the nomination paper, the Respondent No. 1 was holding the post of the Assistant Accountant and was Accountant -In -Charge under The Agartala Municipality constituted under the Bengal Municipal Act 1932 (Bengal Act XV of 1932), as extended to the State of Tripura and was drawing a monthly salary of Rs. 200,00. On the date of the scrutiny, an objection was raised by the Petitioner about the candidature of the Respondent No. 1 on the round of disqualification under Article 102(1)(a) of the Constitution, but the objection was overruled by the Returning Officer.

(3.) PROVISO (II) to Section 66(2) of the Municipal Act provides that no appointment carrying a monthly salary of Rs. 200.00 or a salary rising by periodical increments to more than 200.00 rupees shall be created without the sanction of the State Government, and every nomination to, and dismissal from, any such nomination shall be subject to confirmation by the Stat Government. As the Respondent No. 1 was drawing a monthly salary if more than 200.00 rupees in l975, he was dismissed from service with the confirmation of the State Government. Subsequently, the Deputy Secretary to the Government of Tripura in his letter No. FI (6) -LSJ/77, dated 6th May, 1978, conveyed to the Administrator, Agartala Municipality, decision of the Government at for cancellation of the order of confirmation of the dismissal communicated to him on 19.12.75. Consequent upon the cancellation of the order of confirmation aforesaid, the Administrator, Agartala Municipality, reinstated him to the post of the Accountant -In -Charge, Agartala Municipality with immediate effect, directing that the period between the period of dismissal and the reinstatement would be treated as period spent on duty for all purposes. By another office order of the same date the Administrator held that his suspension stood cancelled and the period of suspension would be treated as on duty. On these facts, the Petitioner raised the plea that Respondent No. 1 was holding the office of profit under the State Government.