K. T. DESAI, J. ( 1 ) THIS is an appeal from the decision of the Election Tribunal at Palanpur Banaskantha District given on the 13th October 1952 dismissing the petition filed by Laljibhai Jodhabhai Bar the appellant before us and ordering him to pay a sum of Rs. 500. 00 by way of costs to Vinodchandra Jethalal Patel the respondent before us. ( 2 ) THE appellant who will hereinafter be referred to as the petitioner was an elector in the Deesa Legislative Assembly Constituency of Gujarat when the last general election was held in the month of February 1962. The respondent was a candidate who had stood for election from the said constituency. On 20th January 1962 nomination papers were filed propos- ing the respondent as a candidate for the election. There were also filed four nomination papers proposing the name of Jivrajbhai Kesarbhai Desai. There were also other nomination papers filed proposing the names of other candidates for the purpose of election. Scrutiny of the nomination papers was held. On 23rd January 1962 objections were heard and after hearing the objections the Returning Officer rejected the four nomination papers which had been filed proposing the name of Jivrajbhai Kesarbhai Desai. The decision of the Returning Officer is exhibited in the case as an accompaniment to Exhibit 81. In giving his decision the Returning Officer has observed as follows :on scrutiny of the nomination papers it is seen that the proposers in all the four nomination papers have put the mark of their thumb impression and were presented to the Returning officer by the candidate himself. There was no proposer present at the time of the presentation of the nomination papers in the office room of the Returning Officer. As this has not been done at the time of presentation I could not satisfy myself as regard the identity of the proposers as required under rule 2 (2) of the Conduct of Election Rules 1961. . . . . . ( 3 ) THE attestation by the Returning Officer is necessary requirement of the rule which in this case has not been done and so it is a defect of a substantial nature invalidating the nomination papers. . . . . . . . . The nomination papers. . . . . . are therefore rejected. . . . . ( 3 ) THE attestation by the Returning Officer is necessary requirement of the rule which in this case has not been done and so it is a defect of a substantial nature invalidating the nomination papers. . . . . . . . . The nomination papers. . . . . . are therefore rejected. ( 4 ) THE polling took place on the 23rd of February 1962 and the respondent was declared to have been elected at the election. The petitioner filed an election petition on 9th of April 1962 claiming that the election of the respondent was liable to be set aside on two grounds namely (1) that the nomination of Jivrajbhai Kesarbhai Desai was improperly reacted and (2) that the respondent or his election agent had committed various corrupt practices listed by the petitioner in the body of the petition. ( 5 ) WE shall first deal with the question whether the nomination papers proposing the name of Jivrajbhai Kesarbhai Desai had been validly rejected or not. It was the case of the petitioner that in fact 8 nomination papers nominating Jivrajbhai Kesarbhai Desai as a candidate had been presented to the Returning Officer where out only four had been accepted It was alleged that two out of the four nomination papers which had not been accepted were duly signed by the persons proposing the name of Jivrajbhai Kesarbhai Desai and that the Returning Officer ought to have accepted those nomination papers. That ground however has not been pressed before us by Mr. Daru the learned advocate appearing on behalf of the petitioner. The learned Tribunal has accepted the evidence of the Returning Officer to the effect that there were only four nomination papers presented to him proposing the name of Jivrajbhai Kesarbhai Desai and Mr. Daru has been content to proceed with the appeal on the basis of such finding. The four nomination papers proposing the name of Jivrajbhai Kesarbhai Desai did not bear the signature of the persons proposing his name but bore their respective thumb marks. The said nomination papers did not bear the attestation of the Returning Officer. ( 6 ) WE shall first deal with the requirements of law and then consider the evidence that has been led in the case with a view to see whether the requirements of law have been satisfied. The said nomination papers did not bear the attestation of the Returning Officer. ( 6 ) WE shall first deal with the requirements of law and then consider the evidence that has been led in the case with a view to see whether the requirements of law have been satisfied. Section 33 of the representation of the People Act 1951 provides as under : (1) On or before the date appointed under clause (a) of sec. 30 each candidate shall either in person or by his proposer between the hours of eleven oclock in the forenoon and three oclock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under sec. 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. xx xx xx xx xx xx (4) On the presentation of a nomination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: xx xx xx xx xx xx (6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper: provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency. ( 7 ) THIS section requires that the nomination paper must be signed by an elector of the constituency as proposer. Section 2 (1) (i) provides that in the Act unless the context otherwise requires sign in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed. The expression prescribed has been defined in section 2 (1) (g) to mean prescribed by rules made under the Act. Section 2 (1) (i) provides that in the Act unless the context otherwise requires sign in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed. The expression prescribed has been defined in section 2 (1) (g) to mean prescribed by rules made under the Act. Rule 2 (2) of the Conduct of elections Rules 1961 provides as under : (2) For the purposes of the Act or these rules a person who is unable to write his name shall unless otherwise expressly provided in these rules be deemed to have signed an instrument or other paper if (a) He has placed a mark on such instrument or other paper in the presence of the returning officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and (b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person. ( 8 ) SECTION 36 of the Representation of the People Act 1951 provides as under : 36 Scrutiny of nominations:-XX xx xx xx (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion after such summary inquiry if any as he thinks necessary reject any nomination paper on any of the following grounds :- xx xx xx xx xx xx (b) that there has been a failure to comply with any of the provisions of sec. 33 or sec. 34. xx xx xx xx xx xx (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. xx xx xx xx xx xx (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. xx xx xx xx xx xx (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. xx xx xx xx xx xx ( 9 ) IT was urged on behalf of the petitioner that the affixing of the thumb impression of the proposer on each of the four nomination papers in question is sufficient compliance with the provisions of section 33 which require that a nomination paper should be signed by an elector of the constituency as proposer. It was urged that the expression signed was sufficiently wide to cover the affixation of the thumb impression of a person. Reliance in this connection was placed on Strouds Judicial Dictionary third edition Vol. 4 pages 2783 and 2784 where it is stated as follows :signed; Signature. (1) Speaking generally. a signature is the writing or otherwise affixing a persons name or a mark to represent his name by himself or by his authority (R. V. Kent Justices L. R. 8 Q. B. 305) with the intention of authenticating a document as being that of or as binding on the person whose name or mark is so written or affixed. ( 10 ) WE have to consider the meaning of the expression `signed as appearing in section 33 of the Act having regard to the various provisions contained in the Act. In the interpretation clause the word sign in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed. The question of authentication in the prescribed manner only arises in the case of a person who is unable to write his name. It clearly implies that in respect of those persons who are able to write their names authentication in the manner prescribed would not constitute signature. The authentication as prescribed is required to be done by placing a mark on the instrument or paper in the presence of the returning officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and on such officer being satisfied as to the identity of the person placing the mark attesting the mark as being the mark of that person. The authentication required contemplates the placing of the mark in the presence of only certain specified persons and the attesting of such mark by such specified persons on their being satisfied as to the identity of the person placing the mark. ( 11 ) MR. Daru the learned advocate appearing on behalf of the appellant has urged that in the case of a person who is able to write his name the placing of a mark by him would by itself be sufficient for the purpose of satisfying the requirements of sec. 33 regarding signing The provisions contained in sec. 2 (1) (i) were not intended to enable persons who are able to write their names to put their marks by way of signature but were only intended to enable persons who are unable to write their names to satisfy the requirements of sec 33. In our view the expression signed in sec. 33 can only mean signed by writing ones name in ones own handwriting except in the case of persons who are unable to write their names in whose case the provisions set out above in Rule 2 (2) have to be complied with. ( 12 ) ON behalf of the petitioner evidence has been led of one Mashru Deva a proposer who had put his thumb impression on one of the nomination papers nominating Jivrajbhai Kesarbhai Desai. His evidence is Exhibit 80. ( 12 ) ON behalf of the petitioner evidence has been led of one Mashru Deva a proposer who had put his thumb impression on one of the nomination papers nominating Jivrajbhai Kesarbhai Desai. His evidence is Exhibit 80. In the course of his evidence he has stated that it was Jivrajbhai who had brought the nomination form filled it up and taken his thumb impression thereon and that his thumb impression was attested by Jivrajbhai himself that thereafter Jivrajbhai went to the Prant Officer with the form that he had waited near the door of the office of the Prant Officer that he was called by the Prant Officer inside the room that the Prant Officer enquired whether the thumb mark was his and that he replied in the affirmative that the Prant Officer enquired about his identity and he gave all the particulars that the Prant Officer verified his name from the voters list and that he was asked to go He has also given evidence in connection with other nomination papers proposing the name of Jivrajbhai kesarbhai Desai to the effect that all the proposers were present in the office of the Prant Officer and had been called by the Prant Officer turn by turn. In his evidence the following statement appears:i only know how to sign my signature slightly. I had learnt it from one teacher Babulal of my village. As I am not able to read instead of signing I put my thumb mark. In his cross-examination he stated that he only knew how to write his name and his fathers name that besides the same he could not write anything and that he could not read at all. ( 13 ) JIVRAJBHAI Kesarbhai Desai has given his evidence which is Exhibit 83. In the course of his evidence he stated that he had attested the thumb marks of the proposers in respect of the four forms in question which had been filed before the Returning Officer and that all those thumb marks were placed in his presence by the respective proposers. According to this witness the Returning Officer had intimated to him at the time when the nomination papers were filed that all the forms were in order. ( 14 ) THE Returning Officer Prabhashanker Yaswantrao Satkalmi has given evidence on behalf of the respondent. His evidence is Exhibit 180. According to this witness the Returning Officer had intimated to him at the time when the nomination papers were filed that all the forms were in order. ( 14 ) THE Returning Officer Prabhashanker Yaswantrao Satkalmi has given evidence on behalf of the respondent. His evidence is Exhibit 180. In the course of his evidence he stated that only four forms Exhibits 81 84 85 and 86 had been produced before him by Jivrajbhai Kesarbhai Desai that the same had been produced one after another that after the forms were received he satisfied himself about the columns therein being duly filed in that he then enquired of Jivrajbhai Kesarbhai Desai if his proposer in each form was then present and that Jivrajbhai informed him that none of the proposers was present. He staled that no person had accompanied Jivrajbhai when the forms were given by Jivrajbhai. He stated that it was not true that he had enquired of persons whether the thumb impression on those forms were made by such persons that he would get their thumb marks properly attested and that they had then gone away. In the course of his cross-examination he stated that he had to give a receipt for each form presented to him separately He denied that the witness Mashru Deva was present on that day before him or that he had called him. After referring to the order rejecting the nomination papers be stated that the nomination papers were rejected solely on the ground that the thumb marks of the proposers were not duly attested. He further stated that it was true that if some proposer had put his thumb mark he had to attest the same but he could not attest the same in the absence of the proposer. He further stated that on 20th January 1962 when Jivrajbhai filed his nomination papers before him and when he found that the thumb marks of the proposers were not properly attested he drew the attention of Jivrajbhai that in the absence of proper attestation the nomination papers may be liable to be rejected and therefore he should call the proposers and get their thumb marks properly attested. He stated that it was not true that he had told Jivrajbhai that he would attest the said thumb marks. He stated that it was not true that he had told Jivrajbhai that he would attest the said thumb marks. In his further cross-examination he stated that at the time when he entered the nomination papers of Jivrajbhai in the register he did not consider defective on the ground that the thumb marks were not properly attested. The Election Tribunal has preferred the evidence of the Returning Officer to that of Mashru Deva and Jivrajbhai Kesarbhai Desai and in our view rightly. We accept the evidence of the Returning Officer when he says that none of the proposers had seen him. ( 15 ) THE nomination papers have been exhibited and they clearly show that the thumb marks of the proposers have not been attested as required under the Conduct of Elections Rules 1961 The thumb marks under the rules are required to be placed in the presence of the returning officer or the presiding officer or such other person as may be specified in that behalf by the Election Commission. The same has not been done. Such officer has to be satisfied as to the identity of the person placing the mark. There is no cogent evidence of such satisfaction. The mark is required to be attested by such officer as being the mark of the person placing the same. The same has not been done. It was urged that Mashru Deva one of the persons who had proposed the name of Jivrajbhai kesarbhai Desai was not a person who could be regarded as one unable to write his name in view of the evidence given by him to the effect that he knew how to write his own name and his fathers name. If the contention of the learned advocate for the petitioner is accepted in that connection then in that event the provisions of Rule 2 (2) would not be applicable to him and he could not be said to have signed the nomination paper merely by putting his thumb mark. If the contention of the learned advocate for the petitioner is accepted in that connection then in that event the provisions of Rule 2 (2) would not be applicable to him and he could not be said to have signed the nomination paper merely by putting his thumb mark. In our view the defect in each of the said 4 forms was a defect of a substantial character and all the four nomination papers of Jivrajbhai Kesarbhai Desai were rightly rejected by the returning officer and the petitioner is not entitled to any relief on the ground of the invalid rejection of the nomination papers that had been filed proposing the name of Jivrajbhai Kesarbhai Desai. ( 16 ) THE next contention that has been urged before us is the one set out in paragraph 9 (a) of the petition. The said paragraph runs as under :9 The respondent is guilty of various corrupt practices listed below : (a) The respondent procured the assistance of Shri Shantilal Swaroopchand Shah the then Parliamentary Secretary to the Chief Minister of the State of Gujarat for the furtherance the prospects of his election. The said Shantilal Shah was in the service of the Government of Gujarat at all material dates viz. on the dates 20 and on 23-2-62 and belonged to the classes of Government servants mentioned in sec. 123 (3) of the Representation of the People Act 1951 He was more particularly covered by clause (a) of sec 123 He was appointed by the respondent as his election agent under sec. 40 of the said Act The said Shantilal Shah acted as Respondents statutory election agent till the end of the election and he gave his assistance to the respondent for the furtherance of the prospects of his election by canvassing and making propaganda in favour of the Respondent and his party and also by all means at his command. ( 17 ) AT the hearing the following issues amongst others were raised : (3) Is it proved that the respondent procured the assistance of Shri Shantilal Swaroopchand Shah for furtherance of his prospects in the election as alleged? ( 17 ) AT the hearing the following issues amongst others were raised : (3) Is it proved that the respondent procured the assistance of Shri Shantilal Swaroopchand Shah for furtherance of his prospects in the election as alleged? (4) Does the petitioner prove that Shri Shantilal S. Shah being Parliamentary Secretary to the Chief Minister of the State of Gujarat was in the service of the Government of Gujarat on all material dates and belonged to the classes of Government servants mentioned in sec. 123 (7) more particularly clause (a) thereof of the Representation of the People Act 1951 ? ( 18 ) BEFORE we consider the facts of the present case we will first examine the legal position to see what are the requirements of law in this connection. ( 19 ) SECTION 123 (7) of the Representation of the People Act 1951 provides as follows :123 The following shall be deemed to be corrupt practices for the purposes of this Act: xx xx (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or by any other person with the consent of a candidate or his election agent any assistance ( other than the giving of vote ) for the furtherance of the prospects of that candidates election from any person in the service of the Government and belonging to any of the following classes namely: (a) gazetted officers; xx xx xx xx explanation:- (1) In this section the expression agent includes an election agent a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. (2) For the purposes of clause (7) a person shall be deemed to assist in the furtherance of the prospects of a candidates election if he acts as an election agent or a polling agent or a counting agent of that candidate. Section 40 of the said Act provides as under : election agents:- A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Section 40 of the said Act provides as under : election agents:- A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. ( 20 ) IT is not disputed in the present case that Shantilal Swaroopchand Shah was the Election Agent of the respondent within the meaning of the said Act at all material times. In view of the explanation to section 123 under the deeming provision therein contained by reason of the fact that Shantilal Swaroopchand Shah has acted as the Election Agent of the respondent he must be deemed to have assisted the respondent in the furtherance of the prospects of the election of the respondent. Under the circumstances we hold that the respondent had obtained the assistance of Shantilal Swaroopchand Shah for the furtherance of the prospects of the election of the respondent. The only question that remains for consideration is whether he was in the service of the government and belonged to the class of gazetted officers. . ( 21 ) MR. Daru the learned advocate appearing on behalf of the petitioner has strongly urged before us that both the the aforesaid conditions are satisfied in the present case. We shall first consider whether Shantilal Swaroopchand Shah was in the service of the government. The second question whether he belonged to the class of gazetted officers or not would arise for consideration provided it is found that he was in the service of the government Strong reliance has been placed by Mr. Daru on a notification appearing in the Gujarat Government Gazette published on the 12 of May 1960. At page 7 under the heading Civil Appointments the following matter appears :heads of Departments and all other Officers concerned are informed that Notifications in the Gazette are to be accepted as disposing of all references regarding leave transfers appointments powers and other personal questions affecting Gazetted Officers as to which orders are gazetted by Government in this Part of the Gazette and that any subsidiary orders as to relief of their subordinates and the like which such notifications necessitate must be issued by them on receipt of the Gazette as no other orders will be issued by Government. ( 22 ) THEREAFTER under the heading General Administration Department the following notification appears :sachivalaya Ahmedabad 1 May 1960. No. PSY-1060-D.-Shri Shantilal S. Shah is appointed as Parliamentary Secretary to the Chief Minister with effect from 1st May 1960. He will be in charge of planning. After various other notifications appear the words : by order and in the name of the Governor of Gujarat v. Isvaran chief Secretary to the Government. ( 23 ) SHANTILAL Swaroopchand Shah has been appointed as Parliamentary Secretary to the Chief Minister with effect from 1st May 1960 by order of the governor and was to be in charge of planning. No document has been tendered in evidence showing the terms on which Shantilal S. Shah was appointed as Parliamentary Secretary to the Chief Minister. For the purpose of ascertaining the terms of appointment we have to fall back upon the oral evidence led in the case and on whatever inferences that could be drawn from certain documents. ( 24 ) THERE is no reference to the post of a Parliamentary Secretary in the Constitution of India. Article 163 (1) of the Constitution provides as under :there shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. ( 25 ) ARTICLE 164 (1) provides that the Chief Minister shall be appointed by the governor and the other Ministers shall be appointed by the governor on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the governor. Article 164 (2) provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. Article 164 (5) provides that the salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and until the Legislature of the State so determines shall be as specified in the Second Schedule. The Constitution does not make any reference to Parliamentary Secretaries or even to Deputy Ministers. Article 164 (5) provides that the salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and until the Legislature of the State so determines shall be as specified in the Second Schedule. The Constitution does not make any reference to Parliamentary Secretaries or even to Deputy Ministers. Under Article 208 of the Constitution it is provided by clause (1) as under :a house of the Legislature of a State may make rules for regulating subject to the provisions of this Constitution its procedure and the conduct of its business. ( 26 ) SEC. 18 of the Bombay Reorganisation Act 1960 it is provided as follows :the rules as to procedure and conduct of business in force immediately before the appointed day with respect to the Legislative Assembly of Bombay shall until rules are made under clause (1) of Article 208 have effect in relation to the Legislative Assembly of Maharashtra or of Gujarat subject to such modifications and adaptations as may be made therein by the Speaker thereof. ( 27 ) THE Gujarat Legislative Assembly Rules contain a reference to Parliamentary Secretary. Rule 2 (m) provides as under :-2 In these rules unless the context otherwise requires xx xx xx xx xx xx (m) Minister means a member of the Council of Ministers and includes a Deputy Minister and a Parliamentary Secretary; ( 28 ) WHEN we turn to the various provisions contained in these rules we find that there are provisions relating to the duties powers and privileges of a Minister. In view of the definition given in rule 2 (m) these powers duties and functions of a Minister are liable to be exercised by a Parliamentary Secretary unless the context otherwise requires. Rule 45 provides that with the permission of the Speaker a Minister may make a statement on a matter of public importance. On such statement no discussion shall be allowed but members may be permitted to ask questions for the purpose of eliciting further information in regard to the statement. Rule 45 provides that with the permission of the Speaker a Minister may make a statement on a matter of public importance. On such statement no discussion shall be allowed but members may be permitted to ask questions for the purpose of eliciting further information in regard to the statement. Rule 61 provides that the Chief Minister or any other Minister whether he has previously taken part in the discussion or not shall on behalf of the government have a general right of explaining the position of the Government at the end of the discussion and the Speaker may inquire how much time with be required for the speech so that he may fix the hour by which the discussion shall conclude. There are several other rules like rules relating to reply to questions asked relating to reply to supplementary questions and relating to withdrawal of questions where a reference has been made to a Minister. Unless the context would otherwise require the expression Minister would having regard to the definition clause include a Parliamentary Secretary. Rule 85 provides as under:85 A member who has resigned the office of Minister may with the consent of the Speaker make a personal statement in explanation of his resignation. (2) Such statement shall be made after questions and before the list of business for the day is entered upon (3) On such statement no debate shall be allowed: Provided that a Minister shall be entitled after the member has made his statement to make a statement pertinent thereto. ( 29 ) THIS rule would equally apply to a Parliamentary Secretary by virtue of the provisions contained in rule 2 (m ). There are various other rules applicable to Ministers which may equally apply to a Parliamentary Secretary. These rules throw some light on the nature of the functions and duties of a Parliamentary Secretary. A Parliamentary Secretary is equated with a Minister for the purpose of the Rules except where the context otherwise requires. ( 30 ) IN the Official Publication of the Proceedings of the Gujarat Legislative Assembly printed in 1961 on the first page there is a reference to persons who constitute the government of Gujarat. It is headed by the Governor followed by the Council of Ministers. The names of Chief Minister and four other Ministers appear followed by the name of 9 Deputy Ministers. It is headed by the Governor followed by the Council of Ministers. The names of Chief Minister and four other Ministers appear followed by the name of 9 Deputy Ministers. The 9th name is that of Shantilal S. Shah the Parliamentary Secretary to The Chief Minister. We have referred to this official publication merely as indicative of the character in which the Parliamentary Secretary is officially regarded. ( 31 ) A reference has also been made before us to the Bombay Civil Services Rules. In Appendix XLII-B under the heading Travelling Allowance Rules Applicable to High Officials are sec. I relating to Ministers and sec. 11 relating to Chairman Deputy Chairman Legislative Council and Speaker Deputy Speaker Legislative Assembly followed by section 111 relating to the Parliamentary Secretaries sec. IIIA relating to the Parliamentary Secretary to the Chief Minister and sec. IV relating to Members of Legislature. It was urged that as these rules which appear in the Bombay Civil services Rules applied to Parliamentary Secretaries they should be regarded as being in the service of the government. No such inference is liable to be drawn as Ministers who are dealt with in section 1 Chairman and Deputy Chairman Legislative Council and Speaker and Deputy Speaker Legislative Assembly who are dealt with in section I and Members of the Legislative who are dealt with in section IV and who are all governed by the travelling allowance rules mentioned therein cannot be regarded as being in the service of the government. ( 32 ) A further reference to Parliamentary Secretaries is found in the Gujarat Legislative Assembly Members (Removal of Disqualifications) Act 1960 (Act No. 1 of 1960 ). That Act was passed in view of the provisions contained in Article 191 of the Constitution which enacts that a person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or the Legislative Council of a State if he holds any office of profit under the government of India or the government of any State specified in the First Schedule to the Constitution other than an office declared by the Legislature of the State by law not to disqualify its holder. It is admitted that a Parliamentary Secretary receives a salary of Rs. 500. 00 per month. It is admitted that a Parliamentary Secretary receives a salary of Rs. 500. 00 per month. Under the aforesaid Gujarat legislative Assembly Members (Removal of Disqualifications) Act 1960 it is provided that a person would not be disqualified for being chosen as or for being a member of Gujarat Legislative Assembly merely by reason of the fact that he holds any of the office specified in the Schedule appended to the Act. In the Schedule it is mentioned as item (1) the office of Parliamentary Secretary to a Minister of the Government of Gujarat. ( 33 ) A reference to a Parliamentary Secretary is also found in the Gujarat Legislative Assembly Members Salaries and Allowances Act 1960 Section 9 therefore provides as under :notwithstanding anything contained in this Act. a Minister or Deputy Minister the Speaker or a salaried Parliamentary Secretary shall not be entitled to any salary allowances or provision for residential accommodation under this Act by reason of the fact that Minister Deputy Minister Speaker or salaried Parliamentary Secretary is a Member of the Assembly. ( 34 ) A reference may also be made to another Act of the Gujarat Legislature being the Gujarat Ministers Salaries and Allowances Act 1960 That Act provides by sec. 6 that there shall be paid to each Deputy Minister a salary of Rs. 750. 00 per month. By sec. 7 it is provided (1) that each Deputy Minister shall be entitled without payment of rent to the use of a furnished residence in Ahmedabad throughout his term of office and for a period of fifteen days immediately thereafter or in lieu of such residence a house allowance at the rate of Rs. 150. 00 per month (2) that Do charge shall fall on the Deputy Minister personally in respect of maintenance of any residence provided under this section and (3) that the expenditure on furnishing the residence provided under this section shall be on such scale as may be determined by rules or orders. The provisions contained in this Act relating to Deputy Ministers do not however apply to Parliamentary Secretaries even though for the purpose of the rules framed by the Gujarat Legislative Assembly a Parliamentary Secretary is included in the expression Minister. The provisions contained in this Act relating to Deputy Ministers do not however apply to Parliamentary Secretaries even though for the purpose of the rules framed by the Gujarat Legislative Assembly a Parliamentary Secretary is included in the expression Minister. We have made a reference at some length to all these provisions with a view to assess the real position occupied by a Parliamentary Secretary so far as the rules and legislation go. ( 35 ) WE shall deal with the oral testimony on the subject. No light has been thrown on the position of a Parliamentary Secretary in the evidence given by the petitioner or any other person on behalf of the petitioner. The only thing stated by the petitioner is that Shantilal Shah was the Parliamentary Secretary attached to the Chief Minister of the Gujarat State. On behalf of the respondent evidence has been led of Harkant Bhavanishankar Shukla the Secretary to the Gujarat State Legislative Assembly since 1st of May 1960 the date on which the Gujarat State was formed He stated that prior to 1st May 1960 he was working as a Deputy Secretary in the Bombay Legislative Council and that he worked in that capacity from 1956 to 1960. He further stated that from 1950 to 1956 he was the Secretary of the Saurashtra Legislative Assembly and that he was in close touch with Parliamentary affairs from 1950 onwards. He has stated that a Parliamentary Secretary is not a government servant under the Constitution that usually a Parliamentary Secretary is selected by the Chief Minister that his position is that of a junior Minister that after he is selected by the Chief Minister the Chief Secretary to the government issues orders about his appointment that the selection is made from the elected members of the Legislative Assembly that usually a Parliamentary Secretary is selected from the ruling party that a Parliamentary Secretary usually is attached to the Chief Minister or to a senior Minister and takes part in all the proceedings of the House just as any other Minister is doing that he replies to questions and moves motions etc. that usually a Government servant cannot enter the premises of the House and take part in its deliberations unless some high government officer has been specifically permitted so to do under the Constitution that the duration of the post of a Parliamentary Secretary is co-extensive with the duration of the House and that the convention is that if the Ministry resigns before the duration of the House comes to an end the Parliamentary Secretary would ceases to exist as such and that no separate resignation of the Parliamentary Secretary is necessary for such an eventuality. He has further stated that a parliamentary Secretary is not an administrative head that he helps the Minister in his work in Parliamentary affairs and that he is being trained as junior Minister in Parliamentary affairs. He has further stated that a Parliamentary Secretary is not governed by the service rules regarding promotions pension leave etc. that he gets all the amenities which a Minister is usually allowed that though the appointment of a Parliamentary Secretary is published in a gazette he cannot be called a gazetted government Servant or a Gazetted Officer. In the course of his cross-examination he stated that under the Constitution the Governor invites the leader of a party in majority in the House to be the Chief Minister who gives the names of his Ministers Deputy Ministers and the Parliamentary Secretary to the Governor who appoints them and that a Parliamentary Secretary is a member of the government. According to him he considered a Parliamentary Secretary as a part and parcel of the Council of Ministers. He stated that the status of a Parliamentary Secretary is not equal to that of a Minister or a Deputy Minister but he enjoys the status of a junior Minister that a Parliamentary Secretary is permitted to take part in the proceedings of the House and he moves a Bill on behalf of the Government i. e. he moves official Bills and that he himself knew and had seen instances of a Parliamentary Secretary moving official Bills and official amendments to Bills. The evidence of Harkant Bhavanishankar Shukla is of value to the extent that he speaks of the existing practice which has come to his notice. For several of his opinions he has referred to various text-books. The evidence of Harkant Bhavanishankar Shukla is of value to the extent that he speaks of the existing practice which has come to his notice. For several of his opinions he has referred to various text-books. We shall hereafter refer to some of them in considering the true nature of the position of a Parliamentary Secretary. His evidence cannot be regarded as a evidence of an expert and to the extent that it is opinionative evidence we do not attach any importance to the same. ( 36 ) THERE is the evidence of Shantilal Swaroopchand Shah given on behalf of the respondent. His evidence is Exhibit 194. He has stated that he was elected as a member of the Bombay Legislative Assembly in the general election held in 1957 that when under the Bombay Reorganisation Act 1960 the State of Gujarat came into existence he was a sitting member of the Bombay Legislative Assembly and became a member of the Gujarat Legislative Assembly that when the Gujarat State came into existence the Governor of Gujarat invited Dr. Jivraj N. Mehta to form the cabinet that while Dr. Jivraj N. Mehta was considering the question about the formation of a Ministry Dr. Jivraj N. Mehta had called the witness and asked him if he would join the Ministry as a Parliamentary Secretary if he was selected and he consented to do so and that subsequent to the formation of the Ministry as was customary his name as Parliamentary Secretary was declared. He stated that as Parliamentary Secretary he was attached to the Chief Minister and that he was not given any independent charge of a portfolio but was asked by the Chief Minister to assist him in Parliamentary affairs pertaining to planning. He has further stated that his appointment as a Parliamentary Secretary was not that of a government servant but was a political appointment as a part of the Council of Ministers that as a Parliamentary Secretary he was given a free furnished bungalow and was receiving fixed pay and allowance under the orders passed by the Governor on the advice of the Chief Minister that the Civil Services Rules regarding pension promotions increments etc. were not applicable to him and that his term of office as Parliamentary Secretary was co-extensive with that of the Council of Ministers. were not applicable to him and that his term of office as Parliamentary Secretary was co-extensive with that of the Council of Ministers. He further stated that at the time of joining as Parliamentary Secretary he did not take charge from any person nor did he hand over charge to any person when his post terminated on the resignation of the Ministry that no fixed hours of official work were determined by the government for him that he himself fixed his own hours of work and his programme and that no administrative departmental head had any control over him that as Parliamentary Secretary he was paid Rs. 500. 00 per month that in the State of Gujarat in the order of precedence his name preceded that of the Chairman of the Public Service Commission and the Chief Secretary that he used to move Government Bills or move amendments or even answer questions on behalf of the Treasury Bench on the floor of the House and that he could not move any private Bills. In the course of his cross-examination he stated that there was a convention that a Parliamentary Secretary was to be appointed from the elected members of the House When further cross-examined he stated that he did not know whether a Parliamentary Secretary was not getting any salary but was getting only an allowance before 1952. He stated that every month he used to draw his salary by submitting a bill to the Treasury and that the amount was paid out of the fund earmarked for Ministers salaries and allowances. When further cross-examined he stated that he was not working under the Chief Secretary but on the contrary the Chief Secretary was working under him. He further stated that Ministers and Deputy Ministers were given a guard of honour when they visited a place officially and that he also was given a guard of honour as a Parliamentary Secretary and that he could select a typist a clerk or a personal assistant of his choice whose appointment would be made by the general Administration Department. He denied that his position as Parliamentary Secretary was just like that of other Departmental Secretaries or that he was a member of the Chief Ministers departmental staff. He denied that his position as Parliamentary Secretary was just like that of other Departmental Secretaries or that he was a member of the Chief Ministers departmental staff. ( 37 ) THE evidence of the last two witnesses coupled with the provisions contained in the Gujarat Legislative Assembly Rules show that the position of a Parliamentary Secretary is very nearly akin to that of a Deputy Minister. Mr. Daru the learned advocate who appears on behalf of the petitioner has contended that our Constitution does not recognize a Parliamentary Secretary that it makes a reference only to a Council of Ministers and that it cannot be said that a Parliamentary Secretary is a member of the Council of Ministers Mr. Daru is right when he contends that there is no reference to a Parliamentary Secretary in the Constitution. There is equally no reference in the Constitution to a Deputy Minister. Prom the mere fact that a reference has not been made to a Parliamentary Secretary in the Constitution and from the mere fact that he may not be liable to be regarded as a Minister it does not follow that merely because his appointment has been made by the governor and his appointment has been gazetted that he has become a person who is in the service of the Government In this connection it would not be out of place to refer to several text-books which state the position of a Parliamentary Secretary in england We have borrowed many institutions from England and the institution of a Parliamentary Secretary seems to be one of them. ( 38 ) IN the book government and Parliament by the Rt. Honourable Lord Morrison of Lambeth Second Edition at page 59 it is stated as under: ( 39 ) EACH departmental Minister usually has a Parliamentary Secretary to assist him but in some of the larger Departments there may be two or even three at the Scottish office. Mostly they are Members of the House of Commons. or if not then of the House of Lords. They must not of course be confused with the Permanent Secretary who is the senior civil servant in the Department. Nowadays they are selected by the Prime Minister in consultation with the Minister concerned. Mostly they are Members of the House of Commons. or if not then of the House of Lords. They must not of course be confused with the Permanent Secretary who is the senior civil servant in the Department. Nowadays they are selected by the Prime Minister in consultation with the Minister concerned. ( 40 ) AT page 99 it has been observed by the learned author that Whips Parliamentary Secretaries and Parliamentary Private Secretaries and the Leader of the House are part of the machinery of government. In dealing with the question of the life of a Parliamentary Secretary at page 66 it is observed that a Parliamentary Secretary of today is a possible Minister of the future that in the case of the Minister being a Peer it is of course absolutely essential for the Parliamentary Secretary in the Commons to be in on the ground floor of departmental discussions for he is the departmental spokesman in the House of Commons and that a similar need arises where the Minister is in the Commons and the Parliamentary Secretary is in the Lords. At page 115 it is observed that all departmental Ministers have a Parliamentary Secretary or Secretaries who are members of the government that Parliamentary Secretaries are available to assist their Ministers in the office and on the Front Bench that among their important duties is to be accessible to Members who seek information or wish to make representations or complaints so that their Ministers may be made aware of Parliamentary apprehensions and opinions and that many of these matters can be dealt with by the Parliamentary Secretary on his own responsibility. . ( 41 ) IN the book British Government by Hiram Miller Stout at page 79 the author in reference to junior ministers observes as follows:these are members of the majority party in Parliament who serve as assistants to the heads of departments and ministries and who are usually known as Parliamentary Secretaries to these ministries. All these ministers form the Government of the day. All these ministers form the Government of the day. ( 42 ) IN Sir lvor Jennings book Cabinet Government 3 Edition the author has at page 59 referred to Parliamentary Secretaries as ranking as assistant Ministers At page 231 he has stated that Ministers of State and Parliamentary Secretaries can effectively deputise for the departmental Ministers only when they have themselves assumed the responsibility (subject to the control of the departmental ministers) for the branch of administration under discussion. ( 43 ) A reference to these books clearly shows that in Great Britain Parliamentary Secretaries are regarded as forming part of the government On the materials that have been placed before us we are of the view that Parliamentary Secretaries in the State of Gujarat also form part of the government and they cannot be regarded as being in the service of government within the meaning of section 123 (7) of the Representation of the People Act 1951 ( 44 ) IT is not necessary for us to refer to all the authorities which have been cited at the bar on the subject. We will however refer to one Judgment of the Supreme Court strongly relied upon by the learned advocate for the petitioner in support of his contention that a parliamentary for the petitioner in support of his contention that a Parliamentary Secretary should be regarded as one in the service of the Government. It is a decision of the Supreme Court in the case of Dhrangadhra Chemical works Ltd. v. State of Saurashtra and others reported in 1957 Supreme Court Reports page 152. Justice Bhagwati who delivered the Judgment of the Court had in that case to consider the question as to who was a workman with within the meaning of the Industrial Disputes Act 1947 In the course of his judgment he observes at pages 157 and 158 as follows :-THE principles occurring to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done but how itself it shall be done (Per Hilbery J. in Collins v. Hertfordshire County Council 1947 K. B. 598 at p. 615 ). ( 45 ) HE further proceeds to state that the test is however not accepted as universally correct. Then a passage from the judgment of Lord Justice Denning in the case of Stevenson Jordon and Harrison Ltd. v. Mac Donald and Evans reported in 1952-1 T. L. R. page 101 at pages 110 and 111 has been quoted wherein it has been stated as under:-THERE are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship. Lord Justice Somervell went on to say: One perhaps cannot get mush beyond this: Was the contract a contract of service within the meaning which an ordinary man would give under the words? I respectfully agree. As my Lord has said it is almost impossible to give a precise definition of the distinction. It is often easy to recognise a contract of service when you see it but difficult to say wherein the difference lies. . . . . . . . . . One feature which seems to run through the instances is that under a contract of service a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for service his work although done for the business is not integrated into it but is only accessory to it. ( 46 ) THE learned Judge has also referred to a pronouncement of the House of Lords in Short v. I. and W. Handerson Ltd. reported in (1946) 62 T. L. R. at page 427 at page 429 where Lord Thankerton recapitulated the four indicia of a contract of service which had been referred to in the judgment under appeal viz. (a) the masters power of selection of his servant (b) the payment of wages or other remuneration (c) the masters right to control the method of doing the work and (d) the masters right of suspension or dismissal and the limitations thereon. After citing various authorities Mr. Justice Bhagwati in the course of his judgment at page 160 has observed as follows:-THE principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. and another (1947-1 A. C. 1 at page 23) the proper test is whether or not the hirer had authority to control the manner of execution of the act in question. ( 47 ) AS observed by Lord Justice Somervell it is often easy to recognise a contract of service when you see it but difficult to say wherein the difference lies. There is no evidence led before us to show that the Minister to whom a Parliamentary Secretary may be attached exercises that degree of control in the manner of the execution of the work of the Parliamentary Secretary as would give rise to the relationship of master and servant between the one and the other. ( 48 ) MR. Daru has also invited our attention to the decision of the Privy Council in the case of Emperor v. Sibnath Banerji and others reported in A. I. R. 1945 Privy Council page 156. The Privy Council in that case had to consider the provisions of sec. ( 48 ) MR. Daru has also invited our attention to the decision of the Privy Council in the case of Emperor v. Sibnath Banerji and others reported in A. I. R. 1945 Privy Council page 156. The Privy Council in that case had to consider the provisions of sec. 49 of the government of India Act (1935) which provided as under :49 (1) The executive authority of a Province shall be exercised on behalf of His Majesty by the Governor either directly or through officers subordinate to him. . . . . . . . ( 49 ) THE Privy Council in that case has at page 163 observed as follows :so far as it is relevant in the present case their Lordships are unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of sec. 49 (1) and so far as the decision in I. L. R. (1939) 2 Cal. 411 decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the Legislature the provisions of sec. 51 as to the appointment payment and dismissal of ministers and sec. 59 (3) and (4) of the Act of 1935 and the Business Rules made by virtue of sec. 59 place beyond doubt that the Home Minister is an officer subordinate to the Governor. ( 50 ) MR. Daru argued that Art. 164 of the Constitution is couched in somewhat similar terms where it has been laid down that the executive power of the State shall be vested in the governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Placing reliance upon the judgment of the Privy Council he urged that a Minister himself was an officer subordinate to the Governor that a Minister could well be regarded as a person in the service of the government and that if a Minister could be so regarded a Parliamentary Secretary could equally be so regarded. What the Privy Council lays down in that case is that the Minister is an officer subordinate to the Governor but from that it does not of necessity follow that a Minister is in the service of the government. What the Privy Council lays down in that case is that the Minister is an officer subordinate to the Governor but from that it does not of necessity follow that a Minister is in the service of the government. Prom the fact that the appointment of a Minister is required to be made under the Constitution by the governor from the fact that the appointment of a Minister by the Governor is gazetted from the fact that a Minister receives a salary and allowance it does not follow that he is a person in the service of the government. The Council of Ministers under Art. 164 of the Constitution is collectively responsible to the Legislative Assembly of the State. Prom the mere fact that the Chief Minister and other Ministers are required to be appointed under Art. 164 of the Constitution by the (governor and have to be paid salaries and allowances it does not follow that the relationship of master and servant exists between the (governor and any minister. The very test on which Mr. Daru relied which has been referred to in the case reported in 1957 Supreme Court Reports page 152 (Dhrangadhra Chemical Works Ltd. v. State of Saurashtra and others) by itself is sufficient to show that the relationship of master and servant does not so exist. Though the Governor appoints a Minister he is not in a position to control the manner of the execution of the duties which have to be discharged by the Ministers in their capacity as Ministers. Similarly in the case of a Parliamentary Secretary there is nothing to show that the Governor who appoints a Parliamentary Secretary is in a position to control the manner in which a Parliamentary Secretary is to do his work as such Parliamentary Secretary. ( 51 ) ON the facts of the present case having regard to the material that has been placed before us we hold that Shantilal Swaroopchand Shah was not in the service of the government within the meaning of sec. 123 (7) of the Representation of the People Act 1951 at any material time. In view thereof the further question whether he is a gazetted officer does not arise for consideration and we refrain from dealing with that aspect of the matter. 123 (7) of the Representation of the People Act 1951 at any material time. In view thereof the further question whether he is a gazetted officer does not arise for consideration and we refrain from dealing with that aspect of the matter. ( 52 ) IN the result it cannot be said that any corrupt practice has been resorted to by the respondent in appointing Shantilal Swaroopchand Shah as his election agent and utilizing the service of Shantilal Swaroopchand Shah for the furtherance of the prospects of the respondents election. No other points have been pressed before us. In the result we confirm the order of the Election Tribunal dismissing the petition and ordering the petitioner to pay to the responded Rs. 500. 00 by way of costs. The appeal fails and is dismissed with costs. We fix the cost of the appeal at Rs. 500. 00 and direct that the appellant do pay to the respondent the sum of Rs. 500. 00 as and by way of such costs. We also direct that the substance of the decision be communicated forthwith to the Election Commission and the Speaker of the Gujarat Legislative Assembly and that an authenticated copy of the decision be sent to the Election Commission. Appeal dismissed. .