JUDGMENT 1. This is a petition under section 81 of the Representation of the People Act by an elector, who incidentally happens to be the husband of respondent No. 2 one of the defeated candidates. It is in challenge of the election of respondent No. 1 Mahadeo Govind Joshi in the Madhya Pradesh Ujjain, North-Vidhan Sabha constituency No. 245. In the petition a large number of grounds have been alleged including appeal to religion and threat of divine displeasure; but at the final stages the petitioner has restricted himself only to one heading which is numbered 1 in the issues, concerning the alleged disqualification of respondent No.1 under Article 191 (1)(a) of the Constitution as he was holding three offices of profit under either the state Government or the Union Government in the Western Railway Administration. 2. The petitioner's allegation is that, having held at the time of the election three different offices of profit, and under the Union Government in the Western Railway Administration and two others under the Madhya Pradesh State Government, the respondent No. 1 was disqualified and the election has to be declared void under section 100 (1) (a) of the Re-presentation of the People Act- "Disqualified to be chosen to fill the seat under the Constitution." Each of these three alleged disqualifications is by itself sufficient to call for an order declaring the respondent's election void; but it would be proper to examine each of them separately. It has to be noted that there is the additional prayer that the respondent No. 2 Hansaben Patel securing the second largest number of votes should be declared elected; but the petitioner has not established the requirements either of section 101 (a) or (b) so that in effect the prayer for the evidence of the election of respondent No. 1 has alone to be considered. 3. In view of the narrowness of the field of controversy as it has shaped, we need only briefly summarize the vary salient features of the election. There were actually eight candidates out of whom five polled so few votes that they forfeited their deposits. The remaining three stood in the following order : (1) M.G. Joshi (successful) candidate and 23,709 votes contesting respondent) (2) Mrs. Hansaben Patel (Congress) 10,767 votes (3) Bansidhar Azad (Communist) 7.093 votes. There were actually eight candidates out of whom five polled so few votes that they forfeited their deposits. The remaining three stood in the following order : (1) M.G. Joshi (successful) candidate and 23,709 votes contesting respondent) (2) Mrs. Hansaben Patel (Congress) 10,767 votes (3) Bansidhar Azad (Communist) 7.093 votes. Though the respondent No.2 has not filed her written statement the petition is in effect one in her interest. 4. The allegations that call for consideration have been incorporated in the following issue:- 1 "(a) Was the respondent No.1 holding one or more of the three following offices of profit? (i) His being included in the penal of lawyers prepared by the Central and Western Railway Administrations. (ii) his bolding the post of the President-member of a tribunal constituted under section 73 of the M. P. Town Improvement Trusts Act. 1960. (iii) his holding the office of Professor of Law, in the Madhava College, Ujjain on a regular salary of 250 p. m; (b) If so, its effect ?" Ground No. [1] Employment by the Railway. 5. Though the issue has mentioned Central Railway Administration as well, the documents produced relate only to the Western Railway Administration. But this does not make any material difference because the holding of an office of profit under any of the railway administrations is really the holding of such office under the Union Government and as such a disqualification for the membership either of the Union or of any State Legislature. In February 1962 the Western Railway Administration addressed a letter offering the respondent a place in "the panel of railway pleaders for conducting suits filed by or against the Union of India represented by the Western Railway in the Courts or Ujjain on the following terms and conditions of fees". This is exhibited at P/1. There are as many as 16 headings most of which relate to fees but some of which have a farther effect. We are concerned with conditions in paragraphs 9 and 13:- "9 Acceptance of briefs against any Railway in any Court will not be allowed." "13 You will be expected to watch cases coming up for hearing against the Railway in the various Courts at UJN and give timely intimation of the same to this office. We are concerned with conditions in paragraphs 9 and 13:- "9 Acceptance of briefs against any Railway in any Court will not be allowed." "13 You will be expected to watch cases coming up for hearing against the Railway in the various Courts at UJN and give timely intimation of the same to this office. If no instructions regarding any particular case are received by you, you will be expected to appear ill the Court and obtain an adjournment to save the ex parte proceedings against this Railway in the Court. You will be paid Rs. 5 for every such adjournment if you are not entrusted with the conduct of the suit later on." Shri Joshi accepted this offer in his letter dated 19-2-1962 (Ex. P/2); "In acknowledging your letter No... ...1 have to thank you for keeping my name in the panel of Railway pleaders. The information about the condition and terms of engagement was given to me and I had already given my acceptance." Presumably he had written an earlier letter to the same effect; but he was again confirming that he had accepted the conditions including those in Paragraphs 9 and 13. 6. On behalf of the petitioner it is urged that the arrangement between the administration and the respondent is not one for ad hoc briefing in individual cases without any continuing obligation on the part of the pleader, but is what can be properly described as the office of a "standing counsel", who has to appear in every case unless ordered otherwise, whether or not there is a specific instruction to that effect. In that sense this is a case of continuing obligation. As against it, the respondent has urged that this is a case of a lawyer discharging professional duties and offering legal assistant on casual occasions, and the mere inclusion in the penal is only a matter of perference and not creation of any continuing obligation. In fact on the argument of the respondent there is no office of the lawyer for the Western Railway cases at Ujjain. Both parties have tried to derive support for their contention from case-law. 7. The phrase "inclusion in the panel of railway pleaders" is by itself not of much significance, because this phrase may be used in more than one sense. Broadly speaking, two kinds of arrangements are possible. Both parties have tried to derive support for their contention from case-law. 7. The phrase "inclusion in the panel of railway pleaders" is by itself not of much significance, because this phrase may be used in more than one sense. Broadly speaking, two kinds of arrangements are possible. There is the one which came up for consideration before the Election Tribunal, Allahabad in the case reported in Govind Malavia Vs. Murli Manohar, 8 ELR 84. It is only a decision by a tribunal and not by a High Court or by the Supreme Court; but the facts of that case provide a clear instance of the "railway pleader" so called not being the holder of an office of profit. In that case the position was that the railway pleader was not bound by any obligation corresponding to Paragraphs 9 and 13 in the present agreement. He was absolutely free till he accepted the brief in any particular case; he could, before that appear against the railway in any other case, and was not bound to attend the Courts and look up the lists to see if any case was corning up against the railway and to take appropriate action, namely, informing the administration on the one hand and taking adjournments from the Courts on the other. In the instant case, on the contrary, even when not working in any particular case in which the railway is involved this respondent as railway pleader could not accept a brief against any railway administration and was further charged all the time with the duty of watching the Court-cause-lists, and spotting if there were cases against the railway, and taking the steps I have already noted. This to my mind makes all the difference. 8. It is urged that usually a person rendering "professional services" may not be the holder of an office of profit. This h certainly to make a very wide statement; because professional duties whether of a doctor or a lawyer might be rendered either on a casual ad hoc basis or on what might be called a standing arrangement which imposes subsisting and continuing obligations on the professional man. In the case reported in State of Rajasthan Vs. Madanswarup, AIR 1960 Raj 138 , it was held that the contract between Government and the Government pleader was "purely professional". In the case reported in State of Rajasthan Vs. Madanswarup, AIR 1960 Raj 138 , it was held that the contract between Government and the Government pleader was "purely professional". This may be so, but bas no bearing on our present problem, the question being not whether it is a professional or any other kind of contract but whether it is an "office of profit". Another case that came up before the Bombay High Court in Dr. Deorao Lakshman Vs. Keshav Lakshman, 13 BLR 334 is instructive. There a doctor was under an agreement to render professional assistance to the insured employees under the Employees State Insurance Scheme. He was not getting any retainer or monthly pay, nor was he called upon to attend any office from day to day; but any employee of one of the listed establishments in need of medical assistance could go to this doctor who was to give the assistance and get fee on an agreed tariff. The appointment of course has been made by the Government. It was held in that case:- "The word 'office' does not necessarily imply that it must have an existence apart from the person who may hold it. The mere fact that the post which a person holds will cease to exist as soon as he gives it up or other persons cannot be appointed to that post, is not a ground for holding that that person does not hold an office." In certain earlier rulings there are suggestions that an "office of profit" should exist independently of the holder whose disqualification is under scrutiny. This ruling restricts the application of that doctrine. In the instant case we do not even have to go so far as the Bombay High Court has done. After all the railway administration did want a kind of a legal watch-dog in the Courts at Ujjain. “Standing counsel” may be a high-sounding phrase to describe this; but in that bumble sphere the respondent was discharging precisely those functions. But even assuming that without the respondent's functioning in that capacity, the administration could have made some other arrangement for watching over its cases in the Ujjain Courts, still there is an "office" and at the relevant time the respondent was holding it." 9. But even assuming that without the respondent's functioning in that capacity, the administration could have made some other arrangement for watching over its cases in the Ujjain Courts, still there is an "office" and at the relevant time the respondent was holding it." 9. A point is sought to be made on behalf of the respondent from the fact that no money was paid as a retainer. Fees for different kinds of professional assistance have been prescribed and in addition for the mere watching and the taking of adjournments a special fee of Rs. 5 per case has been provided. Of course, if later on this particular lawyer appears in those cases, the Rs. 5 fee is to merge into the larger fee he has to get under other provisions. But the point to note is that a regular monthly or similar periodic payment of money is not a creterion for an office of profit. All that is necessary is that the office is capable of yielding a profit in the holder, though at any particular point of time there may be no actual income. As stated by the Bombay High Court in the above ease- "In order that an office may be an "office of profit" it is not necessary that the holder of the office should actually make a profit out of it. It is enough if the office is capable of yielding a profit, or in other words, is one from which the person holding it may reasonably be expected to make a profit out of it". 10. The respondent has urged that there is no parallel between this case and the present one because the doctor appointed in the Bombay case was functionting in according with a scheme made under statute. This is correct but the test is not whether the appointment is made in accordance with a contract or with a statutory provision; but whether, having been made, it imposes continuing obligations on the holder in return for which be may reasonably be expecting to make some money profit. By that test this is certainly an office of profit. The same principles emerge out of the case reported in Hoti Lal Vs. Raj Bahaduram, 15 ELR 55 where the office concerned was that of an Oath Commissioner. By that test this is certainly an office of profit. The same principles emerge out of the case reported in Hoti Lal Vs. Raj Bahaduram, 15 ELR 55 where the office concerned was that of an Oath Commissioner. There again there was no regular monthly pay but the holder derived income on a recognized tariff from such oaths as he would usually administer; but there was continuity of obligation and accordingly it was held to be an office of profit. 11. The respondent has cited the case reported in State of Rajasthan Vs. Madanswarup, AIR 1960 Raj, 138. There the question was whether a Government Advocate, that is, an advocate appointed by the State to conduct its criminal cases in the High Court and still allowed civil practice, was the holder of a "civil post", entitled to the protection of Article 311 of the Constitution. The High Court held that such a person was not one in the civil employment of the State for the purposes of that Article. But that is not the question which we are examining, we are not concerned with whether or not in the event of a difference between this respondent as their standing counsel in the Ujjain Courts and the Western Railway Administration, it would have been possible for him to invoke Article 311. Here there is no difference between the employer and the employee. It is only a third party which alleges, not that this lawyer is a servant of the Union Government for the purposes of Article 311, but that he is holding an office of profit as mentioned in Article 191. For that the tests have already been indicated. I would, therefore, hold that in the instant case the lawyer appointed under the terms and conditions in Ex. P/1 including in particular Paragraphs 9 and 13 is the holder of an office of profit appointed in the rail way administration by the officers of the Union Government. As such, it is a disqualification under Article 191; the acceptance of his nomination paper was improper and he is not entitled to hold the seat in the Vidhan Sabha. Ground No. (ii) Appointment on the Tribunal: 12. The second office of profit that the respondent is said to have held is that of the President of the Tribunal constituted under section 73 of the Madhya Pradesh, Town Improvement Trust Act, 1960. Ground No. (ii) Appointment on the Tribunal: 12. The second office of profit that the respondent is said to have held is that of the President of the Tribunal constituted under section 73 of the Madhya Pradesh, Town Improvement Trust Act, 1960. There is an Improvement in the Ujjain City, and a provision has been made for the disposal of claims by owners of property against it. A tribunal had been constituted on the usual pattern consisting of three members one of whom was to be the President, and the other two ordinary members with some special qualifications. The case of the petitioner is that the respondent had been appointed to the office of the President in October 1966, and was actually bolding that office during the election time in January and February 1967. The respondent's answer is that the whole thing had been a mistake and the person appointed was not himself, that is, "M. G. Joshi" but one, “W. C. Joshi”; whether or not a person of that name existed, and further even if everybody understood by that name no other than the respondent himself, still he had not given his consent and he had not even after receiving the order done anything to show that he had accepted the office. 13. The factual position is that the appointment was gazetted in October 1966 by the notification brought as Ex. P/3. There is no clear positive indication that this respondent bas been consulted before hand; but the question for us is not whether be bad been consulted, but whether on the publication of the notification and his receipt of a copy, he acted in a manner as would indicate that be bad accepted the post. It is to be noted that there is no regular office or staff or any such establishment for the tribunal. There is also no monthly or periodic pay. Whenever a dispute comes up the Trust refers it to the tribunal whereupon the tribunal meets, hears the parties and gives an award, the Trust itself making the arrangement for the office. There is payment on a daily basis for the duration of the case. In these circumstances there is really nothing corresponding to the physical taking charge. Whenever a dispute comes up the Trust refers it to the tribunal whereupon the tribunal meets, hears the parties and gives an award, the Trust itself making the arrangement for the office. There is payment on a daily basis for the duration of the case. In these circumstances there is really nothing corresponding to the physical taking charge. What we have got from the respondent himself is that when the order was delivered at his house, be took it, and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order bad come t0 hi m by mistake and he was not, "W.C. Joshi" and he was in any event unwilling to function, and had in fact not been consulted beforehand. He just kept quiet. This qualification was urged at the time of the scrutiny of the nomination papers and after it he became cautious. In March he wrote a letter to the Collector who is the ex-officio Chairman of the Trust that he had not accepted the office. This is of course act of any consequence. 14. That there bas been a mistake is obvious. At the same time it is not urged at all that there was another advocate of Ujjain of the name. ‘W. C. Joshi’ quite on the contrary every body took the ‘W. C. Joshi’ of the notification to be no other than M. G. Joshi Advocate-respondent here. The deciding point for our consideration would be whether he himself understood it as his appointment, and not having declined or refused it by an appropriate communication to Government or to the Chairman of the trust should be deemed to have accepted the office. He asserts that his not refusing the order and keeping quiet was only a matter of apathy, as in fact he did not feel any call to write to anybody in view of the mistake in the name. Another view that he accepted the office is equally plausible. However, the sufficiency of proof for disqualification or corrupt practice in these cases is not one of a slight over balance, but of preponderance and reasonable certainty as in a criminal case. By that standard I feel that on this alleged disqualification the respondent is entitled to the “benefit of doubt”. However, the sufficiency of proof for disqualification or corrupt practice in these cases is not one of a slight over balance, but of preponderance and reasonable certainty as in a criminal case. By that standard I feel that on this alleged disqualification the respondent is entitled to the “benefit of doubt”. I would accordingly hold that it is reasonably doubtful if the respondent bad really accepted the office of the President of the tribunal in the circumstances stated above. This, therefore, is no dis-qualification. Ground No. (iii) Appointment in the Modhav College. 15. According the petitioner the respondent was holding yet another office of profit under the Government of Madhya Pradesh, namely, that of the Professor of Law in the Madhav College, Ujjain, on a regular salary of Rs. 250.00 p. m. The entire sequence of events has been brought on record and no stage is in controversy. What is in controversy is a point of interpretation, whether the respondent was still in Government service but on deputation to the Vikram University, or whether at one or other of the three stages he had notionally gone out of Government Service and notionally become a servant of the University. The facts are as follows: 16. As long ago as 1950 when the Madhav College started its law classes Shri Joshi-the respondent-was invited by the principal to come and work as a lecturer. He did so and for some time his work was purely on the basis of an arrangement between him and the principal. However, in July 1951 the principal wrote to the educational department that Shri Joshi should be formally appointed. Ex. R/3 is the letter addressed by the principal Shri Balaya to Shri M.G. Joshi, dated 26-7-1951. Later on Government, which was running the college, appointed the respondent by its letter dated 7-4-1952 (Ex. R/4). "On one year's probation......as part-time Professor of Jaw at Madhav College, Ujjain on a fixed salary of Rs. 250 p. m. with effect from the date he resumed his duties in a temporary capacity i.e. 1st August 1951." The letter itself is in the form of a sanction; but copies were communicated both to Shri Joshi and to the principal and on that basis the former continued working. There is no doubt that it was a part-time employment without increment or pension or provident-fund benefits. There is no doubt that it was a part-time employment without increment or pension or provident-fund benefits. But there is some uncertainty as to whether at the end of the one-year period the post had become "permanent." Actually the one-year period ended on the 1st August 1952, that is, within four months of the appointment order, the appointment being retrospective in effect; but on no occasion after that date was any formal order issued confirming Shri Joshi in the post of part-time professor. One view would be that the confirmation was automatic when he continued after the one year probation-period and the other is that it continues to be "temporary" till a formal order of confirmation is sent. It is not necessary for our purpose to go any further into this discussion. Whether it was a temporary appointment or a permanent one, it continued till July 1967 without a break, and if it was a post held under Government at the relevant time it is certainly an office of profit. 17. Shri Joshi continued working all the time in the Madhav College; but certain changes were happening in the management of that institution. Till March 1959 the College was not only a Government-owned institution but one which was being managed day-to-day directly by the Education Department. In the end of March 1959, however there were certain changes in the management of that institution without the Government relinquishing ownership or ultimate control. The Vikram University had been established at that time and this being the premier institution at Ujjain it was considered proper that the control should be: handed over to the university. The ultimate purpose was that the institution itself should be wholly made over; but that was to happen after five years of university control with the Government's ownership, continuing, and an examination by the Governor of the working of the system and his decision that a final handing over was found advisable. An agreement was entered into between the Government and the university (Ex. P/8). According to it the university undertook to "own" the management of the college for a period of five years. If at the end of that period the Governor was satisfied that the management had been proper and efficient he was to transfer the college permanently to the university. The Governor's decision was to be final. P/8). According to it the university undertook to "own" the management of the college for a period of five years. If at the end of that period the Governor was satisfied that the management had been proper and efficient he was to transfer the college permanently to the university. The Governor's decision was to be final. The working staff were placed on deputation under the university while continuing to be Government servants with a lien on their permanent post. "15. The existing members of the staff and other servants of the said college shall be treated as being on deputation to the university during its period of management and shall be deemed to have been deputed on the usual foreign service conditions, retaining their lien in the State Educational Service. The university shall be liable to make payment of salaries and other allowances, except the deputation allowance, to the members of the staff and other servants of the said college, in employment at the date of its transfer." The staff including Shri Joshi accepted this arrangement. In addition to this the University was competent to make its own appointments, so that during the period of Government ownership and the University management, it was conceivable that there were two types of members on the staff one coming from the Government service on deputation and the other full-time direct employees of the University; we are of course concerned with a professor who, having been in Government service on the 31st March 1959, was placed on deputation with the University, and while drawing his pay in the Madhav College directly from the University, was having his lien on his Government post. The finances were of 'course supplied by the Government, at the first instance, Rs. 3,00,000 per annum which was later on increased to Rs. 6,00,000. The University was to manage the college on this allotment which was budgetted every year and supplement it, if necessary, with its own income from the fees and the like. 18. Thus between the years 1959 and 1964 the respondent was un- doubtedly a Government servant on deputation with the University. No doubt, he has urged on completion of 55 years in July 1961 he should be deemed to have retired from Government service and as he was still working in the Madhav College, again deemed to have been appointed by the University. No doubt, he has urged on completion of 55 years in July 1961 he should be deemed to have retired from Government service and as he was still working in the Madhav College, again deemed to have been appointed by the University. I shall come to it presently. 19. By March 1964, the Government was still not prepared to hand over the college to the University on a permanent basis. Accordingly a telegram (Ex. R/7) was sent by Government to the Vice-Chancellor. "... ...Pending Government decision on Sen Committee report existing arrangement regarding Madhav College may continue on the same terms till thirtieth June 1964." The University Syndicate itself resolved towards the end of June that further consideration of the terms of the final transfer maybe deferred till Government itself communicated its decision (R/10). In the be ginning of June Government wrote to the Registrar of the University that in principle it bad decided to transfer the Madhav College permanently to the Vikram University; but the transfer deed was under preparation incorporating some conditions and terms and when ready it would be sent to the University for its perusal and concurrence. That letter is worth quoting in full (Ex. R/8); "Sub-Permanent transfer of Madhav College, Ujjain to the University. I am directed to refer to the D.O. Letter of the Education Secretary Shri V. S. Krishnan bearing No......dated...on the above subject and to say that the State Government have taken decision to transfer the Madhav College, Ujjain to the Vikram University, permanently with effect from 1st July, 1964. A regular transfer deed will, however, have to be entered upon by the parties concerned and the same is being drafted out, incorporating therein the terms and conditions of the transfer. As soon as the draft transfer deed is ready, a copy of the same will be supplied to the. University for its persual and concurrence." Things have continued to this day exactly as they stood in the beginning of July 1964, the transfer did not having been yet prepared, concurrence not having been obtained, and the actual transfer not having been effected. 20. Meanwhile Shri Joshi respondent who was continuing on the arrangement made in March 1959 reached the age of 55 in July 1961. 20. Meanwhile Shri Joshi respondent who was continuing on the arrangement made in March 1959 reached the age of 55 in July 1961. The position is that Government was at that time following the Fundamental Rule 56 in its original form Government servants would normally superannuate on attaining the age of 55, but Government might for reasons to be recorded continue them in service for any longer period it chose. Actually this limit was extended to 58 sometime later, and in 1966 and 1967 which is the period we are concerned with, the superannuation limitation was 58. The University, however, had a slightly different rule; no teaching member on its staff could work after completing 60 years whether he is a direct employee of the University or one on deputation. This was subject to a rider that, in the event of any such member completing 60 years in the middle of an academic year, he would Dot be retired immediately but would be allowed to function till the end of that academic year. Now the respondent who was born on the 30th July 1906 continued on deputation till 1966 without either the Government or the University taking any notice. However, in July 1966 the University noted that he had completed 60 years, but the academic year bad started on the 1st July, and accordingly it permitted him to function for the whole academic year. It was in course or this year that he contested this election. It is common ground that during the election period he was working as the law professor in the Madhav College teaching his subject and drawing his pay. Ultimately after the end of that academic year in July 1967, the University disponsed with the services, and as he was on deputation informed the lending authority, namely, the Government, the fact and reason for dispensing with his services. This was of course after the election. 21. To complete the narration of facts it has to be noted that the Government itself chose to reply to the University's letter in October 1967 (Ex. R/11). The letter is dated 9th October 1967 but was actually received by the Registrar on 16-10-1967. An interesting detail is that the Registrar was under examination and cross• examination on the 15th and respondent’s counsel wanted him to come on the 16th. R/11). The letter is dated 9th October 1967 but was actually received by the Registrar on 16-10-1967. An interesting detail is that the Registrar was under examination and cross• examination on the 15th and respondent’s counsel wanted him to come on the 16th. On the resumption of the cross-examination he was asked whether he had not received a letter from the Government about the services of Shri Joshi, and he accordingly produced the letter which he had received on the 16th morning at Ujjain before his coming to Indore. Anyway, the letter runs; "Sub: Services of Shri M. G. Joshi, part-time professer of law; Madhav College, Ujjain, As per rules a Government servant super-annuates on completing the age of 58 years. Accordingly Shri M.G. Joshi, part-time professor of law ceases to be in Government service with effect from 30-6-1964 A. M., the date on which he attained the age of superannuation i.e. 58 years. This letter is of no assistance to either party because we have to deal with the question on the merits here, and the opinion of the secretary in the education department is altogether irrelevant to our purposes. It is indeed strange that this opinion should have been tendered in the manner and circumstances set out above, 22. The case of the petitioner is that all the time even after 1964 the respondent was a Government servant on deputation with the University and accordingly he was holding an office of profit and was disqualified. The respondent's answer is two-fold. In the written statement he takes the position which I have already summarised, viz. that on attaining the age of 55 in 1951 or 58 in 1964 be must be deemed to have retired from Government servise. No doubt, he continued working and drawing the pay and therefore he must be deemed to have been freshly appointed by the University in exercise of the powers that have been mentioned in the agreement, and as such treated as a servant of the University at the relevant period and accordingly not disqualified. A further ground urged during argument, though it has not been taken in the written statement is that the letter written by Government in July 1964 stating expressly that it had been "decided" to hand over the college permanently, we should assume that on that date, namely, the 1st July 1964 the transfer had been effected. A further ground urged during argument, though it has not been taken in the written statement is that the letter written by Government in July 1964 stating expressly that it had been "decided" to hand over the college permanently, we should assume that on that date, namely, the 1st July 1964 the transfer had been effected. The absence of the formal deed of transfer and the concurrence of the University to the conditions and terms in it, do not make any difference because they were only matters of details. 23. The second argument can be disposed of briefly. No doubt from the very beginning Government had in a sense "decided" to make over the Madhav College permanently to the university; but it was waiting for two things; firstly, to see how the university managed the institution during the period of management transfer, and again to formulate the terms and conditions for the acceptance of the university. The most that can be said is that by July 1964 the Government was satisfied on the first score; but on the second the Government itself had not yet made up its mind. It was still formulating the terms and conditions and only after this was done, and after they were accepted by the university would the permanent transfer take effect. It is just as if somebody had agreed to sell immoveable property and the document was under preparation. But as long as the document was not ready and both parties had not accepted its terms and conditions there' would be no transfer in the eyes of law. Accordingly I would without hesitation hold that the university continued to manage the Madbav College on the original scheme, namely, that a provisional taking over of the management with the ownership continuing in the Government, and the staff including the respondent functioning on deputation being Government servants all the times. 24. The argument about notional retirement has been presented with an amount of elaboration quite out of proportion to the simplicity of the problem. We are not concerning with the fine points of the propriety and formal correctness of the respondent's appointment under Government. What is necessary to make an office of profits is the de facto holding of the post whether or not the appointment orders are in full accord with the rules. We are not concerning with the fine points of the propriety and formal correctness of the respondent's appointment under Government. What is necessary to make an office of profits is the de facto holding of the post whether or not the appointment orders are in full accord with the rules. An officer retires on attaining the prescribed age which was 55 years upto one point of time and then became 58, the difference being immaterial for our purpose. But whether it is 55 or 58, it was open to Government to continue the officer in service. No doubt the rule" provide that there should be a formal order to that effect; but if the Government does allow the servant to function after the age of superannuation without a formal order it is not possible for third parties to question it. Least of all, can the servant of Government who is continued on the appointment after the age of superannuation without a formal written order of his employer and draws his pay during the period-turn round and assert that he was not in Government service. He had certainly been in Government service discharging the duties of his office and drawing his pay, and it is not for him when faced by third party to assert that his appointment was not regular. No doubt the regularity or otherwise of the appointment and the compliance or non-Compliance with the rules would be very much to the point when there is a controversy between the employer and the servan. In fact the case-law set out on behalf of the respondent such as State of Rajasthan v. Sripal Jain, AIR 1963 SC 1323 , State of Assam v. Padam Ram, AIR 1965 SC 473 and I. N. Saksena v. The State of Madhya Pradesh, 1967 JLJ 331= AIR 1967 SC 1264 , all relate to disputes between the Government and its servants in regard to the terms and validity of the appointment after superannuation. Certainly in such a situation the dispute being between the employer and the employee, it is open to the one to assert that it had not passed the appropriate orders and the employee's situation was precarious, and the latter to retort either that all the orders were proper, or that the employer was estopped having persuaded the employee to render his services and given him a tacit promise. In all such cases the Court would have to consider whether there had been a retirement by operation of the service rules, and whether any extension orders had been passed by Government; and if they had been, the terms for which they would be effective. This is exactly the trend of the rulings mentioned but it is unnecessary for our purpose to mete them out at any length. Here we do not have any controversy between the Government and the employee, but one between the employee and a third party who alleges that having continued at least de fecto in the post after the date of superannuation the employee should be found to have held an office of profit. 25. The second feature here is that at no point did the lending authority, namely, Government, report to the University that the respondent had been retired. Similarly there is also no order by the University appointing the respondent to the post of the professor of law in the Madhav College. No doubt, besides taking work out of the staff on deputation, it was open to the University to make its own appointments; but the real question is whether any such appointment had been actually made. It is the common ground that no such order had been passed by the University in connection with the respondent. Quite on the contrary, the University had been throughout treating the respondent as being on deputation and even when it dispensed with his services, took care to report to Government which it could not possibly had done if he had been its own employee. It is difficult to see how we can have two notional processes-one by which the respondent should be deemed to have gone out of Government service, and another by which he should simultaneously be deemed to have been appointed by the University. I would, therefore, conclude that the respondent was in Government service actually working in the Madhav College on deputation to the University during the period of election and as such he was holding an office of profit. 26. I would, therefore, conclude that the respondent was in Government service actually working in the Madhav College on deputation to the University during the period of election and as such he was holding an office of profit. 26. There is one aspect of this matter of which a passing mention was made during the argument-where we have a corporation or autonomous body like the university, wholly dependent upon the Government for its finances, whether it can be argued that even a fun-time servant of that institution would be holding an office of profit under the Government that finances it. A position similar to this arose in the case reported in Guru Govind Basu v. Sankari Prasad Ghosai, AIR 1964 SC 254 . There the person concerned was an auditor in the Durgapur Project Ltd. or the Hindustan Steels Ltd. an autonomous corporation owned, however, by the Government of India. It was held that the auditor was holding an office of profit under the Union Government. It is, however, unnecessary for us to go into that question, For one thing, the parties have not seriously taken this position and for another, I have found above that the respondent was still in the service of Government and was only on deputation to the University; as such that question does not arise. 27. Thus, out of the three offices of profit alleged by the petitioner the respondent No.1 Mahadeo Govind Joshi, successful candidate-was holding at least two offices, namely of a counsel under the Western Railway Administration which is a department of the Union Government, and of a college professor under the Government of Madhya Pradesh. Accordingly, he was disqualified to contest the election and his election is, therefore, void under section 100 of the Representation of the People Act. 28. I have already given reason why it is not possible to declare respondent No 2 Hansaben Patel duly elected to this seat. The petition is allowed and the respondent-Shri M. G. Joshi's election is declared void. It is further directed that the respondent-Joshi shall pay the petitioner his actual costs, and pleaders fee of Rs. 100 (one hundred). The petitioner for his part will be entitled to withdraw his deposit.