JUDGMENT The petitioner Upendralal Choudhary challenges by this election petition the election of the respondent Smt. Narainee Devi Jha who was elected from Mandla Constituency No. 162 of the Vidhan Sabha of Madhya Pradesh. In the election many candidates had taken part but the petitioner has impleaded in his petition the respondent alone as the relief which he has sought in the petition is that the election of the respondent is void. 2. The grounds on which the petition is based may be stated thus. The petitioner urged that he was in temporary Government service of the State of Madhya Pradesh; that he had sent notice of his intention to terminate his service as Naib-Tahsildar on 29-11-1966; that he had sent one copy of the notice to the Collector, Narsinghpur, and the other to the Secretary, Revenue Department and the acknowledgment receipt of the said two notices respectively are Ex. P-3 and Ex. P-4 on record; that the notice on the State Government had been served on 29-11-1966 and therefore his services stood terminated as from 1-1-1967 on the expiry of a period of one month from the date of the service of his notice, he being entitled to terminate his service by one month’s notice under Rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960; that though some charges had been already framed against him on 16-10-1965, he was not under suspension on the date he sent the said notice of the termination of his services and that he had been reinstated and was working at Narsinghpur when he sent the notice dated 29-11-1966; that as he was not in Government service at the time when he filed his nomination paper in the month of January 1967, his nomination paper could not be legally rejected on the ground that he was disqualified to be a candidate under Article 191 (a) of the Constitution and therefore his nomination paper had been wrongly rejected by the Returning Officer (Collector), Narsinghpur on 23-1-1967. The second contention urged by the petitioner in his petition was that the nomination paper of the respondent had been wrongly accepted as she held an office of profit at all relevant times on account of her holding the office of District Honorary Family Planning Education Leader under the Government of India in the Ministry of Health (Director-General of Health Services, New Delhi). It was averred in the petition that she was being granted honorarium of Rs. 2,000 per year and that this rendered her disqualified to be a candidate for the State Legislature. The third contention advanced by the petitioner in his petition was that in order to facilitate the election of the party candidates the State Government mala fide declared that land revenue to the extent of Rs. 5 in sum. and of land to the extent of 7.5 acres in area was to be exempt from the payment of land revenue. The said declaration was made in the Ordinance No. 19 of 1966 which came into force on 23rd December 1966. It was also urged that the number of tenants affected by the said Ordinance in the Constituency was very large, they being more than thirty thousand. It was alleged in the petition that the declaration of the said Ordinance amounted to corrupt practice of undue influence within the meaning of section 123 of the Representation of the People Act, 1951, and rendered the election of the respondent void. 3. In the written statement the contentions advanced in the petition were negatived. It was urged that the petitioner held and continued to hold at all relevant times an office of profit under the State Government; that the respondent did not hold any office of profit under the Government of India though it was admitted that she worked as Honorary Family Planning District Education Leader for District Mandla, it was urged that no emoluments were attached to that office and the respondent did not get any honorarium. A grant-in-aid of Rs. 2,000 per year was paid to her to meet the actual expenditure on travelling, lodging and boarding while on tour and for clerical assistance. It was also urged that the said grant was made in half yearly instalments of Rs. 1,000 after a certificate being furnished by the respondent and verified by the Zonal Leader and other officers showing that the grant has been utilized for the purposes for which it was intended. It was also urged that the said grant was made in half yearly instalments of Rs. 1,000 after a certificate being furnished by the respondent and verified by the Zonal Leader and other officers showing that the grant has been utilized for the purposes for which it was intended. It was also urged that the Ordinance No. 19 of 1966 issued by the Governor of the State of Madhya Pradesh exempting certain holdings from payment of land revenue was not an act of the State Government done as an agent of the respondent or with her consent and was not a mala fide act done to facilitate the election of the respondent and the said Ordinance did not have the effect of the exercise of undue influence in favour of the respondent in the Constituency and did not amount to a corrupt practice as alleged. It was also urged that it did not affect thirty thousand voters in the Constituency as was alleged. The petition was also alleged to have been filed beyond the period of limitation. 4. On the aforesaid allegations, the following issues were framed: 1 (a) Whether the petitioner was in temporary Government service of M. P. State? (b) Whether the petitioner served a notice of termination upon the Government and his services stood automatically terminated on 1-1-1967? (c) Could the petitioner terminate his services during the pendency of departmental enquiry against him, by serving a notice? 2. Whether on 29-11-1966 at the time of giving the above notice, the petitioner was not under suspension and had been reinstated? 3. Whether M. P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960, applied to the petitioner and he could so terminate his service under Rule 12 thereof? 4. Whether the nomination paper of the petitioner was wrongly rejected by the Returning Officer. 5. (a) (Struck off). (b) Whether the office of Honorary Family Planning District Education Leader is an office of profit? (c) Was the respondent, therefore, disqualified for being a candidate at an election? 6. (a) Was the M. P. Land Revenue Code (Amendment) Ordinance (No. 19 of 1966) an act of the State Government, done as an agent of the respondent or with her consent, and was it issued mala fide to facilitate the election of the respondent? (c) Was the respondent, therefore, disqualified for being a candidate at an election? 6. (a) Was the M. P. Land Revenue Code (Amendment) Ordinance (No. 19 of 1966) an act of the State Government, done as an agent of the respondent or with her consent, and was it issued mala fide to facilitate the election of the respondent? (b) Did the above Ordinance have the effect of exercising undue influence in favour of the respondent in the Constituency? (c) If so, were the voters so influenced more than 30,000 in that Constituency? (d) Whether it amounts to a corrupt practice? 7. Is the petition within time? 8. Relief and costs? I shall take up the issues one by one for consideration. 5. The petitioner has examined four witnesses in all including himself and produced six documents Ex. P-1 to Ex. P-6. His witness P. R. Dewan (P. W. 2) was examined merely for the production of Ex. P-5 and Service-Book of the petitioner Ex. P-6. His two other witnesses were examined on the question of the number of persons affected by the Ordinance No. 19 of 1966. The respondent closed her case without examining any witness. However, five documents R-1 to R-5 were produced by her. All these documents produced by the parties are either admitted or proved. 6.Issue No. I (a):-The petitioner on his oath has stated that he was in the temporary service of the State Government. His assertion finds support from his Service-Book Ex. P-6 which shows that he was not confirmed. There is no evidence in rebuttal. This issue is, therefore, decided in favour of the petitioner. 7.Issues 1(b) and 1(c):-Both these issues are connected and they may be taken together. The petitioner deposed that he had sent notice of his intention to terminate his services. The notice given by him was of the duration of one month and it was sent by him on 28-11-1966. He stated that he had sent one copy of the notice to the Collector, Narsinghpur, and the other to the Revenue Secretary. The relevant acknowledgment receipts of these notices are respectively Ex. P-3 and P-4 dated 30-11-1966 and 1-12-1966. The original notice which was filed by the petitioner personally on 30-11-1966 in the office of the Revenue Commissioner is Ex. He stated that he had sent one copy of the notice to the Collector, Narsinghpur, and the other to the Revenue Secretary. The relevant acknowledgment receipts of these notices are respectively Ex. P-3 and P-4 dated 30-11-1966 and 1-12-1966. The original notice which was filed by the petitioner personally on 30-11-1966 in the office of the Revenue Commissioner is Ex. P-5 on record which has been produced by Shri P. R. Dewan who is working as Development Assistant to the Commissioner, Jabalpur Division. This notice is addressed to the Secretary, Government of Madhya Pradesh, Revenue Department. The contents of the notice show that the petitioner tendered his resignation with a request that it may be accepted immediately and it may be treated as notice of thirty days if he was not relieved immediately. The statement of the petitioner is not negatived by any evidence adduced on behalf of the respondent. It is therefore held that the petitioner did serve a notice of termination upon the Government as alleged by him and thus the first part of issue No. 1 (b) is decided in favour of the petitioner. 8.Latter part of Issue No. 1(b), and Issues Nos. 2 and 3:-All these issues are connected and it will be convenient to consider them together. The case of the petitioner is that as soon as he had served the notice Ex. P-5 on the appointing authority, his services terminated after the period of one month which is provided for in Rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960, as the said Rules applied to the petitioner. It is further contended by the petitioner that as he was not under suspension on 29-11-1966, he was free to take advantage of the said Rule 12 and there was no hurdle in his way to defer the termination of bis services till the departmental enquiry against him concluded. 9. Ex. P-1 is the order of his reinstatement dated 11-11-1965. The petitioner has deposed in para. 2 of his statement that he was reinstated on the said date vide, the said order though in Ex. P-5 he mentioned that in pursuance of the said order dated 11-11-1965 he was actually reinstated on 7-12-1965. Whatever may be correct date of his reinstatement, it is established by these documents that he had been reinstated definitely on or before 7-12-1965. 10. P-5 he mentioned that in pursuance of the said order dated 11-11-1965 he was actually reinstated on 7-12-1965. Whatever may be correct date of his reinstatement, it is established by these documents that he had been reinstated definitely on or before 7-12-1965. 10. It is also clear from his statement Ex. R-2 which was made on 23-1-1967 before the Returning Officer that when he sent the notice of the termination of his services on 29-11-1966, a departmental enquiry was pending before the Collector, Jabalpur, against him and that the said enquiry was commenced under the orders of the Government on 19-1-1965 and that actually the charges for the enquiry and statement of allegations were received by him on 26-11-1965. The question therefore which arises for consideration is as to whether simply taking advantage of the fact that he had been reinstated and was not under suspension he could, by sending a notice of his intention to resign, terminate his services even when the enquiry was pending against him. This question was fully considered by a Division Bench of this Court in V.P. Gidroniya v. State of Madhya Pradesh1. In that case the enquiry was against a Government servant who was placed under suspension by the Government. Their Lordships considered the question of the Government servant’s right to give a notice under rule 12 of the Rules for termination of his services in paragraph 7 of their judgment and observed: “ .....it must first be noted that the appointing authority possesses two powers to terminate the services of a temporary public servant. It can either discharge him purporting to exercise its powers under the terms of the contract of employment or the relevant rule. In such a case, Article 311 of the Constitution does not apply. The appointing authority can also act under its powers to dismiss or remove a temporary servant by way of punishment after complying with Article 311 (2) of the Constitution. Even after a formal departmental enquiry has been initiated against a temporary servant, it is open to the authority to form the view that it is not necessary or expedient to terminate the services of a temporary servant, by issuing an order of dismissal or removal against him and to stop the departmental enquiry and then pass an order of discharge in terms of the contract of employment or the relevant rule. The question when such an order of discharge would amount to an order of dismissal or removal attracting Article 311 of the Constitution, does not arise for consideration in this. This aspect of the matter has been dealt with in Jagdish Mitter v. Union of India2. The point to he noted here is that where the appointing authority elects to dismiss or remove a temporary servant after holding a departmental enquiry and in accordance with Article 311 (2) of the Constitution, then, while the departmental enquiry is pending, neither the temporary Government servant nor the appointing authority can put an end to the services of the Government servant by passing an order in terms of the contract of employment or the relevant rule. The departmental enquiry has to be stopped first before the services of a temporary servant can be terminated in the exercise of the powers under the terms of the contract of employment or the relevant rule. As the departmental enquiry directed by Government against the petitioner was pending on 6th June 1964, and is still pending, the petitioner is precluded from exercising his right under rule 12 of the Rules and giving a notice to the appointing authority for termination of his services, and consequently the notice that he gave on 6tb June 1964 was altogether ineffective and invalid.” Shri R.K. Pandey, learned counsel for the petitioner, urged that the aforesaid observations have no application in the present case as in the case before their Lordships the Government servant concerned was under suspension. He has argued that the observations quoted above cannot govern a case in which the Government servant was not under suspension at the time of the enquiry. I am unable to accept this contention as correct. The portion of the observations in italics reproduced above is of a very wide amplitude and fully applies to the case of a Government servant against whom an enquiry is being made, whether he is suspended or not during the course of the enquiry. The implications of the observations made in paragraph 7 of their Lordships’ judgment have been made more explicit and clear in paragraph 8 where it has been observed- “The fact that the petitioner was suspended pending the departmental enquiry does not in any way alter the position. The implications of the observations made in paragraph 7 of their Lordships’ judgment have been made more explicit and clear in paragraph 8 where it has been observed- “The fact that the petitioner was suspended pending the departmental enquiry does not in any way alter the position. On the other hand, it reinforces the conclusion that during the period of suspension a temporary Government servant cannot exercise the right of having his services terminated by giving a notice to the appointing authority.” I, therefore, conclude that the ratio of Gidroniya’s case1 fully applies to the present case and the petitioner could not by his notice Ex. P-5 terminate his services automatically from 1-1-1967 or any other date. For these reasons, I answer the last portion of issue No. 1 (b) by saying that the services of the petitioner did not stand automatically terminated on 1-1-1967. On issue No. 1 (c), I hold that the petitioner could not terminate his services during the pendency of the departmental enquiry against him by serving a notice. I decide issue No. 2 by holding that on 29-11-1966 when the said notice was given the petitioner was not under suspension and he had been reinstated. I decide issue No. 3 against the petitioner by holding that though Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960, are applied to the petitioner, he could not, while the enquiry was pending against him, terminate his service by giving a notice under Rule 12 thereof. 11.Issue No. 4:-On the decision of issue Nos. 1, 2 and 3 in the manner they have been decided already, the result follows that the nomination paper of the petitioner was rightly rejected by the Returning Officer. The said issue is decided against the petitioner. 12.Issues 5 (b) and (c):-The respondent has admitted that she held the office of Honorary Family Planning District Education Leader at the material times. Exs. R-3 and R-4 admitted documents. Ex. R-3 is the letter of appointment sent by the Director-General of Health Services to the respondent. The first paragraph of the said letter reads as follows: “I am directed to convey the sanction of the Director General of Health Services to your appointment as Honorary Family Planning District Education Leader for the district shown below against your name and to the payment to you of an all inclusive grant-in-aid not exceeding Rs. The first paragraph of the said letter reads as follows: “I am directed to convey the sanction of the Director General of Health Services to your appointment as Honorary Family Planning District Education Leader for the district shown below against your name and to the payment to you of an all inclusive grant-in-aid not exceeding Rs. 2,000 (Rupees two thousand) only per annum to meet actual expenditure on travelling, lodging and boarding while on tour and on clerical assistance in connection with the performance of the functions of your office. Name District Smt. Narayani Devi Jha Mandla.” 13. In the second paragraph of the letter, it is stated that the payment of the grant-in-aid will be made to her in two instalments of Rs. 1000 each on the production of a bill prepared by the respondent in Form R. R.42copies of which were enclosed. The respondent was required to put her signatures on the form before drawing the amount of the grant-in-aid though it was made clear that she will not be required to render accounts of the expenditure. Paragraph 5 of the said letter requires that a certificate to the effect the grant-in-aid had been utilized for the purpose for which it was intended may be furnished through the State Family Planning Officer in due course. By Ex. R-3 the grant on terms incorporated in Ex. R-3 was continued from 15-6-1965 to 31-3-1966 and by Ex. R-5 the sanction of the President to the continued employment of the respondent as Honorary Family Planning Education Leader for district Mandala from 1st April 1966 to 31st March 1967 and to the payment to her of an all inclusive grant-in-aid of Rs. 2,000 on the terms which are identical to the terms of Ex. R-3 is established. Exs. R-3, R-4 and R-5 leave no manner of doubt for concluding that though the office held by the respondent is an office under the Ministry of Health, Central Government, yet it is not an office of profit at all. The payment of Rs. 2,000 to her is not by way of honorarium but as a grant-in-aid to meet actual expenditure on travelling, lodging and boarding while on tour and on clerical assistance in connection with the performance of the functions of her office. The payment of Rs. 2,000 to her is not by way of honorarium but as a grant-in-aid to meet actual expenditure on travelling, lodging and boarding while on tour and on clerical assistance in connection with the performance of the functions of her office. In this connection I may refer to Ramdayal Ayodhyaprasad Gupta v. K. R. Patil and others1; Lachhman Singh v. Harparkash Kaur2; Chikati Parasuram Naidu v. Vyricherla Chandra Chudamani Dev3 and Shrivaram Karanth v. Venkataramana Gowda and others4. In all these cases the principle settled is that payments under the rules which are only intended to cover the out of pocket expenses of members do not make the office of such members as being an office of profit within the meaning of Article 191 of the Constitution. To constitute an office of profit within the said Article, prestige and like advantages attached to the office do not suffice. Pecuniary advantage is an essential element and once there is, or there can be, pecuniary gain, its quantum is immaterial. Applying these tests, in my opinion, the provision in Exs. R-3 to R 5 is only for the reimbursement of the actual out of pocket expenditure while the incumbent is required to perform her duties as the holder of the office and there is no element of personal gain envisaged in the provision for the grant-in-aid. Actually the requirement for payment is that the respondent must satisfy that the amount paid to her has been utilized for the purposes for which the grant was made. In this view, I hold that the office of Honorary Family Planning District Education Leader is not an office of profit and therefore the respondent was not disqualified for being a candidate at the election. 14.Issue No. 6 (a)- Ordinance No. 19 of 1966 was promulgated in the M. P. Extraordinary Gazette dated 23rd December 1966. The preamble of the Ordinance itself states that the State Legislature was not in session and the Governor of Madhya Pradesh was satisfied that circumstances which rendered it necessary for him to take immediate action. He, therefore in exercise of the powers conferred by Article 213 of the Constitution of India made and promulgated the M. P. Land Revenue Code (Amendment) Ordinance (No. 19 of 1966). He, therefore in exercise of the powers conferred by Article 213 of the Constitution of India made and promulgated the M. P. Land Revenue Code (Amendment) Ordinance (No. 19 of 1966). By the said Ordinance, after section 58 of the M. P. Land Revenue Code, 1959, new section 58-A was inserted which enacted that notwithstanding anything contained in the Land Revenue Code, no land revenve shall be payable in respect of an “uneconomic holding” used exclusively for the purpose of agriculture. In Explanation (a) it was said that for the purposes of this section “uneconomic holding” shall mean a holding the extent of which does not exceed 7.5 acres and any holding the land revenue payable in respect whereof does not exceed five rupees. In Explanation (b), “holding” for the purposes of this section shall mean the entire land held by a person in the State, notwithstanding the fact that any portion thereof is separately assessed to land revenue. 15. In the petition the Ordinance is stated to be the act of the State Government done to facilitate the election of the party candidates, meaning of the candidates of the Congress Organization, and in para. 14 it is further alleged that the State Government made the said declaration as an agent of the respondent or with her consent with the object directly or indirectly or inducing the majority of the electors to vote for the Congress candidate or to refrain from voting for non-Congress candidates. It is also said that it interfered with the free exercise of their electoral right. In para. 13 it is said that the said mala fide declaration had an effect of exercising influence in favour of the Congress candidate (the respondent) at Mandla Constituency named above. The language of Article 213 clearly indicates that it is the Governor and he alone who had got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance and the existence of such necessity is not a justiciable matter which the Courts could be called upon to determine by applying an objective test. This view was taken by the Federal Court in Lakhi Narayan Das and others v. The Province of Bihar1 while dealing with an objection with regard to the validity of Bihar Maintenance of Public Order Ordinance (4 of 1949). 16. This view was taken by the Federal Court in Lakhi Narayan Das and others v. The Province of Bihar1 while dealing with an objection with regard to the validity of Bihar Maintenance of Public Order Ordinance (4 of 1949). 16. It is significant to note that the petitioner has not challenged the vires of the said Ordinance in this petition. It cannot be disputed that the Governor is the Constitutional head of the State Executive under the Constitution. The Governor’s decision on the question of necessity making the Ordinance is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion. It is a tall claim made in the petition not supported by any reliable evidence that the State Government acted as an agent of the respondent for the promulgation of the said Ordinance. The Ordinance could not be promulgated by the State Government or the State Legislature under Article 231. Similarly, it is preposterous to claim that the act of the promulgation of the said Ordinance and the conferment of benefits under it amount to undue influence on the voters who are benefited by it. It is obvious that the benefit of the Ordinance flows to various persons falling in the category provided for in the Ordinance without reference to their political views or opinion. Taking benefit under the Ordinance is clearly and apparently taking benefit of a legal enactment and every citizen is entitled to take benefit of the law enacted. Taking such a benefit by itself does not and cannot amount to any corrupt practice under the Representation of the People Act. It cannot amount to undue influence or bribery unless the vires of the act was challenged and it were established that it was merely a colourable device to bring the mala fide legislation into force. Taking such a benefit by itself does not and cannot amount to any corrupt practice under the Representation of the People Act. It cannot amount to undue influence or bribery unless the vires of the act was challenged and it were established that it was merely a colourable device to bring the mala fide legislation into force. For the reasons aforesaid, I decide issue No. 6 (a) against the petitioner and hold that the said Ordinance is not an act of the State Government which has been done as an agent of the respondent or with her consent and the said Ordinance cannot be held to have been issued mala fide to facilitate the election of the respondent on the possibility that due to the said Ordinance some of the voters might have made up their mind to vote for the Congress candidate. I decide issue No. 6 (b) against the petitioner by holding that the above Ordinance had no effect of exercising undue influence in favour of the respondent in the Constituency. 17.Issue No. 6 (c) – In the petition it was alleged that the voters affected numbered more than thirty thousand in the Constituency. The petitioner in his statement estimated the number of the tenants in the Constituency who benefited by the Ordinance to be about 12000 or 13000. Shambhuprasad (P. W-3) stated that the said Ordinance affected 13691 cultivators in the Constituency. However, he plainly stated that he did not know how many of those persons were voters and how many of them did actually cast their votes in the last election. Sunderlal (P. W 4) stated in his examination-in-chief that the effect of the Ordinance was that after it was issued, the voters cast their votes in favour of Congress. However, in his cross-examination he stated that the Ordinance was issued after the election and the meetings of the villagers took place two or four days after the election and he further stated that in the meeting which took place, only fifteen persons were present. He also stated that he did not know how many of them were voters and how many were not. His cross-examination, therefore, shows that his evidence is entirely useless and cannot be relied on. He also stated that he did not know how many of them were voters and how many were not. His cross-examination, therefore, shows that his evidence is entirely useless and cannot be relied on. On the said evidence of the petitioner, even if the number of persons affected by the Ordinance is assumed to be 13000 or thereabout, it cannot be held as to what was the precise number of voters who were influenced by the Ordinance. 18.Issue No. 6 (d) – There is absolutely nothing to show that the issuing of the said Ordinance amounts to a corrupt practice. I hold that the said Ordinance in no sense amounts to a corrupt practice. 19.Issue No. 7 – The petition was filed on 10-4-1967. It was filed on the 47th day from the date of the election of the returned candidate, the date of election being 20-2-1967. 8th and 9th April 1967 were holidays. Excluding these days, the petition has been filed within 45 days from the date of election of the returned candidate as required by section 81(1) of the Representation of the People Act, 1951. The petition is therefore within time. 20. In the result, the petition fails and is dismissed with costs. Counsel’s fee Rs. 600. 21. After the order was placed on the table for perusal of the counsel, I was informed by both the learned counsel that Miscellaneous Petition No. 125 of 1967 (Upendralal Choudhary v. The State of M. P. and another) has been dismissed by the Constitution Bench yesterday, namely, on 13-9-1967. In that petition the petitioner had sought the relief that it may be declared that he was no longer in Government service and for direction restraining the respondents from proceeding with the departmental enquiry initiated against him. The dismissal of the said petition strengthens the conclusions which I have already reached in paragraph 10 of my judgment while deciding issue No. 3.