( 1 ) THIS Election Petition relates to a Reserved Constituency viz. , 48 schedule Castes Pavagada Legislative Assembly Constituency. In the 1972 general Elections, the petitioner and Respondents Nos. 2, 3, 4 and 5 were the contesting candidates from that Constituency to the Mysore State legislative Assembly. The nomination papers were filed on 8-2-1972 be-fore the Assistant Commissioner, Madhugiri, who was the Returning Officer. The scrutiny of. the nominations by him was on 9-2-1972. Oral objections to the nomination of the 2nd Respondent K. R. Thimarayappa were raised by the 4th Respondent Kenchappa, which the 1st Resoondent (Returning Officer) rejected. The Poll took place on 9-3-1972. The counting of votes and declaration of results was on 11-3-1972. The 2nd Respondent Thimmarayappa was declared as the successful candidate, he having secured 26,245 votes, and his closest rival the petitioner P. Anjanappa having secured 4853 votes, there thus being a large gap of 21,392 votes. ( 2 ) THE petitioner filed this Election Petition on 24-4-1972. He appeared by sri G. B. Raikar, Advocate. Respondent 1 appeared by Sri R. N. Byra Reddy, Advocate General. Respondent 2 appeared by Sri L. G. Havanur. Respondents 3, 4 and 5 remained exparte. ( 3 ) IT is prayed in the petition that the declaration of Respondent 2 as duly elected by Respondent 1 be declared null and void and that petitioner be declared duly elected to fill the seat. ( 4 ) ON the pleadings the following issues were settled on 17-7-1972:" I. Whether the second respondent (returned candidate) is not qualified to be chosen to fill the seat from Pavagada Constituency of the Mysore Legislative Assembly, reserved for schedulel castes, by reason of his being an elector only in Belgaum Assembly Constituency, where Bhovi or Waddar is not a scheduled caste? ii. Whether the second respondent is a permanent resident of pavagada Taluk or Belgaum City? iii. Whether the second respondent (returned candidate), if proved to be a native and a permanent resident of Kothur Village in pavagada Taluk in the State of Mysore, where Bhovi or Waddar are scheduled castes, is qualified to be chosen to fill the seat from the pavagada Assembly Constituency reserved for scheduled castes, notwithstanding his name not appearing in the voters list of that Constituency? iv. Whether at the material time the second respondent was art employee of the MSRTC. iv. Whether at the material time the second respondent was art employee of the MSRTC. , if so, he was a person holding an office of profit under the Government of Mysore, and as such, disqualified from being chosen as a member of the Mysore Legislative Assembly? v. To what relief, if any, is the petitioner entitled? " ( 5 ) FOR the petitioner ten witnesses, including himself (PW. 10), were examined, and Exs. P1 to P12 were marked. No witness was examined for the 1st Respondent. The 2nd Respondent examined himself as rw. 6 and five other witnesses (RWs. 1 to 5 ). Exs. Rl to R21 were marked for 1st Respondent. ( 6 ) FIVE points were formulated before me by petitioner's learned advocate Sri G. B. Raikar as below :" I. The 2nd Respondent on the date (8-2-1972) of his filing the nomination, and on the date (9-2-1972) of scrutiny of the nominations, and on the date (9-3-1972) of polling and until 12-8-1972 (the date, according to the petitioner, 2nd Respondent's resignation of his post was accepted), was holding the post of Electrical Superintendent in the office of Executive Engineer, Mysore State Road Transport Corporation (MSRTC), Hubli, which is an office of profit under the Government of Mysore and, as such, he was disqualified from being chosen and being a Member of the Mysore Legislative Assembly. II. The condition precedent for contesting an election to a Constituency reserved for scheduled castes is that the caste of the candidate must have been recognised ' as a scheduled caste in a Constituency in which his name is entered in the electoral roll. The fact that his caste is recognised as a scheduled caste in the Constituency in which he is contesting in the election is of no avail and, as such, the name of Respondent 2 being found in the electral roll of the (189) Belgaum. Assembly Constituency and he being a person, as mentioned in his nomination, as belonging to the Bhovi or Waddar community, which community is not recognised as a scheduled caste, in the area within that Constituency, and his name being not found in the (48 S. C.) pavagada Assembly Constituency and he having contested from the pavagada Constituency having no qualifications to contest therefrom, his election is liable to be declared as void. III. III. The question as to whether Respondent 2 was a resident of kothur Village in the Pavagada Constituency prior to 1972 cannot be gone into in the election petition when his name was registered in the electoral roll of the Belgaum Constituency on the basis that he was ordinarily resident in the Belgaum Constituency at the time his name was registered in the electoral roll of that Constituency, as it would amount to challenging the correctness or legality of the electoral roll of that Constituency. IV. As Respondent 2 is a Waddar by caste of the Belgaum area of the new Mysore State, he does not belong to the community of waddars of the old Mysore State prior to the Re-organisation of States on 1-11-1956 and, as such, the community of Waddars to which he belongs, is not synomymous with Bhovis of the old Mysore State and, as such, he does not belong to the schedule caste. V. As the Voters of the Pavagada Constituency at the time of voting knew that Respondent 2 had no qualifications to contest the election in that Constituency, and still voted for him, the entire votes polled in his favour should be treated as thrownaway votes, and the - petitioner having secured the highest number cf votes next to him, is entitled to be declared as elected. " ( 7 ) THE first point urged by Sri Raikar corresponds to Issue No. 4. Art. 191 (1) of the Constitution reads- A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of of a State- (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder; we are not now concerned with Cls. (b), (c), (d) and (e ). Sri Raikar's contention is that the MSRTC (Mysore State Road Transport Corporation) is a Department of Mysore State Government, and the second defendant being an employee of MSRTC at the material point of time is disqualified for being chosen as a member of the Mysore State Legislative assembly. ( 8 ) SOME background may immediately be stated with advantage. According to Cl. ( 8 ) SOME background may immediately be stated with advantage. According to Cl. (3) of S. 1 of The Road Transport Corporations Act, 1950 (64 of 1950) - (hereinafter called the RTC Act)-the Act shall come into force in a State on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf for such State and different dates may be appointed for different States. S. 3 of the RTC Act provides that the State Government may, by notification in the Official gazette, establish a Road Transport Corporation for the whole or any part of the State under such name as may be specified in the notification. Notification No. HD 3 (I) RTC 57 of tht Mysore Government, dated 25th july 1961 is as below :" In exercise of the powers conferred by S. 3 of the Road Transport corporations Act, 1950 (Central Act LXIV of 1950), the Government of Mysore hereby establish With effect from the 1st day of Aug. , 1961, a Road Transport Corporation called the Mysore State Road transport Corporation for tht whole of the State of Mysore except the area comprised within the limits of the City of Bangalore as denned in the City of Bangalore Municipal Corporation Act, 1949 (Mysore act LXII of 1949) and the area comprised within a distance of ten miles beyond the limits of the said City. " ( 9 ) PW. 8 Puttarangappa is the General Manager of the MSRTC. Cross-examined by the Advocate General, PW. 8 has said- " MSRTC is a statutory Corporation. The affairs of the MSRTC are managed by a Board under the Statute. The principal functionaries of the Board are the Chairman, Vice-Chairman and the General Manager. The Chairman is non-official. " cross-examined by Sri Havanur, PW. 8 has stated- " Mysore Government Road Transport Department (MGRTD) was a department of the Mysore State Government. It was incorporated in 1961 and became MSRTC. The employees of the MGRTD were absorbed into MSRTC and ceased to be Government Servants. MSRTC is not a department of the Government. It is a statutory body. " in his re-examination the witness has deposed-" I am a Government servant. I am working on deputation in msrtc. There are some other Government servants also working on deputation in. MSRTC. MGRTD was absorbed in the MSRTC. MSRTC is not a department of the Government. It is a statutory body. " in his re-examination the witness has deposed-" I am a Government servant. I am working on deputation in msrtc. There are some other Government servants also working on deputation in. MSRTC. MGRTD was absorbed in the MSRTC. That is how MGRTD ceased to be a Government department. Both the Central and State Governments have given financial assistance to the MSRTC. Private loans also have been floated by way of debentures. My appointment as a General Manager, on the basis of on other duty, has been placed at the disposal of the MSRTC by the home Department. The other Govt. servants are also on the same basis. There is no particular duration mentioned for my deputation. The Govt. can withdraw my services from MSRTC at any time they desire and transfer me anywhere," ( 10 ) THE second respondent Thimmarayappa (RW. 6) has said in chief-examination-" My first appointment was in the office of the Executive Engineer, msrtc at Bangalore. This was in March, 1960. Within a few days i was transferred to Hubli; after 15 months from Hubli I was transfeared to Belgaum. I served in Belgaum for 2 years and then I was transferred to Bangalore. After one year at Bangalore, I was transfered to Belgaum. I was in Belgaum for two years or two and half years. From Belgaum I was transferred to Hassan. For about twenty days I was in Hassan. From there I was transferred to Belgaum again. For about two years I was in Belgaum. Then on promotion I was transferred to Hubli, I remained there till I tendered my resignation. I submitted my resignation on 2-2-1972. It was accepted with effect from the same date. Bangalore and Hassan are in the area of the old mysore State. Ex. R17 dt. 28-6-1963 is the Order transferring me from Belgaum to Hassan. My job was purely temporary and non- prnsionable. My service conditions were governed by the MSRTC standing Orders. The MSRTC is not a part of the Government. "in his cross-examination for the petitioner. RW. 6 has said-" When I was appointed in 1960 in the Mysore Govt. Road Transport Dspt. (MGRTD), it was a Govt. Dept. I was not selected through the Public Service Commn. I was appointed on temporary basis. I was never confirmed. The MSRTC is not a part of the Government. "in his cross-examination for the petitioner. RW. 6 has said-" When I was appointed in 1960 in the Mysore Govt. Road Transport Dspt. (MGRTD), it was a Govt. Dept. I was not selected through the Public Service Commn. I was appointed on temporary basis. I was never confirmed. I was appointed as Assistant Electrical Superviser. This is seen at page 4 of my Service Book Ex. P7. At the bottom of page 6 of Ex,p7 the designation of my post is given as Asst. Electrical Supervisor, MSRTC, Sub-Division, Belgaum. The post is shown as permanent and substantive. Though the post is described as such, I was a temporary Asst. Electrical Supervisor in the post described as permanent and substantive. I am not able to point out from the Service Book Ex,p7 that I have throughout continued on a temporary basis. From page 4 onwards at the top of the Service Book ex. PT the heading is-'history of services of the Government Servant showing the changes in appointment, salary, place, etc. I submitted my letter of resignation on 2-2-1972. I do not know the date of its acceptance. The acceptance of my resignation was communicated to me by the original of the letter Ex. P10 (c) dt. 18-8-1972. " ( 11 ) PARAGRAPH 2 in the chief-examination of PW. 8 Puttarangappa may well be referred to here. He says-" The 2nd respondent Thimmarayappa submitted his resignation on 2nd February, 1972 as per Ex. P10 (a ). It was accepted on 14-4-1972 as per Ex. P10 (b ). It was communicated to him on 16-8-1972 as per ex. P10 (c ). His resignation could not be accepted immediately as there was a departmental inquiry against him and another case was under investigation. In the departmental inquiry against the 2nd respondent, the Enquiry Officer held that the charges framed against him were not proved. I therefore absolved him. "- cross-examined by Sri Havanur, this witness has' deposed- " The MSRTC operates throughout the State. The 2nd respondent was liable for transfer to any part of the State. " ( 12 ). Sri Raikar took me through most of the provisions of the RTC act. I therefore absolved him. "- cross-examined by Sri Havanur, this witness has' deposed- " The MSRTC operates throughout the State. The 2nd respondent was liable for transfer to any part of the State. " ( 12 ). Sri Raikar took me through most of the provisions of the RTC act. He took considerable pains to furnish a synopsis which I am setting out bodily below, with a few corrections of the clerical mistakes: (1) The MSRTC has been established by the State of Mysore by virtue of its powers under S. 3 of the RTC Act of 1950 (64 of 1950) by issue of Notification in the Official Gazette and therefore the Corporation is the creation of the Govenment. (2) The State Government has got the power to appoint and accept the resignation and to remove a member or Chairman of the Corporation by virtue of its power under Ss. 7 and 8 of the RTC Act of 1950. (3) The State Government is the appointing and dismissing authority of the General Manager who is the chief executive officer of the Corporation and he is a Government servant as per S. 14 of the RTC Act of 1950, and the other officers and servants of the Corporation are subordinate to the General Manager, who is a Government Servant as per Ss. 14 and 15 of the Act. (4) As per S. 17 the State Government has the power to appoint advisory councils. (5) Under Ss. 20 and 21 the Corporation has no independent powers without the permission of the State Government. (6) The entire finance is of the State Government and of the Central government as per Section 23. (7) As regards the issue of shares it is only the State Government which is the guarantor as per Section 25. (8) The Corporation has no independent power even to borrow money as per Section 26 of the Aet. (9) Even the interest is to be fixed by the State Government as per section 28. (10) Even as regards depreciation provisions as per S. 29, the Corporation is bound by the directions of the State Government as per that section. (11) Even as per S. 30 the Corporation is bound by the specifications of the State Government as contained therein. (12) Budget has to be approved by the State Government as per S. 32. (10) Even as regards depreciation provisions as per S. 29, the Corporation is bound by the directions of the State Government as per that section. (11) Even as per S. 30 the Corporation is bound by the specifications of the State Government as contained therein. (12) Budget has to be approved by the State Government as per S. 32. (13) Audit forms are to be prescribed by 'the State Government as per Section 33. (14) As per S. 33 (4), the audited and certified account has to be forwarded to the State Government and the State Government has to place the same before the State Legislature. (15) Under S. 34, the State Government may give directions and instructions relating to the recruitment, conditions of service and training of its employees and wages to. be paid to the employees of the Corporation. (16) Under S. 34 (2) the Corporation has no power to violate the directions and instructions given by the State Govenment under S. 34 (1) and therefore the State Government has got direct control over the employees of the Corporation regarding the recruitment and service conditions and wages to be paid. (17) As required under S. 35, a report has to be submitted to the state Government who in turn has to place the same before the State legislature. (18) Power to order inquiries is there with the Strate Government as per Section 36. (19) The State Govenment has got the power to control and supersede as per Sections 37 and 38. (20) The order of the Government is necessary for liquidation of the corporation. (21) As per S. 43, all (the officers and servants of the Corporation whether appointed by the Government or by the Corporation, are public servants within the meaning of S. 21 of the Indian Penal Code. (22) Rule making power is with the State Government. (23) Breach of any rule made by the Government is penal as per section 46. Sri Raikar lays particular emphasis on S. 34 (1) of the RTC Act and on the clause 'wages to be paid to the employees'. The preamble to that section, however, viz. , 'the Stale Government may, after consultation with the Corporation established by such Government' goes against him. if the MSRTC was a Department of the Government, the Government is not obliged to consult it. The preamble to that section, however, viz. , 'the Stale Government may, after consultation with the Corporation established by such Government' goes against him. if the MSRTC was a Department of the Government, the Government is not obliged to consult it. ( 13 ) I agree with the Advocate General that the MSRTC is not a department of the Mysore State Government. S. 4 of the RTC Act itself, which runs as below, makes this clear: " Every Corporation shall be a body corporate by the name notified under S. 3 having perpetual succession and a common seal, and shall by the said name sue and be sued. " since the State Government has high stakes involved, the RTC Act has provided severe curbs, fetters and brakes, with the Government being the monitor and having ample surveillance and superintendence, lest the corporation overrides its powers and misuses them. ( 14 ) AND, what is more, the evidence of the petitioner's own witness pw. 8 Puttarangappa, General Manager of the MSRTC. , stares him in the face. He has categorically stated that the MSRTC is not a department of the Government but a statutory body. The petitioner cannot derive succour from the fact that in the Service Book Ex. P7 the 2nd respondent has throughout been described, as the heading goes, as a Government servant. The simple explanation offered by Sri Havanur is that initially the 2nd respondent joined as a Government servant under the MGRTD which was later absorbed in the MSRTC. , and the Service Book was automatically continued without any changes of the headings or other columns in the printed matter. Sri Raikar, despite his herculian effort, has been unable to persuade me that the MSRTC is a department of the government. ( 15 ) SRI Raikar relied on the decision of the Supreme Court in gurugovinda Basu v. Sankari Prasad Ghosal, AIR. 1964 SC. 254. As rightly pointed out by the Advocate General, the facts and circumstances of that case were entirely different from the case on hand. The Advocate General placed before me a later ruling of the Supreme Court in d. R. Gurushanthappa v. Abdul Khuddus Anwar, AIR. 1969 SC. 744. which has extensively commented upon and distinguished the previous 1064 Supreme Court case. The Advocate General placed before me a later ruling of the Supreme Court in d. R. Gurushanthappa v. Abdul Khuddus Anwar, AIR. 1969 SC. 744. which has extensively commented upon and distinguished the previous 1064 Supreme Court case. I shall quote with considerable guidance, some passages in the latter decision of the Supreme court which are appropriate in the present controversy:. . . . Thus, the State Government had considerable control in appointment of Directors of the Company as well as in the appointment of the Managing Director who was to be appointed by the Governor from amongst the Directors nominated by him. The Governor was also entitled to appoint from amongst the nominated Directors a Chairman and vice-chairman of the Board of Directors. Even the Secretary of the Company had to be appointed by the Board of Directors after obtaining approval of the Governor. In respect of other employees of the Company, recruitment and service conditions had to be in accordance with the rules which may be prescribed by the Gover nor from time to time. When the concern was taken over from the government by the Company, the services of respondent 1 were not terminated and he was continued in the same post by the Company which he was holding when the concern was being run by the! government. There was no fresh contract entered into between him and the Company. On these facts, two alternative contentions were raised by Mr. Gupte to urge that respondent 1 was disqualified under art. 191 (1) (a) of the Constitution. The first argument was that resr pondent 1, when initially appointed to a post in the Mysore Iron and Steel works in 1936, was a Governnment servant and, even after that concern was 'taken over by the Company, he continued to be in the service of the mysore Government. In the alternative, the second contention was that, even if respondent 1 ceased to be a Government servant, he still continued to hold an office of profit under the Government of mysore though, technically, he was in the employment of the company. In the alternative, the second contention was that, even if respondent 1 ceased to be a Government servant, he still continued to hold an office of profit under the Government of mysore though, technically, he was in the employment of the company. So far as the first point is concerned, reliance is placed primarily on the circumstance that when the concern was taken over by the company from the Government, there were no specific agreements terminating the Government service of respondent 1, or bringing into existence a relationship of master and servant between the Company and respondent 1. That circumstance, by itself, cannot lead to the conclusion that respondent 1 continued to be in Government service. When the undertaking was taken over by the Company as a going concern, the employees. working in the undertaking were also taken over and since, in law, the Company has to be treated as an entity distinct and separate from the Government, the employees, as a result of the transfer of the undertaking, became employees of the Company and ceased to be employees of the Government. Finally, there is the circumstance that it is not shown that, after the undertaking was taken over by the Company, respondent 1 continued to hold a lien on any Government post. In fact, the post, which he was holding while the concern was being run by the Mysore Govt. , ceased to be a Government post on the transfer of the undertaking to the Company and became a post under the Company, so that respondent 1 ceased to be in Government service by continuing in that post. The first contention raised on behalf of the appellant, therefore, fails. On the second contention that, even if respondent 1 was not holding a government post, he must be held to be holding an office of profit under the Government, Mr. Gupte relied on the principles laid down by this Court in gurugovinda Basu v. Sanknri prasad Ghosal ( 1964 (4) SCR 311 ). The Court in that case brought out the distinction between an office of profit under the Government and a post in the service of the Government by stating:"we agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between ' the holder of an office of profit under the Government' and ' the holder of a post or service under the Government' ; see Arts. 309 and 314. The Constitution has also made a distinction between the ' holder of an office of profit under the Government' and ' the holder of an office of profit under a local of other authority subject to the control of Government'; see Articles 58 (2) and 66 (4)' ". The Court then proceeded to consider the earlier decision in the case of abdul Shakur v. Rikhab Chand , AIR. 1958 SC. 52. and held:" It is clear from the aforesaid observations that in Abdul Shakur's case ( 1958 SCR 387 ) (supra), the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government Revenues was not always a decisive factor. "after this reference to Abdul Shakur's case ( 1958 SCR 387 ) (supra), the Court proceeded to apply the principles to the facts of the case before it. In that case, the question was whether the appellant was holding an office of profit, under the Government of India. It was pointed out that the appointment of the appellant as also his continuance in office rested solely with the Government of India in respect of the two Companies for which he was employed as an Auditor. His remuneration was also fixed by the Government. The Court assumed for the purposes of the appeal that the two Companies were statutory bodies distinct from Government, but noted the fact that, at the same time 'they were Government Companies within the meaning of the indian Companies Act. Emphasis was laid on the circumstance that, in the performance of his functions, the appellant was controlled by the Comptroller and Auditor-General who himself was undoubtedly holder of an office of profit under the Government, though there were safeguards in the Constitution as to the tenure of his office and removability therefrom. Emphasis was laid on the circumstance that, in the performance of his functions, the appellant was controlled by the Comptroller and Auditor-General who himself was undoubtedly holder of an office of profit under the Government, though there were safeguards in the Constitution as to the tenure of his office and removability therefrom. Under Art. 148 of the Constitution, the Comptroller and Auditor-General was appointed by the President and he could be removed from office in like mariner and on the like grounds as a Judge of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General were to be such as might be determined by Parliament by law and, until they were so determined, they were to be as specified in the Second Schedule to the Constitution. Other provisions relating to the Comptroller and Auditor-General were also taken notice of and an inference was drawn from these provisions that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of india, being appointed by the President, and his administrative powers are such as may be prescribed by the rules made by the President,' subject to the provisions of the Constitution and of any law made by Parliament. The Court then held: ' Therefore, if we look at the master from the point of view of substance rather than of form, it appears to us that the appellant, as the holder of an office of profit in the two Government Companies, the durgapur Projects Ltd. , and the Hindustan Steel Ltd. , is really under the Government of India; he is removable from office by the government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President'. Thereafter, the Court proceeded to hold :" In view of these decisions, we cannot accede to the submission of mr. Thereafter, the Court proceeded to hold :" In view of these decisions, we cannot accede to the submission of mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist, and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. As we have said earlier, whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered. "mr. Gupte, from these views expressed by the Court, sought to draw the inference that the primary consideration for determining whether a person holds an office of profit under a Government is the amount of control which the Government exercises over that office. In the present case, he relied on the circumstance that all the shares of the Company are not owned by the Mysore Government, but the directors of the Company are appointed by the Government, a Minister was one of the first Directors of the Company; the appointment of the Secretary to the Company is subject to approval of the Government; and, even in the generral working of the Company, Government has the power to issue directions to the Directors which must be carried out by them. It was urged that respondent 1 was directly under the control of the Managing Director who is himself appointed by the government and may even be a 'lent officer' holding a permanent post under the Government. Respondent 1, thus, must be held to be working under the control of the Governnment exercised through the Managing Director. We are unable to accept the proposition that the mere fact that the Government had control over the Managing Director and other directors as well as the power of issuing directions relating to the working of the Company can lead to the inference that every employee of the Company is under the control of the Government. The power of appointment and dismissal of respondent 1 vested in the Managing director of the Company and not in the Government. Even the directions for the day-to-day work to be performed by respondent 1 could only be issued by the Managing Director of the Company and not by the Government. The indirect control of the Government which might arise because of the power of the Government to appoint the Managing director and to issue directions to the Company in its general working be under the control of the Government. The mere control of the government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the vice-President. The Company in the present case, no doubt did come under the control of the Government and respondent 1 was holding office of profit under the Company; but, in view of the distinction indicated above, it is clear that the disqualification laid down under art. The Company in the present case, no doubt did come under the control of the Government and respondent 1 was holding office of profit under the Company; but, in view of the distinction indicated above, it is clear that the disqualification laid down under art. 191 (1) (a) of the Constitution was not" intended to apply to the holder of such an office of profit: ( 16 ) THE above observations which are most apposite in the instant case, do not leave room for any doubt that the MSRTC is not a Department of the Government of the State of Mysore and that the 2nd respondent did not hold any office of profit under that Government ( 17 ) WHAT is more, it is in the evidence that the 2nd respondent submitted his resignation on 2-2-1972 and he ceased to work in the MSRTC from that date and his resignation was accepted from that date. Thus on the material dates which, according to Sri Raikar himself are 8-2-1972, the date of his filing the nominations 9-2-1972, when the scrutiny of the nominations took place, 9-3-1972 being the date of polling, and until 12-8-1972 when the resignation of his post was accepted, the 2nd respondent continued to be in the service of the MSRTC, cannot be countenanced. Issue No. 4 is therefore answered in the negative. ( 18 ) THE next important aspect is composite, and I shall deal with it accordingly. The 2nd respondent (RW. 6) has given his age as 36 years. In his examination-in-chief he has deposed thus :" I was born in Kothur village of Pavagada Taluk. My parents were permanent residents of that village. I have no brothers. I have an elder sister by name Mangamma. Her husband is Earappa. Both of them also live in Kothur village. My father Ramayya died about 18 or 20 years ago, in Kothur. My caste is called both Waddar and Bhovi. In the Constitution, (Scheduled Castes) Order, 1950 item No. 5 in Part VIII relating to old Mysore State is mentioned as Bhovi. Bhovi is also known as waddar. Bhovis essentially do stone work or mud work. I first studied in the primary school, Kothur. Ex. R11 is the admission extract from theprimary school, Kothur for the year 1942-43, pertaining to me. My caste is shown as Voddar. Bhovi is also known as waddar. Bhovis essentially do stone work or mud work. I first studied in the primary school, Kothur. Ex. R11 is the admission extract from theprimary school, Kothur for the year 1942-43, pertaining to me. My caste is shown as Voddar. Voddar is either spelt commencing with 'w' or 'v. Voddaru is plural of Vodda. In that Primary School, I studied up to the IV class and passed. Then I entered the Channakesayapura government Middle School which is about 2 miles away fro 'kothur. Ex. R13 is the extract from the Admission Register of that school. My caste is shown as 'vodda (Boyi)'. Boyi is the same as bharat In that school I studied until June 1952 and passed the VIII clases. Then I entered the Municipal High School, Pavagada and passed sslc in 1955. Ex. R12 is the extract from the Register of admmissions of that School. In Ex. R12 my caste is shown as 'vodda'. 'depressed' is also written ther. Throughout my school career I received all the privileges which were being given to the scheduled castes, such as Scholarship, free-ship etc. After I passed my SSLC I joined the DRR Polytechnic, at Devangere, in old Mysore State. It was a three years course. I passed in 1959. Ex. R 9 is the original Marks-Card, issued by the Secretary, Central board of Technical Examinations, Bangalore. The courses are conducted by government and the Marks Cards are also issued by the government. In Ex. R9 'd. C. ' appearing below my name within brackets stands for Depressed Classes. In the DRR Polytechnic also i got all the facilities such as scholarship and free-ship etc. given to scheduled castet. After finishing my polytechnic diploma course I joined the MSRTC service as Temporary. I was appointed from the 15 per cent quota reserved for members of the scheduled castes. Ex. P7 is my Service register. Exs. 14, R15 and R16 in it show that my race is given as 'bhovi (Wadda)', my residence is given as Kothur, and my home town or village is given as Kothur. . "on the above avernments no cross-examination for the petitioner has been directed. ( 19 ) THE following answers have been elicited in the cross-examination for the petitioner : " My father's house in Kothur Village was a hut. There were no separate rooms in it. . "on the above avernments no cross-examination for the petitioner has been directed. ( 19 ) THE following answers have been elicited in the cross-examination for the petitioner : " My father's house in Kothur Village was a hut. There were no separate rooms in it. There were apartments without doors such as a kitchen. Four or five persons could reside in it. That hut has now fallen. My elder sister and her husband were also living in that hut. They have two children. " cross-examined by the Advocate General appearing for tht 1st respondent, petitioner (PW. 10) says: " I do not know whether the 2nd respondent Thimmarayappa was residing in his own house in Kothur village at the time he filed his nomination. " ( 20 ) THE preponderance of evidence (both oral and documentary) discloses that the 2nd respondent (RW. 6) acquired two lands in Kothur village long ecome 1972 and that he has also put up a new residential building, adjoining, father's hut, with amounts borrowed from the Harijan- girijan Housing Building Co-operative Society, the membership of which is confined only one the Scheduled Castes and Scheduled Tribes. ( 21 ) WHAT from the above, and also from certain other facts which cannot be disputed, is that 2nd respondent belongs to the Voddar community of old Mysore State. He was born in Kothur village which is within the Pavagada Reserved Constituency. He had his early education there and later in other parts of the old Mysore State. That 'voddar' in the old Mysore State is synonymous with 'bhovi' is admitted by two of the petitioner's witnesses themselves, viz. , PW. 3 P. R. Doddeti Naik PW. 4 kodandpani and even by the petitioner (PW. 10 ). This matter need not delay us further because it is concluded by the decision of the Supreme court in Basavalingappa v. Munichinnappa AIR. 1965 SC. 1269, which has held that the 'voddar' caste of the Mysore State before the States Reorganisation in 1956 was the same as the 'bhovi' Caste mentioned in the Constitution (Scheduled Castes) order, 1950. ( 22 ) THUS the 2nd respondent (RW. 6) was a Voddar or Bhovi of the old Mysore State. He did not emigrate to Belgaum but was temporarily resident there in the exigencies, of service. ( 22 ) THUS the 2nd respondent (RW. 6) was a Voddar or Bhovi of the old Mysore State. He did not emigrate to Belgaum but was temporarily resident there in the exigencies, of service. We have, it from him, and this evidence has not been shaken in cross-examination, that he was often visiting kothur to supervise the cultivation of his two lands. ( 23 ) ADMITTEDLY, the 2nd respondent's name appears in the voters list of the Belgaum Constituency, and his name does not find a place in the voters list of the Pavagada Constituency. From this, however, the petitioner cannot derive advantage because of the provisions of S. 5 (a) of the representation of the People Act 1851, which reads-" A person shall not qualified to be chosen to fill a seat in the legislative Assembly of s Sate unless- (a) in the case of a reserved for the Scheduled Castes or for the Scheduled Tribes of the State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any assembly Constituency in that State. "agam, it ig admitted that Voddars in the Belgaum area (which came within the old Bombay State) are not members of the Scheduled Castes, having been denotified by a Presidential Order. Or this aspect Sri Raikar heavily leaned on the Supreme Court decision in kishorilal v. Raja Ram, AIR. 1972 SC. 598. particularly on paragraph 4 and the head-note As pointed out by the Advocate general, and 1 agree with him, that, that case can easily be distinguished on the facts and circumstances. Paragraph 4 cannot be divorced from the context, and for the ratio one has to look to paragraphs 2 (e), 11 and 12, and the head-note is rather misleading. ( 24 ) TO put it into a nut-shell, in that case the candidate was a permanet resident in a place from Datia District where his caste (Jatav) was not recognised as a Scheduled Caste and he contested from Bhander constituency where the Jatav caste was among the Scheduled Castes. Here the matters are entirely different. The 2nd respondent, a son of the soil of Kothur village, where Voddar or Bhovi is amongst the Scheduled castes, went in the exigencies of service, temporarily, to Belgaum and also acquired a wife there who was teaching in a school. Here the matters are entirely different. The 2nd respondent, a son of the soil of Kothur village, where Voddar or Bhovi is amongst the Scheduled castes, went in the exigencies of service, temporarily, to Belgaum and also acquired a wife there who was teaching in a school. At the material times he was ordinarily resident within the Pavagada Reserved Constituency. Sri Raikar strongly relied on one sentence in the cross-examination of rw. 6 "we were in that house until my wife came away to Kothur after resigning her job in April 1972"-and points out that at the relevant period he was not ordinarily resident in Kothur ullage but in Belgaum City. As rightly represented by Sri Havanur, that sentence cannot be read in a segregated manner and has to be taken with the entire evidence. Contesting for an election from the Pavagada Reserved Constituency, miles away from belagaum, one naturally would not expect the 2nd respondent to contest it in absentia. Physical presence, with his heart and soul wholly put into it, would be in 'this Constituency. What he meant by that sentence commented upon, is that he retained his house in Belgaum until his wife retired from being a teacher there. One point may be mentioned with advantage here, that in Belgaum the 2nd respondent shifted from house 5. to house and did not acquire any properties. His ancestral and personal interests lay only in Kothur village in Pavagada Constituency. ( 25 ) WHAT is mentioned above disposes of ,e question that the 2nd respondent was entitled to stand as a Voddar-cam-Bhovi belonging to the scheduled Castes in the Pavagada Reserved Constituency, and his standing for election from there cannot be assailed. Sri Havanur has placed before me the Supreme Court decision in l. Siddappa v. K. Chandappa, AIR. 1968 SC. 929. (6), which reads-" An election is something which cannot be readily set aside. There must be proof and convincing proof that a person is not properly chosen to fill a particular seat. Mere suspicion or surmise is not sufficient after the Returning Officer accepts a candidature and the candidate is chosen in the election. Once a community has gone to the polls and voters have exercised their franchise it is necessary for an election petitioner to show that the candidate is nqt entitled to the seat. Mere suspicion or surmise is not sufficient after the Returning Officer accepts a candidature and the candidate is chosen in the election. Once a community has gone to the polls and voters have exercised their franchise it is necessary for an election petitioner to show that the candidate is nqt entitled to the seat. In other words, the burden originally lies on the election petitioner and he cannot succeed unless he discharges that burden. "i may add here that the petitioner, who was beaten by a landslide majority, has failed to discharge the burden. ( 26 ) THAT disposes of Issue Nos. 11 and 3, which are answered against the petitioner. That also disposes of points Nos. 2, 3 and 4 urged for the petitioner. Issue No. 2 does not survive for consideration; so also point No. 5 of the petitioner. ( 27 ) ON Issue No. 5 the order is that the petition stands dismissed. The petitioner will pay the 1st and the 2nd respondent Rs. 1000 each, as costs. They will recover it from the amount of Rs. 2,000 sttending in Court deposit. --- *** --- .