JUDGMENT : S.C. Mohapatra, J. - Petitioner was a candidate for the election held in March, 1985, to the Orissa Legislative Assembly from Jashipur Assembly Constituency in the district of Mayurbhanj. There were seven other candidates including the respondent contesting the election. The respondent having been declared elected, the petitioner has filed this application for declaring his election void on the ground that the respondent is disqualified for being chosen as a Member of the Legislative Assembly under Article 191(1) of the Constitution having held an office of profit under the State Government as the Headmaster of an aided educational institution. 2.The case of the petitioner, in short, is that the respondent was the Headmaster of Dhatikia M. E. School which is an aided educational institution governed under the Orissa Education Act, 1969 ( hereinafter referred to as the Act ) and was thus holding an office of profit under the State Government. The case of the respondent is that on acceptance of his resignation by the Managing Committee of the School he no longer held any office and as such be was not disqualified as alleged in the election petition and the Headmaster of an aided educational institution governed under the Act is not an office of profit held under the State Government. 3. The following Issues were framed : 1) Whether on the date of election, the respondent held the office of Headmaster of Dhatikia M. E. School ? 2) Whether office of Headmaster of an Aided Educational Institution is an "Office of Profit" under the State Government of Orissa ? 3 ) Whether the respondent had resigned from that office before the date of election ? 4 ) Whether on the date of election the respondent was disqualified to be chosen to fill the seat under the Constitution ? 5) Whether the election of the respondent is to be declared as void? Issue Nos. 1 and 3 relate to resignation of the respondent and issue Nos. 2 and 4 relate to the disqualification for holding an office of profit by the respondent. Accordingly, for convenience, issue Nos. 1 and 3 would be taken up together. 4. At the trial both parties decided not to adduce any oral evidence. Thirteen documents called for produce in the case have been marked as Exts. 1 to 13 on admission. 5. Accordingly, for convenience, issue Nos. 1 and 3 would be taken up together. 4. At the trial both parties decided not to adduce any oral evidence. Thirteen documents called for produce in the case have been marked as Exts. 1 to 13 on admission. 5. Perusal of the documents reveals that Dhatikia M. E. School is an aided educational institution. Respondent was the Headmaster of the said school. He was involved in many criminal cases and was arrested by the Police (See Ext. 10). The Director, by his order dated 30.7.1984 (Ext. 12) under Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institutions) Rules, 1974 (hereinafter called' the Conditions of Services Rules'), suspended the respondent for gross misconduct and negligence of duties pending drawal of disciplinary proceeding which was to take effect from 1. 8. 1984. The Director also initiated a proceeding u/s 11 of the Act for superseding the Managing Committee and issued notice on 2.8.1984 (Ext. 10). Five members of the Managing Committee Showed cause which were forwarded on 6. 9 1984 by the District Inspector of Schools (Ext. 6 series). While the respondent was continuing under suspension and the proceeding for super session of the Managing Committee was pending, on 4.2.1985 at about 2 p. m. the Managing Committee passed a resolution (Ext. 2) authorising the Secretary to move the authorities either to reinstate the respondent or to temporarily appoint some one else in his place since importing instructions to the students of the school was seriously impaired. Or: that day the respondent submitted his resignation (Ext. 4) with request for its early acceptance. The Secretary issued notice (Ext. 1) on the very day convening a meeting of the Managing Committee to be held on 5.2.1985, for discussing about the resignation of the respondent (Ext 4). On 5.2.1985, in the meeting of. the Managing Committee a resolution (Ext. 3) was passed accepting the resignation of the respondent. The Secretary relieved the respondent on 5.2.1985 (Ext. 5). On 16.2.1985 District Inspector of Schools sanctioned the subsistence allowance to be paid to the respondent for the period from 1.8.1984 to 30.7.1985 (Ext. 8) pursuant to the letter dated 22.1.1985 of the Director and the respondent submitted the non-engagement certificate for the period from 1.8.1984 to 31.1.1985 in his letter dated 22.2.1985 (Ext. 5). On 16.2.1985 District Inspector of Schools sanctioned the subsistence allowance to be paid to the respondent for the period from 1.8.1984 to 30.7.1985 (Ext. 8) pursuant to the letter dated 22.1.1985 of the Director and the respondent submitted the non-engagement certificate for the period from 1.8.1984 to 31.1.1985 in his letter dated 22.2.1985 (Ext. 7) for being able to get the subsistence allowance. It is seen from the office order of the Circle Inspector of Schools (Ext. 13) that on 25.3.1985, the Secretary of the Managing Committee submitted the resignation letter, relief order and a copy of the resolution with the letter (Ext. 9) to the District Inspector of Schools for approval of the acceptance of resignation. The Circle Inspector as per Ext. 13 disapproved the acceptance of the resignation of the respondent on 6.4.1985. That day the Director also passed the order (Ext. 11) suspending the Managing Committee. 6. The respondent filed his nomination for being a candidate for the Assembly Election on 4.2.1985 and the petitioner filed her nomination on 7.2.1985. No objection was taken at the time of scrutiny about the ineligibility of the respondent to be a candidate. After scrutiny, the eight candidates, whose nomination papers were not rejected, contested the elect on. Respondent was declared elected. ISSUE NOs. 1 & 3 7. The respondent was relieved on 5.2.1985 by the Secretary of the Managing Committee on the basis of the resolution of the Managing Committee accepting his letter of resignation dated 4.2.1985. It is to be considered transferred if the respondent continued to be the Headmaster of the Dhatikia M. E. School inspite of acceptance of his resignation by the Managing Committee and his being relieved from the post of Headmaster. 8. The word 'resign' has not been defined under the Act or the Conditions of Service Rules. One of the meanings as given in the Concise Oxford Dictionary of Current English, Fifth Edition is 'Relinquish'. Employment is a contract. Relinquishment of the employment, therefore would depend upon the terms of contract. A person can relinquish his employment by mere expression of his wish to the employer in the absence of any contract to the contrary. Where however the statutory rules provide for the manner of relinquishment of employment, the same has to be observed. 9. Headmaster of an M. E. School which is an aided educational institution is a teacher. A person can relinquish his employment by mere expression of his wish to the employer in the absence of any contract to the contrary. Where however the statutory rules provide for the manner of relinquishment of employment, the same has to be observed. 9. Headmaster of an M. E. School which is an aided educational institution is a teacher. Under Rule 5(3) of the Conditions of Service Rules, the Managing Committee of such school employs the teachers by making their appointments. Therefore, the Managing Committee is the employer. 10. Rule 18 of the conditions of service rules provided the manner of relinquishment of office by an employee. It reads : "An employee may after giving notice of at least one month relinquish his office whereupon his service shall stand terminated." The only manner of relinquishment of service by an employee of an aided educational institution is to give notice for one month and after one month the service automatically stands terminated. Relationship of employer and employee, therefore, continues till expiry of one month from the date of notice. Once the relinquishment is regulated by the statute by providing for the manner and fixing the time, the employer has no right to bring to an end the relationship otherwise or earlier. On expiry of the period of one month as provided under Rule 18, the termination of service being automatic, acceptance of the notice of relinquishment is not provided for in the rules. In absence of any statutory rule giving option to the employer to permit relinquishment earlier than the statutory period or to refuse such relinquishment acceptance of notice of relinquishment is redundant. There being no provision for resignation as such, the letter of resignation is to be treated to be a notice of relinquishment by the employee under Rule 13. Relieving the employee from duties by acceptance of the notice before the expiry of one month amounts to termination of service by the employer. Termination of service of a teacher of school requires prior approval by the Circle Inspector of Schools u/s 10-A of the Act. 11. Earlier to Section 10-A in the Act, services of teachers of aided educational institutions were being indiscriminately terminated by the employers. The State Government was not in a position to regulate the same inspite of various circulars to give protection to such teachers. 11. Earlier to Section 10-A in the Act, services of teachers of aided educational institutions were being indiscriminately terminated by the employers. The State Government was not in a position to regulate the same inspite of various circulars to give protection to such teachers. This Court by a judgment dated 3.5.1974 turned down the action of the State Government directing 'he reinstatement of a teacher removed from service by the Managing Committee-See ILR 1974 Cutt. 1232 (Managing Committee of Bhakta Madhu Biyapitha v. State of Orissa and others). Immediately thereafter, a private Bill was introduced in the State Legislative Assembly. (See-Orissa Gazette Extraordinary No. 1150 dated 12.7.1974). The object of the Bill was to give protection to the teacher from the date of coming into force of the Act on 15. 10. 1969, as the Rule., relating to the Conditions of Service were not finalised by then and the Act was not able to provide security of service to the teachers. The Bill was introduced because : "...On flimsy grounds services of hundreds of teachers have been terminated by the managements The Education Department issued some administrative orders to protect the services if teachers but in a recent judgment on Bhaktamadhu Bidyapith case, the Orissa High Court has made these executive orders ineffective...... An Official Bill was also introduced in the Assembly with the similar object in view. (See-Orissa Gazette Extra-ordinary No. 1094 dated 12.9.1974) The Official Bill provided for inserting Section 10-A and Section 24-A providing for giving protection to teachers whose services were terminated earlier without approval. The main protection was against termination without prior approval. 12. Section 10-A was the subject-matter of consideration in various decisions of this Court thereafter. In I. L. R. 1976 Cutt. 1047 ( Upendra Pradhan v. Secretary, Jagannath Prasad M. E. School and others ), it was held that a headmaster of M. E. School when on return from training was offered the post of a teacher other than that of Headmaster, it amounted to termination of the service from the post of Headmaster and would require prior approval. 1047 ( Upendra Pradhan v. Secretary, Jagannath Prasad M. E. School and others ), it was held that a headmaster of M. E. School when on return from training was offered the post of a teacher other than that of Headmaster, it amounted to termination of the service from the post of Headmaster and would require prior approval. In I. L. R. (1978 ) 2 Cutt 1 ( Duryodhan Tarai and another v. Managing Committee of Patrisahi M. E. School and others ) refusal to accept the joining report of a teacher of an aided Educational institution by the Managing Committee after return from study leave for training, was held to be termination. Termination is, thus, a word of wide import and would also bring within its sweep the relieving of Headmaster on the basis of a notice of relinquishment before expiry of the statutory period of one month. Section 10-A is a benevolent provision giving protection to teachers. A teacher giving notice has the right to withdraw the notice before the expiry of the period. In case the Managing Committee would have the power to relieve the teacher by accepting the notice earlier than the period provided in the statute, the right of the teacher to withdraw the notice becomes frustrated. In I. L. R. (1977) Cutt. 525 (Sarat Kumar Naik v. The Managing Committee and others ), it was held that after abolition of the post, the service of a teacher is automatically terminated and as such, it does not come within the purview of the word 'termination' requiring approval. In I. L. R. ( 1977 ) Cutt. 529 ( Managing Committee of Bhagabati Middle English School v. Baikunthanath Mohapatra others ) considering the case of appointment for a fixed term it was held : "...When a temporary post is created and an appointment is made to such post clearly indicating the two termini of service, it would be erroneous to hold that it is a case of termination. The public policy behind the statutory provision in the Amending Act does not warrant approval in such cases, because the mischief to weed out which the statutory provision came by way of amendment does not arise in a case of that type where the post is santioned for a term and the appointment runs for the entire term..." In the said case, it was observed that superannuation does not involve termination. It is, thus, clear that all cases of dislodging an employee from the office held by him amounts to termination except where the relationship of employee and employer comes to an end on the happening of a particular event on which either the employer or the employee has no control which does not amount to termination of the employment. Thus, the cession of relationship on account of the expiry of the period in a fixed term appointment or in case of superannuation on attaining the prescribed age, the cession of relationship does not amount to termination. Similarly, the statute declaring that on expiry of the period of notice the service stands terminated would not be a termination u/s 10-A of the Act requiring approval. When, however, the relationship is declared by the Managing Committee to have ceased by passing a resolution accepting the resignation and relieving him before the statutory period of one month under Rule 18, it would amount to termination requiring approval of the statutory authority u/s 10-A. 13. Before the Act came into force the provisions of the Orissa Education Code which were a collection of various executive instructions, were governing the service conditions. Article 287 (28) of the Orissa Education Code which applied to aided school under Article 312 thereof, dealt with resignation The relevant portion reads as follows : "Every teacher on appointment shall be required to undertake to give a month's notice before resigning his post and no teacher shall be discharged without such notice except in the case of gross misconduct or absence without leave ...". In view of Section 27 (4) of the Act, the provisions of the Orissa Education Code were deemed to be the Rules under the Act. On 1.4.1975 when the Conditions of Service Rules came into force the provisions of the Orissa Education Code in that respect lost their statutory force. In view of Section 27 (4) of the Act, the provisions of the Orissa Education Code were deemed to be the Rules under the Act. On 1.4.1975 when the Conditions of Service Rules came into force the provisions of the Orissa Education Code in that respect lost their statutory force. On 1.4.1975, when the Conditions of Service Rules came into force, the rule making authority consciously did not use the word 'resign' or 'resignation'. Instead of its used the word 'relinquish' in Sub-rule (2). At that time Rule 18 read as follows : "18. Termination of service after notice : (1) the service of a temporary employee may be terminated if the post he holds is considered superfluous : Provided that in every such case a notice of at least two months shall be given to the employee concerned. Provided further that the Selection Board shall determine whether or not a post is actually superfluous. (2) Any employee may, after giving notice of at least one month relinquish his post where upon his services shall stand terminated. This rule stood substituted on 25.10.1976 by the present Rule 18. It is not that the rule making authorities did not feel the importance of the word resign or 'resignation'. The words resignation' and 'resign' have been used in Section 18 of the Act. When the words 'resign' and resignation' have been used in the Act and have been consciously omitted in the Conditions of Service Rule although they had been used in Article 287(28) of the Orissa Education Code prior ' to the Conditions of Service Rules, the only inference would be that permission to relinquish the service of a teacher in an. Aided Educational Institution would come within the scope of termination. As has been held in I. L. R. (1978) Cutt. 187 (Jiban Sankhali Mohapatra v. Orissa University of Agriculture and Technology), tendering resignation is nothing but a notice to the employer to Terminate the service of the employee. 14. Mr. B. Mohanty, the learned counsel for the respondent relied upon a recent decision reported in Durga Prasad Sahoo Vs. S.D.O. and Election Officer and Others, where on 2. 1. 1984 the Headmaster of an aided M. E. School submitted his resignation which was accepted by the Managing Comrmittee on 4.1.1984 and it was held that the ineligibility to contest election to the Panchayat Samiti was removed. S.D.O. and Election Officer and Others, where on 2. 1. 1984 the Headmaster of an aided M. E. School submitted his resignation which was accepted by the Managing Comrmittee on 4.1.1984 and it was held that the ineligibility to contest election to the Panchayat Samiti was removed. However, the facts would clearly show that prior to tendering resignation, the Headmaster had given notice to the Managing Committee that he no longer wanted to continue in service. Therefore, the decision is distinguishable on facts. Mr. Mohanty relied upon the decision reported in I. L. R. (1978) 1 Cutt. 187 ( supra). The facts of the reported decision are completely different. In that case, notice had been given by a temporary servant for termination of service. There was no provision in Section 10-A for approval of the termination. Accordingly, the said decision is distinguishable. Mr. R. Mohanty further relied upon the decisions reported in 1978(2) S. L. R. 425 ( Delhi Electricity Supply Undertaking v. Tara Chand) of Delhi High Court Durga Prasanna Gupta Vs. State of West Bengal and Others, A. I. R. 1952 Raj. 53 (Shamsuddin v. The State of Rajsthan and others) 1970 S. L. T. 180 ( N. S. Subra-manyam v. State by Union of India,represented by S. P. E. Madras) and Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others. These decisions would not be of any assistance, since the question is to be considered in the context of the statutory rules in each case. 15. Therefore, on the aforesaid analysis, there is no room for doubt that the respondent continues to be the Headmaster of the Dhatikia M. E. School despite acceptance of his resignation by the Managing Committee since the time of one month had not expired and there is no prior approval u/s 10-A. issue Nos. 1 and 3 are accordingly answered in favour of the petitioner ISSUE NOs. 2 & 3 16. The term "Office of profit under the Government" used in Article 191(1)(a) of the Constitution has not been defined. It is an expression of wider import than a post held under the Government As has been held in Biharilal Dobray Vs. Roshan Lal Dobray, : " For holding an office of profit under Government a person need nor be in the service of the Government and there need not be any relationship or master and servant between them. It is an expression of wider import than a post held under the Government As has been held in Biharilal Dobray Vs. Roshan Lal Dobray, : " For holding an office of profit under Government a person need nor be in the service of the Government and there need not be any relationship or master and servant between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject-matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government although the Court has no doubt determined in each case whether the particular office involved in it was such an office or not having regard to its features." After considering the various decisions of the Supreme Court and the Scheme of the Utter Pradesh Basic Education Act, 1972, it was held : "... Even though the incorporation of a body corporate may suggest that the statute intended it to be a statutory corpotion independent of the Government it is not conclusive on the question whether it is really so independent. Sometimes the form may be that of a body corporate independent of the Government but in substance it may be just the alter ego of the Government itself. Sometimes the form may be that of a body corporate independent of the Government but in substance it may be just the alter ego of the Government itself. The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by the several other bodies or committees over it and their composition the degree of its dependence on Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of Government. ..." 17. As early as 1904 the system of Public Inspection in Orissa has been reflected in the Educational Policy of the Government which is described in Article 8 of the Orissa Education Code. It reads as follows : "...While relying largely on private enterprise Government endeavour in every branch of education by the establishment of the colleges and schools under their direct management to set the standard and undertake work to which private effort is not equal or for which it is not forthcoming. At the same time Government retain a general control by means of efficient inspection over all public educational institutions". While the system was continuing, the constitutional provision has been made to provide free and compulsory education for all children until they complete the age of fourteen years under Article 45 of our Constitution. To work out this Policy, primary schools in the State are taken charge by the Panchayat Samitis. However, lower secondary education in M. E. Schools and secondary education in High School or higher college education in the State are, still dependent on private enterprise though for the purpose of better, organisation and development of educational institutions, effective regulating control is provided for in the Act. While establishing and maintaining educational institutions the State Government is authorised under the Act to permit establishment of educational institutions by any person or body of persons as provided u/s 4, which envisages three categories of educational institutions as seen in Sub-Section (3) of the said section. While establishing and maintaining educational institutions the State Government is authorised under the Act to permit establishment of educational institutions by any person or body of persons as provided u/s 4, which envisages three categories of educational institutions as seen in Sub-Section (3) of the said section. When a person or body of persons desire to establish an educational institution for which they desire to receive aid, permission is required to be obtained u/s 4 (3)(B) When they do not desire any aid to be received, no permission is required to establish and maintain it. Such institutions only require recognition of the prescribed authority u/s 5 so that it can present its students to be candidates in the Examinations held by the statutory examining bodies as provided u/s 6. As has been held in a recent decision of this Court reported in Debendra Nanda Goswami and Others etc. Vs. State of Orissa and Others, . "..... it is open to any person or group of persons to establish a private educational institution and run the, same, but the management has to apply to the prescribed authority for recognition before presentation of candidates of students at the Examination conducted by the Board or University, as the case may be......." Section 7 of the Act regulates the Management by making a mandatory provision that every private educational institution which is a school shall have a Managing Committee following the rules prescribed. Aided educational institutions are one of the categories of private educational institutions. The regulatory control of the State is greater in case of such institutions than the case of other private institutions which do not receive aid. There is no compulsion in the Act or Rules to receive aid or for continuance of the same after receiving it. State Government has been authorised u/s 10 of the Act to provide for qualification, mode of recruitment, payment of salary and allowances and conduct of the teachers of the aided educational institutions. u/s 10-B to 10-D of the Act a common cadre of such teachers can be formed and State Government or its officers can transfer from one school to the other. In such a case, the State Government does not take up the responsibility of being the employer. The Managing Committee of the latter school becomes the Employer. u/s 10-B to 10-D of the Act a common cadre of such teachers can be formed and State Government or its officers can transfer from one school to the other. In such a case, the State Government does not take up the responsibility of being the employer. The Managing Committee of the latter school becomes the Employer. Under Rule 9 of the Rules, State Government has taken up the responsibility of directly paying the teachers, their salary and allowances. However, even in the conditions of Service Rules made, the State Government or its agents are not the appointing authority. It is the Managing Committee which appoints the teachers under Rules 5 and 8. The Rules relating to termination of Service by imposition of penalty is within the power of the Managing Committee. Only where the Managing Committee fails or neglects to take disciplinary action, the Director who is an officer of the State is authorised under Rule 21 to impose the penalty. The appeal against either termination or imposition of any penalty does not lie to the State Government. An independent tribunal constituted of a high ranked judicial officer over whom the High Court and not the State Government has control the appellate authority whose decision becomes final u/s 24-A, No sooner it is decided that the educational institutions would not continue to receive aid from the State Government, the regulatory control as above is lost. From the aforesaid discussion, it is clear that a Headmaster of an aided educational institution is appointed by the Managing Committee and the disciplinary action against him is taken by the Managing Committee. The termination of service of the Headmaster is also made by the Managing Committee. A Managing Committee of an aided educational institution can avoid the control of the State Government by not receiving the aid and this taking out the institution from that category to a private educational institution not receiving aid. The statute does not prohibit such a decision or action of the Managing Committee. A Managing Committee of an aided educational institution can avoid the control of the State Government by not receiving the aid and this taking out the institution from that category to a private educational institution not receiving aid. The statute does not prohibit such a decision or action of the Managing Committee. When the appointment is not made by the State Government or any of its officers and when termination of service is subject to the decision of a tribunal which is constituted of a high ranked judicial officer of the State not under the control of the State Government, which is final, the payment of salary or power of transfer cannot be of such weight to bring it within the dictum of the Supreme Court reported in Biharilal Dobray Vs. Roshan Lal Dobray, . 18. In Biharilal Dobray Vs. Roshan Lal Dobray, (Supra 4, Supreme Court was considering the case of the teacher of a basic school whose management was taken over by the statutory body created under the Uttar Predesh Legislation With the taking over the management, the employees of the school became the employees of the Board as provided in Section 9 of the U. P. Act. There is no scope for a basic school going out of the Board's control. Therefore, the decision is distinguishable on facts. 19. Administration of our republic is by election of representatives of the people. The constitutional provision under Article 191(1)(a) is to be interpreted in a manner in which the people can send a representative of their choice The field of representation is to be made wider so that the liberty of choosing a representative is not curtailed unless the specific expression excluding a category out of such scope is called out or the only irresistible constitutional interpretation would be to keep that category out of the scope of representing a constituency. 20. In view of the statutory provision, the respondent who was holding an office of profit cannot be said to be holding such an office under the State Government to attract the disqualification under Article 191(1)(a) of the Constitution. Issue Nos. 2 and 4 are, therefore, answered against the petitioner. ISSUE NO. 5 21. 20. In view of the statutory provision, the respondent who was holding an office of profit cannot be said to be holding such an office under the State Government to attract the disqualification under Article 191(1)(a) of the Constitution. Issue Nos. 2 and 4 are, therefore, answered against the petitioner. ISSUE NO. 5 21. In spite of my finding that the respondent was continuing to hold the post of Headmaster, which is an office of profit/the petitioner is not entitled to any relief in view of my finding that the post of Headmaster is not an office of profit under the State Government. This Issue is answered against the petitioner. 22. In the result, the electron petition is dismissed with costs. Hearing fee is assessed at Rs. 200/- (Rupees two hundred). Final Result : Dismissed