ORDER B.D. Agarwal, J. - This is an election petition under Section 81(1) of the Representation of the People Act. 1951. 2. Election to the State Legislative Assembly Constituency No. 41 Gunnaur village Mirzapur district Baduan took place in early March, 1985. Last date for filing nominations was notified as February 6, 1985. February 7, 1985 was the date for scrutiny of the nomination papers. The candidature could he withdrawn up to February 9, 1985. The poll took place on March 2, 1985. This was followed by counting on 6th March, 1985. The respondent No. I was declared elected having secured 23006 votes the next highest number of votes was obtained by the respondent No. 2 being 20735. The margin thus was of 2271 votes. The respondent No. 8 who was also a candidate in the election got 2606 votes. The petitioner who is an elector in this constituency has filed this election petition on the ground that the result of the election, in so far as it concerns the returned candidate has been materially affected by the improper acceptance of the nomination of respondent No. 8. The respondent No. 8 was on the relevant date of nomination and continues to be a teacher in the L.T. Grade in the Babu Ram Singh Intermediate College, Baburala, Badaun, which according to the petitioner constitutes an office of profit held under the State Government, as such he was disqualified from seeking election of the State Legislative Assembly in view of Article 191 (1)(a) of the Constitution. The relief claimed in the petition is declaration that the election of the respondent No. 1 is void and also that the respondent No. 2 is the person duly elected. 3. The respondent No. 1 has put in contest to the petition. She refutes that the respondent No. 8 held an office of profit under the State Government or was on that account disqualified from seeking election or that the result relating to her has been materially affected due to nomination of the respondent No. 8 being accepted. 4. Upon pleadings the following issues were framed for decision :- 1. Whether Sri Mahavir Singh (respondent No. 8) a teacher in the Babu Ram Singh Intermediate College, Bahurala, Badaun held office of profit under the State Government on the date of his nomination for election to the Legislative Assembly in U.P.? 2. 4. Upon pleadings the following issues were framed for decision :- 1. Whether Sri Mahavir Singh (respondent No. 8) a teacher in the Babu Ram Singh Intermediate College, Bahurala, Badaun held office of profit under the State Government on the date of his nomination for election to the Legislative Assembly in U.P.? 2. Whether the result of the election in so far as it concerns the respondent No. 1 the returned candidate is materially affected on account of the nomination of the respondent No. 8 having been accepted? 3. Whether in the event of nomination of the respondent No. 8 not being accepted the respondent No. 2 would have been declared elected? 4. To what relief, if any, is the petitioner entitled. 5. Parties have not sought to adduce evidence oral or documentary in this case, except that the petitioner has filed copies of certain Government Orders issued from time to time relating to the conditions of service of teachers. 6. I have heard learned counsel for the parties. Findings Issue No. 1 7. Section 100(1)(d)(i) of the Representation of the People Act, 1951 relied upon for the petitioner enacts as one of grounds to set aside the election that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. Article 191 (1) of the Constitution laid down in so far as material that a person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly 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." 8. For a member of either House of Parliament there is similar provision contained in Article 102(1)(a) except that the reference therein is to declaration by law of Parliament. Article 58 specifies qualifications for election as President. Clause (2) thereof which is relevant in the context laid down. "A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments." 9. Clause (2) thereof which is relevant in the context laid down. "A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments." 9. Analogous provision is contained in Article 66(4) in relation to the election of Vice-President. 10. Suffice it may to note at this stage that while in case of a membership of State Legislature, or, of Parliament for that matter the disqualification arises in the event of holding an office of profit under the Government in relation to the President/Vice President, the area of disqualification is much wider, embracing as it also does any office of profit under any local or other authority subject to the control of Government a feature conspicuous by its absence in regard to the membership of the State Legislature, Admittedly, there is no law of the State thus far providing that an office such as we are concerned with in the instant case does not disqualify its holder. 11. Controversy does not exist on the point that in the present there is an office which exists independently of the respondent No. 8 filling in it; it is a position or place,to which certain duties are assigned : Mahadeo v. Shantibhai, (1968) 40 Ele LR 81 (SC); Smt. Kanta Kathuria v. Nanak Chand Sharma, AIR 1970 SC 694 . To this office is attached pecuniary gain in the form of fixed payment regularly obtainable as remuneration the quantum whereof is immaterial for these purposes and that constitutes the `profit' : Ravanna Subanna v. G. S. Kagerappa, AIR 1954 SC 653 : Karbhari Bhimaji Rohamare v. Shankar Deo Genuji Kolha, AIR 1975 SC 575 Divya Prakash v. Kulter Chand Rana, AIR 1975 SC 1067 . 12. The crux of the dispute is whether the office of profit in question in held under the State Government within the meaning of Article 191(1)(a) of the Constitution. The law is settled 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 law is settled 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 basic stand-point is to prevent conflict between interest and duty which would otherwise inevitably arise and to prevent the member concerned from being exposed to the temptation or even to semblance of temptation. In Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 the test was thus formulated :- "The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. 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 payment from out of Government revenues are Important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor." 13. This was reiterated in Gurugovinda Basu v. Sankari Pd. Ghoshal, AIR 1964 SC 254 , D. R. Gurushantappa v. Abdul Khuddus Anwar, AIR 1969 SC 744 , Both took the view that a payment of remuneration not from public revenue is a neutral factor. The various factors need not co-exist. The power to appoint, direct and remove, to regulate and discipline may be good indicia but not decisive. as pointed out in D. R. Gurushantappa (supra), (See also Shivamurthy Swami Inamdar v. Agedi Sangamine. Andanppa, (1971) 3 SCC 870 , Observed thus, the Supreme Court in Madhukar G.E. Pankakar v. Jaswant Chobbiladas Rajani, (1977) 1 SCC 70 at page 87 : AIR 1976 SC 2283 at P. 2296 : "The core question that comes to the fore from the survey of the panorama of case-law is as to when we can designate a person gainfully engaged in some work having a nexus with Government as the holder of an office of profit under Government in the setting of disqualification for candidature for municipal or like elections. The holding of an office denotes an office and cannot its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce. Certain aspects appear to be elementary. The holding of an office denotes an office and cannot its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce. Certain aspects appear to be elementary. For holding an office of profit under Government one need not be in the service of Government and there need he no relationship of master and servant (Gurugovinda). Similarly, we have to look at the substance, not the form. Thirdly, all the several factors stressed by this Court, as determinative of the holding of an `office' under Government, need not be conjointly present. The critical circumstances not the total factors, prove decisive. A practical view, not pedantic basket of tests, should be guide in arriving at a sensible conclusion." 14. Allied to this is the other aspect of the matter hinted at the outset but which needs close consideration in view of its distinctive importance to wit, that unlike the case of the President and the Vice President of the Union no disqualification arises in case of membership of the State Legislature on account of holding an office of profit under a local or other authority under the control of Government. In Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 (supra), the appellant was appointed by the administrator of the Durgah as manager of a school run by a committee of Management formed under the Durgah Act, 1955. It was contended for the respondent in that case that the Government of India had the power to appoint and remove members of the committee of management as also the power to appoint the administrator in consultation with the committee, therefore, the appellant was holding office under the Government of India. This contention was repelled, the Supreme Court pointed out the distinction between "the holder of an office of profit under the Government" and the holder of an office of profit under some other authority subject to the control of Government. It was observed :- "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. It was observed :- "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the committee or the members of the committee are removable by the Government of India or the committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenue of India. 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 payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test. 15. Sri A. Khare learned counsel appearing for the petitioner, who argued the case with great ability and industry, drew reference to Gurugobinda ( AIR 1964 SC 254 ) (supra) and urged that this is in his favour. I find no difference on principle laid therein. Under consideration therein was the case of an auditor appointed under section 619(2) Companies Act, 1956 in a Government Company whereof 100% shares were held by the Central Government. The appointment of the appellant rested solely with the Central Government and so also his removal from office. In the performance of his functions an auditor in the appellants' position is controlled by the Comptroller and Auditor General who himself, it was observed, is the holder of an office of profit under the Central Government. The appointment of the appellant rested solely with the Central Government and so also his removal from office. In the performance of his functions an auditor in the appellants' position is controlled by the Comptroller and Auditor General who himself, it was observed, is the holder of an office of profit under the Central Government. It was in face of such pervasive control in relation to an appointee of Government in a Central Government undertaking that the appellant was held covered under Article 102(1)(a) of the Constitution observing that "where the several elements, the power to appoint the power to dismiss, the power to control and give direction 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". That was precisely such a case, and as we shall see later, this does not avail the petitioner in the present. 16. In D.R. Gurushantappa v. Abdul Khuddus Anwar, AIR 1969 SC 744 the Supreme Court considered whether a candidate who on the date of scrutiny of the nomination papers was employed in a company owned by the Government was disqualified under Articles 102(1)(a) and 191(1)(a) of the Constitution. After discussing Gurugovinda Basu ( AIR 1964 SC 254 and Abdul Shakur, AIR 1958 SC 52 (supra), the conclusion reached was that the mere fact that the Government had control over the Managing Director and other Directors as well as the power of issuing direction relating to the working of the company would not lead to the inference that every employee of the company was under the control of the Government. The principle enunciated, as appearing in para 11 cited for the respondent by Sri S.N. Misra assisted by Sri K. N. Tripathy arguing with dexterity and brevity is as follows : "Thus, in the case of election as President or Vice President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Government and not directly under any of the Government. This clearly indicates that in the case of eligibility for election as a member of Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority he 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 the officer from being candidates 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 No. 1 was holding an office of profit under the Company but in view of the distinction indicated above, it is clear that the disqualification laid down under Article 191(1)(a) of the Constitution was not intended to apply to the holder of such an office of profit." 17. The question arose in Madhukar G.E. Pankakar v. Jaswant Chhobildas Rajani, AIR 1976 SC 2283 (supra) in relation to the appellant working as a panel doctor appointed under the Employees' State Insurance Scheme as to whether he held office of profit under the State Government. This was answered in the negative emphasising that indirect control, though real, is insufficient. The question arose in Madhukar G.E. Pankakar v. Jaswant Chhobildas Rajani, AIR 1976 SC 2283 (supra) in relation to the appellant working as a panel doctor appointed under the Employees' State Insurance Scheme as to whether he held office of profit under the State Government. This was answered in the negative emphasising that indirect control, though real, is insufficient. Krishna Iyer J. speaking for the Division Bench observed- "In our case, Government does have partly direct and partly indirect, control but the conclusion is not inevitable because the doctor is put in the list not by Government directly but through a prescribed process where the Surgeon General has a presiding place. How proximate or remote is the subjection of the doctor to the control of Government to bring him under Government is the true issue. Gurushantappa ( AIR 1969 SC 744 ) has highlighted this fact of the question. Indirect control, though real, is insufficient, flows from the ratio of Abdul Shakur ( AIR 1958 SC 52 ) The appellant as elaborated by Ray, J. (as he then was) in the Calcutta case: was not a servant of Government, but a private practitioner, was not appointed directly by Government, but by an officer of Government on the recommendation of a committee, was paid not necessarily out of Government revenue and the control over him in the scheme was vested not in Government but in an Administrative Medical Officer and Director whose position is not qua Government servant but creatures of statutory rules. The ultimate power to remove him did lie in Government even as he enjoyed the power to withdraw from the panel. The mode of medical treatment was beyond Government's Control and the clinic was a private one. In sum, it is fair to hold that the insurance medical practitioner is not a free lancer but subject to duties, obligations, control and rates of remuneration under the overall supervision and power of Government. The mode of medical treatment was beyond Government's Control and the clinic was a private one. In sum, it is fair to hold that the insurance medical practitioner is not a free lancer but subject to duties, obligations, control and rates of remuneration under the overall supervision and power of Government. While the verdict on being under the Government is a perilous exercise in judicial brinkmanship, especially, where the pros and cons are evenly balanced, the ruling in Kanta which binds us and the recondite possibility of conflict of duty and interest for a Municipal president who is an insurance medical practitioner under an arrangement with Government induce us to hold that though the line is fine, the appellant is not functioning under the Government in the plenary sense implied in electoral disqualification. After all, the means, i.e. the ban on candidature, must have a substantial link with the end viz. the possible misuse of position as insurance medical practitioner in doing his duties as Municipal President." 18. The Supreme Court considered this aspect over again recently in Ashok Kumar Bhattacharryya v. Ajay Biswas, (1985) 1 SCC 1 51 : AIR 1985 SC 211 in which the issue raised was whether an Accountant-in-charge of the Agartala Municipality held an office of profit within the meaning of Article 102(1)(a) of the Constitution. It was found that at the relevant time the respondent held an office of profit under a local municipality. The appointment of person to the category of post held by respondent No. 1 was to be made by the Commissioner of Municipality but this was subject to the confirmation by the State Government. He could be removed by the Commissioners again subject to the sanction of the Government. He was paid out of the municipal funds which the Municipality was competent to raise. The finding was that though Government exercised certain amount of control and supervision, the respondent was not an employee of the Government nor was he required to perform governmental functions for the Government. He was paid out of the municipal funds which the Municipality was competent to raise. The finding was that though Government exercised certain amount of control and supervision, the respondent was not an employee of the Government nor was he required to perform governmental functions for the Government. Discussing the case of Gurugobinda, AIR 1964 SC 254 , Abdul Shakur, AIR 1958 SC 52 , D.R. Gurushantappa AIR 1969 SC 744 , Madhukar, G.E. Pankakar, AIR 1976 SC 2283 , their Lordships laid down that "The true principle behind this provision in Article 102(l)(a) is that there should not be any conflict between the duties and the interest of an elected member. Government controls various activities in various spheres and in various measures. But to judge whether employees of any authority or local authorities under the control of Government become Government employees or not or holders of office of profit under the Government, measure and nature of control must be judged in the light of the facts and circumstances in each case so as to avoid any possible conflict between personal interests and duties. This position was further examined in the case of Surya Kant Roy v. Imamul Hai Khan, (1975) 2 SCR 909 at page 911 : AIR 1975 SC 1053 at p. 1054 as follows (1975) 1 SCC 531 at p. 533 para 6 : AIR 1975 SC 1053 at p. 1054. There under Bihar and Orissa Mining Settlement Act, 1920, a Board called the Mines Board of Health maybe established to provide for the control and sanitation of any area within which the persons employed in a mine reside and for the prevention therein of the outbreak and spread of epidemic diseases. After analysing the facts of that case, this Court held that the mere fact that the candidate was appointed Chairman of the Board by State Government would not make him a person holding an office of profit under the State Government. There the Supreme Court referred to the decision in the case of Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, 1970-3 SCC 870, This Court in Surya Kant Roy v. Imamul Hai Khan observed, (1975) 2 SCR 909 at page 911: ( AIR 1975 SC 1053 at p. 1054) as follows: (11975) 1 SCC 531 at p. 533, para 6 : AIR 1975 SC 1053 at p. 1054. Here again it is to be pointed out that the Government does not pay the remuneration nor does the holder perform his functions for the Government. To hold otherwise would be to hold that local bodies like Municipal Councils perform their functions for the Government though in one sense the functions they perform are governmental functions." And in para 21 it was pointed out:-. "for determination of the question whether a person holds an office under the Government each case must be measured and judged in the light of the relevant provision sand the sections and having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the provisions of which have been set out hereinbefore, we are of the opinion that the Government does not control officers like respondent 1 and that he continues to be an employee of the Municipality though his appointment is subject to the confirmation by the Government. He does not cease to be an employee of the Municipality. Local Authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases employees of Local Authorities subject to the control of Government. holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) of the Constitution and to extend disqualification under Article 102(1)(a) to-an extent not warranted by the language of article. 19. The governing criteria has thus been held to be the degree of control the Government has over the concerned authority, the extent of control is the measure. The composition of the authority is relevant: the degree of dependence on Government, for its functional aspect and its financial needs ought be looked into as also whether the body is discharging important governmental function. This would depend considerably on the facts and circumstances of each case. The person concerned need not be placed directly under the State Government it may sometimes be that the form is of a body corporate independent of the Government but in substance it may be just the alter ego of the Government itself. This would depend considerably on the facts and circumstances of each case. The person concerned need not be placed directly under the State Government it may sometimes be that the form is of a body corporate independent of the Government but in substance it may be just the alter ego of the Government itself. The submission of Shri Mishra that the concept of instrumentality is relevant for purposes of the enforcement of the Fundamental Rights or giving effect to the Directive Principles of State Policy and for the exercise of the writ jurisdiction, but not in relation to Article 191(1)(a) or 102(1)(a) for that matter, may not be acceded to. It is true that these Articles do not refer in terms to local or other authority as is done in Article 58(2) or 66(4) but, if the control of the authority is in form alone and not deep or pervasive, and the extent or measure of Government control is preponderating it would amount virtually as of the State Government itself. In Agartala Municipality, AIR 1985 SC 211 also there is recognition given to the fact that the term `office of profit under the Government' used in clause in Article 191(1)(a) is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. "The measure of control by the Government over a Local Authority should be judged in order to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the elected bodies." 20. Sri Khare contends that in substance though not in form the respondent holds the office under an instrumentality of the State Government and hence this be taken for all practical purposes as being under the State Government. It is not controverted that the committee of management envisaged under the Intermediate Education Act, 1921 pertaining to a private recognised and Government aided educational institution does not have the status of a statutory body. That indeed stands concluded by the decisions of the Supreme Court in the cases of Vaish Degree College, (1976) 2 SCC 58 : AIR 1976 SC 888 , Arya Vidya Sabha v. Krishna Kumar Srivastava, AIR 1976 SC 1073 , Smt. J. Tiwari, 1981 UP LBEC 34 : 1980 All LJ 1070 (SC). That indeed stands concluded by the decisions of the Supreme Court in the cases of Vaish Degree College, (1976) 2 SCC 58 : AIR 1976 SC 888 , Arya Vidya Sabha v. Krishna Kumar Srivastava, AIR 1976 SC 1073 , Smt. J. Tiwari, 1981 UP LBEC 34 : 1980 All LJ 1070 (SC). A Full Bench of this Court was of the view in Aley Ahmad Abidi v. Dist. Inspector Of Schools, AIR 1977 All 539 that a recognised Intermediate College which is required by S. 16-A to have a scheme of administration cannot by any stretch of imagination be regarded as a statutory body. The discussion 1986 All. L. J./33 V (1) on the subject in Agarwal Diagambar Jain Samiti v. Badri Pd. Srivastava, 1984 Ed Cases 154 : 1984 Lab IC 1591 (All) is also apposite. The submission made by Sri Khare that though not a statutory body, the committee of management be treated an instrumentality of the State Government is, in my view, too specious to be accepted. He seeks to derive support for this argument from the pronouncement of the Supreme Court in Rajasthan State Electricity Board, AIR 1967 SC 1857 ; Sukhdev Singh. (1975) 1 SCC 421 : AIR 1975 SC 1331 International Airport Authority, (1979) 3 SCC 489 : AIR 1979 SC 1628 , Ajay Hasia, (1981) 1 SCC 122 : AIR 1981 SC 487 which in reality do not assist in the facts and circumstances hereof. In International Airport Authority addressing to the question how to determine whether a corporation is acting as an instrumentality or agency of the Government the Supreme Court proceeded to indicate the different tests, apart from ownership of the entire share capital:- " ....if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.......... It may, therefore, be possible to say that where the financial assistance of the State is so much as to meat almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character..... It may, therefore, be possible to say that where the financial assistance of the State is so much as to meat almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character..... But "a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action. Vide Sukhdev v. Bhagatram So also the existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation's ties to the State............" There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must held to a conception of state action where public functions are being performed. Vide Arthur S. Miller: The constitutional Law of the "Security State.......... It may be noted that besides the so-called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to Governmental functions, it would be relevant factor in classifying the corporation as an instrumentality or agency or Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram, AIR 1975 SC 1331 , where the learned Judge said that 'institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed Government agencies. Activities which are too fundamental to the society are by definition too important not to be considered Government functions." 21. Activities which are too fundamental to the society are by definition too important not to be considered Government functions." 21. With reference to the functional test, the Supreme Court laid down :- the decisions show that even this test of public or governmental character of the functions is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non- governmental functions, perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laisse faire is an outmoded concept and Herbert Spencer's social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. (Methew, J.) Sukhdev v. Bhagatram, AIR 1975 SC 1331 , But the public nature of the function, if impregnated with governmental character or "tied or entwined with government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference." 22. The observations were approved subsequently in Ajay Hasia, AIR 1981 SC 487 with the comment that test are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing `the necessity of a wide meaning to be placed on the expression `other authorities' it must be realised that "it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression." A wide enlargement of the meaning, it was added, must be tempered by a wide limitation. The tests were summarised under in Ajay Hasia "(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. The tests were summarised under in Ajay Hasia "(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (1979-3 SCC 489 at p. 507) : ( AIR 1979 SC 1628 at p. 1638) (para 14). (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508), : (at P. 1639 of AIR) (para 15). (3) It may also be a relevant factor - whether the corporation enjoys monopoly status which is State conferred or State protected (SCC p. 508) : (at p. 1639 of AIR) (para 15). (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508) : (at p. 1640 of AIR) (Para 15). (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC P. 509) : (at p. 1640 of AIR) (para 16) (6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or a agency of Government." 23. The educational institution in the present is run through a committee of management constituted by a society which is incorporated under the Societies Registration Act, 1860. There is no question of holding a share capital by Government nor does the society or the Committee have State conferred or State protected monopoly status. There is substance in the contention that the function performed by it is of great public importance and partakes the character of governmental function. Education is indisputably basis to the realisation of the goals set out in the Preamble to the Constitution. One of the cherished objects is to secure to all its' citizens the liberty of thought, expression, belief, faith and worship. Nothing provokes and stimulates thought and expression in people more than education. Education is indisputably basis to the realisation of the goals set out in the Preamble to the Constitution. One of the cherished objects is to secure to all its' citizens the liberty of thought, expression, belief, faith and worship. Nothing provokes and stimulates thought and expression in people more than education. That the welfare State as ours postulates that the State must try its best to make effective provisions to secure education for its citizens depending on its capacity and the constraints of development hardly admits of two opinions. Article 41 of the Directive Principles of State Policy envisages this plainly; promotion of educational and economic interest 'of the Scheduled Castes, Scheduled Tribes and other weaker sections is a special responsibility entrusted to the State (Article 46). In Re : Kerala Education Bill, AIR 1958 SC 956 , Article 45 enjoins upon the State to endeavour to provide within a specified period for fee and compulsory education for all children until they complete the age of fourteen years. I am not impressed by the argument of Sri Mishra that confined as Article 45 is to the imparting of basic education this in any manner erodes against the mandate contained in Articles 41 and 46. To the extent basic education is concerned the provision is special, best the rest are nonetheless fundamental in the governance of the country-creating obligations or duties binding on the State. But from this the court cannot jump to the conclusion that the committee of management or the society creating it is an instrumentality or agency of the State. Imparting of education may be carried out as well by a private body as an object of charity, social welfare or otherwise. In International Airport Authority, AIR 1979 SC 1628 endorsed by Ajay Hasia, AIR 1981 SC 487 , we have the significant note of caution appended, as pointed above, that the range of governmental activity is broad and varied and merely because an activity may by such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be instrumentality or agency of Government by reason of carrying on of such activity. The public nature of the function assumes significance in this respect if impregnated with governmental character or "tied or entwined with government" or fortified by some other additional factor see also Master Vishau Kapoor v. Council of India School Certificate Examination, AIR 1985 Delhi 142 (FB). 24. Under the scheme of the Intermediate Education Act, it is incumbent upon the society running an institution to formulate a scheme of Administration which must provide, inter alia, for the constitution 'of a committee of management vested with authority to manage and conduct the affairs of the institution' (Section 16-A (1)). The expression 'vest' is of fluid or flexible content, but even in limited sense depending on the context it may bear the sense of conferring superintendence, management or control Maharaj Singh v. State of U.P., (1977) 1 SCC 155 : AIR 1976 SC 2602 , The Committee is composed of persons elected by the general body of the society from among its members besides the Head of the institution and representatives of teachers, the term of the committee is governed by the society's rules and regulations; it remains liable to be dethroned on motion of no confidence. The Scheme is no doubt subject to Director's approval and in the event of dispute with respect to the management Deputy Director of Education is empowered to determine as to who is in actual control of its affairs (vide 16-A (5)/(7)) but then all this is with the object to promote smooth running of the institution by or at the hands of the management in terms of the Scheme, Section 16-CC inserted recently by the U. P. Act I of 1981 mandates that the Scheme of Administration in relation to any institution even if recognised before the commencement of (Amendment) Act shall not be inconsistent with the provisions laid down in the Third Schedule. The Schedule enjoins that every scheme of Administration shall- "(1) provide for proper and effective functioning of the Committee of Management; (2) provide for the procedure for constituting the Committee of Management of periodical elections; (3) provide for the qualifications and disqualifications of the members and office bearers of the Committee of Management and the term of their offices; Provided that no such Scheme shall contain provisions creating monopoly in favour of any particular person, caste, creed or family, (4) provide for the procedure of calling meetings and the conduct of business at such meetings; (5) provide that all the decisions shall be taken by the Committee of Management and powers of delegation, if any, shall be limited and clearly defined; (6) ensure that the powers and duties of the Committee of Management and its office- bearers are clearly defined; (7) provide for the maintenance and security of property belonging to the institution and also for the utilisation of its funds and for the regular checking and auditing of accounts." 25. It is rightly pointed by Sri Mishra that the State Government can neither impose a person in the Committee of Management nor can it remove any one from office. 26. In view of Regulation 9 (Chapter 1) under this Act, the Headmaster or the Principal shall be responsible to the Committee of Management through the Manager for the due discharge of his duties and powers. In financial and other matters referred to in Regulation 11, he shall follow the directions of the management. Powers, duties and functions of the Committee of Management include, as per Regulation 13. "(1) appointment, confirmation, promotion permission to cross efficiency bar, suspension and punishment (including removal and dismissal) of Headmaster, Principal, teacher, matron, clerk or librarian in accordance with the provisions of the Act and the Regulations. (ii) To decide appeals against entries made in character rolls of employees by the Head/Manager of the institution. (iii) grant of all leave admissible to the employees of the institution except where such power vests in the Headmaster or Principal. (iv) Control and management of all moneys, securities, property and endowments of the institution, excluding the Boys' Funds and taking of necessary measures for their safe custody, investment, repairs, maintenance and legal protection. (v) Ensuring proper utilisation of maintenance and development grants and reimbursements received from Government. (iv) Control and management of all moneys, securities, property and endowments of the institution, excluding the Boys' Funds and taking of necessary measures for their safe custody, investment, repairs, maintenance and legal protection. (v) Ensuring proper utilisation of maintenance and development grants and reimbursements received from Government. (vi) Receiving all incomes (excepting stipends, scholarship and Boys' Funds) subscriptions, donations, gifts, dividends interest, grants etc. for the institution and meeting financial obligations arising out of its duties and functions." 27. The manager is required to prepare and maintain the seniority list showing therein the date from which a teacher is entitled to count his seniority (Regulation 4). Regulation 3 (Chapter II) gives the provisions according to which the seniority list of teachers is to be prepared. The Regulations, it was urged for the petitioner, are made by the Board of High School and Intermediate Education as per section 15 and with the introduction of section 16 by the U. P. Act 26 of 1975 this can only be with the previous sanction of the State Government. The power exercised by the State Government is clearly intended to safeguard against maladministration and to promote excellence of education which vitally concerns the community but the important fact is that under the overall purview of the statutory provisions, the day to day running of the institution vests in the committee of management. Upon irregularity in the management coming to light and remaining unrepaired, control may, after according opportunity to the Committee of Management to show cause, and, for the period specified, be taken over by the Authorised Controller, but thereafter the management reverts back to the Committee (Section 16-DD). The Authorised Controller is not empowered to transfer any immovable property belonging to the institution (except by way of letting from month to month in ordinary course of management) or to create any charge (Section 16-D(9)). The Act even as amended therefore, does not divest the committee of management of its power to manage which of course is exercisable subject to the supervision of the State Government. 28. Sri Khare dilated upon provisions relating to grant-in-aid to recognised institutions. As will appear from para 293 of the Education Code, the institution has to agree to certain conditions in order to be eligible to receive the grant. 28. Sri Khare dilated upon provisions relating to grant-in-aid to recognised institutions. As will appear from para 293 of the Education Code, the institution has to agree to certain conditions in order to be eligible to receive the grant. The conditions aim at the prevention of fake receipts; the proper utilisation of public money and the welfare including discipline, health and recreation of students. The annual grant shall ordinarily not exceed one half of the whole tutional expenditure on the institution. Charges on account of management or of buildings and repairs, except petty repairs, cannot be included as tuitional expenditure (para 295). In terms of para 296 grants made for the purchase of sites, the erection, purchase, enlargement, improvement or repair of schools or colleges or hostels shall not exceed the total amount constituted for the purpose from other sources. The management has, therefore, to arrange for matching amount on its own resources. The annual grant, moreover, shall not exceed the difference between the approved annual cost of maintenance and the approved income of the institution from fees and private sources or half the amount costs of maintenance, whichever is less (para 308). Para 309 (b) provides that no grant is made to any school or college the income of which from all sources is sufficient to maintain it in efficiency. The management has, therefore, to invest substantially shall to be in position to run the institution. 29. Considerable stress was laid by Sri Khare upon the provisions of the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 (U. P. Act 24 of 1971). Section 10(1), it was argued, lays down that the State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect to any period after March 31, 1971. In construing the effect of this assumption of liability, we cannot shut our eye to what is immediately contained in section 10 itself and the scheme of the Act. Section 10(203) provides. "(2) The Slate Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution. Section 10(203) provides. "(2) The Slate Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution. (3) Nothing in this section shall be deemed to derogate from the liability of the institution for any, such dues to the teacher or employee." 30. The ultimate liability for the payment of salary to teachers and other employees, therefore, continues to be of the management. Not only this in the event of failure to pay as per Section 4, the manager is made criminally liable to punishment vide section 11(1). For purposes of disbursement of salaries the management is required by section 5(1) to open in a Scheduled Bank a separate account. The account is to be operated jointly by a representative of the management and by the Inspector, the management is to deposit in the said account 80% of the amount received from the students and fees; the percentage may be higher if the State Government so directs. The rates of fee are prescribed in Government order .(vide Section 7-c of the Intermediate Education Act). Section 5 (3) enacts that the entire amount of maintenance grant (which is defined in section 2 (c) as meaning, such grant-in-aid as the State Government by general or special order in that behalf directs to be treated as maintenance grant appropriate to the level of the institution) and the amount of 80% or higher percentage of the grants for reimbursement of fee-ships and other similar concessions shall be paid by the State Government with the said account. The expression level of the institution came up for interpretation in State of U.P. v. District Judge, Varanasi, 1981 U P LBEC 336 (FB) (para 10) The Act said thus as prompt and regular payment of the salaries due to the teachers and other employees of an institution. The liability which the State Government has taken to itself is significantly not in exoneration of that of the management nor is the management exempt from liability to contribute and perform its part in operating the joint account maintained in the bank. The liability which the State Government has taken to itself is significantly not in exoneration of that of the management nor is the management exempt from liability to contribute and perform its part in operating the joint account maintained in the bank. The scheme in short contemplates regulatory supervision of State Government for the social benefit of the teaching community thereby putting a curb against arbitrariness or inefficiency of the management, but without extinguishing its independent entity or pecuniary liability. It makes no difference to say that if the management does not deposit the requisite percentage of the fees, the Inspector may recover the fees directly from the students. The collection thus made is for and on behalf of the management and it goes to the joint fund. 31. For the petitioner it was next argued that a person in the position of the respondent cannot be removed from service without the prior approval of the U. P. Secondary Education Service Commission and, since it is further urged, the Commission is an instrumentality of the State Government, the respondent holds his office under the State Government. This entails a probe into the salient features of the U. P. Secondary Education Services Commission and Selection Boards Act, 1982 (U. P. Act 5 of 1982) (hereinafter referred to as the Act, 1982) which replacing the U. P. Ordinance No. 23 of 1981 came into force with effect from July 14,198 1. The Commission which according to section 3(2) is a body corporate is created under this Act, 1982. The Statement of Objects and Reasons appended to this Act reads : "The appointment of teachers in secondary institutions recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and regulations made thereunder. It was felt that selection of teachers under the provisions of the said Act and the regulations was sometimes not free and fair, Besides, the field of selection was also very much restricted, This adversely affected the availability of suitable teachers and the standard of education. It was, therefore, considered necessary to constitute Secondary Education Service Commission at the State level to select principals, lecturers, Headmasters and L. T. Grade Teachers and Secondary Education Selection Board at the regional level to select and make available suitable candidates for comparatively lower posts in C. T./J. T. C./ B. T. C. grades for such institutions. It was, therefore, considered necessary to constitute Secondary Education Service Commission at the State level to select principals, lecturers, Headmasters and L. T. Grade Teachers and Secondary Education Selection Board at the regional level to select and make available suitable candidates for comparatively lower posts in C. T./J. T. C./ B. T. C. grades for such institutions. 32. In para 2 it is stated that the provision made under S. 16G (3) authorising the management to impose punishment with the approval of the District Inspector of Schools in matters of disciplinary action was found inadequate and so it was considered necessary that the power to inflict major penalties should be exercised subject to the prior approval of the Commission which would function as independent and impartial body. 33. Under the Intermediate Education Act, 1921, (as originally enacted) the power and authority enjoyed by private management of educational institutions was left untouched. But there was a comprehensive amendment of the Act by the U. P. Act 35 of 1958 and thereafter by the U. P. Act 26 of 1975. For purposes of selection of Principal or Headmaster of the institution Section 16-E (3) (as introduced by the U.P. Act 35 of 1958 envisaged a Selection Commission of three persons (including a member not belonging to the district but selected by the management) : the constitution of the Selection Committee thus lay in the hands of the management and not an extraneous agency. The U.P. Act 26 of 1975 brought in changed composition of the Selection Committee (vide S. 16-F) providing that to select the Head of an institution, it shall comprise of the President of the Committee of Management, another member of the management and three experts nominated by the Deputy Director from the panel. This was an innovation. More significant than this was the fact that earlier the Selection Committee deputed by the management could base its recommendation upon the assessment made on holding the interviews but with the substitution of S. 16-E and the new Regulations under the 1975 (Amendment) Act, there came in the requirement of allocation of quality point marks by the Inspector on all such applications and the Selection Committee's assessment was further regulated/restricted to that extent. This in short was the existing state of law regarding the appointment by selection when the U. P. Act 5 of 1982 preceded by the U. P. Ordinance 8 of 1981 came into being. The mischief which the legislature had in mind and sought to mitigate in this realm of selection for appointment is made vocal in the Statement of Objects and Reasons. "It was felt that the selection of teachers under the provisions of the said Act and the Regulations was sometimes not free and fair. Besides the field of selection was also very much restricted." It is well settled that it is permissible to refer to the Statement of Objects and Reasons accompanying the Bill for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy Narain Khamman v. Parduman Kumar Jain, (1985) 1 SCC 1 : AIR 1985 SC 4 . 34. The composition of the Commission is laid down in section 4 of the Act, 1982 and is as follows : "(1) The Commission shall consist of a Chairman and not less than six and not more than eight other members to be appointed by the State Government. "(2) Of the members (a) one shall be a person who occupies or has occupied, in the opinion of the State Government, a position of eminence in Judicial Services; (b) two shall be persons who occupy or have occupied, 'in the opinion of such Government, a position or eminence in the State Education Services; and (c) Others shall have teaching experience (i) Professor of any University established by law in Uttar Pradesh; or (ii) Principal of any college recognised by or affiliated to any such University for a period of not less than ten years; or (iii) Principal of any institution recognised under the Intermediate Education Act, 1924, for a period of not less than fifteen years." 35. The tenure of the members is laid in section 5 as six years subject to superannuation at the age of 62. Removal of a member of the Commission may-in view of section 6 be directed by the State Government, but only upon specified grounds. The tenure of the members is laid in section 5 as six years subject to superannuation at the age of 62. Removal of a member of the Commission may-in view of section 6 be directed by the State Government, but only upon specified grounds. That includes proved misconduct; the procedure for the investigation is prescribed in Rule 11 of the U. P. Secondary Education Services Commission Rules, 1983, as amended by the First Amendment Rules, 1983, dated July 1, 1983. The Rule requires investigation by an Inquiry Officer who shall be a sitting or retired Judge of the High Court or a person eligible to be appointed Judge of a High Court. Among the powers and duties of the Commission are included, a& appearing in section 9, (a) to prepare guidelines on matters relating to the method of recruitment and promotion of such categories of teachers as are specified in the Schedule; (b) to conduct examinations where considered necessary, hold interviews and make selection of candidates for being appointed as such teachers; (c) to select and invite experts and to appoint examiners for-the purposes specified in clause (b); (d) to make recommendations regarding the appointment of selected candidates and their promotion; (e) to advise the management in matters relating to dismissal, removal or reduction in rank of teachers specified in the Schedule." 36. The vacancy has to be notified by the management failing which this may be done by the District Inspector of Schools. The Commission draws a panel, after interviewing a the candidates with or without examination as it deems fit; the panel comprises of candidates found by the commission upon its assessment as the most suitable for appointment. The management may appoint a teacher on of after July 10, 1981 only on the recommendation of the Commission vide section 11/16. If any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. Grade, who possess the minimum qualification and have put in at least 5 years continuous service as teacher shall be considered by the Commission for promotion (Rule 9). The management may make ad hoc appointments in certain contingencies the details whereof need not be enumerated (section 18). 37. The management may make ad hoc appointments in certain contingencies the details whereof need not be enumerated (section 18). 37. Taking the overall view consideration being had to the composition of the Commission comprising a person of eminence in judicial services and eminent educationist, the fixed tenure assigned to them, the high level inquiry envisaged in the event of alleged misconduct, the powers conferred and the degree of freedom enjoyed by the Commission in making the recommendation/selection on the wide experience and the best judgment of its members, I am unable to subscribe to the argument for the petitioner that the Commission is an instrumentality of the State Government. The nature of the functions discharged by the Commission is of public importance undoubtedly but it is not tied or entwined with Government such as to the reduce the Commission to the position of a Government department. The Commission is designed indeed on the pattern of the Public Service Commission operating in the field of public services under the Constitution. 38. Reverting back to the issue of power regarding removal referred to for the petitioner, section 21(1) of the Act, 1982 provides : "No teacher specified in the Schedule shall be dismissed or removed from service or reduced in rank and neither his emoluments may be reduced nor he may be given notice of removal from service by the management unless prior approval of the Commission has been obtained." 39. The Schedule includes Trained Graduates Grade Teachers of Higher Secondary School such as the respondent. Section 21(1) does not strike material departure from the position earlier obtaining except that the prior approval substituted is of the Commission in place of that of the District Inspector of Schools. Section 16-G (3) of the Intermediate Education Act as amended by the Amendment Act (35 of 1958) made provision that the Principal, Headmaster or teacher could not be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the previous written approval of the Inspector. This in substance was retained by the subsequent Amendment Act No. 26 of 1975. Regulations 24 to 38 (Chapter III) embody the principles of natural justice pertaining to enquiry and opportunity to show cause to the delinquent. This in substance was retained by the subsequent Amendment Act No. 26 of 1975. Regulations 24 to 38 (Chapter III) embody the principles of natural justice pertaining to enquiry and opportunity to show cause to the delinquent. These safeguards remain in force still by virtue of section 32 of the Act, 1982 - there being nothing inconsistent thereto provided in the new Act. The significant fact is that neither before the enforcement of the Act, 1982 nor prior to this could there be action taken for the termination of the services of a teacher by removal etc. or otherwise except in a move to this effect by the committee of management. The Commission cannot, in other words, dispense with the services of a teacher on its motion or initiate action in this respect nor could the Inspector do that either. The initiation is of the management and it remains free in that behalf. The Commission serves as watch-dog with the object to avert arbitrariness of the management but it cannot, within the purview of the Act, acting on its own direct a teacher to be dispensed with and so was true earlier in relation to the Inspector. 40. Sri Khare points then to the provisions relating to the suspension of a teacher. Sub- sections (5) to (8) of section 16-G introduced by the U. P. Act 26 of 1975 envisage suspension of any Head of institution or teacher by the Committee of management with the rider that this should receive subsequent approval of the Inspector within the prescribed period. If not approved, the order lapses. There being nothing to the contrary contained in the Act, 1982, these provisions still continue in force. The initiative in this respect also rests with the management the Inspector may not suspend on his own. If the management chooses not to act in its discretion, the Inspector cannot force his will. It would not be right to maintain, therefore, that the management is denuded of its powers or reduced to a non-entity. 41. On the date of scrutiny the respondent was employed as a trained Graduate Grade Teacher in the private recognised and Government aided Higher Secondary School. It would not be right to maintain, therefore, that the management is denuded of its powers or reduced to a non-entity. 41. On the date of scrutiny the respondent was employed as a trained Graduate Grade Teacher in the private recognised and Government aided Higher Secondary School. The past history of the service of the respondent was that he was appointed by the then committee of management of this institution on July 8, 1961 in the L. T. Grade and confirmed thereto with effect from July 8. 1962. Under the Intermediate Education Act, (as amended by the U. P. Act 35 of 1958) and, then in force, too section 16-A ordained that the Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management vested with authority to manage and conduct the affairs of the institution. In every recognised institution, as I mentioned above, there had to be constituted by the management a selection committee for the purpose of selecting candidates for appointment as teacher in the institution. The head of the institution was to be ex officio member of the committee vide section 16-E (2). This depicts the prominent role then assigned to the management under the Statute in this behalf. The recommended candidate had of course to be approved by the Inspector in order to be appointed as teacher- section 16-F(1)(b). The approval could be designed only to serve as a check against nepotism and to ensure that the candidate fulfilled the qualifications prescribed in the Regulations. It is difficult to construe this as amounting to make the teacher an appointee of the State Government. 42. The gradual erosion that has since taken place in the powers of the management is apparent. From the management the selection which constitutes an integral element of appointment (see the discussion in Raghunath Prasad Bhatnagar v. Administrator, Committee of Management, 1985 Lab IC 1648 (All) (FB) Paras 39-43, has passed on to the Commission under the Act, 1982. This Act was in force when the election took place. For reasons discussed earlier I have found however that the Commission composed of experts is an independent statutory authority on its own and not an instrumentality of the State Government. This Act was in force when the election took place. For reasons discussed earlier I have found however that the Commission composed of experts is an independent statutory authority on its own and not an instrumentality of the State Government. To repeat in the words of D.R. Gurushanta Appa, AIR 1969 SC 744 mentioned hereinbefore : "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 .................." 43. And it is instructive to remind ourselves of the test laid down in the Agartala Municipality case (1985) 1 SCC 1 51 at p. 158 : AIR 1985 SC 211 at pp. 215-16: "But to judge whether employees of any authority or local authorities under the control of Government become Government employees or not or holders of office of profit under the Government, the -measure and nature of control exercised by the Government over the employee must be judged in the light of the facts and circumstances in each case so as to avoid any possible conflict between personal interests and duties." See also Surya Kant Roy v. Itnamul Hai Khan, (1975) 1 SCC 531 : AIR 1975 SC 1053 , Madhukar G. E. Pankakur, (1977) 1 SCC 70 : AIR 1976 SC 2283 44. In Hakikatullah v. Nathu Singh, (1953) 6 Ele LR 10 (Ele. Tri.) cited for the petitioner the effect of approval required to appoint was considered, but that was in a different situation. Section 53 of the Jodhpur Municipal Act, 1943, provided that the President shall be a non-official elected by members of the Board from among themselves subject to the approval of the Government. Section 59 laid down that a President may be removed from the office by Government on the ground of persistent failure to perform his duty and as per section 69 the President was to be a public servant within section 21, Mewar Penal Code. These were the clear distinguishing featyres on which account the President could not-be treated as independent of Government. These were the clear distinguishing featyres on which account the President could not-be treated as independent of Government. In Manmohan Singh Jaitla v. Union Territory, Chandigarh, AIR 1985 SC 364 also relied for the petitioner, there was stress laid on the fact that the aided school received 95% of expenses by way of grant from the public exchequer apart from the statutory protection accorded to the employees under the Punjab Aided Schools (Security of Service) Act, 1969, and it is on these facts that the aided school was held to be amenable to the writ jurisdiction of the High Court. The order impugned therein was of the Deputy Commissioner and Commissioner who are statutory authorities operating under the 1969 Act. 45. Learned counsel made his submissions relying on the decision of the Calcutta High Court in Gurugobinda Basu, (1962) 23 ELR 356 also. The case as mentioned above was taken to the Supreme Court and is reported in AIR 1964 SC 254 . The argument is that the Supreme Court left undecided that case of the auditor in the Life Insurance Corporation and hence the observations of the High Court in that behalf are relevant, and, further that the High Court considered it enough for these purposes that there is previous approval of the Central Government required to the appointment. From pars 6 of the report in AIR 1964 SC 254 at p. 256 it is clear that the Supreme Court felt it unnecessary to consider specifically the Life Insurance Corporation case because on principle that would stand on the same footing as that of the two companies namely, the Durgapur Projects Ltd. and the Hindustan Steels Ltd. which are 100% Government Companies (see also para 15). The principle laid down by the Supreme Court therein governs and I have mentioned the same already. The Calcutta High Court, moreover, observed therein that the holder of an office of profit under a local or other authority, however much such authority may be subject to or under the control of Government would be different from the holder of an office of profit under the Government as in such case the power of appointment and dismissal or at any rate effective and sufficient control in that matter would be in the local or other authority. 46. The emphasis which Sri Khare laid on the observation in 1984 All WC 397 : 1984 Cri. 46. The emphasis which Sri Khare laid on the observation in 1984 All WC 397 : 1984 Cri. LJ 1006, Rajesh Kumar Shukla v. Dr. S.S. Dubey that the issue of appointment letter by the management would have been a ministerial act lacks substance. The observation came in an altogether different context. Explaining section 12(4) of the U.P. Higher Education Service Commission Act, 1980, the Bench noticed that the provisions of section 12 shall not apply to the appointment of a teacher, vacancy in respect whereof had been advertised in accordance with section 31(10) of the U.P. State Universities Act, 1973 at any time before the commencement of this Act, and then said that the 1980 Act was promulgated on 3-10-1980, where the advertisement for the appointment to the post of lecturer had been issued in 1976, the selection was held in 1977 when the applicant was found suitable. The only thing left was the issue of appointment letter which was a ministerial act and hence section 12 of the Act could not make the order of appointment void. 47. Learned counsel for the petitioner also made reference to the Rules of the U.P. School and College Teachers Gratuity Fund and the Rules of Contributory Provident Fund- Insurance-Pension Scheme (The Triple Benefit Scheme) for the employees serving in State aided Education Institutions run by Local Bodies or Private Managements. These rules are in force with effect from April 1 and October 1, 1964 respectively. These are in the nature of social benefit schemes extended to persons rendering vital service to the public but these do not in substance alter the true character of the employment or convert it into holding the office under the State Government. The management has its hand also in the operation of these schemes; the expression "contribution" is defined in Rule 5(b) as meaning the contribution of the management of an institution or of the Government or both, as the case may be, to the contributory provident fund account of an employee. 48. Reference was made pointedly then on the petitioner's behalf to section 9(4) of the Intermediate Education Act. That empowers the State Government to take immediate action considered necessary or expedient, without reference to the Board but consistent with the provisions of the Act. 48. Reference was made pointedly then on the petitioner's behalf to section 9(4) of the Intermediate Education Act. That empowers the State Government to take immediate action considered necessary or expedient, without reference to the Board but consistent with the provisions of the Act. This is in the nature of emergency provision to be availed where the regulation framing authority may not be exercised observing the ordinary procedure. The decision in Dr. Ramji Dwivedi v. State of U.P., (1983) 3 SCC 52 : AIR 1984 SC 1506 , is illustrative of the exercise of this power. The setting up of the Commission to select and recommend the candidates for appointment as teachers was in contemplation with a view that this might also cover the existing vacancies, the State Government issued a radiogram which put a moratorium upon the filling in of the vacancies. The validity thereof was upheld in the light of section 9(4). The provisions made under such an order are given statutory character, Krishna Pal Singh v. Government of U.P., 1981 UP LBEC 521 : 1981 UPLT NOC 123, It would not be right to place section 9(4) on a footing higher than the regulation framing power conferred under section 15 of the Act except that the formalities observed in the latter stand dispensed with. There is no authority to travel outside the purview of the Act. This neither subrogates the committee of management nor alters its true character. 49. In exercise of the power under section 9(4), the State Government has, it is urged, framed certain regulations contained in the notification dated 14-3-1984 published in the U.P. Gazette (Extraordinary) dated 14th March, 1984. These are in the nature of a code of conduct meant for teachers to which there may be no exception legitimately taken. A perusal thereof shows that these do not aim at subordinating the teachers to Government control; the emphasis is upon the maintenance of discipline and devotion to the task assigned and significantly there is no sanction to their enforcement by or at the instance of Government. Within the sphere of the syllabi formulated and the test books prescribed by the Board the constitution whereof, as section 3 of the Intermediate Education Act shows, comprises teachers drawn from various faculties in addition to other experts, the teacher remains free to observe his own mode of teaching. Within the sphere of the syllabi formulated and the test books prescribed by the Board the constitution whereof, as section 3 of the Intermediate Education Act shows, comprises teachers drawn from various faculties in addition to other experts, the teacher remains free to observe his own mode of teaching. The U. P. Course Books Act, 1979 referred to for the petitioner seeks only to control the production, supply and distribution of, and trade and commerce in, the prescribed course hooks. 50. Sri Khare sought also to derive support to his contention from the provisions contained in section 16-EE of the Intermediate Education Act for absorption of retrenched employees; orders of the State Government under section 9(4) for the reservation in favour of candidates of the Scheduled Castes, Scheduled Tribes; the provisions made in the U.P. High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 and the U.P. Essential Services Maintenance Act, 1966. Each of these deals with particular categories in the backdrop of special situations. The mandate contemplated to the committee of management is not of much significance in the overall view of the powers which remain vested therein still. Section 16EE aims to give relief to employees retrenched within specified period alone; the orders for reservation carry forward the directive contained in Article 46 of the Constitution being by way of providing compensatory treatment : the Ordinance 1978 ,came into being in peculiar circumstances the validity whereof was upheld in Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 All LJ 931 and so far as the U.P. Essential Services Maintenance Act, 1966 is concerned, it has for its object prevention of interruption in the working of the educational institutions for which it treats any service under these institutions as "essential service" and empowers the State Government to prohibit strikes in the larger public interest. I am unable from these to deduce either that the committee of management is agency or instrumentality of the State Government or that the teacher holds the post under the Government. 51. Learned counsel relies heavily on the pronouncement of the Supreme Court in Biharilal Dobray v. Roshan Lal Dobray, (1984) 1 SCC 51 : 1984 All LJ 203, The respondent in that case was originally employed as an assistant teacher in a Basic Primary School which was being run and managed by the Zila Parishad. 51. Learned counsel relies heavily on the pronouncement of the Supreme Court in Biharilal Dobray v. Roshan Lal Dobray, (1984) 1 SCC 51 : 1984 All LJ 203, The respondent in that case was originally employed as an assistant teacher in a Basic Primary School which was being run and managed by the Zila Parishad. On coming into force of the U.P. Basic Education Act, 1972 he became an employee of the Board of Basic Education under section 9(1) of the Act. While holding the post of an assistant teacher as such he filed his nomination for his election to the State Legislative Assembly. The Returning Officer rejected his nomination paper on the ground that he was holding an office of profit under the State Government and hence he was disqualified under Article 191(1)(a) for being elected a member of the Legislative Assembly. The election petition filed by the respondent was dismissed by this Court but the appeal was allowed by the Supreme Court finding that the respondent held an office of profit under the State Government. The decision proceeds on its distinct facts and the distinguishing features are clearly discernible. 52. Their Lordships took note of the Statement of Objects and Reasons attached to the Bill which later became the U.P. Basic Education Act, 1972. The Statement envisages taking over of the responsibility for primary education, resting earlier with the local bodies, by the State Government `into its own hands' (para 12/13). This was with a view to taking effective steps for securing the object of Article 45 of the Constitution. The appointing authority in respect of assistant teachers, it was also noticed, is the District Basic Education Officer who is an officer appointed by the State Government. The officers composing the Board are either the State Government or officers appointed by the State Government. The funds of the Board mainly come from the contribution made by the State Government. The disciplinary proceedings and punishments have to abide by the Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the State Government. In view of section 13 the Board shall carry out such directions as may be issued to it from time to time by the State Government. The disciplinary proceedings and punishments have to abide by the Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the State Government. In view of section 13 the Board shall carry out such directions as may be issued to it from time to time by the State Government. It was specifically observed in view of the provisions in the Act that :- "The school in question is not a privately sponsored institution which is recognised by the Board ................... Even though the representative of the local authorities are associated in the administration of such schools after the Act was passed, the final control of the schools is vested in the Government .............." 53. In para 21 their Lordships have gone so far as to say on the facts thereof that "the Board for all practical purposes is a department of the Government and its autonomy is negligible." This certainly bears no analogy to the status of the committee of management or the Commission we are concerned with in the present. The Supreme Court distinguished this case in Agartala Municipality ( AIR 1985 SC 211 ) observing that in Biharilal Dobray (1984 All LJ 203), the measure of control was such that U.P. Education Board was an authority not truly independent of the Government and every employee of the Board was in fact holding an office under the State Government. The statement and object of the U.P. Basic Education Act and sections 4, 6, 7, 13, and 19 all of which have been set out in extenso in that decision make that conclusion irresistible. 54. The question in State of Gujarat v. Raman Lal Keshar Lal Soni, (1983) 2 SCC 33 : AIR 1984 SC 161 also cited for the petitioner was whether the employees transferred to the Gujarat Panchayat Service and working under the local authorities formed under the Gujarat Panchayats Act, 1961 were State Government employees. This was answered in the affirmative taking into account the features thereof including that the duties required to be performed are in connection with the affairs of the State; the fund consists substantially of sums contributed or lent by the State Government and the proceeds of any tax or fee the imposition whereof is essentially a function of the State; the officers of the State service are to be the Secretary of the Taluqa and District Panchayat. The Service Rules are particularly required to contain a provision entitling servants of different (sic) in the Panchayat service to promotion to such cadres in the State service and cumulatively these present a clear picture of servants belonging to a centralised service under the State Government. That also thus cannot avail the petitioner. 55. Both in Karbhari Bhimaji Rohammare, (1975) I SCC 252 : AIR 1975 SC 575 and Kona Prabhakara Rao, (1982) 1 SCC 442 , the emphasis is on the appointment by Government and its power to either continue the appointee in office or revoke his appointment at its discretion. As in Gopala Kurup v. Samual Arulappan Paul, AIR 1961 Ker 242 the aided schools have properties of their own that are conveyed in their names, and, the amount paid are treated as those of the institution. The institution as such retains its individuality distinct from a Government run educational institution. 56. In the light of the aforesaid discussion my conclusions are that control of the State Government though expanding vis-a-vis the Committee of Management constituted under the Scheme of Administration framed in accordance with the provisions of the Intermediate Education Act or the Commission created under the U.P. Act 5 of 1982 is not such as might give rise to any conflict between the personal interest of a person placed in the position of the respondent No. 8 as teacher in a Higher Secondary School and his duties as a member of the Legislature and in this manner defeat the central object underlying the statutory disqualification. The acceptance of his nomination was, therefore, not improper. 57. The issue is decided accordingly. Issues Nos. 2 and 3: 58. These may be conveniently dealt together. 59. The petitioner has sought to found his claim upon section 100(1)(d)(1) of the Act whereunder as mentioned already the ground provided is that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. The burden to establish that improper acceptance of the nomination of the respondent No. 9 has materially affected the election result of the returned candidate lies indisputedly upon the petitioner. I have found above that there was no impropriety in accepting the respondent No. 8's nomination. The burden to establish that improper acceptance of the nomination of the respondent No. 9 has materially affected the election result of the returned candidate lies indisputedly upon the petitioner. I have found above that there was no impropriety in accepting the respondent No. 8's nomination. But assuming, in the alternative, that this was vitiated, the petitioner shall have still to satisfy that this has materially contributed to the success of the respondent No. 1. The matter hardly admits of such debate in view of the settled law on the subject. 60. The principle applicable has been enunciated by the Supreme Court recently in Chhedi Ram v. Jhilmit Ram, (1984) 2 SCC 281 : 1984 All LJ 114, to which both of them referred. In para. 2 thereof it is laid down that "The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of votes would have so done, would ordinarily remain a speculative possibility only. In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected. If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected. But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be, proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6710 votes that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. That number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate - it was a little over one-third. Surely, in that situation, the result of the election may safely be said to have been affected." 61. In the case before us out of the total number of valid votes (65,768) the returned candidate namely, the respondent No. I secured 23006; the runner up (the respondent No. 2) got the next highest number being 20,735. The margin was of 2271. The wasted votes secured by the respondent No. 8 were 3606 only. In the case before us out of the total number of valid votes (65,768) the returned candidate namely, the respondent No. I secured 23006; the runner up (the respondent No. 2) got the next highest number being 20,735. The margin was of 2271. The wasted votes secured by the respondent No. 8 were 3606 only. In the light of the proposition of law set out in Chhedi Ram, (1984 All LJ 114) (SC) the vital facts in this respect are (i) the proportion of throw away votes cast in favour of respondent No. 8 as compared to the difference between the votes secured by the returned candidate and the number got by the next in ranking was thin being 1 times only; (ii) the proportion which the number of wasted votes secured by the respondent No. 8 bears to the number of votes secured by the successful candidate is small being 12% only. 62. In contrast in Chhediram the wasted votes obtained by Motiram were 6710 while the margin of difference between the returned candidate (17822) and the candidate next in order (17449) was 373 only. It was observed thus that the wasted votes were almost 15 times the difference. Further, the proportion of votes secured by the candidate whose nomination was impugned to the number of votes secured by the successful candidate was fairly appreciable being over one-third i.e nearly 39%. The number of votes secured by the candidate whose nomination is in controversy in the present case being not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude in the absence of other facts and circumstances in corroboration of a speculative possibility, that the result of the election has been materially affected regard being had also to the small proportion which the wasted votes bear to the votes secured by the successful candidate. 63. For the contesting respondent, it is rightly urged moreover that in Chhedi Ram, 1984 All L 1114 (SC) their Lordships have not dissented from the rule laid in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 and Vashist Narain's case AIR 1954 SC 513 , These were only distinguished upon facts. 63. For the contesting respondent, it is rightly urged moreover that in Chhedi Ram, 1984 All L 1114 (SC) their Lordships have not dissented from the rule laid in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 and Vashist Narain's case AIR 1954 SC 513 , These were only distinguished upon facts. In Vashist Narain's case, it was observed by Ghulam Husain, J. "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 11(1)(a) and hold without evidence that the duty has been discharged should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. 64. In Samant Balakrishna, AIR 1969 SC 1201 again there is insistence upon proof, the nature and extent whereof is bound to vary. The petitioner cannot base the claim on the mere fact that the wasted votes (3306) are greater than the margin (2271) of votes between the returned candidate and the candidate securing the next highest number of votes. In the context particularly of the poll being heavy and the contestant being large in number 16 in all it remains unreasonable to guess that if the respondent No. 8 were excluded from the arena of context, the wasted votes would have gone to the respondent No. 2 thereby enabling him to succeed. In the context particularly of the poll being heavy and the contestant being large in number 16 in all it remains unreasonable to guess that if the respondent No. 8 were excluded from the arena of context, the wasted votes would have gone to the respondent No. 2 thereby enabling him to succeed. The burden lying upon the petitioner remains clearly undischarged and the speculative possibility does not attain the level of proof. 65. The issues are accordingly decided against the petitioner. Issue No. 4 66. Upon the findings recorded on issues Nos. 1 to 3, the petitioner is not entitled to any relief. 67. The petition is accordingly dismissed. The respondent No. 1 is entitled to recover her costs from the petitioner which I assess at Rs. 500/- only.