Yogendra Singh v. Ram Nandini Verma — 1987 DIGILAW 585 (ALL)

ORDER Om Prakash, J. - The petitioner who unsuccessfully contested the election from 309 Umarda Assembly Constituency (District Farrukhabad) to the Legislative Assembly, held in March, 1985 as a Congress(I) candidate, has filed this petition under S. 81 of the Representation of People Act, 1951 (for short, the Act, 1951) challenging the election of the respondent to the aforesaid constituency on the grounds : (a) that the nomination paper of Sri Ram Bux Verma was improperly rejected; (b) that the result of the election, in so far as it concerns the respondent, has been materially affected (i) by improper acceptance of nomination papers of Sri Kishan Yadav and Sri Tej Singh Kanaujia; and (ii) due to non-compliance with the provisions of S. 41 of the Act, 1951. The petitioner prays that the election of the respondent to the aforesaid constituency be declared void and the same be set aside. 2. At the election held for 309 Umarda Assembly Constituency (District Farrukhabad) to the U.P. Legislative Assembly, besides the petitioner, Sri Ram Bux Verma, husband of the respondent as Lok Dal candidate and Sri Kishan Yadav and Sri Tej Kanaujia contested the election as independent and Bhartiya Janta Party candidate respectively. Sri Ram Bux Verma was on the date of filing the nomination paper and is a lecturer in Nehru Degree College, Chhibramau, District Farrukhabad, affiliated with Kanpur University and the remaining two candidates were employed as teachers in Sardar Patel Inter College, Kachatipur, District Farrukhabad and in Swami Shiva Nand Higher Secondary School, Thathia, District Farrukhabad respectively. Whereas, the nomination paper of Sri Ram Bux Verma was rejected, nomination papers of Sri Kishan Yadav and Sri Tej Singh Kanaujia were accepted by the Returning Officer. 3. The contention of the petitioner is that the nomination paper of Sri Ram Bux Verma was improperly rejected by the Returning Officer applying Article 191(l)(a) of the Constitution inasmuch as a lecturer of an affiliated college does not hold an office of profit under the State Government and that the result of the election, insofar as it concerns the respondent, has been materially affected by the improper acceptance of the nomination papers of Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia who being teachers in recognised Government aided institutions held an office of profit within the meaning of Article 191(l)(a) of the Constitution. Also it is contended that the result of the election of the respondent has been materially affected due to non-compliance with S. 41 of the Act, 1951, inasmuch as, Sri Ram Bux Verma who was held to be disqualified by the Returning Officer from contesting the election, was appointed by the respondent as her election agent. 4. The respondent filed written statement pleading that the college, in which Sri Ram Bax Varma is employed as lecturer is "completely owned and run by the Government and the entire management and control also lies with the State Government and as such the nomination paper was rightly rejected." The respondent has not admitted the averments, made by the petitioner in para 8(a) and (b) of the petition. In these paragraphs, the petitioner contended that the two candidates, namely, Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia being teachers in the recognised Government aided institutions, held post of profit within the meaning of Article 191(l)(a) of the Constitution. In regard to the averments made in para 8(a) and (b) in the election petition, the respondent simply pleaded that these averments do not disclose the material facts as to how the election of the respondent was materially affected by improper acceptance of the nomination papers of Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia The application of S. 41 of the Act, 1951 has been denied by the respondent. 5. On these pleadings, the following issues were struck out: 1. Whether Sri Ram Bux Verma who was and is a lecturer in the Nehru Degree College, Chhibramam District Farrukhabad, holds an office of profit under the State Government within the meaning of the Article 191(l)(a) of the Constitution of India? If so, whether his nomination paper was improperly rejected under S. 100(l)(c) of the Representation of the People Act, 1951? (2) Whether Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia, employed as teachers in Sardar Patel Inter College, Kachatipur, District Farrukhabad and in Swami Shivanand Higher Secondary School that is, District Farrukhabad respectively on the date of scrutiny of the nomination papers, held post-of profit under the State Government within the meaning of Article 191(l)(a) of the Constitution? If so, whether the result of the election of the returned candidate was materially affected by having accepted their nomination papers under sub-cl. (10) of Cl. If so, whether the result of the election of the returned candidate was materially affected by having accepted their nomination papers under sub-cl. (10) of Cl. (d) of sub-s. (1) of S. 100 of the Representation of the People Act, 1951? 3. Whether the election is void for non-compliance of S. 41 of the Representation of the People Act, 1951 inasmuch as Sri Ram Bux Verma who was held to be disqualified for being chosen to the Legislative Assembly, was appointed as the election agent of the returned candidate? 4. Whether the result of the election of the returned candidate was materially affected by having appointed Sri Ram Bux Verma as election agent of the returned candidate?. 5. To what relief, if any, is the petitioner entitled? FINDINGS Issue No. 1 - The chief question for , consideration in this election petition is whether a lecturer in Nehru Degree College, Chhibramau, District Farrukhabad, admittedly, affiliated with the Kanpur University, holds a post of profit within the meaning of Article 91(l)(a) of the Constitution and as such was disqualified from contesting the election to the U.P. Legislative Assembly. The Returning Officer rejected the nomination paper of Sri Ram Bux Verma on the grounds: (i) that under the provisions of U.P. Secondary Education Service Commission and Selection Boards Act, 1982, it is imperative on the management to inform the vacancy to the Commission and that the appointment letter to the candidate approved by the Selection Committee could be issued only by the Commission : (ii) that S. 6 of the U.P. State Universities (Amending) Act, 1980 obligates the State Government to pay the salary to the lecturers of the degree colleges : (iii) that S. 7 provides that no appointment can be made by the management without the approval of the State Government and that the approval of the Director of Education is necessary; and (iv) that S. 5 enables the degree colleges to receive financial grant from the State Government. 6. Relying on these provisions, the Returning Officer rejected the contention of Sri Ram Bux Verma that the lecturers are appointed by the management and not by the State Government. 7. 6. Relying on these provisions, the Returning Officer rejected the contention of Sri Ram Bux Verma that the lecturers are appointed by the management and not by the State Government. 7. To re-enforce his conclusion, the Returning Officer alluded to the provisions of the U.P. State Universities Act, 1973 (briefly, the Act, 1973) and observed : (i) that under S. 3 of the Act, 1973, the university is a corporate body, constituted by the State; (ii) that under S. 4 (3), the State Government is empowered to alter the territorial jurisdiction of the university? (iii) that under S. 8, the State shall appoint an authority to carry out inspection of the university and (iv) that under S. 10, the Governor is the Ex-officio Chancellor of a university. 8. The Returning Officer, therefore, took the view that a lecturer in an affiliated college holds a post of profit. 9. To appreciate the view taken by the Returning Officer, we may rush through the relevant provisions of the Act, 1973. Section 3 makes a university a body corporate. By this section, the university has been given a legal status of a person. It can hold property and can sue and be sued by its name. Section 49 provides that subject to the provisions of this Act, the Statute may provide for any matter relating to the university. Section 50 says that First Statute of the University shall be made by the State Government by notification in the gazette and in the case of any existing university for so long as the First Statutes are not so made, the Statutes as in force immediately before the commencement of this Act, in so far as they are not inconsistent with the provisions of this Act, save to such repetition and modification by way of repeal amendment and additions, as may be necessary or expedient, as the State Government may by notification in the Gazette provided, continue in force and any such repetition and modification shall not be called in question. So every university will have the First Statute that may provide for any matter relating to the university. So every university will have the First Statute that may provide for any matter relating to the university. For the Kanpur University with which the Nehru Degree College in which Sri Ram Bux Verma, was or is a lecturer, is admittedly, affiliated, First Statute No. 3054/XV-10-77-40(ii)-76 dated Lucknow June 15, 1977 was enacted Section 31 of the Act, 1973 provides that the teachers of an affiliated college shall be appointed by the Management of the affiliated college on the recommendation of selection Committee now substituted by the Commission, set up under S. 3 of the U.P. Higher Education Services Commission Act, 1980, which is also a body corporate. Sub s.(ii)(a) of S. 31 says that no teacher recommended by the Commission shall be appointed by the Management of an affiliated college, unless prior approval of the Vice-I Chancellery has been obtained. In short, a teacher in an affiliated college will be appointed by the Management on the recommendation of the Commission with the approval of the Vice-Chancellor. There is a different procedure for appointment of a teacher in a college, maintained exclusively by the State Government. 10. Under S. 35(1) of the Act, 1973, every teacher in an affiliated college shall be appointed under a written contract and under sub-sec. (2), every decision of the Management of such college to dismiss or remove a teacher or to reduce in rank or to punish him in any other manner shall be reported to the Vice-Chancellor first and shall not take effect, unless it has been approved by the Vice-Chancellor. The provisions of sub-s. (2) shall also apply to any decision to terminate the services of a teacher in view of sub-s. (3) of S. 35. 11. Then comes Chapter XI-A of the Act, 1973 relating to the payment of salary of teachers and maintenance grant to an affiliated college inter alia. Under S. 60-C, the Deputy Director may at any time for the purposes of this Chapter inspect any college and call for any record from its management with regard to the payment of the salaries to its teachers or give to its Management any direction for the observance of such canons of financial propriety (including any direction for retrenchment of any teacher or for prohibition of any wasteful expenditure) as he thinks fit. 12. 12. Sub-section (4) of S. 60-D provides that the State Government shall also pay into Salary Payment Account such amount as maintenance grant which after taking into consideration the amounts deposited under sub-sec. (2) and (3) is necessary for making payment in accordance with sub-sec. (5) (emphasis supplied). 13. Lastly, comes S. 60-E(l), which provides that the State Government shall be liable for the payment of salaries of teachers in respect of any period after 31st March, 1975. Sub-section (2) empowers the State Government to recover any amount in respect of which any liability is incurred by it under sub-s. (1) by attachment of the income from the property belonging to or vest in the college, as if that amount were an arrear of land revenue due from such college. Sub s. (3) states that nothing in this section shall be deemed to derogate from the liability of the college for any such dues to the teacher or employee. 14. The contention of Sri K.N. Tripathi, learned counsel for the petitioner is that simply because the teachers in an affiliated degree college are appointed on the recommendation of the Commission with the prior approval of the Vice-Chancellor, every decision of the Management to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner or to terminate his services shall have to be approved by the Vice-Chancellor before coming into force and the State Government shall contribute to the Salary Payment Account the maintenance grant to the extent the amount deposited in the Salary Payment Account falls short for making payment of salaries to the teachers, an affiliated degree college could not acquire the character of a Government Degree College and the teachers employed therein cannot be said to hold a post of profit under the State Government within the meaning of Article 191(1)(a) of the Constitution which is as follows : Article 191(1). "A person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly or Legislative Council of a State - (a) if he holds any office of profit under the Government of India or the Government of any State - ......................................." 15. "A person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly or Legislative Council of a State - (a) if he holds any office of profit under the Government of India or the Government of any State - ......................................." 15. On the other hand, the submission of Sri R. C. Srivastava, learned counsel for the respondent is that affiliated degree colleges are in full control of the State Government inasmuch as no teacher in such colleges can be appointed without approval of the Vice-Chancellor, no punitive action can be taken against a teacher without the approval of the Vice-Chancellor, the State Government is liable to pay salaries for the period after 31st March, 1975 to all the teachers and the sub sec. (4) of S. 60-D obligates upon the State Government to pay the maintenance grant of making the payment of salaries to the teachers. The submission is that the control of the State Government is all pervasive and that the Nehru Degree College received greater amount as maintenance grant from the State Government, as compared to the amount realised as fees from the students in the relevant year. 16. Sub-section (4) of S. 37 under Ch. VII of the Act, 1973 dealing with the affiliation and recognition of the colleges states that except as provided by this Act, the Management of an affiliated college shall be free to manage and control the affairs of the college and be responsible for its maintenance and up-keep and its Principal shall be responsible for the discipline of its students and for the superintendence control over its staff. This provision clearly indicates that the affiliated colleges have their own managing committees. The scheme of the Act, 1973 is that privately run colleges are recognised by the universities and the said universities conduct the examinations in such colleges. The colleges only provide the teaching while examination is conducted by the university. The right of management vested in the managing committees is subject to. the provisions of Sections 31 and 35. Whereas, under S. 31 no teacher can be appointed in an affiliated degree college by the Management without the approval of the Vice-Chancellor, no decision to punish a teacher in any manner including dismissal, removal, reduction in rank, termination etc. can be enforced without approval of the Vice-Chancellor in view of sub-sec. the provisions of Sections 31 and 35. Whereas, under S. 31 no teacher can be appointed in an affiliated degree college by the Management without the approval of the Vice-Chancellor, no decision to punish a teacher in any manner including dismissal, removal, reduction in rank, termination etc. can be enforced without approval of the Vice-Chancellor in view of sub-sec. (2) of S. 35 read with sub-sec. (3). Simply because no teacher can be appointed and no punishment can be inflicted upon a teacher without the approval of the Vice-Chancellor it cannot be held that the affiliated degree colleges are the components of the State Government and the members of the teaching staff thereof are the Government servants. Day to day administration of an affiliated college is run by the management and the State thing to do with that. Under S. 3 of the Act, 1973, the Vice-Chancellor, inter alia, holding office as such in any University shall constitute a body corporate. The fact that the approval of the Vice-Chancellor is necessary in the matters of appointment and in the matters of the Disciplinary proceedings, does not establish that the Management is subjected to extraordinary control of the State Government. 17. Sri Srivastava strenuously argued that tremendous financial aid given by the State Government to the Nehru Degree College during the year in which the election was held and in the preceding years shows the considerable control of the State Government over the College. I do not see any substance in the submissions of Sri Srivastava. The. powers of the State Government in the matters of appointment and disciplinary proceedings are merely regulatory and supervisory. In a democratic set up, it is the duty of the Government to promote excellence in education, which is the founding stone of any developing or developed nation. It is with this end in view, the State Government to ensure timely payment of salary to the teachers made a provision under S. 60-D that it will contribute to the Salary Payment Account such amount as maintenance grant which after taking into consideration the amount deposited in the Salary Payment Account under sub-secs. (2) and (3), is necessary for making payment in accordance with the sub-sec. (5). Such step was necessary' to avoid frustration or depression among the Teacher which is bound to arise, if the salaries Ere not paid on due date. (2) and (3), is necessary for making payment in accordance with the sub-sec. (5). Such step was necessary' to avoid frustration or depression among the Teacher which is bound to arise, if the salaries Ere not paid on due date. When the State Government contributes maintenance grant to the salary payment account to the extent the amount deposited under sub-secs. (2) and (3) falls short to make payment of salary, it is necessary to have some check or control over the affiliated colleges. This is why the Deputy Director is empowered under S. 60-C to inspect time to time such colleges, and if he finds that some teacher is surplus and not genuinely needed in the college, then he can direct the retrenchment of such teacher and such direction has to be complied with by the Management. With a view to ensuring timely payment of salaries to the teachers and to obviate the misuse of the college funds, the State Government under sub-sec. (2) of S. 60 D may from time to time require by general or special order that the Management of a college shall deposit in the salary payment account such portion of the amount received from the students as fees and also such portion if any of the income received from any property. Under sub-sec. (3) of S. 60-D, where the Deputy Director is of opinion that the Management has failed to deposit the fee in accordance with the provisions of sub-sec.(2), he may by order prohibit the Management from realising any fees from the students and may realise the fees and may cause the fees to be realised from the students in the manner he thinks fit, which after recovery shall be deposited in the salary payment account. The underlying idea of the powers conferred under S. 60-D, is to ensure that the amount realised as fees is not depleted for insufficient reasons and such amount when credited to the salary payment account remains available for payment of salaries to the teachers. The State Government has taken upon itself the responsibility to contribute only the short fall and, therefore, it has the power to direct the management to deposit such portion of the fees realised from the students to the salary payment account, which it thinks proper. The State Government has taken upon itself the responsibility to contribute only the short fall and, therefore, it has the power to direct the management to deposit such portion of the fees realised from the students to the salary payment account, which it thinks proper. In the matters of appointments and the disciplinary proceedings, the power is vested in the Vice-Chancellor to accord approval in order to prevent any arbitrariness or nepotism on the part of the Management. So the powers vested in the Vice-Chancellor or the State Government are merely regulatory. Vesting of such powers does not support the submission of Sri Srivastava that the Management of the affiliated colleges is completely controlled by the State Government. 18. Moreover, the First Statute 17.10 of the Kanpur University enacted in exercise of the powers conferred by sub-s. (1) of S. 50 of the Act, 1973 holds a very important clue that a teacher of an affiliated degree college does not hold a post of profit under the State Government. The Statute 17.10 (iii) is reproduced below : - 17. 10 "Notwithstanding anything contained in these Statutes : - (i)......................... (ii)........................ (iii) a teacher of an affiliated college who is elected or nominated to the Parliament of the State Legislature shall not be required to resign or to take leave from such college for the duration of his membership or, except as provided by Statute 17.11, for attending the meeting of any House or Committee thereof." This Statute clinches the issue and it is implicit in it that teacher of an affiliated college does not hold an office of profit under the State Government and on his election to the State Legislature he need not resign or take leave from the college for the duration of his membership. If the legal position were otherwise, then this provision would not have been enacted. This provision makes amply clear that an affiliated degree college is not a college of the State Government; that there is no fetter on the right to contest the election of a teacher of an affiliated college; that such right is not inhibited by being employed as a teacher and that even after his election to the State Legislature or Parliament, he shall continue as a teacher and need not resign therefrom. 19. 19. The Statute 17.11 states that the Management with prior approval of the Vice-Chancellor shall fix the minimum number of days during which such teacher shall be available in the college for his academic duties. It shows that a teacher of an affiliated college may not only be elected to the State Assembly but he will continue in the college after his election and he shall work in the college for the minimum period, fixed by the Management with the approval of the Vice-Chancellor. The proviso to Statute 17.11 further shows that where a teacher of a college is not so available because of the Sessions of the Parliament or the State Legislature, he shall be treated on such leave as may be due to him, and if no leave is due then on leave without pay. From this Statute, it appears beyond doubt that a teacher of an affiliated college is not at all disqualified from contesting the election and after having been elected as a member of Statute Legislature, such teacher may retain his dual character i.e. of a teacher and that of a member of Statute Legislature. 20. Sri Srivastava unduly stretched the point that the Nehru Degree College having received considerable financial aid from the State Government during the year in which the election was held and in the preceding years, the details of which have been furnished by him, becomes an authority within the meaning of Article 12 of the Constitution. To support his argument he heavily relied on Manmohan Singh Jaitla v. Commr. Union Territory, Chandigarh, AIR 1985 SC 364 . In para 8 on page 368 of Manmohan Singh Jaitla (supra), the Supreme Court adverting to the decision of the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Shehravardi, AIR 1981 SC 487 , observed that the aided school receiving 95% of expenses by way of grant from the public exchequer and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh has also the appointment of Head Master to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The Supreme Court, therefore, held that the High Court was in error in holding that 3rd respondent School was not amenable to the writ jurisdiction of the High Court. 21. The Supreme Court, therefore, held that the High Court was in error in holding that 3rd respondent School was not amenable to the writ jurisdiction of the High Court. 21. Relying on the aforesaid observations, Sri Srivastava urged that the Nehru Degree College having received substantial financial aid from the State Government acquired the character of an authority within the meaning of Article 12 of the Constitution and, therefore, the teacher employed therein holds an office of profit under the State Government under Article 191 (t)(a) of the Constitution. The argument to my mind, is wholly fallacious. By having received maintenance grant to the extent of 95% more or less, an aided school or the college may come within the sweep of the term "other authorities", occurring in Article 12 of the Constitution, but that does not mean that such aided institution acquires the statute of State Government within the meaning of Article 191(l)(a) of the Constitution, Article 12 of the Part III of the Constitution gives the inclusive definition of the States that in this part unless the context otherwise requires; the "State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India are under the control of the Government of India. By virtue of Article 35 in Part IV of the Constitution, the inclusive definition of State as given in Article 12, has been extended to Part IV also. So the inclusive definition of the State which takes within its ambit "all local or other authorities" is germane only to Part III and Part IV of the Constitution. Article 191(l)(a) comes in Part VI and the inclusive definition of State as contained in Article 12, cannot be extended to Part VI. 22. The reason of inclusive definition? 23. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge Government functions, but as the tasks of the Government multiplied with the advent of the welfare Stare, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new task which were often specialised and highly technical in character and were called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary- to forge a new as trumentality or administrative device in handling these new problems. It is to fulfil such need. Several Corporations came into being as the third rim of the Government. When the Government acts through the Corporations such are its instrumentalities and, agencies, local or other authorities, the acts done by [such' bodies for and on behalf of the Government are taken to be State action and they are amenable to the writ jurisdiction. It is in this context the word authority has to included in the definition of the Stale coder Article 12 of the Constitution. So not only the act directly done by the State or the Government but even the acts done on their behalf by other bodies partake the character of State action and are subjected to constitutional limitations. Therefore, an aided institution receiving considerable financial aid from the Government may be an authority within the meaning of Article 12 and may be subjected to constitutional limitations or to the writ jurisdiction but that does not become the Government of State within the meaning of Article 191(l)(a), falling in Ch. VI of the Constitution. 24. So it is a big fallacy to say that a body which is an authority within the meaning of Art 12 Part III, becomes Government of the State for the purposes of Chapter VI of the Constitution. Similar conclusion was reached at in para 12 on pages 496-497 in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 . 25. To sum up a teacher of an affiliated Degree College which is fully administered by the Management not being a Government or statutory body, though regulated by the University, created under the Statute, does not hold a post under the State Government land, therefore, is not disqualified under Article 191(l)(a) of the Constitution. Such a conclusion is fortified by several decisions of the Supreme Court, which may hurriedly refer to. In Abdul Shakur v. Rikhab Chand, AIR 1958SC 52, a Committee of the Durgah was appointed by the Government of India It was a body corporate. The members of the Committee were removable by the Government of India and the Committee was empowered to make bylaws. In Abdul Shakur v. Rikhab Chand, AIR 1958SC 52, a Committee of the Durgah was appointed by the Government of India It was a body corporate. The members of the Committee were removable by the Government of India and the Committee was empowered to make bylaws. The appellant was Manager of a School managed and run by the Government of the Nizam of Hyderabad which was taken over by the Durgah Committee in 1951. He was elected to the Council of States and his election was challenged on the ground that he held an office of profit under the Government. The appellant denied that he held an office of profit under the Government. Accepting the contention of the appellant, the Supreme Court in para 12 on page 55 observed : "Merely because the committee, or the members of the Committee are removable by the Government of India or the committee can make by e-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". When the servants of the Committee, members of which are appointed and are removable by the Government of India, do not hold the office of profit under the Government of India, how can a teacher of an affiliated college which is run by a Committee of Management, constituted by private persons, be said to hold an office of profit under the State Government. 26. 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 Article 102(l)(a) and Article 191(l)(a) of the Constitution of India. After discussing Abdul Shakur case (supra) and other cases, 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 directions 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. 27. The Supreme Court again considered this aspect in Ashok Kumar Bhattacharrya v. Ajoy Biswas, AIR 1985 SC 211 . 27. The Supreme Court again considered this aspect in Ashok Kumar Bhattacharrya v. Ajoy Biswas, AIR 1985 SC 211 . In this case the issue raised was whether an Accountant-in-charge of the Agartala Municipality held an office of profit within the meaning of Article 102(l)(a) (analogous to Article 191 (l)(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 the 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 Commissioner again subject to the sanction of the Government. He was paid out of Municipal funds, which the Municipality was competent to raise. The finding was that though the 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. 28. As to the functional test, it can be said that task of imparting education has not yet been taken over all over the State by the Government. The education is imparted in a mixed manner both by the State Government institutions and by privately run institutions, as the Nehru Degree College is. Imparting of education which in a way may be Governmental function, but strictly speaking is not a Governmental function as yet, because the people of the country are given full liberty to carry on the educational institutions, cannot be said to be State functions. So Nehru Degree College does not fulfil functional test too. 29. Sri Ram Bux Verma neither being appointed by the State Government, nor being engaged to discharge governmental functions, nor being paid wholly and exclusively out of Government revenue, could not be said to hold an office of profit under the State Government under Article 191(l)(a) of the Constitution. Simply because the affairs of the Nehru Degree College are supervised and regulated by the State Government with a view to promoting excellence in education, avoiding a sense of frustration amongst the teachers likely to be caused by irregular or non-payment of salaries and preventing highhandedness or arbitrariness of the Management in the matters of appointment and punishment. The Returning Officer was therefore, wrong in holding otherwise. The Returning Officer was therefore, wrong in holding otherwise. Though the First Statute of the University regulates the affairs of affiliated degree colleges, but the teachers engaged by the latter, do not become the employees of the State Government. The exercise of control over such colleges by the Government has become necessary, for two reasons : (11) because the State Government provides substantial financial aid to the institution and, therefore, the supervision over the use and expenditure of such funds is necessary; and (2) in a welfare State, it is the duty of the Government to take care of all citizens including the teachers, who are engaged in a noble profession of imparting education which is not only vital to the society but a pillar on which the edifice of a developing nation rests. 30. For the reasons, the issue no. 1 is decided in negative and in favour of the petitioner. It is held that the nomination paper of Sri Ram Bux Verma was improperly rejected. 31. Issue No. 2 :- The question for consideration is whether Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia employed as teachers in Inter College and Higher Secondary School respectively on the date of scrutiny of nomination papers, hold post of profit under the State Government under Article 191(l)(a) of the Constitution of India Precisely the same question came up for consideration before this Court in Sarnam Singh v. Smt. Pushpa Devi 1986 All U 507. The facts involved in the said case and the submissions advanced therein by the parties are identical to the facts and submissions, made in the instant case. Considering the rival submissions of the parties and scanning the entire case law relevant on the point, B. D. Agarwal, J. (as he then was), repelled all the arguments of the petitioner and held that the Committee of Management is not an instrumentality of the State, the appointment of teachers, Head-master or Principal are made by the committees and not by the State Government; that the Government exercised power only to safeguard against may administration; that the grant-in-aid is given only when matching funds are made available by the institutions and that it is not the responsibility of the State Government to , bear the financial burden of the institution; that ultimately the liability of payment of salary etc. is of the Management; that the collection of fees by the Inspector of Schools is for and on behalf of the Management, that approval by the commission in the matter of penalties is taken only to ensure adequacy of punishment and to prevent nepotism of the Committee of Management; that the commission is not a Government Department and any appointment made by the commission does not tantamount to an appointment by the State Government; that in the matter of removal etc. the Commission acts merely as a watch-dog; that initiation to suspend any Principal or the teacher rests with the Management and that the Inspector of Schools cannot force the Management to initiate suspension and that in no case it can be said that the teaching staff of the Intermediate College is appointed or removed by the State Government. It was held that the power of the State Government is clearly intended to safeguard against may administration and to promote excellence of education which vitally concerns the community, but the important fact is that over all view 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 un-repaired, the Court held that the 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 lo the Committee. It was also held that the control of the State expanding vis-a-vis 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 11982 is not such as might give rise to any conflict between the personal interest of a person placed in the position of the respondent as teacher in an Intermediate or Higher Secondary School and his duties as a Member of Legislature and in this manner defeat the central object underlying the statutory disqualifications. 32. 32. I fully agree with the view taken by learned brother B. D. Agarwal, J. and following the decision in Sarnam Singh (supra), I hold that Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia employed as teachers in Sardar Patel Inter College, Kachatipur District Farrukhabad, and in Swami Shiva Nand Higher Secondary School, Thathia, District Farrukhabad respectively on the date of scrutiny of the nomination papers, do not hold post of profit under the State Government within the meaning of Article 191(1)(a) of the Constitution, and, therefore, their nomination papers could not be said to be improperly accepted. 33. No arguments were advanced by either counsel on this issue and both the parties appear to have remained under the belief that this issue will be decided in the light of the decision in Sarnam Singh (1986 All LJ 507)(supra). There is nothing to show that the result of the election, in so far as it concerns to the respondent, was materially affected by having accepted the nomination papers of Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia. 34. For the reasons, this issue is decided in negative. 35. Issue Nos. 3 & 4 :- Both these issues can be taken up conveniently together. The case of the petitioner is that there being non-compliance with the provisions of S. 41 of the Act, 1951, inasmuch as, Sri Ram Bux Verma who was disqualified for being chosen to the State Assembly, was appointed by the respondent as her election agent, the election of the respondent is liable to be declared as void under S. 100(l)(d)(iv) of the Act, 1951. This issue consequent to the findings on issue No. 1. has to be decided against the petitioner. I have already held that Sri Ram Bux Verma does not hold a post of profit under the State Government and he was not disqualified for being chosen to the State Assembly, but his nomination paper was improperly rejected. This being so, the contravention of S. 41 cannot even be pleaded by the petitioner. This plea of the petitioner otherwise also is in conflict with the case, set up by him. This being so, the contravention of S. 41 cannot even be pleaded by the petitioner. This plea of the petitioner otherwise also is in conflict with the case, set up by him. On the one hand, the petitioner pleaded that Sri Ram Bux Verma being a teacher, in an affiliated degree college, does not hold a post of profit and as such is not disqualified for contesting the election, but on the other hand, the petitioner averred that Sri Ram Bux Verma being disqualified to contest the election was appointed by the respondent as her election agent in contravention of S. 41. Realising this snag, Sri Tripathi, learned counsel for the petitioner did not seriously press this plea, at the time of arguments. Though the petitioner led the evidence on this issue, that the respondent was wholly unknown in the political world and that it is only due to the efforts of Sri Ram Bux Verma, she emerged victorious, but the evidence adduced by the petitioner is not adequate to hold that the result of the election, in so far as it concerns the respondent, was materially affected by having appointed Sri Ram Bux Verma as the election agent. 36. These issues are, therefore, decided in negative and against the petitioner. 37. Issue No. 5 :- In view of the findings on issue No. 1 the election of the respondent becomes void and that deserves to be set aside. 38. Before parting with the case, would, however, like to say that this is a singular case where the election of the respondent has to be set aside for no fault of her. She is not involved in any corrupt practice nor is it a case where the respondent has contravened any provision of the Act, 1951. Three types of teachers imploded in different categories of institutions, namely, the Degree College, Inter-mediate College and Higher Secondary School, filed the nomination papers. Whereas, the nomination paper of the teacher employed in the Degree College, was rejected in view of Article 191(l)(a) of the Constitution, the nomination papers of the remaining teachers were accepted, and rightly so, as held above. Whereas, the nomination paper of the teacher employed in the Degree College, was rejected in view of Article 191(l)(a) of the Constitution, the nomination papers of the remaining teachers were accepted, and rightly so, as held above. The provisions of the Act, 1973 applicable to the Universities and Degree College affiliated there which are pari materia with the provisions of the Intermediate Education Act, 1921, applicable to the Intermediate College, Higher Secondary School and a High School recognised under the Intermediate Education Act, 1921,1 fail to understand when the provisions of the Act, 1973 and of the Act, 1921 are parallel then why a different view was taken by the Returning Officer in the case of Sri Ram Bux Verma a teacher in Degree College. In this connection, the observations made by their Lordships in a recent decision: Azhar Hussain v. Rajiv Gandhi 1986 All LJ 625 (SC) may be highlighted, which, so far as material, are as under: "In a democratic polity election is the mechanism devised to mirror the true wishes and the will of the people in the matter of choosing their political managers and their representatives who are supposed to echo their views and represent their interest in the legislature. The results of the Election are subject to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the true will of the people is reflected in the results and second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. In order that the "true will" is ascertained the Courts will step in to protect and safeguard the purity of Elections, for, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not the free and true will exercised intelligently by deliberate choice, It is not the will of the people in the true sense at ail And the Courts would, therefore, it stands to reason, be justified in setting aside the election in accordance with law if the corrupt practices are established. So also when the essential qualifications for eligibility demanded by the constitutional requirements are not fulfilled, the fact that the successful candidate is the true choice of the people is a consideration which is totally irrelevant notwithstanding the fact that it would be virtually impossible to re-enact the elections and case certain the wishes of the people at the fresh elections the time scenario having changed. And also notwithstanding the fact that elections involve considerable expenditure of public revenue (not to speak of private funds) and result in loss of public time, and accordingly there would be good reason for not setting at caught the election which reflects the true will of the people lightly. In matters of election the will of the people must prevail and Courts would be understandably extremely slow to set all caught the will of the people truly and freely-exercised. If courts were to do otherwise, the Courts would be pitting their will against the of the people, or countermanding the choice of the people without any object, aim or purpose." 39. The questions are; whether the respondent has brought about any impurity into the election by having exercised corrupt practices, fraud or deception over the electorate, whether she is not eligible to contest the election and whether any wrong in regard to election can be ascribed to her. The election of the respondent is not impugned on any such ground, but that has become void on a ground for which the respondent cannot be held responsible. The most interesting thing is that Sri Ram Bux Verma, husband of the respondent who was denied the chance to contest the election on the ground that he was disqualified under Article 191(l)(a) of the Constitution, is not the aggrieved party in this case. The petition has been filed by another defeated candidate. The facts of this case are such as to make every citizen of the country either involved directly or indirectly or not at all involved with the election, to ponder over the question whether on the facts and circumstances of this case it will be justifiable to set at caught the election, which truly reflected he wishes' and the will of the people. In all other Acts, the right to challenge the State action or any other wrong is given to only an aggrieved person, but under S. 100(l)(c) of the Act, 1951. In all other Acts, the right to challenge the State action or any other wrong is given to only an aggrieved person, but under S. 100(l)(c) of the Act, 1951. the election of a candidate will have to be set aside, if any nomination paper has been improperly rejected,. The question: whether the election not influenced by corrupt practices on the part of the returned candidate and the latter being fully eligible to contest the election, should be set aside or not merely on the ground that somebodys nomination paper who is not an aggrieved party, was wrongly rejected, requires a serious thought. Looking to the fact that the elections involved considerable expenditure of public revenue, private funds apart, and involved the deployment of huge man power which mainly include the public authorities, who can otherwise be employed in a more purposeful and constructive work sufficiently contributing to the growth of a developing country, the Election Commission may as it seems to be expedient, get suitably amended the provisions of the Act, 1951 to avert the situation, which arose in the instant election petition that the election of a successful candidate for no fault of her is to be ordered to be set aside. The Election Commission may consider and suggest the amendment of the Act, 1951 so as to restrict the right to challenge an election on the facts and circumstances of this case only to such candidate, whose nomination paper has, in fact, been rejected and who feels aggrieved thereby. In the present enactment when any election is held, the people will go on making a research and find out the lacuna in the rejection of the nomination papers and will challenge the election when they succeed to find one, though they may personally or directly be not affected by the rejection of nomination paper. 40. In the result, the election petition is allowed, the election of the respondent to the U. P. Legislative Assembly from 309 Umarda Assembly Constituency is declared void and the same is set aside. Let a copy of this judgment be sent to the Hon'ble Speaker of the U. P. Legislative Assembly and to the Election Commission, New Delhi. No costs are awarded in this case, as illegal rejection of the nomination paper of one of the candidates cannot be ascribed to the respondent. Let a copy of this judgment be sent to the Hon'ble Speaker of the U. P. Legislative Assembly and to the Election Commission, New Delhi. No costs are awarded in this case, as illegal rejection of the nomination paper of one of the candidates cannot be ascribed to the respondent. The petitioner will be entitled to withdraw the security, furnished by him on presenting a proper application.