The election petitioner who has been serving as a Lecturer in MC College, Barpeta, since 1970, had filed his nomination form, in the last General Election held in April 1996. from 43 Barpeta Legislative Assembly Constituency. As per notification dated 27.3.96. last date of filing of nomination was 3.4.96. the date of scrutiny was 4.4.96. 2. On the date .of scrutiny, respondent No.3. Krishna Kanta Das raised an objection that the election petitioner being a Lecturer in MC College. Barpeta (notified as provincialised under section 3 of the Assam College Education (Provincialisation) Act. 1996 (for short Assam Act) was holding an office of profit under the Govt. of Assam, as such disqualified from being chosen to fill the seat in the State Legislative Assembly. Upholding the objection petitioner's nomination was rejected by the Returning Officer, hence this petition on the ground of improper rejection of petitioner's nomination, as specified under clause (c) of section 100 of Representation of the Peoples Act, 1951, (for short the Act). 3. It is not in dispute the petitioner was in service (and still continues to be so) of MC College. Barpeta which is one of the 21 colleges notified in the Schedule under section 3 of the Assam Act. This Assam Act came into force on 26th March, 1996, the date of which it was published in the Assam Gazette Extraordinary and the petitioner by operation of section 3 thereof became Govt. servant for all intents and purposes. Section 3 of the Assam Act is reproduced below for ready reference. "3. Subject to the provisions of Articles 30 and 309 of the Constitutions of India and section 7 of this Act, all employees of the colleges selected on the basis of seniority in the district in accordance with the date of establishment and specified in the Schedule and now covered by the deficit scheme of grants-inlaid under the Govt. shall be deemed to have become the employees of the Govt. on and from the ( date of this Act coming into force, in the following terms and conditions, namely: (a) all rules including the rules of conduct and discipline which ate applicable to the Govt. shall be deemed to have become the employees of the Govt. on and from the ( date of this Act coming into force, in the following terms and conditions, namely: (a) all rules including the rules of conduct and discipline which ate applicable to the Govt. servants of corresponding grade, similarly place shall be applicable to all employees of the colleges; (b) all employees shall be entitled to such emoluments as salary and allowances, etc, as admissible to them as per orders of the Govt.: j Provided that no employees shall get as emoluments any amount which is less than the amount he was lawfully getting immediately before the coming into force pf this Act. (c) notwithstanding anything contained in the Assam Public Service Commission (Limitation of Function) Regulations, 1951 services of all employees against sanctioned posts and whose appointments have been approved by the < Director, Higher Education, Assam, shall be encadred in the appropriate cadres in accordance with the rule as may be prescribed by the Govt. for this purpose. (d) the inter-se seniority of the employees in a cadre or class shall be determined on the basis of the rules as may be prescribed by the Govt.. 4. To wriggle out this situation, the election petitioner, a Lecturer, and aspiring , legislator has pleaded not only his ignorance but also that of his Principal who did not know that the Assam Act had come into force. Needless to say, the ignorance is of no help to the petitioner, who has also averred and adduced evidence to prove that in anticipation of this legislation the petitioner had as back as 23.12.95 had expressed his option to continue in service on existing terms and not to come within the purview of the Assam Act. It is this option as evidenced by Ext 1 that learned counsel for the petitioner contended that the petitioner cannot be said to be holding an office of profit under the Govt.. Mr. Dutta on the other hand submitted that section 3 of Assam Act is very clear in its language and application the petitioner became a Govt. servant from 26.3.96 as such he was disqualified to be a member of the State Assembly and his nomination was rightly rejected. 5. Mr. Dutta on the other hand submitted that section 3 of Assam Act is very clear in its language and application the petitioner became a Govt. servant from 26.3.96 as such he was disqualified to be a member of the State Assembly and his nomination was rightly rejected. 5. Let us have a look at the evidence adduced by the petitioner, it is a feeble attempt to show that he is concerned by section 8 of the Assam Act having given his option as per Ext 1. Keeping aside the legal effect of such option, the evidence even if it had gone unchallenged and untested, in cross-examination, does not prove giving of an option as contemplated by section 8 of the Assam Act. The best evidence rule has been given a convenient go by. No foundation is laid for adducing secondary evidence. The petitioner has examined himself and two office assistants, one from the college and the other from Director's office, as witnesses, and produced four documents. Neither the Principal nor the Director has been examined as witness and it is not as if they are not available for examination as witness. It is not merely the letter, Ext 1 which is material, what is more important is the context in which it was written on what basis the Principal wrote about the exceptions and in what context and to what extent those who refused to come within the purview of the Assam Act is not at all brought out. Mere production of letter unless its author is examined, but the simple thing has not been done by the petitioner. The other witness. PW 3 is an Accountant-cum-Head Assistant who had produced the letters, Ext 3 and 4 and even, if these two letters are taken at their face value they do not improve the petitioners case. Ext 3 is a letter written by the petitioner on 5.4.96. Even if the option was given, as claimed, it was too apparently after the date of scrutiny of nominations i.e.4.4.96, what is the good of such an option? It was pointed out by learned counsel that six months there is provided for giving option under section 8 of the Assam Act. True it is, but not for those who want to contest elections held in between six months they should exercise their option well in time. It was pointed out by learned counsel that six months there is provided for giving option under section 8 of the Assam Act. True it is, but not for those who want to contest elections held in between six months they should exercise their option well in time. It is significant to note that several points were raised before the Returning Officer by a senior counsel appearing for the petitioner, but there is not even a whisper about the option exercised by the petitioner. Had he really exercised his option by writing the letter, Ext 3, it does not stand to reason that it would not have been brought to the notice of the Returning Officer either by actual production of the letter or at any rate in submissions made before him. The order dated 6.4.96 passed by the Returning Officer is totally silent about any such option. The criticism made that there are documents tailored for the occasion, cannot be lightly brushed aside. Ext 3 was submitted and received on 5.4.96. Assuming for a while that the exercise of option by the employee has the effect of wiping out the holding of office of profit, it was on 5th, whereas the date of scrutiny was 4th April, 1996. The disqualification remained there where it was on 4th of April, 1996. 6. A mere glance at Annexure 1 which is the photostat copy prepared from the office copy of Ext 1 the letter dated 23.12.95 purported to have been written by the Principal to the Director of Higher Education. Annexure 1 bears the endorsement 'Attested' with signature and seal of the Principal, MC College. Barpeta dated 6.4.96. This attestation is missing from Ext 1. Even the reference No. at the left hand side top of the letter does not tally, there is an over writing in number as is evident in Annexure 1. It is unusual for a Principal of a college to attest his own office copy, if the photostat copy Annexure 1 as filed by the petitioner is to be believed. The Principal though retired is still living in the same town and was very much available for evidence. It was only he who could have explained the suspicious circumstances surrounding the documents they fail to inspire confidence. 7. What was all this option about? The Principal though retired is still living in the same town and was very much available for evidence. It was only he who could have explained the suspicious circumstances surrounding the documents they fail to inspire confidence. 7. What was all this option about? Only to be governed by existing terms and conditions of service, would it effect the holding of office of profit under the Govt.. The source of revenue the grants would still continue to flow from the State Govt., the conditions of service may in some respect vary but section 3 of the Assam Act as quoted above makes it clear that the employees of provincialised college would be deemed to be Govt. servants and the operation of this provision would not necessarily be arrested by exercising the option as provided under section 8 of the Assam Act. What is an office of profit? Three things are necessary to be established for a person to be disqualified on the ground of holding an office of profit. 8. Learned counsel Mr. Mahanta, for the petitioner placing reliance on a judgment of the Supreme Court as reported in Satrucharla Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev, AIR 1992 SC 1959 , contended that the petitioner cannot be held to be holding an office of profit under the Govt.. The case relied upon is clearly distinguishable on facts. It was not a case of holding an office under the Govt. but it was a case of holding a post under the Integrated Tribal Development Agency (ITDA), a registered society. But even in this case as relied upon by the learned counsel the Supreme Court has pointed out the true test of determination of whether a person holds an office of profit under the Govt. depends upon the degree of control the Govt. has over it, the extent of control exercised by every other bodies or committees, and its composition, the degree of its dependence on the Govt. for its financial needs and the functional aspects namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of the Govt.. The payment from out of the Govt. revenues is another test. But payment from a source other than the Govt. revenue is not always a decisive factor. 9. The payment from out of the Govt. revenues is another test. But payment from a source other than the Govt. revenue is not always a decisive factor. 9. Applying the tests to the facts of the present case on coming into force of the Assam Act, all employees of the colleges are to be Govt. servants. The terms and conditions are as enumerated in clauses (a), (b), (c) and (d) of section 3. Their services will be governed by all rules including the rules of conduct and discipline as applicable to Govt. servants in corresponding grade. Their emoluments, salary and allowances are made admissible as per orders of the Govt.. Their appointments have to be approved by the Director of Higher Education as per rules prescribed by the Govt. and the intense seniority to be determined on the basis of rules to be prescribed by the Govt. 10. Similarly, section 5 of the Assam Act provides that on coming into force of the Act. the administration, management and control of all employees of the colleges provincialised under section 3 or 7 shall vest in the Govt. and the Governing Body of such college shall exercise such functions as may be specified by the Govt. or under the rules under this Act. The recruitment and conditions of service of the employees are to be in accordance with the rules as may be framed by the Govt.. It is thus abundantly clear that not only the revenue flows from the Govt. in the shape of grants, but the management and control of the employees for all intents and purposes vest in the Govt.. The option to choose the prevailing conditions of service does not divest the State Govt. of its power to manage and control the college and its employees. 11. In view of the foregoing discussion it is amply established that the petitioner was holding an office of profit on the date of scrutiny of his nomination i.e. 4.4.96. 12. In the result the election petition fails, it is accordingly dismissed with costs. Counsel fee Rs.2.000/-. The security deposit is made adjustable to the payment of costs.