S.B. Sinha, J.
1. The appellant herein was elected from 110 Naoboicha Legislative Assembly Constituency in the State of Assam. An election petition was filed by the first respondent herein questioning the election of the appellant in terms of Sections 100(1) of the Representation of the People Act, 1951 (hereinafter referred to and called as 'the said Act', for the sake of brevity), on the ground that he stood disqualified being the holder of a post of profit under the State of Assam.
BACKGROUND FACTS :
2. The appellant was said to have been appointed as an Assistant Teacher in 'Pabha Chariali M.E. Madarassa School' (hereinafter referred to as 'the said School'). He was working therein as an Assistant Teacher without any remuneration. Primary education is imparted in the said School. It appears that the primary education in the State of Assam used to be governed by three Acts, known as 'Assam Basic Education Act, 1954', Assam, Elementary Education Act, 1962' and 'Assam Elementary Education Act, 1968'.
3. In terms of the 1968 Act, the Regional Boards of Elementary Education were constituted which took over the management of elementary schools and pre-primary schools. There also existed a State Board of Elementary Education constituted under Section 4 of Assam Elementary Education Act, 1968.
4. The State thereafter enacted the Assam Elementary Education (Provincialisation) Act, 1974 (Assam Act No. VI of 1975) to provide for provincialisation of the elementary education in the State of Assam, in terms whereof the services of employees of the different categories of the State Board and Regional Boards for Elementary Education were to be provincialised for the purpose of bringing them under the direct management and control of the State Government. Pursuant to or in furtherance of the said Act, all assets and liabilities of the State Board and all Regional Boards vested in the State Government. In terms of Section 3 of the 1974 Act, the services of all teachers of elementary schools and pre-primary schools maintained by the Regional Boards of Elementary Education, all employees of the State Board of Elementary Education, all teachers appointed by the Regional Boards of Elementary Education and all ministerial staff appointed by the State Board of Elementary Education were provincialised under the said Act. The consequence of vesting of the institutions maintained by the authorities under the aforementioned three Acts is provided in Section 4A thereof which reads thus :
'Services of all teachers and employees who rendered services under the following repealed Acts and whose services are taken over by the Government on provincialisation on 5th September, 1975 under the principal Act shall be deemed to be services under the Government and shall qualify and count for pension and other retirement benefits.'
5. Section 27 (1) of the 1974 Act provides for rule making power. Pursuant to or in furtherance thereof, the State of Assam made rules for regulating the terms and conditions of services of teachers of elementary schools and employees employed therein known as 'the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 (hereinafter referred to as 'the 1981 Rules').
6. 'Service' has been defined in Rule 2(xii) of the 1981 Rules to mean :
' 'Service' means service rendered under the State Board for Elementary Education constituted under the Assam Elementary Education Act, 1968 and service rendered under the Government before or after provincialisation both in respect of teachers and other employees.'
7. Rule 3(i) of the said Rules reads thus :
'Terms and Conditions : The services of all teachers of Elementary Education taken over by the Government, on provincialisation on 5th September, 1975, as provided under Section 3 of the Assam Elementary Education (Provincialisation) Act, 1974, as amended, shall be subject to the following conditions :
(a) Services rendered during the repealed Acts :-
The Assam Basic Education Act, 1954 (Act XXVI of 1954), the Assam Elementary Education Act, 1962 (Act XXX of 1962), and the Assam Elementary Education Act, 1968 (Act XVIII) of 1969) shall be counted towards pension and other retirement benefits provided such services are substantive and permanent.
Explanation : Services rendered temporarily against leave or deputation vacancies shall be excluded.
(b) They shall be entitled to such scales of pay and allowances and other benefits as may be admissible to the teachers of corresponding rank of the Government School services with effect from the date of provincialisation.
(c) They shall be superannuated on attaining 58 years of age.'
8. The said school was not being maintained by any authority constituted under any of the aforementioned statutes. A notification, however, was issued on or about 19.11.1991 whereby and whereunder the said school was provincialised. Indisputably, the names of the appellant herein and a large number of teachers were dropped from the list of approved teachers and their services had not been provincialised under the provisions of the 1974 Act.
9. All Assam Middle English School Association of which the appellant is said to be a member filed a writ petition before the Assam High Court for regularization of services of the dropped teachers, which was marked as Writ Petition No. 2833 of 1997. The said writ petition was dismissed where-against an appeal before the Division Bench was filed being Writ Appeal No. 474 of 1997. The Division Bench while reversing the judgment of the learned Single Judge by reason of a judgment and order dated 13.11.1998, inter alia, directed :
'For the purpose of enabling the Government to complete process of regularization/provincialisation, the appellants association will furnish all necessary documents and particulars including names of concerned assistant teachers to the Director of Elementary Education, Assam, within two weeks from today. It will be open for the State Government to consider regularization/provincialisation of Assistant Teachers dropped at the time of provincialisation of ME and ME Madrassas during the year 1991-92 in addition to 1123 Assistant Teachers in case they find genuineness in the claims of such additional Assistant Teachers.
The impugned order dated 25.6.97 of the learned Single Judge passed in CR No. 2833/97 is set aside and the writ appeal is disposed of in terms of the aforesaid directions. But considering, however, the facts and circumstances of the case, the parties shall bear their own costs. '
10. Pursuant to or in furtherance of the said directions, the services of 190 working teachers were sought to be regularized w.e.f. 24.4.1998 by an order dated 8.1.1999 stating :
'...The services of the teachers may be regularized out of the posts already allotted to you vide this office letter No.EPD/OB/6/98/156 dated 24.4.98. Before issuing the regularization order to the working teacher concern the Dist. Ele. Edn. Officer should authenticate the same. The name of the teachers and the name of the schools as furnished the list received from Govt. The regularization of service of working teachers should be made on seniority basis as per physical verification report of Dist. Ele. Edn. Officer concerned and were working before the date of provincialisation of school and duly approval of the posts against section. No teachers should be regularized in case of readjustment of schools as per need of enrolment without prior approval of this Directorate...'
11. It appears that the District Elementary Education Officer by a letter dated 16.12.1999 addressed to the Secretary to the Government of Assam allegedly informed the latter about regularization of 97 numbers of dropped teachers and brought to his notice that it may be necessary to take steps for regularization of other teachers by creating posts therefore. As, allegedly, the order of the High Court was not complied with, a contempt petition was filed wherein in his affidavit the District Elementary Education Officer alleged that in compliance with the order of the court dated 13.11.1998, the services of 105 dropped teachers were regularized w.e.f. 24.4.1998 by an order dated 30.10.2000, and therein the name of the appellant found place at Sl. No. 28. It, however, appears that the appellant herein stopped attending the said school whereafter the Head Master of the said School by letters dated 2.5.2000, 12.6.2000 and 21.8.2000 asked the. appellant to come to the school with sufficient cause for his absence failing which action would be taken against him. The appellant neither joined, the School nor replied to the said notices. The Managing Committee of the said School adopted a resolution to the following, effect :
'Since Md. Sultan Sadique, Assistant Teacher has unauthorisedly been absent from his duty without any notice/intimation and it has been informed him on 2.5.2000, 12.6.2000 and 21.8.2000 by serving written notices. But no reply has been received from him in this regard.
The matter has thoroughly been discussed in today's and unanimously decides that in the interest of the school, Md. Sultan Sadik, Assistant Teacher of the Pabha Charali M.E. Madrassa has been released from his post with immediate effect.
It has also been decided to inform the authority concerned to take necessary action.'
12. A copy of the said resolution was forwarded to the appellant herein and a copy thereof was sent to the District Elementary Education Officer and the Block Elementary Education Officer by the Head Master of the said School by letter dated 30.8.2000, which is to the following effect :
'Office of the Head Master and Secretary Pabha Charali ME Madrassa, P.O. Kutubpur : Dist. Lakhimpur
Date : 30.8.2000
To
Md. Sultan Sadik
Assistant Teacher
Pabha Charali M.E. Madrassa
Subject : Release from service
Sir,
With reference to the subject cited above and due respect it has been informed you that the Managing Committee of Pabha Charali M.E. Madrassa vide its resolution No. 1 passed in its meeting held on 25.8.2000 decided to release you from the post of Assistant Teacher from Pabha Charali M.E. Madrassa.
This decision will be implemented with immediate effect.
Sincerely yours,
Sd/- illegible
Seal : Headmaster
Pabha Charali M.E.
Madrass, PO Kutubpur
Dist. Lakhimpur'
13. It is not in dispute that that the appellant herein despite receipt of the said purported order dated 30.8.2000 did not question the legality or validity thereof. He accepted the said order.
14. A notification for holding an election was issued on 16.4.2001. The appellant and the first respondent herein amongst others pursuant thereto filed their nomination papers. The first respondent herein filed objections to the nomination of the appellant on the ground that he was a Government employee and hence ineligible for contesting the election. The appellant herein took the stand that as despite order of regularization passed in his favour, he did not join duties nor received any salary, he was not a Government employee. The said plea was accepted. In the election, as noticed hereinbefore, the appellant was elected whereafter the election petition was filed by the first respondent.
ISSUES :
15. The High Court having regard to the pleadings of the parties, inter alia, framed the following issues:
'(5) Whether the Respondent No. 1 on the date of his nomination held any office of profit ?
(6) Whether on the date of scrutiny of nomination papers and also on the date of election the Respondent No. 1 was disqualified for being chosen to the Legislative Assembly of the 191(1)(A) of the Indian Constitution and Section 100(1)(a) and Section 100(1((d)(iv) of the Act '
HIGH COURT