1. This Election Petition, under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as 'the R.P. Act') is filed challenging the action of the second respondent in rejecting the nomination papers of the petitioner vide order in reference No. H4/1215/2009, dated 16.03.2009 under Article 191 of the Constitution of India, and consequently declare election of the first respondent as returned candidate for the Legislative Council of the State of Andhra Pradesh from 20-Karimnagar Local Authorities Constituency as illegal and void.
2. The brief facts that are necessary for disposal of this Election Petition may be stated as follows.
a)The petitioner is a resident of Korutla, Karimnagar district. He is a graduate. He was appointed as a Teacher in Schools run by Zilla Parishad, Karimnagar on 23.02.1977. While he was working as School Assistant Grade-II in Zilla Parishad Secondary School (for short, 'ZPSS'), Gatla Narasingapur, Karimnagar district, he went on leave with effect from 10.08.1990. He did not join duty thereafter due to domestic problems. Later, he submitted resignation to the said post held by him. Since then, for all purposes, he was no longer in employment of Zilla Parishad, Karimnagar as his name was removed from attendance registers, salary acquittance rolls and pay bills. Similarly, his name was ot shown in the seniority list issued from time to time. However, to avoid complications, the petitioner submitted a letter dated 23.8.2003 to the District Educational Officer (for short, 'DEO'), Karimnagar through the Head Master, ZPSS, Gatla Narsingapur to communicate orders of acceptance of resignation. Basing on the said letter, the DEO, Karimnagar sought further information from the Head Master, ZPSS, Gatla Narsingapur vide Rc. No.4255/A1/2003, dated 20.09.2003. The petitioner has been involved in politics and public service since the year 2001 when he became a member of Telangana Rashtra Samithi party (for short, 'TRS party'). The petitioner is a registered voter in Korutla constituency, Karimnagar district. Therefore, he is entitled, as per law, to contest the elections of the Legislative Council of State of Andhra Pradesh from 20-Karimnagar Local Authorities Constituency, and submitted his nomination in proper form on 13.3.2009 for contesting the election to the said constituency on behalf of the TRS party. The President of the TRS party by notice in Form-BB addressed to the Chief Electoral Officer, Andhra Pradesh, Hyderabad and the Returning Officer, duly informed that on behalf of the TRS party, the petitioner was set up as a candidate for the 20-Karimnagar Local Authority Constituency. Whereas, the second respondent submitted his nomination form on behalf of the Indian National Congress party (hereinafter referred to as 'the Congress party') for the said constituency.
b) On 14.03.2009, the first respondent submitted objections before the second respondent-Returning Officer to the nomination filed by the petitioner. The main objection of the first respondent was that the petitioner's nomination was hit by Article 191 of the Constitution of India as he was holding an office of profit as on the date of filing of nomination papers. In support of the said objection, the first respondent submitted a letter Rc.No.1617/A1-09, dated 13.03.2009, addressed to the Chairman, Zilla Parishad, Karimnagar by the DEO, Karimnagar. On 14.03.2009, the petitioner was given a notice by the second respondent on the objections filed by the first respondent. In response thereto, the petitioner submitted his reply dated 16.03.2009 through his counsel. The counsel of the petitioner had made oral submissions before the second respondent on 16.03.2009. The petitioner was not paid any salary from that date onwards and his name was deleted from the records and he was never called upon to attend the job and he was not issued any notice by his employer either asking him to join duty or proposing to take any action. It is also stated that Teachers working in Zilla Parishad i.e. Local Authority, cannot be treated as holding office of profit under the Government of the State since Local Authority is distinct from Government of any State. The second respondent, without properly considering the scope and purport of disqualification mentioned in Article 191 of the Constitution of India, and without considering the reply given by the petitioner in proper perspective, upheld the objections of the first respondent and held that since the process of resignation was still going on and acceptance of resignation was not completed and formal orders to that effect were not yet issued, disqualification of the petitioner subsists as on the date of scrutiny and accordingly declared the nomination of the petitioner as invalid and rejected the same by the impugned order. On the same day i.e. 16.03.2009, the only other contesting candidate by name Kanakala Raja Kumar Reddy, apart from the first respondent, was made to withdraw his nomination by the first respondent. Therefore, the second respondent declared the first respondent as unanimously elected as Member of Legislative Council from 20-Karimnagar Local Authorities Constituency on 16.03.2009.
c) It is stated that the petitioner worked as School Assistant from 23.02.1977 to 09.08.1990 and went on leave from 10.08.1990 and did not join duty thereafter and resigned later. The petitioner abandoned his service and never intended to join as he was well settled in business. Neither the DEO, Karimnagar nor the Zilla Parishad issued any notice of any kind at any time since the petitioner left his job in August, 1990 either calling upon him to join duty or proposing to take any action for his abandonment of service. Even otherwise, as per Rule 18-A of the Fundamental Rules, which came into force from 1.6.2007, a Government servant is deemed to have resigned if he is absent without authorization for a period exceeding one year. Therefore, the petitioner cannot be deemed as holding an office of profit under the Government on the date of filing his nomination papers or on the date of scrutiny. It is submitted that the scope and objective of the disqualification as stated in Article 191 of the Constitution of India is not to disqualify a person who has worked under the Government for some time. The second respondent, with an intention to favour the first respondent, has referred to a letter dated 13.3.2009 said to have been addressed by the DEO, Karimnagar to the Chairman, Zilla Parishad, Karimnagar, to show that the petitioner is working as a
Government Teacher. Hence, the Election Petition.
3.The first respondent filed detailed counter affidavit stating that the Election Petition is bad in law for not complying requirements of Section 83 of the R.P. Act. It is denied that while working as School Assistant Grade-II at ZPSS, Gatla Narasingapur, Karimnagar district, the petitioner went on leave with effect from 10.08.1990 and that he could not join his duty due to domestic problems and during the course of the period he submitted his resignation to the post of School Assistant Grade-II, and that the petitioner was no longer in employment of Zilla Praja Parishad, Karimnagar and that his name was removed from attendance registers, salary acquittance rolls and pay bills. It is stated that upon hearing both the parties, the second respondent rejected nomination of petitioner holding that the petitioner was holding an office ofprofit and he was working as a Government Teacher as on the date of filing his nomination papers. The said order is correct and based upon records maintained by the DEO, Karimnagar. The second respondent, after conducting proper enquiry on the objections raised by the first respondent and reply affidavit filed by the petitioner, passed the said order. In the Election Petition, the petitioner has not raised any grievance with regard to the statement made by the DEO on 16.03.2009 to the effect that the petitioner is a Government Teacher and he is directly under the control of the Government. It is further stated that proviso to Rule 18 of the Fundamental Rules has not been invoked by the Government and that under Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996, acceptance of resignation by the appointing authority and relieving him from the duties are required. Therefore, the petitioner is still on the rolls of the Government and as such he is holding office of profit as on the date of filing of the nomination papers. It is denied that on 16.03.2009, the only other contesting candidate, apart from the petitioner, by name Kanakala Raja Kumar Reddy was made to withdraw his nomination by the first respondent. It is denied that the petitioner went on leave from 10.8.1990 and he resigned his post, and the same is put to strict proof by the petitioner. The petitioner has not produced any documentary evidence at any point of time that he resigned from service and the same has been accepted by the competent authorities and he has been relieved by the Government. The petitioner has not stated as to when he submitted his resignation and to whom. Even if it is a fact that the petitioner resigned from the service, there is no finality to the resignation, and as such, as on the date of filing of the nomination papers, the petitioner was holding an office of profit. It is denied that the respondents have colluded with the common object to reject the nomination of the petitioner so as to declare the first respondent as unanimously elected from the constituency. It is stated that the petitioner is working as School Assistant Grade-II in ZPSS, Gatla Narsingapur, Karimnagar district, which is under the direct control and supervision of the DEO, Karimnagar, and that, it is the Government which has to give the funds to run such institutions and meet all the requirements of the said institutions. Thus, for all practical purposes, Zilla Parisha Schools are the schools of State and as such the post of the petitioner is a Government post and he is legally holding the same even as on today in view of non-finalisation of his alleged resignation. The Government of Andhra Pradesh issued orders framing adhoc rules, which came into effect from 23.01.2009, under which Andhra Pradesh School Educational Subordinate Service consists of posts of Teachers working in Zilla Praja Parishad and Mandal Praja Parishad Schools in Andhra Pradesh. This respondent denied and disputed about the resignation letter that is alleged to have been given by the petitioner to competent authorities thereby withdrawing from the service. Nowhere it is stated that the petitioner has been relieved from service of the Government and accepting his resignation in the proceedings of the DEO, Karimnagar. The petitioner is guilty of suppression of facts and documents. There is no illegality in passing the rejection order dated 16.3.2009 by the second respondent, and hence, it is prayed to dismiss the Election Petition.
4. On the basis of the above pleadings, the following issues have been framed by this court.
1) Whether the petitioner is a Government Employee as on the date of filing of the nomination ?
2) Whether the petitioner who voluntarily left the service as School Assistant on 10.08.1990 can still continue to be an employee and holds any office of profit under the State Government ?
3) Whether rejecting the nomination of the petitioner by the second respondent on the ground that disqualification under Article 191 of the Constitution of India still subsist as on the date of scrutiny, is legal ?
4) Whether the rejection of nomination of the petitioner by the respondent No.2 is in accordance with law ?
5) Whether the petitioner is bound by A.P. State and Subordinate Service Rules, 1996 ?
6) To what relief ?
5. The main issue in this Election Petition is to examine the correctness and propriety of the order of the second respondent dated 16.03.2009, by which nomination filed by the petitioner was rejected.
6. During trial, P.W.1 is examined and Exs,.P1 to P9 are marked, on behalf of the petitioner, and R.W.1 is examined and no documents are marked, on behalf of the first respondent.
7. The learned senior counsel Sri K.Ramakrishna Reddy appearing for the petitioner contended that, since the petitioner is working in Zilla Parishad, which is a local authority, it is not a disqualification under Article 191 (1) (a) of the Constitution of India; that a distinction has been drawn between holding of office of profit under the Central Government or the State Government and holding of office of profit under the local or other authority, in Articles 191 (1) (a), 52 and 66 (4) of the Constitution of India. He further contended that a person holding office of profit under the Central Government or a State Government alone is disqualified for being elected to the State Legislature. He further contended that Municipality or Zilla Parishad comes within the meaning of 'Local Body' and the persons holding an office of profit in Municipalities or Zilla Parishads would not suffer from any disqualification in view of the language employed in Article 191 (1) (a) of the Constitution of India. He further contended that the petitioner has already submitted resignation to his post in the year 1990 and in view of Rule 18A of the Fundamental Rules, it can be said to be a deemed acceptance and he was not drawing any salary from the Government and his name is not maintained in attendance registers, salary acquittance rolls and pay bills, seniority list, etc. He further contended that Zilla Parishad is a body corporate which is a separate and distinct entity and that holding the post under Zilla Parishad would not be recognized as Government service of the State and mere control by the Government over the Zilla Parishad is not sufficient to hold the Teachers working in Zilla Parishad as Government servants. Alternatively, it is contended that the petitioner has ceased to hold the post of Teacher in Zilla Parishad on the relevant date of filing his nomination papers by reason of his prior resignation. Hence, he prays to set aside the impugned order of the second respondent and consequently declare election of the first respondent as void and illegal. The learned senior counsel relied upon number of decisions which will be referred to at appropriate time.
8. On the other hand, Sri C.Prakash Reddy, learned senior counsel appearing for the first respondent stated that a person working under the local or any other authority, cannot suffer any disqualification, and contended that the petitioner is working in Zilla Parishad, which is directly under the control of the Government; that, the petitioner was appointed by the Government and he can be removed by the Government or by the officer appointed by the Government, and the salaries are being paid to the Teachers working in Zilla Parishad from the consolidated fund of the State; that the petitioner is holding a civil post and that the petitioner has filed no document to show that he is no longer a government servant; that acceptance of resignation and relieving from the post of School Assistant, are guided and controlled by the service rules applicable to the Teachers; that unless resignation is accepted by the Government and he is relieved from the duties, the petitioner can be deemed to have been continued in service in view of Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996; that, in respect of the post of Teacher, it is the DEO, who is the competent authority and therefore the petitioner is under direct control of the Government and hence, he was holding an office of profit under the State Government at the relevant point of time of filing his nomination, which is a disqualification, and considering these aspects, the second respondent rightly rejected the nomination of the petitioner as improper and there are no grounds to interfere with the impugned order. The learned senior counsel also relied a decision of the Apex Court, which will be referred to at appropriate time.
9. ISSUE Nos. 1 & 3 :
Whether the petitioner is a Government Employee as on the date of filing of the nomination & Whether rejecting the nomination of the petitioner by the second respondent on the ground that disqualification under Article 191 of the Constitution of India still subsist as on the date of scrutiny, is legal Under Section 81 of the R.P. Act, an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than the date of election of the returned candidate. Section 100 (c) of the R.P. Act provides remedy to a person who is aggrieved by an order improperly rejecting a nomination. In the context, it appears that improper rejection must have reference to Section 36 (2) of the R.P. Act and that rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer any one of the disqualifications mentioned in Section 36(2) of the Act, would be improper within the meaning of Section 100 (c) of the R.P Act. Under Section 36(2) of the R.P. Act, the Returning Officer shall examine nomination papers and decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the grounds mentioned therein. Section 36 (2) (a) of the Act reads that on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable viz. Articles 84, 102, 173 and 191.
10. For the purpose of present Election Petition, the relevant Article is 191 of Constitution of India. Under Article 191 (1) of the Constitution of India, 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 specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. The object of proviso in Article 191 of the Constitution of India is to secure the independence of the members of the Legislature and to ensure that the legislature does not contain persons who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. As rightly contended by the learned senior counsel Sri K.Rama Krishna Reddy appearing for the petitioner, the words 'under any local or other authority' which occur at the end of Articles 58 (2) and 66 (4) of the Constitution of India, are absent in Articles 102 (1) (a) and 191 (1) (a). Though holding of an office of profit under an authority subject to the control of the Government, is a disqualification for the office of the President or Vice President, it is not a disqualification for membership of a Legislature. On this aspect, the learned senior counsel appearing for the petitioner relied upon a decision in Abdul Shakur v. Rikhab Chand & another1, wherein it is held thus. (para 11)
"... It is significant to note that in laying down the disqualifications of the President and the Vice President the Constitution has expressly provided the disqualifications which include not only an office of profit under the Government of India or the Government of any State but also an office of profit under any local or other authority subject to the control of any of the said Governments. This last disqualification the Constitution does not make applicable to the members of the legislatures."
That is a case where the committee of a 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. In the factual back ground, it is held by the Supreme Court that the appellant therein was neither appointed by the Government of India nor is removed by the Government of India nor he is paid within the revenues of India. In the present case, the facts are entirely different.
11. The learned senior counsel appearing for the petitioner also relied on a decision in D.R. Gurushantappa v. Abdul Khuddus Anwar & others2, wherein it is held thus:
"..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 Governments and not directly under any of the Governments. This indicates that in the case of eligibility election as a member of a 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 be 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 that officer from being a candidate 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 learned senior counsel also placed strong reliance on a decision in Ashok Kumar Bhattacharyya v. Ajoy Biswas & others3, wherein it is held thus: (para 14) "In fact a person who is holding an office of profit either under the government of India or the government of the State or any other local or other authority subject to the control of the said governments is disqualified from becoming a President but if a person holds an office of profit under the government of India or the government of any State, he only is disqualified from being a Member of Parliament. A holder of the office of profit under any authority or Local Authority subject to the control of the State or central government is as such not disqualified from becoming a Member of Parliament. Keeping m view these provisions, it is necessary to consider the question whether respondent 1 was holding an office of profit under the State government."
Basing on the above decisions, the learned senior counsel appearing for the petitioner contended that disqualification attached to Article 191 of the Constitution of India applies only to the persons holding an office of profit under the State Government, but not to the persons working under the local or other authority. The learned senior counsel appearing for the first respondent has not denied or disputed about the proposition of law laid down by the Apex Court in the aforementioned decisions. But, his contention is that in the factual back ground, though the petitioner is working under a local authority, he is directly under the control of the Government since his initial appointment, disciplinary proceedings and payment of salary are directly under the control of the DEO, who is a Government Employee, and so the petitioner comes within the meaning of person holding an office of profit under the Government.
12. So, the point taken by the learned senior counsel appearing for the petitioner Sri K.Rama Krishna Reddy is that the election petitioner could not be said to be holding an office of profit under the Government and was consequently not subject to any disqualification for being elected as a Member of Legislative Council. His contension is that a local authority as such is a separate and distinct entity. On the other hand, the contention of the learned senior counsel Sri C.Prakash Reddy appearing for the first respondent is that at the material time, the petitioner was holding office of profit under the State Government and therefore it is a disqualification under Article 191 (1) (a) of the Constitution of India. A plain reading of the expression 'holding of office of profit under the Government', it must be that an office to be held under the Government to which any pay, salary, emoluments or allowances is attached. What is material in deciding whether the office carries any profit or not, is whether any amount of money receivable by a person in connection with the office he holds. To constitute an office of profit within the meaning of this Article is pecuniary advantage. Once there is a pecuniary gain, or there can be a pecuniary gain, its quantum is immaterial. Similarly, for holding an office of profit under the Government, a person need not be in the service of the Government and there need not be any relationship of master and servant between them.
13. There is no dispute that the petitioner was working as a Teacher in ZPSS, Gatla Narasingapur, Karimnagar district. According to the petitioner, he worked as a Teacher till 1990 and thereafter he abandoned his service due to personal reasons. Whereas the case of the first respondent is that since resignation of the petitioner has not been accepted by the competent authority, he is deemed to be in the service as on the date of filing of the nomination. Certain tests or principles that emerge for determining whether a person holds an office of profit under the Government, have been summarized in the decision relied upon by the learned senior counsel for the petitioner, in Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev & another4, wherein the Apex Court held thus:
"On a careful examination of the ratio laid down in the abovementioned cases some of the tests or principles that emerge for determining whether a person holds an office of profit under the Government, may be summarised thus:
" (1) The power of the government to appoint a person in office or to revoke his appointment at its discretion. 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.
(2) The payment from out of the government revenues are important factors in determining whether a person is holding an office of profit or not of the government. Though payment from a source other than the government revenue is not always a decisive factor.
(3) The incorporation of a body corporate and entrusting the functions to it by the government may suggest that the statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent. Sometimes, the form may be that of a body corporate independent of the government, but in substance, it may just be the alter ego of the government itself.
(4) The true test of determination of the said question depends upon the degree of control the government has over it, the extent of control exercised by very other bodies or committees, and its composition, the degree of its dependence on the government for its financial needs and the functional aspect, namely, whether the body is discharging any important governmental function or just some function which is merely optional from the point of view of the Government. "
In the above decision in Satrucharla Chandrasekhar Raju case (4 supra), decision in Shivamurthy Swami Inamdar v. AGadi Sanganna Andanappa5 is also referred to in para no.20, wherein it is held thus:
"The tests for finding out whether an office in question is an office under a Government and whether it is an office of profit.. are (1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder Does he perform them for the Government and (5) Does the Government exercise any control over the performance
of these functions ?"
14. On this aspect, the learned senior counsel appearing for the first respondent relied on a decision in Biharilal Dobray v. Roshan Lal Dobray6, wherein it is held thus:
"We are of the view that the present case is governed by the principles laid down by the judgment of this Court in Raman Lal Keshav lal Soni's case (AIR 1984 SC 161) (supra ). The functions of the employees of the Board are in connection with the affairs of the State. The expenditure of the Board is largely met out of the moneys contributed by the State Government to its funds. The teachers and other employees are to be appointed in accordance with the rules by officers who are themselves appointed by the Government. The disciplinary proceedings in respect of the employees are subject to the final decision of the State Government or other Government officers, as the case may be. This Court, as mentioned earlier, held in Divya Prakash's case (AIR 1975 SC 1067) (supra) that the officers of the Board of School Education constituted under the Himachal Pradesh Board of School Education Act, 1968 which was a body corporate having perpetual succession and a common seal held their offices under the Government although in that particular case it was held that the office was not an office of profit as the person concerned was working in an honorary capacity. We have gone through the Himachal Pradesh Board of School Education Act, 1968 and we find that the provisions of that Act are almost similar in pattern to the provisions of the Act with which we are concerned in this case.............
"...Sometimes the form may be that of a body corporate independent of the Government but in substance it may be just the alter ego of the Government itself. The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by the several other bodies or committees over it and their composition, the degree of its dependence on Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of Government."
15. Bearing the above principles in mind, it has to be seen whether the teachers working in the Zilla Parishad come within the purview of persons holding an office of profit under the Government.
16. The contention of the learned senior counsel appearing for the petitioner is that Zilla Parishad is a local authority which is a body corporate having a perpetual succession and common seal. On this aspect, he relied on a decision of a Division Bench of this Court in Government of A.P. & others v. P.Vema Reddy & others7 wherein it is held thus: (Para 23)
"The submission of the Learned advocate General that, since posts of teachers in mandal parishad and zilla parishad schools are civil posts, they come under the control of the department of education of the state government and, as they are paid salaries and allowances from the budget of this department, it is always open to the government to bring such teachers within the department of education, does not merit acceptance. Even if it were to be held that such teachers hold civil posts, the fact remains that they are working in schools of mandal parishads and zilla parishads which, under Part IX of the Constitution and the provisions of the A. P. Panchayat Raj Act, are institutions of local self government. In ranga Reddy District Sarpanches' association v. Government of A. P. , a larger bench of five judges of this court, held that it is for the State Legislature to decide, by expressing its will through legislation or subordinate legislation, as to what extent panchayat Raj Institutions should be conferred with power and authority and that Articles 40 and 243-G of the Constitution have left it to the wisdom of the State Legislature as regards the extent of the powers and authority to be endowed on Panchayat Raj institutions. It is, however, well to remember that the powers to be conferred on the Panchayats, by the state Legislature, must be such as are required to enable them to function as institutions of self-government. Under section 4 (3) of the A. P. Panchayat Raj act, 1994 the Gram Panchayat, under section 148 (4) the Mandal Parishad and under section 177 (2) the Zilla Parishad, are bodies corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and to enter into contracts and, by its Corporate name to sue and be sued. These Panchayat Raj institutions are. independent legal entities distinct from that of the Government of Andhra Pradesh. The a. P. Panchayat Raj Act, 1994, made pursuant to the 73rd amendment and introduction of part IX to the Constitution could not have and, in fact, has not treated these panchayats as forming part of any department of the state Government, for that would defeat the very object of making panchayats institutions of local self-
government."
There is no dispute about the proposition of law laid down by this Court. This is a case where the Division Bench of this Court examined the Andhra Pradesh School Education Teachers and other Employees (Abolition of Existing Service Cadres and Regulation of Recruitment and Conditions of Services) Act, 2005 (Act 27 of 2005) and notified in G.O.Ms. Nos.95 and 96, dated 25.07.2005 on various grounds. It is observed in the decision that Act 27 of 2005 is intended only to integrate the erstwhile service of teachers working in Government schools, which was hitherto organized into local cadre, with the cadre of teachers working in Mandal Parishad and Zilla Parishad School, which were not organized into local cadre. That action of State is in violation of the A.P. Public Employment (Organisation of Local Cadre and Regulation of Direct Recruitment) Order 1975. In that context, it was observed by this Court as referred to above. Hence, that decision has no application to the facts of the present case.
17. Section 177 (2) of the Andhra Pradesh Panchayat Raj Act, 1994 reads as follows:
"Every Zilla Parishad shall, by the name of the District for which it is constituted, be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and to enter into contracts and may by its corporate name, sue and be sued."
There is no dispute that Zilla Parishad is a separate and distinct entity. It is also pertinent to refer to a decision of Constitutional Bench of the Apex Court in Guru Gobinda Basu v. Sankari Prasad Bhosal & others8 wherein it is held thus: (para 14)
"There again the decisive test was held to be the test of appointment. In view of these decisions we cannot accede to the submission of Mr. Chaudhuri that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf -must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The cases we have referred too specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will dependon the facts of each case. However, we have no hesitation in saying that where
the several elements, the power to appoint, the power to dismiss, the power to control and give directions 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."
18. Therefore, there is no dispute that Zilla Parishad is a corporate body having perpetual succession and a common seal. There is also no dispute that Zilla Parishad is an institution of self-government which comes within the meaning of local authority. Simply because a person is working in a School run by Zilla Parishad, he cannot be brought under the purview of Government. Section 192 of the Andhra Pradesh Panchayat Raj Act deals with powers and functions of Zilla Parishad. It shall exercise such powers and perform such functions as may be entrusted to it by the Rules made in this behalf with regard to the subjects enumerated in the First Schedule. One of the subjects listed in the First Schedule is 'Education, including primary and secondary schools'. No Rule made in pursuance of the Act is brought to the notice of this Court to show that Zilla Parishad or an Officer of Zilla Parishad is the appointing authority in respect of School Assistant Grade-II; that it has power to dismiss such person, that it has power to control and give directions with regard to performance of duties of the office, and that it has power to determine the question of remuneration. When all the aforesaid mentioned elements are absent, it cannot be said that such person is holding office of profit under local authority. For the purpose of deciding the Election Petition, it is immaterial whether a person is working in Zilla Parishad or a local or other authority, but if the tests laid down in Guru Gobinda Basu's case (8 supra) are co-exist and each element is shown to be subordinate to Government, then he can be said to be holding an office of profit under the Government. Therefore, the factual back ground of the case with reference to the tests laid down in Guru Gobinda Basu's case (8 supra) has to be looked into to determine whether a person holding the office of profit under the Government.
19. It is not the case of the petitioner that he is appointed by the Officer of Zilla Parishad and his service conditions are governed by the Rules or Executive Instructions issued from time to time by the Zilla Parishad. It is also not his case that the Chairman of the Zilla Parishad or any other officers of the Zilla Parishad is his appointing authority or disciplinary authority. It is also not his case that when he worked as School Assistant Grade-II in ZPSS, Gatla Narsingapur, his pay, salary and other emoluments were being paid by the Zilla Parishad. It is also not his case that Chairman of Zilla Parishad or a officer of the Zilla Parishad is only competent to remove him from service. It is also not his case that Zilla Parishad was having the power to control the duties of his office nor was giving directions to him to perform certain functions. On the other hand, the learned senior counsel appearing for the first respondent contended that DEO is the appointing authority of the petitioner and salaries of School Assistant Grade-II were being paid from the consolidated fund of the State and that the petitioner is not directly under the control of Zilla Parishad though he is working in ZPSS. On this aspect, the learned senior counsel brought to the notice of this Court with regard to the composition of officers and other employees of the Zilla Parishad by relying upon Section 61 of the Andhra Pradesh Gram Panchayat and Panchayat Samithis and Zilla Parishads Acts (Third Amendment) Act, 1981. The third amendment Act brought amendment to the main enactment Andhra Pradesh Gram Panchayat Act, 1964. This Act has been repealed by the Andhra Pradesh Panchayat Raj Act, 1994. The learned senior counsel appearing for the first respondent also placed reliance on Section 195 of the new Act, which deals with officers and other employees of
the Zilla Parishad.
20. It is the case of the petitioner that he was initially appointed as a Teacher in a school run by the Zilla Parishad, Karimnagar on 23.02.1977. It is his further case that while he was working as School Assistant Grade-II in ZPSS, Gatla Narsingapur (which is a Secondary Education School), he went on leave with effect from 10.08.1990. By that time, the provisions of the Andhra Pradesh Gram Panchayat Act, 1964 and Andhra Pradesh Gram Panchayat and Panchayat Samithis and Zilla Parishads Acts (Third Amendment) Act, 1981 (till it was repealed) would apply to the persons working in Zilla Parishads and Mandal Parishads, as the case may be. Section 51 of the Third Amendment Act, 1981 reads thus:
"Officers and other employees of Zilla Parishads:- The Government may, at any time, create such posts of officers and other employees of Zilla Parishad, as they may consider necessary, for carrying out the purposes of this Act. (2) All appointments to the posts created under sub-section (1) and transfer of the holders of such posts shall be made, subject to such rules as may be made under the proviso to Article 309 of the Constitution. (3) The Government shall pay, out of the Consolidated Fund of the State, the salaries, allowances, leave allowances, pension and contributions, if any, towards the provident fund or pension-cum-provident fund of the officers and other employees of a Zilla Parishad, who hold any of the posts referred to, in sub-section (1). (4) The classification and methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the officers and other employees referred to in sub-section (1), shall be regulated in accordance with such rules as may be made under the proviso to Article 309 of the Constitution. (5) (a) Every holder of the posts in a Zilla Parishad, specified in clause (b), who is appointed under this Act immediately before the commencement of the Andhra Pradesh Gram Panchayats and Panchayat Samithis and Zilla Parishads Acts (Third Amendment) Act, 1981, shall, notwithstanding anything in this Act, continue to hold such post, subject to such rules as may be made under the proviso to Article 309 of the Constitution; and until provision in that behalf is so made, the law for the time being in force regulating the recruitment and conditions of service applicable to such holder immediately before such commencement, shall continue to apply to such holder.
(b) The posts specified for the purposes of this sub-section are the following,
namely:-
(1) Managers (2) Superintendents; (3) Senior Assistants and Senior Accountants (Formerly called as Upper Division Clerks); (4) Loans Inspectors; (5) Junior Assistants (formerly called as Lower Division Clerks); (6) Junior Accountants; (7) Seed Store Clerks: (8) Typists; (9) Steno-Typists; (10) Record Assistants: (11) Laboratory Attenders; (12) Library Attenders; (13) Librarians: (14) Daffedars; (15) Attenders; (16) Drivers; (17) Medical Officers in Local Fund dispensaries and the staff attached to them; (18) Teachers working in the schools under the control of Zilla Parishads."
The above provision, which is applicable till date of alleged resignation by the petitioner, would clearly reveal that the Government is the sanctioning authority for the posts of Zilla Parishad and it is the appointing authority and also salaries, allowances, leave, and other benefits, etc. shall be payable out of consolidated fund of the State, and the classification, method of recruitment, conditions of service, pay and allowances and discipline and conduct of the officers shall be regulated in accordance with the rules as may be made under the provision to Article 309 of the Constitution of India. Therefore, from the above provision, it is clear that though the petitioner, even according to him, worked in Secondary School in Zilla Parishad, he is subject to control in all respects, by the Government of Andhra Pradesh only, but not Zilla Parishad.
21. Even after promulgation of the Andhra Pradesh Panchayat Raj Act, 1994 which came into force from 22.04.1994, also, it inter alia provides for officers and other employees of the Zilla Parishad. Section 195 of the Andhra Pradesh Panchayat Raj Act, 1994 deals with officers and employees of the Zilla Parishad, which reads thus:
"Officers and other employees of the Zilla Parishad:-
(1) The Government may, at any time, create such posts of officers and other employees of a Zilla Parishad as they may consider necessary for carrying out the purposes of this Act.
(2) All appointments to the posts created under sub-section (1) and transfer of the holders of such posts shall be made, subject to the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984; the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994, and such rules as
may be made under the proviso to Article 309 of the Constitution.
(3) The Government shall pay, out of the Consolidated Fund of the State, the salaries, allowances, leave allowances, pension and contributions, if any, towards the provident fund or of a pension cum-provident fund of the offers and other employees of a Zilla Parishad who hold any of the posts referred to in sub-section (1).
(4) The classification and methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the officer and other employees referred to in sub-section (1), shall be regulated in accordance with the provisions of the Andhra Pradesh Public Employment (Regulation of Age Superannuation) Act, 1984, the Andhra Pradesh (Regulation of Appointment to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 and such rules as may be made under the proviso to Article 309 of the Constitution. Until the rules in that behalf are so made, the law for the time being in force regulating the recruitment and conditions of service, pay and allowances and discipline and conduct, applicable to such holder shall continue to apply to such holder.
(5) The Government, may from time to time, by order give such directions to any Parishad or any officer, authority or person thereof, as may appear to them to be necessary for the purpose of giving effect to the provisions of this Section and the Zilla Parishad, Officer, authority or person shall comply with all such directions."
From the above provision, it is clear that power of creation of posts lies within the purview of the Government and the appointments are to be made by the Government and the Government is the pay master with regard to the salaries, allowances, etc. to be paid from the consolidated fund and the classification, method of recruitment, conditions of service, pay and allowances and discipline and conduct of the officers shall be regulated in accordance with the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984; the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 and such Rules as may be made under the proviso to Article 309 of the Constitution of India until the Rules in that behalf are so made. There cannot be any dispute that under Article 309 of the Constitution of India, State Legislature has plenary powers to make laws to regulate the recruitment and conditions of service of persons serving under the State. But, that is subject to provisions of the Constitution.
22. The learned senior counsel appearing for the first respondent brought to the notice of this Court G.O. Ms. No.12, School Education (Ser.III) Department, dated 23.01.2009 issued by the Government of Andhra Pradesh by framing adhoc rules in exercise of power conferred by Sections 78 and 99 of the Andhra Pradesh Education Act, 1982 and proviso to Article 309 of the Constitution of India whereunder constitution of posts of the Teachers in Zilla Parishads consists of posts of Teachers working in Zilla Praja Parishad and Mandal Praja Parishad schools in Andhra Pradesh, and the appointing authority of various categories of posts of School Assistants is the DEO. So, by the date of filing of nomination by the petitioner, it is clear that DEO is the appointing authority for the post of the School Assistant. It is not in dispute that DEO is being appointed by the State Government. Under Section 4 of the A.P. Education Act, 1982, the Government may appoint for each district one or more District Educational Officers, and every such District Education Officer shall exercise such powers and perform such functions as may be entrusted to him by or under this Act. The contention of the learned senior counsel appearing for the petitioner is that DEO, acting in some capacity on behalf of Zilla Parishad, may be the appointing authority for the post of School Assistants in Zilla Parishad. There is no pleading or evidence on record to substantiate the same. Similarly, no Rule or executive instruction issued by the Government, is brought to the notice of this Court to show that DEO is also exercising some functions on behalf of the Zilla Parishad in appointing School Assistants.
23. Even the petitioner as P.W.1 admitted that the purpose of addressing Ex.P1-letter to the DEO, Karimnagar is to accept his resignation and to issue necessary proceedings and that the DEO has not accepted his resignation, which clearly go to show that the appointing authority is the DEO, Karimnagar. P.W.1 also stated in his chief-examination that the Chief Executive Officer of Zilla Parishad vide letter dated 8.4.2009 informed him that as per G.O. No.40, dated 7.5.2002, service particulars of all the Teachers with files and records have been transferred to the DEO. If really the petitioner is working in Zilla Parishad, he would have addressed resignation letter to the Chairman of Zilla Parishad. Therefore, even from the evidence on record, it is clear that the Government is the appointing authority to the post held by the petitioner and it is the officer of the Government alone, has authority to remove or dismiss the petitioner from service and it is the Government that is paying salaries to the Teachers including the petitioner and the petitioner is discharging the functions in the school in accordance with the provisions of the Andhra Pradesh Education Act, 1982 and the Government is exercising direct control over the performance of the functions, of all the Teachers working in the Zilla Parishad.
24. Under Section 8(2) of the Andhra Pradesh Education Act, 1982, every Zilla Parishad shall establish, maintain or expand secondary, vocational and industrial schools in the area within its jurisdiction and shall undertake the management of such schools taken over by the government and entrusted to it and shall also be responsible to implement the objectives of secondary education. Under Section 7(4) (a) of the Act, the main objective of secondary education shall be to impart such general education as may be prescribed to each pupil so as to make him fit either for higher academic studies or for job oriented vocational courses, by the time he completes his secondary education. Under Section 5 of the Act, the Government may, by notification, constitute a Board. The functions of the Board shall be to give advice to the Government, including the conduct of examinations, conforming to the minimum standards as may be prescribed and the award of certificates. Under Section 92 of the Act, the Government has power to give directions so as to give effect to the provisions contained in the Act. From the above provisions, it is clear that the function of Zilla Parishad in respect of secondary education is to establish, maintain or expand the schools and management of schools taken over by the Government and entrusted to it. The Zilla Parishad shall also be responsible to implement the objectives of secondary education.
25. Therefore, from the above evidence and the legal position, this court has no hesitation in holding that the petitioner is a Government employee within the meaning of "person holding office of profit under the Government" under Article 191 (1) (a) of the Constitution of India. Accordingly, these issues are answered.
26. ISSUE Nos. 2 and 5 :
Whether the petitioner who voluntarily left the service as School Assistant on 10.08.1990 can still continue to be an employee and holds any office of profit under the State Government and
Whether the petitioner is bound by A.P. State and Subordinate Service Rules, 1996 ?
Sufficiency of proof for disqualification in election cases is one of a slight over balance but more than proof beyond reasonable doubt as required in a criminal case. The point that requires consideration on this aspect is whether at the material point of time of filing of nomination papers, the petitioner held any office of profit under the Government.
27. It is in the evidence of P.W.1 that he was appointed as a Teacher in a School run by Zilla Parishad, Karimnagar on 23.2.1977 and while he was working as School Assistant Grade-II in Gatla Narasingapur, he went on leave from 10.08.1990 and he did not join duty due to domestic problems and that he submitted resignation to the said post and that his service record is also not maintained thereafter as he left the job and his name was removed from attendance register, salary acquittance rolls, pay bills, seniority list, etc. and that he addressed Ex.P1-letter to the DEO, Karimnagar to accept his resignation but no action has been taken thereon. He further stated in the chief-affidavit that since he abandoned service in August, 1990, he cannot be said to be continuing in service as on 16.3.2009 i.e. the date of filing his nomination. He admitted that he has not produced any document before the Returning Officer (R2) to show that he was no more a Government servant or that his resignation was accepted. He also admitted that except Ex.P1, the other documents do not reveal about his sending resignation letter to the concerned authorities and the same was pending for consideration with the competent authority. He also admitted that he does not remember the date on which he resigned his job and he did not mention the date of resignation either in Ex.P1- letter or Ex.P7-reply affidavit filed by him before the Returning Officer or in his affidavit. Therefore, from the evidence, it is clear that except Ex.P1, which is letter given to the DEO, Karimnagar on 23.8.2003, the petitioner has not filed any other document to show that he resigned the post in the year 1990. Except the oral assertions that the petitioner was not being paid any salaries from 1990 onwards, that his name was deleted from the records, that he was never called upon to attend job, that his name does not find place in attendance register, there is absolutely no other oral or documentary evidence let in to substantiate the same. Even Ex.P6, which is the letter dated 13.3.2009 addressed by the DEO, Karimnagar to the Chairman of Zilla Parishad, Karimnagar, does not indicate that the petitioner's services have been terminated or that he was not being paid salaries. It only shows that the petitioner had not been attending the duties from 9.8.1990.
28. On this aspect, the learned counsel for the petitioner placed strong reliance on a decision in C.Jacob v. Director of Geology and Mining & another,9 wherein it is held thus: (para 12)
"When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for purpose of pension. That will be a travesty of justice."
It is a case where the employee was unauthorisedly absent himself and after lapse of 20 years, that employee demanded that he should be taken back. So, in the facts and circumstances of that case, it is held that such an employee cannot be treated as having continued in service.
29. Resignation means, voluntary giving up of one's own right and in relation to an office. It connotes the act of relinquishing the office. On this aspect, it is pertinent to refer to a decision in Moti Ram v. Param Dev & another10 wherein it is held thus: (para 15).
"As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it cannotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e. g. , acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it."
It is also pertinent to refer to another decision in Union of India, etc. v. Gopal Chandra Misra & others11 wherein it is held thus: (para 25). "In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e. g. American Jurisprudence, Second Edn. , Vol. 15a, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the causal and effectual aspects of one and the same event."
From the above decisions, it is clear that resignation is voluntary relinquishment of employment. The offer of resignation becomes effective only when it is accepted by the competent authority and when the Government servant is relieved of his duties. But, the same can be displaced by express
provisions to the contrary.
30. Submission, acceptance of resignation and relieving from the post, of a Government employee is governed by Fundamental Rules and the Andhra Pradesh State and Subordinate Service Rules, 1996. There cannot be any dispute that Fundamental Rules would apply to all Government servants who are paid from the consolidated fund of the State as per Fundamental Rule 2. Rule 18A of the
Fundamental Rules reads thus:
"A Government servant shall be deemed to have resigned from the service, if he-
(a) is absent without authorization for a period exceeding one year, or
(b) remains absent from duty for a continuous period exceeding five years with or without leave; or
(c) continues on foreign service beyond the period approved by the State Government; Provided that a reasonable opportunity to explain the reason for such absence or continuation on foreign service shall be given to the Government Servant before the provisions of this sub-rule are invoked."
Though the above Rule shows that if a Government servant is absent for more than one year without authorization or remains absent from duty for five years, it is deemed that he has resigned from the service. But, the said Rule is subject to the proviso thereto, which prescribes that a reasonable opportunity should be given to the Government servant before invoking the said
Rule. Admittedly, no reasonable opportunity to explain the reason for absence is issued to the petitioner.
31. The Andhra Pradesh State and Subordinate Services Rules, 1996 shall apply to the State and Subordinate Services and to the holders of posts, whether temporary or permanent included in any State or Subordinate Service except to the extent otherwise expressly provided. Similarly, under Section 3-B of the Rules, any rules made under the proviso to Article 309 of the Constitution of India in respect of any service or any class or category thereof, shall be applicable to all persons holding the posts intended to be held by members of that service, class or category on the date on which such rules were made applicable.
32. Under Rule 30 (a) of the Andhra Pradesh State and Subordinate Service Rules, 1996, a member of a service may resign his appointment and the acceptance of his resignation by the appointing authority shall take effect:-
(i) in case he is on duty, from the date on which he is relieved of his duties in pursuance of such acceptance;
(ii) in case he is on leave, from the date of communication of such acceptance to the member or if the said authority so directs, from the date of expiry of leave; and
(iii) in any other case, from the date of communication of such acceptance to the member or from such other date, not being earlier than the date on which he was last on duty, as the said authority may, having regard to the administrative exigencies specify. It is clear that the petitioner has given Ex.P1-letter of resignation on 23.8.2003, but there is no evidence brought on record by the petitioner to show that his resignation was accepted by the competent authority and that he was relieved from discharging of his duties. Even he did not state in his evidence that the competent authority accepted his resignation and thereafter he was not being paid any salary. On the other hand, in the evidence it is denied by R.W.1 that P.W.1 was no longer any employee of Zilla Parishad and his name was removed from the Attendance Register, salary acquittance rolls and pay bills, and he asserted that the petitioner is working as School Assistant Grade II in ZPSS, Gatla Narasingapur, Karimnagar district and the said school is under the direct control and supervision of the DEO, Karimnagar. Except Ex.P1, the petitioner has not produced any other evidence to show that he abandoned the post of School Assistant Grade-II in the year 1990. As per Ex.P1, he submitted his resignation to the DEO for the first time on 23.8.2003. Therefore, the burden is on the petitioner to show that he is no longer a teacher working in the ZPSS and that he was not receiving any salary or other emoluments or that his name is not continued in the attendance register or his name is not shown in the seniority list of the teachers. But, the same have not been proved beyond reasonable doubt. There is no material to show that DEO, Karimnagar has accepted his resignation and relieved him from the duty as on the date of filing of his nomination papers. Therefore, this court has no hesitation, from the evidence on record, in holding that the petitioner is continued to be a teacher working as School Assistant Grade-II in ZPHS, Gatla Narasingapur, Karimnagar district under the State Government. Accordingly, these issues are answered against the petitioner.
33. ISSUE No.4: Whether the rejection of nomination of the petitioner by the respondent No.2 is in accordance with law ?
On this point, it is the case of the petitioner that his nomination was improperly rejected by the second respondent. There cannot be any dispute that improper rejection of nomination papers of a person by itself is a valid ground for declaration of election of returned candidate to be void under Section 100 (1) (c) of the R.P. Act and consequently a presumption can be drawn in case of improper or erroneous rejection of nomination paper that it has materially affected the result of the election. Whether there has been any improper rejection of nomination or not, is a question of fact depending upon the circumstances of each case. The petitioner is entitled to succeed on the point that he was not subjected to any disqualification rendering him ineligible to be elected as Member of Legislative Council under Article 191 (1) (a) of the Constitution of India. The second respondent passed Ex.P8-order when the first respondent filed an objection petition before him. The objection taken by the first respondent before the second respondent was that nomination of the petitioner was hit by Article 191 of the Constitution of India as he was holding office of profit as on the date of filing of his nomination. To substantiate the said objection, the first respondent produced the letter issued by the DEO, Karimnagar in reference No.1617/A1/09, dated 13.3.2009 wherein it is stated that as per records/attendance registers of the school, the petitioner joined duty in ZPSS, Gatla Narasingapur, Karimnagar district on 25.6.1990 and worked in the school up to 9.8.1990 and subsequently he did not attend to duty. Thereafter, the petitioner filed a reply affidavit stating that he was not attending the duties from 9.8.1990. Even before the second respondent, the petitioner has not produced any document to show that his resignation was accepted by the competent authority and he was relieved from the duties. The second respondent-Returning Officer, basing on the summary enquiry, by referring to the Rule 18A of the Fundamental Rules, the Andhra Pradesh Leave Rules, 1933 and also Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996, and considering the correspondence between the petitioner and the Head Master of the School, came to conclusion that the acceptance of resignation was not yet completed and formal orders to that effect have not been issued as on 16.3.2009 and therefore, declared his nomination paper as invalid and accordingly rejected the same. In view of the findings of this Court in issue nos. 1 and 4, it is clear that the second respondent acted in accordance with law. The second respondent passed Ex.P8 in accordance with law and the same is not shown to be illegal or incorrect. When the petitioner failed to produce any evidence before the second respondent to show that his resignation was accepted by the competent authority and he was relieved from the duty as on the date of filing of his nomination, the second respondent rightly passed Ex.P8 order, and there are absolutely no infirmities in the said order calling for interference of this Court. Accordingly, this issue is answered against the petitioner.
34. ISSUE No.6: To what relief ?
Having given a careful consideration to the evidence on record and the submissions made by the learned senior counsel for the petitioner as well as the first respondent, this Court has no hesitation in holding that the petitioner has not succeeded in establishing that his nomination papers were improperly rejected. Hence, declaration sought for by the petitioner in this Election
Petition and the consequential direction, cannot be ordered.
35. The Election Petition is devoid of merit and is, accordingly, dismissed, in the circumstances of the case, without costs.
?1 AIR 1958 Supreme Court 52
2 1969 (1) Supreme Court Cases 466
3 (1985) 1 Supreme Court Cases 151
4 (1992) 4 Supreme Court Cases 404
5 (1971) 3 SCC 870
6 (1984) 1 Supreme Court Cases 551
7 2007 (4) ALD 209 (DB)
8 AIR 1964 Supreme Court 254
9 (2008) 10 Supreme Court Cases 115
10 AIR 1993 Supreme Court 1662
11 AIR 1978 Supreme Court 694