Karnataka High Court
Dr. V.S. Acharya vs Returning Officer And Deputy ... on 22 June, 1990
Equivalent citations: ILR1990KAR2546
ORDER Venkatachala, J.
1. In this Election Petition presented under Section 31 of the "Representation of People Act, 1951 ("the Act"), the petitioner, an unsuccessful candidate in the election held from the Karnataka South-West Graduates Constituency to fill the seat in the Karnataka Legislative Council of its Member retiring on 30th June 1986, has sought for a declaration that the election of respondent-2, the returned candidate from that Constituency, is void and a further declaration that he (the petitioner) is the returned candidate in that election.
2. The case of the petitioner, as set out in the petition, is briefly:-
Nomination papers of the petitioner, respondent-2, respondent-3 and respondent-4 for the election to be held on 22-6-1986 respecting the membership of the Karnataka Legislative Council from the Karnataka South-West Graduates Constituency were duly filed before respondent-1, the Returning Officer of that election. One V. Dhananjaya Kumar, on his own behalf and as the authorised agent of the petitioner, filed an objection statement before the Returning Officer objecting to the acceptance of the nomination of respondent-2, by pleading that he (respondent-2) was disqualified under Article 191(1)(a) of the Constitution of India for being chosen as a Member of the Karnataka Legislative Council since the post of an Assistant Professor in English held by him in the National Institute of Engineering, Mysore ("the N.I.E.,"), was an office of profit under the Karnataka State Government. But, the Returning Officer, who found no merit in that objection, accepted the nomination of respondent-2, along with the nominations of the petitioner, respondent-3 and respondent-4 and declared all of them to be the contesting candidates in the said election. Thereafter, the election among those contesting candidates being held, counting of valid votes cast in favour of each of them was done. On such counting of votes, respondent-2, who was found to have secured highest number of valid votes among the contesting candidates, was, by the declaration dated 23-6-1986 of the Returning Officer declared as the returned candidate duly elected to fill the seat for which election was held. According to the petitioner, the acceptance by the Returning Officer (respondent-1) of the nomination of respondent-2, who was disqualified under Article 191(1)(a) of the Constitution for being chosen as a Member of the Karnataka Lagislative Council because of the post of an Assistant Professor in English held by him in the N.I.E., an office of profit under the Karnataka State Government, being improper, has materially affected the result of his election. The averments made in the petition in support of the plea that respondent-2 held an office of profit under the Karnataka State Government, are (I) that the N.I.E. College in which respondent-2 held the post of Assistant Professor in English being an instrumentality of a State, he must be held to be holding an office of profit under the State; and (II) that respondent-2, Assistant Professor in English in the N.I.E. College - a recipient of aid from the State Government, who was receiving his entire salary from the State Government directly, paid out of its consolidated fund, has to be regarded as a person holding an office of profit under the Karnataka State Government. The Election Petition had been, therefore, filed for obtaining a declaration that the election of respondent-2 was void and a further declaration that the petitioner was duly elected as a member in the place of respondent-2.
3. Respondent-2, in his written statement filed respecting the Election Petition of the petitioner, has stated thus:
The Returning Officer had properly accepted respondent's nomination, in that, the post of an Assistant Professor in English held by him in the N.I.E. was not an office of profit under the Karnataka State Government. The N.I.E. is a private educational institution, which is run by a Society registered under the Karnataka Societies Registration Act. Its Managing Committee consists of 10 members (Life Members and Ordinary Members) who are elected by the members of the Society, once in two years. The N.I.E. is not run by the Government or by any Statutory Body or Authority. The Managing Committee has plenary powers and jurisdiction in matters of its Constitution, business and management including employment and conditions of service of its employees. Service Rules governing the employees are framed by the Management and not by the Government. The Management also exercises power of appointment and dismissal. Thus, the Society, which is running the Institution, enjoys absolute autonomy in matters of management, employment of staff and disciplinary control. Since the Institution is affiliated to Mysore University, which is an autonomous body, the University exercises academic control only. The petitioner's averment in the petition that the entire salary of respondent-2 was being directly paid by the State Government out of the consolidated fund of the State, is not correct. The Government Grants received by the N.I.E. forms only a small portion of the total financial resources of the Institution. The payment of salary is made by the Management Itself and not by the State Government. Therefore, respondent-2 is not holding any office of profit under the Karnataka State as averred in the petition as would disqualify him under Article 191(1)(a) of the Constitution from becoming a member of the Karnataka Legislative Council.
4. Other respondents in the petition though were duly served with notices of the petition, have not chosen to take part in the petition proceedings.
5. The issues arising for consideration and decision on the basis of the petition and the written statement filed thereto, were framed after hearing the contesting parties' learned Counsel thus:
"1. Whether the post of Assistant Professor in English held by respondent-2 in the National Institute of Engineering at Mysore, is an office of profit under the Government of Karnataka?
2. If so, was respondent-2 disqualified under Article 191(1)(a) of the Constitution of India for being chosen as a Member of the Legislative Council of Karnataka from the Karnataka South-West Graduates' Constituency held on 22-6-1986?
3. If so, was the nomination of respondent-improperly accepted?
4. If so, has the election of the returned candidate (respondent-2) been materially affected and has it to be declared void?
5. Is the petitioner entitled to be declared as a candidate duly elected to the Legislative Council of Karnataka from South-West Graduates' Constituency in the election held on 22-6-1986?
6. Is the petitioner entitled to costs and if so, how much?
7. Is the petition liable to be dismissed with exemplary costs made payable to respondent-2?"
6. Evidence adduced by the petitioner in proof of the issues comprises of his oral evidence as P.W.1 and documentary evidence - Exhibit P-1, Statement of objections filed by the petitioner before the Returning Officer; Exhibit P-2, reply filed by respondent-2 before the Returning Officer; Exhibit P-3, copy of the order of the Returning Officer; Exhibit P-4, certified copy of Form No. 7B; and Exhibit P-5, certified copy of Form No. 23. Evidence adduced by contesting respondent-2 in disproof of the issues comprises of his oral evidence as R.W.1 and documentary evidence - Exhibit D-1, Memorandum of Association, Rules and Bye-laws of the N.I.E. and Exhibit D-2, subsidiary Rules of the N.I.E.
7. Primary and crucial issue among the aforementioned issues being issue No. 1, the finding to be recorded thereon would form the basis for recording findings on all other issues. However, issue No. 1 calls to be re-framed appropriately as the parties have adduced evidence respecting that issue as one concerning the post of Assistant Professor in English held by respondent-2, not in the N.I.E, Society but in the N.I.E. College run by the N.I.E. Society. Hence, issue No. 1 is re-framed thus:
"Whether the post of Assistant Professor held, by respondent-2 in the National Institute of Engineering College run by the National Institute of Engineering Society at Mysore is an office of profit under the Government of Karnataka?"
The re-framed issue shall now be dealt with in the light of the material evidence adduced thereon by parties and the undisputed contents of the Book-lets 'Triple Benefit Scheme for the Employees of Aided Colleges, B.Ed., Colleges and Technical Institutions' and 'Grant-in-Aid Code of Department of Technical Education Mysore-Bangalore', which are taken in evidence as Exhibit C-1 and Exhibit C-2 respectively, as consented to by learned Counsel for the contesting parties.
8. Exhibit D-1, which is the authorised publication of Memorandum of Association and Rules and Bye-laws of the N.I.E., Mysore, furnishes the following information:
That the N.I.E. is a Society registered under the Karnataka Societies Registration Act, 1960, and is a distinct legal entity (hereinafter referred to as "the N.I.E. Society"). One of its objects is the running of Engineering Colleges for the Degree Courses in Civil, Mechanical, Electrical and other branches in Engineering. The N.I.E. Society is vested with power to take over and acquire by purchase or gift or otherwise from Government, other public bodies and individuals immoveable properties, endowments, donations, libraries and other funds together with attendant obligations and engagements, if any, acceptable to the Society and not inconsistent with the objects of the Society, besides the power vested in it to raise loans for the construction of buildings, hostels, residential quarters for the members of the staff of the Society and its constituent institutions and generally for the purpose of carrying out the objects of the Society. It has a General Body comprised of memberships of Patrons, each of whom may pay not less than Rs. 10,000/-; Donors, each of whom may pay not less than Rs. 5,000/- Life Members, each of whom may pay not less than Rs. 500/-; Firms, Companies, Societies or public bodies, each of which may contribute not less than Rs- 10,000/-; and persons, who, by reason of their meritorious service to the Society or their special distinction, maybe accepted as Honorary Members. It is the Members of that General Body who can get elected as Members of the Society's Managing Committee in which all assets of the Society are to vest with power to look after the Management of the Society and elect its office bearers, such as, President, Secretary and Treasurer. It is that Managing Committee's Members who shall be the Members of the Governing Council of the College and the Governing Council of the Polytechnic, already run by the N.I.E. Society and the Governing Council of any other Institution to be started and run by the N.I.E. Society, it is that Managing Committee which is also vested under Rule 28 of the Rules of the N.I.E. Society with power to frame subsidiary Rules. Subsidiary Rules framed by the Managing Committee of the N.I.E. Society in exercise of powers vested in it under Rule 28 of the Rules of the N.I.E. Society and Bye-laws, as contained in Exhibit D-2, reflect the true nature of the N.I.E. College run by the N.I.E. Society thus:
The Governing Council of the N.I.E. College shall consist of sixteen members, ten of whom shall be the elected Members of the N.I.E. Society and the other five shall be (1) a nominee of the Central Government, (2) a nominee of the AH India Council for Technical Education, (3) a nominee of the State Government, (4) a nominee of the University of Mysore, (5) the Principal, Ex-officio, and (6) one Teachers' representative. The President and the Vice-President of the N.I.E. Society shall be the President and the Vice-President of the Governing Council. The Honorary Secretary of the N.I.E. Society shall be a Liaison Officer between the N.I.E. Society and the Governing Council. The Treasurer of the N.I.E. Society shall ordinarily be the Treasurer of the Governing Council The Governing Council of the N.I.E, College shall have power to take over and acquire by purchase or gift or otherwise from the Central Government or State Government or other public bodies or private individuals willing to transfer libraries, collections, immoveable properties, endowments and other funds together with any attendant obligations and engagements acceptable to the Council of the College and not inconsistent with the object of the N.I.E. Society and to raise loans for the construction of buildings, hostels and residential quarters for staff on the security of the assets of the College provided that the loans to be raised shall be either from the Central Government or the State Government. Admission to the courses of instruction in the College shall be open to students from all the States of the Union of India upto the limit fixed from time to time subject to the statute and ordinances of the University or Universities to which the College is affiliated and the State Government. Administration of the N.I.E. College shall vest solely in its Governing Council which shall exercise and discharge the powers, authorities, duties and functions conferred upon it under the Rules in force as may be modified by the Managing Committee of the N.I.E. Society from time to time. The Governing Council's power shall be (a) to, be in charge of the properties of the N.I.E. College; (b) to manage the affiars of the N.I.E. College regulate the expenditure exercising utmost economy in its working and also in respect of expenditure from the grant for buildings, equipment etc., and such expenditure shall have prior approval of the Council at a meeting at which the nominee of the Central Government is present or has agreed to participate by circulation of the minutes, if unable to attend; (c) to receive such amounts, subsidies, grants made available by the Government of India, State Government or Public Bodies, subscription and donations for purposes of the Institute, provided that no subscriptions or donations shall be accepted if they are accompanied by conditions considered by the Council as not conducive to the advancement of the College; (d) to create, suspend, modify or abolish branches of faculties of education to determine the cadre and grades of appointment to the Departments or faculties and to fix the emoluments and terms of services of staff and personnel, in consultation with the Advisory Committees consisting of experts nominated by the Governing Council and such consultants as may be nominated by the Ministry of Education, Government of India, or the All India Council for Technical Education; (e) to appoint, punish, suspend or remove the teaching and other staff; (f) to grant leave, allowances, to determine conditions of service, to enter into service contracts and terminate or renew service contracts and to grant extension of service of staff Including extension beyond the period of superannuation in accordance with the Rules; and (g) to appoint qualified auditors each year to audit and fix their remuneration. The Council, In exercise of its powers, authorities, duties and functions, shall, so far as is practicable, be guided by the regulations and ordinances of the Universities, directions and instructions issued by the Central and State Governments.
Rules regulating conditions of service of teaching and non-teaching staff of the N.I.E. college, as contained in Exhibit-D-2, which have been in force from 25-2-1985, furnish the following information:
(a) Information as to Appointments and Pay, Classification for Appointments, Terms of Appointments and other matters concerning teaching and non-teaching staff.
All appointments in the College both teaching and non-teaching shall be made after due publicity and on the recommendation of the Staff Selection Committee subject to the approval of the Governing Council. Temporary appointments on consolidated salary for a brief period in emergent cases may be made by the President subject to ratification by the Governing Council. The Management may at its discretion fill up the vacancies by Officers lent from Karnataka Government Departments. The grades and scales of pay shall be as prescribed by the Government of Karnataka from time to time. The Seniority of officials will be as per Karnataka State Government Servants (Seniority) Rules. No person shall be appointed to the teaching staff who does not possess the minimum qualifications and eligibility prescribed by the Mysore University and/or All India Council of Technical Education and the State Government. No teacher who has been appointed permanently before these Rules coming into force shall be disqualified from holding the post consequent upon any change of Rules. The qualifications and eligibility for non-teaching posts including Class IV Employees shall be according to the Rules framed by the Government of Karnataka from time to time. Every person appointed against a permanent vacancy will be required to be on probation for a period of two years, which may be extended by another year at the discretion of the Governing Council. Till the appointment is confirmed by an express order of the Governing Council the incumbent shall be deemed to continue on probation. However, it is open to the Governing Council to discharge the incumbent during the period of probation if found unsuitable for the post. The period of probation shall count for increments, if the service and conduct during the period is certified as satisfactory by the Principal. Any member of the teaching staff, who is permanent and who intends to resign from his post shall give three month's notice which shall be reckoned from the date of receipt of the letter of resignation by the Principal or in lieu thereof shall pay an amount equal to the salary for the period the notice falls short of three months. In the case of non-teaching permanent staff, such notice shall be one month or in lieu thereof an amount equal to the salary for the period the notice falls short of one month. In the case of resignation of employees, both teaching and non-teaching, who are on probation or whose appointment is temporary the period of notice shall be one month. The services of temporary/part-time staff appointed on consolidated salary may be terminated without any notice. Similarly, the services of employees on probation may be terminated without notice during the period of probation. The Principal is responsible for the administration of the Institute and shall have all the powers necessary to carry out his functions subject to the overall control of the Governing Council, All the Members of the teaching staff shall be full-time Officers of the College except those appointed on part-time or on honorary basis. They shall devote their entire time to the work of the College, and they Should be present in the College, during the working hours whether they have teaching work or not. All the members of the teaching staff should take full and effective part in extracurricular activity assigned to them, educational and professional tours being an Integral part of the curriculum. Members of the teaching staff must be prepared to take out the students on educational tours and survey camps etc., for teaching of students when called upon to do so. No employee shall address any communication or representation directly to the Government (State or Central) or to the Director of Technical Education or All India Council of Technical Education or to any members of the Governing Council except through the Principal. No employee of the College shall apply for an appointment elsewhere without the written permission of the Principal and the President. Applications for appointments elsewhere should be submitted through the Principal who will pass them on with his comments to the President for his consideration. President reserves the right to with-hold such applications at his discretion without assigning reasons thereof.
(b) Information as to Pay and Allowances, Service Conduct Rules and Discipline and Penalties of teaching and non-teaching staff of the N.I.E. College -
The first pay bill of an employee shall be supported by a certificate of fitness issued by a Gazetted Officer of the Medical Service of the Karnataka State not below the rank of an Assistant Surgeon. Pay and allowances and also Travelling Allowances shall be as stipulated by the Government of Karnataka from time to time to the aided Engineering Colleges. The age of superannuation shall be as prescribed by the Government of Karnataka to aided Engineering Colleges as amended from time to time. The benefits of leave and the procedures relating thereto shall be as prescribed by the State Government, for the aided Engineering Colleges as amended from time to time. The President is empowered to initiate disciplinary proceedings against an employee, whenever a report of misconduct in respect of the employee is received by the President. A show Cause notice shall be issued to the employee framing definite charges of misconduct. On receipt of the explanation within the time notified to the employee, the President may himseif enquire into such of the charges as are not admitted or appoint an Enquiry Officer for the purpose from among the members of the Governing Council or from the senior members of the staff. If necessary, a three member Committee may be appointed by the President in grave cases of misconduct. The Governing Council or any other authority empowered by it in this behalf may, for good and sufficient reasons, impose one or more penalties on employees, such as, fine in the case of Class IV Employees, censure, withholding of increments, with-holding of promotion, reduction to a lower stage in the time scale of pay, compulsory retirement from service, removal from service, etc.
9. Since the petitioner has alleged in the petition that the Returning Officer had, in accepting the nomination of respondent-2, ignored the fact of respondent-2 receiving his entire salary of the post of Assistant Professor in English held by him in the N.I.E. College directly from the State Government, i.e., from the consolidated fund of the State, it would be necessary to examine at the very outset whether the evidence given by the petitioner establishes his allegation as to receipt by respondent-2 of his whole salary as an Assistant Professor in English directly from the consolidated fund of the State.
9A. The petitioner, though re-iterated in the evidence given in his examination-in-chief, that the salaries of respondent-2 are paid out of the Government fund, as to why he stated so is mentioned in the course of his cross-examination thus:
"I state so, because all the Government Aided Engineering Institutions receive the total amount of the salary payable to the approval list of the staff members from the State Government. I had no occasion to examine the accounts maintained by the Society, The monthly salary payable to Mr. Satyanarayana Rao (Respondent-2) as a Member on the approved staff of National Institute of Engineering is received by the Institution from the State Government and disbursed to him. I do not have any records to show that the entire salary paid or payable to respondent-2 by the Institution is paid out of the amounts received by the Institution towards salary of the approved members on the staff of the Institution."
As seen from the above evidence of the petitioner as P.W.1, his assertion that respondent-2 is receiving his entire salary as an Assistant Professor in English in the N.I.E. College directly from the funds of the State Government because that College is an aided College, is based on the fact that the N.I.E. College is a Government Aided Engineering College. As the truth or otherwise of the matter could be properly ascertained from the material Rules in the State Government's "Grant-in-Aid Code of Department of Technical Education Mysore-Bangalore" (for short 'the Code') applicable to aided Engineering Colleges, which has been marked as Exhibit C-1, the same shall now be referred to.
10. Rule 1 of the Code declares that a provision is made annually in the State Budget for payment of grant-in-aid to affiliated Institutions under private managements to encourage private enterprise in Technical Education, Rule 2 thereof states that grant-in-aid cannot be claimed (by private management) as a matter of right. Rule 5 thereof states that the Government reserve to themselves the right to refuse, reduce or to withdraw any grant at their entire discretion notwithstanding the Rules contained in the Code. Rule 11 thereof declares that the payment of grants is subject in all cases to the availability of funds in the State Budget under the detailed head concerned- Though Rule 13 of the Code refers to maintenance grants, grant towards loss of fee income, building grants and equipment grants payable to aided Technical Institutions, Rule 14 thereof declares that no grant of any kind shall be payable to an Institution which has a surplus or balance on hand of Rs. 1 lakh or more. Maintenance grant payable to an aided Institution though is made subject to the Institution satisfying several conditions laid down under Rule 16 of the Code, the same Rules states that the maximum amount of grant admissible shall not be more than half of the approved maintenance expenditure. Rule 20 of the Code provides for Grant towards Loss of Fee Income from the Management of an aided Institution when such loss is due to collecting the fee from the students according to Government rates and awarding of fee concessions. Building grant to the extent of half of the total expenditure may be sanctioned to an aided Institution under Rule 22 of the Code. Coming to Equipment grant, the same could be sanctioned by the Government for purchase of new articles for equipment by the Institution upto 50% of their value subject to a limit of Rs. 50,000/- in the case of Engineering Colleges. Rule 9(a) of the Code, while requires the aided Institutions to follow the reservation policy of the State in the matter of recruitment and promotion to various categories of its posts, and admission of students to aided private Engineering Colleges, enables the Government to stop or recover from the Management of the aided Institutions the amount of aid due or paid to it, as the case may be. The said Rules of the Code make it abundantly clear that what may be paid by a grant-in-aid College to its employees by way of salary or otherwise, may to some extent, be out of the aid amount received by it from the Government, but not the whole amount of the salary of such employees and in fact, this position is admitted by respondent-2 himself in the course of his evidence as R.W.1.
11. Another aspect adverted to by the petitioner in his evidence given as P.W.1, which may conveniently be referred to here, is the 'Triple Benefit Scheme' available to the employees of the aided Institutions, which is contained in Exhibit C-2. 'Triple Benefit Scheme' in Exhibit C-2, as seen therefrom, is intended to secure to the employees of the State aided Institutions three types of service benefits, namely, Pension, Insurance and Management contribution. It is not disputed by respondent-2 that he is a beneficiary of the 'Triple Benefit Scheme' prepared by the State Government. But, the availability of Triple Benefit Scheme' to the employees of aided Institutions cannot, in its very nature, make such employees holders of office of profit under the State Government. The evidence given by the petitioner as P.W.1 that the N.I.E, College, of which respondent-2 is an employee, is an affiliated College of the Mysore University, is, in fact, admitted by respondent-2 and it is clarified that because of such affiliation, the N.I.E. College is governed by the provisions of the Universities Act, the Statutes and Regulations in academic matters concerning the College and academic qualifications of its teaching staff.
12. The salient features of the N.I.E. College, in which respondent-2 has held the post of Assistant Professor in English, as have emerged from the aforereferred to oral and documentary evidence adduced by the parties could be formulated thus:
(i) The N.I.E. College, which is run by the N.I.E. Society, registered under the Karnataka Societies Registration Act, 1960, has a legal status of its own.
(ii) The N.I.E. College has a Governing Council constituted under a Rule made by the Managing Committee of the N.I.E. Society and it is that Governing Council, in which the properties of the N.I.E, Society and it is that Governing Council, in which the properties of the N.I.E. College are vested and which has power to acquire properties or receive donations or aids from anybody including the Central Government or the State Government for running the College.
(iii) It is the Governing Council of the N.I.E. College which has full power to create teaching or non-teaching posts, whether they be permanent or temporary, and make appointments in such posts, though such posts may carry scales of pay or grade as may be prescribed by the State Government or the seniority of the officials in those posts is governed by the Seniority Rules of the State Government. Again, it is the Governing Council of the N.I.E. College which has power to discharge the appointees on the staff of the College during their probation or dismiss or remove them for misconduct after they are made permanent, of course subject to the enquiry to be held against them conforming to the requirement of Rules of natural justice.
(iv) Since the N.I.E. College is an aided Institution governed by the Rules of the Code, the non-observance of the policy or guidelines laid for its conduct by the Government could enable the Government only to withhold the aid to be given to it or to recover the aid already given to it and nothing else.
(v) Though the giving of the aid by the State Government for running the N.I.E. College may enable it to regulate the functioning of the College according to the Rules laid in that regard by the State Government, the N.LE. College will still be in the exclusive ownership of the N.I.E. Society, which runs it, and does not get into the ownership of the State Government.
(vi) The control which the Government can exercise on the N.LE. College as a consequence of its meeting certain portion of expenditure of the College under the Rules of the Code or other Rules including the Rules providing for 'triple benefit scheme' to the employees of the College, cannot be regarded as direct control inasmuch as, as stated In Rule 1 of the Code, the College receiving the aid would be under the private management and that the object of the aid is merely to encourage the private enterprise in Technical Education.
(vii) Even the amounts of aid to be given by the State Government to the N.LE. College as to any other College under the Code, being entirely within the discretion of the State Government to be exercised depending upon its financial constraints, the payment of aid amounts does not enable the State Government to have its final say in any matter concerning the running of that College.
(viii) The N.I.E. College as well as any other Institution similarly situated, as stated in Rule 2 of the Code itself, cannot claim such aid as a matter of right.
(ix) The N.IE. College being affiliated to the Mysore University, though has to maintain the academic standards as required by the University under its Act, Statutes and Regulations, that situation does not in any way enable the State Government to have direct control in the Management or administration of the N.I.E. College.
The monthly salary received by respondent-2 from the N.I.E. College, as its Assistant Professor in English, though may include a portion of the amount paid to the College towards its Maintenance grant, it cannot be said that the salary is received by him either directly from the Government or entirely out of the Government funds.
13. Whether the afore-mentioned salient features of the N.I.E. College including the receipt by it from the Karnataka State Government of the aid amount under the Code makes respondent-2, the holder of the post of Assistant Professor in English in that College, holder of an office of profit under the Karnataka State Government as would disqualify him from being chosen, or for being, a Member of the Legislative Council of Karnataka State under Article 191(1)(a) of the Constitution of India is the crucial point or issue which I shall presently take up for my consideration and decision.
Article 191(1)(a) of the Constitution, which bears on the point, reads:
"191(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State -
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder,"
As there are decided cases of our Supreme Court, which refer to the factors decisive in finding whether a post held by a person in an institution is an office of profit under a Government as would disqualify him for being chosen as, or for being, a member of either State Legislature under Article 191(1)(a) of the Constitution or Parliament under Article 102(1)(a) of the Constitution, I shall refer to them so as to get at those decisive factors needed in finding whether the post held by respondent-2 in the N.I.E. College of the N.I.E. Society is an office of profit under the Karnataka Government which disqualified him for being chosen as, and for being, a member of the Karnataka State Legislative Council under Article 191(1)(a) of the Constitution.
In MAULANA ABDUL SHAKUR v. RIKHAB CHAND , the question was whether a person appointed by the Committee of Management constituted by the Central Government under Section 6(2) of Dargah Khwaja Saheb Act, 1955, as the Manager of the office of a School belonging to that Dargah was an office of profit under the Central Government as would disqualify him under Article 102(1)(a) of the Constitution, for being chosen as a Member of Council of States. To sustain such disqualification, the argument addressed to the Supreme Court was that the Committee of Management of Dargah when was constituted with members of its choice by the Central Government and that that Committee when was empowered to make the Bye-laws prescribing the powers and duties of employees of the school, the Manager of the office of the School of Dargah appointed by such Committee must be held to hold an office of profit under the Central Government. The Supreme Court declined, to accept the argument so addressed by holding that the factors adverted to cannot convert the servants of the Committee of Management of Dargah as holders of profit under the Central Government. Yet it observed that the Government's power to appoint a person to an office of profit or to continue him in that office or to revoke his appointment at their discretion or payment of his emoluments out of Government funds are important factors in determining whether that person is holding an office of profit under the Government and called the same a test governing the matter.
In M. RAMAPPA v. SANGAPPA the question was whether Patels and Shanbhogs, the holders of hereditary village offices under the Mysore Village offices Act, 1908, were disqualified under Article 191(1)(a) of the Constitution for being chosen as members of the State Legislative Assembly. The Supreme Court found that the Patels and Shanbhogs were village officers appointed by the State Government and they held their offices by reason of such appointment only; that they worked under the control and supervision of the Government; that the remuneration for them was paid by the Government out of the Government funds and assets; and that their removal was by the Government. According to the Supreme Court, the said factors clearly established that they (Patels and Shanbhogs) held the office of profit under the State Government. Consequently, it answered the question in the affirmative.
In GURUGOBINDA BASU v. SANKARI PRASAD GHOSAL , the Supreme Court considered the question whether a Chartered Accountant and a Partner of a firm of Auditors appointed as an Auditor of a Central Government Company, was holding an office of profit under the Indian Government, as would disqualify him under Article 102(1)(a) of the Constitution from being chosen as a member of Lok Sabha. The Supreme Court, taking into consideration the factors that the appointment of the Auditor as also his continuance in office, rested solely with the Government of India; that his remuneration was fixed by the Government of India; that the Company for which he was appointed as an Auditor was a Government Company within the meaning of the Indian Companies Act, 1956, and 100% of the shares was held by the Union Government and that the performance of his functions was controlled by the Comptroller and Auditor General of India, answered the question in the affirmative.
In D.R. GURUSHANTAPPA v. ABDUL KHUDDUS ANWAR , the question, which arose for the consideration of the Supreme Court, was whether a person employed as a Superintendent in a Government Company with 100% shares of the State Government by its Managing Director appointed by the State Government, was a holder of an office of profit under the State Government under Article 191(1)(a) of the Constitution as would disqualify him from being chosen as, or for being, a Member of the State Legislative Assembly. The question was answered in the negative by the Supreme Court taking into consideration the factors that the power of appointment and dismissal of the Superintendent was vested in the Managing Director of the Company and not in the Government, that the directions for the day to day work to be performed by the Superintendent could only be issued by the Managing Director of the Company and not by the Government, that the indirect control of the Government which might arise because of the Government to appoint the Managing Director and to issue directions to the Company in its general working, did not bring the Superintendent directly under the control of the Government.
In DIVYA PRAKASH v. KULTAR CHAND RANA , the question was whether a person appointed as the Chairman of the Board of School Education of the State of Himachal Pradesh under Section 18 of the Himachal Pradesh Board of School Education Act, 1968, held an office of profit under the State Government. The Supreme Court being of the view that the post of the Chairman though carried remuneration, the person holding that post since did not receive any remuneration, he could not be regarded as a person holding an office of profit under the State Government as would disqualify him to be chosen as, or for being, a Member of the State Legislature under Article 191(1)(a) of the Constitution.
In STATE OF GUJARAT v. RAMAN LAL KESHAV LAL SONI the question was whether the Government employees transferred to the Gujarat Panchayat Service and working under the local authorities formed under the Gujarat Panchayat Act, 1961, were State Government employees as would disqualify them for being chosen as, or for being, Members of the State Legislative Council under Article 191(1)(a) of the Constitution. The Supreme Court answered the question in the affirmative having regard to the factors that the functions of the employees of the Board were those connected with the affairs of the State that the expenditure of the Board was largely met out of the monies contributed by the State Government to its funds, that the teachers and other employees had to be appointed in accordance with the, Rules by Officers who were; themselves appointed by the Government, that the disciplinary proceedings in respect of the employees were subject to the final decision of the State Government or other Government Officers, as the case may be.
In BIHARILAL v. ROSHAN LAL the question was whether the Assistant Teacher concerned, the employee of the Uttar Pradesh Board of Basic Education constituted under the Uttar Pradesh Basic Education Act, 1972, was disqualified for being chosen as a Member of the State Legislative Assembly under Article 191(1)(a) of the Constitution. The Supreme Court, which examined the question in the light of its earlier pronouncements, which I have adverted to hereinbefore, answered the question in the affirmative taking into consideration the factors that the Board established by the State Government under the Act was to run the Schools imparting primary education as a part of the Department of Education of the State Government, that the Appointing Authority in respect of the post of an Assistant Teacher in the Board was the District Basic Education Officer, an Officer appointed by the State Government itself, that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government, was required to be followed as far as possible in the case of employees of the Board, that the funds of the Board mainly came from the contributions made by the State Government, that the School in which the Assistant Teacher was an employee, was not a privately sponsored institution which was recognised by the Board, that the final control of the Schools was vested in the Government since such control was exercisable through the Officers appointed by the State Government, that the Board of which the Assistant Teacher was employed, was discharging an important Governmental function of providing compulsory education to all children until they complete the age of 14 years, which was an important Government function required to be performed under Article 45 of the Constitution as distinguished from an optional function which a Government had to perform as in the case of higher education, that the Board for all practical purposes was a Department of the Government and its autonomy was negligible, that almost the entire financial needs of the Board were met by the Government.
14. The factors which, according to the aforesaid decisions of the Supreme Court, should weigh with the Court in holding that the office of profit held in an Institution by a person is an office of profit under the Government, are:
(i) That the person is appointed to the post by the Government;
(ii) That the person's continuance in the post to which he is appointed, depends upon the Government;
(iii) That the functioning of the person in the post is under direct control and supervision by the Government;
(iv) That the power for removal of the person from the post lies with the Government;
(v) That the expenditure of the Institution, to which the post held by the person belongs, is met entirely out of the State funds;
(vi) That the Institution to which the post held by the person belongs, is, in reality, a Department of the Government or an alter ego of the Government;
(vii) That the Institution to which the post belongs, is discharging an important Government function, which the Government is under an obligation to perform under the provisions of the Constitution.
15. Then, the factors which, according to the aforesaid decisions of the Supreme Court, should weigh with the Court in holding that an office of profit held in an Institution by a person, is not an office of profit under the Government, are:
(i) That the ownership of the Institution to which the post held by a person belongs, does not vest with the Government;
(ii) That the Government does not have power to appoint to the post belonging to the Institution a person of its choice, nor does It have power to remove the person from the post when he is so appointed by the Institution nor has it any direct control or supervision in that person's day to day functioning/working;
(iii) That the financial control or supervisory control or disciplinary control over the person appointed to the post of the Institution, is too indirect or remote;
(iv) That the financial assistance given to an Institution to which the post held by a person belongs, is not intended to gain ownership or full control of such Institution.
In the context of the aforesaid factors, which should weigh in determining whether an office of profit held by a person in an institution, is or is not an office of profit under the Government, what is said by the Supreme Court in Biharilal's case (supra) about the object of making an office of profit under the Government, in making it a disqualification for being chosen as, or for being, a Member of the State Legislature, needs to be borne in mind:
"The object of enacting Article 191(1)(a) is plain. A person who is elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of Governmental pressure. If such a person is holding an office which brings his remuneration and the Government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of Government. Article 191(1)(a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the Legislatures."
If the salient features of the N.I.E. College, which I have enumerated earlier, are seen in the light of the aforesaid factors, which should weigh with the Court in determining whether an office of profit held by a person in an Institution is or is not an office of profit under the State Government bearing in mind the aforesaid object lying behind the disqualification imposed by Article 191(1)(a) of the Constitution, I am impelled to take the view that the post held by respondent-2 in the N.I.E. College as an Assistant Professor in English is not an office of profit under the State Government which would disqualify him for being chosen as, or for being, a Member of the Karnataka Legislative Council under Article 191(1)(a) of the Constitution.
15A. However, it was argued by the learned Counsel for the petitioner placing reliance on a decision of this Court rendered on 16-12-1985 by a learned Single Judge in Election Petition No. 2/1984 Prof. R.V. Suryanarayana & others v. Returing Officer & Deputy Commissioner that the post of Assistant Professor in English held by respondent-2 in the N.I.E. College should be regarded as an office of profit under the State Government. But, I am unable to accede to this argument for the reasons which I shall presently state.
In the said Election Petition No,2/1984, election of respondent-2, who was elected as a Member of the Karnataka Legislative Council, was sought to be set aside on the ground that on the date he filed his nomination to contest that election, he was not qualified to be chosen as a Member of Karnataka Legislative Council under Article 191(1)(a) of the Constitution, in that, the post of a teacher held by him in the B.M.S. Engineering College, an aided College of the Karnataka State Government, was an office of profit under the State Government. Two points, among others, had arisen for consideration before the learned single Judge in, that petition. One of them was whether resignation of respondent-2 in the petition tendered to the post held by him in the B.M.S. Engineering College was accepted before he filed his nomination. The other was whether the post of a teacher held by respondent-2 in the B.M.S. Engineering College was an office of profit under the State Government. The learned Single Judge since held in favour of respondent-2 on the first point that his resignation to the post of teacher held in the B.M.S. Engineering College was accepted a day before the day on which he filed his nomination for contesting the concerned election, it was unnecessary for him to decide the other point whether the post held by respondent-2 was an office of profit under the State Government. Hence, with respect to the learned Judge, who decided that Election Petition, I cannot help taking the view that the finding recorded by him to the effect that respondent-2 in the petition before him, held an office of profit under the State Government being one which was uncalled for in deciding the case before him, has to be regarded as not a ratio decidendi of that decision, but a mere obiter dicta which cannot have any binding effect as a precedent. This apart, the finding recorded by the learned single Judge in that case, that respondent-2 therein held an office of profit under the State Government does not accord with the decisive factors governing the matter as laid down by the Supreme Court in its various decisions, adverted to by me earlier. In fact, the indirect and remote control exercisable by the Government in respect of an institution, such as, an aided College could not have made a holder of an office of profit under such College a holder of an office under the State Government -an important decisive factor laid down by the Supreme Court in its afore-referred decisions, particularly the decision in Biharilal's case (supra), as a test in deciding the case before him, is over-looked.
16. Then, the learned Counsel for the petitioner relied upon the decision of the Supreme Court in ANDI MUKTA S.M.V.S.S.J.M.S. TRUST v. V.R. RUDANI in support of his argument that the post held by respondent-2 herein in the N.I.E. College, a grant-in-aid institution of the State Government, should be regarded as an office of profit under the State Government, I am unable to be persuaded by the argument.
In the decision so relied upon, the Supreme Court was considering the question whether the management of an aided College, which was a Trust registered under the Bombay Public Trust Act, was amenable to Writ Jurisdiction of the High Court under Article 226 of the Constitution and could be compelled by a Writ of Mandamus to pay to its teachers, whose services were terminated by it, termination benefits and arrears of salary payable to them. In that context, it had to consider the meaning to be given to the word 'Authority' in Article 226 of the Constitution, to which a Writ could be issued by the High Court. On consideration of the matter, the Supreme Court held that the term 'Authority' used in Article 226 must receive a liberal meaning unlike the term in Article 12 of the Constitution and consequently, the College concerned could be regarded as one coming within the meaning of the word 'Authority' in Article 226 and a Writ of Mandamus sought could be issued therefor. I find that that decision can give no assistance to the petitioner herein in finding whether an office of profit held by a teacher in the College should be regarded as an office of profit under the State Government, in that, that question could only be decided having regard to the tests laid down by the Supreme Court in its earlier decisions, adverted to by me.
17. For the foregoing reasons, I record a finding on issue No. 1 in the affirmative and to the effect that the post of Assistant Professor held by respondent-2 in the National Institute of Engineering College run by the National Institute of Engineering Society at Mysore is not an office of profit under the Government of Karnataka. As the finding recorded on issue No. 1 goes against the petitioner, the findings on Issues Nos.2 to 5 necessarily go against the petitioner. In so far as issues Nos.6 and 7 relating to costs are concerned, I find that it would be just and reasonable to make the petitioner pay the costs of respondent-2, which I fix as Rs. 2,000/-.
18. In the result, I dismiss this Election Petition with a direction that the costs of Rs. 2,000/- payable to respondent-2 by the petitioner could be got from the amount deposited by the petitioner in this Court towards costs.