ORDER
1. By this election petition under Sections 81 and 83 of the Representation of People Act, 1951, the petitioner has challenged the election and declaration of election of the first respondent to be illegal, null and void as well as has sought the setting aside of the election dated 25-6-1998. The petitioner in the election petition has claimed the following reliefs;
Declare that the first respondent is holding officer of profit under the State as mentioned in the election petition. In other words the first respondent has been holding the office of profit under the State on the material date and hence his nomination paper was illegal and was improperly accepted by the second respondent-the Returning Officer, Kar-nataka West Teachers’ Constituency and Divisional Commissioner, Belgaum Division, Belgaum and consequently the petitioner has sought for declaration that the election of the first respondent to the Legislative Council be declared as null and void and be set aside. The petitioner has prayed for grant of such other reliefs as this Court deems fit.
2. The facts of the case in nutshell are:
That with reference to the Karnataka West Teachers’ Constituency, the election was notified. The date for filing nomination papers was 4-6-1998 and the date for scrutiny was fixed as 9-6-1998. The petitioner as well as the first respondent filed their nomination papers. The first respondent filed his nomination paper and the petitioner filed his objections to the nomination filed by the 1st respondent. On the date of scrutiny, the Returning Officer rejected the objections filed by the peti-
tioner against the 1st respondent s nomination and accepted the nomination paper filed by the 1st respondent vide order dated June 9th, 1998 opining that the objections raised by the petitioner to the effect that the 1st respondent was holding office of profit under the Government was frivolous and not maintainable. The Returning Officer opined that the 1st respondent was not disqualified from contesting the election. The first respondent vide declaration of the result of election under Section 66 of the Representation of People Act, 1951 was declared to have been duly elected in the election held on 25-6-1998 to fill the seat in Kar-nataka Legislative Council from the Karnataka West Teachers’ Constituency, one member retiring on 30-6-1998, on the expiry of his term of office. This declaration was made by the Returning Officer, Karnataka West Teachers’ Constituency and Divisional Commissioner, Belgaum Division, Belgaum, on 27-6-1998. The first respondent having been declared as elected, the petitioner, who was one of the defeated candidates has come up before this Court by filing this Election Petition under Sections 81 and 83 of the Representation of People Act, 1951 claiming reliefs as mentioned above.
3. The petitioner in the election petition has asserted that the first respondent i.e., the elected candidate has been employed as Physical Education Teacher in Lemington High School at Hubli, which is run by the Hubli-Dharwar Municipal Corporation. The petitioner’s case is that Lemington High School referred to above has been a Grant-in-Aid School. According to the petitioner on the date of nomination as well as on the date of scrutiny of the nomination paper, the 1st respondent has been working and was employed as Physical Education Teacher in the Lemington High School at Hubli. The petitioner has further alleged that the salary was being paid by Government, service conditions governed by the Karnataka Education Act, 1983, Karnataka Municipal Corporations Act, 1976 and the Grant-in-Aid Code for Secondary Schools Conduct Rules, 1966. The election petitioner’s case is that as the first respondent was serving as a Teacher/Physical Education Teacher in the Lemington High School, Hubli, run by the Hubli Dharwar Municipal Corporation, amounted to his holding of office of profit under the State Government on the material dates referred to above and as such the 1st respondent i.e., the elected candidate suffered disqualification in terms of Article 191 of the Constitution of India and as such the acceptance of the nomination paper of the first respondent and subsequent election of first respondent as candidate was illegal, null and void on the ground of disqualification provided under Article 191(l)(a) of the Constitution of India. This is the only ground on which election of the 1st respondent has been challenged.
4. Notices according to law being served on the respondents.
5. 1st respondent filed the written statement on 6-11-1998.
6. On behalf of respondent 2, objection was filed to the effect that respondent 2 has been wrongly impleaded as respondent.
7. The first respondent in his written statement admitted that the 1st respondent was and has been working as a Teacher/Physical Educa-
tion Teacher in Lemington High School, Hubli, since the date of his appointment i.e., 8-8-1975, when he was so appointed by the Commissioner, Hubli-Dharwad Municipal Corporation. The first respondent has further alleged that the said High School receives Grants-in-Aid from Government of Karnataka. He admitted that service conditions were governed by the Karnataka Municipal Corporations Act, 1976, the Karnataka Education Act, 1983 and the Karnataka Grant-in-Aid for Secondary Service Schools, 1966. The first respondent further pleaded that he has been on leave without pay for about 15 years and hence he is not receiving any salary from the said High School. It was further asserted in his written statement that objections to the nomination of the 1st respondent filed by the election petitioner was duly considered by the Returning Officer, who passed a considered order as per Annexure-D to the election petition and the same did not suffer from any illegality or infirmity. The 1st respondent denied, the allegation that he held the office of profit under the Government of India or the State Government, within the meaning of Article 191 of the Constitution of India. He asserts the ownership and management of the School vests in Hubli-Dhar-war Municipal Corporation and not in the State Government. The State Government does not in any manner control appointments and management of the School. The functioning of the first respondent in the said post is under direct control of the Corporation and not under the State Government. The 1st respondent has further asserted that he could only be removed from the post by the Corporation alone. 1st respondent states that the Corporation receives salaries and maintenance grant from the State Government, as is the case with any other private aided institutions, but the salary is paid to 1st respondent by the Corporation. 1st respondent asserted that he has been on long leave prior to the filing of his nomination paper on 4-6-1998, and since then he has not received any salary or allowance attached to the post and it cannot be said that he was holding the office of profit either on the date of his nomination or subsequently. His case is that for the last 15 years he has not been receiving the salary. Thus the first respondent denied the holding of any office of profit under the Government, Union or State.
8. As mentioned earlier, the 2nd respondent asserted that it was not a necessary party to be impleaded in this election petition.
9. On behalf of the petitioner on 8-12-1998 a original certificate issued by the Lemington Boys Secondary School, Hubli to the effect that he being B.S. Horatti (i.e., respondent 1), Assistant Teacher in the School has been on leave without salary from June 1992. The genuineness of this certificate and the contents thereof have been admitted by the the Counsel for the first respondent. The document is marked as Ex. R. 1. This document was filed on 8-12-1998. On 8-12-1998 the petitioner desired to file uncertified document purported to be a copy of Government letter having been accepted on record and the case having been adjourned to 10-12-1998. On 10-12-1998 at the request of the petitioner’s Counsel, it was further adjourned to 14-12-1998. On 14-12-1998 the petitioner’s Counsel sought permission to file a certified copy of Government letter dated 26-3-1991 issued by the Under Secretary to Govern-
ment, Education Department. The Counsel for respondent 1 having no objection, this document has been taken on record. The genuineness of this document has been admitted by the Counsel for the 1st respondent. The learned Counsel appearing for the parties submit that they do not want to lead any oral or further evidence.
10. On the basis of the pleadings of the parties, on 18-11-1998 the following issues have been framed;
(1) Whether respondent 1, who admittedly on the date of nomination i.e., 4-6-1998 was a Teacher (Physical Education Teacher) in Lemington School, Hubli run by the Hubli-Dhar-wad Municipal Corporation, was holding office of profit either under Government of India or of the State? If yes, was he disqualified to be a candidate and for being elected to Legislative Council under Article 191(1)(a) of the Constitution of India?
(2) Whether respondent 1 was on leave and was not receiving any salary as a teacher for the last 15 years period immediately before the date of nomination as alleged in paras 2 and
5 of the written statement? If so, its effect?
(3) Whether impleading of respondent 2 amounts to misjoinder of a party? If so, what is its effect?
(4) Whether does election petition disclose a cause of action? If not, is it liable to be rejected?
(5) To what reliefs, if any, is the petitioner entitled?
11. Issue Nos. 1, 2, 4 and 5.–The admitted position as regards the
facts are concerned are the facts admitted are as under:
That on the date of the nomination, the 1st respondent was working as Physical Education Teacher in Lemington High School, Hubli. That Lemington High School, Hubli, is run by the Hubli-Dharwar Municipal Corporation. That the said Lemingtori High School is getting grants from the Government. Out of it the salaries were paid as well to the Teachers of that High School and that the conditions of service of the Teachers of that school including respondent 1 were governed by the Karnataka State Education Act, 1983, Karnataka Municipal Corporations Act, 1976 and the Grant-in-Aid Code for Secondary Schools Conduct Rules, 1966. This fact also comes out to be admitted as well as proved from Ex. R. 1 as well, the contents and the genuineness of this document have been admitted by the petitioner–that respondent 1 since long before the date of his nomination, as well as on the dates of nomination, scrutiny and election has been a Teacher in that School on leave without any pay or salary. Keeping these admitted and true facts in view the questions primarily arise for consideration before this Court is whether respondent 1 has been holding any office of profit under the Government of India or the State Government at all within the four corners of Article 191(l)(a) of the Constitution of India and the second question is what would be the effect of respondent 1 being on leave without pay or salary on the said post of teacher on the dates of his
nomination paper, scrutiny and election as asserted by the first respondent and admitted by the petitioner.
12. It has been contended on behalf of the petitioner by Sri G.R. Gurunath, advocate that in view of the above facts and in view of the facts disclosed as per Ex. P. 1, it is very clear that respondent 1 is holding office of profit under the Government. The learned Counsel for the petitioner contended that from Ex. P. 1 i.e., a Government letter No. ED 624 SLB 90, dated 26th March 1991 issued under the signature of the then Under Secretary to Government, Education Department, the position emerges out to be that the first respondent, who has been serving as Physical Education Teacher in Lemington High School, Hubli, was holding office of profit under the Government. The learned Counsel contended that as per this letter, the Commissioner of Public Instruction, Bangalore had directed the Commissioner, Hubli-Dharwar Municipal Corporation, Hubli, to take respondent 1 back on duty and to reinstate him. The Under Secretary has opined that at the time when the first respondent claimed voluntary retirement, he was not eligible to seek voluntary retirement and therefore direction to the Commissioner was issued to withdraw its order dated 28-5-1986. The learned Counsel further contended that this reveals control of the Government over the institution, in which the first respondent was serving and so the first respondent has to be taken to be holding office of profit under the State Government and as such he was disqualified from being nominated as a candidate for the election as well as to be elected to the Legislative Council from the constituency in question. The learned Counsel for the petitioner submitted that election of the first respondent be declared illegal, null and void and be set aside.
13. The learned Counsel for the petitioner made reference to the decision of the Supreme Court of India in the case of Biharilal Dobray v Roshan Lal Dobray. The learned Counsel for the petitioner Sri Guru-math, also made reference to the various provisions of the Karnataka Municipal Corporations Act and the Karnataka Education Act, 1983 which will be referred to in the body of the order.
14. The contentions of the petitioner’s Counsel have been hotly contested on behalf of the first respondent by Sri B. Vasudevacharya, learned Senior Advocate. He submitted that the post of Physical Education Teacher in the Lemington High School for Boys, Hubli, cannot be said to be office of profit under the State Government or Central Government. He submitted that Lemington High School is a local body institution run by the Hubli Dharwar Municipal Corporation, Hubli and the appointing authority for the said post in law is Commissioner, Hubli-Dharwar Municipal Corporation, Hubli. The matters of appointment, removal etc., of first respondent in the School are subject to power and control of the Commissioner, Hubli-Dharwar Municipal Corporation. The power of appointment and removal of teachers vests in the Commissioner. No doubt, subject to certain rules and regulations made under
the Karnataka Education Act, for the benefit and improvement of the institution. He submitted that there is no doubt Grants-in-Aid received by the Corporation for the school, but the said amount received as Grant-in-Aid becomes part and parcel of the funds of the Municipal Corporations and the School and the salaries is paid out of the funds under the control of the Corporation. The Director by itself make the School as State Government School and position of this school is distin-guished from the schools run by a State Government. He submitted that respondent 1 has been a holder of office under the Municipal Corporation, which is a local body distinguished from the State Government. He further submitted that no doubt there may be some control over the school or the Corporation of the Government with the object of making the education excellent, but that control of Government under the Education Act or Grant-in-Aid Code does not operate as control on appointments. It does not amount to be reconferring of power of appointment or removal of teacher of the Lemington High School of the State Government, nor it can render it to be office under the Government. The learned Counsel further contended that perusal of the scheme of the Education Act as well as the provisions of Constitution particularly Articles 102(1)(a) and 191(1)(a) on the one hand and perusal of Articles 58(2) and 66(4) of the Constitution on the other per se reveals intent of fra-mers of the Constitution is to maintain distinction between office of profit under the Government and office of profit under local or other authority and thus where the framers of the Constitution thought it necessary to provide that holding of office of profit under the local authority should also be a subject-matter of disqualification. The Constitution so provide while in a case where framers of the Constitution did not think and consider the holding of office of profit under local or other authority not to be disqualification. The Constitution did not mention or refer to the local authority. The learned Counsel contended that this distinction and the distinctive feature of the two sets of provisions has to be kept in view when considering the question of office of profit under the Government, Union or State as disqualification for the membership of Legislature. The learned Counsel submitted that the Constitution assuniably itself makes distinction between the two offices of profit under the Government, State or Union on the one hand and holding of office or office of profit under the local bodies or the other. Sri B. Vasudevacharya further submitted that the first respondent was not receiving any salary or profit for the post. So respondent 1 cannot be said to be holding the office of profit. He submitted that no doubt respondent 1 was holding office under the Corporation or local body by virtue of his being the teacher in the Lemingtion High School, Hubli, run by the Hubli-Dharwar Corporation, but was not receiving any profit. So also respondent 1 could not be said to be disqualified for being a candidate in the election for the Legislative Council, nor can he be said to be disqualified from being elected as member of the Legislative Council. Sri B. Vasudevacharya contended that Ex. P. 1 cannot be taken to be establishing that appointment to the post of teacher or his removal or power
relating thereto vests in the Government. He contended that the petition is without any merits and deserves to be dismissed.
15. In the course of his contentions, Sri B. Vasudevacharya, made reference to the following decisions:
(1) Maulana Abdul Shakur v Rikhab Chand and Another1;
(2) D.R. Gurushanthappa v Abdul Khuddus Anwar and Others ;
(3) Mahadeo v Shantibhai and Others3;
(4) Divya Prakash v Kultnr Chand Rana and Another4;
(5) Ashok Kumar Bhattacharya v Ajoy Biswas and Others6;
(6) Satrucharla Chandrasekhar Raju v Vyricharla Pradeep Kumar Deu and Another
16. Sri B. Vasudevacharya, further made reference to the following decisions of the High Courts as well:
(1) Joti Prasad v Kalka Prasad;
(2) Radhakrishnct Visharad v Civil Judge, Aligarh and Others ;
(3) Sarnam Singh v Smt. Puspa Devi and Others;
(4) Kathan Reddi v Government ofAndhra Pradesh ;
(5) K.S. Adam v Director of Public Instructions, Mysore;
(6) Lalitha Bai v Returning Officer, City Municipality Elections, Gulbarga;
(7) K.H. Srinivas v K.S. Bshwarappa;
(8) City Municipal Council v The Zilla Parishat and Others ;
(9) Gopala Kurup v Samual A. Paul.
17. Before I discuss the contentions made by the learned Counsel for the parties, it will be appropriate to make reference to the material provisions of law in this context.
18. The present election petition is solely based on the ground under Section 100(1)(a) of the Representation of the People Act, 1951. The material clause (a) reads as under:
“that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963).
19. As mentioned earlier the petitioner’s case is that in view of Article 191 of the Constitution the returned candidate i.e., respondent 1 was disqualified to be chosen as well as have been a member of the Legislative Council in view of the fact that as alleged in the petition that he was holding office of profit under the Government of the State as he was a teacher i.e., Physical Education Teacher in the school viz., Lemington High School, Hubli, run by Hubli-Dharwar Municipal Corporation. The material portion of Article 191 of the Constitution of India may be quoted as under:
“Article 191. Disqualification for membership.–(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”.
Rest of Article 191 is not material for the purpose. To be disqualified under clause (a) of Article 191(1) of the Constitution, it has to be shown or established that on the date of nomination and election, the person concerned i.e., the returned candidate was and has been holding office of profit under the Government either Union or State as specified in 1st Schedule. The State of Karnataka beyond doubt is one of the States mentioned in the First Schedule as Serial No. 9.
20. The first question is whether the office of the teacher or Physical Education Teacher in the Lemington High School, Hubli, run by the Hubli-Dharwar Municipal Corporation can be said to be a office under the State Government. There is no dispute that the post of teacher i.e., Physical Education Teacher carries with itself salary and emoluments and the salary and emoluments are generally paid to the teachers out of the funds maintained by the institution under the control of Hubli-Dharwar Municipal Corporation referred to above and the money coming from the Grant-in-Aid or received by the institution as grants becomes part and parcel of the funds of the institution. No doubt the case of the returned candidate respondent 1, which is also not disputed and is the admitted case that respondent 1 has been on leave without pay on the date of nomination, election and declaration of the result, as well as even now he continues to be a teacher on leave without pay. What is the effect of this may be considered later on viz., the effect of his non-receipt of pay or leave without pay. If the institution in which the returned candidate is or has been a teacher as mentioned above, it is found not to
be a institution run by the Government, nor the appointment of teacher is under the direct control of Government nor his termination of his services within the scope of the power of the Government, it may not be said to be the office held under the State Government. The office of teacher no doubt carries profit in the form of salary etc. Salaries are paid to the teachers and payable to the teachers, but the effect of non-receipt of the salary or what is the effect, of a returned candidate i.e., respondent 1, continuing on leave for long period without pay on the date of nomination and election on his candidature and election may have to be considered later on, if necessary. For this purpose, it would be relevant to refer to the scheme of the Karnataka Education Act, 1983. The Kar-nataka Education Act, 1983 is an Act which aims to provide for better organisation, development, discipline and control of educational institutions in the State as well as to provide for planned development of educational institutions, inculcation of healthy education practice, maintenance and improvement in the standards of educational and better organisation, discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education.
21. It is well established that right of education is implicit in the right of life with human dignity as education is one of the elements and factors that is essential for development of human dignity as held by their Lordship of the Supreme Court in Unnikrishnan v State of Andhra Pradesh, Article 41 of the Constitution, makes it to be the duty of the State as per the directive principles therein that the State shall within the limits of its economic capacity and development, make effective provision for securing among other rights, right to education as well. Section 3 of the Karnataka Education Act, 1983 also provides that subject to sub-section (3) of Section 2 the State Government may regulate general education, professional education, medical education, technical education, commerce education and special education at all levels in accordance with the provisions of this Act. Sub-section (2) of Section 3 further reveals that in order to discharge his obligations towards fulfilling of the citizens rights or effectuating the right of education of its citizen the State Government may either by itself establish and maintain educational institutions, or permit any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed. It also empowers the State Government to require registration of educational institutions and grant recognition to the educational institutions as well as to grant aid to any recognised educational institutions in furtherance of the objects of the Act i.e., in ensuring effective implementation of right of education, which is implicit part of fundamental right of life with human dignity. The section reveals it that this duty may be performed by the State by establishing and maintaining educational institutions by the State Government itself or by permitting any local authority or a private
body of persons to establish and maintain educational institutions in accordance with the specifications to be prescribed, subject to the registration of educational institutions and its recognition. Educational institutions established by private body of persons other than the State Government viz., by other local authority or private body of persons stand on different footing. This also appears from the perusal of the scheme under Chapter V of the Act.
22. Under Chapter V of the Karnataka Education Act, 1983 provisions have been made for Classification and Registration of Educational Institutions. Section 29 of the Education Act provides for classification of educational institutions as State institutions, local authority institutions and private educational institutions. It will be appropriate to quote Section 29 of the Act.
“29. Classification of educational institutions.–The educational institutions shall be classified as follows:
(a) State institutions, that is to say educational institutions established or maintained and administered by State Government;
(b) local authority institutions, that is to say, educational institutions established or maintained and administered by a local authority; and
(c) private educational institutions, that is to say educational institutions established or maintained and administered by any person or body of persons registered in the manner prescribed”.
23. A reading of Section 29 of the Act, per se reveals that the State Legislature under this Act, has classified these institutions in three categories. The legislative intent appears to be that the Legislature has taken the said State institutions as distinct from local authority institutions and private educational institutions. The said institutions in other words educational institutions established, maintained and administered by the State Government have been put into separate category as State institutions. While educational institutions established, maintained and administered by the local authority have been designated as local authority institutions to distinct them from the State institutions. While private educational institutions have been made to put in the special category. The private educational institutions are those institutions which have been established or maintained and administered by individual persons or body of persons registered under the Act, in the manner prescribed under the Act.
24. This broad distinction has to be kept in view while considering the material question involved, as legislature itself has expressed its intention to distinct State institutions from other institutions viz., local authority institutions and private educational institutions. Section 30 provides that educational institutions established or maintained and administered by local authority as well as private educational institutions, in other words every local authority institutions and every private
educational institutions, whether it has been established on or before the date of commencement of the Education Act, 1983, or intended to be established thereafter, is required to be registered in accordance with the provisions of this Act and rules made thereunder, notwithstanding anything contained in any other law for the time being in force. This section further provides that no person natural or juristic nor any local authority shall establish or as the case may be run or maintain an educational institution which is required to be registered under Section 30 unless such institution has been so registered.
This section per se reveals that local authority educational institutions and private educational institutions the legislature enacting the Act of 1993 has intended to be taken to be standing on distinct footing than from the State educational institutions and they have not to be taken as institutions established or maintained and administered by the State i.e., State Government.
25. Chapter VII of the Karnataka Education Act, makes provisions in relation to the management of recognised private educational institutions and local authority institutions. Section 40 of the Act, deals with the duties of management of local authority institution and it requires as the duties of management that it shall comply with the provisions of the Karnataka Education Act, Rules and Orders made thereunder. It further provides as the duties of local authority institution; and its management that it shall ensure that all monies collected by or granted or allotted to the local authority by or under this Act are spent for educational purposes. It further requires it to submit every year the annual report. I have referred to these provisions with special intention to indicate that local authority institutions established and administered or maintained by the local authority, which also has got power to make appointment, suspension and removal of its employees. There is not much dispute between the parties, as regards the provisions regarding appointment and removal of teachers of the institution such as Lemington High School vests in the Commissioner.
26. Under the Karnataka Municipal Corporations Act, as regards the Officers of the Corporation and its servants under Section 91, power is conferred in the Government to make rules regarding conditions of service applicable to the employees of the Corporation, which rules may relate to the matters regulating appointment, the tenure of office, service conditions and rules regarding disciplinary action etc. Subject to these rules framed, the Corporation authorities have been conferred powers to make appointments to the posts in or under the Corporation vide Sections 82, 83, 84 etc., Under Section 84 of the Karnataka Municipal Corporations Act, the power to make appointment has been conferred on the Commissioner, in accordance with the Act and Rules framed thereunder. The learned Counsel for the petitioner admitted that the Commissioner makes appointment and has got power to remove, no doubt subject to the rules.
27. It has been contended on behalf of the petitioner, by reference to Ex. P. 1 that the Commissioner of the Corporation at one time permitted
the 1st respondent to voluntarily retire from the service vide order of the Commissioner of the Hubli-Dharwad Corporation dated 28-5-1986. Later on the 1st respondent has made representation to the Government requesting the Government to reinstate him in service, aide order dated 26-3-1991 issued by the Secretary to the Government, Education Department on the representation of 1st respondent, Government had directed that as the total service rendered by 1st respondent at that time was less than 20 years and as he was not eligible to take voluntary retirement under the relevant rules, so the Government directed the services of 1st respondent to be continued and sought the report. The certified copy of that order has been filed at Ex. P. 1. On the basis of Ex. P. 1, it was contended that in the matter of appointment, removal or retirement of 1st respondent from the post of teacher of the local authority’s institution i.e., Lemington High School, the Government had control. So it may be held that 1st respondent has been holding the office of profit under the Government. I am unable to accept this contention. It is to be taken note of that the expression “holds office of profit under the Government”, means holding of office of profit must be under the Government, to which any pay, salary, emoluments are attached, before a person can be held to be disqualified under Article 191(1)(a) of the Constitution of India. That the person concerned held office and that it was office of profit and that it was under the Government of India or the State Government. The test to determine whether the office is under the Government, which is that authority that has got power to make appointment to the office concerned, what authority can take disciplinary action like removal or dismissal of the holder of the office and by whom or from what source the remuneration is paid. The mere fact that Government had control or supervisory power over the management or managing authority or local authority institution management as could issue directions relating to the educational matter. It cannot lead to inference that the employees under the Corporation are under the control of the Government, because of the indirect control exercisable by Government over the private educational institutions or local authority institutions or their Management and it cannot be deemed to make such institution i.e., local authority educational institution or private educational institution to be State educational institution. The persons appointed to hold certain office under the local authority by it or by its Commissioner cannot be considered to be the officer holding office under the State Government. In the case of Satrucharla Chandrasekhar Raju, supra, their Lordships of the Supreme Court lay down very clearly that merely because the Government exercises control over the local authority having power to appoint or dismiss or control over the working of the officer employed by such local authority does not disqualify that officer from being a candidate from election, if that officer is neither appointed by the Government nor can his removal be made by the Government. The salary of teachers is being paid from the funds maintained by local authority institutions. No doubt the money coming from the Grant-in-Aid Code also goes to that fund, but it has become part of those funds the salaries are paid out of the funds maintained itself by the local
authority as such as well it cannot be said that salary of teachers is payable and paid by the State Government. Really, for the payment of salaries to teachers of local body institutions or local authority institutions the local bodies or local authorities are liable as to other employees or local bodies.
28. That no doubt under Section 131 of the Karnataka Education Act, power of revision has been given to the State Government in respect of administrative and quasi-judicial orders, not being a proceeding in respect of which a reference to an arbitrator or an appeal to the High Court is provided, excluding those orders from which a reference is provided or the appeal is provided to the High Court, Government has been given power suo motu or an application from any person interested, to examine the record of an educational institution and to satisfy about the regularity, correctness, legality or propriety of the decision or order passed therein and if in its opinion the decision or order suffers from illegality or irregularity etc., it can issue directions for modification or re-consideration. Under Section 132 of the Act, power vests in the Government for review of its own orders. Section 133 confers power in the Government to issue directions to the Commissioner of Public Instruction or the Director or the District Educational Officer or it can issue directions to educational institution, which direction in its opinion are necessary to carry out the purpose of the Act, as well as to give effect to the provisions of the Act, Rules and Orders made thereunder i.e., the general supervisory power and this general supervisory power is vested in the Government, no doubt because it is one of the fundamental obligations of the State to make provisions for proper education and proper working of the educational institutions. But this does not mean that the Karnataka Education Act, which has factually statutorily made demarcation of educational institutions into three categories viz., State institutions, local authority institutions and private educational institutions, which had established or maintained and administered by any person or body of persons registered. That distinction has been maintained and is to be maintained when considering the question involved. The initial power of appointment vests in the management of the school. In the case of local authority institutions, it vests in the local authority i.e.r Commissioner of the Municipal Corporation, but as the Government has supervisory power, it could issue directions to the Appointing Authority if it appeard that 1st respondent was at that time, granted voluntary retirement in breach of the relevant rules. By Ex. P. 1 relied on by the petitioner, Government appears to have exercised supervisory power examined the matter and when it was of the opinion that respondent 1 by that time had not become eligible to seek voluntary retirement, it issued direction to the Commissioner of Public Instruction, Bangalore and who in turn communicated Government’s direction to the institution concerned. Government directed that as Sri B.S. Horatti (MLC) former Assistant Master was not eligible for voluntary retirement and that order has been passed by the Commissioner of Public Instruction, Bangalore, granting voluntary retirement to 1st respondent on 28-5-1986 should be withdrawn. In view of the supervisory power, Government had
to look into whether the relevant provisions of law, Act and the rules are followed and if they are not followed or any order was in violation of those rules, Government could and make necessary directions. Ex. P. 1 by itself does not establish that Government directly had power to make directly the teacher’s appointment or removal. The power to make appointment and removal of the post of teacher in local authority institution being vested in its Commissioner, in the present case Hubli-Dharwad Corporation, the power of Government to issue directions to the Commissioner, through its own Director did not render the 1st respondent to be employed as the officer holding office of profit under the State Government. Respondent 1 altogether remained an officer under the local authority or local body i.e., Hubli-Dharwad Municipal Corporation. Even under the provisions of Chapter IX of the Karnataka Municipal Corporations Act, there are provisions running from Sections 94 to 100, which indicate that Government has power to call for records and to cause inspection to be made by the Corporation records, as well as it has got power to take action in respect of matters pending undisposed of before the Corporation. Under Section 96 Government has also been conferred power to issue directions to the Corporation or the Commissioner as specified or for the purpose specified in Section 96 of the Karnataka Municipal Corporations Act, but that will not make the employee or the officer under the Corporation to be the officer holding office of profit under the State Government, particularly the one who is appointed by the authorities of the Corporation or the Corporation itself. So Ex. P. 1 thus considered in my opinion does not render any strength to the case of the petitioner that first respondent has been a officer or a person holding office of profit under the Government. Respondent 1 at the most can be said to be a person holding office under the local authority or local body, but not to be a person holding office of profit under the State Government. At this juncture, it will be appropriate to make reference to Article 58 of the Constitution of India, which deals with the qualifications for election as President reads as follows:
(1)
(a xx xx xx.
(b) xx xx xx.
(c) xx xx xx.
(2) A person shall not be eligible for election as President, if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
Similarly, Article 66(4) of the Constitution of India reads as follows:
A person shall not be eligible for election as Vice-President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
29. Article 191 of the Constitution of India, provides disqualifications for membership to the Legislative Assembly or Legislative Council of a State. Article 191(1)(a) of the Constitution, provides that a person, if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule shall be disqualified to be chosen’to State Legislature. But it does not provide that he shall also be disqualified if he holds office of profit under the local authority, if the local authority is subject to the control or supervision of the State Government. Thus, it appears that under Article 191(1)(a) of the Constitution one holding office of profit under the local authority cannot be said to be disqualified for being a member of the Legislative Assembly or Legislative Council of a State. The framcrs of Constitution did not lack any expression. They could have indicated in clause (a) of Article 191(1) of the Constitution similarly or in same terms as it expressed in Article 58(2) or 66(4) of the Constitution. Thus Article 191 disqualifies only the person who holds an office of profit under the Government of India or the Government of any State, and not one who holds office of profit under the local authority. While in the matter of election to the office of the President or the Vice-President of India even persons holding office of profit even under the local or other authority, subject to the control of Government are also disqualified. The teachers of local authority educational institutions cannot directly claim salary from the State Government itself.
30. The learned Counsel appearing for the petitioner made reference to the decision of their Lordships of the Supreme Court in the case of Biharilal Dobray, supra. This decision referred to by the learned Counsel is of no assistance. Their Lordships of the Supreme Court in that case were considering the question whether an Assistant Teacher employed in a Basic Primary School run by the Uttar Pradesh Board of Basic Education under the Uttar Pradesh Basic Education Act, 1972 (U.P. Act No. 34 of 1972) could be said to be a person holding office of profit under the Government. Their Lordships after examining the Uttar Pradesh Basic Education Act 1972, its provisions and rules have observed in paragraph 21 as follows:
“Primary education in a State unlike the higher education is the special responsibility of its Government and as observed earlier the Act was passed with the object of enabling the Government to take over all basic schools which were being run by the local bodies in the State and to manage them as provided specifically in Section 4(2)(cc) of the Act and to administer all matters pertaining to the entire basic education in the State through the Board consisting mostly of officers appointed by the Government. The rules made regarding the disciplinary proceedings in respect of the teachers in the basic schools managed by the Board, as observed earlier, vest the final voice in the State Government or its officers and almost the entire financial needs of the Board are met by the Government. The Board for all practical purposes is a department of the Government and its autonomy is negligible. Sub-section (2) of Section 13 of the Act on
which emphasis is placed by the respondent is also not of much significance. If no doubt recognises the possibility of a dispute arising between the Board and the Government regarding the functions of the Board, but that very sub-section provides that if any such dispute arises the decision of the State Government shall be final and it shall be binding on the Board”.
Their Lordships have further observed in paragraph 23 as under:
“We have already shown that the Board is not an authority which is truly independent of the Government and that every employee of the Board is in fact holding his office under the Government. This is not even a case attempting to pierce the veil and trying to find out the true nature of something after uncovering it, but a case where its true nature i.e., the subordination of the Board and its employees in the Government is large on the face of the Act and the rules made thereunder”.
31. The above quotations clearly disclose that the decision in Bikar-ilal Dobray’s case, supra, is not of any help to the present petitioner as respondent 1 is an employee of the Municipal Corporation or a person holding office of profit under the Corporation is appointed and his services are removable by the local authority which administers the local authority institutions.
32. As regards the first respondent no doubt he has been on leave without pay for the last fifteen years or so prior to his election and at the time of election and admittedly he was not receiving any emoluments, but even then it cannot be said that the first respondent was not holding the office of profit. In my opinion the office of profit means the office that carries with it or to which is attached payment of salary, emoluments or benefits thereunder. If these are attached to the office and are payable under and in accordance with the rules to the holder of the office, the person or officer holding such office no doubt holds the office of profit. Receiving of profit or non-receiving of said profit beyond doubt is immaterial, if under the order and under terms of appointment he is entitled to the same. If a person goes on leave without salary that by itself gives clear indication that the post carries with the salary or profit. It is in lieu of leave, beyond the sanction on which he had been granted under rules on the condition that he will not get salary for the period, it means that the salary is not paid to him, because he is enjoying the benefits of leave beyond the leaves prescribed as leave without pay. In this view of the matter, the first respondent cannot assert that he is not holding the office of profit. First respondent is no doubt holding the office of profit, though without receiving salary or profit directly in the form of cash or money, instead in lieu thereof he is enjoying the leave and the office he is holding is beyond doubt the office of profit i.e., the post of teacher to which salary is attached, in the Lemington High School. Thus, the first respondent is holding an office of profit under the local authority and its institution i.e., Lemington High School, Hubli.
33. Thus considered in my opinion, the first respondent who is holding office of teacher of Physical Education in the Lemington High
School, Hubli, is holding the office of profit under the local authority i.e., Municipal Corporation and not under the State Government. That as such 1st respondent cannot be held to be disqualified to be chosen to legislature instead I may and do hold that he was perfectly qualified to be chosen to be the member of the Legislative Council.
34. In my opinion the petitioner has failed to make out a case-to the effect that first respondent was disqualified for being chosen as and for being a member of the Legislative Council under Article 191(1)(a) of the Constitution of India. The petition itself being devoid of merit deserves to be dismissed with costs.
35. The second respondent has been only a Returning Officer, Kar-nataka West Teachers’ Constituency, Belgaum Division, Belgaum and he was not a necessary party, might be the proper party and had been impleaded and when election’petition is being dismissed, it is to be held that both respondents are entitled to the costs separately.
36. The petitioner having failed to establish the case against the first respondent under Article 191(1)(a) of the Constitution of India and it having been found that 1st respondent was not holding any office of profit under the State Government, the election petition is hereby dismissed with costs assessed at Rs. 4,000/- payable to the 1st respondent and Rs. 1,000/- payable to the 2nd respondent by the petitioner. The LA. moved by Returning Officer is thus disposed in above terms as well.