SATRUCHARLACHANDRASEKHARRAJU Vs. VYRICHERLA PRADEEP KUMAR DEV

JUDGEMENT

(1.) THIS is an appeal under S. 116-A of the Representation of the People Act, 1951 preferred against the order of the High court setting aside the election of the appellant who was elected as a member of the Andhra Pradesh Legislative Assembly from No. 8 Naguru (ST) constituency on the ground that he was holding an office of profit under the State government at the relevant time and was thus disqualified under Article 191(1 (a) of the Constitution of India for being chosen as a member of the Assembly.

(2.) THE appellant was appointed as a Single Teacher in a primary 1school run by the Integrated Tribal Development Agency ("ITDA" for short) by its Project Officer. He joined duty in January 1988 and was working in a school in Jiyyammavalasa Mandal in Vizianagaram district. On 2/08/1988 the Tribal Welfare Officer inspected the said school and is alleged to have noticed some irregularities and he kept the appellant under suspension pending inquiry by an order dated 23/08/1988. THE appellant questioned the .same before the Andhra Pradesh Administrative tribunal by filing a petition but the same was rejected. THEreafter by a letter dated 26/10/1989 the appellant submitted his resignation to the Project Officer who was the appointing authority. However, the Project Officer made an endorsement on the said letter that his resignation cannot be accepted in view of the pending enquiry. Subsequently the election programme for the Legislative Assembly was announced and the appellant filed his nomination and contested election from the above-mentioned constituency on 22/11/1989. Counting took place on No 26/11/1989 and on 27/11/1989 the appellant was declared duly elected. Respondent 1 who was one of the contesting candidate's and who lost the election, filed an election petition challenging the election of the appellant on the ground that the appellant was disqualified as he was holding an office of profit not only on the date of filing the nomination but also subsequently in view of the fact that his resignation was not accepted in view of the pending inquiry and therefore he shall be deemed to be holding an office of profit under the government. THE respondent also stated in his election petition that he was not aware of the appellant's disqualification at the time of the scrutiny of the nomination papers. THE appellant filed a written submission contesting the election petition inter alia contending that the ITDA under which he is deemed to be holding an office as a teacher was only a registered society under the Societies Registration Act and the said Society cannot be said to be the government nor is a part of the Government and that it is an independent body. It is also stated that since he has tendered his resignation on 26/10/1989 it shall be deemed to have come into effect from that date.

(3.) LEARNED counsel for the appellant before us contended that the reasons given by the High court by themselves, even if accepted to be correct, are not enough to conclude that the appellant was holding an office of profit and that one of the main tests is whether the government has got power to appoint and to dismiss the appellant from service and that admittedly the government has not the authority to dismiss him and this coupled with the fact that the Society is a registered society would clinch that the Society is not the government or a part of the Government and that the appellant was not holding an office of profit under the government. The learned counsel also submitted that some of the reasons given by the High court are not conclusive for holding that the Society is the government or a part of the government.