RAM SWARUP Vs. HARI RAM

JUDGEMENT

(1.) The appellant was elected to the Nagal constituency of the U. P. Legislative Assembly and was declared elected on 1/06/1980. The respondent Hari Ram filed an election petition against the election of the appellant and the High court, by its judgment and order dated 3/03/1982 declared the election void. The High court found that the appellant had continued to hold the office of district Extension Educator (Family Planning) , an office of profit under the State government, up to the date fixed for scrutiny of the nomination papers and, therefore, he was disqualified from being elected as a member of the Legislative Assembly. Holding that the acceptance of his nomination paper amounted to non-compliance with the provisions of the Constitution it set aside the election under section 100 (1) (d) (iv) ofthe Representation of the People Act, 1951.

(2.) In this appeal, the appellant contends that the High court erred in holding that he was disqualified. In our opinion, the appellant is right. Article 191 (1) (a) of the Constitution declares that a person shall be disqualified for being chosen as, and for being, a member of Legislative Assembly if he holds any office of profit under the government of a State other than an office declared by the legislature of the State by law not to disqualify its holder. It is not disputed that the post of District Extension Educator (Family Planning) is an office of profit under the government of Uttar Pradesh. the holding of which would disqualify the incumbent from election to the Legislative assembly. S. 36 (2) (a) of the Representation of the People act, 1951 indicates that the candidate should not be holding an office of profit on the date fixed for scrutiny of nominations. The question is whether the appellant was holding an office of profit and was disqualified from election by reason of S. 36 (2) (a).

(3.) On 20/04/1980 the appellant wrote to the Additional director and State Family Welfare Officer, Uttar Pradesh, Lucknow staling that he was unable to continue in government service and requesting that his resignation be accepted with effect from 30/04/1980 and that he should be relieved with effect from that date. The letter of resignation was forwarded to the Additional director-cum-State Family Welfare Officer with the recommendation of the Medical Officer, Saharanpur for acceptance of the resignation. On 2/05/1980 the Additional Director-cum-State Family Welfare officer wrote back to the Chief Medical Officer, Saharanpur stating that the resignation of the appellant was accepted with effect from 30/04/1980 with the stipulation that the appellant must pay one month's salary in lieu of notice.