V S ACHARYA Vs. RETURNING OFFICER AND DEPUTY COMMISSIONER KARNATAKA SOUTH WESTGRADUATES CONSTITUENCY MANGALORE

JUDGEMENT

(1.) in this election petition presented under Section 81 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, rcspondent-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 legislative 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 rcspondent-2 held an office of profit under the Karnataka state government, are (i) that the n.i.e. college in which rcspondent-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-2'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, respondcnt-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.