DHIRENDRA NATH BAYAN Vs. ISMAIL HUSSAIN

JUDGEMENT

(1.) The election petitioner who has been serving as a Lecturer in M.C. College, Barpeta, since 1970, had filed his nomination form, in the last General Election held in April, 1996, from 43- Barpeta Legislative Assembly Constituency. As per notification dated 27.3.96, last date of filing of nomination was 3.4.96, the date of scrutiny was 4.4.96-

(2.) On the date of scrutiny, Respondent No. 3, Krishna Kanta Das raised an objection that the election petitioner being a Lecturer in M.C. College, Barpeta (notified as provincialised Under Section 3 of the Assam College Education (Provincialisation) Act, 1996 (for short Assam Act) was holding an office of profit under the Government of Assam, as such disqualified from being chosen to fill the seat in the State Legislative Assembly. Upholding the objection petitioner's nomination was rejected by the Returning Officer, hence this petition on the ground of improper rejection of petitioner's nomination, as specified under Clause (c) of Section 100 of Representation of the People Act, 1951, (for short the Act).

(3.) It is not in dispute the petitioner was in service (and still continues to be so) of M.C. College Barpeta which is one of the 21 colleges notified in the schedule under Section 3 of the Assam Act. This Assam Act came into force on 26th March, 1996, the date of which it was published in the Assam Gazette Extraordinary and the petitioner by operation of Section 3 thereof became Government servant for all intents and purposes. Section 3 of the Assam Act is reproduced below for ready reference. "3. Subject to the provisions of Articles 30 and 309 of the Constitutions of India and Section 7 of this Act, all employees of the colleges selected on the basis of seniority in the district in accordance with the date of establishment and specified in the Schedule and now covered by the deficit scheme of grants-in-aid under the Government shall be deemed to have become the employees of the Government on and from the date of this Act coming into force, in the following terms and conditions, namely : (a) all rules including the rules of conduct and discipline which are applicable to the Government servants of corresponding grade, similarly place shall be applicable to all employees of the colleges; (b) all employees shall be entitled to such emoluments as salary and allowances, etc, as admissible to them as per orders of the Government. Provided that no employees shall get as emoluments any amount which is less than the amount he was lawfully getting immediately before the coming into force of this Act (c) notwithstanding anything contained in the Assam Public Service Commission ( Limitation of Function) Regulations, 1951 services of all employees against sanctioned posts and whose appointments have been approved by the Director, Higher Education, Assam, shall be encadred in the appropriate cadres in accordance with the rub as may be prescribed by the Government for this purpose, (d) the inter-se-seniority of the employees in a cadre or class shall be determined on the basis of the rules as may be prescribed by the Government.