SHRI DIVYA PARKASH Vs. SHRI KULTAR CHAND RANA

JUDGEMENT

(1.) Shri Kultar Chand Rana Respondent No. 1 was declared elected to the Himachal Pradesh State Legislative Assembly from Shahpur Constituency in Kangra District during the elections held in March, 1972. The Petitioner, who is a voter in that constituency, has challenged the election on the ground, amongst others, that Respondent No. 1 at the time of filing the nomination paper and at the time of being elected as a member of the Assembly was holding an office of profit under the Government of Himachal Pradesh and as such under Article 191(1)(a) of the Constitution of India he was disqualified for election to the Legislative Assembly.

(2.) The Respondent was nominated Chairman of the Board of School Education of Himachal Pradesh in the year 1969 by the Himachal Pradesh Government under the provisions of the Himachal Pradesh Board of School Education Act, 1968 (hereinafter to be called the 1968 Act) and continued to work in this capacity upto 25th March, 1972. The Board was constituted by the Himachal Pradesh Government under Sec. 3 of the 1968 Act. It was averred in the petition that the appointing and dismissing authority of the Chairman is the Himachal Pradesh Government under the law. Further, the regulations of the Board have been made by the Government under Sec. 27 of the aforesaid Act and the salary of the Chairman has also been fixed by the Government in the scale of Rs. 1600 -1800. The Government is not only the appointing and dismissing authority qua the Chairman but is also the controlling authority. The Government has the power to issue directions as to the manner in which the duties of the office are to be performed, and to determine his remuneration. In view of this the Respondent was holding the office of profit under the Government at the time of his election and as such under Article 191 of the Constitution he was disqualified to contest the election.

(3.) In his preliminary objections the Respondent averred that he was the honorary Chairman of the Board which was a body corporate established under Sec. 3 of the 1968 Act. Therefore, he was not holding an office of profit under the Government of Himachal Pradesh. According to him, paras 5 and 6 of the petition did not disclose any enforceable cause of action. In the alternative it was pleaded that in case it was held to be an office under the State Government the Respondent was protected by the provisions of Sec. 3(m) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 (hereinafter to be called the 1971 Act). In his reply on merit it was denied that he was holding any office of profit under the Government at the time of filing his nomination papers or at the time of his election. He further averred that the Board is a body corporate and any person who is the employee or working under that statutory body cannot be said to hold an office of profit under the Government of India or under the Government of any State as envisaged under Article 191 of the Constitution. The other averments were also denied.