Sultan Sadik vs Sanjay Raj Subba - 2004 Supreme(SC) 14

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(SC) 14

2004(1) Supreme 186
SUPREME COURT OF INDIA
(From Gauhati High Court)
V.N. Khare, CJI., S.B. Sinha, J.
Sultan Sadik -Appellant
versus
Sanjay Raj Subba & Ors. -Respondents
Civil Appeal No. 8425 of 2002
Decided on 5-1-2004
Counsel for the Parties :
For the Appellant : V.A. Mohta, Sr. Advocate, Shakil Ahmed Syed, Anurag Singh, Advocates.
For the Respondents : U.N. Bachawat, Sr. Advocate, Pradeep Agarwal, Sushil Kumar Jain, V.K. Sidharthan, Advocates.

Headnote:Representation of the People Act, 1951-Section 100(1)-Constitution of India-Article 191-Assam Elementary Education (Provincialisation) Act, 1974-Sections 3, 27(1)-Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981-Rules 2(xii)-Disqualification being holder of a post of profit under State of Assam-Appellant elected from Legislative Assembly in State of Assam-Election petition filed by 1st respondent questioning election of appellant-Appellant was said to have been appointed as an Assistant Teacher in a school-He was working therein without remuneration-State enacted 1974 Act to provide for provincialisation of elementary education in State of Assam-Regularization of services of teachers-Name of appellant also included-However, appellant stopped attending the school-Show cause notice for his absence-Appellant neither joined the school nor replied to said notices-Managing Committee of the School adopted a resolution to release appellant from the post-Appellant despite receipt of that order did not question its validity-Notification for holding election issued on 16.4.2001-Appellant and first respondent filed their nomination papers-Objection filed by 1st respondent that appellant being a Government employee was ineligible for contesting election-Election petition allowed by High Court-Appeal-Whether any relationship of employer and employee between State of Assam and appellant came into being-(No)-High Court committed a manifest error in holding that appellant being holder of office disentitled himself from contesting election.
       Held : The appellant herein had accepted the order of termination. In that view of the matter, the High Court could not have proceeded on the basis that the order of termination was illegal. So long as the order of provincialisation was not issued, as noticed hereinbefore, there was no relationship of employer and employee between the appellant and the State of Assam. The appellant had been working subject to the discretion of the Managing Committee. His voluntary services could be refused to be taken by the Managing Committee of the School. The question would have been otherwise, had the purported service conditions of the appellant been governed by a statute or statutory rules, regularization of a teacher would be permissible in law, if he remains a teacher on the day on which such an order is passed. Had he been in service on 30.10.2000, the same could have been regularized with retrospective effect but he was not in service of the School and on that date the question of his regularization would not arise. It is only in that context the High Court was required to consider as to whether the validity or otherwise of the order of termination passed by the Managing Committee could have been the subject matter of a decision by an Election Tribunal. (Para 40)
       For the reasons aforementioned, we are of the opinion that the High Court has committed a manifest error in holding that the appellant being a holder of an office of profit disentitled himself from contesting the election in terms of Article 191 of the Constitution of India. (Para 42)

JUDGMENT

S.B. Sinha, J.-The appellant herein was elected from 110 Naoboicha Legislative Assembly Constituency in the State of Assam. An election petition was filed by the first respondent herein questioning the election of the appellant in terms of Sections 100(1) of the Representation of the People Act, 1951 (hereinafter referred to and called as the said Act , for the sake of brevity), on the ground that he stood disqualified being the holder of a post of profit under the State of Assam.

Background Facts :

2. The appellant was said to have been appointed as an Assistant Teacher in Pabha Chariali M.E. Madarassa School (hereinafter referred to as the said School ). He was working therein as an Assistant Teacher without any remuneration. Primary education is imparted in the said School. It appears that the primary education in the State of Assam used to be governed by three Acts, known as Assam Basic Education Act, 1954 , Assam, Elementary Education Act, 1962 and Assam Elementary Education Act, 1968 .

3. In terms of the 1968 Act, the Regional Boards of Elementary Education were constituted which took over the management of elementary schools and pre-primary schools. There also existed a State Board of Elementary Education constituted under Section 4 of Assam Elementary Education Act, 1968.

4. The State thereafter enacted the Assam Elementary Education (Provincialisation) Act, 1974 (Assam Act No. VI of 1975) to provide for provincialisation of the elementary education in the State of Assam, in terms whereof the services of employees of the different categories of the State Board and Regional Boards for Elementary Education were to be provincialised for the purpose of bringing them under the direct management and control of the State Government. Pursuant to or in furtherance of the said Act, all assets and liabilities of the State Board and all Regional Boards vested in the State Government. In terms of Section 3 of the 1974 Act, the services of all teachers of elementary schools and pre-primary schools maintained by the Regional Boards of Elementary Education, all employees of the State Board of Elementary Education, all teachers appointed by the Regional Boards of Elementary Education and all ministerial staff appointed by the State Board of Elementary Education were provincialised under the said Act. The consequence of vesting of the institutions maintained by the authorities under the aforementioned three Acts is provided in Section 4A thereof which reads thus :

"Services of all teachers and employees who rendered services under the following repealed Acts and whose services are taken over by the Government on provincialisation on 5th September, 1975 under the principal Act shall be deemed to be services under the Government and shall qualify and count for pension and other retirement benefits."

5. Section 27(1) of the 1974 Act provides for rule making power. Pursuant to or in furtherance thereof, the State of Assam made rules for regulating the terms and conditions of services of teachers of elementary schools and employees employed therein known as the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 (hereinafter referred to as the 1981 Rules ).

6. "Service" has been defined in Rule 2(xii) of the 1981 Rules to mean:

" Service means service rendered under the State Board for Elementary Education constituted under the Assam Elementary Education Act, 1968 and service rendered under the Government before or after provincialisation both in respect of teachers and other employees."

Rule 3(i) of the said Rules reads thus :

"Terms and Conditions : The services of all teachers of Elementary Education taken over by the Government on provincialisation on 5th September, 1975, as provided under Section 3 of the Assam Elementary Education (Provincialisation) Act, 1974, as amended, shall be subject to the following conditions:

(a) Services rendered during the repealed Acts :-