Judgment

HIDAYATULLAH, C.J.I. (On behalf of himself and G. K. MITTER, J.): We regret our inability to agree that the appellant Mrs. Kanta Kathuria was not holding an office of profit under the Government of Rajasthan when she stood as a Candidate for election to the Rajasthan Legislative Assembly from the Kolayat Constituency.

2. Mrs. Kathuria is an advocate practising at Bikaner. She contested the above election held on February 18, 1967 against seven other candidates. She was declared elected on February 22, 1967. One of the defeated candidates filed the election petition, from which this appeal arises, questioning her election on several grounds. We are concerned only with one of them, namely, that on the date of her nomination and election she was disqualified to be chosen to fill the seat as she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan.

3. Article 191 of the Constitution, which is relevant in this connection, reads:

"191: Disqualifications for membership:

(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

xx xx xx xx"

Mrs. Kathuria was appointed by the Government of Rajasthan as Special Government Pleader to conduct arbitration cases between the Government and Modern Construction Company arising out of the construction of Rana Pratap Sagar Dam and Jawahar Sagar Dam. The order was passed on June 26, 1965 (Ex. 1). The order reads:

ORDER

"Sub: Construction of R. P. S. Main Dam Contract of M/s. M. C. C. (Pvt.) Ltd., Arbitration in disputes arising out of.

In pursuance of R. 8 (b) of O. XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with Cl. (7) of Section 2 of the Code, the Governor is pleased to appoint Smt. Kanta Kathuria, Advocate Bikaner as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan along with Shri Murali Manohar Vayas, Government Advocate, Jodhpur.

By order.

Sd. D. S. Acharya

25-6-65

(D. S. Acharya)

Joint Legal Remembrancer".

By subsequent orders, which we do not consider necessary to quote here, her remuneration was fixed at Rs. 150/- per day for each date of hearing, Rs. 75/- per day for days of travel and dates on which the case was adjourned, and days spent on preparation of the case. Mrs. Kathuria began appearing in the case from March 27, 1965. It is an admitted fact that she was paid for work between that date and November 28, 1966 a sum of Rs. 26,325/- and again from February 26, 1967 to March 2, 1967 a sum of Rs. 900/- and that the arbitration proceedings were continuing on the date of the filing of the election petition. Therefore for over two years she was employed as Special Government Pleader and was still employed when her election took place. It is also admitted by her that prior to this employment, she had never paid income-tax in excess of Rs. 1200/- in any year.

4. On these facts, the High Court held that Mrs. Kathuria was disqualified, Before this appeal came on for hearing before us, the Governor of Rajasthan by Ordinance 3/68 December 24, 1968) removed the disqualification retrospectively. The Ordinance was followed by Act V of 1968 (April 4, 1969). The operative portions of the Act which are the same as of the Ordinance read:

"Prevention of disqualification of membership of the State Legislative Assembly-

(1) It is hereby declared that none of the following offices, in so far as it is an office of profit under the State government, shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of the Rajasthan Legislative Assembly, namely:-

(a) the office of a Government Pleader or Special Governme