Judgment

ALAGIRISWAMI, J.:- In the election to the Maharashtra State Legislative Assembly held on March 7, 1972 the 1st respondent was declared elected from Shirdi Constituency The appellant, a voter from that constituency filed an election petition questioning election of the 1st respondent on two grounds: one was that the successful candidate had committed several corrupt practices, the other that the election was liable to be set aside because he was disqualified for election as he was holding an office of profit under the State Government as a member of the Wage Board for the Sugar Industry constituted by the Government of Maharashtra under Section 86-B of the Bombay Industrial Relations Act, l946. The only question argued before this Court was the 2nd one.

2. February 8, 1972 was the last date for filing nominations and February 11, 1972 the last date for withdrawal of candidature. The 1st respondent resigned as a member of the Wage Board on February 20, 1972 and-the letter of resignation was received by the concerned authorities on February 22, 1972.

3. The Wage Board to which the 1st respondent was nominated as a member on 13-4-1971 was constituted under the provisions of Chapter 12-A of that Act introduced by the Amending Act No. 43 of 1948. Under Section 86-C the State Government may make reference to the Wage Boards for decision of any industrial matter or industrial dispute. Under Section 86-G the order or decision of the Wage Board is made appealable to the Industrial Court. The parties on whom the order or decision of the Wage Board is binding are enumerated in Section 86-H Section 86-1 provides for review of the order or decision, by the Wage Board. Section 86-J confers certain powers of superintendence on the Industrial Court over all Wage Boards.

4. The first question to be decided is whether the membership of the Wage Board is an office under the State Government. In Abdul Shakur v. Rikhabchand, (1958 SCR 387 at p. 394) this Court held:

"The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government."

Leaving aside for the present the question of payment, as the 1st respondent was appointed by the Government the Government could either continue him in that office or revoke his appointment at their discretion. In Ramappa v. Sangappa, 1959 SCR 1167 this Court pointed out that:

"An office has to be held under someone for it is impossible to conceive of an office held under no one. The appointment being by the Government, the office to which it is made must be held under it, for there is no one else under whom it can be held."

There is no doubt that in this case the office of the membership of the Wage Board should be deemed to have been held by the 1st respondent under the Government of Maharashtra. In Gurgobinda Basu v. Sankari Prasad Ghosal, (1964 (4) SCR 311) it was held that:

"For holding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them."

In that view even the Comptroller and Auditor General, being appointed by the President and his administrative powers being such as may be prescribed by rules made by the President subject to the provisions of the Constitution and of any law made by Parliament, was held to be a holder of an office of profit under the Government of India. In Shivamurthy Swami v; Sanganna Andanappa (1971) (a) SCC 870) the indicia of an office held under the Government were put thus:

".......... the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance s attached. This Court in several decisions had laid down the tests for finding out whether an office in question is an office under a Gove