Judgment

ALAGIRISWAMI, J.: - Elections were held in March, 1972 to the Himachal Pradesh State Legislative Assembly. The 1st respondent was elected to that Assembly from the Shahpur Constituency in Kangra District. An election petition was filed by the appellant, a voter in that constituency, on the ground among others, that at the time of filing of nominations the 1st respondent was holding an office of profit under the Government of Himachal Pradesh and as such was disqualified for election under Article 191 (1) (a) of the Constitution. The petition having been dismissed by the High Court of Himachal Pradesh this appeal has been filed against the order of dismissal.

2. The only ground which is relevant for the purpose of decision of this appeal and which was urged before this Court, was that as the 1st respondent was holding an Office of profit under the State Government he was disqualified under Article 191 (1) (a) of the Constitution to be elected as a member of the State Legislative Assembly. The 1st 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, 1969. At all relevant tunes he was holding that post. Under Section 18 of the Act the Chairman is nominated by the Government. The Board is constituted by the Government under Section 3 of the Act. Though there is nothing said in the Act about the authority competent to remove the Chairman from his office it may be assumed for the purposes of this cave that the Government was competent to do so. There can be very little dispute and indeed it is not disputed that the office of the Chairman of the Board is an office under the State Government. The only question is whether it is an office of profit. Admittedly, the 1st respondent was not in receipt of a salary. The order appointing him to the post of Chairman makes it clear that he was appointed only in an honorary capacity. The fact that he was entitled to receive travelling and daily allowance in the course of the discharge of his duties as Chairman would not be a disqualification because of the provisions of Section 3 (m) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, and this is not disputed. What is, however, contended on behalf of the appellant is that though the 1st respondent might not have been in receipt of a salary, the post itself carried a scale of pay and therefore it is an office of profit which the 1st respondent was holding. We are unable to agree. The question is whether the holding of the office has resulted in any profit to the holder of that office, how, ever small that profit may be. We have discussed this question at great length in the judgment delivered by us today in C. A. No. 2365 of 1972. In the absence of any profit accruing to the 1st respondent as a result of the holding of the office of Chairman it cannot be said that he was holding an office of profit. This is not even a case where the Chairman was appointed to an office and a salary wag provided for him by the order of appointment or he was entitled to a salary as a result of the appointment and he gave up his right to the salary. The order of appointment itself was one made in an honorary capacity.

3. There is a further fact which shows that the contention of the appellant that the post carried a scale of pay is not correct. This contention that the post carried a scale of pay is based on Resolution No. 12 passed by the Board on January 17, 1970 fixing a salary of Rs. 1600-1800 per month for the Chairman. We are satisfied that the Board was not competent to fix a scale of pay for the Chairman by a resolution. We are unable to accept the contention on behalf of the appellant that Section 10, Clause (18) of the Himachal Pradesh Board of School Education Act, 1968 enables the Board to fix the scale of pay of the Chairman. The fixing of the s