Judgment

SABYASACHI MUKHARJI, J. :- This appeal arises out of the judgment and an order of the Gauhati High Court in an election petition. The petitioner-appellant was a voter in the West Tripura Parliamentary Constituency from No. 7 Ramnagar Assembly Segment. He contested the mid-term Lok Sabha election held in 1980 from the West Tripura Parliamentary Constitutency as a nominee of Congress (I). There were six candidates including the petitioner contesting the said election. The respondent No. 1 was a C.P.I. (M) candidate. 8th December, 1979 was the date of filing of the nominations. Nominations were scrutinised on 11th December, 1979 and the withdrawal date was 13th December, 1979. On 6th January, 1980 the polling was held and the result of the election was declared on 8th January, 1980. The main contest was between the petitioner / appellant and the respondent No. 1, Ajoy Biswas. The respondent No. 1 had secured 1,98,335 votes as against the appellant who had secured 1,42,990 votes. The respondent No. 1 was declared elected.

2. The only point on which the election petition by the appellant / petitioner was pressed before the. High Court and the only point urged before us in this appeal, is whether the respondent No. 1 was disqualified for being elected as a member of the House of People as he held an office of profit under the Government of Tripura within the meaning of Article 102(1)(a) of the Constitution. On the relevant date, respondent No. 1 was the Accountant-in-charge of the Agartala Municipality. Therefore, the question involved in this appeal, is, "ether an Accountant-in-charge of the Agartala Municipality holds an office of profit within the meaning of Article 102(1)(a) of the Constitution. In order to determine this question, it will be necessary to refer to certain facts.

3. Respondent No. 1 was employed in Agartala Municipality and held the post carrying the scale of pay of Rs. 80-180/- per month. The Commissioners of the Agartala Municipality were superseded by an order of the State Government under Section 553 of the Bengal Municipal Act. 1932 as extended to the State of Tripura in 1975. The effect of Section 554 of the said Act is that during the period of supersession the powers and duties of the Commissioners and Chairman shall be exercised and performed by the Administrator appointed by the State Government under that section. The respondent No. 1 who was under suspension at the time of supersession was dismissed from service in the disciplinary proceedings against him by the Administrator of the Agartala Municipality on 20th December, 1975. The State Government thereafter had confirmed the order of dismissal. When the Left Front Government came in power in the State of Tripura, the respondent No. 1 was reinstated to the post of Accountant-in-charge of Agartala Municipality on 6th May, 1978 with immediate effect by the Administrator. So at the relevant time he was an Assistant Accountant and was Accountant-in-charge under, the Agartala Municipality drawing a monthly salary of Rs. 200/-.

4. It is necessary to briefly note some of the relevant provisions of the said Act in view of the contentions urged in this appeal. Proviso (ii) to Section 66(2) of the said Municipal Act provides that no appointment carrying a monthly salary of more than two hundred rupees or a salary rising by periodical increments to more than two hundred rupees shall be created without the sanction of the State Government, and every nomination to, and dismissal from, any such nomination shall be subject to confirmation by the State Government. It appears that the Deputy Secretary to the Government of Tripura by his letter dated 6th May, 1978 had conveyed to the Administrator, Agartala Municipality, decision of the Government for cancellation of the order of confirmation of the dismissal communicated to him on 19th December, 1975. As a result, the cancellation order ceased to be effective and respondent No. 1 was reinstated and it was furthe