The office of Headmaster of an aided educational institution is not an office of profit under the State Government.

JUDGMENT :

S.C. Mohapatra, J. - Petitioner was a candidate for the election held in March, 1985, to the Orissa Legislative Assembly from Jashipur Assembly Constituency in the district of Mayurbhanj. There were seven other candidates including the respondent contesting the election. The respondent having been declared elected, the petitioner has filed this application for declaring his election void on the ground that the respondent is disqualified for being chosen as a Member of the Legislative Assembly under Article 191(1) of the Constitution having held an office of profit under the State Government as the Headmaster of an aided educational institution.

2.The case of the petitioner, in short, is that the respondent was the Headmaster of Dhatikia M. E. School which is an aided educational institution governed under the Orissa Education Act, 1969 ( hereinafter referred to as the Act ) and was thus holding an office of profit under the State Government. The case of the respondent is that on acceptance of his resignation by the Managing Committee of the School he no longer held any office and as such be was not disqualified as alleged in the election petition and the Headmaster of an aided educational institution governed under the Act is not an office of profit held under the State Government.

3. The following Issues were framed :

1) Whether on the date of election, the respondent held the office of Headmaster of Dhatikia M. E. School ?

2) Whether office of Headmaster of an Aided Educational Institution is an "Office of Profit" under the State Government of Orissa ?

3 ) Whether the respondent had resigned from that office before the date of election ?

4 ) Whether on the date of election the respondent was disqualified to be chosen to fill the seat under the Constitution ?

5) Whether the election of the respondent is to be declared as void?

Issue Nos. 1 and 3 relate to resignation of the respondent and issue Nos. 2 and 4 relate to the disqualification for holding an office of profit by the respondent. Accordingly, for convenience, issue Nos. 1 and 3 would be taken up together.

4. At the trial both parties decided not to adduce any oral evidence. Thirteen documents called for produce in the case have been marked as Exts. 1 to 13 on admission.

5. Perusal of the documents reveals that Dhatikia M. E. School is an aided educational institution. Respondent was the Headmaster of the said school. He was involved in many criminal cases and was arrested by the Police (See Ext. 10). The Director, by his order dated 30.7.1984 (Ext. 12) under Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institutions) Rules, 1974 (hereinafter called' the Conditions of Services Rules'), suspended the respondent for gross misconduct and negligence of duties pending drawal of disciplinary proceeding which was to take effect from 1. 8. 1984. The Director also initiated a proceeding u/s 11 of the Act for superseding the Managing Committee and issued notice on 2.8.1984 (Ext. 10). Five members of the Managing Committee Showed cause which were forwarded on 6. 9 1984 by the District Inspector of Schools (Ext. 6 series). While the respondent was continuing under suspension and the proceeding for super session of the Managing Committee was pending, on 4.2.1985 at about 2 p. m. the Managing Committee passed a resolution (Ext. 2) authorising the Secretary to move the authorities either to reinstate the respondent or to temporarily appoint some one else in his place since importing instructions to the students of the school was seriously impaired. Or: that day the respondent submitted his resignation (Ext. 4) with request for its early acceptance. The Secretary issued notice (Ext. 1) on the very day convening a meeting of the Managing Committee to be held on 5.2.1985, for discussing about the resignation of the respondent (Ext 4). On 5.2.1985, in the meeting of. the Managing Committee a resolution (Ext. 3