( 1 ) THIS is an appeal by Joti Prasad Upadyaya under Section 116-A of the Representation of the people Act against the order of the Tribunal dismissing the election petition moved by him under section 81 of the Act calling in question the election of Kalka Prasad Bhatnagar, respondent No. 1, as member of the U. P. Legislative Council from the U. P. (West) Graduates Constituency. The election was held in the year 1960 to fill in two vacancies, The appellant and respondent No. 1 along with three others were candidates for election to the vacancies; and Kalka Prasad bhatnagar, respondent No. 1, and Shyamanarayana, respondent No. 2, were duly elected having secured the maximum number of votes.

( 2 ) THE election of Kalka Prasad Bhatnagar alone is challenged on the ground that he was holding an office of profit under the Government of the State of Uttar Pradesh (to he referred hereinafter as the State Government), and under Article 191 of the Constitution of India was disqualified to be chosen to fill in the seat.

( 3 ) THE facts of the case are not in dispute, and the only controversy that exists is whether respondent No. 1 suffered from the disqualification and could not b