ORDER

B.D. Agarwal, J. - This is an election petition under Section 81(1) of the Representation of the People Act. 1951.

2. Election to the State Legislative Assembly Constituency No. 41 Gunnaur village Mirzapur district Baduan took place in early March, 1985. Last date for filing nominations was notified as February 6, 1985. February 7, 1985 was the date for scrutiny of the nomination papers. The candidature could he withdrawn up to February 9, 1985. The poll took place on March 2, 1985. This was followed by counting on 6th March, 1985. The respondent No. I was declared elected having secured 23006 votes the next highest number of votes was obtained by the respondent No. 2 being 20735. The margin thus was of 2271 votes. The respondent No. 8 who was also a candidate in the election got 2606 votes. The petitioner who is an elector in this constituency has filed this election petition on the ground that the result of the election, in so far as it concerns the returned candidate has been materially affected by the improper acceptance of the nomination of respondent No. 8. The respondent No. 8 was on the relevant date of nomination and continues to be a teacher in the L.T. Grade in the Babu Ram Singh Intermediate College, Baburala, Badaun, which according to the petitioner constitutes an office of profit held under the State Government, as such he was disqualified from seeking election of the State Legislative Assembly in view of Article 191 (1)(a) of the Constitution. The relief claimed in the petition is declaration that the election of the respondent No. 1 is void and also that the respondent No. 2 is the person duly elected.

3. The respondent No. 1 has put in contest to the petition. She refutes that the respondent No. 8 held an office of profit under the State Government or was on that account disqualified from seeking election or that the result relating to her has been materially affected due to nomination of the respondent No. 8 being accepted.

4. Upon pleadings the following issues were framed for decision :-

1. Whether Sri Mahavir Singh (respondent No. 8) a teacher in the Babu Ram Singh Intermediate College, Bahurala, Badaun held office of profit under the State Government on the date of his nomination for election to the Legislative Assembly in U.P.?

2. Whether the result of the election in so far as it concerns the respondent No. 1 the returned candidate is materially affected on account of the nomination of the respondent No. 8 having been accepted?

3. Whether in the event of nomination of the respondent No. 8 not being accepted the respondent No. 2 would have been declared elected?

4. To what relief, if any, is the petitioner entitled.

5. Parties have not sought to adduce evidence oral or documentary in this case, except that the petitioner has filed copies of certain Government Orders issued from time to time relating to the conditions of service of teachers.

6. I have heard learned counsel for the parties.

Findings

Issue No. 1

7. Section 100(1)(d)(i) of the Representation of the People Act, 1951 relied upon for the petitioner enacts as one of grounds to set aside the election that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. Article 191 (1) of the Constitution laid down in so far as material that a person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly of a State.

"(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the legislature of the State by law not to disqualify its holder."

8. For a member of either House of Parliament there is similar provision contained in Article 102(1)(a) except that the reference therein is to declaration by law of Parliament. Article 58 specifies qualifications for election as President. Clause (2) thereof which is relevant in the