ORDER

Om Prakash, J. - The petitioner who unsuccessfully contested the election from 309 Umarda Assembly Constituency (District Farrukhabad) to the Legislative Assembly, held in March, 1985 as a Congress(I) candidate, has filed this petition under S. 81 of the Representation of People Act, 1951 (for short, the Act, 1951) challenging the election of the respondent to the aforesaid constituency on the grounds :

(a) that the nomination paper of Sri Ram Bux Verma was improperly rejected;

(b) that the result of the election, in so far as it concerns the respondent, has been materially affected (i) by improper acceptance of nomination papers of Sri Kishan Yadav and Sri Tej Singh Kanaujia; and (ii) due to non-compliance with the provisions of S. 41 of the Act, 1951.

The petitioner prays that the election of the respondent to the aforesaid constituency be declared void and the same be set aside.

2. At the election held for 309 Umarda Assembly Constituency (District Farrukhabad) to the U.P. Legislative Assembly, besides the petitioner, Sri Ram Bux Verma, husband of the respondent as Lok Dal candidate and Sri Kishan Yadav and Sri Tej Kanaujia contested the election as independent and Bhartiya Janta Party candidate respectively. Sri Ram Bux Verma was on the date of filing the nomination paper and is a lecturer in Nehru Degree College, Chhibramau, District Farrukhabad, affiliated with Kanpur University and the remaining two candidates were employed as teachers in Sardar Patel Inter College, Kachatipur, District Farrukhabad and in Swami Shiva Nand Higher Secondary School, Thathia, District Farrukhabad respectively. Whereas, the nomination paper of Sri Ram Bux Verma was rejected, nomination papers of Sri Kishan Yadav and Sri Tej Singh Kanaujia were accepted by the Returning Officer.

3. The contention of the petitioner is that the nomination paper of Sri Ram Bux Verma was improperly rejected by the Returning Officer applying Article 191(l)(a) of the Constitution inasmuch as a lecturer of an affiliated college does not hold an office of profit under the State Government and that the result of the election, insofar as it concerns the respondent, has been materially affected by the improper acceptance of the nomination papers of Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia who being teachers in recognised Government aided institutions held an office of profit within the meaning of Article 191(l)(a) of the Constitution. Also it is contended that the result of the election of the respondent has been materially affected due to non-compliance with S. 41 of the Act, 1951, inasmuch as, Sri Ram Bux Verma who was held to be disqualified by the Returning Officer from contesting the election, was appointed by the respondent as her election agent.

4. The respondent filed written statement pleading that the college, in which Sri Ram Bax Varma is employed as lecturer is "completely owned and run by the Government and the entire management and control also lies with the State Government and as such the nomination paper was rightly rejected." The respondent has not admitted the averments, made by the petitioner in para 8(a) and (b) of the petition. In these paragraphs, the petitioner contended that the two candidates, namely, Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia being teachers in the recognised Government aided institutions, held post of profit within the meaning of Article 191(l)(a) of the Constitution. In regard to the averments made in para 8(a) and (b) in the election petition, the respondent simply pleaded that these averments do not disclose the material facts as to how the election of the respondent was materially affected by improper acceptance of the nomination papers of Sri Sri Kishan Yadav and Sri Tej Singh Kanaujia The application of S. 41 of the Act, 1951 has been denied by the respondent.

5. On these pleadings, the following issues were struck out:

1. Whether Sri Ram Bux Verma who was and is a lecturer in the Nehru Degree College, Chh