ivil Appeal Nos
8623 24 of 1983
From the Judgment and order dated 361983 of the High Court of Pun jab and Haryana in Writ Petition No 1794 of 1980
PP Rao and PD Sharma for the Appellant
SK Bagga CM Nayar Mrs Manik Karanjawala R Karanjawala and Mrs Meenakshi Arora for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
These appeals are by special leave and are directed against two separate judgments of the Punjab and Haryana High Court
The first one is against the decision of the High Court in a writ application for quo warranto filed by respondents 2 to 4 while the second one is against the dismissal of a writ petition filed by the appellant before the High Court challenging his reversion
The short facts are that the appellant was appointed as a Professor of Ayurvedic Medicines under the Punjab Government
Later he was appointed as Deputy Director from which post he was further 366 promoted as Director
By order dated 2111981 he was reverted to the post of Deputy Director
On 3 1st October 1987 the appellant has superannuated
The respondent Nos 2 3 and 4 once upon a time students of the appellant came before the High Court asking for a writ of quo warranto challenging the appellant s appointment as Director on promotion on the plea that he did not possess the qualification prescribed by the Punjab Ayurvedic Department Class I and Class Il Rules 1963
Rule 6 of these Rules prescribes No person shall be appointed to the service unless he possesses such qualifications if any as are shown in col umn 4 of Appendix A 
 In Appendix A  there is only one post under Class I that being the post of Director of Ayurved
The requisite qualifications for that post as provided in Appendix A  are the following 1 A degree 5 years or more of regular course in Ayurvedic system of medicine of a Medical Board or Faculty of Indian Medicine recognised by the Government
2 Doctor of Science in Ayurvedic Medicine Post Graduate of any recognised University
3 Must have worked as an organisor in some Ayurvedic Institution of repute such as Government Ayurvedic Department in any State for a period of at least ten years
4 Has conducted original research in Ayurvedic Therapy
5 Must be an Ayurvedic Physician of at least 15 years standing
 Challenge in the High Court was on the ground that the appellant did not possess the prescribed qualifications under Items l and 2
The writ petition was filed soon after the appellant was promoted to the post of Director and during the pendency of the writ petition the order of reversion as referred to above had been passed
The appellant opposed the writ application by contending that he 367 possesses the requisite qualifications and inter alia averred in the return made to rule that the petitioners before the High Court were his students and on account of ill motive they had filed the application challenging the appointment of the appellant as Director
The State Government initially supported the appellant but later took a different stand
The High Court has found that the appellant possessed the second qualification namely that he had obtained the Doctor of Science Degree in Ayurvedic as prescribed
In regard to the first qualification the High Court found that the appellant had a Degree in Ayurvedic system of Medicine from a recognised Institution and the degree that the appellant possesses has been duly recognised by the Government of Punjab hut it found that the appellant had not studied in regular course for five years to obtain the degree and therefore came to the conclusion that the requisite qualification was not possessed by the appellant
Accordingly it allowed the writ petition and came to hold that the appellant was not qualified to hold the post of Director
When the question of challenge to the reversion came for consideration in the connected writ petition the High Court took the view that since the appellant did not possess the first qualification he was not entitled to the post of Director and was not entitled to challenge the reversion to the post of Deputy Director
We shall first deal with the appeal arising out of the quo warranto proceedings
The first qualification which we have referred to above appears to be a common qualification for almost all the ranks covered by Appendix A  namely that a degree should have been obtained after five or more years of regular course having been gone through
No dispute has been raised to the appellant s appointment as Deputy Director
Learned counsel appearing for the respondents who had petitioned the High Court pointed out with reference to the correspondence with the State Public Service Commission that in regard to the qualification for the post of Deputy Director a degree or diploma was considered sufficient
The State Public Service Commission had raised objection to the Government s proposal of fixing the degree qualification by pointing out that since a degree after studying for five or more years of regular course was the requirement for the higher post of Director a lesser qualification should be prescribed for the post of Deputy Director and accordingly the alternates had been adopted
When we pointed out to her that for the post of Assistant Director it cannot be disputed that Deputy Director s is a superior post the requirement was five years or more of regular course in Ayurvedic with a diploma there was really no answer
We would accordingly hold that the High Court should have looked into this 368 aspect to find out what exactly was the requirement
In view of the fact that there was no challenge to the appointment of the appellant to the post of Deputy Director and the first item of the qualification is the same for the Director as also the Assistant Director and as Deputy Director the appellant held a post between the two we are not impressed by the stand of the respondents that the appellant was not possessed of the requisite qualification
There is no dispute that the appellanthad been serving as Professor for several years
The requisite qualification for that post as per Appendix A  as far as relevant is A Degree five years regular course in Ayurvedic system of Medicine of a recognised university or of a board of Indian System of Medicine established by law or from any Ayurvedic College recognised by Government As far as this qualification goes there is indeed no difference in the case of a Professor and that of Director
In giving appointment to the appellant as Professor it must follow that Government were satisfied that appellant had the requisite qualification
There is material on record to show that in regard to the degree obtainable on completion of the five year course the appellant had read as a regular student for three years in the first instance and for the remaining two years he was directly under a qualified Professor though it was not study in a regular institution
After reading for five years he has obtained the degree which has been from a recognised University
In the circumstances it has become difficult to agree with the reasons given by the High Court for its conclusion that the appellant was not having the requisite qualification prescribed under the Rules
Mr Rao counsel for the appellant relied upon a decision of this Court in Satesman Private Ltd vs HR Deb  Ors  at page 621 of the Reports Hidaytullah CJ
speaking for the Constitution Bench indicated The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law It the circumstances which we have narrated it is indeed difficult to hold that the appellant did not have the requisite qualification
Ayurveda is the traditional method of medical attention preva 369 lent in this country
Modern science and people associated with the medical faculties of the modern age have gradually accepted the position that Ayurveda provided a fully developed medical process
In the post medieval India the system had suffered a set back but in recent years the Ayurved system has been revived
In the post independence period the system has been accepted as a regular course of study and recognised as a system of therapy
The High Court should have given due consideration to the background and the history of the matter
There is clear material that the petitioners before the High Court were the once upon a time students of the appellant
Ordinarily one would expect obligations piety and reverence in the conduct of the writ petitioners towards the appellant
This expectation would be more justified in the traditional system of Ayurved culture
Surprisingly that seems to have been totally wanting
The appellant has on the other hand alleged that the writ petition was the outcome of malice and ill will
The High Court did not appropriately advert to this aspect
We are of the view that in the facts of this case the reasonable conclusion to reach should have been that the writ petitioners had failed to establish that the appellant did not possess the requisite qualification
The appeal has therefore to be a11owed the judgment of the High Court has to be set aside and the writ petition has to be dismissed with costs
Now we come to the appeal challenging the reversion
The writ petition has been dismissed on the sole ground that the appellant was not possessed of the requisite qualification and therefore was not entitled to continue as Director
Now that we have reversed the finding of the High Court on that score the judgment of the High Court cannot be sustained
Reversion as admitted by the State Government in its counter in the High Court was grounded upon non possession of the requisite qualification With our finding in the connected appeal
the order of the High Court cannot be sustained
Nor can the order of reversion be
The other appeal too is allowed with costs
The appellant shall be treated to have been regularly appointed as Director and shall be treated to have retired in the post of Director the order of reversion notwithstanding
He shall be entitled to all the benefits prescribed for the post of Director from the date he came to the post till he retired
All his dues shall be paid to him within three months from today
Consolidated hearing fee of Rs5000 is allowed to the appellant and this shall be paid by the respondent State alone
PSS Appeals allowed


Summary:
 The first respondent filed an election petition before the High Court for setting aside the election of the appellant to the State Legislative Assembly under section 1001c of the Representation of the People Act 1951 contending that the rejection of his nomination papers by the Returning officer was erroneous as he had in fact completed 25 years of age on the date of his nomination
The petition was opposed by the appellant contending that as the first respondent had not completed 25 years of age on the date of scrutiny of nominations the nomination papers had been rightly rejected that as the first respondent had not subscribed the oath as required by article 173a of the Constitution he was not qualified to contest the election and that the first respondent was also disqualified to be chosen to fill a seat in the Legislature of the State as on the date of scrutiny of the nominations he had a subsisting contract entered into by him with the Government under which he had been treated as a lessee of the Ferry for the period between 1485 to 31386
The High Court framed issues on the basis of pleas raised by parties and after recording their evidence held that the first respondent had completed the age of 25 years on the date of scrutiny and therefore had necessary qualification for being a member of the Legislative 371 Assembly that the appellant had not proved that the first respondent had not subscribed the oath as required by law and that as the first respondent had been relieved from the charge of the Government ferry with effect from 211185 there was no subsisting contract between the first respondent and the Government on the date of scrutiny of nominations and therefore he was not disqualified under section 9 A of the Act
It accordingly came to the conclusion that the rejection of the nomination papers filed on behalf of the first respondent was improper and set aside the election of the appellant
In the appeal before this Court a further plea was raised on behalf of the appellant that the first respondent was also disqualified from contesting the elections as he held an office of profit under the State Government by virtue of the contract entered into by him with the State Government even though the contract in question may not be one of those contracts specified in section 9 A of the Act
Dismissing the appeal  HELD 1
The first respondent was not disqualified for being chosen as a member of the State Legislature
The rejection of his nomination papers was improper
The election of the appellant was therefore rightly set aside by the High Court on the ground mentioned in Section 1001c of the Representation of the People Act 1951
387G H 21 An analysis of section 9 A of the Representation of the People Act 1951 shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate Government in the course of his trade or business which is subsisting on the date of scrutiny of nomination
They are 1 when the contract is one for supply of goods to the appropriate Government and 2 where the contract is for execution of any works undertaken by that Government
Unless the contract in question is one which clearly falls under section 9 A of the Act it cannot be held that the person who is a party to the contract is disqualified for being chosen as a member of the State Legislature382F G In the instant case the contract is not one for supply of goods to Government
The first respondent had acquired in the public auction the right to collect the toll by paying the amount offered by him under the contract and had not undertaken any contract for execution of any works undertaken by the Government
When a person acquires a right to collect toll at a public ferry under section 8 of the Ferries Act
it cannot be 372 held that he is performing a contract for execution of works undertaken by the Government
385D G H Merely because under one of the conditions of the Form of lease prescribed under the Ferries Act the lessee is under an obligation during the period of lease to mark buoys or in any other suitable manner all submerged obstructions or dangerous rocks in the rivers within half a mile of the landing ghats and shall be held responsible for any loss or damage caused to the marboats striking against such submerged obstructions or dangerous rocks it cannot be held that the first respondent had undertaken to execute works undertaken by the Government
386B C Having regard to the conditions in the lease and the provisions of the Ferries Act and the rules made thereunder the activity undertaken by the lessee under the agreement cannot be considered as an agreement for execution of works undertaken by the State Government and therefore the contract which the first respondent had entered into with the State Government even though it was subsisting on the date of the scrutiny of nominations would not have the effect of disqualifying him for being chosen as a member of the State Legislative Assembly since section 9 A of the Representation of the People Act 1951 is not at all attracted to such a case
386D E B Lakshmikantha Rao vs D Chinna Mallaiah and others approved
N Satyanathan vs K Subramanyan and others  explained
Ram Padarath Mahto vs Mishri Singh  Anr  referred to
22 A lessee of tolls under the Ferries Act is only a contractor who under the lease acquires the right to collect whatever toll is paid by persons who use the ferry against payment to Government in advance whatever amount he has agreed to pay at the time of auction
Whether he makes any profit in that business or not depends ultimately on the amount of toll he is able to realise during the whole period of lease
Such a contract is essentially in the nature of a business
It cannot be termed as an office in any sense
A transaction of lease under the Ferries Act is not a lease of an office
The first respondent was therefore not holding an office of profit when he was a lessee under the Ferries Act just like an 373 Excise Contractor or a fair price shop dealer who sells grains supplied by Government is not such a holder of office of profit386H 387A B F State of Uttar Pradesh vs Satya Narain Prasad   referred to
23 The High Court was right in upholding on the basis of the evidence of the three witnesses examined by the first respondent and the electoral roll and the High School Leaving Certificate that the first respondent was more than 25 years of age on the date of scrutiny and was thus eligible to be a member of a Legislative Assembly
377D