THE HON’BLE SRI JUSTICE K.C.BHANU ELECTION PETITION No. 3 OF 2009 ORDER : 1. This Election Petition, under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as ‘the R.P. Act’) is filed challenging the action of the second respondent in rejecting the nomination papers of the petitioner vide order in reference No. H4/1215/2009, dated 16.03.2009 under Article 191 of the Constitution of India, and consequently declare election of the first respondent as returned candidate for the Legislative Council of the State of Andhra Pradesh from 20-Karimnagar Local Authorities Constituency as illegal and void. 2. The brief facts that are necessary for disposal of this Election Petition may be stated as follows. The petitioner is a resident of Korutla, Karimnagar district. He is a graduate. He was appointed as a Teacher in Schools run by Zilla Parishad, Karimnagar on 23.02.1977. While he was working as School Assistant Grade-II in Zilla Parishad Secondary School (for short, ‘ZPSS’), Gatla Narasingapur, Karimnagar district, he went on leave with effect from 10.08.1990. He did not join duty thereafter due to domestic problems. Later, he submitted resignation to the said post held by him. Since then, for all purposes, he was no longer in employment of Zilla Parishad, Karimnagar as his name was removed from attendance registers, salary acquittance rolls and pay bills. Similarly, his name was not shown in the seniority list issued from time to time. However, to avoid complications, the petitioner submitted a letter dated 23.8.2003 to the District Educational Officer (for short, ‘DEO’), Karimnagar through the Head Master, ZPSS, Gatla Narsingapur to communicate orders of acceptance of resignation. Basing on the said letter, the DEO, Karimnagar sought further information from the Head Master, ZPSS, Gatla Narsingapur vide Rc. No.4255/A1/2003, dated 20.09.2003. The petitioner has been involved in politics and public service since the year 2001 when he became a member of Telangana Rashtra Samithi party (for short, ‘TRS party’). The petitioner is a registered voter in Korutla constituency, Karimnagar district. Therefore, he is entitled, as per law, to contest the elections of the Legislative Council of State of Andhra Pradesh from 20-Karimnagar Local Authorities Constituency, and submitted his nomination in proper form on 13.3.2009 for contesting the election to the said constituency on behalf of the TRS party. The President of the TRS party by notice in Form-BB addressed to the Chief Electoral Officer, Andhra Pradesh, Hyderabad and the Returning Officer, duly informed that on behalf of the TRS party, the petitioner was set up as a candidate for the 20-Karimnagar Local Authority Constituency. Whereas, the second respondent submitted his nomination form on behalf of the Indian National Congress party (hereinafter referred to as ‘the Congress party’) for the said constituency. On 14.03.2009, the first respondent submitted objections before the second respondent-Returning Officer to the nomination filed by the petitioner. The main objection of the first respondent was that the petitioner’s nomination was hit by Article 191 of the Constitution of India as he was holding an office of profit as on the date of filing of nomination papers. In support of the said objection, the first respondent submitted a letter Rc.No.1617/A1-09, dated 13.03.2009, addressed to the Chairman, Zilla Parishad, Karimnagar by the DEO, Karimnagar. On 14.03.2009, the petitioner was given a notice by the second respondent on the objections filed by the first respondent. In response thereto, the petitioner submitted his reply dated 16.03.2009 through his counsel. The counsel of the petitioner had made oral submissions before the second respondent on 16.03.2009. The petitioner was not paid any salary from that date onwards and his name was deleted from the records and he was never called upon to attend the job and he was not issued any notice by his employer either asking him to join duty or proposing to take any action. It is also stated that Teachers working in Zilla Parishad i.e. Local Authority, cannot be treated as holding office of profit under the Government of the State since Local Authority is distinct from Government of any State. The second respondent, without properly considering the scope and purport of disqualification mentioned in Article 191 of the Constitution of India, and without considering the reply given by the petitioner in proper perspective, upheld the objections of the first respondent and held that since the process of resignation was still going on and acceptance of resignation was not completed and formal orders to that effect were not yet issued, disqualification of the petitioner subsists as on the date of scrutiny and accordingly declared the nomination of the petitioner as invalid and rejected the same by the impugned order. On the same day i.e. 16.03.2009, the only other contesting candidate by name Kanakala Raja Kumar Reddy, apart from the first respondent, was made to withdraw his nomination by the first respondent. Therefore, the second respondent declared the first respondent as unanimously elected as Member of Legislative Council from 20- Karimnagar Local Authorities Constituency on 16.03.2009. It is stated that the petitioner worked as School Assistant from 23.02.1977 to 09.08.1990 and went on leave from 10.08.1990 and did not join duty thereafter and resigned later. The petitioner abandoned his service and never intended to join as he was well settled in business. Neither the DEO, Karimnagar nor the Zilla Parishad issued any notice of any kind at any time since the petitioner left his job in August, 1990 either calling upon him to join duty or proposing to take any action for his abandonment of service. Even otherwise, as per Rule 18- A of the Fundamental Rules, which came into force from 1.6.2007, a Government servant is deemed to have resigned if he is absent without authorization for a period exceeding one year. Therefore, the petitioner cannot be deemed as holding an office of profit under the Government on the date of filing his nomination papers or on the date of scrutiny. It is submitted that the scope and objective of the disqualification as stated in Article 191 of the Constitution of India is not to disqualify a person who has worked under the Government for some time. The second respondent, with an intention to favour the first respondent, has referred to a letter dated 13.3.2009 said to have been addressed by the DEO, Karimnagar to the Chairman, Zilla Parishad, Karimnagar, to show that the petitioner is working as a Government Teacher. Hence, the Election Petition. 3. The first respondent filed detailed counter affidavit stating that the Election Petition is bad in law for not complying requirements of Section 83 of the R.P. Act. It is denied that while working as School Assistant Grade-II at ZPSS, Gatla Narasingapur, Karimnagar district, the petitioner went on leave with effect from 10.08.1990 and that he could not join his duty due to domestic problems and during the course of the period he submitted his resignation to the post of School Assistant Grade-II, and that the petitioner was no longer in employment of Zilla Praja Parishad, Karimnagar and that his name was removed from attendance registers, salary acquittance rolls and pay bills. It is stated that upon hearing both the parties, the second respondent rejected nomination of petitioner holding that the petitioner was holding an office of profit and he was working as a Government Teacher as on the date of filing his nomination papers. The said order is correct and based upon records maintained by the DEO, Karimnagar. The second respondent, after conducting proper enquiry on the objections raised by the first respondent and reply affidavit filed by the petitioner, passed the said order. In the Election Petition, the petitioner has not raised any grievance with regard to the statement made by the DEO on 16.03.2009 to the effect that the petitioner is a Government Teacher and he is directly under the control of the Government. It is further stated that proviso to Rule 18 of the Fundamental Rules has not been invoked by the Government and that under Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996, acceptance of resignation by the appointing authority and relieving him from the duties are required. Therefore, the petitioner is still on the rolls of the Government and as such he is holding office of profit as on the date of filing of the nomination papers. It is denied that on 16.03.2009, the only other contesting candidate, apart from the petitioner, by name Kanakala Raja Kumar Reddy was made to withdraw his nomination by the first respondent. It is denied that the petitioner went on leave from 10.8.1990 and he resigned his post, and the same is put to strict proof by the petitioner. The petitioner has not produced any documentary evidence at any point of time that he resigned from service and the same has been accepted by the competent authorities and he has been relieved by the Government. The petitioner has not stated as to when he submitted his resignation and to whom. Even if it is a fact that the petitioner resigned from the service, there is no finality to the resignation, and as such, as on the date of filing of the nomination papers, the petitioner was holding an office of profit. It is denied that the respondents have colluded with the common object to reject the nomination of the petitioner so as to declare the first respondent as unanimously elected from the constituency. It is stated that the petitioner is working as School Assistant Grade-II in ZPSS, Gatla Narsingapur, Karimnagar district, which is under the direct control and supervision of the DEO, Karimnagar, and that, it is the Government which has to give the funds to run such institutions and meet all the requirements of the said institutions. Thus, for all practical purposes, Zilla Parisha Schools are the schools of State and as such the post of the petitioner is a Government post and he is legally holding the same even as on today in view of non- finalisation of his alleged resignation. The Government of Andhra Pradesh issued orders framing adhoc rules, which came into effect from 23.01.2009, under which Andhra Pradesh School Educational Subordinate Service consists of posts of Teachers working in Zilla Praja Parishad and Mandal Praja Parishad Schools in Andhra Pradesh. This respondent denied and disputed about the resignation letter that is alleged to have been given by the petitioner to competent authorities thereby withdrawing from the service. Nowhere it is stated that the petitioner has been relieved from service of the Government and accepting his resignation in the proceedings of the DEO, Karimnagar. The petitioner is guilty of suppression of facts and documents. There is no illegality in passing the rejection order dated 16.3.2009 by the second respondent, and hence, it is prayed to dismiss the Election Petition. 4. On the basis of the above pleadings, the following issues have been framed by this court. 1) Whether the petitioner is a Government Employee as on the date of filing of the nomination ? 2) Whether the petitioner who voluntarily left the service as School Assistant on 10.08.1990 can still continue to be an employee and holds any office of profit under the State Government ? 3) Whether rejecting the nomination of the petitioner by the second respondent on the ground that disqualification under Article 191 of the Constitution of India still subsist as on the date of scrutiny, is legal ? 4) Whether the rejection of nomination of the petitioner by the respondent No.2 is in accordance with law ? 5) Whether the petitioner is bound by A.P. State and Subordinate Service Rules, 1996 ? 6) To what relief ? 5. The main issue in this Election Petition is to examine the correctness and propriety of the order of the second respondent dated 16.03.2009, by which nomination filed by the petitioner was rejected. 6. During trial, P.W.1 is examined and Exs,.P1 to P9 are marked, on behalf of the petitioner, and R.W.1 is examined and no documents are marked, on behalf of the first respondent. 7. The learned senior counsel Sri K.Ramakrishna Reddy appearing for the petitioner contended that, since the petitioner is working in Zilla Parishad, which is a local authority, it is not a disqualification under Article 191 (1) (a) of the Constitution of India; that a distinction has been drawn between holding of office of profit under the Central Government or the State Government and holding of office of profit under the local or other authority, in Articles 191 (1) (a), 52 and 66 (4) of the Constitution of India. He further contended that a person holding office of profit under the Central Government or a State Government alone is disqualified for being elected to the State Legislature. He further contended that Municipality or Zilla Parishad comes within the meaning of ‘Local Body’ and the persons holding an office of profit in Municipalities or Zilla Parishads would not suffer from any disqualification in view of the language employed in Article 191 (1) (a) of the Constitution of India. He further contended that the petitioner has already submitted resignation to his post in the year 1990 and in view of Rule 18A of the Fundamental Rules, it can be said to be a deemed acceptance and he was not drawing any salary from the Government and his name is not maintained in attendance registers, salary acquittance rolls and pay bills, seniority list, etc. He further contended that Zilla Parishad is a body corporate which is a separate and distinct entity and that holding the post under Zilla Parishad would not be recognized as Government service of the State and mere control by the Government over the Zilla Parishad is not sufficient to hold the Teachers working in Zilla Parishad as Government servants. Alternatively, it is contended that the petitioner has ceased to hold the post of Teacher in Zilla Parishad on the relevant date of filing his nomination papers by reason of his prior resignation. Hence, he prays to set aside the impugned order of the second respondent and consequently declare election of the first respondent as void and illegal. The learned senior counsel relied upon number of decisions which will be referred to at appropriate time. 8. On the other hand, Sri C.Prakash Reddy, learned senior counsel appearing for the first respondent stated that a person working under the local or any other authority, cannot suffer any disqualification, and contended that the petitioner is working in Zilla Parishad, which is directly under the control of the Government; that, the petitioner was appointed by the Government and he can be removed by the Government or by the officer appointed by the Government, and the salaries are being paid to the Teachers working in Zilla Parishad from the consolidated fund of the State; that the petitioner is holding a civil post and that the petitioner has filed no document to show that he is no longer a government servant; that acceptance of resignation and relieving from the post of School Assistant, are guided and controlled by the service rules applicable to the Teachers; that unless resignation is accepted by the Government and he is relieved from the duties, the petitioner can be deemed to have been continued in service in view of Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996; that, in respect of the post of Teacher, it is the DEO, who is the competent authority and therefore the petitioner is under direct control of the Government and hence, he was holding an office of profit under the State Government at the relevant point of time of filing his nomination, which is a disqualification, and considering these aspects, the second respondent rightly rejected the nomination of the petitioner as improper and there are no grounds to interfere with the impugned order. The learned senior counsel also relied a decision of the Apex Court, which will be referred to at appropriate time. 9. ISSUE Nos. 1 & 3 : Whether the petitioner is a Government Employee as on the date of filing of the nomination ? & Whether rejecting the nomination of the petitioner by the second respondent on the ground that disqualification under Article 191 of the Constitution of India still subsist as on the date of scrutiny, is legal ? Under Section 81 of the R.P. Act, an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than the date of election of the returned candidate. Section 100 (c) of the R.P. Act provides remedy to a person who is aggrieved by an order improperly rejecting a nomination. In the context, it appears that improper rejection must have reference to Section 36 (2) of the R.P. Act and that rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer any one of the disqualifications mentioned in Section 36(2) of the Act, would be improper within the meaning of Section 100 (c) of the R.P Act. Under Section 36(2) of the R.P. Act, the Returning Officer shall examine nomination papers and decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the grounds mentioned therein. Section 36 (2) (a) of the Act reads that on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable viz. Articles 84, 102, 173 and 191. 10. For the purpose of present Election Petition, the relevant Article is 191 of Constitution of India. Under Article 191 (1) of the Constitution of India, a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council 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. The object of proviso in Article 191 of the Constitution of India is to secure the independence of the members of the Legislature and to ensure that the legislature does not contain persons who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. As rightly contended by the learned senior counsel Sri K.Rama Krishna Reddy appearing for the petitioner, the words ‘under any local or other authority’ which occur at the end of Articles 58 (2) and 66 (4) of the Constitution of India, are absent in Articles 102 (1) (a) and 191 (1) (a). Though holding of an office of profit under an authority subject to the control of the Government, is a disqualification for the office of the President or Vice President, it is not a disqualification for membership of a Legislature. On this aspect, the learned senior counsel appearing for the petitioner relied upon a decision in Abdul Shakur v. Rikhab Chand & another[1], wherein it is held thus. (para 11) “… It is significant to note that in laying down the disqualifications of the President and the Vice President the Constitution has expressly provided the disqualifications which include not only an office of profit under the Government of India or the Government of any State but also an office of profit under any local or other authority subject to the control of any of the said Governments. This last disqualification the Constitution does not make applicable to the members of the legislatures.” That is a case where the committee of a Durgah Endowment is to be appointed by the Government of India, but it is a body corporate with perpetual succession acting within the four corners of the Act. In the factual back ground, it is held by the Supreme Court that the appellant therein was neither appointed by the Government of India nor is removed by the Government of India nor he is paid within the revenues of India. In the present case, the facts are entirely different. 11. The learned senior counsel appearing for the petitioner also relied on a decision in D.R. Gurushantappa v. Abdul Khuddus Anwar & others[2], wherein it is held thus: “..Thus, in the case of election as President or Vice-President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Governments and not directly under any of the Governments. This indicates that in the case of eligibility election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification, even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President.” The learned senior counsel also placed strong reliance on a decision in Ashok Kumar Bhattacharyya v. Ajoy Biswas & others[3], wherein it is held thus: (para 14) “In fact a person who is holding an office of profit either under the government of India or the government of the State or any other local or other authority subject to the control of the said governments is disqualified from becoming a President but if a person holds an office of profit under the government of India or the government of any State, he only is disqualified from being a Member of Parliament. A holder of the office of profit under any authority or Local Authority subject to the control of the State or central government is as such not disqualified from becoming a Member of Parliament. Keeping m view these provisions, it is necessary to consider the question whether respondent 1 was holding an office of profit under the State government.” Basing on the above decisions, the learned senior counsel appearing for the petitioner contended that disqualification attached to Article 191 of the Constitution of India applies only to the persons holding an office of profit under the State Government, but not to the persons working under the local or other authority. The learned senior counsel appearing for the first respondent has not denied or disputed about the proposition of law laid down by the Apex Court in the aforementioned decisions. But, his contention is that in the factual back ground, though the petitioner is working under a local authority, he is directly under the control of the Government since his initial appointment, disciplinary proceedings and payment of salary are directly under the control of the DEO, who is a Government Employee, and so the petitioner comes within the meaning of person holding an office of profit under the Government. 12. So, the point taken by the learned senior counsel appearing for the petitioner Sri K.Rama Krishna Reddy is that the election petitioner could not be said to be holding an office of profit under the Government and was consequently not