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Lalitha Bai Vs. Returning Officer, City Municipality Elections, Gulbarga and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 4475 of 1969
Judge
Reported inAIR1971Kant35; AIR1971Mys35
ActsMysore Municipalities Act, 1964 - Sections 16(1); Societies Registration Act
AppellantLalitha Bai
RespondentReturning Officer, City Municipality Elections, Gulbarga and ors.
Appellant AdvocateMurlidhar Rao, Adv.
Respondent AdvocateH.K. Vasudeva Reddy, Adv. for ;E.S. Venkataramiah, High Court Special Govt. Pleader and ;V.S. Kulkarni, Adv.
DispositionPetition allowed
Excerpt:
.....plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. - ' this provision implies clearly that an employee of the aided institution can stand as a candidate to the municipal council......and is also getting aid from the government. the petitioner as a teacher is not controlled by the state government.in this connection, shri murlidhar rao invites our attention to rule 36 of the grant-in-aid code for secondary schools in mysore state. rule 56 provides that 'if any employee of an added institution is elected as a member of the state legislative assembly, state legislative council, lok sabha, rajya sabha, taluka board, municipal council, or any other autonomous body, an intimation of the same shall be sent by the employee and the management to the concerned deputy director within a month of his or her election.' this provision implies clearly that an employee of the aided institution can stand as a candidate to the municipal council.further our attention is invited to a.....
Judgment:

Gopivallabha Iyengar, J.

1. The petitioner had filed her nomination paper for election to the reserved seat of 'A' Division consisting of Brahmapur area of Gulbarga Municipality. There were two other candidates who had filed their nomination papers to the same division. When the nomination papers came up for scrutiny before the Returning Officer on 2-12-1968, objections were raised for accepting the nomination paper of the petitioner on the ground that she is disqualified under Section 16 (1) (c) of the Mysore Municipalities Act, 1964, hereinafter called the Act. The Returning Officer upheld the objections on the ground that the petitioner being a teacher in the girls' high school known as Nutan Vidyalaya High School, which is an aided institution was a holder of an office of profit and therefore not qualified to be chosen as and for being a councillor. The petitioner has filed this writ petition challenging the correctness of the said rejection. She seeks the issue of a writ of certiorari quashing the aforesaid order. She has also prayed for consequential reliefs.

2. Sri Murlidhar Rao, the learned counsel appearing for the petitioner, submits that the management of Nutan Vidyalaya High School where the petitioner is working as a teacher is administered by a private society called Nutan Vidyalaya Society. It also receives a grant from the Government of Mysore. The petitioner's contention is that she does not come under any of the disqualifications contemplated under Section 16 (1) (c) of the Act. She is not a holder of an office of profit under the Government of India or the Government of any State. She is also not a holder of any office of profit under any local or other authority subject to the control of any of the said Governments. His submission is that the instructions contained in the Grant-in-aid Code are merely administrative instructions as laid down in (1966) 1 Mys LJ 405 - (AIR 1967 Mys 160), K. S. Adam v. Director of Public Instruction, and (1966) 2 Mys LJ 619, Meenakshi v. Director of Public Instruction. It is the Society called the Nutan Vidyalaya Society that is administering the Grant-in-aid School and is also getting aid from the Government. The petitioner as a teacher is not controlled by the State Government.

In this connection, Shri Murlidhar Rao invites our attention to Rule 36 of the Grant-in-aid Code for Secondary Schools in Mysore State. Rule 56 provides that 'if any employee of an Added Institution is elected as a member of the State Legislative Assembly, State Legislative Council, Lok Sabha, Rajya Sabha, Taluka Board, Municipal Council, or any other autonomous body, an intimation of the same shall be sent by the employee and the Management to the concerned Deputy Director within a month of his or her election.' This provision implies clearly that an employee of the aided Institution can stand as a candidate to the Municipal Council.

Further our attention is invited to a decision of the Supreme court reported in : [1958]1SCR387 , Abdul Shakur y. Rikhab Chand. In paragraph 12 this is what the Supreme Court has observed:

'No doubt the committee of the 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. Merely because the committee or the members of the committee are removable by the Government of India or the committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test.'

The position of the petitioner is much stronger as in the instant case the committee which is managing the educational institution in which the petitioner is working as a teacher is not appointed by the Government, but is a corporate body under the Societies Registration Act. The petitioner is an employee of the said society. The appointment, conditions of service and control over the employee are vested in the management. Therefore, it appears to us that the petitioner cannot be considered to be a holder of an office of profit under any local or other authority under the control of the Government. Hence the order made by the Returning Officer rejecting the petitioner's nomination paper is not sustainable.

3. For these reasons, we quash the order of the first respondent dated 2-12-1968 rejecting the nomination paper of the petitioner. The Returning Officer will accept the nomination paper of the petitioner and will continue the election from the stage at which it was stayed.

4. No order as to costs.


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