LexMAULANA ABDUL SHAKUR versus RIKHAB CHAND AND ANOTHER
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S.C.R. SUPREME COURT REPORTS 387 MAULANA ABDUL SHAKUR v. RIKHAB CHAND AND ANOTHER (S.R. DAS C. J., VENKATARAMA AYYAR, B.P. SINHA, J. L . KAPUR and A.K. SARKAR JJ.) Electio11 Dispute,-Disqualification for Election-"Office of Profit unier Government"-Manager of Durgah Khwaja Saheb School, if holds office of profit under Govemment-Durgah Klnmja Saheb Act, 1955 (XXXVI of 1955), ss. 4 (1), 5, 6, 9, 11, 20- ·Constitution of India, Art. 102(1) (a). The appellant was the manager of a school run by a ·Committee of mangcment fonned under the provisions of the .Ourgah Khwaja Saheb Act, 1955. He was appointed by the .administrator of Durgah Kilwaja Saheb and was being paid Rs. 100 per month. He was elected to the Council of States by the Electoral College of Ajmer and the unsuccessful candidate, the first respondent, challenged the election on the ground that the appellant was holding an office of profit under the Government :at the time of the election an:d was, therefore, disqualified to be .chosen as a member of Parliament in view of Art. 102 (I) (a) of the Constitution of India. It was contended for the first respondent i11ter ulia that as under ss. 5 and 9 of the Act the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee, the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India. But the appellant was neither appointed.by the Government of India nor removable by it nor was his salary fixed by the Government and it was paid aut of the funds of the Durgah Endowment. Held, that the appellant was holding his appointment under :a committee which was a statutory body and could not be .considered as the holder of an office of profit under the Govern~ ment of India within the meaning of Art. 102 (I) (a) of the Constitution of India. Accordingly, the election of the appellant was valid. Shivnandan Sharma v. The Punjab National Bank Ltd., (1955) J S.C.R. 1427, distinguished. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 335 of 1957. Appeal by special leave from the judgment and order dated January 31, 1957, of the Election fribunal, Ajmer, in Election Petition No. 2 of 1956. 50 1957 September 12 1957 Maulana Abdul Shakur v. Rikhabchand and Another Kapur J. 388 SUPREME COURT REPORTS [19581 Mukat Behari Lal Bhargava and Naunit Lal, for the appellant. Respondent No. 1. in person. 1957. September 12. The following Judgment of the Court was delivered by KAPUR, J.-This is an appeal frQm the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakur, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. l in this appeal. The total number of valid votes polled was 26 and there were 3 invalid votes. The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant. The unsuccessful candidate, the present first respondent, filed his election petition on May 2, 1956. It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant. held an "office of profit" under the Government. The impugned election was held on March 22, 1956. By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956. The date for scrutiny was March 5, 1956, and for the polling March 22, 1956. The appellant filed two nomination paper5 on February 28, 1956, and a third one on March 1, 1956. The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956. On March 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellant's nomina- tion, the main ground being that the appellant was holding an office of profit under the Government. The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third
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