SULTAN SADIQ versus SANJAY RAJ SUBBA AND ORS.

Citation: [2004] 1 S.C.R. 82 · Decided: 05-01-2004 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
SULTAN SADIQ 
V. 
SANJA Y RAJ SUBBA AND ORS. 
JANUARY 5, 2004 
(V.N. KHARE,.CJ AND S.B. SINHA, J.] 
Election laws: 
Representation of the Peoples Act, 1951: Section JOO: 
Assembly electiorr-Election of appellant challenged on ground of holding 
post of profit under !he Slate Government-Eleclion Peli/ion alioll'ed by the 
High Courl--On appeal, Held: Order of regularization of services of appe!lanl 
as Assistant Teacher In the State services was not received by the appellant--
D Onus lies on election petitioner to prove that the letter was delivered to him, 
which he failed to prove-Presumption of communication of regularization 
order rebutted--Appellu'11 did no/ serve as Assistant Teacher afier alleged 
regulari::alion of services-Moreover, his services have been terminated by 
the management-No jural relationship of mas/er and servant existed between 
the appellant and the State-Hence, the appellant was not holding any office 
E of profit-High Court committed an error in setting aside the election of the 
appellant-Constitution of India, 1950; Article i91-Assam Elementary 
(Provincialimtion) Act, 1974-Assam Elementary Educalion Act, 1968-Assam 
Basic Education Act, 1954. 
Appclliint served as Assistant Teacher in a Madarasa School without 
F claiming any remuneration. In terms of Assam Elementary Education Act, 
1968 the State of Gujarat constituted Regional Boards of elementary 
education, which took over the management of elementary schools and 
pre-primary schools. Later, Assam Elementary Education (Provin-
cialisation) Act, 1974 was enacted whereby services of employees of the 
G State Board/Regional Boards had been provincialised for bringing them 
under the direct management and control of the State Government. 
Services of a large number of Teachers including appellant had not been 
provincialised. Hence, a writ petition was filed which was dismissed by 
Single Judge of the High Court. On appeal, Division Bench reversed the 
judgment of the Single Judge directing regularization of services of eligible 
H 
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SULT AN SADIQ v. SANJA Y RAJ SUB BA 
83 
Teachers. Accordingly, services ot the appellant and others h11ve been A 
provincialised/regularized vide State Government's order dated 
30.10.2000. 
In the meanwhile, appellant did not attend the School 11nd the 
Management of the school, after issuing notices, ultimately terminated his 
services \'ide its resolution dated 30.8.2000. An Election Notification for B 
holding Assembly Elections was issuell on 16.4.2001. In the Election, 
appellant was declared successful. Respondent No, t challenged the election 
of the appellant on the ground th11t he stood disqualified as he was holding 
a post of profit under the State Government. High Court allowed the 
election petition holding that the services of the appellant as Assistant C 
Teacher ha1·e been regularized and the non-joining or non-drawing of 
salary by the appellant was irNlevant. Hence the present appeal. 
It was contended for the oppcllant-returned candidate that the 
purport eel order of regulari:i:allon of services of the appellant as Assistant 
Teacher had never been acted upon; that the High Court committed a D 
manifest error as it failed to consider the purport of order dated 30.8.2000 
terminating the services of the appellant and the same was non est in the 
eyes of law; that since the nppellnnt had accepted the order of termination, 
the first respondcrnt did not have any locus standi to question it; that the 
order of reg11larization did not attain finality, as one of the teachers E 
claimed sc11iority above appellant; and that since no service record of the 
appellant wos m11lntalned, it cannot be said that he was holding any office 
of profit. 
Ou behalf of the respondents, it was submitted that the order of 
regularization of services could be given retrospecti~e effect; that in terms F 
of notification for provincialisation of Educational Institutions, appellant 
would be deemed Government servant with retrospective effect; and that 
purported resolution dated 25.8.2000 and order dated 30.10.2000 for 
provincialisation of services of the appellant being wholly illegal and 
without jurisdiction would be 11011 est in the eyes o·f law. 
G 
Allowing the appeal, the Court 
HELD: I. I. The appellant continued to render voluntary services as 
Assist11nt Teacher in a Madarasa School without receil'ing any 
remuneration. It may be that such rendition of service by the appellant H 
84

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