SULTAN SADIQ v. SANJAY RAJ SUBBA AND ORS

Citation: [2004] 1 S.C.R. 82

Court: Supreme Court of India

Bench: V.N. KHARE, S.B. SINHA

Case summary

SULTAN SADIQ v. SANJAY RAJ SUBBA AND ORS.pdf

Judgment text

SULTAN SADIQ V. • SANJAY 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 ofappellant challenged on ground ofholding post ofprofit under ! he Slate Government-Eleclion Peli/ion alioll'ed by the High Courl--On appeal, Held: Order ofregularization ofservices ofappe!

lanl as Assistant Teacher In the State services was not received by the appellant-- 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 ofmas/er and servant existed between the appellant and the State-Hence, the appellant was not holding any office ofprofit-High Court committed an error in setting aside the election ofthe 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 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 (Provincialisation) Act, 1974 was enacted whereby services of employees of the 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 l SULTAN SADIQ v. SANJAY RAJ SUBBA 83 Teachers. Accordingly, services ot the appellant and others h11ve been 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 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 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 purporteel order of regulari:i:allon of services of the appellant as Assistant Teacher had never been acted upon; that the High Court committed a 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 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 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.

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 84 S"UPREME COURT REPORTS [2004] I S. C. R. or the teachers similarly situated was on the hope or belief that their • services would also be provincialised by the State one day or the other. But only by reason thereof, it cannot be conceived that a relationship of master and servant came into being by and between the Management of the School and the appellant. The services of the appellant in terms of Assam Educational (Provincialisation) Act or the Rules framed thereunder were not protected. He did not enjoy any status; his services could be dispensed with by the Managing Committee of the School at any time.

Even after provincialisation of the School, appellant was merely rendering some services and, thus, either in law or on fact, no jural relationship between the State and the appellant came into being. The High Court, however, proceeded on the basis that such a relationship existed. (95-G-H; 96-A, B, CJ 1. 2. The High Court having regard to the provisions contained in Section 114 of the Evidence Act, was of the opinion that presumption that the appellant had received the order of regularization could be drawn but it failed to take into consideration that such presumption stood rebutted when the appellant stated on oath that he did not receive such letter. In such an event, the onus was on the election petitioner to show that the same had been delivered or tendered to him by the postal peon of the concerned post office. The additional posts, admittedly, had been created by the State in the year 1998. Prior to 30. 10. 2000, there existed no relationship of master and servant.

The offer came to be made by the State to the appellant only on the issuance of the order. The offer was not only required to be communicated but also was required to he accepted by the appellant. (96-H; 97-A-C) 1. 3. It is true that the school in question stood provincialised in terms of the Notification issued by the State of Assam but the same by itself would not lead to the conclusion that the services of the Assistant Teachers working therein stood automatically provincialised. Had such consequences of provincialisation of the school been flown from the Notification, it would not have been necessary for the teachers to approach the·High Court. The very fact that even in terms of the order of the High Court, the genuineness of claims of the concerned Assistant Teachers was required to he verified is itself a pointer to the fact that no order of regularization could be passed pursuant to or in furtherance of the judgment of the High Court. (97-C-E( SULTAN SADIQ v.

SANJ AY RAJ SUBBA 85 1. 4. In law the appellant did not enjoy any status. His services had not been recognized by the State. The terms and conditions of his services were not governed by any statute and, thus, the same were not protected. The relationship of employer and employee, if any, between the State and the appellant was to come into being (may be with retrospective effect) only upon receipt of the offer of an appointment dated 30. 10. 2000 and acceptance thereof by the appellant. A contract of service in absence of any statute, a fortiori is also governed by the provisions of the Indian Contract Act. Therefore, it cannot be said that the order dated 30. 10. 2000 was not required to be communicated for making a valid contract of service. It was absolutely necessary to communicate the said order to the appellant by the State. (98-G, H; 99-A-C( R. N. Nanjundappav. T. Thimmaiah, (1972] 2 SCR 799; B. N. Nagarajan and Ors. etc. v. State ofKarnataka and Ors. etc.

, AIR (1979) SC 1676; State ofMysore and Anr. v. S. V. Narayanappa, AIR (1967) SC 1071 and State of Punjab v. Khemi Ram, AIR (1970) SC 214, referred to. 1. 5. The High Court proceeded to render its opinion on a wrong premise. It was not a case where the High Court having regard to the provisions contained in Article 191 of the Constitution of India visa-a-vis Section 100 of the Representation of the People Act was required to determine a question as to whether the appellant being holder of an office of profit ofthe Government of the Assam was wrongfnlly dismissed from his services. Only holding of an office of profit under the Government of India or the Government of any State would render a candidate disqualified from contesting an election, only in that event, the High Court could have been entitled to declare such election as a void one.

What was necessary to be considered by the High Court was as to whether any relationship of employer and employee between the State of Assam and the appellant came into being. 199-E-Gl 1. 6. Even if the de facto relationship of employer and employee (as contra-distinguish 'regard to the provisions contained in Section 114 of the Evidence Act, was of the opinion that a presu'mption that he had received the said order could SULTAN S/\DTQ v. SANJAY RAJ SUBI3A [SINHA, t] 97 be drawn but it failed to take into consideration that ~uch presumption stood • rebutted when the appellant stated on oath that he did not receive such letter, In such an event, the onus was on the election petitioner to show that the same had been delivered or tendered to him by the postal peon ofthe concerned post office. It is not a case where the High Court directed regularization of services of the appellant.

It is furthermore not a case where the posts were existing on the date on which the appellant joined \he said School. The additional posts, admittedly, had been created by the State in the year 1998. '-. : Prior to 30. l0. 2000, thus, there existed no relationship of master and servant. The offer came to be made by the State to the appellant only on the issuance of the said order. The said offer was not only required to be communicated but also was required to be accepted by the committed a manifest error in holding that the appellant being a holder of an office of profit disentitled himself from contesting the election in terms of Article I91 of the Constitution of India. The appeal, therefore, is allowed. The judgment and order of the High Comt under challenge is set aside. However, in the facts and circumstances of the case, there shall be no order as to costs. S. K. S. Appeal allowed.