Holding

The appellant did not hold any office of profit as no employer‑employee relationship with the State existed; the regularization order was not communicated or accepted, and his termination was effective, rendering the High Court’s finding of disqualification a manifest error.

Summary

Sultan Sadiq, who had been rendering voluntary services as an assistant teacher in a madrasa, contested a legislative assembly election. The first respondent challenged his election alleging that Sadiq held an office of profit under the State of Assam because his services were purportedly regularized by a government order dated 30‑Oct‑2000. The High Court held that the regularization made him a government servant and set aside his election. The Supreme Court examined whether a master‑servant relationship existed, whether the regularization order was communicated and accepted, and the burden of proof under Section 114 of the Evidence Act. It found that Sadiq never received the order, had been terminated by the school’s managing committee on 30‑Aug‑2000, and thus had no employer‑employee relationship with the State. Consequently, he was not holding an office of profit and was not disqualified. The Court allowed the appeal, overturning the High Court’s decision.

Issues considered

Whether the appellant held any office of profit under the State of Assam at the time of nomination and election.
Whether the appellant was disqualified under Article 191(1)(a) of the Constitution and Section 100(1)(a) & 100(1)(d)(iv) of the Representation of the People Act, 1951.
Whether the regularization order dated 30‑Oct‑2000 was validly communicated and accepted, and what burden of proof applied under Section 114 of the Evidence Act.
Whether a master‑servant relationship existed between the State and the appellant for the purpose of deeming him a government servant.

Legislation cited

Constitution of Indias. Article 191(1)(a)
Indian Contract Act, 1872
Indian Evidence Act, 1872s. 114
Representation of the People Act, 1951s. 100(1)(a), s. 100(1)(d)(iv)

Subjects

office of profitelection disqualificationregularizationprovincialisationemployer-employee relationshipburden of proofEvidence ActRepresentation of the People ActAssam education lawSupreme Court

Judgment

A SULTAN SADIQ
V.

SANJA Y RAJ SUBBA AND ORS.
•
JANUARY 5, 2004

B (V.N. KHARE,.CJ AND S.B. SINHA, J.]

Election laws:

Representation of the Peoples Act, 1951: Section JOO:
c
Assembly electiorr-Election ofappellant 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 82
l

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 S"UPREME COURT REPORTS [2004] I S.C.R.

A 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
B 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,
C 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
D 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
E 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)

F 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
G 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(
H
1

SUL TAN SADIQ v. SA NJ AY RAJ SUBBA 85
1.4. In law the appellant did not enjoy any status. His services had A
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 B
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( C
R.N. Nanjundappav. T. Thimmaiah, (1972] 2 SCR 799; B.N. Nagarajan
and Ors. etc. v. State of Karnataka and Ors. etc., AIR (1979) SC 1676; State
of Mysore and Anr. v. S. V. Narayanappa, AIR (1967) SC 1071 and State of
Punjab v. Khemi Ram, AIR (1970) SC 214, referred to.
D
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 oft he Government of the Assam was wrongfnlly dismissed from E
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 F
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<!d from de jure relationship) existed, the same came to
an end in view of the resolution dated 25.8.2000 (term indicating the G
services of the appellant) of the Managing Committee of the School a111!
the communication thereof by the Head Master of the said School to the
appellant. 1100-BI

Administrative Law, Eighth Edi1ion p.293 by HWR Wade & C.F. Forsyth,
referred to. H
86 SUPREME COURT REPORTS [2004) I S.C.R.

A 1.7. The question as to whether the relationship of the appellant with
the said School could be validly terminated by the Managing Committee
or not could have been raised only in an appropriate proceeding where
the State was a necessary party. 1100-01

1.8. An order may be void for one and voidable for the other. An
B invalid order necessarily need not be non est; in a given situation it has to
be declared as such. In an election petition, the High Court was not
coni:erned with the said issue. 1100-EI

Administrative Law, Eighth Edilion p.293 by HWR Wade & C.F. Forsyth,
referred to.
c
1.9. The appellant had accepted the order of termination. In that
view of the matter, the High Court could not have proceeded on the basis
that the order of termi!lation was illegal. So long as the order of
provincialisation was not issued, there was no relationship of employer
D and employee between the appellant and the State of Assam. The appellant
had been working subject to the discretion of the Managing Committee.
His voluntary services could b_e refused to be taken by the Managing
Committee of the School. Thus,'the High Court has 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 191 of
E the Constitution of India. 1102-C; 101-F-GI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8425 of2002.

From the Judgment and Order dated 26.11.2002 of the Gauhati High
Court in E.A. No. 6 of 200 I.
F
V.A Mohta, Shakil Ahmed Syed and Anurag Singh for the Appellant.

U.N. Bachawat, Pradeep Agarwal, Sushil Kumar Jain and V.K.
Sidharthan for the Respondents.

G The Judgment of the Court was delivered by

S.B. SINHA, J. The appellant herein was elected from 110 Naoboicha
Legislative Assembly Constituency in the State of Assam. An election petition
was filed by the first respondent herein questioning the election of the appellant
in terms of Section 100 (I) of the Representation of the People Act, 1951
H (hereinafter referred to and called as 'the said Act', for the sake of brevity),
SULTAN SADIQ v. SANJA Y RAJ SUl3!3A [SINHA. J.] 87

• on the ground that he stood disqualified being the holder of a post cif profit
under the State of Assam.
A

BACKGROUND FACTS :

The appellant was said to have been appointed as an Assistant Teacher
in 'Pabha Chariali M.E. Madarassa School' (hereinafter referred to as 'the B
said School'). He was working therein as an Assistant Teacher without any
remuneration. Primary education is imparted in the said School. It appears
that the primary education in the State of Assam used to be governed by
three Acts, known as 'Assam Basic Education Act, 1954', Assam, Elementary
Education Act, 1962' and 'Assam Elementary Education Act, 1968'.
c
In terms of the 1968 Act, the Regional Boards of Elementary Education
were constituted which took over the management of elementary schools and
pre-primary schools. There also existed a State Board of Elementary Education
constituted under Section 4 of Assam Elementary Education Act, 1968.
D
The State thereafter enacted the Assam Elementary Education
(Provincialisation) Act, 1974 (Assam Act No. VI of 1975) to provide for
provincialisation of the elementary education in the State of Assam, in terms
whereof the services of employees of the different categories of the State
Board and Regional Boards for Elementary Education were to be provincialiscd
for the purpose of bringing them under the direct management and control of E
the State Government. Pursuant to or in furtherance of the said Act, all assets
and liabilities of the State Board and all Regional Boards vested in the State
Government. In terms of Section 3 of the l 974 Act, the services of all
teachers of elementary schools and pre-primary schools maintained by the
Regional Boards of Elementary Education, all employees of the State Board F
of Elementary Education, all teachers appointed by the Regional Boards of
Elementary Education and all ministerial staff appointed by the State Board
of Elementary Education w·ere provincialised under the said Act. The
consequence of vesting of the institutions maintained by the authorities under
the aforementioned three Acts is provided in Section 4A thereof which reads
thus: G
"Services of all teachers and employees who rendered services under
the following repealed Acts and whose services are taken over by the
Government on provincialisation on 5th September, 1975 under the
principal Act shall be deemed to be services under the Government H
88 SUPREME COURT REPORTS [2004) I S.C.R.

A and shall qualify and count for pension and other retirement benefits."

Section 27 (I) of the 1974 Act provides for rule making power. Pursuant
to or in furtherance thereof, the State of Assam made rules for regulating the
terms and conditions of services of teachers of elementary schools and
employees employed therein known as 'the Assam Elementary Education
B (Provincialisation) Service and Conduct Rules, 1981 (hereinafter referred to
as 'the 1981 Rules').

"Service" has been defined in Rule 2(xii) of the 1981 Rules to mean:

'"Service' means service rendered under the State Board for
C Elementary Education constituted under the Assam Elementary
Education Act, 1968 and service rendered under the Government
before or after provincialisation both in respect of teachers and other
employees."

Rule 3(i) of the said Rules reads thus :
D
"Terms and Conditions : The services of all teachers of Elementary
Education taken over by the Government on provincialisation on 5th
September, 1975, as provided under Section 3 of the Assam
Elementary Education (Provincialisation) Act, 1974, as amended, shall
be subject to the following conditions :
E
(a) Services rendered during the repealed Acts :-

The Assam Basic Education Act, 1954 (Act XXVI of 1954), the
Assam Elementary Education Act, 1962 (Act XXX of 1962), and the
Assam Elementary Education Act, 1968 (Act XVIII) of 1969) shall
F be counted towards pension and other retirement benefits provided
such services are substantive and permanent.

Explanation : Services rendered temporarily against leave or deputation
vacancies shall be excluded.
G (b) They shall be entitled to such scales of pay and allowances and
other benefits as may be admissible to the teachers of
corresponding rank of the Government School services with effect
from the date of provincialisation.
(c) They shall be superannuated on mtaining 58 years of age.''
H
SUL TAN SADIQ v. SANJA Y RAJ SUBBA [SINHA, J.] 89
The said school was not being maintained by any authority constituted A
under any of the aforementioned statutes. A notification, however, was issued
on or about 19.11.1991 whereby and whereunder the said school was
provincialised. Indisputably, the names of the appellant herein and a large
number of teachers were dropped from the list of approved teachers and their
services had not been provincialised under the provisions of the 1974 Act.
B
All Assam Middle English School Association of which the appellant
is said to be a member filed a writ petition before the Assam High Court for
regularization of services of the dropped teachers, which was marked as Writ
Petition No.2833 of 1997. The said writ petition was dismissed where-against
an appeal before the Division Bench was filed being Writ Appeal No.474 of C
1997. The Division Bench while reversing the judgment of the learned Single
Judge by reason of a judgment and order dated 13.1LI998, inter alia, directed:

"For the purpose of enabling the Government to complete process
of regularization/provincialisation, the appellants association will
furnish all necessary documents and particulars including names of D
concerned assistant teachers to the Director of Elementary Education,
Assam, within two weeks from today. It will be open for the State
Government to consider regularization/provincialisation of Assistant
Teachers dropped at the time of provincialisation of ME and ME
Madrassas during the year 1991-92 in addition to 1123 Assistant E
Teachers in case they find genuineness in the claims of such additional
Assistant Teachers.

The impugned order dated 25.6.97 of the learned Single Judge
passed in CR No.2833/97 is set aside and the writ appeal is disposed
of in terms of the aforesaid directions. But considering, however, the F
facts and circumstances of the case, the pa11ies shall bear their own
costs."

Pursuant to or in fw1herance of the said directions, the services of 190
wo_rking teachers were sought to be regularized w.e.f. 24.4.1998 by an order
dated 8.1.1999 stating : G
"... The services of the teachers may be regularized out of the posts
already allotted to you vide this office letter No.EPD/OB/6/98/156
dated 24.4.98. Before issuing the regularization order to the working
teacher concern the Dist. Ele. Edn. Oficer should authenticate the
same. The name of the teachers and the name of the schools as H
90 SUPREME COURT REPORTS (2004) I S.C.R.

A furi1ished the list received from Govt. The regularization of service of
working teachers should be made on seniority basis as per physical
verification report of Dist. Ele. Edn. Officer concerned and were
working before the date of provincialisation of school and duly
approval of the posts against section. No teachers should be regularized
in case of readjustment of schools as per need of enrolment without
B prior approval of this Directorate ... "

It appears that the District Elementary Education Officer by :a letter
dated 16.12.1999 addressed to the Secretary to the Government of Assam
allegedly inform1:d the latter about regularization of 97 numbers of dropped
C teachers and brought to his notice that it may be necessary to take steps for
regularization of other teachers by creating posts therefor. As, alleg,edly, the
order of the High Court was not complied with, a contempt petition was filed
wherein in his affidavit the District Elementary Education Offic<:r alleged
that in compliance with the order of the court dated 13.11.1998, the services
of 105 dropped teachers were regularized w.e.f. 24.4.1998 by an order dated
D 30.10.2000, and therein the name of the appellant found place at SI. No.28.
It, however, appears that the appellant herein stopped attending the said
school whereafter the Head Master of the said School by letters dat•~d 2.5.2000,
12.6.2000 and 21.8.2000 asked the appellant to come to the school with
sufficient cause for his absence failing which action would be taken against
E him. The appellant neither joined the School nor replied to the said notices.
The Managing Committee of the said School adopted a resolution to the
following effect :

"Since Md. Sultan Sadique, Assistant Teacher has unauthorisedly
been absent from his duty without any notice/intimation and it has
F been informed him on 2.5.2000, 12.6.2000 and 21.8.2000 by serving
written notices. But no reply has been received from him in this
regard.

The matter has thoroughly been discussed in today's and
unanimously decides that in the interest of the school, Md. Sultan
G Sadik, Assistant Teacher of the Pabha Charali M.E. Madrassa has
been released from his post with immediate effect.

It has also been decided to inform the authority concerned to take
necessary action."

A copy of the said resolution was forwarded to the appellalll
H
SUL TAN SADIQ v. SAN.IA Y RA.I SUBBA [SINHA, J.) 91

herein and a copy thereof was sent to the District Elementary Education A
Officer arid the Block Elementary Education Officer by the Head
Master of the said School by letter dated 30.8.2000, which is to the
following effect :

"Office of the Head Master and Secretary Pabha Charali ME
Madrassa, P.O. Kutubpur : Dist. Lakhimpur B
Date : 30.8.2000

To
Md. Sultan Sadik
c
Assistant Teacher
Pabha Charali M.E. Madrassa

Subject : Release from service
D
Sir,

With reference to the subject cited above and due respect it has
been informed you that the Managing Committee of Pabha Charali
M.E. Madrassa vide its resolution No. I passed in its meeting held on
25.8.2000 decided to release you from the post of Assistant Teacher E
from Pabha Charali M.E. Madrassa.

This decision will be implemented with immediate effect.
Sincerely yours,
Sd/- illegible
Seal : Headmaster F
Pabha Chara Ii M. E.
Madrass, a, PO
Kutubpur Dist.
Dist. Lakhimpur"
It is not in dispute that that the appellant herein despite receipt of the G
said purported order dated 30.8.2000 did not question the legality or validity
thereof. He accepted the said order.

A notification for holding an election was issued on 16.4.200 I. The
appellant and the first respondent herein amongst others pursuant thereto
filed their nomination papers. The first respolldent herein filed objections to H
92 SUPREME COURT REPORTS [2004) I S.C.R.

A the nomination of the appellant on the ground that he was a Government
employee and hence ineligible for contesting the election. The appellant herein
took the stand that as despite order of regularization passed in his favour, he
did not join duties nor received any salary, he was not a Government employee.
The said plea was accepted. In the election, as noticed hereinbefore, the
B appellant was elected whereafter the election petition was filed by the first
respondent.

ISSUES:

The High Court having regard to the pleadings of the parties, inter
C alia, framed the following issues:
"(5) Whether the Respondent No. I on the date of his nomination held
any office of profit ?
(6) Whether on the date of scrutiny of nomination papers and also
on the date of election the Respondent No. I was disqualified for
D being chosen to the Legislative Assembly under Article 19l(l)(A)
of the Indian Constitution and Section I00(1 )(a) and Section
lOO(l((d)(iv) of the Act?"

HIGH COURT JUDGMENT :

E The High Court in its impugned judgment held that : (i) an Assistant
Teacher in the school whose services had been provincialised by the
Government of Assam would be holder of an office of profit under the State
of Assam, in view of the order of the High Court in Writ Appeal No.474 of
1997 whereby and whereunder the State was directed to consider cases of
1123 dropped teachers for regularization/provincialisation; (ii) As pursuant
F to or in furtherance thereof the services of several teachers including that of
the appellant were regularized in terms of order dated 8.1.1999 (Ext.9) as
also the order dated 30.10.2000 (Ext.14) wherein the name of the appellant
found place at SI. No.28, he would be deemed to have become an Assistant
Teacher with retrospective effect from 24.4.1998. Keeping in view the fact
G that the appellant was in Government service on 25.8.2000, the Managing
Committee of the said school had no authority to terminate his services
without approval of the appropriate authority of the Government thereabout;
(iii) Although proceedings of the Managing Committee bore the endorsement
of the Block Elementary Education Officer, it had no authority to terminate
the services of the appellant. Even if the appellant was a dropped teacher, the
H question of the Managing Committee releasing or relieving him would not
SUL TAN SADIQ v. SANJA Y RAJ SUBBA [SINHA, .I.] 93

arise and, thus, the said order dated 25.8.2000 is of no legal effect; (iv) There A
is no explanation as to why even after 30.8.2000 the Head Master requested
the District Elementary Education Officer to take action against the appellant
for his absence from duty, which also shows that the Head Master considered
him to be a regularized teacher on that day; (v) The letter dated 30.10.2000
must be presumed to have been served upon the appellant in terms of Section B
114 of the Evidence Act; (vi) As the effect of regularization of
provincialisation/regularization has been provided for under the Act, the non-
". joining or non-drawing of any salary by the appellant was irrelevant.

On the aforementioned findings, the election petition was allowed by
the High Court. C
SUBMISSIONS :

Mr. V.A. Mohta, learned Senior Counsel appearing on behalf of the
appellant would submit that having regard to the fact that the appellant had
been served with notices on 2.5.2000, 12.6.2000 and 21.8.2000 by the School D
and furthermore in view of the order dated 30.8.2000 as also the resolution
of the Managing Committee dated 25.8.2000, the purported order of
) regularization dated 30.10.2000 cannot be said to have been acted upon. The
learned counsel would urge that the High Court committed a manifest error
insofar as it failed to consider the purport of the letter dated 30.8.2000 (Ext.G),
genuineness whereof is not in dispute. Mr. Mohta would submit that as the E
appellant has accepted the said order of termination, the first respondent had
no locus sta11di to question the same. Our attention in this behalf has also
been drawn to the show cause filed by the District Elementary Education
Officer, Lakhimpur in the contempt proceedings. The learned counsel would
contend that as the order of regularization was passed only on 30.10.2000, F
the same was 11011 est in the eye of law. It was further submitted that even
from the said order dated 30.10.2000, it would appear that one Naseema
Begum claimed seniority over the appellant on the ground that he superseded
her and, thus, even the order of regularization did not attain finality. The
learned counsel would submit that in terms of Rule 8 of 1981 Rules, a
register is required to be opened at the beginning of service by the DI of G
School and as no service records had been opened the appellant cannot be
said to be holder of an office of profit under the State. Relying on or on the
basis of a decision in R. P. Moid111ty v. P. T K1111j11 /11ohammad and Anr.
[2000] 1 SCC 481, the learned counsel would argue that the first respondent
herein has failed to discharge his heavy onus. Mr. Mohta would also contend H
94 SUPREME COURT REPORTS [2004) I S.C.R.
A that the High Court committed an error in setting aside the election on mere
surmises and conjectures.

Mr. U.N. Bachawat, learned Senior Counsel appearing on behalf of
the respondents, on the other hand, would submit that the expression
'regularization' connotes that the services of a person who has irregularly
B been appointed would be made regular and, thus, such an order can be given
to have a retrospective effect. Strong reliance, in this regard has been placed
on State of Mysore and Another v. S.V. Narayanappa, AIR (1967) SC 1071
and B.N Nagarajan and Ors. etc. v. State of Karna/aka and Ors. etc., AIR
( 1979) SC 1676.
c The learned counsel would contend that as the institution stood
provincialised in terms of notification dated 19 .11.1991 issued by the State
of Assam, as would appear from the deposition of the Head Master of the
School, the consequences provided for in Section 4A of the Act and Rule 3
of the 1981 Rules shall ensue in tenns whereof the appellant would be deemed
D to be a Government servant with retrospective effect from 24.4.1998. Mr.
Bachawat would urge that keeping in view of the provisions of Section 87
of the Representation of the People Act and having regard to the pleadings
of the parties as contained in Para 16 of the election petition and para 18 of
the written statement wherefrom it would appear that the factum of
provincialism had not been denied or disputed and, thus, the same would be
E deemed to have been admitted and, in that view of the matter it was not
necessary for the High Court to consider the effect of mode ofprovincialisation
of teachers. The learned counsel would contend that the role of the Managing
Committee of a provincialised school being a limited one, the purported
resolution dated 25.8.2000 and letter dated 30.10.2000 being wholly illegal
p and without jurisdiction, the same would be non est in the eye of law. Strong
reliance in this behalf has been placed on Mysore State Road Transport
Corporation v. Mi1:Ja Khasim Ali Beg and Anr., AIR (1977) SC 747. The
learned counsel would submit that in view of the aforementioned legal position,
it was not even necessary for the authorities of the State of Assam to
communicate the order of regularization dated 30. I0.2000 insofar as the
G same would be deemed to be communicated as soon as it went out of the
control of the District Elementary Education Officer. ·Reliance has been placed
on State of Pw!iab v. Khemi Ram, AIR (1970) SC 214. Non-receipt of salary
. by the appellant is also not relevant in view of the fact that the State has
n:ade budgetary provision therefor according to Mr. Bachawat and in support
H of his aforementioned contention he relied upon M. V. Rajashekaran and Ors.
SULTAN SADIQ v. SANJA Y RAJ SUBl3A [SINHA, J.] 95
v. Vatal Nagaraj and Ors., JT (2002) I SC 237. A
ANALYSIS:

The parties have not brought on records the offer of appointment, if
any, issued in favour of the appellant herein by the Managing Committee of
the said School at the time of his joining. Admittedly, he had been rendering B
his services in the School without any remuneration. The terms and conditions
of his job are not known. It is admitted from the records that he fought
election in the year 1998 and during the relevant period he discontinued
going to the School but thereafter again he staited going to the School. It is
also not disputed he had not been going to the School for a long time, as a
result whereof the said letters 2.5.2000, 12.6.2000 and 21.8.2000 came to be C
issued . The authenticity of the letter of the Head Master dated 30.8.2000 is
not in dispute.

The question in the aforementioned situation would be as regard the
effect thereof vis-a-vis his purported regularization in terms of letter dated D
30.10.2000 w.e.f. 24.4.1998.

LEGAL IMPLICATIONS:

The statutory provisions, as refe1Ted to herein before, ex facie demonstrate
that the 1974 Act was enacted for the purpose of the provincialisation of E
services of employees of different categories of the State Board and Regional
·1 Boards for Elementary Education and bringing them under direct management
and control of the State Government.

The pleadings of the parties before the High Cou1t do not reveal that
the School in question was maintained by the Regional Board. Had it been F
so, the question of the appellant being a dropped teacher would not have
arisen. Furthermore, no occasion wou Id have also arisen for the State of
Assam to issue a separate notification dated 19.11.1991 for provincialisation
of the said school. We have also not been shown any provision of law in
terms whereof such a notification could be issued. Be that as it may, the fact
remains that the appellant herein was not recognised as a teacher working in G
the said School. He continued to render voluntary services without receiving
any remuneration. It may be that such rendition of service by the appellant
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 is difficult to conceive that a relationship of a master and H
96 SUPREME COURT REPORTS 12004] I S.C.R.

A servant came into being by and between the management of the School and
the appellant. Even if such a relationship existed, the same was a fragile one.
The services of the appellant in terms of the 1974 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 said School at
B any time. Even after provincialisation of the School, keeping in view the
admitted fact that the appellant was not an approved teacher, it must be held
that he 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.

C The High Court, however, proceeded on the basis that such a relationship
existed. It opined that the order of the Division Bench dated 13.11.1998 was
mandatory in character. The fact that the said order attained finality is not in
dispute but a bare perusal of the directions issued therein would reveal that
the Association was asked to furnish necessary documents and particulars
including names of the concerned teachers so as to enable the State to consider
D and complete the process ofregularization/provincialisation of ME Madrassas
during the year 1991-92 in addition to 1123 Assistant Teachers in case they
find genuineness of claims of such Assistant Teachers.

The order dated 8.1.1999 of the Director of Elementary Education stated
E that the services of the teachers should be regularized out of the posts already
allotted to the concerned District Elementary Education Officer. He was asked
to authenticate list of working teachers before regularization of services of
such teachers. Despite that the name of the appellant appeared at SI. No.56 •
thereof, such a direction was not final. The letter of the District Elementary
Education Officer dated 16.12.1999, although discloses that he had finalized
F the list of 97 names, no order pursuant thereto had been issued. Even the
order dated 30.10.2000 says that such purported provincialisation/regularization
was provisional in nature. Such regularization was further subject to the
outcome of order dated 25.9.2000 in Writ Appeal No.474 under C.R. No.2833
of 1997 in Contempt Case (C) No. 420 of2000 of the High Court ofGauhati.
From the list of dropped teachers piirported to have been regularized from
G 24.4.1998, it appears that there existed a factual dispute as to whether the
appellant superseded one Mst. Naseema Begum who had joined the said
School on 1.4.1984 or not. The appellant contended that he even did not
receive the said purported order of regularization. The High Court having >'-
regard to the provisions contained in Section 114 of the Evidence Act, was
H of the opinion that a presu'mption that he had received the said order could
SUL TAN S/\DTQ v. SANJA Y 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,
A
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. 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 B
additional posts, admittedly, had been created by the State in the year 1998.
'-.: Prior to 30. l 0.2000, 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 <1ppellant. c
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 provinciallsed. Had such consequences of
provincialisation of the school been flown from the notification, it would not D
have been necessary for the teachers to approach the High Cou1t. 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 be verified is
itself a pointer to the fact that no order of regularization could be passed
pursuant to or in fu1therance of the judgment of the High Court only.
E
It is not a case, it will bear repetition to state, where the State or its
... authorised officer made an appointment of an employee either on ad hoc
basis or on daily wages or on contract basis or otherwise, Only in cases of
such irregularities in the matter of appointment, the employees can be
regularized in their services. F
,
In S V Nara)'anappa (supra) whereupon Mr. Bachawat strongly relied,
~ this Court stated that for the puqiose of application of a Government order,
it must be shown that the local candidate claiming the benefit thereof must
satisfy that he w&s initially appointed prior to 31.12. 1959 and was in service
on 1.1.1960 and continued till 22.9.1961. It was held : G
" ... This construction finds suppo11 from sub-cl. (iii) which provides
that local service prior to regularization would be counted for the
purposes of leave, pension and increments though not for seniority as
seniority was to be fixed from the length of service calculated from
the date of regularization. It is manifest that unless the local service H
98 SUPREME COURT REPORTS [2004] I S.C.R.

A was continuous such service could not be taken into account for the
purposes, in particular of pension and increments. How would
increments, for example, be granted unless the service prior to such
increments was continuous? The same consideration would also apply
in the case of pension. It had, therefore, to be provided as has been
done in sub-cl. (iv) that a break in service would not be condoned for
B a period howsoever short. Continuity of service is thus a condition
for both sub-els. 2 and 3... "

Yet again in B.N. Nagarajan (supra), this Court repelled the argument
that regularization gives a colour of permanence and the appellants therein
C must be deemed to have acquired substantive rights stating :

" ... The argument however is unacceptable to us for two reasons. Firstly
the words "regular" or "regularization" do not connote permanence.
They are terms calculated to condone any procedural irregularities
and are meant to cure only such defects as are attributable to the
D methodology followed in making the appointments. They cannot be
construed so as to convey an idea of the nature of tenure of the
appointments .... "

It is interesting to note that therein this Court quoted with approval a
decision of this Court in R.N. Nanjundappa v. T. Thimmaiah, (1972] 2 SCR
E 799, which is to the following effect :

" ... If the appointment itself is in infraction of the rules or if it is in
violation of the provisions of the Constitution illegality cannot be
regularized. Ratification or regularization is possible of an act which ....
is within the power of province oi the authority but there has been
F some non-compliance with procedure or manner which does not go
to the root of the appointment. Regularization cannot be said to be a
mode of recruitment. To accede to such a proposition would be to '
introduce a new head of appointment in defiance of rules or it may
have the effect of setting at naught the rules."

G These decisions of this Court do not support the contention of Mr.
Bachawat and in fact run counter thereto. It is not the case of the pa11ies that
there existed even semblance of any legal right of the appellant and there
existed a relationship of employer and employee between the State and him.
In law the appellant did not enjoy any status. His services had not been
H recognized by the State. The terms and conditions of his services were not
SUL TAN SADIQ v. SANJA Y RAJ SUBBA [SINHA, I.] 99

relationship of employer and employee, if any, between the State and the A
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 him. A contract of service in absence of any statutory provisions
must be preceded by an offer and acceptance. A contract of service in absence
of any statute, a fortiori is also governed by the provisions of the Indian B
Contract Act. It is, therefore, not correct to contend 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, acceptance thereof whether expressly or by necessary
implications by the appellant was also required. The appellant did not do it
nor it is the case of the State or the statutory authorities that such a relationship C
had come into being.

The decision of this Court in Khemi Ram (supra) relied upon by Mr.
Bachawat is not apposite as therein an order of suspension was in question.
This Court in the said decision itself referred to its decision in State of
Punjab v. Amar Singh Harika, AIR (1966) SC 1313, which stated that D
communication of an order dismissing an employee from service is imperative.
If communication of an order for terminating the jural relationship is
imperative, a fortiori it would also be imperative at the threshold.

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 E

- contained in Article 191 of the Constitution of India vis-a-vis Section I00 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 of the Government
of the Assam was wrongfully dismissed from his services. Only holding of
an office of profit under the Government of India or the Government of any F
, State would render a candidate disqualified from contesting an election. Only
in that event, the High Court could have been entitled to decjare such election
as a void one, but the question involved herein is not so.

What was necessary to be considered by the High Court was as to
whether any relationship of employer and employee between the State of G
Assam and the appellant herein came into being. The submission of Mr.
Bachawat, therefore, to the effect that the High Court had the requisite
jurisdiction by invoking the doctrine of "implied powers" to go into the
question of termination/dismissal/removal of the appellant does not arise for
consideration in the instant case.
H
100 SUPREME COURT REPORTS [2004] I S.C.R.

A EFFECT OF RESOLUTION DATED 25.8.2000 :
Furthermore, even the de facto relationshipl of employer and employee
• ~

(as contra-distinguished from de Jure relationship) existed, the same came to
an end in view of the aforementioned resolution of the Managing Committee
of the said School and the communication thereof by the Head Master of the
B said School to the appellant in terms of letter dated 30.8.2000. An
administrative order can be challenged in a proper forum only by the right
person for a right remedy.

In Administrative Law, Eighth Edition by HWR Wade & C.F. Forsyth,
at p. 293, it is stated :
c
"An officer de facto is one who has the reputation of being the officer
he assumes to be, and yet is not a good officer in point of law."

The question as to whether the relationship of the appellant with the
said School could be validly terminated by the Managing Committee or not
~D could have been raised only in an appropriate proceeding where the State
was a necessary party.

An order may be void for one and voidable for the other. An invalid
order necessarily need not be non est; in a given situation it has to be declared
as such. In an election petition, the High Court was not concerned with the
E said issue.

In Administrative Law, Eighth Edition by HWR Wade & C.F. Forsyth,
at page 309, it is stated :

"Effect on third parties :
-
F
If an act or order is held to be ultra vires and void it is natural to
'
assume that, being a nullity, it is to be treated as non-existent by all
-I
who would otherwise be concerned. But the judgment of a cowt
binds only the parties to it, so that here also there are problems of
relativity. Once again Lord Diplock has supplied the answer.
G
Although such a decision is directly binding only as between the
pa1tics to the. proceedings in which it was made, the application of
the doctrine of precedent has the consequence of enabling the benefit

H
SULTAN SADIQ 1·. SAN.JAY RA.I SUfll3A !SINHA. J.J 101

of it to accrue to all other persons whose legal rights have been A
interfered with in reliance on the law which the statutory instrument
purported to declare.

In effect, therefore, the court's judgment of nullity operates erga
omnes, i.e. for and against everyone concerned.
B
Patent and latent invalidity

In a well-known passage Lord Radcliffe said :

An order, even if not made in good faith, is still an act capable of
legal consequences. It bears no brand of invalidity upon its forehead.
Unless the necessary proceedings are taken at law to establish the C
cause of invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most impeccable
of orders.

This must be equally true even where the 'brand of invalidity' is
plainly visible : for there also the order can effectively be resisted in D
law only by obtaining the decision of the cou11. The necessity of
recourse to the court has been pointed out repeatedly in the House of
Lords and Privy Council, without distinction between patent and latent
defects. Lord Diplock spoke still more clearly, saying that

it leads to confusion to use such terms as 'voidable' 'voidable ab E
initio', 'void' or 'a nullity' as descriptive of the status of subordinate
legislation alleged to be ultra vires for patent or for latent defects,
before its validity has been pronounced on by a court of competent
jurisdiction."
F
The appellant herein had accepted the order of termination. In that
view of the matter, the High Court could not have proceeded on the basis that
the order of tennination was illegal. So long as the order of provincialisation
was not issued, as noticed herein before, there was no relationship of employer
and employee between the appellant and the State of Assam. The appellant
had been 11'orking subject to the discretion of the Managing Committee. His G
voluntary services could be refused to be taken-by the Managing Committee
of the School. The questiun would have been otherwise, had the purported
service conditions of tlie appellant been governed by a statute or statutory
rules, regularization of a teacher would be permissible in law, if he remains
a teacher on the day on which such an order is passed. Had he been in service H
102 SUPREME COURT REPORTS [2004] I S.C.R.

A on 30. I 0.2000, the same could have been regularized with retrospective effect
but he was not in service of the School and on that date the question of his
regularization would not arise. It is only in that context the High Court was
required to consider as to whether the validity or otherwise of the order of
termination passed by the Managing Committee could have been the subject
matter of a decision by an Election Tribunal.
B
The contention of Mr. Bachawat to the effect that services of an
employee can only be terminated in certain situations could have been accepted
if the jural relationship had come into being and not otherwise.

CONCLUSION :
c
For the reasons aforementioned, we are of the opinion that the High
Court ha> 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 I 91 of the Constitution of India.

D 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.