Appeal No 1869 of 1968
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated August 12 1968 of the Rajasthan High Court in Election Petition No 16 of 1967
section V Gupte M M Tiwari H K Puri Bishamber Lal M K Garg K K Jain and section P Vij for the appellant
M C Chagla and section M Jain for respondent
Niren De Attorney General G C Kasliwal Advocate General
Rajasthan and K B Mehta for the State of Rajasthan
The Judgment of section M SiKRi A N RAY and P JAGANMOHAN REDDY JJwas delivered by SIKRI J M HIDAYATULLAH Cf and G K MITTER J gave a separate opinion
Hidayatullah CJ We regret our inability to agree that the appellant Mrs Kanta Kathuria was not holding an office of profit under the Government of Rajasthan when she stood as a candidate for election to the Rajasthan Legislative Assembly from the Kolayat Constituency
Mrs Kathuria is an advocate practicing at Bikaner
She contested the above election held on February 18 1967 against seven other candidates
She was declared elected on February 22 1967
One of the defeated candidates filed the election petition from which this appeal arises questioning her election on several grounds
We are concerned only with one of them namely that on the date of her nomination and election she was disqualified to be chosen to fill the seat as she held the office of Special Government Pleader which was an office of profit under the Government of Rajasthan
838 Article 191 of the Constitution which is relevant in this connection reads  191  Disqualifications for membership 1 A person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State a if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder Mrs Kathuria was appointed by the Government of Rajasthan as Special Government Pleader to conduct arbitration cases between the Government and Modern Construction Company arising out of the construction of Rana Pratap Sagar Dam and Jawahar Sagar Dam
The order was passed on June 26 1965 exhibit 1
The order reads ORDER Sub Construction of RPS Main Dam Contract of Ms
MCC Pvt Ltd Arbitration in disputes arising out of
In pursuance of Rule 8 b of Order XXVII of the First Schedule to the Code of Civil Procedure 1908 read with clause 7 of Section 2 of the Code the Governor is pleased to appoint Smt
Kanta Kathuria Advocate Bikaner as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan alongwith Shri Murali Manohar Vyas Government Advocate Jodhpur
By order Sd
D section Acharya 26 6 65 D section Acharya Joint Legal Remembrancer
By subsequent orders which we do not consider necessary to quote here her remuneration was fixed at Rs 1501 per day for each date of hearing Rs 75 per day for days of travel and dates on which the case was adjourned and days spent on preparation of the case
Mrs Kathuria began appearing in the case from March 27 1965
It is an admitted fact that she was paid for work between that date and November 28 1966 a sum of 839 Rs 26325 and again from February 26 1967 to March 2 1967 a sum of Rs 900 and that the arbitration proceedings were continuing on the date of the filing of the election petition
Therefore for over two years she was employed as Special Government Pleader and was still employed when her election took place
It is also admitted by her that prior to this employment she had never paid income tax in excess of Rs 1200 in any year
On these facts the High Court held that Mrs Kathuria was disqualified
Before this appeal came on for hearing before us the Governor of Rajasthan by Ordinance 368 December 24 1968 removed the disqualification retrospectively
The Ordinance was followed by Act V of 1968 April 4 1969
The operative portions of the Act which are the same as of the Ordinance read Prevention of disqualification of membership of the State Legislative Assembly 1 It is hereby declared that none of the following offices in so far as it is an  office of profit under the State Government shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as or for being a member of the Rajasthan Legislative Assembly namely a the office of a Government Pleader or Special Government Pleader or Advocate for the Government appointed specially to conduct any particular suit case or other proceeding by or against the State Government before any court tribunal arbitrator or other autho rity b the office of a Government Pleader a Special Government Pleader or Advocate for the State Government appointed specially to assist the Advocate General Government Advocate or Pleader or Special Government Pleader or Advocate for Government in any particular suit case or other proceeding by or against the State Government before any court tribunal arbitrator or other authority c the office of a panel lawyer if the holder of such office is not entitled to any retainer or salary by whatever named called 4 the office of a Pradhan or Pramukh as defined in the Rajasthan Panchayat Samitis and Zila Parishads Act 1959 Rajasthan Act 37 of 1959
840 2 Notwithstanding any judgment or order of any Court or Tribunal the aforesaid offices shall not disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as or for being members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as a member of the Rajasthan Legislative Assembly
 The Ordinance and the Act seem to have been passed to nullify the decision in this case
One of the contentions of the answering respondent is that the Legislature of Rajasthan could not remove the disqualification retrospectively since the Constitution contemplates disqualifications existing at certain time in accordance with the law existing at that time
We shall deal with this matter later
When the Government of Rajasthan appointed Mrs Kathuria it bad two courses open to it
Firstly Government could have engaged Mrs Kathuria to conduct the particular arbitration case or cases or even to assist the Government Advocate in those cases
Alternatively Government could create a special office of Special Government Pleader and appoint Mrs Kathuria or any other lawyer to that office
It is obvious that Government did not choose the first course
There were as many as 26 arbitration cases then pending and more were likely to arise
Government thought that they should be conducted by the Government Advocate but as the work involved was too much as additional office had to be created and given to a lawyer
An office was therefore created and given to Mrs Kathuria
In a recent case Civil Appeal No 1832 of 1967 Mahadeo vs
Shantibhai  Others s decided on October 15 1968 we held that a panel lawyer engaged to watch cases on behalf of the Central  Western Railway Administrations held an office of profit
The duty of the panel lawyer was to watch cases coming up for hearing against the Railways at Ujjain and to appear in court and ask for an adjournment
The lawyer was paid Rs 51 for each such adjournment if he was not entrusted with the case later
In dealing with this matter reliance was placed by us on the meaning to the word office  given in the Statesman P Ltd vs H R Deb  Ors1 In the Statesman case this Court approved of the observations of Lord Wright in Mcmillan vs Guest2 to the following effect  The word office is of indefinite content
Its various meanings cover four columns of the New English 1  2 841 Dictionary but I take as the most relevant for purpose of this case the following A position or place to which certain duties are attached especially one of a more or less public character
 Our brother Sikri has also relied upon the same case and has referred to the observations of Lord Atkin where he approved of the observations of Rowlatt J in Great Western Railway Co vs Baler1
Justice Rowlatt said thus  Now it is argued and to my mind argued most forcibly that shows that what those who use the language of the Act of 1842 meant when they spoke of an office or employment which was a subsisting permanent substantive position which had an existence independent from the person who filled it which went on and was filled in succession by successive holders and if you merely had any man who was engaged on whatever terms to do duties which were assigned to him his employmen t to do those duties did not create an office to which those duties were attached
He hereby was employed to do certain things and that is an end of it and if there was no office or employment existing in the case as a thing the so called office or employment was merely an aggregate of the activities of the particular man for the time being
We say with profound respect for this most succinct exposition that we entirely agree
The distinction that we are making is precisely the distinction which has been brought out by Rowlatt J If Mrs Kathuria had been briefed as a lawyer and given all the Government litigation in Rajasthan to conduct on behalf of the Government she could not have been described as holding an office of profit
The aggregate of her work and her activities could not have created an office nor could she have been described as anything but an advocate
What happened here was different  An office was created which was that of a Special Government Pleader
Now it is admitted that the office of a Government Pleader is an office properly so called
Therefore an office going under the names Additional Government Pleader  Assistant Government Pleader  Special Government Pleader  will equally be an office properly so called
It matters not that Mrs Kathuria was to conduct a group of arbitration cases and against the same party
For that matter Government is always at liberty to create offices for special duties
They might have even created another office of Special Government Pleader for Land Acquisition cases 1 8 Tax Cases 231 235
842 or a group of cases or Railway cases or a group of cases arising out of a particular accident and so on and so forth
What matters is that there was an office created apart from Mrs Kathuria
It is in evidence that it was first held by Mr Maneklal Mathur another advocate
It is likely that if Mrs Kathuria had declined some one else would have been found
Therefore there was an office which could be successively held it was independent of Mrs Kathuria who filled it was a substantive position and as permanent as supernumerary offices are
Every one of the tests laid down by Rowlatt J is found here
We would therefore hold that the High Court was right in its conclusion that MrsKathuria held an office
Since there is no dispute that it was for profit and under the State the election of Mrs Kathuria must be held to be void as she was disqualified to stand for the election
This brings us to the next question
Does the Act of the Rajasthan Legislature remove the disqualification retrospectively in other words can such a law be passed by the Legislature after the election is over  The first question is whether the new law is remedial or declaratory
If it was declaratory then it would be retrospective if remedial only prospective unless legally made retrospective
That it has been made expressly retrospective lends support to its being remedial
Its retrospective operation depends on its being effective to remove a disability existing on the date of nomination of a candidate or his election
Of course there is no difficulty in holding the law to be perfectly valid in its prospective operation
The only dispute is in regard to its retrospective operation
Our brother Sikri has cited an instance of the British Parliament from May s well known treatise when the Coatbridge and Springburn Elections Validation Bill was introduced to validate the irregular elections
Halsbury s Laws of England 3rd Edn
14 p 5 has the following note  If a person is elected when disqualified his dis qualification for being a member of Parliament may be remedied or he may be protected from any penal consequences by an Act of Validation or indemnity
 The position of the British Parliament is somewhat different from that of the Indian Parliament and the Legislatures of the States
British Parliament enjoys plenary sovereignty and the7 Acts of the British Parliament no court can question
In India the sovereignty of the Indian Parliament and the Legislatures is 843 often curtailed and the question therefore is whether it is in fact so curtailed
At the hearing our attention was drawn to a number of such Acts passed by our Parliament and the Legislatures of the States
It seems that there is a settled legislative practice to make validation laws
It is also well recognised that Parliament and the Legislatures of the States can make their laws operate retrospectively
Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retroactively
This is not one of them
This position being firmly grounded we have to look for limitations if any in the Constitution
Article 191 which has been quoted earlier itself recognises the power of the Legislature of the State to declare by law that the holder of an office shall not be disqualified for being chosen as a member
The Article says that a person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature not to disqualify the holder
Power is thus reserved to the Legislature of the State to make the declaration
There is nothing in the words of the article to indicate that this declaration cannot be made with retrospective effect
It is true that it gives an advantage to those who stand when the disqualification was not so removed as against those who may have kept themselves back because the disability was not removed
That might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws
Regard being had to the legislative practice in this country and in the absence of a clear prohibition either express or implied we are satisfied that the Act cannot be declared ineffective in its retrospective operation
The result therefore is that while we hold that Mrs Kathuria held an office of profit under the State Government we hold further that this disqualification stood removed by the retrospective operation of the Act under discussion
As regards the supplementary point that the petition was bad for non joinder of Mr Mathura Das Mathur against whom cor rupt practices were alleged in the petition we are of opinion that section 82 of the Representation of People Act 1951 in its clause b speaks of candidates at the same election and not persons who are candidates at other elections
As Mr Mathur was a candidate from another constituency he need not have been made a party here
For the above reasons we would allow the appeal but make no order about costs since the election of the appellant is saved 844 by a retrospective law passed after the decision of the High Court
Sikri J
This appeal arises out of an election petition filed under section 80 of the Representation of the People Act 1951 hereinafter referred to as the 1951 Act by Shri Manik Chand Surana a defeated candidate challenging the election of Smt
Kanta Kathuria before the High Court
The High Court Jagat Narayan J allowed the election petition on the ground that the appellant held an office of profit within the meaning of article 191 of the Constitution on the day on which she filed the nomination paper and was thus disqualified for being chosen as a member of the Rajasthan Legislative Assembly
This judgment was given on August 12 1968
An appeal was filed in this Court on August 20 1968
During the pendency of the appeal the Rajasthan Legislative Assembly Members Prevention of Disqualification Act 1969 Act No 5 of 1969 hereinafter referred to as the impugned Act was passed which received the assent of the Governor on April 4 1969
The impugned Act inter alia provides  2 Prevention of disqualification of membership of the State Legislative Assembly
i It is hereby declared that none of the following offices in so far as it is an office of profit under the State Government shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as or for being a member of the Rajasthan Legislative Assembly namely  a the office of a Government Pleader or Special Government Pleader or Advocate for the Government appointed specially to conduct any particular suit case or other proceeding by or against the State Government before any court tribunal arbitrator or other authority b the office of a Government Pleader a Special Government Pleader or Advocate for the State Government appointed specially to assist the Advocate General Government Advocate or Pleader or Special Government Pleader or Advocate for Government in any particular suit case or other proceeding by or against the State Government before any court tribunal arbitrator or other authority 845 2 Notwithstanding any judgment or order of any Court or Tribunal the aforesaid offices shall not disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as or for being members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as a member of the Rajasthan Legislative Assembly
 We may note another fact on which an argument is sought to be made by the learned Counsel for the appellant
It was alleged in the election petition that the appellant was a close friend of one Shri Mathura Dass Mathur who was a Minister in the Slate of Rajasthan at the time of the election who contested elections as a candidate in a constituency different from that of the appellant
Shri Mathur visited the constituency during the election very frequently and during these visits the appellant accompanied by Shri Mathur visited several places in the Constituency where
Shri Mathur in the presence of the appellant offered and promised to get several works done in those areas if the electors were to cast votes for the appellant at  the said election
In spite of these allegations of corrupt practice Shri Mathur was not made a party to the petition
The learned Counsel for the appellant Mr Gupte contends that the High Court erred in holding that the appellant held an office of profit within the meaning of article 191 of the Constitution
In the alternative he contends that the Rajasthan Act No 5 of 1969 is retrospective and the disqualification if it existed cannot now be deemed to have existed because of this Act
The last point raised by him is that the petition was not in accordance with law as the respondent Shri Surana had not impleaded Shri Mathur as respondent to the petition
The facts relevant for appreciating the first point are these The appellant was an advocate at all material times
Disputes arose between Ms Modern Construction Company Private Ltd and the State of Rajasthan in connection with some works relating to the Rana Pratain Sagar Dam
These disputes were referred to arbitration
Shri Murli Manohar Vyas Government Advocate in the High Court of Rajasthan at Jodhpur was appointed by the Government to represent it in these arbitration proceedings
The Government Advocate wanted one more advocate to assist him
On his suggestion Shri Manak Lal Mathur advocate was appointed to assist the Government Advocate
As there was a possibility that Shri Manak Lal Mathur may not be available to 846 help the Government Advocate the appellant was on the suggestion of the Government Advocate appointed to assist him in the absence of Shri Mathur
proposal was approved by the Rajasthan Law Minister on March 30 1965 and on June 26 1965 and the Government issued the following order  Sub  Construction of RPS Main Dam Con tract of Ms MCC PVT Ltd Arbitration in dispute arising out of In pursuance of rule 8 b of Order XXVII of the First Schedule to the Code of Civil Procedure 1908 read with clause 7 of section 2 of the Code the Governor is pleased to appoint Smt
Kanta Kathuria Advocate Bikaner as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan along with Shri Manohar Vyas Government Advocate Jodhpur
 Later on Sept 3 1965 the Government laid down the fees payab le to the appellant
It was stated in the order dated Sept 3 1965 that Smt
Kanta Kathuria who has been appointed to assist the Government advocate in the absence of Shri Mathur will get her share of fee in proportion to the assistance rendered by her out of the daily fee of Rs 150 to Shri Manak Lal Mathur As Shri Manak Lal Mathur was not able to appear in the case on Nov 18 1965 the Governor sanctioned the payment of daily fee of Rs 1501 to the appellant instead of Shri Manak Lal Mathur for days of actual hearing
The appellant appeared from March 27 1965 to November 28 1966 but she did not appear from Nov 29 1966 to Feb 25 1967
She again started appearing in the case from February 26 1967
The appellant claimed travelling allowance incidental charges and daily allowance but the Government decided that the appellant was not entitled to any travelling allowance or daily allowance in addition to the fees
By a notification the Election Commission of India called upon the electors of the Kolayat Assembly Constituency of the Rajasthan Legislative Assembly to elect a member to the Rajasthan Legislative Assembly and invited nomination papers for the elections to be held on February 18 1967
The appellant was declared duly elected by the Returning officer on February 22 1967 the appellant having secured 11926 and the respondent having secured 8311 votes
847 The relevant portion of article 191 reads as follows 191
1 A person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State a if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder e if he is so disqualified by or under any law made by Parliament
2 For the purposes of this article a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State
It seems to us that the High Court erred in holding that the appellant held an office
There is no doubt that if her engagement as Special Government Pleader amounted to appointment to an office it would be an office of profit under the State Government of Rajasthan
The word office  has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context
It seems to us that the words its holder  occurring in article 191 1  a indicate that there must be an office which exists independently of the holder of the office
Further the very fact that the Legislature of the State has been authorised by article 191 to declare an office of profit not to disqualify its holder contemplates existence of an office apart from its holder
In other words the Legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified
It seems to us that in the context Justice Rowlatt s definition in Great Western Railway Company vs Baterl is the appropriate meaning to be applied to the word office  in article 191 of the Constitution
Justice Rowlatt observed at page 235 Now it is argued and to my mind argued most forcibly that shows that what those who use the 1 8 Tax Cases 231 848 language of the Act of 1842 meant when they spoke of an office or an employment was an office or employment which was a subsisting permanent substantive position which had an existence independent from the person who filled it which went on and was filled in succession by successive holders and if you merely had a man who was engaged on whatever terms to do duties which were assigned to him his employment to do those duties did not create an office to which those duties were attached
He merely was employed to do certain things and that is an end of it and if there was no office or employment existing in the case as a thing the so called office or employment was merely an aggregate of the activities of the particular man for the time being
And I think myself that is sound
I am not going to decide that because I think I ought not to in the state of the authorities but my own view is that the people in 1842 who used this language meant by an office a substantive thing that existed apart from the holder
 This definition was approved by Lord Atkinson at page 246
This language was accepted as generally sufficient by Lord Atkin and Lord Wright in McMillan vs Guest HM Inspector of Taxes 1
Lord Atkin observed at page 201  There is no statutory definition of office 
Without adopting the sentence as a complete definition one may treat the following expression of Rowlatt J in Great Western Railway Co vs Baler 1920 3 KB at page 274 adopted by Lord Atkinson in that case 1922 2 AC at page 15 as a generally sufficient statement of the meaning of the word  an office or employment which was a subsisting permanent substantive position which had an existence independent of the person who filed it which went on and was filled in succession by successive holders
 Lord Wright at page 202 observed The word office  is of indefinite content its various meanings cover four columns of the New English Dictionary but I take as the most relevant for purposes of this case the following  A position or place to which less public character
This I think rough corresponds with such approaches to a definition as have 1 24 Tax Cases 190
849 been attempted in the authorities in particular Great Western Railway Co vs Abater 1922 2 AC I where the legal construction of these words which had been in Schedule E since 1803 43 Geo 111 c 122 Section 175 was discussed
 In Mahadeo vs Shantibhai  Ors1 Mitter J speaking for this Court quoted with approval the definition of Lord Wright
In our view there is no essential difference between the definitions given by Lord Wright and Lord Atkin
The Court of Appeal in the case of Mitchell vs Ross2 thought that both the noble and learned Lords had accepted the language employed by Rowlatt J as generally sufficient
In Mahadeo s case1 this Court was dealing with a panel of lawyers maintained by the Railway Administration and the lawyers were expected to watch cases
Clause 13 of the terms in that case read as follows  You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJB and give timely intimation of the same to this office
If no instructions regarding any particular case are received by you you will be expected to appear in the court and obtain an adjournment to save the ex parte proceedings against this Railway in the court
You will be paid Rs 51 for every such adjournment if you are not entrusted with the conduct of the suit later on That case in no way militates against the view which we have taken in this case
That case is more like the case of a standing Counsel disqualified by the House of Commons
It is stated in Rogers on Elections Vol
1 at page 10  However in the Cambridge case 121 Journ
220 in 1866 the return of Mr Forsyth was avoided on the ground that he held a new office of profit under the Crown within the 24th section
In the scheme submitted to and approved by Her Majesty in Council was inserted the office of standing counsel with a certain yearly payment in the scheme called salary  affixed to it which Mr Forsyth received in addition to the usual fees of counsel
The Committee avoided the return
It is urged that there can be no doubt that the Government Pleader holds an office and there is no reason why a person who assists him in the case should also not be treated as a holder of 1 2 850 office specially as the notification appointed the appellant as Special Government Pleader
We see no force in these conten tions
Rule 8B of Order 27 CP Code reads as follows 7 In this Order unless otherwise expressly provided Government  and Government leader  mean respectively a in relation to any suit by or against the Central Government or against a public officer in the service of that Government the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order c in relation to any suit by or against a State Government or against a public officer in the service of a State the State Government and the Government pleader as defined in Clause 7 of Section 2 or such other pleader as the State Government may appoint whether generally or specially for the purposes of this Order This rule defines who shall be deemed to be a Government Pleader for the purpose of the Order Government Pleader  is defined in Sec 2 of Clause 7 CP Code thus 7 Government Pleader  includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader  It follows from reading Order 27 rule 8B and Clause 7 of Sec
2 CP Code together that even if a pleader who is acting under the directions of the Government Pleader would be deemed to be a Government Pleader for the purpose of Order 27
Therefore no particular significance can be attached to the notifica tion made under rule 8B appointing the appellant as Special Government Pleader
We cannot visualise an office coming into existence every time a pleader is asked by the Government to appear in a case on its behalf
The notification of his name under rule 8B does not amount to the
creation of an Office 
Some reliance was also placed on rule 4 of Order 27 CP Code which provides that The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving 851 processes against the Government issued by such Court
 This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case
Assuming it applies it only means that processes could be served on the appellant but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules 1966
This does not mean that an Advocate on Record would hold an office under the client
The learned Counsel for the respondent Mr Chagla urges that we should keep in view the fact that the object under lying article 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object
It is not necessary to give a wide meaning to the word office because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly it can make that pro vision under article 191 1 e of the Constitution
The case of Sakhawat Ali vs The State of Orissa1 provides an instance where the Legislature provided that a paid legal practitioner should not stand in the municipal elections
In view of the above reasons we must hold that the appellant was not disqualified for election under article 191 of the Constitution
But assuming that she held an office of profit this disqualification has been removed retrospectively by the Rajasthan Legislative Assembly by enacting the impugned Act
Mr Chagla learned Counsel for the respondent contends that the Rajasthan State Legislature was not competent to declare retrospectively  under article 191 1 a of the Constitution
It seems to us that there is no force in this contention
It has been held in numerous cases by this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of the Constitution
Apart from the question of fundamental rights no express restriction has been placed on the power of the Legislature of the State and we are unable to imply in the context any restriction
Practice of the British Parliament does not oblige us to place any implied restriction
We notice that the British Parliament in one case validated the election  Erskine May s Treatise on the Law Privileges Proceedings  Usage of Parliament Seventeenth 1964 Edition After the general election of 1945 it was found that the persons elected for the Coatbridge Division of 1 SupCI 9 852 Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control Scotland Act 1943 which entitled them to a small fee in respect of attendance at a Tribunal
A Select Committee reported that the disqualification was incurred inadvertently and in accordance with their recommendation the Coatbridge and Springburn Elections Validation Bill was introduced to validate the irregular elections HC Deb
1945 46 414 c 564 6
See also HC 31945 46 ibid
71 1945 46 and ibid92 1945 46
 We have also noticed two earlier instances of retrospective legislation ea The House of Commons Disqualification 1813 Halsbury Statutes of England p 467 and Sec
2 of the Re election of Ministers Act 1919 ibid
p 515
Great t stress was laid on the word declared  in article 1911 a but we are unable to imply any limitation on the powers of the Legislature from this word
Declaration can be made effective as from an earlier date
The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature
It is also urged that by enacting the impugned Act the State Legislature has amended the 1951 Act
We are unable to appreciate this contention
The State Legislature has exercised its powers under article 191 to declare a certain office not to have ever disqualified its holder
The impugned Act does not amend or alter the 1951 Act in any respect whatsoever
It is said that under the 1951 Act as it existed before the impugned Act was passed the appellant was not qualified to be chosen for this particular election
By enacting the impugned Act the appellant s disqualification has been removed and the 1951 Act is so to say made to speak with another voice
But that is what the State Legislature is entitled to do as long as it does not touch the wording of the 1951 Act
The answer given by the 1951 Act may be different but this is because the facts on which it operates have by valid law been given a different garb
It is further urged that the impugned Act violates article 14 of the Constitution because the Central Government might have appointed Government Pleaders under rule 8B of Order 27 and the impugned Act nowhere mentions the alleged offices held by 853 them
No material has been placed to show that any such offices exist
We cannot therefore entertain this point
In view of the above reasons We are of the opinion that the impugned Act is valid and removes the disqualification if it existed before
There is force in the third point raised by the learned counsel for the appellant
Section 82 of the Representation of the People Act 1 of 1951 reads as follows 81
A petitioner shall join as respondents to his petition a where the petitioner in addition to claiming a declaration that the election of all or any of the returned candidates is void claims a further declaration that be himself or any other candidate has been duly elected
all the contesting candidates other than the petitioner and where no such further declaration is claimed all the returned candidates and b any other candidate against whom allegations of any corrupt practice are made in the petition
In this context the words any other candidate  plainly mean a candidate in the election for the constituency which is the subject matter of the petition
In the result the appeal is allowed the judgment of the High Court set aside and the petition dismissed
In the circumstances of the case the parties will bear their own costs throughout
VPS Appeal allowed


Summary:
Disputes between the State of Rajasthan and a company were referred to arbitration and the Government Advocate was appointed to represent the State
Another advocate was appointed to assist the Government Advocate but as the advocate was table to appear the appellant was no appointed under 027 r 8B of the Civil Procedure Code as Special Government Pleader
The appellant then stood for election to the State Legislative Assembly and was declared elected
The election was challenged and one of the grounds of challenge was that the appellant held an office of profit within the meaning of article 191 of the Constitution
The High Court set aside the election
While the appeal was pending in this Court Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of a Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly and by section 22 the Act was made retrospective removing the appellant s disqualification retrospectively
On the questions  1 Whether the appellant was holding an office of profit and hence was disqualified 2 Whether the disqualification was removed by Act 5 of 1969 and 3 Whether the election petition was in accordance with law because another candidate from another constituency again t whom corrupt practices were alleged was not impleaded as a party HELD  1 Per Sikri Ray and Jaganmohan Reddy JJ  The appellant was not holding an office of profit
a Before a person becomes subject to the disqualification in article 1911 there must be an office which exists independently of his being the holder of the office
The word office  means an office or employment which was a subsisting permanent substantive position which had an existence independent of the person who filled it which went on and was filled in succession by successive holders but if a person was engaged on whatever terms to do the duties which were assigned to him his employment to do those duties did not create an office to which those duties were attached
Hence an office does not come into existence every time a pleader is asked by the Government to appeal in a case on its behalf
A B 850 G H
Cl70 8 836 b A reading of section 27 and 027 r 8B of the Civil Procedure Code A shows that even an advocate who is
acting under the directions of the Government Pleader could be deemed to be a Government Pleader
Therefore the notification of the appellant s name under r 8B as Special Government Pleader did not amount to the creation of an office
850 F G c Assuming that a Government Pleader is an agent of the Government for purposes of receiving processes against the Government the fact that processes could be served on an advocate would not mean that the advocate was holding an office under his client
851 A B d It is not necessary to give a wider meaning to the word office  because if Parliament thinks that a legalpractitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a member of the Legislative Assembly it can make that provision under article 191 1 e of the Constitution
851 C D Great Western Railway Co vs Bater 8 Tax Cases 231 and McMillan vs Guest H M Inspector of Taxes 24 Tax Cases 190 applied
Mahadeo vs Shantibhai  Ors
19692 SCR 422 distinguished
Sakhawat Ali vs State of Orissa  referred to
Per Hidayatullah CJ and Mitter J dissenting  The High Court was right in holding that the appellant held an office of profit
842 C It was not a case of the appellant merely being briefed as a lawyer and given the Government litigation
On the other hand an office that of Special Government Pleader was created and since the office of a Government Pleader is an office of profit the office of Special Government Pleader will equally be an office of profit
It was an office which could be successively held it was independent of its holder it was a substantive position and as permanent as other supernumerary offices
841 FG 842B Mahadeo vs Shantibhai  Ors
and The Statesman P Ltd vs H R Deb  Ors  applied
McMillan vs Guest and Great Western Railway Co vs Bater 8 Tax Cases 231 235 referred to
2 By Full Court  The Act 5 of 1969 has removed the disqualification retrospectively
Per Hidayatullah CJ and Mitter J  It is well recognised that Parliament and the Legislature of a State can make their laws operate retrospectively subject to limitations if any in the Constitution
Any law that can be made prospectively may be made with retrospective operation except those which cannot operate retroactively
In article 191 itself power is reserved to the State Legislature to make a declaration that the holder of an office shall not be disqualified and there is nothing in the words of the Article to indicate that such a declaration cannot be made with retrospective effect therefore whatever may be the propriety of such legislation regard being had to legislative practice and the absence of a clear prohibition express or implied
the Act must be declared to have retrospective effect
843 B C D F 837 Per Sikri Ray and Jaganmohan Reddy JJ  Parliament and the State legislatures can legislate retrospectively subject to the provisions of the Constitution
No limitation on the powers of the Legislature to make a declaration validating an election effective from an earlier date is expressly stated nor could it be implied in article 1911 851 F G 852 D E The apprehension that it may not be a healthy practice and might be abused is no ground for limiting the powers of the State Legislature
852 B The impugned Act does not amend or alter the Representation of the People Act 1951 in any respect whatsoever
By enacting the impugned Act the disqualification if any which existed in the 1951 Act has been removed but that is what the State Legislature is entitled to do under article 191 so long as it does not touch the wording of the 1951 Act
852 F G 3 By Full Court  The words any other candidate  in section 82b of the Representation of the People Act 1951 who should be impleaded refers to a candidate in the election for the constituency which is the subject matter of the petition and not to a candidate from another constituency
843 G H 853 D E