ivil Appeal No 1832 of 1967
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated October 31 1967 of the Madhya Pradesh High Court Indore Bench in Election Petition No 40 of 1967
SV Gupte Rarneshwar Nath Mahinder Narainand Ravinder Nath for the appellant
Sarjoo Prasad and DN Misra for respondent No 1
The Judgment of the Court was delivered by Mitter J
This is an appeal from a judgment of the Madhya Pradesh High Court by a returned candidate at an election to Madhya Pradesh Legislative Assembly from Ujjain North Constituency held in February 1967 declaring the election of the appellant void under section 98 of the Representation of the People Act hereinafter referred to as the Act
There was no less than eight candidates at the said election five of whom polled very few votes
The result of the election so far as the other three were concerned was as follows 1
Mahadev Govind Joshi the returned candidate secured 23709 votes 2
Mrs Hansaban Patel polled 10767  3
Shri Bansidhar Azad polled 7093 
The election petition was filed by the husband of the 2nd respondent Mrs Hansaben Patel
In the petition numerous grounds were taken
for declaring the election of the appellant void under 424 the Act and no less than five issues with different sub heads were flamed by the court on August 31 1967 but at the final stage the hearing only the first issue was canvassed
The said issue reads as follows 1 a Was the respondent No 1 holding one or more of the three following offices of profit  i his being included in the panel of lawyers prepared by the Central and Western Railway Administration ii his holding the post of the president member of a tribunal constituted under section 73 of the MP Town Improvement Trusts Act 1960 iii his holding the office of Professor of law in the Madhav College Ujjain on regular salary of Rs 250 pm b If so its effect  Before the trial Judge a number of documents were exhibited and some witnesses were examined
The learned trial Judge was of opinion that the appellant the successful candidate held an office of profit under Government being on the panel of lawyers prepared by the Central and Western Railway Administration and having been at the material time a Professor of Law in the Madhav College on a regular salary of Rs 250 per month but he was not prepared to hold on the material before him that the appellant held the post of the President member of a Tribunal constituted under section 73 of the Madhya Pradesh Town Improvement Trust Act 1960
The first alleged disqualification is based on a letter of appointment dated February 6 1962 addressed by the Chief Commercial Superintendent to the appellant who accepted the conditions and terms of that letter by his reply within a few days thereafter
The letter of the Commercial Superintendent  shows that the appellant s name
was kept on the panel of Railway Pleaders for conducting suits filed against the Union of India in the courts of Ujjain on the terms and conditions therein mentioned
It is not necessary to recapitulate the terms excepting three or four to be mentioned presently
The first term showed that the appellant was ordinarily to be entrusted with cases up to valuation of rupees three thousand only
The ninth term imposed a condition on the appellant that he would not  accept any briefs against
any Railway in any court
Clause 13 of the terms is really the most important one for our present purposes and reads as follows  You will be expected to watch cases coming up for hearing against this Railway in the various courts at 425 UJB and give timely intimation of the same to this office
H no instructions regarding any particular case are received by you will be expected to appear in the court and obtain an adjournment to save the exparte proceedings against this Railway in the court
You will be paid Rs 5 for every such adjournment if you are not entrusted with the conduct of the suit later On
 The other terms deal mostly with the fees and the expenses to which the appellant would be entitled if he accepted the engagement
The question before us is whether by accepting the engagement the appellant could be said to have held an office of profit
The word office  according to Webster s New World Dictionary means inter alia a function or duty assigned to someone specially as an essential part of his work or position a position of authority or trust especially in a Government Corporation etc According to Jowitt s Law Dictionary it means the right and duty to exercise an employment such as an office of a trustee executor guardian director Sheriff Judge etc  The expression office of profit  finds a place in an old English Act namely the Act of Settlement 1701 section 3 of which provided that no person having an office or place of profit under the Crown could be a member of the House of Commons
 The meaning of the expression came up for consideration by this Court in a recent case
The Statesman Private Ltd vs
HR Deb and othersx decided on April 2 1968
There a question arose as to whether the respondent HR Deb was qualified to hold a judicial office in India in terms of section 7 3 of the Industrial Disputes Act
Under that provision a person shall not be qualified for appointment as the presiding officer of a Labour Court unless inter alia d he has held any judicial office in India for not less than seven years
The facts relating to the career of Mr Deb as found by this Court were as follows
He was first appointed in 1940 as a Sub Deputy Collector and was vested with powers of a Third Class Magistrate
Thereafter he was vested with powers of a Second Class Magistrate and after a year or so with those of a First Class Magistrate
There seems to have been some difference of opinion between the Judges of the High Court on the point as to whether Mr Deb held a judicial office or whether he merely discharged certain judicial functions
According to the judgment of this Court delivered by the learned Chief Justice the dispute therefore really reduces itself to this Does the Magistrate hold  an office An office means no more than a position to which certain duties are attached
 The learned Chief Justice also referred to the Judicial Officers Protection Act which 1  3 Sup
CI69 10 426 was enacted to protect not only Civil Judges but also Magistrates and observed that office means a fixed position for performance of duties
 We may also refer to certain observations of the House of Lords in the case of Mcmillan vs Guest1
There LOrd Wright in delivering his opinion said 1 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 certain duties are attached especially one of a more or less public character
 This was a case arising out of assessment under the Income tax Act
The appellant was a director of A Wander Ld a private company which was resident and controlled in the United Kingdom
He was appointed a director by the articles of association and had no contract of service with the company
Since 1919 he had been resident in the United States of America and in 1938 he became a naturalized American citizen
He had gone over to America to take over the management of a company in Chicago allied to the predecessors of A Wander Ld for whom he opened a Canadian office and concerned himself in the administrative and selling organization there
Copies of minutesannual balance sheets etc
were regularly sent to the appellant in America but he attended no board meetings in England except one in 1931 and only one in Chicago in 1925
He was not required to attend board meetings of the English company and notices of such meetings were not sent to him
The question before the House of Lords was whether he held an office within the UK for the purposes of rule 6 of the Rules applicable to Sch
E to the Income Tax Act 1918 and the House of Lords was of the view that he held an office and dismissed his appeal
If by office is meant the right and duty to exercise an employment or a position to which certain duties are attached as observed by this Court it is difficult to see why the engagement of the appellant in
this case under the letter of February 6 1962 would not amount to the appellant s holding an office
By the said letter he accepted certain obligations and was required to discharge certain duties
He was not free to take a brief against the Railway Administration
Whether or not the Railway Administration thought it proper to entrust any particular case or litigation pending in the court to him it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent
Even if no instructions regarding any particular case were given to him he was expected 1 427 to appear in court and obtain an adjournment
In effect this cast a duty on him to appear m court and obtain an adjournment so as to protect me interests of the Railway
The duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the panel of Railway lawyers so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render service to the Railway
In the absence of the above he was bound by the terms the engagement to watch the interests of the Railway Administration give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had made no arrangement for representation
It is true that he would get a sum of money only he appeared but the possibility that the Railway might not engage him is a matter of no moment
An office of profit really means an office in respect of which a profit may accrue
It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount profit irrespective of the duties discharged by him
Learned counsel for the appellant argued that the appellant was not a salaried employee of the Railway
He was not even bound to act for the Railways and if he thought it proper to accept a brief against the railway the Railway Administration could only take steps against him for breach of professional etiquette and nothing more
According to counsel he could only get remuneration in case he thought it proper to act on the terms of the letter and appeared in any case to support the cause of the Railway
In our view although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement that would not detract from the position that he was in duty bound to work the Railway Administration and see that its causes did not suffer by default
So long as the engagement was not put an end to he was holding an office of profit in the Railway Administration and as such was disqualified for being elected to the Legislative Assembly of Madhya Pradesh
The question as to whether the appellant was holding an office of profit under the Government of Madhya Pradesh as a Professor of Law in the Madhav College Ujjain is not altogether free from difficulty
This college was at first one owned and managed by the Government
In 1950 the appellant was invited by the Principal of the College to come and work as a lecturer
He did so for some time and his work was purely on the basis of an arrangement between himself and the Principal
In July 952 the Principal wrote to the Education Department that the appellant should be formally appointed
Thereupon the Deputy Secretary Education Department wrote to the Director of Edu 428 cation on April 7 1952 conveying sanction of the Rajpramukh to the appellant s appointment on one year s probation as a part time Professor of Law in Madhav College on a fixed salary of Rs 250 per month with effect from the date he assumed his duties in a temporary capacity that is to say August 1 1951
The appellant was employed only as a part time lecturer without increment or Provident Fund benefits
His appointment was never confirmed by any letter
It is however the common case of the parties that he continued to act as a lecturer in Law in Madhav College till July 1967
Up to March 1959 the College was not only a Government owned institution but one which was being managed from day to day directly by its Education Department
In 1959 there were certain changes in the management of the institution but without the Government relinquishing ownership or ultimate control
As a matter of fact
an agreement was entered into on March 16 1959 between the Governor of Madhya Pradesh and Vikram University Ujjain a body corporate formed under section 3 of the Madhya Bharat Vikram University Act 1955 regarding certain terms under which the Governor had offered to transfer to the University the management of the Madhav College together with its buildings and premises etc
for a period of five years in the first instance commencing from the 1st of April 1959 and ending on the 31st March 1964
The agreement also recorded that the University was to be in charge of the management for the said period subject to the terms and conditions therein mentioned
Under cl
15 of the said terms and conditions the existing members of the staff and other servants of the said college shall be treated as being on deputation to the University during its period of management and shall be deemed to have been deputed on the usual foreign service conditions retaining their lien in the State Educational Service
The University shall be liable to make payment of salaries and other allowances except the deputation allowance to the members of the staff and other servants of the said college in employment at the date of its transfer
 Under cl
16 the University shall be entitled to make fresh appointments in regard to the staff and other servants for the said college and on the University informing the Governor in this behalf the Governor shall take back within a period of three months from the date of receiving information from the University in the State Government s service the members of the existing staff and other servants belonging to the said college at the time of execution of this agreement
 On March 31 1964 a telegram was sent to the Vice Chancellor Vikram University recording that pending Government decision on Sen Committee Report existing arrangement regarding Madhav College may continue on the same terms till 30th of June 1964
 There is a further letter dated July 17 1964 showing that the Government had decided to
transfer the management of the 429 College and a regular transfer deed was in the course of preparation but actually there is nothing to show that a transfer deed was executed as contemplated
The position became complicated by reason of the fact that as a Government servant under the Fundamental Rules in force at the time of his appointment the appellant could continue in service only till he attained the age of 55
The age of superannuation was later increased to 58
But even on this basis the appellant had attained the age of 58 on June 30 1964 and would be deemed to have retired from Government service unless a special order to continue him in service was made
No such order was as a matter of fact made
Under the Rules of the University a teacher could be continued in service up to the age of sixty but not beyond with this qualification that if a teacher reached the age of sixty during the currency of an academic session he might be permitted to continue in service and retire at the end of the session
The letters which passed between the Vikram University on the one hand and the Government of Madhya Pradesh andor the appellant in this case on the other which form part of the record do not permit us to come to any conclusion as to the manner in which the employment of the appellant under the Government as a part time Professor of Law in Madhav College came to an end
On January 1 1965 the Under Secretary to the Government of Madhya Pradesh Education Department wrote a letter to the Principal of Madhav College asking for information as to whether the appellant a part time Professor of Law was confirmed in his existing post
The record does not include any reply to this letter
On May 22 1967 the Registrar of the University addressed a letter to the Principal Madhav College drawing his attention to the fact that in terms of el
5 of Schedule B of Statute 7 B of the University Calendar the appellant would retire on June 30 1967 as he had already attained the age of 60 years on 31st July 1966
The occasion for writing this letter is not quite clear unless it related to his election to the Legislative Assembly because by the last sentence of the letter the writer was asking the Principal as to whether the appellant had resigned from his post on his being elected as an MLA On July 4 1967 after the filing of the election petition the Registrar of Vikram University intimated to the appellant in writing that his services as part time Professor of Law would not be required with effect from the commencement of the academic session 1967 68 ie from Monday the 17th July 1967The letter went on to add Your tenure as part time Professor of Law in Madhav College Ujjain has therefore ceased with effect from June 30 1967
 By letter dated 31st July 1967 the Registrar of the University intimated the Secretary to the Government of Madhya Pradesh 430 Education Department that under instruction dated 31st March 1967 the University had been asked to maintain the status quo with respect to teachers transferred to the University until final terms and conditions of transfer were eftected and in the absence of any Government orders to the contrary the appellant also continued to remain in the service of the University
Finally the letter recorded that in terms of the rules of the University fixing 60 years as the age of superannuation for teachers the appellant had been informed that his services would not be required after 30th June 1967
It was during the hearing of the election petition that a letter dated 9th October 1967 came to be written by the Under Secretary to the Government of Madhya PradeshEducation Department to the Registrar Vikram University that the appellant had ceased to be in Government service with effect from 30th June 1964 in terms of the rule prescribing 58 years as the age of superannuation for Government servants
The last letter may legitimately be subject to a comment that efforts were being made to establish that the appellant had ceased to be in Government service after June 30 1964
It is all the more surprising that the letter of October 9 1967 should be written at such an opportune moment when more than two years before the Under Secretary was himself enquiring of the Principal as to whether the appellant had been confirmed in his existing post
Learned counsel for the appellant contended that after attaining the age of 58 the appellant must be treated as not in ernment service and as the University had the power to manage the affairs of the College in effect it retained him in exercise of its rights under the above mentioned rule but this would not make the appellant s emp1oyment one under the Government
On the other hand it was contended by learned counsel for the resportdent that we should ignore these deeming provisions of the Fundamental Rules and hold that
as a matter of fact the appellant had continued in service till 1967 notwithstanding the Fundamental Rules of the Madhya Pradesh Government and the rules of the University which permitted the termination of his service before February 1967 but which were never resorted to
For the purpose of this case it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force
The appellant was only a temporary Government servant
lie had never become permanent
lie really had no lien on the post
He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation
It was really for the Umversity
to ignore the fact
that he had been superannuatedin 1964 andcontinue him in service but that would be an 431 act of the University and not of the Government
There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition
The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City
The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of section 73 of the Madhya Pradesh Improvement Trusts Act 1960 for acquisition of land at Ujjain
President Shri MC Joshi Advocate Ujjain
Assessors
Shri Chand Narayan Rajdan Retired Traffic Superintendent Agar Light Railway Ujjain
The High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand
There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office
The finding of the High Court is that when the order was delivered at his house the appellant took it and did not inform anybody connected with the Trust or as for that matter the Government that the order had come to him by mistake and he was not M C Joshi as mentioned in the notification
The High Court gave the appellant what it terms the benefit of doubt on this alleged disqualification
But quite apart from the mistake as regards the name it is difficult to hold that the appellant held the office of profit as the President of the Tribunal
As noted already he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification
He had never taken charge of any office nor had he ever discharged any function with regard to the office
In the circumstances it would hardly be right to hold that he was holding an office of profit under the Government
On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case we do not feel called upon to disturb the finding
of the High Court
In the result the appeal fails and is dismissed with costs
RKPS Appeal dismissed


Summary:
The appellant s election to the MP Legislative Assembly in February 1957 was challenged by an election petition mainly on the allegation that he was disqualified from being a candidate as he held certain offices of profit under the Government
The trial Judge allowed the election petition holding that the appellant held an office of profit under the Government being on the panel of lawyers prepared by the Central and Western Railway Administration and having been at the material time a Professor of Law in a Government College on a regular salary of Rs 250 per month it was also held that on the material before the court it could not be said that the appellant held the post of the President Member of a Tribunal constituted under section 73 of the Madhya Pradesh Town Improvement Trust Act 1960
On appeal to this Court HELD Dismissing the appeal i By office is meant the right and duty to exercise an employment or a position to which certain duties are attached
The appellant held such an office by his enagagement on the basis of a letter of appointment dated February 6 1962 addressed to him by  the Chief Commercial Superintendent of the Railway and his reply thereto whereby he accepted certain obligations and was required to discharge
certain duties
lie was not free to take a brief against the Railway Administration
Whether or not the Railway Administration thought it proper to entrust any particular case to him it was his duty to watch all cases coming up fog hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent
Even if no instructions regarding any particular case were given to him he was expected to appear in court and obtain adjournment
In effect this cast a continuing duty on him to protect the interests of the Railway as long as his engagement continued
The fact that the appellant would be paid only if he appeared in a case and the possibility of the Railway s not engaging him was a matter of no moment
An office of profit realy means an office in respect of which a profit may accrue
It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him
426 F 427 C Although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting
an end to the engagement that would  not detract from the position that he was in duty bound to work for the Railway Administration and see that it causes did not suffer by default
So long as the engagement was not put an end to he was holding an office of profit in the Railway Adminis 423 tration and as such was disqualified for being elected to the Legislative Assembly of Madhya Pradesh
The Statesman Private Ltd vs
HR Deb and others   Mcmillan vs Guest 1942 Appeal Cases 561 referred to
427 E F ii Although it was not necessary for the purpose of the present case to express any final opinion on the point on the facts there was great force in the appellant s contention that he did not hold an office of profit by being a Professor of Law in a Government College on a salary of
Rs 250 per month
The Management of the College in question had been handed  over W the University The appellant was only a temporary Government servant
He had never become permanent nor had a lien on the post
He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the age of superannuation
No order was passed in respect of him at any time either by the Government or by the University until after the firing of the election petition
430 F 431 B iii On the facts it was difficult to hold that the appellant held the office of profit as the President of a Tribunal constituted under section 73 of the Madhya Pradesh Town Improvement Trust Act 1950
He had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification
He had never taken charge of any office nor had he ever discharged any function with regard to the office
431 G