1 Reportable INTHESUPREMECOURTOFINDIA CIVILAPPELLATEJURISDICTION CIVILAPPEALNO.1463OF2008 StateElectionCommissioner, Appellant(s) BiharPatna&others Versus JanakdhariPrasadandothers Respondent(s)
[ENTITY],CJI [ENTITY], the 1st respondent herein, was elected in the year 2001asamemberofPanchayatSamiti, Nagarnausa. On 13th February, 2004, the fifth respondent, [ENTITY], filed a petition before the State [ENTITY], Bihar (for short the Commission) contending,interalia,thattherespondentNo.1wasworking asanAssistantGovernmentPleaderinHilsa,subdivisionof District[ENTITY]and,therefore,hewasdisqualifiedtoholdthe postofmember,PanchayatSamitiinviewofSection139(l)(c) oftheBiharPanchayatRajAct,1993(forbrevity,theAct).
2. The [ENTITY], in order to decide the issue whether the 1st respondent was in service of the State GovernmentwithinthesweepofSection139(l)(c)oftheAct, referred to the appointment letter issued by the Law Department,GovernmentofBihar,videwhichtherespondent hereinwasappointedasanAdvocateinthepanelofAssistant GovernmentAdvocatesandthereafterobservedthatthesaid respondent was holding apostunder theState Government andwasreceivingfeesforthecasesconductedbyhimfrom the Government and hence, he would be deemed to be in service of the State. Being of this view, the [ENTITY] vide order dated 29.03.2004 disqualified the respondentunderSection139(l)(c)oftheActfromthepostof MemberinthePanchayatSamiti.
3. Aggrieved by this Order of the Commission, the 1 st respondent knocked at the doors of the High Court of JudicatureatPatnabypreferringaWritPetition(CWJC)No. 4322of2004underArticle226ofthe[ACT]ofIndiafor quashmentoftheorderoftheCommission.ThelearnedSingle Judge opined that the word service has not been defined undertheActandhence,itsmeaninghastobeascertainedin the context it is used and the context in which it is used denotes various classes or category of posts within it. The learnedSingleJudgefurtherobservedthatnohardandfast rulecanbelaidtoascertainastowhichcategoryofofficeshall comewithintheexpressionservice,forhostoffactorshave tobetakenintoconsiderationtodeterminesuchrelationship.
Hefurtherproceededtoobservethatnoneofthefactorsmay be conclusive and no single factor may be considered absolutelyessential.Eventually,hestated: Inmyopinion,forbringinganofficewithinthe expression 'service' of State Government there hastobearelationshipofMasterandServant, ageofenteringandretirement,scaleofpayor fixedremuneration,theConductandDiscipline Rulesandsuchotherfactors.Thepresenceof oneingredientortheothermaynotnecessarily bring a particular office within the expression 'service' in the context of disqualification but presenceofsomeortheotherisnecessaryfor thepurpose"
Thereafter,thelearnedSingleJudgeexaminedthenature of appointment of a Government pleader who is paid a retainershipasfeeanddifferentiatedbetweenthenatureof appointmentofanAssistantGovernmentPleaderfromthatof a Government Pleader and came to hold that so far as the AssistantGovernmentPleaderisconcerned,heisappointedto assisttheGovernmentPleaderandfortheprofessionalwork rendered,heispaidremunerationbutnotpaidanyretainer fee.HefurtherexpressedtheviewthataGovernmentPleader isnotentitledtoappearagainsttheStateGovernmentbutan AssistantGovernmentPleader,canappear,againsttheState Government inacase.TheAssistantGovernmentPleaderis basicallyanAdvocateontherolloftheStateBarCounciland besidesgivingprofessionaladvicetootherlitigantsbyvirtueof his/her engagement by the State Government, he/she also advises and represents the State Government in Courts of Law.TheappointmentoftheGovernmentPleaderisgoverned by the executive instruction which is a tenure appointment andheremainsalegalpractitionerforallpurposeandintent. That apart, the engagement of an advocate as an Assistant Government Pleader is a professional engagement and the relationship between the State and that of the Assistant GovernmentPleaderisthatofalawyerandclientandnotof MasterandServant.Thereisneitherminimumormaximum age limit for engagement of a person as an Assistant Government Pleader nor there is any age of retirement. AssistantGovernmentPleaderispaidfeesfortheprofessional work done by him and his remuneration is not fixed in a particulartimescale.Additionally,noDisciplineRulesgovern hisconductandheisboundbysameCodeofConductasany other lawyer. Considering all the aspects in a cumulative manner, he arrived at the conclusion that the Assistant Government Pleader cannot be said to be in service of the State Government soastobringhim withinthemischiefof Section139(l)(c)oftheAct.
4. Ontheissueofofficeofprofit,thelearnedSingleJudge observed that the expression "in service" of the State Government and the expression "office of profit" in State Governmentarenotsynonymousand,therefore,apersonmay hold an office of profit under the State but that does not amounttothefactthatheis"inservice"oftheState.Withthe aforesaidreasoning,hesetasidetheorderoftheCommission.
5. Aggrieved by the aforesaid view, the State [ENTITY]erfiledanappeal,[CASE NUMBER], beforeaDivisionBenchoftheHighCourt,whichconcurred with the view expressedby theSingleJudgeand dismissed the appeal vide impugned judgment and order dated 27.10.2005.Thesaiddismissalhasledtofilingofthepresent appealbyspecialleave.
6. CriticisingtheimpugnedjudgmentandorderoftheHigh Court, it is submitted by the learned counsel for the appellantsthatthe1strespondentwasappointedinrespectof a sanctioned post and, therefore, he is in service of the Governmentwhichwouldindubitablydisqualifyhimtoremain as a member. It is his further submission that the word service contextually is of wider import and it has to be conferred a purposive meaning so that the democracy is sustainedatthegroundlevelandtheelectedrepresentatives remainconnectedtotheirelectorate.
7. Despiteserviceofnotice,nonehasappearedonbehalfof therespondents.
8. Toappreciatethecontroversyathand,wemayreferto [SECTION] of the [ACT]. It reads as follows: "[SECTION] Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for being,amemberofaPanchayat xxxx xxxx xxxx
(b) ifheissodisqualifiedbyorunderany lawmadebytheLegislatureoftheState."
Article243F(1)(b)makesitquiteclearthatamemberof Panchayatshallstanddisqualifiedbyorunderanylawmade bytheLegislatureoftheState.The[ACT]ofIndiahas leftittothewisdomoftheStateLegislature.
9. TheLegislatureoftheStateofBiharhasenactedtheAct and [SECTION] of the Act stipulates that the persons disqualifiedshallceasetoholdtheoffice.Thesaidprovisionis asunder: "[SECTION]. Disqualification. (1) Notwithstandinganythingcontainedinthis Act, a person shall be disqualified for electionorafterelectionforholdingthepost asMukhia,memberoftheGramPanchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and memberofZilaParishad,ifsuchperson
(a) isnotcitizenofIndia;
(b) issodisqualifiedbyorunderanylaw forthetimebeinginforceforthepurposes ofelectionstothelegislatureoftheState:
Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attainedtheageoftwentyoneyears;
(c) is in the service of Central or State Governmentoranylocalauthority;
(d) is in service of any such institution receiving aids from Central or State governmentoranylocalauthority;
(e) has been adjudged by a competent courttobeofunsoundmind;
(f) hasbeendismissedfromtheserviceof Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment inthepublicservice;
(g) hasbeensentencedbyacriminalcourt whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behaviour under [SECTION] Procedure, 1973 (Act 2, 1974) and such sentence ororder nothaving subsequently beenreversed;
(h) hasunderanylawforthetimebeing inforcebecomeineligibletobeamemberof anylocalauthority;
(i) holds any salaried office or office of profitunderthePanchayat;
(j) has been found guilty of corrupt practices.
Providedthatonbeingfoundguiltyof corrupt practices,thedisqualification shall ceaseaftersixyearsofgeneralelection.
(2) [ENTITY] member of a Panchayat at any level has become subject to any of the disqualifications mentioned in subsection (1), the question shall be referred for the decision of such authority and in such manner as the Government may by law provide.
(3) If a person, who is chosen as a member of Panchayat, a Mukhia, a Sarpanch, is or becomes a member of the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council, or is or becomes a municipal councillor or a councillor of a Municipal Corporation or a memberofSanitaryBoardoramemberofa notifiedareacommitteeoramemberofany other Panchayat, Mukhia, Sarpanch, then within fifteen days from the date of commencement of the term of office of a member of Lok Sabha, Rajya Sabha, LegislativeAssembly,LegislativeCouncilor ofacouncilorofmunicipalityorMunicipal CorporationoramemberofSanitaryBoard or notifiedareacommitteeoramemberof other Panchayat or Mukhia or Sarpanch, his seat in the Panchayat shall become vacant unless he has previously resigned his seat in the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council, Municipality or the Municipal Corporation, Sanitary Board or the notified area committeeorofanysuchPanchayatasthe casemaybe."
Rule122oftheBiharPanchayatElectionRules,1995,as amendedin2002,empowerstheStateElectionCommissionto decidedisqualificationofanelectedmemberofaPanchayat.
ThesaidRulereadsasfollows: "Rule 122. Under provisions of [SECTION] of the [ACT], the State ElectionCommissionshall be the competent authority to decide whetheramemberofthePanchayatatany level has become subject to any of the disqualifications mentioned in [SECTION] of the Act. The matter of disqualification may be brought to the noticeoftheStateElectionCommissionin the form of a complaint, application or informationbyanypersonorauthority.The State [ENTITY] may also take suo moto cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affectedpartiesofbeingheard."
WehavereproducedtherelevantSectionandtheRuleto appreciatethecontroversyinentirety.
10. In the case at hand, we are concerned with [SECTION] of the Act. In [SECTION], there is a postulatethatapersonshallbedisqualifiedifsuchapersonis in the service of Central or State Government or any local authority.Section139(1)(d)laysdownadisqualificationifthe person is in service of such institution receiving aids from Central or State Government or any local authority. As is noticeable, the key word in both the provisions pertains to service.
11. [ENTITY],thelearnedsingleJudgehas drawn a distinction between office of profit and service under the Government. We think it apposite to restate the legalposition,thedistinctionbetweenthetwofacetsasabove and thereafter xray the provision, the legislative purpose behindthesameandthenatureofappointment.
12. A threeJudge Bench in [PRECEDENT], was dealing with the acceptance of nominationpapersoftheappellantonthegroundthathewas holding an office of profit under the Government at the relevanttimeashewastheChairmanofTalukDevelopment Committeeandwas,hence,disqualifiedforbeingchosenasa CouncillorunderSection14oftheMysoreTownMunicipalities Act,1951(forshort,1951Act).Theobjectionwasoverruled by the Returning Officer and eventually the appellant was declaredelected.Challengingtheelection,therespondentfiled an election petition before the concerned SubJudge who dismissedthepetitionopiningthattheelectedcandidatewas not holding an office of profit under the Government as [CASE NUMBER] contemplated by [SECTION] of the 1951 Act. The said judgment was reversed by the Division Bench of the High Court in an appeal and respondent was declared elected.
Section14(1)enumeratedvariousgroundsofdisqualification andoneofsuchgroundswasthatofapersonholdinganoffice ofprofitundertheGovernmentofIndiaortheGovernmentof anyStatespecifiedintheFirstSchedule. Itfurtherprovided thatifanypersoniselectedasacouncilorincontraventionof the provisions, his seat shall be deemed to be vacant. The Courtaddressedtotheissueofdisqualificationandposedthe question whether the appellant held an office of profit as providedforunderSection14(1)(A)(a)(iii)ofthe1951Act.The threeJudgeBenchexpressedthus: 12. Theplainmeaningoftheexpression seems to be that an office must be held underGovernmenttowhichanypay,salary, emoluments or allowance is attached. The wordprofitconnotestheideaofpecuniary gain.Ifthereisreallyagain,itsquantumor amount would not be material; but the amountofmoneyreceivablebyapersonin connectionwiththeofficeheholdsmaybe materialindecidingwhethertheofficereally carriesanyprofit. Analysingthefactsofthecaseindetail,theCourtruled: 12. From the facts stated above, we thinkitcanreasonablybeinferredthatthe feeofRs.6whichthenonofficialChairman is entitled to draw for each sitting of the committee,heattends,isnotmeanttobea payment by way ofremuneration or profit, butitisgiventohimasaconsolidatedfee fortheoutofpocketexpenseswhichhehas to incur for attending the meetings of the committee.Wedonotthinkthatitwasthe intention oftheGovernmentwhichcreated theseTalukDevelopmentCommitteeswhich were to be manned exclusively by non officials,thattheofficeoftheChairmanorof the members should carry any profit or remuneration. And,again: 13. it cannot be argued that even if a Chairman or a member of a Government committee works in a purely honorary capacity and there is no remuneration attached to the office, he will still be regardedasapersonholdingofficeofprofit inviewoftheprovisionsofthesection. After expressing the aforesaid view, the threeJudge BenchofthisCourtreversedthejudgmentoftheHighCourt.
13. In SakhawantAliv.StateofOrissa2, theissuearose whetherthenominationpaperswerecorrectlyrejectedbythe ElectionOfficeronthegroundthattheappellantthereinwas employedasalegalpractitioneragainsttheMunicipalityina caseunderSection198oftheBiharandOrissaMunicipalAct.
The candidate whose nomination paper was rejected moved theHighCourtunderArticle226ofthe[ACT]praying forawritororderofprohibitiontotheStateGovernmentand theElectionOfficerrestrainingthemfromholdingtheelection buttheHighCourtrejectedthesaidprayer.TheCourttook note of the fact that the [ACT] was passed by the State Legislature. [SECTION] of the said Act prescribedthedisqualificationofacandidateforelectionand itprovidedthatnopersonshallbequalifiedforelectiontoa seat inamunicipalityifsuchpersonisemployedasapaid legal practitioner on behalf of the municipality or as legal practitioneragainstthemunicipality.Acontentionwasraised beforetheHighCourtthatthepersonsoughttocontestthe electioncouldnotbedeclaredtobedisqualifiedasthesaidAct 2AIR1955SC166 hadcomeintooperationon15thApril,1951andconsequently, he could not have been disqualified from 15th March, 1951 whenhefiledthenominationpapers.The[ACT]Bench analysed [SECTION] of the said Act and opined that the disqualification was attracted regard being had to the subsection(5)ofSection1ofthesaidActthathadstipulated thatthesaidprovisioninexpresstermsprovidedthatafterthe ActhadreceivedtheassentoftheGovernorelectionscouldbe held under the Act but were only to take effect on the Act comingintoforce,whichmeantthecomingintoforceofthe Act in such area or areas on such date or dates which the State Government might appoint from time to time under Section1(3)oftheAct.Therewasthuscontemplationunder theveryprovisionsofSection1(5)totheholdingofelections undertheActinspiteofthefactthattheActhadnotcome intoforceinaparticulararea.TheCourtfurtherobserved: 11. The right of the appellant to practice theprofessionoflawguaranteedbyArticle [SECTION] cannot be said to have been violated, because in laying down the disqualification in [SECTION] of the Act the Legislature does not prevent him frompractisinghisprofessionoflawbutit onlylaysdownthatifhewantstostandas acandidateforelectionheshallnoteither beemployedasapaidlegalpractitioneron behalfofthemunicipalityoractasalegal practitioneragainstthemunicipality.There is no fundamental right in any person to stand as a candidate for election to the municipality. The only fundamental right whichisguaranteedisthatofpractisingany profession or carrying on any occupation, trade or business. There is no violation of the latter right in prescribing the disqualification of the type enacted in Section16(1)(ix)oftheAct.
14. A [ACT] Bench in Guru Gobinda Basu v.
Sankari Prasad Ghosal and others3 was dealing with an issuewhereintheappellantwasacharteredaccountantanda partner of firm of auditors carrying on business under the nameandstyleofacompanyandthesaidfirmactedasthe auditorofcertaincompaniesandcorporations.Theappellant carried with it the right to receive fees, remuneration as DirectoroftheWestBengalFinancialCorporation.TheCourt, analyzingArticle102(l)(a)ofthe[ACT]andconcurring withtheviewoftheHighCourtstatedthus: [CASE NUMBER] " We agree with the High Court that for holding an office of profit under the Government,oneneednotbeintheservice of Government and there need be no relationshipofmasterandservantbetween them., The [ACT] itself makes a distinctionbetween'theholderofanoffice of profit under the Government' and 'the holder of a post or service under the Government';seeArts.309and314.
15. The Court referred to the decision in [PRECEDENT] Inthesaidcase, the question arose beforea[ACT] Bench whether the returnedcandidatewasholdinganofficeofprofit,forhewas themanagerofaschoolrunbyacommitteeofmanagement formed under the provisions of [ACT] had the power of appointment and removal of the membersofthecommitteeofmanagement,asalsothepower to appoint the administrator in consultation with the committeeand,therefore,thereturnedcandidatewasunder
thecontrolandsupervisionoftheGovernmentandhence,he washoldinganofficeofprofitundertheGovernmentofIndia. 4AIR1958SC52 The Court repelled the submission by drawing a distinction betweentheholderofanofficeofprofitundertheGovernment andtheholderofanofficeofprofitundersomeotherauthority subjecttothecontrolofGovernment.TheCourtexpressedits opinionthus: No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India, but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because theCommitteeor themembersof the Committee are removeable by the GovernmentofIndiaortheCommitteecan make byelaws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the GovernmentofIndianorisremovablebythe Government ofIndia nor is hepaidoutof the revenues of India. The power of the Governmenttoappointapersontoanoffice ofprofitortocontinuehiminthatofficeor revoke his appointment at their discretion and payment from out of Government revenues are important factors in determiningwhetherthatpersonisholding an office of profit under the Government though payment from a source other than Government revenue is not always a decisivefactor.Buttheappointmentofthe appellantdoesnotcomewithinthistest. The aforesaid passage lucidly states what basically constitutesanofficeofprofit.
16. In[ENTITY]v.Shantibhaiandothers5,questionarose whetheralawyerhadincurreddisqualificationonaccountof holding an office of profit under the Government. The appellant was kept on the panel of Railway Pleaders for conductingsuitsfiledagainsttheUnionofIndiainthecourts ofUjjainonthetermsandconditionsthereinmentioned.One of the terms shows that the appellant was ordinarily to be entrustedwithcasesuptovaluationofrupeesthreethousand only.Anotherconditionwasthathewouldnotacceptanybrief againstanyRailwayinanycourt.Clause(13)ofthetermsof theappointmentletterreadasfollows: Youwillbeexpectedtowatchcasescoming 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 arereceivedbyyou,youwillbeexpectedto appear in the court and obtain an adjournment to save the ex parte [CASE NUMBER] proceedings against this Railway in the court.YouwillbepaidRs5foreverysuch adjournment ifyou arenot entrustedwith theconductofthesuitlateron.
17. TheCourtreferredtotheobservationsofHouseofLords in [PRECEDENT] wherein Lord [ENTITY], delivering the opinion,said: Thewordofficeisofindefinitecontent.Its variousmeaningscoverfourcolumnsofthe New English Dictionary, but I take as the mostrelevantforpurposesofthiscasethe following: A position or place to which certaindutiesareattached,especiallyone ofamoreorlesspubliccharacter. Eventually,theCourtexpressedtheview: Ifbyofficeismeanttherightanddutyto exercise an employment or a position to which certain duties are attached as observedbythisCourt,itisdifficulttosee whytheengagementoftheappellantinthis case under the letter of February 6, 1962 wouldnotamounttotheappellantsholding an office. By the said letter he accepted certain obligations and was required to dischargecertainduties.[ENTITY] take a brief against the Railway Administration.WhetherornottheRailway Administrationthoughtitpropertoentrust anyparticularcaseorlitigationpendingin thecourttohim,itwashisdutytowatchall cases coming up for hearing against the 6[1942]AC561 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 caseweregiventohim,hewasexpectedto appearincourtandobtainanadjournment. Ineffectthiscastadutyonhimtoappearin court and obtainanadjournmentsoasto protect the interests of the Railway. The dutyorobligationwasacontinuingoneso longastherailwaydidnotthinkitproperto removehisnamefromthepanelofRailway lawyersorsolongashedidnotintimateto theRailwayAdministrationthathedesired to be free from his obligation to render servicetotheRailway.Intheabsenceofthe above he was bound by the terms of the engagement to watch the interests of the Railway Administration, give them timely intimation of cases in which they were involvedandonhisowninitiativeapplyfor anadjournmentinproceedingsinwhichthe Railway had made no arrangement for representation.Itistruethathewouldgeta sumofmoneyonlyifheappearedbutthe possibility that the Railway might not engage him is amatter ofno moment. An office of profit really means an office in respect ofwhichaprofitmay accrue.Itis notnecessarythatitshouldbepossibleto predicate of a holder of an office of profit thathewasboundtogetacertainamount ofprofitirrespectiveofthedutiesdischarged byhim. Intheaforesaidjudgment,aswenotice,theCourtlaid emphasis on the terms of appointment and also on the conceptofaccrualofprofit.
18. [ENTITY].[ENTITY], the issue that arose for consideration was whether the appellantwasholdinganofficeofprofitwithinthemeaningof [SECTION] of the [ACT] or not. The appellant was appointedtoassisttheGovernmentAdvocateintheabsenceof any Assistant Counsel. The letter of appointment stipulated that the appellant was appointed as a Special Government PleadertoconducttheparticularcaseonbehalfoftheStateof RajasthanalongwithGovernmentAdvocate. TheGovernment laiddownthefeespayabletotheappellant.Inthesaidcase, the High Court opined that the appellant held an office of profit.[PRECEDENT] case and referringto[ENTITY](supra)opined: 7(1969)3SCC268 88TaxCases231,235 29. That caseinno way militatesagainst theviewwhichwehavetakeninthiscase. Thatcaseismorelikethecaseofastanding Counsel disqualified by the House of Commons. It is stated in [ENTITY] (on ElectionsVol.II)atp.10:
However, in the Cambridge case (121 Journ. 220), in 1866, the return of Mr Forsythwasavoidedonthegroundthathe heldanewofficeofprofitundertheCrown, within the 24th section. In the scheme submittedtoandapprovedbyHerMajesty in Council was inserted the office of standing counsel with a certain yearly payment (in the scheme called salary) affixedtoit,whichMrForsythreceived,in addition to the usual fees of counsel. The Committeeavoidedthereturn. Themajorityalsoreferredtothedecisionin[PRECEDENT](supra)whichdealtwithaninstancewherethelegislature hadprovidedthatthepaidlegalpractitionercouldnotstand in the municipal elections. Elucidating further,it hasbeen expressedthus: 36. Inviewoftheabovereasons,wemust holdthattheappellantwasnotdisqualified for election under [SECTION] of the [ACT]. But assuming that she held an office of profit,thisdisqualificationhas been removed retrospectively by the RajasthanLegislativeAssemblybyenacting theimpugnedAct.
19. A twoJudge Bench in Madhukar G.E. Pankakar v.
Jaswant Chobbildas Rajani and others9 wasdealing with theelectionofthePresidentofaMunicipalCouncilunderthe [ACT]. An unsuccessful candidate challenged the election of the returned candidate singularlyonthegroundthatthecandidatewasdisqualified underSection16(1)(g)ofthesaidMunicipalActinasmuchas onthedateofnominationhewasholdinganofficeofprofit undertheGovernment,ashewasthen,admittedlyworkingas a panel doctor appointed under the Employees State Insurance Scheme (ESI Scheme), a beneficial project contemplated by the [ACT].
Thereturnedcandidate,adoctor,wasadmittedlyonthedate offilingofnomination,functioningassuchbuthadresigned before actual polling took place. The Election Tribunal acceptedthestandoftheelectionpetitioneranddeclaredthe electionofthereturnedcandidatevoid.Itfurtherproceededto hold that the election petitioner, being the sole surviving candidate, was the President. Commenting on the election 9(1977)1SCC70 petitioninthebackdropoffacts,[ENTITY],J.,whopenned thejudgment,wrote: 6. It is plain democratic sense that the electoral process should ordinarily receive no judicialjoltexceptwherepollutionofpurityor contravention of legal mandates invite the courts jurisdiction to review the result and restore legality, legitimacy and respect for norms.Thefrequencyofforensicoverturningof pollverdictsinjectsinstabilityintotheelectoral system, kindles hopes in worsted candidates and induces postmortem discoveries of disqualificationsasadesperategambleinthe systemoffluctuatinglitigativefortunes.Thisis a caveat against overuse of the court as an antidote for a poll defeat. Of course, whereaclearbreachismadeout,thegunsof law shall go into action, and not retreat from theruleoflaw.
20. Inthesaidcase,Section16(1)(g)whichprovidedforoffice ofprofit,readthus: 16(l)(g): No person shall be qualified to become a Councillor whether by election, cooption or nomination, who is a subordinate officer or servant of Governmentoranylocalauthorityorholds anofficeofprofitunderGovernmentorany localauthority; It was contended before the Election Tribunal that the electedcandidatewasnotentitledtobecomeacouncilorashe heldanofficeofprofitundertheGovernment. Toappreciate theconceptofofficeofprofit,thisCourtreferredtoSection58 oftheESIAct,1948,ESISchemeandopinedthattheelected candidatealthoughwasaprivatedoctorandrunningaprivate clinic was also an insurance medical practitioner subject to the discipline, directions, obligations and control of the relevant officers appointed by the State Government in implementing the medical benefit scheme. His letter of appointmentreadthatbeingamedicalpractitionerappointed as such to provide medical benefit under the Act and to performsuchotherfunctionsasmaybeassignedtohim.
21. Wemaynotewithprofitthatinthesaidcase,[ENTITY], J. clarified the conflict between [ENTITY] (supra) and Srimati[ENTITY]Kathuria(supra)bystatingthus: 41. Judicial technology sometimes distinguishes,sometimesdemolishesearlier decisions;theartisfineanditsuseskilful. Boththecasesdealtwithadvocatesandwe havereferredtothemintheearlierresume of precedents. Even so, a closer look will disclosewhywefollowthelargerBench(as we are bound to, even if there is a plain conflict between the two cases). Justice [ENTITY] locus classicus in Great Western Rly. Co. (followed by this Court in many cases) helps us steer clear of logomachy about office especially since the New English Dictionary fills four columns. [ENTITY], J. rivetted attention on a subsisting, permanent, substantive position, which had an existence independent from the person who filled it, whichwentonandwasfilledinsuccession bysuccessiveholders.So,thefirststepis to enquire whether a permanent, substantive position, which had an existenceindependentfromthepersonwho filleditcanbepostulatedinthecaseofan insurancemedicalpractitioner.Bycontrast, is the post an ephemeral, ad hoc, provisional incumbency created, not independentlybutasalistorpanelelastic and expiring or expanding, distinguished from a thing that survives even when no person had been appointed for the time being? Thin partitions do their bounds divide, we agree, but the distinction, though delicate, is real. An office of insurance medical practitioner can be conjuredupifitexistsevenwherenodoctor sitsinthesaddleandhasdutiesattachedto itquaoffice.Wecannotequateitwiththe postofapeonorsecuritygunmanwhotoo hasdutiestoperformoraworkshopwhere governmentvehiclesarerepaired,oramilk vendorfromanapprovedlistwhosupplies milk to government hospitals. A panel of lawyersforlegalaidtothepoororabodyof doctorsenlistedforemergencyserviceinan epidemic outbreak charged with responsibilitiesandpaidbytheGovernment cannot be a pile of offices of profit. If this perspectivebecorrect, [ENTITY] and [ENTITY] fitintoalegalscheme.Intheformer,anad hoc Assistant Government Pleader with duties and remuneration was held to fall outside office of profit. It was a casual engagement, not exalted to a permanent position,occupiedprotempore by A or In B. [ENTITY], a permanent panel of lawyers maintainedbytheRailwayAdministration with special duties of a lasting nature constitutedtheofficesofprofitmorelike standingcounsel. [Emphasissupplied] We may hasten to say that we concur with the said harmonization as we find that it is founded on apposite reasoningandalsoinaccordwiththeprecedentsholdingthe viewasregardsofficeofprofit. Beitnoted,eventually,the Court ruled that the appellant therein a doctor functioning undertheESISchemewasnotholdinganofficeofprofit.
22. In [ENTITY] others10, a threeJudge Bench while dealing with the issue whether the respondent No. 1 was disqualified for being elected as a member of the House of People as he held an office of profit under the Government of Tripura within the meaning of [SECTION] of the [ACT], for on the 10(1985)1SCC151 relevantdatehewasanAccountantinchargeoftheAgartala Municipality. Afterreferringtomanyanauthority,theCourt ruledthatfordeterminationofthequestionwhetheraperson holds an office of profit under the Government, each case must be measured and judged in the light of the relevant provisions.TheCourtfurtheropined: 21. Local Authority as such or any other authority does not cease to become independententityseparatefromGovernment. Whether in a particular case it is so or not mustdependuponthefactsandcircumstances oftherelevantprovisions.Tomakeinallcases employees of Local Authorities subject to the controlofGovernment,holdersofofficeofprofit under the Government would be to obliterate the specific differentiation made under [SECTION] of the [ACT] and to extend disqualification under [SECTION] to an extent not warranted by the language of the article. Onthebasisoftheaforesaid,ultimatelythethreeJudge Bench recorded its finding that the first respondent did not holdanofficeofprofitundertheGovernmentofTripuraonthe dateoffilingofthenomination.
23. In [PRECEDENT], a threeJudge Bench, while dealing with the office of profit, opined that the expression "office of profit" has not been definedeitherinthe[ACT]orintheRepresentationof [ACT]. Anaylsing further, the Court proceeded to state thatincommonparlance,theexpression'profit'connotesan ideaofsomepecuniarygain.Ifthereisreallysomegain,its label'honorarium remuneration salary'isnotmaterial.
Itisthesubstanceandnottheformwhichmattersandeven the quantum or amount of "pecuniary gain" is not relevant.
Whatneedstobefoundoutiswhethertheamountofmoney receivable by the concerned person in connection with the officeheholds,givestohimsome"pecuniarygain",otherthan as'compensation'todefrayhisoutofpocketexpenses,which may have the possibility to bring that person under the influenceoftheexecutive,whichisconferringthatbenefiton him.Eventually,theCourtheldthat: The question whether a person holds an office of profit, as already noticed, is required to be interpreted in a realistic [CASE NUMBER] manner having regard to the facts and circumstances of each case and relevant statutory provisions. While 'a strict and narrow construction' may not be adopted which may have the effect of 'shutting off manyprominentandothereligiblepersons to contest the elections' but at the same time "in dealing with a statutory provision which imposes a disqualification on a citizen it would be unreasonable to take merelyabroadandgeneralviewandignore the essential points". The approach which appeals to us to interpret the expression "office of profit" is that it should be interpreted with the flavour of reality bearing in mind the object for enactment ofArticle102(1)(a)namelytoeliminateorin any event to reduce the risk of conflict between the duty and interest amongst membersofthelegislaturebyensuringthat the legislature does not have persons who receivebenefitsfromtheExecutiveandmay thusbeamenabletoitsinfluence. The aforesaid passage emphasizes on the purpose of disqualification,theapproachoftheCourtwhileappreciating the expression and to reduce the risk of conflict of interest betweenthedutiesandinterest.
24. [ENTITY].UnionofIndiaandothers12,the issue arose whether the petitioner was holding an office of profit.ShewasappointedasChairmanoftheUttarPradesh 12(2006)5SCC266 FilmDevelopmentCouncilandwasentitledtocertainbenefits.
The Court analyzing the law enunciated in [PRECEDENT] (supra)andShibuSoren(supra)opinedthatitiswellsettledthat where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What isrelevant is whether pecuniarygainis"receivable"inregardtotheofficeandnot whether pecuniary gain is, in fact, received or received negligibly.
25. [ENTITY],thefirstrespondentwastreatedas disqualified on the foundation that he was in service of the Government.Inthiscontext,wemayusefullyrefertotheletter of appointment issued by the Government of Bihar, Legal (Justice) Department to the District Magistrate, [ENTITY]. It readsasfollows: "LetterNo.C/A(S)4001/98/3049/B GovernmentofBiharLegal(Justice) Department From [ENTITY], JointSecretarytotheGovernment,Bihar To DistrictMagistrate, [ENTITY],Biharsharif Patna,Dated18thAugust,2000 Sub.:InrelationtoappointmentofAssistant GovernmentAdvocatefortheCourtat [ENTITY]andHilsa Sir, In reference to your letter No. 6224 dated 20.7.99 on above mentioned subject and law Department Letter No. 2413 dated 6.7.2000 as per direction I have to inform thattheStateGovernmenthasbeenkindto [ENTITY],Advocateon thepostofAssistantGovernmentAdvocate in the panel of Assistant Government Advocates constituted for the Court at [ENTITY]andHilsa.
Afterthisappointmentthetotalnumberof Assistant Government Advocates in the Court of [ENTITY] would be 19 (Nineteen) and the total number of Assistant GovernmentAdvocatesintheCourtofHilsa wouldbe4(four).
Faithfullyyours, Sd/ JointSecretarytotheGovt.,Bihar"
Analyzing the letter, the [ENTITY] has held thattheelectedcandidatewasholdingapostundertheState Government and, therefore, he was disqualified under [SECTION]
26. Onacarefulscrutinyofthecommunication,itisquite vividthattherespondentNo.lwasappointedtothepostof Assistant Government Advocate in the panel of Assistant GovernmentAdvocatesconstitutedforthecourtsat[ENTITY] andHilsa.Thereisnomentionofanyfixedremuneration.
27. Intheobtainingfactualscore,woulditbeappropriateto accept the submission of the appellants that the elected candidatewasintheserviceofthegovernment.Thelegislature has,inexerciseofitslegislativepowerandwisdom,notused thewordsofficeofprofit.Therefore,whethersuchaletterof appointmentcan beconstruedtodetermineifthepersonis holding an office of profit is not necessary to be addressed althoughwehavereferredtocertainauthoritiestoappreciate thecontextanditsfundamentalpurpose.Intheinstantcase, the election pertains to a Panchayat Samiti which basically relatestotheconceptatthegrassrootlevel.Thelegislature, asitseemstous,hasnotthoughtofofficeofprofitbecause haditthoughtsoitwouldhaveprovidedinthatmanner. In [PRECEDENT] (supra), the legislature had provided a disqualification keeping in view the conflict of interest. The absence of such a provision possibly is to include persons fromdifferentfieldsaslongastheyarenotinserviceunder the government or a service in an institution receiving aids fromtheCentralorStateGovernmentoranylocalauthority. Thelegislature,asthepostulatestandstoday,hasconfinedto categoriesofservicementionedhereinbefore.Itdependsonthe legislative wisdom. It further needs to be stated that the natureofdisqualificationhastobestrictlyconstruedkeeping inmindthatrighttocontestanelectionisnotafundamental rightbutthesaidrightmaybecurtailedundervalidstatutory provision.
28. Theaforesaidbeingtheposition,wemaypresentlyfocus onwhatconstitutesaservice.[PRECEDENT][ENTITY],J.,speakingforthe [ACT]Bench,heldthatapersonholdingapostundera StateisapersonservingoremployedundertheState.Thereis arelationshipofmasterandservantbetweentheStateanda person holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismisshim,itsrighttocontrolthemannerandmethodofhis doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be establishedbythepresenceofallorsomeoftheseindicia,in conjunctionwithothercircumstancesanditisaquestionof factineachcasewhetherthereissucharelationbetweenthe Stateandtheallegedholderofapost.
29. Inthis regard,referencetoanother[ACT]Bench [PRECEDENT] apposite.Inthesaidcase,ithasbeenopinedthatthelegal positionofaGovernmentservantismoreoneofstatusthana 13AIR1967SC884 14AIR1967SC1889 contract. The hallmark of status is the attachment to legal relationship of rights and duties imposed by the public law andnotbymereagreementbytheparties.Thedutiesofstatus arefixedbythelawandstatusisaconditionofmembershipof agroupofwhichpowersanddutiesareexclusivelydetermined bylawandnotbyagreementbetweenthepartiesconcerned. As is evincible, emphasis was given on the status in contradistinctiontocontractualservice.
30. Learned counsel appearing for the Commission, has placedheavyrelianceon [PRECEDENT]. Inthesaidcase,the GovernmentoftheStateofU.P.hadterminatedbyageneral order the appointments of all Government Counsel (Civil, Criminal,Revenue)inallthedistrictsoftheStateofU.P.The HighCourthadupheldthecircularbywhichtheorderwas passed.Inappeal,byspecialleave,theCourtdealtwithtwo contentions, namely, the nature of appointments and the minimumbasisofstatusattachedtothoseappointments.For 15(1991)1SCC212 the purpose of examination whether the ground of arbitrariness was available to vitiate the circular, the Court referredtotheLegalRemembrancer'sManualandespecially paragraphs 7.06 to 7.09 which deals with appointment and renewal of local practitioners finally selected by the government.Thesaidparagraphdealswiththeterm,tenure, baronpoliticalactivity,renewaloftermandcharacterroll.
31. Relyingonthesameandotheraspects,theCourtheld: "The above provisions in the L.R. Manual clearly show that theGovernment Counsel inthedistrictsaretreatedasLawOfficersof the State who are holders of an 'office' or post'. The aforesaid provisions in [SECTION] relating to appointment and conditions of engagement of District Government Counselshowthattheappointmentsareto bemadeandordinarilyrenewedonobjective assessment of suitability of the person basedontheopinionoftheDistrictOfficer andtheDistrictJudge;andcharacterrollis maintained for keeping a record of the suitability of the appointee to enable an objectiveassessmentforthepurposeofhis continuanceasaLawOfficerinthedistrict. Thereareprovisionstobarprivatepractice and participation in political activity by D.G.Cs.Apartfromclause3ofpara7.06to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as thatbyaprivatelitigantofhiscounseland thereisobviouslyanelementofcontinuity oftheappointmentunlesstheappointeeis found to be unsuitable either by his own work, conduct or age or in comparison to anymoresuitablecandidateavailableatthe place of appointment. Suitability of the appointeebeingtheprimecriterionforany such appointment, it is obvious that appointment of the best amongst those available,istheobjectsoughttobeachieved bytheseprovisions,which,evenotherwise, should be the paramount consideration in discharge of this governmental function aimedatpromotingpublicinterest.AllGovt. Counsel are paid remuneration out of the publicexchequerandthereisaclearpublic elementattachingtothe'office'or'post'."
After so stating, the Court referred to [SECTION] and [SECTION] of the [ACT] and further analyzed the ratio in [PRECEDENT] and came to hold that the office of the Public ProsecutorisapubliconeandtheprimacygiventothePublic ProsecutorundertheschemeofCodehasasocialpurpose.
16(1979)4SCC701 17(1988)3SCC144
32. Inthisregard,wemayreproduceapassagefromthesaid authoritywhichisasfollows: We are, therefore, unable to accept the argumentofthelearnedAdditionalAdvocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attachingtoit,whichmaybeterminatedat anytimeatthesweetwilloftheGovernment excluding judicial review. We have already indicated the presence of public element attached to the `office' or `post' of District Government Counsel of every category covered by the impugned circular. This issufficient to attract[SECTION]of the [ACT] and bring the question of validityoftheimpugnedcircularwithinthe scopeofjudicialreview.
33. Eventually, the Court analyzing the test of [SECTION], opined: In our opinion, the wide sweep of[SECTION]undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointmentoftheGovernmentCounselin the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming forthepurposeofthiscasethattherights flowonlyfromthecontractofappointment, theimpugnedcircular,issuedinexerciseof the executive power of the State, must satisfyArticle14ofthe[ACT]andifit isshowntobearbitrary,itmustbestruck down.However,wehavereferredtocertain provisions relating to initial appointment, terminationorrenewaloftenuretoindicate that the action is controlled at least by settled guidelines, followed by the State of U.P.,foralongtime.Thistooisrelevantfor deciding the question of arbitrariness allegedinthepresentcase. TheaforesaidpassagesclearlyshowthattheCourtwent bytheconceptofpublicelementattachedtotheofficeorpost ofGovernmentPleader.Ithasnotexpressedtheopinionthat theyareundertheGovernmentservice.[ENTITY],as has been held by the learned Single Judge and rightly so, there is no masterservant relationship and the respondent was not amenable to any disciplinary proceeding. He has correctlyexpressedtheviewthattheconductoftheadvocate issubjecttothedisciplineoftheBarCouncil.Aswenotice, there is nothing on recordto show that he was getting any remuneration.Evenifsomeremunerationisattachedtothe office,hecannotbetreatedtobeundertheserviceoftheState Government.Theaspectswhichareessentialforestablishing arelationshipofmasterandservantareabsent.Therefore,the returned candidate could not have been treated to be in serviceundertheStateGovernment.
34. In view of the premised reasons, we do not find any substance in the appeal and the same is, accordingly, dismissed. Inthefactsandcircumstancesofthecase,there shallbenoorderastocosts.
([ENTITY]) J. ([ENTITY]) J. [ENTITY]; (Dr.[ENTITY]) 03July,2018