C.W.P. No.7727 of 2008 etc. -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) C.W.P. No.7727 of 2008 DATE OF DECISION: DECEMBER 05, 2008 Anokh Singh .....PETITIONER Versus Punjab State Election Commission, Chandigarh ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH --- Present: Mr.J.S.Toor, Advocate, for the petitioner. Mr. N.D.S. Mann, Additional Advocate General, Punjab, for the respondent. (2) C.W.P. No.8264 of 2008 Ranjit Kaur and others .....PETITIONERS Versus Punjab State Election Commission, Chandigarh and others ....RESPONDENTS Present: Mr.Dharminder Singh, Advocate, for Mr.B.S.Sewak, Advocate, for the petitioners. Mr. N.D.S. Mann, Additional Advocate General, Punjab, for respondents No.1 and 2. (3) C.W.P. No.8270 of 2008 Malkeet Kaur and another .....PETITIONERS Versus Punjab State Election Commission, Chandigarh and another ....RESPONDENTS C.W.P. No.7727 of 2008 etc. -2- Present: Mr.Surinder Garg, Advocate, for the petitioners. Mr. N.D.S. Mann, Additional Advocate General, Punjab, for the respondents. (4) C.W.P. No.8279 of 2008 Gurmit Kaur .....PETITIONER Versus Punjab State Election Commission, Chandigarh and others ....RESPONDENTS Present: Mr.Vikas Bahl, Advocate, for the petitioner. Mr. N.D.S. Mann, Additional Advocate General, Punjab, for respondents No.1 and 2. (5) C.W.P. No.8310 of 2008 Manmohanjit Kaur and others .....PETITIONERS Versus Punjab State Election Commission, Chandigarh and others ....RESPONDENTS Present: Mr.Dharminder Singh, Advocate, for Mr.B.S.Sewak, Advocate, for the petitioners. Mr. N.D.S. Mann, Additional Advocate General, Punjab, for respondents No.1 and 2. (6) C.W.P. No.11724 of 2008 Amarjit Kaur .....PETITIONER Versus State of Punjab and others ....RESPONDENTS C.W.P. No.7727 of 2008 etc. -3- Present: Mr.K.S. Boparai, Advocate, for the petitioner. Mr. N.D.S. Mann, Additional Advocate General, Punjab, for respondents No.1 to 4. Mr.Vikas Singh, Advocate, for respondent No.5. .... SATISH KUMAR MITTAL, J. “Whether Lambardars and Anganwari Workers, who were intending to contest the election of Panches of the Gram Panchayat, which was to be held on May 26, 2008, are holding the `office of profit' under the State Government and as such they are disqualified for being chosen as, and for being, a member of a Panchayat,”- is the question which is to be considered in these writ petitions. Section 37 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as `the State Election Commission Act') provides that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of this Act. Section 208 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `the Panchayati Raj Act') provides for various disqualifications for being chosen as a member of a Panchayat. Clause (g) sub-section (1) of Section 208 of the Panchayati Raj Act provides that a person shall be disqualified for being chosen as, and for being a member of a Panchayat if, he is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co- operative Societies Act, 1961, or of the State Government or the Central Government. Section 11 of the State Election Commission Act also provides various disqualifications for membership of a Panchayat or a C.W.P. No.7727 of 2008 etc. -4- Municipality. Clause (g) of Section 11 provides that a person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality, if he holds an office of profit under the Government of India or any State Government. Both the aforesaid Acts, i.e., Panchayati Raj Act and the State Election Commission Act, came into being in view of 73rd and 76th amendment of the Constitution of India to strengthen the self governments of the Local Bodies. By those amendment, various Articles were inserted in Part IX of the Constitution. Article 243F of the Constitution deals with the disqualifications for a member of a Panchayat, which is reproduced as under:- “243F. disqualification's for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualification's mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.” When the Punjab Government decided to hold the general election of the Panchayats in the month of May, 2008, many District Electoral Officers-cum-Deputy Commissioners in the State of Punjab C.W.P. No.7727 of 2008 etc. -5- sought clarification from the State Election Commission whether the Lambardars and Anganwari Workers are eligible to contest the election of the Panchayati Raj Institutions like Panchayat and Municipality. The State Election Commission vide its Memo dated 30.4.2008 (Annexure P1) clarified that Lambardars and Anganwari Workers hold the office of profit under the State Government, therefore, they are not qualified to contest the election of Members, Panchayats. Feeling aggrieved against the said clarification, the petitioners, who are working as Lambardars and Anganwari Workers at different places in State of Punjab, have filed CWP Nos.7727, 8264, 8270, 8279 and 8310 of 2008 with a prayer for quashing the Memo dated 30.4.2008 (Annexure P1) which debars the Lambardars and Anganwari Workers from contesting the elections to the Panchayat Samitis and Zila Parishads in the State of Punjab. CWP No.11724 of 2008 has been filed by the petitioner for issuing direction to respondents No.1 to 4 not to permit respondent No.5- the Anganwari Worker, to participate in the election of Sarpanch of Gram Panchayat of Village Ghaloti. We will deal with these petitions in two different heads. Writ Petition filed by the Lambardar: (CWP No.7727 of 2008) It is the case of the petitioner that he was appointed as Lambardar by the Collector under the provisions of the Punjab Land Revenue Act, 1887 He is fully eligible to contest the election of the Members of Gram Panchayat, being more than 25 years of age, but because of his having been working as Lambardar, he has been debarred from contesting the election of the Members of Gram Panchayat. It is further the case of the petitioner that the office of Lambardar is not an office of profit under the State Government, therefore, he is not disqualified to contest the C.W.P. No.7727 of 2008 etc. -6- election of Members, Panchayat. The remuneration of Lambardar has been prescribed under rule 21 of the Punjab Land Revenue Rules (hereinafter referred to as `the Rules'). Clause (3) of the Rules provides that a headman shall receive a portion of the village officer's cess equal to ten per cent of the land revenue for the time being assessed on the estate or portion of the estate in which he holds office whether the assessment is leviable or not. It is also the case of the petitioner that Punjab Government has abolished the land revenue, therefore, the Lambardar has stopped collecting the revenue from the land owners. As such, under the aforesaid rule, the remuneration, which was being paid to the Lambardar, has come to an end. However, without amending the aforesaid rule, the State Government is paying the honorarium to the Lambardars which cannot be treated as remuneration to the Lambardars, which makes this office as an office of profit. It is further the case of the petitioner that Lambardar of the village is not a whole-time salaried employee of the State Government. He is being paid honorarium only @ Rs.500/- per month. Therefore, the office of Lambardar cannot be treated as office of profit under the State Government which disqualifies Lambardar to contest the election of a Member, Panchayat. It has been argued on behalf of the petitioner that clause (1) of Article 243F of the Constitution provides that a person shall be disqualified for being chosen as a member of a Panchayat if, he is so disqualified for the purposes of elections to the Legislature of the State. The learned counsel contends that Article 191 of the Constitution provides for disqualifications for membership to the Legislature of the State. It provides that a person shall be disqualified for being chosen as a member of the Legislative Assembly or Legislative Council of a State, if he holds any office of profit C.W.P. No.7727 of 2008 etc. -7- 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. He submitted that the Punjab State Legislature (Prevention of disqualifications) Act, 1952 provides that a person shall not be disqualified from being chosen as a member of the Punjab State Legislature by reason only of the fact that he holds any of the offices of profit mentioned in Section 2 of the Act. Office of Lambardar is mentioned in Section 2(a) of the Act and it is one of the offices of profit, holding of which does not invite disqualification, because this office has been protected under the aforesaid Act. Therefore, the learned counsel submits that even if it is taken that the office of Lambardar is an office of profit under the State Government, the petitioner is not disqualified to contest the election of members of a Panchayat. It has also been argued on behalf of the petitioner that since the petitioner was intending to contest the election of members of a Panchayat, therefore, only those disqualifications will be attracted in his case, which have been prescribed under Section 208 of the Panchayati Raj Act. Under clause (g) of Section 208(1) only that person shall be disqualified for being chosen as a member of a Panchayat, if he is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co- operative Society registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government. Counsel for the petitioner contends that since the petitioner is not the whole-time salaried employee of the State Government, therefore, he cannot be deemed to be disqualified for being chosen as a member of a Panchayat. Learned counsel submitted that the provisions of Section 11 of the State Election C.W.P. No.7727 of 2008 etc. -8- Commission Act, which provide that a person holding an office of profit under the Government of India or State Government, shall be disqualified for being chosen as member of a Panchayat, will not be attracted in case of the petitioner. Learned counsel for the petitioners submitted that by receiving the honorarium as sanctioned by the State Government, it cannot be said that the Lambardar held the office of profit under the State Government, particularly when the said honorarium is not being paid regularly. Learned counsel while relying upon various decisions submitted that in the facts and circumstances of the case, a Lambardar cannot be said to be disqualified for being chosen as a member of Panchayat, therefore, the impugned Circular dated 30.4.2008 issued by the State Election Commission is liable to be quashed. On the other hand, learned counsel for the respondent submitted that a Lambardar is being appointed by the Collector under Rules 14 and 15 of the Rules after inviting applications from the residents of the village for which the Lambardar is to be appointed. Rule 15 of the Rules lays down criteria which is to be considered at the time of appointment of a Lambardar. He further points out that Rule 16 provides the grounds on which a Lambardar can be dismissed by the Collector. Learned counsel further submitted that under the Punjab Land Revenue Act, any aggrieved person against the order of appointment of a Lambardar, can file an appeal before the Commissioner and thereafter a revision before the Financial Commissioner. Learned counsel further pointed out that every Lambardar is being paid Rs.500/- per month as honorarium. In this regard, he has placed on record a copy of the Circular dated 9.10.2006 issued by the Government C.W.P. No.7727 of 2008 etc. -9- of Punjab, Department of Revenue and Rehabilitation to all the Deputy Commissioners in the State of Punjab sanctioning the grant of honorarium @ Rs.500/- per month to each of the village Headman (Lambardar) in the State. It is stated that now this amount has been increased from Rs.500/- to Rs.900/-. Learned counsel for the respondent-State further submitted that since Lambardars in the State of Punjab are being appointed by the State Government, therefore, can be dismissed by the Government. He submitted that Lambardars are being paid remuneration by the State government and they are also functioning under the control of the Government. Therefore, they are holding the office of profit under the Government of Punjab and, thus, are disqualified to contest the election of Members of Panchayats in view of the disqualifications laid down under Section 11 of the State Election Commission Act. Learned counsel further argued that the disqualifications enumerated in Section 11 of the State Election Commission Act will prevail over the disqualifications mentioned in Section 208 of the Panchayati Raj Act, in view of the overriding effect of the provisions of the State Election Commission Act as provided under Section 142 of the said Act. In support of his contention, learned counsel for the respondent relied upon the decision of the Supreme Court in Som Lal v. Vijay Laxmi & Ors. (Appeal [Civil] 5104 of 2006 decided on 14.03.2008). Therefore, the Lambardar, who is holding an office of profit under the State Government, is disqualified to be chosen as a Member of a Panchayat in view of Clause (g) of Section 11 of the State Election Commission Act. Learned counsel further pointed out that Clause (a) of Article 243F of the Constitution will not be attracted in this case in view of Clause C.W.P. No.7727 of 2008 etc. -10- (b) of the said Article because the disqualification of a person to be chosen as a Member of a Panchayat has been prescribed under an Act by the said legislation, i.e., State Election Commission Act. Even if Clause (a) of Article 243F provides a disqualification for being chosen as a Member of a Panchayat, Clause (b) provides the additional disqualification. If a person is not disqualified to be chosen as a Member of a Panchayat under Clause (a), he may be disqualified to be chosen as such, if he is so disqualified under any law enacted by the State Legislation. Learned counsel further submitted that the provisions of Punjab State Legislature (Prevention of disqualifications) Act, 1952, wherein it has been provided that the office of Lambardar shall not be deemed to be one of the office of profit, holding of which invite disqualification, will not be attracted in the present case, in view of the overriding effect given to the State Election Commission Act under Section 142 of the said Act. Thus, the learned counsel submits that the Election Commission, who is having superintending control of the entire elections to the Panchayats in view of Section 210 of the Panchayati Raj Act, is fully empowered to pass the impugned order clarifying whether the Lambardars are disqualified to be chosen as Members of Panchayats. Firstly it is to be decided whether the disqualification prescribed under Section 208 of the Panchayati Raj Act or the disqualification prescribed under Section 11 of the State Election Commission Act, are applicable in case of the petitioner. There is a difference between the disqualifications prescribed under these two provisions. Under clause (g) of Section 208 of the Panchayati Raj Act, a person is disqualified for being chosen as a Member of a Panchayat, if he is a whole-time salaried employee of the State Government. Under clause (g) C.W.P. No.7727 of 2008 etc. -11- of Section 11 of the State Election Commission Act, a person is so disqualified if he holds an office of profit under the State Government. It is the contention of the learned counsel for the petitioner that the petitioner being not a whole-time salaried employee of the State Government, is not disqualified to contest the election of Panch. This contention of the learned counsel cannot be accepted. The Supreme Court in Som Lal's case (supra) has dealt with this controversy and has held that the disqualifications prescribed under Section 11 of the State Election Commission Act shall prevail over the disqualifications prescribed under Section 208 of the Panchayati Raj Act in view of Sections 142 and 143 of the State Election Commission Act. It has been held that the disqualifications mentioned in Section 208 which are consistent with Section 11 of the State Election Commission Act can only survive and not other disqualifications. It has been further held that Section 142 of the State Election Commission Act clearly contemplates that the earlier laws which are inconsistent with the Act shall stand repealed and it is saved to the limited extent as provided under Section 143 of the said Act. Thus, in view of the disqualifications prescribed under clause (g) of Section 11 of the State Election Commission Act, it is to be seen whether the Lambardar of a village appointed by the official of the Government under the provisions of the Punjab Land Revenue Act and who is also getting monthly remuneration of Rs.900/-, is holding the office of profit under the State Government, and as such, he is disqualified for being chosen as a Member of a Panchayat. The words `office of profit' have neither been defined in the Constitution nor the State Election Commission Act nor in the General C.W.P. No.7727 of 2008 etc. -12- Clauses Act. In Ravanna Subanna v. G.S.Kaggeerappa, AIR 1954 SC 653, the Supreme Court explained the words `office of profit' under the Government occurring in the Mysore Legislature (Prevention of Disqualifications) Act, 1951. The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word “profit” connotes the idea of pecuniary gain, if there is really a gain. Its quantum or amount would not be material, but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit. In that case, a person, who was holding the office of Chairman, Taluka Development Committee, was held to be not holding an office of profit under the Government. A fee of Rs.6/-, which the non- official Chairman was entitled to draw for each sitting of the Committee, he attended, was held to be not a payment by way of remuneration or profit, but as a consolidated fee for the out-of-pocket expenses which he incurred for attending the meetings of the Committee. It was held that Taluka Development Committee was manned exclusively by non-officials. Learned counsel for the petitioner while relying upon the aforesaid judgment has argued that what a Lambardar is receiving as a remuneration, which is Rs.900/- per month, is actually reimbursement for his out-of-pocket expenses. This contention of the learned counsel cannot be accepted. The Supreme Court in Shivamurthy Swami v. Veerabhadrappa Veerappa, AIR 1971(3) SCC 870 has laid down the following tests to find out whether the office of profit is an office under a Government and whether it is an office of profit:- (1) Whether the Government makes the appointment; C.W.P. No.7727 of 2008 etc. -13- (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder? Does he perform them for the Government; and (5) Does the Government exercise any control over the performance of those functions? In that case, the question was whether a member of Koppal Taluk Development Board as well as the member of the District Development Council of Raichur are the offices of profit under the State Government. Both these offices were the ex-officio offices where a person became ex-officio member of these bodies by virtue of his being elected as a member of the Mysore Legislative Council. In these facts, it was held that it cannot be said that the person was holding those offices under the Government. The Government neither appointed him nor could remove him. The allowances paid for the members of the Taluk Development Board and District Development Board are intended to meet their out-of-pocket expenses. The same was held to be compensatory allowance. The said judgment does not support the case of the petitioner. In the instant case, the Lambardars are being appointed by the official of the Government and they can be removed by the official of the Government. Their appointments are under the statute and are in overall control of the Government. They are also receiving monthly honorarium which cannot be said to be compensatory in nature. The facts of this case are fully covered by the aforesaid tests laid down for finding out whether the office of profit is an office under a Government. In Shibu Soren v. Dayanand Sahay, AIR 2001 SC 2583, it was held that the question whether a person holds an office of profit, is C.W.P. No.7727 of 2008 etc. -14- required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory provisions. It was further held that a strict and narrow construction may not be adopted which may have the effect of shutting off many prominent and other eligible persons 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 merely a broad and general view and ignore the essential points. In that case the office of Chairman of the Interim Jharkhand Area Autonomous Council was held to be an office of profit. It was held that the word `profit' for the purpose of Article 102(1)(a) or Article 191 connotes an idea of pecuniary gain, though neither the label under which it is paid nor the quantum of the amount may always be material to determine the issue. In that case the Chairman was receiving an amount of Rs.1750/- per month as honorarium. It was held that such an honorarium was in the nature of giving some pecuniary gain to the holder of the office and was not intended to compensate him for his out-of-pocket expenses. Similarly, the Supreme Court in Jaya Bachan v. Union of India and others, (2006) 5 SCC 266 has held that an office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is “holding an office of profit”. The nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word “honorarium” cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. The payment of honorarium, in addition to daily allowances in the nature of C.W.P. No.7727 of 2008 etc. -15- compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. It has been held that 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. The