WA 278/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR JUSTICE U. B. SAHA (Madan B. Lokur, CJ) The question for consideration is whether respondent No.4 (Md Ra ihan Choudhury) held a service of profit within the expression as used in Sect ion 111 (e) of the Assam Panchayat Act, 1994 when he filed his nomination paper on 20th December, 2007 for election as a member of the Zilla Parishad. In our op inion, the answer must be in the affirmative. The consequence is that it was rig htly held by the Returning Officer that he was disqualified from contesting that election. 2. For easy reference, Section 111(e) of the Assam Panchayat Act, 1 994 (for short the Act ) is reproduced below and it reads as follows:- 111. Disqualifications.- No Person shall be elected or co-opted and remain as P resident, Vice-President or Member of Zilla Parishad, Anchalik Panchayat and Gao n Panchayat, if he or she - (a) & & & (b) & & & (c) & & & (d) & & & (e) hold any service of profit under Government or any educational instituti on recognized and received grant from the Government, or holds remunerated offic e under Zilla Parishad, Anchalik Panchayat and Gaon Panchayat or holds any contr act under any of the aforesaid bodies or under the Government; The facts: 3. Choudhury was appointed as an Assistant Teacher sometime in 1993 by the Managing Committee of the Uttar Rawmari AHEME School under the Operation Black Board Scheme. Earlier, on or about 19-11-1991 the school was provincialis ed under the provisions of the Assam Elementary Education (Provincialisation) Ac t, 1974. 4. On 6-5-1999 the services of Choudhury were regularized as an Ass istant Teacher with effect from 24-4-1998 along with several others. 5. On 27-9-1999 the Secretary in the Education Department, Governme nt of Assam directed the Director of Elementary Education to cancel the regulari zation order. In pursuance of the directions so given, the Director of Elementar y Education cancelled the order regularizing the services of Choudhury and other s by an order dated 25-11-1999. 6. Feeling aggrieved, Choudhury and others filed WP(C) No.6246/99 c hallenging the order canceling their regularization in service. Although it is n ot very clear, it however appears that the learned Single Judge dealing with the writ petition passed an interim order staying the operation of the impugned can cellation order dated 25-11-1999. 7. By an order dated 21-7-2004 a learned Single Judge dismissed the writ petition by holding that the initial appointment of Choudhury and others w as not in accordance with law and, therefore, their services could not have been regularized. Under the circumstances, the challenge to the order canceling the regularization could not be sustained. 8. Against this order passed by the learned Single Judge in WP(C) N o.6246/99, Choudhury and others preferred a writ appeal being WA No.343/04. When the writ appeal came up for consideration on 29-11-04 the following order was p assed whereby, as an interim measure, it was directed that if the appellants are in service they shall be allowed to continue in service until further orders :- Heard Mr. AK Bhattacharyya, learned senior counsel on interim prayer. It is submitted that the appellants were appointed by the competent auth ority after regularization in accordance with law and their regularization have been cancelled without any notice. Mr. Bhattacharyya submits that there is viola tion of the principles of natural justice in the impugned government action and, therefore, status-quo as on today i.e. continuity in service of the appellants may be maintained. In support of this submission the certificates issued by the Headmasters of the concerned Schools have been produced which shall form part of record. Mr. VM Thomas, learned State counsel submits that he has no objection in maintaining status-quo as on today in so far the appellants are concerned. In view of this, as an interim measure it is directed that if the appellants are in service they shall be allowed to continue until further orders. In the meantime, Mr. Thomas, learned State counsel shall obtain necessary instru ctions and place the Government’s stand in the matter. This interim direction is peculiar to the facts and circumstances of this partic ular case only. By virtue of this interim order (or so it is said) Choudhury continued in servic e as an Assistant Teacher in Uttar Rawmari AHEME School. 9. At this stage, it is important to note that about two years earl ier, while the writ petition filed by Choudhury and others was pending considera tion before the learned Single Judge, the Secretary in the Education Department of the Government of Assam issued a letter dated 25-11-02 directing the Director of Elementary Education not to give effect to the order of cancellation dated 2 7-9-99 and to refrain from ousting the writ petitioners. The letter dated 25-11- 02 was issued (apparently) in the context of the interim relief granted to Choud hury and others and others in the writ petitions challenging the cancellation of the order regularizing their services. The letter dated 25-11-02 reads as follo ws:- With reference to the letter cited above on the subject, I am directed t o say that pursuance to the Hon’ble High Court’s interim order dated 8.12.99 and 15.12.99 passed in WP(C) 6167/99, WP(C) 6157/99, WP(C) 6168/99, WP(C) 6156/99 W P(C)No.66152/99, WP(C) 6153/99 and WP(C) 6246/99 respectively you are requested not to give effect to the order of cancellation issued by Government vide letter No.A(1)E 562/99/60-A dated 27.9.99 and not to oust the petitioners. Further, in pursuance to the Hon’ble High Court direction dated 9.5.2002 passed in WP(C) 6157/99 in the matter of Shri Rabindra Kr Bhuyan you are reques ted not to terminate the petitioners from service pending regularization of thei r services along with release of monthly salary w.e.f. the respective date of jo ining till the finalization of the cases. Action taken in this regard may kindly be intimated to this Department. 10. It appears that as a follow up to the above letter, the Director of Elementary Education wrote a letter dated 12-12-02 to the District Elementar y Education Officer not to give effect to the order of cancellation of regulariz ation. Acting upon both the letters dated 25-11-02 and 12-12-02 the District Ele mentary Education Officer issued an order dated 30-12-02 withdrawing the cancell ation order dated 25-11-99 in respect of the aggrieved teachers including Choudh ury. The order dated 30-12-1999 reads as follows: OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER, NAGAON, ASSAM ORDER In pursuance of the Govt. letter No.A(I)E.562/99/160, dated 25/11/2002 and Direc tor of Elementary Education, Assam’s letter No.ES(P)155/2001/105 dated-12/12/200 2 the cancellation order vide this office letter No.A-14/Grieven/99/12854-60 dat ed 25/11/99 is hereby withdrawn from the date of cancellation. Sl.No. Name of the schools Name of the teacher 1. Uttar Rowmari A.H.A.M.E.M. 1.Anowar Sadat 2.Raihan Uddin Choudhury Sd/- Shri D. Das, District Elementary Education Officer, Nagaon, Assam Memo No.EPS/101/98/Pt-I/15861-67 dated 30/12/02 Copy to :- 1) The Secretary, Govt. of Assam. Education Department, Dispur, Guwahati-5 for i nformation for his letter No.A(I)E.562/99/160 dated 25/11/2002. 2) The Director of Elementary Education, Assam, Kahilipara, Guwahati-19 for info rmation for his letter No.EE(P)155/2001/105, dated 12/12/2002. 3) The Deputy Inspector of Schools, Nagaon/Hojai and Kaliabor for information. 4) The Treasury Officer, Nagaon/Hojai and Kaliabor for information. 5) The Block Ele. Edn. Officer, Batadraba for information and necessary action. 6) The Head Master, Uttar Rowmari A.H.E.M.E.M. for information and necessary act ion. 7) Person concerned. Sd/- District Elementary Education Officer, Nagaon, Assam 11. We would have thought that under these circumstances, nothing f urther survives in the writ petition filed by Choudhury and others being WP(C) N o.6246/99 in which they had challenged the cancellation of the regularization or der but it is alleged that the withdrawal order dated 30-12-02 was not served up on Choudhury nor was he aware of its contents. But be that as it may, Choudhury continued to work as an Assistant Teacher in Uttar Rawmari AHEME School either u nder the protection of the interim order granted in the writ appeal filed by him or by virtue of the order dated 30-12-1999. 12. Sometime in late 1997, elections were announced for Member, No.8 , Tuktuki Zilla Parishad constituency under Nagaon Zilla Parishad for the third phase of panchayat elections. The election was to be held on 9-1-08 and nominati on papers could be filed by 20-12-2007. 13. Choudhury was one of the candidates for the elections as also th e appellant before us, that is, Aminul Haque. In fact, these were the only two c andidates for the election. 14. Choudhury filed his nomination papers on 20-12-07 and Haque file d his objections to Choudhury’s nomination papers on the ground, inter alia, tha t he (Choudhury) held a service of profit in an educational institution recogniz ed and receiving grants from the government and as such he was disqualified from contesting the election in terms of Section 111(e) of the Act. 15. On 24-12-07 the Returning Officer considered the objections file d by Haque and rejected the nomination papers of Choudhury. It was concluded tha t Choudhury held a service of profit and was, therefore, disqualified for contes ting the elections. The result of this was that Haque was the only eligible cand idate and he was declared elected as Member of the Zilla Parishad. 16. Choudhury thereafter filed Election Case No.1/08 challenging the rejection of his nomination papers and he also challenged the election of Haque . The Panchayat Election Tribunal, Nagaon, constituted under the provisions of t he Act, passed a judgment and order dated 20-8-09 allowing the election petition filed by Choudhury and further directing that fresh elections be held within on e month and Choudhury be allowed to contest the election on the basis of the nom ination papers already filed by him. 17. Aggrieved by the judgment and order dated 20-8-09 passed by the Election Tribunal, Haque preferred WP(C) No.3791/09 which was heard and consider ed by a learned Single Judge. By the order under appeal dated 21-7-10, it was he ld that Choudhury did not hold a service of profit so as to disqualify him from contesting the elections. In other words the judgment and order of the Election Tribunal was upheld by the learned Single Judge by his order dated 21-7-10. 18. Feeling aggrieved, Haque filed the present writ appeal challengi ng the order passed by the learned Single Judge and reiterating his contention t hat Choudhury held a service of profit on the date he filed his nomination paper s, thereby disqualifying him from contesting the elections. Submissions: 19. We have heard learned counsel for the parties and perused the re cords and in view of the urgency expressed, namely, that fresh elections are sch eduled for 23-9-2010 we have given priority of hearing to this case. 20. The admitted position is that the expression service of profit as used in Section 111(e) of the Act has the same meaning as the expression of fice of profit occurring in Article 102 of the Constitution and in fact there i s no difference between these two expressions. Therefore, for the sake of conven ience we propose to use the expression office of profit rather than service o f profit . 21. Certain facts are not in dispute and they are: that at all mater ial times, Choudhury was working as an Assistant Teacher in the Uttar Rawmari AH EME School; that the school was provincialised in 1991 and Choudhury joined the school as a teacher in 1993 and; that the appointment of Choudhury was made by t he Managing Committee of the school. According to Choudhury his appointment havi ng been made by the Managing Committee, it was contractual in nature. 22. Whether the appointment of Choudhury by the Managing Committee o f the school was irregular or illegal, as held by the learned Single Judge in WP (C) No.6246/99, or on a contractual basis as contended before us, is not at all an issue. Indeed it cannot be an issue before us for the simple reason that acco rding to Choudhury he was regularized in service and when that regularization or der was cancelled on 25-11-99 he even challenged the cancellation. All along, th erefore, the contention of Choudhury has been that he is a regular teacher in Ut tar Rawmari AHEME School and not a contractual employee. He cannot now turn arou nd and take a stand completely contrary to what he has been agitating for long. We have, therefore, no option but to proceed on the basis that Choudhury’s empl oyment was not contractual in nature. 23. It is submitted by learned counsel for Choudhury that there are two other important facts which should not be lost sight of and they are: First, that the order regularizing the services of Choudhury was cancelled by another order dated 25-11-99 of the Director of Elementary Education. The cancellation o rder was upheld by the learned Single Judge in WP(C) No.6246/99 and the order pa ssed by the learned Single Judge was not stayed in the writ appeal filed by Chou dhury. As such, the contention is that Choudhury was not a regular teacher in Ut tar Rawmari AHEME School at the relevant time, and that he reverted to his statu s as a contractual teacher. Second, that Choudhury did not accept any remunerati on from the Uttar Rawmari AHEME School; rather, he was working there as a teache r only in a voluntary capacity. As such, Choudhury’s contention is that he did n ot hold an office of profit disqualifying from contesting the election under Sec tion 111(e) of the Act. 24. It is also submitted by learned counsel for Choudhury that his c lient had in fact submitted his resignation letter to the Headmaster of the scho ol on 20-12-07, the date on which the nomination papers were filed. Therefore, e ven if it is held that Choudhury was holding an office of profit, it was only ti ll 19-12-07 -- he ceased to hold an office of profit on 20-12-07 when he submitt ed his resignation to the Headmaster of the school who in turn accepted his resi gnation. 25. We are not impressed by any of the submissions made on behalf of Choudhury. Findings: 26. The crucial issue is the status of Choudhury on 20-12-2007. It i s a matter of record that his services were regularized by an order dated 6-5-99 . Even though the order of regularization may have been cancelled on 25-11-99 by the Director of Elementary Education, the fact of the matter is that the Secret ary of the Education Department of the Government of Assam ordered the Director of Elementary Education by a letter dated 25-11-02 not to give effect to the can cellation order. Although this appears to have been in the context of the interi m relief granted to Choudhury in the writ petition filed by him, the fact remain s that the District Elementary Education Officer passed an order on 30-12-02 wit hdrawing the order dated 25-11-99. That Choudhury was unaware of the order dated 30-12-02 (as he says) is of no consequence. The fact of the matter is that inso far as the State of Assam is concerned, and for all practical purposes, Choudhur y continued to remain a regular teacher with the Uttar Rawmari AHEME School. Und er the circumstances, he clearly fell within the category of disqualified candid ates. 27. It is not possible to accept the contention of Choudhury that he was unaware of the order dated 30-12-02. A copy of the order dated 30-12-02 was marked to the Headmaster of Uttar Rawmari AHEME School and to the person concer ned, that is, Choudhury. It is, therefore extremely unlikely that he was unaware of the order dated 30-12-02 withdrawing the cancellation order dated 25-11-1999 . 28. Even if it is assumed that the withdrawal order dated 30-12-2002 was of no effect (for whatever reason) the fact is that Choudhury continued as an Assistant Teacher with the Uttar Rawmari AHEME School by virtue of the interi m protection in the writ appeal filed by him. It was contended by his learned co unsel that the order of cancellation of regularization was not stayed by the Div ision Bench considering the writ appeal. As such, Choudhury reverted back to his status as a contractual teacher with the Uttar Rawmari AHEME School. In view of his status as a contractual teacher, it is submitted that Choudhury could not b e described as someone holding an office of profit in the school. 29. As we have already noted above, we have no option but to proceed on the basis that Choudhury’s appointment in the Uttar Rawmari AHEME School was not on a contractual basis. That apart, it does appear that the order dated 27- 9-99 cancelling the regularization of the services of Choudhury was stayed in th e writ petition filed by him. It appears that it is for this reason that the Sec retary in the Education Department of the Government of Assam issued a letter da ted 25-11-02 directing the Director of Elementary Education not to give effect t o the order of cancellation dated 27-9-99 and to refrain from ousting the writ p etitioners. Subsequently, the cancellation was withdrawn on 30-12-02 resulting i n revival of the status of Choudhury as a regular teacher in the Uttar Rawmari A HEME School. 30. That apart, the services of Choudhury continued with the school (even otherwise) by virtue of the interim protection given by the Division Bench in the writ appeal filed by Choudhury. It is true that the order of cancellatio n was not specifically stayed by the Division Bench, but the effect of the inter im protection given has the same consequence. In fact, the argument of learned c ounsel for Choudhury to the contrary is rather strange, if we may say so. The ar gument is that even though the learned Single Judge held Choudhury’s appointment to be illegal, the interim protection given by the Division Bench did not reviv e his status a regular teacher but it only revived his status as a contractual t eacher. We are unable to understand the rationale for the limited interpretation given by learned counsel to the interim protection afforded by the Division Ben ch. The only intention appears to be to somehow or the other get out of the proh ibitory net cast by Section 111(e) of the Act by claiming to be a contractual te acher. 31. Unfortunately, even this does not help Choudhury. The reason is the wide language used in Section 111(e) of the Act. It includes a contract un der an educational institution recognized and receiving a grant from the Governm ent (such as the Uttar Rawmari AHEME School). The word contract is broad enoug h to take within its compass a contract of service, such as the one claimed by C houdhury. Therefore, every which way the issue is looked at, Choudhury undoubted ly held a service of profit or office of profit so as to fall afoul of Sect on 111(e) of the Act. 32. The contention of learned counsel for Choudhury that his client did not accept any remuneration from the school and that he was working as a tea cher purely in a voluntary capacity is stated only to be rejected. It has been h eld in Jaya Bachchan v. Union of India & Ors, (2006) 5 SCC 266 that what is rel evant is not whether a person holding an office of profit actually receives any pecuniary gain but whether the office is capable of yielding a profit or pecunia ry gain. If such an entitlement exists, then the person is said to be holding an office of profit. This is what the Supreme Court had to say in paragraph 6 of t he Report: The term holds an office of profit though not defined, has been the subject-m atter of interpretation, in several decisions of this Court. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding a n office under the Central or State Government, to which some pay, salary, emolu ment, remuneration or non-compensatory allowance is attached, is holding an off ice of profit . The question whether a person holds an office of profit is requi red to be interpreted in a realistic manner &.. For deciding the question as to w hether one is holding an office of profit or not, what is relevant is whether th e office is capable of yielding a profit or pecuniary gain and not whether the p erson actually obtained a monetary gain. If the pecuniary gain is receivable in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carri es with it, or entitles the holder to, any pecuniary gain other than reimburseme nt of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). This position of law stands settled for o ver half a century commencing from the decisions of Ravanna Subanna v. G.S. Kagg eerappa AIR 1954 SC 653, Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa ( 1971) 3 SCC 870, Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev (1992) 4 SCC 404 and Shibu Soren v. Dayanand Sahay (2001) 7 SCC 425. 33. On the fact of this case, it is clear that Choudhury was entitle d to receive salary as an Assistant Teacher in the Uttar Rawmari AHEME School, a t least by virtue of the interim order granted by the Division Bench of this Cou rt. That he chose not to accept the salary, for reasons best known to him, does not mean that he did not hold an office of profit as discussed by the Supreme Co urt. Therefore, the contention of learned counsel in this regard must be rejecte d. 34. It was then contended that Choudhury had submitted his resignati on letter to the Headmaster of the school on 20-12-2007 and that the Headmaster had accepted it. We only need to look at the deposition of the Headmaster of t he school, namely, Md Nurul Islam in this regard. He clearly states in his depos ition that the school was provincialised on 19-11-91 and Choudhury was appointed by the Managing Committee of the school in 1993. He says that Choudhury did sub mit his resignation letter on 20-12-07 and that the resignation letter was forwa rded to the competent authority that is, the Block Elementary Education Officer. The Headmaster does say that he accepted the resignation letter, but he also goes on to say that he forwarded it to the Block Elementary Education Officer. W hat this means, if read in its correct perspective, is that there was a physical taking of the document by the Headmaster for the purpose of forwarding it to th e Block Elementary Education Officer. The statement of the Headmaster, as a whol e, does not mean that he was authorized or was the competent authority to accept the terms of the resignation letter. In fact this interpretation is established from his cross examination where the Headmaster says that the Block Elementary Education Officer is the competent authority to accept the resignation letter of the teacher and that is why he had forwarded Choudhury’s resignation letter to him on 24-12-07. The Headmaster further says that he does not know whether the B lock Elementary Education Officer accepted the resignation or not. 35. What is important from this deposition is that the Headmaster of the Uttar Rawmari AHEME School was not the competent authority to accept Choudh ury’s resignation letter; that Choudhury’s resignation letter came into