Case: Manohar Pandhari Deulkar Vs. Commissioner, Nagpur Division and Others

such office of profit is not "under the Government of India". He being a Clerk in Coal India Ltd. does not and cannot bring any influence or pressure on him in his independent functioning as a Member of Legislative Assembly. The finding that the respondent was neither a managing agent nor a manager nor a Secretary under Coal India Ltd. though the company has 100% share-holding of the Government, was not seriously disputed. Even otherwise, the respondent was merely a Clerk Grade I. Occasionally in the absence of his senior officer on account of leave or absence, he exercised some supervisory function over his subordinates, but this would not make him a manager of the Company. Therefore, the respondent was not holding an office of profit under the Government of India and therefore no disqualification attached to him under Article 19(1)(a) of the Constitution. The respondent did not incur a disqualification under section 10 of RPA also. As the respondents nomination was improperly rejected, the appellants election was liable to be declared void without proof of the result of the election, insofar as it concerns the returned candidate, having been materially affected."13.The Apex Court while taking the aforesaid view, relied upon its earlier judgment in Guru Gobinda Basu vs. Sankari Prasad Ghosal, AIR 1964 SC 254 . In paragraphs 7 and 8, the Apex Court has observed as under: "7. In Guru Gobinda Basu vs. Sankari Prasad Ghosal the Constitution Bench emphasised the distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government and held that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. Several factors entering into the determination of question are: (i) the appointing authority, (ii) the authority vested with power to terminate the appointment, (iii) the authority which determines the remuneration, (iv) the source from which the remuneration is paid and (v) the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf. But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the Government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on facts of each case. The source from which the remuneration is paid, is not by itself decisive or material. 8. The available case law was reviewed by this Court in Madhukar G. E. Pankakar vs. Jaswant Chobbildas Rajan. The Court described certain aspects as elementary; (i) for holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant;(ii) we have to look at the substance and not the form; and (iii) all the several factors stressed by this Court (in Guru Govinda case) as determinative of the holding of an "office" under Government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view, not pedantic basket of tests, should act as guide." THE CONSIDERATION: 13-A.The learned counsel for the respondent No. 3 tried to support impugned order but could not take submissions to the logical conclusion and in view of several legal hurdles. The survey of the aforesaid cases coupled with the other cases cited at the Bar, detailed reference of which is not necessary for deciding this matter, would make it clear that the question sought to be raised in this petition, is no longer res integra and the same stands resolved by catena of the decisions of this Court as well as Apex Court, some of them available at hand are as under: (1) Satrucharia Chandrashekhar Raju vs. Vyricheria Pradeep Kumar Dev (1992) 4 SCC 404. (2) Aklu Ram Mahto vs. Rajendra Mahto (1999) 3 SCC 541. (3) Vasudeo Genu Vartak vs. The Returning Officer, 1968 Mh.L.J. 79. (4) Manohar Nathusao Samarth vs. Marotrao and ors, AIR 1979 SC 1084 . 14.Once again turning to the facts of the present case on the canvas of the above well-settled legal scenario, it would be clear that the petitioner; who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be held to be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with the North-Eastern Coalfields Limited cannot be said to have held office of profits within the meaning of Article 19(1)(a) of the Constitution of India, one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited, which is at par with North Eastern Coalfields Limited be held to be disqualified on the ground that he is holding the office of profit with the Government. 15.While dealing with the aforesaid cases the Apex Court held that the Government had no power to make appointment of the respondent therein; it had no power to remove or dismiss him. Similar is the position in the present case. Government has no power or authority to remove the petitioner nor his appointing authority is the Government. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances, cannot stand to the scrutiny of law being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14.Once again turning to the facts of the present case on the canvas of the abovelegal scenario, it would be clear that the petitioner; who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be held to be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with theCoalfields Limited cannot be said to have held office of profits within the meaning of Article 19(1)(a) of the Constitution of India, one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited, which is at par with North Eastern Coalfields Limited be held to be disqualified on the ground that he is holding the office of profit with thedealing with the aforesaid cases the Apex Court held that the Government had no power to make appointment of the respondent therein; it had no power to remove or dismiss him. Similar is the position in the present case. Government has no power or authority to remove the petitioner nor his appointing authority is the Government. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances, cannot stand to the scrutiny of law being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside.