Case: Madhuker G. E. Pankakar Vs. Jaswant Chobbildas Rajani &amp; Ors

a lasting nature constituted the offices of profit-more like standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned- as in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable to removal-all with a governmental savour-cannot squarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi-voluntary social projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium of inter-communication under our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose he said:"The Courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate between them."In the light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Election Tribunal.21. In the present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.22.

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

Explanation:
1[ds]We cannot equate it with the post of a peon or security gunmen who too has duties to perform or a workshop where Government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for Legal Aid to the Poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadeo fit into a legal scheme. In the former, an ad 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, occupiedby A or B. In Mahadeo, a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted the offices oflike standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discernedas in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled. On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable towith a governmentalsquarely fall under the expression Holding under Government. Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an office of profit held by him and that he is under government. This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons insocial projects in an era of expanding cosmos of State activity.We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government. Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation. Judicial pessimism persuades us not to be hopeful even after this judgment. The Court and the Legislature have no medium ofunder our system. Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature). In characteristically beautiful prose heCourts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped in because there is no one whose business it is to give warning that help is needed.. We must have a courier who will carry the tidings of distress.. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product. On the one side, the judges, left to fight against anachronism and injustice by the methods oflaw, are distracted by the conflicting promptings of justice an d logic, of consistency and mercy, and the output of their labors bears the tokens of the strain. On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some agency must be found to mediate betweenthe light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration. However, since arguments have been addressed, we had better briefly express our view. It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke s. 44 and not to resort to an elect ion petition under s. 21. On a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive. All grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21. The language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councilor (including the President). We agree in this regard with the Full Bench decision in Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Electionthe present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to poll s. Anyway, in the present case, if the appellants election were invalid, there is only a single survivor left in the field, i.e., the first respondent. Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.