Case: Mahadeo Vs. Shantibhai And Ors

be required with effect from the commencement of the academic session 1967-68 i.e. from Monday, the 17th July 1967.The letter went on to add:"Your tenure as part-time Professor of Law in Madhav College, Ujjain has therefore ceased with effect from June 30, 1967." 11. By letter dated 31st July 1967 the Registrar of the University intimated the Secretary to the Government of Madhya Pradesh Education Department, that under instruction dated 31st March 1967 the University had been asked to maintain the status quo with respect to teachers transferred to the University until final terms and conditions of transfer were eftected and in the absence of any Government orders to the contrary, the appellant also continued to remain in the service of the University. Finally, the letter recorded that in terms of the rules of the University fixing 60 years as the age of superannuation for teachers, the appellant had been informed that his services would not be required after 30th June 1967. It was during the hearing of the election petition that a letter dated 9th October 1967 came to be written by the Under Secretary to the Government of Madhya Pradesh, Education Department to the Registrar, Vikram University that the appellant had ceased to be in Government service with effect from 30th June 1964 in terms .of the rule prescribing 58 years as the age of superannuation for Government servants. 12. The last letter may legitimately be subject to a comment that efforts were being made to establish that the appellant had ceased to be in Government service after June 30, 1964. It is all the more surprising that the letter of October 9, 1967 should be written at such an opportune moment when more than two years before the Under Secretary was himself enquiring of the Principal as to whether the appellant had been confirmed in his existing post. 13. Learned counsel for the appellant contended that after attaining the age of 58 the appellant must be treated as not in ernment service and as the University had the power to manage the affairs of the College, in effect it retained him in exercise of its rights under the above mentioned rule but this would not make the appellants emp1oyment one under the Government. On the other hand, it was contended by learned counsel for the resportdent that we should ignore these deeming provisions of the Fundamental Rules and hold that. as a matter of fact the appellant had continued in service till 1967 notwithstanding the Fundamental Rules of the Madhya Pradesh Government and the rules of the University which permitted the termination of his service before February 1967 but which were never resorted to. For the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at Ujjain. President Shri M.C. Joshi, Advocate, Ujjain. Assessors. 1. Shri Chand Narayan Rajdan, Retired Traffic Superintendent Agar Light Railway Ujjain. 14. The High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court. 15.

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

Explanation:
0[ds]The word office according to Websters New World Dictionary means, inter alia, "a function or duty assigned to someone, specially as an essential part of his work or position, a position of authority or trust especially in a Government, Corporation etc." According to Jowitts Law Dictionary, it means the right and duty to exercise an employment such as an office of a trustee, executor, guardian, director, Sheriff, Judge etc. The expression office of profit finds a place in an old English Act, namely, the Act of Settlement, 1701, s. 3 of which provided that "no person having an office or place of profit under the Crown could be a member of the House of Commons."In our view, although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement, that would not detract from the position that he was in duty bound to work the Railway Administration and see that its causes did not suffer by default. So long as the engagement was not put an end to, he was holding an office of profit in the Railway Administration, and as such was disqualified for being elected to the Legislative Assembly of Madhya PradeshFor the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at UjjainThe High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court.