Case: Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others

In February, 1980 the Legislative Assembly or the State of Uttar Pradesh was dissolved by the President by issuing a notification under Article 356 of the Constitution. A notification was issued by the Governor of Uttar Pradesh under section 15 (2) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) in April, 1980 calling upon all the Assembly constituencies in Uttar Pradesh to elect members to the Legislative Assembly. After the results of the elections in all the constituencies held pursuant to the said notification were declared, the Election Commission of India issued a notification containing the names of the members elected for the said constituencies as required by section 73 of the Act on June 9, 1980. The elected members were notified that they could take the oath as required by Article 188 of the Constitution at the session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days. In the meanwhile on June 17, 1980, the Election Commission issued a notification calling upon the elected members of the Uttar Pradesh Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha. By that notification, the Election Commission fixed the following programme for the purpose of the said) 24.6.1980 - as the last date for making nomination.(b) 25.6.1980 - as the date for scrutiny of the nomination papers(c) 27.6.1980 - as the last date for withdrawal of candidature.(d) 4.7.1980 - as the date on which a poll, if necessary, would be taken.(e) 7.7.1980 - as the date before which the election had to beNath Sukul, the appellant in Civil Appeal No. 1775 of 1981 (hereinafter referred to as the appellant) and Nem Chandra Jain, respondent No. 1 were nominated as the candidates at that election. At the time of scrutiny, respondent No . 1 filed objections to the nomination of the appellant raising two grounds-(1) that the appellant was disqualified as he was a Government servant and (2) that the proposer of the candidature of the appellant was not qualified to propose his candidature as he had not yet taken the oath as required by Article 188 of the Constitution. The appellant pleaded that as he had retired voluntarily from the Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer of his candidature was an elected member of the Legislative Assembly who was competent to make the proposal even though he had not taken the oath as provided in Article 188 of the Constitution. The Objections of respondent N o. 1 were overruled and the nomination papers of both the appellant and respondent No. 1 were accepted by the Returning Officer. At the poll which took place on July 4, 1980 the appellant secured 325 votes and respondent No. 1 got 41 votes. Accordingly the appellant was declared to be elected as a member of the Rajya Sabha. Aggrieved by the result of the election. respondent No. 1 filed an election petition before the High Court calling in question the result of the election on various grounds and of them we are now concerned with two grounds only and they are (1) that as the Secretary of the Legislative Assembly was neither an officer of the Government nor of a local authority, he could not be appointed as the Returning Officer under section 21 of the Act and (2) that as the proposer of the nomination paper of the appellant had not made or subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of the nomination, there was improper acceptance of the nomination of the appellant. The appellant, the Election Commission of India, the State of Uttar Pradesh and Shri S. P. Singh, the Returning Officer were impleaded as respondents to the election petition. The name of the Governor of Uttar Pradesh who had also been impleaded as a respondent was deleted by the order of the High Court. The petition was contested by the appellant and others who had been impleaded as respondents in the election petition. At the conclusion of the trial, the High Court set aside the election of the appellant on the following grounds viz. that Shri S. P. Singh, Secretary, Legislative Assembly was not qualified to be appointed as the Returning Officer; that the proposal of the candidature of the appellant by a member of the Legislative Assembly who had not made and subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination was illegal and hence there was improper acceptance of the nomination of the appellant and that there was no valid electoral roll in force on the date of nomination. Aggrieved by the judgment of the High Court, the appellant has preferred Civil Appeal No. 1775 of 1981, the Election Commission of India has filed Civil Appeal No. 1975 (E) of 1981 and the State of Uttar Pradesh has preferred Civil Appeal No. 2736 (E) of 1981. All these three appeals are disposed of by this common judgment.We shall first deal with the question whether the Secretary of the Legislative Assembly was not qualified to be appointed as the Returning Officer for the election. Section 21 of the Act which deals with the appointment of Returning Officers reads. Returning Officers-For every constituency, for every election to fill a seat or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be an officer of Government or of a local authority:Provided that nothing in this section shall prevent the Election Commission from designating or nominating the same person to be the returning officer for more than one constituency." (Emphasiscontention of respondent No. 1 which has been accepted by the High Court is that the Secretary of the Legislative Assembly being not an officer of Government or of a local authority he was not qualified to be appointed as the Returning Officer. The argument is that Government in the expression an officer of Government used in section 21 of the Act means the Executive only and an officer of the Legislature is not, therefore, an officer ofcase is an illustration of some legal problems solutions for which appear to be quite obvious but when an attempt is made to give reasons for such solutions one would be confronted with many difficulties though not insurmountable. The expressions Government and an officer of Government are not defined in the Constitution or in the Act. Article 367 of the Constitution provides that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 of the Constitution, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. Section 3(23) of the General Clauses Act, 1897 defines Government asGovernment or the Government shall include both the Central Government and any Stateabove definition is an inclusive definition and it suggests that there may be other organs of State which may be included within the meaning of the expression Government. The expressions Central Government and State Government are defined in section 3(8) and section 3(60) of the General Clauses Act, 1897 respectively. These definitions are to be adopted unless there is anything in the context to the contrary. A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State. In Part I of the Constitution the expressions the Union. the States and the Union Territories are used. In Article 12 of the Constitution, we find the expressions Government and Parliament of India and Government a nd the Legislature of each of the States suggesting that Government is different from the Union Legislature or the Legislatures of the States. This is for purposes of Part III of the Constitution. In Article 102(1)(a) and Article 191 (1)(a) of the Constitution, the expressions the Government of India and the Government of any State are used and they provide that a person holding an office of profit under the Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively. Article 98 and Article 187 of the Constitution provide for the appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively. Article 146 and Article 229 of the Constitution respectively deal with the appointment of officers and servants of the Supreme Court and of the High Courts. Article 148(5) and Article 318 of the Constitution respectively de al with the conditions of service etc. of the employees working in the office of the Comptroller and Auditor-General of India and the Public Service Commissions. Part XIV of the Constitution contains provisions relating to the services under the Union Government and the State Governments. It contains Article 311 which guarantees certain rights which cannot be denied to the employees in the Legislature and in the Judiciary. Dealing with the nature of the office held by the officers working in the High Court, who are governed by Article 229 of the Constitution this Court has observed in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court(1)close scrutiny of the terminology so us ed shows a marked departure in the language of article 320(3)(c) from that in articles 310 and 311. Officers and members of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in articles 310 and 311. The salaries of these persons are paid out of the State funds as appears from article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the High Court, are chargeable upon the Consolidated Fund of a State. The item relating to such administrative expenses has to from part of the annual financial statement to be presented to the State Legislative Assembly under article 202 and estimates thereof can form the subject matter of the discussion in the Legislature under article 203(1). They must, therefore, be taken "to hold posts in connection with the affairs of the State and to be members of the civil service of the State".

Reasoning:
Article 191 of the Constitution prescribes the disqualifications for membership of the Legislative Assembly or Legislative Council of a State. On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof. Article 193 of the Constitution provides for the penalty for sitting and voting before making oath or affirmation under Article 188 of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees to be recovered as a debt due to the State. It does not say that if an elected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 of the Constitution he shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4) of the Constitution if for sixty days he is absent from all meetings of the House without its permission. Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to a ct as a proposer of a valid nomination for election to the Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words `sitting and voting in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the Legislative proceedings o f the House carried on at its meeting. Nor the votes cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. As mentioned earlier, under section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven oclock in the forenoon and three oclock in the afternoon before the last day notified for making nominations under section 30 of the Act. Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer. Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling. Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged withare of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by respondent No. 1. Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout.