Case: STATE ELECTION COMMISSIONER, BIHAR PATNA  Vs. JANAKDHARI PRASAD

t herein, was elected in the year 2001 as a member of Panchayat Samiti, Nagarnausa. On 13th February, 2004, the fifth, Ravindra Nath Sharma, filed a petition before the State Election Commission, Bihar (for short the Commission) contending, inter alia, that thet No. 1 was working as an Assistant Government Pleader in Hilsa, sub-division of District Nalanda and, therefore, he was disqualified to hold the post of member, Panchayat Samiti in view of Section) of the Bihar Panchayat Raj Act, 1993 (for brevity,2. The Election Commission, in order to decide the issue whether the 1t was in service of the State Government within the sweep of Section) of the Act, referred to the appointment letter issued by the Law Department, Government of Bihar, vide which thet herein was appointed as an Advocate in the panel of Assistant Government Advocates and thereafter observed that the saidt was holding a post under the State Government and was receiving fees for the cases conducted by him from the Government and hence, he would be deemed to be in service of the State. Being of this view, the Election Commission vide order dated 29.03.2004 disqualified the) of the Act from the post of Member in the Panchayat Samiti.3. Aggrieved by this Order of the Commission, the 1t knocked at the doors of the High Court of Judicature at Patna by preferring a Writ Petition (CWJC) No. 4322 of 2004Article 226 of the Constitution of India for quashment of the order of the Commission. The learned Single Judge opined that the word service has not been defined under the Act and hence, its meaning has to be ascertained in the context it is used and the context in which it is used denotes various classes or category of posts within it. The learned Single Judge further observed that no hard and fastcan be laid to ascertain as to which category of office shall come within the expression service, for host of factors have to be taken into consideration to determine such relationship. He further proceeded to observe that none of the factors may be conclusive and no single factor may be considered absolutely essential. Eventually, heIn my opinion, for bringing an office within the expression service of State Government there has to be a relationship of Master and Servant, age of entering and retirement, scale of pay or fixed remuneration, the Conduct and Discipline Rules and such other factors. The presence of one ingredient or the other may not necessarily bring a particular office within the expression service in the context of disqualification but presence of some or the other is necessary for the purposeThereafter, the learned Single Judge examined the nature of appointment of a Government pleader who is paid a retainer-ship as fee and differentiated between the nature of appointment of an Assistant Government Pleader from that of a Government Pleader and came to hold that so far as the Assistant Government Pleader is concerned, he is appointed to assist the Government Pleader and for the professional work rendered, he is paid remuneration but not paid any retainer fee. He further expressed the view that a Government Pleader is not entitled to appear against the State Government but an Assistant Government Pleader, can appear, against the State Government in a case. The Assistant Government Pleader is basically an Advocate on the roll of the State Bar Council and besides giving professional advice to other litigants by virtue of his/her engagement by the State Government, he/she also advises and represents the State Government in Courts of Law. The appointment of the Government Pleader is governed by the executive instruction which is a tenure appointment and he remains a legal practitioner for all purpose and intent. That apart, the engagement of an advocate as an Assistant Government Pleader is a professional engagement and the relationship between the State and that of the Assistant Government Pleader is that of a lawyer and client and not of Master and Servant. There is neither minimum or maximum age limit for engagement of a person as an Assistant Government Pleader nor there is any age of retirement. Assistant Government Pleader is paid fees for the professional work done by him and his remuneration is not fixed in a particular time scale. Additionally, no Discipline Rules govern his conduct and he is bound by same Code of Conduct as any other lawyer. Considering all the aspects in a cumulative manner, he arrived at the conclusion that the Assistant Government Pleader cannot be said to be in service of the State Government so as to bring him within the mischief of Section4. On the issue of office of profit, the learned Single Judge observed that the expression in service of the State Government and the expression office of profit in State Government are not synonymous and, therefore, a person may hold an office of profit under the State but that does not amount to the fact that he is in service of the State. With the aforesaid reasoning, he set aside the order of the Commission5. Aggrieved by the aforesaid view, the State Election Commissioner filed an appeal, being L.P.ANo. 879 of 2004, before a Division Bench of the High Court, which concurred with the view expressed by the Single Judge and dismissed the appeal vide impugned judgment and order dated 27.10.2005. The said dismissal has led to filing of the present appeal by special leave.

Reasoning:
11. As has been stated earlier, the learned single Judge has drawn a distinction between office of profit and service under the Government. We think it apposite to restate the legal position, the distinction between the two facets as above and thereafter x-ray the provision, the legislative purpose behind the same and the nature of appointment, we agree, but the distinction, though delicate, is real. An office of insurance medical practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office. We cannot equate it with the post of a peon or security gunman 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 the 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, occupied pro tempore by 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 of profitmore like standing counsel.We may hasten to say that we concur with the said harmonization as we find that it is founded on apposite reasoning and also in accord with the precedents holding the view as regardsBe it noted, eventually, the Court ruled that thet therein a doctor functioning under the ESI Scheme was not holding an office of profit25. In the case at hand, the firstt was treated as disqualified on the foundation that he was in service of the Government. In this context, we may usefully refer to the letter of appointment issued by the Government of Bihar, Legal (Justice) Department to the District Magistrate, Nalanda. It reads asGovernment of Bihar Legal (Justice)Joint Secretary to the Government, BiharSub.: In relation to appointment of Assistant Government Advocate for the Court at Nalanda and HilsaIn reference to your letter No. 6224 dated20.7.99 on above mentioned subject and law Department Letter No. 2413 dated 6.7.2000 as per direction I have to inform that the State Government has been kind to appoint Sri Janakdhari Prasad, Advocate on the post of Assistant Government Advocate in the panel of Assistant Government Advocates constituted for the Court at Nalanda and Hilsa.After this appointment the total number of Assistant Government Advocates in the Court of Nalanda would be 19 (Nineteen) and the total number of Assistant Government Advocates in the Court of Hilsa would be 4 (four).Joint Secretary to the Govt., BiharAnalyzing the letter, the Election Commission has held that the elected candidate was holding a post under the State Government and, therefore, he was disqualified) of Section 139 of the Act26. On a careful scrutiny of the communication, it is quite vivid that theappointed to the post of Assistant Government Advocate in the panel of Assistant Government Advocates constituted for the courts at Nalanda and Hilsa. There is no mention of any fixed remuneration27. In the obtaining factual score, would it be appropriate to accept the submission of thes that the elected candidate was in the service of the government. The legislature has, in exercise of its legislative power and wisdom, not used the words office ofTherefore, whether such a letter of appointment can be construed to determine if the person is holding an office of profit is not necessary to be addressed although we have referred to certain authorities to appreciate the context and its fundamental purpose. In the instant case, the election pertains to a Panchayat Samiti which basically relates to the concept at the grass root level. The legislature, as it seems to us, has not thought of office of profit because had it thought so it would have provided in that manner. In Sakhawant Ali (supra), the legislature had provided a disqualification keeping in view the conflict of interest. The absence of such a provision possibly is to include persons from different fields as long as they are not in service under the government or a service in an institution receiving aids from the Central or State Government or any local authority. The legislature, as the postulate stands today, has confined to categories of service mentioned hereinbefore. It depends on the legislative wisdom. It further needs to be stated that the nature of disqualification has to be strictly construed keeping in mind that right to contest an election is not a fundamental right but the said right may be curtailed under valid statutory provision28. The aforesaid being the position, we may presently focus on what constitutes a service. In State of Assam andv. Kanak Chandra Dutta, Bachawat, J., speaking for the Constitution Bench, held that a person holding a post under a State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post29. In this regard, reference to another Constitution Bench decision in Roshan Lal Tandon v. Union of Indiawould be apposite. In the said case, it has been opined that the legal position of a Government servant is more one of status than aAIR 1967 SC 884 AIR 1967 SC 1889 31. Relying on the same and other aspects, the CourtThe above provisions in the L.R. Manual clearly show that the Government Counsel in the districts are treated as Law Officers of the State who are holders of an office orpost. The aforesaid provisions in Chapter VII relating to appointment and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person based on the opinion of the District Officer and the District Judge; and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the district. There are provisions to bar private practice and participation in political activity by D.G.e 3 of para 7.06 to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public interest. All Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public element attaching to the office or post.After so stating, the Court referred to Sections 24 and 321 of the Code of Criminal Procedure and further analyzed the ratio in Mundrika Prasad Singh v. State of Biharand Mukul Dalal andv. Union of India andnd came to hold that the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the scheme of Code has a social purpose.(1979) 4 SCC 701 (1988) 3 SCC 144 We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial reviewIn our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present caseThe aforesaid passages clearly show that the Court went by the concept of public element attached to the office or post of Government Pleader. It has not expressed the opinion that they are under the Government service. Be that as it may, as has been held by the learned Single Judge and rightly so, there is no master-servant relationship and thet was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. As we notice, there is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government.