Case: Satrucharla Chandrasekhar Raju Vs. Vyricherla Pradeep Kumar Dev and Ors

2. The appellant was appointed as a Single Teacher in a primary school run by the Integrated Tribal Development Agency (ITDA for short) by its Project Officer. He joined duty in January 1988 and was working in a school in Jiyyammavalasa Mandal in Vizianagaram district. On 2.8.88 the Tribal Welfare Officer inspected the said school and is alleged to have noticed some irregularities and he kept the appellant under suspension pending enquiry by an order dated 23.8.88. The appellant questioned the same before the Andhra Pradesh Administrative Tribunal by filing a petition but the same was rejected. Thereafter by a letter dated 26.10.1989 the appellant submitted his resignation to the Project Officer who was the appointing authority. However, the Project Officer made an endorsement on the said letter that his resignation cannot be accepted in view of the pending enquiry. Subsequently the election programme for the Legislative Assembly was announced and the appellant filed his nomination and contested election from the above-mentioned constituency on 22.11.89 Counting took place on 26.11.89 and on 27.11.89 the appellant was declared duly elected. The respondent No. 1, who was one of the contesting candidates and who lost the election, filed an election petition challenging the election of the appellant on the ground that the appellant was disqualified as he was holding an office of profit not only on the date of filing the nomination but also subsequently in view of the fact that his resignation was not accepted in view of the pending enquiry and therefore he shall be deemed to be holding an office of profit under the Government. The respondent also stated in his election petition that he was not aware of the appellants disqualification at the time of the scrutiny of the nomination papers. The appellant filed a written submission contesting the election petition inter alia contending that the ITDA under which he is deemed to be holding an office as a teacher was only a registered society under the Societies Registration Act and the said society cannot said to be the Government nor is a part of the Government and that it is an independent body. It is also stated that since he has tendered his resignation on 26.10.89 it shall be deemed to have come into effect from that date.3. The only issue that came up for consideration before the High Court in the election petition was whether the first respondent i.e. appellant herein was holding an office of profit under the Government of Andhra Pradesh on the date of his nomination and was disqualified to contest for the same.4. Evidence was led in by both the sides. The main contention of the appellant was that the ITDA was only a registered society and even assuming that the Government has some control over the sanction of posts and composition of the governing body of the ITDA it cannot be said to be the Government or part of it or to be an instrumentality of the Government. Therefore the appellant cannot be said to have been holding an office of profit and the mere fact that he was appointed as a teacher by the Project Officer of the Society he cannot be deemed to have been appointed by the Government. The learned Judge after referring to the relevant clauses of memorandum of association of the Society held that (i) Although the Society appears to be independent of the State Government but in substance its activities are controlled by the officers of the Government who are ex-officio members of the governing body. The Chairman as well as the Project Officer are the officers of the State Government. A majority of the members of the governing body are the officers holding posts in the Government by virtue of which they became the ex-officio members of the governing body. Thus for all practical purposes it is the officers of the Government who control the activities of the society: (ii) though the Project Officer is the appointing authority of the appellant but he is only a Secretary of the Society by virtue of his being an officer in the Government; (iii) the Government sanctions the number of posts of teacher, fixes their scales of pay; (iv) although the rules provide to have funds of its own by way of recurring and non-recurring grants made by the Government of India but it is the Government who sanctions the funds: (v) since the Civil Services (Classification, Control and Appeal) Rules of the State Government are being applied to the teachers of the Society, they must be deemed to have been treated as the employees of the Government. The State has to provide free and compulsory education to all the children and primary education is also the responsibility of the State Government and it is meeting expenditures out of its funds. Therefore the function of appointment of the teachers in the Society by the Project Officer is one of the Governmental functions and thus the State Government exercises almost full control. For the aforesaid reasons the High Court held that the appellant was holding an office of profit and thus incurred the disqualification.

Reasoning:
6. Before we proceed further one aspect namely that the appellant ceased to be a teacher before he filed his nomination to contest the assembly election by virtue of the fact that he sent a letter of resignation to the post, has to be considered. Admittedly the resignation was not accepted by the day of his election and he was kept under suspension pending enquiry w.e.f. 23.8.88 and he was being paid the subsistence allowance in accordance with the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules. The learned Judge of the High Court has also mentioned in the judgment that the appellant did not persist on framing an issue in this regard and hence no specific issue was framed as to whether the resignation of the appellant was effective from the date he submitted his resignation and -therefore he ceased to be a teacher. It appears that the said plea was not pressed at the time of hearing of the election petition . Therefore it follows that the appellant was holding the said post at the time of his nomination and election.11. On a careful examination of the ratio laid down in the above mentioned cases some of the tests or principles that emerge for determining whether a person holds an office of profit under the Government, may be summarised thus:(1) The power of the Government to appoint a person in office or to revoke his appointment at the discretion. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature.(2) The payment from out of the government revenues; are important factors in determining whether a person is holding an office of profit or not of the Government. Though payment from a source other than the government revenue is not always a decisive factor.(3) The incorporation of a body corporate and entrusting the functions to it by the Government may suggest that the statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent. Sometimes, the form may be that of a body corporate independent of the Government, but in substance, it may be the just alter ego of the Government itself.(4) The true test of determination of the said question depends upon the degree of control, the Government has over it, the extent of control exercised by very other bodies or committees, and its composition, the degree of its dependence on the Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of the Government.12. It can be seen that one of the main tests of determination of the question is the degree and extent of control i.e. direct or remote over the ITDA by the Government particularly with reference to making the appointment of the persons in office or to revoke the same at its discretion. In this context it is necessary to refer to some later decisions of this Court which are directly on this point and some of which have not been cited before the High Court. Before doing so we may, however, usefully refer to the object underlying Articles 102(1)(a) and 191(1)(a) of the Constitution. These two Articles deal with disqualifications of a person being chosen as a member of the Parliament or the State Legislatures respectively on the ground of holding of office of profit under the Government. Generally it is understood that an office means a position to which certain duties are attached. An office of profit involves two elements namely that there should be such an office and that it should carry some remunerations. It is not the same as holding a post under the Government and therefore for holding an office of profit under the Government, a person need not be in the service of the Government. It is well-settled now that the object of enacting Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict between the duties and interests of an elected member and to see that suchan elected member can carry on freely and fearlessly his duties without being subjected to any kind of governmental pressure, thereby implying that if such an elected person is holding an office which brings him remunerations and if the Government has a voice in his functions in that office, there is every likelihood of such person succumbing to the wishes of thee Articles are intended to eliminate the possibility of such a conflict between duty and interest so that the purity of legislature is unaffected. In Bihari Lal Dobray v. Roshan Lal Dopray [1984]1SCR877 this Court observede object of enacting Article 191(1)(a) is plain. A person who is elected to a legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the Government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of Government. Article 191(1)(a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the Legislatures.14. In this background, we shall examine the ratio laid down in some of the cases with respect to other general tests to be applied. As already noticed that in order to determine whether a person holds an office of profit under the Government. Several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. In Maulana Abdul Shakurs case as noted above one of the main tests laid down is that the power of the Government to appoint a person to an office or profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors and that in determining whether a person is holding an office of profit under the Government the source of payment is not always a decisive factor. In Gurugobinda Basus case it was held that for holding an office of profit under the Government, a person need not be in the service of the Government and there need not be any relationship of master and servant. While upholding the disqualification the Court held that:It is clear from the aforesaid observations that in Maulana Abdul Shakurs case, [1958] SCR 387  the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor. In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies.20. In the case before us, the appellant was holding an office of profit but the matter does not end there. As already noted the next and most important requirement is whether that office was under the Government. In appreciating this aspect, we have to bear in mind, in interpreting these Articles, the object namely to avoid conflict between duty and interest and to eliminate the misuse of official position to advance private benefit and to avoid likelihood of influence of the Government to promote personal advantage. It must also be borne in mind that under these provisions the right to contest is being taken away on the ground of the said disqualification. Such a ban on candidature must have a substantial and reasonable nexus to the object that is to be achieved namely the elimination of possibility of misuse of the position. It is from this point of view that the right to appoint and right to remove the holder of the office in many cases becomes an important and decisivee source of payment for the office may also be taken into consideration but is not always a decisive factor. Likewise the control exercised by the Government may be one of the tests but as mentioned above that by itself is not a decisive test.. Now we shall refer to some of the relevant factors which have been taken into consideration by the learned Judge of the High Court in holding that the appellant held an office of profit under the Government. No doubt the several G.Os referred to by the learned Judge indicated that all the educational institutions in the ITDA shall be brought under the unified control of the Education Department but at the same time we find that ITDA will have administrative control and supervision. From some of the G.Os it is clear that the Government accorded sanction for the creation of the posts and funds for meeting the expenditure. The evidence of the Project Officer, however, shows that he alone appoints teachers and has also the power to remove them but that is in the capacity of Project Officer but is not in the capacity of District Collector. No doubt at the time of appointment of Project Officer, he was a Government employee but once he is appointed as a Project Officer he became an officer of the ITDA exercising administrative control particularly in the matter of appointment of teachers and the removal.22. We must point out that the learned Judge has no doubt taken certain relevant tests to be applied into consideration and has dealt with them in a clear and able manner but with great respect we are unable to agree with him that the appellant held an office of profit under the Government. We reiterate that he was holding an office of profit in ITDA over which the Government has control. But we are concerned with the disqualification of the appellant and in appreciating the same it becomes necessary to determine whether holding such an office comes in any manner into conflict with his duties as a legislator and with his obligations with the Government because of the office he holds. It is in this context the test whether the Government has power to appoint or dismiss him assumes great importance, (vide Ashok Kumar Bhattacharyyas case)23. At this stage we may usefully refer to observations made by this Court in Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Kolhc and Ors. [1975]2SCR753 which are under:The law regarding the question whether a person holds an office of profit should be interpreted reasonably having regard to the circumstances of the case and the times with which one is concerned, as also the class of person whose case we are dealing with and not divorced from reality.24. Now, we may refer to Biharilal Dobrays case on which the learned Counsel for the respondents placed considerable reliance.That was a case where the elected candidate was originally employed as an Assistant Teacher in a Basic Primary School run by the Zila Parishad in U.P. On coming into force of the U.P. Basic Education Act, 1972 he became an employee of the Board of Basic Education under Section 9(1) of the Act. While holding the post of the Assistant Teacher he filed his nomination. He was elected and his election was questioned by the unsuccessful candidate. The High Court dismissed the election petition and in appeal before this Court, it was contended that the elected candidate at the time of filing his nomination was holding an office of profit. The rules framed under the Act lay down that the appellate authorities in case of disciplinary proceedings are the State Government or the officers of the Government depending upon the nature of the posts. This Court after referring to the provisions of the Act and the rules held thus:It is seen that all officers mentioned in column 3 and column 4 of the above Schedule are either the State Government or officers appointed by the State Government. The said officers are all officers of the Government Department who hold the posts in the Board ex officio, that is, by virtue of the corresponding post held by them under the Government. The rules provide for the procedure to be followed in disciplinary proceedings and the punishments that may be imposed when an employee is found guilty of any act of misconduct. Rule 5 of the said rules provides for an appeal against any order imposing punishment to the prescribed authority. The procedure laid down in Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the Uttar Pradesh Government is required to be followed as far as possible in the case of the employees of the U.P. Board of Basic Education. The funds of the Board mainly come from the contribution made by the state Government. The school in question is not a privately sponsored institution which is recognised by the Board. The Statement of Objects and Reasons attached to the Bill which was passed as the Act clearly says that the Act was passed in order to enable the State Government to take over the administration of schools imparting primary education which were being run by the local authorities into its own hands. Even though the representatives of local authorities are associated in the administration of such schools after the Act was passed, the final control of the schools is vested in the Government and such control is exercised by it through the Director and Deputy Director of Basic Education (Member Secretary) and other District Basic Education Officers appointed by the Government.On the basis of these findings this Court held that the Government had direct control and that subordination of the Board and its employees to the Government is writ large on the face of the Act and the rules made thereunder. Learned Counsel for the respondents submitted that the facts in the instant case also are similar. We do not agree. The facts in Biharilal Dobrays case are distinguishable. There, the appointing authority of the teachers is the District Education Officer and the State Government frames rules prescribing the conditions of service, tenure of service, remuneration and other terms including disciplinary action and removal of teachers and other employees who are thus appointed. This Court, however, taking these aspects into consideration held that under the Act, the Government took over all the Basic Schools with the object of providing compulsory education to the children and that every employee of the Board is in fact holding the office under the Government. As a matter of fact in a later decision i.e. in Ashok Kumar Bhattacharyyas case this Court distinguished Biharilal Dobrays case and held thus:The measure of control by the Government over a local authority should be judged in order to eliminate the possibility of conflict between duty and interest and to maintain the purity of the elected bodies. After reviewing various cases, and the provisions of the various sections of the U.P. Basic Education Act, 1972 especially in view of Section 13 of the Act, this Court held in the last mentioned case that the measure of control was such that U.P. Education Board was an authority which was not truly independent of the Government and every employee of the Board was in fact holding an office of profit under the State Government. The Statement of Objects and Reasons of the U.P. Basic Education Act, 1972 and Sections 4, 6, 7, 13 and 19 all of which have been set out in extenso in that decision make that conclusion irresistible.(emphasis supplied)Therefore Biharilal Dobrays case is not of much assistance to the respondents. As a matter of fad, a already observed in Biharilal Dobrays case as well as Ashok Kumar Bhattacharyyas case the emphasis was also on the nature of the post held and the possibility of conflict between duty and interest of an elected member and to appreciate the same the test is whether the Government has power to appoint or dismiss the employee who is being chosen as a legislator.25. It is also necessary to bear in mind that the Government is undertaking several projects and activities including commercial activities through the corporations and local bodies exercising some control over such corporations or bodies. In that view of the matter they may come within the meaning of the State envisaged in Article 12 but that may not be a decisive factor in deciding the issue. As a matter of fact Section 10 of the Representation of People Act as well as Article 58(2) of the Constitution of India do indicate that all persons employed in such undertakings, corporations or local bodies cannot be deemed to suffer disqualification for contesting the elections except to the extent indicated therein. This aspect also has been considered in some of the above-mentioned decisions. If a strict and narrow construction is to be applied that amounts to shutting off many prominent and other eligible persons to contest the elections which forms the fundamental basis for the democratic set-up. Therefore several factors as indicated above depending upon the facts of each case have to be taken into consideration in deciding whether a particular person is disqualified by virtue of his holding an office of profit before concluding that such an office is under the Government.In Madhuker G.E. Pankakars case, as to what should be the approach, it was observedr all, all law is a means to an end. What is the legislative end here in disqualifying holders of offices of profit under government? Obviously, to avoid a conflict between duty and interest, to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive reality. In such an expanding situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non-officials who are wanted in various fields, not as full-time government servants but as part-time participants in peoples projects sponsored by government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part-time in the ennobling occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of office of profit to cast the net so wide that all our citizens with specialities and know-how are inhibited from entering elected organs of public administration and offering semi-voluntary services in para-official, statutory or like projects run or directed by Government or Corporation controlled by the State may be detrimental to democracy itself. Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a Panchayat. A balanced view even if it involves judicious irreverence to vintage precedents, is the wiser desideratum.26. What emerges from the above discussion is that the Government has some control over the ITDA which is set up as a project, since it provides funds and sanctions the posts: the District Collector is appointed as Project Officer and some officers are ex-officio members of the ITDA which carries out the object of providing the compulsory education in tribal areas. But the ITDA is a registered Society having its own constitution. Though the Project Officer is the District Collector, he acts as a different entity. The power to appoint or to remove teachers is not with the Government but with the Project Officer. The Government may have control over the appointing authority but has no direct control over the teachers. The small post that appellant holds in ITDA is only that of a Teacher who is directly under the control of the Project Officer. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the Government which has neither the power to appoint him nor to remove him from service.