[2008] 14 S.C.R. 1124

CHET RAM -+

II.

JIT SINGH & ANR. (Civil Appeal No. 6225 Of 2008)

OCTOBER 22, 2008

[S.B. SINHA AND CYRIAC JOSEPH, JJ.)

Punjab State Election Commission Act, -1994:

-1r

ss.11(g), 12 and 75 - Nagar Panchayat Elections - Disc qualification - Candidature of Gramin Oak Sewaks to contest the elections challenged - Held: Gramin Oak Sewaks are Govemment servants, disqualified to contest the elections - When an election petition is filed, all questions which arise for consideration of Election Tribunal must be adjudicated upon on D the basis of evidence brought on record by parties - Tribunal has jurisdiction to determine eligibility of a candidate to con- . test in the election - Department of Posts, Gramin Oak Sewak (Conduct of Employment) Rules, 2001 - r.22(4) - Constitution of lndi8:, 1~_5.0- Articles 309, 243F and 243V E In the instant appeals filed by Gramin Oak Sewaks, whose candidature in contesting Nagar Panchayat elections was questioned, the issue for consideration before the Court was as to whether a Gramin Oak Sewak was a .._._..__ government servant and, consequently, was disqualified F to become a member of Nagar Panchayat in terms of Sec- tion 11(g) of the Punjab State Election Commission Act, 1994.

Dismissing the appeals of the candidates, the Court

.G HELD: 1.1 Indisputably, the terms and conditions of a Gramin Oak Sewak are governed by the provisions of t- _.._, the Department of Posts, Gramin Oak Sewak (Conduct and Employment) Rules, 2001, which were framed in terms of the proviso to Article 309 of the Constitution of India.

H 1124

CHET RAM v. JIT SINGH & ANR. 1125

.i 1 The Rules framed in terms of the proviso appended to A Article 309 indisputably govern only government employees. They are prohibited from taking part in Panchayat/ Nagar Panchayat elections. It was, therefore, for the appellant to show that he was not governed by the Rules. [Para 9] (1129-B, D, E) B

Union of India and Others v. Kameshwar Prasad (1997)

...}- 11 sec 650 - relied on .

1.2 Section 11 of the Punjab State Election Commission Act, 1994 provides that a person shall be disqualic fied for being chosen as and for being a member of a Panchayat or a Municipality, inter alia, if he holds an office of profit under the Government of India or any State Government. Section 12 lays down that if a question arises as to whether a member of any Panchayat or Mu- D nicipality has become subject to any of the disqualifications specified in Article 243F or 243V of the Constitution or in Section 11 of the Act, the question shall be referred for decision of the State Government and its decision shall

be final. It has furthermore been provided that before giving any decision on such question, the State Government E shall obtain the opinion of the Election Commission and shall act in accordance therewith. The same, however, would not mean that the Election Tribunal was not com- - petent to decide the question as to whether the returned

/ "1 candidate was or was not qualified for being chosen as a F member of Panchayat or Municipality. [Para 8-9] (1129-A,

E, F, G)

1.3 When an election petition is filed, all questions which arise for consideration by the Tribunal must be adjudicated upon on the basis of the materials brought on G

"" -t record by the parties. As regards eligibility of a candidate to contest in an election of the municipalities in question, the Tribunal had jurisdiction to determine the same. A finding has been arrived at by it on the basis of the materials brought on record that the appellants were government H

A employees and their terms and conditions of service were governed by the statutory rules. The High Court has rightly held that the appellants were disqualified from contesting in the election of Nagar Panchayats. [Para 11 and

13] (1130-D, E; 1136-B) 8 Shibu Soren v. Dayanand Sahay and Others 2001 (3) SCR 1020 = (2001) 7 SCC 425; M. V Rajashekaran and Others v. Vatal Nagaraj and Others 2002 (1) SCR 412 = (2002) 2 SCC 704; Guru Gobinda Basu v. Sankari Prasad Ghosa/ and

Others (1964) 4 SCR 311=AIR 1964 SC 254; Pradyut Bordoloi C

v. Swapan Roy 2000 (5) Suppl. SCR 525 = (2001) 2 SCC 19; and Jaya Bachchan v. Union of India 2006 (2) Suppl.

SCR 11 o = (2006) 5 sec 266 - relied on.

Madhukar GE Pankakar v. Jaswant Chobbildas Rajani D and Others 1976 (3) SCR 832 = (1977) 1 SCC 70 - Distinguished.

CASE LAW REFERENCE

1976 (3) SCR 832 distinguished

 2001 (3) SCR 1020

2002 (1) SCR 412

(1964) 4 SCR 311

relied on

relied on

relied on

2000 ( 5) Suppl. SCR 525 relied on

2006 (2) Suppl. SCR 110 relied on

(1997) 11 sec s5o relied on

para 6

para 11

para 11

para 11

para 11

para 11

para 12

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6225 of 2008

G From the final Judgment/Order dated 4/11 /2004 of the High

+ I

Court of Punjab and Haryana at Chandigarh in F.A.O. No. 4305 t- ,., of 2004

WITH

H Civil' Appeal No. 6336 of 2008

CHET RAM v. JIT SINGH & ANR. 1127

~ Punit Leekha, A.P. Mohanty and Ashiesh Kumar for the A

-~ 1

( ...

Appellant.

Neeraj Kumar Jain, Bharat Singh, Sanjay Singh, Umang Shankar, Ugra Shankar Prasad, Jagjit Singh Chhabra and Jaswant Besoya for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J : 1. Leave granted.

2. Whether a Gramin Oak Sewak is a government servant and consequently is disqualified to become a member of Nagar c Panchayat in terms of Section 1.1(g) of the Punjab State Election Commission Act, 1994 (for short "the Act") is the question involved herein.

3. The fact of the matter is being noticed from Civil Appeal arising out of SLP (C) No. 1610 of 2005.

Indisputably, while working as Gramin Dar Sewak, appellant contested in an election for membership of Nagar Panchayat Sardulgarh held on 9.03.2003.

Respondent No. 1 filed an election petition in terms of Sec- E tions 76, 79 and 89 of the Act and Rule 87 of the Punjab Municipal Election Rules, 1994 before the Election Tribunal. However, upon receipt of notice, appellant submitted his resignation.

We must, however, place on record that Harnek Singh, appellant in Civil Appeal arising out of SLP (C) No. 7276 of F 2005, was chargesheeted for participating in politics.

4. Contention of appellant that he was not a government employee having been working on part time basis and, thus, was not disqualified in terms of Section 11 (g) of the Act was G rejected by the Tribunal by reason of its judgment and order dated 25.08.2004 inter alia holding that having regard to the provisions of Rule 22(4) of the Department of Posts, Gramin Oak Sewak (Conduct and Employment) Rules, 2001 (for short "the Rules") he stood disqualified.

5. An appeal was preferred thereagainst which was -t marked as FAO No. 4305 of 2004. By reason of the impugned judgment, the High Court held:

"The appellant is a part time employee of the post office

~ under the Central Government, outside regular civil service. • B Nonetheless, he is holding this post under the Government and he is also entitled to protection under Article 311 of the Constitution, in view of the judgment of the Apex Court in Rajamma's case (supra) and other judgments. He is also getting remuneration by way of salary. He is appointed c by and paid by Central Government and is under direct control of the Central Government. Case of Madhukar G.E.

Pankakar (supra) relating to Insurance Medical practitioner appointed under the provisions of ESI Act is different. In the said case, the employee was not being paid directly D by the Government nor was control of the Government direct, as observed in para 40 of the judgment. In the ,,.. present case, position is different. The appellant was, thus, rightly held to be disqualified from contesting election."

E Appell.ant is, thus, before us.

6. Mr. Punit Leekha, learned counsel appearing on behalf of the appellant would submit that a part time employee working in a post office does not hold any office of profit under the government and, therefore, the impugned judgment cannot be

...,......_

F sustained. Strong reliance in this behalf has been placed on 'r- Madhukar GE. Pankakar v. Jaswant Chobbildas Rajani and Others [(1977) 1 SCC 70).

7. The learned counsel appearing on behalf of the respondent, on the other hand, would support the judgment.

8. The Act was enacted for constitution of a State Election Commission and for vesting the superintendence, direction and "

Ao..

control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayats and Municipalities in the State

H of Punjab.

' 1 Chapter II of the Act provides for constitution of the State A Election Commission. Chapter IV of the Act provides for disqualifications. Section 11 of the Act provides that a person shall be disqualified for being chosen as and for being a member of a Panchayat or a Municipality inter alia if he holds an office of profit under the Government of India or any State Government. 8

9. Indisputably, the terms and conditions of a Gramin Oak Sewak are governed by the provisions of the Rules; Sub-rule

(4) of Rule 22 whereof reads as under:

"(4) No Sevak shall canvass or otherwise interfere with or use his influence in connection with, or take part in an c

election to any legislative or local authority;"

The said Rules were framed in terms of proviso appended to Article 309 of the Constitution of India. The terms and conditions of employment of a Gramin Oak Sewak are governed by 0 statutory rules.

The Rules framed in terms of the proviso appended to Article 309 of the Constitution of India indisputably govern only government employees. It was, therefore, for appellant to show ·

E that he was not governed by the Rules. As noticed hereinbefore, Section 11 (g) of the Act lays down the conditions for disqualification. Section 12 of the Act provides that if a question arises as to whether a member of any Panchayat or Municipality has become subject to any of the disqualifications specified in Article 243F or 243V of the Constitution of India or in Section F

11 of the Act, the question shall be referred for decision of the State Government and its decision shall be final. It has furthermore been provided that before giving any decision on such question, the State Government shall obtain the opinion of the Election Commission and shall act in accordance thereof. cs

-"" --; The same, however, would not mean that the Election Tribunal was not competent to decide the question as to whether the returned candidate was or was not qualified for being chosen as a member of Panchayat or Municipality.

10. Chapter XII of the Act deals with election petitions. t Section 73 of the Act provides for constitution of an Flection Tribunal. Section 74 mandates that no election shall be called

in question except by an election petition presented in accordance with the provision of Chapter XII. Section 75 lays down B' that only the Election Tribunal having jurisdiction shall have the power to adjudicate upon the election petitions. Section 79 provides that an applicant may in addition to claiming a declaration that the election of all or any of the returned candidates is void, may claim a further declaration that he himself or any other c candidate may be declared as duly elected. Various provisions have been laid down as regards procedures to be followed in such petitions.

11. When an election petition is filed, all questions which arise for consideration by the Tribunal must be adjudicated upon D on the basis of the materials brought on record by the parties.

As regards eligibility of a candidate to contest in an election of the municipalities in question, the Tribunal had jurisdiction to determine the same. A finding has been arrived at by it on the basis of the materials brought on record that appellants were

E government employees. It is not denied or disputed that their terms and conditions of service were governed by the statutory rules.

In Madhukar GE. Pankakar (supra), whereupon reliance has been placed by Mr. Leekha, this Court in regard to the ques- F tion as to whether an employee falls within the description of "office of profit under government" opined that for holding an

,...

office of profit under government one need not be in the service of government and there need not be any relationship of master and servant. It was furthermore held that all factors need not G be conjointly present. However, as the petitioners therein were

only insurance medical practitioners, it was held that they did not hold any office of profit inasmuch as the services rendered ....

by them have no substantial link with the end, viz., the possible misuse of position as insurance medical practitioner in doing

H his duties as Municipal President.

i We are conscious of the fact that Madhukar GE. Pankakar A

(supra) has been referred to subsequently by this Court in Shibu Soren v. Dayanand Sahay and Others [(2001) 7 SCC 425] and M. V Rajashekaran and Others v. Vatal Nagaraj and 0thers [(2002) 2 sec 704].

Whereas in the case of S.bibu Soren (supra), the applia

cant was nominated by the State Government as the Chairman

--t of the Interim Jharkhand Area Autonomous Council, which was a statutory organization, in the case of M. V Rajashekaran (supra), the applicant was only a member of a Commission.

In Shibu Soren (supra), this Court held: c

"36. The question whether a person holds an office of profit, as already noticed, is required to' be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory D provisions. While "a strict and narrow construction" may not be dopted which may have the effect of "shutting off many prominent and other eligible persons to contest the elections" but at the same time "in dealing with a statutory provision which imposes a disqualification on a citizen it E. would be unreasonable to take merely a broad and general view and ignore the essential points". The approach which appeals to us to interpret the expression "office of profit" is that it should be interpreted with the flavour of reality

~ bearing in mind the object for enactment of Article F

102(1 )(a), namely, to eliminate or in any event to reduce the risk of conflict between the duty and interest amongst members of the legislature by ensuring that the legislature does not have persons who receive benefits from the executive and may thus be amenable to its influence." G

..A 1 The legal principles enunciated in Shibu Soren (supra) were followed in M. V Rajashekaran (supra) holding:

II ... A conspectus of the aforesaid decisions of this Court unequivocally therefore indicates that the question has to H

A be answered depending upon the facts peculiar to the '+- case in hand with the object of finding out whether in fact . \

he Government retains some control over the post yvhich the incumbent was holding at the time of filing of nomination 1-- and was there any profit attached to the post in question ..

B The underlined idea obviouly is, that it should be free from any pressure from the Government so that there can be no conflict in discharge of his independent duties as a ~ Member of the Legislative Assembly or the Legislative 'r Council. .. " c The government employees are prohibited from taking part in election to a Panchayat or Nagar Panchayat. Such prohibitlon was introduced for obvious reasons. The legislative object I- in making the Rules is very clear, viz., the status enjoyed by a candidate shall not be allowed to be prejudicial vis-a-vis a can- D didate who does not enjoy such a status.

In Guru Gobinda Basu v. Sankari Prasad Ghosal and 0th-

)...

ers [AIR 1964 SC 254: (1964)-4 SCR 311], this Court held that an auditor of two government companies-held an office of profit unger government within the meaning of Article 102(1 )(a) of the E Constitution of India stating: ·

"Learned counsel for the respondents has been content to argue before us on the basis that the two companies having been incorporated under the Indian Companies Act, 1956 I

_, are separate legal entities distinct from Government. Even

t- F ~

~ on that footing he has contended that in view of the provisions of Section 619 and other provisions of the Indian Gompanie, s Act, 1956, an auditor appointed by the Central Government and liable to be removed from office by the

G same Government, is a holder of an office of profit under the Government in respect of a company which is really a hundred per cent Government Company. .,... >...

12. We think that this contention is correct. We agree with the High Court that for holding an office of profit under the H Government, one need not be in the service of Government

and there need be no relationship of master and servant A between them. The Constitution itself makes a distinction between 'the holder of an office of profit under the Government' and 'the holder of a post or service'tmder the.

Government'; see Articles 309 and 314. The Constitution has also made a distinction between 'the holder of an , B office of profit under the Government' and 'the holder of an office of profit under a local 'or other authority subject to the control of Government'; see Articles 58(2) and 66(4). lrr Maulana Abdul Shakur v. Rishab Chand the appellant was the manager of a school run by a committee of C management formed under the provisions of the Durgah Khwaja Saheb Act, 1955. He was appointed by the administrator of the Durgah and was paid Rs 100 per , month. The question arose whether he was disqualified to be chosen as a member of Parliament in view of Article

102(1)(a) of the Constitution. It was contended for the [) respondent in that case that under Sections 5 and 9 of the Durgah Khwaja Sat)eb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the 6 committee; therefore the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of

India. This contention was repe11ed and this Court pointed out the distinction between 'the holder of an office of profit F, Government' and 'the holder of an office of profit under some other authority subject to the control of Government'.

Mr Chaudhuri has contended before us that the decision is in his favour. He has argued that the appellant in the present case holds an office of profit under the Durgapur G Projects Ltd. and the Hindustan Steel Ltd. which are incorporated under the Indian Companies Act; the fact that the Comptroller and Auditor-General or even the Government of India exercises some control does not make the appellant any the less a holder of office under H

19]

the two companies. We do not think that this line of argument is correct."

[See also Pradyut Bordo/oi v. Swapan Roy (2001) 2 SCC

Jaya Bachchan v. Union of India [(2006) 5 SCC 266] was another case, where a simil_ar question arose for consideration.

It was held:

"6. Clause (1 )(a) of Article 102 provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. The term "holds an office of profit" though not defined, has been the subject-matter of interpretation, in several decisions of this Court. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non, compensatory allowance is attached, is "holding an offiee of profit". The question whether a person holds an office of profit is required to be interpreted in a realistic manner.

Nature of the payment must be considered as a matter of substance ather than of form. Nomenclature is not important. In fact, mere use of the word "honorarium" cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is

relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually

...

Iobtained a monetary gain. If the "pecuniary gain" is A "receivable" in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pockeVactual expenses, then' the s office will be an office of profit for the purpose of Article 102(1 )(a). This position of law stands settled for over half a century commencing from the decisions of Ravanna Su.banna v. G.S. Kaggeerappa, Shivamurthy Swami lnamdar v. Agadi Sanganna Andanappa, Satruchrla C Chandrasekhar Raju v. Vyricherla Pradeep Kumar Qev and Shibu Soren v. Dayanand Sahay."

12. In Union of India and Others v. Kameshwar Prasad [(1997) 11 sec 650], it was held:

D "2. The Extra Departmental Agents system in the Deps:irtment of Posts and Telegraphs is in vogue since

1854. The object underlying it is to cater to postal needs of the rural communities dispersed in remote areas. The system avails of the services of schoolmastes, shopkeepers, landlords and such other persons in a village E who have the faculty of reasonable standard of literacy and adequate means of livelihood and who, therefore, in their leisure can assist the Department by way of gainful avocation and social service in ministering to the rural communities in their postal needs, through maintenance F of simple accounts and adherence to minimum procedural formalities, as prescribed by the Department for the purpose. [See: Swamy's Compilation of Service Rules for Extra Oepartmenal Staff in Postal Department p. 1,)

3. The Extra Departmental Agents are government servant$ - _ holding a civil post and are entitled to the protection of Article 311 (2) of the Constitution (See: Supdt. of Post

Offices v. PK. Rajamma). They are governed by separate set of rules, viz., the Posts and Telegraphs Extra H

Departmental Agents (Conduct and Service) Rules, 1964 (herejnafter referred to as "the Rules"). The Central Civil Services (Classification, Control and Appeal) Rules are not applicab!e to this category of employees in view , of the notification dated 28-2-1957 issued by the Government of India under Rule 3(3) of thesaid Rules."

13. In view of the aforementioned authoritative pronouncements, the High Court must be held to be correct in arriving at its opinion that appellants were disqualified from contesting in the election of Nagar Panchayats. The appeals are dismissed C accordingly. No costs.

R.P.

Appeals dismissed.