Dipak Misra, CJI
Janakdhari Prasad, the 1st respondent herein, was elected in the year 2001 as a member of Panchayat Samiti, Nagarnausa. On 13th February, 2004,
the fifth respondent, Ravindra Nath Sharma, filed a petition before the State Election Commission, Bihar (for short “the Commissionâ€) contending,
inter alia, that the respondent No. 1 was working as an Assistant Government Pleader in Hilsa, subÂdivision of District Nalanda and, therefore, he
was disqualified to hold the post of member, Panchayat Samiti in view of Section 139(l)(c) of the Bihar Panchayat Raj Act, 1993 (for brevity, ‘the
Act’).
2. The Election Commission, in order to decide the issue whether the 1st respondent was in service of the State Government within the sweep of
Section 139(l)(c) of the Act, referred to the appointment letter issued by the Law Department, Government of Bihar, vide which the respondent herein
was appointed as an Advocate in the panel of Assistant Government Advocates and thereafter observed that the said respondent 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 respondent under Section 139(l)(c) of
the Act from the post of Member in the Panchayat Samiti.
3. Aggrieved by this Order of the Commission, the 1st respondent knocked at the doors of the High Court of Judicature at Patna by preferring a Writ
Petition (CWJC) No. 4322 of 2004 under Article 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
fast rule can be laid to ascertain as to which category of office shall come within the expression “serviceâ€, 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, he stated:Â
“In 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 purpose
Thereafter, the learned Single Judge examined the nature of appointment of a Government pleader who is paid a retainerÂship 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 Section 139(l)(c)
of the Act.
4. 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 Commission.
5. Aggrieved by the aforesaid view, the State Election Commissioner filed an appeal, being L.P.A No. 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.
6. Criticising the impugned judgment and order of the High Court, it is submitted by the learned counsel for the appellants that the 1st respondent was
appointed in respect of a sanctioned post and, therefore, he is in service of the Government which would indubitably disqualify him to remain as a
member. It is his further submission that the word “service†contextually is of wider import and it has to be conferred a purposive meaning so that
the democracy is sustained at the ground level and the elected representatives remain connected to their electorate.
7. Despite service of notice, none has appeared on behalf of the respondents.
8. To appreciate the controversy at hand, we may refer to Article 243F(1)(b) of the Constitution of India. It reads as follows:Â
Article 243F. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for being, a member of a PanchayatÂ
xxxx xxxx xxxx
(b) if he is so disqualified by or under any law made by the Legislature of the State.
Article 243F(1)(b) makes it quite clear that a member of Panchayat shall stand disqualified by or under any law made by the Legislature of the State.
The Constitution of India has left it to the wisdom of the State Legislature.
9. The Legislature of the State of Bihar has enacted the Act and Section 139 of the Act stipulates that the persons disqualified shall cease to hold the
office. The said provision is as under:Â
Section 139. Disqualification. (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for
holding the post as Mukhia, member of the GramÂPanchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member
of Zila Parishad, if such person
(a) is not citizen of India;
(b) is so disqualified by or under any law for the time being in force for the purposes of elections to the legislature of the State:
Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one
years;
(c) is in the service of Central or State Government or any local authority;
(d) is in service of any such institution receiving aids from Central or State government or any local authority;
(e) has been adjudged by a competent court to be of unsound mind;
(f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified
for employment in the public service;
(g) has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term
exceeding six months or has been ordered to furnish security for good behaviour under Section 109 or Section 110 of the Code of Criminal Procedure,
1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed;
(h) has under any law for the time being in force become ineligible to be a member of any local authority;
(i) holds any salaried office or office of profit under the Panchayat;
(j) has been found guilty of corrupt practices.
Provided that on being found guilty of corrupt practices, the disqualification shall cease after six years of general election.
(2) If any question arises as to whether a member of a Panchayat at any level has become subject to any of the disqualifications mentioned in subÂ‐
section (1), the question shall be referred for the decision of such authority and in such manner as the Government may by law provide.
(3) If a person, who is chosen as a member of Panchayat, a Mukhia, a Sarpanch, is or becomes a member of the Lok Sabha, Rajya Sabha, Legislative
Assembly, Legislative Council, or is or becomes a municipal councillor or a councillor of a Municipal Corporation or a member of Sanitary Board or a
member of a notified area committee or a member of any other Panchayat, Mukhia, Sarpanch, then within fifteen days from the date of
commencement of the term of office of a member of Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative Council or of a councilor of
municipality or Municipal Corporation or a member of Sanitary Board or notified area committee or a member of other Panchayat or Mukhia or
Sarpanch, his seat in the Panchayat shall become vacant unless he has previously resigned his seat in the Lok Sabha, Rajya Sabha, Legislative
Assembly, Legislative Council, Municipality or the Municipal Corporation, Sanitary Board or the notified area committee or of any such Panchayat as
the case may be.
Rule 122 of the Bihar Panchayat Election Rules, 1995, as amended in 2002, empowers the State Election Commission to decide disqualification of an
elected member of a Panchayat.
The said Rule reads as follows:Â
Rule 122. Under provisions of Section 139(2) of the Bihar Panchayat Raj Act, 1993, the State Election Commission shall be the competent authority
to decide whether a member of the Panchayat at any level has become subject to any of the disqualifications mentioned in Section 139(1) of the Act.
The matter of disqualification may be brought to the notice of the State Election Commission in the form of a complaint, application or information by
any person or authority. The State Election Commission may also take suo moto cognizance of such matters and decide such matters expeditiously
after allowing sufficient opportunity to the affected parties of being heard.
We have reproduced the relevant Section and the Rule to appreciate the controversy in entirety.
10. In the case at hand, we are concerned with Section 139(1)(c) and (d) of the Act. In Section 139(1)(c), there is a postulate that a person shall be
disqualified if such a person is in the service of Central or State Government or any local authority. Section 139(1)(d) lays down a disqualification if
the person is in service of such institution receiving aids from Central or State Government or any local authority. As is noticeable, the key word in
both the provisions pertains to ‘service’.
11. As has been stated earlier, the learned single Judge has drawn a distinction between “office of profit†and “service under the
Governmentâ€. We think it apposite to restate the legal position, the distinction between the two facets as above and thereafter xÂray the provision,
the legislative purpose behind the same and the nature of appointment.
12. A threeÂJudge Bench in Ravanna Subanna v. G.S. Kaggeerappa AIR 1954 SC 653 , was dealing with the acceptance of nomination papers of
the appellant on the ground that he was holding an office of profit under the Government at the relevant time as he was the Chairman of Taluk
Development Committee and was, hence, disqualified for being chosen as a Councillor under Section 14 of the Mysore Town Municipalities Act, 1951
(for short, “1951 Actâ€). The objection was overruled by the Returning Officer and eventually the appellant was declared elected. Challenging the
election, the respondent filed an election petition before the concerned SubÂJudge who dismissed the petition opining that the elected candidate was
not holding an office of profit under the Government as contemplated by Section 14 of the 1951 Act. The said judgment was reversed by the Division
Bench of the High Court in an appeal and respondent was declared elected. Section 14(1) enumerated various grounds of disqualification and one of
such grounds was that of a person holding an office of profit under the Government of India or the Government of any State specified in the First
Schedule. It further provided that if any person is elected as a councilor in contravention of the provisions, his seat shall be deemed to be vacant. The
Court addressed to the issue of disqualification and posed the question whether the appellant held an office of profit as provided for under Section
14(1)(A)(a)(iii) of the 1951 Act. The threeÂJudge Bench expressed thus:Â
“12. … The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or
allowance is attached. The word “profit†connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be
material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really
carries any profit.â€
Analysing the facts of the case in detail, the Court ruled:Â
“12. … From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6 which the nonÂofficial Chairman is entitled to
draw for each sitting of the committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is given to him as a
consolidated fee for the outÂofÂpocket expenses which he has to incur for attending the meetings of the committee. We do not think that it was the
intention of the Government which created these Taluk Development Committees which were to be manned exclusively by nonofficials, that the office
of the Chairman or of the members should carry any profit or remuneration.â€
And, again:Â
“13. … it cannot be argued that even if a Chairman or a member of a Government committee works in a purely honorary capacity and there is no
remuneration attached to the office, he will still be regarded as a person holding office of profit in view of the provisions of the section. …â€
After expressing the aforesaid view, the threeÂJudge Bench of this Court reversed the judgment of the High Court.
13. In Sakhawant Ali v. State of Orissa AIR 1955 SC 166, the issue arose whether the nomination papers were correctly rejected by the Election
Officer on the ground that the appellant therein was employed as a legal practitioner against the Municipality in a case under Section 198 of the Bihar
and Orissa Municipal Act. The candidate whose nomination paper was rejected moved the High Court under Article 226 of the Constitution praying
for a writ or order of prohibition to the State Government and the Election Officer restraining them from holding the election but the High Court
rejected the said prayer. The Court took note of the fact that the Orissa Municipal Act, 1950 was passed by the State Legislature. Section 16 of the
said Act prescribed the disqualification of a candidate for election and it provided that no person shall be qualified for election to a seat in a
municipality if such person is employed as a paid legal practitioner on behalf of the municipality or as legal practitioner against the municipality. A
contention was raised before the High Court that the person sought to contest the election could not be declared to be disqualified as the said Act had
come into operation on 15th April, 1951 and consequently, he could not have been disqualified from 15th March, 1951 when he filed the nomination
papers. The Constitution Bench analysed Section 1 of the said Act and opined that the disqualification was attracted regard being had to the subÂ‐
section (5) of Section 1 of the said Act that had stipulated that the said provision in express terms provided that after the Act had received the assent
of the Governor elections could be held under the Act but were only to take effect on the Act coming into force, which meant the coming into force of
the Act in such area or areas on such date or dates which the State Government might appoint from time to time under Section 1(3) of the Act. There
was thus contemplation under the very provisions of Section 1(5) to the holding of elections under the Act in spite of the fact that the Act had not
come into force in a particular area. The Court further observed:Â
“11. The right of the appellant to practice the profession of law guaranteed by Article 19(1)(g) cannot be said to have been violated, because in
laying down the disqualification in Section 16(1)(ix) of the Act the Legislature does not prevent him from practising his profession of law but it only
lays down that if he wants to stand as a candidate for election he shall not either be employed as a paid legal practitioner on behalf of the municipality
or act as a legal practitioner against the municipality. There is no fundamental right in any person to stand as a candidate for election to the
municipality. The only fundamental right which is guaranteed is that of practising any profession or carrying on any occupation, trade or business.
There is no violation of the latter right in prescribing the disqualification of the type enacted in Section 16(1)(ix) of the Act.â€
14. A Constitution Bench in Guru Gobinda Basu v. Sankari Prasad Ghosal and others AIR 1964 SC 254 was dealing with an issue wherein the
appellant was a chartered accountant and a partner of firm of auditors carrying on business under the name and style of a company and the said firm
acted as the auditor of certain companies and corporations. The appellant carried with it the right to receive fees, remuneration as Director of the
West Bengal Financial Corporation. The Court, analyzing Article 102(l)(a) of the Constitution and concurring with the view of the High Court stated
thus:Â
… We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there
need be no relationship of master and servant 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 under the Government'; see Arts. 309 and 314. …â€
15. The Court referred to the decision in Maulana Abdul Shakur v. Rikhab Chand and another AIR 1958 SC 52. In the said case, the question arose
before a Constitution Bench whether the returned candidate was holding an office of profit, for he was the manager of a school run by a committee of
management formed under the provisions of Durgah Khwaja Saheb Act, 1955. It was contended before the Court that the Government of India had
the power of appointment and removal of the members of the committee of management, as also the power to appoint the administrator in consultation
with the committee and, therefore, the returned candidate was under the control and supervision of the Government and hence, he was holding an
office of profit under the Government of India.
The Court repelled the submission by drawing a distinction between the holder of an office of profit under the Government and the holder of an office
of profit under some other authority subject to the control of Government. The Court expressed its opinion thus:Â
“No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India, but it is a body corporate with perpetual
succession acting within the four corners of the Act. Merely because the Committee or the members of the Committee are removeable by the
Government of India or the Committee can make byeÂlaws prescribing the duties and powers of its employees cannot in our opinion convert the
servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of
India nor is removable by the Government of India nor is he paid out of the revenues of India. 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 payment from out of Government revenues are
important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than
Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test.†The aforesaid passage
lucidly states what basically constitutes an office of profit.
16. In Mahadeo v. Shantibhai and others (1969) 2 SCR 422, question arose whether a lawyer had incurred disqualification on account of holding an
office of profit under the Government. The appellant was kept on the panel of Railway Pleaders for conducting suits filed against the Union of India in
the courts of Ujjain on the terms and conditions therein mentioned. One of the terms shows that the appellant was ordinarily to be entrusted with cases
up to valuation of rupees three thousand only. Another condition was that he would not accept any brief against any Railway in any court. Clause
(13) of the terms of the appointment letter read as follows:Â
“You will be expected to watch cases coming up for hearing against this Railway in the various courts at UJB and give timely intimation of the
same to this office. If no instructions regarding any particular case are received by you, you will be expected to appear in the court and obtain an
adjournment to save the ex parte proceedings against this Railway in the court. You will be paid Rs 5 for every such adjournment if you are not
entrusted with the conduct of the suit later on.â€
17. The Court referred to the observations of House of Lords in Mcmillan v. Guest [1942] AC 561 wherein Lord Wright, delivering the opinion,
said:Â
“The word “office†is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most
relevant for purposes of this case the following: “A position or place to which certain duties are “attached, especially one of a more or less
public character.â€
Eventually, the Court expressed the view:Â
“If by “office†is meant the right and duty to exercise an employment or a position to which certain duties are attached as observed by this
Court, it is difficult to see why the engagement of the appellant in this case under the letter of February 6, 1962 would not amount to the
appellant’s holding an office. By the said letter he accepted certain obligations and was required to discharge certain duties. He was not free to
take a brief against the Railway Administration. Whether or not the Railway Administration thought it proper to entrust any particular case or litigation
pending in the court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of
the same to the office of the Chief Commercial Superintendent. Even if no instructions regarding any particular case were given to him, he was
expected to appear in court and obtain an adjournment. In effect this cast a duty on him to appear in court and obtain an adjournment so as to protect
the interests of the Railway. The duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the
panel of Railway lawyers or so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render
service to the Railway. In the absence of the above he was bound by the terms of the engagement to watch the interests of the Railway
Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in
which the Railway had made no arrangement for representation. It is true that he would get a sum of money only if he appeared but the possibility that
the Railway might not engage him is a matter of no moment. An office of profit really means an office in respect of which a profit may accrue. It is
not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of
the duties discharged by him.â€
In the aforesaid judgment, as we notice, the Court laid emphasis on the terms of appointment and also on the concept of accrual of profit.
18. In Srimati Kanta Kathuria v. Manak Chand Surana (1969) 3 SCC 268 , the issue that arose for consideration was whether the appellant was
holding an office of profit within the meaning of Article 191 of the Constitution or not. The appellant was appointed to assist the Government
Advocate in the absence of any Assistant Counsel. The letter of appointment stipulated that the appellant was appointed as a Special Government
Pleader to conduct the particular case on behalf of the State of Rajasthan alongwith Government Advocate. The Government laid down the fees
payable to the appellant. In the said case, the High Court opined that the appellant held an office of profit. The majority referred to the decision in
Great Western Railway Company v. Beater 8 Tax Cases 231,235 and Mcmillan case and referring to Mahadeo (supra) opined:Â
“29. That case in no way militates against the view which we have taken in this case. That case is more like the case of a standing Counsel
disqualified by the House of Commons. It is stated in Rogers (onElections Vol. II) at p. 10:
“However, in the Cambridge case (121 Journ. 220), in 1866, the return of Mr Forsyth was avoided on the ground that he held a new office of profit
under the Crown, within the 24th section. In the scheme submitted to and approved by Her Majesty in Council was inserted the office of standing
counsel with a certain yearly payment (in the scheme called ‘salary’) affixed to it, which Mr Forsyth received, in addition to the usual fees of
counsel. The Committee avoided the return.â€
The majority also referred to the decision in Sakhawant Ali (supra) which dealt with an instance where the legislature had provided that the paid
legal practitioner could not stand in the municipal elections. Elucidating further, it has been expressed thus:Â
“36. In view of the above reasons, we must hold that the appellant was not disqualified for election under Article 191 of the Constitution. But
assuming that she held an office of profit, this disqualification has been removed retrospectively by the Rajasthan Legislative Assembly by enacting
the impugned Act.â€
19. A twoÂJudge Bench in Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and others (1977) 1 SCC 70 was dealing with the election of the
President of a Municipal Council under the Maharashtra Municipalities Act, 1965. An unsuccessful candidate challenged the election of the returned
candidate singularly on the ground that the candidate was disqualified under Section 16(1)(g) of the said Municipal Act inasmuch as on the date of
nomination he was holding an office of profit under the Government, as he was then, admittedly working as a panel doctor appointed under the
Employees’ State Insurance Scheme (ESI Scheme), a beneficial project contemplated by the Employees’ State Insurance Act, 1948. The
returned candidate, a doctor, was admittedly on the date of filing of nomination, functioning as such but had resigned before actual polling took place.
The Election Tribunal accepted the stand of the election petitioner and declared the election of the returned candidate void. It further proceeded to
hold that the election petitioner, being the sole surviving candidate, was the President. Commenting on the election petition in the backdrop of facts,
Krishna Iyer, J., who penned the judgment, wrote:Â
“6. It is plain democratic sense that the electoral process should ordinarily receive no judicial jolt except where pollution of purity or contravention
of legal mandates invite the court’s jurisdiction to review the result and restore legality, legitimacy and respect for norms. The frequency of
forensic overturning of poll verdicts injects instability into the electoral system, kindles hopes in worsted candidates and induces postÂmortem
discoveries of “disqualifications†as a desperate gamble in the system of fluctuating litigative fortunes. This is a caveat against overuse of the
court as an antidote for a poll defeat. Of course, where a clear breach is made out, the guns of law shall go into action, and not retreat from the rule of
law.â€
20. In the said case, Section 16(1)(g) which provided for office of profit, read thus:Â
“16(l)(g): No person shall be qualified to become a Councillor whether by election, coÂoption or nomination, who is a subordinate officer or servant
of Government or any local authority or holds an office of profit under Government or any local authority;â€
It was contended before the Election Tribunal that the elected candidate was not entitled to become a councilor as he held an office of profit under the
Government. To appreciate the concept of office of profit, this Court referred to Section 58 of the ESI Act, 1948, ESI Scheme and opined that the
elected candidate although was a private doctor and running a private clinic was also an insurance medical practitioner subject to the discipline,
directions, obligations and control of the relevant officers appointed by the State Government in implementing the medical benefit scheme. His letter of
appointment read that being a medical practitioner ‘appointed as such to provide medical benefit under the Act and to perform such other functions
as may be assigned to him’.
21. We may note with profit that in the said case, Krishna Iyer, J. clarified the conflict between Mahadeo (supra) and Srimati Kanta Kathuria (supra)
by stating thus:Â
“41. … Judicial technology sometimes distinguishes, sometimes demolishes earlier decisions; the art is fine and its use skilful. Both the cases dealt
with advocates and we have referred to them in the earlier resume of precedents. Even so, a closer look will disclose why we follow the larger Bench
(as we are bound to, even if there is a plain conflict between the two cases). Justice Rowlatt’s locus classicus in Great Western Rly. Co.
(followed by this Court in manycases) helps us steer clear of logomachy about “office†especially since the New English Dictionary fills four
columns. Rowlatt, J. rivetted attention on a subsisting, permanent, substantive position, which had an existence independent from the person who filled
it, which went on and was filled in succession by successive holders’. So, the first step is to enquire whether “a permanent, substantive
position, which had an existence independent from the person who filled it†can be postulated in the case of an insurance medical practitioner. By
contrast, is the post an ephemeral, ad hoc, provisional incumbency created, not independently but as a list or panel elastic and expiring or expanding,
distinguished from a thing that survives even when no person had been appointed for the time being? “Thin partitions do their bounds divideâ€, 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 profitâ€. 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 profit â€" more like standing counsel. …â€
[Emphasis supplied]
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 regards ‘office of profit’. Be it noted, eventually, the Court ruled that the appellant therein a doctor functioning
under the ESI Scheme was not holding an office of profit.
22. In Ashok Kumar Bhattacharyya v. Ajoy Biswas and others (1985) 1 SCC 151, a threeÂJudge Bench while dealing with the issue whether the
respondent No. 1 was disqualified for being elected as a member of the House of People as he held an office of profit under the Government of
Tripura within the meaning of Article 102(1)(a) of the Constitution, for on the relevant date he was an Accountant inÂcharge of the Agartala
Municipality. After referring to many an authority, the Court ruled that for determination of the question whether a person holds an office of profit
under the Government, each case must be measured and judged in the light of the relevant provisions. The Court further opined:Â
“21. … Local Authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a
particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases employees of Local
Authorities subject to the control of Government, holders of office of profit under the Government would be to obliterate the specific differentiation
made under Article 58(2) of the Constitution and to extend disqualification under Article 102(1)(a) to an extent not warranted by the language of the
article.â€
On the basis of the aforesaid, ultimately the threeÂJudge Bench recorded its finding that the first respondent did not hold an office of profit under the
Government of Tripura on the date of filing of the nomination.
23. In Shibu Soren v. Dayanand Sahay and others (2001) 7 SCC 425, a threeÂJudge Bench, while dealing with the office of profit, opined that the
expression ""office of profit"" has not been defined either in the Constitution or in the Representation of People Act. Anaylsing further, the Court
proceeded to state that in common parlance, the expression 'profit' connotes an idea of some pecuniary gain. If there is really some gain, its label Â‐
'honorarium' Â 'remuneration' Â 'salary' is not material. It is the substance and not the form which matters and even the quantum or amount of
pecuniary gain"" is not relevant. What needs to be found out is whether the amount of money receivable by the concerned person in connection with
the office he holds, gives to him some ""pecuniary gain"", other than as 'compensation' to defray his out of pocket expenses, which may have the
possibility to bring that person under the influence of the executive, which is conferring that benefit on him. Eventually, the Court held that:Â
“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 provisions. While 'a strict and narrow construction' may not be adopted 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 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 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.â€
The aforesaid passage emphasizes on the purpose of disqualification, the approach of the Court while appreciating the expression and to reduce the
risk of conflict of interest between the duties and interest.
24. In Jaya Bachchan v. Union of India and others (2006) 5 SCC 266, the issue arose whether the petitioner was holding an office of profit. She was
appointed as Chairman of the Uttar Pradesh Film Development Council and was entitled to certain benefits.
The Court analyzing the law enunciated in Ravanna Subanna (supra) and Shibu Soren (supra) opined that it is well settled that where the office carries
with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of
profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is ""receivable"" in
regard to the office and not whether pecuniary gain is, in fact, received or received negligibly.
25. In the case at hand, the first respondent 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 as follows:Â
Letter No.ÂC/A(S) 40Â01/98/3049/B
Government of Bihar Legal (Justice)
Department
From
Sri Birendra Singh,
Joint Secretary to the Government, Bihar
To
District Magistrate,
Nalanda, Biharsharif
Patna, Dated 18th August, 2000
Sub.: In relation to appointment of Assistant
Government Advocate for the Court at
Nalanda and Hilsa
Sir,
In reference to your letter No. 6224 dated 20.7.99 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).
Faithfully yours,
Sd/Â
Joint Secretary to the Govt., Bihar
Analyzing the letter, the Election Commission has held that the elected candidate was holding a post under the State Government and, therefore, he
was disqualified under sub section (l)(c) of Section 139 of the Act.
26. On a careful scrutiny of the communication, it is quite vivid that the respondent No. l was appointed 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 remuneration.
27. In the obtaining factual score, would it be appropriate to accept the submission of the appellants 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 of profitâ€. Therefore, 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 provision.
28. The aforesaid being the position, we may presently focus on what constitutes a service. In State of Assam and others v. Kanak Chandra Dutta
AIR 1967 SC 884, 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 State's 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 post.
29. In this regard, reference to another Constitution Bench decision in Roshan Lal Tandon v. Union of India AIR 1967 SC 1889 would be apposite. In
the said case, it has been opined that the legal position of a Government servant is more one of status than a contract. The hallÂmark of status is the
attachment to legal relationship of rights and duties imposed by the public law and not by mere agreement by the parties. The duties of status are fixed
by the law and status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement
between the parties concerned. As is evincible, emphasis was given on the status in contradistinction to contractual service.
30. Learned counsel appearing for the Commission, has placed heavy reliance on Kumari Shrilekha Vidyarthi and others v. State of U.P. and others
(1991) 1 SCC 212. In the said case, the Government of the State of U.P. had terminated by a general order the appointments of all Government
Counsel (Civil, Criminal, Revenue) in all the districts of the State of U.P. The High Court had upheld the circular by which the order was passed. In
appeal, by special leave, the Court dealt with two contentions, namely, the nature of appointments and the minimum basis of status attached to those
appointments. For the purpose of examination whether the ground of arbitrariness was available to vitiate the circular, the Court referred to the Legal
Remembrancer's Manual and especially paragraphs 7.06 to 7.09 which deals with appointment and renewal of local practitioners finally selected by
the government. The said paragraph deals with the term, tenure, bar on political activity, renewal of term and character roll.
31. Relying on the same and other aspects, the Court held:Â
The 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' or ‘post'. 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.Cs. Apart from clause 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 Bihar (1979) 4 SCC 701 and Mukul Dalal and others v. Union of India and others (1988) 3 SCC 144 and 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.
32. In this regard, we may reproduce a passage from the said authority which is as follows:Â
“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 `office' or `post' 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 review.â€
33. Eventually, the Court analyzing the test of Article 14, opined:Â
“In 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 case.â€
The 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 masterÂservant relationship and the respondent 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.
34. In view of the premised reasons, we do not find any substance in the appeal and the same is, accordingly, dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
