STATE ELECTION COMMISSIONER, BIHAR PATNA & OTHERS versus JANAKDHARI PRASAD AND OTHERS on 3 July 2018

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SUPREME COURT REPORTS[2018] 5 S.C.R. 112

[2018] 5 S.C.R.

ASTATE ELECTION COMMISSIONER, BIHAR PATNA &OTHERS

v.

JANAKDHARI PRASAD AND OTHERS

B(Civil Appeal No. 1463 of 2008)

JULY 03, 2018

[DIPAK MISRA,CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Bihar Panchayat Raj Act, 1993 – s.139(1)(c) –CDisqualification – Election of respondent to the post of member inthe Panchayat Samiti – Disqualified by the Election Commission –Disqualification on the ground that respondent was appointed asAssistant Government Advocate under the State Government andwas receiving fees for the cases conducted by him from theDGovernment and hence, was deemed to be in service of the State –High Court set aside the order – Division Bench upheld the same –On appeal, held: There was no master-servant relationship –Respondent was not amenable to any disciplinary proceedings –No records to show that he was getting any remuneration – Even ifsome remuneration is attached to the office, he could not be treatedEto be under the service of the State Government – Aspects essentialfor establishing a relationship of master and servant absent – Thus,the returned candidate could not have been treated to be in serviceunder the State Government – Order passed by the High Courtupheld.

FDismissing the appeal, the Court

HELD: 1.1 In Section 139(1)(c) of the Bihar Panchayat RajAct, 1993, there is a postulate that a person shall be disqualifiedif such a person is in the service of Central or State Governmentor any local authority. Section 139(1)(d) lays down a disqualificationGif the person is in service of such institution receiving aids fromCentral or State Government or any local authority. The key wordin both the provisions pertains to ‘service’. [Para 10][121-B-C]

1.2 In the instant case, the first respondent was treated asdisqualified on the foundation that he was in service of the H

Government. Analyzing the letter of appointment issued by theGovernment of Bihar, Legal Department to the DistrictMagistrate, the Election Commission held that the electedcandidate was holding a post under the State Government and,therefore, he was disqualified under sub-section (l)(c) of Section139 of the Act. On a careful scrutiny of the communication, it isquite vivid that the respondent No. l was appointed to the post ofAssistant Government Advocate in the panel of AssistantGovernment Advocates constituted for the courts at Nalanda andHilsa. There is no mention of any fixed remuneration. In theobtaining factual score, would it be appropriate to accept thesubmission of the appellants that the elected candidate was inthe service of the government. The legislature has, in exerciseof its legislative power and wisdom, not used the words “office ofprofit”. Therefore, whether such a letter of appointment can beconstrued to determine if the person is holding an office of profitis not necessary to be addressed. In the instant case, the electionpertains to a Panchayat Samiti which basically relates to theconcept at the grass root level. The legislature, as it seems, hasnot thought of office of profit because had it thought so it wouldhave provided in that manner. The legislature had provided adisqualification keeping in view the conflict of interest. Theabsence of such a provision possibly is to include persons fromdifferent fields as long as they are not in service under thegovernment or a service in an institution receiving aids from theCentral or State Government or any local authority. Thelegislature, as the postulate stands today, has confined tocategories of service. It depends on the legislative wisdom. Thenature of disqualification has to be strictly construed keeping inmind that right to contest an election is not a fundamental rightbut the said right may be curtailed under valid statutory provision.[Paras 25, 26 and 27][132-F; 133-E-H; 134-A-C]

1.3 It has been held by this Court that a person holding apost under a State is a person serving or employed under theState. There is a relationship of master and servant between theState and a person holding a post under it. The existence of thisrelationship is indicated by the State’s right to select and appointthe holder of the post, its right to suspend and dismiss him, its AB

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Aright to control the manner and method of his doing the work andthe payment by it of his wages or remuneration. A relationship ofmaster and servant may be established by the presence of all orsome of these indicia, in conjunction with other circumstancesand it is a question of fact in each case whether there is such arelation between the State and the alleged holder of a post. [ParaB28][134-D-F]

State of Assam and others v. Kanak ChandraDutta 1967 AIR 884 : [1967] SCR 679 – followed.

1.4 As has been held by the Single Judge and rightly so,Cthere is no master-servant relationship and the respondent wasnot amenable to any disciplinary proceeding. He has correctlyexpressed the view that the conduct of the advocate is subject tothe discipline of the Bar Council. There is nothing on record toshow that he was getting any remuneration. Even if someremuneration is attached to the office, he cannot be treated to beDunder the service of the State Government. The aspects whichare essential for establishing a relationship of master and servantare absent. Therefore, the returned candidate could not havebeen treated to be in service under the State Government. [Para33][137-D-F]

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Ravanna Subanna v. G.S. Kaggeerappa 1954 AIR 653;Sakhawant Ali v. State of Orissa 1955 AIR 166 : [1955]SCR 1004; Guru Gobinda Basu v. Sankari PrasadGhosal and others 1964 AIR 254 : [1964] SCR 311;Maulana Abdul Shakur v. Rikhab Chand 1958 AIR 52 :F[1958] SCR 387; Mahadeo v. Shantibhai and others[1969] SCR 422; Srimati Kanta Kathuria v. ManakChand Surana [1970] 2 SCR 835 : (1969) 3 SCC 268;Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajaniand others [1976] 3 SCR 832 : (1977) 1 SCC 70; AshokKumar Bhattacharyya v. Ajoy Biswas and others [1985]G2 SCR 50: (1985) 1 SCC 151; Shibu Soren v. DayanandSahay and others [2001] 3 SCR 1020 : (2001) 7 SCC425; Jaya Bachchan v. Union of India and others[2006] 2 Suppl. SCR 110 : (2006) 5 SCC 266; RoshanLal Tandon v. Union of India 1967 AIR 1889 : [1968]SCR 185; Mundrika Prasad Singh v. State of Bihar H

[1980] 1 SCR 759 : (1979) 4 SCC 701; Mukul Dalaland others v. Union of India and others [1988] 3 SCR868 : (1988) 3 SCC 144; Kumari Shrilekha Vidyarthiand others v. State of U.P. and others [1990] 1 Suppl.SCR 625 : (1991) 1 SCC 212 – referred to.

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Great Western Railway Company v. Beater 8 Tax Cases231; Mcmillan v. Guest [1942] AC 561 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1463of 2008.

From the Judgment and Order dated 27.10.2005 of the High CourtGof Judicature at Patna in LPA No. 879 of 2004.

Akhilesh Kumar Pandey and Brahma Kr. Pathak, Advs. for theAppellant.

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AThe Judgment of the Court was delivered by DIPAK MISRA, CJI 1. Janakdhari Prasad, the 1[st] respondentherein, was elected in the year 2001 as a member of Panchayat Samiti,Nagarnausa. On 13[th ]February, 2004, the fifth respondent, Ravindra NathSharma, filed a petition before the State Election Commission, BiharB(for short “the Commission”) contending, inter alia, that the respondentNo. 1 was working as an Assistant Government Pleader in Hilsa, sub-division of District Nalanda and, therefore, he was disqualified to holdthe post of member, Panchayat Samiti in view of Section 139(l)(c) of theBihar Panchayat Raj Act, 1993 (for brevity, ‘the Act’).

C2. The Election Commission, in order to decide the issue whetherthe 1[st] respondent was in service of the State Government within thesweep of Section 139(l)(c) of the Act, referred to the appointment letterissued by the Law Department, Government of Bihar, vide which therespondent herein was appointed as an Advocate in the panel of AssistantGovernment Advocates and thereafter observed that the said respondentDwas holding a post under the State Government and was receiving feesfor the cases conducted by him from the Government and hence, hewould be deemed to be in service of the State. Being of this view, theElection Commission vide order dated 29.03.2004 disqualified therespondent under Section 139(l)(c) of the Act from the post of MemberEin the Panchayat Samiti.

3. Aggrieved by this Order of the Commission, the 1[st] respondentknocked at the doors of the High Court of Judicature at Patna bypreferring a Writ Petition (CWJC) No. 4322 of 2004 under Article 226of the Constitution of India for quashment of the order of the Commission.FThe learned Single Judge opined that the word “service” has not beendefined under the Act and hence, its meaning has to be ascertained inthe context it is used and the context in which it is used denotes variousclasses or category of posts within it. The learned Single Judge furtherobserved that no hard and fast rule can be laid to ascertain as to whichcategory of office shall come within the expression “service”, for hostGof factors have to be taken into consideration to determine suchrelationship. He further proceeded to observe that none of the factorsmay be conclusive and no single factor may be considered absolutelyessential. Eventually, he stated:- “In my opinion, for bringing an office within the expression ‘service’of State Government there has to be a relationship of Master andServant, age of entering and retirement, scale of pay or fixedremuneration, the Conduct and Discipline Rules and such otherfactors. The presence of one ingredient or the other may notnecessarily bring a particular office within the expression ‘service’in the context of disqualification but presence of some or the otheris necessary for the purpose”

Thereafter, the learned Single Judge examined the nature ofappointment of a Government pleader who is paid a retainer-ship as feeand differentiated between the nature of appointment of an AssistantGovernment Pleader from that of a Government Pleader and came tohold that so far as the Assistant Government Pleader is concerned, he isappointed to assist the Government Pleader and for the professionalwork rendered, he is paid remuneration but not paid any retainer fee. Hefurther expressed the view that a Government Pleader is not entitled toappear against the State Government but an Assistant GovernmentPleader, can appear, against the State Government in a case. TheAssistant Government Pleader is basically an Advocate on the roll ofthe State Bar Council and besides giving professional advice to otherlitigants 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 executiveinstruction which is a tenure appointment and he remains a legalpractitioner for all purpose and intent. That apart, the engagement of anadvocate as an Assistant Government Pleader is a professionalengagement and the relationship between the State and that of theAssistant Government Pleader is that of a lawyer and client and not ofMaster and Servant. There is neither minimum or maximum age limitfor engagement of a person as an Assistant Government Pleader northere is any age of retirement. Assistant Government Pleader is paidfees for the professional work done by him and his remuneration is notfixed in a particular time scale. Additionally, no Discipline Rules governhis conduct and he is bound by same Code of Conduct as any otherlawyer. Considering all the aspects in a cumulative manner, he arrived atthe conclusion that the Assistant Government Pleader cannot be said tobe in service of the State Government so as to bring him within themischief of Section 139(l)(c) of the Act.

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4. On the issue of office of profit, the learned Single Judge observedthat the expression “in service” of the State Government and theexpression “office of profit” in State Government are not synonymousand, therefore, a person may hold an office of profit under the State butthat does not amount to the fact that he is “in service” of the State. Withthe aforesaid reasoning, he set aside the order of the Commission.

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5. Aggrieved by the aforesaid view, the State ElectionCommissioner filed an appeal, being L.P.A No. 879 of 2004, before aDivision Bench of the High Court, which concurred with the viewexpressed by the Single Judge and dismissed the appeal vide impugnedjudgment and order dated 27.10.2005. The said dismissal has led toCfiling 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 1[st]respondent was appointed in respect of a sanctioned post and, therefore,he is in service of the Government which would indubitably disqualifyDhim 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 apurposive meaning so that the democracy is sustained at the groundlevel and the elected representatives remain connected to their electorate.

7. Despite service of notice, none has appeared on behalf of theErespondents.

8. To appreciate the controversy at hand, we may refer to Article243F(1)(b) of the Constitution of India. It reads as follows:- “Article 243F. Disqualifications for membership.- (1) Aperson shall be disqualified for being chosen as, and for being, aFmember of a Panchayat- xxxx xxxxxxxx (b) if he is so disqualified by or under any law made by theLegislature of the State.”

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Article 243F(1)(b) makes it quite clear that a member of Panchayatshall stand disqualified by or under any law made by the Legislature ofthe State. The Constitution of India has left it to the wisdom of the StateLegislature.

9. The Legislature of the State of Bihar has enacted the Act andSection 139 of the Act stipulates that the persons disqualified shall ceaseto hold the office. The said provision is as under:- “Section 139. Disqualification.- (1) Notwithstanding anythingcontained in this Act, a person shall be disqualified for election orafter election for holding the post as Mukhia, member of the Gram-Panchayat, Sarpanch, Panch of the Gram Katchahri, member ofthe 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 inforce for the purposes of elections to the legislature of the State:

Provided that no person shall be disqualified on the ground that heis less than twenty five years of age, if he has attained the age oftwenty one years;

(c) is in the service of Central or State Government or any localauthority;

(d) is in service of any such institution receiving aids from Centralor State government or any local authority; (e) has been adjudged by a competent court to be of unsoundmind; (f) has been dismissed from the service of Central or StateGovernment or any local authority for misconduct and has beendeclared to be disqualified for employment in the public service; (g) has been sentenced by a criminal court whether within or outof India to imprisonment for an offence, other than a politicaloffence, for a term exceeding six months or has been ordered tofurnish security for good behaviour under Section 109 or Section110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) andsuch sentence or order not having subsequently been reversed; (h) has under any law for the time being in force become ineligibleto 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.

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Provided that on being found guilty of corrupt practices, thedisqualification shall cease after six years of general election.

(2) If any question arises as to whether a member of a Panchayatat any level has become subject to any of the disqualificationsmentioned in sub-section (1), the question shall be referred forBthe decision of such authority and in such manner as theGovernment may by law provide.

(3) If a person, who is chosen as a member of Panchayat, aMukhia, a Sarpanch, is or becomes a member of the Lok Sabha,Rajya Sabha, Legislative Assembly, Legislative Council, or is orCbecomes a municipal councillor or a councillor of a MunicipalCorporation or a member of Sanitary Board or a member of anotified area committee or a member of any other Panchayat,Mukhia, Sarpanch, then within fifteen days from the date ofcommencement of the term of office of a member of Lok Sabha,Rajya Sabha, Legislative Assembly, Legislative Council or of aDcouncilor of municipality or Municipal Corporation or a memberof Sanitary Board or notified area committee or a member ofother Panchayat or Mukhia or Sarpanch, his seat in the Panchayatshall become vacant unless he has previously resigned his seat inthe Lok Sabha, Rajya Sabha, Legislative Assembly, LegislativeECouncil, Municipality or the Municipal Corporation, Sanitary Boardor the notified area committee or of any such Panchayat as thecase may be.”

Rule 122 of the Bihar Panchayat Election Rules, 1995, as amendedin 2002, empowers the State Election Commission to decideFdisqualification of an elected member of a Panchayat. The said Rulereads as follows:- “Rule 122. Under provisions of Section 139(2) of the BiharPanchayat Raj Act, 1993, the State Election Commission shall bethe competent authority to decide whether a member of theGPanchayat at any level has become subject to any of thedisqualifications mentioned in Section 139(1) of the Act. The matterof disqualification may be brought to the notice of the State ElectionCommission in the form of a complaint, application or informationby any person or authority. The State Election Commission mayalso take suo moto cognizance of such matters and decide such H

matters expeditiously after allowing sufficient opportunity to theaffected parties of being heard.”

We have reproduced the relevant Section and the Rule toappreciate 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 personshall be disqualified if such a person is in the service of Central or StateGovernment or any local authority. Section 139(1)(d) lays down adisqualification if the person is in service of such institution receivingaids from Central or State Government or any local authority. As isnoticeable, the key word in both the provisions pertains to ‘service’.

11. As has been stated earlier, the learned single Judge has drawna distinction between “office of profit” and “service under theGovernment”. We think it apposite to restate the legal position, thedistinction between the two facets as above and thereafter x-ray theprovision, the legislative purpose behind the same and the nature ofappointment.

12. A three-Judge Bench in Ravanna Subanna v. G.S.Kaggeerappa[1], was dealing with the acceptance of nomination papersof the appellant on the ground that he was holding an office of profitunder the Government at the relevant time as he was the Chairman ofTaluk Development Committee and was, hence, disqualified for beingchosen as a Councillor under Section 14 of the Mysore TownMunicipalities Act, 1951 (for short, “1951 Act”). The objection wasoverruled by the Returning Officer and eventually the appellant wasdeclared elected. Challenging the election, the respondent filed an electionpetition before the concerned Sub-Judge who dismissed the petition opiningthat the elected candidate was not holding an office of profit under theGovernment as contemplated by Section 14 of the 1951 Act. The saidjudgment was reversed by the Division Bench of the High Court in anappeal and respondent was declared elected. Section 14(1) enumeratedvarious grounds of disqualification and one of such grounds was that ofa person holding an office of profit under the Government of India or theGovernment of any State specified in the First Schedule. It furtherprovided that if any person is elected as a councilor in contravention ofthe provisions, his seat shall be deemed to be vacant. The Court addressed 1 AIR 1954 SC 653

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Ato the issue of disqualification and posed the question whether theappellant held an office of profit as provided for under Section14(1)(A)(a)(iii) of the 1951 Act. The three-Judge Bench expressedthus:- “12. … The plain meaning of the expression seems to be that anBoffice must be held under Government to which any pay, salary,emoluments or allowance is attached. The word “profit” connotesthe idea of pecuniary gain. If there is really a gain, its quantum oramount would not be material; but the amount of money receivableby a person in connection with the office he holds may be materialin deciding whether the office really carries any profit.”C

Analysing the facts of the case in detail, the Court ruled:- “12. … From the facts stated above, we think it can reasonablybe inferred that the fee of Rs. 6 which the non-official Chairmanis entitled to draw for each sitting of the committee, he attends, isDnot meant to be a payment by way of remuneration or profit, butit is given to him as a consolidated fee for the out-of-pocketexpenses which he has to incur for attending the meetings of thecommittee. We do not think that it was the intention of theGovernment which created these Taluk Development Committeeswhich were to be manned exclusively by non-officials, that theEoffice of the Chairman or of the members should carry any profitor remuneration.”

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And, again:-

“13. … it cannot be argued that even if a Chairman or a memberof a Government committee works in a purely honorary capacityFand there is no remuneration attached to the office, he will still beregarded as a person holding office of profit in view of the provisionsof the section. …”

After expressing the aforesaid view, the three-Judge Bench ofthis Court reversed the judgment of the High Court.G

13. In Sakhawant Ali v. State of Orissa[2], the issue arose whetherthe nomination papers were correctly rejected by the Election Officeron the ground that the appellant therein was employed as a legalpractitioner against the Municipality in a case under Section 198 of the 2 AIR 1955 SC 166H

Bihar and Orissa Municipal Act. The candidate whose nomination paperwas rejected moved the High Court under Article 226 of the Constitutionpraying for a writ or order of prohibition to the State Government andthe Election Officer restraining them from holding the election but theHigh Court rejected the said prayer. The Court took note of the fact thatthe Orissa Municipal Act, 1950 was passed by the State Legislature.Section 16 of the said Act prescribed the disqualification of a candidatefor election and it provided that no person shall be qualified for electionto a seat in a municipality if such person is employed as a paid legalpractitioner on behalf of the municipality or as legal practitioner againstthe municipality. A contention was raised before the High Court that theperson sought to contest the election could not be declared to bedisqualified as the said Act had come into operation on 15[th] April, 1951and consequently, he could not have been disqualified from 15[th] March,1951 when he filed the nomination papers. The Constitution Benchanalysed Section 1 of the said Act and opined that the disqualificationwas attracted regard being had to the sub-section (5) of Section 1 of thesaid Act that had stipulated that the said provision in express termsprovided that after the Act had received the assent of the Governorelections could be held under the Act but were only to take effect on theAct coming into force, which meant the coming into force of the Act insuch area or areas on such date or dates which the State Governmentmight appoint from time to time under Section 1(3) of the Act. Therewas thus contemplation under the very provisions of Section 1(5) to theholding of elections under the Act in spite of the fact that the Act had notcome into force in a particular area. The Court further observed:- “11. The right of the appellant to practice the profession of lawguaranteed by Article 19(1)(g) cannot be said to have been violated,because in laying down the disqualification in Section 16(1)(ix) ofthe Act the Legislature does not prevent him from practising hisprofession of law but it only lays down that if he wants to stand asa candidate for election he shall not either be employed as a paidlegal practitioner on behalf of the municipality or act as a legalpractitioner against the municipality. There is no fundamental rightin any person to stand as a candidate for election to themunicipality. The only fundamental right which is guaranteed isthat of practising any profession or carrying on any occupation,trade or business. There is no violation of the latter right in A

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Aprescribing the disqualification of the type enacted in Section16(1)(ix) of the Act.”

14. A Constitution Bench in Guru Gobinda Basu v. SankariPrasad Ghosal and others[3 ]was dealing with an issue wherein theappellant was a chartered accountant and a partner of firm of auditorsBcarrying on business under the name and style of a company and thesaid firm acted as the auditor of certain companies and corporations.The appellant carried with it the right to receive fees, remuneration asDirector of the West Bengal Financial Corporation. The Court, analyzingArticle 102(l)(a) of the Constitution and concurring with the view of theHigh Court stated thus:-C

“… We agree with the High Court that for holding an office ofprofit under the Government, one need not be in the service ofGovernment and there need be no relationship of master andservant between them., The Constitution itself makes a distinctionbetween ‘the holder of an office of profit under the Government’Dand ‘the holder of a post or service under the Government’; seeArts. 309 and 314. …”

15. The Court referred to the decision in Maulana Abdul Shakur v. Rikhab Chand and another[4]. In the said case, the question arosebefore a Constitution Bench whether the returned candidate was holdingEan office of profit, for he was the manager of a school run by a committeeof management formed under the provisions of Durgah Khwaja SahebAct, 1955. It was contended before the Court that the Government ofIndia had the power of appointment and removal of the members of thecommittee of management, as also the power to appoint the administratorFin consultation with the committee and, therefore, the returned candidatewas under the control and supervision of the Government and hence, hewas holding an office of profit under the Government of India. TheCourt repelled the submission by drawing a distinction between the holderof an office of profit under the Government and the holder of an officeof profit under some other authority subject to the control of Government.GThe Court expressed its opinion thus:- “No doubt the Committee of the Durgah Endowment is to beappointed by the Government of India, but it is a body corporate H

3 AIR 1964 SC 254

4 AIR 1958 SC 52

STATE ELECTION COMMISSIONER, BIHAR PATNA v.JANAKDHARI PRASAD [DIPAK MISRA, CJI]

with perpetual succession acting within the four corners of theAct. Merely because the Committee or the members of theCommittee are removeable by the Government of India or theCommittee can make bye-laws prescribing the duties and powersof its employees cannot in our opinion convert the servants of theCommittee into holders of office of profit under the Governmentof India. The appellant is neither appointed by the Government ofIndia nor is removable by the Government of India nor is he paidout of the revenues of India. The power of the Government toappoint a person to an office of profit or to continue him in thatoffice or revoke his appointment at their discretion and paymentfrom out of Government revenues are important factors indetermining whether that person is holding an office of profit underthe Government though payment from a source other thanGovernment revenue is not always a decisive factor. But theappointment of the appellant does not come within this test.”

The aforesaid passage lucidly states what basically constitutes anoffice of profit.

16. In Mahadeo v. Shantibhai and others[5], question arosewhether a lawyer had incurred disqualification on account of holding anoffice of profit under the Government. The appellant was kept on thepanel of Railway Pleaders for conducting suits filed against the Union ofIndia in the courts of Ujjain on the terms and conditions therein mentioned.One of the terms shows that the appellant was ordinarily to be entrustedwith cases up to valuation of rupees three thousand only. Anothercondition was that he would not accept any brief against any Railway inany court. Clause (13) of the terms of the appointment letter read asfollows:- “You will be expected to watch cases coming up for hearing againstthis Railway in the various courts at UJB and give timely intimationof the same to this office. If no instructions regarding any particularcase are received by you, you will be expected to appear in thecourt and obtain an adjournment to save the ex parte proceedingsagainst this Railway in the court. You will be paid Rs 5 for everysuch adjournment if you are not entrusted with the conduct of thesuit later on.”

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17. The Court referred to the observations of House of Lords inMcmillan v. Guest[6 ]wherein Lord Wright, delivering the opinion, said:- “The word “office” is of indefinite content. Its various meaningscover four columns of the New English Dictionary, but I take asthe most relevant for purposes of this case the following: “A positionor place to which certain duties are “attached, especially one of amore or less public character.”

Eventually, the Court expressed the view:- “If by “office” is meant the right and duty to exercise anemployment or a position to which certain duties are attached asobserved by this Court, it is difficult to see why the engagementof the appellant in this case under the letter of February 6, 1962would not amount to the appellant’s holding an office. By the saidletter he accepted certain obligations and was required to dischargecertain duties. He was not free to take a brief against the RailwayAdministration. Whether or not the Railway Administration thoughtit proper to entrust any particular case or litigation pending in thecourt to him, it was his duty to watch all cases coming up forhearing against the Railway Administration and to give timelyintimation of the same to the office of the Chief CommercialSuperintendent. Even if no instructions regarding any particularcase were given to him, he was expected to appear in court andobtain an adjournment. In effect this cast a duty on him to appearin court and obtain an adjournment so as to protect the interestsof the Railway. The duty or obligation was a continuing one solong as the railway did not think it proper to remove his namefrom the panel of Railway lawyers or so long as he did not intimateto the Railway Administration that he desired to be free from hisobligation to render service to the Railway. In the absence of theabove he was bound by the terms of the engagement to watchthe interests of the Railway Administration, give them timelyintimation of cases in which they were involved and on his owninitiative apply for an adjournment in proceedings in which theRailway had made no arrangement for representation. It is truethat he would get a sum of money only if he appeared but thepossibility that the Railway might not engage him is a matter of nomoment. An office of profit really means an office in respect of 6 [1942] AC 561

which a profit may accrue. It is not necessary that it should bepossible to predicate of a holder of an office of profit that he wasbound to get a certain amount of profit irrespective of the dutiesdischarged by him.”

In the aforesaid judgment, as we notice, the Court laid emphasison the terms of appointment and also on the concept of accrual of profit.

18. In Srimati Kanta Kathuria v. Manak Chand Surana[7], theissue that arose for consideration was whether the appellant was holdingan office of profit within the meaning of Article 191 of the Constitutionor not. The appellant was appointed to assist the Government Advocatein the absence of any Assistant Counsel. The letter of appointmentstipulated that the appellant was appointed as a Special GovernmentPleader to conduct the particular case on behalf of the State of Rajasthanalongwith Government Advocate. The Government laid down the feespayable to the appellant. In the said case, the High Court opined that theappellant held an office of profit. The majority referred to the decision inGreat Western Railway Company v. Beater[8] and Mcmillan case andreferring to Mahadeo (supra) opined:- “29. That case in no way militates against the view which wehave taken in this case. That case is more like the case of astanding Counsel disqualified by the House of Commons. It isstated in Rogers (on Elections 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 helda new office of profit under the Crown, within the 24th section. Inthe scheme submitted to and approved by Her Majesty in Councilwas inserted the office of standing counsel with a certain yearlypayment (in the scheme called ‘salary’) affixed to it, which MrForsyth received, in addition to the usual fees of counsel. TheCommittee avoided the return.”

The majority also referred to the decision in Sakhawant Ali(supra) which dealt with an instance where the legislature had providedthat the paid legal practitioner could not stand in the municipal elections.Elucidating further, it has been expressed thus:- 7 (1969) 3 SCC 268

8 8 Tax Cases 231,235

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A“36. In view of the above reasons, we must hold that the appellantwas not disqualified for election under Article 191 of theConstitution. But assuming that she held an office of profit, thisdisqualification has been removed retrospectively by the RajasthanLegislative Assembly by enacting the impugned Act.”

B19. A two-Judge Bench in Madhukar G.E. Pankakar v. JaswantChobbildas Rajani and others[9]was dealing with the election of thePresident of a Municipal Council under the Maharashtra MunicipalitiesAct, 1965. An unsuccessful candidate challenged the election of thereturned candidate singularly on the ground that the candidate wasdisqualified under Section 16(1)(g) of the said Municipal Act inasmuchCas on the date of nomination he was holding an office of profit under theGovernment, as he was then, admittedly working as a panel doctorappointed under the Employees’ State Insurance Scheme (ESI Scheme),a beneficial project contemplated by the Employees’ State InsuranceAct, 1948. The returned candidate, a doctor, was admittedly on the dateDof filing of nomination, functioning as such but had resigned before actualpolling took place. The Election Tribunal accepted the stand of the electionpetitioner and declared the election of the returned candidate void. Itfurther proceeded to hold that the election petitioner, being the solesurviving candidate, was the President. Commenting on the electionpetition in the backdrop of facts, Krishna Iyer, J., who penned theEjudgment, wrote:- “6. It is plain democratic sense that the electoral process shouldordinarily receive no judicial jolt except where pollution of purityor contravention of legal mandates invite the court’s jurisdictionto review the result and restore legality, legitimacy and respectFfor norms. The frequency of forensic overturning of poll verdictsinjects instability into the electoral system, kindles hopes in worstedcandidates and induces post-mortem discoveries of“disqualifications” as a desperate gamble in the system offluctuating litigative fortunes. This is a caveat against overuse ofGthe court as an antidote for a poll defeat. Of course, where aclear breach is made out, the guns of law shall go into action, andnot retreat from the rule of law.”

20. In the said case, Section 16(1)(g) which provided for office ofprofit, read thus:-H 9 (1977) 1 SCC 70

“16(l)(g): No person shall be qualified to become a Councillorwhether by election, co-option or nomination, who is a subordinateofficer or servant of Government or any local authority or holdsan office of profit under Government or any local authority;”

It was contended before the Election Tribunal that the electedcandidate was not entitled to become a councilor as he held an office ofprofit under the Government. To appreciate the concept of office ofprofit, this Court referred to Section 58 of the ESI Act, 1948, ESI Schemeand opined that the elected candidate although was a private doctor andrunning a private clinic was also an insurance medical practitioner subjectto the discipline, directions, obligations and control of the relevant officersappointed by the State Government in implementing the medical benefitscheme. His letter of appointment read that being a medical practitioner‘appointed as such to provide medical benefit under the Act and to performsuch 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 KantaKathuria (supra) by stating thus:- “41. … Judicial technology sometimes distinguishes, sometimesdemolishes earlier decisions; the art is fine and its use skilful.Both the cases dealt with advocates and we have referred tothem in the earlier resume of precedents. Even so, a closer lookwill disclose why we follow the larger Bench (as we are boundto, even if there is a plain conflict between the two cases). JusticeRowlatt’s locus classicus in Great Western Rly. Co. (followedby this Court in many cases) helps us steer clear of logomachyabout “office” especially since the New English Dictionary fillsfour columns. Rowlatt, J. rivetted attention on a subsisting,permanent, substantive position, which had an existenceindependent from the person who filled it, which went on and wasfilled in succession by successive holders’. So, the first step is toenquire whether “a permanent, substantive position, which hadan existence independent from the person who filled it” can bepostulated in the case of an insurance medical practitioner. Bycontrast, is the post an ephemeral, ad hoc, provisional incumbencycreated, not independently but as a list or panel elastic and expiringor expanding, distinguished from a thing that survives even when A

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Ano person had been appointed for the time being? “Thin partitionsdo their bounds divide”, we agree, but the distinction, thoughdelicate, is real. An office of insurance medical practitioner canbe conjured up if it exists even where no doctor sits in the saddleand has duties attached to it qua office. We cannot equate it withthe post of a peon or security gunman who too has duties to performBor a workshop where government vehicles are repaired, or a milkvendor from an approved list who supplies milk to governmenthospitals. A panel of lawyers for legal aid to the poor or a body ofdoctors enlisted for emergency service in an epidemic outbreakcharged with responsibilities and paid by the Government cannotCbe a pile of offices of profit. If this perspective be correct, Kantaand Mahadeo fit into a legal scheme. In the former, an ad hocAssistant Government Pleader with duties and remuneration washeld to fall outside “office of profit”. It was a casual engagement,not exalted to a permanent position, occupied pro tempore by Aor B. In Mahadeo, a permanent panel of lawyers “maintained byDthe Railway Administration” with special duties of a lasting natureconstituted the offices of profit — more like standing counsel. …”

[Emphasis supplied]

[Emphasis supplied]

We may hasten to say that we concur with the said harmonizationEas we find that it is founded on apposite reasoning and also in accordwith the precedents holding the view as regards ‘office of profit’. Be itnoted, eventually, the Court ruled that the appellant therein a doctorfunctioning under the ESI Scheme was not holding an office of profit.

22. In Ashok Kumar Bhattacharyya v. Ajoy Biswas and others[10],Fa three-Judge Bench while dealing with the issue whether the respondentNo. 1 was disqualified for being elected as a member of the House ofPeople as he held an office of profit under the Government of Tripurawithin the meaning of Article 102(1)(a) of the Constitution, for on therelevant date he was an Accountant- in-charge of the AgartalaMunicipality. After referring to many an authority, the Court ruled thatGfor determination of the question whether a person holds an office ofprofit under the Government, each case must be measured and judgedin the light of the relevant provisions. The Court further opined:- H

10 (1985) 1 SCC 151

“21. … Local Authority as such or any other authority does notcease to become independent entity separate from Government.Whether in a particular case it is so or not must depend upon thefacts and circumstances of the relevant provisions. To make in allcases employees of Local Authorities subject to the control ofGovernment, holders of office of profit under the Governmentwould be to obliterate the specific differentiation made underArticle 58(2) of the Constitution and to extend disqualificationunder Article 102(1)(a) to an extent not warranted by the languageof the article.”

On the basis of the aforesaid, ultimately the three-Judge Benchrecorded its finding that the first respondent did not hold an office ofprofit under the Government of Tripura on the date of filing of thenomination.

23. In Shibu Soren v. Dayanand Sahay and others[11], a three-Judge Bench, while dealing with the office of profit, opined that theexpression “office of profit” has not been defined either in the Constitutionor in the Representation of People Act. Anaylsing further, the Courtproceeded to state that in common parlance, the expression ‘profit’connotes an idea of some pecuniary gain. If there is really some gain, itslabel - ‘honorarium’ - ‘remuneration’ - ‘salary’ is not material. It is thesubstance and not the form which matters and even the quantum oramount of “pecuniary gain” is not relevant. What needs to be found outis whether the amount of money receivable by the concerned person inconnection with the office he holds, gives to him some “pecuniary gain”,other than as ‘compensation’ to defray his out of pocket expenses, whichmay have the possibility to bring that person under the influence of theexecutive, which is conferring that benefit on him. Eventually, the Courtheld that:- “The question whether a person holds an office of profit, as alreadynoticed, is required to be interpreted in a realistic manner havingregard to the facts and circumstances of each case and relevantstatutory provisions. While ‘a strict and narrow construction’ maynot be adopted which may have the effect of ‘shutting off manyprominent and other eligible persons to contest the elections’ butat the same time “in dealing with a statutory provision whichimposes a disqualification on a citizen it would be unreasonable to 11 (2001) 7 SCC 425

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Atake merely a broad and general view and ignore the essentialpoints”. The approach which appeals to us to interpret theexpression “office of profit” is that it should be interpreted withthe flavour of reality bearing in mind the object for enactmentof Article 102(1)(a) namely to eliminate or in any event to reducethe risk of conflict between the duty and interest amongst membersBof the legislature by ensuring that the legislature does not havepersons who receive benefits from the Executive and may thusbe amenable to its influence.”

The aforesaid passage emphasizes on the purpose ofdisqualification, the approach of the Court while appreciating theCexpression and to reduce the risk of conflict of interest between theduties and interest.

24. In Jaya Bachchan v. Union of India and others[12], the issuearose whether the petitioner was holding an office of profit. She wasappointed as Chairman of the Uttar Pradesh Film Development CouncilDand was entitled to certain benefits.The Court analyzing the lawenunciated in Ravanna Subanna (supra) and Shibu Soren (supra)opined that it is well settled that where the office carries with it certainemoluments or the order of appointment states that the person appointedis entitled to certain emoluments, then it will be an office of profit, evenEif the holder of the office chooses not to receive/draw such emoluments.What is relevant is whether pecuniary gain is “receivable” in regard tothe office and not whether pecuniary gain is, in fact, received or receivednegligibly.

25. In the case at hand, the first respondent was treated asFdisqualified on the foundation that he was in service of the Government.In this context, we may usefully refer to the letter of appointment issuedby the Government of Bihar, Legal (Justice) Department to the DistrictMagistrate, Nalanda. It reads as follows:- “Letter No.-C/A(S) 40-01/98/3049/B

Government of Bihar Legal (Justice)GDepartment From Sri Birendra Singh,Joint Secretary to the Government, Bihar H 12 (2006) 5 SCC 266

ToDistrict Magistrate,Nalanda, Biharsharif Patna, Dated 18[th] August, 2000

Sub.: In relation to appointment of Assistant Government Advocatefor the Court at Nalanda and Hilsa Sir, In reference to your letter No. 6224 dated 20.7.99 on abovementioned subject and law Department Letter No. 2413 dated6.7.2000 as per direction I have to inform that the StateGovernment has been kind to appoint Sri Janakdhari Prasad,Advocate on the post of Assistant Government Advocate in thepanel of Assistant Government Advocates constituted for the Courtat Nalanda and Hilsa.

After this appointment the total number of Assistant GovernmentAdvocates in the Court of Nalanda would be 19 (Nineteen) andthe total number of Assistant Government Advocates in the Courtof Hilsa would be 4 (four).

Faithfully yours,

Sd/-

Joint Secretary to the Govt., Bihar”Analyzing the letter, the Election Commission has held that theelected candidate was holding a post under the State Government and,therefore, he was disqualified under sub-section (l)(c) of Section 139 ofthe Act.

26. On a careful scrutiny of the communication, it is quite vividthat the respondent No. l was appointed to the post of AssistantGovernment Advocate in the panel of Assistant Government Advocatesconstituted for the courts at Nalanda and Hilsa. There is no mention ofany fixed remuneration.

27. In the obtaining factual score, would it be appropriate to acceptthe submission of the appellants that the elected candidate was in theservice of the government. The legislature has, in exercise of its legislativepower and wisdom, not used the words “office of profit”. Therefore,whether such a letter of appointment can be construed to determine ifthe person is holding an office of profit is not necessary to be addressed A

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Aalthough we have referred to certain authorities to appreciate the contextand its fundamental purpose. In the instant case, the election pertains toa Panchayat Samiti which basically relates to the concept at the grassroot level. The legislature, as it seems to us, has not thought of office ofprofit because had it thought so it would have provided in that manner.In Sakhawant Ali (supra), the legislature had provided a disqualificationBkeeping in view the conflict of interest. The absence of such a provisionpossibly is to include persons from different fields as long as they are notin service under the government or a service in an institution receivingaids from the Central or State Government or any local authority. Thelegislature, as the postulate stands today, has confined to categories ofCservice mentioned hereinbefore. It depends on the legislative wisdom. Itfurther needs to be stated that the nature of disqualification has to bestrictly construed keeping in mind that right to contest an election is nota fundamental right but the said right may be curtailed under valid statutoryprovision.D28. The aforesaid being the position, we may presently focus onwhat constitutes a service. In State of Assam and others v. KanakChandra Dutta[13] , Bachawat, J., speaking for the Constitution Bench,held that a person holding a post under a State is a person serving oremployed under the State. There is a relationship of master and servantbetween the State and a person holding a post under it. The existence ofEthis relationship is indicated by the State’s right to select and appoint theholder of the post, its right to suspend and dismiss him, its right to controlthe manner and method of his doing the work and the payment by it ofhis wages or remuneration. A relationship of master and servant may beestablished by the presence of all or some of these indicia, in conjunctionFwith other circumstances and it is a question of fact in each case whetherthere is such a relation between the State and the alleged holder of apost.

29. In this regard, reference to another Constitution Bench decisionin Roshan Lal Tandon v. Union of India[14 ]would be apposite. In theGsaid case, it has been opined that the legal position of a Governmentservant is more one of status than a contract. The hall-mark of status isthe attachment to legal relationship of rights and duties imposed by thepublic law and not by mere agreement by the parties. The duties of 13 AIR 1967 SC 884 14 AIR 1967 SC 1889H

status are fixed by the law and status is a condition of membership of agroup of which powers and duties are exclusively determined by lawand not by agreement between the parties concerned.As is evincible,emphasis was given on the status in contradistinction to contractualservice.

30. Learned counsel appearing for the Commission, has placedheavy reliance on Kumari Shrilekha Vidyarthi and others v. State ofU.P. and others[15]. In the said case, the Government of the State of U.P.had terminated by a general order the appointments of all GovernmentCounsel (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 tothose appointments. For the purpose of examination whether the groundof arbitrariness was available to vitiate the circular, the Court referred tothe Legal Remembrancer’s Manual and especially paragraphs 7.06 to7.09 which deals with appointment and renewal of local practitionersfinally selected by the government. The said paragraph deals with theterm, tenure, bar on political activity, renewal of term and character roll.

31. Relying on the same and other aspects, the Court held:- “The above provisions in the L.R. Manual clearly show that theGovernment Counsel in the districts are treated as Law Officersof the State who are holders of an ‘office’ or [‘]post’. The aforesaidprovisions in Chapter VII relating to appointment and conditionsof engagement of District Government Counsel show that theappointments are to be made and ordinarily renewed on objectiveassessment of suitability of the person based on the opinion of theDistrict Officer and the District Judge; and character roll ismaintained for keeping a record of the suitability of the appointeeto enable an objective assessment for the purpose of hiscontinuance as a Law Officer in the district. There are provisionsto bar private practice and participation in political activity byD.G.Cs. Apart from clause 3 of para 7.06 to which we shall adverta little later, these provisions clearly indicate that the appointmentand engagement of District Government Counsel is not the sameas that by a private litigant of his counsel and there is obviously anelement of continuity of the appointment unless the appointee is A

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Afound to be unsuitable either by his own work, conduct or age orin comparison to any more suitable candidate available at the placeof appointment. Suitability of the appointee being the prime criterionfor any such appointment, it is obvious that appointment of thebest amongst those available, is the object sought to be achievedby these provisions, which, even otherwise, should be theBparamount consideration in discharge of this governmental functionaimed at promoting public interest. All Govt. Counsel are paidremuneration out of the public exchequer and there is a clearpublic element attaching to the ‘office’ or ‘post’.”

After so stating, the Court referred to Sections 24 and 321 of theCCode of Criminal Procedure and further analyzed the ratio in MundrikaPrasad Singh v. State of Bihar[16] and Mukul Dalal and others v.Union of India and others[17]and came to hold that the office of thePublic Prosecutor is a public one and the primacy given to the PublicProsecutor under the scheme of Code has a social purpose.

D32. In this regard, we may reproduce a passage from the saidauthority which is as follows:-

“We are, therefore, unable to accept the argument of the learnedAdditional Advocate General that the appointment of DistrictGovernment Counsel by the State Government is only aEprofessional engagement like that between a private client andhis lawyer, or that it is purely contractual with no public elementattaching to it, which may be terminated at any time at the sweetwill of the Government excluding judicial review. We have alreadyindicated the presence of public element attached to the `office’For `post’ of District Government Counsel of every categorycovered by the impugned circular. This is sufficient toattract Article 14 of the Constitution and bring the question ofvalidity of the impugned circular within the scope of judicial review.”

33. Eventually, the Court analyzing the test of Article 14, opined:- G“In our opinion, the wide sweep of Article 14 undoubtedly takeswithin its fold the impugned circular issued by the State of U.P. inexercise of its executive power, irrespective of the precise natureof appointment of the Government Counsel in the districts and the 16 (1979) 4 SCC 701 17 (1988) 3 SCC 144H

STATE ELECTION COMMISSIONER, BIHAR PATNA v.JANAKDHARI PRASAD [DIPAK MISRA, CJI]

other rights, contractual or statutory, which the appointees mayhave. It is for this reason that we base our decision on the groundthat independent of any statutory right, available to the appointees,and assuming for the purpose of this case that the rights flow onlyfrom the contract of appointment, the impugned circular, issued inexercise of the executive power of the State, must satisfy Article14of the Constitution and if it is shown to be arbitrary, it must bestruck down. However, we have referred to certain provisionsrelating to initial appointment, termination or renewal of tenure toindicate that the action is controlled at least by settled guidelines,followed by the State of U.P., for a long time. This too is relevantfor deciding the question of arbitrariness alleged in the presentcase.”

The aforesaid passages clearly show that the Court went by theconcept of public element attached to the office or post of GovernmentPleader. It has not expressed the opinion that they are under theGovernment service. Be that as it may, as has been held by the learnedSingle Judge and rightly so, there is no master-servant relationship andthe respondent was not amenable to any disciplinary proceeding. Hehas correctly expressed the view that the conduct of the advocate issubject to the discipline of the Bar Council. As we notice, there isnothing on record to show that he was getting any remuneration. Even ifsome remuneration is attached to the office, he cannot be treated to beunder the service of the State Government. The aspects which areessential for establishing a relationship of master and servant are absent.Therefore, the returned candidate could not have been treated to be inservice under the State Government.

34. In view of the premised reasons, we do not find any substancein the appeal and the same is, accordingly, dismissed. In the facts andcircumstances of the case, there shall be no order as to costs.

Nidhi Jain

Appeal dismissed.

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