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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1463 OF 2008

State Election Commissioner,       …Appellant(s) Bihar Patna & others

Versus   Janakdhari Prasad and others      …Respondent(s)

J U D G M E N T

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 Commission”)

contending, inter alia, that the respondent No. 1 was working

as an Assistant Government Pleader in Hilsa, sub­division of

District Nalanda and, therefore, he was disqualified to hold the

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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.

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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 “service”, for host of factors have

to be taken into consideration to determine such relationship.

He further proceeded to observe that none of the factors may

be conclusive and no single factor may be considered

absolutely essential. Eventually, he stated:­

“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"

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Thereafter, the learned Single Judge examined the nature

of appointment of a Government pleader who is paid a

retainer­ship 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.

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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

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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

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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:­

"Article 243F. Disqualifications for membership.­ (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat­

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

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disqualified shall cease to hold the office. The said provision is

as under:­

"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 Gram­Panchayat, 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

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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 sub­section (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

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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:­

"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

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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’.

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11. As has been stated earlier, the learned single Judge has

drawn a distinction between “office of profit” and “service

under the Government”.  We think  it  apposite to restate  the

legal position, the distinction between the two facets as above

and thereafter x­ray the provision, the legislative purpose

behind the same and the nature of appointment.

12. A three­Judge Bench in  Ravanna Subanna v. G.S.

Kaggeerappa1, 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 Act”). 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 Sub­Judge who

dismissed the petition opining that the elected candidate was

not holding an office of profit under the Government as 1 AIR 1954 SC 653

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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

three­Judge Bench expressed thus:­   

“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.”

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Analysing the facts of the case in detail, the Court ruled:­

“12.  … From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6 which the non­official 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 out­of­pocket 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 non­ officials, that the office of the Chairman or of the members should carry any profit or remuneration.”

And, again:­

“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. …”

After expressing the aforesaid view, the three­Judge

Bench of this Court reversed the judgment of the High Court.

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13. In Sakhawant Ali v. State of Orissa2,  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

2 AIR 1955 SC 166

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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

sub­section (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:­  

“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

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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.”  

14. A Constitution Bench in  Guru  Gobinda Basu  v.

Sankari  Prasad Ghosal and others3  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:­

3 AIR 1964 SC 254

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"… 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. …”

15. The Court referred  to the  decision  in Maulana  Abdul

Shakur  v.  Rikhab Chand and another4.  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.

4 AIR 1958 SC 52

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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:­

 “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  bye­laws  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

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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 others5, 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:­  

“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

5 (1969) 2 SCR 422

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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.”  

17. The Court referred to the observations of House of Lords

in  Mcmillan v.  Guest6  wherein  Lord Wright,  delivering the

opinion, said:­  

“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.”  

Eventually, the Court expressed the view:­  

“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

6 [1942] AC 561

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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.”

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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 Surana7,

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. Beater8  and  Mcmillan  case and

referring to Mahadeo (supra) opined:­  

7 (1969) 3 SCC 268 8 8 Tax Cases 231,235

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“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  (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 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.”

  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:­  

“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.”

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19. A two­Judge  Bench  in  Madhukar  G.E. Pankakar  v.

Jaswant  Chobbildas Rajani and others9  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 9 (1977) 1 SCC 70

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petition in the backdrop of facts, Krishna Iyer, J., who penned

the judgment, wrote:­

“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 post­mortem 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.”

20. In the said case, Section 16(1)(g) which provided for office

of profit, read thus:­  

“16(l)(g): No person shall be qualified to become a  Councillor  whether by election, co­option 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;”

It  was contended before the Election Tribunal that the

elected candidate was not entitled to become a councilor as he

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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:­  

“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  many

28

cases) 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 divide”, 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

29

fit into a legal scheme. In the former, an ad hoc Assistant Government Pleader with duties and remuneration  was held to fall outside “office of profit”. It was a casual engagement, not exalted to a permanent position, occupied    pro tempore    by    A   or    B.    In Mahadeo   , a permanent panel of lawyers “maintained by the Railway Administration” with special duties of a lasting nature constituted the offices of profit — more like standing counsel. …”  

[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

others10,  a three­Judge 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

10 (1985) 1 SCC 151

30

relevant date  he was an Accountant­ in­charge 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:­  

“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.”

  On the basis of the aforesaid, ultimately the three­Judge

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.

31

23.  In  Shibu Soren v.  Dayanand Sahay and others11, a

three­Judge  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 ­ 'honorarium' ­ 'remuneration' ­ '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:­

“The  question  whether a  person  holds  an office of profit, as already noticed, is required to be interpreted in a realistic

11 (2001) 7 SCC 425

33

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:­

"Letter No.­C/A(S) 40­01/98/3049/B  Government of Bihar Legal (Justice)  Department

34

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/­

Joint Secretary to the Govt., Bihar"

35

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 profit”. 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

36

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

37

v. Kanak Chandra Dutta13  , 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 India14 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

13 AIR 1967 SC 884 14 AIR 1967 SC 1889

38

contract. The hall­mark 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 others15.  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

15 (1991) 1 SCC 212

39

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:­

"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

40

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

Bihar16  and Mukul Dalal and others v. Union of India and

others17  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.

16 (1979) 4 SCC 701 17 (1988) 3 SCC 144

43

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.

……………………………CJI. (Dipak Misra)

……………………………...J. (A.M. Khanwilkar)

……………………………...J. New Delhi;  (Dr. D.Y. Chandrachud) 03 July, 2018