Chet Ram Vs. Jit
Singh  INSC 1807 (22 October 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6225 OF 2008 [Arising
out of SLP (Civil) No. 1610 of 2005] Chet Ram ...Appellant Versus Jit Singh
CIVIL APPEAL NO. 6226 OF 2008 [Arising out of SLP (Civil) No. 7276 of 2005]
Harnek Singh ...Appellant Versus Jaswant Singh ...Respondents
S.B. SINHA, J :
a Gramin Dak Sewak is a government servant and consequently is disqualified to
become a member of Nagar Panchayat in terms of Section 11(g) of the Punjab
State Election Commission Act, 1994 (for short "the Act") is the
question involved herein.
fact of the matter is being noticed from Civil Appeal arising out of SLP (C)
No. 1610 of 2005.
working as Gramin Dak Sewak, appellant contested in an election for membership
of Nagar Panchayat Sardulgarh held on 9.03.2003.
Respondent No. 1
filed an election petition in terms of Sections 76, 79 and 89 of the Act and
Rule 87 of the Punjab Municipal Election Rules, 1994 before the Election
Tribunal. However, upon receipt of notice, appellant submitted his resignation.
We must, however,
place on record that Harnek Singh, appellant in Civil Appeal arising out of SLP
(C) No. 7276 of 2005, was charge sheeted for participating in politics.
of appellant that he was not a government employee having been working on part
time basis and, thus, was not disqualified in terms of Section 11(g) of the Act
was rejected by the Tribunal by reason of its judgment and order dated
25.08.2004 inter alia holding that having regard to the provisions of Rule
22(4) of the Department of Posts, Gramin Dak Sewak (Conduct and Employment)
Rules, 2001 (for short "the Rules") he stood disqualified.
appeal was preferred there against which was marked as FAO No. 4305 of 2004. By
reason of the impugned judgment, the High Court held:
is a part time employee of the post office under the Central Government,
outside regular civil service. Nonetheless, he is holding this post under the
Government and he is also entitled to protection under Article 311 of the
Constitution, in view of the judgment of the Apex Court in Rajamma's case
(supra) and other judgments. He is also getting remuneration by way of salary.
He is appointed by and paid by Central Government and is under direct control
of the Central Government. Case of Madhukar G.E. Pankakar (supra) relating to
Insurance Medical practitioner appointed under the provisions of ESI Act is
different. In the said case, the employee was not being paid directly by the
Government nor was control of the Government direct, as observed in para 40 of
the judgment. In the present case, position is different. The appellant was,
thus, rightly held to be disqualified from contesting election." Appellant
is, thus, before us.
Punit Leekha, learned counsel appearing on behalf of the appellant would submit
that a part time employee working in a post office does not hold any office of
profit under the government and, therefore, the impugned judgment cannot be
sustained. Strong reliance in this behalf has been placed on Madhukar G.E.
Pankakar v. Jaswant Chobbildas Rajani and Others [(1977) 1 SCC 70].
learned counsel appearing on behalf of the respondent, on the other hand, would
support the judgment.
Act was enacted for constitution of a State Election Commission and for vesting
the superintendence, direction and control of the preparation of electoral
rolls for, and the conduct of all elections to the Panchayats and
Municipalities in the State of Punjab.
Chapter II of the Act
provides for constitution of the State Election Commission. Chapter IV of the
Act provides for disqualifications. Section 11 of the Act provides that a
person shall be disqualified for being chosen as 5 and for being a member of a
Panchayat or a Municipality inter alia if he holds an office of profit under
the Government of India or any State Government.
the terms and conditions of a Gramin Dak Sewak are governed by the provisions
of the Rules; Sub-rule (4) of Rule 22 whereof reads as under:
"(4) No Sevak
shall canvass or otherwise interfere with or use his influence in connection
with, or take part in an election to any legislative or local authority;"
The said Rules were
framed in terms of proviso appended to Article 309 of the Constitution of
India. The terms and conditions of employment of a Gramin Dak Sewak are
governed by statutory rules.
The Rules framed in
terms of the proviso appended to Article 309 of the Constitution of India
indisputably govern only government employees.
It was, therefore,
for appellant to show that he was not governed by the Rules. As noticed
hereinbefore, Section 11(g) of the Act lays down the conditions for
disqualification. Section 12 of the Act provides that if a question arises as
to whether a member of any Panchayat or Municipality 6 has become subject to
any of the disqualifications specified in Article 243F or 243V of the
Constitution of India or in Section 11 of the Act, the question shall be
referred for decision of the State Government and its decision shall be final.
It has furthermore been provided that before giving any decision on such
question, the State Government shall obtain the opinion of the Election
Commission and shall act in accordance thereof.
The same, however,
would not mean that the Election Tribunal was not competent to decide the
question as to whether the returned candidate was or was not qualified for
being chosen as a member of Panchayat or Municipality.
XII of the Act deals with election petitions. Section 73 of the Act provides
for constitution of an Election Tribunal. Section 74 mandates that no election
shall be called in question except by an election petition presented in
accordance with the provision of Chapter XII. Section 75 lays down that only
the Election Tribunal having jurisdiction shall have the power to adjudicate
upon the election petitions. Section 79 provides that an applicant may in addition
to claiming a declaration that the election of all or any of the returned
candidates is void, may claim a further declaration that he himself or any
other candidate may be declared as duly elected. Various 7 provisions have
been laid down as regards procedures to be followed in such petitions.
an election petition is filed, all questions which arise for consideration by
the Tribunal must be adjudicated upon on the basis of the materials brought on
record by the parties. As regards eligibility of a candidate to contest in an
election of the municipalities in question, the Tribunal had jurisdiction to
determine the same. A finding has been arrived at by it on the basis of the
materials brought on record that appellants were government employees. It is
not denied or disputed that their terms and conditions of service were governed
by the statutory rules.
In Madhukar G.E.
Pankakar (supra), whereupon reliance has been placed by Mr. Leekha, this Court
in regard to the question as to whether an employee falls within the
description of "office of profit under government" opined that for
holding an office of profit under government one need not be in the service of
government and there need not be any relationship of master and servant. It was
furthermore held that all factors need not be conjointly present. However, as
the petitioners therein were only insurance medical practitioners, it was held
that they did not hold any office of profit inasmuch as the services rendered
by them have no substantial link with the 8 end, viz., the possible misuse of
position as insurance medical practitioner in doing his duties as Municipal
We are conscious of
the fact that Madhukar G.E. Pankakar (supra) has been referred to subsequently
by this Court in Shibu Soren v. Dayanand Sahay and Others [(2001) 7 SCC 425]
and M.V. Rajashekaran and Others v. Vatal Nagaraj and Others [(2002) 2 SCC
Whereas in the case
of Shibu Soren (supra), the applicant was nominated by the State Government as
the Chairman of the Interim Jharkhand Area Autonomous Council, which was a
statutory organization, in the case of M.V. Rajashekaran (supra), the applicant
was only a member of a Commission.
In Shibu Soren
(supra), this Court held:
question whether a person holds an office of profit, as already noticed, is
required to be interpreted in a realistic manner having regard to the facts and
circumstances of each case and relevant statutory provisions. While "a
strict and narrow construction" may not be adopted which may have the
effect of "shutting off many prominent and other eligible persons to
contest the elections" but at the same time "in dealing with a
statutory provision which imposes a 9 disqualification on a citizen it would
be unreasonable to take merely a broad and general view and ignore the essential
points". The approach which appeals to us to interpret the expression
"office of profit" is that it should be interpreted with the flavour
of reality bearing in mind the object for enactment of Article 102(1)(a),
namely, to eliminate or in any event to reduce the risk of conflict between the
duty and interest amongst members of the legislature by ensuring that the
legislature does not have persons who receive benefits from the executive and
may thus be amenable to its influence."
The legal principles
enunciated in Shibu Soren (supra) were followed in M.V. Rajashekaran (supra)
of the aforesaid decisions of this Court unequivocally therefore indicates that
the question has to be answered depending upon the facts peculiar to the case
in hand with the object of finding out whether in fact the Government retains
some control over the post which the incumbent was holding at the time of
filing of nomination and was there any profit attached to the post in question.
The underlined idea obviously is, that it should be free from any pressure from
the Government so that there can be no conflict in discharge of his independent
duties as a Member of the Legislative Assembly or the Legislative
employees are prohibited from taking part in election to a Panchayat or Nagar
Panchayat. Such prohibition was introduced for 10 obvious reasons. The
legislative object in making the Rules is very clear, viz., the status enjoyed
by a candidate shall not be allowed to be prejudicial vis-`-vis a candidate who
does not enjoy such a status.
In Guru Gobinda Basu
v. Sankari Prasad Ghosal and Others [AIR 1964 SC 254 : (1964) 4 SCR 311], this
Court held that an auditor of two government companies held an office of profit
under government within the meaning of Article 102(1)(a) of the Constitution of
for the respondents has been content to argue before us on the basis that the
two companies having been incorporated under the Indian Companies Act, 1956 are
separate legal entities distinct from Government. Even on that footing he has
contended that in view of the provisions of Section 619 and other provisions of
the Indian Companies Act, 1956, an auditor appointed by the Central
Government and liable to be removed from office by the same Government, is a
holder of an office of profit under the Government in respect of a company
which is really a hundred per cent Government Company.
think that this contention is correct. 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 Articles 309 and 314. The Constitution has
also made a distinction between `the holder of an office 11 of profit under
the Government' and `the holder of an office of profit under a local or other
authority subject to the control of Government'; see Articles 58(2) and 66(4).
In Maulana Abdul Shakur v.
Rishab Chand the
appellant was the manager of a school run by a committee of management formed
under the provisions of the Durgah Khwaja Saheb Act, 1955. He was appointed by
the administrator of the Durgah and was paid Rs 100 per month.
The question arose
whether he was disqualified to be chosen as a member of Parliament in view of
Article 102(1)(a) of the Constitution. It was contended for the respondent in
that case that under Sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the
Government of India had the power of appointment and removal of members of the
committee of management as also the power to appoint the administrator in
consultation with the committee; therefore the appellant was under the control
and supervision of the Government and that therefore he was holding an office
of profit under the Government of India. This contention was repelled and this
Court pointed out the distinction between `the holder of an office of profit
Government' and `the holder of an office of profit under some other authority
subject to the control of Government'. Mr Chaudhuri has contended before us
that the decision is in his favour. He has argued that the appellant in the
present case holds an office of profit under the Durgapur Projects Ltd. and the
Hindustan Steel Ltd. which are incorporated under the Indian Companies Act; the
fact that the Comptroller and Auditor-General or even the Government of India
exercises some control does not make the appellant any the less a holder of
office under the two companies. We do not think that this line of argument is
12 [See also Pradyut
Bordoloi v. Swapan Roy (2001) 2 SCC 19] Jaya Bachchan v. Union of India [(2006)
5 SCC 266] was another case, where a similar question arose for consideration.
It was held:
(1)(a) of Article 102 provides that a person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament if he holds
any office of profit under the Government of India or the Government of any
State, other than an office declared by Parliament by law not to disqualify its
holder. The term "holds an office of profit" though not defined, has
been the subject-matter of interpretation, in several decisions of this Court.
An office of profit is an office which is capable of yielding a profit or
pecuniary gain. Holding an office under the Central or State Government, to
which some pay, salary, emolument, remuneration or non- compensatory allowance
is attached, is "holding an office of profit". The question whether a
person holds an office of profit is required to be interpreted in a realistic
manner. Nature of the payment must be considered as a matter of substance
rather than of form. Nomenclature is not important. In fact, mere use of the
word "honorarium" cannot take the payment out of the purview of
profit, if there is pecuniary gain for the recipient. Payment of honorarium, in
addition to daily allowances in the nature of compensatory allowances, rent
free accommodation and chauffeur driven car at State expense, are clearly in
the nature of remuneration and a source of pecuniary gain and hence constitute
profit. For deciding the question as to whether one is holding an office of
profit or not, what is relevant is 13 whether the office is capable of
yielding a profit or pecuniary gain and not whether the person actually
obtained a monetary gain. If the "pecuniary gain"
"receivable" in connection with the office then it becomes an office
of profit, irrespective of whether such pecuniary gain is actually received or
not. If the office carries with it, or entitles the holder to, any pecuniary
gain other than reimbursement of out of pocket/actual expenses, then the office
will be an office of profit for the purpose of Article 102(1)(a). This position
of law stands settled for over half a century commencing from the decisions of
Ravanna Subanna v. G.S. Kaggeerappa, Shivamurthy Swami Inamdar v. Agadi
Sanganna Andanappa, Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar
Dev and Shibu Soren v. Dayanand Sahay."
12. In Union of India
and Others v. Kameshwar Prasad [(1997) 11 SCC 650], it was held:
"2. The Extra
Departmental Agents system in the Department of Posts and Telegraphs is in
vogue since 1854. The object underlying it is to cater to postal needs of the
rural communities dispersed in remote areas. The system avails of the services
of schoolmasters, shopkeepers, landlords and such other persons in a village
who have the faculty of reasonable standard of literacy and adequate means of
livelihood and who, therefore, in their leisure can assist the Department by
way of gainful avocation and social service in ministering to the rural
communities in their postal needs, through maintenance of simple accounts and
adherence to minimum procedural formalities, as prescribed by the Department
for the purpose.
Compilation of Service Rules for 14 Extra Departmental Staff in Postal
Department p. 1.]
3. The Extra
Departmental Agents are government servants holding a civil post and are
entitled to the protection of Article 311(2) of the Constitution (See: Supdt.
of Post Offices v. P.K. Rajamma). They are governed by separate set of rules,
viz., the Posts and Telegraphs Extra Departmental Agents (Conduct and Service)
Rules, 1964 (hereinafter referred to as "the Rules"). The Central
Civil Services (Classification, Control and Appeal) Rules are not applicable to
this category of employees in view of the notification dated 28-2-1957 issued
by the Government of India under Rule 3(3) of the said Rules."
view of the aforementioned authoritative pronouncements, the High Court must be
held to be correct in arriving at its opinion that appellants were disqualified
from contesting in the election of Nagar Panchayats. The appeals are dismissed
accordingly. No costs.