Biharilal Dobray. Vs. Roshan Lal
Dobray [1983] INSC 184 (23 November 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) FAZALALI, SYED MURTAZA
CITATION: 1984 AIR 385 1984 SCR (1) 877 1984
SCC (1) 551 1983 SCALE (2)761
CITATOR INFO :
R 1985 SC 211 (19) R 1988 SC1369 (15) D 1992
SC1959 (12,14,18,21)
ACT:
Constitution of India 1950, Article
191(I)(a):
'office of profit'-Holding of-What is-Tests
for determination.
Teacher in a Basic Primary School run by the
State Board of Basic Education constituted under a statute - Whether holder of
office of profit'- Whether disqualified under Article 191(1)(a).
Statutory. Corporations:
Incorporation of a body corporate by
statute-Tests to determine whether it is independent of the Government.
Words & Phrases.
'office of profit'-Meaning of-Article
191(1)(a) Constitution of India.
HEADNOTE:
In the election to a seat in a Legislative
Assembly Constituency the nomination paper of the respondent who was an
Assistant Teacher in a Basic Primary School run by the State Board of Education
was rejected by the Returning officer on the ground that he was holding an
office of profit under the State Government', and he was therefore disqualified
under Article 191(1)(a) of the Constitution, for being chosen as a member of the
Legislative Assembly. In the election tho appellant was declared elected.
In his Election Petition, the respondent
contended that since the post of Assistant Teacher In a Basic Primary School
which he was holding was not an 'office of profit under the State Government',
the rejection of his nomination was improper and therefore the election was
liable to be declared as void. The High Court allowed the Election Petition
holding that the post held by the respondent was not an office of the profit
under the State Government'. It declared the election as void by reason of the
improper rejection of the respondent's nomination paper.
Allowing the appeal to this Court, 878
HELD: 1 The respondent was holding an 'office
of profit under the Slate Government' and his nomination was rightly rejected
by the officer. [901 A] In the instant case, the respondent was holding the
post of Assistant Teacher in a Basic Primary School on the date of his
nomination as a candidate at the election and was in receipt of the salary
attached to that post. The Institution wherein he was employed was being run
and managed by the Zila Parishad and the respondent was therefore an employee
of the Zila Parishad on the promulgation of the U.P. Ordinance No. 14 of 1972
which was replaced by the U.P. Basic Education Act, 1972 he became an employee
of the Board under section 9(1) of the Act which provided for the transfer of
employees of local bodies to the Board. The State Government under section 19
framed the Uttar Pradesh Basic Educational Staff Rules, 1973 which were
applicable to all the employees of the Board. The appointing authority in
respect of Assistant Teachers was the District Basic Education officer, who was
an officer appointed by the State Government. The Schedule to the Rules
prescribed the appointing authorities and the appellate authorities in respect
of different posts in the Board. The Rules provided for the procedure to be
followed in disciplinary proceeding and the punishment that may be imposed when
an employee was found guilty of any act of misconduct. The procedure laid down
in the Civil Services (Classification, Control and Appeal) Rules as applicable
to the servants of the Uttar Pradesh Government was required to be followed as
far as possible. The funds of the Board came from the contribution made by the
State Government. The School in question was not a privately sponsored
institution which was recognised by the Board. The final control of the school
was vested in the Government and such control was exercised by it through the
Director or Deputy Director of Basic Education and other District Basic
Education officers appointed by the Government. The Board for all practical
purposes was a department of the Government and its autonomy was negligible.
The respondent therefore held an 'office of profit under. The State
Government'.[888 E, 893 E-897 B]
2. The object of enacting Article 191(1)(a)
is that a person elected to a Legislature should be free to carry on his duties
fearlessly without being subjected to any kind of governmental pressure. If
such a person’s is holding an office which brings him remuneration and the
Government has a voice in his continuance in that office there is every
likelihood of such person succumbing to the wishes of the Government. Article
191(1)(a) is intended to eliminate the possibility of a conflict between duty
and interest of an elected representative and to maintain the purity of the
legislature. [881 E]
3. The term 'office of profit under the
Government' occurring in Article 191(1)(a) though indeterminate is an
expression of wider import than as 'post held under the Government' dealt with
in Part XlV of the Constitution, [881 F]
4. For holding 'an office of profit under the
Government a person need not be in the service of the Government, and there
need not be any relationship or master and servant between them. An office of
profit involves two elements, namely that there should been office and that it
should carry some remuneration. [881 G] 879
5. In order to determine whether a person
holds an office of profit under the Government several tests are ordinarily
applied such as whether the Government makes the appointment, whether the
Government has the right to remove or dismiss the holder of the office, whether
the Government pays the remuneration, whether the functions performed by the
holder are carried on by him for the Government and whether the Government has
control over the duties and functions of the holder. [881H-882 A] Maulana Abdul
Shakur v. Rikhab Chand & Anr. [1958] S.C.R. 387; M. Ramappa v. Sangappa
& Ors. [1959] S.C.R. 1167; Gurugobinda Basu v. Sankari Prasad Ghosal &
Ors. [1964] 4 S.C.R 311; D.R. Gurushantappa v. Abdul Khuddus Anwar & Ors.
[1969] 3 S.C.R. 425; Divya Prakash v. Kultar Chand Rana & Anr. [1975] 2
S.C.R. 749; State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors
[1983] 2 S.C.C. 33;
Kona Prabhakara Rao v. M. Seshrgiri Rao &
Anr A.I.R. 1981 S.C. 658 referred to.
6. The incorporation of a body corporate may
suggest that the statute intended it to be a statutory corporation independent
of the Government. But it is not conclusive on the question whether it is
really so independent. Sometimes the form may be that of body corporate
independent of the Government but in substance it may be just the alter ego of
the Government itself: The true test depends upon the degree of control the
Government has over it the degree of its dependence on Government for its
financial needs and the functional aspect and so on. [898 H-899 B]
7. Article 45 of the Constitution requires
the State to endeavour to provide for free and compulsory education for all
children until they complete the age fourteen years.
Primary education in a State, unlike higher
education, is the special responsibility of its Government. [899 C] In the instant
case, the Uttar Pradesh Basic Education Act, 1972 was passed with the object of
enabling the Government to take over all basic schools which were being run by
the local bodies in the State and to manage them and to administer all matters
pertaining to the entire basic education in the State, through the Board
consisting mostly of officers appointed by the Government. [899 F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1101 of 1982.
Appeal by Special leave from the Judgment and
order dated the 3rd March, 1982 of the Allahabad High Court in Election
Petition No. 21 of 1980.
P. R. Mridul, J. B. Dadachanji, R. Narain, O.
C. Mathur and Mrs. A. K. Verma for the Appellant.
J. P. Goyal, V. K. Verma and Rajesh for the
Respondent.
The Judgment of the Court was delivered by
880 VENRATARAMIAH,J. The question involved in this appeal is whether an
Assistant Teacher employed in a Basic Primary School run by the Uttar Pradesh
Board of Basic Education constituted under the Uttar Pradesh Basic Education
Act, 1972 (U P. Act No. 34 of 1972) (hereinafter referred to as 'the Act') is
disqualified for being chosen as a member of the State Legislative Assembly
under Article 191 (1)(a) of the Constitution.
The appellant Biharilal Dobray, the
respondent Roshan Lal Dobray and some others were nominated as candidates at
the election to the Uttar Pradesh Legislative Assembly from 308 Kanauj (S.C.)
Assembly constituency at the last general elections held in the year 1980. The
nomination paper of the respondent was, however, rejected by the Returning
officer by his order dated May S, 1980 on the ground that he was holding an
office of profit under the Government of the State of Uttar Pradesh and hence
was disqualified under s Article 191(1)(a) of the Constitution for being chosen
as a member of the Legislative Assembly. After such rejection the polling took
place on May 28, 1980 and the appellant who secured the highest number of votes
was declared elected on June 1, 1980. Aggrieved by the result of the election,
the respondent who was not allowed to contest the election by reason of the
rejection of his nomination paper filed an election petition before the High
Court of Allahabad challenging the correctness of the order of rejection of his
nomination paper and the result of the election which was held thereafter. He
contended that since the-post of an Assistant Teacher in a Basic Education
School which he held was not an office of profit under the State Government the
rejection of his nomination was improper and, therefore, the election of the
appellant was liable to be declared as void as provided in section 100(1)(c) of
the Representation of c the People Act, 1951. The High Court being of the
opinion that the post held by the respondent was not an office of profit under
the State Government held that the rejection of his nomination was improper and
the election of the appellant was liable to be declared as void. Accordingly
the election petition was allowed and the . 1 - appellant's election was
declared as void. . Aggrieved by the decision - of the High Court, the
appellant has preferred this appeal under section 116-A of the Representation
of the People Act, 1951.
Although there was an alternative plea raised
in the election petition that the respondent had ceased to hold the post of the
Assistant Teacher in the Basic Education School on the relevant date by reason
of his prior registration, it was not pressed at the hearing 881 of the
election petition and the parties proceeded on the basis that the respondent
was holding the said post at all materials times. The only issue tried by the
High Court was whether the said post was an office of profit under the State
Government or not which, as stated earlier, was answered in favour of the
respondent.
The plea of disqualification of the
respondent for being chosen as a member of the Legislative Assembly was based
on Article 191 of the Constitution, the material part of which reads thus :
"191. (1) A person shall be disqualified
for being chosen as and for being, a member of the Legislative Assembly or
Legislative Council of an State (a) if he holds any office of profit under the
Government of India or the Government of any State specified in the first
Schedule, other than an office declared by the Legislature of the State by law
not to disqualify its holder;.. " The object of enacting Article 191 (1)
(a) is plain. A person who is elected to a Legislature should be free to carry
on his duties fearlessly without being subjected to any kind of governmental
pressure. If such a person is holding an office which brings him remuneration
and the Government has a voice in his continuance in that office, there is
every likelihood of such person succumbing to the wishes of Government. Article
191 (1) (a) is intended to eliminate the possibility of a conflict between duty
and interest and to maintain the purity of the Legislatures. The term office of
profit under the Government' used in the above clause though indeterminate is
an expression of wider import than a post held under the Government which is
dealt with in Part XIV of the Constitution. For holding an office of profit
under the Government a person need not be in the service of the Government and
there need not be any relationship of master and servant between them. An
office of profit involves two elements, namely, that there should be an office
and that it should carry some remuneration. In order to determine whether a
person holds an office of profit under the Government several tests are
ordinarily applied such an whether the Government makes the appointment,
whether the Government has the right to remove or dismiss the holder of the
office, whether the Government pays the remuneration, whether the functions
performed by the holder are carried on by him for the Government and whether the
Government 882 has control over the duties and functions of the holder.
Whether an office in order to be
characterised as an office of profit under the Government should satisfy all
these tests or whether any one or more of them may be decisive of its true
nature has been the subject matter of several cases decided by this Court but
no decision appears to lay down conclusively the characteristics of an office
of profit under the Government although the Court has no doubt determined in
each case whether the particular office involved in it was such an office or
not having regard to its features.
In Maulana Abdul Shakur v. Rikhab Chand &
Anr.(1) the question before this Court was whether the Manager of the Durgah
Khwaja Saheb School run by a committee of management formed under the
provisions of the Durgah Khwaja Saheb Act, 1955 held an office of profit under
the Central Government.
The appellant in that case was elected to the
Council of States (Rajya Sabha) by the Electoral College of Ajmer at the election
held in 1957. The unsuccessful candidate, the respondent therein, filed an
election petition questioning the validity of the election on the ground that
the appellant therein was disqualified for being chosen as a member of
Parliament as he was holding the office of the Manager of the school belonging
to the Durgah Khwaja Saheb which was governed by the Durgah Khwaja Saheb Act,
1955 and had been appointed as Manager by the committee of management appointed
by the Central Government under section 6(2) of that Act. It was contended by
him that because a member of the committee of management could be removed by
the Central Government and because the committee could make bye-laws
prescribing the duties and powers of the employees of the Durgah, the appellant
therein was holding an office of profit under the Central Government and was,
therefore, disqualified under Article 102(1)(a) of the Constitution which was
more or less similar to Article 191(1)(a) of the Constitution. The Election
Tribunal accepted the above plea and set aside the election. On appeal this
Court reversed the decision of the Election Tribunal holding that the office of
the Manager in question was not an office of profit under the Central
Government. The Durgah in question was a religious institution and its affairs
were regulated by the Durgah Khwaja Saheb Act, 1955. The said Act was passed
for making provision for the proper administration of the Durgah and the
endowment of the Durgah Khwaja Moin-ud- din Chishti generally 883 known as Durgah
Khwaja Saheb of Ajmer. The property, endowment and funds of the said Durgah
belonged to it and not to the Central Government and the employees who were
working in the Durgah were employees of the Durgah. The Central Government only
had the power to appoint the members of the committee. This Court observed in
the course of its judgment at page 394 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 bye-laws prescribing the
duties and powers of its employees cannot in our opinion convert the servants
of the Committee into holders of office of profit under the Government of
India. The appellant is neither appointed by the Government of India nor is
removable by the Government of India nor is he paid out of the revenues of
India. The power of the Government to appoint a person to an office of profit
or to continue him in that office or revoke his appointment at their discretion
and payment from out of Government revenues are important factors in
determining whether that person is holding an office of profit under the
Government though payment from a source other than Government revenue is not
always a decisive factor. But the appointment of the appellant does not come
within this test." In M. Ramappa v. Sangappa & Ors (1) the question
before this Court was whether Patels and Shanbhogs who were holders of
hereditary village offices governed by the Mysore Village Offices Act, 1908
were disqualified under Article 191(1)(a) of the Constitution for being chosen
as members of the State Legislative Assembly. The Court answered the question
in the affirmative and observed at pages 1176-77 thus:
"We then come to this that Patels and
Shanbhogs are officers, who are appointed to their offices by the 884
Government though it may be that the Government has no option in certain cases
but to appoint an heir of the last holder; that they hold their office by
reason of such appointment only; that they work under the control and
supervision of the Government; that their remuneration is paid by the
Government out of Government funds and assets; and that they are removable by
the Government, and that there is no one else under whom their offices could be
held. All these clearly establish that Patels and Shanbhogs hold offices of
profit under the Government." The next case to be noticed is Gurugobinda
Basu v.
Sankari Prasad Ghosal & Ors.(1) in which
this Court had to decide whether the appellant therein who was a chartered
accountant and a partner of a firm of auditors appointed as auditors of two
Government companies was holding an office of profit under the Union Government
and the Government of West Bengal and was, therefore, disqualified under
Article 102(1)(a) of the Constitution from being chosen as a member of the Lok
Sabha. The appellant therein contended that on a true construction of Article.
102(1)(a) of the Constitution he could not be said to hold an office of profit
under the Government of India which held the entirety of shares in one company
and the Government of West Bengal which held the entirety of shares of the
other company because the various tests viz. the Government had the power to
appoint, the Government had the right to remove, the Government paid the
remuneration and the Government controlled the functions and duties of the
holder of the office did not co-exist and that the fulfillment of some of the
said tests alone did not make the office and office of profit under the
Government. He contended that his remuneration was paid by the companies and
not by the Governments; he performed the functions for the companies and that
his duties were controlled by the Comptroller and auditor General who was
different from the Government. This Court rejected the plea of the appellant
holding that what had to be considered was the substance of the matter and not
the form. It observed:
"In the case before us the appointment
of the appellant as also his continuance in office rests solely with the
Government of India in respect of the two companies. His remuneration is also
fixed by Government. We assume 885 for the purpose of this appeal that the two
companies are statutory bodies distinct from Government but we must remember at
the same time that they are Government companies within the meaning of the
Indian Companies Act, 1956 and 100% of the shares are held by the Government.
We must also remember that in the performance of his functions the appellant is
controlled by the Comptroller and Auditor-General who himself is undoubtedly
holder of an office of profit under the Government, though there are safeguard
in the Constitution as to his tenure of office and removability there from
...As we have said earlier whether stress will be laid on one factor or the
other will depend on the facts of each case." Ultimately the Court held
that the appellant held an office of profit under the two Governments and was
disqualified under Article 102(1)(a) of the Constitution.
This was a decision by a Bench of Five
Judges. But in D. R. Gurushaniappa v. Abdul Khuddus Anwar & Ors.(1) a Bench
of three Judges of this Court distinguished the decision in Gurugobinda Basu's
case (supra) and held that an employee of a Government company was not holding
an office of profit under the Government. The following passage in that
judgment appearing at page 433 brings forth the view expressed by the Court:
"Mr. Gupta, from these views expressed
by the Courts, sought to draw the inference that the primary consideration from
determining whether a person holds an office of profit under a Government is
the amount of control which the Government exercises over that officer. In the
present case, he relied on the circumstances that all the shares of the Company
are not only owned by the Mysore Government but the Directors of the Company
are appointed by the Government-a Minister was one of the first Directors of
the Company; the appointment of the Secretary to the Company is subject to
approval of the Government; and, even in the general working of the Company,
Government has the power to issue directions to the Directors which must be
carried out by them. It was urged that respondent No 1 was directly under the
control of the Managing Director who is himself appointed by the Government and
may even be a 'lent officer' 886 holding a permanent post under the Government.
Respondent No. 1 thus, must be held to be
working under the control of the Government exercised through the Managing
Director.
We are unable to accept the proposition that
the mere fact that the Government had control over the Managing Director and
other Directors as well as the power of issuing directions relating to the
working of the Company can lead to the inference that every employee of the
Company is under the control of the Government. The power of appointment and
dismissal of respondent No. 1 vested in the Managing Director of the Company
and not in the Government. Even the directions for the day-to-day work to be
performed by respondent No. 1 could only be issued by the Managing Director of
the Company and not by the Government. The indirect control of the Government
which might arise because of the power of the Government to appoint the
Managing Director and to issue directions to the Company in its general working
does not bring respondent No. 1 directly under the control of the
Government." Divya Prakash v. Kultar Chand Rana & Anr.(1) is a
decision of this Court which is very close to the present case. There the Court
had to consider whether the post of a Chairman of the Board of School Education
of the State of Himachal Pradesh appointed under section 18 of the Himachal
Pradesh Board of School Education Act, 1968 was an office of profit under the
State Government. The Court while holding that the said office was an office
under the State Government held that since the candidate concerned was
appointed in an honorary capacity without any remuneration ever though the post
carried remuneration, he was not holding an office of profit and thus was not
disqualified under Article 191(1)(a) of the Constitution.
Now we come to the latest decision of this
Court which is very relevant of purposes of this case and that is State of
Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors in which the question
was whether the employees transferred to the Gujarat Panchayat Service and
working under the local authorities formed under the Gujarat 887 Panchayats
Act, 1961 were State Government employees or not.
The said local authorities were corporate
bodies constituted under the statute. After considering several earlier
decisions cited before it the Court observed at pages 50-51 thus:
"We may now revert to the question
whether the members of the Gujarat Panchayat Service are government servants.
First, we see that the duties which they are required to perform are in
connection with those affairs of the State which are entrusted to the Panchayat
Institutions by the statute itself or by transfer by the Government under the
statute. Next, the expenditure towards the pay and allowance of officers and
servants of the panchayat service, serving for the time being under any
panchayat has, no doubt, to be met by the panchayat from its own fund, but, as
we have seen, the fund consists substantially of some contributed or lent by
the State Government and of the proceeds of any tax or fee imposed by or
assigned to the panchayat under the Act. The imposition of a tax or a fee in
the nature of a tax, as we know, is essentially a function of the State. So the
salary and allowances of the servants and officers of the panchayat service are
paid out of funds contributed, or lent by the Government or raised by the
discharge of an essential government function. Secretaries of Gram and Nagar
Panchayats are to be appointed in accordance with the Rules made by the
Government, while the Taluqa Development officer is to be Secretary of the
Taluqa Panchayat and the District Development Officer is to be the Secretary of
the District Panchayat. Taluqa and District Development Officers are, of course,
officers of State service. Gram and Nagar Panchayats may have other servants,
as may be determined under Section 203, but they have to be appointed by such
authority as may prescribed by the Government and their conditions of service
shall be such as may be prescribed by the Government. Section 203 as already
noticed by us, contemplates the constitution of a single centralised panchayat
service, the classes, cadres and posts of which have to be determined by the
Government from time to time. The mode of recruitment, whether by examination
or other-wise, the conditions of service, the power in respect of appointments,
transfers and promotions of officers and 888 servants and disciplinary action
which may be taken against them, are to be regulated by the Rules made by the
Government. The Rules so made are particularly required to contain a provision
entitling servants so such cardres in the panchayat service to promotion to
such cadres in the State service as may be prescribed vide Section 203(4)(a).
This is an important provision.
There cannot be any question of a rule
providing for promotion from the panchayat service to the State service unless
the panchayat service is also a service under the State. Again Section 203(5)
requires that rules may provide for inter-district transfers of servants
belonging to the panchayat service and the circumstances in which and the
conditions subject to which such transfers may be made. This provision along
with the other provisions of Section 203 which provide for the promotion and
transfer of servants belonging to the district, taluqa and local cadres within
the district, taluqa and gram or nagar clearly show that the servants are not
the servants of the individual panchayats but belong to a centralised
service." In the light of the above pronouncements we shall proceed to
examine this case. There is no dispute that the respondent was holding the post
of an Assistant Teacher in a Basic School on the date of his nomination as a
candidate at the election in question and was in receipt of the salary attached
to that post. The only question which needs to be examined is whether the post
he was holding was one under the State Government or not. This leads us to the
consideration of the relevant provisions of the Act i.e. the Uttar Pradesh
Basic Education Act, 1972. The Statement of Objects and Reasons attached to the
Bill which later on became the Act reads thus:
"Statement of objects and Reasons-(1)
The responsibility for primary education has so far rested with the Zila Parishads
in rural areas and with Municipal Boards and Mahapalikas in urban areas. The
administration of education at this level by the local bodies was not
satisfactory, and it was deteriorating day by day. There was public demand for
the Government to take immediate steps for improving the education at this
level.
Hence for reorganizing, reforming and
expending elementary education it 889 became necessary for the State Government
to take over its control into its own hands.
(2) Repeated demands had been made by all
sections of the Legislature also for the take-over of the control of elementary
education by the State Government from local bodies. Echoing this public
demand, the Governor had also in his address to both the Houses of the
Legislature on March 20, 1972, said that in order to strengthen the primary and
junior high schools and to increase their usefulness Government was going to
assume full responsibility for its control and management.
(3) With a view to taking effective steps for
securing the object of Article 45 of the Constitution, and fulfilling the
assurances given in the Governor's address and respecting the popular demand it
was necessary to entrust the conduct and control of elementary education to a
virile institution which may be expected to inject new life into it and to make
it progressive. It was, therefore, decided by the Government to transfer the
control of primary education from the local bodies to the Uttar Pradesh Board
of Basic Education with effect from the educational session 1972-73.
(4) The educational session had commenced and
the Legislative Council was not in session and if immediate action had not been
taken, the matter would have had to be postponed till the educational session
1973-74 with the result that the desired object would not have been achieved.
Therefore, in order to implement the said
decision immediately, the Uttar Pradesh Basic Education Ordinance, 1972, was
promulgated.
(5) The Uttar Pradesh Basic Education Bill,
1972, is being introduced to replace the said Ordinance." A reading of the
above Statement of objects and Reasons shows that the Act was enacted for the
purpose of enabling the State Government to take over the responsibility of
primary education from the local authorities such as Zila Parishads, Municipal
Boards and 890 Mahapalikas. For this purpose the Act provides for the
constitution of a Board to run the school imparting primary education instead
of keeping them as a part of a Department of Education of the State Government.
The Board is established by the State Government under section 3 of the Act
with the Director, ex officio, as its Chairman. The other members of the Board
are two persons to be nominated by the State Government from amongst
Adhyakshas, if any, of Zila Parishads; one person to be nominated by the State
Government from amongst the Nagar Pramukhs, if any, of the Mahapalikas; one
person to be nominated by the State Government from amongst the Presidents, if
any, of the Municipal Boards; the Secretary to the State Government in the Finance
Department, ex officio; the Principal of the State Institute of Education, ex
officio; the Secretary of the Board of High School and Intermediate Education,
Allahabad, ex officio; the President of the Uttar Pradesh Prathmik Shikshak
Sangh, ex officio; two educationists to be nominated by the State Government
and an officer not below the rank of Deputy Director of Education to be
nominated by the State Government who shall be the Member Secretary of the
Board. The functions of the Board are set out in section 4 of the Act thus:
"4. Function of the Board - (1) Subject
to the provisions of this Act it shall be the function of the Board to
organise, co-ordinate and control the imparting of basic education and
teachers' training therefore in the State, to raise its standard and to
correlate it with the system of education as a whole in the State.
(2) Without prejudice to the generality of
the provisions of sub-section (1) the Board shall, in particular, have power-.
(a) to prescribe the courses of instruction
and books for basic education and teachers' training there for;.
(b) to conduct the junior high school and
basic training certificate examination and such other examinations as the State
Government may from time to time by general or special order assign to it and
to grant diploma or certificates to candidates successful at such examination;
891 (c) to lay down by general or special
orders in that behalf, norms relating to the establishment or institutions by
the Zila Basic Shiksha Samitis or Nagar Basic Shiksha Samitis and to
Superintend the said Samitis in respect of the administration of institutions
for imparting instruction and preparing candidates for admission to
examinations conducted by the Board;
(cc) to take over the management of all basic
schools which before the appointed day, belonged to any local body;
(d) to exercise supervision and control over
basic schools, normal schools, basic training certificate units and the State
Institute of Education;
(e) to accord approval (with or without
modification) to the schemes prepared by the Zila Basic Shiksha Samiti or the
Nagar Shiksha Samiti for the development expansion and improvement of and
research in basic education in any district or in the State or in any part
thereof;
(f) to acquire, hold and dispose of any
property, whether movable or immovable and in particular, to accept gift of any
building or equipment of any basic school or normal school on such conditions
as it thinks fit;
(g) to receive grants, subventions and loans
from the State Government;
(g-1) to have superintendence over the Zila
Basic Shiksha Samitis and the Nagar Basic Shiksha Samitis in the performance of
their functions under this Act and subject to the control of the State
Government, to issue directions to the Samitis which shall be binding on such
Samitis;
(g-2) to constitute sub-committees (from
amongst the members of the Zila Basic Shiksha Samitis and 892 Nagar Basic
Shiksha Samitis) for such purposes as the Board thinks fit;
(h) to take all such steps as may be
necessary or convenient for, or may be incidental to the exercise of the power,
or the discharge of any function or duty conferred or imposed on it by this
Act;
Provided that the courses of instruction and
books prescribed and institutions recognised before the commencement of this
Act shall be deemed to be prescribed or recognised by the Board under this Act,
For the purposes of exercising powers of management supervision and control
over the basic schools under clause (cc) or clause (d) of sub-section (2),
which before the appointed day belonged to a local body the powers and
functions of a local body in respect of such schools shall stand transferred to
the Board." Section 6 of the Act which deals with officers and other
employees of the Board reads thus:
"6 Officers and other employees of the
Board- (1) For the purposes of enabling it efficiently to discharge its
functions under this Act the Board may appoint such number of office teachers
and other employees as it may, with the previous approval of the State
Government, think fit.
(2) XX XX XX XX XX (3) XX XX XX XX XX"
(Emphasis added) Section 7 of the Act states that the Board shall have its own
fund, and all receipts of the Board are required to be credited into it and all
payments are to be made out of it. The Director, the Deputy Director of
Education (Member Secretary) and District Basic Education Officers who are in-charge
of the administration of the Board are officers appointed by the State
Government. Section 13 of the Act which vests the control in the hands of the
State Government reads thus :
893 "13. Control by the State
Government- (1) The Board shall carry out such directions as may be issued to
it from time to time by the State Government for the efficient administration
of this Act.
(2) If in, or in connection with, the
exercise of any of its powers and discharge of any of the functions by the
Board under this Act, any dispute arises between the Board and the State
Government, or between the Board and any local body, the decision of the State
Government on such dispute shall be final and binding on the Board or the local
body, as the case may be.
(3) The Board or the local body shall furnish
to the State Government such reports, returns and other information, as the
State Government may from time to time require for the purposes of this
Act." The respondent was originally working as an Assistant teacher in the
Basic Primary School, Sengarmau, Tahsil Kanauj, District Farrukhabad. That
institution was being run and managed by the Zila Parishad of Farrukhabad and
the respondent was therefore an employee of the said Zila Parishad. On the
promulgation of the U.P. Ordinance No. 14 of 1972 which was replaced by the
Act, he became an employee of the Board under section 9(1) of the Act which provided
for the transfer of employees of the local bodies to the Board. Section 9(1) of
the Act reads thus :
"9. Transfer of employees-(1) On and
from the appointed day every teacher, officer and other employee serving under
a local body exclusively in connection with basic schools (including any
supervisory or inspecting staff) immediately before the said day shall be
transferred to and become a teacher, officer or other employee of the Board and
shall hold office by the same tenure, at the same remuneration and upon the
same other terms and conditions of service as he would have held the same if
the Board had hot been constituted and shall continue to do so unless and until
such tenure, remuneration and other terms and conditions are altered by the
rules made by the State Government in that behalf:
894 Provided that any service rendered under
the local body by any such teacher, officer or other employee before the
appointed day shall be deemed to be service rendered under the Board:
Provided further that Board may employ any
such teacher, officer or other employee in the discharge of such functions
under this Act as it may think proper and every such teacher, officer or other
employee shall discharge those functions accordingly." In exercise of its
powers under section 19 of the Act the State Government has framed the Uttar
Pradesh Basic Educational Staff Rules, 1973 which are applicable to all the
employees of the Board. The appointing authority in respect of Assistant
Teachers is the District Basic Education Officer who is an officer appointed by
the State Government. The Schedule given under the said Rules which prescribes
the appointing authorities and the appellate authorities in respect of the
different posts in the Board is as follows:
"SCHEDULE" ------------------------------------------------------------
Sl. Name of the Appointing Appellate Authority No. post Authority
------------------------------------------------------------ 1 2 3 4
------------------------------------------------------------
1. Education Director of Education State
Government Superintendent (Basic)/Chairman of (Male and the Board.
Female).
2. Assistant Deputy Director of Chairman of
the Attendance Education Board officer (Elementary) Member (Male and Secretary
of the Female) Board.
3. Head Clerk Ditto Ditto
4. Accountant Ditto Ditto 895
------------------------------------------------------------ Sl. Name of the
Appointing Appellate Authority No. post Authority
------------------------------------------------------------ 1 2 3 4
------------------------------------------------------------
5. Store-keeper District Basic Member
Secretary Education Officer of the board
6. Other Clerks Ditto Ditto In Rural Areas
7. Class IV Deputy Inspectors District basic
employees of schools, Deputy Education offices and inspectresses of Officers.
Institution. Schools.
In Urban Area District Basic Education Super-
Education intendent/Lady Education Officers Superintendent.
8. Headmasters/ District Basic Education Chairman
of the Headmis Officer/Additional - Board tresses in District Basic Senior
Basic Education Officer Schools (Women).
9. Assistant Ditto Member-Secretary Teachers/
of the Board Mistresses of Senior Basic Schools.
10. Headmasters/ Ditto Ditto Headmistresses
of junior Basic Schools.
896
------------------------------------------------------------ Sl. Name of the
Appointing Appellate Authority No. post Authority
------------------------------------------------------------ 1 2 3 4
------------------------------------------------------------
11. Assistant District Basic Member-Secretary
Teachers/ Education of the Board.
Mistresses Officer/Additional of Junior
District Basic Basic Schools. Education Officer (Women)
12. Headmistresses District Basic
Member-secretary of Nursery Education Officer of the Board.
Schools. District Basic Education Officer
(Women)
13. Assistant Ditto Ditto Mistresses of
Nursery Schools.
It is seen that all officers mentioned in
column 3 and column 4 of the above Schedule are either the State Government or
officers appointed by the State Government.
The said officers are all officers of the
Government Department who hold the posts in the Board ex officio, that is, by
virtue of the corresponding post held by them under the Government. The Rules
provide for the procedure to be followed in disciplinary proceedings and the
punishments that may be imposed when an employee is found guilty of any act of
misconduct. Rules 5 of the said Rules provides for an appeal against any order
imposing punishment to the prescribed authority. The procedure laid down in
Civil Services (Classification, Control and Appeal) Rules as applicable to
servants of the Uttar Pradesh Government is required to be followed as far as
possible in the case of the employees of the U.P. Board of the Basic Education.
The funds of the Board mainly come from the contribution made by the State
Government. The school in question is not a privately sponsored institution
which is recognised by the Board. The Statement of Objects and reasons attached
to the Bill which was passed as the Act clearly says that the Act was passed in
order to enable the State Government to take over 897 the administration of
schools imparting primary education which were being run by the local
authorities into its own hands. Even though the representatives of local
authorities are associated in the administration of such schools after the Act
was passed, the final control of the schools is vested in the Government and
such control is exercised by it through the Director and Deputy Director of
Basic Education (Member-Secretary) and other District Basic Education Officers
appointed by the Government.
The High Court principally relied on the
decisions of this Court in Maulana Abdul Shakur's (supra) and
D.R.Gurushantappa's case (supra) in reaching the conclusion that the respondent
was not holding an office of profit under the Government. In the first case, as
mentioned earlier, the employer was the Durgah which was a religious
institution whose affairs were only regulated by an Act of Parliament and the
remuneration was being paid out of the funds of the Durgah. In the second case
the candidate in question was an employee of a Government company which had
been registered under the Companies Act but the powers of management were
vested in the Managing Director of the Company functioning in accordance with
the Articles of Association of the Company and the control of the Government
was very indirect. In Kona Prabhakara Rao v. M. Seshagiri Rao & Anr. in
which the judgment was rendered by one of us (Fazal Ali, J.) the candidate
whose nomination was questioned was a part-time Chairman of a company called
the Travel and Tourism Corporation (Andhra Pradesh) Private Limited who had
been appointed by the Andhra Pradesh State Road Transport Corporation which was
a Corporation established under the road Transport Corporations Act, 1950.
In this case also the control of the
Government was too remote.
We are of the view that the present case is
governed by the principles laid down by the judgment of this Court in Raman Lal
Keshav Lal Soni's case (supra). The functions of the employees of the Board are
in connection with the affairs of the State. In expenditure of the Board is
largely met out of the moneys contributed by the State Government to its funds.
The teachers and other employees are to be appointed in accordance with the
rules by officers who are themselves appointed by the Government. The
disciplinary proceedings in respect of the employees are subject to the final
decision of 898 the State Government or other Government officers, as the case
may be. This Court, as mentioned earlier, held in Divya Prakash's case (supra)
that the officers of the Board of School Education constituted under the
Himachal Pradesh Board of School Education Act, 1968 which was a body corporate
having perpetual succession and a common seal held their offices under the
Government although in that particular case it was held that the office was not
an office of profit as the person concerned was working in an honorary
capacity. We have gone through the Himachal Pradesh Board of School Education
Act, 1968 and we find that the provisions of that Act are almost similar in
pattern to the provisions of the Act with which we are concerned in this case.
On behalf of the respondent it is however
urged that the Board of Basic Education being a body corporate having perpetual
succession and a common seal its employees cannot be considered as holding any
office of profit under the Government and in support of this contention
reliance has been placed on the decision of the High Court of Allahabad in
Radha Krishna Visharad v. Civil Judge, Aligarh & Ors. In that case the
Court had to construe the provisions of clause (c) of section 13 of the U.P.
Intermediate Education Act, 1921 which provided that a person was disqualified
for being chosen a member of Kshetra Samiti or coopted as a member thereof or
for being elected as a Pramukh under section 7 of that Act if he held any
office of profit in the gift or disposal of Government or any local authority
including a Gaon Sabha. The ground on which the Returning officer had rejected
the nomination paper of the petitioner in that case for election to the office
of the Pramukh of Kshettra Samiti was that inasmuch as he was in the service of
the Jawahar Inter College which was an institution receiving grant-in- aid from
the Government, he was holding an office of profit in the gift or disposal of
the Government. The Court held that the rejection was bad because all that the
U.P. Intermediate Education Act, 1921 intended to do was to regulate the
working of recognised institutions and to provide for High School and
Intermediate Examinations and that the said Act did not contemplate that the
Government should become the owners of the private recognised institutions.
This decision is not, therefore, of much assistance to the respondent. Even
though the incorporation of a body corporate may suggest that the statute
intended it to be a 899 statutory corporation independent of the Government it
is not conclusive on the question whether it is really so independent.
Sometimes the form may be that of a body corporate independent of the
Government but in substance it may be just the alter ego of the Government
itself. The true test of determination of the said question depends upon the
degree of control the Government has over it, the extent of control exercised
by the several other bodies or committees over it and their composition, the
degree of its dependence on Government for its financial needs and the
functional aspect, namely, whether the body is discharging any important
Governmental function or just some function which is merely optional from the
point of view of Government. In this connection it is necessary to recall the
provisions of Article 45 of the Constitution which require the State to
endeavour to provide for free and compulsory education for all children until
they complete the age of fourteen years.
Primary education in a State unlike the
higher education is the special responsibility of its Government and as
observed earlier the Act was passed with the object of enabling the Government
to take over all basic schools which were being run by the local bodies in the State
and to manage them as provided specifically in section 4(2) (cc) of the Act and
to administer all masters pertaining to the entire basic education in the State
through the Board consisting mostly of officers appointed by the Government.
The rules made regarding the disciplinary proceedings in respect of the
teachers in the basic schools managed by the Board as observed earlier vest the
final voice in the State Government or its Officers and almost the entire
financial needs of the Board are met by the Government. The Board for all
practical purposes is a department of the Government and its autonomy is
negligible. Sub-section (2) of section 13 of the Act which emphasis is placed
by the respondent is also not of much significance. It no doubt recognises the
possibility of a dispute arising between the Board and the Government regarding
the functions of the Board but that very sub-section provides that if any such
dispute arises the decision of the State Government shall be final and it shall
be binding on the Board.
It is next urged on behalf of the respondent
that the difference between the language of Article 58(2) and Article 66(4) of
the Constitution which deal with the question of disqualification of a person
who seeks election as President or Vice-President respectively and the language
of Article 191(1)(a) of the Constitution should be given due importance in
deciding this case. For purposes of convenience, 900 Article 58(2) and Article
66(4) of the Constitution are set out below. They read thus:
"58.(2) A person shall not be eligible
for election as President if he holds any office of profit under the Government
of India or the Government of any State or under any local or other authority
subject to the control of any of the said Governments.
Explanation........" "66.(4) A
person shall not be eligible for election as Vice-President if he holds any
office of profit under the Government of India or the Government of any State
or under any local or other authority subject to the control of any of the said
Governments.
Explanation..................." The
contention of the respondent is that the Board being an authority subject to
the control of the Government cannot be considered as the Government itself as
otherwise Article 58(4) and Article 66(4) of the Constitution which refer to
the Government as well as other authority subject to the control of any
Government would have to be treated as suffering from the vice of redundancy.
It is further argued that when the Constitution itself has made a distinction
between the Government and other authority subject to the control of the
Government, in the absence of any reference to any other authority subject to
the control of the Government in Article 191(1)(a) of the Constitution, the
holding of an office of profit under the Board which is only an authority under
the control of the Government would not amount to a disqualification. The
argument is indeed quite attractive. But it is difficult to accept it having
regard to the provisions of the Act and the Rules. We have already shown that
the Board is not an authority which is truly independent of the Government and
that every employee of the Board is in fact holding his office under the
Government.
This is not even a case of attempting to
pierce the veil and trying to find out the true nature of something after
uncovering it but a case where its true nature i.e. the subordination of the
Board and its employees to the Government is writ large on the face of the Act
and the Rules made there under.
Having considered all aspects of the question
in the light of the high purposes underlying. Article 191(1)(a) of the
Constitution, we 901 are of the view that the respondent was holding an office
of profit under the State Government and his nomination was rightly rejected by
the Returning Officer. The judgment of the High Court is, therefore, liable to
be reversed.
In the result, the judgment of the High Court
in set aside and the election petition filed by the respondent is dismissed.
The appeal is accordingly allowed. Parties
are, however, directed to bear their own costs throughout.
Appeal allowed.
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