Pashupati Nath Sukul & Ors Vs. Nem
Chandra Jain & Ors [1983] INSC 189 (25 November 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) FAZALALI, SYED MURTAZA REDDY, O. CHINNAPPA (J)
CITATION: 1984 AIR 399 1984 SCR (1) 939 1984
SCC (2) 404 1983 SCALE (2)800
CITATOR INFO :
R 1992 SC1277 (18,62)
ACT:
Constitution of India 1950, Articles 98, 174,
102 (1) (a), 187, 188, 191 (1) (a), and 193.
The Representation of the people Act 1951
Sections 21, 33, 73 and 152.
Candidate elected as Member of State Legislative
Assembly-Not taking oath as Member-Whether could propose a candidate for
election to Rajya Sabha and entitled to vote in such election.
Secretary & Joint Secretary of State
Legislative Assembly-Whether `an officer of Government'-Appointment as Returning
officer and Assistant Returning Officer in an election to Rajya Sabha-Validity
of. Words & Phrases-Meaning of:
`Government'-Constitution of India 1950,
Articles 102 (1) (a) and 191 (1) (a) `an officer of Government'-The
Representation of the People Act 1951, s, 21.
HEADNOTE:
After the Legislative Assembly of the State
was dissolved by the President elections were held and after the results were
declared the Election Commission issued a notification containing the names of
the members elected for the constituencies on June 9, 1980. The elected members
were notified that they could take the oath as required by Art.
188 of the Constitution at the session of the
Legislative Assembly which had been summoned to meet on June 27, 1980 and on
subsequent days. In the meanwhile, on June 17, 1980 the Election Commission
issued a notification calling upon the elected members of the state Legislative
Assembly to elect a person for the purpose of filling a vacancy in the Rajya
Sabha. For conducting the election the Secretary and Joint Secretary of the
State Legislative Assembly were appointed respectively as the Returning Officer
and the Assistant Returning officer.
The appellant and respondent No. 1 in Civil
Appeal No. 1775 of 1981 were nominated as the candidates at that election. At
the time of scrutiny, respondent No. 1 filed objections to the nomination of
the appellant raising two grounds:-(1) that the appellant was disqualified as
he was a Government 940 servant, and (2) that the proposer though an elected
member of the Assembly, was not qualified to propose the appellant's
candidature as he had not yet taken the oath under Article 188 of the
Constitution.
The appellant contended that as he had
retired voluntarily from Government service he was not disqualified for being
chosen as a member of the Rajya Sabha and that the proposer being an elected
member of the Legislative Assembly was competent to propose even though he had
not taken the oath as provided in Art. 188. Overruling the objections the
nomination papers of the candidates were accepted. In the election the
appellant was declared elected as a member of the Rajya Sabha.
Respondent no. 1 therefore filed an election
petition.
The High Court set aside the appellant's
election on the grounds : (1) that as the Secretary of the Legislative Assembly
was neither an officer of the Government nor of a local authority, he could not
be appointed as the Returning Officer under s.21, and (2) that the proposer of
the nomination paper had not made or subscribed the oath or affirmation as
required by Article 188 of the Constitution on the date of nomination and
consequently there was improper acceptance of the nomination of the appellant.
The appellant, the Election Commission of
India, and the State preferred Appeals to this Court.
Allowing the Appeals,
HELD : 1 (i) The word `Government' in Article
102 (1)(a) and in Article 191 (1)(a) of the Constitution and the word
`Government' in the expression an officer of Government in section 21 of the
Representation of the People Act, 1951 should be interpreted liberally so as to
include within its scope the Legislature, the Executive and the Judiciary. [951
G-H] (ii) The finding of the High Court that the Secretary of the State
Legislature could not be appointed as the Returning officer for the election to
the Rajya Sabha is unsustainable. [952 A] (iii) The expressions `Government'
and an officer of Government' are not defined in the Constitution or in the
Representation of the People Act 1951. Article 367 of the Constitution provides
that unless the context otherwise requires, the General Clauses Act, 1897,
shall subject to any adaptations and modifications that may be made therein
under Article 372 apply for the interpretation for the Constitution. Section 3
(23) of the General Clauses Act, 1897 gives an inclusive definition of
`Government' and suggests that there may be other organs of State which may be
included within the meaning of expression `Government', The expressions
`Central Government' and `State Government' are defined in section 3 (8) and
section 3 (60). A general review of the constitutional provisions shows various
expressions used in it to describe the several organs of the State. In Part I
the expressions `the Union the States' and `the Union Territories' are used. In
Article 12 the expressions `Government and 941 Parliament of India' and
'Government and the Legislature of each of the States' are found suggesting
that Government is different from the Union Legislature or the Legislatures of
the States. This is for purposes of Part III. In Article 102 (1) (a) and
Article 191 (1) (a) the expression 'the Government of India' and 'Government of
any state' are used and they provide that a person holding an office of profit
under the Government of India or a State Government is disqualified for being
chosen as a member of Parliament or of a State Legislature respectively.
Article 98 and Article 187 provide for appointment of separate secretariat
staff of each House of Parliament and of the State Legislatures respectively.
[947 C-H; 948 A] (iv) After the commencement of the Constitution, the
Secretaries of the State Legislatures almost as a matter of rule were being
appointed as Returning Officers for election to the Rajya Sabha and for
election to the Legislative Councils of States, and Parliament had not thought
it fit to amend suitably, section 21 expressly including the officers of the
State Legislatures amongst the persons qualified to be appointed as Returning
officers even though it had been amended once by specifically including
officers of local authorities. Parliament all along had treated the Secretaries
of the State Legislatures as officers of Government for purposes of section 21,
and had found it convenient to do so [951 C-E] (v) Even though Article 98 and
Article 187 contemplate the establishment of a separate secretariat staff for
each House of Parliament and the State Legislature respectively, the salaries
and allowances of the members of that staff are paid out of the Consolidated
Fund of India or of the State, as the case may be after they are voted by the
House or Houses concerned. Their appointment and other conditions of service
are regulated by Rules made by the President or the Governor, as the case may
be, until an appropriate law is made by Parliament or the State Legislature.
[951 F-G] (vi) In our Constitution, which has a federal structure there are
both at the level of the Union and at the level of the State detailed
provisions pertaining to the Legislature, the Executive and the Judiciary. All
the three organs are concerned with the governance of the country the first
makes the laws, second enforces them and the third interprets them. Sometimes
their functions may be overlapping. All the three organs together constitute
the Government at their respective level. [950 B-C] (vii) The President is a
part of the Parliament under Article 79 of the Constitution. The executive
power of the Union is vested in him under Article 53(1). At the level of the
State the position is analogous. The Governor is a part of the Legislature of
the State under Article 168 (1). The Executive power of the State is vested in
him under Article 154 (1) and he is consulted in the appointments of the judges
of the High Court. While under Article 235 the High Court is vested with the
control over the subordinate Judiciary of the State, in the case of dismissal
or removal of a judicial officer in the Subordinate Judiciary, the Governor has
to issue the order though on the recommendation made by the High Court. A study
of these provisions shows that there is no water-tight compartment between the
three major organs of the State. The Comptroller and Auditor General of India
though he is assigned an independent status is an officer under the Union
Government. The Judges of the Supreme Court and of 942 a High Court are not
servants of Government but hold a constitutional office. But the Comptroller
and Auditor- General of India and the Judges of the Supreme Court and of a High
Court are not eligible to contest elections to Parliament and the State
Legislatures in view of Article 102 (1) (a) and Article 191 (1) (a) because
they are serving in connection with the affairs of the Union and are therefore,
holding offices of profit under the Central Government. [950 C-H; 591 A-B]
Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court
[1955] 2 S. C. R. 1331; Gurugobinda Basu v. Sankari Prasad Ghosal & Ors.
[1964] 4 S. C. R. 311; Union of India v. Sankal Chand Himatlal Sheth & Anr
[1978] I. S. C. R. 423; & Hargovind Pant v. Dr.Raghukul Tilak & Ors. [1979]
3 S. C. R.972 referred to.
(viii) The position of a person who works as
an officer of the Legislature of a State is also the same. Even though he
belongs under Article 187 to the staff of the State Legislature, he is still an
officer of Government in the broad sense in which the expression 'Government is
used in Article 102 (1) (a) and Article 191 (1)(a). If the expression
'Government used is construed as meaning the Executive Government only, then it
would defeat the very purpose of these provisions. Similarly he has to be
treated as an officer of Government for purposes of section 21 of the Act also
qualified for being appointed as the Returning officer for an election held
under the Act. [951 A-C] 2(1) This is not a case where general elections to the
Legislative Assembly had been held before the normal tenure of the existing
Legislative Assembly was over. The previous Legislative Assembly having been
dissolved in February 1980, on the publication of the notification containing
the names of the elected members of the Legislative Assembly on June 9,1980
under Section 73, the Assembly was deemed to be duly constituted. [953 D; 954
D] (ii) An elected member who has not taken 'oath' but whose name appears in
the notification published under s. 73 of the Act can take part in all
non-legislative activities of an elected member. The right of voting at an
election to the Rajya Sabha can also be exercised by him. [957 G] In the
instant case the name of the proposer had been included before the date on
which he proposed the name of the appellant as a candidate in the notification
published under sec. 73 of the Act and in the electoral roll maintained under
section 152. There is therefore no infirmity in the nomination. [957 H; 958 A]
(iii) The words 'sitting and voting' in Article 193 of the Constitution imply
the summoning of the house under Article 174 of the Constitution by the
Governor to meet at such time and place as he thinks fit and the holding of the
meeting of the House pursuant to the said summons or an adjourned meeting. An
elected member incurs the penalty for contravening Article 193 of the Constitution
only when he sits and votes at such a meeting of the House. Invariably there is
an interval of time between the constitution of a house after a general
election, and the summoning of the first meeting of the House. During that 943
interval an elected member of the Assembly whose name appears in the
notification issued under section 73 of the Act is entitled to all the
privileges, salaries and allowances of a member of the Legislative Assembly,
one of them being the right to function as an elector at an election held for
filling a seat in the Rajya Sabha. [955 B- D] (iv) The election for filling a
seat in the Rajya Sabha does not from a part of the Legislative proceedings of
the House carried on at its meeting. Nor the vote cast at such an election is a
vote given in the House on any issue arising before the House. The speaker has
no control over the election. The election is held by the Returning Officer
appointed for the purpose. All the steps taken in the course of the election
fall outside the proceedings that take place at a meeting of the House. [955
E-F; 956 B] Bhupendra Nath Basu v. Ranjit Singh, I. L. R. 41 Cal.
384, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1775 1975 (E), 2736 (E) of 1981.
From the Judgment and Order dated the 10th
July, 1981 of the Allahabad High Court (Lucknow Bench) in Election Petition No.
7 of 1980.
M. C. Bhandare, T. Sridharan, Ms. S. Bhandare
and Ms. Sucharita for the Appellant in CA. 1775/81.
Dr. Y. S. Chitale and Ms. A. Subhashini for
the Appellant in CA. No. 1975 of 1981.
Mrs. S. Dixit for the Appellant in CA. 2736
of 1981.
Hari Shankar Jain and Mr. K.K. Gupta, for the
Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, I. At the conclusion of the hearing of the above appeals on
November 16, 1983, we pronounced the following order:
"Heard counsel for the parties. The
appeals are allowed and the order of the High Court is set aside without any
order as to costs." We now give our reasons.
944 Two questions arise for consideration in
these three appeals which are filed against the judgment and order dated July
10, 1981 of the High Court of Allahabad in Election Petition No. 7 of 1980.
They are:
1. Whether the Secretary of a State
Legislative Assembly is not qualified to be appointed as the Returning Officer
at an election held to fill a seat in the Rajya Sabha ?
2. Whether a person elected as a member of a
Legislative Assembly but who has not made and subscribed the prescribed oath or
affirmation as required by Article 188 of the Constitution can validly propose
a person as a candidate at an election held for filling a seat in the Rajya
Sabha ? In February, 1980 the Legislative Assembly or the State of Uttar
Pradesh was dissolved by the President by issuing a notification under Article
356 of the Constitution. A notification was issued by the Governor of Uttar
Pradesh under section 15 (2) of the Representation of the People Act, 1951
(hereinafter referred to as 'the Act') in April, 1980 calling upon all the
Assembly constituencies in Uttar Pradesh to elect members to the Legislative
Assembly. After the results of the elections in all the constituencies held
pursuant to the said notification were declared, the Election Commission of
India issued a notification containing the names of the members elected for the
said constituencies as required by section 73 of the Act on June 9, 1980. The
elected members were notified that they could take the oath as required by
Article 188 of the Constitution at the session of the Legislative Assembly
which had been summoned to meet on June 27, 1980 and on subsequent days. In the
meanwhile on June 17, 1980, the Election Commission issued a notification
calling upon the elected members of the Uttar Pradesh Legislative Assembly to
elect a person for the purpose of filling a vacancy in the Rajya Sabha. By that
notification, the Election Commission fixed the following programme for the
purpose of the said election:
(a) 24.6.1980 - as the last date for making
nomination.
(b) 25.6.1980 - as the date for scrutiny of
the nomination papers (c) 27.6.1980 - as the last date for withdrawal of
candidature.
945 (d) 4.7.1980 - as the date on which a
poll, if necessary, would be taken.
(e) 7.7.1980 - as the date before which the
election had to be completed.
Shri S. P. Singh, Secretary of the Uttar
Pradesh Legislative Assembly was appointed as the Returning Officer and Shri
Uma Shankar, Joint Secretary as the Assistant Returning Officer for conducting
the aforesaid election.
Pashupati Nath Sukul, the appellant in Civil
Appeal No. 1775 of 1981 (hereinafter referred to as 'the appellant') and Nem
Chandra Jain, respondent No. 1 were nominated as the candidates at that
election. At the time of scrutiny, respondent No. 1 filed objections to the
nomination of the appellant raising two grounds-(1) that the appellant was
disqualified as he was a Government servant and (2) that the proposer of the
candidature of the appellant was not qualified to propose his candidature as he
had not yet taken the oath as required by Article 188 of the Constitution. The
appellant pleaded that as he had retired voluntarily from the Government
service he was not disqualified for being chosen as a member of the Rajya Sabha
and that the proposer of his candidature was an elected member of the Legislative
Assembly who was competent to make the proposal even though he had not taken
the oath as provided in Article 188 of the Constitution. The Objections of
respondent No. 1 were overruled and the nomination papers of both the appellant
and respondent No. 1 were accepted by the Returning Officer.
At the poll which took place on July 4, 1980
the appellant secured 325 votes and respondent No. 1 got 41 votes.
Accordingly the appellant was declared to be
elected as a member of the Rajya Sabha. Aggrieved by the result of the
election. respondent No. 1 filed an election petition before the High Court
calling in question the result of the election on various grounds and of them
we are now concerned with two grounds only and they are (1) that as the Secretary
of the Legislative Assembly was neither an officer of the Government nor of a
local authority, he could not be appointed as the Returning Officer under
section 21 of the Act and (2) that as the proposer of the nomination paper of
the appellant had not made or subscribed the oath or affirmation as required by
Article 188 of the Constitution on the date of the nomination, there was
improper acceptance of the nomination of the appellant. The appellant, the
Election Commission of India, the State of Uttar Pradesh and Shri S. P. 946
Singh, the Returning Officer were impleaded as respondents to the election
petition. The name of the Governor of Uttar Pradesh who had also been impleaded
as a respondent was deleted by the order of the High Court. The petition was
contested by the appellant and others who had been impleaded as respondents in
the election petition. At the conclusion of the trial, the High Court set aside
the election of the appellant on the following grounds viz. that Shri S. P. Singh,
Secretary, Legislative Assembly was not qualified to be appointed as the
Returning Officer; that the proposal of the candidature of the appellant by a
member of the Legislative Assembly who had not made and subscribed the oath or
affirmation as required by Article 188 of the Constitution on the date of
nomination was illegal and hence there was improper acceptance of the
nomination of the appellant and that there was no valid electoral roll in force
on the date of nomination. Aggrieved by the judgment of the High Court, the
appellant has preferred Civil Appeal No. 1775 of 1981, the Election Commission
of India has filed Civil Appeal No. 1975 (E) of 1981 and the State of Uttar
Pradesh has preferred Civil Appeal No. 2736 (E) of 1981. All these three
appeals are disposed of by this common judgment.
We shall first deal with the question whether
the Secretary of the Legislative Assembly was not qualified to be appointed as
the Returning Officer for the election.
Section 21 of the Act which deals with the
appointment of Returning Officers reads thus:
"21. Returning Officers-For every
constituency, for every election to fill a seat or seats in the Council of
States and for every election by the members of the Legislative Assembly of a
State to fill a seat or seats in the Legislative Council of the State, the
Election Commission shall, in consultation with the Government of the State,
designate or nominate a returning officer who shall be an officer of Government
or of a local authority:
Provided that nothing in this section shall
prevent the Election Commission from designating or nominating the same person
to be the returning officer for more than one constituency." (Emphasis
added).
947 The contention of respondent No. 1 which
has been accepted by the High Court is that the Secretary of the Legislative
Assembly being not an officer of Government or of a local authority he was not
qualified to be appointed as the Returning Officer. The argument is that
'Government' in the expression 'an officer of Government' used in section 21 of
the Act means the Executive only and an officer of the Legislature is not,
therefore, an officer of Government.
This case is an illustration of some legal
problems solutions for which appear to be quite obvious but when an attempt is
made to give reasons for such solutions one would be confronted with many
difficulties though not insurmountable. The expressions 'Government' and 'an
officer of Government' are not defined in the Constitution or in the Act.
Article 367 of the Constitution provides that unless the context otherwise
requires, the General Clauses Act, 1897, shall, subject to any adaptations and
modifications that may be made therein under Article 372 of the Constitution,
apply for the interpretation of the Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of India. Section
3(23) of the General Clauses Act, 1897 defines 'Government' as follows:
"3(23) 'Government' or 'the Government'
shall include both the Central Government and any State Government." The
above definition is an inclusive definition and it suggests that there may be
other organs of State which may be included within the meaning of the
expression 'Government'. The expressions 'Central Government' and 'State
Government' are defined in section 3(8) and section 3(60) of the General
Clauses Act, 1897 respectively. These definitions are to be adopted unless
there is anything in the context to the contrary. A general review of the
constitutional provisions shows various expressions used in it to describe the
several organs of the State. In Part I of the Constitution the expressions 'the
Union'. 'the States' and 'the Union Territories' are used. In Article 12 of the
Constitution, we find the expressions 'Government and Parliament of India' and
'Government and the Legislature of each of the States' suggesting that
Government is different from the Union Legislature or the Legislatures of the
States. This is for purposes of Part III of the Constitution. In Article
102(1)(a) and Article 191(1)(a) of the Constitution, the expressions 'the
Government of India' and 'the Government of any State' are used and they
provide that a person holding an office of profit under the 948 Government of
India or a State Government is disqualified for being chosen as a member of
Parliament or of a State Legislature respectively. Article 98 and Article 187
of the Constitution provide for the appointment of separate secretariat staff
of each House of Parliament and of the State Legislatures respectively. Article
146 and Article 229 of the Constitution respectively deal with the appointment
of officers and servants of the Supreme Court and of the High Courts. Article
148(5) and Article 318 of the Constitution respectively deal with the
conditions of service etc. of the employees working in the office of the
Comptroller and Auditor-General of India and the Public Service Commissions.
Part XIV of the Constitution contains provisions relating to the services under
the Union Government and the State Governments. It contains Article 311 which
guarantees certain rights which cannot be denied to the employees in the
Legislature and in the Judiciary.
Dealing with the nature of the office held by
the officers working in the High Court, who are governed by Article 229 of the
Constitution this Court has observed in Pradyat Kumar Bose v. The Hon'ble the
Chief Justice of Calcutta High Court(1) thus:
"A close scrutiny of the terminology so
used shows a marked departure in the language of article 320(3)(c) from that in
articles 310 and 311. Officers and members of the staff attached to a High
Court clearly fall within the scope of the phrase "persons appointed to
public services and posts in connection with the affairs of the State" and
also of the phrase "a person who is a member of a civil service of a
State" as used in articles 310 and 311. The salaries of these persons are
paid out of the State funds as appears from article 229(3) which provides that
the administrative expenses of a High Court including all salaries, allowances
and pensions payable to or in respect of officers and servants of the High
Court, are chargeable upon the Consolidated Fund of a State. The item relating
to such administrative expenses has to form part of the annual financial
statement to be presented to the State Legislative Assembly under article 202
and estimates thereof can form the subject matter of the discussion in the
Legislature under article 203(1). They must, therefore, be taken "to hold
posts in connection with the affairs of the State and to be members of the
civil service of the State".
949 Entry 5 of List II of the Seventh
Schedule to the Constitution relates to 'Local Government' that is to say, the
constitution and powers of municipal corporations, improvement trusts, district
boards, mining settlement authorities and other local authorities for the
purpose of local self-government or village administration. In each of these
cases it becomes necessary to examine the relevant provisions of law applicable
to it in order to determine whether the officers and staff of the various
organs are officers of Government or not. Before taking up such examination the
meaning of the expression 'Government' has to be ascertained.
A student of International Law understands by
the expression 'State' as a fully sovereign independent community residing in a
specified territory with a legal capacity to enter into international relations
and having the power to fulfill the obligations which the international law
imposes on the family of nations. It should also have been admitted or
recognised as a State on a footing of equality with other States. A State
implies the existence of a community or group of people occupying a
geographical area or territory in which they permanently reside possessing
internal sovereignty and independence of foreign control and a political
organisation or agency through which the collective will of the people is
expressed and enforced. The last of the elements of a State referred to above
is generally called as a Government. A student of Political Theory and
Comparative Politics may describe a Government as a monarchical, republican,
democratic or dictatorial depending upon its peculiar features. It may be
federal or unitary. A political philosopher may describe a Government as
imperial, colonial, capitalist or socialist. The above list is not really
exhaustive. But these are only different forms of Government and Government'
here is used in a very broad sense. From the legal point of view, Government
may be described as the exercise of certain powers and the performance of
certain duties by public authorities or officers, together with certain private
persons or corporations exercising public functions. The structure of the
machinery of Government and the regulation of the powers and duties which
belong to the different parts of this structure are defined by the law which
also prescribes to some extent the mode in which these powers are to be
exercised or these duties are to be performed (See Halsbury's Laws of England,
Fourth Edition, Vol. 8, Para 804). Government generally connotes three estates,
namely, the Legislature, the Executive and the Judiciary while it is true that
in a narrow sense it is used to connote the Executive only. The meaning to be
assigned 950 to that expression, therefore, depends on the context in which it
is used.
In our Constitution, which has a federal
structure, there are both at the level of the Union and at the level of the
States detailed provisions, pertaining to the Legislature, the Executive and
the Judiciary. All the three organs are concerned with the governance of the
country one organ makes the laws, the second enforces them and the third
interprets them though sometimes their functions may be overlapping. In this
sense all the three organs together constitute the Government at their
respective level. It is significant that the President is a part of parliament
under Article 79 of the Constitution, the executive power of the Union is
vested in him under Article 53 (1) of the Constitution and he appoints Judges
of the Supreme Court under Article 124 (2) and he can issue an order removing a
Judge of the Supreme Court under Article 124 (4) of the Constitution, of
course, subject to the limitations contained therein. At the level of the State
to the position is analogous to the position at the level of the Union. The
Governor is a part of the Legislature of the State under Article 168(1) of the
Constitution. The executive power of the State is vested in him under Article
154(1) and he is consulted in the appointment of judges of the High Court.
While under Article 235 of the Constitution, the High Court is vested with the
control over the Subordinate Judiciary of the State, in the case of dismissal
or removal of a judicial officer in the Subordinate Judiciary of the Governor
has to issue the order though on the recommendation made by the High Court. A
study of these provisions shows that there is no water tight compartment
between the three major organs of the State. The Comptroller and
Auditor-General of India though he is assigned an independent status is an
officer under the Union Government.
(See Gurugobinda Basu v. Sankari Prasad
Ghosal & Ors.) The Judges of the Supreme Court and of a High Court are not
servants of Government but hold a constitutional office (vide Union of India v.
Sankal Chand Himatlal Sheth & Anr.(2) and Hargovind Pant v. Dr. Raghukul
Tilak & Ors.(3) But the Comptroller and Auditor-General of India and the
Judges of the Supreme Court and of a High Court are not eligible to contest
elections to Parliament and the State Legislatures in view of Article 102(1)(a)
and Article 191(1)(a) of the Constitution, as the case may 951 be, because they
are serving in connection with the affairs of the Union (See Article 360(4)(b)
of the Constitution) and are, therefore, holding offices of profit under the
Central Government. The position of a person who works as an officer of the
Legislature of a State is also the same. Even though he belongs under Article
187 of the Constitution to the staff of the State Legislature, he is still an
officer of Government in the broad sense in which the expression 'Government'
is used in Article 102(1)(a) and Article 191(1)(a) of the Constitution. If the
expression 'Government' used here is construed as meaning the Executive
Government only, then it would defeat the very purpose of these provisions of
the Constitution. Similarly he has to be treated as an officer of Government
for purposes of section 21 of the Act also qualified for being appointed as the
Returning Officer for an election held under the Act. It is not disputed that
after the commencement of the Constitution, the Secretaries of the State
Legislatures almost as a matter of rule are being appointed as Returning
Officers for election to the Rajya Sabha and for election to the Legislative
Councils of States and Parliament has not thought it fit to amend suitably,
section 21 of the Act expressly including the officers of the State
Legislatures amongst the persons qualified to be appointed as Returning
Officers even though it has amended that section once by specifically including
officers of local authorities.
Parliament all along has treated the
Secretaries of the State Legislatures as officers of Government for purposes
section 21 and has found it convenient to do so having regard to the nature of
the work to be carried out by them.
It may be noted that even though Article 98
and Article 187 of the Constitution contemplate the establishment of a separate
secretariat staff for each House of Parliament and of the State Legislature
respectively, the salaries and allowances of the members of that staff are paid
out of the Consolidated Fund of India or of the State, as the case may be after
they are voted by the House or Houses concerned.
Their appointment and other conditions of
service are regulated by Rules made by the President or the Governor, as the
case may be, until appropriate law is made by Parliament or the State
Legislature, as the case may be. We are of the view that the word 'Government'
Article 102(1)(a) and in Article 191(1)(a) of the Constitution and the word
'Government' in the expression 'an officer of Government' in section 21 of the
Act should be interpreted liberally so as to include within its scope the
Legislature, the Executive and the Judiciary. The High Court erred in equating
the word 'Government' occurring in section 21 of the Act to the Executive
Government only and in further holding that the officers of the 952 State
Legislature could not be treated as officers of Government for purposes of that
section. The finding of the High Court that the Secretary of the Uttar Pradesh
State Legislature could not be appointed as the Returning Officer for the
election to the Rajya Shaba is, therefore, unsustainable.
The second question to be considered is
whether the nomination of the appellant was liable to be rejected on the ground
that the proposer was not eligible to nominate a candidate as he had not made
and subscribed the oath or affirmation as prescribed by Article 188 of the
Constitution.
Section 33 of the Act prescribes the
requirements for a valid nomination. It provides that the nomination paper
should be completed in the prescribed form and signed by the candidate and by
an elector of the constituency as proposer.
Clauses (d) and (e) of section 2(1) of the
Act define the words 'election' and 'elector' respectively. 'Election' means an
election to fill a seat or seats in either House of Parliament or in the House
or either House of the Legislature of a State other than the State of Jammu and
Kashmir. 'Elector' in relation to a constituency means a person whose name is
entered in the electoral roll of that constituency for the time being in force
and who is not subject to any of the disqualifications mentioned in section 16
of the Representation of the People Act, 1950 (43 of 1950). Sub-clause (b) of
clause (1) of Article 80 of the Constitution states that the Council of States
(the Rajya Sabha) shall in addition to twelve members nominated by the
President under sub-clause (a) thereof consist of not more than two hundred and
thirty eight representatives of the States and of the Union territories. Clause
(2) of Article 80 of the Constitution provides that the allocation of seats in
the Council of States to be filled by representatives of the States and of the
Union territories shall be in accordance with the provisions in that behalf
contained in the Fourth Schedule to the Constitution. Clause (4) of Article 80
provides that the representatives of each State in Council of States shall be
elected by the elected members of the Legislative Assembly of the State in
accordance with the system of proportional representation by means of the
single transferable vote. Section 152 of the Act provides that the Returning
Officer for on election by the elected members of the Legislative Assembly of a
State to fill a seat or seats in the Council of States shall for the purposes
of such election maintain in his office in the prescribed manner and from a
list of elected members of that Legislative Assembly. Clause (c) of sub-rule
(1) of Rule 2 of the 953 Conduct of Elections Rules, 1961 defines
"election by assembly members" as an election to the Council of
States by the elected members of the Legislative Assembly of a State or by the
members of the electoral college of a Union territory or an election to the
Legislative Council of a State by the members of the Legislative Assembly of a
State.
Elector' is defined by clause (d) of sub-rule
(1) of Rule 2 of the said Rules, in relation to an election by Assembly members
as any person entitled to vote at that election.
In the present case, the notification
containing the names of elected members of the Uttar Pradesh Legislative
Assembly who participated at the election in question had been published under
section 73 of the Act on June 9, 1980 and that the previous Legislative
Assembly had been dissolved earlier in February, 1980. This is not a case where
general elections to the Legislative Assembly had been held before the normal
tenure of the existing Legislative Assembly was over. Section 73 of the Act
which prescribes the publication of results of general elections reads thus:
"73, Publication of results of general
elections to the House of the People and the State Legislative
Assemblies,-Where a general election is held for the purpose of constituting a
new House of the People or a new State Legislative Assembly, there shall be
notified by the Election Commission in the Official Gazette as soon as may be
after the results of the elections in all the constituencies (other than those
in which the poll could not be taken for any reason on the date originally
fixed under clause (d) of section 30 or for which the time for completion of
the election has been extended under the provisions of section 153), have been
declared by the returning officer under the provisions of section 53 or, as the
case may be, section 66, the names of the members elected for those
constituencies and upon the issue of such notification that House or Assembly
shall be deemed to be duly constituted:
Provided that the issue of such notification
shall not be deemed- (a) to preclude- 954 (i) The taking of the poll and the
completion of the election in any Parliamentary or Assembly constituency or
constituencies in which the poll could not be taken for any reason on the date
originally fixed under clause (d) of section 30;
or (ii) the completion of the election in any
Parliamentary or Assembly constituency or constituencies for which time has
been extended under the provisions of section 53; or (b) to affect the duration
of the House of the People or the State Legislative Assembly, if any,
functioning immediately before the issue of the said notification."
(emphasis added) On the publication of the notification on June 9, 1980 under
section 73 of the Act in the instant case, the Assembly was deemed to be duly
constituted. Article 188 of the Constitution prescribes the oath to be taken or
the affirmation to be made by every member of a Legislative Assembly or a
Legislative Council. It reads:
"188. Every member of the Legislative
Assembly or the Legislative Council of a State shall, before taking his seat,
make and subscribe before the Governor, or some person appointed in that behalf
by him, an oath or affirmation according to the form set out for the purpose in
the Third Schedule." Article 191 of the Constitution prescribes the
disqualifications for membership of the Legislative Assembly or Legislative
Council of a State. On the incurring of any such disqualification a member of a
Legislative Assembly or a Legislative Council ceases to be a member thereof.
Article 193 of the Constitution provides for the penalty for sitting and voting
before making oath or affirmation under Article 188 of the Constitution or when
not qualified or when disqualified the penalty being in respect of each day
five hundred rupees to be recovered as a debt due to the State.
It does not say that if an elected member of
a Legislative Assembly sits and votes before taking oath as prescribed by
Article 188 of the Constitution he shall automatically cease to be a member of
the House, even though it is possible that his seat maybe declared as vacant
under Article 190(4) 955 of the Constitution if for sixty days he is absent
from all meetings of the House without its permission. Now the question is
whether the making of oath or affirmation is a condition precedent for being
eligible to act as a proposer of a valid nomination for election to the Rajya
Sabha. The rule contained in Article 193 of the Constitution, as stated
earlier, is that a member elected to a Legislative Assembly cannot sit and vote
in the House before making oath or affirmation. The words `sitting and voting'
in Article 193 of the Constitution imply the summoning of the House under
Article 174 of the Constitution by the Governor to meet at such time and place
as he thinks fit and the holding of the meeting of the House pursuant to the
said summons or an adjourned meeting. An elected member incurs the penalty for
contravening Article 193 of the Constitution only when he sits and votes at
such a meeting of the House. Invariably there is an interval of time between
the constitution of a House after a general election as provided by section 73
of the Act and the summoning of the first meeting of the House.
During that interval an elected member of the
Assembly whose name appears in the notification issued under section 73 of the
Act is entitled to all the privileges, salaries and allowances of a member of
the Legislative Assembly, one of them being the right to function as an elector
at an election held for filling a seat in the Rajya Sahha. That is the effect
of section 73 of the Act which says that on the publication of the notification
under it the House shall be deemed to have been constituted. The election in
question does not form a part of the Legislative proceedings of the House
carried on at its meeting. Nor the votes cast at such an election is a vote
given in the House on any issue arising before the House. The Speaker has no
control over the election. The election is held by the Returning Officer
appointed for the purpose. As mentioned earlier, under section 33 of the Act
the nomination paper has to be presented to the Returning Officer between the
hours of eleven o'clock in the forenoon and three o'clock in the afternoon
before the last day notified for making nominations under section 30 of the
Act. Then all further steps such as scrutiny of nominations and withdrawal of
nominations take place before the Returning Officer. Rule 69 of the Conduct of
Elections Rules, 1961 provides that at an election by Assembly members where a
poll becomes necessary, the Returning Officer for such election shall, as soon
as may be after the last date for the withdrawal of candidatures, send to each
elector a notice informing him of the date, time and place fixed for polling.
Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part
VII thereof deal with the procedure to be followed at an election 956 by
assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that
as soon as may be after a candidate has been declared to be elected, the
returning officer shall grant to such candidate a certificate of election in
Form 24 and obtain from the candidate an acknowledgement of its receipt duly
signed by him and immediately send the acknowledgement by registered post to
the Secretary of the Council of States or as the case may be, the Secretary of
the Legislative Council. All the steps taken in the course of the election thus
fall outside the proceedings that take place at a meeting of the House.
We may here refer to the decision of the
Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of
that case were these. An election was held on February 14, 1913 to the
Legislative Council of the Governor-General from the constituency consisting of
the non-official additional members of the Bengal Legislative Council each
having two votes to fill two seats in the Legislative Council of the
Governor-General. There were at that time thirty four non-official additional
members but two of them had not taken the oath of allegiance at the time of the
election as prescribed by the Bengal Council Regulation VII.
At the election there were four
candidates-the plaintiff Bhupendra Nath Basu, the Ist defendant Maharaja Ranjit
Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As
a result of the poll the second defendant got 22 votes, the first defendant got
18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes.
Accordingly defendants 1 and 2 were declared
elected to fill the two seats. The plaintiff after being unsuccessful in his
petition to the Governor-General filed a suit before the High Court questioning
the validity of the election. He prayed that the votes should be recounted
after excluding the votes cast by the two members who had not taken the oath of
allegiance. Regulation VII referred to above provided that every person elected
nominated under the regulations should before taking his seat at a meeting of
the Council make an oath or affirmation of his allegiance to the Crown and
Regulation VIII provided that if such a person "fails to make the oath or
affirmation prescribed by Regulation VII within such time as the
Governor-in-Council may consider reasonable, the Governor, shall by
notification in the local Official Gazette declare the election or nomination
to be void or his seat to be vacate". Such a declaration had not been made
on the date of the election.
957 The contention of the plaintiff was
rejected by the High Court in the following terms:
"Moreover, I am not satisfied that the
view of the Government as to the taking of the oath of allegiance is not a
correct one. Doubtless the English cases that were referred to, the case of the
Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B. & C. 486)
have decided that a person is admitted to a public office, which requires the
oath of allegiance, only when the oath of allegiance is taken. That does not
get rid of the difficulty that arises from these Regulations. These Regulations
constitute an electoral College of elected members of the Local Council to
elect two persons to be members of the Council of His Excellency the
Governor-General. I am not satisfied on the Regulations that the learned
Advocate-General has called my attention to, that when the electors have the
right of giving their votes by means of registered letter, for the purpose of
being members of electoral college and for that purpose only, that the mere
fact of election to the local Council was not sufficient to constitute a person
so elected a member of the electoral college. It is only for the purpose of
exercising the legislative functions conferred by the Regulations and by the
Act that the oath of allegiance is required. Moreover, as the Advocate-General
has pointed out, the mere fact of omission to take an oath of allegiance does
not ipso facto cause a member to vacate his seat; under Regulation VIII of the
Bengal Council Regulations, the discretion is given to the Governor as to his
declaring a seat to be vacant if the person elected fails to take an oath of
allegiance. In my opinion, in this case the Rule fails and must be discharged,
and discharged with costs.
We are of the view that an elected member who
has not taken oath but whose name appears in the notification published under
section 73 of the Act can take part in all non-legislative activities of an
elected member. The right of voting at an election to the Rajya Sabha can also
be exercised by him. In this case since it is not disputed that the name of the
proposer had been included before the date on which he proposed the name of the
appellant as a candidate in the notification published under section 73 of the
Act 958 and in the electoral roll maintained under section 152 of the Act, it
should be held that there was no infirmity in the nomination. For the same
reason even the electoral roll which contained the names of elected members
appearing in the notification issued under section 73 of the Act cannot be held
to be illegal. That is how even respondent No. 1 appears to have understood the
true legal position as he was also proposed as a candidate by an elector who
had not yet made the oath or affirmation. The second contention also fails. No
other contention was pressed before us. We are therefore, of the view that the
findings recorded by the High Court on the basis of which the election of the
appellant to the Rajya Sabha was set aside are erroneous.
In the result we allow the above appeals, set
aside the judgment of the High Court and dismiss the election petition filled
by respondent No. 1. Having regard to the novelty of the question raised in
this case the parties are directed to bear their own costs throughout.
N.V.K. Appeals allowed.
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