Rabindra Kumar Nayak Vs. Collector,
Mayurbhanj, Orissa & Ors  INSC 44 (19 February 1999)
K.T.Thomas, Syed Shah Mohammed Quadri
Leave is granted.
The question that arises in this appeal is
whether the appellant was holding 'office of profit' under the State Govt.
while functioning provisionally as Assistant Public Prosecutor and was
therefore disqualified to become a member/Chairman of a Samiti under the Orissa
Panchayat Samiti Act 2959.
The factual backdrop in which the question
falls for consideration may briefly be set out here :
On August 14, 1995 the appellant, an advocate
practising in the courts of Cuttack, was appointed as Assistant Public
Prosecutor provisionally under Rule 5(4) of the Orissa Law Officers Rules, 1971
(for short 'the rules') read with Section 25 of the Criminal Procedure Code,
1973 to conduct the criminal cases. He was entitled to daily fee of Rs. 100/-
subject to restrictions under the rules. While so he contested the election to
the seat of the member of Moroda Panchayat Samiti and the fourth respondent
contested for the seat of member of Gudigan Panchayat samiti. After being
elected as members, both of them contested in the election to the post of
Chairman of Moroda Panchayat Samiti.
Appellant was declared elected as Chairman on
February 10, 1997. Having lost in the contest, the fourth Respondent initiated
proceeding against the appellant under Sec. 45-B of the Orissa Panchayat Samiti
Act, 1959 (for short 'the Act') in the court of the District Judge, Mayurbhanj
on the ground that as Assistant Public Prosecutor he was holding 'office of
profit' under the Govt. so he was not eligible to be either a member or the
Chairman of Moroda Panchayat Samiti. The appellant resisted the same on two
first that his appointment under Rule 5(4) of
the Rules was a stop-gap arrangement so he was not 'holding office of profit:
and second that the petition filed by the fourth respondent under Sec. 45-B of
the Act was not maintainable as after the election was over his only remedy was
to file an election petition under Section 44-A of the Act.
On Sept. 20, 1997 the learned District Judge
held that the petition under Section 45-B was maintainable and the appellant
was holding officer of profit under the Govt.within the meaning of Sec.
45(1)(i) of the Act; so he was disqualified to be a member or Chairman of the
Panchayat samiti. The appellant challenged that order before the High Court of
Orissa. On March 10, 1998 the High Court dismissed the writ petition confirming
the said order of the learned District Judge. Against that order of the High
Court the appellant is before us in appeal by special leave.
Shri Janaranjan Das, learned counsel for the
appellant urged the very same two contentions before us as were raised before
the High Court namely, (i) that the appointment of the appellant as Assistant
Public Prosecutor was provisional, as a stop-gap arrangement as such he was not
holding office of profit and (ii) after the election of the appellant was over
only Election Petition under Section 44-A but not petition under Sec. 45-B of
the Act was the remedy of the fourth respondent.
We shall deal with the first contention
reading the order of appointment of the appellant as Assistant Public
Prosecutor which runs as under :
Government Of Orissa Law Department No.XX
11126/L dated BBSR, the 14th August, 1995 From Shri II.Mohapatra,
OS,J.S.(Sr.Br.) Legal Remembrancer.
To The District Magistrate, Mayubhanj.
Sub : Appointment of Asst.Public Prosecutors
for the district of Mayurbhanj.
Sir, I am directed to say that Govt. have
been pleased to appoint the following Advocates as Asst.Public Prosecutors
provisionally under Rules 5(4) of the Orissa Law Officers Rules, 1971 read with
Sec. 25 of the Cr. P.C., 1973 to conduct the criminal cases in the courts of
magistrates both Judiciary and Executive with places shown their names until
1 to 3. xxx xxx xxx A.P.P.Baripada
4. Shri Rabi Nayak - do -
5. xxx xxx xxx **** The A.P.Ps are eligible
to get daily fee of Rs. 100/- (Rupees one hundred only) subject to such
restrictions as are provided in Orissa Law Officers Rules, 1971.
The appointment is purely temporary and
liable to be terminated at any time without notice.
The person concerned may be intimated
Yours faithfully, sd/- Legal
Remembrancer" The order refers to Section 25 Cr. P.C. and rule 5(4) of the
Rules. Section 25 of the Code of Criminal Procedure imposes an obligation on
the State Government to appoint in every district Assistant Public Prosecutor
for conducting prosecution in the Courts of Magistrates. Rule 5(4) of the Rules
in in the following terms :
"In case of any contingency arising due
to temporary absence or vacancy in the office of the Law Officer for any reason
whatsoever, subject to the provisions contained in Section 492(2) of the
Criminal Procedure Code, 1898, the State Govt.
may appoint a Law Officer temporarily till
the return of the existing incumbent or the vacancy is filled up, as the case
may be." A perusal of the rule quoted above leaves no room for any doubt
that it provides for appointment of a Law Officer in two contingencies : (i)
temporary absence of the existing incumbent, and (ii) vacancy in the office of
law officers for whatever reason. An appointment made under this rule is
terminable on the return of the existing incumbent or on the vacancy being
filled up, as the case may be.
A plain reading of the order of appointment
of the appellant and the aforementioned provisions shows that in discharge of
the statutory obligation the State Govt.
appointed him along with others as an
Assistant Public Prosecutor provisionally and that it is purely temporary,
terminable at any time without notice.
We shall now consider whether such an
appointment will fall within the clutches of Section 45(I)(i) which is extracted
"45(1). Disqualification for becoming a
member and continuing as a member - A person shall not be eleigible to stand
for election under sub-sec.
(1) of Sec. 16 if he - (i) holds any office
of profit under the State or Central Govt. or any local authority." The
phrase "holds any office of profit" employed in this clause is the
bone of contention. The expression "office of profit' only means an office
which yields income or profit; the word 'office' had been subject matter of
judicial consideration as long back as in 1922. In Great Western Railway Co.
vs. Bater [(1922) 8 Tax Cases 231], Rowlatt.J. defined the term
"office" or "employment" as one subsisting permanent,
substantive position which had an existence independent from the person who filled
it which went on and was filled in succession by successive holders.
This was approved by the House of Lords in
MeMillan vs.Guest (1942) AC 561.
The Constitution Bench of this Court in Kanta
Kathuria vs. Manak Chand Surana [AIR 1970 SC 694] quoted with approval the
aforementioned exposition of 'office' by Rowlatt.J. In that case the question
was whether an advocate appointed as a Special Govt. Pleader to assist the
Govt. Pleader in a particular case, hold "office of profit" under the
Govt. and hence incurred disqualification under Article 191 of the Constitution
of India. Relying on the said exposition, the minority view was expressed by
Hidayatullah, CJ. (speaking for himself and Mitter,J.) thus "What matters
is that was an office created apart from Mrs. Kathuria. It is in evidence that
it was first held by Mr. Maneklal Mathur another advocate. It is likely that if
Mrs. Kathuria had declined some one else could have been found.
Therefore, there was an office which would be
successively held; it was independent of Mrs.Kathuria who filled it, it was a
substantive prostion and as permanent as supernumerary offices are. Every one
of the tests laid down by Rowlatt.J. are found here.
We would therefore, hold that the High Court
was right in its conclusion that Mrs.Kathuria hald an office. Since there is no
dispute that it was for profit and under the State, the election of Mrs.
Kathuria must be held to be void as she was disqualified to stand for the
election." In coming to that conclusion, the learned Judges followed their
own judgment in Mahadeo vs. Shantibai [1969 (2) SCR 422] wherein it was held
that the appellant therein who was on the panel of lawyers prepared by the
Western Railway Administrations, held office of profit under the Govt.But
Sikri.J. speaking for the majority, after referring to the same exposition of
the term 'office' as well as the observations of Lord Atkin and Lord Wright in
Memillan's case (supra) observed.
"There was no doubt that if her
engagement as Special Government Pleader amounted to appointment to an office,
it would be an office of profit under the State Govt. of Rajasthan ......
Therefore no particular significance can be
attached to the notification made under Rule 813 appointing the appellant as
Pleader. We cannot visualise an office coming
into existence, every time a pleader is asked by the Govt to appear in a case
on its behalf. The notification of his name under Rule 813 does not amount to
the creation of an 'office'." The difference of opinion between the
majority and the minority is on the question whether by the notification the
Govt. created office of Special Govt. Pleader but not in regard to meaning of
the expression 'office of profit' and the application of the tests enunciated
In a subsequent judgment of this Court in
Madhukar G.F.Pankakar vs. Jaswant Chobbildas Rajani & Ors. [AIR1976 SC
2283], the enunciation of Rowlatt. J. and observations of the House of Lords in
Memillan's case, referred to above were relied upon to hold that a Medical
Practitioner working as a panel doctor appointed under the Employees State
Insurance Scheme did not hold "office of profit" under the State
Govt. so as to attract disqualification under Section 16(1)(g) of the
Maharashtra Municipalities Act, 1965.
Krishna Iyer,J. speaking for the Bench
"The critical test of independent
existence of the position irrespective of the occupant is just not
satisfied.............we are unable to hold that there is an 'office of profit'
held by him and that he is 'under government'." From the above discussion
it follows that to incur disqualification under Section 45(1)(i) of the Act it
must be shown that : (i) there was a permanent office of Assistant Public
Prosecutor (ii) income or profit accrued from that office and (iii) the
appellant held that office.
Now adverting to the facts of this case,
there is no controversy that permanency is attached to the post of Assistant
Public Prosecutor and appointment to that office is regulated by the Rules
which deal with the remuneration of the law officers. It is immaterial that the
appellant did not in fact receive any fee. Requirements (i) and (ii) are
therefore, satisfied. The appointment of the appellant as a Law Officer
Assistant Public Prosecutor under the Rules would satisfy the third requirement
However, Mr. Das would contend that as the
appointment of the appellant was a stop gap arrangement it could not be said
that he was holding office of profit.
This contention is devoid of merit. From what
is stated above it is clear that to fulfill the requirements of the said
expression it must be shown that permanency is attached to the office and not
to the term for which a person holds it. Persons who fill the office come and
go in succession.
One may succeed the other after a long gap or
in quick succession. How long nor remains in office is irrelevant to decide
whether he holds it as office of profit. We have, therefore, no hesitation is
concluding that the appellant was holding office of profit on the relevant date
and was not eligible to stand for election of member or Chairman of the
Panchayat Samiti and in view of the provision of clause (i) of sub-section (2)
of Sec 45 he shall cease to be a member afortiori to be the Chairman of the
We find no merit in the second contention of
the learned counsel as well. To apprcciate this contention it may be useful to
refer to the provisions of Chapter VIA of the Act which was inserted by Orissa
Act 24, 1961. It contains 17 sections (44A to 44R) dealing with the filing of
election petition, grounds on which the election of a returned candidate can be
declared void the procedure to be adopted by the Election Commissioner and all
The Election Petition has to be filed before
the Subordinate Judge having jurisdiction over the place where the office of
the Smiti is situated. The grounds for declaring the election void are
enumerated in clauses (a) to (c) of sub-section (1) of Sec. 44-L. Clause @
incorporates the ground on which the appellant is sought to be dislodged by
filing an application under Section 45-B. Sec. 44-L @ of the Act reads as
"44-L Ground for declaring election void
- (1) The Election Commissioner shall declare the election of a returned
candidate void, if he is of the opinion - "@ that such person disqualified
for election under the provisions of this Act." This provision confcrs
prwer on the Election Commissioner to declare the election of a returned
candidate void if he is of the opinion that such person is disqualified on any of
the grounds mentioned in sub-section (1) which includes that such person was
disqualified for election under the provisions of the Act. Sec 45 contains the
list of various disqualifications for a person to become or continue to be a
member of the Samiti. We have held above that the appellant suffered
disqualification under Sec. 45 (1)(i) of the Act.
Section 45-B which empowers the District
Judge to decide the question of disqualification is quoted hereunder:
"45-B. District Judge to decide question
of disqualification :- (1) Whenever it is alleged that any member of a Samiti
is or has become disqualified, or whenever any such member is himself in doubt
whether or not he is or has become disqualified such member or any other member
may and the Chairman at the request of the Samiti. shall, apply to the place
where the office of the Samiti is situated, for a decision on the allegation or
(2) The District judge, after holding an
enquiry in the prescribed manner shall determine whether or not such member is
or has become disqualified and his decision shall be final.
(3) Pending such decision the member shall be
entitled to act as if he was not disqualified." Sub-section (1) of Section
45-B provides that if it is alleged that any member of a Samiti is or has become
disqualified, then the member himself if he is in doubt as to whether or not he
is or has become disqualified or any other member may, and the Chairman of the
Samiti, at the request of the samiti, shall apply to the District Judge having
jurisdiction over the place where the office of the samiti is situated and seek
a decision on the allegation or doubt. Sub-section (2) empowers the District
Judge to determine the disqualification of the member and attaches finality to
the decision given by him.
Sub-section (3) entitles the concerned member
to act as a member as if he was not disqualified during the pendency of the
proceedings before the District Judge.
Having given a resume of relevant provisions
of the Act, we shall proceed to consider whether in view of specific machinery
provided under Chapter VI-A to deal with matters connected with election of
member/Chairman, a petition under section 45-B is maintainable after the
election of the appellant. The Election Petition under Section 44-A can be
filed by any candidate who need not be a member (Section 44-C);
but an application under Section 45-B can be
filed as noted above by a member of the Samiti who is in doubt about his
incurring disqualification the Chairman of the Samiti at the request of the
Samiti or any other member. Whereas in an application under Section 44-A a
candidate can claim not only a declaration that the election of all or any of
the returned candidates is void but also a further declaration that he himself
or any other candidate stands duly elected Section 45-B is not concerned with
either declaring the election void or granting any consequential declaration as
to who has been duly elected. It merely enables the persons specified therein
to invite a decision on the question of disqualification of a member. Though
disqualifications mentioned in Section 45 of the Act are one of the grounds
under Section 44-L on which the Election Commissioner can declare the election
of a returned candidate void; there are also other grounds on which election of
returned candidate can be declared void. Yet those other grounds cannot be the
subject matter of an application under Section 45-B. Whereas the election
petition under Section 44-A has to be filed within 15 days after the date on
which the result of the election was announced on period of limitation is
prescribed for an application under Section 45-B; it can be filed at any time
while the member continues to act as a member of the Panchayat Samiti. There is
no doubt that there is some overlapping between the two sections but field of
operation of these two Sections is different and distinct. Indeed under section
45-B a District Judge is not pronouncing upon the validity of the location but
is only pronouncing upon the questions to whether a member is or has become
disqualified under the Act. It cannot be laid down that on relief under Section
45-B can be claimed after the declaration of the result of election.
For the above reasons, we have no hesitation
in holding that the remedy of filing election petition under Section 44-A is no
bar to file application under Section 45-B of the Act for inviting a decision
on the question of disqualification of a member.
In the result, we confirm the order under
appeal and accordingly dismiss the same with costs.