Anokh Singh VS Punjab
State Election Commission
WITH CIVIL APPEAL NO.
OF 2010 [Arising out of SLP [C] No.10948 of 2009]
Harchand Singh VERSUS
State of Punjab and Ors.
appeals arise out of a common judgment of the Punjab and Haryana High Court
dated 5.12.2008 in Writ Petition Nos. 7727 of 2008, 8264 of 2008, 8270 of2008,
8279 of 2008, 8310 of 2008 and 11724 of 2008.
primary issues raised in all these writ petitions were:-
the office of a Lambardar would be an `office of profit' so as to disqualify
the incumbent of such an office to seek election as Panch of the Gram
the Anganwari workers employed in the various social-welfare schemes in the
State of Punjab held an `office of profit' and consequently
disqualified for seeking election to the Gram Panchayats.
the State Election Commissioner, Punjab was justified in issuing the
clarificatory Memorandum, Memo No SEC-2008/4365 dated 30.4.2008 on the subject
"General Elections to Panchayat Samitis and Zila Parishads -
2008 Clarification regarding contesting of election by Lambardars and Anganwari
Writ Petition No. 7727 of 2008 was filed by a Lambardar, who was seeking
election to the Gram Sabha,Village Ladpur, Tehsil Amloh, Distt. Fatehgarh
Saheb. He had come to know from a news item in the Daily `Ajit'dated 3.5.2008
that Lambardar and Anganwari workers have been debarred from contesting
election as Member Panchayat. On enquiry, the appellant came to know that a
Circular Memo No. SEC-2008/4365 has been issued conveyed to all the Deputy
Commissioners-cum-District Electoral Officers in the State that Lambardars and Anganwari
workers, who are ineligible to contest elections as Member of Panchayat
because they hold` office of profit'. As a result of which, the appellant was
debarred from contesting the election as Member Panchayat, which he intended
to contest as he was otherwise duly qualified to contest the same. The prayer in
the writ petition was for issuance of a writ in the nature of certiorari quashing
the impugned memorandum by which Lambardars and Anganwari workers have
been debarred from contesting the elections.
the Civil Writ Petitions No. 8264 of 2008,8270 of 2008, 8279 of 2008 and 8310
of 2008 were filed by Anganwari workers claiming that they could not be
disqualified as they were not holding any `office of profit'.Civil Writ
Petition No. 11724 of 2008 sought a direction to the respondents not to permit
respondent No. 5, who was an Anganwari worker to participate in the election of
Sarpanch of Gram Panchayat of Village Ghaloti.
High Court upon detailed consideration of the entire matter concluded that the
office of Lambardars is an `office of profit' and, therefore, the Lambardar
wouldbe disqualified from contesting the election. To this extent, the impugned
memorandum was held valid. Consequently, Civil Writ Petition No. 7727 of 2008 was
regard to the Anganwari workers, the High Court held that the Anganwari workers
did not hold any civil post under the Government. It is also held that the Anganwari
workers do not hold an `office of profit' under the State Government.
Consequently, Civil Writ Petition Nos. 8264 of 2008, 8270 of 2008, 8279 of 2008
and8310 of 2008 were allowed and the impugned memorandum was quashed
so far as it pertained to the Anganwari workers.
view of the decision rendered in the aforesaid writ petitions, Civil Writ
Petition No. 11724 of 2008 for issuing direction not to permit the Anganwari
worker, respondent No. 5, to participate in the election of Sarpanch of Gram Panchayat
this appeal, we are only concerned with the issue as to whether an incumbent
Lambardar would hold an ‘office of profit' under the Government.
by a common order, the High Court has decided the writ petitions in two parts. The
first part relates to the Lambardars in C.W.P. 7727 of 2008 and connected
matters. In these matters, the High Court crystallized three issues for consideration.
Firstly, whether the disqualification prescribed under Section208 of the
Panchayati Raj Act or the disqualification prescribed under Section 11 of the
State Election Commission Act is applicable in case of the petitioner. Secondly,
whether the petitioner, as a Lambardar, holds an `office of profit' Thirdly,
whether in view of clause (1) of Article 243F of the Constitution read with
Section 2(a) of the Punjab State Legislature (Prevention of disqualifications)
Act, 1952, the petitioner shall not be deemed to be disqualified for being
chosen as a member of a Panchayat as the office of Lambardar is one of the
offices of profit, holding which does not attract disqualification.
second part relates to Anganwari Workers in CWP No.11724 of 2008, CWP No. 8264
of 2008 and connected matters. The issues highlighted in these matters are : Firstly
whether the Anganwari workers were holding `office of profit'. Secondly
whether the State Election Commission was justified in issuing circular dated 30.4.2008
clarifying that Anganwari workers are disqualified to contest the election of
Members of Panchayats.
the matters concerning Lambardars, the High Court observes that in view of the
judgment of this Court in Som Lal Vs. Vijay Laxmi & Ors.1 the disqualifications
prescribed under Section 11 of the State Election Commission Act would prevail.
Under the Panchayati Raj Act, by virtue of Section 208 a person would be disqualified
to contest the elections as a member of Panchayat, if he is a whole-time
salaried employee of State Government. But under Clause 11(g) of State Election
Commission Act, a person is so disqualified if he holds an `office of
profit' under the State Government. However, the issue has been set at rest by
this Court in Som Lal's case (supra), therefore, we need not say more on this
the next issue would be to see whether the High Court was correct in concluding
that the office of Lambardar would be an `office of profit' under the
Government, as the incumbent would be entitled to receive an honorarium of
Rs.900/- per month.
have heard the learned counsel for the parties. The learned counsel appearing
for the appellant submits:
office of Lambardar is merely a heritage office as his paramount duty was to
collect land revenue which has been abolished in the state of Punjab.
Lambardar is only being paid an honorarium of Rs.900/- per month with no other
remuneration, emolument, perquisite or facilities The logic behind paying such
payment is that he does not have to spend money out of his own pocket while
discharging his duties.
Punjab State Legislature (Prevention of Disqualification) Act, 1952, section 2
of the Act enumerates that a person shall not be disqualified for
being chosen as and for being a member of the Punjab State Legislature for holding
`office of profit' under Government of India or Govt. of State of Punjab and
hence memo dated issued by the respondent dated 30.4.2008 is void ab initio.
respondent, i.e. Punjab State Election Commission has no power and authority under
the Punjab State Election Commission Act, 1994 to issue the memorandum in question.
disqualification of the appellant from contesting the election is clearly
ultra vires of the Constitution of India and also provisions of Punjab State
Election Commission Act, 1994. On the other hand, the counsel for the respondent
from being called an `office of profit' granted to the office of the Lambardar
under the Punjab State Legislature (Prevention of Disqualification ) Act,
1952 applies only in the case of election to State Legislative Assembly and
not in case of election as Member of Panchayat
Government exercises power of appointment and removal over `office of profit'
those who perform functions for the government and receives remuneration in
form of honorarium, conditions laid down as indicative of `office of
profit' in Maulana Abdul Shakoor Vs. Rikhab Chand and Anr2 and Shivamurthy
Inamdar Vs. Agadi Sanganna Andanappa3.
word `profit' connotes the idea of a pecuniary gain and if the pecuniary gain
is received in connection with the office, it is an `office of profit'
irrespective of whether the gain is actually received or not.
Amount of money received is not important and neither is the label
attached to the pecuniary gain being made, as long as money is received by
virtue of holding the office
our opinion, even this issue is no longer res Integra. In a recent judgment in
the case of Mahavir Singh Vs. Khiali Ram & Ors.4 this Court has held that :
"Although the post of Lambardar is governed by the provisions of the
Punjab Land Revenue Act and the Rules framed there under, holder of the said
post is not a government servant. He does not hold a civil post within the meaning
of Article 309 of the Constitution of India."
the Lambardar is not holding any post under the Government, no salary is
payable to him. There is no pay scale attached to the office of Lambardar.
Therefore, it cannot be said that he is in receipt of any remuneration.
duties to be performed by a Lambardar and the remuneration, for holding the
said office are tabulated in Rules 20 and 21 of the Punjab Land Revenue Rules. These
rules are as under: "
20. In addition to
the duties imposed upon headman by law for any purpose, a headman shall -
by due date all land-revenue and all sums recoverable as land revenue from the
estate, or Sub-Division of an estate in which he holds office, and pay the same
personally or by revenue money order or by remittance of currency notes through
the post at the place and time appointed in that behalf to the Revenue Officer
or assignee empowered by Government to receive it. Selected lambaradars,
approved by the Collector, may pay land revenue and all sums recoverable as
land revenue from the estate or sub division of an estate in which they hold
office, by cheques on the Imperial Bank of India, provided that there is a
branch of the Imperial Bank at the headquarters of the district in which the
said estate is include;
the rents and other income of the common land and account for them to the
persons entitled thereto;
every payment received by him in the books of the land owners and tenants;
joint expenses of the estate and render account thereof as may be duly required
to the tehsildar the death of any assignee of land revenue or Government pensioner
residing in the estate, or the marriage or re-marriage of a female drawing a
family pension and residing in the estate, or the absence of any such person
for more than a year;
to the tehsildar all encroachments on roads including village roads or on Government
waste lands and injuries to or appropriations of, nazual property situated
within the boundaries of the estate; (vii) report any injury to Government buildings
made over to his charge;
out to the best of his ability, any orders that he may receive from the Collector
requiring him to furnish information, or to assist in providing or payment
supplies or means of transport for troops or for officers of Government on duty;
in such manner as the Collector may from time to time direct at all crop inspections,
recording or mutations surveys preparation of record of rights, or other
revenue business carried on within the limits of the estate;
the summons of all authorities having jurisdiction in the estate, assist all officers
of the Government in the execution of their public duties, supply to the best
of his ability, any local information which those officers may require, and
generally act for the land owners, tenants and residents of the estate or sub
division of the estate in which he holds office in their relations with the
to the patwari any outbreak of disease among animals;
to the patwari the deaths of any right holders in their estates;
any breach or cut in a Government irrigation canal or channel to the nearest canal
officer, (ziledar) or canal patwari;
the general or special directions of the collector, to assist by the use of
his personal influence and otherwise all officers of Government and other
persons, 14 duly authorised by the Collector in the collection and
enrolment of recruits for military service whether combatant or non-combatant;
all possible assistance to the village postman while passing the night in the
village, in safeguarding the cash and other valuables that he carries." Remuneration
of the headman was as under : "Rule 21
remuneration of a headman in an estate or sub division of an estate, owned chiefly
or altogether by Government shall be such a portion of the village officer's
cess or of the income accruing to Government from the estate as may be
sanctioned by the Financial Commissioner
other estates the remuneration of a headman shall be the remunerations appointed
when the land revenue of the estate was last assessed
any case not provided for by sub-section and
headman shall receive a portion of the village cess equal to five per cent of
the land revenue for the time being assessed on the estate or portion of the
estate in which he holds office whether the assessment is leviable or not
Collector may at any time alter the existing arrangements in an estate
regarding the collection of the land revenue by the different headmen and the
division of the remuneration between them."
the aforesaid rules, the Lambardar was receiving a portion of the village
officer's cess or of the income accruing to the Government from the estate
which was fixed by the Financial Commissioner. UnderRule 21(iii), the Lambardar
was entitled to a portion of the village officer's cess equal to ten percent of
the land revenue assessed on the estate or the portion of the estate in which
he holds office, whether the assessment is levied or not. It is an undisputed
fact that the Punjab Government has abolished land revenue. Therefore, Lambardar
has no land revenue to collect. Thus the Lambardar would not receive any
remuneration as 10%of the land revenue assessed.
the aforesaid percentage of cess has been replaced by an honorarium of Rs.500/-
pm under a circular dated 9.10.2006 issued by the Government of Punjab,
Department of Revenue and Rehabilitation to all Deputy Commissioners in the
State. Currently the Lambardar receives Rs.900/- per month as honorarium. This
honorarium is merely compensatory to meet the out of pocket expenses, incurred
in the performance of his duties.
High Court has rejected the submission that such an honorarium would not fall
within the ambit of the term `office of profit'. The High Court has concluded that
- "In the instant case, the Lambardars are being appointed by the official
of the Government and they can be removed by the official of the Government.
Their appointments are under the statute and are in overall control of the
Government. They are also receiving monthly honorarium which cannot be said to
be compensatory in nature [Emphasis supplied]. The facts of this case are fully
covered by the aforesaid tests laid down for finding out whether the office of
profit is an office under a Government."
our opinion, the High Court has erroneously distinguished the observations of
this Court in the case of Shivamurthy Swami Inamdar Vs. Veerabhadrappa Veerappa5.
In the aforesaid case, this Court laid down some of the tests that may be
relevant to determine as to whether a particular office can be said to be an
`office of profit'. These tests are :- "
1. Whether the
Government makes the appointment;
2. Whether the
Government has the right to remove or dismiss the holder ;
3. Whether the
Government pays the remuneration;
4. What are the
functions of the holder? Does he perform them for the Government; and
5. Does the Government
exercise any control over the performance of those functions?"
All the five tests
would be relevant to determine that whether a particular office is an office
under the Government. For determining whether such an office is also an `office
of profit', tests 3, 4, 5 assume importance. It is, therefore, necessary to
evaluate the nature and the importance of the functions performed It would be
essential to determine whether it would be necessary for the person holding an
office under the Government to incur any expenditure in performance of the functions.
These matters would then have to be correlated to any honorarium, allowance or
stipend that may be attached to the office. Without examining any of these
issues, the High Court concluded that the honorarium received by t he Lambardar
is not compensatory in nature We are unable to endorse the approach adopted by
the High Court.
in mind these tests, we may now examine whether the office of Lambardar is an
`office of profit'. It would be apparent from the facts that though the Lambardar
may not be holding a civil post, he would be holding an office under the
Government. The Lambardaris not paid any salary but is entitled to receive an honorarium
of Rs.900/- per month He receives no salary, emoluments, perquisites or facilities
Is that sufficient to conclude that he holds an `office of profit’? This seems
to be the conclusion reached by the State Election Commissioner, whilst issuing
the impugned circular dated 30.4.2008 The High Court affirmed the aforesaid
term `office of profit' has not been defined in the Constitution,
Representations of Peoples Act, Punjab State Election Commission Act or the
Panchayati Raj Act. It is one of those rare terms which is not even defined in the
General Clauses Act, 1897. It has, however, been judicially considered in
numerous judgments of this Court. We may notice here some of the judgments.
Gatti Ravanna, son of Gatti Subanna, Gubbi Taluk, Mysore State Vs.
G.S.Kaggeerappa, Merchant, Gubbi6 considered whether a person holding the
position of the Chairman of Gubbi Taluk Development Committee, could be said to
be holding an `office of profit' under the Government. In that case, the
Chairman was entitled to a fee of Rs.6/- for each sitting of the aforesaid Committee.
It was clearly held by this Court that a fee Rs.6/- which the Chairman was
entitled to draw for each sitting of the Committee was neither meant to be
payment by way of remuneration nor it could amount to profit; and the fee was
paid to the Chairman to enable him to meet "out of pocket expenses, which
he has toincur for attending the meetings of the Committee." It was held
as under:- "The plain meaning of the expression seems to be that an
office must be held under Government to which any pay, salary, emoluments or
allowance is attached. The word "profit" connotes the idea of
pecuniary gain. If there is really a gain, its quantum or amount would not
be material; but the amount of money receivable by a person in connection with
the office he holds may be material in deciding whether the office really
carries any profit From the facts stated above, we think it can reasonably
be inferred that the fee of Rs 6 which the non-official Chairman is entitled
to draw for each sitting of the committee, he attends, is not meant to be a
payment by way of remuneration or profit, but it is given to him as a
consolidated fee for the out-of-pocket expenses which he has to incur for
attending the meetings of the committee. We do not think that it was the
intention of the Government which created these Taluk Development
Committees which were to be manned exclusively by non-officials, that the office
of the Chairman or of the members should carry any profit or remuneration."
The High Court gives no reason for concluding that the honorarium received by
a Lambardar is not compensatory in nature. The High Court erred in not analyzing
the real and substantive nature of the honorarium. The High Court
failed to take notice of the fact that the respondents had placed no material
on the record to establish that the honorarium of Rs.900/- would result in a
net gain to the Lambardar. In other words, the out of pocket expenses for
attending to the duties of a Lambardar would be less than Rs.900/- per month.
This court in S.Umrao Singh Vs. Darbara Singh & Ors.7 has clearly held :- "5.
The payment to a Chairman, Panchayat Samiti, under Rule 3 is described in the
rule as a monthly consolidated allowance in lieu of all other allowances for
performing all official duties and journeys concerning the Panchayat Samiti
within the district, including attending of meetings, supervision of plans,
projects, schemes and other works, and also for the discharge of all lawful
obligations and implementation of Government directives. This provision in very
clear language shows that the allowance paid is not salary, remuneration or honorarium.
It is clearly an allowance paid for the purpose of ensuring that the Chairman of
a Panchayat Samiti does not have to spend money out of his own pocket for the
discharge of his duties. It envisages that, in performing the duties, the
Chairman must undertake journeys within the district and must be incurring expenditure
when attending meetings, supervising plans, projects, schemes and other works
and also in connection with the discharge of other lawful obligations and implementation
of Government directives. No evidence has been led on behalf of the appellant
to show that a Chairman of a Panchayat Samiti does not have to perform such
journeys in the course of his official duties and to incur expenditure in that connection.
The State Government, which was the competent authority, fixed the allowance for
a Chairman of a Panchayat Samiti at Rs 100 per month, obviously because it was
of the opinion that this sum will be required on an average every month to meet
the expenses which the Chairman will have to incur in this connection. In these
circumstances, the burden lay on the appellant to give evidence on the basis of
which a definite finding could have been arrived at that the amount of Rs.100
per month was excessive and was not required to compensate the Chairman for the
expenses to be incurred by him in the discharge of his official duties as
envisaged in the rule. That burden clearly has not been even attempted to be
discharged by the appellant 8. Our attention was drawn by learned counsel to
the fact that in Rule 7 the persons entitled to daily allowance are divided
into two categories and a Chairman of a Panchayat Samiti belonging to
Category I is entitled to Rs 6 per diem when a Member of the Samiti belonging
to Category II is only entitled to Rs 4 per diem. The argument was that there
was no explanation for payment at a higher rate to the Chairman and,
consequently, it must be held that the Chairman must be making gain out of the
payment to him of daily allowance. We are unable to accept this submission.
The daily allowance is invariably fixed after estimating what extra
expenditure in a day the person concerned would have to incur. A Chairman, it
appears, was expected to incur more expenditure per day than a Member, and
that seems to be the reason why a higher rate of daily allowance was prescribed
for him. In any case, such a payment is clearly meant only to cover
additional expenditure and out-of-pocket expenses of the Chairman and, while
no evidence has been advanced to show that out of the amount received as
daily allowance the Chairman will in fact invariably make a saying, it
cannot be held that this payment would result in gain so as to make the
office an office of profit."The aforesaid observations are squarely
applicable to thefacts and circumstances of this case. Even the paymentof
allowances to Chairman Panchayat Samiti was held tobe out of pocket expenses.
It was emphasised that the burden lay on the appellant to give evidence to show
that amount paid would be in excess of the expenses. It was further observed
that even with regard to higher allowance paid to Chairman for performing
duties outside the district, there was no evidence from which an inference
could be drawn that the allowance paid would be in excess of the expenditure
incurred in performance of the duties by the Chairman.
In the case of K.B. Rohamare Vs. Shanker Rao Genuji Kolhe8, this Court again
considered the factors which are necessary to be taken into consideration :- i)
Whether the office in question is an office holding under the Government; and
ii) Whether such an office is an `office of profit'. Considering the question
in the light of the test laid down in the case of Shivamurthy Swami (Supra), it
was held that a member of the Board would be holding an office under the
Government. It was, however, observed that mere drawal of the daily allowance
and traveling allowance could not make membership of the Board, an ‘office of
profit' as the allowances drawn by such member would be merely compensatory in
nature. In coming to the aforesaid conclusion, this Court considered the nature
of the payment made to the members of the Board It was observed that the
dictionary meaning of the word `honorarium' would not be of much help.
Therefore, "the matter must be considered as a matter of substance ratter
than of form, the essence of payment rather than its nomenclature".
In considering the substance of the nature of the payment made, this Court
considered in detail the various payments made to the member of the Wage Board
as well as the number of meetings attended and the places at which the meetings
were attended This was not necessary to determine whether the particular member
made a profit after the payments made to him but to see the effect of payments
in general Upon examination of the entire material, it was observed asunder:- "The
question has to be looked at in a realistic way. Merely because part of the
payment made to the first respondent is called honorarium and part of the
payment daily allowance, we cannot come to the conclusion that the daily allowance
is sufficient to meet his daily expenses and the honorarium is a source of profit.
A member of the Wage Board cannot expect to stay in Taj Hotel and have a few drinks
and claim the expenditure incurred, which may come perhaps to Rs 150 to Rs 200
a day, for his personal expenses. In such a case it may well be held to give
him a pecuniary gain. On the other hand he is not expected to live like a
sanyasi and stay in a dharmshala and depend upon the hospitality of his
friends and relatives or force himself upon them. Nobody with a knowledge of
the expenditure likely to be incurred by a person staying at a place away
from his home could fail to realise how correct the assessment of the learned
Judge is. We are satisfied that the payments made to the first respondent
cannot be a source of profit unless he stays with some friends or relatives
or stays in a dharmshala The appellant has not satisfied the test or discharged
the burden pointed out by this Court in Umrao Singh case. The law regarding the
question whether a person holds an office of profit should be interpreted
reasonably having regard to the circumstances of the case and the times with
which one is concerned, as also the class of person whose case we are dealing
with and not divorced from reality. We are thus satisfied that the first
respondent did not hold an office of profit."
The expression `office or profit' was reconsidered in detail by this Court in
the case of Shibu Soren Vs. Dayanand Sahay9. This Court, apart from reiterating
the ratio of law in the aforesaid two cases i.e. K.B.
Rohamare Vs. Shanker Rao Genuji Kolhe (Supra) and Shivamurthy Swami (Supra)
observed as follows:- "27. With a view to determine whether the office
concerned is an "office of profit", the court must, however, take a
realistic view Taking a broad or general view, ignoring essential details is
not desirable nor is it permissible to take a narrow view by which technicality
may overtake reality. It is a rule of interpretation of statutes that the
statutory provisions are so construed as to avoid absurdity and to further
rather than defeat or frustrate the object of the enactment 28. While interpreting
statutory provisions, courts have to be mindful of the consequences of
disqualifying a candidate for being chosen as, and for being, a Member of the
legislature on the ground of his holding an office of profit under the
State or the Central Government, at the relevant time. The court has to bear
in mind that what is at stake is the right to contest an election and to
be a Member of the legislature, indeed a very important right in any democratic
set-up "A practical view, not pedantic basket of tests" must,
therefore, guide the courts to arrive at an appropriate conclusion. A ban on
candidature must have a substantial and reasonable nexus with the object sought
to be achieved, namely, elimination of or in any event reduction of possibility
of misuse of the position which the legislator concerned holds or had held at
the relevant time. The principle for debarring a holder of office of profit
under the Government from being a Member of Parliament is that such person
cannot exercise his functions independently of the executive of which he becomes
a part by receiving "pecuniary gain". Under Article 102(1)(a), of
course, Parliament has the jurisdiction to declare an "office" as not
to disqualify its holder to be a Member of Parliament and likewise under
Article 191(1)(a) the State Legislature has the jurisdiction to declare an
"office" as not to disqualify its holder to be a Member of the State Legislatures.
Moreover, apart from the office being an "office of profit", it must
also be an office under the State or Central Government.
was further observed that for determining of the core question each case has to
be judged in the light of the relevant provisions of the statute and its own peculiar
facts This is to ensure that there should not be any conflict between the
duties and interest of an elected member.
view of the above, the conclusion reached by the High Court that receipt of
Rs.900/- is not compensatory can not be accepted. It would be preposterous to accept,
in this day and age, that a sum of Rs.900/- per month would be sufficient to
cover the out of pocket expenses of a Lambardar.
this case the High Court erred in recording a conclusion without insisting on
the evidence on the basis of which such conclusion could have been recorded. The
circular dated 30.4.2008 merely states :-
"To All the
Deputy Commissioners-cum- District Electoral Officers in the State. Memo No.
SEC-2008/4365 Chandigarh, dated the 30.4.2008 30 Subject : General Elections
to Panchayat Samitis and Zila Parishads - 2008 Clarification regarding
contesting of election by Lambardars and Anganwari Workers .. Some of the
Deputy Commissioners-cum- District Electoral Officers have raised the question
whether the Lambardars and Anganwari workers are eligible to contest Panchayati
Raj Institution elections The answer to this question depends upon whether the
aforesaid functionaries are holding "office of profit" under the
State Government. The Hon'ble Supreme Court of India has laid down certain
tests for determining the question whether a particular office is an office
under the State Government or not: particularly in Shivamurthy Swami In amdar
Vs. Agadi Sanganna Andanaappa as follows:-
the government makes the appointment;
the government has the right to remove or dismiss the holder;
the government pays remuneration;
the functions of the holder are and does he perform them for government; and
the government exercise any control over the performance of these functions.
Therefore, the question whether a person isholding an office of profit under
the Government of India or a State has to be decided by applying these tests to
the facts 31 and circumstances of each case. Applying these questions to the
instant case, it is well established that both the above mentioned functionaries
are appointed by the Government and the Government has the right to remove
them They are also paid remuneration. However, it has been said that the remuneration
is of the nature of honorarium. Here, on "office of profit" the Hon'ble
Supreme Court of India held in Ravanna Subanna Vs. Kaggeerappa that the word
`profit' connotes the idea of pecuniary gain. If there is really a gain, its
quantum or amount would not be material but the amount of money receivable by a
person in connection with the office he holds may be material in deciding
whether the office really carried any profit. Further, it is also well
established that functions performed by both Lambardar and Anganwari workers
are for the government and the government also exercises control over the performance
of these functions A similar point has been decided by the Hon'ble Supreme
Court in Ramappa Vs. Sangappa where the Hon'ble Supreme court observed that the
appointment of Patels and Shanbhogs was made by the Government under the Mysore
Village Offices Acts 1908 and though it may be under the statute it had no
option but to appoint the heir to the office, if he fulfills the statutory
requirements, but the office was held by them by reason of the appointment by
the government and not simply because of hereditary right to it. They worked
under the control and supervision of the Government, could be removed by the
government and were paid by it Accordingly, the Commission is of the view
that the Lambardar and Anganwari workers held "office of profit"
and thus are ineligible to contest. Sd/- (A.K. Dubey) State Election
Commissioner, Pb."A perusal of the circular would clearly show that State
Election Commission has failed to take note of the factual situation. The
circular is based on a misinterpretation of the law laid down by this Court in
the cases of Shivamurthy and Ravanna Subanna (supra). There is no material on
the record to show that the receipt ofRs.900/- per month by the Lambardar would
in variably lead to a saving. Even though the office of Lambardar disregarded
as a mere relic in this day and age, it still carries with it certain important
duties which are to be performed by the incumbent. Although purely` honourary'
being a Lambardar gives the incumbent a certain status in the village. In some
cases, the office of Lambardar has been in the same families for generations.
For them, it becomes a matter of honour and prestige that the office remains in
the family. Learned counsel for the appellant has rightly submitted that the
office of Lambardar is a heritage office. Therefore, some families would
cherish the office of Lambardar, even though the incumbent does not get any salary,
emoluments or perquisites. In our opinion, the very basis of issuing the
circular was non- existent and misconceived. On this very basis, the High Court
has quashed the circular in relation to Anganwari workers. In our opinion, for the
same reasons the circular could not be sustained qua the Lambardars also.
view of the aforesaid conclusion, we need not consider the effect of Section
2(a) of the Punjab State Legislative (Prevention of disqualifications) Act,
1952, on Section 11(g) of the State Election Commission Act. By virtue of the
aforesaid Act a Lambardar would be qualified to contest the elections for
legislative assembly. This could be a stepping stone for becoming the Chief Minister
of the State. Therefore, it would seem a little incongruous that a Lambardar
would not be permitted to seek election to the Panchayat The village level
democracy is the bedrock of the Indian National Democracy Being a member
of Panchayat can be the beginning of a long career in public life. Therefore, the
disqualification introduced though the impugned circular could prove disastrous
to democracy at the grassroots level in Punjab. But we need not go into controversy,
as we have already held that the office of a Lambardar would not be an `office
view of the above, the appeal is allowed The impugned judgment of the High
Court is set aside, in so far as it relates to Lambardars. The impugned
circular dated 30.4.2008 is quashed and set aside qua the Lambardars also. Civil
Appeal No. of 2010 @ Special Leave Petition (C) No.10948 of 2009 :
1. Leave granted.
2. In view of the
judgment in Civil Appeal No. ..................of 2010 @ SLP (C) No. 7319 of
2009, this appeal becomes in fructuous and is dismissed as such.
[Surinder Singh Nijjar]