Holding

A municipal officer is not an office of profit under the Government, and therefore the respondent was not disqualified from being elected to Parliament.

Summary

The petitioner challenged the election of the respondent, who was the Accountant‑in‑charge of Agartala Municipality, on the ground that he held an office of profit under the Government of Tripura within the meaning of Article 102(1)(a) of the Constitution. The High Court held that the municipal post did not constitute such an office and dismissed the election petition. On appeal, the Supreme Court examined the nature of the municipality under the Bengal Municipal Act, 1932 and the extent of State Government control. It held that the municipality is a separate local authority; although appointments above a certain salary require State Government sanction, the employee remains an officer of the municipality, not of the Government. Consequently, the respondent was not disqualified under Article 102(1)(a). The appeal was dismissed.

Issues considered

Whether a person holding the post of Accountant‑in‑charge in a municipal authority is deemed to hold an office of profit under the State Government for purposes of disqualification under Article 102(1)(a) of the Constitution.

Legislation cited

Bengal Municipal Act, 1932 (as extended to Tripura)s. 53, s. 54, s. 66(1), s. 66(2), s. 66(3)
Constitution of Indias. Article 102(1)(a), s. Article 191(1)(a), s. Article 58(2)
General Clauses Act, 1897s. 3(31)

Subjects

office of profitdisqualificationLok Sabha electionmunicipal employeeConstitutional lawArticle 102(1)(a)local authority

Judgment

50

I
f-

A
ASHOK KUMAR BHATIACHARYYA
),-
v.

AJOY BISWAS AND ORS.
B
Nov1mber 15, 1984

(S. MURTAZA FAZAL ALI, A. VARADARAJAN AND '
SABYASACm MUKHARJI JJ.] /.
c Constitution •I Inaia 1950, Artie/es 102(2) (a) and 191(/) (a).

'Office ofprofit under government'-Who is holder of such office-A holder
of the office of profit under an1 authority or local authority subject to the Control
·I of the "State or Central Government-Whether disqualified from becoming a
Member of Parliament.
D
Word• and Phrases 'Office of profit under the government of India or the
Government of any State-Mellllint •/-Articles 58, 102(1) (a) and 191(1) (a)
Constitution of India, 1950.

E Respondent No. 1 was employed in the Agartala Municipality and held
the post of an Assistant Accountant. The Commissioners of this Municipality
were superseded by an order or the State Government under Section 553 or the
Bengal Municipal Act, 1932 as extended to the State of Tripura in 1975. Respon·
dent No, 1 who was under suspension at the time of superscssion was dismissed
from service in the disciplinary proceedings against him by the Administrator of
the Municipality on 20th December, 1975. The State Government confirmed the
F order of dismissal. Respondent No.- 1 was however reinstated to the post
of Accountant-in·chargc on 6th May, 1978 With immediate effect by the
Administrator.

Respondent No. I contested the mid.term Lok Sabha election held in 1980
from the West Tripura Parliamentary Constituency, and was declared elected on
8th January, 1980.
·G
The appellant who was a voter filed an Election Petition in the High
Court contending that respondent No. 1 was disqualified for being elected as a J
member of the House of People aa he held an office of profit under the Govern· -
ment of Tripura within the meaning of Article 102(1){a) of the Constitution. The
Hiah Court dismissed the petition holding that Respondent No. I did not hold
H an office of profit under the aovernment of Tripura.
A. K. BHAlTACHARYYA V. AJOY BTSWAS SI
In the appeal to this Court on the question : whether respondent No. 1 A
hdd •n office of profit under sub-clause (a) of Clause (I) or Anicle 102 of the
Constitution.

Dismissing the Appeal.

or
HELD: 1. \Vhether in a particular case a person holds an office profit
under the government or not must depend upon the facts and circumstances of B
the relevant provisions. To make in all cases employees of local authorities
subject to the control of Government, holders of office or profit under the
Government wouid be to obliterate the specific differentiation made under
Atticle 58(2) of the Constitution and to extend disqualification under Article t02
(l)(a) to an extent not warranted by the language of the Article. (62 E-F]

In the instant case, having regard to the provisions of_ the Bengal Munici-
pal Act, 1932 as extended to Tripura, the Government does not control officers c
like respondent No. 1 and he continues to ~e an employee of the Municipality
though bis appointment is subject to the confirmation by the Government. He
does not cease to be an employee of the Municipality. Local authority as such
or any other authority does not cease to become independent entity separate
from Government. [62 D-C]

2. Respondent No. 1 was not at the relevant time a holder of office or
D
profit under the Government. Some amount of control is reco&nised even in a
local authority which is taken account of under Article SS. The High Court
rigbly held that respondent No. 1 did not hold office or profit under_ the Govern·
ment of Tripura on the date of filing of the nomination on an analysis or
relevant provisfons of the Act. [62 0-H)
E
3. The object of enacting provisions like Article 102(1)(a) and Article
191(1)(a) is that a person who is elected to a Legislature or Parliament should be
free to carry on his duties fearlessly without being subjected to any kind of
government pressure. ·The term 0 office of profit under the Government" used
in clause (a} is an expression of wider import than a post held under the Govern-
ment which is dealt with in Part XIV of the Constitution. The measure or
control by the Government over a local authority 1.hould be judged in order to F
eliminate the possibility of a conflict between duty and interest and to maintain
the purity of the elected bodies. (61 G-HI,
.
4. It will be clear from reference to ItemrS in List Il of VII Schedule of
the Constitution that Municipality are separately mentioned in contra~distinction
of the State government. Therefore, a local authority as such is separate and
distinct. This becomes further clear from Article S8(2) of the Constitution.
, [57DJ G

S. A person who iS holding an office of profit either under the Govern...
ment of India or the Government of the State or any other local or other
authority subject to the control of the said Governments is disqualified from
becoming a President but if a person bolds an office of profit under the Govero...
meat of India or the Government of any State, he only is disqualified from
bcin~ a member or, Parliament. A holder of the of!ico of profit under an1 ff
52 , ' surm'coURT RBPORTS (1985] 2 s.c,~
~ .· '. . , - /
A authority or local authority subject to the control of the State or Centt-1. .
Government is as such not disqualified from becoming a Member of Partian)u,l: · ·
en c:-Ql
D. R, Gurushantappa v. Abdul Khuddus Anwar & Ors. (1969] 3 S.C.R, 22S,
G11rugobinda Basu v. Sankari Prasad Ghosal & Ors. [1964) 4 S.C.R. 311, Maulona
Abdul Shakur v. Rikhab Chand, (1958) S.C.R. 387, Surya !Cant Roy v. Immamul
B 'Hai KhOn, (1975] 3 S.C.R., 909; and Mad!mker G.E, Pankakar v. Jaswant Choir
bi/da~ Rajani & Ors, (1975) 3 S.C.R, p. 832 at page 851, referred to.

Bihari/a/ Dobray v, Roshan Lal Dobray, (1984) I S.C.C, 551, explained.

CIVIL APPELLATB JUl\1SDICTION: Civil Appeal No. 1724 of 1982,

From the Judgment and Order dated the 15th March, 1982 of'
c the Gauhati High Court (Agartala Bench) in E.P. No. 2 of 1980.
.,
·'
·G.L. Sanghi, SK, Nandy and S, Parekh, for the ~ppellant,

· · R.K. Ga;g and S.C, Blrla for the Respondent.
..D .The Judgment of the Court was delivered by

. SABYASACHI Mu~HArui. J, This appeal arises out of the judg-
ment and an order of the Gauhati High Court in an election petition,
The petitioner appellant was a voter in the West Tripura Parliamentary
Constituency from No, 7 Ramnagar Assembly Segment, He contested
'E the mid-term Lok Sabha election held in 1980 from the West Tripura
Padiamentary,Constituency as a nominee of Congress (I}, There were
six candidates including the petitioner contesting the said election,
The respondent No. 1 was a C.P.I.(M} candidate, 8th December,
1979 was the date of filing of the nominations, Nominations were
scrutinised on 11th December, ·1979 and the withdrawal ·date was
F 13th December, 1979. On 6th January, 1980 the polling was held
and the result of the election was declared on 8th January, 1980. The
main. contest was between the petitioner/appellant and the respondent
No, I, Ajoy Biswas.. The respondent No, 1 had secured 1,98,335
votes as against the appellant who had secured 1,42,990 votes. The
respondent No. 1 was declared elected. ·
.. The only point on which the election petition by the appellant/
petitioner was pressed before the High Court arid the only point
urged before us in this appeal, is whether 'the respondent No. 1 was
disqualified for. being elected as a member of the House of People as
he held an office of profit under the Government ofTripura within
the meaning of Article 102(l}(a) of the Constitution, On the relevant
Ji
date, respondent No. 1 wa.s the' Accountant-in-charge of the Agartala
A. K. BHATTACHARYYA v. AJOY BISWAS (Mukharji, i.) 53
Municipality. Therefore, the question involved in this appeal, is,
whether an Accountant-in-charge of the Agartala Municipality holds
an office of profit within the meaning of Article 102(1)(a) of the
Constitution. In order to determine this question, it will be necessary
to refer to certain facts.
B
Respondent No. 1 was employed in Agartala Municipality and
held the post carrying the scale of pay of Rs. 80-180 per month.
The Commissioners of the Agartala Municipality were superseded by
an order of the State Government under Section 553 of the Bengal
Municipal Act, 1932 as extended to the State of Tripura in 1975. The
effect of Section 554 of the s~id Act is that during the period of
' supersession the powers and duties of the Commissioners and Chair· c
man shall be exercised and performed by the Administrator appointed
by the State Government under that section. The respondent No. 1
who was under suspension at the time of supersession was dismissed
from service in the disciplinary proceedings against him by the Ad·
ministrator of the Agartala Municipality on 20th December, 1975.
The State Government thereafter had confirmed the order of dis- D
missal. When the Left Front Government came in power in the
State of Tripura, the respondent No. 1 was reinstated to the post of
Accountant-in-charge of Agartala Municipality on 6th May, 1978
with immediate effect by the Administrator. So at the relevant time
he was an Assistant Accountant and was Accountant-in-charge under
the Agartala Municipality drawing a monthly salary of Rs. 200. E

It is necessary to briefly note some of the relevant provisions of
the said Act in view of the contentions urged in this appeal. Proviso
(ii) to Section 66(2) of the said Municipal Act provides that no
appointment carrying a monthly salary of more than two hundred
• rupees or a salary rising by periodical increments to more than two F
hundred rupees shall be created without the sanction of the State
Government, and every nomination to, and dismissal from, any such
nomination shall be subject to confirmation by the State Government.
It appears that the Deputy Secretary to. the Govsrnment of Tripura
by his letter dated 6th May 1978 had conveyed to the Administrator,
Agartala Municipality, decision of the Government for cancellation
G
of the order of confirmation of the dismissal communicated to him
on 19th December, 1975. As a result, the cancellation order ceased
to be effective and respondent No. I was reinstated and it was further
provided that the period between the date of dismissal and the date
of reinstatement would be treated as period spent on duty for all
purposes.
S4 StlPREME COURT REPORTS {198Sj i S.C.R.
A The Act further provides that there shall be established for each
Municipality a body of Commissioners consisting of such members
or Comll\issioners not being more than twenty nor less than six as
the State Government may specify in the notification constituting the
municipality. Such Commissioners shall be a body corporate by the
B name of the Municipal Commissioners of the place by reference to
which the Municipality is known, having, perpetual succession and
a common seal, and by that name shall sue and be sued. The
Mnnicipality consists of the elected Commissioners. A Chairman is
elected by the Commissioners from amongst the Commissioners
within 30 days from the date of publication of the result of the
c general election of the Commissioners in the Municipality failing
which the State Government has the power to appoint one of the
Commissioners to be Chairman. A Vice-Chairman is also to be
elected from amongst themselves. The Chairman is empo.,,.ered "ithin
certain !imitations to transact the business connected with the Act
and exercise all the powers vested in the Commissioners under the
Act, except as otherwise provided. The Commissioners are to hold
D office for four years commencing from the date of the first meeting of
the newly formed body of Commissioners after a general election of
Commissioners in the Municipality at which a quornm is present. An
elected Chairman or Vice-Chairman may at any time be removed
from his office by a resolution of the Commissioners as laid down in
section 61(2) or (3) of the said Act. The Act also empowered the
E State Government to remove an elected Commissioner on certain
grounds set out in section 62 of the said Act.

Jn view of the contentions raised in this appeal, it would be
relevant to refer and set out section 66 of the said Act which is as
follows :
F
"66. APPOINTMENT OF SUBORDINATE OFFICERS,-

(I) The Commissioners at a meeting may, subject to
the provisions of this Act and the rules made thereunder
from time to time, determine what officers and what servants
of the Commissioners are necessary for the municipality and
G
may fix the salaries and allowances to be paid and granted
to such officers and servants.

(2) Subject to the scale of establishment approved by
the Commissioners under sub-section(!), the Chairman shall
II have power to appoint such persons as he may think fit;)nd
A. K. BHATTACHARYYA v. AJOY BISWAS (Mukharji, J.) SS

from time to time to remove such persons and appoint A
others in their places :

Provided as follows :

(i) a person shall not be appointed to an office carrying a
monthly salary of more than fifty rupees or a salary B
rising by periodical increments to more than fifty
rupees without the sanction of the Commissioners at a
meeting, and an officer or servant whose post carries a
monthly salary of more than twenty rupees shall not be
dismissed \'iithout such sanction ;
c
(ii) no appointment carrying a monthly salary of more than
two hundred rupees or a salary rising by periodical
increments to more than two hundred rupees shall be
created without the sanction of the State Government,
and every nomination to, and dismissal from, any such
appointment shall be subject to confirmation by the D
State Government ;

(iii) no person holding an office carrying a monthly salary
of one hundred rupees or more shall be dismissed unless
such dismissal is sanctioned by a resolution of the
Commissioners passed at a special meeting called for
the purpose and, except with the consent of the State E
Government unless such resolution has been supported
by the votes of not less than two-thirds of the total
number of Commissioners holding office for the time
being.

(3) Notwithstanding anything contained in sub-section F
(2), the creation of and nomination to or suspension, removal ·
or dismissal from, the post of Executive Officer shall; irres- ·
pective of the salary assigned to the post, be subject to
confirmation by the State Government."
G
The Act further provides that besides the officers and the
servants mentioned above, all or any of the officers mentioned in
section 67 may be appointed by the Commissioners. In certain
circumstances, the Act provides, that the State Government may have
an Executive Officer for such periog as may be specified in the Notifi-
cation. Section 93 provides that as soon as may be after the first H
"
56 SUPkEME COuRT REPORTS [19S5] 2 s.c.il.
A day of April in every year not later than such date as may be fixed
by the State Government, the Commissioners shall submit to the
State Government a report on the administration of the Municipality
during the preceding year in such form and with such details as the
State Government may direct, and a copy of the report shall also be
submitted by the Commissioners to the District Magistrate. The
B Commissioners of a Municipality may acquire and hold property
within or without the limits of the Municipality, and all property
within the Municipality of the nature specified in section 95, other
than property maintained by the Central Government or any other
Local Authority, are vested in and belong to the Commissioners, and
are under their direct management and control. By Section 102 of
c the said Act, the Commissioners are empowered to purchase, take on
lease or otherwise acquire any land for the purposes of the said Act,
and may se!J, lease, exchange or otherwise dispose of any land not
required for such purposes. They are also empowered to enter into
and perform any contract necessary for the purpose of the Act. A
fund called the Municipal fund is constituted for each Municipality
D and all sums received by or on behalf of the Commissioners under the
said Act or otherwise, and the balance, if any, standing at the credit
of the Municipal fund of the Municipality at the commencement of
the said Act, are credited to the said fund. The purposes to which
the Municipal Fund is applicable are enumerated in section 108 of
the Act. If any work is estimated to cost above ten thousand rupees,
E the State Government may require the plans and estimates of such
works to be submitted for its approval, or for the approval of any
servant of the Government before such work, in such form as it
might prescribe.

There are provisions for imposing taxes, tolls and foes under
F section 123 of the said Act and to make assessment of the rate on the
annual value of the holdings under section 128 of the said Act. Powers
are conferred to impose taxes. There are other provisions for raising
fund for the Municipality by way of charging fee for registration etc.
The Act empowers raising of funds for the Municipality for carrying
out the purposes of the said Act.
G
In this connection it may be relevant to refer to clause (31) of
section 3 of the General Clauses Act, 1897, and in view of the pro-
.. visions of the Act it was held b¥ the High Court that Agartala
Mnnic1pality is a 'Local authority' within the meaning of that expres-
sion as defined in clause (31) of section 3 of the General Clauses Act,
H 1897. We are of the opinion that the High Coutt was right.
A. k. illlATtACHARYYA V. AJOY BISWAS (Mukharji, J.) S1
-I
In view of the facts narrated before, it was found by the High A
Court and in our opinion rightly that the respondent No. l was at the
relevant time holding an office of profit under a local municipality.
Section 66 which we have set out hereinbefore indicates that the
appointment of persons to the category of post held by respondent
No. 1 was to be made by the Commissioners of Municipality, but the
appointment was subject to the confirmation by the State Govern- B
ment. The High Court held and we are of the opinion rightly that
the respondent No. I was an ofllcer of the Commissioners. Section 63
of the said Act provides that such ofllcers and servants of the Com-
missioners shall be subordinates to the Executive Officer appointed
by the Commissioners. The respondent No. 1 was appointed by Com-
• missioners, though sanction of the Government was obtained. He c
could be removed by the Commissioners again subject to the sanction
of the Government. He was paid out of the municipal funds which
the Municipality was and is competent to raise. From the analysis
of the provisions of the Act it is clear that though the Government
exercises certain amount of control and supervision, the respondent
No. 1 was not an employee of the Government nor was he required
D
to perform governmental functions for the Government.

Municipalities are separately mentioned in contradistinction of
the State Government as it will be clear from reference to Item 5 in
List II of the VII Schedule of the Constitution. Therefore, a local
authority as such is a separate and distinct entity. This will become E
further clear from Article 58(2) of the Constitution.

The question involved in this appeal is whether respondent No.
1 held an office of profit under sub-clause (a) of Clause (I) of Article
102 of the Constitution. Sub-clause (a) of Article 102 (I) provides as
follows:- F

"Art. 102-Disqualification for membership.-

(I) A person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament-
G
(a) If he holds any office of profit under the Government
of India or the Government of any State, other than an
office declared by Parliament by law not to disqualify
its holder;"

Jn contra-distinction, clause (2) of Article 58 which mentions
disqualifications for election as President provides as follows :- ''
H
SS SUPREME COURT REPORTS [1985] 2 s.c.R.

A "58 Disqualifications for election as President:

(1)

(2) A person shall not be eligible for election as Presi-
dent if he holds any office of profit under the
B Government ofindia or the Government of any
State or under any local or other authority subject
to the control of any of the said Governments."

In fact a person who is holding an office of profit either under
the Government of India or the Government of any State or under
c any local or other authority subject to the control of any of the said
Governments is disqualified from becoming the President but if a
person holds an office of profit under the Government of India or the
Government of any State he only is disqualified from being a mem·
ber of Parliman!. A holder of the office of profit under any local or
other authority subject to the control of the State or Central Govern-
D ment is as snch not disqualified from becoming a Member of
Parliament. Keeping in view these provisions, it is necessary to
consider the question whether the respondent No. 1 was holding an
office of profit under the State Government.
In the case of D. R. Gurushantappa v. Abdul Khuddus Anwar
E & Ors., w this Court had to consider whether a candidate employed in
a company owned by the Government was disqualified under Article
102(1) (a) and 191 (!)(a) of the Constitution and in this connection
considered the relevant provisions of Articles 102(1) (a) and 191(1)
(a) of the Constitution. After discussing the case of Gurugobinda
Basu v. Sankari Prasad Ghosal & Ors." 1 and the decision in the case
F '
of Maulana Abdul Shakur v. Rikhab Chand," 1 this Court come to the
conclusion that the mere fact that the Government had control over
the Managing Director and other Directors as well as the power of
issuing directions relating to the working of the company could not
lead to the inference that every employee of the company was under
the control of the Government.
G The true principle behind this provision in Article 102 (I) (a)
is that there should not be any conflict between the duties and the
interest of an elected member. Government controls varioui activities
(I) [1969) 3 S.C.R. 425
(2) [1964) 4 S.C.R. 311
H )3) (1958) 3 S.C.R. 387 .
A. I::. llHAtTACHARYYA v. AJOY BISWAS (Mukherji, J.) )9

in various spheres and in various measures. But to judge whether A
employees of any authority or local authorities under the control of
Government become Government employees or not or holders of
office of profit under the Government the measure and nature of
control exercised by the Government over the employee must be
judged in the light of the facts and circumstances in each case so as to
avoid any possible conflict between his personal interests and duties B
and of the Government. This position was further examined in the
case of Surya Kant Royv.Imamul Hai Khan.W There under Bihar and
Orissa Mining Settlement Act, 1920, a Board called the Mines Board
of Health may be established to provide for the control and sanita-
tion of any area within which the persons employed in a mine reside
• and for the prevention therein of the out-break an~ spread of epide- c
mic diseases. After analysing the facts of that case, this Court held
that the mere fact that the candidate was appointed Chairman of the
Board by State Government would not make him a person holding
an office of profit under the State Government. There the Supreme
Court referred to the decision in the case of Shivamurthy Swami v.
Agadi Sanganna Andanappaa.c 21 This Court in Surya Kant Roy v. D
fmamul Hai Khan (supra) observed at page 911 as follows:-

"Here again it is to be pointed out that the Government
does not pay the remuneration nor does the holder perfrom
his fuctions for the Government. To hold otherwise would
be to hold that local bodies like Municipal Councils per- E
form their functions for the Government though in one sense
the functions they perform are governmental functions."

In the case of D.R. Gurushantappa v. Abdul Khuddus Anwar
& Ors. (supra) mentioned hereinbefore, at page 434 this Court
observed as follows :- F

"Thus, in the case of election as President or Vice-
Pretident, the disqualification arises even if the candidate is
, holding an office of profit under a local or any other autho-
rity under the control of the Central Government or the
State Government, whereas, in the case of a candidate for G
election as a Member of any of the Legislatures, no such
disqualification is laid down by the Constitution if the office
of profit is held under a local or any other authority under

(!) [1975) 3 S.C.R. 909
(2) [1971) 3s.c.c. 870
60 sbt>RElliil coi.JRt RilPoRrs [1985] i s.c.11..

A the control of the Governments and not directly under any
of the Governments. This clearly indicates that in the case of
~ligibility for election as a member of a Legislature, the
holding of an office of profit under a corporate body like a
local authority does not bring about disqualification even if
that local authority be under the control of the Government.
B
The mere control of the Government over the authority
having the power to appoirit, dismiss, or control the work-
ing of the officer employed by such authority does not
disqualify that officer from being candidate for election as
a member of the Legislature in the manner in which such
disqualification comes into existence for being elected as the
c President or the Vice-President. The Company, in the
present case, no doubt did come under the control of the
Government and respondent No. 1 was holding an office of
profit under the Company; but, in view of the distinction
indicated above, it is clear that the disqualification laid down
under Art. 191 (I) (a) of the Constitution was not intended
D to apply to the holder of such an office of profit."

This view was again reiterated by this Court in the case of
Madhuker G.E. Panakakar v. Jaswant Chabbildas Rajani & Ors.' 11
where this Court observed as follows:-

E "The core question that comes to the fore from the
survey of the panorma of case law is as to when we can
designate a person gainfully engaged in some work having
a nexus with Government as the holder of an 'office of
profit' under Government in the setting of disqualification
for candidature for municipal or like elections. The holding
F
of an office denotes au office and connotes its holder and
this duality implies the existence of the office as an indepen-
dent continuity and an incumbent there of for the nonce.

Certain aspects appear to be elementary. For holding an •
office of profit under Government one need not be in the
· service of Government and there need be no relationship of
master and servant (Gurugobinda supra). Similarly, we
have to look at the substance, not the form. Thirdly, all the
several factors str;115ed by this Court as determinative of the
holding of an 'office' under Government,· need not be con-

ft (1) (1976] 3 S,C.R. l32 at 8S1
A. II:. BHATTACHARYYA v. AJOY BISWAS (Mukhar}i, J.) "

jointly present, the critical circumstances, not the total A
factors, prove decisive. A practical view not pedantic basket
of tests, should guide in arriving at a sensible conclusion."

In a recent decision of this Court in the case of Bihari/al
Dobray v. Roshan Lal Dobray,1 this Court was concerned with the
question whether an office profit ~as held directly under the Govern-
ment in the facts of that case. There was an assistant teacher of a B
Basic Primary School run by U.P. Board of Basic Education under
U.P. Basic Education Act, and it was held that it was an office of
profit under the State Government within the meaning of Article 191
(!)(a) of the Constitution and therefore he was disqualified from
election. There the respondent was originally employed as an assistant
teacher in a Basic Primary School which was being run and managed
by the Zila Parishad. On coming into force of the U.P. Basic
Education Act, 1972, he became an employee of the Board of Basic c
Education under Section 9 (I) of the Act. While holding the post of
an assistant teacher as such he filed his nomination for his election to
the State Legislative Assembly. But the Returing Officer rejected his
nomination paper on the ground that he was holding an office of
profit under the State Government and hence he was disqualified
under Article 191 (I) (a) for being elected as an MLA. Article 191 (!)
(a) is in terms pari materia with Article 102 (I) (a) of the Constitution D
regarding the election to the State Assembly. The respondent therein
filed an election petition and the High Court allowed the same
declaring that the election of the appellant by rejecting the nomina-
tion of the respondent was void. The appellant therefore preferred the
appeal to this Court. This Court allowed the appeal and it was held
that the respondent was holding an office of profit under the State E
Government.

As we have mentioned before, the object of enacting provisions
like Article 102 (I) (a) and Article 191(1) (a) is that a person who is
• elected to Parliament or a Legislature should be free to carry on his
duties fearlessly without being subjected to any kind of governmental
pressure. The term "office of profit under the Government" used in F
clause (a) of Article 102(1) is an expression of wider import thl!n a
post in connection with the union or of any State which is dealt
\(
with in part XIV of the Constitution. The measure of control by the
Government over a local authority should be judged in order to
elimin;1te the possibility of conflict between duty and interest and to

G
(I) [1984] I S.C.C. 155
62 SUPREMll COURT REPORTS (1985) 2 S.C.R.
A maintain the purity of the elected bodies. After reviewing various
cases, and the provisions of the various sections of the U.P. Basic
Education Act, l972 especially in view of section 13 of the Act, this
Court held in the last mentioned case that the measure of control was
such that U.P. Education Board was an authority which v.as not
truly independent of the Government and every employee of the
B Board was in fact holding an office of profit under the State Govern·
ment. The statement of Objects and Reasons of the U.P. Basic
Education Act, 1972 and sections 4, 6, 7, 13 and 19 all of which
have been set out in extenso in that decision make that conclusion
irresistible.
•
c For determination of the question whether a person holds an
office of profit under the Government each case must be measured
and judged in the light of the relevant provisions of the Act. Having
regard to the provisions of the Bengal Municipal Act, 1932 as exten·

D
ded to Tripura, the provisions of which have been set out herein-
before, we are of the opinion that the State Government does not
exercise any control over officers like respondent No. 1 and that he
•
continues to be an employee of the Muncipality though his
appointment is subject to the confirmation by the Government. Ju1t
by reason of this condition an employee of a local authority does
not cease to be an employee of the Muncipality. Local authority as
such or any other authority does not cease to become independent
E entity separate from Government. Whether in a particular case it is so
or not mnst depend upon the facts and circumstances of the relevant
provisions. To make in all cases employees of local authorities subject
to the control of Government and to treat them as holders of office of
profit under the Government would be to obliterate the specific
F differentiation made under Article 58(2) and Article 102 (1) (a) of the
Constitution and to extend the disquaiification under Article 58 (2)
to one under Article 102 (I) (a) to an extent not warranted by the
language of the Article.

Having noted the relevant provisions, we are of the opinion that
the respondent"No. 1 was not at the relevant time a holder of office
of profit under the Government. Some amount of control is recognised
oven in a local authority which is taken account of under Article 58. )I
The High Court held that re1pondent No. I did not hold office of
profit under the Government of Tripura on the date of filing of the
nomination on an analysis of relevant provision$ of the Act which we
A. I:. BHATTACHAllYA '· AJOY BISWAS (Mukharji, J.) 63

have set out herein before. We arc in aggrecment with this view of the A
Hi&h Court.

1 In the premises, respondent No. I was not disqualified from
filing his nomination. The appeal, therefore, fails and is accordingly
- -• dismissed with co1ts.
B

N.V.K• Appia/ dismissed

•
-l

. ...