Holding

Gramin Oak Sewaks are government servants and are disqualified from contesting Nagar Panchayat elections under Section 11(g) of the Punjab State Election Commission Act, 1994.

Summary

The appellants, who were Gramin Oak Sewaks (rural postal workers), contested elections to the Nagar Panchayat of Sardulgarh. Their candidature was challenged under Section 11(g) of the Punjab State Election Commission Act, 1994, which disqualifies any person holding an office of profit under the Government. The central issue was whether a Gramin Oak Sewak qualifies as a government servant and thus is disqualified. The Supreme Court held that the Gramin Oak Sewak’s terms of service are governed by the Department of Posts Gramin Oak Sewak (Conduct and Employment) Rules, 2001, framed under the proviso to Article 309 of the Constitution, and therefore they are government employees. Consequently, the Election Tribunal was competent to determine the disqualification and correctly found the appellants ineligible. The Court affirmed the High Court’s decision and dismissed the appeals.

Issues considered

Whether a Gramin Oak Sewak is a government servant within the meaning of Section 11(g) of the Punjab State Election Commission Act, 1994.
Whether the Election Tribunal has jurisdiction to decide the eligibility of a candidate despite the provision in Section 12 referring matters to the State Government.
Interpretation of ‘office of profit’ and ‘government servant’ under Articles 309, 311, 102(1)(a), 243F and 243V of the Constitution.

Legislation cited

Constitution of Indias. Article 102(1)(a), s. Article 243F, s. Article 243V, s. Article 309, s. Article 311
Punjab State Election Commission Act, 1994s. 11(g), s. 12, s. 73, s. 74, s. 75, s. 79

Subjects

government servantoffice of profitdisqualificationPunjab State Election Commission ActGramin Oak Sewakelection petitionPanchayat electionseligibility

Judgment

[2008] 14 S.C.R. 1124

A CHET RAM -+
II.
JIT SINGH & ANR.
(Civil Appeal No. 6225 Of 2008)
OCTOBER 22, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.)
-1r
Punjab State Election Commission Act, -1994:
ss.11(g), 12 and 75 - Nagar Panchayat Elections - Dis-
c qualification - Candidature of Gramin Oak Sewaks to contest
the elections challenged - Held: Gramin Oak Sewaks are Gov-
emment servants, disqualified to contest the elections - When
an election petition is filed, all questions which arise for con-
sideration of Election Tribunal must be adjudicated upon on
D the basis of evidence brought on record by parties - Tribunal
has jurisdiction to determine eligibility of a candidate to con- .
test in the election - Department of Posts, Gramin Oak Sewak
(Conduct of Employment) Rules, 2001 - r.22(4) - Constitu-
tion of lndi8:, 1~_5.0- Articles 309, 243F and 243V
E In the instant appeals filed by Gramin Oak Sewaks,
whose candidature in contesting Nagar Panchayat elec-
tions was questioned, the issue for consideration before
the Court was as to whether a Gramin Oak Sewak was a .._._..__
government servant and, consequently, was disqualified
F to become a member of Nagar Panchayat in terms of Sec- ~

tion 11(g) of the Punjab State Election Commission Act,
1994.
Dismissing the appeals of the candidates, the Court
.G HELD: 1.1 Indisputably, the terms and conditions of
a Gramin Oak Sewak are governed by the provisions of t- _.._,
the Department of Posts, Gramin Oak Sewak (Conduct·
· and Employment) Rules, 2001, which were framed in terms
of the proviso to Article 309 of the Constitution of India.
H 1124
CHET RAM v. JIT SINGH & ANR. 1125

.i
1 The Rules framed in terms of the proviso appended to A
Article 309 indisputably govern only government employ-
ees. They are prohibited from taking part in Panchayat/
Nagar Panchayat elections. It was, therefore, for the ap-
pellant to show that he was not governed by the Rules.
[Para 9] (1129-B, D, E) B
Union of India and Others v. Kameshwar Prasad (1997)
...}- 11 sec 650 - relied on .
1.2 Section 11 of the Punjab State Election Commis-
sion Act, 1994 provides that a person shall be disquali-
fied for being chosen as and for being a member of a
c
Panchayat or a Municipality, inter alia, if he holds an of-
fice of profit under the Government of India or any State
Government. Section 12 lays down that if a question
arises as to whether a member of any Panchayat or Mu-
nicipality has become subject to any of the disqualifica- D
tions specified in Article 243F or 243V of the Constitution
or in Section 11 of the Act, the question shall be referred
for decision of the State Government and its decision shall
be final. It has furthermore been provided that before giv-
ing any decision on such question, the State Government E
shall obtain the opinion of the Election Commission and
shall act in accordance therewith. The same, however,

-
/ "1
would not mean that the Election Tribunal was not com-
petent to decide the question as to whether the returned
candidate was or was not qualified for being chosen as a F
member of Panchayat or Municipality. [Para 8-9] (1129-A,
E, F, G)
1.3 When an election petition is filed, all questions
which arise for consideration by the Tribunal must be ad-
judicated upon on the basis of the materials brought on G
·"" -t record by the parties. As regards eligibility of a candidate
to contest in an election of the municipalities in question,
the Tribunal had jurisdiction to determine the same. A find-
ing has been arrived at by it on the basis of the materials
brought on record that the appellants were government H
1126 SUPREME COURT REPORTS [2008] 14 S.C.R.

A employees and their terms and conditions of service were + I

governed by the statutory rules. The High Court has
rightly held that the appellants were disqualified from con-
testing in the election of Nagar Panchayats. [Para 11 and
13] (1130-D, E; 1136-B)
8 Shibu Soren v. Dayanand Sahay and Others 2001 (3)
SCR 1020 = (2001) 7 SCC 425; M. V Rajashekaran and Oth-
ers v. Vatal Nagaraj and Others 2002 (1) SCR 412 = (2002) 2
SCC 704; Guru Gobinda Basu v. Sankari Prasad Ghosa/ and
Others (1964) 4 SCR 311=AIR 1964 SC 254; Pradyut Bordoloi
C v. Swapan Roy 2000 (5) Suppl. SCR 525 = (2001) 2 SCC
19; and Jaya Bachchan v. Union of India 2006 (2) Suppl.
SCR 11 o = (2006) 5 sec 266 - relied on.
Madhukar GE Pankakar v. Jaswant Chobbildas Rajani
D and Others 1976 (3) SCR 832 = (1977) 1 SCC 70 - Distin-
guished.
CASE LAW REFERENCE
1976 (3) SCR 832 distinguished para 6
· 2001 (3) SCR 1020 relied on para 11
E
2002 (1) SCR 412 relied on para 11
(1964) 4 SCR 311 relied on para 11

F
2000 ( 5) Suppl. SCR 525
2006 (2) Suppl. SCR 110
relied on
relied on
para 11
para 11
-
(1997) 11 sec s5o relied on para 12
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6225
of 2008
G From the final Judgment/Order dated 4/11 /2004 of the High
Court of Punjab and Haryana at Chandigarh in F.A.O. No. 4305 t- ,.,
of 2004
WITH
H Civil' Appeal No. 6336 of 2008
CHET RAM v. JIT SINGH & ANR. 1127

~ Punit Leekha, A.P. Mohanty and Ashiesh Kumar for the A
Appellant.
Neeraj Kumar Jain, Bharat Singh, Sanjay Singh, Umang
Shankar, Ugra Shankar Prasad, Jagjit Singh Chhabra and
Jaswant Besoya for the Respondents.
B
The Judgment of the Court was delivered by
S.B. SINHA, J : 1. Leave granted.
2. Whether a Gramin Oak Sewak is a government servant
and consequently is disqualified to become a member of Nagar c
Panchayat in terms of Section 1.1(g) of the Punjab State Elec-
tion Commission Act, 1994 (for short "the Act") is the question
involved herein.
3. The fact of the matter is being noticed from Civil Appeal
arising out of SLP (C) No. 1610 of 2005. D
Indisputably, while working as Gramin Dar Sewak, appel-
lant contested in an election for membership of Nagar Panchayat
Sardulgarh held on 9.03.2003.
Respondent No. 1 filed an election petition in terms of Sec- E
tions 76, 79 and 89 of the Act and Rule 87 of the Punjab Munici-
pal Election Rules, 1994 before the Election Tribunal. However,
upon receipt of notice, appellant submitted his resignation.
-~
1

( ... We must, however, place on record that Harnek Singh,
appellant in Civil Appeal arising out of SLP (C) No. 7276 of F
2005, was chargesheeted for participating in politics.
4. Contention of appellant that he was not a government
employee having been working on part time basis and, thus,
was not disqualified in terms of Section 11 (g) of the Act was G
rejected by the Tribunal by reason of its judgment and order
dated 25.08.2004 inter alia holding that having regard to the
provisions of Rule 22(4) of the Department of Posts, Gramin
Oak Sewak (Conduct and Employment) Rules, 2001 (for short
"the Rules") he stood disqualified.
H
1128 SUPREME COURT REPORTS [2008] 14 S.C.R~

A 5. An appeal was preferred thereagainst which was -t
marked as FAO No. 4305 of 2004. By reason of the impugned
judgment, the High Court held:
"The appellant is a part time employee of the post office
~
under the Central Government, outside regular civil service. •
B Nonetheless, he is holding this post under the Government
and he is also entitled to protection under Article 311 of
the Constitution, in view of the judgment of the Apex Court
in Rajamma's case (supra) and other judgments. He is
also getting remuneration by way of salary. He is appointed
c by and paid by Central Government and is under direct
control of the Central Government. Case of Madhukar G.E.
Pankakar (supra) relating to Insurance Medical practitioner
appointed under the provisions of ESI Act is different. In
the said case, the employee was not being paid directly
D by the Government nor was control of the Government
direct, as observed in para 40 of the judgment. In the ,,..
present case, position is different. The appellant was, thus,
rightly held to be disqualified from contesting election."
Appell.ant is, thus, before us.
E
6. Mr. Punit Leekha, learned counsel appearing on behalf
of the appellant would submit that a part time employee work-
ing in a post office does not hold any office of profit under the
...,......_
government and, therefore, the impugned judgment cannot be
F sustained. Strong reliance in this behalf has been placed on
'r-
Madhukar GE. Pankakar v. Jaswant Chobbildas Rajani and
Others [(1977) 1 SCC 70).
7. The learned counsel appearing on behalf of the respon-
dent, on the other hand, would support the judgment.
G
8. The Act was enacted for constitution of a State Election
Ao..
Commission and for vesting the superintendence, direction and
control of the preparation of electoral rolls for, and the conduct
"
of all elections to the Panchayats and Municipalities in the State
of Punjab.
H
CHET RAM v. JIT SINGH & ANR. 1129
[S.B. SINHA, J]

Chapter II of the Act provides for constitution of the State A
' 1 Election Commission. Chapter IV of the Act provides for dis-
qualifications. Section 11 of the Act provides that a person shall
be disqualified for being chosen as and for being a member of
a Panchayat or a Municipality inter alia if he holds an office of
profit under the Government of India or any State Government. 8
9. Indisputably, the terms and conditions of a Gramin Oak
Sewak are governed by the provisions of the Rules; Sub-rule
(4) of Rule 22 whereof reads as under:
"(4) No Sevak shall canvass or otherwise interfere with or c
use his influence in connection with, or take part in an
election to any legislative or local authority;"
The said Rules were framed in terms of proviso appended
to Article 309 of the Constitution of India. The terms and condi-
tions of employment of a Gramin Oak Sewak are governed by 0
statutory rules.
The Rules framed in terms of the proviso appended to
Article 309 of the Constitution of India indisputably govern only
government employees. It was, therefore, for appellant to show ·
that he was not governed by the Rules. As noticed hereinbe- E
fore, Section 11 (g) of the Act lays down the conditions for dis-
qualification. Section 12 of the Act provides that if a question ·
arises as to whether a member of any Panchayat or Municipal-
ity has become subject to any of the disqualifications specified
in Article 243F or 243V of the Constitution of India or in Section F
11 of the Act, the question shall be referred for decision of the
State Government and its decision shall be final. It has further-
more been provided that before giving any decision on such
question, the State Government shall obtain the opinion of the
Election Commission and shall act in accordance thereof. cs
-"" --; The same, however, would not mean that the Election Tri-
bunal was not competent to decide the question as to whether
the returned candidate was or was not qualified for being cho-
sen as a member of Panchayat or Municipality.
H
1130 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 10. Chapter XII of the Act deals with election petitions.
t
Section 73 of the Act provides for constitution of an Flection
Tribunal. Section 74 mandates that no election shall be called
in question except by an election petition presented in accor-
dance with the provision of Chapter XII. Section 75 lays down
B' that only the Election Tribunal having jurisdiction shall have the
power to adjudicate upon the election petitions. Section 79 pro-
vides that an applicant may in addition to claiming a declara-
tion that the election of all or any of the returned candidates is
void, may claim a further declaration that he himself or any other
candidate may be declared as duly elected. Various provisions
c have been laid down as regards procedures to be followed in
such petitions.
11. When an election petition is filed, all questions which
arise for consideration by the Tribunal must be adjudicated ·upon
D on the basis of the materials brought on record by the parties.
As regards eligibility of a candidate to contest in an election of
the municipalities in question, the Tribunal had jurisdiction to
determine the same. A finding has been arrived at by it on the
basis of the materials brought on record that appellants were
E government employees. It is not denied or disputed that their
terms and conditions of service were governed by the statutory
rules.
In Madhukar GE. Pankakar (supra), whereupon reliance
has been placed by Mr. Leekha, this Court in regard to the ques-
F tion as to whether an employee falls within the description of
,...
"office of profit under government" opined that for holding an
office of profit under government one need not be in the service
of government and there need not be any relationship of mas-
ter and servant. It was furthermore held that all factors need not
G be conjointly present. However, as the petitioners therein were
only insurance medical practitioners, it was held that they did
not hold any office of profit inasmuch as the services rendered .... A

by them have no substantial link with the end, viz., the possible
misuse of position as insurance medical practitioner in doing
H his duties as Municipal President.
CHET RAM v. JIT SINGH & ANR. 1131
[S.S. SINHA, J]

i We are conscious of the fact that Madhukar GE. Pankakar A
(supra) has been referred to subsequently by this Court in Shibu
Soren v. Dayanand Sahay and Others [(2001) 7 SCC 425]
and M. V Rajashekaran and Others v. Vatal Nagaraj and 0th-
ers [(2002) 2 sec 704].
Whereas in the case of S.bibu Soren (supra), the appli- a
cant was nominated by the State Government as the Chairman
--t of the Interim Jharkhand Area Autonomous Council, which was
a statutory organization, in the case of M. V Rajashekaran (su-
pra), the applicant was only a member of a Commission.
In Shibu Soren (supra), this Court held:
c
"36. The question whether a person holds an office of
profit, as already noticed, is required to' be interpreted in
a realistic manner having regard to the facts and
circumstances of each case and relevant statutory D
provisions. While "a strict and narrow construction" may
not be ~dopted which may have the effect of "shutting off
many prominent and other eligible persons to contest the
elections" but at the same time "in dealing with a statutory
provision which imposes a disqualification on a citizen it E.
would be unreasonable to take merely a broad and general
view and ignore the essential points". The approach which
appeals to us to interpret the expression "office of profit"
is that it should be interpreted with the flavour of reality
bearing in mind the object for enactment of Article F
~
102(1 )(a), namely, to eliminate or in any event to reduce
the risk of conflict between the duty and interest amongst
members of the legislature by ensuring that the legislature
does not have persons who receive benefits from the
executive and may thus be amenable to its influence."
G
..A
The legal principles enunciated in Shibu Soren (supra)
1
were followed in M. V Rajashekaran (supra) holding:
II
... A conspectus of the aforesaid decisions of this Court
unequivocally therefore indicates that the question has to
H
1132 SUPREME COURT REPORTS [2008] 14 S.C.R.

A be answered depending upon the facts peculiar to the '+-
case in hand with the object of finding out whether in fact . \
~he Government retains some control over the post yvhich
the incumbent was holding at the time of filing of nomination 1--
and was there any profit attached to the post in question ..
B The underlined idea obviou~ly is, that it should be free
from any pressure from the Government so that there can
be no conflict in discharge of his independent duties as a ~
~
Member of the Legislative Assembly or the Legislative 'r
Council. .. "
c The government employees are prohibited from taking part
in election to a Panchayat or Nagar Panchayat. Such prohibi-
tlon was introduced for obvious reasons. The legislative object I-
· in making the Rules is very clear, viz., the status enjoyed by a
candidate shall not be allowed to be prejudicial vis-a-vis a can-
D didate who does not enjoy such a status.
)...
In Guru Gobinda Basu v. Sankari Prasad Ghosal and 0th-
ers [AIR 1964 SC 254: (1964)-4 SCR 311], this Court held that
an auditor of two government companies-held an office of profit
unger government within the meaning of Article 102(1 )(a) of the
E · Constitution of India stating: ·
"Learned counsel for the respondents has been content to
argue before us on the basis that the two companies having ~
been incorporated under the Indian Companies Act, 1956 I
_, t-
F are separate legal entities distinct from Government. Even ~
on that footing he has contended that in view of the ~
provisions of Section 619 and other provisions of the Indian
Gompanie,s Act, 1956, an auditor appointed by the Central
Government and liable to be removed from office by the
same Government, is a holder of an office of profit under
G
the Government in respect of a company which is really a
.,... >...
hundred per cent Government Company.
12. We think that this contention is correct. We agree with
the High Court that for holding an office of profit under the
H Government, one need not be in the service of Government
CHET RAM v. JIT SINGH & ANR. 1133
[S.S. SINHA, J]

and there need be no relationship of master and servant A
between them. The Constitution itself makes a distinction
between 'the holder of an office of profit under the
Government' and 'the holder of a post or service'tmder the.
Government'; see Articles 309 and 314. The Constitution
has also made a distinction between 'the holder of an ,B
office of profit under the Government' and 'the holder of an
office of profit under a local 'or other authority subject to
the control of Government'; see Articles 58(2) and 66(4).
lrr Maulana Abdul Shakur v. Rishab Chand the appellant
was the manager of a school run by a committee of C
management formed under the provisions of the Durgah
Khwaja Saheb Act, 1955. He was appointed by the
administrator of the Durgah and was paid Rs 100 per ,
month. The question arose whether he was disqualified to
be chosen as a member of Parliament in view of Article
102(1)(a) of the ·Constitution. It was contended for the [)
respondent in that case that under Sections 5 and 9 of the ·
Durgah Khwaja Sat)eb Act, 1955 the Government of India
had the power of appointment and removal of members
of the committee of management as also the power to ·
appoint the administrator in consultation with the 6
committee; therefore the appellant was under the control
and supervision of the Government and that therefore he
was holding an office of profit under the Government of
India. This contention was repe11ed and this Court pointed
out the distinction between 'the holder of an office of profit F,
Government' and 'the holder of an office of profit under
some other authority subject to the control of Government'.
Mr Chaudhuri has contended before us that the decision
is in his favour. He has argued that the appellant in the
present case holds an office of profit under the Durgapur G
Projects Ltd. and the Hindustan Steel Ltd. which are
incorporated under the Indian Companies Act; the fact
that the Comptroller and Auditor-General or even the
Government of India exercises some control does not
make the appellant any the less a holder of office under H
1134 SUPREME COURT REPORTS [2008] 14 S.C.R.

A the two companies. We do not think that this line of
argument is correct."
[See also Pradyut Bordo/oi v. Swapan Roy (2001) 2 SCC
19]

B Jaya Bachchan v. Union of India [(2006) 5 SCC 266] was
another case, where a simil_ar question arose for consideration.
It was held:
"6. Clause (1 )(a) of Article 102 provides that a person
shall be disqualified for being chosen as, and for being,
c a member of either House of Parliament if he holds any
office of profit under the Government of India or the ...
Government of any State, other than an office declared by I-
Parliament by law not to disqualify its holder. The term
"holds an office of profit" though not defined, has been the
D subject-matter of interpretation, in several decisions of
this Court. An office of profit is an office which is capable
of yielding a profit or pecuniary gain. Holding an office
under the Central or State Government, to which some
pay, salary, emolument, remuneration or non,
E compensatory allowance is attached, is "holding an offiee
of profit". The question whether a person holds an office
of profit is required to be interpreted in a realistic manner.
Nature of the payment must be considered as a matter of
substance ather than of form. Nomenclature is not
F important. In fact, mere use of the word "honorarium" cannot
·take the payment out of the purview of profit, if there is
pecuniary gain for the recipient. Payment of honorarium,
in addition to daily allowances in the nature of
compensatory allowances, rent free accommodation and
chauffeur driven car at State expense, are clearly in the
G
nature of remuneration and a source of pecuniary gain
and hence constitute profit. For deciding the question as
to whether one is holding an office of profit or not, what is
relevant is whether the office is capable of yielding a profit
or pecuniary gain and not whether the person actually
H
CHET gAM v. JIT SINGH & ANR. 1135
[S.B. SINHA, J]

obtained a monetary gain. If the "pecuniary gain" is A
"receivable" in connection with the office then it becomes
an office of profit, irrespective of whether such pecuniary
gain is actually received or not. If the office carries with it,
or entitles the holder to, any pecuniary gain other than
reimbursement of out of pockeVactual expenses, then' the s
office will be an office of profit for the purpose of Article
102(1 )(a). This position of law stands settled for over half
a century commencing from the decisions of Ravanna
Su.banna v. G.S. Kaggeerappa, Shivamurthy Swami
lnamdar v. Agadi Sanganna Andanappa, Satruch~rla C
Chandrasekhar Raju v. Vyricherla Pradeep Kumar Qev
and Shibu Soren v. Dayanand Sahay."
12. In Union of India and Others v. Kameshwar Prasad
[(1997) 11 sec 650], it was held:
D
"2. The Extra Departmental Agents system in the
Deps:irtment of Posts and Telegraphs is in vogue since
1854. The object underlying it is to cater to postal needs
of the rural communities dispersed in remote areas. The
system avails of the services of schoolmaste~s,
shopkeepers, landlords and such other persons in a village E
who have the faculty of reasonable standard of literacy
and adequate means of livelihood and who, therefore, in
their leisure can assist the Department by way of gainful
avocation and social service in ministering to the rural
communities in their postal needs, through maintenance F
of simple accounts and adherence to minimum procedural
formalities, as prescribed by the Department for the
purpose. [See: Swamy's Compilation of Service Rules
for Extra Oepartmen~al Staff in Postal Department p. 1,)
. G
3. The Extra Departmental Agents are government servant$ - _
holding a civil post and are entitled to the protection of
Article 311 (2) of the Constitution (See: Supdt. of Post
Offices v. PK. Rajamma). They are governed by separate
set of rules, viz., the Posts and Telegraphs Extra
H
1136 SUPREME COURT REPORTS _ [2008] 14 S.C.R.

A Departmental Agents (Conduct and Service) Rules, 1964
(herejnafter referred to as "the Rules"). The Central Civil
Services (Classification, Control and Appeal) Rules are
not applicab!e to this category of employees in view,of the
notification dated 28-2-1957 issued by the Government
B of India under Rule 3(3) of the·said Rules."
13. In view of the aforementioned authoritative pronounce-
ments, the High Court must be held to be correct in arriving at
its opinion that appellants were disqualified from contesting in
the election of Nagar Panchayats. The appeals are dismissed
·C accordingly. No costs.
R.P. Appeals dismissed.