Supreme Court of India
STATE ELECTION COMMISSIONER, BIHAR PATNA & OTHERSversusJANAKDHARI PRASAD AND OTHERS
- Citation
- 2018 INSC 569
- Decided
- 3 July 2018
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
An Assistant Government Advocate does not fall within the meaning of "in service" of the State Government and therefore is not disqualified under Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993.
Summary
The State Election Commissioner of Bihar disqualified Janakdhari Prasad, an elected member of a Panchayat Samiti, on the ground that his appointment as an Assistant Government Advocate placed him in the service of the State Government under Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993. The High Court and the Division Bench upheld the challenge, holding that the appointment did not create a master‑servant relationship and therefore did not constitute "service" of the State. On appeal, the Supreme Court examined the meaning of "service" versus "office of profit", considered the nature of the appointment, the absence of fixed remuneration, and the lack of disciplinary control by the State. It concluded that the Assistant Government Advocate is a professional engagement akin to a lawyer‑client relationship, not a public servant relationship, and thus the respondent was not disqualified. The appeal was dismissed.
Issues considered
- Whether an Assistant Government Advocate is "in service" of the State Government within the meaning of Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993.
- Whether the appointment creates a master‑servant relationship sufficient to attract disqualification.
- Whether the term "service" can be equated with "office of profit" for the purpose of the disqualification provision.
- Whether the statutory restriction on contesting elections can be applied to the respondent.
Legislation cited
- Bihar Panchayat Election Rules, 1995s. Rule 122
- Bihar Panchayat Raj Act, 1993s. 139(1)(c), s. 139(1)(d)
- Code of Criminal Procedures. 24, s. 321
Subjects
disqualificationserviceoffice of profitBihar Panchayat Raj Actelection lawmaster‑servant relationshipassistant government advocatestatutory interpretation
Judgment
112 [2018]REPORTS
SUPREME COURT 5 S.C.R. 112 [2018] 5 S.C.R.
A STATE ELECTION COMMISSIONER, BIHAR PATNA &
OTHERS
v.
JANAKDHARI PRASAD AND OTHERS
B (Civil Appeal No. 1463 of 2008)
JULY 03, 2018
[DIPAK MISRA,CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Bihar Panchayat Raj Act, 1993 – s.139(1)(c) –
C Disqualification – Election of respondent to the post of member in
the Panchayat Samiti – Disqualified by the Election Commission –
Disqualification on the ground that respondent was appointed as
Assistant Government Advocate under the State Government and
was receiving fees for the cases conducted by him from the
D Government and hence, was deemed to be in service of the State –
High Court set aside the order – Division Bench upheld the same –
On appeal, held: There was no master-servant relationship –
Respondent was not amenable to any disciplinary proceedings –
No records to show that he was getting any remuneration – Even if
some remuneration is attached to the office, he could not be treated
E to be under the service of the State Government – Aspects essential
for establishing a relationship of master and servant absent – Thus,
the returned candidate could not have been treated to be in service
under the State Government – Order passed by the High Court
upheld.
F Dismissing the appeal, the Court
HELD: 1.1 In Section 139(1)(c) of the Bihar Panchayat Raj
Act, 1993, there is a postulate that a person shall be disqualified
if such a person is in the service of Central or State Government
or any local authority. Section 139(1)(d) lays down a disqualification
G if the person is in service of such institution receiving aids from
Central or State Government or any local authority. The key word
in both the provisions pertains to ‘service’. [Para 10][121-B-C]
1.2 In the instant case, the first respondent was treated as
disqualified on the foundation that he was in service of the
H
112
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 113
JANAKDHARI PRASAD
Government. Analyzing the letter of appointment issued by the A
Government of Bihar, Legal Department to the District
Magistrate, the Election Commission held that the elected
candidate was holding a post under the State Government and,
therefore, he was disqualified under sub-section (l)(c) of Section
139 of the Act. On a careful scrutiny of the communication, it is
B
quite vivid that the respondent No. l was appointed to the post of
Assistant Government Advocate in the panel of Assistant
Government Advocates constituted for the courts at Nalanda and
Hilsa. There is no mention of any fixed remuneration. In the
obtaining factual score, would it be appropriate to accept the
submission of the appellants that the elected candidate was in C
the service of the government. The legislature has, in exercise
of its legislative power and wisdom, not used the words “office of
profit”. Therefore, whether such a letter of appointment can be
construed to determine if the person is holding an office of profit
is not necessary to be addressed. In the instant case, the election
D
pertains to a Panchayat Samiti which basically relates to the
concept at the grass root level. The legislature, as it seems, has
not thought of office of profit because had it thought so it would
have provided in that manner. The legislature had provided a
disqualification keeping in view the conflict of interest. The
absence of such a provision possibly is to include persons from E
different fields as long as they are not in service under the
government or a service in an institution receiving aids from the
Central or State Government or any local authority. The
legislature, as the postulate stands today, has confined to
categories of service. It depends on the legislative wisdom. The
F
nature of disqualification has to be strictly construed keeping in
mind that right to contest an election is not a fundamental right
but the said right may be curtailed under valid statutory provision.
[Paras 25, 26 and 27][132-F; 133-E-H; 134-A-C]
1.3 It has been held by this Court that a person holding a
post under a State is a person serving or employed under the G
State. There is a relationship of master and servant between the
State and a person holding a post under it. The existence of this
relationship is indicated by the State’s right to select and appoint
the holder of the post, its right to suspend and dismiss him, its
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114 SUPREME COURT REPORTS [2018] 5 S.C.R.
A right to control the manner and method of his doing the work and
the payment by it of his wages or remuneration. A relationship of
master and servant may be established by the presence of all or
some of these indicia, in conjunction with other circumstances
and it is a question of fact in each case whether there is such a
relation between the State and the alleged holder of a post. [Para
B
28][134-D-F]
State of Assam and others v. Kanak Chandra
Dutta 1967 AIR 884 : [1967] SCR 679 – followed.
1.4 As has been held by the Single Judge and rightly so,
C there is no master-servant relationship and the respondent was
not amenable to any disciplinary proceeding. He has correctly
expressed the view that the conduct of the advocate is subject to
the discipline of the Bar Council. There is nothing on record to
show that he was getting any remuneration. Even if some
remuneration is attached to the office, he cannot be treated to be
D under the service of the State Government. The aspects which
are essential for establishing a relationship of master and servant
are absent. Therefore, the returned candidate could not have
been treated to be in service under the State Government. [Para
33][137-D-F]
E Ravanna Subanna v. G.S. Kaggeerappa 1954 AIR 653;
Sakhawant Ali v. State of Orissa 1955 AIR 166 : [1955]
SCR 1004; Guru Gobinda Basu v. Sankari Prasad
Ghosal and others 1964 AIR 254 : [1964] SCR 311;
Maulana Abdul Shakur v. Rikhab Chand 1958 AIR 52 :
F [1958] SCR 387; Mahadeo v. Shantibhai and others
[1969] SCR 422; Srimati Kanta Kathuria v. Manak
Chand Surana [1970] 2 SCR 835 : (1969) 3 SCC 268;
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani
and others [1976] 3 SCR 832 : (1977) 1 SCC 70; Ashok
Kumar Bhattacharyya v. Ajoy Biswas and others [1985]
G 2 SCR 50: (1985) 1 SCC 151; Shibu Soren v. Dayanand
Sahay and others [2001] 3 SCR 1020 : (2001) 7 SCC
425; Jaya Bachchan v. Union of India and others
[2006] 2 Suppl. SCR 110 : (2006) 5 SCC 266; Roshan
Lal Tandon v. Union of India 1967 AIR 1889 : [1968]
H SCR 185; Mundrika Prasad Singh v. State of Bihar
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 115
JANAKDHARI PRASAD
[1980] 1 SCR 759 : (1979) 4 SCC 701; Mukul Dalal A
and others v. Union of India and others [1988] 3 SCR
868 : (1988) 3 SCC 144; Kumari Shrilekha Vidyarthi
and others v. State of U.P. and others [1990] 1 Suppl.
SCR 625 : (1991) 1 SCC 212 – referred to.
Great Western Railway Company v. Beater 8 Tax Cases B
231; Mcmillan v. Guest [1942] AC 561 – referred to.
Case Law Reference
1954 AIR 653 referred to Para 12
[1955] SCR 1004 referred to Para 13 C
[1964] SCR 311 referred to Para 14
[1958] SCR 387 referred to Para 15
[1969] SCR 422 referred to Para 16
[1970] 2 SCR 835 referred to Para 18 D
[1976] 3 SCR 832 referred to Para 19
[1985] 2 SCR 50 referred to Para 22
[2001] 3 SCR 1020 referred to Para 23
[2006] 2 Suppl. SCR 110 referred to Para 24 E
[1967] SCR 679 followed Para 28
[1968] SCR 185 referred to Para 29
[1990] 1 Suppl. SCR 625 referred to Para 30
[1980] 1 SCR 759 referred to Para 31 F
[1988] 3 SCR 868 referred to Para 31
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1463
of 2008.
From the Judgment and Order dated 27.10.2005 of the High Court G
of Judicature at Patna in LPA No. 879 of 2004.
Akhilesh Kumar Pandey and Brahma Kr. Pathak, Advs. for the
Appellant.
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116 SUPREME COURT REPORTS [2018] 5 S.C.R.
A The Judgment of the Court was delivered by
DIPAK MISRA, CJI 1. Janakdhari Prasad, the 1st respondent
herein, was elected in the year 2001 as a member of Panchayat Samiti,
Nagarnausa. On 13th February, 2004, the fifth respondent, Ravindra Nath
Sharma, filed a petition before the State Election Commission, Bihar
B (for short “the Commission”) contending, inter alia, that the respondent
No. 1 was working as an Assistant Government Pleader in Hilsa, sub-
division of District Nalanda and, therefore, he was disqualified to hold
the post of member, Panchayat Samiti in view of Section 139(l)(c) of the
Bihar Panchayat Raj Act, 1993 (for brevity, ‘the Act’).
C 2. The Election Commission, in order to decide the issue whether
the 1st respondent was in service of the State Government within the
sweep of Section 139(l)(c) of the Act, referred to the appointment letter
issued by the Law Department, Government of Bihar, vide which the
respondent herein was appointed as an Advocate in the panel of Assistant
Government Advocates and thereafter observed that the said respondent
D was holding a post under the State Government and was receiving fees
for the cases conducted by him from the Government and hence, he
would be deemed to be in service of the State. Being of this view, the
Election Commission vide order dated 29.03.2004 disqualified the
respondent under Section 139(l)(c) of the Act from the post of Member
E in the Panchayat Samiti.
3. Aggrieved by this Order of the Commission, the 1 st respondent
knocked at the doors of the High Court of Judicature at Patna by
preferring a Writ Petition (CWJC) No. 4322 of 2004 under Article 226
of the Constitution of India for quashment of the order of the Commission.
F The learned Single Judge opined that the word “service” has not been
defined under the Act and hence, its meaning has to be ascertained in
the context it is used and the context in which it is used denotes various
classes or category of posts within it. The learned Single Judge further
observed that no hard and fast rule can be laid to ascertain as to which
category of office shall come within the expression “service”, for host
G of factors have to be taken into consideration to determine such
relationship. He further proceeded to observe that none of the factors
may be conclusive and no single factor may be considered absolutely
essential. Eventually, he stated:-
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STATE ELECTION COMMISSIONER, BIHAR PATNA v. 117
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
“In my opinion, for bringing an office within the expression ‘service’ A
of State Government there has to be a relationship of Master and
Servant, age of entering and retirement, scale of pay or fixed
remuneration, the Conduct and Discipline Rules and such other
factors. The presence of one ingredient or the other may not
necessarily bring a particular office within the expression ‘service’
B
in the context of disqualification but presence of some or the other
is necessary for the purpose”
Thereafter, the learned Single Judge examined the nature of
appointment of a Government pleader who is paid a retainer-ship as fee
and differentiated between the nature of appointment of an Assistant
Government Pleader from that of a Government Pleader and came to C
hold that so far as the Assistant Government Pleader is concerned, he is
appointed to assist the Government Pleader and for the professional
work rendered, he is paid remuneration but not paid any retainer fee. He
further expressed the view that a Government Pleader is not entitled to
appear against the State Government but an Assistant Government D
Pleader, can appear, against the State Government in a case. The
Assistant Government Pleader is basically an Advocate on the roll of
the State Bar Council and besides giving professional advice to other
litigants by virtue of his/her engagement by the State Government, he/
she also advises and represents the State Government in Courts of Law.
The appointment of the Government Pleader is governed by the executive E
instruction which is a tenure appointment and he remains a legal
practitioner for all purpose and intent. That apart, the engagement of an
advocate as an Assistant Government Pleader is a professional
engagement and the relationship between the State and that of the
Assistant Government Pleader is that of a lawyer and client and not of F
Master and Servant. There is neither minimum or maximum age limit
for engagement of a person as an Assistant Government Pleader nor
there is any age of retirement. Assistant Government Pleader is paid
fees for the professional work done by him and his remuneration is not
fixed in a particular time scale. Additionally, no Discipline Rules govern
his conduct and he is bound by same Code of Conduct as any other G
lawyer. Considering all the aspects in a cumulative manner, he arrived at
the conclusion that the Assistant Government Pleader cannot be said to
be in service of the State Government so as to bring him within the
mischief of Section 139(l)(c) of the Act.
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118 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 4. On the issue of office of profit, the learned Single Judge observed
that the expression “in service” of the State Government and the
expression “office of profit” in State Government are not synonymous
and, therefore, a person may hold an office of profit under the State but
that does not amount to the fact that he is “in service” of the State. With
the aforesaid reasoning, he set aside the order of the Commission.
B
5. Aggrieved by the aforesaid view, the State Election
Commissioner filed an appeal, being L.P.A No. 879 of 2004, before a
Division Bench of the High Court, which concurred with the view
expressed by the Single Judge and dismissed the appeal vide impugned
judgment and order dated 27.10.2005. The said dismissal has led to
C filing of the present appeal by special leave.
6. Criticising the impugned judgment and order of the High Court,
it is submitted by the learned counsel for the appellants that the 1st
respondent was appointed in respect of a sanctioned post and, therefore,
he is in service of the Government which would indubitably disqualify
D him to remain as a member. It is his further submission that the word
“service” contextually is of wider import and it has to be conferred a
purposive meaning so that the democracy is sustained at the ground
level and the elected representatives remain connected to their electorate.
7. Despite service of notice, none has appeared on behalf of the
E respondents.
8. To appreciate the controversy at hand, we may refer to Article
243F(1)(b) of the Constitution of India. It reads as follows:-
“Article 243F. Disqualifications for membership.- (1) A
F person shall be disqualified for being chosen as, and for being, a
member of a Panchayat-
xxxx xxxx xxxx
(b) if he is so disqualified by or under any law made by the
Legislature of the State.”
G Article 243F(1)(b) makes it quite clear that a member of Panchayat
shall stand disqualified by or under any law made by the Legislature of
the State. The Constitution of India has left it to the wisdom of the State
Legislature.
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 119
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
9. The Legislature of the State of Bihar has enacted the Act and A
Section 139 of the Act stipulates that the persons disqualified shall cease
to hold the office. The said provision is as under:-
“Section 139. Disqualification.- (1) Notwithstanding anything
contained in this Act, a person shall be disqualified for election or
after election for holding the post as Mukhia, member of the Gram- B
Panchayat, Sarpanch, Panch of the Gram Katchahri, member of
the Panchayat Samiti and member of Zila Parishad, if such person
(a) is not citizen of India;
(b) is so disqualified by or under any law for the time being in
force for the purposes of elections to the legislature of the State: C
Provided that no person shall be disqualified on the ground that he
is less than twenty five years of age, if he has attained the age of
twenty one years;
(c) is in the service of Central or State Government or any local D
authority;
(d) is in service of any such institution receiving aids from Central
or State government or any local authority;
(e) has been adjudged by a competent court to be of unsound
mind; E
(f) has been dismissed from the service of Central or State
Government or any local authority for misconduct and has been
declared to be disqualified for employment in the public service;
(g) has been sentenced by a criminal court whether within or out
of India to imprisonment for an offence, other than a political F
offence, for a term exceeding six months or has been ordered to
furnish security for good behaviour under Section 109 or Section
110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and
such sentence or order not having subsequently been reversed;
(h) has under any law for the time being in force become ineligible G
to be a member of any local authority;
(i) holds any salaried office or office of profit under the Panchayat;
(j) has been found guilty of corrupt practices.
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120 SUPREME COURT REPORTS [2018] 5 S.C.R.
A Provided that on being found guilty of corrupt practices, the
disqualification shall cease after six years of general election.
(2) If any question arises as to whether a member of a Panchayat
at any level has become subject to any of the disqualifications
mentioned in sub-section (1), the question shall be referred for
B the decision of such authority and in such manner as the
Government may by law provide.
(3) If a person, who is chosen as a member of Panchayat, a
Mukhia, a Sarpanch, is or becomes a member of the Lok Sabha,
Rajya Sabha, Legislative Assembly, Legislative Council, or is or
C becomes a municipal councillor or a councillor of a Municipal
Corporation or a member of Sanitary Board or a member of a
notified area committee or a member of any other Panchayat,
Mukhia, Sarpanch, then within fifteen days from the date of
commencement of the term of office of a member of Lok Sabha,
Rajya Sabha, Legislative Assembly, Legislative Council or of a
D councilor of municipality or Municipal Corporation or a member
of Sanitary Board or notified area committee or a member of
other Panchayat or Mukhia or Sarpanch, his seat in the Panchayat
shall become vacant unless he has previously resigned his seat in
the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative
E Council, Municipality or the Municipal Corporation, Sanitary Board
or the notified area committee or of any such Panchayat as the
case may be.”
Rule 122 of the Bihar Panchayat Election Rules, 1995, as amended
in 2002, empowers the State Election Commission to decide
F disqualification of an elected member of a Panchayat. The said Rule
reads as follows:-
“Rule 122. Under provisions of Section 139(2) of the Bihar
Panchayat Raj Act, 1993, the State Election Commission shall be
the competent authority to decide whether a member of the
G Panchayat at any level has become subject to any of the
disqualifications mentioned in Section 139(1) of the Act. The matter
of disqualification may be brought to the notice of the State Election
Commission in the form of a complaint, application or information
by any person or authority. The State Election Commission may
also take suo moto cognizance of such matters and decide such
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STATE ELECTION COMMISSIONER, BIHAR PATNA v. 121
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
matters expeditiously after allowing sufficient opportunity to the A
affected parties of being heard.”
We have reproduced the relevant Section and the Rule to
appreciate the controversy in entirety.
10. In the case at hand, we are concerned with Section 139(1)(c)
and (d) of the Act. In Section 139(1)(c), there is a postulate that a person B
shall be disqualified if such a person is in the service of Central or State
Government or any local authority. Section 139(1)(d) lays down a
disqualification if the person is in service of such institution receiving
aids from Central or State Government or any local authority. As is
noticeable, the key word in both the provisions pertains to ‘service’. C
11. As has been stated earlier, the learned single Judge has drawn
a distinction between “office of profit” and “service under the
Government”. We think it apposite to restate the legal position, the
distinction between the two facets as above and thereafter x-ray the
provision, the legislative purpose behind the same and the nature of D
appointment.
12. A three-Judge Bench in Ravanna Subanna v. G.S.
Kaggeerappa1, was dealing with the acceptance of nomination papers
of the appellant on the ground that he was holding an office of profit
under the Government at the relevant time as he was the Chairman of E
Taluk Development Committee and was, hence, disqualified for being
chosen as a Councillor under Section 14 of the Mysore Town
Municipalities Act, 1951 (for short, “1951 Act”). The objection was
overruled by the Returning Officer and eventually the appellant was
declared elected. Challenging the election, the respondent filed an election
petition before the concerned Sub-Judge who dismissed the petition opining F
that the elected candidate was not holding an office of profit under the
Government as contemplated by Section 14 of the 1951 Act. The said
judgment was reversed by the Division Bench of the High Court in an
appeal and respondent was declared elected. Section 14(1) enumerated
various grounds of disqualification and one of such grounds was that of G
a person holding an office of profit under the Government of India or the
Government of any State specified in the First Schedule. It further
provided that if any person is elected as a councilor in contravention of
the provisions, his seat shall be deemed to be vacant. The Court addressed
1
AIR 1954 SC 653
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122 SUPREME COURT REPORTS [2018] 5 S.C.R.
A to the issue of disqualification and posed the question whether the
appellant held an office of profit as provided for under Section
14(1)(A)(a)(iii) of the 1951 Act. The three-Judge Bench expressed
thus:-
“12. … The plain meaning of the expression seems to be that an
B 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.”
C
Analysing the facts of the case in detail, the Court ruled:-
“12. … 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
D 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
E office of the Chairman or of the members should carry any profit
or remuneration.”
And, again:-
“13. … it cannot be argued that even if a Chairman or a member
F of a Government committee works in a purely honorary capacity
and there is no remuneration attached to the office, he will still be
regarded as a person holding office of profit in view of the provisions
of the section. …”
After expressing the aforesaid view, the three-Judge Bench of
this Court reversed the judgment of the High Court.
G
13. In Sakhawant Ali v. State of Orissa2, the issue arose whether
the nomination papers were correctly rejected by the Election Officer
on the ground that the appellant therein was employed as a legal
practitioner against the Municipality in a case under Section 198 of the
2
AIR 1955 SC 166
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STATE ELECTION COMMISSIONER, BIHAR PATNA v. 123
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
Bihar and Orissa Municipal Act. The candidate whose nomination paper A
was rejected moved the High Court under Article 226 of the Constitution
praying for a writ or order of prohibition to the State Government and
the Election Officer restraining them from holding the election but the
High Court rejected the said prayer. The Court took note of the fact that
the Orissa Municipal Act, 1950 was passed by the State Legislature.
B
Section 16 of the said Act prescribed the disqualification of a candidate
for election and it provided that no person shall be qualified for election
to a seat in a municipality if such person is employed as a paid legal
practitioner on behalf of the municipality or as legal practitioner against
the municipality. A contention was raised before the High Court that the
person sought to contest the election could not be declared to be C
disqualified as the said Act had come into operation on 15th April, 1951
and consequently, he could not have been disqualified from 15th March,
1951 when he filed the nomination papers. The Constitution Bench
analysed Section 1 of the said Act and opined that the disqualification
was attracted regard being had to the sub-section (5) of Section 1 of the
D
said Act that had stipulated that the said provision in express terms
provided that after the Act had received the assent of the Governor
elections could be held under the Act but were only to take effect on the
Act coming into force, which meant the coming into force of the Act in
such area or areas on such date or dates which the State Government
might appoint from time to time under Section 1(3) of the Act. There E
was thus contemplation under the very provisions of Section 1(5) to the
holding of elections under the Act in spite of the fact that the Act had not
come into force in a particular area. The Court further observed:-
“11. The right of the appellant to practice the profession of law
guaranteed by Article 19(1)(g) cannot be said to have been violated, F
because in laying down the disqualification in Section 16(1)(ix) of
the Act the Legislature does not prevent him from practising his
profession of law but it only lays down that if he wants to stand as
a candidate for election he shall not either be employed as a paid
legal practitioner on behalf of the municipality or act as a legal
practitioner against the municipality. There is no fundamental right G
in any person to stand as a candidate for election to the
municipality. The only fundamental right which is guaranteed is
that of practising any profession or carrying on any occupation,
trade or business. There is no violation of the latter right in
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124 SUPREME COURT REPORTS [2018] 5 S.C.R.
A prescribing the disqualification of the type enacted in Section
16(1)(ix) of the Act.”
14. A Constitution Bench in Guru Gobinda Basu v. Sankari
Prasad Ghosal and others3 was dealing with an issue wherein the
appellant was a chartered accountant and a partner of firm of auditors
B carrying on business under the name and style of a company and the
said firm acted as the auditor of certain companies and corporations.
The appellant carried with it the right to receive fees, remuneration as
Director of the West Bengal Financial Corporation. The Court, analyzing
Article 102(l)(a) of the Constitution and concurring with the view of the
High Court stated thus:-
C
“… We agree with the High Court that for holding an office of
profit under the Government, one need not be in the service of
Government and there need be no relationship of master and
servant between them., The Constitution itself makes a distinction
between ‘the holder of an office of profit under the Government’
D and ‘the holder of a post or service under the Government’; see
Arts. 309 and 314. …”
15. The Court referred to the decision in Maulana Abdul Shakur
v. Rikhab Chand and another4. In the said case, the question arose
before a Constitution Bench whether the returned candidate was holding
E an office of profit, for he was the manager of a school run by a committee
of management formed under the provisions of Durgah Khwaja Saheb
Act, 1955. It was contended before the Court that the Government of
India had the power of appointment and removal of the members of the
committee of management, as also the power to appoint the administrator
F in consultation with the committee and, therefore, the returned candidate
was under the control and supervision of the Government and hence, he
was holding an office of profit under the Government of India. The
Court repelled the submission by drawing a distinction between the holder
of an office of profit under the Government and the holder of an office
of profit under some other authority subject to the control of Government.
G The Court expressed its opinion thus:-
“No doubt the Committee of the Durgah Endowment is to be
appointed by the Government of India, but it is a body corporate
3
AIR 1964 SC 254
4
AIR 1958 SC 52
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 125
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
with perpetual succession acting within the four corners of the A
Act. Merely because the Committee or the members of the
Committee are removeable by the Government of India or the
Committee can make bye-laws prescribing the duties and powers
of its employees cannot in our opinion convert the servants of the
Committee into holders of office of profit under the Government
B
of India. The appellant is neither appointed by the Government of
India nor is removable by the Government of India nor is he paid
out of the revenues of India. The power of the Government to
appoint a person to an office of profit or to continue him in that
office or revoke his appointment at their discretion and payment
from out of Government revenues are important factors in C
determining whether that person is holding an office of profit under
the Government though payment from a source other than
Government revenue is not always a decisive factor. But the
appointment of the appellant does not come within this test.”
The aforesaid passage lucidly states what basically constitutes an D
office of profit.
16. In Mahadeo v. Shantibhai and others5, question arose
whether a lawyer had incurred disqualification on account of holding an
office of profit under the Government. The appellant was kept on the
panel of Railway Pleaders for conducting suits filed against the Union of E
India in the courts of Ujjain on the terms and conditions therein mentioned.
One of the terms shows that the appellant was ordinarily to be entrusted
with cases up to valuation of rupees three thousand only. Another
condition was that he would not accept any brief against any Railway in
any court. Clause (13) of the terms of the appointment letter read as
follows:- F
“You will be expected to watch cases coming up for hearing against
this Railway in the various courts at UJB and give timely intimation
of the same to this office. If no instructions regarding any particular
case are received by you, you will be expected to appear in the
court and obtain an adjournment to save the ex parte proceedings G
against this Railway in the court. You will be paid Rs 5 for every
such adjournment if you are not entrusted with the conduct of the
suit later on.”
5
(1969) 2 SCR 422
H
126 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 17. The Court referred to the observations of House of Lords in
Mcmillan v. Guest6 wherein Lord Wright, delivering the opinion, said:-
“The word “office” is of indefinite content. Its various meanings
cover four columns of the New English Dictionary, but I take as
the most relevant for purposes of this case the following: “A position
B or place to which certain duties are “attached, especially one of a
more or less public character.”
Eventually, the Court expressed the view:-
“If by “office” is meant the right and duty to exercise an
employment or a position to which certain duties are attached as
C observed by this Court, it is difficult to see why the engagement
of the appellant in this case under the letter of February 6, 1962
would not amount to the appellant’s holding an office. By the said
letter he accepted certain obligations and was required to discharge
certain duties. He was not free to take a brief against the Railway
D Administration. Whether or not the Railway Administration thought
it proper to entrust any particular case or litigation pending in the
court to him, it was his duty to watch all cases coming up for
hearing against the Railway Administration and to give timely
intimation of the same to the office of the Chief Commercial
Superintendent. Even if no instructions regarding any particular
E case were given to him, he was expected to appear in court and
obtain an adjournment. In effect this cast a duty on him to appear
in court and obtain an adjournment so as to protect the interests
of the Railway. The duty or obligation was a continuing one so
long as the railway did not think it proper to remove his name
F from the panel of Railway lawyers or so long as he did not intimate
to the Railway Administration that he desired to be free from his
obligation to render service to the Railway. In the absence of the
above he was bound by the terms of the engagement to watch
the interests of the Railway Administration, give them timely
intimation of cases in which they were involved and on his own
G initiative apply for an adjournment in proceedings in which the
Railway had made no arrangement for representation. It is true
that he would get a sum of money only if he appeared but the
possibility that the Railway might not engage him is a matter of no
moment. An office of profit really means an office in respect of
6
[1942] AC 561
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 127
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
which a profit may accrue. It is not necessary that it should be A
possible to predicate of a holder of an office of profit that he was
bound to get a certain amount of profit irrespective of the duties
discharged by him.”
In the aforesaid judgment, as we notice, the Court laid emphasis
on the terms of appointment and also on the concept of accrual of profit. B
7
18. In Srimati Kanta Kathuria v. Manak Chand Surana , the
issue that arose for consideration was whether the appellant was holding
an office of profit within the meaning of Article 191 of the Constitution
or not. The appellant was appointed to assist the Government Advocate
in the absence of any Assistant Counsel. The letter of appointment C
stipulated that the appellant was appointed as a Special Government
Pleader to conduct the particular case on behalf of the State of Rajasthan
alongwith Government Advocate. The Government laid down the fees
payable to the appellant. In the said case, the High Court opined that the
appellant held an office of profit. The majority referred to the decision in
Great Western Railway Company v. Beater8 and Mcmillan case and D
referring to Mahadeo (supra) opined:-
“29. That case in no way militates against the view which we
have taken in this case. That case is more like the case of a
standing Counsel disqualified by the House of Commons. It is
stated in Rogers (on Elections Vol. II) at p. 10: E
“However, in the Cambridge case (121 Journ. 220), in 1866,
the return of Mr Forsyth was avoided on the ground that he held
a new office of profit under the Crown, within the 24th section. In
the scheme submitted to and approved by Her Majesty in Council
was inserted the office of standing counsel with a certain yearly F
payment (in the scheme called ‘salary’) affixed to it, which Mr
Forsyth received, in addition to the usual fees of counsel. The
Committee avoided the return.”
The majority also referred to the decision in Sakhawant Ali
(supra) which dealt with an instance where the legislature had provided G
that the paid legal practitioner could not stand in the municipal elections.
Elucidating further, it has been expressed thus:-
7
(1969) 3 SCC 268
8
8 Tax Cases 231,235
H
128 SUPREME COURT REPORTS [2018] 5 S.C.R.
A “36. In view of the above reasons, we must hold that the appellant
was not disqualified for election under Article 191 of the
Constitution. But assuming that she held an office of profit, this
disqualification has been removed retrospectively by the Rajasthan
Legislative Assembly by enacting the impugned Act.”
B 19. A two-Judge Bench in Madhukar G.E. Pankakar v. Jaswant
Chobbildas Rajani and others9was dealing with the election of the
President of a Municipal Council under the Maharashtra Municipalities
Act, 1965. An unsuccessful candidate challenged the election of the
returned candidate singularly on the ground that the candidate was
disqualified under Section 16(1)(g) of the said Municipal Act inasmuch
C as on the date of nomination he was holding an office of profit under the
Government, as he was then, admittedly working as a panel doctor
appointed under the Employees’ State Insurance Scheme (ESI Scheme),
a beneficial project contemplated by the Employees’ State Insurance
Act, 1948. The returned candidate, a doctor, was admittedly on the date
D of filing of nomination, functioning as such but had resigned before actual
polling took place. The Election Tribunal accepted the stand of the election
petitioner and declared the election of the returned candidate void. It
further proceeded to hold that the election petitioner, being the sole
surviving candidate, was the President. Commenting on the election
petition in the backdrop of facts, Krishna Iyer, J., who penned the
E judgment, wrote:-
“6. It is plain democratic sense that the electoral process should
ordinarily receive no judicial jolt except where pollution of purity
or contravention of legal mandates invite the court’s jurisdiction
to review the result and restore legality, legitimacy and respect
F for norms. The frequency of forensic overturning of poll verdicts
injects instability into the electoral system, kindles hopes in worsted
candidates and induces post-mortem discoveries of
“disqualifications” as a desperate gamble in the system of
fluctuating litigative fortunes. This is a caveat against overuse of
G the court as an antidote for a poll defeat. Of course, where a
clear breach is made out, the guns of law shall go into action, and
not retreat from the rule of law.”
20. In the said case, Section 16(1)(g) which provided for office of
profit, read thus:-
9
(1977) 1 SCC 70
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 129
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
“16(l)(g): No person shall be qualified to become a Councillor A
whether by election, co-option or nomination, who is a subordinate
officer or servant of Government or any local authority or holds
an office of profit under Government or any local authority;”
It was contended before the Election Tribunal that the elected
candidate was not entitled to become a councilor as he held an office of B
profit under the Government. To appreciate the concept of office of
profit, this Court referred to Section 58 of the ESI Act, 1948, ESI Scheme
and opined that the elected candidate although was a private doctor and
running a private clinic was also an insurance medical practitioner subject
to the discipline, directions, obligations and control of the relevant officers
appointed by the State Government in implementing the medical benefit C
scheme. His letter of appointment read that being a medical practitioner
‘appointed as such to provide medical benefit under the Act and to perform
such other functions as may be assigned to him’.
21. We may note with profit that in the said case, Krishna Iyer, J.
clarified the conflict between Mahadeo (supra) and Srimati Kanta D
Kathuria (supra) by stating thus:-
“41. … Judicial technology sometimes distinguishes, sometimes
demolishes earlier decisions; the art is fine and its use skilful.
Both the cases dealt with advocates and we have referred to
them in the earlier resume of precedents. Even so, a closer look E
will disclose why we follow the larger Bench (as we are bound
to, even if there is a plain conflict between the two cases). Justice
Rowlatt’s locus classicus in Great Western Rly. Co. (followed
by this Court in many cases) helps us steer clear of logomachy
about “office” especially since the New English Dictionary fills F
four columns. Rowlatt, J. rivetted attention on a subsisting,
permanent, substantive position, which had an existence
independent from the person who filled it, which went on and was
filled in succession by successive holders’. So, the first step is to
enquire whether “a permanent, substantive position, which had
an existence independent from the person who filled it” can be G
postulated in the case of an insurance medical practitioner. By
contrast, is the post an ephemeral, ad hoc, provisional incumbency
created, not independently but as a list or panel elastic and expiring
or expanding, distinguished from a thing that survives even when
H
130 SUPREME COURT REPORTS [2018] 5 S.C.R.
A no person had been appointed for the time being? “Thin partitions
do their bounds divide”, we agree, but the distinction, though
delicate, is real. An office of insurance medical practitioner can
be conjured up if it exists even where no doctor sits in the saddle
and has duties attached to it qua office. We cannot equate it with
the post of a peon or security gunman who too has duties to perform
B
or a workshop where government vehicles are repaired, or a milk
vendor from an approved list who supplies milk to government
hospitals. A panel of lawyers for legal aid to the poor or a body of
doctors enlisted for emergency service in an epidemic outbreak
charged with responsibilities and paid by the Government cannot
C be a pile of offices of profit. If this perspective be correct, Kanta
and Mahadeo fit into a legal scheme. In the former, an ad hoc
Assistant Government Pleader with duties and remuneration was
held to fall outside “office of profit”. It was a casual engagement,
not exalted to a permanent position, occupied pro tempore by A
or B. In Mahadeo, a permanent panel of lawyers “maintained by
D
the Railway Administration” with special duties of a lasting nature
constituted the offices of profit — more like standing counsel. …”
[Emphasis supplied]
We may hasten to say that we concur with the said harmonization
E as we find that it is founded on apposite reasoning and also in accord
with the precedents holding the view as regards ‘office of profit’. Be it
noted, eventually, the Court ruled that the appellant therein a doctor
functioning under the ESI Scheme was not holding an office of profit.
22. In Ashok Kumar Bhattacharyya v. Ajoy Biswas and others10,
F a three-Judge Bench while dealing with the issue 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 of Tripura
within the meaning of Article 102(1)(a) of the Constitution, for on the
relevant date he was an Accountant- in-charge of the Agartala
Municipality. After referring to many an authority, the Court ruled that
G 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. The Court further opined:-
10
(1985) 1 SCC 151
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 131
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
“21. … Local Authority as such or any other authority does not A
cease to become independent entity separate from Government.
Whether in a particular case it is so or not must 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, holders of office of profit under the Government
B
would be to obliterate the specific differentiation made under
Article 58(2) of the Constitution and to extend disqualification
under Article 102(1)(a) to an extent not warranted by the language
of the article.”
On the basis of the aforesaid, ultimately the three-Judge Bench
recorded its finding that the first respondent did not hold an office of C
profit under the Government of Tripura on the date of filing of the
nomination.
23. In Shibu Soren v. Dayanand Sahay and others11, a three-
Judge Bench, while dealing with the office of profit, opined that the
expression “office of profit” has not been defined either in the Constitution D
or in the Representation of People Act. Anaylsing further, the Court
proceeded to state that in common parlance, the expression ‘profit’
connotes an idea of some pecuniary gain. If there is really some gain, its
label - ‘honorarium’ - ‘remuneration’ - ‘salary’ is not material. It is the
substance and not the form which matters and even the quantum or E
amount of “pecuniary gain” is not relevant. What needs to be found out
is whether the amount of money receivable by the concerned person in
connection with the office he holds, gives to him some “pecuniary gain”,
other than as ‘compensation’ to defray his out of pocket expenses, which
may have the possibility to bring that person under the influence of the
executive, which is conferring that benefit on him. Eventually, the Court F
held that:-
“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 provisions. While ‘a strict and narrow construction’ may G
not be adopted 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 would be unreasonable to
11
(2001) 7 SCC 425
H
132 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 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 102(1)(a) namely to eliminate or in any event to reduce
the risk of conflict between the duty and interest amongst members
B
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.”
The aforesaid passage emphasizes on the purpose of
disqualification, the approach of the Court while appreciating the
C expression and to reduce the risk of conflict of interest between the
duties and interest.
24. In Jaya Bachchan v. Union of India and others12, the issue
arose whether the petitioner was holding an office of profit. She was
appointed as Chairman of the Uttar Pradesh Film Development Council
D and was entitled to certain benefits.The Court analyzing the law
enunciated in Ravanna Subanna (supra) and Shibu Soren (supra)
opined that it is well settled that where the office carries with it certain
emoluments or the order of appointment states that the person appointed
is entitled to certain emoluments, then it will be an office of profit, even
E if the holder of the office chooses not to receive/draw such emoluments.
What is relevant is whether pecuniary gain is “receivable” in regard to
the office and not whether pecuniary gain is, in fact, received or received
negligibly.
25. In the case at hand, the first respondent was treated as
F disqualified on the foundation that he was in service of the Government.
In this context, we may usefully refer to the letter of appointment issued
by the Government of Bihar, Legal (Justice) Department to the District
Magistrate, Nalanda. It reads as follows:-
“Letter No.-C/A(S) 40-01/98/3049/B
Government of Bihar Legal (Justice)
G
Department
From
Sri Birendra Singh,
Joint Secretary to the Government, Bihar
12
H (2006) 5 SCC 266
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 133
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
To A
District Magistrate,
Nalanda, Biharsharif
Patna, Dated 18th August, 2000
Sub.: In relation to appointment of Assistant Government Advocate
for the Court at Nalanda and Hilsa B
Sir,
In reference to your letter No. 6224 dated 20.7.99 on above
mentioned subject and law Department Letter No. 2413 dated
6.7.2000 as per direction I have to inform that the State
Government has been kind to appoint Sri Janakdhari Prasad, C
Advocate on the post of Assistant Government Advocate in the
panel of Assistant Government Advocates constituted for the Court
at Nalanda and Hilsa.
After this appointment the total number of Assistant Government
Advocates in the Court of Nalanda would be 19 (Nineteen) and D
the total number of Assistant Government Advocates in the Court
of Hilsa would be 4 (four).
Faithfully yours,
Sd/-
Joint Secretary to the Govt., Bihar” E
Analyzing the letter, the Election Commission has held that the
elected candidate was holding a post under the State Government and,
therefore, he was disqualified under sub-section (l)(c) of Section 139 of
the Act.
26. On a careful scrutiny of the communication, it is quite vivid F
that the respondent No. l was appointed to the post of Assistant
Government Advocate in the panel of Assistant Government Advocates
constituted for the courts at Nalanda and Hilsa. There is no mention of
any fixed remuneration.
27. In the obtaining factual score, would it be appropriate to accept G
the submission of the appellants that the elected candidate was in the
service of the government. The legislature has, in exercise of its legislative
power and wisdom, not used the words “office of profit”. Therefore,
whether such a letter of appointment can be construed to determine if
the person is holding an office of profit is not necessary to be addressed
H
134 SUPREME COURT REPORTS [2018] 5 S.C.R.
A although we have referred to certain authorities to appreciate the context
and its fundamental purpose. In the instant case, the election pertains to
a Panchayat Samiti which basically relates to the concept at the grass
root level. The legislature, as it seems to us, has not thought of office of
profit because had it thought so it would have provided in that manner.
In Sakhawant Ali (supra), the legislature had provided a disqualification
B
keeping in view the conflict of interest. The absence of such a provision
possibly is to include persons from different fields as long as they are not
in service under the government or a service in an institution receiving
aids from the Central or State Government or any local authority. The
legislature, as the postulate stands today, has confined to categories of
C service mentioned hereinbefore. It depends on the legislative wisdom. It
further needs to be stated that the nature of disqualification has to be
strictly construed keeping in mind that right to contest an election is not
a fundamental right but the said right may be curtailed under valid statutory
provision.
D 28. The aforesaid being the position, we may presently focus on
what constitutes a service. In State of Assam and others v. Kanak
Chandra Dutta13 , Bachawat, J., speaking for the Constitution Bench,
held that a person holding a post under a State is a person serving or
employed under the State. There is a relationship of master and servant
between the State and a person holding a post under it. The existence of
E this relationship is indicated by the State’s right to select and appoint the
holder of the post, its right to suspend and dismiss him, its right to control
the manner and method of his doing the work and the payment by it of
his wages or remuneration. A relationship of master and servant may be
established by the presence of all or some of these indicia, in conjunction
F with other circumstances and it is a question of fact in each case whether
there is such a relation between the State and the alleged holder of a
post.
29. In this regard, reference to another Constitution Bench decision
in Roshan Lal Tandon v. Union of India14 would be apposite. In the
G said case, it has been opined that the legal position of a Government
servant is more one of status than a contract. The hall-mark of status is
the attachment to legal relationship of rights and duties imposed by the
public law and not by mere agreement by the parties. The duties of
13
AIR 1967 SC 884
14
AIR 1967 SC 1889
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 135
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
status are fixed by the law and status is a condition of membership of a A
group of which powers and duties are exclusively determined by law
and not by agreement between the parties concerned.As is evincible,
emphasis was given on the status in contradistinction to contractual
service.
30. Learned counsel appearing for the Commission, has placed B
heavy reliance on Kumari Shrilekha Vidyarthi and others v. State of
U.P. and others15. In the said case, the Government of the State of U.P.
had terminated by a general order the appointments of all Government
Counsel (Civil, Criminal, Revenue) in all the districts of the State of U.P.
The High Court had upheld the circular by which the order was passed.
In appeal, by special leave, the Court dealt with two contentions, namely, C
the nature of appointments and the minimum basis of status attached to
those appointments. For the purpose of examination whether the ground
of arbitrariness was available to vitiate the circular, the Court referred to
the Legal Remembrancer’s Manual and especially paragraphs 7.06 to
7.09 which deals with appointment and renewal of local practitioners D
finally selected by the government. The said paragraph deals with the
term, tenure, bar on political activity, renewal of term and character roll.
31. Relying on the same and other aspects, the Court held:-
“The above provisions in the L.R. Manual clearly show that the
Government Counsel in the districts are treated as Law Officers E
of the State who are holders of an ‘office’ or ‘post’. The aforesaid
provisions in Chapter VII relating to appointment and conditions
of engagement of District Government Counsel show that the
appointments are to be made and ordinarily renewed on objective
assessment of suitability of the person based on the opinion of the F
District Officer and the District Judge; and character roll is
maintained for keeping a record of the suitability of the appointee
to enable an objective assessment for the purpose of his
continuance as a Law Officer in the district. There are provisions
to bar private practice and participation in political activity by
D.G.Cs. Apart from clause 3 of para 7.06 to which we shall advert G
a little later, these provisions clearly indicate that the appointment
and engagement of District Government Counsel is not the same
as that by a private litigant of his counsel and there is obviously an
element of continuity of the appointment unless the appointee is
15
(1991) 1 SCC 212 H
136 SUPREME COURT REPORTS [2018] 5 S.C.R.
A found to be unsuitable either by his own work, conduct or age or
in comparison to any more suitable candidate available at the place
of appointment. Suitability of the appointee being the prime criterion
for any such appointment, it is obvious that appointment of the
best amongst those available, is the object sought to be achieved
by these provisions, which, even otherwise, should be the
B
paramount consideration in discharge of this governmental function
aimed at promoting public interest. All Govt. Counsel are paid
remuneration out of the public exchequer and there is a clear
public element attaching to the ‘office’ or ‘post’.”
After so stating, the Court referred to Sections 24 and 321 of the
C Code of Criminal Procedure and further analyzed the ratio in Mundrika
Prasad Singh v. State of Bihar16 and Mukul Dalal and others v.
Union of India and others17and came to hold that the office of the
Public Prosecutor is a public one and the primacy given to the Public
Prosecutor under the scheme of Code has a social purpose.
D 32. In this regard, we may reproduce a passage from the said
authority which is as follows:-
“We are, therefore, unable to accept the argument of the learned
Additional Advocate General that the appointment of District
Government Counsel by the State Government is only a
E professional engagement like that between a private client and
his lawyer, or that it is purely contractual with no public element
attaching to it, which may be terminated at any time at the sweet
will of the Government excluding judicial review. We have already
indicated the presence of public element attached to the `office’
F or `post’ of District Government Counsel of every category
covered by the impugned circular. This is sufficient to
attract Article 14 of the Constitution and bring the question of
validity of the impugned circular within the scope of judicial review.”
33. Eventually, the Court analyzing the test of Article 14, opined:-
G “In our opinion, the wide sweep of Article 14 undoubtedly takes
within its fold the impugned circular issued by the State of U.P. in
exercise of its executive power, irrespective of the precise nature
of appointment of the Government Counsel in the districts and the
16
(1979) 4 SCC 701
17
(1988) 3 SCC 144
H
STATE ELECTION COMMISSIONER, BIHAR PATNA v. 137
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
other rights, contractual or statutory, which the appointees may A
have. It is for this reason that we base our decision on the ground
that independent of any statutory right, available to the appointees,
and assuming for the purpose of this case that the rights flow only
from the contract of appointment, the impugned circular, issued in
exercise of the executive power of the State, must satisfy Article
B
14 of the Constitution and if it is shown to be arbitrary, it must be
struck down. However, we have referred to certain provisions
relating to initial appointment, termination or renewal of tenure to
indicate that the action is controlled at least by settled guidelines,
followed by the State of U.P., for a long time. This too is relevant
for deciding the question of arbitrariness alleged in the present C
case.”
The aforesaid passages clearly show that the Court went by the
concept of public element attached to the office or post of Government
Pleader. It has not expressed the opinion that they are under the
Government service. Be that as it may, as has been held by the learned D
Single Judge and rightly so, there is no master-servant relationship and
the respondent was not amenable to any disciplinary proceeding. He
has correctly expressed the view that the conduct of the advocate is
subject to the discipline of the Bar Council. As we notice, there is
nothing on record to show that he was getting any remuneration. Even if
some remuneration is attached to the office, he cannot be treated to be E
under the service of the State Government. The aspects which are
essential for establishing a relationship of master and servant are absent.
Therefore, the returned candidate could not have been treated to be in
service under the State Government.
34. In view of the premised reasons, we do not find any substance F
in the appeal and the same is, accordingly, dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
Nidhi Jain Appeal dismissed.
G
H
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