# Neelam Nigam v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 924
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Misc. Single No. 26883 of 2019
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelam-nigam-v-state-of-u-p-ors-45705
- **Pages:** 11

## Headnote

A. Constitution of India-Art- 243 F-U.P
Panchayat
Raj
Act,1947-Sec
5A
&
95(1)(g)-challenging show cause noticeu/s. 5A-also an order of D.M-removing
petitioner
from
the
office
of
Gram
Pradhan-on ground of-holding the office
of profit i.e. Auxiliary Nursing Midwiferyis a disqualification.

B. Order of D.M based on circular dt.
28.06.2010-issued
by
State
Election
Commission-no sanctity of law-unless an
office-validly specified as office of profit-
1 All. Neelam Nigam Vs. State of U.P. & Ors.
925
no power of removal from such officeimpugned order-illegal. Petition Allowed.

C. Held, In the present case, the Court is
not straightaway called upon to answer
as to whether the office of ANM is an
office of profit or not which in any view of
the matter lies within the domain of the
State Government to lay down but what
is
surprising
is
that
the
District
Magistrate has placed reliance upon a
circular issued by the State Election
Commission for such a purpose. The very
premise
upon
which
the
District
Magistrate has rested his decision i.e. a
circular
issued
by
State
Election
Commission on 28.6.2010, does not have
any sanctity of law. The Court is of the
considered opinion that unless an office
is validly specified by the State to be an
office of profit, it shall not confer power
on the District Magistrate to remove an
elected Gram Pradhan from his/her office
on
that
ground
alone.
The
District
Magistrate has clearly erred in the
present case by placing reliance upon the
circular issued by the State Election
Commission
on
28.6.2010
and
the
impugned order passed by him, therefore,
is liable to be set aside.

Writ Petition No. 26883 of 2019 allowed
and Writ Petition No. 22127 of 2019
dismissed. (E-8)

List of cases cited: -

## Text

924 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations of their welfare as human beings
so that they may grow up in a normal balanced
manner to be useful members of the society and
the guardian court in case of a dispute between
the mother and the father, is expected to strike a
just
and
proper
balance
between
the
requirements of welfare of the minor children
and the rights of their respective parents over
them. The approach of the learned Single
Judge, in our view, was correct and we agree
with him. The Letters Patent Bench on appeal
seems to us to 11 Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840 have erred
in reversing him on grounds which we are
unable to appreciate."

13. In this view of the matter as well
as considering the statement of the corpus
made before this Court, which is noted
above, this habeas corpus writ petition
fails and is dismissed, accordingly.

14. However, till the child is settled
down in the atmosphere of the second
respondent-mother's house, the petitioner
No.2 i.e. father alongwith grand parents of
the corpus shall visit the child at the
second respondent's house on Saturdays or
Sundays between 11:00 A.M. to 2:00 P.M.
till the corpus attains the age of 10 years.
The second respondent shall ensure the
comfort of petitioner No.2 as well as the
grand parents of the corpus during such
time of their stay in her house.

15. The petitioner No.2 is also
restrained from indulging into any act of
violence with the second respondent or
with the corpus and in case he is found in
violation of the order of this Court that is
being passed today, he will be personally
answerable to this Court.

16. It is made clear that dismissal of
writ petition shall not preclude the
petitioner from seeking remedy available
to him in law. Any observation made by
this Court, while deciding this writ
petition, shall not come in the way of
either party.

17. The amount of Rs.15,000/-
deposited
by
the
father
of
the
corpus/petitioner no.1 shall be paid to the
mother of corpus namely Dr. Sweta by the
registry of this Court after due verification
through her counsel.
----------
(2020)1ILR 924

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Single No. 26883 of 2019
&
Misc. Single No. 22127 of 2019

Neelam Nigam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap Singh

Counsel for the Respondents:
C.S.C.

A. Constitution of India-Art- 243 F-U.P
Panchayat
Raj
Act,1947-Sec
5A
&
95(1)(g)-challenging show cause noticeu/s. 5A-also an order of D.M-removing
petitioner
from
the
office
of
Gram
Pradhan-on ground of-holding the office
of profit i.e. Auxiliary Nursing Midwiferyis a disqualification.

B. Order of D.M based on circular dt.
28.06.2010-issued
by
State
Election
Commission-no sanctity of law-unless an
office-validly specified as office of profit-
1 All. Neelam Nigam Vs. State of U.P. & Ors.
925
no power of removal from such officeimpugned order-illegal. Petition Allowed.

C. Held, In the present case, the Court is
not straightaway called upon to answer
as to whether the office of ANM is an
office of profit or not which in any view of
the matter lies within the domain of the
State Government to lay down but what
is
surprising
is
that
the
District
Magistrate has placed reliance upon a
circular issued by the State Election
Commission for such a purpose. The very
premise
upon
which
the
District
Magistrate has rested his decision i.e. a
circular
issued
by
State
Election
Commission on 28.6.2010, does not have
any sanctity of law. The Court is of the
considered opinion that unless an office
is validly specified by the State to be an
office of profit, it shall not confer power
on the District Magistrate to remove an
elected Gram Pradhan from his/her office
on
that
ground
alone.
The
District
Magistrate has clearly erred in the
present case by placing reliance upon the
circular issued by the State Election
Commission
on
28.6.2010
and
the
impugned order passed by him, therefore,
is liable to be set aside.

Writ Petition No. 26883 of 2019 allowed
and Writ Petition No. 22127 of 2019
dismissed. (E-8)

List of cases cited: -

1. Lily Thomas v. Union of India and others
reported in (2013) 7 SCC 653

2. Ashok Kumar Bhattacharya v. Ajoy Biwan,
(1985) 1 SCC 151

(Delivered by Hon'ble Attau Rahman Masoodi, J.)

1. Heard learned counsel for the
petitioner and Sri Anuj Garg, learned
Standing Counsel for the State.

2. These two writ petitions were
heard together and the same are being
decided by this common judgement. Writ
Petition No. 22127 (MS) of 2019 has
arisen against the show cause notice dated
11.7.2019 whereas the second writ petition
i.e. Writ Petition No. 26883 (MS) of 2019
is directed against the order dated
19.9.2019 whereby the petitioner has been
removed from the office of Gram Pradhan
on the alleged ground of holding the office
of profit i.e. Auxiliary Nursing Midwifery
(hereinafter referred to as the ''ANM')

3. It is not in dispute that the
petitioner is an elected Gram Pradhan and
during currency of her term as Gram
Pradhan, she came to be selected as ANM
and has been engaged on a monthly
payment of honorarium to the tune of Rs.
12128/-. It is gathered from the record that
a complaint was made by one Maya Ram
Verma to the District Panchayat Raj
Officer on 23.4.2019 which triggered an
action against the petitioner. The alleged
disqualification gave rise to a notice dated
11.7.2019 under Section 5-A(c) of the U.P.
Panchayat Raj Act, 1947 which was
assailed by the petitioner in Writ Petition
No. 22127 (MS) of 2019.

4. During pendency of the above writ
petition, an order was passed by the
District Magistrate on 19.9.2019 removing
the petitioner from the office of Gram
Pradhan. Resultantly, another Writ Petition
No. 26883 (MS) of 2019 was filed
assailing the order passed by the District
Magistrate under Section 95(1)(g) of the
Act.

5. The sum and substance of the
controversy involved in the two petitions
is as to what procedure is open to be
adopted by the competent authority before
passing an order of removal from office of
Gram
Pradhan
on
the
alleged
926 INDIAN LAW REPORTS ALLAHABAD SERIES
disqualification of holding an office of
profit; secondly, as to whether the State
Election Commission has authority to
identify and categorise the offices of profit
and; thirdly, as to whether the petitioner's
engagement as ANM by the District
Society of National Health Mission
program in district Ayodhya on the
payment of monthly honorarium of Rs.
12128/-
funded
by
the
Central
Government and utilised through the
societies registered under the Societies
Registration Act, 1860 would be an office
of profit or not. Holding of office of profit
by an elected pradhan is undisputedly a
disqualification which one incurs by virtue
of Section 5-A(c) of the U.P. Panchayat
Raj Act, 1947 and the same is extracted
for ready reference as under:

"5-A.
Disqualification
for
membership-
A
person
shall
be
disqualified for being chosen as, and for
being [ the Pradhan or] a member of a
Gram Panchayat, if he-

(a) ...................................

(b) ...................................

(c) holds any office of profit
under a State Government or the Central
Government or a [local authority, other
than
a
Gram
Panchayat
or
Nyaya
Panchayat;
or
a
Board,
Body
or
Corporation owned or controlled by a
State
Government
or
the
Central
Government];

..............................."

6. The appointment of the petitioner
as ANM became a subject matter of
complaint at the instance of one Sri Maya
Ram Verma who filed a representation
before the District Panchayat Raj Officer
on 30.4.2019. It is not clear from the
record as to whether Sri Maya Ram
Verma, the complainant, pursued the
matter further or not but the complaint so
made did yield a response at various
levels. Ultimately a notice under Section
5-A(c) was issued to the petitioner on
11.7.2019 to show cause as to why she
may not be removed, which precedes by
several letters issued by District Panchayat
Raj Offficer to take action against the
petitioner on the basis of complaint.

7. On a plain reading of Section 5A(c), it is evident that the provision simply
prescribes a ground of disqualification but
it does not lay down any procedure for
setting
up
an
enquiry
by
District
Magistrate who is vested with the powers
of removal of a Gram Pradhan on the
grounds
mentioned
under
Section
95(1)(g), which includes a disqualification
under Section 5-A of the Act. For ready
reference Section 95(1)(g) is also extracted
below:

"95. Inspection - (1) The State
Government may -

(g) remove a Pradhan, UpPradhan or member of a Gram Panchayat
or
a
Joint
Committee
or
Bhumi
Prabandhak Samiti, or a Panch, Sahayak
Sarpanch or Sarpanch of a Nyaya
Panchayat if he -

(i)
absents
himself
without
sufficient cause for more than three
consecutive meetings or sittings.

(ii) Refuses to act or becomes
incapable of acting for any reason
whatsoever or if he is accused of or
charges for an offence involving moral
turpitude,

(iii) has abused his position as
such or has persistently failed to perform
the duties imposed by this Act or Rules
made thereunder or his continuance as
such is not desirable in public interest, or
1 All. Neelam Nigam Vs. State of U.P. & Ors.
927

iii-a) has taken the benefit of
reservation
under
sub-section(2)
of
Section 11-A or sub- section (5) of Section
12, as the case may be, on the basis of a
false declaration subscribed by him stating
that he is a member of Scheduled Castes,
the Scheduled Tribes or the backward
classes, as the case may be,

(iv) being a Sahayak Sarpanch
or a Sarpanch of the Nyaya Panchayat
takes active part in politics, or

(v) suffers from any of the
disqualifications mentioned in Clauses
(a) to (m) of Section 5-A:

Provided that where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pradhan
or Up-Pradhan is prima facie found to
have committed financial and other
irregularities
such
Pradhan or UpPradhan shall cease to exercise and
perform the financial and administrative
powers and functions, which shall, until he
is exonerated of the charges in the final
enquiry, be exercised and performed by a
Committee consisting of three members of
Gram Panchayat appointed by the State
Government.

Provided that no action shall be
taken under Clause (f), Clause (g) except
after giving to the body or person
concerned a reasonable opportunity of
showing
cause
against
the
action
proposed.

(2) A person under sub-clause
(iii) and (iv) of clause (g) of sub-section
(1) of this section shall not be entitled to
be re-elected or re-appointed to any office
under this Act for a period of five years or
such
lesser
period
as
the
State
Government may order in any case.

(3) No order made by the State
Government under this section shall be
called in question in any Court.

(4) Where any Gram Panchayat,
Joint Committee or Bhumi Prabandhak
Samiti is dissolved the State Government
may appoint such person or persons to
exercise and perform the powers and
duties thereof as it may deem fit."

8. The constitutional mandate after
73rd amendment in the Constitution of
India by virtue of Article 243(F) clearly
prescribes that an elected person at the
local self government cannot be removed
except in accordance with the procedure
prescribed. Article 243(F) for that purpose
being relevant is also reproduced as under:

"243F.
Disqualifications
for
membership.

(1)
A
person
shall
be
disqualified for being chosen as, and for
being, a member of a Panchayat-

(a) if he 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 concerned:

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;

(b) if he is so disqualified by or
under any law made by the Legislature of
the State.

(2) If any question arises as to
whether a member of a Panchayat has
become
subject
to
any
of
the
disqualifications mentioned in Clause (1),
the question shall be referred for the
decision of such authority and in such
manner as the Legislature of a State may,
by law, provide."

9. In the light of provisions extracted
above, it is urged by the learned counsel
for the petitioner that even if an
information
or
complaint
regarding
928 INDIAN LAW REPORTS ALLAHABAD SERIES
holding of office of profit had reached to
the office of District Magistrate, the same
ought to have been referred to the
prescribed authority as required under
Section 6-A of the Act.

10.

For
establishing
a
disqualification specified under Section 5A, the Statute requires the question to be
referred to the prescribed authority under
Section 6-A of the Act which reads as
under:

"6-A. Decision on question as
to disqualifications - If any question
arises as to whether a person has become
subject to any disqualification mentioned
in Section 5-A or in sub-section (1) of
Section 6, the question shall be referred to
the prescribed authority for his decision
and his decision shall, subject to the result
of any appeal as may be prescribed, be
final."

11. Section 2(q) of the Act defines
the
prescribed
authority.
It
is
this
definition
alone
that
aids
the
implementation of Section 5-A through the
procedure provided under Section 6-A of
the Act. Section 2(q) of the Act for ready
reference is reproduced hereunder:

"(q)
''Prescribed
authority'
means -

i) for the purposes of the
provisions of this Act mentioned in
Schedule III of the [Uttar Pradesh
Kshettra Panchayat and Zila Panchayat
Adhiniyam, 1961], the Zila Parishad or
the Kshettra Samiti, as may be specified in
column 3 of that Schedule; and

ii) in respect of any other
provisions of this Act, the authority
notified as such by the State Government
whether generally or for any particular
purpose;"

12. The State Government in order to
make Section 6-A workable has defined
the prescribed authority either by reference
to Schedule-III of U.P. Kshettra Panchayat
and Zila Panchayat Adhiniyam, 1961 as
specified in Column-3 and in respect of
other provisions of the Act, the authority
notified as such by the State Government
whether generally or for any particular
purpose. This Court may note that
Schedule-III, Column-3 appended to U.P.
Kshettra Panchayat and Zila Panchayat
Adhiniyam, 1961 does not specify any
authority with reference to Section 6-A of
the Panchayat Raj Act. The only Rules
framed to serve the purpose of Section 6-A
of the Act are U.P. Panchayat Raj
(Computation of Period of Five years for
Removal of Disqualification, Fixation of
period of dues etc. and Settlement of
Disputes of Disqualification) Rules, 1994.

13. The above mentioned rules pose
a peculiar difficulty when the matter is
viewed within the scope of Rule 4 and 5.
The proceeding under Rule-4 is not
inclusive of the disqualification of office
of profit i.e. 5-A(c) of the Act whereas,
Rule-5 prescribes the authority for those
cases which arise otherwise than a claim
or objection. Rule 5 for ready reference is
extracted hereunder:

5. Reference under Section 6-A
pertaining to disqualification:-(1) Where
any question as is referred to in Section 6A of the Act is raised otherwise than in a
claim or objection, it shall be referred to
the Tehsildar by the officer or authority
before whom such question arises for
consideration.
1 All. Neelam Nigam Vs. State of U.P. & Ors.
929

(2) On the receipt of a reference
under sub-rule (1) the Tehsildar shall fix
the date, time and place for it's hearing
and shall give notice to the parties
concerned.

(3) The Tehsildar shall after
hearing the parties and after such other
enquiries as he deems fit, give his decision
on the question referred to him.

(4) Any person aggrieved by the
order of the Tehsildar may, within fifteen
days of the date of such order, prefer an
appeal to the Sub-Divisional Officer.

(5) The Sub-Divisional Officer,
shall after notice to the parties and after
hearing such of them as desire to be
heard, dispose of the appeal.

(6) A copy of the final order
passed on the question referred to the
Tehsildar as modified in appeal, if any,
shall be forwarded to the Secretary of the
Gram Panchayat and to the Assistant
Development Officer (Panchayat) of the
concerned Kshettra Panchayat."

14. The case at hand is a case of
complaint by one Maya Ram Verma and
there is no reason as to why such a
complaint may not be understood as an
objection by a person who is a resident of
the same village. The difficulty arises
when such an objection raising the
question of disqualification does not fall
within the scope of Rule-4 which applies
to disqualifications other than those
provided under Section 5-A(a) to (c). At
the same time there is no specification of
the prescribed authority under Rule-5 for
cases arising out of a claim or objection.
Thus, the present case essentially an
objection (complaint) under Section 5A(c) raised by Maya Ram Verma a
resident of the village is a case for which
the prescribed authority is not specified
under the Rules, 1994. Therefore, the
question of reference under Section 6-A
unless the authority is specified, does not
arise.
The
wisdom
of
the
State
Government
leaving
the
Prescribed
Authority undefined for adjudication of
disqualifications under Section 5-A(a) to
(c) and restricting the scope of Rule-4 to
other disqualifications alone is not under
question, therefore, the authority to issue
show cause notice on 11.7.2019 by the
District Magistrate is traceable to Section
95(1)(g) of the Act as a delegate of the
State Government.

15. The authority to remove a Gram
Pradhan who incurs a disqualification
under Section
5-A
of
the Act
is
undoubtedly possessed by the State under
Section 95(1)(g) of the Act. This power
has
been
delegated
by
the
State
Government to the District Magistrate by
virtue of G.O. dated 28.3.2001. This
government
order
specifies
various
authorities for the exercise of powers
which the Act contemplates under various
provisions and the power under Section
95(1)(g) is prescribed to be exercised by
the District Magistrate.

16. This government order when
looked at in the light of Article 243-F of
the Constitution of India is bound to be
understood meaningfully.

17. Separation of powers and
independence of each organ of the State
are essential features of the Constitution of
India and the Courts of law while
interpreting
the
provisions
of
the
Constitution or statute must bear in mind
this significant aspect. Panchayati Raj
which in common parlance is known as
Local Self Government operates at the
grass root level of democracy and must
find its means and ways of self sustenance
930 INDIAN LAW REPORTS ALLAHABAD SERIES
leaving least scope for the State to topple
whimsically.

18. For a democratically elected
representative, the removal on the grounds
of disqualification prescribed under law is
to
achieve
the
purpose
of
good
governance. This is an external control
maintained by the State for a definite
purpose. The disqualifications prescribed
under Section 5-A of the Act are the
grounds in addition to financial and
administrative lapses which entail the
consequence
of
removal.
For
any
disqualification provided under Section 5A(a) to (c) of the Act, the District
Magistrate in absence of the prescribed
authority being specified for reference
under Section 6-A is thus fully empowered
to proceed against a Gram Pradhan on any
ground
mentioned
under
Section
95(1)(g)(v). It is for this reason as well
that two provisos are appended to Section
95(1)(g).

19. The first proviso appended to
Section 95(1)(g) envisages an enquiry by
such person and in such manner as may be
prescribed. For the purposes of removal of
a Gram Pradhan on the ground of any
disqualification mentioned under Section
5-A(a) to (c), there is no such prescription
of any person for enquiry. The District
Magistrate himself being a delegatee of the
State cannot sub-delegate, hence the first
proviso has no application in the matter of
disqualification provided under Section 5A(a) to (c).

20. The only procedure which
logically emerges is that of the second
proviso appended to Section 95(1)(g) of
the Act according to which observance of
rule
of
opportunity
is
a
condition
precedent. There is no other provision
within which the authority to issue the
impugned notice dated 11.7.2019 on the
alleged disqualification under Section 5A(c) can be traced. The power to supervise
the conduct of election is vested in the
District Magistrate under Section 12-BC
of the U.P. Panchayat Raj Act, 1947 which
is for a different purpose and its
applicability cannot be stretched beyond
the conduct of elections.

21. The second proviso appended to
Section 95(1)(g) is reiterated below:

"Provided that no action shall be
taken under clause (f), clause (g) except
after giving to the body or person
concerned a reasonable opportunity of
showing
cause
against
the
action
proposed.

22. It is in the spirit of above
provision that the District Magistrate
issued the show cause notice on 11.7.2019
competence whereof, in my humble
opinion, is doubtless. The argument that
the notice issued on 11.7.2019 suffers
from lack of jurisdiction must fail.
Therefore, Writ Petition No. 22127 of
2019 filed by the petitioner against the
show cause notice dated 11.7.2019 fails
and is accordingly dismissed.

23. The real issue raised in the
subsequent writ petition is as to whether
the petitioner holds an office of profit or
not.
For
establishing
such
a
disqualification,
the
notice
dated
11.7.2019 makes a reference to the so
called government order issued by the
Joint
Commissioner,
State
Election
Commission on 28.6.2010 according to
which certain appointments on honorarium
though not a disqualification under U.P.
State
Legislature
(Prevention
of
1 All. Neelam Nigam Vs. State of U.P. & Ors.
931
Disqualification)
Act,
1971
or
the
corresponding Central Act are nevertheless
identified by State Election Commission to
be a disqualification for being an elected
member of Panchayats. These offices are
Aanganbadi
Karyakattri/Sahayika,
Ashabahu, Kisan Mitra, Shiksha Mitra,
Rozgar
Sewak
etc.
The
petitioner,
however, is appointed as ANM which is
not specifically included in the circular
dated 28.6.2010, yet there is resemblance
in the matter of payment of honorarium.

24. The petitioner in response to the
show cause notice has stated that all the
appointments mentioned in the circular of
State
Election
Commission
dated
28.6.2010
are
made
in
the
Gram
Panchayats, whereas, the petitioner having
duties related to maternity and vaccination
was serving in the other adjoining district
for which the honorarium paid is not
salary but a kind of compensatory
allowance. The honorarium is not linked to
any permanent post having independent
existence except that there is a contract of
service which is entered into between the
petitioner and the society at the district
level. The chief executive of the district
level society is the Chief Medical Officer
who under the bye-laws of the society is
empowered to terminate the contract on
the ground of dissatisfactory service. The
renewal of contract is also dependent upon
the satisfactory service.

25. Before coming to the aspect as to
whether the time bound contractual
services on honorarium basis can be
termed to be an office of profit in terms of
the circular dated 28.6.2010, the Court
would go into the second issue relating to
the source of power under which the State
Election Commission has issued the said
circular. The opposite parties in the
counter affidavit have not clarified as to
under what authority and in what manner
the said circular was binding on the State
Government or the District Magistrate.

26. For laying down the conditions
of disqualification, Article 243(F) lays
down
twin
conditions.
Firstly,
the
disqualifications for being a member of
State legislature under law shall equally
apply to a member of Panchayats.
Secondly if a person is so disqualified by
or under any law made by the legislature
of the State, a person may be removed by
following the procedure as prescribed.

27. By virtue of Article 243(K) of the
Constitution of India the State Election
Commission
is
empowered
with
superintendence, direction and control of
the preparation of electoral rolls as well as
the conduct of elections. This power
vested in the State Election Commission
cannot be understood to have conferred
upon the Commission an authority to lay
down as to holding of what offices would
be a disqualification which essentially lies
within legislative domain of the State.
Article 243(K) read together with Section
12-BB of the U.P. Panchayat Raj Act does
not in any manner authorise the State
Election Commission to identify the
offices of profit.

28. This Court would hasten to add
that under Article 298 of the Constitution
of India, Parliament is vested with the
powers to legislate on the matters not
included in the concurrent and State list.
The apex court decision rendered in the
case of Lily Thomas v. Union of India
and others reported in (2013) 7 SCC 653
also gives a clear indication that it is the
legislature of the State or Parliament alone
which may prescribe the conditions of
932 INDIAN LAW REPORTS ALLAHABAD SERIES
disqualification. To say that the State
Election Commission has a power to
specify offices of profit that too without
there being any constitutional or statutory
authority, in my humble view, is clearly in
excess of the jurisdiction and for that
reason, the very premise upon which the
District Magistrate has placed reliance i.e.
the circular dated 28.6.2010, is clearly
unfounded and without authority of law.

29. It is not the case at hand that the
State Government has prescribed certain
appointments on honorarium basis to be a
disqualification. Once it is clear that the
District Magistrate has placed reliance
upon the circular issued by the State
Election Commission, this Court has no
hesitation to observe that the District
Magistrate stepped into an error which is
apparent on the face of record.

30. To lay down as to which offices
are to be treated in the category of offices
of profit and which others may be
understood not to have the trappings of the
same, it is for the State Government to lay
down. The Court is, however, conscious of
the fact that the working hours may also be
a factor for such consideration but a
foolproof answer to this question is for the
State legislature to provide. This Court on
principle may only observe that the State
Government while identifying an office to
be an office of profit must bear in mind
that the independence of each organ of the
State is protected. It is the rule of
independence of each organ of the State
which
consequently
strengthens
a
democratic system based on the freedom
of expression and speech.

31. Having answered the second
question favourable to the petitioner, the
Court would next consider as to whether a
contractual time bound appointment on
payment of honorarium by a society
constituted at the district level would at all
be an office of profit. The appointment of
ANMs on contractual basis is to aid the
existing
staff
appointed
at
Primary,
Community and District level health
centres. The strength of contractual staff
appointed by the District Level Society are
to aid the regular staff appointed against
regular posts who are paid much higher
salary.
The
services
of
contractual
employees to carry out National Health
Mission
on
honorarium
basis
is
administratively controlled by the society
registered under the Societies Registration
Act, 1860. The Chief Medical Officer
works as Chief executive of the society as
per its bye-laws. Secondly, there is no
concept of permanent posts in the Health
Mission and the schemes keep on floating
from one district to another. Thirdly, there
is no payment of salary like against the
regularly sanctioned posts having an
independent existence. The societies and
NGOs constituted at the district level who
deal in health services are also open to be
merged with the District Level Society.
The Chairman, Zila Panchayat and District
Magistrate are also ex-officio office
bearers of the Management.

32. Insofar as the working hours are
concerned, it is not the case before this
Court that the petitioner has failed to
perform her functions effectively as Gram
Pradhan. The ground of inefficiency is
independent
of
the
alleged
disqualification. An office of profit has
two essential ingredients. Firstly, it must
yield a true pecuniary benefit based on a
master and servant relationship between
the government or any statutory or local
body of the State and the person
concerned,
secondly,
the
executive
1 All. Neelam Nigam Vs. State of U.P. & Ors.
933
authority of the person for which the
pecuniary benefit against a position is
derived must owe its existence to the
office held by him. An employment of
which
the
position
goes
with
the
termination of contract and for which there
is no protection of tenure against any
disciplinary measure is a pure contract of
service, therefore, any incentive to meet
out of pocket expenses like payment of
honorarium cannot be classified to be an
office of profit. Thus, the critical test of
independent existence of the position
irrespective of the occupant is not
satisfied.

33. It is equally noteworthy that
contractual appointment does not place a
bar upon the incumbent to be a public
representative at the panchayat level or
otherwise. The question of conflict of
public duty also does not arise with the
service contract for reasons more than one.
A contract of service finds its scope within
the larger horizon of public duties which a
citizen
on
being
elected
a
public
representative may owe to the State or its
public institutions. The spirit of public
duty is distinct from a service contract and
every service contract for this reason alone
may not debar a person from being a
public representative. For coming to this
reasoning, the Court would fruitfully place
reliance on the judgment rendered by the
apex court reported in (2018)8 SCC
1(State Election Commissioner, Bihar,
Patna and others versus Janakdhari Prasad
and other) wherein the Court had drawn a
distinction between service and the office
of profit being it a situation in the case
decided by the Apex Court.

34. Looking at the issue from a
different angle attracts the Court to say
that some honorarium to the tune of Rs.
5000/- p.m. is paid to the Gram Pradhan
on his election to the office and the duties
attached to the said office are no less
onerous, yet holding the office of Gram
Pradhan is not a disqualification to contest
the election of an MLA. For the purposes
of eligibility, Section 3(O) of the U.P.
State
Legislature
(Prevention
of
Disqualification)
Act,
1971,
exempts
holding the office of Gram Pradhan for
being elected as an MLA. It is a different
thing
that
two
offices
cannot
be
simultaneously held as per the mandate of
statute. The payment of honorarium alone
is not a decisive factor but it is the master
and servant relationship of which the
authority
and
control
vests
in
the
government coupled with the fact that the
office has an independent existence
irrespective of the occupant.

35. This Court is conscious of the
fact that Hon'ble the apex court in the case
Ashok Kumar Bhattacharya v. Ajoy
Biwan, (1985) 1 SCC 151, has guided the
courts to interpret the concept office of
profit in a manner that the approach
adopted by a court must reduce the risk of
conflict between the public duty and
private interest which in the present case
does not seem to be the situation. The
petitioner's services as ANM are rendered
in
the
adjoining
district
and
the
remuneration of honorarium is nothing but
a compensatory allowance to meet out of
pocket expenditure. This, however, does
not suggest that this Court has certified the
efficiency of the petitioner in the matter of
performance of her duties as Gram
Pradhan which is always open to be
examined as per law. For this purpose,
every District Magistrate must ensure that
a CCTV camera and video conferencing
facility
connected
to
the
district
headquarter is installed in the district so
934 INDIAN LAW REPORTS ALLAHABAD SERIES
that
the
participation
of
panchayat
members in the meetings at Gram
Panchayat
is
duly
ascertained
and
monitored by the State.

36. In the present case, the Court is
not straightaway called upon to answer as to
whether the office of ANM is an office of
profit or not which in any view of the matter
lies within the domain of the State
Government to lay down but what is
surprising is that the District Magistrate has
placed reliance upon a circular issued by the
State Election Commission for such a
purpose. The very premise upon which the
District Magistrate has rested his decision i.e.
a
circular
issued
by
State
Election
Commission on 28.6.2010, does not have any
sanctity of law. The Court is of the considered
opinion that unless an office is validly
specified by the State to be an office of profit,
it shall not confer power on the District
Magistrate to remove an elected Gram
Pradhan from his/her office on that ground
alone. The District Magistrate has clearly
erred in the present case by placing reliance
upon the circular issued by the State Election
Commission on 28.6.2010 and the impugned
order passed by him, therefore, is liable to be
set aside.

37. The District Magistrate ought to
have taken up the matter with the State
Government instead of calling for a report
from his sub-ordinate officials for which
he lacked the authority under law. The
State Government is bound to consider the
matter and come up with a clear stand on
the circular issued by the Commission on
28.6.2010 so that the disputes of this
nature do not arise in future. Suffice it to
say that the State Government while
identifying an office to be an office of
profit must bear in mind the true import
and purpose of such a disqualification.

38. For the reasons aforesaid, the
Court is of the considered opinion that the
impugned order dated 19.9.2019 being
illegal and arbitrary is liable to be set
aside. It is accordingly quashed and
petitioner is directed to be restored as
Gram Pradhan.

39. Writ petition No. 26883 of 2019
is allowed. The cost of litigation is
quantified at a sum of Rs. 25000/- payable
by the State to the petitioner within a
period of three months from today.
----------
(2020)1ILR 934

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2020

BEFORE
THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 83 of 2014

Smt. Dropadi Devi & Ors. ...Appellants
Versus
Shiv Chandra Dixit ...Respondent

Counsel for the Appellants:
Mohd. Aslam Khan, Sri Ashish Srivastava

Counsel for the Respondent:
Sri Amit Jaiswal, Sri Brijesh Kr. Saxena, Sri
Brijesh Kumar

A. Code of Civil Procedure, 1908 - Section
100
-
challenge
to
-concurrent
judgement-no error in the concurrent
finding returned by two courts as far as
possession
is
concerned-concurrent
finding of fact is usually binding on the
High court while hearing the second
appeal-when any concurrent finding of
facts is assailed in second appeal, the
appellant is entitled to point out any one
or more ground on the basis of pleadings
and evidence, such ground will constitute
substantial question of law. (Para 68 to 73)