# [1984] 1 S.C.R. 939 - **Citation:** [1984] 1 S.C.R. 939 - **Court:** Supreme Court of India - **Decided:** 1984 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1984-1-s-c-r-939-8526 - **Pages:** 20 ## Headnote "' • ... ,., . . . PASHUPATI NATH SUKUL & OTHERS. P. NEM CHANDRA JAIN & OTHERS. Novem/Jer il5, 198/J • · [S. MuRTAZA FAZAL Au, 0, Ca1NNAPPA REDDY, & E."S. VBNKATARAlo!IAH, JJ.j • Constitution of lndia J95o, 1rticlq 98, 174, 102 {/) (•), 187, 188, 191 (/) (a), ~ml 193 • . The Represantation of the people Act 1951Section•.21,33, 73 aml 152; Candidate eiected as Member of State Legislative ,.fisethbly...;....Not _taking oath as Member-Whether could propose a cd~didate for e/e,:tion to Rajya Sabha Ond entitled to vote in -such election. - ., 1 Secretary & Joint Secretary of State Legfalalive Assemb/y-Whelher 'an officer O/Government'-Appointment as Retur11ing officer and A.ssistanl Returning Ufficer in an el;clion to _Rajya _Sabha-VaJidi1~ of. Words & Phrases-Meaning_ of: .• •Gove1nment'-Cons1i1ution of Jndia 1950, Afticles 102 (l) (a) and 191 (1) (a) •an officer of Go~ernme1u'-The Repr~sentution of the People A'"I 1951, s, 21. After the Legislative Assembl)' of lhe State was dissolved by the President A B c D E "elections Were held _and after the results were declared the Election Comm1sF aiO".l issued a notification containing the names of the members elected for the constituencies on June 9, 1980. The elected rpcmbers were .notified that they could take the oath as required- b) Art. 188 of the Constitution at the session of Che Legislative Assembly which had been summoned to meet on J unc 27, 1980 and on subsequent d:iys. In the meaiwhile, on JunC 17-. 1980 the E_lection . Commission issued a notification calling upon the elected members of the State Le&islative Assembly to elect a person for the purpose of ·filling a vacancy ia tho Kajya Sabha. For conducting the election the Secretary and Joint Secretary of the State_ Legislative Assembly .wefe appointcd-,respeclivcl)' as the Returnina: Officer and ·the Assistarit Returning officer. G The appellant and respondent No. I "in Livil Appeal No. 1175 of 19_81 H were nominated aa the candidates at that clectio~. J).t the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two srounds;-(1) that the appellant was disquali6e_d as he w~s a Government • ---. - . . ' SUPREME COURT REPoRTS (1984] i s.C.a. . -_·. . . .• _ . ·' :. ,· . - ; : .. : ;-- .: ·- ----:--.,,-- 'i -•--:- . . ' - . servant, and (2) that the proposer _tbotig'1 an elected _inember ·or the Assembly, · was not ·qualified to propose-the: appellanCs candid.iture as he had not yet taken- .. the oa!h under: Article 18~ ~f the CoristUution.. · · · · · · •. The apPellant .'c~ritended ... th ~ ·, ... . ·-. . ·• . . . . - • • . -_ f . - • ' - .- • • . HELD: .l (i) .. The word :•Gov The· President is -a part of the Parliament under Article 79 of the. Constifution. The executive power: of_t.he Union is vested in him.under Article 53(1 ). At the level of the State the positioll is analogous. The Go.vernor is a· part. of the legislatrire 9f tbC State under Article 168 (1). The Executive power of the State is vested in him under Article.154 (1) and he is consulted in the· apj)Ointments of the judges of the High Court. While under Article 235 .the High Go~rt -is.v~sted with the control ov:er the: ~ubon:linate JudiCi' in April, 1980 calling upon· all the Assembly constituencies in Uttar : Pradesh to· elect· members to· the Legislative Assembly, After the results of the ·elections in ail the constituen.cies held · pursuan.t to the said notification were declared, the. Election Commission of India issued a notification containing the nanies of the members elected for the said constituenCies as required by sectioiJ 73 of the Act on 'June. 9, 1980. The elected members were notified that they could take.the • oath as required .by Article 188 of the C9nstitution at the session of the Legislative Assembly which. had been summoned 'to meet on. · June. ·21, 1980 and on subsequ·ent days, .In the meanwhile on June17, 1980, the Election Commission issued a notification calling upon · the elected members. of. the Uttar Pradesh,Legislative Assembly to elect a person for the purpose of fillirig a vacancy fo the Rajya Saoha, By that notification, the Election Commission fixed the following · programme for the purpose of the ~aid election ; (a) 24.6.1980 (bl . 25 611980 (c) 27.6. 1980 ·- . as the hst date fo~ making· nomination .. as the date for scrutiny of the nomi· nation papers. as, the last date candidatur~. • for withdrawai. of •. • ' • li1. i r r ' ' ' ~ "' • • • ii.~. sumut v. N.c. tAIN (Venkataramiah, J.) 945 (d) .4. 7.1980 as the date on which a poll, .if neces" sary, would lie taken. (e) 7. 7.1980. - as the date before ·which. the election had to be completed. . .- -- ... ·shri S. P. Singh, Secretary of the Uttar Pradesh Legislative Assembly was· appointed: ~as the· Returning Officer ·and Shri Uma. · Shankar, Joint Secretary as the Assistant Returning Offi~er for con· .. ducting the ~foresaid election. • Pashupati Nath Sukul, the appellant in Civil Appeal No. 1775 'of 1981 (hereinafter referred to as 'the appellant') and Nern· Chandra Jain, respondent No. 1 were nominated ·as the candidates at that . . . election. At the time of scrutiny, respondent No. 1 filed objections to . the nomination of the appellant raising two grounds-(!) that the appellant was disqualified as he was a .Government servant'and (2) " that the proposer of the candidature of the appellant was not quali• tied· to propose his candidature· as he had not yet taken the oath as. required by Article 188 of the Constitution. The appellant pleaded . that as' he had retired voluntarily. from the Government service he was not ·disqualified for being chosen as a member of. the Rajya Sabha and. that the proposer of his candidature was an elected member of the Legislative .Assembly who was competent to make ihe propo~al even though he had not taken the oath as p;ovided in . · Article 188 of the Constitution. The Objections of ~espondent · No. r were overruled and the nomination papers of both the appellant and respondent No .. · l were accepted by the Returning · Officer. At the poll which took pface on July 4, 1980 the appellant secured 325 votes ani respondent No .. 1 got 41 ~otes. Accordingly . the appellant• ·was declared to be elected as a member ·of the Rajya Sabha. Aggrieved by .the resμ le 'of the electiOn, respondent No. 1 filed an election petition before the High Court calling in· question the, result of the election on. various grounds and of them we are now concerned wi.th two grounds only and they are (1) that as the Secretary . o(the Legisl.ative Assembly was neither an officer of the :·Government nor of a local authority, he 9ould riot be appointed as the· Returning Officer· under section 21 of the Act and 12) truit as the proposer of the nomination paper o( the appellant· 'had not made or sabscribed the. oath or affirmation as required by Article 188 of the Gonstitution on the date of the nomination,'there was i~proper accep"· tance of the nomination of the appellant. The appellant, the Election · Commission of India, the State 9f Uttar Prade.sh and Shri s. p, ' A B D r·, E F G H. B D • G H • 946 SUPREM(COURT REPoins . (1984) 1 s.c:R. Singh, the Returning Officer were impleaded as respondents to ihe election petition. The name of the· Governor of Uttar Pradesh who had also been impleaded as a respondent.was deleted.by the order.of .• the High Court. The petition was contested by the appellant and others who bad been implcaded as respondents in theeiection peti- · tion. At the conclusion of the trial, the High Court set aside the ·electfon of the appellant' on the following grounds viz. that Shri S. i>. Singh, Secretary, Legislative Assembly was not qualified ·to ·be appointed as the Returning Officer; that the proposal of the candidature of the appellant by a member of the Legislative Assembly who had not made and subscribed.the oath or affirmation a:s required by Article 188 of the Constitution on the date of nomination was · illegal and hence there was improper acceptance of the nomination of the ~ppellant and that there was no valid electoral roll in force on the date of ·nomination.. Aggrieved by th~ judgment of the High Court; the appellant has preferred Civil Appeal No. 1775of1981, the.Election Commission of India.bas filed Civil Appeal No. 197'5 (E) of ·198 l and the State of Uttar Pradesh has preferred Civil Appeal No. 2736 (E) of J98J. All these .three appeals are disposed of by this common jud.gment. We shall fi~s( deal with'the question whether the Secretary of. the Legislative Assembly was not. qualified to be appointed as the Returning Officer for.the election. Section 21 of the Act which deals with the appointmeni of Returning 01'ficers reads thus : · . "21. Returning Officers-For every constituency, for every election to fill a seat or seats in the• Council of . States and fgr every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall in consultation with the Government of the State ' . . ' designate or nominate a returning· officer wh9 shall be an officer of Government or of a lo~al authority : Provided that nothing in this section shall prevent the Election Commi~sion from designating or nominating the same person to be the returning officer for more than one constituency." · (Emphasis added). I . A .. )-· ... P.N. SUKU~ v. N.c. JAIN (Venkataramiah, J.) 947 . The contention of respondent No. I which' has been accepted by th~ High Court is that the Sectetary of the Legislative Assembly being not an officer of Government or of a loca;J authority he was not qualified to be appointed as the Returning Officer. The argument is that 'Government' in the. expression 'an officer of Government' usedin ·section' 21 of the Act m~ans the Executive only and an officer · of the Legisiature is not, ther~fore,'an officer of Government. . This case is an·illustration ·Of some legal problems ·solutions for which appear to be quite obvious but when an attempt is made to give reas0ns for such solutions one wo.uld be confronted with . many difficulties though not insurmountable. The expressions 'Government' and 'an officer of Government' are not defined in the Co~st1tution ·or in the Act. Article 367 of the Constitution· provides · that unless the context otherwise requires, the·. General Clauses Act, ·1897, shall, subject to any adaptations and modifications that may be made therein under Aritcle 3n of the Constitution, apply .for the interpretation of the Constitution as it applies for .the interpretation of an Act of the Legislature of the Dominion oflndia. Section 3 (23) · of the General Clauses ,fot, 1897 defines .n and it suggests that there may be other organs of State which may be included with- .in the meaning of the expresSion '.Government'. The ·expressions · 'Central Government' and .'State.Government' are defined .in· section 3(8) and section 3(60) of the General Clauses Act, 1897 respectively. These definitious are to be adopted unless there·. is. aμything in the context to the contrary. A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State. In Part I :Of the Constitution the expressions 'the Union'. 'the States' and 'the Union '):'erritories' are used, In . Article 12 olthe Constitution, we find the expressions 'Government · and Parliament of India' aiid 'Government and the Legislature of . each of th~ States' suggesting that Government is different from the Union Legislature or th~ Legislatures of the State.s. This is . for . purposes of Part III of the· Constitution. In Article J02(l)(a) and Article 191(\)(a) of the Constitution, the expressions 'the Government . of. India' and 'the Government ot any State' are .used and they. provide th~t a person holdin~ an office of l'rofit under the. A B c I) E G I1 .. c D E F G 948 SUPREME COURT REPORTS 119841 t s.c~R. . Government of India cir a State Government is disqualifled for. beina chosen as a member of Parliame.nt or of a State Legislature. respee· · lively. Article 98. and Article 187 of the Constitution wovide for the appointment of separte secretariat staff of each House of Parliament and of the State. Legislatures respectively. Artide 146,and Article 229 of the Constitution respectively deal with the appointment of officers and servants of the Supreme Court atid of the High Courts.- Article 148(5) and Article 318 of the Constitution respectively deal with the conditions of service etc; of the employees working in the office of the Comptroller and Auditor-General of India and the Public Service . Commissions. Part XIV of ihe .~onstitution contains provisions relat· . ing to the services under the Union Government and the State Govern: · meats. It contains Article 31 I which guarantees certain rights which . cannot be denied to the employees in the Legislature and in the • . Judiciary. Dealing with the riature of the office held by . the officers working in t)le High .Court, who are governed by Article 229 of the Constitution' this Court has observed in Praayat Kumar Bose v. The Hon'ble the Chief Juctice of Calcutta High Court(1) thus : ."A close scruti~y of the terminology so used .shows a . marked departure in the language of article 320(3)(c) from that. in articles 310 and 31 !. Officers and members. of ·the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to.public services and.posts in connection with.the affairs of the State" and also of the phrase "a person who .is a member of; civil service pf'a State" ·· as used in · articles . 310' and 311. The .salaries of these persons are· paid out of the State fuods as appears from article 229(3) which provide; that the administrative expenses of a High Court including all salaries, allowai;ices and pensions payabl~ to. or in respect of officers and. servants of the High Court, are chargeable upon the Consolidated Fund of a ·state. The item relating to such administrative expenses . has to . . form part of the annual finaticial stateme~ t t() be pres en•· ted to the State Legislative Assembly utider article 202 and estimates thereof can form the subject matter ,_of the ·discussion in the Legislature under article 203(1 ). They must, therefore, be taken."toj;hold posts in connection with the affairs ofthe State and ·10 be~ memb~rs, of :the civil service of the: State". (1) (1~5512.S.C.R. 1331 •. . ' • ' r . :i., > \ 1 . l ~ l I _,J .. A .. • ' - ·P.N. SUKUL v. N.C. JAIN (Venkataramiah, J.) 949 .. . Entry ? of List II of the Seventh Schedule to .the· Constitution relates to 'Local Governm'ent' that is· to say, the constitution .and A po~ers of municipal corporations, improvement trusts, 'district boards, mining settlement authorities and other local authorities for the. purpose of local self-government or village administration. . fo each of these cases it becomes necessary to examine the relevant provisions of law applicable to it in order to determine whether the B officers and staff of the various organs are officers of Go.vernment or ·not. Before taking up such examination the meaning of the expression 'Government' has to be asceriained. · A student of International Law understands by the expression "State' as a . fully ·sovereign independent community residing in a speCified territoiy with. a legal capaci\y to enter into international· . relations: and having the power to fulfil the obligations which the · · international law imposes on the .family of nations. It should also have been adm\tted or · recog lised as ·a State on a footing of equality · . with other State.s. A State implies the existence of ,a coinmunity . or group of people occupying a geographical area ·or territory . in which they pdmanently r~side possessing foternal sover~ignt;/ and indepondence of foreign control ·and a political organisation or agency thro~gh which. the. collective will of the people is expressed and enforced. The last of the elements of a State referred to above is generally called as a Govermilent. A student of Political Theory . and Comparative Politics may discribe a Government as a monarchical, republican, democratic or dictatorfal depending upon its peculiar features. It·may ·be feder~l or unitary. A political philosopher may describe a li)overnment as imper.ial, colonial, capitalist or socialist,· The .above .list is not .really . exhaustive. But these are only different forms of Government aμd 'Government' here is used in a very broad sense. From the legal point 6r view; Ciovernment may be described as the exercise of' certain powers at:1d the performance of certain , dutie.s by public au,thorities or officers, togeth'er With certain private persons or corporations exercising public functions. 'f.he strudure of the Ill;•chinery o.f Government and. the regulation of the powers and duties which belong to the different parts of this structure are defined by the law whi<;h also prescribes to.some extent the mode in which these powers a re to be exercised or these duties are to be performed . (See Halsbury's Laws of England, Fourth Edition, Vol. 8, Para 804). Government generally connotes three estates, namely, the Legislature, the Executive and the Judiciary while it is true that in a narrow ·sense it.is used to connote the Executive onl?"· The meaning to be assignea . . c D E G H A B c D E F G H . ·, 950 SUPREME COURT REPORTS (1984) 1 s.c.R. to that expression, therefore; depends on the context in which it is ~~ , • In our Constitution,· which has a federal structure, there are · hoih at the level of the Union and at the level of the States detailed provisions, .pertaining to the legislature, the Executive and the Judiciary. All the . three organs are concerned with the • governance of ihe country one organ makes the laws, the second enforces them and the third interprets them though sometimes · their ftinctions may be overlapping. · In ibis sense all · the three organ·s together constitute the Government at their r.espective levet It is significant thai the President is. a part of parliament under Article 79 of the Constitution, the executive power of the Union is vested in him under Article 53 (I) of .the Constitution and he appoints Judges of the Supreme Court under Article 124 (2) and ho can issue an order removing a Judge of the Supreme Court under Article 124 (4). of the Constitution, of course, subject to the limita· tions contained therei.n. At the level of the State too the position is analogous to the position at the level of the Union. The. Governor is ;part of the legislature of the State under Article 168(1) of the Constitution. The r.xecutive power ·or the State is vested in him under A.rticle 154(1) and he is consulted in the appiontment of judges of the High Court. · While under Article 735 of the Constitution, the High Court is vested with the conttol over the· Subordi11ate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary, the Governor has to issue the order though on the recommendation made by ihe · High Court. A study · . •of tbrse provisions shows that there is no water tight ~ompartment . between the th~ee major organs of the State. The Comptroller and Auditor-General oflndia though he.is assigned an independent status is an officer under the Union Government. (See Gurugobinda Basu v: • Sankari Prasad Ghosal & Ora.)(I) The Judges of the Supreme Court and of a. High Court are not ·servants of Government but hold a constitutional office (vide Union of India v. Sankal Chand Himatlal Sheth & Anr.(2) and Hargovind Pant v. Dr. Raghukul Tilak & Ors.(') But the Comptroller and Auditor-General of India· and the Judges of the Supreme Court and of a High Court arc not eligible to contest· elections to Paritament'and the State legislatures in view of Article !02(i)(a) and Article 19l(l)(a) of the Constitution, as .the case may (!) [196414 S.C.R. 311. . c2J [197BJ 1 s.c.R: 423. (3) (1979) 3 S'.C.R. 972. • I . • P,N. rnKUL ~. N.C. JAIN (Venkatarami~h. J.) 951 be, because they are serving in connection with the affairs of. the Union (See Article ~60(4)(b) of the Constitution) and are, therefore, holding offices of profit·under the Central Government. The position of a person whoiworks as an ·officer of the Legislature of a State is also the same. Even though he be1ongs under Article 187 of the Constitution to the staff of the State Legislature, he is still an officer of Government' in the broad sense . in which the expression 'Government' is used in Article l02(l)(a) and Article 19l(l)(a) of the Constitution. If the expression 'Government' used here is construed as- meaning the Executive Government only, then it would defeat the . . very purpose of these provisions of the Constitution. Similarly he· has to be treated as an officer of Government for purposes of.. section 21 of the Act also qualified for being appointed as the Returning Officer for an election held under the Act. It is· not disputed that after the commencement of the Constitution, the Secretaries of the State Legislatures almo;t as a. ~att~'r of rule are being app~inted as ' Returning Officers for election to the Rajya Sabha a.nd for election to the Legislative Councils ofStates a'nd Parliament has not thought 'it fit.to amend suitably, ·section 21 of the. Act expressly including· the officers of the State Legislatures amongst the persons qualified to be appointed as Returning Officers even though it has amended that section once by specifically including officers of local authorities. Parliament all along has treated the Secretaries of the State Legislatnres as officers of Government for purposes sectio.n 21 and ha; found . it convenient to do so having regard to the nature of the work to be carried out by them. It may be noted that eye~ though Article 98 and Article.18Tof the Consitution contemplate the establishment of a separate secretariat staff for each House of Parliament and of the State Legisiature respectively, the salaries and allowances of the mem-. bers of that staff are paid out of the Co11solidated ·Fund of India ·or of the State, as the case may be after they are voted by the House or Houses· concerned. Their appointme11.t and other- conditions · of service are regulated by Rules made by the President· or ihe Gover~ nor, as the case may be, until appropriate law is made by Parliament .or the State Legislature, as the ca~e may _!)e. W.e are of the view that the word 'Government'· Article l02(l)(a) and in Article J9l(l)(a) of the Constitution and the word .'Government' in the expression ·'an officer ef Government' in section 21 of the Act should.be ,interpreted liberally so as to include within its scope the Legislature, ·the Execu~ tive and the Judiciary. The High Court erred in equating the word 'Government' occurr~ng in section 21 of the Act to the Executive· Governmeot only and in further holding that the officers of . the • A B c D E F G H A B D E F G H • '952 SUPREME COURT .REPORTS (1984] 1 s.c.R. State Legjslatu.re could not be treated as officers ·of Government for purposes of that section. The finding of the High Court that' the · Secretary of the Uttar Pradesh State Legislature could not be appointed as the Returning Officer for the election to the· Rajya Shaba is,. therefore, unsuslainable. · · ' · The second question to b~ considered is whether the no~lnation of the appellant was liable to be rejected ·on th~· ground that the propose.r was not eligi.ble to nominate a candidate as he had :not made and subscribed the oath or affirmation as prescribed by Article 1 s8 of ihe Constitution. · · · Section 33 :Of the.,Act p.rescribes th~ ·requirements for .a valid n?mination. It provides that the nomination paper should be completed in the prescribed form and signed .by the the candidate and by an elector of the constituency as propose~ .. Clauses (d) and (e) of section 2(1) of the. Act define the ·words 'ekction' .,and 0 'elector' respectively. 'Election' means an election to fill. a seat or seats in either House of Parliament odn the House or either Ho.use of the . Legislature' of a State othd than the State of Jammu and Kashmi~. . . . ''Elector' in refatiop to a co11stitμency means· a person whose name.is entered .in the electoral roll of tJ:iat constituency for the ·time being i11 force and who is not subject to ·any of the. di.squalifications mentioned in section 16 of the Representation of. the Pepple Act, 1950 ( 43 · of 1950). Sub-<(lii\ise .(b) o(clause (1) of Article 80 of the Constitution states that the Council of States (the Rajya Sabha) shall in addition to twelve members nominated by the President 'under sub-clause (a} thereof consist of not more than two·· hundred· . ·antl tbiriyeight representatives of t~e States a.nd of the Union territories. Clause (2) · of Article 80 of the Constitution provides that the allocation of seats · .in the Council or' States to. be filled by representatives of the . States and of the Union territories shall be in accordance with the provi" sfons in that behalf contained in the Fourth' Schedule · to the Constitution. Clause (4) of Article 80 provides that the representatives of each State in Council of States shall be elected by the elected mem- · hers of the Legislative Assembly of the 'State .in accordance· with· the system of proportional representation by, means ?f the single transferable vote. Section 152 of the Aci provides that the Returning ·Officer fer on election by the elected· members of the Legislative Assembly ~f a State to fill a seai or seats in _the Council of States shall for. th~ purposes of such election maintain in' bis office in the. prescribec;I inanner and from a list of elected me!?lbers of that Legislative Assembly. Clause {c) of sub·rule {l) of Rule 4 of the . I .. ) • ; l - "'. .. P.N. smru~ v. N.c. JAIN (V~nkatar11miah, J.) .. 953 Conduct of Elections Rules, J.961 defines· :"election by assembly members" as an election to the Council oCStates by the elected mem· A . bers of the Legislative Assembly of a State or by the members of the · · electoral college of a Union territory ot an ·election to the Leg_islative Council of a State by the members of the. Legislative Assembly ofa State. 'Elector' is defined by clause (d) of sub-rule (I) of Rule 2 ofth