# MADHUKER v. J. c. RAJANI (Krishna lyer, !.)

- **Citation:** [1976] 3 S.C.R. 832
- **Court:** Supreme Court of India
- **Decided:** 1976-03-23
- **Case number:** Civil Appea:ls Nos. 1270, 13151316 of 1975
- **Bench:** Krishna !Yer, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madhuker-v-j-c-rajani-krishna-lyer-6840
- **Pages:** 24

## Headnote

Maharashtra Municipalities Act, !965-S. !6(1)(g)-Holding office of profit-Meaning of-Private medical practitioner on the panel of doctors under
Employees State Insurance Scheme-If holding office of profit.
To provide medical facilities to the workers in factories a statutory body
called the Employees State Insurance Co;rIJoration has been establish~d by an
Act of Parliament. Under the Act financial resources of the Corporation come
from contributions and other monies specified in the Act and an Employees
State Insurance Fund had been created. The State Government, to which an
obligation to provide medical treatment for insured persons had been entrusted,
may employ private medical practitioners who run clinics as doctors uQder
the scheme. For inclusion of a name in the medical list of insurance medical
practitioners a doctor has to apply to the Administrative Medical Officer.
His
application is considered by an allocation committee which recommends his
name to the Director, Employees State Insurance Scheme and ultimately on
approval by the Surgeon General, his name is included in the medical list. The
doctor whose name is included in the medical list has to abide by the duties
and conditions prescribed, is under the control of the Medical Services Com~
mittee and may even be removed or resign from the panel.
The appellant, who was a private medical practitioner and whose name was
included in the panel of doctors maintained by the Corporation and the respondent, were contestants in an election for the presidentship of a municipal council. At the time of scrutiny of the nomination papers no objection was raised
to the appellant's nomination and in the election that ensued the appellant
was declared elected.
The respondent challenged the election on the ground
that the appellant was disqualified under s. 16(1 )(g) of the
Maharashtra
Municipalities Act, 1965 which debars a person who holds an office of profit
under Government from becoming a councillor,
because on the
date of
nomination he was holding an office of profit under the Government
by reason of his being a panel doctor under the Employees State Insurance
Scheme. Between the date of nomination and the date of election. however,
the appellant had resigned from the scheme. The election tribunal allowed
the respondent's petition and declared the appellants' election void. At the
same time the respondent was declared as the President.
On appeal it was contended that a doctor on the medical list prepared by
the Surgeon General of the State does not hold an office of profit within the
meaning of s. !6(!)(g) of the Act.
Allov.·ing the appeal,
HELD : (!) The legislative end for disqualifying holders of office of profit under Government from seeking elective offices is to avoid the conflict between duty and interest, to cut out the misuse of official position, to advance
private benefit and to avert the likelihood of influencing Government to promote personal advantage. At the same time the Constitution mandates the
State to undertake multiform public welfare and socio-economic activities
involving technical persons, welfare workers and lay people on a massive scale
so that participatory government may prove a progressive reality.
Therefore
experts may have to be invited into local bodies, legislatures and the like pnlitical and administrative organs based on elections. [842 E-G]
(2) ,a) The appellant suffered no disqualification on the score of holding
an office of profit under Government. The legal provisions under the Act and
the rules make of an insurance medical practitioner a category different from
one who runs a private clinic and enters into contractual terms for treatment
of patien'ts sent by Government, nor is he a full fledged government servant.
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MADHUKER v. J. c. RAJAN! (Krishna lyer, !.)
833
He is a tertium quid. [842-A]
(b) The doctor under the scheme has obligations of a statutory sa~our. He
is appointed on his application which is processed by the appr

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MADHUKER G. E. PANKAKAR
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JASWANT CHOBBILDAS RAJAN! & ORS.
March 23, 1976
[V. R, KRISHNA !YER AND N. L. UNTWALIA, JJ.]
Maharashtra Municipalities Act, !965-S. !6(1)(g)-Holding office of profit-Meaning of-Private medical practitioner on the panel of doctors under
Employees State Insurance Scheme-If holding office of profit.
To provide medical facilities to the workers in factories a statutory body
called the Employees State Insurance Co;rIJoration has been establish~d by an
Act of Parliament. Under the Act financial resources of the Corporation come
from contributions and other monies specified in the Act and an Employees
State Insurance Fund had been created. The State Government, to which an
obligation to provide medical treatment for insured persons had been entrusted,
may employ private medical practitioners who run clinics as doctors uQder
the scheme. For inclusion of a name in the medical list of insurance medical
practitioners a doctor has to apply to the Administrative Medical Officer.
His
application is considered by an allocation committee which recommends his
name to the Director, Employees State Insurance Scheme and ultimately on
approval by the Surgeon General, his name is included in the medical list. The
doctor whose name is included in the medical list has to abide by the duties
and conditions prescribed, is under the control of the Medical Services Com~
mittee and may even be removed or resign from the panel.
The appellant, who was a private medical practitioner and whose name was
included in the panel of doctors maintained by the Corporation and the respondent, were contestants in an election for the presidentship of a municipal council. At the time of scrutiny of the nomination papers no objection was raised
to the appellant's nomination and in the election that ensued the appellant
was declared elected.
The respondent challenged the election on the ground
that the appellant was disqualified under s. 16(1 )(g) of the
Maharashtra
Municipalities Act, 1965 which debars a person who holds an office of profit
under Government from becoming a councillor,
because on the
date of
nomination he was holding an office of profit under the Government
by reason of his being a panel doctor under the Employees State Insurance
Scheme. Between the date of nomination and the date of election. however,
the appellant had resigned from the scheme. The election tribunal allowed
the respondent's petition and declared the appellants' election void. At the
same time the respondent was declared as the President.
On appeal it was contended that a doctor on the medical list prepared by
the Surgeon General of the State does not hold an office of profit within the
meaning of s. !6(!)(g) of the Act.
Allov.·ing the appeal,
HELD : (!) The legislative end for disqualifying holders of office of profit under Government from seeking elective offices is to avoid the conflict between duty and interest, to cut out the misuse of official position, to advance
private benefit and to avert the likelihood of influencing Government to promote personal advantage. At the same time the Constitution mandates the
State to undertake multiform public welfare and socio-economic activities
involving technical persons, welfare workers and lay people on a massive scale
so that participatory government may prove a progressive reality.
Therefore
experts may have to be invited into local bodies, legislatures and the like pnlitical and administrative organs based on elections. [842 E-G]
(2) ,a) The appellant suffered no disqualification on the score of holding
an office of profit under Government. The legal provisions under the Act and
the rules make of an insurance medical practitioner a category different from
one who runs a private clinic and enters into contractual terms for treatment
of patien'ts sent by Government, nor is he a full fledged government servant.
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MADHUKER v. J. c. RAJAN! (Krishna lyer, !.)
833
He is a tertium quid. [842-A]
(b) The doctor under the scheme has obligations of a statutory sa~our. He
is appointed on his application which is processed by the appropnate body,
removed if found wanting obliged to discharge
duties·, make
some reports
and subject himself to certain discipline while on the panel. [844 F-G]
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(3) (a) For holding an office of profit under Goverimwnt . one need not be
in the service of Government and there need be no relattonshtp of master and
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servant. One has to look at the substance, not the form.
[851 D-E]
Gurugobinda [1964] 4 SCR 311 refeued to.
(b) Jn the present case the capitation fee is the remuneration the doctor
is paid and this came not from Government direct but_ from a complex of
sources. The power to appoint, direct and remove, to regulate and discipline,
may be good indicia but not decisive. Government had partly direct and
partly indirect control but the conclusion is not inevitable because: the doctor
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is put in the list not by Government directly but through a prescnbed process
where the Surgeon General has a presiding place. How proximate or remote
is the subjection of the doctor to the control of the Government to bring him
under Government is the true issue. The appellant was not a servant
of
Government, but a private practitioner, was not appointed directly by Government but by an officer of Government on the recommendation of a Committee, was paid not necessarily out of Government revenue and the control
over him in the scheme was vested not in Government but in an administrative
medical officer and director whose position is not qua Government servant but
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creatures of statutory rules.
The ultimate vower to remove him did lie in
Government even as he enjoyed the power to withdraw from the panel. The
mode of medical treatment was beyond Government's control and the clinic
was a private one. The insurance medical practitioner is not a free-lancer but
subject to duties obligations, control and rates of remuneration
under
the
overall supervision and powers of Government. [851 F-G; 852 A-C]
Deorao v. Keshav, AIR 1958 Born. 314 p. 318, para 12 and Manipopal v.
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State AIR 1970 Cal. 1, 5 para 20 referred to.
(c) The appellant- is not functioning under the Government i!l the plenary
sense implied in electoral disqualification. The ban on candidature must have
a substantial link with the end viz : the possible misuse of position as Insurance
Medical Practitioner in doing his duties as Municipal President. [852 D]
(4)(a) The first step is to enquire whether a permanent, substantive position
which had an existence independent from the person who filled
it can be
postulated in the case of insurance medical practitioner or is the post
an
ephemeral, ad hoc, provisional incumbency created, not independently but as
a List or Panel distinguished from a thing that survives. 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.
The post of insurance medical practitioner cannot
be equated with the post of a peon or a security gunman who too has duties
to perform. Viewed from this point Kanta and Mahadeo are reconcilable in
the former an ad hoc Assistant Government Pleader with diities and remuneration was held to fall outside office of profit in the latter a permanent panel of
lawyers maintained by the Railway Administration with special duties of a
lasting nature constituted an office Of profit. [852 G.H; 853 AJ
(b) Had there been a fixed oanel of doctors with special duties and discipline, a different complexion could be discerned.
No rigid number of insurance
medical practitioners is required by the rules or otherwise. If an insurance
medical practitioner withdraws there was no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied.
Likewise it is not possible to conclude that these doctors though subject
to responsibilities, eligible to remuneration and liable to removal cannot squarely
fall under the expression holding under Government.
Enveloped though the
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SUPREME COURT REPORTS
(1976] 3 S.C.R.
insurance medical officer is by governmental influence and working within the
official orbit it is not possible to hold that there is an office of profit held by
him and that he is under Government.
[853 C-E]
[Obiter: On a clooo stlldy of ss. 21 and 44 and in the light of the ruling
of this court in 1953 SCR 1154 the election petition under s. 2·1 is all inClusive
and not under-inclusive, even if the invalidation of the election
is
on the
score of the disqualification under s. 16 it is appropriate to raise that point under
s. 21 which is comprehensive.
All grounds on the strength of which an election
can be demolished can be raised in a proceeding under s. 21.
The language
of the provision is wide enough.
It is not correct to say that s. 44 cuts back
on the width of the specific section devoted to calling in question an election
of a councillor (including the Presideht). [854 D·Fl
If the appellant's election were invalid there was only a single survivor
left ~n t~e field.
Nat_ura1ly in any constituency where there was only one vaHd
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nomination that nominee gets elected for want of a contest.]
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CIVIL APPELLATE JURISDICTION : Civil Appea:ls Nos. 1270, 13151316 of 1975.
Appeals by Special Leave from the Judgment and Order dated the
26-8-75 of the Joint Judge at Thain in Election Petitions Nos. 3 and
4 of 1974.
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R. P. Bhat (In CAs.
1315-1316/75, K.
R.
Chaudhury,
K.
Rajendra Chaudhury and Mrs. Veena Khanna for the Appellants in
CAs. 1315-1316/75 and in C.A. 1270/75.
D. V. Patel (In CAs. 1315-16/75, V. N. Ganpule for respondent
No. 1 in all the appeals.
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D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent
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No. 2 in CAs. 1315-1316/75.
M. N. Shroff for respondents 4 and 5 in CAs. 1315-1316/75.
The Judgment of the Court was delivered by
KRISHNA IYER, J.
The first two civil appeals based on admitted,
abbreviated facts, revolving round the election of the President of the
Basscfo Council (and the third raises virtually the same point but refers to the Bhibendi MuJaicipal Council)
under
the Maharashtra
Municipalities Act, 1965 (the Municipal Act, for short) has led to
Jong and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and
illumining which, by interpretative effort, has drained ns of onr faith
in the blessings of simplicity, certainty and consistency in Indian codified law. We may pardonably, but hopefully, permit ourselves by way
of constructive criticism of perfunctory codification-a proliferating
source of lltigation-that it was once thought,
"With a Code, all onr troubles and cares would ma,giC'ally va'aish. The law, codified, would become stable, predictable and certain. The rules of law, pnrified, would be accessible to, and understood by, not only the legal establishment of bench and bar but the people as well."
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MADHUKER v. J. c. RAJAN! (Krishna lyer, !.)
835
Professor Grent E. Gilmore comments :
"The law, codified, has proved to be quite as unstable,
unpredictable, and uncertain-quite as mulishly unruly----11s
the common law, !Tu1codified, had ever been.
The rules of
law, purifie~, have remained the exclusive preserve of the
lawyers; the people are still very much in our toils and
clutches as they ever were-if not more so."
(Quoted by H. R. Hahlo in Codifying the Common Law :
Protracted Gestation-Mod. Law. Rev. January 1975, p. 23,
29-30).
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Election Jaw has necessiμily to be Statutory, but a code can be
clear iu its scheme and must be such that litigation-proof elections
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should become the rule. Legislative nemesis, in the shape of ambiguity
-induced litigation is a serious political misfortune in the area of elec-
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tions where lay men go to the polls and people's verdicts get bogged
down in court disputes, attended with desperate delays. Some intelligent care at the drafting stage, some vision of the whole scheme in the
framers, will reduce resort to legal quarrels and appellate spirals so
that the time consumed in this Court in resolving conflicts of construeD
tion in comP'aratively less important legislations can be spared for more
substantial issues of general public importance.
Civil Appeals Nos. 1315 and 1316 of 1975
One Shri Rajani, a candidate for Presidentship of the Bassein
Municipal Council and Shri SamaJat, a voter in tha:t municipal mea,
made common cause and filed two election petitions challenging the
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declaration in favour of the appellant, Dr. Parulekar, who was the
successful candidate, winning by a large plurality of votes.
The. resume of relevant facts sufficient to appreciate the cd,1tentions
may straightway be set out. We are confining, as suggested by counsel,
to the twin appeals relating to Bassein since the fate of Bhibandi must
follow suit.
Three candidates, including the two already mentioned,
had filed nominatiol,1 papers on October 21, 197 4 for the presidential
election of the Municipal Council. At the time of the scrutiny which
took place two days later, no objection was raised to the nomination
of Dr. Parulekar by anyone and, on the withdrawal of the third candidate within time, there was a straight fight between the appeil'ilat and
the first respondent.
The poll battle which took place on 17-11-74
found the appellant victor and he was so declared. The frustrated first
respondent and his supporter, 2nd respondent, challenged the return of
the appellant by separate election petitidas under s. 21 of the Municipal Act. The sole ground on which the petitioners were founded was
that Dr. Parulekar, the returned candidate, was disqualified under s.
16(1) (g) of the Municipal Act, the lethal vice alleged ag!l,jnst him being that on the date of nomination he was holding an office of profit
1Tu1der the Government, as he was then, admittedly, working as a panel
doctor appointed under the Employees' State Insurance Scheme
( acronomically, the ESI scheme), a beneficial project contemplated by
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SUPREME COURT REPORTS
[1976] 3 s.c.R..
the ESI Act, 1948. Of course, the appellant doctor submitted his
resignation on November 5, 1974 and this was accepted on November
11, 1974.
Thus, before the actual polling took place, but ~ter the
nomination, he had ceased to be on the ESI palnel. Another crrcumstance which may have some significance in the overall assessment of
the justice of the case, although of marginal consequence on the law
bearing upon the issues debated. at the bar, is. that the appellant has
"been a councillor of the aforesaid municipality since 1962 and he has
also been a doctor on the ESI panel throughout the same span of years
and no one has chosen to raise the question of disqualification on this
score up ti11 the 1st respondent fell to his rival and had no other tenable
grou'ild of attack. Necessity is the mother of invention and the respondents, aided by the cute legal ingenuity, may be, dug up the disqualification of 'office of profit' and, indeed, wholly succeeded befor!) the
Election Tribunal, the Joint Judge of Thana. The Trial Judge not
merely voided the appellant's election but declared the 1st respondent
President since he was the sole surviving candidate. This order of the
Joi!nt Judge has been assailed before 'us in the two appeals, after securing leave under Art. 136.
Three main contentions have been urged before us by Shri Bhatt,
counsel for the appellant, which we will formulate and deal with one
by one, although on the merits the most formidable issue is as ta
whether figuring in the medical list under the ESI scheme amounts to
holding aln office of profit under Government. With a view to get a
hang of the major plea, it is necessary to study the scheme of the ESI
Act, even as to get a satisfactory solution of the other two points we
have to gather the ensemble of provisions dealing with disqualification
of candidates and the triple remedies provided in that behalf by the
Municipal Act.
The discussion, to be put in proper focus, requires
formulation of the submissions of cou'ilsel, the foremost in importance
and intricacy being .whether a doctor on the Medical List made by the
Surgeon-General of the State holds an 'office of profit' within the meaning of s. 16(1) (g) of the Municipal Act. Next in the order of priority
is the question whether a petition for setting aside an election of President on the ground of disqualification for being a councillor is permissible under s. 21 o~ the Municipal Act in view of the special provision
in s. 44 of the said Act .and the rules regarding objections to 11ominations and appeal therefrom framed under that Act. The last question
which, in a sense, is interlinked with the earlier one is as to whether,
assuming the appellant to be disqualified, the first respondent can be
declared the returned candidate or President, by-passing the necessity
for a fresh poll-getting elected, as it were, through the judicial constituency of discretionary power.
It is plain democrat!c sense that the electoral process should ordi~
narily 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 for norms. The
frequency of forensic overturing of poll verdicts injects instability into
the electoral system, kindles hopes in worsted candidates and induces
postmortem discoveries of 'disqualifications' as a desperate gamble In
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MADHUKER v. J. c. RAJAN! (Krishna lyer, !.)
83 7
the system of fluctuating litigative fortunes.
This is a caveat against
overuse of 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, 'alld
not retreat from the Rule of Law.
We will proceed to take a close-up of the t)uee lines of attai;k o~t
l.il,1ed above, and if interference with the election must follow, 1t will;
otherwise not.
The appellant is a doctor in Maharashtr.a where the municip~l~ties
are organised, based on popular franchise, m terms of ~e Mumc1pal
Act. It is a heartening omen that this local body, Bessem, has electorally attracted professional men, not mere politicians, into its administrative circle; for the appellant is a 'medic' while respondent 1 is an
'advocate'. By a margin of over. a thousand votes the former won bnt
the lawyer rival has invoked the law to nndo the election on the gronnd
of disqualification based m s. 1()(1) (g) of the Municipal Act. The
ban is on one who holds an office of profit under govermnent and the
public policy behind the provision is obvious and wholesome. We may
read the relevant part of the section :
"16(l)(g) : No person shall be qualified to become a
Councillor 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 Govermnent or
any local authority;"
The short question then is whether the appellant 'is qnalified to be
a Councillor (which expression is rightly deemed to iaclude President,
vide s. 2(7). The disqualifying stain is stated to be that he held an
office of profit under the State Government. He did resign before the
date of poll but after the date of filing nomination. The nomination
was vitiated and subsequent resignation did not confer moksha and the
election thus became void. Assuming that if a candidature is ~tigmatis
ed by a fatal blot at the time of nomination the election also suffers invalidity, despite intervening removal of the disqualification, did the
doctor incur the penalty by being on the medical patael of the ESI
scheme?
The critical question, apparently simple and limpid, has, when
saturated with precedential erudition and lexicographic inundation,
become so learnedly obscnre and confiictively turbid that were we
governed by a radic&lly streamlined methodology of legislation and
liberality of interpr?tation, as obtains in other systems of jurisprudence,
much of .the f~renstc .wo~k could haye been ob~iated. This is a problem of dtsturbmg social import outside the orbit of these appeals with
which alone we are currently engaged.
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. ~he magnificent conceJ?t of judicial review is at its best when kept
w1thm the beanl!ful trelhs of broad principles of public policy and
tested by the intentionability of the statute. With this predisposition
calculated to make judge-power functionally meaningful, we proceed
I? fix the contextnal s.emantics of 'office of profit' as a disqualificalionary factor for runnmg for municipal president. To begin with the
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
very beginning; what is an office ?-too simplistic to answer with ease
that it is derived from 'officium' and bears the same sense. Indeed, in
Latin and English, this word has protea:.1 connotations and judicial
choice reaches the high point of frustration when the highest courts
here and abroad have differed, dependent on varying situations, or
statutory schemes, the mischief sought to be suppressed and the surrounding social realities. Then we come to the second question : what
is alil 'office of profit'? And, thirdly, to the question : when is an
'office of profit' under Government ?
The context-purpose signification of expressions of varying imports leaves room for judicial selection. Illustratively, we may refer to
two decisions which throw some light but turn on the statutory setting
of those cases. For instance, in Ramachandran (AIR 1961 Madras
450, 458) it has beeJ,1 observed :
" .. We find, in Bacon's Abridgment at Vol. 6, p. 2, the
article headed 'of the nature of an officer, and the several
kinds of officers', commencing thus : 'It is said that the word
'officium' principally implies a duty, and, in the next pface,
the charge of such duty; and that it is a rule that where one
man hath to do with another's affairs agailast his will, and
without his leave, that this is an office, and he who is in it
is an officer'.
And the next paragraph goes on to say :
'There is a difference between an office and an employment,
every office being ail employment; but there are employmeiats which do not come under the denomination of offices;
such as an agreement to make hay, herd a flock, etc; which
differ widely from that of steward of a manor, etc.
The first
. of these paragraphs implies that an officer is one to whom
is delegated, by the supreme authority, some portion of its
regulating and coercive powers, or who is appointed to represent the State in its re1'ations to individual subjects. This
is the central idea; and applying it to the clause which we
have to construe, we think that the word 'officer' there mell'ilS
some person employed to exercise, to some extent, and in
certain circumstances, a delegated function of Government.
He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those
of someone who is so armed."
In Statesma11 v. Deb ( 1) it is said :
"An office means ~10 more than a position to which certain
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duties are attached.
According to Earl Jowitt's Dictionary
a public office is one which entitles a man to act 'in the •affairs
of others without their appointment or permission."
Both these decisions may perhaps be generally relevant but not precisely to the point.
We were taken through the panorama of ca~e-law a'nd statute-law
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relating to corporations, companies, autonomous bodies
and other
creatures of statute, to bring out the content of 'office of profit under
(i} [1968) S.C.R. 6J0,620.
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MADHUKER v. J. c. RAJAN! (Krishna Iyer, !.)
839
government' as di~tinguished from offices under the control of government. J1adeed, even the Constitution of India disqualifies a person for
being chosen as Member, if he holds any office of profit under the
Government. The question may well arise whether the ESI Corporation is under the control of government and can be equated with State
so that holding any office thereunder may 'attract the proscriptiota of
s. 16(l)(g). We are relieved from this industrious adventure by the
stand taken by counsel for the respondents, Shri Patel, that he stakes
this part of his case on the sole ground that the appellant doctor is
holding an office of profit under the Maharashtra government, as such.
He has no case therefore that the doctor is under the control of the ESI
Corporation, an institution controlled by the Union government and
hence is disqualified. The short issue, therefore, is whether, under the
scheme of the ESI Act and the rules framed thereunder, the appellant
squarely falls within the description of holder of office of profit under
the State Government. This branch of enquiry takes us to au analysis
of the provisions bearing on the scheme of the medical project under the
ESI Act and the role of the State government therein. We have some
assistance from rulings of this Court in resolving the dispute and we
may mention even ip advance that a seeml,ig disharmony between two
decisions of this Court also has to be dissolved. Apparent judiciru
dissonam:e may give place to real consonance, if a dissection of the
facts and discernment of the reasoning, l,i the light of which the decisions of this Court are rendered, is undertaken.
The ESI Act provides medical facilities for the working class, the
primary responsibility for executing the project being shouldered by a
statutory corporation created by s. 3 of the Act and the infra-structure
for implementation is orga!.1ised by the other provisions of Chapter II.
A Standing Committee administers the affairs of the Corporation. A:
Medical Benefit Council is constituted by the Central Government to
help in the discharge of the duties of the Corporation which involve
expertise. The financial resources come from contributions a!ad other
moneys specified in the Act itself and an Employees' State Insurance
Fund has been brought into existence in this behalf. The Corporation,
although has a separate legal personality, is under the cdatrol of the
Central Government. But that is not the pertinent issue before us.
The fatal sin is not that the appellant is a doctor under the ESI
Corporation but that he is holding an 'office of profit' under 'the State
Governm.ent. We may ig,1ore provisions relatinK to the powers of the
Corporat~~n and ~~rn to the role of Government vis a vis private medical pracllt10ners lEe the appellant. He is not a full-time employee of
~~vernment. . On the other hand, he runs his own clinic. Even so,
It IS argued wrth force that s. 58 aJ,1d a fasciculus of rules framed by
the State Govermnent under s. 96, viewed as a mini-scheme creates
offices of profit which are filled by private doctors like the appellant.
The legal spring-board is s. 58 of the ESI Act and it is best to
start off with reading t!Joat section :
"58. Provision of medical treatment by State Government.-( 1) The State Govermnent shall provide for insured persons and (where such benefit is extended to their
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SUPREME COURT REPORTS
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families) their families in the State, reasonable medical,
surgical and obstetric treatment :
Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at
clinics of medical practitioners on such scale and subject
to snch terms and conditions as may be agreed upon.
( 2) Where the incidence ... "
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Two things are self-evident.
An obligation to provide medical
treatment for insured persons has been saddled on the State Government.
Secondly, that Government may discharge this responsibility
through arrangement with medical practitioners who run clinics. The
bare bones of s. 58 have to be clothed with flesh before a viable project comes to life.
This is achieved by rules framed under s. 96 especially s. 96(1)(d) & (e). We may make it clear that the Corporation's
entry into the field is not inhibited by s. 58 as s. 59A underscores.
But what is posed before us is the appellant's status as a holder of
an office of profit under the Government since he is
admittedly a +
medical insurance officer within the mechanism set np by the rules.
Here we seek light from the several rules governing medical insurance
officers, their empanelment, control, removal and
allied
matters;
Some empathy with the plan of benefit by the State Govermnent is
a pre-requisite to an insight into the true nature of a medical insurance officer in the context of an office of profit.
A broad idea can be gained from the key rules and so we sketch
the outlines by reference to them, skipping
the
rest.
The Chief
Officer entrusted with the working of the scheme is the
Director.
Rule 2(3A) defines 'Director' as the Director, ESI scheme, Government of Maharashtra. This officer, the kingpin of the whole programme, is an appointee of the State Govermnent.
The content of
medical benefits is covered by r. 4 which extends the medical services to insured persons and runs thus :
"4. Provision of general medical services
to
insured
persons by Insurance Medical Practitioners.-
( 1) The State Government shall arrange to provide general medical services to insured persons at clinics of
Insurance Medical
Practitioners, who have undertaken to provide general medical services under these
rules and in accordance with their terms of service.
( 2) An Insurance Medical Practitioner shall be deemed
to be appointed as an Insurance Medical officer for
the purposes of the Regulations."
The agency for rendering medical treatment
is
called
Insurance
Medical Practitioner. Rule 2(6) defines the
Insurance
Medical
Practitioner as one appointed as such to provide medical benefits
nnder the Act and to perform such other functions as may be assigned to him.
Rule 2(2) authorizes the appointment of one or
more officers by the State Govermnent to control the administration
of medical benefits and they
are called
'administrative
medical
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MADHUKER v. J. c. RAJAN! (Krishna Tyer, /.)
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officers'.
These officers shall, under r. 5, prepare a list of the praA
ctitioners whose applications have been approved by the Allocation
Committee (defined in r. 2(13). This list is called the Medical List
of Insurance Medical Practitioners. Before a doctor can be included in the medical list, he has to apply to the administrative medical
officer in the form specified by the State Goverument for the purpose.
The Insurance Medical Practitioners have to be responsible for rendering medical treatment and must conform to the conditions speciB
lied. A Medical Service Committee shall be set up for such areas
as
may be considered appropriate by the State Government.
This
Committee investigates into questions between an Insurance Medical
Practitioner and a person who is entitled to obtain treatment from
that practitioner, etc.
On the report of the Medical Services Committee relating to the conduct of an Insurance Medical Practitioner,
the Director may take action in one or more of the ways specified in
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r. 22(2). He may even remove the Insurance Medical Practitioner's
name from the medical list. There is an appeal by the aggrieved
doctor to the State Government. Rule 24 relates to investigation into
cases of disputed prescriptions, record keeping and certification relating to Insurance Medical Practitioners. The total impact of a detailed study of the various rules framed by the State Government bearing
on Insurance Medical Practitioners is that a doctor applies for getting
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into the Medical List, agrees to abide by the duties and conditions
prescribed, is under the control of the Medical Services Committee
and may even be removed or resign from the panel. It is clear that
he cannot extricate himself from government control by the plea that
he is a private doctor because his entry into the Medical List is preceded by an application for inclusion where he undertakes certain
responsibilities. Such application is considered by an Application ComE
mittee which recommends his name to the Director, Employees State
Insurance Scheme.
The Surgeon General ultimately grants the prayer
for inclusion in the Medical List on the recommendations of the Allocation Committee. It is true that an insurance medical practitioner
has the right to resign and also to have the name of any insured person
removed from his list. _ He has duties which are prescribed by the
rules vis a vis the patients. He is required to furnish various pieces
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of clinical information and to do other medical duties as are set out
in r. 10. The State Government has the power to remove the name
of any individual Insurance Medical Practitioner from the Medicwl
List even as the latter is entitled to give notice to the Director, ESI
Scheme that he desires to cease to be an Insurance Medical Practitioner
and that his name may be removed from the Medical List. It fol-
!ows that although he is a private doctor, running a private clinic, he
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1s. als? an In~ura!lce Medical Practitioner subject to the discipline,
dtrecttons, obhgattons and control of the relevant officers appointed
by the State Government in implementing the medical benefit scheme.
An insurance medical practitioner-the appellant is one--being
a medical practitioner 'appointed as such to provide medical benefit
uuder the Act and to perform such other functions as may be assigned to him,' the question arises whether this is tantamount to holding an office.
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SUPREME COURT REPORTS
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The legal provisions under the Act and the rules certainly make
of an insurance medical practitioner a category different from one
who runs a private clinic and enters into contractual terms for treatment of patients sent by Government, nor is he a full-fledged government servant.
He is a tertium quid, as it were, but the finer question is whether this category falls squarely within the description of
'office of profit under government'.
This very question fell for decision before the Bombay and Calcutta High Courts but the learned Judges, on a study of the identical
provisions, arrived at antipodean conclusions.
After all, minds
differ as rivers differ and, assisted by the flow of logic in these and
other rulings cited before us, we will hopefully reach the shore
of
correct interpretation. The process of mentation, the office of words
like office of profit' which convey many meanings and the inputs into
the complex matrix of statutory construction make what looks simple
to the lay, sophisticated for the legal, as the case on hand amply illustrates.
Back to the issue of 'office of profit'. If the position of an Insurance Medical Officer is an 'office', it actually yields profit or at least
probably may. In this very case the appellant was making sizeable
income by way of capitation fee from the medical service, rendered
to insured employees.
The crucial question then is whether
thL'
species of medical officers are holding 'office' and that 'under Government'. There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them
in the setting of the statute.
After all, all law is a means to an end.
What is the legislative end here in disqualifying holders of 'offices of
profit under government'?
Obviously, to avoid a conflict between
duty and interest, to cut out the misuse of official position to advance
private benefit and to avert the likelihood of influencing government
to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and
socio-economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive reality.
In such an expanding situation, can we keep out from elective posts at various levels many
doctors, lawyers, engineers and scientists, not to speak of an army
of other non-officials who are wanted in various fields, not as fulltime government servants but as part-time participants in people's
projects sponsored by government? For instance, if a National Legal
Services Authority funded largely by the State comes into being, a
large segment of the legal profession may be employed part-time in
the ennobling occupation of legal aid to tne poor.
Doctors, lawyers,
engineers, scientists and other experts may have to be invited
into
local bodies, legislatures and like political and administrative organs
based on election if these vital limbs of representative government
are not to be the monopoly of populist politicians or lay members
but sprinkled with technicians in an age which belongs to technol@gy.
So, an interpretation of 'office of profit' to cast the net so wide that
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all our citizens with specialities and know-how are inhibited from
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; entering elected organs of public administration and offering semivoluntary services in para-official, statutory or like projects run or
directed by Government or Corporation controlled by the State may
be detrimental to democracy itself.
Even athletes may hesitate to
come into Sports Councils if some fee for services is paid and that
proves their funeral if elected to a panchayat ! A balanced view,
even if it involves 'judicious irreverence' to vintage precedents, is the
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wiser desideratum.
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The general interpretative approach hallowed by Heydon's case
is expressed by the Bench in the Bombay ruling AIR 1958 Born 314
Deorao v. Keshav thus :
"The object of this provision is to secure independence
of the members of the Legislature and to ensure that the
Legislature does not contain persons, who have received
favours or benefits from the executive and who,
consequently, being under an obligation to the executive, might
be amenable to its influence.
Putting it differently,
the
provision appears to have been made in order to eliminate
or reduce the risk of conflict between duty and self-interest
amongst the members of the Legislature.
This object must
always be borne in mind in interpreting Art. 191."
While we agree that this consideration is important for purity
of
elective offices, the need for caution against exaggerating its importance to scare away men of skill in various fields coming into socially
beneficial projects on part-time posting or small fee cannot be ignored.
Informed by these dual warnings, we proceed to assess
the
worth of the rival contentions.
Section 58 charges the State Government with the duty to provide medical facilities to insured employees.
This obligation may
be discharged by arrangements with private clinics.
An Insurance
Medical Officer is not a government servant, but he is more than a
mere private doctor with a contractual obligation, for he undertakes
certain functions which are regulated by law viz., rules framed under
s. 96.
The question is not what he is but whether he is 'holding
an office of profit'.
We have already referred to the principal sections and rules, the
broad scheme and infra-structure and the rights, duties and degree
' of con'.rol over Insurance Medical Practitioners exercised by
the
s.tate dlfec.tiy or through its officers.
A further elaboration is possible, but is supererogatory.
A full study of the Bench decisions of
Bombay and Calcutta led to diametrically opposite conclusions thus
proving the wide judicial choice available depending on the perspective, the. import and. ~he objections one accepts from the two enactments VIZ. the Mun1c1pal Act and the Insurance Act.