# SATRUCHARLA CHANDRASEKHAR RA.JU v. VYRICHERLA PRADEEP KUMAR DEV AND ANR

- **Citation:** [1992] Supp. 1 S.C.R. 408
- **Court:** Supreme Court of India
- **Decided:** 1992-09-04
- **Case number:** Civil Appeal No. 4184 of 1991
- **Bench:** K. Jayachandra Reddy, G.N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satrucharla-chandrasekhar-ra-ju-v-vyricherla-pradeep-kumar-dev-and-anr-11623
- **Pages:** 34

## Headnote

Representation of the People Ac4 1951-Sections 10, l 16A, read with
Articles 102(1)(a), 191(J)(a), 58(2) of the Constitution of India-Disqualification-Holding an office of profit under Government-Tests of--ObC jects of Articles 102(1)(a), 191 (J)(a)---Cons11Uctioit-Method.
Representation of the PeopleAc4 1951-8ections 10, 116-A. read with
Attic/es 58(2), 191(1)(a) of the Constitution of India-Post of a teacher in
ITDA-whether an office of profit under Government.
D
Representation of the People Act, 1951-fiections JO, 116-A read with
Article J91(J)(a) of the Constitution of lnditr-''Officer"-Meaning of-Office
o/ profiHngredientS-Office of profit and holding a post under the Government-Whether same.
The Project Officer or the lntergrated Tribal Development Agency
E (ITDA) appointed the appellant as a Single Teacher in a primary school.
F
He joined duty in January 1988 and was working in a school or the ITDA.
On 2.8.88 the Tribal Welfare Officer on Inspection of the school,
noticed some irregularites. By an order dated 23.8.88, he kept the appel'.
lant under suspension pending enquiry.
The appellant questioned the order before the State Administrative
Tribunal by filing a petition, but his petition was rejected.
On 26.10.1989 the appellant submitted his resignation to the Project
G Officer, who was the appointing authority. The Project Officer made an
endorsement 011 the letter than his resignation could not be accepted In
view of the pending enquiry.
Subsequently the election programme for the Legislative Assembly
was announced and the appellant filed his nomination and contested
H election from the 8 Nagaru (S.T.) constitutency on 22.11.89. Counting took
408
SATRUCHARLA RAJU v. VYR!CHERLA
409
place on 26.11.89 and on 27.11.89 the appellant was declared duly elected. A
The respondent No.1, who was one of the contesting candidates and
who lost the election, filed an election petition challenging the election of
the appellant on the ground that the appellant was disqualified as be was
holding an office of profit under the Government not only on the date or
filing the nomination but also subsequently In view or the fact that bis B
resignation was not accepted In view of the pending enquiry.
The appellant contended before the High Court that the ITDA under
which be was deemed to be holding an office as a teacher was only a
registered society under the Societies Registration Act and that the society
could not be said to be the Government nor was a part or the Government; C
and that be tendered bis resignation on 26.10.89, which was to be deemed
to have come Into effect from that date.
Tbe Issue before the High Court was whether the appellant (respon·
dent No. 1 before the High court) was holding an office or profit under D
the State Government on the date of bis nomination and was disqualified
to contest for the same.
Th~ High Court, allowing the election petition, held that the appel·
lant was holding an office of profit and thus Incurred the disqualification.
This appeal was filed under Section 116·A of the Representation or
the People Act, 1951 against the High Court's order.
E
The appellant contended that the reasons given by the High Court
were not enough to conclude that the appellant was holding an office or
profit under the Government; that one of the main tests was whether the F
Government got power to appoint and to dismiss the appellant from
service; that the Government did not have the authority to dismiss him
whereas be was appointed by the Society and the Society could dismiss
him; that the Society was a registered society and the society was not the
Government or a part or the Government and thus the appellant was not G
holding an office or profit under the Government.
On the question, whether the appellant was holding an office or
profit under the State Government at the relevant time and was disquallll·
able under Article 191(1)(a) or the Constlt11.tlon or India for being chosen
as a member of the Legislative Assemb

## Text

_Characters 0–39,892 of 73,825. This is a partial read: ask again with offset=39892 for what follows._

A
SATRUCHARLA CHANDRASEKHAR RA.JU
v.
VYRICHERLA PRADEEP KUMAR DEV AND ANR.
SEPTEMBER 4, 1992
B
[K. JAYACHANDRA REDDY AND G.N. RAY, JJ.]
Representation of the People Ac4 1951-Sections 10, l 16A, read with
Articles 102(1)(a), 191(J)(a), 58(2) of the Constitution of India-Disqualification-Holding an office of profit under Government-Tests of--ObC jects of Articles 102(1)(a), 191 (J)(a)---Cons11Uctioit-Method.
Representation of the PeopleAc4 1951-8ections 10, 116-A. read with
Attic/es 58(2), 191(1)(a) of the Constitution of India-Post of a teacher in
ITDA-whether an office of profit under Government.
D
Representation of the People Act, 1951-fiections JO, 116-A read with
Article J91(J)(a) of the Constitution of lnditr-''Officer"-Meaning of-Office
o/ profiHngredientS-Office of profit and holding a post under the Government-Whether same.
The Project Officer or the lntergrated Tribal Development Agency
E (ITDA) appointed the appellant as a Single Teacher in a primary school.
F
He joined duty in January 1988 and was working in a school or the ITDA.
On 2.8.88 the Tribal Welfare Officer on Inspection of the school,
noticed some irregularites. By an order dated 23.8.88, he kept the appel'.
lant under suspension pending enquiry.
The appellant questioned the order before the State Administrative
Tribunal by filing a petition, but his petition was rejected.
On 26.10.1989 the appellant submitted his resignation to the Project
G Officer, who was the appointing authority. The Project Officer made an
endorsement 011 the letter than his resignation could not be accepted In
view of the pending enquiry.
Subsequently the election programme for the Legislative Assembly
was announced and the appellant filed his nomination and contested
H election from the 8 Nagaru (S.T.) constitutency on 22.11.89. Counting took
408
SATRUCHARLA RAJU v. VYR!CHERLA
409
place on 26.11.89 and on 27.11.89 the appellant was declared duly elected. A
The respondent No.1, who was one of the contesting candidates and
who lost the election, filed an election petition challenging the election of
the appellant on the ground that the appellant was disqualified as be was
holding an office of profit under the Government not only on the date or
filing the nomination but also subsequently In view or the fact that bis B
resignation was not accepted In view of the pending enquiry.
The appellant contended before the High Court that the ITDA under
which be was deemed to be holding an office as a teacher was only a
registered society under the Societies Registration Act and that the society
could not be said to be the Government nor was a part or the Government; C
and that be tendered bis resignation on 26.10.89, which was to be deemed
to have come Into effect from that date.
Tbe Issue before the High Court was whether the appellant (respon·
dent No. 1 before the High court) was holding an office or profit under D
the State Government on the date of bis nomination and was disqualified
to contest for the same.
Th~ High Court, allowing the election petition, held that the appel·
lant was holding an office of profit and thus Incurred the disqualification.
This appeal was filed under Section 116·A of the Representation or
the People Act, 1951 against the High Court's order.
E
The appellant contended that the reasons given by the High Court
were not enough to conclude that the appellant was holding an office or
profit under the Government; that one of the main tests was whether the F
Government got power to appoint and to dismiss the appellant from
service; that the Government did not have the authority to dismiss him
whereas be was appointed by the Society and the Society could dismiss
him; that the Society was a registered society and the society was not the
Government or a part or the Government and thus the appellant was not G
holding an office or profit under the Government.
On the question, whether the appellant was holding an office or
profit under the State Government at the relevant time and was disquallll·
able under Article 191(1)(a) or the Constlt11.tlon or India for being chosen
as a member of the Legislative Assembly, allowing the appeal, this Court, H
A
B
410
SUPREME COURT REPORTS(1992) SUPP. 1 S.C.R.
HELD: 1.01. In order to determine whether a person holds an office
of profit under the Goverment, several tests are ordinarily applied such
as whether the Government makes the appointment, whether the Government bas the right to remove or dismiss the holder of the office, whether
the Government pays the remuneration, whether the functions performed
by the bolder are carried on by him for the Government and whether the
Government has control over the duties and functions of the bolder •.
[423 D-E]
1.02. Some of the tests or principles that emerge for determining
C whether a person holds an office of profit under the Government, may be
summarised thus: [ 421-C]
(1) The power of the Government to appoint a person In office or to
revoke his appointment at the discretion. The mere control of the Government over the authority having the power to appoint, dismiss, or control
D the working of the officer employed by such authority does not disqualify
that officer from being a candidate for election as a member of the
Legislature. [421-D]
(2) The payments from out of the Government revenues are imporE tant factors In determining whether a person is holding an office of profit
or not of the Government. Thoui:h payment from a source other than the
Government revenue is not always a decisive factor. [421-E]
(3) The Incorporation of a body corporate and entrusting the functions to it by the Government may suggest that the statute intended it to be
F
a statutory corporation independent of the Government. But It is not conclusive on the question whether it is really so independent. Sometimes, the
form may be that ofa body corporate independent of the Government, but in
substance, it may be the just alter ego of the Government itself. [421 F-GJ
G
< 4) The true test or determination of the said question depends upon
the degree of control, the Government has over it, the extent of control
exercised by very other bodies or committees, and its composition, the
degree of Its dependence on the Government for its financial needs and the
functional aspect, namely, whether the body Is discharging any important
Governmental function or just some function which is merely optional
H from the point 'of view of the Government. [421-H, 422·8]
SATRUCHARLA RAJU v. VYRICHERLA
411
1.03. Articles 102(1)(a) and 191(1)(a) of the Constitution, deal with A
disqualifications of a person being chosen as a member of the Parliament
or the State Legislatnres respectively on the ground of holding of office of
profit nnder the Government. [422-D]
1.04. The object of enacting Articles 102(1)(a) and 191(1)(a) is that
there should not be any conRict between the duties and interests of an B
elected member and to see that such an elected member can carry on freely
and fearlessly bis duties without being subjected to any kind of
governmental pressure, thereby Implying that if such an elected person Is
holding an office which brings him remunerations and If the ,Government
bas a voice In bis functions In that office, there is every likelihood of such C
person succumbing to the wishes of the Government. These Articles are
Intended to eliminate the possibility of such a conRict between duty and
Interest so that the purity of legislature is unaffected. [ 422 E·F]
1.05. Articles 102(1)(a) and 191(1)(a) are incorpprated In order to
elemlnate or reduce the risk of conRlct between the duty and Interest D
amongst the member of the Legislature and to ensure that the Legislature
does not contain persons who have received benefits from the Executive
and who consequently being under an obligation might be amenable to its
Influence. Therefore this object must be borne In mind In Interpreting
these Articles. [428-H, 429·A]
E
1.06. In Interpreting the Articles 109(1)(a) and 191 (l)(a), the object,
namely to avoid conRlct between duty and Interest and to eliminate the
misuse of official position to advance private benefit and to avoid
likelihood of Influence of the Government to promote personal advantage.
It must also be borne In mind that under these provisions the right to F
contest is being taken away on the ground of the said disqualification.
Such a ban on candidature must have a sulistantlal and reasonable nexus
to object thlit Is to be achieved, namely the elimination possibility of
misuse of the position. It Is from this point of view that the right to
appoint and right to remove the bolder of the officer In many cases G
becomes an Important and decisive test. The source of payment for the
office may also be taken Into consideration but Is not always a decisive
factor. Likewise the control exercised by the Government may be one of the
tests but that by Itself Is not a decisive test. [ 430 D-E]
1.07. The Government Is undertaking several projects and activities H
412
SUPREME COURT REPORTS(l992] SUPP. 1 S.C.R.
A
through the corporations and local bodies exercising some control over
such corporations or bodies. In that view of the matter they may come
within the meaning of the "State' as envisaged in Article 12 but that may
not be a decisive factor In deciding the Issue. [ 439-A]
1.08. Section 10 of the Representation of People Act as well as Article
B 58(2) of the Constitution of India do indicate that all persons employed in
the undertakings, corporations or local bodies where Government exercises some con\rol cannot be deemed to suffer disqualification for contesting the elections except to the extent indicated therein. [439-B]
C
1.09. If a strict and narrow construction Is to be applied that
amounts to shutting off many prominent and other eligible persons to
contest the elections which forms the fundamental basis for the
democratic set-up. Therefore several factors depending upon the facts of
each case ha-:e to be taken into consideration in deciding whether a
particular person is disqualified by virtue of his holding an office of profit
D before concluding that such an office is under the Government. [439 C-D]
Ravana Subana v. G.S. Kageerappa AIR 1954 SC 653; Mau/ana Abdul
Shakur v. Rikhab Chand and another, [1958] SCR 387; Dr. Deorao Lwcman
Anande v. Kashav Lwcman Borkar, AIR 1958 Bombay 314; M. Ramappa v.
E Sangappa and others, [1959] SCR 1167; Gopala Kump v. S.A. Paul, AIR
1!161 Kerala 242; Ioli Prasad v. Kalka Prasad, AIR 1962 All 128; Kona
Prabhakar Rao v. M. Seshagiri Rao, [1982] 1 SCC 422; Gurngobinda Basu
v. Sankari Prasad Ghosa/, [1!164] 4 SCR 311; Ashok Kumar Bhattacharyya
v. Ajay Biswas and ors., [1985] 2 SCR SO; D.R. Gurnshantappa v. Abdul
Khaddus Anwar and Ors. [1969] 3 SCR 425; Madhuker G.E. Pankakar v.
F Jaswant Chobbildas Rajani and Ors., [1976] 3 SCR 832; Shivamurthy Swami
lnamdar etc. v. Agadi Sanganna Andanappa etc., [1971] 3 SCC 870; and
KarlJhari Bhimaji Rohamare v. Shanker Rao Genuji Ko/he and Others, AIR
1975 SC 575, referred to.
G
Bihari Lal Dobray v. Roshan Lal Dobray, [1984] 1 SCC 551, distinguished.
2.01. The Government has some control over the ITDA which is set
up as a project, since it provides funds and sanctions the posts; the
District Collector is appointed as Project Officer and some officers are
· H ex-officio members of the ITDA, which carries out the object of providing
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.]
413
the compulsory education. in tribal areas. But the ITDA is a registered A
society having its own constitution. Though the Project Officer Is the
District Collector, he acts as a dltl'erent entity. [440·F]
2.02. The power to appoint or to remove teachers Is not with the
Government hut with the Project Officer. The Government may have
control over the appointing authority but has no direct control over the B
teachers. The small post that appellant holds in ITDA Is only that or a
Teacher who Is directly under the control of the Project Officer. In such a
situation the question of any conflict between his duties and Interests as
an elected member does not arise since It cannot be said that he Is a
teacher, can be subjected to any kind of pressure by the Government which C
has neither the power to appoint him nor to remove him from service.
Taking a practical view of the· substance of these factors Into consldera·
tlon the appellant cannot be held to be holding an office of profit under
the Government. (440 G-H, 441-A]
3. Generally It is understood that an office means a position to D
which certain duties are attached. An office of profit involves two elements
namely that there should be such an office and that It should carry some
remunerations. It is not the same as holding a post under the Government
and therefore for holding an office of profit under the Government, a
person need not be in the service of the Government. (422-EJ
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4184 of
1991.
From the Judgment and Order dated 25.9.91 of the Andhra Pradesh
High Court in Election Petition No. 9 of 1990.
F
C. Sitaramiah and B. Parthasarthy for the Appellant.
M.M. Gangi.deb and P .K. Manohar for the Respondents.
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. This is an appeal under Section
116-A of the Representation of the People Act, 1951 preferred against the
order of the High Court setting aside the election of the appellant who was
elected as a member of the Andhra Pradesh Legislative Assembly from No.
G
8 Naguru (ST) constituency on the ground that he was holding an office of H
414
SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A profit under the State Government at the relevant time and was thus
disqualified under Article 19l(l)(a) of the Constitution of India for being
chosen as a member of the Assembly.
B
The appellant was appointed as a Single Teacher in a primary school
run by the Integrated Tribal Development Agency ("ITDA" for short) by
its Project Officer. He joined duty in January 1988 and was working in a
school in Jiyyammavalasa Manda! in Vizianagaram district. On 2.8.88 the
Tribal Welfare Officer inspected the said school and is alleged to have
noticed some irregularities and he kept the appellant under suspension
pending enquiry by an order dated 23.8.88. The appellant questioned the
C same before the Andhra Pradesh Administrative Tribunal by filing a petition but the same was rejected. Thereafter by a letter dated 26.10.1989 the
appellant submitted his resignation to the Project Officer who was the
appointing authority. However, the Project Officer made an endorsement
on the said letter that his resignation cannot be accepted in view of the
D pending enquiry. Subsequently the election programme for the Legislative
Assembly was announced and the appellant filed his nomination and
contested election ·from the above-mentioned constituency on 22.11.89.
Counting took place on 26.11.89 and on 27.11.89 the appellant was declared
duly elected. The respondent No. 1, who was one of the contesting candidates and who lost the election, filed an election petition challenging the
E election of the appellant on the ground that the appellant was disqualified
as he was holding an office of profit not only on the date of filing the
nomination but also subsequently in view of the fact that his resignation
was not accepted in. view of the pending enquiry and therefore he shall be
deemed to be holding an office of profit under the Government. The
F
respondent also stated in his election petition that he was not aware of the
appellant's disqualification at the time of the scrutiny of the nomination
papers. The appellant filed a written submi.sSion contesting the election
petition inter alia contending that the ITDA under which he is deemed to
be holding an office as a teacher was only a registered society under the
Societies Registration Act and the said society cannot said to be the
G Government nor is a part of the Government and that it is an independent
body. It is also stated that since he has tendered his resignation on 26.10.89
it shall be deemed to have come into effect from that iiate.
The only issue that can:e up for consideration before the High Court
H in the election petition was whether the first respondent i.e. appellant
SATRUCHARLA RAJU v. VYRJCHERLA [REDDY, J.]
415
herein was holding an office of profit under the Government of Andhra A
Pradesh on the date of his nomination and was disqualified to contest for
the same.
Evidence was led in by both the sides. The main contention of the
appellant was that the ITDA was only a registered society and even B
assuming that the Government has some control over the sanction of posts
and composition of the governing body of the ITDA it cannot be said to
be the Government or part of it or to be an instrumentality of the Government. Therefore the appellant cannot be said to have been holding an
office of profit and the mere fact that he was appointed as a teacher by
tho Project Officer of the Society he cannot be deemed to have been C
appointed by the Government. The learned Judge after referring to the
relevant clauses of memorandum of association of the Society held that (i)
Although the Society appears to be independent of the State Government
but in substance its activities are controlled by the officers of the Government who are ex-officio members of the governing body. The Chairman as D
well as the Project Officer are the officers of the State Government. A
majority of the me:nbers of the governing body are the officers holding
posts in the Government by virtue of which they became the ex-officio
members of the governing body. Thus for all practical purposes it is the
officers of the Government who control the activities of the society: (ii)
though the Project Officer is the appointing authority of the appellant but E
he is only a Secretary of the Society by virtue of his being an officer in the
Government; (iii) the Government sanctions the number of posts of
teacher, fixes their scales of pay; (iv) although the rules provide to have
funds of its own by way of recurring and non-recurring grants made by the
Government of India but it is the Government who sanctions the funds: (v) F
since the Civil Services (Classification, Control and Appeal) Rules of the
State Government are being applied to the teachers of the Society, they
must be deemed to have been treated as the employees of the Government.
The State has to provide free and compulsory education to all the children
and primary education is also the responsibility of the State Government
and it is meeting expenditures out of its funds. Therefore the function of G
appointment of the teachers in the Society by the Project Officer is one of
the Governmental functions and thus the State Government exercises
ahnost full control. For the aforesaid reasons the High Court held that
the appellant was holding an office of profit and fous incurred the
disqualification.
H
416
SUPREME COURT REPORTS(1992] SUPP. 1 S.C.R.
A
Learned counsel for the appellant before us contended that the
reasons given by the High Court by themselves, even if accepted to be
correct, ar~ not enough to conclude that the appellant was holding an office ·
of profit and that one of the main tests is whether the Government has got
power to appoint and to dismiss the appellant from service and that
B admittedly the Government has not the authority to dismiss him and this
coupled with the fact that the Society is a registered society would clinch
that the Society is not the Government or a part of the Government and
that the appellant was not holding an office of profit under the Government. The learned counsel also submitted that some of the reasons given
C by the High Court are not conclusive for holding that the Society is the
Government or a part of the Government.
Before we proceed further one aspect namely that the appellant
ceased to be a teacher before he filed his nomination to contest the
assembly election by virtue of the fact that he sent a letter of resignation
D to the post, has to be considered. Admittedly the resignation was not
accepted by the day of his election and he was kept under suspension
pending enquiry w.e.f. 23.8.88 and he was being paid the subsistence
allowance in accordance with the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules. The learned Judge of the High
E Court has also mentioned in the judgment that the appellant did not persist
on framing an issue in this regard and hence no specific issue was framed
as to whether the resignation of the appellant was effective from the date
he submitted his resignation and ·therefore he ceased to be a teacher. It
appears that the said plea was not pressed at the time of hearing of the
F
election petititon. Therefore it follows that the appellant was holding the
said post at the time of his nomination and election. The only question
therefore to be considered is whether the first respondent was holding an
office of profit under the State Government.
Article 19l(l)(a) of the Constitution of India which imposes the
G disqualifications is as follows:
"191. Disqualifications for membership-(1) A person shall
be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a
H
State-
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.)
(a) if he holds any office of profit under the Government
of India or the Government of any State specified in the
First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
xx
xxx
xx
xxli'
417
The scope and the meaning of the words "holds any office of profit
under the Government. ........ ." have been considered in a number of cases.
In Ravanna Subana v. G.S. Kageerappa, AIR 1954 SC 653 it was held that
A
B
an office of profit must be held under the Government to which any pay,
salary, emoluments are attached. In Maulana Abdul Shakur v. Rikhab C
Chand and another, [1958] SCR 387 the appellant held the post of Manager
of a school run by a committee constituted under the provisions of Durgah
Khawaja Sahib Act (36 of 1955) under the Central Government. Under the
provisions of the said Act, all the Committee members are to be appointed
by the Central Government which is also empowered to supersede the D
Committee and the appellant was appointed as Manager by the said
Committee. When the appellant was elected to the Council of States, the
unsuccessful candidate questioned the election on the ground that the
appellant was appointed by a committee of management which in turn was
appointed by the Central Government and that the Committee of the
Management could be removed by the Central G0vernment, therefore the
E
appellant was holding an office under the Central Government. The Election Tribunal accepted the said contention and set aside the election of the
appellant. On appeal this Court reversed the decision of the Tribunal
holding that 'No doubt, the Committee of the Durgah Endowment is to be
appointed by the Government of India, but it is a body corporate with F
perpetual succession acting within the four corners of the Act. Merely
because the Committee or the members of the Committee are removable
by the Government of India or the Committee can make by-laws prescribing the duties and powers of its employees, cannot convert the servants of
the committee into the holders of profit under the Government of India.
The appellant is neither appointed by the Government of India nor is removG
able by the Government of India nor paid out of the revenues of Government
of India.' It was furth~r held that "the power of the Government to appoint
a person to an office of profit or to continue him in that office or revoke his
appointment at their discretion and payment from out of Government
revenues are important factors in determining whether a person is holding an H
418
SUPREME COURT REPORTS[l992] SUPP. l S.C.R.
A office of profit under the Government though payment from a source other
than the Government revenues is not always a decisive factor. But the
appointment of the appellant does not come within this test."
B
c
D
E
(emphasis supplied)
In Dr. Deorao Laxman Anande v. Keshav Laxman Borlcar, AIR 1958
Bombay 314 it was observed that:
"Before a person can be held to be disqualified under
Article 191(l)(a), three things must be proved that (1) he
held an office: (2) that it was an office of profit: and (3)
that it was an office under the Government of India or the
State Government."
This Court further observed that:
"In our opinion, the principal tests for deciding whether an
office is under the Government, are (1) what authority has
the power to make an appointment to the office concerned,
(2) what authority can take disciplinary action and remove
or dismiss the holder of the office and (3) By whom and
from what source is his remuneration paid? Of these, the
first two are, in our opinion, more important than the third
one."
Applying the aforesaid tests, it was held that an Insurance Medical Practitioner functioning under the Employees State Insurance Act, 1948 is
F holder of an office under the State Government. In M.Ramappa v. Sangappa and others, [1959] SCR 1167 this Court observed that "Patels and
Shanbhog.s who are the holders of hereditary village offices governed by
the Mysore Village Offices Act, 1908 are officers who are apointed to their
offices by the Government though it may be that the Government has no
G option in certain cases but to appoint an heir of the last holder; that they
hold their office by reason of such appointment only; that they work under
the control and supervision of the Government; that their remuneration is
paid by the Government out of Government funds and assets; and that they
are removable by the Government, and that there is no one else under
whom their offices could be held." In Gopala Kurup v. S.A. Pau~ AIR 1961
H Kerala 242 the contention was that the appellant, a teacher in aided school,
SATRUCHARLA RAJU v. VYRICHERLA [il.EDDY, J.]
419
was disqualified to stand for the election as he is a person holding an office A
of profit under the Government, after the Kerala Education Act and the
exemption from disqualification granted earlier in favour of persons hold·
ing an office in any educational institution other than the Government
institution has no application after the Kerala Education Act. Repelling
the contention, it was held that even after the Kerala Education Act, "The B
aided schools with their own properties, their own funds and their separate
personalities, cannot be treated as Government institutions and in absence
of such merger, the employees of such institutions would still enjoy the
benefits allowed to any other educational institution other than a Government Institution: and that therefore, they are entitled for exemption. In Joti
Prasad v. Ka!ka Prasad, AIR 1962 All 128 it was held that "Vice- Chancellor C
of the Agra University, holding an office which is a whole time job carrying
a salary, is appointed by the Government of Uttar Pradesh in his capacity
as the Chancellor of the University under the provisions of the Agra
University Act, 1926. Even so, the Vice-Chancellor is ~ot disqualified to
stand as a Member of the U.P. Legislative Council from the U.P. D
Graduates Constituency on the ground that he holds the office of profit
under the State Government. The provisions of the Agra University .<\ct
reveal the intention of the Lagislature not to regard the Chancellor to be
a part of the State Government. While exercising his powers under tne said
Act, the Chancellor does not exercise the executive powers of the State
and the office of the Vice Chancellor cannot be said to be under the State E
Government by virtue of the appointment having been made by the Gover·
nor in another capacity." In Kona Prabhakar Rao v. M. Seshagiri Rao, [1982]
1 SCC 442 this Court after referring to Gurngobinda Basu v. Sankari Prasad
Ghosal, [1964] 4 SCR 311 and Mau/ana Abdul Shakur's case accepted the
ratio therein that the factors which are held to be decisive were (a) the
power of the Government to appoint a person to an office of profit or to
continue him in that office or to revoke his appointment at their discretion,
and (b) payment from out of Government revenues, though it was pointed
out that payment from a source other than Government revenues was not
always a decisive factor.
Learned Judge of the High Court after referring to these and other
decisions formulated tests or principles to be applied for determining
whether the person holds an office of profit under the Government or not.
F
G
On a consideration of the' several G.Os. and some clauses from the
memorandum of association of the ITDA Vizianagram (Parvtipuram) and H
420
SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A
its rules and regulations, the learned Judge concluded thus:
B
c
D
E
F
"From the aforesaid circumstances, it is seen that the State
Government exercises almost full control over the
sanctioning of the posts and the composition of the Governing Body of the society predominantly consists of the officers of the Government who are ex-officio members by
virtue of their office in the Government: It is also evident
that the. entire expenditure is met by the Government and
in fact the Government has sanctioned the posts and fixed
their pay-scales. It is also clear that with regard to the
disciplinary action, the CCA rules are being applied and
there are not rules framed by the Society with regard to
the same.
Frain all the aforesaid circumstances, it is evident that
the Government is discharging its function of providing
primary education from out 1 of its own funds through the
instrumentality of the Project Officer in I.T.D.A. areas.
Although the appointment is made by the Project Officer,
but it is the Government that is in control of the creation
of posts, the fixation of scales of pay and the salaries of
the teachers are being paid out of the amounts sanctioned
by the Government from its funds. In fact, the society bas
no budget of its own, and for all purposes, the society is
treated as a limb of the Government.
For all the aforesaid reasons, I hold that the Isl respondent was holding an office of profit under the State
Government and is disqualified for being chosen as and
from being a member, of the Legislative Assembly of the
State of Andbra Pradesh."
Learned counsel for the appellant submitted that even assuming that
G the Government has control over the !TOA because of several factors like
sanctioning of posts and funds, the appellant was only appointed by the
Project Officer and he alone has the power to revoke bis appointment.
According to the learned counsel, in a case of this nature, the decisive test
is whether the Government has power to appoint a person or to revoke his
H appointment and that learned Judge of the High Court has not kept the
•
SATRUCHARlA RAJU v. VYRICHERLA [REDDY, J.]
421
same in view while holding that the appellant was holding an office of profit A
under the Government." Learned counsel further submitted that the office
l,eld by the appellant under ITDA does not in any manner come into
conflict with his duties as a legislator as he does not have any direct
obligations with the Government. Therefore, it cannot be said that he was
holding an office of profit under the Government since he is neither B
appointed by the Government nor his appointment can be revoked by the
Government.
On a careful examination of the ratio laid down in the above mentioned cases some of the tests or principles that emerge for determining
whether a person holds an office of profit under the Government, may be C
summarised thus:
"(1) The power of the Government to appoint a person in
office or to revoke his appointment at the discretion. The
mere control of the Government over the authority having
the power to appoint, dismiss, or control the working of
the officer employed by such authority does not disqualify
that officer from being a candidate for election as a member oF the Legislature.
(2) The payment from out of the government revenues; are
important factors in determining whether a person is holding an office of profit or not of the Government. Though
payment from a source other than the government revenue
is not always a decisive factor.
{3) The incorportion of a body corporate and entrusting
the functions to it by the Government may suggest that the
statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the
question whether it is really so independent. Sometimes,
the form may be that of a body corporate independent of
the Government, but in substance, it may be the just alter
ego of the Government itself.
( 4) The true test of determination of the said question
depends upon the degree of control, the Government has
over it, the extent of control exercised by very other bodies
D
E
F
G
H
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B
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SUPREME COURT REPORTS(1992) SUPP. 1 S.C.R.
or committees, and its composition, the degree of its dependence on the Government for its financial needs and
the functional aspect, namely, whether the body is discharging any important Governmental function or just some
function .which is merely optional from the point of view of
the Government."
It can be seen that one of the main tests of determination of the
question is the degree and extent of control i.e. direct or remote over the
ITDA by the Government particularly with reference to making the appointment of the persons in office or to revoke the same at its discretion.
C In this context it is necessary to refer to some later decisions of this Court
which are directly on this point and some of which have not been cited
before the High Court. Before doing so we may, however, usefully refer to
the object underlying Articles 102{1){a) and 191{1)(a) of the Constitution.
These two Articles deal with disqualifications of a person being chosen as
D a member of the Parliament or the State Legislatures respectively on the
ground of holding of office of profit under the Government. Generally it
is understood that an office means a position to which certain duties are
attached. An office of profit involves two elements namely that there should
be such an office and that it should carry some remunerations. It is not the
same as holding a post under the Government and therefore for holding
E an office of profit under the Government, a person need not be in the
service of the Government. It is well-settled now that the object of enacting
Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict
between the duties and interests of an elected member and to see that such
an elected member can carry on freely and fearlessly his duties without
F
being subjected to any kind of governmental pressure, thereby implying
that if such an elected person is holding an office which brings him
remunerations and if the Government has a voice in his functions in that
office, there is every likelihood of such person succumbing to the wishes
of the Government. These Articles are intended to eliminate the possibility
of such a conflict between duty and interest so that the purity of legislature
G is unaffected. In Bihari Lal Dobray v. Roshan Lal Dopray, (1984) 1 SCC
551 this Court observed thus:
"The object of enacting Article 191(l)(a) is plain. A person
who is elected to a Lagislature should be free to carry on
H
his duties fearlessly without being subjected to any kind of
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, l.J
423
governmen al pressure. If such a person is holding an office
which brings him remuneration and the Government has a
voice in his continuance in that office, there is every
likelihood of such person succumbing to the wishes of
Government. Article 191(1)(a) is intended to eliminate the
possibility of a conflict between duty and interest and to
maintain the purity of the Legislatures."
InAshok Kumar Bhattacharyya v.Ajoy Biswas and Ors., [1985) 2 SCR
50 this Court observed as under:
A
B
"The true principle behind this provision in Article
C
102(1)(a) is that there should net be any conflict between
the duties and the interest of an elected member."
In this background, we shall examine the ratio laid down in some of
the cases with respect to other general tests to be applied. As already
noticed that in order to determine whether a person holds an office of D
profit under the Government. Several tests are ordinarily applied such as
whether the Government makes the appointment, whether the Government
has the right to remove or dismiss the holder of the office, whether the
Government pays the remuneration, whether the functions performed by
the holder are carried on by him for the Government and whether the
Government has control over the duties and functions of the holder. In
E
Maulana Abdul Shakur's case as noted above one of the main tests laid
down is that the power of the Government to appoint a person to an office
or profit or to continue him in that office or revoke his appointment at
their discretion and payment from out of Government revenues are important factors and that in determining whether a person is holding an office
F
of profit under the Government the source of payment is not always a
decisive factor. In Gurugobinda Basu 's case it was held that for holding an
office of profit under the Government, a person need not be in the service
of the Government and there need not be any relationship of master and
servant. While upholding the diaqualification the Court held that:
G
'It is clear from the aforesaid observations that inMaulana
Abdul Shakur's case, (1958! SCR 387 the factors which were
held to be decisive were (a) the power of the Government
to appoint a person to an office of profit or to continue him
in that office or revoke his appointment at their discretion,
H
A
B
c
D
E
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G
H
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SUPREME COURT REPORTS[l992] SUPP. l S.C.R.
and (b) payment from out of Government revenues, though
it was pointed out that payment from a source other than
Government revenues was not always a decisive factor. In
the case before us the appointment of the appellant as also
his continuance in office rests solely with the Govermnent
of India in respect of the two companies."
In D.R. Gurnshantappa v. Abdul Khaddus Anwar and Ors., [1969] 3 SCR
425 once again these tests are reiterated. After referring to the above-mentioned cases and while rejecting the contention that the amount of control
which the Government exercises ~could be the main test, it was held thus:
"We are unable to accept the proposition.that the mere fact
that the Government bad control over the Managing Director and other Directors as well as the power of issuing
directions relating to the working of the Company can lead
to the inference that every employee of the Company is
under the control of the Govermnent. The power of appointment and dismissal of respondent No. 1 vested in the
Managing Director of the Company and not in the Government. Even the directions for the day-to-day work to be
performed by respondent No. 1 could only be issued by the
Managing Director of the Company and not by the Government. The indirect control of the Govermnent which might
arise because of the power of the Govermnent to appoint
the Managing Director ~d to issue directions to the Company in its general w~rking does not bring respondent No.
1 directly under the control· of the Government. In
Gurugobinda Basu's case, [1964] 4 SCR 311 the position
was quite different. In that case, the appellant was appointed by the Government and was liable to be dismissed
by the Govermnent. His day-to-day working was controlled
by the Comptroller and Auditor-General who was a servant
of the Government and was not in any way an office-bearer
of the two Companies concerned.