# SHIBU SOREN v. DAY ANAND SAHA Y AND ORS

- **Citation:** [2001] 3 S.C.R. 1020
- **Court:** Supreme Court of India
- **Decided:** 2001-07-19
- **Case number:** Election Petition No. 5 of 1998
- **Bench:** Dr. A.S. Anand, R.C. Lahoti, Shivaraj V. Patil
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shibu-soren-v-day-anand-saha-y-and-ors-17971
- **Pages:** 33

## Headnote

Election Laws:
C
Parliament (Prevention of Disqualification) Act, 1959-Disqualification I
of member of Parliament-Exemption from disqualification by ParliamentH eld, the office of the Interim Jharkhand Area Autonomous Council set up
under the relevant Act is not included under the Schedule to the I959 Ac/-
Chairman of Interim Council does not enjoy the status of a MinisterD Disqualification not removed by Parliament-Hence, the appellant is
disqualified ji-om being member of Rajya Sabha-Constitution of IndiaArticle 102(J)(a).
Constitution of India-Article 102(1}(a}-Disqualification of member
of Parliament-Office of Profit under the State Government-Election of
E
appellant as member of Rajya Sabha-Appellant was Chairman of Interim
Jharkhand Area Autonomous Council set up under the relevant Act drawing
honorarium, daily allowances besides accommodation and car at the relevant
time-Held, daily allowances to meet out of pocket expenses are not profitHonorarium and other perquisites are pecuniary gain to the appellantInterim Council is an agency of the State Government-Thus, the appellant
F
was holding an office of profit under State Government-Hence disqualifiedElection of appellant set aside-Jharkhand Area Autonomous Council Act,
1994.
Words & Phrases:
G
'Office of Profit '-Meaning of in the context of Election laws.
H
Appellant was holding the office of Chairman of Interim Council set up
under the Jharkhand Area Autonomous Council Act, 1994. He was entitled
to honorarium, daily allowances and travelling allowance besides
accommodation and a car. Appellant and seven respondents filed their
1020
I
Sl-IIBU SOREN v. DAY ANAND SAHAY
1021
nomination papers pursuant to a notification issued by Election Commission A
for filling up seven seats ofRajya Sabha. The appellant and respondents 2 to
7 were declared elected. Respondent 1, who was defeated, filed an election
petition before High Court under the provisions of Representation of Peoples
Act, 1951 challenging the election of the appellant to the Rajya Sabha on the
ground that the appellant was holding 'an office of profit' under the State B
Government at the time of filing nomination papers. The High Court allowed
the election petition and declared the election of the appellant void. It also
declared respondent 1 as duly elected to the Rajya Sabha.
In appeal to this Court, the appellant contended that the payment of
honorarium is not a payment of salary or remuneration; that the payment 'C
cannot constitute an 'office of profit' unless it gives .is some pecuniary gain
to the appellant that the office held by him as Chairman of the Interim Council
is not an office of profit under the State Government; and that if the office
held by him as Chairman of the Interim Council was to be construed as an
office of profit under the State Government, the disqualification provided for
under Article 102(1)(a) stood removed since as Chairman oflnterim Council, D
the appellant enjoyed the status of a Minister.
Dismissing the appeal, the Court
HELD: 1.1. Articles 102(1) and 19l(l)(a) of the Constitution were
incorporated with a view to eliminate or in any event reduce the risk of E
conflict between duty and interest amongst members of the Legislature so as
to ensure that the concerned legislator does not come under an obligation of
the executive, on account of receiving pecuniary gain or profit from it, which
may render him amenable to the influence of the Executive, while discharging
his obligations as a legislator. 11026-A-B)
Bihari/al Dobray v. Roshan Lal Dobray, 119841 1 SCC 551, referred
to.
F
1.2. The word 'profit' for the purpose of Article 102(1)(a) or Article
191(1)(a) of the Constitution connotes an idea of pecuniary gain, though G
neither the label under which it is paid nor the quantum of the amount may
always be material to determine the issue. Payment of daily allowances was
intended to meet out of pocket expenses of the appellant and were in the
nature of compensatory allowances .and w

## Text

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A
B
SHIBU SOREN
v.
DAY ANAND SAHA Y AND ORS.
JULY 19, 2001
[DR. A.S. ANAND, CJ., R.C. LAHOTI AND
SHIVARAJ V. PATIL, JJ.]
Election Laws:
C
Parliament (Prevention of Disqualification) Act, 1959-Disqualification I
of member of Parliament-Exemption from disqualification by ParliamentH eld, the office of the Interim Jharkhand Area Autonomous Council set up
under the relevant Act is not included under the Schedule to the I959 Ac/-
Chairman of Interim Council does not enjoy the status of a MinisterD Disqualification not removed by Parliament-Hence, the appellant is
disqualified ji-om being member of Rajya Sabha-Constitution of IndiaArticle 102(J)(a).
Constitution of India-Article 102(1}(a}-Disqualification of member
of Parliament-Office of Profit under the State Government-Election of
E
appellant as member of Rajya Sabha-Appellant was Chairman of Interim
Jharkhand Area Autonomous Council set up under the relevant Act drawing
honorarium, daily allowances besides accommodation and car at the relevant
time-Held, daily allowances to meet out of pocket expenses are not profitHonorarium and other perquisites are pecuniary gain to the appellantInterim Council is an agency of the State Government-Thus, the appellant
F
was holding an office of profit under State Government-Hence disqualifiedElection of appellant set aside-Jharkhand Area Autonomous Council Act,
1994.
Words & Phrases:
G
'Office of Profit '-Meaning of in the context of Election laws.
H
Appellant was holding the office of Chairman of Interim Council set up
under the Jharkhand Area Autonomous Council Act, 1994. He was entitled
to honorarium, daily allowances and travelling allowance besides
accommodation and a car. Appellant and seven respondents filed their
1020
I
Sl-IIBU SOREN v. DAY ANAND SAHAY
1021
nomination papers pursuant to a notification issued by Election Commission A
for filling up seven seats ofRajya Sabha. The appellant and respondents 2 to
7 were declared elected. Respondent 1, who was defeated, filed an election
petition before High Court under the provisions of Representation of Peoples
Act, 1951 challenging the election of the appellant to the Rajya Sabha on the
ground that the appellant was holding 'an office of profit' under the State B
Government at the time of filing nomination papers. The High Court allowed
the election petition and declared the election of the appellant void. It also
declared respondent 1 as duly elected to the Rajya Sabha.
In appeal to this Court, the appellant contended that the payment of
honorarium is not a payment of salary or remuneration; that the payment 'C
cannot constitute an 'office of profit' unless it gives .is some pecuniary gain
to the appellant that the office held by him as Chairman of the Interim Council
is not an office of profit under the State Government; and that if the office
held by him as Chairman of the Interim Council was to be construed as an
office of profit under the State Government, the disqualification provided for
under Article 102(1)(a) stood removed since as Chairman oflnterim Council, D
the appellant enjoyed the status of a Minister.
Dismissing the appeal, the Court
HELD: 1.1. Articles 102(1) and 19l(l)(a) of the Constitution were
incorporated with a view to eliminate or in any event reduce the risk of E
conflict between duty and interest amongst members of the Legislature so as
to ensure that the concerned legislator does not come under an obligation of
the executive, on account of receiving pecuniary gain or profit from it, which
may render him amenable to the influence of the Executive, while discharging
his obligations as a legislator. 11026-A-B)
Bihari/al Dobray v. Roshan Lal Dobray, 119841 1 SCC 551, referred
to.
F
1.2. The word 'profit' for the purpose of Article 102(1)(a) or Article
191(1)(a) of the Constitution connotes an idea of pecuniary gain, though G
neither the label under which it is paid nor the quantum of the amount may
always be material to determine the issue. Payment of daily allowances was
intended to meet out of pocket expenses of the appellant and were in the
nature of compensatory allowances .and were not a source of profit. The
payment of honorarium was clearly in the nature of giving some pecuniary
gain to the appellant and was not intended to compensate the appellant for his H
1022
SUPREME COURT REPORTS
[2001] 3 S.C.R.
A out of pocket expenses. The grant of honorarium besides other pre-requisites
granted by the State Government, in addition to the payment of daily allowances
to meet out of pocket expenses, does bring in an element of granting profit
to the appellant. The honorarium receivable by the appellant besides other
allowances perquisites was not in the nature of gratuitous payment or voluntary
B
c
donation. It was in the nature of remuneration and was a source of pecuniary
gain, a benefit which was capable of bringing about a conflict between the duty
and interest of the appellant as a member of Parliament. Thus, the appellant,
as Chairman of the Interim Council was in receipt of pecuniary gain in the
form of honorarium and he, thus, held an "office of profit".
11046-C-E; H; 1047-A-D)
Ravabba Subanna v. G.S. Kaggeerappa, AIR (1954) SC 653;
Shivamurthy Swamy v. Agadi Sanganna Andanappa, [1971) 3 SCC 870;
Karbhari Bhimaji Rohanare v. Shankar Rao Genuji Ko/he & Ors., 11975] 1
SCC 252; Madhukar G.E. Pankakar v. Jaswant Chobildas Rajani & Ors.,
11977) 1 SCC 70 and Ashok Kumar Bhattacharyya v. Ajay Biswas, 11985) 2
D SCR 50, referred to.
E
1.3. The provisions of the Jharkhand Area Autonomous Council Act,
1994 shows that the Interim Council, a body comprising exclusively of
Government appointees, holding their office at its pleasure was created to act
as a limb or agency of the State Government to facilitate smooth creation of
Regular Council under the Act. The State Government not only had the
exclusive jurisdiction to appoint the Chairman of the Interim Council but also
the power to remove or dismiss him besides controlling the manner of
functioning of the Interim Council and providing funds for the Interim Council
out of which honorarium was paid to the appellant. Therefore, the appellant
F
was holding his office under the State Government.f 1049-B; 1050-B-C; DJ
Shivamurthy Swamy v. Agadi Sanganna Andanappa, 11971] 3 SCC 870
and Guru Gobind Basu v. Shankar Prasad Ghosal, AIR (1964) SC 254, relied
on.
G
Maulana Abdul Shakur v. Rikhab Chand & Anr., 11958) SCR 387 (CB)
and Surya Kant Roy v. lmamul Hai Khan, 1197513SCR909, distinguished.
Kanta Kathuria v. Manak Chand Surana, [19701 2 SCR 835 (CB);
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani & Ors., 11977] 1
SCC 70 and Satrucharia Chandrasekhar Raju v. Vyricheria Pradeep Kumar
H
Dev, (19921Supp.1 SCR 408, referred to.
)-
I
.,
--
SHIBU SOREN v. DA YANAND SAHA Y
1023
3. The provisions of the Jharkhand Area Autonomous Council Act, A
1994 does not provide that the Chairman of the Interim Council would enjoy
the status of a Minister. The disqualification, in the case of the appellant,
could only be removed by the Parliament and not by the State Legislature,
since the membership of Rajya Sabha was in issue, within the meaning of
Article 102 (1) (a) of the Constitution. No such disqualification was removed B
by the Parliament as the Jharkhand Act has not been included in the Schedule
to the Parliament (Prevention of Disqualification) At, 1959. The office of
Chairman of Interim Council has not been exempted under the Parliament
(Prevention of Disqualification) Act, 1959 and as such the disqualification
contained in Article 102(1)(a) is squarely attracted. The appellant was thus
holding an office of profit under the State Government' at the relevant time C
and thus, was disqualified to be a member of Raj ya Sabha.
[1051-D-H; 1052-C-D)
Kanta Kathuria v. Manak Chand Surana, (1970) 2 SCR 835 CB and
fishwanath Reddy v. Konappa Rudrappa Nadouda, AIR (1969) SC 604,
referred to.
4. It is a rule of interpretation of statutes that the statutory provisions
D
are so construed as to avoid absurdity and to further rather than defeat or
frustrate the object of the enactment. Courts, therefore, while construing a
statute avoid strict construction by construing the entire Act. While
interpreting statutory provisions, Courts have to be mindful of the E
consequences of disqualifying a candidate for being chosen as, and for being,
a member of the legislature on the ground of his holding an office of profit
under the State or the Central Government, at the relevant time. The Court
has to bear in mind that what is at stake is the right to contest an election
and to be a member of the legislature indeed a very important right in any F
democratic set up. A ban on candidature must have a substantial and reasonable
nexus to the object sought to be achieved namely, elimination of or in any
event reduction of possibility of misuse of the position which the concerned
legislator holds or had held at the relevant time. [1035-H; 1036-A-D)
Ashok Kumar Bhattachmya v. Ajoy Biswas and Ors., [1985) 2 SCR 50; G
Tinsukhia Electric Supply Co. Ltd. v. State of Assam and Ors., [1989) 3 SCC
709 and Commissioner of Income Tax, Bangalore v. J.H. Gotla, Yadagiri.
[1985) 4 sec 343, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3538 of
2000.
H
1024
SUPREME COURT REPORTS
[2001] 3 S.C.R.
A
From the Judgment and Order dated I 0.5.2000 of the Patna High Court
in Election Petition No. 5 of 1998.
.-f
P.P. Rao and D.D. Thakur Sr. Advocates, Barun K. Sihna, Pratap C.
Mohapatra, Subbash Chandra, Sanjiv Kumar, B.K. Satija, M.P. Jha, H.K. Lal,
Ankur Talwar, Vijay Prakash, R.C. Kohli, Ranjit Kumar, Ms. Binu Tamta, Anil
B
K. Chopra (N.P.) and Mr. S.R. Setia (N.P.), Advocates with them for the
appearing parties.
The Judgment of the Court was delivered by
p
.....
DR. A.S. ANAND, CJ. Pursuant to a Notification issued by the Election
c Commission for filling up seven seats of Rajya Sabha, nine persons, including
the appellant and seven respondents filed their nomination papers, which on
scrutiny were found to be valid. On the last date for withdrawal of nominations,
one candidate withdrew, thus leaving eight candidates to contest the election
for seven seats. Polling took place on 18th June, 1998 and after counting of
D
votes, result was declared on the same date. Appellant secured the highest
number of votes (43.74) and along with respondents 2 to 7 was declared
elected. Respondent No. I was defeated. Respondent No. I herein, thereupon
filed an Election Petition under Sections 80 and 81 of the Representati~n of
;..
Peoples Act, 1951 (hereinafter referred to as the R.P. Act), calling in question
election of the appellant on the ground that at the time of filling his nomination
E
papers, the appellant was holding "an office of profit" under the State
Government as Chairman of the Interim Jharkhand Area Autonomous Council
(for short 'JAAC'), set up under the Jharkhand Area Autonomous Council
Act, 1994 (hereinafter .the .TAAC Act) and was thus disqualified to contest
election to Rajya Sabha. Respondent No.1, not only sought setting aside of
the election of appellant but also a declaration to have been duly elected,
F
instead, as a member of the Rajya Sabha. Election petition was resisted by
~ .,.
the ~pellant and it was asserted that office of Chairman of the interim JAAC
was not an 'office of profit' or even an 'office' under the State Government
and further that the election petitioner was barred from raising the challenge,
for not having raised that objection at the time of scrutiny of nomination
G papers before the returning officer. It was vehemently maintained that the
returned candidate had not been earning any 'profit' and was drawing only
honorarium and allowances to meet his 'out of pocket expenses' and the
office he was holding could not be treated as an 'office of profit' under the
'
State Government and, therefore, his election was not liable to be set aside.
According to an additional plea raised by the appellant, his disqualification,
H if any stood removed by Section 3 of the Parliament (Prevention of
~-
..
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.]
1025
Disqualification) Act, I 959 since he enjoyed the status of a Minister while A
functioning as Chairman of the Interim Council.
On 10th May, 2000, a learned designated Judge of the Patna High Court
allowed the election petition and set aside election of the appellant. It was
held that the office of Chairman of Interim JAAC was an 'office of profit' B
under the State Government because the payment of honorarium at Rs. 17 50
per month to the Chairman could not be construed as compensatory allowance.
It was also held that the Chairman of the interim JAAC held his office under
the State Government and, therefore, disqualification stipulated by Article
102(1 )(a) of the Constitution of India was clearly attracted to the appellant's
election. It was further held that the said disqualification was not saved by C
the Parliament "Prevention of Disqualification Act, 1959" on the pleas raised
in the additional written statement which inter alia included the plea that as
Chairman of Interim Council, the appellant enjoyed the 'status' and other
privileges of a Minister within the State and hence his disqualification stood
removed by Section 3 of Prevention of Disqualification Act, 1959. Consequently,
the election of the appellant was declared void and respondent No. I was D
declared duly elected to Rajya Sabha. This appeal is directed against that
judgment of the Patna High Court dated 19th May, 2000.
Article I 02( 1 )(a) of the Constitution oflndia deals with disqualifications
for 'being chosen as' and 'for being a meinber of either House of Parliament' E
and inter alia provides:
(I)
A person shall be disqualified for being chosen as, and for
being, a member of either House· of Parliament-
(a)
if he holds any office of profit under the Government of India F
or the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder;
A perusal of the above provision shows that three elements which are
sine qua non for attracting the above provision are that the person concerned G
must hold an office (1) under the Government of India or any State; (2) the
office should be an 'office of profit' and (3) the office should be other than
- an office declared by Parliament by law not to disqualify its holder. Article
102(l)(a) (supra) corresponds to Article 19l(l)(a) of the Constitution oflndia
which lays down similar disqualifications for being chosen as or for being a
member of the Legislative Council or Assembly of a State.
H
1026
SUPREME COURT REPORTS
(200 I] 3 S.C.R.
A
Both Artides 102(1 )(a) and Article 191 ( 1 )(a) were incorporated with a
view to eliminate or in any event reduce the risk of conflict between duty and
interest amongst members of the Legislature so as to ensure that the concerned
legisiator does not come under an obligation of the Executive, on account of
receiving pecuniary gain or profit from it, which may render him amenable to
influence of the Executive, while discharging his obligations as a legislator.
B It is in the context of Article 102(l)(a) (supra) that we have to examine the
meaningful question whether the appellant in the· present case held an 'office
of profit' under the State Government at the relevant time - the date of
scrutiny of nomination papers and whether that office has not been declared
by the Parliament by law not to disqualify its holder.
c
iD
To examine this meaningful question let us first take a panoramic view
of the case law ah the subject.
In Ravabba Subanna v. G. S. Kaggeerappa, A.LR. (1954) S.C. 653, the
issue involved was whether a person holding the position of Chairman of
Gubbi Taluk Development Committee, could be said to be holding an 'office
of profit' under the Government.
During the elections held for Town Municipal Councillorship of Gubbi
in the State of Mysore an objection was raised at the time of scrutiny of
E nomination papers to the nomination of the appellant, in that case, on the
ground that he was holding an office of profit under the Government (Chairman
of Gubbi Taluk Development Col111!1.ittee) and was, therefore, disqualified for
being chosen as a Councillor under Section 14 of the Mysore Town
Municipalities Act, 1951. The objection was overruled and nomination paper
of the appellant was accepted. After voting, the appellant was declared
F elected. The respondent filed an Election Petition before the appropriate
forum. The learned Designated authority dismissed the Election Petition holding
that the appellant who was drawing a fee of Rs. 6 per sitting could not be
said to be holding an 'office of profit' under the Government as contemplated
by Section 14 of the Act. The High Court of Mysore, accepted the appeal filed
G by the respondent and set aside election of the appellant. Allowing the appeal
of the appellant this Court held that a fee of Rs. 6 which the Chairman was
entitled to draw for each sitting of the Committee was neither meant to be
payment by way of remuneration n_or could it amount to 'profit'; and that the
fee was paid to the Chairman to enable him to meet "out of pocket expenses
. which he has to incur for attending the meetings of the committee". This
H Court, accordingly, held the appellant could not be said to be "holding any
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.]
1027
office of profit" under the Government at the material time.
A
In Maulana Abdul Shakur v. Rikhab Chand and another, [1958] SCR
387 a Constitution Bench of this Court considered the case of a Manager of
a School run by a Committee of Management formed under the provisions of
the Dargah Khwaja Saheb Act, 1955. The concerned candidate had been
appointed by the Administrator of the Dargah and was being paid a salary B
of Rs. 100 per month. The Government of India under sections 5 and 9 of the
DKS Act, 1955 had the power to appoint as well as remove Members of the
Committee of Management and power to appoint an Administrator in
consultation with the Committee. It was found on facts, by the court, that the
concerned candidate was neither appointed by the Government of India nor C
was he removable by it. It was also found that his salary was not fixed or paid
by the Government but that the same was paid out of the funds of the Dargah ·
endowment. In the light of these facts, the Bench opined that though the
appellant was holding his appointment under a statutory body appointed by
the Government, he could not be held to be holder of an office of profit under
the Government of India within the meaning of Article 102 (l)(a) of the .C
Constitution of India. The Bench accordingly set aside the judgment of the
High Court which had held the election of the concerned candidate to be bad
on the ground that the concerned candidate was holding an office of profit
under the Government at the relevant time. This Court observed :
"On the other hand on March 1, 1956, he was holding his ,E
appointment under a Committee which is a statutory body and such
appointment cannot be called an appointment by or under the control
of the Government of India nor is his salary paid out of the revenues
of the Government but out of the funds of Durgah Endowment. In the
circumstances the majority of the Tribunal has erred in holding that
the appellant held an office of profit under the Government and the
opinion of the Chairman to the contrary lays down the correct position."
F
In Kanta Kathuria v. Manak Chand Surana, [1970] 2 SCR 835, a
Constitution Bench of this Court considered the case of an Advocate, who
held an office of Special Government Pleader under the Government of Rajasthan G
to conduct arbitration cases between the Government and Modern
Construction Company. Her remuneration had been fixed at Rs. 150 per day
1
for each date of hearing, Rs. 75 per day for days of travel and dates on which
the case was adjourned as well as for days spent on preparation of the case.
She held that office for over two years. She contested assembly elections in
1967 and was declared elected to the Rajasthan Legislative Assembly. On her H
1028
SUPREME COURT REPORTS
[2001) 3 S.C.R.
A election being challenged, the High Court held that she was disqualified on
the ground of holding an office of profit under the State Government. During
.;
the pendency of her appeal in the Supreme Court, the Governor of Rajasthan
by an Ordinance removed the particular 'disqualification' retrospectively. The
Ordinance was replaced by an Act by the Legislature. Dealing with the issue
B
whether the office held by the appellant in that case could be said to be an
office of profit under the State Government of Rajasthan and the effect of the
Act of the state legislature removing that disqualification, Sikri, J. speaking
for the majority of the Bench opined:
~
"It seems to us that the High Court erred in ho~ding that the appellant
held an office. There is no doubt that if her engagement as Special
lf
c
Government Pleader amounted to appointment to an office; it would
be an office of profit under the State Government of Rajas~an. The
word 'office' has various meanings and we have to see which is the
appropriate meaning to be ascribed to this word in the context. It
seems to us that the words 'its holder' occurring in Art. 191(l)(a),
D
indicate that there must be an office which exists independently of the
holder of the office. Further, the very fact that the Legislature of the
State has been authorised.by Art. 191 to declare an office of profit not
to disqualify its holder, contemplates existence of an office apart from
its holder. In other words, the Legislature of a State is empowered to
E
declare that an office of profit of a particular description or name
would not disqualify its holder and not that a particular holder of an
office of profit would not be disqualified."
and finally held that the appellant was not disqualified to contest the election
under Article 191 ( 1 )(a) of the Constitution.
F
Dealing with the question of removal of disqualification retrospectively
by the Rajasthan Legislative Assembly, the majority also opined that the State
Legislature was competent to declare a certain office as not to disqualify its
holder to contest election to the State Legislature. Bench repelled the argument
that the impugned Act, i.e., Removal of Disqualification Act as enacted by
G the State Legislature amounted to amending or altering the Representation of
Peoples Act, .1951. Consequently the appeal of Kanta Kathuria was allowed
and judgment of the High Court was set aside and election petition of.the
respondent was dismissed.
"
The minority spe~king through Hidayatullah, ~.J., however, h~ld that
H Ms. Kathuria was holding an "office of profit" under the State but agreed w1ith
SHIBU SOREN v. DAY ANAND SAHA Y [A.S. ANAND, CJ.]
1029
the majority that her disqualification stood removed by retrospective operation A
of the Removal of Disqualification Act, which the State Legislatlire was
'competent to enact'.
In Shivamurthy Swami v. Agadi Sanganna Andanappa, [1971] 3 SCC
870, the question under consideration of this Court was whether a Member
of Koppal Taluk Development Board as well as a member of the District B
Development Council could be said to be holding an 'office of profit' under
the Government. After analysing the fact situation besides relevant provisions
including provisions of Article 102(1)(a) of the Constitution and various
precedents of this Court, the Bench opined:
" ... Therefore before the provisions of that Article can be attracted,
it must be established th.at he was holding an office under the Union
or the State Government and that that office was an office of profit
and thereafter we must see whether the disqualification relating to
c
that office has been removed by any Parliamentary legislation. In
other words, the office in question must ·have been held under a D
Government and to that some pay, salary, emoluments or allowance is
attached. The word 'profit' connotes the idea of pecuniary gain. If
there is really a gain, its quantum or amount would not be material;
but the amount of money receivable by a person in connection with
the office he holds may be material in deciding whether the office E
really carries any profit ... ".
(Emphasis supplied)
The Bench noticed that the concerned person, Sangappa, became an e.xofficio member of these bodies by virtue of his being elected as a member
of the Mysore Legislative Council and therefore "it could not be said that p
he was holding those offices under the Government." The Court further
opined that the allowances paid to the members of the Koppal Taluk
Development Board and District Development Council were intended to meet
their out of pocket expenses and were in the nature of compensatory
allowances and not "profits". The Court summarised the tests which may be
applied to determine whether an "office" is an office of profit under the State G
Government thus:
( 1) whether the Government makes the appointment;
(2) whether the Government has the right to remove or dismiss the
~~
H
1030
SUPREME COURT REPORTS
[2001] 3 S.C.R.
A
(3) whether the Government pays the remuneration;
( 4) what are the functions of the holder; and
(5) Does the Government exercise any control over the performance
of those functions?"
B
In Karbhari Bhimaji Rohamare v. Shankar Rao Genuji Ko/he & Ors.,
[1975] 1 SCC 252, election of Respondent No.l, who was a member of Wage
Board for Sugar Industry constituted by the Government of Maharashtra
under Bombay Industrial Relations Act, 1946, was called in question on
various grounds. hi the Supreme Court, however, only ground pressed was
C to the effect that the election of first Respondent in that case was liable to
be set aside on the ground that he was holding 'an office of profit' under the
State Government as 'a member of the Wage.Board'. After noticing various
provisions of the relevant statutes, it was held that f~st Respondent did hold
an 'office under the Government', but that it was not 'an office of profit'.
D
Reference was made to "the notification constituting the Wage Board as
well as to the resolution appended thereto, which provided that non-official
members of the Wage Board would be paid honorarium at the rate of Rs. 25
per day for attending meeting of the Wage Board and that they would also
be allowed to draw Travelling Allowance and Daily Allowance at the rate
prescribed under the Bombay Civil Service Rules. This Court opined that mere
E drawal of Daily Allowance and Travelling Allowance could not make
membership of the Board, an 'office of profit' as the drawal of those allowances
would fall within the definition of the expression "Compensatory Allowance".
The controversy, however, centered around the question whether honorarium
payable to the members of the Wage Board could render that office as an
F
'office of profit'. After referring to dictionary meaning of the word "honorarium"
and its interpretation in some other judgments, this Court agreed with the
learned Judge of the High Court, who had refused to set aside the election
of the first '.Respondent, that "the payment of honorarium to the first
Respondent, apart from Daily Allowance and Travelling Allowance, for
attending the meetings of the Board did not amount to the first Respondent
G 'making any pecuniary gain thereby'." It was opined that merely because part
of the payment made to the first Respondent was called 'honorarium', it did
not lead to a conclusion that it was not meant to meet daily expenses, and
was meant to be 'a source of profit'. In the words of the Court:
H
" ... Merely because part of the payment made to the first respondent
is called honorarium and part of the payment daily allowance, we
SHIBU SOREN v. DA YANAND SAHA Y [A.S. ANAND, CJ.]
1031
cannot come to the conclusion that the daily allowance is su(ficient A
to meet his daily expenses and the honorarium is a source of profit.
A member of the Wage Board cannot expect to stay in Taj Hotel and
have a few drinks and claim the expenditure incurred, which may come
perhaps to Rs.150 to Rs.200 a day, for his personal expenses. In such
a case it may well be held to give him a pecuniary gain. On the other
hand he is not expected to live like a sanyasi and stay in a dharmshala B
and depend upon the hospitality of his friends and relatives or force
himself upon them. Nobody with a knowledge of the expenditure likely
to be incurred by a person staying at a place away from his home
could.fail to realise how correct the assessment of the learned Judge
is. We are satisfied that the payments made to the first respondent C
cannot be a source of profit unless he stays with some friends or
relatives or stays in a dharmshala ... "
The Court further opined:
"The question has to be looked at in a realistic way. . .. The law D
regarding the question whether a person holds an office of profit
should be interpreted reasonably having regard to the circumstances
of the case and the times with which one is concerned, as also the
class of person whose case we are dealing with and not divorced
from reality. The first respondent did not hold an office of profit."
. (Emphasis ours) E
This Court, thus, held that the first respondent in that case did not hold
'an office of profit' and as such did not incur any disqualification for being
a member of the legislature.
A two Judge Bench of this Court in Surya Kant Roy v. Imamul Hai F
Khan, [1975] 3 SCR 909 dealt with the case of Chairman of a Board constituted
under the Bihar and Orissa Mining Settlement Act, 1920. He was appointed
as Chairman by the State Government from amongst the Members of the
Board. The High Court had held that the returned candidate in that case,
namely the Chairman of the Board, did not suffer from a disqualification G
envisaged by Article 102 of the Constitution. Agreeing with the High Court,
the Court, opined that merely because returned candidate had been appointed
as Chairman of the Board by the Government from amongst the Members of
the Board, it would not make him a person holding an office under the State
Government. The Court also held the fact that Government provided grants
to the Board, did not mean that "all the funds of the Board were Government H
'.<
1032
SUPREME COURT REPORTS
[2001] 3 S.C.R.
A funds or Government properties". The Court noticed the tests laid down in
Shivamurthy Swami's case (supra) and observed that the Government did not
pay the remuneration nor did the holder of the office perform his functions
for the Government and, therefore, he could not be said to- hold an office
under the State Government. The question whether the office was an 'office
B of profit' was, however, left open for want of material on the record. The
Bench opined :-
c
D
E
"The office held by the respondent is held under a local authority.
The holding of an office of profit in it does not bring about a
disqualification even if that local authority be under the control of the
Government. The mere control of Government over the authority
having the power to appo!nt, 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.
Therefore, the control exercised by the Government over the Board in
this case does not make the Board an organ of the Government nor
does it make the respondent a person holding an office under the
Government. It is, therefore, unnecessary to go into the question
whether the office held by the respondent was an office of profit,
though we may indicate that on the evidence available in this case we
have come to the conclusion that it i~ not an office of profit."
(Emphasis ours)
In Madhukar G. E. Pankakar v. Jaswant Chobbildas Rajani & Ors.,
( 1977) 1 sec 70, the name of the appellant. was included in the list of doctors
under the Employees State Insurance Scheme. He resigned from his job under
ESIS before the date of poll to the Municipal Election, but after the date of
F filing of nomination papers. In challenging his election, the defeated candidate
urged that as a doctor under the ESI Corporation, the appellant was holding
'an office of profit'. After a detailed analysis of various judgments and
statutory provisions, this Court held that appellant suffered no such
disqualification.
G
The Court elaborately dealt with the issue of disqualification on the
ground of holding 'an office of profit' under the State/Central Government
and opined:
"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
H
may. In this very case the appellant was making sizeable income by
/
.,
..
SHIBU SOREN v. DAY ANAND SAHAY [A.S. ANAND, CJ.]
1033
way of capitation fee from the medical services, rendered to insured A
employees. The crucial question then is whether this 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 B
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 C
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, enginee:rs
and scientists, not to speak of an army of other non-officials who are D
wanted in various fields, not as full-time government servants but as
part time participants in people's projects sponsored by governrne~t?
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 E
to the 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 technology. So, an interpretation of 'office of profit' F
to cast the net so wide that all our citizens with specialities and
knowhow are inhibited from entering elected organs of public
administration and offering semi-voluntary services in para-official,
statutory or like projects run or directed by Government or corporations
controlled by the State may be detrimental to democracy itself. Even G
athletes may hesitate to come into Sports Councils if some fee for
services is paid and that proves their funeral if elected to a pancha>'at.
A balanced view, even if it involves 'judicious irreverence' to vintage
precedents, is the wiser desideratum".
In Bihari/al Dobray v. Roshan Lal Dobray, [1984] l SCC 551, the Court
1034
SUPREME COURT REPORTS
[200 I] 3 S.C.R.
A once again reiterated that a person, who is elected to a legislature should be
free to carry out his duties fearlessly 'without being subjected to any kind
of governmental pressure' and that Article 19l(l)(a) is intended to eliminate
the possibility of a conflict between duty and interest with a view to maintain
purity of the legislature and that relevant provisiqn has to be interpreted in
B a realistic manner only so to achieve that objective.
Ashok Kumar Bhattacharyya v. Ajoy Biswas, (1985] 2 SCR 50, was a
case concerning an employee of the Agartala Municipality holding the post
of an Assistant Accountant which carried a pay scale of Rs. 80-180 per
month. At the relevant time that employee was drawing a monthly salary of
C Rs. 200. The Bench opined:
D
E
F
G
H
"For determination of the question whether a person holds an office
· of profit under the Government each case must be measured and
judged in the light of the relevant provisions of the Act... To make in
all cases employees of local authorities subject to the control of
Government and to treat them as holders of office of profit under the
Government would be to obliterate the specific differentiation made
under Article 58(2) and Article 102(l)(a) of the Constitution and to
extend the disqualification under Article 58(2) to one under Article
102(l)(a) to an extent not warranted by the language of the Article."
The Bench approved the decision of the High Court holding that the
returned candidate in that case did not hold an 'office of profit' under the
Government of Tripura on the date of the filing of his nomination papers.
In Satrucharia Chandtasekher Raju v. Vyricherla Pradeep Kumar Dev,
[1992] Supp. I SCR 408, the appellant had been appointed as a Single Teacher
in a primary school by the Project Officer of the Integrated Tribal Development
Agency (IIDA). The High Court held that the appellant was holding an
'office of profit' and· had, thus, incurred a disqualification envisaged by
Article 191 ( 1 )(a) of the Constitution. Setting aside the order of the High Court,
and allowing the appeal it was held by this Court:
"What emerges from the. above discussion is that 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 ex-officio members
of the .ITDA which carries out the object of providing the compulsory
education in tribal areas. But the ITDA is a registered Society having
---
..,
SHIBU SOREN v. DAY ANAND SAHA Y [A.S. ANAND, CJ.)
1035
its own constitution. Though the Project Officer is the District A
Collector, he acts as a different entity. The power to appoint or to
remove teachers is not with the Government but with the Project
Officer. The Government may have control over the appointing
authority but has no direct control over the teachers. The small post
that appellant holds in ITDA is only that of a Teacher who is directly
under the control of the Project Officer. In such a situation the question B
of any conflict between his duties and interests as an elected member
does not arise since it cannot be said that he, as a teacher, can be
subjected to any kind of pressure by the Government which has
neither the power to appoint him nor to remove him from service.
Taking a practical view of the substance of these factors into C
consideration, we are of the view that the appellant cannot be held
to be holding an office of profit under the Government...".
(emphasis supplied)
From a resume of precedents noticed above we find that in order to
attract disqualification contained in Article 102(1)(a), a person must not only D
be holding ''an office" but that office must be "an office of profit" and should
be "under the Government" and should be an office other than an office
declared by the competent legislature by law, not to disqualify its holder. The
first question which comes to the fore, therefore is as to when can a person
be said to be 'holding an office of profit' under the Government.
The expression "office of profit" has not been defined either in the
Constitution or in the Representation of People Act. In common parlance, the
expression 'profit' connotes an idea of some pecuniary gain.