# STATE ELECTION COMMISSIONER, BIHAR PATNA & OTHERS v. JANAKDHARI PRASAD AND OTHERS

- **Citation:** [2018] 5 S.C.R. 112
- **Court:** Supreme Court of India
- **Decided:** 2018-07-03
- **Case number:** Civil Appeal No. 1463 of 2008
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-election-commissioner-bihar-patna-others-v-janakdhari-prasad-and-others-32891
- **Pages:** 26

## Headnote

Bihar Panchayat Raj Act, 1993 - s.139(1)(c) -
Disqualification - Election of respondent to the post of member in
the Panchayat Samiti - Disqualified by the Election Commission -
Disqualification on the ground that respondent was appointed as
Assistant Government Advocate under the State Government and
was receiving fees for the cases conducted by him from the
Government and hence, was deemed to be in service of the State -
High Court set aside the order - Division Bench upheld the same -
On appeal, held: There was no master-servant relationship -
Respondent was not amenable to any disciplinary proceedings -
No records to show that he was getting any remuneration - Even if
some remuneration is attached to the office, he could not be treated
to be under the service of the State Government - Aspects essential
for establishing a relationship of master and servant absent - Thus,
the returned candidate could not have been treated to be in service
under the State Government - Order passed by the High Court
upheld.
Dismissing the appeal, the Court
HELD: 1.1 In Section 139(1)(c) of the Bihar Panchayat Raj
Act, 1993, there is a postulate that a person shall be disqualified
if such a person is in the service of Central or State Government
or any local authority. Section 139(1)(d) lays down a disqualification
if the person is in service of such institution receiving aids from
Central or State Government or any local authority. The key word
in both the provisions pertains to 'service'. [Para 10][121-B-C]
1.2 In the instant case, the first respondent was treated as
disqualified on the foundation that he was in service of the
[2018] 5 S.C.R. 112
112
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Government. Analyzing the letter of appointment issued by the
Government of Bihar, Legal Department to the District
Magistrate, the Election Commission held that the elected
candidate was holding a post under the State Government and,
therefore, he was disqualified under sub-section (l)(c) of Section
139 of the Act. On a careful scrutiny of the communication, it is
quite vivid that the respondent No. l was appointed to the post of
Assistant Government Advocate in the panel of Assistant
Government Advocates constituted for the courts at Nalanda and
Hilsa. There is no mention of any fixed remuneration. In the
obtaining factual score, would it be appropriate to accept the
submission of the appellants that the elected candidate was in
the service of the government. The legislature has, in exercise
of its legislative power and wisdom, not used the words "office of
profit". Therefore, whether such a letter of appointment can be
construed to determine if the person is holding an office of profit
is not necessary to be addressed. In the instant case, the election
pertains to a Panchayat Samiti which basically relates to the
concept at the grass root level. The legislature, as it seems, has
not thought of office of profit because had it thought so it would
have provided in that manner. The legislature had provided a
disqualification keeping in view the conflict of interest. The
absence of such a provision possibly is to include persons from
different fields as long as they are not in service under the
government or a service in an institution receiving aids from the
Central or State Government or any local authority. The
legislature, as the postulate stands today, has confined to
categories of service. It depends on the legislative wisdom. The
nature of disqualification has to be strictly construed keeping in
mind that right to contest an election is not a fundamental right
but the said right may be curtailed under valid statutory provision.
[Paras 25, 26 and 27][132-F; 133-E-H; 134-A-C]
1.3 It has been held by this Court that a person holding a
post under a State is a person serving or employed under the
State. There is a relationship of master and servant between the
State and a person holding a post under it. The existence of this
relationship is indicated by the State's right to s

## Text

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STATE ELECTION COMMISSIONER, BIHAR PATNA &
OTHERS
v.
JANAKDHARI PRASAD AND OTHERS
(Civil Appeal No. 1463 of 2008)
JULY 03, 2018
[DIPAK MISRA,CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Bihar Panchayat Raj Act, 1993 - s.139(1)(c) -
Disqualification - Election of respondent to the post of member in
the Panchayat Samiti - Disqualified by the Election Commission -
Disqualification on the ground that respondent was appointed as
Assistant Government Advocate under the State Government and
was receiving fees for the cases conducted by him from the
Government and hence, was deemed to be in service of the State -
High Court set aside the order - Division Bench upheld the same -
On appeal, held: There was no master-servant relationship -
Respondent was not amenable to any disciplinary proceedings -
No records to show that he was getting any remuneration - Even if
some remuneration is attached to the office, he could not be treated
to be under the service of the State Government - Aspects essential
for establishing a relationship of master and servant absent - Thus,
the returned candidate could not have been treated to be in service
under the State Government - Order passed by the High Court
upheld.
Dismissing the appeal, the Court
HELD: 1.1 In Section 139(1)(c) of the Bihar Panchayat Raj
Act, 1993, there is a postulate that a person shall be disqualified
if such a person is in the service of Central or State Government
or any local authority. Section 139(1)(d) lays down a disqualification
if the person is in service of such institution receiving aids from
Central or State Government or any local authority. The key word
in both the provisions pertains to 'service'. [Para 10][121-B-C]
1.2 In the instant case, the first respondent was treated as
disqualified on the foundation that he was in service of the
[2018] 5 S.C.R. 112
112
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Government. Analyzing the letter of appointment issued by the
Government of Bihar, Legal Department to the District
Magistrate, the Election Commission held that the elected
candidate was holding a post under the State Government and,
therefore, he was disqualified under sub-section (l)(c) of Section
139 of the Act. On a careful scrutiny of the communication, it is
quite vivid that the respondent No. l was appointed to the post of
Assistant Government Advocate in the panel of Assistant
Government Advocates constituted for the courts at Nalanda and
Hilsa. There is no mention of any fixed remuneration. In the
obtaining factual score, would it be appropriate to accept the
submission of the appellants that the elected candidate was in
the service of the government. The legislature has, in exercise
of its legislative power and wisdom, not used the words "office of
profit". Therefore, whether such a letter of appointment can be
construed to determine if the person is holding an office of profit
is not necessary to be addressed. In the instant case, the election
pertains to a Panchayat Samiti which basically relates to the
concept at the grass root level. The legislature, as it seems, has
not thought of office of profit because had it thought so it would
have provided in that manner. The legislature had provided a
disqualification keeping in view the conflict of interest. The
absence of such a provision possibly is to include persons from
different fields as long as they are not in service under the
government or a service in an institution receiving aids from the
Central or State Government or any local authority. The
legislature, as the postulate stands today, has confined to
categories of service. It depends on the legislative wisdom. The
nature of disqualification has to be strictly construed keeping in
mind that right to contest an election is not a fundamental right
but the said right may be curtailed under valid statutory provision.
[Paras 25, 26 and 27][132-F; 133-E-H; 134-A-C]
1.3 It has been held by this Court that a person holding a
post under a State is a person serving or employed under the
State. There is a relationship of master and servant between the
State and a person holding a post under it. The existence of this
relationship is indicated by the State's right to select and appoint
the holder of the post, its right to suspend and dismiss him, its
STATE ELECTION COMMISSIONER, BIHAR PATNA v.
JANAKDHARI PRASAD
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right to control the manner and method of his doing the work and
the payment by it of his wages or remuneration. A relationship of
master and servant may be established by the presence of all or
some of these indicia, in conjunction with other circumstances
and it is a question of fact in each case whether there is such a
relation between the State and the alleged holder of a post. [Para
28][134-D-F]
State of Assam and others v. Kanak Chandra
Dutta 1967 AIR 884 : [1967] SCR 679 - followed.
1.4 As has been held by the Single Judge and rightly so,
there is no master-servant relationship and the respondent was
not amenable to any disciplinary proceeding. He has correctly
expressed the view that the conduct of the advocate is subject to
the discipline of the Bar Council. There is nothing on record to
show that he was getting any remuneration. Even if some
remuneration is attached to the office, he cannot be treated to be
under the service of the State Government. The aspects which
are essential for establishing a relationship of master and servant
are absent. Therefore, the returned candidate could not have
been treated to be in service under the State Government. [Para
33][137-D-F]
Ravanna Subanna v. G.S. Kaggeerappa 1954 AIR 653;
Sakhawant Ali v. State of Orissa 1955 AIR 166 : [1955]
SCR 1004; Guru Gobinda Basu v. Sankari Prasad
Ghosal and others 1964 AIR 254 : [1964] SCR 311;
Maulana Abdul Shakur v. Rikhab Chand 1958 AIR 52 :
[1958] SCR 387; Mahadeo v. Shantibhai and others
[1969] SCR 422; Srimati Kanta Kathuria v. Manak
Chand Surana [1970] 2 SCR 835 : (1969) 3 SCC 268;
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani
and others [1976] 3 SCR 832 : (1977) 1 SCC 70; Ashok
Kumar Bhattacharyya v. Ajoy Biswas and others [1985]
2 SCR 50: (1985) 1 SCC 151; Shibu Soren v. Dayanand
Sahay and others [2001] 3 SCR 1020 : (2001) 7 SCC
425; Jaya Bachchan v. Union of India and others
[2006] 2 Suppl. SCR 110 : (2006) 5 SCC 266; Roshan
Lal Tandon v. Union of India 1967 AIR 1889 : [1968]
SCR 185; Mundrika Prasad Singh v. State of Bihar
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[1980] 1 SCR 759 : (1979) 4 SCC 701; Mukul Dalal
and others v. Union of India and others [1988] 3 SCR
868 : (1988) 3 SCC 144; Kumari Shrilekha Vidyarthi
and others v. State of U.P. and others [1990] 1 Suppl.
SCR 625 : (1991) 1 SCC 212 - referred to.
Great Western Railway Company v. Beater 8 Tax Cases
231; Mcmillan v. Guest [1942] AC 561 - referred to.
Case Law Reference
1954 AIR 653
referred to
Para 12
[1955] SCR 1004
referred to
Para 13
[1964] SCR 311
referred to
Para 14
[1958] SCR 387
referred to
Para 15
[1969] SCR 422
referred to
Para 16
[1970] 2 SCR 835
referred to
Para 18
[1976] 3 SCR 832
referred to
Para 19
[1985] 2 SCR 50
referred to
Para 22
[2001] 3 SCR 1020
referred to
Para 23
[2006] 2 Suppl. SCR 110
referred to
Para 24
[1967] SCR 679
followed
Para 28
[1968] SCR 185
referred to
Para 29
[1990] 1 Suppl. SCR 625
referred to
Para 30
[1980] 1 SCR 759
referred to
Para 31
[1988] 3 SCR 868
referred to
Para 31
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1463
of 2008.
From the Judgment and Order dated 27.10.2005 of the High Court
of Judicature at Patna in LPA No. 879 of 2004.
Akhilesh Kumar Pandey and Brahma Kr. Pathak, Advs. for the
Appellant.
STATE ELECTION COMMISSIONER, BIHAR PATNA v.
JANAKDHARI PRASAD
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The Judgment of the Court was delivered by
DIPAK MISRA, CJI 1. Janakdhari Prasad, the 1st respondent
herein, was elected in the year 2001 as a member of Panchayat Samiti,
Nagarnausa. On 13th February, 2004, the fifth respondent, Ravindra Nath
Sharma, filed a petition before the State Election Commission, Bihar
(for short "the Commission") contending, inter alia, that the respondent
No. 1 was working as an Assistant Government Pleader in Hilsa, subdivision of District Nalanda and, therefore, he was disqualified to hold
the post of member, Panchayat Samiti in view of Section 139(l)(c) of the
Bihar Panchayat Raj Act, 1993 (for brevity, 'the Act').
2. The Election Commission, in order to decide the issue whether
the 1st respondent was in service of the State Government within the
sweep of Section 139(l)(c) of the Act, referred to the appointment letter
issued by the Law Department, Government of Bihar, vide which the
respondent herein was appointed as an Advocate in the panel of Assistant
Government Advocates and thereafter observed that the said respondent
was holding a post under the State Government and was receiving fees
for the cases conducted by him from the Government and hence, he
would be deemed to be in service of the State. Being of this view, the
Election Commission vide order dated 29.03.2004 disqualified the
respondent under Section 139(l)(c) of the Act from the post of Member
in the Panchayat Samiti.
3. Aggrieved by this Order of the Commission, the 1st respondent
knocked at the doors of the High Court of Judicature at Patna by
preferring a Writ Petition (CWJC) No. 4322 of 2004 under Article 226
of the Constitution of India for quashment of the order of the Commission.
The learned Single Judge opined that the word "service" has not been
defined under the Act and hence, its meaning has to be ascertained in
the context it is used and the context in which it is used denotes various
classes or category of posts within it. The learned Single Judge further
observed that no hard and fast rule can be laid to ascertain as to which
category of office shall come within the expression "service", for host
of factors have to be taken into consideration to determine such
relationship. He further proceeded to observe that none of the factors
may be conclusive and no single factor may be considered absolutely
essential. Eventually, he stated:-
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"In my opinion, for bringing an office within the expression 'service'
of State Government there has to be a relationship of Master and
Servant, age of entering and retirement, scale of pay or fixed
remuneration, the Conduct and Discipline Rules and such other
factors. The presence of one ingredient or the other may not
necessarily bring a particular office within the expression 'service'
in the context of disqualification but presence of some or the other
is necessary for the purpose"
Thereafter, the learned Single Judge examined the nature of
appointment of a Government pleader who is paid a retainer-ship as fee
and differentiated between the nature of appointment of an Assistant
Government Pleader from that of a Government Pleader and came to
hold that so far as the Assistant Government Pleader is concerned, he is
appointed to assist the Government Pleader and for the professional
work rendered, he is paid remuneration but not paid any retainer fee. He
further expressed the view that a Government Pleader is not entitled to
appear against the State Government but an Assistant Government
Pleader, can appear, against the State Government in a case. The
Assistant Government Pleader is basically an Advocate on the roll of
the State Bar Council and besides giving professional advice to other
litigants by virtue of his/her engagement by the State Government, he/
she also advises and represents the State Government in Courts of Law.
The appointment of the Government Pleader is governed by the executive
instruction which is a tenure appointment and he remains a legal
practitioner for all purpose and intent. That apart, the engagement of an
advocate as an Assistant Government Pleader is a professional
engagement and the relationship between the State and that of the
Assistant Government Pleader is that of a lawyer and client and not of
Master and Servant. There is neither minimum or maximum age limit
for engagement of a person as an Assistant Government Pleader nor
there is any age of retirement. Assistant Government Pleader is paid
fees for the professional work done by him and his remuneration is not
fixed in a particular time scale. Additionally, no Discipline Rules govern
his conduct and he is bound by same Code of Conduct as any other
lawyer. Considering all the aspects in a cumulative manner, he arrived at
the conclusion that the Assistant Government Pleader cannot be said to
be in service of the State Government so as to bring him within the
mischief of Section 139(l)(c) of the Act.
STATE ELECTION COMMISSIONER, BIHAR PATNA v.
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
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4. On the issue of office of profit, the learned Single Judge observed
that the expression "in service" of the State Government and the
expression "office of profit" in State Government are not synonymous
and, therefore, a person may hold an office of profit under the State but
that does not amount to the fact that he is "in service" of the State. With
the aforesaid reasoning, he set aside the order of the Commission.
5. Aggrieved by the aforesaid view, the State Election
Commissioner filed an appeal, being L.P.A No. 879 of 2004, before a
Division Bench of the High Court, which concurred with the view
expressed by the Single Judge and dismissed the appeal vide impugned
judgment and order dated 27.10.2005. The said dismissal has led to
filing of the present appeal by special leave.
6. Criticising the impugned judgment and order of the High Court,
it is submitted by the learned counsel for the appellants that the 1st
respondent was appointed in respect of a sanctioned post and, therefore,
he is in service of the Government which would indubitably disqualify
him to remain as a member. It is his further submission that the word
"service" contextually is of wider import and it has to be conferred a
purposive meaning so that the democracy is sustained at the ground
level and the elected representatives remain connected to their electorate.
7. Despite service of notice, none has appeared on behalf of the
respondents.
8. To appreciate the controversy at hand, we may refer to Article
243F(1)(b) of the Constitution of India. It reads as follows:-
"Article 243F. Disqualifications for membership.- (1) A
person shall be disqualified for being chosen as, and for being, a
member of a Panchayat-
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(b) if he is so disqualified by or under any law made by the
Legislature of the State."
Article 243F(1)(b) makes it quite clear that a member of Panchayat
shall stand disqualified by or under any law made by the Legislature of
the State. The Constitution of India has left it to the wisdom of the State
Legislature.
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9. The Legislature of the State of Bihar has enacted the Act and
Section 139 of the Act stipulates that the persons disqualified shall cease
to hold the office. The said provision is as under:-
"Section 139. Disqualification.- (1) Notwithstanding anything
contained in this Act, a person shall be disqualified for election or
after election for holding the post as Mukhia, member of the GramPanchayat, Sarpanch, Panch of the Gram Katchahri, member of
the Panchayat Samiti and member of Zila Parishad, if such person
(a) is not citizen of India;
(b) is so disqualified by or under any law for the time being in
force for the purposes of elections to the legislature of the State:
Provided that no person shall be disqualified on the ground that he
is less than twenty five years of age, if he has attained the age of
twenty one years;
(c) is in the service of Central or State Government or any local
authority;
(d) is in service of any such institution receiving aids from Central
or State government or any local authority;
(e) has been adjudged by a competent court to be of unsound
mind;
(f) has been dismissed from the service of Central or State
Government or any local authority for misconduct and has been
declared to be disqualified for employment in the public service;
(g) has been sentenced by a criminal court whether within or out
of India to imprisonment for an offence, other than a political
offence, for a term exceeding six months or has been ordered to
furnish security for good behaviour under Section 109 or Section
110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and
such sentence or order not having subsequently been reversed;
(h) has under any law for the time being in force become ineligible
to be a member of any local authority;
(i) holds any salaried office or office of profit under the Panchayat;
(j) has been found guilty of corrupt practices.
STATE ELECTION COMMISSIONER, BIHAR PATNA v.
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
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Provided that on being found guilty of corrupt practices, the
disqualification shall cease after six years of general election.
(2) If any question arises as to whether a member of a Panchayat
at any level has become subject to any of the disqualifications
mentioned in sub-section (1), the question shall be referred for
the decision of such authority and in such manner as the
Government may by law provide.
(3) If a person, who is chosen as a member of Panchayat, a
Mukhia, a Sarpanch, is or becomes a member of the Lok Sabha,
Rajya Sabha, Legislative Assembly, Legislative Council, or is or
becomes a municipal councillor or a councillor of a Municipal
Corporation or a member of Sanitary Board or a member of a
notified area committee or a member of any other Panchayat,
Mukhia, Sarpanch, then within fifteen days from the date of
commencement of the term of office of a member of Lok Sabha,
Rajya Sabha, Legislative Assembly, Legislative Council or of a
councilor of municipality or Municipal Corporation or a member
of Sanitary Board or notified area committee or a member of
other Panchayat or Mukhia or Sarpanch, his seat in the Panchayat
shall become vacant unless he has previously resigned his seat in
the Lok Sabha, Rajya Sabha, Legislative Assembly, Legislative
Council, Municipality or the Municipal Corporation, Sanitary Board
or the notified area committee or of any such Panchayat as the
case may be."
Rule 122 of the Bihar Panchayat Election Rules, 1995, as amended
in 2002, empowers the State Election Commission to decide
disqualification of an elected member of a Panchayat. The said Rule
reads as follows:-
"Rule 122. Under provisions of Section 139(2) of the Bihar
Panchayat Raj Act, 1993, the State Election Commission shall be
the competent authority to decide whether a member of the
Panchayat at any level has become subject to any of the
disqualifications mentioned in Section 139(1) of the Act. The matter
of disqualification may be brought to the notice of the State Election
Commission in the form of a complaint, application or information
by any person or authority. The State Election Commission may
also take suo moto cognizance of such matters and decide such
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matters expeditiously after allowing sufficient opportunity to the
affected parties of being heard."
We have reproduced the relevant Section and the Rule to
appreciate the controversy in entirety.
10. In the case at hand, we are concerned with Section 139(1)(c)
and (d) of the Act. In Section 139(1)(c), there is a postulate that a person
shall be disqualified if such a person is in the service of Central or State
Government or any local authority. Section 139(1)(d) lays down a
disqualification if the person is in service of such institution receiving
aids from Central or State Government or any local authority. As is
noticeable, the key word in both the provisions pertains to 'service'.
11. As has been stated earlier, the learned single Judge has drawn
a distinction between "office of profit" and "service under the
Government". We think it apposite to restate the legal position, the
distinction between the two facets as above and thereafter x-ray the
provision, the legislative purpose behind the same and the nature of
appointment.
12. A three-Judge Bench in Ravanna Subanna v. G.S.
Kaggeerappa1, was dealing with the acceptance of nomination papers
of the appellant on the ground that he was holding an office of profit
under the Government at the relevant time as he was the Chairman of
Taluk Development Committee and was, hence, disqualified for being
chosen as a Councillor under Section 14 of the Mysore Town
Municipalities Act, 1951 (for short, "1951 Act"). The objection was
overruled by the Returning Officer and eventually the appellant was
declared elected. Challenging the election, the respondent filed an election
petition before the concerned Sub-Judge who dismissed the petition opining
that the elected candidate was not holding an office of profit under the
Government as contemplated by Section 14 of the 1951 Act. The said
judgment was reversed by the Division Bench of the High Court in an
appeal and respondent was declared elected. Section 14(1) enumerated
various grounds of disqualification and one of such grounds was that of
a person holding an office of profit under the Government of India or the
Government of any State specified in the First Schedule. It further
provided that if any person is elected as a councilor in contravention of
the provisions, his seat shall be deemed to be vacant. The Court addressed
 1 AIR 1954 SC 653
STATE ELECTION COMMISSIONER, BIHAR PATNA v.
JANAKDHARI PRASAD [DIPAK MISRA, CJI]
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to the issue of disqualification and posed the question whether the
appellant held an office of profit as provided for under Section
14(1)(A)(a)(iii) of the 1951 Act. The three-Judge Bench expressed
thus:-
"12. ... The plain meaning of the expression seems to be that an
office must be held under Government to which any 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 really carries any profit."
Analysing the facts of the case in detail, the Court ruled:-
"12. ... From the facts stated above, we think it can reasonably
be inferred that the fee of Rs. 6 which the non-official Chairman
is entitled to draw for each sitting of the committee, he attends, is
not meant to be a payment by way of remuneration or profit, but
it is given to him as a consolidated fee for the out-of-pocket
expenses which he has to incur for attending the meetings of the
committee. We do not think that it was the intention of the
Government which created these Taluk Development Committees
which were to be manned exclusively by non-officials, that the
office of the Chairman or of the members should carry any profit
or remuneration."
And, again:-
"13. ... it cannot be argued that even if a Chairman or a member
of a Government committee works in a purely honorary capacity
and there is no remuneration attached to the office, he will still be
regarded as a person holding office of profit in view of the provisions
of the section. ..."
After expressing the aforesaid view, the three-Judge Bench of
this Court reversed the judgment of the High Court.
13. In Sakhawant Ali v. State of Orissa2, the issue arose whether
the nomination papers were correctly rejected by the Election Officer
on the ground that the appellant therein was employed as a legal
practitioner against the Municipality in a case under Section 198 of the
 2 AIR 1955 SC 166
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Bihar and Orissa Municipal Act. The candidate whose nomination paper
was rejected moved the High Court under Article 226 of the Constitution
praying for a writ or order of prohibition to the State Government and
the Election Officer restraining them from holding the election but the
High Court rejected the said prayer. The Court took note of the fact that
the Orissa Municipal Act, 1950 was passed by the State Legislature.
Section 16 of the said Act prescribed the disqualification of a candidate
for election and it provided that no person shall be qualified for election
to a seat in a municipality if such person is employed as a paid legal
practitioner on behalf of the municipality or as legal practitioner against
the municipality. A contention was raised before the High Court that the
person sought to contest the election could not be declared to be
disqualified as the said Act had come into operation on 15th April, 1951
and consequently, he could not have been disqualified from 15th March,
1951 when he filed the nomination papers. The Constitution Bench
analysed Section 1 of the said Act and opined that the disqualification
was attracted regard being had to the sub-section (5) of Section 1 of the
said Act that had stipulated that the said provision in express terms
provided that after the Act had received the assent of the Governor
elections could be held under the Act but were only to take effect on the
Act coming into force, which meant the coming into force of the Act in
such area or areas on such date or dates which the State Government
might appoint from time to time under Section 1(3) of the Act. There
was thus contemplation under the very provisions of Section 1(5) to the
holding of elections under the Act in spite of the fact that the Act had not
come into force in a particular area. The Court further observed:-
"11. The right of the appellant to practice the profession of law
guaranteed by Article 19(1)(g) cannot be said to have been violated,
because in laying down the disqualification in Section 16(1)(ix) of
the Act the Legislature does not prevent him from practising his
profession of law but it only lays down that if he wants to stand as
a candidate for election he shall not either be employed as a paid
legal practitioner on behalf of the municipality or act as a legal
practitioner against the municipality. There is no fundamental right
in any person to stand as a candidate for election to the
municipality. The only fundamental right which is guaranteed is
that of practising any profession or carrying on any occupation,
trade or business. There is no violation of the latter right in
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prescribing the disqualification of the type enacted in Section
16(1)(ix) of the Act."
14. A Constitution Bench in Guru Gobinda Basu v. Sankari
Prasad Ghosal and others3 was dealing with an issue wherein the
appellant was a chartered accountant and a partner of firm of auditors
carrying on business under the name and style of a company and the
said firm acted as the auditor of certain companies and corporations.
The appellant carried with it the right to receive fees, remuneration as
Director of the West Bengal Financial Corporation. The Court, analyzing
Article 102(l)(a) of the Constitution and concurring with the view of the
High Court stated thus:-
"... We agree with the High Court that for holding an office of
profit under the Government, one need not be in the service of
Government and there need be no relationship of master and
servant between them., The Constitution itself makes a distinction
between 'the holder of an office of profit under the Government'
and 'the holder of a post or service under the Government'; see
Arts. 309 and 314. ..."
15. The Court referred to the decision in Maulana Abdul Shakur
v. Rikhab Chand and another4. In the said case, the question arose
before a Constitution Bench whether the returned candidate was holding
an office of profit, for he was the manager of a school run by a committee
of management formed under the provisions of Durgah Khwaja Saheb
Act, 1955. It was contended before the Court that the Government of
India had the power of appointment and removal of the members of the
committee of management, as also the power to appoint the administrator
in consultation with the committee and, therefore, the returned candidate
was under the control and supervision of the Government and hence, he
was holding an office of profit under the Government of India. The
Court repelled the submission by drawing a distinction between the holder
of an office of profit under the Government and the holder of an office
of profit under some other authority subject to the control of Government.
The Court expressed its opinion thus:-
"No doubt the Committee of the Durgah Endowment is to be
appointed by the Government of India, but it is a body corporate
 3 AIR 1964 SC 254
 4 AIR 1958 SC 52
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with perpetual succession acting within the four corners of the
Act. Merely because the Committee or the members of the
Committee are removeable by the Government of India or the
Committee can make bye-laws prescribing the duties and powers
of its employees cannot in our opinion convert the servants of the
Committee into holders of office of profit under the Government
of India. The appellant is neither appointed by the Government of
India nor is removable by the Government of India nor is he paid
out of the revenues of India. 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 that person is holding an office of profit under
the Government though payment from a source other than
Government revenue is not always a decisive factor. But the
appointment of the appellant does not come within this test."
The aforesaid passage lucidly states what basically constitutes an
office of profit.
16. In Mahadeo v. Shantibhai and others5, question arose
whether a lawyer had incurred disqualification on account of holding an
office of profit under the Government. The appellant was kept on the
panel of Railway Pleaders for conducting suits filed against the Union of
India in the courts of Ujjain on the terms and conditions therein mentioned.
One of the terms shows that the appellant was ordinarily to be entrusted
with cases up to valuation of rupees three thousand only. Another
condition was that he would not accept any brief against any Railway in
any court. Clause (13) of the terms of the appointment letter read as
follows:-
"You will be expected to watch cases coming up for hearing against
this Railway in the various courts at UJB and give timely intimation
of the same to this office. If no instructions regarding any particular
case are received by you, you will be expected to appear in the
court and obtain an adjournment to save the ex parte proceedings
against this Railway in the court. You will be paid Rs 5 for every
such adjournment if you are not entrusted with the conduct of the
suit later on."
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17. The Court referred to the observations of House of Lords in
Mcmillan v. Guest6 wherein Lord Wright, delivering the opinion, said:-
"The word "office" is of indefinite content. Its various meanings
cover four columns of the New English Dictionary, but I take as
the most relevant for purposes of this case the following: "A position
or place to which certain duties are "attached, especially one of a
more or less public character."
Eventually, the Court expressed the view:-
"If by "office" is meant the right and duty to exercise an
employment or a position to which certain duties are attached as
observed by this Court, it is difficult to see why the engagement
of the appellant in this case under the letter of February 6, 1962
would not amount to the appellant's holding an office. By the said
letter he accepted certain obligations and was required to discharge
certain duties. He was not free to take a brief against the Railway
Administration. Whether or not the Railway Administration thought
it proper to entrust any particular case or litigation pending in the
court to him, it was his duty to watch all cases coming up for
hearing against the Railway Administration and to give timely
intimation of the same to the office of the Chief Commercial
Superintendent. Even if no instructions regarding any particular
case were given to him, he was expected to appear in court and
obtain an adjournment. In effect this cast a duty on him to appear
in court and obtain an adjournment so as to protect the interests
of the Railway. The duty or obligation was a continuing one so
long as the railway did not think it proper to remove his name
from the panel of Railway lawyers or so long as he did not intimate
to the Railway Administration that he desired to be free from his
obligation to render service to the Railway. In the absence of the
above he was bound by the terms of the engagement to watch
the interests of the Railway Administration, give them timely
intimation of cases in which they were involved and on his own
initiative apply for an adjournment in proceedings in which the
Railway had made no arrangement for representation. It is true
that he would get a sum of money only if he appeared but the
possibility that the Railway might not engage him is a matter of no
moment. An office of profit really means an office in respect of
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which a profit may accrue. It is not necessary that it should be
possible to predicate of a holder of an office of profit that he was
bound to get a certain amount of profit irrespective of the duties
discharged by him."
In the aforesaid judgment, as we notice, the Court laid emphasis
on the terms of appointment and also on the concept of accrual of profit.
18. In Srimati Kanta Kathuria v. Manak Chand Surana7, the
issue that arose for consideration was whether the appellant was holding
an office of profit within the meaning of Article 191 of the Constitution
or not. The appellant was appointed to assist the Government Advocate
in the absence of any Assistant Counsel. The letter of appointment
stipulated that the appellant was appointed as a Special Government
Pleader to conduct the particular case on behalf of the State of Rajasthan
alongwith Government Advocate. The Government laid down the fees
payable to the appellant. In the said case, the High Court opined that the
appellant held an office of profit. The majority referred to the decision in
Great Western Railway Company v. Beater8 and Mcmillan case and
referring to Mahadeo (supra) opined:-
"29. That case in no way militates against the view which we
have taken in this case. That case is more like the case of a
standing Counsel disqualified by the House of Commons. It is
stated in Rogers (on Elections Vol. II) at p. 10:
"However, in the Cambridge case (121 Journ. 220), in 1866,
the return of Mr Forsyth was avoided on the ground that he held
a new office of profit under the Crown, within the 24th section. In
the scheme submitted to and approved by Her Majesty in Council
was inserted the office of standing counsel with a certain yearly
payment (in the scheme called 'salary') affixed to it, which Mr
Forsyth received, in addition to the usual fees of counsel. The
Committee avoided the return."
The majority also referred to the decision in Sakhawant Ali
(supra) which dealt with an instance where the legislature had provided
that the paid legal practitioner could not stand in the municipal elections.
Elucidating further, it has been expressed thus:-
 7 (1969) 3 SCC 268
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"36. In view of the above reasons, we must hold that the appellant
was not disqualified for election under Article 191 of the
Constitution. But assuming that she held an office of profit, this
disqualification has been removed retrospectively by the Rajasthan
Legislative Assembly by enacting the impugned Act."
19. A two-Judge Bench in Madhukar G.E. Pankakar v. Jaswant
Chobbildas Rajani and others9was dealing with the election of the
President of a Municipal Council under the Maharashtra Municipalities
Act, 1965. An unsuccessful candidate challenged the election of the
returned candidate singularly on the ground that the candidate was
disqualified under Section 16(1)(g) of the said Municipal Act inasmuch
as on the date of nomination he was holding an office of profit under the
Government, as he was then, admittedly working as a panel doctor
appointed under the Employees' State Insurance Scheme (ESI Scheme),
a beneficial project contemplated by the Employees' State Insurance
Act, 1948. The returned candidate, a doctor, was admittedly on the date
of filing of nomination, functioning as such but had resigned before actual
polling took place. The Election Tribunal accepted the stand of the election
petitioner and declared the election of the returned candidate void. It
further proceeded to hold that the election petitioner, being the sole
surviving candidate, was the President. Commenting on the election
petition in the backdrop of facts, Krishna Iyer, J., who penned the
judgment, wrote:-
"6. It is plain democratic sense that the electoral process should
ordinarily 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 overturning of poll verdicts
injects instability into the electoral system, kindles hopes in worsted
candidates and induces post-mortem discoveries of
"disqualifications" as a desperate gamble in 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, and
not retreat from the rule of law."
20. In the said case, Section 16(1)(g) which provided for office of
profit, read thus:-
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"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 Government or any local authority;"
It was contended before the Election Tribunal that the elected
candidate was not entitled to become a councilor as he held an office of
profit under the Government. To appreciate the concept of office of
profit, this Court referred to Section 58 of the ESI Act, 1948, ESI Scheme
and opined that the elected candidate although was a private doctor and
running a private clinic was also an insurance medical practitioner subject
to the discipline, directions, obligations and control of the relevant officers
appointed by the State Government in implementing the medical benefit
scheme. His letter of appointment read that being a medical practitioner
'appointed as such to provide medical benefit under the Act and to perform
such other functions as may be assigned to him'.
21. We may note with profit that in the said case, Krishna Iyer, J.
clarified the conflict between Mahadeo (supra) and Srimati Kanta
Kathuria (supra) by stating thus:-
"41. ... Judicial technology sometimes distinguishes, sometimes
demolishes earlier decisions; the art is fine and its use skilful.
Both the cases dealt with advocates and we have referred to
them in the earlier resume of precedents. Even so, a closer look
will disclose why we follow the larger Bench (as we are bound
to, even if there is a plain conflict between the two cases). Justice
Rowlatt's locus classicus in Great Western Rly. Co.