Roshan Lal Dohrey v. Bebari Lal Dohrey — 1982 DIGILAW 343 (ALL)

JUDGMENT K.N. Seth, J. 1. The petitioner, the respondent Sri Behari Lal Dohrey and others were candidates for the election to the Uttar Pradesh Legislative Assembly from 308 Kanauj (S.C.) assembly constituency in the district of Farrukhabad. The schedule of the aforesaid election was as follows: Last date for filing nomination 2nd May 1980. Date of Scrutiny 5th May, 1980. Date of election 25th May, 1980. The nomination paper of the petitioner was rejected by the Returning Officer by his order dated 5-5-1980 on the ground that he held an office of profit under the Government of the State of U.P. and was consequently disqualified for being chosen as a member of the Legislative Assembly under Article 191 (1) (a) of the Constitution of India. The polling took place on 28-5-81. Behari Lal Dohrey was declared elected on 1-6-1980. The election of respondent Behari Lal Dohrey has been challenged in this petition. 2. The petitioner was employed as an Assistant Teacher in the Basic Primary School, Sengarmau, Tahsil Kannauj, district Farrukhabad. The institution was run and managed (?) (by Zila Parishad, Farrukhabad, and the petitioner) was an employee of the Zila Parishad, Farrukhabad. In July, 1972 U.P. Ordinance No. XIV of 1972 was issued whereupon all the basic institutions run and managed by local authorities including the Zila Parishad of Farrukhabad, were taken over by the Board of Basic Education, U.P. constituted in accordance with the provisions of U.P. Ordinance No. XIV of 1972. The petitioner thereupon became an employee of the Board of Basic Education U.P. Ordinance No. XIV of 1972 was repealed by the U.P. Basic Education Act, 1972 (U.P. Act No. 34 of 1972). The case set up by the petitioner was that he resigned from the post of Assistant Teacher of the Basic Primary School, Sengarmau on 28th April, 1980 and thereafter filed his nomination paper. It was asserted by the petitioner that he did not hold any office of profit under the Government of the State of U.P. and was not disqualified for being chosen as a member of the Legislative Assembly of U.P. Objections to the nomination paper of the petitioner were filed by respondent Behari Lal Dhorey. It was asserted by the petitioner that he did not hold any office of profit under the Government of the State of U.P. and was not disqualified for being chosen as a member of the Legislative Assembly of U.P. Objections to the nomination paper of the petitioner were filed by respondent Behari Lal Dhorey. It was pleaded that on the date of filing the nomination the petitioner was working as an Assistant Teacher in the Basic Primary School, Sengarmau, and had not resigned form the service and consequently he was disqualified for being chosen as a member of the Legislative Assembly. 3. The Returning Officer by his order dated 5th May, 1980 upheld the objection filed by the respondent and rejected the nomination paper of the petitioner. 4. In his written statement in this Court the respondent has raised the same pleas which were raised before the Returning Officer. On the pleadings of the parties the following Issues were framed:- 1. Whether the nomination paper of the petitioner was improperly rejected by the Returning Officer? If so, its effect? 2. To what relief, if any, the petitioner is entitled? At the hearing the learned counsel for the petitioner made a statement that the petition may proceed on the basis that the petitioner had not resigned and continued to be an Assistant Teacher in the basic primary school at the time of the filing of the nomination paper. At an earlier stage a statement on behalf of the petitioner was made that the petitioner would not examine any oral evidence. 5. The only question that arises for consideration in this petition is whether the petitioner was disqualified from being chosen as a member of the U.P. Legislative Assembly on the ground that he held an office of profit under the Government of the State of U.P. 6. It is not disputed that originally the petitioner was appointed as an Assistant Teacher by the Zila Parishad, Farrukhabad, which run and managed the Basic Primary School, Sengramau. In 1972 all the basic institutions, including the institution in which the petitioner was employed as an Assistant Teacher, were taken over by the Board of Basic Education, U.P. and since then the Zila Parishad ceased to be the employer of the petitioner. In 1972 all the basic institutions, including the institution in which the petitioner was employed as an Assistant Teacher, were taken over by the Board of Basic Education, U.P. and since then the Zila Parishad ceased to be the employer of the petitioner. Section 3 of the Basic Education Act, 1972 provides for constitution of the Board known as the Uttar Pradesh Board of Basic Education which is a body corporate having perpetual succession and a common seal. The Board consists of: (a) the Director ex-officio, who shall be the Chairman: (b) two persons to be nominated by the State Government from amongst the Adhyaksha, if any, of Zila Parishads established under section 17 of the Uttar Pradesh Khsettra Samiti and Zila Parishad Adhiniyam, 1961: (c) one person to be nominated by the State Government from amongst the Nagar Pramukhas, if any, of the Mahapalikas constituted under section 9 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959; (d) one person to be nominated by the State Government from amongst the Presidents, if any, of the Municipal Boards established under the U.P. Municipalities Act, 1915; (e) the Secretary to the State Government in the Finance Department, ex officio; (f) the Principal, State Institute of Education, ex officio; (g) two educationists to be nominated by the State Government; (h) an officer not below the rank of Deputy Director of Education to be nominated by the State Government, who shall be the member-Secretary. The members of the Board, other than the ex officio members held office for the period specified in the order of appointment unless the appointment is terminated earlier by the State Government. By section 4 the function of the Board is provided. Section 6 provides that for the purpose of enabling it efficiently to discharge its function under the Act the Board may appoint such member of officers, teachers and other employees as it may, with the previous approval of the State Government think fit. 7. Section 7 of the Act provides that the Board shall have its own fund and all receipts of the Board shall be carried thereto and payments for the Board shall be made therefor. 7. Section 7 of the Act provides that the Board shall have its own fund and all receipts of the Board shall be carried thereto and payments for the Board shall be made therefor. It is further provided that the Board shall have the power subject to the provisions of the Act and any general or special order of the State Government to spend such sums as it thinks fit on object or for purposes authorised by the Act. Section 9 of the Act makes provision for the transfer of teacher, officer and other employees serving under a local body in connection with basic schools to the Board whereupon they become a teacher, officer or other employee of the Board and hold office by the same tenure at the same remuneration and upon the same terms and conditions of service as they would have held if the Board had not been constituted. Upon their transfer to the Board such on employee becomes an employee of the Board. The Director of the Board, who is appointed by the State Government exercise control over the basic schools (Section 12). Section 13 of the Act provides that the Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of the Act. The Board is required to furnish to the State Government such reports, returns and other informations as the State Government may from time to time, require. 8. The provisions of the Act clearly indicate that the teacher, officer and other employees who were serving under a local body prior to the enforcement of the Act became employees of the Board on the same terms and conditions of service. It is true that the Board has been established by the State Government and a large number of its personnel are either Government servants or are nominated by the State Government but the over all control of management of the basic schools vests in the Director of the Board. Sub-section (2) of Sec. 13 also contemplates dispute between the Board and the State Government. As noted earlier, the Board as a body corporate having perpetual succession and a common seal. It is a distinct legal entity, distinct from the State although the State Government exercises some control over the constitution and functioning of the Board. Sub-section (2) of Sec. 13 also contemplates dispute between the Board and the State Government. As noted earlier, the Board as a body corporate having perpetual succession and a common seal. It is a distinct legal entity, distinct from the State although the State Government exercises some control over the constitution and functioning of the Board. The Uttar Pradesh Basic Education Staff Rules, 1973 framed by the State Government in exercise of powers under Sec. 19 of the Act indicate that in case of Assistant Teachers the appointing authority is the District Basic Education Officer. The salary is paid by the Board out of its own funds. The State Government has no direct control either with regard to the appointment of the teacher or with regard to the payment of his salary. In matters like transfer etc. also the State Government has no say. 9. In order to judge whether such a person is disqualified from being a member of the Legislative Assembly of the State reference may be made to certain provisions of the Constitution. Article 58 (2) provides that a person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or in any local or other authority subject to the control of any of the said Government. Similar is the language of Article 66 (4) which provides for election of Vice-President of India. Article 102 lays down the disqualification for membership of either Houses of Parliament. Sub-Article (1) (a) provides that a person shall be disqualified for being chosen as and for being a member of either Houses of Parliament if he holds any such office of profit under the Government of India or the Government of any State as is declared by Parliament by law to disqualify its holder. Similar is the provision relating to disqualification for membership to the Legislative Assembly or Legislative Council of a State. It is significant that the words "or any local or any other authority subject to the control of any of the State Governments" found in Articles 58 (2) and 66 (4) are missing from Articles 102(1) (a) and 191(1) (a). Similar is the provision relating to disqualification for membership to the Legislative Assembly or Legislative Council of a State. It is significant that the words "or any local or any other authority subject to the control of any of the State Governments" found in Articles 58 (2) and 66 (4) are missing from Articles 102(1) (a) and 191(1) (a). It is obvious that the framers of the Constitution did not intend that the holder of any office of profit under any local or other authority subject to the control of the Government of India or the Government of a State would be disqualified from being chosen as or for being a member of either Houses of Parliament or the Legislative Assembly or Legislative Council of a State. 10. The Supreme Court in a number of decisions had laid down the ingredients of a person holding an office of profit under the Government. They are: 1. Where the Government makes the appointment; 2. Where the Government has the right to remove or dismiss the holder; 3. Where the Government pays the remuneration; 4. What are the functions of the holder? Does he perform them for the Government? 5. Does the Government exercise any control over the performance of those functions. (See Abdul Shakoor v. Rikhab Chand, AIR 1958 SC 52 , Guru Govinda Basu v. Sankari Prasad Ghoshal, AIR 1964 SC 254 , D. K. Gurushanthappa v. Abdul Khuddus Anwar, AIR 1969 SC 744 and Kona Prabhakara Rao v. M. Sheshagiri Rao, AIR 1981 SC 658 . The problem similar to one in hand came up for consideration before the Supreme Court in D.R. Gurushanthappa (supra). In that case the election of the successful candidate was challenged on the ground that he was disqualified under Article 191 (1) (a) of the Constitution from being chosen as a member of the Legislative Assembly because he was holding an office of profit under the Government of State of Mysore on the date of scrutiny. Respondent no. 1 was employed as Superintendent, Safety Engineering Department in the Factory run by the Mysore Iron and Steel Works Limited, Bhadrawati. Initially respondent no. 1 was appointed in the year 1936 in the Mysore Iron and Steel Works, Bhadrawati, which was being managed by the Government as its own concern. Respondent no. 1 was employed as Superintendent, Safety Engineering Department in the Factory run by the Mysore Iron and Steel Works Limited, Bhadrawati. Initially respondent no. 1 was appointed in the year 1936 in the Mysore Iron and Steel Works, Bhadrawati, which was being managed by the Government as its own concern. He continued to be a servant of Government of Mysore when, in the year 1962, a private limited company was registered under the name of Mysore Iron and Steel Limited under the Indian Companies Act, 1966 and this Company took over the Mysore Iron and Steel Works from the Government. Respondent no. 1 was promoted as Superintendent in the year 1964 and was working on that post at the time of election in 1967. The share of the Company were held cent per cent by the Mysore Government, though some of the shares were shown in the names of some of the Officers in the service of the Mysore Government. Under the Articles of Association of the Company, the first Directors of the Company were the Minister-in-Charge of the Industries portfolio, and Secretaries as also senior Officers in other departments of the Government of Mysore. The Governor of Mysore was entitled to appoint all or a majority of the members of the Board of Directors so long as the Government of Mysore held not less than 51 per cent of the total paid up capital of the Company or so long as the Governor continued to be interested in any fiduciary capacity. Thus, the State Government had (considerable control in appointment of Directors of the Company as well as in the appointment of the Managing Director who was to be appointed by the Governor from amongst the Directors nominated by him. Even the Secretary of the Company had to be appointed by the Board of Directors after obtaining approval of the Governor. In respect of other employees of the Company, recruitment and service conditions had to be in accordance with the rules which may be prescribed by the Governor from time to time. When the concern was taken over by the Company from the Government respondent no. 1 was continued in the same post by the Company which he was holding. In respect of other employees of the Company, recruitment and service conditions had to be in accordance with the rules which may be prescribed by the Governor from time to time. When the concern was taken over by the Company from the Government respondent no. 1 was continued in the same post by the Company which he was holding. For the petitioner it was urged that when the concern was taken over by the Company from the Government there was no specific agreement terminating the Government service of respondent no. 1 or bringing into existence a relationship of master and servant between the Company and respondent no. 1. The Supreme Court took the view that that circumstance by itself cannot lead to the conclusion that respondent no. 1 continued to be in Government service. When the undertaking was taken over by the Company as a going concern, the employees working in that undertaking were also taken over and since, in law, the Company had to be treated as an entity distinct and separate from the Government, the employees, as a result of the transfer of the undertaking, became employees of the Company and ceased to be the employees of the Government. The Supreme Court observed: "We are unable to accept the proposition that the mere fact that the Government had control over the Managing Director and other Directors aswell as the power of issuing directions relating to the working of the company can lead to the inference that every employee of Company is under the control of the Government. The indirect control of the Government which might arise because of the power of the Government to appoint the Managing Director and to issue directions to the Company in its general working does not bring respondent no. 1 directly under the control of the Government." It was further observed: "The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its Directors or the Managing Director over respondent no. 1 cannot be held to be control exercised by the Government. 1 directly under the control of the Government." It was further observed: "The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its Directors or the Managing Director over respondent no. 1 cannot be held to be control exercised by the Government. For purposes of determining disqualification for candidature to a Legislature, it would not be appropriate to attempt to lift the veil and equate a Company with the Government merely because the share capital of he Company is contributed by the Government." Similar is the situation in the case in hand. When the services of the petitioner stood transferred to the Basic Education Board, he became an employee of the Board which is a distinct and separate entity. 11. Earlier, in Abdul Shakur v. Rikhab Chand (supra) question arose whether an employee of the Dergah Khwaja Sahib Akbari, which was controlled by Dergah Khawaja Sahib Act (Act No. 36 of 1955) could be elected to the Council of State. The Supreme Court holding that he could be so elected observed as follows:- "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but is a body corporate with perpetual succession acting within 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 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." 12. Learned counsel for the respondent sought to place reliance on the decision of the Supreme Court in Guru Gobinda Basu's case (supra). Learned counsel for the respondent sought to place reliance on the decision of the Supreme Court in Guru Gobinda Basu's case (supra). In my opinion the decision in that case is of no assistance to the respondent. The Supreme Court in Gurushanthappa's case (supra) explained its decision in Guru Gobinda Basu's case (supra). In that case the appellant was appointed by the Government and was liable to be dismissed by the Government. 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. The Court held that the appellant in that case was holding an office of profit under the Government, because the Court found that the several elements which existed were the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration. In our case the power to appoint and dismiss the petitioner does not vest in the Government or in any Government Authority. The power to control and give directions vests not in the Government but in an officer of the Board. Even the power to determine the question of remuneration payable to the petitioner is not vested in the Government. In these circumstances the indirect control exercisable by the Government because of its power to constitute the Board cannot be held to make the post of an assistant teacher an office of profit under the Government. This view of mine finds support from the decision of this Court in Radha Krishan Visharad v. Civil Judge, Aligrah, 1964 ALJ 840 (D.B.) where the case of a lecturer of a Government aided institution was considered and it was held that he could not be treated to be a Government servant or occupying a post in the gift or under the control of the Government. Applying the tests laid down by the Supreme Court in the cases referred to above it cannot possibly be held that the petitioner held an office of profit under the Government of the State. His nomination paper was wrongly rejected by the Returning Officer and consequently the election of the respondent must be declared to be void. 13. In the result the petition is allowed. His nomination paper was wrongly rejected by the Returning Officer and consequently the election of the respondent must be declared to be void. 13. In the result the petition is allowed. The election of the respondent as a Member of the U.P. Legislative Assembly from 308 Kannauj (SC) Assembly Constituency is declared void. The petitioner is entitled to costs which is assessed at Rs. 500/-. Petition allowed.