ATAR SINGH PHOOL SINGH v. STATE OF M P — 1984 DIGILAW 233 (MP)

JUDGMENT : ( 1. ) BY this petition, the petitioner has challenged the ordr dated 8-11-1983, passed by the Competent Authority (Sub-Divisional Officer, Gohad ) allowing the Election Petition filed against him by respondent No. 4 under section 117 of the M. P. Panchayats Act, 1981, (hereinafter described as the act for brevity ). ( 2. ) PETITIONER Atarsingh and respondent No. 4 Keshavsingh are residents of village Subhash, Gram Panchayat rai-Ki-Pali, Pargana Gohad, district Bhind. The petitioner and the respondent submitted their nomination papers for the election as Panch of the said Gram Panchayat from ward No. 10 of village Subhash, on 2-6-1983. The nomination papers were scrutinised on 4-6-1983 by the Election Officer and the nomination of respondent No. 4 was rejected on the ground that at the time of filing the nomination paper he was working as a Village Health Guide under the "health Guides Scheme" of the Government of India, Ministry of Health and Family Welfare, which, according to Election Officer, was an office of "profit attracting the disqualification in sub-section (1) (d) of section 30 of the Act. Consequently, the petitioner was declared elected unopposed as the Panch from Ward No. 10 of village Subhash, and subsequently he was also elected as the Sarpanch of Rai -Ki-Pali Panchayat, which was duly notified by the Collector under the notification dated 22-7-1983 (Annexure P-l ). However, respondent No. 4. riled an Election Petition under section 117 of the Act and the Competent Authority under the impugned order dated 8-11-1983, set aside the Order dated 4-6-1983 of the election Officer rejecting the nomination paper submitted by respondent no. 4 resulting into unopposed election of, the petitioner as the Panch. Under the impugned order, it was held that the "village Health Guide" was not an office of Profit in terms of section 30 (1) (d) of the Act. ( 3. ) THE main point for consideration in this petition is, as to whether working as a "village Health Guide" could be construed as an office of profit, in. terms of sub-section (1) (d) of section 30 of the Act, which runs as follows: - "30. Disqualification for being office-bearer of Panchayat.- (1)No person shall be eligible to be an office-bearer of a Panchayat who- (a ). . . . . . . . . . . . . . . (b ). . . . . . . . Disqualification for being office-bearer of Panchayat.- (1)No person shall be eligible to be an office-bearer of a Panchayat who- (a ). . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . (d) holds an office of profit under any Panchayat or is in the service of any other local authority or co-operative society or the state Government or Central Government or any public sector under taking under the control of the Central Government or the State government: provided that no person shall be deemed to have incurred disqualification under this clause by reason of being appointed as a Patel under the Madhya Pradesh Land Revenue Code, 1959 (20 of 1959);" ( 4. ) IN regard to the meaning of the terms office of profit, reference may usefully be invited to the following observations of the Supreme court in the case of Ravanna Subanna v, G. S. Kaqgeerappa (A I R 1954 S C 653 (at page 656 )) "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. " ( 5. ) THE latest case on the point appears to be that of Biharilal v. Roshanlal ( AIR 1984 S C 385 (at page 387) ). wherein it has been observed that: "an office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. " ( 5. ) THE latest case on the point appears to be that of Biharilal v. Roshanlal ( AIR 1984 S C 385 (at page 387) ). wherein it has been observed that: "an office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether anyone or more of them may be decisive of its true nature has been the subject-matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government although the Court has no doubt determined in each case whether the particular office involved in it was such an office or not having regard to its features. " Thereafter, the Supreme Court has made a resume of all the relevant case law upto date and has pointed to the distinguishing features, which led it to hold whether or not the incumbent, in the particular context held an office of profit or not so as to disqualify or not to disqualify him in respect of the body to which he was elected. ( 6. ) IN the instant case, from a reading of the Government Communications Annexures Ex. P-5, R-4 and R-5, which were not challenged before us, it is possible to deduce with clarity the history, the terms of appointment and other relevant features relating to "village Health Guides". Ex. ( 6. ) IN the instant case, from a reading of the Government Communications Annexures Ex. P-5, R-4 and R-5, which were not challenged before us, it is possible to deduce with clarity the history, the terms of appointment and other relevant features relating to "village Health Guides". Ex. P-5 is the communication dated 18-8-1981 sent by the Joint Secretary to the Government of India in the Ministry of Health and Family Welfare, addressed to the Directors of the health services of various states whereby it is brought out that the Community Health Volunteers Scheme was introduced in the Country from 2-10-1977 and revised from time to time, so that those who were earlier known as Community Health Volunteers came to be re-designated as the "village Health Guides". It has been observed in this communication :-"in the Health Guides Scheme, greater emphasis has been laid on the involvement of the community. Provision has been made for the establishment of village Health Committees for each village, consisting of five members chosen by he Village Panchayat, Village Community, gaon Sabha. It is envisaged that this community would take an active part in the implementation of the Health Guides Scheme. The Health Guides Scheme is a first step towards the implementa-tion of the Sixth Plan approach to encourage and motivate people to organise and administer their own health services with the active support of the Government. This approach envisages the ultimate answerability of the health functionaries to the community, represented by the Health Guide and the Village Health Committee (VHC), In this context you would appreciate the crucial importance of the Health Guides being afforded the fullest support and encouragement by the Government machinery. Furthermore, it is necessary to show him due courtesy, as the chosen representative of this community in the field of Health. The Government health functionaries possessing better technical knowledge and skill, should assist the Health Guides and the VHCs. in successfully tackling the local health problems as well as in the effective implementation of the various health and family welfare programmes. The Government health functionaries possessing better technical knowledge and skill, should assist the Health Guides and the VHCs. in successfully tackling the local health problems as well as in the effective implementation of the various health and family welfare programmes. In this background, it would be incumbent on the health functionaries, specially those at the supervisory level, to regularly meet the Health guides during their field visits and take prompt necessary action on the requests and reports made by the Health Guides /vhcs regarding the health needs of the community as well as in regard to the functionaries and performance of paramedico and other workers. " (Emphasis supplied.) ( 7. ) FROM a reading of Annex, R-4 which is the communication, dated 23-10-1982, issued by the Director, Denida Health and Family Welfare plan, it is brought out that in Madhya Pradesh it was envisaged to appoint one Village Health Guide per 1000 of the village population. They were to render honorary service to the community but during the three months training period they were entitled to a stipend of Rs. 200 per month for meeting their expenses and thereafter on assumption of work in the village, to receive Rs. 50 per month as incentive bonus and medicines worth Rs. 50 per month for free distribution among the members of village community, ex. R-5 is the communication dated 22-2-1983 addressed by the District health and Family Welfare Officer, Bhind addressed to the Sarpanchas of the village Panchayats laying down the criterion fox as also the method of selection of the Village Health Guides. It is further brought out that the selections were to be made by and the Village Health Guides were to work under the control of Statutory Committee, known as the "twenty Points programme Committee. " ( 8. ) THUS by a combined reading of the relevant documents, namely, annexures P-5, R-4 and R-5, it is brought out that the "village Health guides" scheme envisages the voluntary involvement of the village community in the implementation of the project for the safeguard, betterment and implementation of the Health and Family Planning of the rural population. Though the Village Health Guide is to be assisted and guided by the Health functionaries of the Government, he is essentially a part-time honorary social worker and not an employee of the Central or State Government or any local authority. Though the Village Health Guide is to be assisted and guided by the Health functionaries of the Government, he is essentially a part-time honorary social worker and not an employee of the Central or State Government or any local authority. The service, conditions and the disciplinary control applicable to a Government servant are not applicable to the Village Health guides. He was expected to look after and. visit 1000 members of the village community represented by him in respect of the matters relating to their health and the family planning. He was expected to devote about 2 or 3 hours per day to this work, but the service rendered by him was honorary and he was not to receive any regular salary as such, but only an incentive bonus of Rs. 50 per month (PROTSAHAN RASH1), as also medicines worth Rs. 50 per month for free distribution among the members of the community. He was not expected to make the service rendered by him to be a source of income. ( 9. ) IT is thus, obvious that the paltry amount Rs. 50 per month paid to the-Village Health Guides could hardly be expected to cover his house-hold expenses, and was more likely to be spent in meeting the expenses of journey to and from the residences of the 1000 members of the com-munity represented by him, which he was expected to contact from time to time. The medicines supplied to him were meant for free distribution. Though he was to be assisted and guided by the Government Health func-tionaries, his selection was made by and he worked under the supervision of Statutory Committee, known as the "district Level Committee It is constituted under the enactment known as "the Madhya Pradesh Lok abhikaranon Ke Madhyam Se Bis Sutriya Karyakram Ka Karyanvayan adhiniyam, 1980, (Act No. 13 of 1980 ). " ( 10. ) IN view of the foregoing discussion, it should be clear, that by no stretch of imagination the Village Health Guides could be said to be in service of the Government or any local authority, nor to hold any office of profit under the Panchayat or any local authority. " ( 10. ) IN view of the foregoing discussion, it should be clear, that by no stretch of imagination the Village Health Guides could be said to be in service of the Government or any local authority, nor to hold any office of profit under the Panchayat or any local authority. No doubt, the budget for the purpose of meeting the expenses of the Health Scheme, including the incentive bonus of the Village Health Guide, came from the Government, the job in question is essentially of a part-time voluntary social worker and he did not receive any remuneration, as such, for the work. To our mind, the present case is more akin to the case, S. Umrao Singh v. Darbara Singh Sc. others (AIR 1968 Punj. and Har. 450.), decided by a Full Bench of the Punjab High court, which was confirmed by the Supreme Court by its decision reported in S. Umrao Singh v. Darbara Singh and others ( AIR 1969 S C 262 ). and wherein the Chairman of a Panchayat Samiti, in receipt of an allowance to meet the pocket expenses for the discharge of his duties was held not to be an office of profit in terms of Article 191 (1) (a) of the Constitution of India. Another case of similar nature, namely, Ravanna Subanna v. G. S. Kaggeerappa, has already been referred to earlier. However, reference may also be made usefully to the case of Upendralal Mahendralal Choudhary v. Smt. Narainee devi Jhd ( 1967 MPLJ 895 ), of this Court, wherein the "honorary Family Planning District education Leader" was held not to hold any office of profit, disqualifying him from the membership of the Legislative Assembly, for the reasons of receipt of grant-in-aid of Rs. 2,000 per year to meet the expenditure made in travelling, lodging and boarding while on tour and for,clerical assistance. The reasoning in these cases is applicable in the present case also. ( 11. ) WHILE in course of the arguments, the learned counsel for the petitioner, also assailed, though rather weakly, the impugned order dated 2-11-1983 of the competent authority on the ground that no opportunity was afforded to the petitioner for production of oral evidence and the said authority decided the case exclusively on the basis of issues Nos. ( 11. ) WHILE in course of the arguments, the learned counsel for the petitioner, also assailed, though rather weakly, the impugned order dated 2-11-1983 of the competent authority on the ground that no opportunity was afforded to the petitioner for production of oral evidence and the said authority decided the case exclusively on the basis of issues Nos. 2 and 5 framed in the case, on the basis of Government communications, holding the other issues framed in the case as redundant. We are, however, of the opinion, that this ground is devoid of any force, in so far as the basic point involved in the case was whether the "village Health Guide" held an office of Profit and it was possible for the said authority to decide this issue on the basis of the Government circulars and communications, namely, Annexures P-5, R-4 and R-5, which were also not challenged, before us. ( 12. ) THERE is no force in the petition. , The petition is, accordingly, dismissed with costs. The petitioner is directed to pay hearing-fees of rs. 200 to respondent No. 4. Rest of the costs shall be borne as incurred. The outstanding amount of security, if any, be refunded to the petitioner. Petition dismissed.