Decided on December 20,1972

The Election Officer, Mahabubabad Respondents


Chinnappa Reddy, J. - (1.) - The 2nd respondent, who was holding the office of Assistant Government Pleader, was elected as a member of the Gram Panchayat of Mahabubabad. His election was impeached by the present petitioner, an unsuccessful candidate, on the ground that he was an officer of the State Government and was therefore incompetent to seek election to the Gram Panchayat. The Election Court upheld the election holding that there was no relationship of master and servant between the State Government and the 2nd respondents. The petitioner questions the order of the Election Court in this application for the issue of a Writ.
(2.) Sri Jeevan Reddy, learned Counsel for the petitioner, urged that the question was now concluded by the judgement of the Supreme Court in Mahadeo v. Shantibai, C.A. No. 1832 of 1967 . In that case the appellant had accepted appointment on the panel of lawyers to represent the Central and Western appointment on the panel of lawyers to represent the Central and Western Railway Administration in the Courts at Ujjain. His election to the Madhya Pradesh Legislative Assembly was questioned on the ground that he held 'an office of profit' under Government. The Supreme Court accepted the view which Lord Wright expressed in Mcmillan v. Guest, LR (1942) AC 561 , that the word 'office meant ' a position or place to which certain duties are attached especially one of a more or less public character'. Proceeding to consider whether the appellant held an 'office', the learned Judges held that, by the terms of his appointment, the appellant accepted certain obligations and was required to discharge certain duties. They said:- "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 so on his own initiative apply for an adjournment in proceeding 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 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."
(3.) The duties of an Assistant Government Pleader are prescribed by the rules made by the Government in G.O. Ms. No.1487 dated 31st August,1967 in purported exercise of the powers under the proviso to Article 309 of the Constitution. These duties may be compared with the duties of the Railway Pleader which the Supreme Court was considering. The Rules define an 'Assistant Government Pleader' as a person appointed by the District Collector to conduct cases in the Courts of Subordinate Judges and in the Courts of District Munsifs. A Government Pleader' is defined as including an Assistant Government Pleader. A 'Law officer' is defined as a law officer appointed to conduct cases on behalf of the Government and includes a Government Pleader and a Public Prosecutor. All law officers in the Districts are to be subject to the administrative control and supervision of the District Collectors of the respective Districts and subject to the overall control of the Government. Rule 7 prescribes that the District Collector shall make an appointment of an Assistant Government Pleader who is required to execute an agreement in the prescribed form. A note attached to rule 7 states that a person who is holding an office of a member of a municipal council or Zilla Parishad or Panchyat Samithi shall not be eligible for appointment so long as he holds that office. Rule 18 prescribes the duties of Government Pleaders who include Assistant Government Pleaders. A Government Pleader in the Muffassil is required to conduct all the miscellaneous legal business of the State, to receive processes as the agent of the Government in Civil Suits against the Government, to appear for the Government, unless instructed to the contrary in all civil cases, to appear, when so instructed in suits filed by or against public officers, to protect the interests of the Government in application to sue in forma pauperis, to apply for enquiry into lunacy of persons possessed or property, to appear, when directed by the District collector on behalf of the Audit Department in appeals preferred to Courts against audit surcharge and to conduct civil cases relating to Zilla Parishads and Panchayat Samithis when required to do so. Rule 21 obliges him not to give advice to a private party or to accept or hold briefs against the Government of any State or the Union Government Rule 23 prohibits him from seeking election to a municipal council, Zilla Parishad or Panchayat Samithi. Rule 24 requires him to resign his membership of a municipal council, Zilla Parishad or Panchyat Samithi, if he is already a member. Rule 25 prohibits him from participating in any political activity or movement. The Andhra Pradesh Civil Services (Conduct) Rules in so far as they relate to matters relating to communication of official documents, criticism of policy or action of the Government taking part in politics and elections are expressly made applicable to all the law officers. Rule 26 prohibits a law officer from accepting directorship in any company. Rule 30 deals with the fees payable to Government Pleaders and Assistant Government Pleaders and expressly stipulates that the fees payable to the Assistant Government Pleaders shall be as fixed by the District Collector at the conclusion of each case. The duties of the Assistant Government Pleader clearly show that he is a person who holds an office of profit under the Government.;

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