E.S.VENKATARAMIAH - (1.) THE question involved in this appeal is whether an Assistant Teacher employed in a Basic Primary School run by the Uttar Pradesh Board of Basic Education constituted under the Uttar Pradesh Basic Education Act, 1972 (U. P. Act No. 34 of 1972) (hereinafter referred to as 'the Act') is disqualified for being chosen as a member of the State Legislative Assembly under. Art. 191 (1) (a) of the Constitution.
(2.) THE appellant Biharilal Dobray, the respondent Roshan Lal Dobray and some others were nominated as candidates at the election to the Uttar Pradesh Legislative Assembly from 308 Kanauj (S. C.) Assembly constituency at the last general elections held in the year 1980. THE nomination paper of the respondent was, however, rejected by the Returning Officer by his order dated 5/05/1980 on the ground that he was holding an office of profit under the Government of the State of Uttar Pradesh and hence was disqualified under Article 191 (1) (a) of the Constitution for being chosen as a member of the Legislative Assembly. After such rejection the polling took place on 28/05/1980 and the appellant who secured the highest number of votes was declared elected on 1/06/1980. Aggrieved by the result of the election, the respondent who was not allowed to contest the election by reason of the rejection of his nomination paper filed an election petition before the High Court of Allahabad challenging the correctness of the order of rejection of his nomination paper and the result of the election which was held thereafter. He contended that since the post of an Assistant Teacher in a Basic Education School which he held was not an office of profit under the State Government the rejection of his nomination was improper and, therefore, the election of the appellant was liable to be declared as void as provided in Section 100 (1) (c) of the Representation of the People Act, 1951. THE High Court being of the opinion that the post held by the respondent was not an office of profit under the State Government held that the rejection of his nomination was improper and the election of the appellant was liable to be declared as void. Accordingly the election petition was allowed and the appellant's election was declared as void. Aggrieved by the decision of the High Court, the appellant has preferred this appeal under section 116-A of the Representation of the People Act, 1951. Although there was an alternative plea raised in the election petition that the respondent had ceased to hold the post of the Assistant Teacher in the Basic Education School on the relevant date by reason of his prior resignation, it was not pressed at the hearing of the election petition and the parties proceeded on the basis that the respondent was holding the said post at all material times. The only issue tried by the High Court was whether the said post was an office of profit under the State Government or not which as stated earlier, was answered in favour of the respondent. The plea of disqualification of the respondent for being chosen as a member of the Legislative Assembly was based on Article 191 of the Constitution, the material part of which reads thus : "191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State - (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder; ... ...."
(3.) THE object of enacting Article 191 (1) (a) is plain. A person who is elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the Government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of Government. Article 191 (1) (a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the Legislatures. THE term "office of profit under the Government" used in the above clause though indeterminate is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. For holding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. 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 any one 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. In Maulana Abdul Shakur v. Rikhab Chand, 1958 SCR 387: (AIR 1958 SC 52) the question before this Court was whether the Manager of the Durgah Khwaja Saheb School run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955 held an office of profit under the Central Government. The appellant in that case was elected to the Council of States (Rajya Sabha) by the Electoral College of Ajmer at the election held in 1957. The unsuccessful candidate, the respondent therein, filed an election petition questioning the validity of the election on the ground that the appellant therein was disqualified for being chosen as a member of Parliament as he was holding the office of the Manager of the school belonging to the Durgah Khwaja Saheb which was governed by the Durga Khwaja Saheb Act, 1955 and had been appointed as Manager by the committee of management appointed by the Central Government under Section 6 (2) of that Act. It was contended by him that because a member of the committee of management could be removed by the Central Government and because the committee could make bye-laws prescribing the duties and powers of the employees of the Durgah, the appellant therein was holding an office of profit under the Central Government and was, therefore, disqualified under Art. 102(1)(a) of the Constitution which was more or less similar to Art. 191(1)(a) of the Constitution. The Election Tribunal accepted the above plea and set aside the election. On appeal this Court reversed the decision of the Election Tribunal holding that the office of the Manager in question was not an office of profit under the Central Government. The Durgah in question was a religious institution and its affairs were regulated by the Durgah Khwaja Saheb Act, 1955. The said Act was passed for making provision for the proper administration of the Durgah and the endowment of the Durgah of Khwaja Moin-ud-din Chishti generally known as Durgah Khwaja Saheb of Ajmer. The property, endowment and funds of the said Durgah belonged to it and not to the Central Government and the employees who were working in the Durgah were employees of the Durgah. The Central Government only had the power to appoint the members of the committee. This Court observed in the course of its judgment at page 394 (of SCR) thus: "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four comers 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. But the appointment of the appellant does not come within this test." ;