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, sub-division 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:- "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 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 paid any retainer fee. He further expressed the view that a Government Pleader is 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 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 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.;