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PETITIONER: BIHARILAL DOBRAY.

       Vs.

RESPONDENT: ROSHAN LAL DOBRAY.

DATE OF JUDGMENT23/11/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) FAZALALI, SYED MURTAZA

CITATION:  1984 AIR  385            1984 SCR  (1) 877  1984 SCC  (1) 551        1983 SCALE  (2)761  CITATOR INFO :  R          1985 SC 211  (19)  R          1988 SC1369  (15)  D          1992 SC1959  (12,14,18,21)

ACT:      Constitution of India 1950, Article 191(I)(a):      ’office  of   profit’-Holding  of-What   is-Tests   for determination.      Teacher in  a Basic  Primary School  run by  the  State Board of  Basic Education  constituted  under  a  statute  - Whether holder  of office  of profit’-  Whether disqualified under Article 191(1)(a).      Statutory. Corporations:      Incorporation of  a body  corporate by statute-Tests to determine whether it is independent of the Government.      Words & Phrases.      ’office   of   profit’-Meaning   of-Article   191(1)(a) Constitution of India.

HEADNOTE:      In the  election to  a seat  in a  Legislative Assembly Constituency the  nomination paper of the respondent who was an Assistant  Teacher in  a Basic  Primary School run by the State Board  of Education  was  rejected  by  the  Returning officer on  the ground  that he  was holding  an  office  of profit under  the State  Government’, and  he was  therefore disqualified under  Article 191(1)(a)  of the  Constitution, for being chosen as a member of the Legislative Assembly. In the election tho appellant was declared elected.      In his Election Petition, the respondent contended that since the  post of  Assistant Teacher  In  a  Basic  Primary School which  he was  holding was  not an  ’office of profit under the State Government’, the rejection of his nomination was improper  and therefore  the election  was liable  to be declared as  void.  The  High  Court  allowed  the  Election Petition holding  that the  post held  by the respondent was not an  office of the profit under the State Government’. It declared the  election as  void by  reason of  the  improper rejection of the respondent’s nomination paper.      Allowing the appeal to this Court, 878 ^

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    HELD: 1 The respondent was holding an ’office of profit under the  Slate Government’  and his nomination was rightly rejected by the officer. [901 A]      In the  instant case,  the respondent  was holding  the post of  Assistant Teacher  in a Basic Primary School on the date of  his nomination  as a  candidate at the election and was in  receipt of  the salary  attached to  that post.  The Institution wherein  he  was  employed  was  being  run  and managed  by   the  Zila  Parishad  and  the  respondent  was therefore  an   employee  of   the  Zila   Parishad  on  the promulgation of  the U.P. Ordinance No. 14 of 1972 which was replaced by  the U.P. Basic Education Act, 1972 he became an employee of  the Board  under section  9(1) of the Act which provided for  the transfer  of employees  of local bodies to the Board.  The State Government under section 19 framed the Uttar Pradesh Basic Educational Staff Rules, 1973 which were applicable to all the employees of the Board. The appointing authority in  respect of Assistant Teachers was the District Basic Education officer, who was an officer appointed by the State Government.  The Schedule  to the Rules prescribed the appointing authorities  and  the  appellate  authorities  in respect of  different posts in the Board. The Rules provided for the  procedure to be followed in disciplinary proceeding and the  punishment that may be imposed when an employee Was found guilty  of any  act of  misconduct. The procedure laid down in  the Civil  Services  (Classification,  Control  and Appeal) Rules  as applicable  to the  servants of  the Uttar Pradesh Government  was required  to be  followed as  far as possible. The  funds of the Board came from the contribution made by the State Government. The School in question was not a privately  sponsored institution  which was  recognised by the Board. The final control of the school was vested in the Government and  such control was exercised by it through the Director or  Deputy Director  of Basic  Education and  other District  Basic   Education  officers   appointed   by   the Government. The  Board for  all  practical  purposes  was  a department  of   the  Government   and  its   autonomy   was negligible. The  respondent therefore  held  an  ’office  of profit under. the State Government’.[888 E, 893 E-897 B]      2. The  object of  enacting Article 191(1)(a) is that a person 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  persons  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 the Government. Article  191(1)(a) is  intended to eliminate the possibility of  a conflict  between duty  and interest of an elected representative  and to  maintain the  purity of  the legislature. [881 E]      3. The  term ’office  of profit  under the  Government’ occurring in  Article 191(1)(a)  though indeterminate  is an expression of  wider import  than as  ’post held  under  the Government’ dealt with in Part XlV of the Constitution, [881 F]      4.  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 or master and servant  between them.  An office of profit involves two elements, namely  that there  should been office and that it should carry some remuneration. [881 G] 879      5. 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

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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. [881H-882 A]      Maulana Abdul  Shakur v.  Rikhab Chand  &  Anr.  [1958] S.C.R. 387;  M. Ramappa  v. Sangappa  & Ors.  [1959]  S.C.R. 1167; Gurugobinda  Basu v.  Sankari  Prasad  Ghosal  &  Ors. [1964] 4  S.C.R 311;  D.R. Gurushantappa  v.  Abdul  Khuddus Anwar &  Ors. [1969]  3 S.C.R.  425; Divya Prakash v. Kultar Chand Rana  & Anr.  [1975] 2  S.C.R. 749; State of Gujarat & Anr. v.  Raman Lal Keshav Lal Soni & Ors [1983] 2 S.C.C. 33; Kona Prabhakara  Rao v.  M. Seshrgiri  Rao & Anr A.I.R. 1981 S.C. 658 referred to.      6. The  incorporation of  a body  corporate may suggest that the  statute intended  it to be a statutory corporation independent of  the Government.  But it is not conclusive on the question whether it is really so independent. Some times the form  may be  that of  body corporate independent of the Government but  in substance it may be just the alter ego of the Government itself: The true test depends upon the degree of control  the Government  has over  it the  degree of  its dependence on  Government for  its financial  needs and  the functional aspect and so on. [898 H-899 B]      7. Article 45 of the Constitution requires the State to endeavour to  provide for  free and compulsory education for all children  until they  complete the  age fourteen  years. Primary education  in a  State, unlike  higher education, is the special responsibility of its Government. [899 C]      In the  instant case, the Uttar Pradesh Basic Education Act, 1972  was  passed  with  the  object  of  enabling  the Government to  take over  all basic schools which were being run by  the local bodies in the State and to manage them and to administer  all matters  pertaining to  the entire  basic education in  tho State, through the Board consisting mostly of officers appointed by the Government. [899 F-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1101 of 1982.      Appeal by  Special leave  from the  Judgment and  order dated the  3rd March,  1982 of  the Allahabad  High Court in Election Petition No. 21 of 1980.      P. R. Mridul, J. B. Dadachanji, R. Narain, O. C. Mathur and Mrs. A. K. Verma for the Appellant.      J. P. Goyal, V. K. Verma and Rajesh for the Respondent.      The Judgment of the Court was delivered by 880      VENRATARAMIAH,J. 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 Article 191 (1)(a) of the Constitution.      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

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by his  order dated  May S,  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 s 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  May 28,  1980 and  the appellant who secured the  highest number of votes was declared elected on June 1,  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 c 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  . 1  -  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 registration, it was not pressed at the hearing 881 of the  election petition  and the  parties proceeded on the basis that  the respondent  was holding the said post at all materials 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 an 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;.. "      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

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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   an  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 882 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 & Anr.(1) 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 Durgah 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  Article 102(1)(a)  of  the  Constitution which was  more or  less similar to Article 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 Khwaja Moin-ud- din Chishti generally 883 known  as  Durgah  Khwaja  Saheb  of  Ajmer.  The  property, endowment and  funds of  the said  Durgah belonged to it and

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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 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  corners  of  the  Act.  Merely  because  the      Committee  or   the  members   of  the   Committee  are      removeable 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."      In M. Ramappa v. Sangappa & Ors (1) the question before this Court was whether Patels and Shanbhogs who were holders of hereditary village offices governed by the Mysore Village Offices Act,  1908 were disqualified under Article 191(1)(a) of the Constitution for being chosen as members of the State Legislative Assembly. The Court answered the question in the affirmative and observed at pages 1176-77 thus:           "We then  come to  this that  Patels and Shanbhogs      are officers, who are appointed to their offices by the 884      Government though  it may be that the Government has no      option in  certain cases  but to appoint an heir of the      last holder;  that they  hold their office by reason of      such appointment only; that they work under the control      and  supervision   of  the   Government;   that   their      remuneration  is   paid  by   the  Government   out  of      Government  funds   and  assets;   and  that  they  are      removable by  the Government,  and that there is no one      else under  whom their offices could be held. All these      clearly  establish   that  Patels  and  Shanbhogs  hold      offices of profit under the Government."      The next  case to  be noticed  is Gurugobinda  Basu  v. Sankari Prasad  Ghosal &  Ors.(1) in which this Court had to decide whether  the appellant  therein who  was a  chartered accountant and  a partner of a firm of auditors appointed as auditors of  two Government  companies was holding an office of profit  under the  Union Government and the Government of West Bengal  and was,  therefore, disqualified under Article 102(1)(a) of  the Constitution from being chosen as a member of the  Lok Sabha. The appellant therein contended that on a true          construction  of  Article.  102(1)(a)  of  the Constitution he  could not  be said  to hold  an  office  of profit under the Government of India which held the entirety of shares  in one  company and the Government of West Bengal which held  the entirety  of shares  of  the  other  company because the  various tests viz. the Government had the power to appoint,  the Government  had the  right to  remove,  the Government  paid   the  remuneration   and  the   Government

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controlled the  functions and  duties of  the holder  of the office did  not co-exist and that the fulfillment of some of the said  tests alone  did not make the office and office of profit  under   the  Government.   He  contended   that  his remuneration was  paid by  the  companies  and  not  by  the Governments; he  performed the  functions for  the companies and that  his duties  were controlled by the Comptroller and auditor General  who was different from the Government. This Court rejected  the plea  of the appellant holding that what had to be considered was the substance of the matter and not the form. It observed:           "In the  case before  us the  appointment  of  the      appellant as  also  his  continuance  in  office  rests      solely with  the Government  of India in respect of the      two  companies.  His  remuneration  is  also  fixed  by      Government. We assume 885      for the  purpose of  this appeal that the two companies      are statutory  bodies distinct  from Government  but we      must remember at the same time that they are Government      companies within  the meaning  of the  Indian Companies      Act, 1956  and 100%  of the  shares  are  held  by  the      Government.  We   must  also   remember  that   in  the      performance  of   his  functions   the   appellant   is      controlled by  the Comptroller  and Auditor-General who      himself is  undoubtedly holder  of an  office of profit      under the Government, though there are safeguard in the      Constitution  as   to  his   tenure   of   office   and      removability  therefrom  ...As  we  have  said  earlier      whether stress  will be laid on one factor or the other      will depend on the facts of each case."      Ultimately the  Court held  that the  appellant held an office  of   profit  under   the  two  Governments  and  was disqualified under  Article 102(1)(a)  of the  Constitution. This was  a decision by a Bench of Five Judges. But in D. R. Gurushaniappa v.  Abdul Khuddus  Anwar &  Ors.(1) a Bench of three Judges  of this  Court distinguished  the decision  in Gurugobinda Basu’s case (supra) and held that an employee of a Government  company was  not holding  an office  of profit under the Government. The following passage in that judgment appearing at page 433 brings forth the view expressed by the Court:           "Mr. Gupta,  from these  views  expressed  by  the      Courts, sought  to draw  the inference that the primary      consideration from  determining whether  a person holds      an office of profit under a Government is the amount of      control  which   the  Government  exercises  over  that      officer.  In   the  present  case,  he  relied  on  the      circumstances that  all the  shares of  the Company are      not  only  owned  by  the  Mysore  Government  but  the      Directors  of   the  Company   are  appointed   by  the      Government-a Minister was one of the first Directors of      the Company;  the appointment  of the  Secretary to the      Company is  subject to approval of the Government; and,      even in  the general working of the Company, Government      has the  power to  issue directions  to  the  Directors      which must  be carried  out by  them. It was urged that      respondent No  1 was  directly under the control of the      Managing Director  who  is  himself  appointed  by  the      Government and may even be a ’lent officer’ 886      holding  a   permanent  post   under  the   Government.      Respondent No. 1 thus, must be held to be working under      the control  of the  Government exercised  through  the      Managing Director.

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         We are  unable to  accept the proposition that the      mere fact  that the  Government had  control  over  the      Managing Director  and other  Directors as  well as the      power of  issuing directions relating to the working of      the Company  can  lead  to  the  inference  that  every      employee of  the Company  is under  the control  of the      Government. The  power of  appointment and dismissal of      respondent No. 1 vested in the Managing Director of the      Company and  not in the Government. Even the directions      for the  day-to-day work  to be performed by respondent      No. 1  could only be issued by the Managing Director of      the Company  and not  by 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."      Divya Prakash  v. Kultar  Chand Rana  &  Anr.(1)  is  a decision of  this Court  which is  very close to the present case. There  the Court had to consider whether the post of a Chairman of  the Board  of School  Education of the State of Himachal Pradesh  appointed under section 18 of the Himachal Pradesh Board of School Education Act, 1968 was an office of profit under  the State  Government. The Court while holding that  the   said  office  was  an  office  under  the  State Government held  that  since  the  candidate  concerned  was appointed in  an honorary  capacity without any remuneration ever though  the  post  carried  remuneration,  he  was  not holding an  office of  profit and  thus was not disqualified under Article 191(1)(a) of the Constitution.      Now we  come to the latest decision of this Court which is very  relevant of purposes of this case and that is State of Gujarat  & Anr.  v. Raman  Lal Keshav  Lal Soni  & Ors in which the  question was whether the employees transferred to the Gujarat  Panchayat Service  and working  under the local authorities formed under the Gujarat 887 Panchayats Act, 1961 were State Government employees or not. The said local authorities were corporate bodies constituted under  the   statute.  After   considering  several  earlier decisions cited  before it the Court observed at pages 50-51 thus:           "We may  now revert  to the  question whether  the      members of the Gujarat Panchayat Service are government      servants. First,  we see that the duties which they are      required  to  perform  are  in  connection  with  those      affairs  of  the  State  which  are  entrusted  to  the      Panchayat Institutions  by the  statute  itself  or  by      transfer by the Government under the statute. Next, the      expenditure towards  the pay  and allowance of officers      and servants  of the panchayat service, serving for the      time being under any panchayat has, no doubt, to be met      by the  panchayat from  its own  fund, but,  as we have      seen,  the   fund  consists   substantially   of   some      contributed or  lent by the State Government and of the      proceeds of  any tax  or fee  imposed by or assigned to      the panchayat under the Act. The imposition of a tax or      a  fee  in  the  nature  of  a  tax,  as  we  know,  is      essentially a  function of the State. So the salary and      allowances  of   the  servants   and  officers  of  the      panchayat service are paid out of funds contributed, or      lent by the Government or raised by the discharge of an      essential government  function. Secretaries of Gram and      Nagar Panchayats are to be appointed in accordance with      the Rules  made by  the Government,  while  the  Taluqa

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    Development officer  is to  be Secretary  of the Taluqa      Panchayat and the District Development Officer is to be      the Secretary  of the  District Panchayat.  Taluqa  and      District Development  Officers are, of course, officers      of State  service. Gram  and Nagar  Panchayats may have      other servants, as may be determined under Section 203,      but they  have to be appointed by such authority as may      prescribed by  the Government  and their  conditions of      service shall  be such  as may  be  prescribed  by  the      Government. Section  203  as  already  noticed  by  us,      contemplates the  constitution of  a single centralised      panchayat service,  the classes,  cadres and  posts  of      which have to be determined by the Government from time      to  time.   The  mode   of  recruitment,   whether   by      examination or  other-wise, the  conditions of service,      the power  in respect  of appointments,  transfers  and      promotions of officers and 888      servants and  disciplinary action  which may  be  taken      against them,  are to be regulated by the Rules made by      the Government.  The Rules  so  made  are  particularly      required to  contain a  provision entitling servants so      such cardres  in the  panchayat service to promotion to      such cadres  in the  State service as may be prescribed      vide Section 203(4)(a). This is an important provision.      There cannot  be any  question of  a rule providing for      promotion from  the  panchayat  service  to  the  State      service unless  the panchayat service is also a service      under the  State. Again  Section 203(5)  requires  that      rules  may  provide  for  inter-district  transfers  of      servants belonging  to the  panchayat service  and  the      circumstances in  which and  the conditions  subject to      which such  transfers may be made. This provision along      with the  other provisions of Section 203 which provide      for the promotion and transfer of servants belonging to      the  district,  taluqa  and  local  cadres  within  the      district, taluqa  and gram  or nagar  clearly show that      the servants  are not  the servants  of the  individual      panchayats but belong to a centralised service."      In the  light of  the  above  pronouncements  we  shall proceed to  examine this  case. There is no dispute that the respondent was holding the post of an Assistant Teacher in a Basic School on the date of his nomination as a candidate at the election  in question  and was  in receipt of the salary attached to  that post.  The only question which needs to be examined is  whether the  post he  was holding was one under the  State   Government  or   not.  This  leads  us  to  the consideration of the relevant provisions of the Act i.e. the Uttar Pradesh  Basic Education  Act, 1972.  The Statement of Objects and  Reasons attached  to the  Bill which  later  on became the Act reads thus:                "Statement of  objects  and  Reasons-(1)  The           responsibility for  primary education  has so  far           rested with  the Zila Parishads in rural areas and           with Municipal  Boards and  Mahapalikas  in  urban           areas. The  administration of  education  at  this           level by  the local  bodies was  not satisfactory,           and it  was deteriorating  day by  day. There  was           public demand for the Government to take immediate           steps for  improving the  education at this level.           Hence for  reorganizing, reforming  and  expending           elementary education it 889           became necessary  for the State Government to take           over its control into its own hands.

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    (2)  Repeated demands  had been made by all sections of           the Legislature  also for  the  take-over  of  the           control  of  elementary  education  by  the  State           Government from  local bodies. Echoing this public           demand, the Governor had    also in his address to           both the  Houses of  the Legislature  on March 20,           1972, said that in order to strengthen the primary           and junior  high schools  and  to  increase  their           usefulness Government  was going  to  assume  full           responsibility  for its control and management.      (3)  With a view to taking effective steps for securing           the object  of Article 45 of the Constitution, and           fulfilling the  assurances given in the Governor’s           address and  respecting the  popular demand it was           necessary to  entrust the  conduct and  control of           elementary education to a virile institution which           may be  expected to inject new life into it and to           make it progressive. It was, therefore, decided by           the Government  to transfer the control of primary           education from  the  local  bodies  to  the  Uttar           Pradesh Board  of Basic Education with effect from           the educational session 1972-73.      (4)  The educational  session  had  commenced  and  the           Legislative Council  was not  in  session  and  if           immediate action  had not  been taken,  the matter           would  have   had  to   be  postponed   till   the           educational session  1973-74 with  the result that           the desired  object would  not have been achieved.           Therefore, in order to implement the said decision           immediately, the  Uttar  Pradesh  Basic  Education           Ordinance, 1972, was promulgated.      (5)  The Uttar  Pradesh Basic  Education Bill, 1972, is           being introduced to replace the said Ordinance."      A reading of the above Statement of objects and Reasons shows that  the Act  was enacted for the purpose of enabling the State  Government to  take over  the  responsibility  of primary education  from the  local authorities  such as Zila Parishads, Municipal Boards and 890 Mahapalikas. For  this purpose  the  Act  provides  for  the constitution of  a Board to run the school imparting primary education instead  of keeping them as a part of a Department of  Education   of  the   State  Government.  The  Board  is established by  the State  Government under section 3 of the Act with  the Director,  ex officio,  as its  Chairman.  The other members  of the  Board are two persons to be nominated by the  State Government from amongst Adhyakshas, if any, of Zila Parishads;  one person  to be  nominated by  the  State Government from  amongst the  Nagar Pramukhs, if any, of the Mahapalikas;  one  person  to  be  nominated  by  the  State Government from  amongst the  Presidents,  if  any,  of  the Municipal Boards;  the Secretary  to the State Government in the Finance  Department, ex  officio; the  Principal of  the State Institute  of Education,  ex officio; the Secretary of the  Board   of  High  School  and  Intermediate  Education, Allahabad, ex  officio; the  President of  the Uttar Pradesh Prathmik Shikshak Sangh, ex officio; two educationists to be nominated by  the State  Government and an officer not below the rank  of Deputy Director of Education to be nominated by the State  Government who  shall be  the Member Secretary of the Board. The functions of the Board are set out in section 4 of the Act thus:                "4. Function  of the  Board -  (1) Subject to           the  provisions  of  this  Act  it  shall  be  the           function of the Board to organise, co-ordinate and

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         control  the  imparting  of  basic  education  and           teachers’ training  therefore  in  the  State,  to           raise its  standard and  to correlate  it with the           system of education as a whole in the State.      (2)  Without  prejudice   to  the   generality  of  the           provisions of  sub-section (1) the Board shall, in           particular, have power-.           (a)  to prescribe  the courses  of instruction and                books  for   basic  education  and  teachers’                training therefor;.           (b)  to conduct  the junior  high school and basic                training  certificate  examination  and  such                other examinations  as the  State  Government                may from  time to  time by general or special                order assign  to it  and to  grant diploma or                certificates to candidates successful at such                examination; 891           (c)  to lay  down by  general or special orders in                that   behalf,    norms   relating   to   the                establishment or  institutions  by  the  Zila                Basic Shiksha  Samitis or Nagar Basic Shiksha                Samitis and  to Superintend  the said Samitis                in   respect   of   the   administration   of                institutions for  imparting  instruction  and                preparing   candidates   for   admission   to                examinations conducted by the Board;           (cc) to take  over the  management  of  all  basic                schools  which   before  the  appointed  day,                belonged to any local body;           (d)  to  exercise  supervision  and  control  over                basic schools, normal schools, basic training                certificate units  and the State Institute of                Education;           (e)  to   accord   approval   (with   or   without                modification) to  the schemes prepared by the                Zila  Basic   Shiksha  Samiti  or  the  Nagar                Shiksha Samiti  for the development expansion                and improvement  of  and  research  in  basic                education in  any district or in the State or                in any part thereof;           (f)  to acquire, hold and dispose of any property,                whether   movable   or   immovable   and   in                particular, to accept gift of any building or                equipment  of  any  basic  school  or  normal                school on such conditions as it thinks fit;           (g)  to receive grants, subventions and loans from                the State Government;            (g-1) to have superintendence over the Zila Basic                Shiksha Samitis  and the  Nagar Basic Shiksha                Samitis in the performance of their functions                under this  Act and subject to the control of                the State  Government, to issue directions to                the Samitis  which shall  be binding  on such                Samitis;            (g-2) to  constitute sub-committees (from amongst                the members of the Zila Basic Shiksha Samitis                and 892                Nagar  Basic   Shiksha  Samitis)   for   such                purposes as the Board thinks fit;           (h)  to take all such steps as may be necessary or                convenient for,  or may  be incidental to the                exercise of  the power,  or the  discharge of                any function  or duty conferred or imposed on

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              it by this Act;           Provided that the courses of instruction and books      prescribed  and   institutions  recognised  before  the      commencement  of   this  Act  shall  be  deemed  to  be      prescribed or recognised by the Board under this Act,           For  the   purposes  of   exercising   powers   of      management  supervision  and  control  over  the  basic      schools under  clause (cc) or clause (d) of sub-section      (2), which before the appointed day belonged to a local      body the  powers and  functions  of  a  local  body  in      respect of  such schools shall stand transferred to the      Board."      Section 6  of the  Act which  deals with  officers  and other employees of the Board reads thus:                "6 Officers and other employees of the Board-           (1) For the purposes of enabling it efficiently to           discharge its  functions under  this Act the Board           may appoint  such number  of office  teachers  and           other employees  as  it  may,  with  the  previous           approval of the State Government, think fit.      (2)  XX   XX   XX   XX   XX      (3)  XX   XX   XX   XX   XX" (Emphasis added)      Section 7  of the  Act states that the Board shall have its own  fund, and all receipts of the Board are required to be credited  into it  and all payments are to be made out of it. The  Director, the  Deputy Director of Education (Member Secretary) and  District Basic  Education Officers  who  are incharge of  the administration  of the  Board are  officers appointed by  the State  Government. Section  13 of  the Act which vests the control in the hands of the State Government reads thus : 893                "13. Control by the State Government- (1) 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           this Act.           (2) If  in, or in connection with, the exercise of           any of  its powers  and discharge  of any  of  the           functions by the Board under this Act, any dispute           arises between the Board and the State Government,           or between  the Board  and  any  local  body,  the           decision of  the State  Government on such dispute           shall be  final and  binding on  the Board  or the           local body, as the case may be.           (3) The  Board or  the local body shall furnish to           the State  Government such  reports,  returns  and           other information,  as the  State  Government  may           from time to time require for the purposes of this           Act."      The respondent  was originally  working as an Assistant teacher in  the  Basic  Primary  School,  Sengarmau,  Tahsil Kanauj, District Farrukhabad. That institution was being run and managed  by the  Zila Parishad  of Farrukhabad  and  the respondent was  therefore  an  employee  of  the  said  Zila Parishad. On  the promulgation  of the U.P. Ordinance No. 14 of 1972 which was replaced by the Act, he became an employee of the  Board under  section 9(1)  of the Act which provided for the  transfer of  employees of  the local  bodies to the Board. Section 9(1) of the Act reads thus :                "9. Transfer of employees-(1) On and from the           appointed day  every teacher,  officer  and  other           employee serving under a local body exclusively in           connection  with   basic  schools  (including  any           supervisory  or   inspecting  staff)   immediately

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         before the  said day  shall be  transferred to and           become a teacher, officer or other employee of the           Board and shall hold office by the same tenure, at           the same  remuneration and  upon  the  same  other           terms and  conditions of  service as he would have           held  the   same  if   the  Board   had  hot  been           constituted and shall continue to do so unless and           until such  tenure, remuneration  and other  terms           and conditions  are altered  by the  rules made by           the State Government in that behalf: 894                Provided that  any service rendered under the           local body  by any  such teacher, officer or other           employee before  the appointed day shall be deemed           to be service rendered under the Board:                Provided further  that Board  may employ  any           such teacher,  officer or  other employee  in  the           discharge of  such functions  under this Act as it           may think  proper and  every such teacher, officer           or other  employee shall discharge those functions           accordingly."      In exercise  of its  powers under section 19 of the Act the State  Government has  framed the  Uttar  Pradesh  Basic Educational Staff  Rules, 1973  which are  applicable to all the employees  of the  Board. The  appointing  authority  in respect  of   Assistant  Teachers   is  the  District  Basic Education Officer  who is  an officer appointed by the State Government. The  Schedule given  under the  said Rules which prescribes the  appointing  authorities  and  the  appellate authorities in  respect of  the different posts in the Board is as follows:                          "SCHEDULE" ------------------------------------------------------------ Sl.  Name of the      Appointing         Appellate Authority No.    post           Authority ------------------------------------------------------------ 1       2                 3                      4 ------------------------------------------------------------ 1.   Education      Director of Education  State Government      Superintendent (Basic)/Chairman of      (Male and      the Board.      Female). 2.   Assistant      Deputy Director of     Chairman of the      Attendance     Education              Board      officer        (Elementary) Member      (Male and      Secretary of the      Female)        Board. 3.   Head Clerk     Ditto                   Ditto 4.   Accountant     Ditto                   Ditto 895 ------------------------------------------------------------  Sl. Name of the    Appointing           Appellate Authority  No.   post         Authority ------------------------------------------------------------  1      2               3                          4 ------------------------------------------------------------ 5.   Store-keeper   District Basic         Member Secretary                     Education Officer      of the board 6.   Other Clerks   Ditto                  Ditto                     In Rural Areas 7.   Class IV       Deputy Inspectors      District basic      employees      of schools, Deputy     Education      offices and    inspectresses of       Officers.      Institution.   Schools.                     In Urban Area          District Basic

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                   Education Super-       Education                     intendent/Lady Educa-  Officers                     tion Superintendent. 8.   Headmasters/   District Basic Educa-  Chairman of the      Headmis-       tion Officer/Addi-     Board      tresses in     tional District Basic      Senior Basic   Education Officer      Schools        (Women). 9.   Assistant      Ditto                  Member-Secretary      Teachers/                             of the Board      Mistresses      of Senior      Basic Schools.  10. Headmasters/   Ditto                  Ditto      Headmistresses      of junior Basic      Schools. 896 ------------------------------------------------------------ Sl.  Name of the         Appointing      Appellate Authority No.    post              Authority ------------------------------------------------------------ 1      2                     3                       4 ------------------------------------------------------------ 11.  Assistant           District Basic     Member-Secretary      Teachers/           Education          of the Board.      Mistresses          Officer/Additional      of Junior           District Basic      Basic Schools.      Education Officer                          (Women) 12.  Headmistresses      District Basic     Member-secretary      of Nursery          Education Officer  of the Board.      Schools.            District Basic                          Education Officer                          (Women) 13. Assistant            Ditto                        Ditto     Mistresses     of Nursery     Schools.      It is  seen that all officers mentioned in column 3 and column  4  of  the  above  Schedule  are  either  the  State Government or  officers appointed  by the  State Government. The  said  officers  are  all  officers  of  the  Government Department who  hold the posts in the Board ex officio, that is, by  virtue of  the corresponding post held by them under the Government.  The Rules  provide for  the procedure to be followed in  disciplinary proceedings  and  the  punishments that may  be imposed when an employee is found guilty of any act of misconduct. Rules 5 of the said Rules provides for an appeal  against   any  order   imposing  punishment  to  the prescribed authority.  The  procedure  laid  down  in  Civil Services  (Classification,  Control  and  Appeal)  Rules  as applicable to  servants of  the Uttar  Pradesh Government is required to  be followed  as far  as possible in the case of the employees  of the U.P. Board of the Basic Education. The funds of the Board mainly come from the contribution made by the State  Government. The  school  in  question  is  not  a privately sponsored  institution which  is recognised by the Board. The  Statement of Objects and reasons attached to the Bill which  was passed  as the Act clearly says that the Act was passed  in order  to enable the State Government to take over 897 the administration  of schools  imparting primary  education which were  being run  by the local authorities into its own

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hands. Even  though the representatives of local authorities are associated  in the  administration of such schools after the Act  was passed,  the final  control of  the schools  is vested in the Government and such control is exercised by it through the  Director and Deputy Director of Basic Education (Member-Secretary)  and   other  District   Basic  Education Officers appointed by the Government.      The High  Court principally  relied on the decisions of this  Court   in  Maulana   Abdul   Shakur’s   (supra)   and D.R.Gurushantappa’s case  (supra) in reaching the conclusion that the  respondent was  not holding  an office  of  profit under the  Government.  In  the  first  case,  as  mentioned earlier, the  employer was  the Durgah which was a religious institution whose  affairs were  only regulated by an Act of Parliament and  the remuneration  was being  paid out of the funds of  the Durgah.  In the  second case  the candidate in question was  an employee  of a Government company which had been registered  under the  Companies Act  but the powers of management were  vested in  the  Managing  Director  of  the Company functioning  in  accordance  with  the  Articles  of Association of the Company and the control of the Government was very  indirect. In  Kona Prabhakara  Rao v. M. Seshagiri Rao &  Anr. in  which the judgment was rendered by one of us (Fazal  Ali,   J.)  the   candidate  whose   nomination  was questioned was  a part-time Chairman of a company called the Travel and  Tourism  Corporation  (Andhra  Pradesh)  Private Limited who  had been  appointed by the Andhra Pradesh State Road  Transport   Corporation  which   was   a   Corporation established under the road Transport Corporations Act, 1950. In this  case also  the control  of the  Government was  too remote.      We are of the view that the present case is governed by the principles  laid down  by the  judgment of this Court in Raman Lal  Keshav Lal  Soni’s case (supra). The functions of the employees  of the  Board  are  in  connection  with  the affairs of the State. In expenditure of the Board is largely met out of the moneys contributed by the State Government to its funds.  The teachers  and  other  employees  are  to  be appointed in  accordance with  the rules by officers who are themselves appointed  by the  Government.  The  disciplinary proceedings in  respect of  the employees are subject to the final decision of 898 the State  Government or  other Government  officers, as the case may be. This Court, as mentioned earlier, held in Divya Prakash’s case  (supra) that  the officers  of the  Board of School Education  constituted  under  the  Himachal  Pradesh Board of  School  Education  Act,  1968  which  was  a  body corporate having perpetual succession and a common seal held their  offices   under  the   Government  although  in  that particular case  it was  held that  the office  was  not  an office of  profit as  the person concerned was working in an honorary capacity. We have gone through the Himachal Pradesh Board of  School Education  Act, 1968  and we  find that the provisions of  that Act are almost similar in pattern to the provisions of  the Act  with which  we are concerned in this case.      On behalf  of the  respondent it  is however urged that the Board  of Basic  Education being a body corporate having perpetual succession  and a common seal its employees cannot be considered  as holding  any office  of profit  under  the Government and  in support  of this  contention reliance has been placed  on the  decision of the High Court of Allahabad in Radha  Krishna Visharad v. Civil Judge, Aligarh & Ors. In that case the Court had to construe the provisions of clause

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(c) of  section 13  of the  U.P. Intermediate Education Act, 1921 which provided that a person was disqualified for being chosen a  member of  Kshetra Samiti  or coopted  as a member thereof or for being elected as a Pramukh under section 7 of that Act  if he  held any  office of  profit in  the gift or disposal of  Government or  any local  authority including a Gaon Sabha.  The ground  on which  the Returning officer had rejected the nomination paper of the petitioner in that case for election to the office of the Pramukh of Kshettra Samiti was that  inasmuch as  he was  in the service of the Jawahar Inter College  which was  an institution receiving grant-in- aid from  the Government, he was holding an office of profit in the  gift or  disposal of  the Government. The Court held that the  rejection  was  bad  because  all  that  the  U.P. Intermediate Education  Act, 1921  intended  to  do  was  to regulate the  working  of  recognised  institutions  and  to provide for  High School  and Intermediate  Examinations and that the  said Act  did not  contemplate that the Government should  become   the  owners   of  the   private  recognised institutions. This  decision  is  not,  therefore,  of  much assistance to  the respondent. Even though the incorporation of a body corporate may suggest that the statute intended it to be a 899 statutory corporation  independent of  the Government  it is not conclusive  on the  question whether  it  is  really  so independent. Sometimes  the form  may  be  that  of  a  body corporate independent  of the Government but in substance it may be just the alter ego of the Government itself. The true test of  determination of the said question depends upon the degree of  control the Government has over it, the extent of control exercised  by the several other bodies or committees over it  and their composition, the degree of its dependence on Government  for its  financial needs  and the  functional aspect,  namely,   whether  the   body  is  discharging  any important Governmental  function or just some function which is merely  optional from the point of view of Government. In this connection  it is necessary to recall the provisions of Article 45  of the  Constitution which  require the State to endeavour to  provide for  free and compulsory education for all children  until they complete the age of fourteen years. Primary education  in a State unlike the higher education is the special responsibility of its Government and as observed earlier the  Act was  passed with the object of enabling the Government to  take over  all basic schools which were being run by  the local  bodies in the State and to manage them as provided specifically in section 4(2) (cc) of the Act and to administer  all  masters  pertaining  to  the  entire  basic education in  the State  through the Board consisting mostly of officers  appointed by  the Government.  The  rules  made regarding the  disciplinary proceedings  in respect  of  the teachers in  the basic  schools  managed  by  the  Board  as observed  earlier   vest  the   final  voice  in  the  State Government or  its Officers  and almost the entire financial needs of  the Board are met by the Government. The Board for all practical purposes is a department of the Government and its autonomy is negligible. Sub-section (2) of section 13 of the Act  which emphasis  is placed by the respondent is also not  of  much  significance.  It  no  doubt  recognises  the possibility of  a dispute  arising between the Board and the Government regarding  the functions  of the  Board but  that very sub-section  provides that  if any  such dispute arises the decision  of the  State Government shall be final and it shall be binding on the Board.      It is  next urged  on behalf of the respondent that the

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difference between the language of Article 58(2) and Article 66(4) of  the Constitution  which deal  with the question of disqualification of a person who seeks election as President or Vice-President  respectively and  the language of Article 191(1)(a) of the Constitution should be given due importance in deciding this case. For purposes of convenience, 900 Article 58(2)  and Article 66(4) of the Constitution are set out below. They read thus:                "58.(2) 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 under  any  local  or           other authority  subject to  the control of any of           the said Governments.                Explanation........"                "66.(4) A  person shall  not be  eligible for           election as  Vice-President if he holds any office           of profit  under the  Government of  India or  the           Government of  any State  or under  any  local  or           other authority  subject to  the control of any of           the said Governments.                Explanation..................."      The contention  of the  respondent is  that  the  Board being an  authority subject to the control of the Government cannot be  considered as  the Government itself as otherwise Article 58(4)  and Article  66(4) of  the Constitution which refer to  the Government  as well as other authority subject to the control of any Government would have to be treated as suffering from  the vice of redundancy. It is further argued that when  the Constitution  itself has  made a  distinction between the  Government and  other authority  subject to the control of  the Government,  in the absence of any reference to any  other  authority  subject  to  the  control  of  the Government in  Article 191(1)(a)  of the  Constitution,  the holding of an office of profit under the Board which is only an authority  under the  control of the Government would not amount to  a disqualification.  The argument is indeed quite attractive. But  it is  difficult to accept it having regard to the  provisions of the Act and the Rules. We have already shown that  the Board  is not  an authority  which is  truly independent of the Government and that every employee of the Board is  in fact  holding his  office under the Government. This is not even a case of attempting to pierce the veil and trying to  find out  the  true  nature  of  something  after uncovering it  but a  case where  its true  nature i.e.  the subordination  of   the  Board  and  its  employees  to  the Government is  writ large  on the  face of  the Act  and the Rules made thereunder.      Having considered  all aspects  of the  question in the light of  the high purposes underlying. Article 191(1)(a) of the Constitution, we 901 are of the view that the respondent was holding an office of profit under  the State  Government and  his nomination  was rightly rejected  by the  Returning Officer. The judgment of the High Court is, therefore, liable to be reversed.      In the  result, the  judgment of  the High Court in set aside and  the election  petition filed by the respondent is dismissed.      The  appeal   is  accordingly   allowed.  Parties  are, however, directed to bear their own costs throughout.                                              Appeal allowed. 902

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