REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6225         OF 2008 [Arising out of SLP (Civil) No. 1610 of 2005]

Chet Ram …Appellant

Versus

Jit Singh …Respondents

WITH

CIVIL APPEAL NO.    6226        OF 2008 [Arising out of  SLP (Civil) No. 7276 of 2005]

Harnek Singh …Appellant

Versus

Jaswant Singh …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Whether  a  Gramin  Dak  Sewak  is  a  government  servant  and

consequently is  disqualified  to  become a member of  Nagar  Panchayat  in

terms of Section 11(g) of the Punjab State Election Commission Act, 1994

(for short “the Act”) is the question involved herein.

3. The fact of the matter is being noticed from Civil Appeal arising out

of SLP (C) No. 1610 of 2005.

Indisputably,  while  working  as  Gramin  Dak  Sewak,  appellant

contested  in  an  election  for  membership  of  Nagar  Panchayat  Sardulgarh

held on 9.03.2003.

Respondent No. 1 filed an election petition in terms of Sections 76,

79 and 89 of the Act and Rule 87 of the Punjab Municipal Election Rules,

1994  before  the  Election  Tribunal.   However,  upon  receipt  of  notice,

appellant submitted his resignation.   

We must, however, place on record that Harnek Singh, appellant in

Civil Appeal arising out of SLP (C) No. 7276 of 2005, was chargesheeted

for participating in politics.

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4. Contention  of  appellant  that  he  was  not  a  government  employee

having been working on part time basis and, thus, was not disqualified in

terms of Section 11(g) of the Act was rejected by the Tribunal by reason of

its  judgment  and  order  dated  25.08.2004  inter  alia  holding  that  having

regard to the provisions of Rule 22(4) of the Department of Posts, Gramin

Dak Sewak (Conduct and Employment) Rules, 2001 (for short “the Rules”)

he stood disqualified.

5. An appeal was preferred thereagainst which was marked as FAO No.

4305 of 2004.  By reason of the impugned judgment, the High Court held:

“The appellant is a part time employee of the post office  under  the  Central  Government,  outside regular civil  service.   Nonetheless,  he is  holding this  post  under  the  Government  and  he  is  also entitled  to  protection  under  Article  311  of  the Constitution, in view of the judgment of the Apex Court  in  Rajamma’s  case  (supra)  and  other judgments.   He  is  also  getting  remuneration  by way of  salary.   He is  appointed  by and paid  by Central Government and is under direct control of the Central Government.  Case of Madhukar G.E. Pankakar  (supra)  relating  to  Insurance  Medical practitioner appointed under the provisions of ESI Act  is  different.   In the  said  case,  the employee was not being paid directly by the Government nor was control of the Government direct, as observed in para 40 of the judgment.  In the present case, position  is  different.   The  appellant  was,  thus, rightly  held  to  be  disqualified  from  contesting election.”

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Appellant is, thus, before us.

6. Mr.  Punit  Leekha,  learned  counsel  appearing  on  behalf  of  the

appellant would submit that a part time employee working in a post office

does not hold any office of profit under the government and, therefore, the

impugned judgment cannot be sustained.  Strong reliance in this behalf has

been placed on Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and

Others [(1977) 1 SCC 70].

7. The learned counsel  appearing on behalf  of the respondent,  on the

other hand, would support the judgment.

8. The Act was enacted for constitution of a State Election Commission

and for vesting the superintendence, direction and control of the preparation

of electoral rolls for, and the conduct of all elections to the Panchayats and

Municipalities in the State of Punjab.   

Chapter II of the Act provides for constitution of the State Election

Commission.  Chapter IV of the Act provides for disqualifications.  Section

11 of the Act provides that a person shall be disqualified for being chosen as

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and for being a member of a Panchayat or a Municipality inter alia if he

holds  an  office  of  profit  under  the  Government  of  India  or  any  State

Government.

9. Indisputably, the terms and conditions of a Gramin Dak Sewak are

governed by the provisions of the Rules; Sub-rule (4) of Rule 22 whereof

reads as under:

“(4) No  Sevak  shall  canvass  or  otherwise interfere  with  or use  his  influence in  connection with, or take part in an election to any legislative or local authority;”

The said Rules were framed in terms of proviso appended to Article

309 of the Constitution of India.  The terms and conditions of employment

of a Gramin Dak Sewak are governed by statutory rules.   

The Rules framed in terms of the proviso appended to Article 309 of

the Constitution of India indisputably govern only government employees.

It was,  therefore, for appellant  to show that  he was not  governed by the

Rules.   As noticed hereinbefore,  Section 11(g) of  the Act lays down the

conditions  for  disqualification.   Section 12  of  the  Act  provides  that  if  a

question arises as to whether a member of any Panchayat or Municipality

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has become subject to any of the disqualifications specified in Article 243F

or  243V  of  the  Constitution  of  India  or  in  Section  11  of  the  Act,  the

question  shall  be  referred  for  decision  of  the  State  Government  and  its

decision shall be final.  It has furthermore been provided that before giving

any  decision  on  such  question,  the  State  Government  shall  obtain  the

opinion of the Election Commission and shall act in accordance thereof.

The same, however, would not mean that the Election Tribunal was

not competent to decide the question as to whether the returned candidate

was or  was not  qualified for being chosen as a member of Panchayat or

Municipality.   

10. Chapter XII of the Act deals with election petitions.  Section 73 of the

Act provides for constitution of an Election Tribunal.  Section 74 mandates

that no election shall  be called in question except by an election petition

presented in accordance with the provision of Chapter XII.  Section 75 lays

down  that  only  the  Election  Tribunal  having  jurisdiction  shall  have  the

power to adjudicate upon the election petitions.  Section 79 provides that an

applicant may in addition to claiming a declaration that the election of all or

any of the returned candidates is void, may claim a further declaration that

he himself or any other candidate may be declared as duly elected.  Various

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provisions  have been laid  down as  regards  procedures  to  be followed in

such petitions.

11. When  an  election  petition  is  filed,  all  questions  which  arise  for

consideration by the Tribunal must be adjudicated upon on the basis of the

materials  brought  on  record  by  the  parties.   As  regards  eligibility  of  a

candidate  to  contest  in  an  election  of  the municipalities  in  question,  the

Tribunal had jurisdiction to determine the same.  A finding has been arrived

at by it on the basis of the materials brought on record that appellants were

government employees.  It  is  not denied or disputed that their  terms and

conditions of service were governed by the statutory rules.

In  Madhukar  G.E.  Pankakar (supra),  whereupon  reliance  has  been

placed by Mr. Leekha, this Court in regard to the question as to whether an

employee falls within the description of “office of profit under government”

opined that for holding an office of profit under government one need not

be in the service of government and there need not be any relationship of

master and servant.   It  was furthermore held that  all  factors  need not  be

conjointly present.  However, as the petitioners therein were only insurance

medical practitioners, it was held that they did not hold any office of profit

inasmuch as the services rendered by them have no substantial link with the

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end, viz., the possible misuse of position as insurance medical practitioner

in doing his duties as Municipal President.

We are conscious of the fact that  Madhukar G.E. Pankakar (supra)

has been referred to subsequently by this Court in Shibu Soren v. Dayanand

Sahay and Others [(2001) 7 SCC 425] and M.V. Rajashekaran and Others v.

Vatal Nagaraj and Others [(2002) 2 SCC 704].

Whereas  in  the  case  of  Shibu  Soren (supra),  the  applicant  was

nominated  by  the  State  Government  as  the  Chairman  of  the  Interim

Jharkhand Area Autonomous Council, which was a statutory organization,

in the case of M.V. Rajashekaran (supra), the applicant was only a member

of a Commission.

In Shibu Soren (supra), this Court held:

“36. The question whether  a person holds  an office of profit, as already noticed, is required to be interpreted in a realistic manner having regard to  the  facts  and circumstances  of  each  case  and relevant  statutory provisions.  While “a strict  and narrow construction”  may not  be  adopted  which may  have  the  effect  of  “shutting  off  many prominent and other eligible persons to contest the elections” but at the same time “in dealing with a statutory  provision  which  imposes  a

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disqualification  on  a  citizen  it  would  be unreasonable to take merely a broad and general view  and  ignore  the  essential  points”.  The approach  which  appeals  to  us  to  interpret  the expression  “office  of  profit”  is  that  it  should  be interpreted  with  the flavour  of  reality bearing  in mind the object for enactment of Article 102(1)(a), namely, to eliminate or in any event to reduce the risk  of  conflict  between  the  duty  and  interest amongst  members  of  the  legislature  by ensuring that  the  legislature  does  not  have  persons  who receive benefits from the executive and may thus be amenable to its influence.”

The legal principles enunciated in Shibu Soren (supra) were followed

in M.V. Rajashekaran (supra) holding:

“…A conspectus of the aforesaid decisions of this  Court  unequivocally  therefore  indicates  that the question has to be answered depending upon the  facts  peculiar  to  the  case  in  hand  with  the object  of  finding  out  whether  in  fact  the Government  retains  some  control  over  the  post which the incumbent  was  holding at  the time of filing  of  nomination  and  was  there  any  profit attached  to  the  post  in  question.  The  underlined idea obviously is, that it should be free from any pressure from the Government so that there can be no conflict in discharge of his independent duties as a Member of the Legislative Assembly or the Legislative Council…”

The government employees are prohibited from taking part in election

to a Panchayat or Nagar Panchayat.  Such prohibition was introduced for

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obvious reasons.  The legislative object in making the Rules is very clear,

viz., the status enjoyed by a candidate shall not be allowed to be prejudicial

vis-à-vis a candidate who does not enjoy such a status.

In  Guru Gobinda Basu v.  Sankari  Prasad  Ghosal  and Others [AIR

1964 SC 254 : (1964) 4 SCR 311], this Court held that an auditor of two

government companies held an office of profit under government within the

meaning of Article 102(1)(a) of the Constitution of India stating:

“Learned counsel for the respondents has been content to argue before us on the basis that the two companies  having  been  incorporated  under  the Indian  Companies  Act,  1956  are  separate  legal entities  distinct  from Government.  Even  on  that footing  he  has  contended  that  in  view  of  the provisions of Section 619 and other provisions of the  Indian  Companies  Act,  1956,  an  auditor appointed by the Central Government and liable to be removed from office by the same Government, is  a  holder  of  an  office  of  profit  under  the Government  in  respect  of  a  company  which  is really a hundred per cent Government Company.

12. We think that this contention is correct. We agree  with  the  High  Court  that  for  holding  an office of  profit  under the Government,  one need not  be  in  the  service  of  Government  and  there need  be  no  relationship  of  master  and  servant between  them.  The  Constitution  itself  makes  a distinction  between  ‘the  holder  of  an  office  of profit under the Government’ and ‘the holder of a post  or  service  under  the  Government’;  see Articles  309 and 314.  The Constitution  has  also made a distinction between ‘the holder of an office

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of profit under the Government’ and ‘the holder of an office of profit under a local or other authority subject to the control of Government’; see Articles 58(2)  and  66(4).  In  Maulana  Abdul  Shakur v. Rishab Chand the appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955. He was appointed by the administrator of  the  Durgah and was  paid  Rs  100  per  month. The question arose whether he was disqualified to be chosen as a member of Parliament in view of Article  102(1)(a)  of  the  Constitution.  It  was contended  for  the  respondent  in  that  case  that under  Sections  5  and  9  of  the  Durgah  Khwaja Saheb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee;  therefore the appellant was under the control  and  supervision  of  the  Government  and that  therefore  he was  holding an office of  profit under  the  Government  of  India.  This  contention was  repelled  and  this  Court  pointed  out  the distinction  between  ‘the  holder  of  an  office  of profit Government’ and ‘the holder of an office of profit  under  some other  authority  subject  to  the control  of  Government’.  Mr  Chaudhuri  has contended  before  us  that  the  decision  is  in  his favour.  He  has  argued  that  the  appellant  in  the present  case  holds  an  office  of  profit  under  the Durgapur  Projects  Ltd.  and  the  Hindustan  Steel Ltd.  which  are  incorporated  under  the  Indian Companies Act; the fact that the Comptroller and Auditor-General or even the Government of India exercises  some  control  does  not  make  the appellant any the less a holder of office under the two companies. We do not think that this line of argument is correct.”  

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[See also Pradyut Bordoloi v. Swapan Roy (2001) 2 SCC 19]

Jaya Bachchan v.  Union of India [(2006) 5 SCC 266] was another

case, where a similar question arose for consideration.  It was held:

“6. Clause (1)(a) of Article 102 provides that a person shall  be disqualified for being chosen as, and  for  being,  a  member  of  either  House  of Parliament if  he holds any office of profit  under the Government of India or the Government of any State, other than an office declared by Parliament by  law  not  to  disqualify  its  holder.  The  term “holds an office of profit” though not defined, has been the subject-matter of interpretation, in several decisions of this  Court.  An office of profit  is  an office  which  is  capable  of  yielding  a  profit  or pecuniary  gain.  Holding  an  office  under  the Central or State Government, to which some pay, salary,  emolument,  remuneration  or  non- compensatory  allowance  is  attached,  is  “holding an office of profit”. The question whether a person holds  an  office  of  profit  is  required  to  be interpreted  in  a  realistic  manner.  Nature  of  the payment  must  be  considered  as  a  matter  of substance  rather than of form. Nomenclature is  not  important.  In  fact,  mere  use  of  the  word “honorarium” cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient.  Payment  of  honorarium, in  addition to daily  allowances  in  the  nature  of  compensatory allowances,  rent  free  accommodation  and chauffeur driven car at State expense, are clearly in  the  nature  of  remuneration  and  a  source  of pecuniary  gain  and  hence  constitute  profit.  For deciding the question as to whether one is holding an  office  of  profit  or  not,  what  is  relevant  is

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whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it  becomes  an  office  of  profit,  irrespective  of whether such pecuniary gain is  actually received or not. If the office carries with it, or entitles the holder  to,  any  pecuniary  gain  other  than reimbursement  of  out  of  pocket/actual  expenses, then the office will  be an office of profit  for the purpose of Article 102(1)(a). This position of law stands settled for over half a century commencing from the  decisions  of  Ravanna  Subanna  v.  G.S. Kaggeerappa,  Shivamurthy  Swami  Inamdar  v. Agadi  Sanganna  Andanappa,  Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Shibu Soren v. Dayanand Sahay.”

12. In Union of India and Others v.  Kameshwar Prasad [(1997) 11 SCC

650], it was held:

“2.  The Extra Departmental Agents system in the  Department  of  Posts  and  Telegraphs  is  in vogue since 1854. The object  underlying it  is  to cater  to  postal  needs  of  the  rural  communities dispersed in remote areas. The system avails of the services of schoolmasters, shopkeepers, landlords and such other persons in a village who have the faculty  of  reasonable  standard  of  literacy  and adequate means of livelihood and who, therefore, in their leisure can assist the Department by way of  gainful  avocation  and  social  service  in ministering to the rural communities in their postal needs,  through  maintenance  of  simple  accounts and adherence to minimum procedural formalities, as prescribed by the Department for the purpose. [See:  Swamy’s  Compilation  of  Service Rules  for

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Extra  Departmental  Staff  in  Postal  Department p. 1.]

3.  The  Extra  Departmental  Agents  are government servants holding a civil  post and are entitled to the protection of Article 311(2) of the Constitution  (See:  Supdt.  of  Post  Offices v.  P.K. Rajamma).  They are governed by separate set of rules,  viz.,  the  Posts  and  Telegraphs  Extra Departmental  Agents  (Conduct  and  Service) Rules,  1964  (hereinafter  referred  to  as  “the Rules”).  The  Central  Civil  Services (Classification, Control and Appeal) Rules are not applicable to this category of employees in view of the  notification  dated  28-2-1957  issued  by  the Government of India under Rule 3(3) of the said Rules.”

13. In  view  of  the  aforementioned  authoritative  pronouncements,  the

High  Court  must  be  held  to  be  correct  in  arriving  at  its  opinion  that

appellants  were  disqualified  from  contesting  in  the  election  of  Nagar

Panchayats.  The appeals are dismissed accordingly.  No costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; October 22, 2008

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