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PETITIONER: DIVYA PRAKASH

       Vs.

RESPONDENT: KULTAR CHAND RANA & ANR.

DATE OF JUDGMENT18/11/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR 1067            1975 SCR  (2) 749  1975 SCC  (1) 264  CITATOR INFO :  R          1984 SC 385  (10,20)

ACT: Himachal  Pradesh Board of School Education Act,  1969,  ss. 10(18), 23(4), 26(2)(i) and (p)-Chairman of  Board-Appointed in  honorary capacity-If holds office of profit within  Art. 191(1)(a) of Constitution.

HEADNOTE: The  respondent,  Who was elected to the  State  Legislative Assembly.  was, at the time of filing nominations,  Chairman of  the Board of School Education of the State. having  been nominated by the State Government under the Himachal Pradesh Board  of  School Education Act, 1969.  The Board  passed  a resolution,  fixing  a scale of pay for the  post,  but  the order  appointing the respondent made it clear that  he  was appointed  only  in an honorary capacity.  On  the  question whether  he was holding an office of profit under the  State Government  and as such was disqualified for election  under Art. 191 (1) (a) of the Constitution, HELD:(1)  The Chairman of the Board is an office  under the State Government but it is not an office of profit.  The test  for deciding whether the first respondent was  holding an  office of profit is whether he can sue for or  otherwise claim the scale of pay fixed by the resolution of the Board. In  the face of the order of appointment such a claim  would not be upheld. [750G; 752F-G] (2)Assuming  that the post itself carried a scale  of  pay the holding of the office has not resulted in any profit  to the  first  respondent.   It is not even a  case  where  the Chairman  was  appointed  to  an office  and  a  salary  was provided  by  the order of appointment, and he gave  up  his right to the salary. [751A-C] (3)  Further. the Board was not competent to fix a scale  of pay for the Chairman: [751D] (a)Section 10(18) of the Act does not enable the Board  to fix  the scale of pay, because, fixing the scale of  pay  of the Chairman cannot be said to be an act ancillary to any of the  purposes mentioned in cls. (1) to (17) of  the  section or,  to be one for the purpose of carrying into  effect  the provisions of the Act. [751D-E] (b)Section   23(4),  which  enables  the  Board  to   make

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regulations regarding qualifications, conditions of  service and  scales  of pay of officers and servants  of  the  Board other   than  Secretary,  Deputy  Secretary  and   Assistant Secretary,  would apply only to officers lower in rank  than the,   officers  mentioned.   Otherwise,  the   Act,   while conferring on the Government the power to specify the condi- tion  of  service including the scale of  pay  of  Assistant Secretary, Deputy Secretary and Secretary, would be  leaving to  the Board to determine the scale of pay of the  Chairman by  clubbing  him along with Officers and  servants  of  the Board lower in rank than an Assistant Secretary. [751F-752A] (c)Section  26(2)(i)  which relates to the  power  of  the Board  to make regulations for the appointment of  officers. clerks  and  other  servants and  the  conditions  of  their service.  cannot  cover the Chairman, because, there  is  no question  of  the  Board being competent to  deal  with  the appointment or conditions of service of the Chairman. [752C] (d)Section  26(2)(p)  which speaks of the  emoluments  and allowances  of  the  members  of  the  Board  and  all   its committees, cannot refer to the Chairman, because, under the Act,  there  is  a  distinction  between  the  Chairman  and members. [752C-D] 750 (e)Moreover,  though  generally  speaking. the  Pay  of  a person  can be said to be his emoluments the emoluments  and allowances referred to in cl. (p) cannot refer to a scale of pay, because, the Act does not contemplate any scale of  pay for members. [752D-E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1326  of 1973. From  the Judgment & Order datey the 31st July, 1973 of  the Himachal  Pradesh High Court in Election Petition No. 10  of 1972. Yogeshwar Prasad, S. K. Bagga and Mrs. S. K. Bagga, for  the appellant. Hardyal   Hardy,  S.  K.  Mehta,  K.  R.  Nagaraja  and   M. Qumaruddin, for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI,  J. Elections were held in March 1972  to  the Himachal  Pradesh  State  Legislative  Assembly.   The   1st respondent  was  elected to that Assembly from  the  Shahpur Constituency  in Kangra District.  An election petition  was filed by the appellant, a voter in that constituency, on the ground,  among  others,  that  at  the  time  of  filing  of nominations  the  1st respondent was holding  an  office  of profit under the Government of Himachal Pradesh and as  such was  disqualified for election under Article 191 (1) (a)  of the Constitution.  The petition having been dismissed by the High  Court of Himachal Pradesh this appeal has  been  filed against the order of dismissal. The  only  ground  which  is relevant  for  the  purpose  of decision  of  this appeal and which was  urged  before  this Court, was that as the Ist respondent was holding an  office of  profit under the State Government lie  was  disqualified under Article 191 (1) (a) of the Constitution to be  elected as a member of the State Legislative Assembly.  The 1st res- pondent  was  nominated  Chairman of  the  Board  of  School Education  of  Himachal  Pradesh in the  year  1969  by  the Himachal  Pradesh  Government under the  provisions  of  the Himachal  Pradesh Board of School Education Act,  1968.   At all relevant times he was holding that post.  Under s. 18 of

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the  Act the Chairman is nominated by the  Government.   The Board  is  constituted by the Government under S. 3  of  the Act.   Though  there is nothing said in the  Act  about  the authority  competent to remove the Chairman from his  office it  may  be assumed for the purposes of this case  that  the Government was competent to do so.  There can be very little dispute and indeed it is not disputed that the office of the Chairman  of the Board is an office under the State  Govern- ment.   The  only  question is whether it is  an  office  of profit.   Admittedly, the 1st respondent was not in  receipt of  a  salary.   The order appointing him  to  the  post  of Chairman  makes  it clear that he was appointed only  in  an honorary capacity.  The fact that he was entitled to receive travelling  and  daily  allowance  in  the  course  of   the discharge  of  his  duties  as,  Chairman  would  not  be  a disqualification because of the provisions of section 3  (m) of   the  Himachal  Pradesh  Legislative  Assembly   Members (Removal  of Disqualifications) Act, 1971, and this  is  not disputed.   What  is, however, contended on  behalf  of  the appellant  is that though the 1st respondent might not  have been in receipt of a 751 salary, the post itself carried a scale of pay and therefore it  is  an  office of profit which the  1st  respondent  was holding.   We are unable to agree.  The question is  whether the holding of the office has resulted in any profit to  the holder of that office, however small that profit may be.  We have discussed this question at great length in the judgment delivered  by  us today in C. A. No. 2365 of 1972.   In  the absence  of any profit accruing to the 1st respondent as’  a result of the holding of the office of Chairman it cannot be said that he was holding an office, of profit.  This is  not even  a case where the Chairman was appointed to  an  office and  a salary was provided for him by the order of  appoint- ment  Or  he  was entitled to a salary as a  result  of  the appointment a he gave up his right to the salary.  The order of appointment itself was one made in an honorary capacity. There  is a further fact which shows that the contention  of the  appellant that the post carried a scale of pay  is  not correct.   This contention that the-post carried a scale  of pay  is  based on Resolution No. 12 passed by the  Board  on January  17, 1970 fixing a salary of Rs. 16001800 per  month for  the Chairman.  We are satisfied that the Board was  not competent  to  fix  a scale of pay for  the  Chairman  by  a resolution.   We  are  unable to accept  the  contention  on behalf of the appellant that section 10, clause (18) of  the Himachal pradesh Board of School Education Act, 1968 enables the  Board  to fix the scale of pay of  the  Chairman.   The fixing of the scale of pay of the Chairman cannot be said to be an act ancillary to any of the purposes mentioned in cls. 1  to  17  of the section or to be one for  the  purpose  or carrying  into  effect the provisions of  the  Act.   Though under  section 17 the Chairman is also called an officer  of the Board, he is under section 19 the administrative head of the  Board.   He  is to call the meeting of  the  Board  and preside  over  it  and is entitled  in  any  emergency  that requires an immediate action to take such action as he deems necessary.  The Secretary to the Board is also appointed  by the  Government upon such conditions and for such period  as the  Government may deem fit under section 22.   We  presume that  this section enables the Government to fix’ his  scale of pay also.  Under section 23 the Government is entitled to appoint Deputy Secretaries and Assistant Secretaries to  the Board  on  such  conditions and for  such  periods’  as  the Government  may  deem  fit, which as in  the  case  of  the,

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Secretary would include the power to fix their scale of pay. This  is clear from the fact that sub-s. (4) of s.  23  lays down that the qualifications, conditions of service and  the scale  of pay of officers and servants of the  Board,  other than  Deputy  Secretary, Assistant Secretary  and  Secretary would  be determined by the Regulations.   This  sub-section when  it  enables the Board to  make  regulations  regarding qualifications,  conditions of service and scales of pay  of officers  and  servants of the Board other than  the  Deputy Secretary and Assistant Secretary, applies only to the cases of  officers  lower in rank than These  officers  mentioned. The  Dresence  of  the word ’officer’  in  that  sub-section cannot be held to refer to the Chairman also merely  because he is also called an officer of the Board under section  17. It  would  be  curious if the Act while  conferring  on  the Government  the power to specify the conditions  of  service including  the scales of pay of Deputy Secretary,  Assistant Secretary  and  Secretary,  it  had left  to  the  Board  to determine the scale of pay of the Chairman by clubbing him 7-L319SupCI/75 752 along with officers and servants of the Board lower in  rank than  even  the  Assistant Secretary.   We  are  clearly  of opinion  that  section 23(4) does not enable  the  Board  to determine  the  scale of pay of the Chairman.  Even  in  the case  of other officers and servants the scale of pay is  to be  determined by Regulations.  The first  Regulations  were made  by  the  Government  under  section  27  and  in   the Regulations  so made there is no provision for the scale  of pay  of the Chairman of the Board.  Nor have we  been  shown any regulation made by the Board fixing the scale of pay  of the  Chairman.   A mere resolution of the  Board,  which  is concerned   with   the  carrying  on   of   the   day-to-day administration  of  the  Board, cannot have  the  effect  of fixing  the scale of pay of the Chairman.  We do  not  think that  section 26(2) (i), which relates to the power  of  the Board  to make Regulations for the appointment of  officers, clerks and other servants of the Board and the conditions of their  service  can cover the Chairman because there  is  no question  of  the  Board being competent to  deal  with  the appointment  or  conditions  of  service  of  the  Chairman. Clause  (p)  of  sub-s.  (2) of section  26  speaks  of  the emoluments  and allowances of the members of the  Board  and all  its Committees.  This clause when it refers to  members of the Board cannot refer to the Chairman.  The  distinction between  the  Chairman  and the members is  brought  out  in section  4 which says that the "Board shall consist  of  the Chairman nominated in accordance with section 18 and of  the following  members"  and  then  goes  on  to  enumerate  the members.  Though generally speaking the pay of a person  can be said to be his emoluments, the emoluments and  allowances referred  to  in cl. (p) cannot refer to the scale  of  pay. The  Act does not contemplate any scale of pay for  members. On  a  close  reading of the provisions of the  Act  we  are satisfied that there is no provision in the Act enabling the Board  to  fix  a  scale  of  pay  for  the  Chairman  by  a resolution.    Therefore,  it  cannot  be  said   that   the resolution has validly fixed a scale of pay for the Chairman and,  therefore,  it  cannot be said that the  post  of  the Chairman carries with it a scale of pay. In  any case as far as the last respondent is concerned  the test  for deciding whether he holds an office of  profit  is very  simple.   It is whether he can sue  for  or  otherwise claim the scale of pay fixed by the resolution of the Board. In  the face of his order of appointment such a claim  would

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not be upheld. We  held, therefore, in agreement with the High  Court  that the  Ist respondent was not holding an office of  profit  at the  time  when  he  filed his nomination  or  when  he  was elected.  The appeal is, therefore, dismissed with costs. V.P.S.                           Appeal dismissed. 753