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PETITIONER: M N.SAMRATH

       Vs.

RESPONDENT: MAROTRAO AND ORS.AND VICE VERSA

DATE OF JUDGMENT04/05/1979

BENCH:

ACT:      Life Insurance Corporation of India (Staff) Regulations 1960, Regulations  25 and  39 vis-a-vis Section 15(g) of the City of Nagpur Corporation Act 1948, ambit and limit and the import and  interpretation of-Whether  Regulation 25(4) read with Section  15(g) of  the Corporation Act 1948 constitutes or amounts  to an  ineligibility or  disqualification for  a whole time  salaried   employee of L.I.C. to become a member of any local authority

HEADNOTE:      Clause  (g)  of  Section  15  of  the  City  of  Nagpur Corporation Act,  1948 lays  down that  "no person  shall be eligible for  election as  a Councillor  if he  is under the provisions  of   any  law  for  the  time  being  in  force, ineligible to he a member of any local authority. Under sub- section (4)  of the  Life  Insurance  Corporation  of  India (Staff) Regulations,  1960, "No  ’employee shall  canvass or otherwise interfere  or use his influence in connection with or take  part in  an election  of any  legislature or  local authority". However  proviso (iii)  to the  said sub-section lays down that "the Chairman may permit an employee to offer himself as a candidate for election to a local authority and the employee  so permitted  shall  not  be  deemed  to  have contravened the  provisions  of  the  regulation  so  as  to attract punishment under. Regulation 39, ibid.      The  appellant   (in  C.A.   2406/77)  and  a  returned candidate as  a councillor from ward No. 34 of Nagpur was an employee of  the Life  Insurance Corporation.  The  had  not sought or  got the  Chairman’s permission  to stand  for the election, with the result the election petition filed by his nearest rival respondent 1 and appellant in C.A. 356 of 1978 on this  sole ground  of taboo  Was accepted  by the Court’s below. The  direction given  by the  trial  court  declaring respondent 1  and an elected candidate was however set aside by the  High Court  and hence  C.A. 356 of 1978 against that part of the decision by respondent 1 in C.A. 2406/77.      Allowing C.A.  2406/77 and  dismissing C.A. 356/78. the Court ^ HELD [Per Krishna Iyer J.]      1. The  impact of  Regulation 25(4)  is not  to  impose ineligibility on  an L.I.C.  employee to  be a  member of  a municipal Corporation.  Its effect is not on the candidature but on  the employment  itself. The sole and whole object of Regulation 25 read with Regulation 39, is to lay down a rule of conduct  for the  L.I.C. employees. Among the many things forbidden are  for instance  prohibition  of  acceptance  of gifts or  speculation in stocks and share. Obviously neither

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Regulation 32  can be  read as  invalidating a  gift  to  an L.I.C. employee under the law of gifts, nor Regulation 33 as nullifying  transfer  of  stocks  and  shares  speculatively purchased by the L.I.C. employee. Likewise, Regulation 1079 25 while  it  does  mandate  that  the  employee  shall  not participate in  an election  ,4, to a local authority cannot be read  as nullifying  the election  or  disqualifying  the candidate.  The  contravention  of  the  Regulation  invites disciplinary  action   which  may   range  from  censure  to dismissal [1088H, 1089A-B, 1091G]      2. Section 15(g) of the City of Nagpur Corporation Act, 1948 relates to the realm of election law and eligibility to be a  member of  a local  authority. Ineligibility must flow from specific  provision of law designed to deny eligibility or to lay down disqualification.[1089]      3.  If   a  rule   of  conduct  makes  it  undesirable, objectionable or  punishable for  an employee to participate in election  to a  local authority, it is a distortion, even an exaggeration  out of  proportion, of  that  provision  to extract out  of it a prohibition of a citizen’s franchise to be a member in the shape of a disqualification from becoming a member  of a  local authority. The thrust of Regulation 25 is disciplinary and not disqualificatory. Its intent imposes its limit, language used by a legislature being only a means of communicating  its will in the given environment. This is clear from  the fact that the Chairman is of the power under Proviso (iii)  to Section 25(4) to permit such participation by an  employee depending on the circumstances of each case. Even the range of punishment is variable. [1089C-E]      4. There  is no  ground in public policy to support the plea  to   magnify  the  disciplinary  prescription  into  a disenfranching taboo.  To revere  the word  to  reverse  the sense is  to do  injustice to  the  art  of  interpretation. Permission is a word of wide import and may even survive the death of  the person  who permits.  Equally clearly, where a statute does  not necessarily insist on previous permission, it may  be granted  even later to have retrospective effect, or permission  once granted  may  be  retracted.  [1089,  H, 1090A]      5. The  strictly literal  construction may not often be logical if  the context  indicates  a  contrary  legislative intent. Courts  are not  victims of verbalism but are agents of the  functional success of legislation, given flexibility of meaning,  if the law will thereby hit the target intended by the law-maker. A policy-oriented understanding of a legal provision which  does not  do violence  to the  text or  the context gains  preference as against a narrow reading of the words used.  So viewed, the core purpose of Regulation 25(4) is not  to clamp  down disqualifications regarding elections but to  lay down  disciplinary  forbiddance  on  conduct  of government servants qua government servants contravention of which would  invite punishment.  This is  a purpose oriented interpretation. [1087H, 1088A, 1090E]      Dr.Hutton v. Phillips, 45 Del. 156, 160, 70A. 2d 15, 17      (1949); quoted with approval.      Sarafatulla Sarkar  v. Surja  Kumar Mondal  A.I.R. 1955      Cal. 382  (DB); Uttam  Singh v.  S. Kripal Singh A.I.R.      1976 Punj.& Har. 176, approved.      Narayanaswamy Naidu  v. Krishnamurthy  and Anr.  I.L.R.      (1958) Mad. 513; explained      6.  Another  persuassive  factor  based  on  a  broader constitutional principle supporting the semantic attribution is this : The success of a democracy to 1080

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’tourniquet’  excess   of  authority   depends  on   citizen participation.  An   inert  citizenry   indifferent  to  the political process  is an  ’enemy of the Republic’s vitality. Indeed, absolutism thrives on inaction of the members of the polity. Therefore activist involvement in various aspects of public affairs  by as  many citizens  as can be persuaded to interest themselves  is a sign of the health and strength of our  democratic  system.  Local  self-Government  and  adult franchise give  constitutional impetus  to the  citizens  to take part in public administration, of course, this does not mean that  where  a  plain  conflict  of  interests  between holding an  office and  taking part in the political affairs of government  exists, a  disqualification cannot be imposed in public interest. The rule is participation, the exception exclusion. Viewed  from that  angle if government servant or an   employee   of   the   L.I.C.   participate   in   local administration or  other election it may well be that he may forfeit his position as government servant or employment, if dual devotion  is destructive  of efficiency as employee and be subject  to disciplinary action-a matter which depends on a given milieu and potential public mischief. [1091C-F]      7. In election law, a defeated candidate cannot claim a seat through an election petition, merely out of speculative possibilities of success. [1092B]      8. It  is  true  that  there  is  no  common  law  rule applicable in  this area  and election  statutes have  to be strictly construed,  but that does not doctrinally drive the Ccurt to  surrender to  bizarre verbalism  when a  different construction may  inject reasonableness  into the provision. Section 428  of the Corporation Act aims at sense and when a plurality of  contestants are  in the run other than the one whose selection  is set  aside predictability  of  the  next highest becomes  a misty  venture. The  rule in  section 428 contains the  corrective in such situations and the pregnant expression against  whose election  no cause or objection is found  gives   jurisdiction  to   the  Court   to  deny  the declaration by  the next  highest  and  to  direct  a  fresh election when the constituency will speak. [1092C-E]      Pyale  Saheb  Gulzar  Chhotumiyan  Sawazi  v.  Dashrath      Wasudeo and Ors. 1977 Mah. L.J. p. 246; approved.      Sukhdev Singh v. Bhagatram, [19751 3 S.C R. 619; [1975]      I SCC 421, held inapplicable. Per Tulzapurkar J. (contra)      1. The  words "any  law for  the time  being in  force" occurring in Section 15(g) of the City of Nagpur Corporation Act, 1948  in the  context refers to the law in force at the relevant time,  that  is,  at  the  time  of  nomination  or election  when   the   question   of   disqualification   or ineligibility arises for consideration.      2. On  proper construction  Regulation 25(4) of the L.I C. (Staff)  Regulations 1960  read with section 15(g) of the Corporation Act  imposes a disqualification on or creates an ineligibility  for   the   employees   of   Life   Insurance Corporation to  stand for  election to  any local authority. [1097D-E]      (a) In  the first  place the  heading of the Regulation clearly shows  that it  deals with  the topic and intends to provide  a   prohibition  against   standing  for  election. Secondly, cl.  (4) of  the  said  Regulation  in  plain  and express terms provides: (No employee shall .... take part in an election  to any  local authority").  In other  words, by using negative language it puts a complete 1081 embargo subject  to proviso  (iii)] upon every employee from taking part in an election to any local authority. [1097F-H]

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    (b) To  say That  Regulation  25(4)  merely  creates  a prohibition against  standing  for  election  but  does  not create any ineligibility or disqualification to stand for an election is  merely to  a  quibble  at  words.  There  s  no distinction between  a legal  prohibition against  a  person standing for election and the imposition of an ineligibility or disqualification upon him so to stand. [1097H, 1098A]      (c) It  is true  that  the  purpose  of  framing  Staff Regulations was  and is  to decline the terms and conditions of service  of the employees of the L.I.C and that being the purpose it is but natural that a provision for imposition of penalties four breach of such Regulations would also be made therein. In  fact the validity of such prohibition contained in the concerned Regulation rests upon the postulate that it prescribes a  code of  conduct for the employees and as such it would  be within the Regulation making power conferred on the L.I.C.  under s.  49 of  the L.I.C.  Act 1956  but while prescribing a  code of Conduct the Regulation simultaneously creates a disqualification or ineligibility for the employee to stand for election to any local authority. [1098A-C]      (d) To  construe Regulation 25(4) as merely prescribing a code  of conduct  breach whereof  is made punishable under Regulation  39  and  not  imposing  a  disqualification  or. ineligibility upon  the employees to stand for election to a local  authority  would  amount  to  rendering  a  residuary provision like  s. 15(g)  in  the  Corporation  Act  otiose. [1098C-D]      3. The  cases falling  within the aspects emerging from Regulation ‘  and proviso  (iii)  to  Regulation  25(4)  are completely  taken   out  of  the  prohibition  contained  in Regulation 25(4).  Proviso  (iii)  to  Regulation  25(4)  is similar to  the proviso  tc. s.  15 of  the Corporation  Act under which  a disqualification  under cls.  (e) (f) (g) or- (i)  could   be  removed  by  an  order  of  the  Provincial Government in  that behalf  and obviously  when any  one  of those disqualifications  is  removed  by  an  order  of  the Provincial Government  under  the  proviso  the  case  would clearly be outside s. 15. Tn other words the two aspects (i) that certain  employees under  Regulation  2  would  not  be governed by  the Staff  Regulations at  all  and  would  not therefore be  hit by  the prohibition  and  (ii)  that  upon permission being  obtained from  the Chairman  under proviso (iii) the  employee would be outside the prohibition have no bearing  on   the  questions   of  proper   construction  of Regulation 25 (4). [1098E-F]      In the  instant case  the returned candidate suffered a disqualification or  rather was under an ineligibility under Regulation 25(4)  read with s. 15 (g) of the Corporation Act 1948 which  vitiated his election; if he were keen on active participation in  the democratic  process it was open to him to do  so by  either resigning  his post  or  obtaining  the Chairman’s permission  before offering  his candidature  but his right  as a  citizen to  keep up the Republic’s vitality by active  participation in  the political process cannot be secured to  him by  a purpose-orientated construction of the relevant Regulation [1011D-F]      G. Narayanaswamy  Naidu v.  C. Krishnamurthy  and  Anr.      I.L.R. 1938 Mad. 513; explained and approved.      13-409 SCI/79 1082      Md Sarafatulla  Sarkar v.  Surja Kumar  Mondal,  A.I.R. 1955 Cal. 382 distinguished.      Uttam singh  v. S. Kripal Singh and Anr., A.I.R. 1976 P JUDGMENT: HELD  FURTHER (Concurring)

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    4. C.A 356 of 1978 should be dismissed. The declaration granted to  the appellant  by the  learned  Assistant  Judge under s.  428(2) of  the Corporation  Act, 1948 should never have been  granted. It  is true that the election-petitioner secured the  next highest number of votes but that by itself would not  entitle him  to meet  a declaration in his favour that he  be deemed to have been duly elected as a Councillor from Ward No. 34. [1102G-H]      5. Section 428(2) is not that absolute for the relevant part of  sub-s. (2)  provides that  if the  election of  the returned candidate  is either.  declared to be null and void or is  set aside  the District  Court "shall direct that the candidate, if  any, in  whose favour- next highest number of valid votes  is recorded  after the said person or after all the persons  who have  returned at  the  said  election  and against whose  election the case or objection is found shall be deemed  to have  been elected".  The words "against whose election no  cause or  objection is found" give jurisdiction to the  District  Court  to  deny  the  declaration  to  the candidate who has secured the next best votes. [1103A-B]      6. The High Court has rightly taken the view that there was no  material on  record to  show how the voters, who had voted for  the returned  candidate, would  have  Cast  their votes had they known about the disqualification. [1103B-C] Observation      1. Judges  and lawyers  always clamour  for legislative simplicity and  when legislative simplicity is writ large on the concerned  provision and  the text  of the  provision is unambiguous and  not susceptible to dual interpretation, it. would not  be permissible  for  a  court,  by  indulging  in nuances semantics and interpretative acrobatics to reach the opposite conclusion  than is warranted by its plain text and make it  plausible or  justify it  by spacious references to the object,  purpose or  scheme of the legislation or in the name of judicial activism. [1093A-B]      2. Prefaces  and exordial  exercises,  perorations  and sermons as also theses almost every judgment irrespective of whether the  subject or  the context  or language that needs simplification, have  ordinarily no proper place in judicial pronouncements. In  any case.  day in and day out indulgence in these  in almost  every judgment  irrespective of whether the subject  or the  context or  the occasion  demands it or not, serves  little  purpose,  and  surely  such  indulgence becomes indefensible  when matters  are to be disposed of in terms of  settlement arrived  at between  the parties or for the sake  of expounding the law while rejecting the approach to the Court at the threshold on preliminary grounds such as non-maintainability laches  and the  like. Judicial activism in many  cases is  the result  of legislative inactivity and the role of a Judge as a law-maker has been applauded but it has been criticised also lauded-when it is played within the common law  tradition but  criticised when  it is carried to extremes. [1101F-H, 1102A-B] 1083 Pathak, J, (Concurring)      1. Section  15 of the Nagpur Corporation Act declares a person ineligible for election as a Councillor on any one of the several  grounds. He may be ineligible because he is not a citizen  of India,  that is  the say, he lacks in point of legal status.  He may  also be intelligible in point of lack of  capacity   defined   by   reference   to   disqualifying circumstances, for  example, he  may nave beer adjudged by a competent court  to be of unsound mind. The disqualification 1 may be found, by nature of clause (g) under the provisions of any  subsisting law.  But the law must provide that he is

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ineligible to  be a  member of  any local authority. The law must deal  with ineligibility  for membership,  and  in  the context of  section  15,  that  must  be  ineligibility  for election. lt  must be a law concerned with elections. Clause (g) is  a residual  clause. not  uncommonly  found  wherever provision of  an election  law sets forth specified category of disqualified or ineligible person and thereafter includes a residual  clause,  leaving  the  definition  of  remaining categories of  the other laws. These other laws must also be election laws.  An example  is  the  Representation  of  the people Act,  1951 which is relevant to Article 102(1)(e) and Article 191  (I)(e) of the Constitution. Since section 15 of the Nagpur  Corporation Act  is a  provision of the election law, clause  (g) must be so construed that the law providing for ineligibility  contemplated therein  must also be of the same nature,  that is to say, election law. [1104G-H, 1105A- C]      2. Regulation 25(4) of the (Staff) Regulations is not a law, dealing  with elections.  Chapter III  of  the  (Staff) Regulations, in  which Regulation  25 is  found, deals  with ’conduct, discipline  and appeals’ in regard to employees of the Life Insurance Corporation of India. A conspectus of the provision contained  in the  Chapter, from  section 20 to SO shows that  it deals  with nothing  else. This  is a body of provisions defining and controlling the conduct of employees in  order   to  ensure  efficiency  and  discipline  in  the Corporation,  and   providing  for  penalties  (Section  39) against   erring    employees.   Regulation   25   prohibits participation  in   politics  and  standing  for  elections. Regulation 25(4)  forbids an  employee not  only from taking part in  an election  to any legislature or local authority, but also  from canvassing  or otherwise interfering or using his influence,  in connection  with such  an election. If he does,  he   will  be  guilty  of  a  breach  of  discipline, punishable under  Regulation 39.  Regulation 25(4) is a norm of  discipline.   In  substance   it  is  nothing  else.  In substance, it is not a provision of. election law. It cannot be   construed   as   defining   a   ground   of   electoral ineligibility. All  that it says to the employee is: ’ while you may  be eligible  for election to a legislature or local authority by  virtue of  your local  status or capacity. you shall not  exercise that right if you wish to conform to the discipline of your service." [1105D-G]      3. The  right to  stand for  election  flows  from  the election law-Regulation 25(4) does not take away or abrogate the right;  it merely  seeks to  restrain the  employee from exercising it  in the  interest of service discipline. If in fact the  employee exercises  the right,  he may be punished under Regulation  39 with any of the penalties visited on an employee-a penalty which takes its colour from the relevance of ’employment, and has nothing to do with the election law. No penalty  under Chapter III of the (Staff) Regulations can provide for  invalidating the  election of  an employee to a legislature or a local authority. [1105G-H, 1106A] 1084      When the  restraint on standing for election imposed by Regulation 25(4) has to be removed, it is by the Chairman of the Life  Insurance Corporation  of India  under  the  third proviso. When  he does  so, it  is  as  a  superior  in  the hierarchy of  service concerned  with service discipline. He does not  do so  as an  authority concerned  with elections. Therefore Regulation 25(4) of the staff Regulations is not a law within  the contemplation of Section 15(g) of the Nagpur Corporation Act.  Samarth must  therefore,  succeed  in  his appeal. That  being so,  Marotrao must  fail in his. Samarth

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having  been  duly  elected  to  the  office  of  Councillor Marotrao cannot  claim the  same office for himself. [1106A- C,D]      G. Narayanaswamy  Naidu v. C. Krishnamurthy & Anr.. ILR [1958] Mad. S 13, disapproved.      Md. Sarafatulla  sarkar v.  Suraj Kumar  Mandal, A.I.R.      1935 Cal.  302 Uttam  Singh v.S. Kirpal Singh, AIR 1976      Punj. & Har. 176; approved.

&      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2406/77 and 356/ 78.      Appeals by  Special Leave  from the  Judgment and order dated 1-9-77 of the Bombay High Court in SCA No. l/77.      A. P. Deshpande and M. S. Gupta for the Appellant in CA No. 2406/77 and Respondent in CA No. 356/78.      H.W. Dhabe  and A.  G. Ratnaparkhi for the Appellant in CA No. 356/78 and for the Respondent in CA No. 2406/77.      The following Judgments of the Court were delivered:      KRISHNA  IYER,   J.  A   tricky  issue   of   statutory construction, beset  with semantic  ambiguity and  pervasive possibility, and  a prickly  provision which, if interpreted literally, leads  to absurdity  and if  construed liberally, leads to  rationality, confront  the  court  in  these  dual appeals by special leave spinning around the eligibility for candidature  of   an  employee   under  the  Life  Insurance Corporation  and   the  declaration   of  his   rival,   1st respondent, as  duly returned in a City Corporation election A tremendous  trifle in  one sense,  since almost  the whole term has  run out.  And yet, divergent decisions of Division Benches of Madras and Calcutta and a recent unanimous ruling of a  Bench of  five judges  of Punjab  and Haryana together with the Bombay High Court’s decision under appeal have made the precedential erudition sufficiently conflicting for this Court to  intervene and  declare  the  law,  guided  by  the legislative text  but informed  by the  imperatives  of  our constitutional  order.   The  sister  appeal  filed  by  the respondent relates  to that part of the judgment of the High Court reverses  the declaration  grated by  the trial  judge that he be deemed the returned candidate. 1085      This little preface leads us on to a brief narration of the admitted facts. The appellant (in C.A. 2406 of 1977) was d candidate  for election  to the Corporation of the City of Nagpur from  Ward 34  and his  nearest  rival  was  the  1st respondent,  although  there  were  other  candidates  also. Judged by  the plurality  cf votes,  the appellant secured a large lead  over his opponents and was declared elected. The and of  the poll  process is  often  the  beginning  of  the forensic process  at the instance of the defeated-candidates with its  protracted trial  and appeals  upon appeals,  thus making elections  doubly expensive  and terribly  traumatic. the habit  of accepting  defeat with  grace, save  in  gross cases, is  a sign  of country’s democratic maturity. Anyway, in the  present case,  when the  appellant was  declared the returned candidate the respondent. challenged the verdict in court on  a simple  legal ground  of  ineligibility  of  the former who  was, during  the election, a development officer under the  Life Insurance Corporation (for short, the LIC) . The lethal  legal infirmity,  pressed with  success, by  the respondent  was   that  under  Regulation  25  of  the  Life Insurance Corporation  of India  (Staff)  Regulations,  1960 (briefly,  the  Regulations  framed  by  the  LIC,  all  its

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employees were  under an embargo on taking part in municipal elections,  save   with  the  permission  of  the  Chairman. Therefore, the  appellant who  was such  an employee and had not sought or got the Chairman’s permission laboured under a legal ineligibility  as contemplated in l,’’ s. 15(g) of the City of  Nagpur Corporation  Act, 1948 (hereinafter referred to as  the Act’.  Both the  Courts below  shot down the poll verdict with  this statutory  projectile and  the  aggrieved appellant urges  before us the futility of this invalidatory argument.            Section 15(g) is seemingly simple and reads:           15. No  person shall be eligible for election as a      Councillor if he- xx       xx         xx           (g)  is under  the provisions  of any  law for the                time being  in  force,  ineligible  to  be  a                member of any local authority; G So, the  search is  for any  provision of  law rendering the returned candidate  ineligible to  be a  member.  The  fatal discovery of  ineligibility made  by the respondent consists in the  incontestable fact  that the  appellant was  at  the relevant time  an LIC  employee bound  by  the  Regulations, which have  the force of Law? having been framed under s. 49 of the  LIC Act,  1956. The  concerned clause  is Regulation 25(4) which reads thus: 1086      "25 (4)   No  employee   shall  canvass   or  otherwise           interfere or use his influence, in connection with           or take  part in an election to any legislature or           local authority. Provided that-                    xx       xx         xx                (iii)     the Chairman may permit an employee                     to offer  himself  as  a  candidate  for                     election to  a local  authority and  the                     employee  so   permitted  shall  not  be                     deemed   to    have   contravened    the                     provisions of this regulation.                    xx       xx         xx      A complementary  regulation arming  the Management with power to  take action  for breach  of this  ban is  found in Regulation 39 which states:           39(1). Without  prejudice  to  the  provisions  of      other regulations,  any one  or more  of the  following      penalties for  good  and  sufficient  reasons,  and  as      hereinafter provided  be imposed  by  the  disciplinary      authority specified  in Schedule  on  an  employee  who      commits a  breach of  regulations of  the  Corporation,      or.. "      The crucial  issue is  whether this taboo in Regulation 25(4) spells electoral ineligibility or merely sets rules of conduct and  discipline for  employees, violation  of  which will be visited with punishment but does not spill over into the area of election law.      Two decisions,  one of  Calcutta Sarafatulla  Sarkar v. Surja Kumar  Mondal(1) and  the other  of Punjab  &  Haryana Uttam Singh  v. S.  Kirpal Singh (Z) support the appellant’s position that  mere rules  regulating service discipline and conduct, even  though they  have the  force of  law,  cannot operationally be  expanded into  an interdict on candidature or  amount  to  ineligibility  for  standing  for  election. Chakravarthi, C.J.,  speaking for  a Bench  of the  Calcutta High Court upheld the stand (1)           "it appears to me to be ’abundantly’ clear that in      so  far  as  the  Government  Servants’  Conduct  Rules      provide tor  discipline and document (conduct?) and, in

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    doing so, forbid conduct of certain varieties their aim      is merely  regulation  of  the  conduct  of  Government      servants, as such (l) A.I.R. 1955 Cal. 382. (2) A. I. R. 1976 P. &. H. 176. 1087      servants, and  that aim  is sought  to be  attained  by      prescribing certain rules of correct conduct and laying      down penal  ties for  their  breach.  If  a  Government      servant disregards  any of  the Rules  which bear  upon      discipline and conduct and conducts himself in a manner      not approved  by the Rules or forbidden by them, he may      incur the  penalties for  which the  Rules provide.  It      cannot, however,  be that  any of his other rights as a      citizen will be affected. Taking the present case, if a      Government servant  violates  the  prohibition  against      offering himself  as a candidate for election to one or      another of  the bodies  mentioned in  Rule 23,  he  May      incur  dismissal   or  such   other  penalty   as   the      authorities may  consider called for, but the breach of      the conditions  of  service  committed  by  him  cannot      disenfranchise or  take away from him any of the rights      which  he   has  in  the  capacity  of  the  holder  of      franchise.           While, therefore,  a Government  servant  offering      him ’  self for election to one of the bodies mentioned      in Rule 23, may bring upon himself disciplinary action,      which may  go as  far  as  dismissal,  the  consequence      cannot also  be that  his election  will be invalid or.      that the  validity of  his election will be affected by      the breach.  The disqualification imposed by Rule 23 is      of  the   nature  of   a  personal  bar  which  can  be      overstepped only  at the  Government servant’s peril as      regards  his   membership,  of   a  service  under  the      Government.  It  is  not  and  cannot  be  an  absolute      disqualification in the nature of ineligibility.           What the Rule enjoins is that a Government servant      shall not  take part  in any election and that he shall      also not take part in the form of offering himself as a      candidate  The  prohibition  is  directed  at  personal      conduct and  not at  rights  owned  by  the  Government      servant  concerned.   Illustrations  of   an   absolute      prohibition of the nature of a real disqualification or      ineligibility will  be found  in Sections  63- E(l) and      80-B, Government  of India  Act 1915-19 and Article 102      and 1901  of the  present Constitution  which deal,  in      both cases  with qualification  for  election,  to  the      Central or the State Legislature      In his  view, the  core purpose  of Regulation 25(4) is not to  clamp down disqualifications regarding elections but to  lay   down  disciplinary   forbiddance  on   conduct  of Government servants qua 1088 government servants  contravention  of  which  would  invite punishment. If  we may  say so,  this is  a purpose-oriented interpretation.      A Five-Judge  Bench of  the Punjab & Haryana High Court adopted this  reasoning in  a situation  akin  to  ours  and repelled the  further submission  that the  disqualification was  founded   on  the   policy  that  an  employee  of  the Corporation, if  he became  a member  of the  Legislature or City  Corporation  would  not  be  able  to  carry  out  his functions. The  court also  dissented from  a Division Bench decision of  the Madras  High Court  which took  a  contrary view.

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    It is  fair to  notice  the  Madras  ruling  before  we discuss the  fundamentals and  declare the law as we read it to be.  In the Madras case Narayanaswamy v. Krishnamurth,(1) which related  to an  Assembly seat) the court felt that the point  was   not  free   from  difficulty  but  reached  the conclusion that  the Regulation  made by the LIC was perhaps intended to  ensure undivided attention upon their duties as such employees  but it  also operated as a disqualification. The contention  before the court was somewhat different. The question posed was whether the concerned Regulation could be treated as  law which  fulfilled the  requirements  of  Art. 191(1) (e)  of the  Constitution. The major consideration of the court  was as  to whether  a regulation to ensure proper performance of  duties by  the employees  of the Corporation could also  be treated  as a  law imposing disqualification. Even so,  making a liberal approach to the line of reasoning of the  court we  may consider the observation as striking a contrary note.      We do  not examine,  not having  been invited to do so, whether  Parliament  or  its  delegate  could  enact  a  law relating to  elections to local bodies, cl topic which falls within the  State List.  We confine  ourselves to  the  sole question debated  at the  Bar as to the ambit and limit, the import and  interpretation of  Regulation 25(4)  of the  LIC Regulations, vis a vis s. IS(g) of the Act.      The Regulations  have been framed under s.49 of the LIC Act and  a conspectus  of the  various chapters convincingly brings home the purpose thereof. All the Regulations and the Schedules exclusively  devote  themselves  to  defining  the terms and  conditions of service of the staff. Regulation 25 comes within chapter III dealing with conduct and discipline of the  employees. Regulation  39 deals  with penalties  for misconduct  and   Regulation  40  deals  with  appeals.  The inference is  irresistible that the sole and whole object of Regulation 25,  read with  Regulation 39,  is to  lay down a rule of conduct for the      I .R. (1958) Mad. 513 1089 LIC employees.  Among the  many things  forbidden  are,  for instance, prohibition  of acceptance of gifts or speculation in stocks and shares. Obviously we cannot read Regulation 32 as invalidating  a gift  to an LIC employee under the law of gifts, or Regulation 33 as nullifying transfer of stocks and shares speculatively purchased by an LIC employee. Likewise. Regulation 25  while it does mandate that the employee shall not participate  in an  election to a local authority cannot be read  as nullifying  the election  or  disqualifying  the candidate.  The  contravention  of  the  Regulation  invites disciplinary  action,   which  may  range  from  censure  to dismissal.      Section 15(g)  relates to the realm of election law and eligibility  Cr  to  be  a  member  of  a  local  authority. Ineligibility must  flow from  a specific  provision of  law designed   to    deny   eligibility    or   to    lay   down disqualification. If a rule or conduct makes it undesirable, objectionable or punishable for an employe to participate in elections to  a local  authority it is a distortion, even an exaggeration out of proportion, of that provision to extract out of  it a  prohibition of  a citizen‘s  franchise  to  be member in  the shape  of a  disqualification from becoming a member of  a local authority. The thrust of Regulation 25 is disciplinary not  disqualification. Its  intent imposes  its limit, language  used by a legislature being only a means of communicating its  will in  the given  environment. This  is obvious from  the fact  that the Chairman is given the power

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to permit  such participation by an employee 15 depending on the circumstance of each case. Even the range of punishments is variable. No ground rooted in public policy compels us to magnify    the     disciplinary    prescription    into    a disenfranchising taboo.  To revere  the word  to reverse the sense is  to do  justice to  the art of interpretation. Reed Dickeron quotes a passage from an American case to highlight the guideline :(’) F           "The meaning  of some  words in  a statute  may be      enlarged or  restricted in order-to harmonize them with      the legislative  intent of  the entire statute....It is      the spirit....  of the statute which should govern over      the literal meaning There is  a further  difficulty in construing the Regulation as stipulating  an  ineligibility  for  candidature  because there is  a  proviso  therein  for  the  Chairman  to  grant permission to  the  employee  to  participate  in  elections Permission is a word of wide import and may even survive the death of the person Who permits (Kally v. Cornhill Insurance Co. (1) The  Interpretation and  Application of Statutes by Reed Dickerson, pr 199. 1090 Ltd.(1)  Equally   clearly,  where   a  statute   does   not necessarily insist  on previous permission it may be granted even later  to have retrospective effect. Or permission once granted may  be retracted.  These legal  possibilities  will create puzzlesome  anomalies if  we treat  the Regulations a ban on participation in election. An employee may stand as a candidate after  securing permission,  but in  the course of the election  the Chairman may withdraw the permission. What happens then  ? An employee may be refused permission in the beginning  and   if  he   still  contests  and  wins  it  is conceivable that the Chairman may grant him permission which may remove  the disability.  In such  a case,  one  who  was ineligible at  one stage  becomes eligible at a later state. Other odd consequences may also be conceived of, although it is not  necessary to  figure them  out. The rationale of the Regulation  rather,   its  thrust,   is   disciplinary   not disqualificatory.      It  is   quite  conceivable,   if  the  legislature  so expresses itself  unequivocally, that  even in a law dealing with   disciplinary    control,   to    enforce    electoral disqualifications provided  the legislature  has competence. The present provision docs not go so far.      Even  assuming  that  literality  in  construction  has tenability in given circumstances, the doctrinal development in the  nature of  judicial interpretation takes us to other methods like  the teleological.  the textual, the contextual and the  functional. The  strictly literal  may rot often be logical if  the context  indicates  a  contrary  legislative intent. Courts  are not  victims of verbalism but are agents of the  functional success of legislation, given flexibility of meaning,  if the law will thereby hit the target intended by the  law-maker. Here  the emphasis  lies on the function, utility aim and purpose which the provision has to fulfil. A policy-oriented understanding  of a  legal  provision  which does not  do violence  to the  text  or  the  context  gains preference as  against a  narrow reading  of the words used. Indeed, this  approach is  a version  of the  plain  meaning rule,(2) and  has judicial  sanction. In  Hutton v. Phillips the Supreme Court of Delaware said:(1)           (Interpretation) involves  far more  than  picking      out dictionary definitions of words or expressions used      Consideration  of   the  context  and  the  setting  is

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    indispensable properly  to ascertain  a  meaning  .  In      saying  that   a  verbal   expression   is   plain   or      unambiguous, we  mean little  more  than  that  we  are      convinced that virtually anyone competent to (1)[1964] 1 All; R. 321, H.L. per Lord Dilhorne, L. C. at p.    323. (2)The Interpretation  and Application  of Statutes  by Reed    Dickerson p. 231. (3)45 Del .156,160, 70 A. 2nd IS, 17 (1949) . 1091      understand it,and  desiring fairly  and impartially  to      ascertain its  signification  would  attribute  to  the      expression in  its context a meaning such as the one we      derive rather  than any  other and  would consider  any      different meaning  by comparison  or  far  fetched,  or      unusual, or unlikely."      This perceptive  process leaves  us  in  no  doubt  the soundness of  the interpretation  which has  appealed to the Full Bench of the Punjab and  Haryana High Court.      There  is  a  broader  constitutional  principle  which supports this  semantic  attribution.  The  success  of  our democracy to ’tourniquet’ zenry indifferent to the political process  an   enemy  of   the  Republic’s  vitality.  Indeed absolutism thrives on inaction of the members of the polity. Therefore activist involvement in various aspects of publics affairs by  as many citizens as can be persuaded to interest themselves is  as sign  of the  health and  strength of  our democratic system. Local self government and adult franchise give constitutional  impetus to the citizens to take part in public administration.  Of course  this does  not mean  that where a plain conflict of interest between holding an office and talking  part in  in the political affairs of government exists, a  disqualification can  not be  imposed  in  public interest. The rule is participation the exception exclusion. Viewed from  that  angle  if  a  government  servant  or  an employee of  the LIC  participate in local administration of other election  it may  well be  that he may well be that he may forfeit his position as government servant or employment if dual  devotion is  destructive of  efficiency as employee and be  subject  to  disciplinary  action-  a  matter  which depends on  a given  milieu and potential public mischief. I am not resting my decision on this general consideration but mention this  persuasive factor  as broadly  supportive  our conclusion.      I hold  that the  impact of  Regulation 25(4) is not to impose ineligibility  on an LIC employee to be a member of a municipal corporation.  Its effect is not on the candidature but on the employment itself. In the present case, I am told that the appellant has since resigned his post. The ultimate result of  the reasoning  that appeals  to us  is  that  the judgement of  the  High  Court  must  be  reversed  and  the appellant restored  to the  poll verdict  and be regarded as validly returned member of the Nagpur City Corporation. 1092      In this  view, the  next appeal by the first respondent does not  fall to be considered although counsel has pressed his contention that the High Court was wrong. I do not think it necessary  to discuss  elaborately the legal issue except to state  that the  view taken  by the  Bombay High Court in pyare Saheb’s case (1) is correct. I am constrained to state that the draftsmanship of the provision is dubious and court in this decision has had to salvage sense out of alternative absurdity flowing  from fidelity to pedantry. It is clear in election law,that  a defeated  candidate cannot claim a seat through an  election  petition  merely  out  of  speculative

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possibilities of  success. The  reasoning of the Bombay High Court not  merely  accords  with  the  well  known  criteria incorporated in  the Representation  of the people Act, 1951 as well  as in the rulings thereon by this Court but also is in consonance with the election sense. It is true that there is no  common law  rule applicable in this area and election statutes have  to be  strictly construed  but that  does not doctrinally  drive   the  Court   to  surrender  to  bizarre verbalism  when   a  different   construction   may   inject reasonableness i n to the provision.      Section 428  of the  Corporation Act  aims at sense and when a  plurality of  contestants are  in the run other than the one  whose election  is set aside, predictability of the next highest  becomes a  misty venture.  The rule  in  s.428 contains the corrective in such situation s and the pregnant expression against  whose election  no cause or objection is found  gives   jurisdiction  to   the  Court   to  deny  the declaration by  the next  highest  and  to  direct  a  fresh election when  the constituency will speak. We concur in the reasoning of Masodkar, j in the said ruling.(2)      The reliance  of Sukh  Dev s case (3) by the counsel is inept. I  am satisfied  that the  view of  the High Court on this branch of the case is correct. I would therefore appeal No. 2406  of 1977 and dismiss appeal no 356 to 1978. parties will bear  their costs at this late when long litigation has kept in  suspended animation  the  constituency’s  right  to representation.      Tulzapurkar, J  -I have  had the benefit of reading the judgement of  my esteemed  brother  Krishna  Iyer  in  these appeals whereby he proposes to allow the returned candidates appeal (CA  No  2406  of  1977)  and  dismiss  the  election petitioner’s appeal (C.A.NO.356 (1)  Pyare  Saheb   Gulzar  Chhotumiya  Sawazi  v.  Dashrath      Wasudeo Doff & Others 1977 Mah. L. J. 246 (2)  1977 Mah. L. J. 246. (3)  Sukhdev Singh v. Bhagatram [1975] 3 S.C.R. 619=[1975] 1      S.C.C. 421 1093 of 1978)  but I  regret my inability to agree with him as in my view both the appeals deserve to be dismissed.      Judges  and  lawyers  always  clamour  for  legislative simplicity and  when,  as  is  the  case  here,  legislative simplicity is  writ large on the concerned provision and the text of  the provision is unambiguous and not susceptible to dual interpretation, it would not be permissible for a Court by  indulging   i    nuances  semantics  and  interpretative acrobatics,  to   reach  the  opposite  conclusion  than  is warranted by its plain text and make it plausible or justify it by spacious references to the object purpose or scheme of the legislation or in the name of judicial activism.      Election of Councillors to the Municipal Corporation of city of Nagpur was held on January 29 1975 whereat form ward no  34   Manohar  Samarth  (Appellant  in  Civil  Appeal  NO Marotrao Jadhav and three others (being respondent 1 to 4 in the said Civil Appeal) were the contesting candidates. After the polling was over Manohar Samarth (hereinafter called the returned candidate was declared successful he having secured 1428 votes as against 943 secured by Marotrao Jadhav, 849 by respondent no 2 572 by respondent No 3 and 748 by respondent No 4.  Marotrao  Jadhav  (hereinafter  referred  to  as  the election  petitioner   )  challenged  the  election  of  the returned candidate from the said ward by filling an election petition (being  Election petition  No 6 of 1975) before the District Judge,  Nagpur under  s. 428  of  ’the  Corporation Act.) principally  on the ground that the returned candidate

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being a  Development officer  and a salaried employee in the Life  Insurance  Corporation  (for  short  the  L.I.C.)  had neither sought  nor obtained  the Chairman  s permission for offering his  candidature and  as such was disqualified from standing at  the election under s. 15 (g) of the Corporation 1960. The  election was also challenged on ground of corrupt practices, communal propaganda and distribution of malicious and defamatory  hand bills  on  the  part  of  the  returned candidate. In  his written  statement the returned candidate refuted  all   the  grounds   on  which   his  election  was challenged. On  the evidence  and materials  produced by the parties the  learned Assistant  Judge. who  heard the matter came to  the conclusion  that he  returned candidate who was working as  a Development  officer in  the   L.I.C. was  its whole time  salaried employee and since he had contested the election without  seeking or obtaining the permission of the Chairman of  the L.I.C. he suffered a disqualification under s. 15(g) of the 10 1094 Corporation Act  read with  Regulation 25  (4) of the L.I.C. (staff) Regulations,  1960 which  vitiated his  election. On the other  ground of  challenge namely commission of corrupt practices  and   indulgence  in   communal  propaganda   and distribution  of  malicious  and  defamatory  hand  bills  a finding was recorded in favour of the returned candidate and against the  election petitioner. In the result by her order dated December  21 1976  ,the learned  Assistant  Judge  set aside the  election of  the returned candidate as being null and void  and acting  under  s.428  (2)  granted  a  further declaration that  since the  election petitioner had secured second highest  votes, he  shall  be  deemed  to  have  been elected as a Councillor from that ward.      The  decision   of  the  learned  Assistant  Judge  was challenged by  the  returned  candidate  by  filing  a  writ petition (Special  Civil Application  No. 1  of 1977) before the Nagpur  Bench of  the Bombay  High Court. The High Court confirmed the  view of  the learned Assistant Judge that the returned  candidate   suffered  a   disqualification   which vitiated his election but quashed the declaration granted in favour of  the election-petitioner on the ground that though he had  secured the next highest votes there was no material on record  from which  it could  be inferred  that  had  the disqualification of the returned candidate been known to the voters they  (the voters) would have definitely returned him as their  Councillor to  the Municipal Corporation from Ward No. 34.  The High  Court, therefore,  directed that  a fresh election to fill the vacancy be held in accordance with law. Civil Appeal  No. 2406/77 has been preferred by the returned candidate  challenging   the  High   Court’s  view   on  his disqualification while  Civil Appeal  No.  356/78  has  been filed by  the election  petitioner against  that part of the decision which has gone against him.      Dealing first  with Civil  Appeal No. 2406/1977 counsel for the  returned candidate (the appellant) pressed only one contention in  support of  the  appeal.  He  contended  that Regulation 25(4)  framed under s. 49(b) & (bb) of the L.I.C. Act, 1956,  upon proper  construction was 2 mere prohibition and  not   a  measure   laying  down  any  disqualification. According to  him the L.I.C. (Staff) Regulations 1960 merely laid down  the terms  and conditions of service of the staff of the  L.I.C. and  Regulation 25(4)  prescribes a  code  of conduct for  the staff, a breach whereof would entail any of the penalties  specified in  Regulation. 39 and since in the instant  case   the  returned   candidate  had  offered  his candidature without  seeking or  obtaining permission of the

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Chairman he  could be said to have committed a breach of one of the  terms or  conditions of  his service  for which  any penalty ranging 1095 from censure  to dismissal could be imposed upon him but the purpose A  of Regulation 25 (4) was not the enactment of any disqualification and  as such  the terms  of s.15(g)  of the Corporation Act  were not answered by the mere fact that the returned candidate  was an  employee of  the L.I.C.  and was subject to  Regulation 25(4).  Reference was  also  made  to Regulation 2  and provision  (iii) to Regulation 25(4) B, to lend support to the said contention. It was pointed out that Regulation No.  2 made  the Staff  Regulations applicable to every wholetime  salaried employee  of the  L.I.C. in  India "unless otherwise  provided by  the terms  of any  contract. agreement or  letter of appointment" which Clearly suggested that certain  whole-time salaried  employees of  the  L.I.C. whose terms  and conditions  of  service  were  other-  wise governed by  a contract,  agreement or letter of appointment would outside  the purview  of  these  Regulations  and  the prohibition contained in Regulation 25(4) would not apply to such employees;  similarly, it  was  pointed  out  that  the prohibition under  Regulation 25(4)  itself was not absolute inasmuch as  under proviso  (iii) thereto the employee could offer himself  as  a  candidate  for  election  to  a  local authority with  the  permission  of  the  Chairman.  It  was contended  that   these  aspects   also  showed   that   the prohibition under  Regulation 25(4)  did  not  amount  to  a disqualification. In  support of  the construction sought to be placed  on  Regulation  25(4)  counsel  relied  upon  two decisions one  of the  Calcutta High Court in Md. Sarfatulla Sarkar v.  Surja Kumar  Mondal and  ors.(l) and  the other a Full Bench  decision of  the Punjab  & Haryana High Court in Uttam Singh  v. S. Kripal Singh & Anr.(2) on the other hand, counsel  for   the  election-petitioner  (first  respondent) supported the  view of  the High Court that Regulation 25(4) read with  s. 15(g)  of the Corporation Act clearly amounted to a  disqualification or  ineligibility which  vitiated the election of  the returned  candidate.  He  relied  upon  the Madras High Court’s decision in G. Narayanaswamy Naidu v. C. Krishnamurthi & Anr.(3) and urged that the Calcutta decision was clearly  distinguishable and  as against  the Full Bench decision of  Punjab and  Haryana  High  Court  which  merely followed the  Calcutta decision  he pressed  the Madras High Court’s view  for  our  acceptance.  According  to  him  the aspects emerging  from Regulation  2 and  proviso  (iii)  to Regulation 25(4) had no relevance to the issue of the proper construction of  Regulation 25(4)  read with s. 15(g) of the Corporation Act.  He pointed  out that  cases falling within the two aspects emerging from Regulation 2 and proviso (iii) to Regulation 25(4) were   (l) A. T. R. 1935 Cal. 382.   (2) A. 1. R. 1976 P. & H. 116.   (3) r. L. R. 1958 Mad. 513. 1096 completely outside the prohibition, while the real issue was whether  or   not  a   case  properly   falling  within  the prohibition contained  in Regulation  25(4) would  entail  a disqualification or ineligibility.      Since the  question turns  upon the proper construction of Regulation  25(4) of  the L.I.C.  (Staff) Regulation 1960 read with  s. 15(g)  of  the  Corporation  Act  it  will  be desirable to  set out the material provisions. Section 15 of the Corporation  Act enumerates  in  cls.  (a)  to  (i)  the several’ disqualifications of candidates for election and S.

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15(g), which is by way of a residuary provision, runs thus:           "15. No  person shall  be eligible  for  election,      selection, or or appointment as a Councillor if he-           (g)  is under  the provisions  of any  law for the                time being  in  force,  ineligible  to  be  a                member of any local authority,                Provided that a disqualification under clause                (e), (f),  (g) or  (i) may  be removed  by an                order of  The Provincial  Government in  this                behalf." Regulation 25(4) together with proviso (iii) runs thus:           "25. Prohibition against participation in Politics      and standing for Elections:           (4)  No  employee   shall  canvass   or  otherwise                interfere or  use his influence in connection                with or  take part  in  an  election  to  any                legislature or local authority           Provided that-           (iii)     the Chairman  may permit  an employee to                offer himself  as a candidate for election to                a  local   authority  and   the  employee  so                permitted  shall   not  be   deemed  to  have                contravened   the   pro   visions   of   this                regulation." It may  be stated that Regulation 39 provides for imposition of several  penalties ranging from censure to dismissal upon an employee  if he  were to  commit a  breach of  any of the Staff Regulations.      The simple  question is  whether Regulation  25(4) read with s.  15(g) constitutes or amounts to an ineligibility or disqualification  for  a  whole-time  salaried  employee  of L.I.C. to  become a  member of any local authority. In other words, is  Regulation 25(4)  a provision of law for the time being in force that renders a whole-time salaried 1097 employee  of  L.I.C.  ineligible  to  be  a  member  of  the Municipal Corporation  within the meaning of s. 15(g) of the Corporation  Act?   Before  I   consider  this  question  of construction  certain  positions  which  were  not  disputed during the course of the arguments may be stated. It was not disputed that  at the relevant time, that is, at the time of the nomination  as well as the time of election the returned candidate was  a whole-time  salaried employee of the L.I.C. working as  its Development  officer  and  as  such  he  was subject to  the Staff  Regulations. It was also not disputed that under  proviso (iii)  to Regulation  ’25(4) he  did not obtain the  permission from  the Chairman  of the L.I.C. for the purpose  of offering  himself  as  a  candidate  at  the election of  the Municipal  Corporation. It  was further not disputed that  Regulation 25(4) being a statutory regulation framed under  s. 49(2) of the L.I.C. Act. 1956 had the force of law.  Further, though  before the High Court a contention was strenuously  urged that  the words "any lay for the time being in  force" occurring in s. 15(g) must in the law which ought to  have been in existence at the commencement date of the Corporation  Act, such  a  contention  was  not  pressed before us  and it  was  conceded  by  the  counsel  for  the returned  candidate   that  the  said  words  would  include Regulation 25(4)  as being  the law  for the  time being  in force. Indeed,  the concession, in my view, was rightly made by counsel for the returned candidate for the words "any law for the  time being  in force" occurring in s. 15(g) Must in the context  refer to the law in force at the relevant time, that is,  at the  time of  nomination or  election when  the question of  disqualification or  ineligibility  arises  for

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consideration. It  is in  light of these undisputed position that the  question set out above will have to be considered. The contention  is that  on proper  construction  Regulation 25(4) merely  creates a prohibition but does not amount to a disqualification  or   ineligibility   because   the   Staff Regulations were  and are  intended to  define the terms and conditions of  service of  the employees of the L.I.C. it is not possible  to accept  such construction for more than one reason. Tn  the first  place the  heading of  the Regulation clearly shows  that it  deals with  the topic and intends to provide  a   prohibition  against   standing  for  election. Secondly, cl.  (4) of  the  said  Regulation  in  plain  and express terms  provides, "No  employee shall...  r .... take part in an election to any local authority". In other words, by using  negative  language  it  puts  a  complete  embargo (subject to  proviso (iii)  upon every  employee from taking part in an election to any local authority. How else could a disqualification or  ineligibility be  worded ?  To say that Regulation  25(4)   merely  creates  a  prohibition  against standing for  election but does not create any ineligibility or disqualification  to stand  for an  election is merely to quibble at words. 14-409 SCI/79 1098 In  my  view,  there  is  no  distinction  between  a  legal prohibition against  a person  standing for election and the imposition of  an ineligibility or disqualification upon him so to  stand. It  is true  that the purpose of framing Staff Regulations was and is to define the terms and conditions of service of  the employees  of the  L.I.C. and that being the purpose it is bu. natural that a provision for imposition of penalties for  breach of such Regulations would also be made therein. In  fact the validity of such prohibition contained in the concerned Regulation rests upon the postulate that it prescribes a  code of  conduct for the employees and as such it would  be within the Regulation making power conferred on the L.I.C.  under s.  49 of  the L.I.C.  Act, 1956 but while prescribing a  code of conduct the Regulation simultaneously creates a disqualification or ineligibility for the employee to stand  for election  to any local authority. Moreover, to construe Regulation  25(4) as  merely prescribing  a code of conduct breach  whereof is  made punishable under Regulation 39 and not imposing a disqualification or ineligibility upon the employee  to stand  for election  to a  local  authority would amount  to rendering  a residuary  provision  like  s. 15(g) in  the Corporation Act otiose. In my view, therefore, on proper  construction Regulation  25(4) read with s. 15(g) of the Corporation Act imposes a disqualification or creates an ineligibility  for the  employee of  L.I.C. to  stand for election to any local authority.      Reliance on  the aspects emerging from Regulation 2 and proviso  S  (iii)  to  Regulation  25(4)  cannot  avail  the returned candidate  at all,  for it  is obvious  that  cases falling within those aspects are completely taken out of the prohibition contained  in Regulation  25(4) while  the  real issue  is   whether  a  case  properly  falling  within  the prohibition contained  in Regulation  25(4)  on  its  proper construction entails a disqualification/ineligibility or not ? In  fact, proviso  (iii) to Regulation 25(4) is similar to the proviso  to s.  15 of  the Corporation Act under which a disqualification under  cls. (e),  (f), (g)  or (i) could be removed by  an order  of the  Provincial Government  in that behalf and obviously when any one of those disqualifications is removed  by an  order of  the Provincial Government under the proviso  the case  would clearly  be outside  s. 15.  In

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other words,  the two  aspects (i)  that  certain  employees under Regulation  2 would  not  be  governed  by  the  Staff Regulations at  all and  would not, therefore, be hit by the prohibition and  (ii) that  upon permission  being  obtained from the Chairman under proviso, (iii) the employee would be outside the  prohibition have  no bearing on the question of proper construction of Regulation 25(4).      Turning to the decided cases, it may be observed that a construction similar  to the  one which  I  have  placed  on Regulation 25(4) of 1099 L.I.C. (Staff)  Regulations 1960  was placed  by the  Madras High Court  in a similar L.I.C. Staff Regulation No. 29 read with  Article   191(1)  (e)   of  the   Constitution  in  G. Narayanaswamy Naidu’s  case (supra)  and the  very  argument that Regulation  29 was  merely a rule of conduct prescribed for the  employees of  the L.I.C., the breach of which might result in  disciplinary action  being taken against them but it did  not render  the employees  disqualified For standing for election  was in  terms negatived.  At page  549 of  the report the relevant observations run thus:           "Though the  point is not free from difficulty, we      have reached  the conclusion  that this argument of the      respondents must  be rejected.  We see  no  distinction      between a  legal prohibition  against a person standing      for election,  and the imposition of a disqualification      on him  so to stand. It might be that the object of the      regulation was  to ensure  that the  employees  of  the      Corporation bestowed  undivided  attention  upon  their      duties as  such employees,  but this  does not militate      against    the     prohibition    operating     as    a      disqualification. If  a person  is disabled by a lawful      command  of   the  Legislature,   issued  directly   or      mediately, from standing for election, it is tantamount      to disqualifying  him from  so standing. We, therefore,      hold that  regulation 29  framed by  the Life Insurance      Corporation constituted a law which disqualification C.      Krishnamurthi (?)  from  standing  for  election  under      Article 191(1)(e) of the Constitution." Though the  observations have  been prefaced  by  the  words "though the  point is not free from difficulty", it seems to me clear  that those words were used out of deference to the arguments advanced  by learn  ed counsel for the respondents in that  case but  the Court  construed  the  Regulation  as imposing  a  disqualification  because  its  plain  language warranted it  without  getting  boggled  by  the  object  or purpose of  the staff  Regulation that had been framed under s. 49(2) of the L.I.C. Act 1956.      The Calcutta  decision in Md. Sarafatulla Sarkar’s case (supra) relied  on by the counsel for the returned candidate is clearly  distinguishable. It  was a  case dealing with an election to  Union Board  under  the  Bengal  Village  Self- Government Act (5 of 1919) and the question was whether Rule 23 of  the Government  Servants’ Conduct  ,Rules, 1926  made under Rule 48 of the Civil Services (Classification. 1100 Control and  Appeal) Rules  framed by the Secretary of State under s.  96B of  the  Government  of  India  Act,  1915-19, imposed a  disqualification or. a Government servant against offering himself  for an  election  to  one  of  the  bodies mentioned in  Rule 23  and the  Calcutta High Court took the view that  it did  not so  as to render his election invalid but that  the prohibition  contained therein was of a nature of  a  personal  bar  which  could  be  overstepped  by  the Government  servant   at  his   own  peril  as  regards  his

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membership of a service under the Government must be pointed out that  s. 10-A  of the Bengal Village Self-Government Act (S of 1919) which provided disqualifications ,for candidates from being  a member of Union Board did not contain either a specific disqualification  for a  Government servant  or any residuary provision  similar to  s. 15(g) of the Corporation Act, 1948  or Article  191(1)(e) of  the Constitution and it was in the absence of any such provision, either specific or residuary that the Calcutta High Court considered the impact of the  prohibition contained  in Rule  23 of the Government Servants’ Conduct  Rules. In fact, this aspect of the matter has been  emphasised by  the learned Chief Justice in para 5 of his judgment where he observed:           "The learned Single Judge considered it immaterial      that the holding of a post under the Government had not      mentioned as  one of the disqualifications for election      in s.  10A, Bengal  Village Self  Government Act,  1919      because in his view, the enumeration of disabilities in      that section was not exhaustive." In other  words, it  is clear  that had s. 10A of the Bengal Village Self  Government Act,  contained either  a  specific disqualification or  a residuary  provision of the type that is to  be found  in s. 15(g) of the Corporation Act, 1948 or Article 191(1)  (e) of the Constitution Rule 23, it appears, might have been differently construed. Construing Rule 23 by itself the learned Chief Justice came to the conclusion that the prohibition therein was directed at personal conduct and not at  right owned  by the Government servant concerned. In the instant  case Regulation  25(4) has  to be  read with s. 15(g) of  the  Corporation  Act,  1948.  The  learned  Chief Justice referred  to Rule 8 of the said Rules, which forbade a Gazetted  officer to  lend money  to any person possessing land within  the local  limits of  his authority and pointed out that even so if a Gazetted officer were to lend money to a person  of the specified category, none could say that the officer shall  not be  entitled to recover the amount of the loan. The test so suggested by the learned Chief Justice may hold good if Rule 8 sim- 1101 pliciter were to be construed. But, if in addition to Rule 8 there A  was simultaneously  in operation  a usury law which made certain loans irrecoverable including a loan prohibited by any law for the time being in force then obviously Rule 8 read with  such usury law would render the loan given by the Gazetted  officer   irrecoverable.  Similar   would  be  the position regarding  the two  Regulations No.  32 and  No. 33 referred to  by my  learned brother  Krishna Iyer, J. in his judgment.  Therefore,   the  Calcutta  decision  is  clearly distinguishable mainly  on the  ground that  Rule 23  of the Government Servants’  Conduct Rules  standing by itself came up for  construction before that Court in the absence of any specific disqualification or a general disqualification of a residuary nature  being enacted  in s.  10A  of  the  Bengal Village Self-Government,  Act, 1919. The Full Bench decision of the  Punjab &  Haryana High  Court, in  my  view,  merely follows the  reasoning  of  the  Calcutta  decision  without considering The  distinction indicated above and, therefore, it is  clear to me that the construction placed by that High Court on  Regulation 25(4) of the L.I.C. (Staff) Regulations (1960) read  with  Article  ]91(1)(e)  of  the  Constitution should be  rejected as an erroneous one and the construction placed by  the Madras  High Court  deserves to  be approved. Having regard  to the  above discussion  I am clearly of the view that the returned candidate suffered a disqualification or rather  was under an ineligibility under Regulation 25(4)

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read with  s; 15(g)  of  the  Corporation  Act,  1948  which vitiated  his   election;  if   he  were   keen  on   active participation in  the democratic  process it was open to him to do  so by  either resigning  his post  or  obtaining  the Chairman’s permission  before offering  his candidature  but his right as a citizen to keep up the Republic’s vitality by active participation  in the  political  process  cannot  be secured to  him by  a purpose-oriented  construction of  the relevant Regulation.  His appeal,  therefore, deserves to be dismissed.      Before parting  with this appeal I feel constrained, as a  part  of  my  duty,  to  give  vent  to  my  feelings  of discomfiture and distress over one thing which is exercising my mind  for a  considerable time  in  this  Court.  In  all humility I  would  like  to  point  out  that  prefaces  and exordial exercises,  perorations and  sermons as also theses and philosophies  (political or  social), whether couched in flowery language or language that needs simplification, have ordinarily no  proper place  in judicial  pronouncements. In any case,  day in  and day out indulgence in these in almost every judgment,  irrespective of  whether the subject or the context or  the occasion  demands it  or not,  serves little purpose, and  surely such  indulgence  becomes  indefensible when matters  are to  be disposed  of in terms of settlement arrived at between 1102 the parties  or for  the sake  of expounding  the law  while rejecting the  approach to  the Court  at the  threshold  on preliminary grounds  such as non-maintainability, laches and the like.  I am  conscious that  judicial activism  in  many cases is  the result  of legislative inactivity and the role of a  Judge as a lawmaker has been applauded but it has been criticised also-lauded  when it  is played within the common law tradition but criticised when it is carried to extremes. Lord Radcliffe  in his  address titled  ’The Lawyer  and His Times’ delivered  at the Sesquicentennial Convocation of the Harvard Law School observed thus:           "do not  believe that  it was  ever  an  important      discovery that  judges are  in some sense lawmakers. It      is much more important to analyse the relative truth of      an idea  so far  reaching; because, unless the analysis      is strict  and its  limitations observed, there is real      danger in  its elaboration.  We cannot  run the risk of      finding the  archetypal image  of the judge confused in      men’s minds  with  the  very  different  image  of  the      legislator." And  the risk  involved  is  the  possible      destruction of  the image  of the  judge as "objective,      impartial, erudite  and experienced declarer of the law      That is"  which "lies  deeper in  the consciousness  of      civilization  than   the   image   of   the   lawmaker,      propounding what  are  avowedly.  new  rules  of  human      conduct.. Personally I think that judges will serve the      public interest  better if  they Keep quiet about their      legislative function.  No doubt  they  will  discreetly      contribute to  changes in  the law,  because as  I have      said, they cannot do otherwise, even if they would. But      the judge who shows his hand, who advertises what he is      about, may  indeed show  that he  is a  strong  spirit,      unfettered by  the past;  but I doubt very much whether      he is  not doing more harm to the general confidence in      the law as a constant, safe in the hands of the judges,      than he  is doing  good to the law’s credit as a set of      rules nicely attuned to the sentiment of the day."      Turning to  the election-petitioner’s  appeal (C.A. No. 356 of  1978) I  am in  complete  agreement  with  the  view

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expressed by  the High Court that the declaration granted to him by  the learned  Assistant Judge  under s. 428(2) of the Corporation Act,  1948 should never have been granted. It is true that  the election-petitioner  secured the next highest number of  votes but that by itself would not entitle him to get a  declaration in  his favour that he be deemed to leave been duly  elected as  a Councillor  from Ward No. 34. I may point out 1103 that s.  428(2) is  not that  absolute as  was suggested  by counsel for  the election-petitioner, for, the relevant part of sub-s.  (2) provides that if the election of the returned candidate is  either declared  to be null and void or is set aside the  District Court  "shall direct that the candidate, if any,  in whose  favour next highest number of valid votes is recorded  after the  said person or after all the persons who have  returned at  the said  election and  against whose election no  cause or  objection is found shall be deemed to have been  elected." The  underlined words give jurisdiction to the  District  Court  to  deny  the  declaration  to  the candidate who has secured the next best votes The High Court has rightly  taken the  view that  there was  no material on record to  show how  the  voters,  who  had  voted  for  the returned candidate,  would have  cast their  votes had  they known about  the disqualification.  Therefore,  this  appeal also deserves to be dismissed.      In the result I propose that both the appeals should be dismissed with no order as to costs in each.      PATHAK, J.  Manohar Nathurao  Samrath was a Development officer in  the service of the Life Insurance corporation of India. His  employment was  governed by  the Life  Insurance Corporation of  India  (Staff)  Regulations,  1960  [shortly referred to  as the "(Staff) Regulations]" Desirous of being a Councillor  in the  Corporation of  the City of Nagpur (to which I  shall refer  as the "Nagpur Corporation"), he stood for election to that office, and was elected. But Regulation 25(4) of  the (Staff)  Regulations forbade  him from  taking part in  any election  to a  local authority.  He could have taken part in the election if he had sought and obtained the permission of the Chairman of the Life Insurance Corporation of India under the third proviso to Regulation 25(4). He did not  obtain  permission.  His  election  as  Councillor  was challenged by  an election petition filed by an unsuccessful candidate Marotrao.  It was said that Samrath was ineligible to stand  for election  because of section 15(g) of the City of Nagpur  corporation Act, 1948 (to be referred hereinafter as the  "Nagpur Corporation  Act" 5)  read  with  Regulation 25(4) of  the (Staff)  Regulations The  ground found  favour with  the   learned  Assistant  Judge  trying  the  election petition, and  she declared  the  election  void.  She  also granted a  declaration that  Marotrao was  the duly  elected candidate.      Samrath filed a writ petition in the Bombay High Court. The High  Court agreed with the learned Assistant Judge that Samrath was  not eligible for election and that his election was void.  But it  also set aside the declaration granted in favour of  Marotrao, and  directed  a  fresh  election.  The Judgment of  the High Court has been challenged by these two appeals, one by Samrath and the other by Marotrao. 1104      The central  question is  whether Samrath is ineligible for election  as a  Councillor  of  the  Nagpur  Corporation because of  Section 15(g) of the Nagpur Corporation Act read with Regulation 25(4) of the (Staff) Regulations. Section 15(g) of the Nagpur Corporation Act provides:

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    "15. No  person shall  be eligible  for election  as  a Councillor if he-                    ......................           (g) is,  under the  provisions of  any law for the      time being  in force,  ineligible to be a member of any      local authority:                    ......................      And Regulation 25(4) of the Staff Regulations declares:           "(25) (1) ..................                (2) ..................                (3)...................           (4)  No   employee  shall   canvass  or  otherwise      interfere or  use his  influence in  connection with or      take part  in an  election to  any legislature or local      authority.           Provided that           (i)...................           (ii)..................           (iii) the Chairman may permit an employee to offer      him self  as  a  candidate  for  election  to  a  local      authority and  the employee  so permitted  shall not be      deemed to  have  contravened  the  provisions  of  this      regulation".      The  Nagpur   Corporation  Act  contains  a  number  of provisions concerned  with holding  elections to  the Nagpur Corporation. Sections  9 to  22 deal  with various  matters, electoral   roll,    the   qualification    of   candidates, disqualification of  candidates, term  of office, filling up of casual  vacancies, and  so on. There is an entire Code of election law.  And Section 15 is one of its provisions. Now, section 15  of the  Nagpur Corporation Act declares a person ineligible for  election as  a  Councillor  on  any  one  of several grounds.  He may  be ineligible be cause he is not a citizen of India, that is to say, he lacks in point of legal status. He  may also  be ineligible  in  point  of  lack  of capacity   defined    by    reference    to    disqualifying circumstances, for  example, he  may have been adjudged by a competent court to be of unsound mind.‘ 1105      The disqualification  may be found, by nature of clause (g), under the provisions of any subsisting law. But the law must provide  that he  is ineligible  to be  a member of any local authority.  The law  must deal  with ineligibility for membership, and  in the  context of section 15, that must be ineligibility for  election. It must be a law concerned with elections. Clause  (g) is  a residual clause, not uncommonly found wherever  a provision  of an  election law  sets forth specified category  of disqualified or ineligible person and thereafter includes a residual clause leaving the definition of remaining  categories of two other laws. These other laws must also be election laws. An example is the Representation OF the  People  Act,  1951  which  is  relevant  to  Article 102(1)(e) and  Article 191(l)(e)  of the Constitution. Since Section 15  of the  Nagpur Corporation Act is a provision of the election  law, clause  (g) must be so construed that the law providing  for ineligibility  contemplated therein  must also be of the same nature, that is to say, election law.      Regulation 25(4)  of the  (Staff) Regulations  is not a law, dealing  with elections.  Chapter III  of  the  (Staff) Regulations, in  which Regulation  25 is  found, deals  with "conduct, discipline  and appeals" in regard to employees of the Life Insurance Corporation of India. A conspectus of the provisions contained in the Chapter, from sections 20 to SO, shows that  it deals  with nothing  else. This  is a body of provisions defining and controlling the conduct of employees

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in  order   to  ensure  efficiency  and  discipline  in  the Corporation,  and   providing  for  penalties  (Section  39) against   erring    employees.   Regulation   25   prohibits participation  in   politics  and  standing  for  elections. Regulation 25(4)  forbids an  employee not  only from taking part in  an election  to any legislature or local authority, but also  from canvassing or otherwise interfering, or using his influence,  in connection  with such  an election. If he does,  he   will  be  guilty  of  a  breach  of  discipline, punishable under  Regulation 39.  Regulation 25(4) is a norm of service  discipline. In substance, it is nothing else. Tn substance, it  is not a provision of election law. It cannot be construed as defined a ground of electoral ineligibility. All that  it says  to the  employee is:  "While you  may  be eligible for  election to  a legislature or local authority, by virtue  of your  legal status  or capacity, you shall not exercise that right if you wish to conform to the discipline of your service." The right to stand for election flows from the election  law. Regulation  25(4) does  not take  away or abrogate the right; it merely seeks to restrain the employee from exercising  it in  the interests of service discipline. If in  fact the  employee exercises  the right,  he  may  be punished under  Regulation 39  with  any  of  the  penalties visited on an employee-a penalty which takes its colour from the relevance of em 1106 ployment, and  has nothing  to do  with the election law. No penalty under  Chapter III  of the  (Staff) Regulations  can provide for  invalidating the  election of all employee to a legislature or a local authority. That would be a matter for the election  law. It is significant that when the restraint on standing  for election imposed by Regulation 25(4) has to be removed,  it is  by the  Chairman of  the Life  Insurance Corporation of  India under  the third proviso. When he does so, it  is  as  a  superior  in  the  hierarchy  of  service concerned with  service discipline.  He does not do so as an authority concerned with elections.      Therefore, in  my judgment,  Regulation  25(4)  of  the (Staff) Regulation  is not a law within the contemplation of section 15(g) of the Nagpur Corporation Act.      In reaching  that view,  I find  myself,  with  regret, unable to sub scribe to what has been observed by the Madras High Court in Narayanaswamy v. Krishnamurthi.(l) I would say that the  Calcutta High Court in Sarafatulla Sarkar v. Surja Kumar Mondal(’)  and the  Punjab and  Haryana High Court ill Uttam Singh  v. S. Kirpal Singh(3 appear to have come a more accurate conclusion.      Samrath must,  therefore, succeed  in his  appeal. That being so,  Marotrao must  fail in  his. Samrath  having been duly elected  to the  office of  Councillor, Marotrao cannot claim the same office for himself.      In the result, Civil Appeal No. 2406 of 1977 is allowed and Civil  Appeal No. 356 of 1978 is dismissed. The judgment of the  Bombay High  Court is  set aside  and  the  election petition  filed   by   Marotrao   is   dismissed.   In   the circumstances of  the case,  the  parties  will  bear  their costs.                            ORDER By majority      Civil Appeal  No. 2406 of 1977 is allowed. Civil Appeal No. 356/78  is dismissed unanimously. There will be no order as to costs in each of the appeals. V.D.K.                                   Ordered accordingly (1) I. L. R (1958) Mad. 5l3. (2) A. I. R. 1955 Cal. 382.

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(3) A. I. R. 1976 Pb. & Haryana. I76. 1107