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PETITIONER: MADHUKER G. E. PANKAKAR

       Vs.

RESPONDENT: JASWANT CHOBBILDAS RAJANI & ORS.

DATE OF JUDGMENT23/03/1976

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. UNTWALIA, N.L.

CITATION:  1976 AIR 2283            1976 SCR  (3) 832  1977 SCC  (1)  70  CITATOR INFO :  R          1985 SC 211  (18)  R          1992 SC1959  (13,22)

ACT:      Maharashtra  Municipalities   Act,  1965-S.   16(1)(g)- Holding  office   of   profit-Meaning   of-Private   medical practitioner on  the panel  of doctors under Employees State Insurance Scheme-If holding office of profit.

HEADNOTE:      To  provide   medical  facilities  to  the  workers  in factories  a  statutory  body  called  the  Employees  State Insurance Corporation  has been  established by  an  Act  of Parliament.  Under   the  Act  financial  resources  of  the Corporation  come   from  contributions   and  other  monies specified in  the Act  and an Employees State Insurance Fund had  been   created.  The  State  Government,  to  which  an obligation to  provide medical treatment for insured persons had been entrusted, may employ private medical practitioners who run  clinics as  doctors under the scheme. For inclusion of  a   name  in  the  medical  list  of  insurance  medical practitioners a  doctor has  to apply  to the Administrative Medical  Officer.   His  application  is  considered  by  an allocation  committee  which  recommends  his  name  to  the Director, Employees State Insurance Scheme and ultimately on approval by the Surgeon General, his name is included in the medical list.  The doctor  whose name  is  included  in  the medical list  has to  abide by  the  duties  and  conditions prescribed, is  under the  control of  the Medical  Services Committee and may even be removed or resign from the panel.      The appellant,  who was  a private medical practitioner and  whose  name  was  included  in  the  panel  of  doctors maintained by  the  Corporation  and  the  respondent,  were contestants in  an  election  for  the  presidentship  of  a municipal council. At the time of scrutiny of the nomination papers no objection was raised to the appellant’s nomination and in  the election  that ensued the appellant was declared elected. The  respondent  challenged  the  election  on  the ground that  the appellant  was disqualified  under s. 16(1) (g) of the Maharashtra Municipalities Act, 1965 which debars a person who holds an office of profit under Government from becoming a  councillor, because on the date of nomination he

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was holding  an office  of profit  under the  Government  by reason of his being a panel doctor under the Employees State Insurance Scheme.  Between the  date of  nomination and  the date of  election, however,  the appellant had resigned from the scheme.  The election  tribunal allowed the respondent’s petition and  declared the appellants’ election void. At the same time the respondent was declared as the President.      On appeal it was contended that a doctor on the medical list prepared  by the  Surgeon General of the State does not hold an  office of  profit within the meaning of s. 16(1)(g) of the Act.      Allowing the appeal ^      HELD: (1) The legislative end for disqualifying holders of office  of profit  under Government from seeking elective offices is  to avoid the conflict between duty and interest, to cut  out the  misuse of  official  position,  to  advance private benefit  and to  avert the likelihood of influencing Government to  promote personal  advantage. At the same time the Constitution  mandates the  State to undertake multiform public  welfare   and  socio-economic  activities  involving technical persons,  welfare workers  and  lay  people  on  a massive scale  so that  participatory government may prove a progressive  reality.  Therefore  experts  may  have  to  be invited  into   local  bodies,  legislatures  and  the  like political and administrative organs based on elections. [842 E-G]      (2),a) The  appellant suffered  no disqualification  on the score  of holding  an office of profit under Government. The legal  provisions under the Act and the rules make of an insurance medical practitioner a category different from one who runs  a private clinic and enters into contractual terms for treatment  of patients  sent by  Government, nor is he a full fledged government servant. 833 He is a tertium quid. [842-A]      (b) The  doctor under  the scheme  has obligations of a statutory savour.  He is  appointed on his application which is processed  by the  appropriate  body,  removed  if  found wanting obliged  to discharge  duties, make some reports and subject himself  to certain  discipline while  on the panel. [844 F-G]      (3)  (a)   For  holding   an  office  of  profit  under Government one  need not be in the service of Government and there need be no relationship of master and servant. One has to look at the substance, not the form. [851 D-E]      Gurugobinda [1964] 4 SCR 311 referred to.      (b) In  the present  case the  capitation  fee  is  the remuneration the  doctor is  paid and  this  came  not  from Government direct  but from  a complex of sources. The power to appoint,  direct and  remove, to regulate and discipline, may be  good indicia but not decisive. Government had partly direct and partly indirect control but the conclusion is not inevitable because  the doctor  is put  in the  list not  by Government directly  but through  a prescribed process where the Surgeon  General has a presiding place. How proximate or remote is the subjection of the doctor to the control of the Government to  bring him under Government is the true issue. The appellant was not a servant of Government, but a private practitioner, was  not appointed  directly by Government but by an  officer of  Government on  the  recommendation  of  a Committee,  was  paid  not  necessarily  out  of  Government revenue and  the control  over him  in the scheme was vested not in  Government but  in an administrative medical officer and director  whose position  is not  qua Government servant

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but creatures  of statutory  rules. The  ultimate  power  to remove him  did lie  in Government  even as  he enjoyed  the power to  withdraw from  the  panel.  The  mode  of  medical treatment was beyond Government’s control and the clinic was a private  one. The  insurance medical practitioner is not a free-lancer but  subject to  duties obligations, control and rates of  remuneration under  the  overall  supervision  and powers of Government. [851 F-G; 852 A-C]      Deorao v. Keshav, AIR 1958 Bom. 314 p. 318, para 12 and Manipopal v. State AIR 1970 Cal. 1, 5 para 20 referred to.      (c)  The   appellant  is   not  functioning  under  the Government  in   the  plenary  sense  implied  in  electoral disqualification.  The   ban  on  candidature  must  have  a substantial link  with the  end viz:  the possible misuse of position as  Insurance Medical  Practitioner  in  doing  his duties as Municipal President. [852 D]      (4)  (a)  The  first  step  is  to  enquire  whether  a permanent,  substantive  position  which  had  an  existence independent from  the person who filled it can be postulated in the case of insurance medical practitioner or is the post an ephemeral,  ad hoc,  provisional incumbency  created, not independently but  as a  List or  Panel distinguished from a thing that  survives. The  distinction, though  delicate, is real. An  office of  insurance medical  practitioner can  be conjured up  if it  exists even  where no doctor sits in the saddle and has duties attached to it qua office. The post of insurance medical  practitioner cannot  be equated  with the post of  a peon  or a  security gunman who too has duties to perform. Viewed  from  this  point  Kanta  and  Mahadeo  are reconcilable in  the former  an ad  hoc Assistant Government Pleader with  duties  and  remuneration  was  held  to  fall outside office  of profit in the latter a permanent panel of lawyers  maintained   by  the  Railway  Administration  with special duties  of a lasting nature constituted an office of profit. [852 G-H; 853 A]      (b) Had  there been  a  fixed  panel  of  doctors  with special duties  and discipline, a different complexion could be  discerned.   No  rigid   number  of   insurance  medical practitioners is  required by  the rules or otherwise. If an insurance medical practitioner withdraws there was no office sticking out  even thereafter  called  office  of  Insurance Medical  Practitioner.  The  critical  test  of  independent existence of  the position  irrespective of  the occupant is just not  satisfied. Likewise it is not possible to conclude that  these  doctors  though  subject  to  responsibilities, eligible  to  remuneration  and  liable  to  removal  cannot squarely fall under the expression holding under Government. Enveloped though the 834 insurance medical  officer is  by governmental influence and working within the official orbit it is not possible to hold that there is an office of profit held by him and that he is under Government. [853 C-E]      [Obiter: On  a close  study of ss. 21 and 44 and in the light of  the ruling  of this  court in  1953 SCR  1154  the election petition  under s.  21 is  all  inclusive  and  not under-inclusive, even if the invalidation of the election is on the  score of  the disqualification  under s.  16  it  is appropriate to  raise  that  point  under  s.  21  which  is comprehensive. All  grounds on  the  strength  of  which  an election can  be demolished  can be  raised in  a proceeding under s.  21. The  language of the provision is wide enough. It is  not correct  to say that s. 44 cuts back on the width of the  specific section  devoted to  calling in question an election of  a councillor (including the President). [854 D-

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F]      If the appellant’s election were invalid there was only a single  survivor left  in  the  field.  Naturally  in  any constituency where  there was only one valid nomination that nominee gets elected for want of a contest.]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 1270, 1315-1316 of 1975.      Appeals by  Special Leave  from the  Judgment and Order dated the  26-8-75 of  the Joint  Judge at Thana in Election Petitions Nos. 3 and 4 of 1974.      R. P.  Bhat (In  CAs. 1315-1316/75, K. R. Chaudhury, K. Rajendra Chaudhury  and Mrs. Veena Khanna for the Appellants in CAs. 1315-1316/75 and in C.A. 1270/75.      D.V. Patel  (In CAs.  1315-16/75,  V.  N.  Ganpule  for respondent No. 1 in all the appeals.      D. V.  Patel, P.  H. Parekh and (Miss) Manju Jetley for respondent No. 2 in CAs. 1315-1316/75.      M. N.  Shroff for  respondents 4  and 5  in CAs.  1315- 1316/75.      The Judgment of the Court was delivered by      KRISHNA IYER,  J. The  first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President  of the  Basscin Council (and the third raises virtually  the   same  point  but  refers  to  the  bhibendi Municipal Council) under the Maharashtra Municipalities Act, 1965 (the  Municipal Act,  for short)  has led  to long  and intricate  argument,  thanks  partly  to  the  haziness  and incongruity of the statutory provisions, and the hard job of harmonizing  and   harmonizing  and   illumining  which,  by interpretative effort,  has drained  us of  our faith in the blessings of simplicity, certainty and consistency in Indian codified law.  We  may  pardonably,  but  hopefully,  permit ourselves by  way of  constructive criticism  of perfunctory codification-a proliferating  source of  litigation-that  it was once thought,           "With a  Code, all  our troubles  and cares  would      magically  vanish.  The  law,  codified,  would  become      stable, predictable  and certain.  The  rules  of  law,      purified, would  be accessible  to, and  understood by,      not only  the legal  establishment of bench and bar but      the people as well." 835 Professor Grent E. Gilmore comments:           "The law,  codified, has  proved to  be  quite  as      unstable,   unpredictable,   and   uncertain-quite   as      mulishly unruly-as the common law, uncodified, had ever      been. The  rules of  law, purified,  have remained  the      exclusive preserve of the lawyers; the people are still      very much  in our toils and clutches as they ever were-      if not more so."           (Quoted by  H. R.  Hahlo in  Codifying the  Common      Law: Protracted  Gestation-Mod. Law. Rev. January 1975,      p. 23, 29-30).      Election law  has necessarily  to be  Statutory, but  a code can  be clear  in its  scheme and  must  be  such  that litigation-proof   elections   should   become   the   rule. Legislative nemesis,  in  the  shape  of  ambiguity  induced litigation is  a serious political misfortune in the area of elections where  lay  men  go  to  the  polls  and  people’s verdicts get  bogged down  in court  disputes, attended with desperate delays.  Some intelligent  care  at  the  drafting

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stage, some  vision of the whole scheme in the framers, will reduce resort  to legal  quarrels and  appellate spirals  so that the  time consumed in this Court in resolving conflicts of construction in comparatively less important legislations can be  spared for more substantial issues of general public importance. Civil Appeals Nos. 1315 and 1316 of 1975      One Shri  Rajani, a  candidate for Presidentship of the Bassein Municipal  Council and  Shri Samant, a voter in that municipal area,  made common  cause and  filed two  election petitions challenging  the  declaration  in  favour  of  the appellant, Dr.  Parulekar, who was the successful candidate, winning by a large plurality of votes.      The resume  of relevant  facts sufficient to appreciate the  contentions   may  straightway   be  set  out.  We  are confining, as  suggested by  counsel, to  the  twin  appeals relating to  Bassein since  the fate of Bhibandi must follow suit. Three candidates, including the two already mentioned, had filed  nomination papers  on October  21, 1974  for  the presidential election  of the Municipal Council. At the time of  the  scrutiny  which  took  place  two  days  later,  no objection was  raised to  the nomination of Dr. Parulekar by anyone and,  on the withdrawal of the third candidate within time, there  was a  straight fight between the appellant and the first  respondent. The  poll battle  which took place on 17-11-74 found  the appellant victor and he was so declared. The frustrated  first  respondent  and  his  supporter,  2nd respondent,  challenged  the  return  of  the  appellant  by separate election  petitions under  s. 21  of the  Municipal Act. The  sole ground  on which the petitioners were founded was  that   Dr.  Parulekar,   the  returned  candidate,  was disqualified under  s. 16(1)  (g) of  the Municipal Act, the lethal vice  alleged against  him being  that on the date of nomination he  was holding  an office  of profit  under  the Government, as  he was  then, admittedly, working as a panel doctor appointed under the Employees’ State Insurance Scheme (acronomically,  the   ESI  scheme),  a  beneficial  project contemplated by 836 the ESI Act, 1948. Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11,  1974. Thus,  before the  actual  polling  took place, but  after the nomination, he had ceased to be on the ESI  panel.   Another  circumstance   which  may  have  some significance in the overall assessment of the justice of the case, although  of marginal  consequence on  the law bearing upon the  issues debated  at the  bar, is that the appellant has been  a councillor  of the  aforesaid municipality since 1962 and  he has  also  been  a  doctor  on  the  ESI  panel throughout the  same span  of years and no one has chosen to raise the question of disqualification on this score up till the 1st  respondent fell  to his  rival  and  had  no  other tenable  ground  of  attack.  Necessity  is  the  mother  of invention and  the respondents,  aided  by  the  cute  legal ingenuity, may be, dug up the disqualification of ’office of profit’ and,  indeed, wholly  succeeded before  the Election Tribunal, the  Joint Judge  of Thana.  The Trial  Judge  not merely voided  the appellant’s election but declared the 1st respondent  President   since  he  was  the  sole  surviving candidate. This  order of  the Joint Judge has been assailed before us  in the  two appeals,  after securing  leave under Art. 136.      Three main  contentions have  been urged  before us  by Shri  Bhatt,  counsel  for  the  appellant,  which  we  will formulate and  deal with  one by one, although on the merits

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the most  formidable issue  is as to whether figuring in the medical list  under the  ESI scheme  amounts to  holding  an office of profit under Government. With a view to get a hang of the  major plea,  it is  necessary to study the scheme of the ESI  Act, even  as to get a satisfactory solution of the other  two   points  we  have  to  gather  the  ensemble  of provisions dealing  with disqualification  of candidates and the triple remedies provided in that behalf by the Municipal Act. The  discussion, to  be put  in proper  focus, requires formulation of  the submissions  of counsel, the foremost in importance and  intricacy being  whether  a  doctor  on  the Medical List  made by the Surgeon-General of the State holds an ’office  of profit’ within the meaning of s. 16(1) (g) of the Municipal  Act. Next  in the  order of  priority is  the question whether a petition for setting aside an election of President on  the ground  of disqualification  for  being  a councillor is  permissible under  s. 21 of the Municipal Act in view  of the  special provision  in s. 44 of the said Act and the rules regarding objections to nominations and appeal therefrom framed under that Act. The last question which, in a sense,  is interlinked  with the  earlier  one  is  as  to whether, assuming  the appellant  to  be  disqualified,  the first respondent  can be  declared the returned candidate or President, by-passing the necessity for a fresh poll-getting elected, as  it were,  through the  judicial constituency of discretionary power.      It is plain democratic sense that the electoral process should ordinarily  receive no  judicial  jolt  except  where pollution of  purity  or  contravention  of  legal  mandates invite the  court’s jurisdiction  to review  the result  and restore legality,  legitimacy and  respect  for  norms.  The frequency of  forensic overturing  of poll  verdicts injects instability into  the electoral  system,  kindles  hopes  in worsted candidates  and induces  postmortem  discoveries  of ’disqualifications’ as a desperate gamble in 837 the system  of fluctuating  litigative fortunes.  This is  a caveat against  overuse of  the court  as an  antidote for a poll defeat.  Of course,  where a  clear breach is made out, the guns  of law  shall go into action, and not retreat from the Rule of Law.      We will  proceed to  take a close-up of the three lines of attack  outlined above,  and  if  interference  with  the election must follow, it will; otherwise not.      The appellant  is a  doctor in  Maharashtra  where  the municipalities are organised, based on popular franchise, in terms of  the Municipal  Act. It  is a  heartening omen that this  local   body,  Bessein,   has  electorally   attracted professional   men,   not   mere   politicians,   into   its administrative circle;  for the appellant is a ’medic’ while respondent 1  is an  ’advocate’.  By  a  margin  of  over  a thousand votes  the former  won but  the  lawyer  rival  has invoked the  law to  undo the  election  on  the  ground  of disqualification based  on s. 16(1)(g) of the Municipal Act. The ban  is on  one who  holds an  office  of  profit  under government and  the public  policy behind  the provision  is obvious and  wholesome. We may read the relevant part of the section:           "16(1)(g): No  person shall be qualified to become      a  Councillor   whether  by   election,  co-option   or      nomination, who  is a subordinate officer or servant of      Government or any local authority or holds an office of      profit under Government or any local authority;"      The short  question then  is whether  the appellant  is qualified to  be a  Councillor (which  expression is rightly

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deemed to include President, vide s. 2(7). The disqualifying stain is stated to be that he held an office of profit under the State  Government. He did resign before the date of poll but after  the date of filing nomination. The nomination was vitiated and  subsequent resignation  did not  confer moksha and the  election thus  became  void.  Assuming  that  if  a candidature is  stigmatised by  a fatal  blot at the time of nomination the  election also  suffers  invalidity,  despite intervening removal  of the disqualification, did the doctor incur the  penalty by  being on the medical panel of the ESI scheme ?      The critical  question, apparently  simple and  limpid, has,  when   saturated  with   precedential  erudition   and lexicographic inundation,  become so  learnedly obscure  and conflictively turbid  that were  we governed  by a radically streamlined methodology  of legislation  and  liberality  of interpretation,   as    obtains   in    other   systems   of jurisprudence, much  of the  forensic work  could have  been obviated. This  is a  problem of  disturbing  social  import outside the  orbit of  these appeals with which alone we are currently engaged.      The magnificent  concept of  judicial review  is at its best  when  kept  within  the  beautiful  trellis  of  broad principles   of    public   policy   and   tested   by   the intentionability of  the statute.  With this  predisposition calculated to  make judge-power  functionally meaningful, we proceed to  fix  the  contextual  semantics  of  ’office  of profit’ as  a disqualificationary  factor  for  running  for municipal president. To begin with the 838 very beginning; what is an office ?-too simplistic to answer with case  that it  is derived from ’officium’ and bears the same sense.  Indeed, in  Latin and  English, this  word  has protean connotations  and judicial  choice reaches  the high point of frustration when the highest courts here and abroad have differed, dependent on varying situations, or statutory schemes, the  mischief  sought  to  be  suppressed  and  the surrounding social  realities. Then  we come  to the  second question: what  is an  ’office of  profit’? And, thirdly, to the question: when is an ’office of profit’ under Government ?      The context-purpose  signification  of  expressions  of varying  imports   leaves  room   for  judicial   selection. Illustratively, we  may refer  to two  decisions which throw some light but turn on the statutory setting of those cases. For instance,  in Ramachandran (AIR 1961 Madras 450, 458) it has been observed:           "..We find, in Bacon’s Abridgment at Vol. 6, p. 2,      the article  headed ’of  the nature  of an officer, and      the several kinds of officers’, commencing thus: ’It is      said that  the word  ’officium’ principally  implies  a      duty, and,  in the next place, the charge of such duty;      and that  it is  a rule  that where  one man hath to do      with another’s  affairs against  his will,  and without      his leave,  that this is an office, and he who is in it      is an  officer’. And the next paragraph goes on to say:      ’There  is  a  difference  between  an  office  and  an      employment, every office being an employment; but there      are  employments   which  do   not   come   under   the      denomination of  offices; such  as an agreement to make      hay, herd  a flock,  etc; which differ widely from that      of  steward  of  a  manor,  etc.  The  first  of  these      paragraphs implies  that an  officer is  one to whom is      delegated, by  the supreme  authority, some  portion of      its regulating and coercive powers, or who is appointed

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    to represent  the State  in its relations to individual      subjects. This  is the central idea; and applying it to      the clause which we have to construe, we think that the      word ’officer’  there means  some  person  employed  to      exercise, to some extent, and in certain circumstances,      a  delegated  function  of  Government.  He  is  either      himself armed  with some  authority  or  representative      character, or  his duties  are immediately auxiliary to      those of someone who is so armed." In Statesman v. Deb it is said:           "An office  means no more than a position to which      certain duties are attached. According to Earl Jowitt’s      Dictionary a  public office is one which entitles a man      to  act   in  the   affairs  of  others  without  their      appointment or permission." Both these  decisions may  perhaps be generally relevant but not precisely to the point.      We were  taken through  the panorama  of  case-law  and statute-law relating  to corporations, companies, autonomous bodies and  other creatures  of statute,  to bring  out  the content of ’office of profit under 839 government’ as  distinguished from offices under the control of  government.  Indeed,  even  the  Constitution  of  India disqualifies a  person for  being chosen  as Member,  if  he holds  any  office  of  profit  under  the  Government.  The question may well arise whether the ESI Corporation is under the control  of government  and can be equated with State so that  holding   any  office   thereunder  may   attract  the proscription of  s. 16(1)(g).  We  are  relieved  from  this industrious adventure  by the stand taken by counsel for the respondents, Shri  Patel, that  he stakes  this part  of his case on the sole ground that the appellant doctor is holding an office  of profit  under the  Maharashtra government,  as such. He  has no case therefore that the doctor is under the control of the ESI Corporation, an institution controlled by the Union  government and  hence is  disqualified. The short issue, therefore,  is whether,  under the  scheme of the ESI Act and  the rules framed thereunder, the appellant squarely falls within  the description  of holder of office of profit under the  State Government. This branch of enquiry takes us to an  analysis of  the provisions  bearing on the scheme of the medical  project under  the ESI  Act and the role of the State government  therein.  We  have  some  assistance  from rulings of  this Court  in resolving  the dispute and we may mention even  in advance  that a  seeming disharmony between two decisions  of this  Court  also  has  to  be  dissolved. Apparent  judicial   dissonance  may   give  place  to  real consonance, if  a dissection of the facts and discernment of the reasoning,  in the  light of which the decisions of this Court are rendered, is undertaken.      The ESI Act provides medical facilities for the working class, the  primary responsibility for executing the project being shouldered  by a statutory corporation created by s. 3 of the  Act and  the infra-struture  for  implementation  is organised by  the other provisions of Chapter II. A Standing Committee administers  the affairs  of  the  Corporation.  A Medical  Benefit  Council  is  constituted  by  the  Central Government to  help in  the discharge  of the  duties of the Corporation which involve expertise. The financial resources come from  contributions and  other moneys  specified in the Act itself  and an  Employees’ State Insurance Fund has been brought into  existence in  this  behalf.  The  Corporation, although has  a separate  legal personality,  is  under  the control of  the Central  Government. But  that  is  not  the

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pertinent issue before us.      The fatal  sin is  not that  the appellant  is a doctor under the  ESI Corporation but that he is holding an ’office of  profit’  under  the  State  Government.  We  may  ignore provisions relating  to the  powers of  the Corporation  and turn to  the role  of Government  vis a  vis private medical practitioners like  the appellant.  He is  not  a  full-time employee of  Government. On  the other hand, he runs his own clinic. Even  so, it  is argued  with force that s. 58 and a fasciculus of  rules framed by the State Government under s. 96, viewed as a mini-scheme, creates offices of profit which are filled by private doctors like the appellant.      The legal  spring-board is  s. 58 of the ESI Act and it is best to start off with reading that section:           "58.  Provision  of  medical  treatment  by  State      Government.-(1) The  State Government shall provide for      in sured persons and (where such benefit is extended to      their 840      families)  their  families  in  the  State,  reasonable      medical, surgical and obstetric treatment:           Provided that  the State  Government may, with the      approval  of   the  Corporation,  arrange  for  medical      treatment at  clinics of  medical practitioners on such      scale and  subject to  such terms and conditions as may      be agreed upon.           (2) Where the incidence..."      Two things  are self-evident.  An obligation to provide medical treatment  for insured  persons has  been saddled on the  State   Government.  Secondly,   that  Government   may discharge  this   responsibility  through  arrangement  with medical practitioners  who run clinics. The bare bones of s. 58 have  to be  clothed with  flesh before  a viable project comes to  life. This  is achieved by rules framed unders. 96 especially s. 96(1) (d) & (e). We may make it clear that the Corporation’s entry into the field is not inhibited by s. 58 as s.  59A underscores.  But what  is posed before us is the appellant’s status  as a holder of an office of profit under the Government  since he  is admittedly  a medical insurance officer within  the mechanism  set up  by the rules. Here we seek  light   from  the   several  rules  governing  medical insurance officers,  their empanelment, control, removal and allied matters. Some empathy with the plan of benefit by the State Government  is a  pre-requisite to an insight into the true nature  of a  medical insur ance officer in the context of an office of profit.      A broad idea can be gained from the key rules and so we sketch the outlines by reference to them, skipping the rest. The Chief  officer entrusted  with the working of the scheme is  the  Director  Rule  2(3A)  defines  ’Director’  as  the Director,  ESI   scheme,  Government  of  Maharashtra.  This officer, the kingpin of the whole programme, is an appointee of the  State Government. The content of medical benefits is covered by  r. 4  which  extends  the  medical  services  to insured persons and runs thus:           "4.  Provision  of  general  medical  services  to      insured persons by Insurance Medical Practitioners.-           (1)  The State Government shall arrange to provide                general medical  services to  insured persons                at    clinics     of    Insurance     Medical                Practitioners, who have undertaken to provide                general medical  services under  these  rules                and  in   accordance  with   their  terms  of                service.           (2)  An Insurance  Medical Practitioner  shall  be

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              deemed  to   be  appointed  as  an  Insurance                Medical  officer  for  the  purposes  of  the                Regulations." The  agency   for  rendering  medical  treatment  is  called Insurance  Medical   Practitioner.  Rule  2(6)  defines  the Insurance Medical  Practitioner as  one appointed as such to provide medical  benefits under  the Act and to perform such other functions  as  may  be  assigned  to  him.  Rule  2(2) authorizes the  appointment of  one or  more officers by the State Government  to control  the administration  of medical benefits and they are called ’administrative medical 841 officers’. These  officers shall, under r. 5, prepare a list of the  practitioners whose  applications have been approved by the  Allocation Committee (defined in r. 2(13). This list is  called   the   Medical   List   of   Insurance   Medical Practitioners. Before  a  doctor  can  be  included  in  the medical list,  he has to apply to the administrative medical officer in  the form  specified by  the State Government for the purpose.  The Insurance Medical Practitioners have to be responsible for rendering medical treatment and must conform to the  conditions specified.  A Medical  Service  Committee shall be  set  up  for  such  areas  as  may  be  considered appropriate  by   the  State   Government.  This   Committee investigates into  questions between  an  Insurance  Medical Practitioner  and   a  person  who  is  entitled  to  obtain treatment from  that practitioner, etc. On the report of the Medical Services  Committee relating  to the  conduct of  an Insurance Medical Practitioner, the Director may take action in one  or more  of the  ways specified  in r. 22(2). He may even remove  the Insurance  Medical Practitioner’s name from the medical list. There is an appeal by the aggrieved doctor to the  State Government.  Rule 24  relates to investigation into cases  of disputed  prescriptions, record  keeping  and certification relating  to Insurance  Medical Practitioners. The total  impact of  a detailed  study of the various rules framed by  the State Government bearing on Insurance Medical Practitioners is  that a doctor applies for getting into the Medical List,  agrees to  abide by the duties and conditions prescribed, is  under the  control of  the Medical  Services Committee and  may even be removed or resign from the panel. It is clear that he cannot extricate himself from government control by  the plea that he is a private doctor because his entry into  the Medical  List is  preceded by an application for inclusion  where he undertakes certain responsibilities. Such application  is considered  by an Application Committee which recommends  his name  to the Director, Employees State Insurance Scheme.  The Surgeon General ultimately grants the prayer  for   inclusion  in   the  Medical   List   on   the recommendations of the Allocation Committee. It is true that an insurance  medical practitioner  has the  right to resign and also to have the name of any insured person removed from his list.  He has  duties which  are prescribed by the rules vis a  vis the  patients. He  is required to furnish various pieces of  clinical information  and  to  do  other  medical duties as are set out in r. 10. The State Government has the power to remove the name of any individual Insurance Medical Practitioner from  the Medical  List even  as the  latter is entitled to  give notice to the Director, ESI Scheme that he desires to cease to be an Insurance Medical Practitioner and that his  name may  be removed  from the  Medical  List.  It follows that  although he  is a  private doctor,  running  a private clinic, he is also an Insurance Medical Practitioner subject  to  the  discipline,  directions,  obligations  and control of  the relevant  officers appointed  by  the  State

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Government in implementing the medical benefit scheme.      An insurance medical practitioner-the appellant is one- being a  medical practitioner  ’appointed as such to provide medical benefit  under the  Act and  to perform  such  other functions as  may be  assigned to  him,’ the question arises whether this is tantamount to holding an office. 842      The legal  provisions  under  the  Act  and  the  rules certainly  make  of  an  insurance  medical  practitioner  a category different  from one  who runs  a private clinic and enters into contractual terms for treatment of patients sent by Government,  nor is he a full-fledged government servant. He is  a tertium quid, as it were, but the finer question is whether this  category falls squarely within the description of ’office of profit under government’.      This very  question fell for decision before the Bombay and Calcutta  High Courts but the learned Judges, on a study of  the   identical  provisions,   arrived   at   antipodean conclusions. After  all, minds  differ as rivers differ and, assisted by  the flow  of logic  in these  and other rulings cited before  us, we  will  hopefully  reach  the  shore  of correct interpretation. The process of mentation, the office of words  like office  of profit’ which convey many meanings and  the   inputs  into  the  complex  matrix  of  statutory construction  make   what   looks   simple   to   the   lay, sophisticated for  the legal,  as the  case  on  hand  amply illustrates.      Back to  the  issue  of  ’office  of  profit’.  If  the position of  an Insurance Medical Officer is an ’office’, it actually yields  profit or  at least  probably may.  In this very case the appellant was making sizeable income by way of capitation fee  from the medical senice, rendered to insured employees. The crucial question then is whether this species of medical  officers are  holding ’office’  and that  ’under Government’. There  is a  haphazard heap  of case  law about these expressions  but they  strike different  notes and our job is  to orchestrate  them in  the setting of the statute. After all,  all law  is a  means to  an  end.  What  is  the legislative end here in disqualifying holders of ’offices of profit under  government’? Obviously,  to  avoid  a  confict between duty  and  interest,  to  cut  out,  the  misuse  of official position  to advance  private benefit  and to avert the likelihood of influencing government to promote personal advantage. So  this is the mischief to be suppressed. At the same time  we have  to bear  in mind  that our  Constitution mandates the State to undertake multiform public welfare and socio-economic  activities   involving  technical   persons, welfare workers,  and lay  people on a massive scale so that participatory government may prove a progressive reality. In such an  expanding situation,  can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not  to speak  of an army of other non-officials who are wanted in various fields, not as fulltime government senants but  as part-time  participants in people’s projects sponsored by  government? For  instance, if a National Legal Services Authority  funded largely  by the  State comes into being, a  large segment  of  the  legal  profession  may  be employed part-time  in the ennobling occupation of legal aid to the  poor. Doctors,  lawyers, engineers,  scientists  and other experts  may have  to be  invited into  local  bodies, legislatures and  like political  and administrative  organs based on  election if  these vital  limbs of  representative government  are   not  to   be  the   monopoly  of  populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of

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’office of profit’ to cast the net so wide that 843 all  our   citizens  with   specialities  and  know-how  are inhibited   from   entering   elected   organs   of   public administration and  offering semivoluntary services in para- official, statutory  or like  projects run  or  directed  by Government or  Corporation controlled  by the  State may  be detrimental to  democracy itself. Even athletes may hesitate to come  into Sports  Councils if  some fee  for services is paid and that proves their funeral if elected to a panchayat   !  A   balanced view,  even  if   it  involves  ’judicious irreverence’   to   vintage   precedents,   is   the   wiser desideratum.      The  general   interpretative  approach   hallowed   by Heydon’s case is expressed by the Bench in the Bombay ruling AIR 1958 Bom 314 Deorao v. Keshav thus:           "The  object   of  this  provision  is  to  secure      independence of  the members  of the Legislature and to      ensure that  the Legislature  does not contain persons,      who  have   received  favours   or  benefits  from  the      executive  and  who,  conse  quently,  being  under  an      obligation to  the executive,  might be amenable to its      influence.  Putting   it  differently,   the  provision      appears to  have been  made in  order to  eliminate  or      reduce the  risk of  conflict between  duty  and  self-      interest amongst  the members  of the Legislature. This      object must  always be  borne in  mind in  interpreting      Art. 191." While we  agree that  this consideration  is  important  for purity of  elective offices,  the need  for caution  against exaggerating its  importance to  scare away  men of skill in various fields  coming into  socially beneficial projects on part-time posting  or small  fee cannot be ignored. Informed by these  dual warnings,  we proceed  to assess the worth of the rival contentions.      Section 58  charges the  State Government with the duty to provide  medical facilities  to insured  employees.  This obligation may  be discharged  by arrangements  with private clinics. An  Insurance Medical  Officer is  not a government servant, but  he is  more than  a mere private doctor with a contractual obligation,  for he undertakes certain functions which are  regulated by  law viz., rules framed under s. 96. The question is not what he is but whether he is ’holding an office of profit’.      We have  already referred to the principal sections and rules, the  broad scheme and infra-structure and the rights, duties  and   degree  of   control  over  Insurance  Medical Practitioners exercised by the State directly or through its officers.  A   further  elaboration   is  possible,  but  is supererogatory. A  full study  of  the  Bench  decisions  of Bombay  and   Calcutta   led   to   diametrically   opposite conclusions thus  proving the wide judicial choice available depending on  the perspective, the import and the objections one accepts  from the  two enactments viz. the Municipal Act and the Insurance Act. It is a context-purpose quandary. 844      Chainani J.,  speaking for  the Court  set out the true approach thus:      P. 318, para 12.           "In our  opinion, the principal tests for deciding      whether an office is under the Government, are (1) what      authority has  the power  to make an appointment to the      office  concerned,   (2)  what   authority   can   take      disciplinary action and remove or dismiss the holder of      the office  and (3) by whom and from what source is his

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    remuneration paid ? Of these, the first two are, in our      opinion, more important than the third one."      Shri A.  N.  Ray,  J.  (as  he  then  was)  stated  his touchstone to be fourfold:           "The four  tests which  have been applied to these      cases   were stated  by Lord  Thankerton in the case of      Short v.  J. and  W. Henderson,  Limited,  reported  in      (1946) 174  L.T. 417.  These four  tests are  :-(a) the      master’s power  of selection  of his  servant, (b)  the      payment  of   wages  or  other  remuneration,  (c)  the      master’s right to control the method of doing the work,      and (d)  the master’s right of suspension or dismissal.      Lord Thankerton  referred to  the observation  of  Lord      Justice Clerk in the judgment under appeal in that case      that a  contract of  service may still exist if some of      these elements  are absent  altogether, or present only      in an  unusual form, and that the principal requirement      of contract  of service  is the  right of the master in      some reasonable  sense to  control the  method of doing      the work,  and that  this factor of superintendence and      control has  frequently been  treated as  critical  and      decisive of the legal quality of the relationship."(1)      A few  searching questions and implied answers may help a solution.  Is the appellant (or those of his ilk under the Scheme) an  employee of  government? Not more than any other expert consulted  by Government  for fee  paid? But  he  has obligations of  a statutory  savour He is ’appointed’ on his application which  is processed  by  the  appropriate  body, removed if  found wanting, obliged to discharge duties, make some reports and subject himself to certain discipline while on the panel. In the words of the Bombay decision :      Para 30, p. 323.           "In   the   form   of   application,   a   medical      practitioner, who  desires his  name to  be included in      the medical  list, has  also to state that he agrees to      abide by  the terms  of service.  In  other  words,  he      agrees to  join a  service, see  also Rule 22(d), which      uses the  words ’prejudicial  to the  efficiency of the      Service’. He is also subject to disciplinary action and      control. He  cannot also  resign or  give up  his  post      except by  giving three  months’ notice  under  Service      Rule 845      14. He  is also  required to  maintain records  and  to      submit returns.  His employment has, therefore, all the      attributes of a service. He must, therefore, be held to      be a  holder of  an office. The fact that he is allowed      private practice  will not  alter the  character of his      appointment."      The other  features pointing  in a  different direction are not  to be  overlooked either.  Ray J.  (as he then was) drew the lines, boldly, when he observed:      Para 29, p. 7.           "These medical  practitioners apply themselves for      inclusion in the medical list. Their payment is not out      of the  government revenue  but out  of a  special fund      consisting  of  contribution  made  by  the  employers.      Therefore such  a fund over which the government has no      legal title  and which  is vested  in  the  corporation      under the  combined effect  of sections 3 and 26 of the      Act to  which I  have already referred indicates beyond      any   doubt    that   the   remuneration   of   medical      practitioners is  paid not out of the public exchequer.      The contention  of Mr. Advocate General is correct that      medical practitioner  in the  present case gave nothing

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    more than  a voluntary undertaking to offer services in      lieu of  fees for professional service rendered and the      inclusion of  names in  the list and the preparation of      the list  did not have the effect of making the medical      practitioner an employee of the State."           x           x             x             x      Para 23, p. 6.           "Mr. Advocate  General,  in  my  opinion,  rightly      contended that  the medical  practitioners were  really      undertaking  and   offering   services   and   if   the      undertaking was  treated  as  a  contract  between  the      medical practitioner  and  the  persons  in  charge  of      preparation of  medical list,  namely, the State or the      Corporation it was a mere contract for services and not      a contract  of services. This proposition was extracted      from the  decision in  Gould v.  Minister  of  National      Insurance, reported  in (1951)  1 KB  731 and  also  in      (1951)  I   All.  E.R.   368.  That  case  was  on  the      construction  of   the  provisions   of  the   National      Insurance Act,  1946 and  the question  was whether the      appellant in  that case who was a music-hall artist and      who had entered into a written contract with the second      respondent acting on behalf of several companies, under      which he  undertook to  appear in  a variety ’act’ at a      theatre for  one week  from September  6, 1948  was  an      employed person  within the  meaning of  the  Act.  The      first respondent,  the Minister  of National Insurance,      had decided that during that week the appellant was not      an ’employed  person’ within the meaning of the Act. It      was held that the question would turn on the particular      facts of  each case and the authority of cases based on      different statutes  would not  always be of assistance.      It was said 846      that it  would be  easy in  some cases  to say that the      contract was  a contract  of service and in others that      it was  a contract  for services, but between these two      extremes there  was a  large number  of cases where the      line was much more difficult to draw."      Does the destiny of this case depend on murky semantics as to  what is  an ’office’-filling  columns of Law Lexicons and English  Dictionaries-or the  nub of the dispute turn on contract of  service versus  contract for  services? Alas  ! Could not  the law  be made  plainer in  this area  of mass- participatory process  called elections  ? Dickens  is still valid about  our modern  Legislations  unresponsive  to  the common man’s need of comprehensible law and unmindful of the court’s consequential  wrestling with  etherie differences ! ’The law is a ass-a idiot’ (Mr. Bumble in Oliver Twist).      The commensense  way,  rather  than  the  lexicographic street, is  the better  route to  the destination.  And that means we  have to  crystallise  our  notion  of  ’office  of profit’  and   then  test  the  fate  of  Insurance  Medical Practitioners. Profit  he does  derive, but  does he hold an office under  Government ?  Mere incumbancy  in office is no disqualification  even  if  some  sitting  fee  or  piffling honorarium is paid (vide: 1954 SC 653).      If a  lawyer (or  doctor in a system of National Health Insurance) is  on a  panel of  Government for  looking after cases or  other legal  work and  paid for  services rendered but, otherwise,  a freelance,  does he  hold an office under Government ?      Shivamurthy  Swami(1)   clears  the   ground  for   the discussion by going to the basics which determine what is an office of profit under Government. These tests are:

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         "(1) Whether the Government makes the appointment;           (2) Whether the Government has the right to remove or dismiss the holder;           (3) Whether the Government pays the remuneration;           (4)  What are  the functions  of the holder ? Does      he perform them for the Government; and           (5)  Does the Government exercise any control over      the performance of those functions ?"      We are  not faced  with the  plea of  office under  the Corporation and  thus under  the Central Government but only with the  disqualification of  holding  an  office  directly under the  State Government  via s.  58 read  with the rules framed under s. 96 of the Insurance Act. In this connection, a closer  link with  the present situation is established by Kanta(2) where  an Advocate, acting for Government under the directions of  the Government  pleader could be said to hold an office  of profit. Sikri J., (as he then was) adopted the classic definition 847 of ’office’  given by  Justice Rowlatt  in Great Eastern Rly Co.(1) as  appropriate even  in  an  electoral  context  and proceeded to  apply the  ratio to  the facts  of  the  case. Observed the learned Judge:           "We  cannot   visualise  an   office  coming  into      existence,  every  time  a  pleader  is  asked  by  the      Government to  appear in  a case  on  its  behalf.  The      notification of his name under rule 8B, does not amount      to the  creation of an ’office’. Some reliance was also      placed on  rule 4  of Order  27 C.P.C.  which  provides      that:           "The Government  pleader in any Court shall be the      agent of  the Government  for the  purpose of receiving      processes against the Government issued by such Court."           This rule  would not  apply to  the facts  of this      case because the appellant was appointed only to assist      the Government  Advocate in a particular case. Assuming      it applies,  it only  means that the processes could be      served on the appellant, but processes can be served on      an Advocate  under Rule  2 of  Order XLV of the Supreme      Court Rules,  1966. This does not mean that an Advocate      on Record would hold an office under the client.           The  learned   Counsel  for  the  respondent,  Mr.      Chagla, urges that we should keep in view the fact that      the object  underlying Art.  191 of the Constitution is      to preserve  purity  of  public  life  and  to  prevent      conflict  of   duty   with   interest   and   give   an      interpretation which  will carry out this object. It is      not necessary  to give  a  wide  meaning  to  the  word      ’office’ because  if Parliament  thinks  that  a  legal      practitioner who  is being  paid fees  in a case by the      Government should  not be  qualified to  stand  for  an      election as  a Member  of Legislative  Assembly, it can      make  that   provision  under  Art.  191(1)(e)  of  the      Constitution. The case of Sakhawat Ali. v. The State of      Orissa(2) provides  an instance  where the  Legislature      provided that  a paid  legal  practitioner  should  not      stand in the municipal elections." This takes us to Sakhawat Ali(2) and to Mahadeo(3) which too afford some luciferous parallels.      In Sakhawat  Ali (supra)  the question  arose  about  a legal practitioner  employed on  behalf  of  a  Municipality standing as candidate for election to the Municipal Council. Stress was  laid on  the purity  of public  life, an  object which would  be thwarted  if  there  arose  a  situation  of conflict between  interest and  duty. A  lawyer paid  by the

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municipality becoming  a councillor  is a  situation fraught with perils  to purity  in  public  life.  This  factor  was emphasized by  an express  provision in the Municipal Act in that case  disqualifying such  paid legal practitioners from becoming candidates. Had such a step been taken in our case, the law  would have been at least clear, whether it was wise or no. 848      In Mahadeo’s  Case(1) a  fine  distinction  from  Kanta (supra) arose.  There also  the disqualification of a lawyer on  account  of  holding  an  office  of  profit  under  the government arose.  After quoting  Lord Wright in Mcmillan v. Guest(2), trying  to define ’office’, the Court proceeded to consider whether  a lawyer  who accepted  a position  on the panel of Railway pleaders for conducting suits filed against the Union  of India  on the  terms  and  conditions  therein mentioned, was  holding an  office of  profit. Holding  that such an appointment on the panel of lawyers for the Union of India was an office of profit, the Court observed:           "If by  ’office’ is  meant the  right and  duty to      exercise an  employment or  a position to which certain      duties are  attached as  obsered by  this Court,  it is      difficult to see why the engagement of the appellant in      this case  under the  letter of  February 6, 1962 would      not amount to the appellant’s holding an office. By the      said letter  he accepted  certain obligations  and  was      required to  discharge certain  duties. He was not free      to take  a brief  against the  Railway  Administration.      Whether or  not the  Railway Administration  thought it      proper to  entrust any  particular case  or  litigation      pending in  the court  to him, it was his duty to watch      all cases  coming up  for hearing  against the  Railway      Administration and  to give  timely intimation  of  the      same  to   the   office   of   the   Chief   Commercial      Superintendent. Even  if no  instructions regarding any      particular case  were given  to him, he was expected to      appear in  court and  obtain an  adjournment. In effect      this cast  a duty  on him to appear in court and obtain      an adjournment  so as  to protect  the interests of the      Railway. The duty or obligation was a continuing one so      long as  the railway  did not think it proper to remove      his name  from the  panel of Railway lawyers or so long      as he  did not  intimate to  the Railway Administration      that he  desired to  be free  from  his  obligation  to      render service  to the  Railway. In  the absence of the      above he  was bound  by the  terms of the engagement to      watch the interests of the Railway Administration, give      them timely  intimation of  cases in  which  they  were      involved  and  on  his  own  initiative  apply  for  an      adjournment in  proceedings in  which the  Railway  had      made no arrangement for representation. It is true that      he would get a sum of money only if he appeared but the      possibility that  the Railway might not engage him is a      matter of  no moment.  An office of profit really means      an office  in respect  of which a profit may accrue. It      is  not   necessary  that  it  should  be  possible  to      predicate of  a holder  of an  office of profit that he      was  bound   to  get   a  certain   amount  of   profit      irrespective of the duties discharged by him."      The   next   case   of   considerable   importance   is Gurugobinda(3) which  related to  a chartered  accountant, a partner of  a firm  of auditors  of two companies which were owned by the Union Government 849 and the  State Government.  Disqualification for  holding an

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office of  profit, again,  in this circumstance, was pressed before the Court and S. K. Das, Acg. C. J., speaking for the Court observed:           "We think  that this  contention  is  correct.  We      agree with the High Court that for holding an office of      profit under  the Government,  one need  not be  in the      service of Government and there need be no relationship      of master and servant between them."                                                     (P. 319)           "In Maulana  Abdul  Shakur  v.  Rikhab  Chand  and      another (1958 SCR 387) the appellant was the manager of      a school  run by a committee of management formed under      the provisions of the Durgah Khwaja Saheb Act, 1955. He      was appointed  by the  administrator of  the Durgah and      was paid  Rs. 100 per month. The question arose whether      he was  disqualified  to  be  chosen  as  a  member  of      Parliament  in   view  of   Art.  102(1)   (a)  of  the      Constitution. It  was contended  for the  respondent in      that case  that under  ss. 5 and 9 of the Durgah Khwaja      Saheb Act,  1955 the  Government of India had the power      of appointment  and removal of members of the committee      of  management   as  also  the  power  to  appoint  the      administrator  in   consultation  with  the  committee;      therefore the  appellant  was  under  the  control  and      supervision of the Government and that therefore he was      holding an  office of  profit under  the Government  of      India. This  contention was  repelled  and  this  court      pointed out  the distinction  between the  holder of an      office of  profit under some other authority subject to      the control of Government."                                                 (p. 319-320)           "It has to be noted that in Maulana Abdul Shakur’s      case the  appointment of the appellant in that case was      not made  by the  Government nor  was he  liable to  be      dismissed by  the Government.  The appointment was made      by the  administrator of  a committee and he was liable      to be dismissed by the same body."                                                     (p. 320)           "It is  clear from the aforesaid observations that      in Maulana  Abdul Shakur’s  case the factors which were      held  to   be  decisive  were  (a)  the  power  of  the      Government to  appoint a  person to an office of profit      or to  continue  him  in  that  office  or  revoke  his      appointment at  their discretion,  and (b) payment from      out of  Government revenues,  though it was pointed out      that  payment  from  a  source  other  than  Government      revenues was  not always  decisive factor.  In the case      before us  the appointment of the appellant as also his      continuance in  office rests solely with the Government      of  India   in  respect   of  the  two  companies.  His      remuneration is also fixed by Government. We assume for      the purpose  of this  appeal that  they are  Government      companies within the meaning of 850      the Indian  Companies Act,  1956 and 100% of the shares      are held  by the Government. We must also remember that      in the  performance of  his functions  the appellant is      controlled by  the Comptroller  and Auditor-General who      is himself  undoubtedly holder  of an  office of profit      under the  Government, though  there are  safeguards in      the  Constitution  as  to  his  tenure  of  office  and      removability therefrom." (p. 321)           "Therefore if we look at the matter from the point      of view of substance rather than of form, it appears to      us that  the appellant  as the  holder of  an office of

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    profit in  the two  Government Companies,  the Durgapur      Projects Ltd.,  and the Hindustan Steel Ltd., is really      under the  Government of  India; he is appointed by the      Government of India, he is removable from office by the      Government of  India,  he  perfoms  functions  for  two      Government  companies   under  the   control   of   the      Comptroller  and   Auditor  General   who  himself   is      appointed by  the President  and  whose  administrative      powers  may   be  controlled   by  rules  made  by  the      President."                                                     (p. 322)           "In Ramappa  v. Sangappa  the question arose as to      whether the  holder of  a  village  office  who  has  a      hereditary right  to it  is disqualified under Art. 191      of the  Constitution, which  is the counterpart of Art.      102,  in   the  matter   of  membership  of  the  State      Legislature. It was observed therein.           "The  Government  makes  the  appointment  to  the      office though  it may  be that it has under the statute      no option  but to  appoint the heir to the office if he      has fulfilled  the statutory  requirements. The  office      is, therefore, held by reason of the appointment by the      Government and not simply because of a hereditary right      to it.  The fact  that the  Government cannot refuse to      make the appointment does not alter the situation."           There again,  the decisive test was held to be the      test of  appointment. In  view of  these  decisions  we      cannot accede  to the  submission of Mr. Chaudhury that      the several  factors which enter into the determination      of  this   question-the   appointing   authority,   the      authority  vested   with   power   to   terminate   the      appointment,  the   authority  which   determines   the      remuneration, the source from which the remuneration is      paid, and  the authority  vested with  power to control      the manner  in which  the  duties  of  the  office  are      discharged and  to give  directions in that behalf-must      all  co-exist  and  each  must  show  subordination  to      Government and  that it must necessarily follow that if      one of  the elements  is absent,  the test  of a person      holding an  office  under  the  Government.  Centre  or      State, is  not satisfied. The cases we have referred to      specifically point  out that  the circumstance that the      source 851      from which  the remuneration is paid is not from public      revenue  is   a  neutral  factor-not  decisive  of  the      question. As  we have  said earlier  whether the stress      will be  laid on one factor or the other will depend on      the facts  of each case. However, we have no hesitation      in saying that where the several elements, the power to      appoint, the power to dismiss, the power to control and      give directions as to the manner in which the duties of      the office  are to  be  performed,  and  the  power  to      determine the  question of remuneration are all present      in a given case, then the officer in question holds the      office under the authority so empowered." (p. 322-323)      The core  question that  comes to  the  fore  from  the survey of  the panorama  of case  law is  as to  when we can designate a  person gainfully  engaged in some work having a nexus with Government as the holder of an ’office of profit’ under Government  in the  setting  of  disqualification  for candidature for  municipal or like elections. The holding of an office denotes an office and connotes its holder and this duality  implies   the  existence   of  the   office  as  an independent continuity  and an  incumbent  thereof  for  the

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nonce.      Certain aspects appear to be elementary. For holding an office of  profit under  Government one  need not  be in the service of  Government and  there need be no relationship of master and  servant (Gurugobinda  supra). Similarly, we have to look  at the  substance, not  the form.  Thirdly, all the several factors  stressed by this Court, as determinative of the holding  of an  ’office’ under  Government, need  not be conjointly present.  The  critical  circumstances,  not  the total factors, prove decisive. A practical view not pedantic basket of  tests, should  guide in  arriving at  a  sensible conclusion.      In  the   present  case,  can  we  say  that  the  post (forgetting the finer issue of office, as distinguished from post) is  under the State Government ? The capitation fee is the remuneration  the doctor is paid and this comes not from Government  direct  but  from  a  complex  of  sources.  But Gurugobinda and  Gurushantappa(1) took the view that payment of remuneration not from public revenue is a neutral factor. Is the  degree of control by Government decisive ? The power to appoint,  direct and  remove, to regulate and discipline, may be  good indicia  but not  decisive, as  pointed out  in Gurushantappa. In  our case,  Government does  have,  partly direct and  partly indirect,  control but  the conclusion is not inevitable  because the doctor is put in the List not by Government directly  but through  a prescribed process where the Surgeon  General has a presiding place. How proximate or remote is  the subjection  of the  doctor to  the control of Government to  bring him under Government is the true issue. Gurushantappa has  highlighted this  facet of  the question. Indirect control,  though real,  is insufficient, flows from the ratio  of Abdul  Shakur(2). The appellant, as elaborated by Ray  J (as  he then  was) in the Calcutta case, was not a servant of  government but  a private  practitioner, was not appointed directly  by Government,  but  by  an  officer  of government on  the recommendation  of a  Committee, was paid not necessarily 852 out of  Government revenue  and the  control over him in the scheme was vested not in Government but in an Administrative Medical Officer  and Director  whose  position  is  not  qua Government servant  but creatures  of statutory  rules.  The ultimate power  to remove  him did lie in Government even as he enjoyed the power to withdraw from the panel. The mode of medical treatment  was beyond  Government’s control  and the clinic was  a private  one. In  sum, it is fair to hold that the Insurance  Medical Practitioner is not a free-lancer but subject  to   duties,  obligations,  control  and  rates  of remuneration under  the overall  supervision and  powers  of Government. While  the verdict on being under the Government is a  perilous exercise in Judicial brinkmanship, especially where the  pros and  cons are evenly balanced, the ruling in Kanta Kathuria  which binds us and the recondite possibility of conflict  of duty  and interest for a Municipal President who  is   an  Insurance   Medical  Practitioner   under   an arrangement with  Government induce  us to  hold that though the line is fine, the appellant is not functioning under the Government  in   the  plenary  sense  implied  in  electoral disqualification. After  all, the  means, i.e.,  the ban  on candidature, must have a substantial link with the end viz., the  possible   misuse  of  position  as  Insurance  Medical Practitioner in doing his duties as Municipal President.      This question  is interlaced,  in the  present context, with the  concept  of  ’office  of  profit’.  And  the  twin problems baffle  easy solution  since an  apparent-not real-

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conflict of  reasoning exists  between Mahadeo (decided by a Bench of  two Judges) and Kanta (by a Bench of five Judges). Of course  Sikri, J.  (as he  then was) thought that Mahadeo ’in no way militates against the view’ which appealed to the majority   in    Kanta.   Judicial    technology   sometimes distinguishes, sometimes  demolishes earlier  decisions; the art is  fine and  its use skilful. Both the cases dealt with advocates and we have referred to them in the earlier resume of precedents.  Even so,  a closer look will disclose why we follow the  larger Bench  (as we are bound to, even if there is  a   plain  conflict  between  the  two  cases).  Justice Rowlatt’s locus classicus in Great Western Ry. Co. (followed by this  Court in  many  cases)  helps  us  steer  clear  of logomachy about  ’officio’ especially  since the New English Dictionary fills four columns ! Rowlatt J. riveted attention on ’a subsisting, permanent, substantive position, which had an existence  independent from  the person  who  filled  it’ which went  on and  was filled  in succession  by successive holders’. So,  the first  step  is  to  enquire  whether  ’a permanent, substantive  position,  which  had  an  existence independent from the person who filled it’ can be postulated in  the  case  of  an  Insurance  Medical  Practitioner.  By contrast is  the post  an  ephemeral,  ad  hoc,  provisional incumbency created, not independently but as a List or Panel clastic and  expiring or  expanding,  distinguished  from  a thing that  survives even  when no person had been appointed for the time being. ’Thin partitions do their bounds divide’ we agree,  but the distinction, though delicate, is real. An office of  Insurance Medical Practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached  to it  qua office. We cannot equate it with the post of a peon or security gunmen who too has duties 853 to perform  or a  workshop  where  Government  vehicles  are repaired, or  a  milk  vendor  from  an  approved  list  who supplies milk  to government  hospitals. A  panel of lawyers for Legal  Aid to the Poor or a body of doctors enlisted for emergency service  in  an  epidemic  outbreak  charged  with responsibilities and  paid by Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadeo fit  into a  legal scheme.  In the former, an ad hoc Assistant Government  Pleader with  duties and  remuneration was held to fall outside ’office of profit’. It was a casual engagement, not  exalted to  a permanent  position, occupied pro-tempore by  A or  B. In  Mahadeo, a  permanent panel  of lawyers ’maintained  by  the  Railway  Administration’  with special duties  of a  lasting nature constituted the offices of profit-more  like standing  counsel. If, in our case, had there been  a fixed panel of doctors with special duties and discipline, regardless  of doctors  being there  to fill the positions or  no, a different complexion could be discerned- as in  the case  of specified number of Government pleaders, public prosecutors  and the like, the offices surviving even if they  remain unfilled. On the other hand, no rigid number of Insurance  Medical Practitioners is required by the rules or  otherwise.   If  an   Insurance   Medical   Practitioner withdraws, there  is no  office sticking out even thereafter called  office   of  Insurance   Medical  Practitioner.  The critical test  of  independent  existence  of  the  position irrespective  of   the  occupant   is  just  not  satisfied. Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable  to removal-all with a governmental savour-cannot squarely  fall   under   the   expression   ’Holding   under Government’. Enveloped, though the Insurance Medical Officer

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is, by  governmental influence,  and working,  though he is, within an  official orbit,  we are unable to hold that there is an  ’office of  profit’ held by him and that he is ’under government’. This  conclusion avoids the evil of public duty conflicting with  private interest and accommodation of more technical persons  in semi-voluntary  social projects  in an era of expanding cosmos of State activity.      We hold,  not without  hesitation, that  the  appellant suffered no  disqualification on the score of holding office of profit  under government.  Is it  not a sad reflection on legislative  heedlessness   that,  notwithstanding  forensic controversy for  a long  period  not  a  little  legislative finger had  been  moved  to  clarify  the  law  and  preempt litigation.  Judicial  pessimism  persuades  us  not  to  be hopeful  even   after  this  judgment.  The  Court  and  the Legislature have  no medium of inter-communication under our system. Its  desirability was emphasised by Justice Cardozo, way back  in 1921  (when he addressed the Association of the Bar of  the City  of New  York and  proposed  an  agency  to mediate  between   the  courts   and  the  legislature).  In characteristically beautiful prose he said:           "The Courts are not helped as they could and ought      to be  in the  adaptation of law to justice. The reason      they are  not helped  in because  there is no one whose      business it is to give warning that help is needed.. We      must have  a courier  who will  carry  the  tidings  of      distress.. Today 854      courts  and   legislature  work   in   separation   and      aloofness. The  penalty is  paid  both  in  the  wasted      effort of  production and in the lowered quality of the      product. On  the one  side, the  judges, left  to fight      against anachronism  and injustice  by the  methods  of      judge-made  law,  are  distracted  by  the  conflicting      promptings of  justice and  logic, of  consistency  and      mercy, and  the output of their labors bears the tokens      of the  strain. On  the other  side,  the  legislature,      informed only  casually and intermittently of the needs      and  problems   of  the   courts,  without   expert  or      responsible or disinterested or systematic advice as to      the working  of one rule or another, patches the fabric      here and  there, and  mars often  when it  would  mend.      Legislature and  courts move  on in  proud  and  silent      isolation. Some agency must be found to mediate between      them."      In the  light of  the conclusion  we have  reached, the other  two   grounds  raised  may  not  strictly  arise  for consideration. However, since arguments have been addressed, we had  better briefly  express our  view. It  was argued by Shri Bhatt  that when  the ground  for invalidation  of  the election is  a disqualification  for membership,  the proper procedure is  to invoke  s. 44  and  not  to  resort  to  an election petition  under s.  21. On a close study of the two provisions in  the light of the ruling of this Court in 1953 SCR 1154,  we are  satisfied that an election petition under s. 21 is all inclusive and not under inclusive. What we mean is that  even if  the invalidation of the election is on the score of  the disqualification under s. 16 it is appropriate to raise  that point under s. 21 which is comprehensive. All grounds  on  the  strength  of  which  an  election  can  be demolished can  be raised  in a  proceeding under s. 21. The language  of  the  provision  is  wide  enough.  Maybe  that supervening disqualifications  after a person is elected may attract s.  44, but  we are  unable to agree that the latter provision cuts  back on  the width  of the  specific section

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devoted to  calling in  question an election of a councillor (including the  President). We agree in this regard with the Full Bench  decision in  Dattatraya(1). Likewise is the fate of the feeble argument that because there is a provision for challenging the  nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it  is not  permissible to  urge  a  ground  then available later before the Election Tribunal.      In the  present case  there  was  no  decision  by  the Returning Officer  about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about  the validity or otherwise of the nomination and its resuscitation before the Election Tribunal. In this view we do not accede to the contention of the appellant based on s. 44 or rule 15.      The third plea, not aimed at salvaging the poll success of the  appellant but  in unseating  the respondent  who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates 855 and the  election of  one is  set aside by the Tribunal, the other automatically  gets returned, without resort to polls. Anyway, in  the present  case, if  the appellant’s  election were invalid,  there is  only a  single survivor left in the field,  i.e.,   the  first  respondent.  Naturally,  in  any constituency where  there is only one valid nomination, that nominee gets elected for want of contest.      To conclude,  since the  appellant is not disqualified, the appeals are bound to be allowed and we do so, but in the circumstances, without costs.      In the  connected appeal  C.A. No.  1270  of  1975  the consequence is  to conform  to  what  we  have  held  above. Therefore, that  appeal is  also allowed.  The parties  will bear their respective costs through out. P.B.R.                                      Appeals allowed. 856