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PETITIONER: MAULANA ABDUL SHAKUR

       Vs.

RESPONDENT: RIKHAB CHAND AND ANOTHER

DATE OF JUDGMENT: 12/09/1957

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P. SARKAR, A.K.

CITATION:  1958 AIR   52            1958 SCR  387

ACT: Election  Dispute-Disqualification for  Election-"Office  of Profit  under  Government "-Manager of Durgah  Khwaja  Saheb School,  if holds office of Profit  under  Government-Durgah Khwaja  Saheb Act, 1955 (XXXVI Of 1955), ss. 4(1), 5, 6,  9, 11, 20Constitution of India, Art. 102(1) (a).

HEADNOTE: 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 Durgah Khwaja Saheb and was being paid  Rs. 100  per month.  He was elected to the Council of States  by the   Electoral  College  of  Ajmer  and  the   unsuccessful candidate, the first respondent, challenged the election  on the  ground  that  the appellant wag holding  an  office  of profit under the Government at the time of the election  and was,  therefore,  disqualified to be chosen as a  member  of Parliament in view of Art. 102(1) (a) of the Constitution of India.  It was contended for the first respondent inter alia that as under ss. 5 and 9 of the Act 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,   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.  But the appellant was neither  appointed by the Government of India nor  removable by it nor was his salary fixed by the Government and it  was paid out of the funds of the Durgah Endowment. Held, that the appellant was holding his appointment under a committee  which  was  a statutory body  and  could  not  be considered  as the holder of an office of profit  under  the Government of India within the meaning of Art. 102(1) (a) of the Constitution of India.  Accordingly, the election of the appellant was valid. Shivnandan Sharma v. The Punjab National Bank Ltd., (1955) 1 S.C.R. 1427, distinguished.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 335 of 1957. Appeal  by special leave from the judgment and  order  dated January  31,  1957,  of the  Election  Tribunal,  Ajmer,  in Election Petition No. 2 of 1956. 50 388 Mukat Behari Lal Bhargava and Naunit Lal, for the appellant. Respondent No. 1 in person. 1957.   September 12.  The following Judgment of  the  Court was delivered by KAPUR,J.-This  is an appeal from the order of  the  Election Tribunal dated January 31, 1957, setting aside the  election of the appellant, Maulana Abdul Shakoor, who was elected  to the  Council  of States by the Electoral  College  of  Ajmer which  consisted  of  30  members  constituting  the   State Legislature  of  Ajmer.  He received 19 votes as  against  7 polled  in favour of the other candidate who  is  respondent No.  1  in  this appeal.  The total number  of  valid  votes polled was 26 and there were 3 invalid votes.  The result of the election was published in the Official Gazette on  March 31,  1957,  declaring the election of  the  appellant.   The unsuccessful candidate, the present first respondent,  filed his  election petition on May 2, 1956.  It is not  necessary to  set out all the allegations in the petition because  the main   controversy  between  the  parties  is  whether   the successful  candidate,  the  present appellant,  held  an  " office  of  profit  " under the  Government.   The  impugned election was held on March 22, 1956. By   a  notification  issued  on  February  17,  1956,   the nominations  for  candidature  were  to  be  filed   between February 28, 1956, and March 1, 1956.  The date for scrutiny was March 5, 1956, and for the polling March 22, 1956.   The appellant filed two nomination papers on February 28,  1956, and  a  third one on March 1, 1956.  The  respondent  Rikhab Chand  Jain  also filed his nomination papers  on  March  1, 1956.   On March 5, 1956, the respondent Rikhab  Chand  Jain raised certain objections to the validity of the appellant’s nomination,  the  main ground being that the  appellant  was holding  an  office  of profit under  the  Government.   The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28,  1956,  but accepted the third one, i.e.,  of  March  1, 1956, because, according to that officer, 389 under  the  provisions of Durgah  Khwaja  Saheb  (Emeregency Provisions)  Act, 1950 (XVII of 1950) which was in force  up to February 29, 1956, the appellant was holding an office of profit under the Government but on the coming into force  of the  Durgah  Khwaja Saheb Act (XXXVI of 1955)  on  March  1, 1956,  he no longer held such office under  the  Government. On  May 3, 1956, the respondent filed an  election  petition under  s. 81 of the Representation of the People Act,  1951, in which he submitted that the third nomination paper of the appellant  should also have been rejected as even under  the provisions  of Durgah Khwaja Saheb Act (XXXVI of 1955),  the appellant  was  holding  an  office  of  profit  under   the Government  and  therefore  his  case  was  covered  by  the provisions of Art. 102 (1)(a) of the Constitution.  He  also prayed that he be declared elected as the votes cast in  the appellant’s  favour  were  " thrown away  "  votes  and  the respondent alone received a majority of valid votes. A  majority  of the Election Tribunal by their  order  dated

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January 31, 1957, held that on March 1, 1956, the  appellant was  holding  an office of profit under the  Government  and therefore his nomination paper was hit by Art. 102(1) (a) of the Constitution.  They set aside his election and accepting the  contention  as to " thrown away "  votes  declared  the respondent  elected.   Disagreeing with  the  majority,  the Chairman  of  the Election Tribunal held that  on  March  1, 1956,  the  appellant  was no longer holding  an  office  of profit  under  the  Government,  his  nomination  paper  was rightly  accepted and his election was valid  and  therefore the  respondent  could  not be  declared  elected.   On  the question whether the two nomination papers of the  appellant dated  February  28, 1956, were valid or  not  the  Tribunal unanimously  held them to be invalid on the ground that  the appellant  held an office of profit under the Government  on that date. It is not necessary to go into the question whether the  two nomination  papers  filed by the appellant on  February  28, 1956,  were  valid or not because if  the  nomination  paper filed  on  March  1, 1956, is valid the  question  of  their validity would not arise.  It may 390 here be stated that the argument before us has proceeded  on the assumption that the appellant held an office of  profit. The  controversy between the parties was therefore  confined to  whether  this  office  of  profit  was  held  under  the Government  of India and therefore the disqualification  for membership  under Art. 102(1)(a) applies to  the  appellant. In order to resolve this controversy the important  question of construction that arises is: was the appellant holding an office of profit under the Government of India and does Art. 102(1)(a)  of the Constitution operate ? This article is  as follows: 102(1) " A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament- (a)  if  he holds any office of profit under the  Government of  India  or  the Government of any State,  other  than  an office  declared by Parliament by law not to disqualify  its holder; " This  article occurs under the heading Disqualifications  of Members.   In the same part of the Constitution, i.e.,  Part V,  are  given  the disqualifications for  election  to  the offices of President and Vice-President.  The relevant  part of  Art.  58 which lays down the  disqualification  for  the office of the President is: Art.  58(1)  "No person shall be eligible  for  election  as President unless he- (a)............................... (b)............................... (c)................................ (2)  A  person  shall  not  be  eligible  for  election   as President  if  he  holds  any office  of  profit  under  the Government of India or the Government of any State or  under any  local or other authority subject to the control of  any of the said Governments." There is a similar provision in regard to the Vice-President in Art. 66(4). Counsel  has  rightly  pointed out  the  difference  in  the language  between the two articles.  Whereas in the case  of the President and Vice-President the holding of an office of profit under an authority subject to the 391 control of the Government is a, disqualification, it is  not so prescribed in the case of members of the legislatures. The  Madarsa  Durgah  Khwaja  Saheb  Akbari  in  which   the

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appellant held the appointment of a manager (mohatmin) is  a school  for  teaching Persian, Arabic and  Muslim  theology. Before 1951 it was managed and run by the Government of  the Nizam  of Hyderabad.  In 1951 this school was taken over  by the  Durgah Committee.  On February 28, 1955, the  appellant was  given an honorary appointment of mohatmin (manager)  of the school by the Administrator of Durgah Khwaja Saheb.   He was  to work under the Administrator and was to hold  charge of  the management of the school.  But from May 1955 he  was being  paid  Rs.  100 per month  which  has  been  variously described as salary and honorarium. Counsel   for  the  appellant  raised  three  questions   of construction that this appointment as manager of the  school amounted neither to an office nor to an office of profit nor to  an  office of profit under the Government.   A  decision favorable  to  the  appellant on the  last  question,  i.e., office  of  profit under the Government,  would  render  the decision  of the other two questions wholly unnecessary  and therefore  assuming  that the appellant held  an  office  of profit,  the  question remains: was it an office  of  profit under  the  Government and therefore fell  within  Art.  102 (1)(a)  of the Constitution.  In order to determine this  we have  to examine the provisions of the Statute  under  which the appointing authority came into existence and its  powers under the statute.  Before and up to 1936 the Durgah  Khwaja Saheb  Endowment was administered by a committee  which  was constituted by the Chief Commissioner of Ajmer under s. 7 of the Religious Endowments Act (XX of 1863).  In 1936 the then Central  Legislature  enacted the Durgah  Khwaja  Saheb  Act (XXIII  of  1936).   By  the  provisions  of  that  Act  the management and administration was vested in Durgah Committee constituted under s. 4 of the Act.  It was a body  corporate with  perpetual succession and common seal having the  right to sue and be sued in the 392 name  of the president of the Committee.  Under s.  5  which dealt  with  the  constitution of the Committee  it  was  to consist  of  25 members some of whom were elected  and  some nominated.   Section 11(f) of the Act gave to the  Committee the power to appoint all its servants. The  Act  of 1936 was replaced by the  Durgah  Khwaja  Saheb (Emergency  Provisions) Ordinance 3 of 1949, which  in  turn was   replaced  by  the  Durgah  Khwaja   Saheb   (Emergency Provisions)  Act  (XV11 of 1950).  By s. 3 of that  Act  the Durgah  Committee  constituted  under the Act  of  1936  was superseded and the management was vested in an Administrator appointed by the Central Government who under s. 7 was to be under the control of the Central Government and had all  the powers  of the committee constituted under the Act of  1936. That  Act continued to be in force up to February 29,  1956, and  it was during its continuance that the appellant  filed two  nomination  papers  on February 28,  1956,  which  were rejected by the Returning Officer. The Act of 1950 was replaced by the Durgah Khwaja Saheb  Act (XXXVI of 1955) which, received the assent of the  President on October 14, 1955, but came into force oil March 1,  1956. Under  s. 4(1) of this Act the administration,  control  and management  of the Durgah Endowment came to be vested  in  a Committee,  which  is  a  body  corporate  having  perpetual succession  and  common seal and which can sue and  be  sued through  its  President.   Under s. 5 the  Committee  is  to consist  of not less than 5 and not more than 9 members.  of the  Hanafi Muslim faith all of whom are to be appointed  by the  Central  Government.   Section 8  gives  power  to  the Central  Government to supersede the Committee.  Under s.  9

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the  Central Government in consultation with  the  Committee can appoint a Nazim (administrator) of the Durgah who is  an ex-officio secretary of the committee.  His salary is to  be fixed by the Central Government but is to be paid out of the revenues  of  the  Durgah Endowment  funds.   The  Committee exercises   its   power  of  administration,   control   and management through the Nazim, 393 The powers and duties of the Committee are given in s. 11 of the  Act; clause (i) of this section which is  relevant  for the purpose of this case when quoted runs as under: s.11 " The powers and duties of the Committee shall be- (i)  to appoint, suspend or dismiss servants of  the  Durgah Endowment." Under s. 20 the Committee has the power to make bye-laws  to carry  out  the  purposes of the  Act,  and  the  respondent emphasised clause (1) of sub-s. 2 which provides: s.   20  (2)  " In particular and without prejudice  to  the generality of the foregoing power such bye-laws may  provide for- (i) the duties and powers of the employees of the Durgah." Sub-section 5 of this section is as follows: " (5) The Central Government may, after previous publication of  its intention, cancel any bye-law which it has  approved and confirmed, and thereupon the bye-law shall cease to have effect." The respondent contended that because under the Act of 1955, the  Committee  of  Management is to  be  appointed  by  the Government  who  also  appoint  the  Nazim   (administrator) through  whom the Committee acts and because under  s.  6(2) the  Government has the power of removal from office of  any member  of the Committee and because the Committee can  make bylaws prescribing the duties and powers of the employees of the  Durgah,  the  appellant  was  under  the  control   and supervision  of the Central Government and therefore he  was holding  an office of profit under the Government of  India. It   is  significant  to  note  that  in  laying  down   the disqualifications  of the President and  the  Vice-President the     Constitution    has    expressly    provided     the disqualifications which include not only an office of profit under the Government of India or                             394 the  Government  of any State but also an office  of  profit under any local or other authority subject to the control of any of the said Governments.  This last disqualification the Constitution does not make applicable to the members of  the legislatures. No  doubt  the Committee of the Durgah Endowment  is  to  be appointed  by  the  Government of India but  it  is  a  body corporate  with perpetual succession acting within the  four corners  of  the Act.  Merely because the Committee  or  the members of the Committee are removeable by the Government of India  or  the Committee can make bye-laws  prescribing  the duties  and  powers of its employees cannot in  our  opinion convert the servants of the Committee into holders of office of  profit under the Government of India.  The appellant  is neither  appointed  by  the  Government  of  India  nor   is removeable by the Government of India nor is he paid out  of the  revenues  of  India.  The power of  the  Government  to appoint  a person to an office of profit or to continue  him in that office or revoke his appointment at their discretion and  payment from out of Government revenues  are  important factors  in  determining whether that person is  holding  an office of profit under the Government though payment from  a source  other  than  Government  revenue  is  not  always  a

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decisive factor.  But the appointment of the appellant  does not come within this test. A  number  of election cases reported in  the  Election  Law Reports were cited before us but they were decided on  their own  facts and are of little assistance in the  decision  of the present case.  The test of the power of dismissal by the Government  or  by an officer to whom such  power  has  been delegated  which was pressed in support of his case  by  the respondent  is  equally  inapplicable to the  facts  of  the present  case because the appellant cannot be  dismissed  by the  Government  or  by  a  person  so  authorised  by   the Government.   He is a servant of a statutory body  which  in the matter of its servants acts within the powers  conferred upon it by the statute. The  respondent then sought to fortify his sub. missions  by relying on Shivnandan Sharma v. The, 395 Punjab  National Bank Ltd. (1).  That was a case  under  the Industrial  Disputes Act and the question for  decision  was whether  a  cashier  appointed by the  Bank’s  treasurer  on behalf of the Bank and paid by the Bank was a servant of the Bank.   It was held that he was.  The rule of that  case  is that  if the master employs a servant and authorises him  to employ  a  number of persons to do a particular job  and  to guarantee   their   fidelity   and   efficiency   for   cash consideration,  the employees thus appointed by the  servant would be, equally with the servant,, servants of the master. But  that  again  has no application to  the  facts  of  the present case because the appellant has not been employed  by a  servant  of the  Government who is authorised  to  employ servants for doing some service for the Government nor is he paid out of Indian revenues.  No doubt the non-payment  from out  of the revenues of the Union is not always a factor  of any  consequence  but  it  is  of  some  importance  in  the circumstances of this case. A  comparison of the different articles of the  Constitution 58(2),  66(4),  102  (1)(a) and 19  1  (1)(a)  dealing  with membership  of the State Legislatures shows in the  case  of members of the Legislatures unlike the case of the President and  the  Vice-President of the Union  the  disqualification arises  on account of holding an office of profit under  the Government of India or the Governments of the States but not if  such  officer is under a local or  any  other  authority under the control of these Governments.  As we have said the power  of  appointment and dismissal by  the  Government  or control   exercised  by  the  Government  is  an   important consideration  which  determines  in favour  of  the  person holding  an office of profit under the Government,  but  the fact  that he is not paid from out of the State revenues  is by itself a neutral factor. It has not been shown that the appellant’s appointment as  a mohatmin (manager) of the school satisfies any of the  tests which have been discussed above.  On the other hand on March 1, 1956, he was holding (1)  [1955] 1 S.C.R. 1427. 51                             396 his appointment under a Committee which is a statutory  body and  such appointment cannot be called an appointment by  or under  the  control of the Government of India  nor  is  his salary paid out of the revenues of the Government but out of the  funds  of Durgah Endowment.  In the  circumstances  the majority  of  the  Tribunal has erred in  holding  that  the appellant held an office of profit under the Government  and the  opinion of the Chairman to the contrary lays  down  the

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correct position. In  view of this finding in regard to the office  of  profit under  the  Government, it is not necessary to go  into  the question  whether  there were any " thrown away "  votes  or whether  the  respondent has been rightly declared  to  have been elected. We are of the opinion that the election of the appellant has been wrongly set aside and we would allow the appeal   and set aside the order of the majority of the Tribunal.   The appellant will have his costs in this court as    also before the Tribunal. Appeal allowed.