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PETITIONER: PASHUPATI NATH SUKUL & OTHERS.

       Vs.

RESPONDENT: NEM CHANDRA JAIN & OTHERS.

DATE OF JUDGMENT25/11/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) FAZALALI, SYED MURTAZA REDDY, O. CHINNAPPA (J)

CITATION:  1984 AIR  399            1984 SCR  (1) 939  1984 SCC  (2) 404        1983 SCALE  (2)800  CITATOR INFO :  R          1992 SC1277  (18,62)

ACT:      Constitution of  India 1950,  Articles 98, 174, 102 (1) (a), 187, 188, 191 (1) (a), and 193.      The Representation  of the people Act 1951 Sections 21, 33, 73 and 152.      Candidate  elected   as  Member  of  State  Legislative Assembly-Not taking  oath as  Member-Whether could propose a candidate for  election to  Rajya Sabha and entitled to vote in such election.      Secretary  &   Joint  Secretary  of  State  Legislative Assembly-Whether ‘an  officer of  Government’-Appointment as Returning officer  and Assistant  Returning  Officer  in  an election to Rajya Sabha-Validity of.      Words & Phrases-Meaning of:      ‘Government’-Constitution of  India 1950,  Articles 102 (1) (a)  and 191  (1) (a)  ‘an  officer  of  Government’-The Representation of the People Act 1951, s, 21.

HEADNOTE:      After  the   Legislative  Assembly  of  the  State  was dissolved by the President elections were held and after the results were  declared  the  Election  Commission  issued  a notification containing the names of the members elected for the constituencies on June 9, 1980. The elected members were notified that  they could  take the oath as required by Art. 188 of  the Constitution  at the  session of the Legislative Assembly which  had been  summoned to  meet on June 27, 1980 and on  subsequent days.  In the meanwhile, on June 17, 1980 the Election  Commission issued  a notification calling upon the elected  members of  the state  Legislative Assembly  to elect a  person for  the purpose of filling a vacancy in the Rajya Sabha.  For conducting  the election the Secretary and Joint Secretary  of  the  State  Legislative  Assembly  were appointed respectively  as the  Returning  Officer  and  the Assistant Returning officer.      The appellant  and respondent No. 1 in Civil Appeal No. 1775 of  1981 were  nominated  as  the  candidates  at  that election. At  the time  of scrutiny,  respondent No. 1 filed objections to  the nomination  of the  appellant raising two

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grounds:-(1) that the appellant was disqualified as he was a Government 940 servant, and  (2) that the proposer though an elected member of  the   Assembly,  was   not  qualified   to  propose  the appellant’s candidature  as he  had not  yet taken  the oath under Article 188 of the Constitution.      The  appellant   contended  that   as  he  had  retired voluntarily from  Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer being an elected member of the Legislative Assembly was competent  to propose  even though  he had not taken the oath as  provided in Art. 188. Overruling the objections the nomination papers  of the  candidates were  accepted. In the election the  appellant was  declared elected as a member of the Rajya Sabha.      Respondent no.  1 therefore filed an election petition. The High  Court set  aside the  appellant’s election  on the grounds :  (1) that  as the  Secretary  of  the  Legislative Assembly was  neither an  officer of the Government nor of a local authority,  he could not be appointed as the Returning Officer under  s.21,  and  (2)  that  the  proposer  of  the nomination paper  had not  made or  subscribed the  oath  or affirmation as  required by  Article 188 of the Constitution on  the  date  of  nomination  and  consequently  there  was improper acceptance of the nomination of the appellant.      The appellant,  the Election  Commission of  India, and the State preferred Appeals to this Court.      Allowing the Appeals, ^      HELD :  1 (i)  The word  ‘Government’  in  Article  102 (1)(a) and in Article 191 (1)(a) of the Constitution and the word ‘Government’ in the expression an officer of Government in section  21 of the Representation of the People Act, 1951 should be  interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary. [951 G-H]      (ii) The  finding of  the High Court that the Secretary of the  State Legislature  could not  be  appointed  as  the Returning officer  for the  election to  the Rajya  Sabha is unsustainable. [952 A]      (iii) The  expressions ‘Government’  and an  officer of Government’ are  not defined  in the  Constitution or in the Representation of  the People  Act 1951.  Article 367 of the Constitution provides  that  unless  the  context  otherwise requires, the  General Clauses  Act, 1897,  shall subject to any adaptations  and modifications  that may be made therein under Article  372 apply  for  the  interpretation  for  the Constitution. Section  3 (23)  of the  General Clauses  Act, 1897 gives  an  inclusive  definition  of  ‘Government’  and suggests that  there may  be other organs of State which may be included  within the  meaning of expression ‘Government’, The expressions  ‘Central Government’ and ‘State Government’ are defined  in section  3 (8) and section 3 (60). A general review  of   the  constitutional  provisions  shows  various expressions used in it to describe the several organs of the State. In Part I the expressions ‘the Union’‘the States’ and ‘the  Union   Territories’  are  used.  In  Article  12  the expressions ‘Government and 941 Parliament of  India’ and ’Government and the Legislature of each of  the States’ are found suggesting that Government is different from  the Union Legislature or the Legislatures of the States. This is for purposes of Part III. In Article 102 (1)  (a)  and  Article  191  (1)  (a)  the  expression  ’the

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Government of  India’ and ’Government of any state’ are used and they  provide that  a person holding an office of profit under the  Government of  India or  a  State  Government  is disqualified for  being chosen  as a member of Parliament or of a  State Legislature respectively. Article 98 and Article 187 provide for appointment of separate secretariat staff of each House  of Parliament  and  of  the  State  Legislatures respectively. [947 C-H; 948 A]      (iv) After the  commencement of  the Constitution,  the Secretaries of  the State Legislatures almost as a matter of rule were being appointed as Returning Officers for election to the  Rajya Sabha  and for  election  to  the  Legislative Councils of States, and Parliament had not thought it fit to amend suitably,  section 21 expressly including the officers of the  State Legislatures  amongst the persons qualified to be appointed  as Returning  officers even though it had been amended once  by specifically  including officers  of  local authorities.  Parliament   all   along   had   treated   the Secretaries  of   the  State  Legislatures  as  officers  of Government for  purposes of  section 21,  and had  found  it convenient to do so [951 C-E]      (v)  Even though Article 98 and Article 187 contemplate the establishment  of a  separate secretariat staff for each House of  Parliament and the State Legislature respectively, the salaries and allowances of the members of that staff are paid out  of the Consolidated Fund of India or of the State, as the  case may  be after  they are  voted by  the House or Houses concerned.  Their appointment and other conditions of service are  regulated by Rules made by the President or the Governor, as  the case  may be,  until an appropriate law is made by Parliament or the State Legislature. [951 F-G]      (vi) In our Constitution, which has a federal structure there are both at the level of the Union and at the level of the State detailed provisions pertaining to the Legislature, the Executive  and the  Judiciary. All  the three organs are concerned with the governance of the country the first makes the laws,  second enforces  them and  the  third  interprets them. Sometimes  their functions may be overlapping. All the three organs  together constitute  the Government  at  their respective level. [950 B-C]      (vii) The  President is  a part of the Parliament under Article 79  of the  Constitution. The executive power of the Union is  vested in him under Article 53(1). At the level of the State  the position is analogous. The Governor is a part of the  Legislature of  the State under Article 168 (1). The Executive power  of the State is vested in him under Article 154 (1)  and he  is consulted  in the  appointments  of  the judges of  the High  Court. While under Article 235 the High Court is  vested  with  the  control  over  the  subordinate Judiciary of  the State, in the case of dismissal or removal of a  judicial officer  in the  Subordinate  Judiciary,  the Governor has to issue the order though on the recommendation made by  the High  Court. A  study of these provisions shows that there  is no  water-tight compartment between the three major organs  of the  State.  The  Comptroller  and  Auditor General of India though he is assigned an independent status is an  officer under the Union Government. The Judges of the Supreme Court and of 942 a High  Court are  not servants  of Government  but  hold  a constitutional office.  But  the  Comptroller  and  Auditor- General of  India and the Judges of the Supreme Court and of a High  Court are  not  eligible  to  contest  elections  to Parliament and the State Legislatures in view of Article 102 (1) (a)  and Article 191 (1) (a) because they are serving in

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connection with  the affairs of the Union and are therefore, holding offices of profit under the Central Government. [950 C-H; 591 A-B]      Pradyat Kumar  Bose v. The Hon’ble the Chief Justice of Calcutta High Court [1955] 2 S. C. R. 1331; Gurugobinda Basu v. Sankari Prasad Ghosal & Ors. [1964] 4 S. C. R. 311; Union of India  v. Sankal  Chand Himatlal Sheth & Anr [1978] I. S. C. R.  423; &  Hargovind Pant  v. Dr.Raghukul  Tilak &  Ors. [1979] 3 S. C. R.972 referred to.      (viii) The position of a person who works as an officer of the  Legislature of a State is also the same. Even though he belongs  under Article  187 to  the staff  of  the  State Legislature, he  is still  an officer  of Government  in the broad sense  in which  the expression ’Government is used in Article  102   (1)  (a)  and  Article  191  (1)(a).  If  the expression ’Government  used is  construed  as  meaning  the Executive Government  only, then  it would  defeat the  very purpose of  these provisions. Similarly he has to be treated as an  officer of  Government for  purposes of section 21 of the Act  also qualified for being appointed as the Returning officer for an election held under the Act. [951 A-C]      2(1) This is  not a case where general elections to the Legislative Assembly  had been held before the normal tenure of the  existing Legislative Assembly was over. The previous Legislative Assembly having been dissolved in February 1980, on the  publication of the notification containing the names of the  elected members  of the Legislative Assembly on June 9,1980 under  Section 73, the Assembly was deemed to be duly constituted. [953 D; 954 D]      (ii) An elected  member who  has not  taken ’oath’  but whose name appears in the notification published under s. 73 of the  Act can  take part in all non-legislative activities of an  elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. [957 G]      In the  instant case  the name of the proposer had been included before  the date  on which  he proposed the name of the appellant  as a  candidate in the notification published under  sec.  73  of  the  Act  and  in  the  electoral  roll maintained  under   section  152.   There  is  therefore  no infirmity in the nomination. [957 H; 958 A]      (iii) The  words ’sitting and voting’ in Article 193 of the Constitution  imply the  summoning of  the  house  under Article 174  of the  Constitution by the Governor to meet at such time  and place as he thinks fit and the holding of the meeting of  the House  pursuant to  the said  summons or  an adjourned meeting.  An elected member incurs the penalty for contravening Article  193 of  the Constitution  only when he sits and  votes at  such a  meeting of the House. Invariably there is  an interval  of time between the constitution of a house after  a general  election, and  the summoning  of the first meeting of the House. During that 943 interval an  elected  member  of  the  Assembly  whose  name appears in  the notification  issued under section 73 of the Act  is   entitled  to  all  the  privileges,  salaries  and allowances of  a member  of the Legislative Assembly, one of them being  the right  to  function  as  an  elector  at  an election held for filling a seat in the Rajya Sabha. [955 B- D]      (iv) The election for filling a seat in the Rajya Sabha does not  from a  part of the Legislative proceedings of the House carried  on at  its meeting. Nor the vote cast at such an election  is a  vote given  in the  House  on  any  issue arising before  the House.  The speaker  has no control over the election.  The election is held by the Returning Officer

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appointed for the purpose. All the steps taken in the course of the election fall outside the proceedings that take place at a meeting of the House. [955 E-F; 956 B]      Bhupendra Nath  Basu v.  Ranjit Singh, I. L. R. 41 Cal. 384, approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos.  1775 1975 (E), 2736 (E) of 1981.      From the  Judgment and  Order dated the 10th July, 1981 of the  Allahabad High  Court (Lucknow  Bench)  in  Election Petition No. 7 of 1980.      M. C.  Bhandare, T.  Sridharan, Ms. S. Bhandare and Ms. Sucharita for the Appellant in CA. 1775/81.      Dr. Y.  S.  Chitale  and  Ms.  A.  Subhashini  for  the Appellant in CA. No. 1975 of 1981.      Mrs. S. Dixit for the Appellant in CA. 2736 of 1981.      Hari  Shankar   Jain  and   Mr.  K.K.  Gupta,  for  the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, I.  At the  conclusion of the hearing of the above  appeals on  November 16,  1983, we pronounced the following order:           "Heard counsel  for the  parties. The  appeals are      allowed and  the order  of the  High Court is set aside      without any order as to costs."      We now give our reasons. 944      Two questions  arise for  consideration in  these three appeals which are filed against the judgment and order dated July 10,  1981 of  the High  Court of  Allahabad in Election Petition No. 7 of 1980. They are:      1.  Whether   the  Secretary  of  a  State  Legislative      Assembly is  not  qualified  to  be  appointed  as  the      Returning Officer at an election held to fill a seat in      the Rajya Sabha ?      2.  Whether   a  person   elected  as  a  member  of  a      Legislative  Assembly   but  who   has  not   made  and      subscribed  the   prescribed  oath  or  affirmation  as      required by Article 188 of the Constitution can validly      propose a person as a candidate at an election held for      filling a seat in the Rajya Sabha ?      In February, 1980 the Legislative Assembly or the State of Uttar Pradesh was dissolved by the President by issuing a notification  under  Article  356  of  the  Constitution.  A notification was  issued by  the Governor  of Uttar  Pradesh under section  15 (2)  of the  Representation of  the People Act, 1951  (hereinafter referred  to as ’the Act’) in April, 1980 calling  upon all  the Assembly constituencies in Uttar Pradesh to  elect members to the Legislative Assembly. After the results  of the elections in all the constituencies held pursuant  to   the  said  notification  were  declared,  the Election  Commission   of  India   issued   a   notification containing the  names of  the members  elected for  the said constituencies as  required by section 73 of the Act on June 9, 1980.  The elected  members were notified that they could take the oath as required by Article 188 of the Constitution at the  session of  the Legislative  Assembly which had been summoned to meet on June 27, 1980 and on subsequent days. In the meanwhile  on June  17, 1980,  the  Election  Commission issued a  notification calling  upon the  elected members of the Uttar Pradesh Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha. By that

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notification, the  Election Commission  fixed the  following programme for the purpose of the said election:      (a) 24.6.1980     -    as  the  last  date  for  making                          nomination.      (b)  25.6.1980    -   as  the date  for scrutiny of the                          nomination papers      (c)  27.6.1980    -  as the last date for withdrawal of                          candidature. 945      (d)  4.7.1980      -   as the  date on which a poll, if                          necessary, would be taken.      (e)  7.7.1980      -   as the  date  before  which  the                          election had to be completed.      Shri S.  P.  Singh,  Secretary  of  the  Uttar  Pradesh Legislative Assembly  was appointed as the Returning Officer and Shri  Uma Shankar,  Joint  Secretary  as  the  Assistant Returning Officer for conducting the aforesaid election.      Pashupati Nath Sukul, the appellant in Civil Appeal No. 1775 of  1981 (hereinafter  referred to  as ’the appellant’) and Nem Chandra Jain, respondent No. 1 were nominated as the candidates at  that  election.  At  the  time  of  scrutiny, respondent No.  1 filed  objections to the nomination of the appellant raising  two grounds-(1)  that the  appellant  was disqualified as he was a Government servant and (2) that the proposer  of  the  candidature  of  the  appellant  was  not qualified to propose his candidature as he had not yet taken the oath as required by Article 188 of the Constitution. The appellant pleaded  that as  he had  retired voluntarily from the Government  service he  was not  disqualified for  being chosen as  a member of the Rajya Sabha and that the proposer of his  candidature was an elected member of the Legislative Assembly who  was competent to make the proposal even though he had  not taken the oath as provided in Article 188 of the Constitution.  The  Objections  of  respondent  No.  1  were overruled and  the nomination  papers of  both the appellant and respondent No. 1 were accepted by the Returning Officer. At the  poll which  took place on July 4, 1980 the appellant secured 325  votes  and  respondent  No.  1  got  41  votes. Accordingly the  appellant was  declared to  be elected as a member of  the Rajya  Sabha. Aggrieved  by the result of the election. respondent No. 1 filed an election petition before the High  Court  calling  in  question  the  result  of  the election on various grounds and of them we are now concerned with two grounds only and they are (1) that as the Secretary of the  Legislative Assembly  was neither  an officer of the Government nor  of  a  local  authority,  he  could  not  be appointed as  the Returning  Officer under section 21 of the Act and  (2) that as the proposer of the nomination paper of the appellant  had  not  made  or  subscribed  the  oath  or affirmation as  required by  Article 188 of the Constitution on the date of the nomination, there was improper acceptance of the  nomination of  the  appellant.  The  appellant,  the Election Commission of India, the State of Uttar Pradesh and Shri S. P. 946 Singh, the  Returning Officer  were impleaded as respondents to the  election petition. The name of the Governor of Uttar Pradesh who  had also  been impleaded  as a  respondent  was deleted by  the order  of the  High Court.  The petition was contested by the appellant and others who had been impleaded as respondents  in the  election petition. At the conclusion of the  trial, the  High Court set aside the election of the appellant on  the following  grounds viz.  that Shri  S.  P. Singh, Secretary,  Legislative Assembly was not qualified to be appointed  as the Returning Officer; that the proposal of

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the  candidature  of  the  appellant  by  a  member  of  the Legislative Assembly  who had  not made  and subscribed  the oath or  affirmation as  required  by  Article  188  of  the Constitution on the date of nomination was illegal and hence there was  improper acceptance  of  the  nomination  of  the appellant and  that there  was no  valid electoral  roll  in force on  the date  of nomination. Aggrieved by the judgment of the  High Court, the appellant has preferred Civil Appeal No. 1775 of 1981, the Election Commission of India has filed Civil Appeal  No. 1975  (E) of  1981 and  the State of Uttar Pradesh has preferred Civil Appeal No. 2736 (E) of 1981. All these three appeals are disposed of by this common judgment.      We shall  first deal  with  the  question  whether  the Secretary of  the Legislative  Assembly was not qualified to be appointed  as the  Returning Officer  for  the  election. Section 21  of the  Act which  deals with the appointment of Returning Officers reads thus:           "21. Returning  Officers-For  every  constituency,      for every  election to  fill a  seat or  seats  in  the      Council of States and for every election by the members      of the  Legislative Assembly  of a State to fill a seat      or seats  in the  Legislative Council of the State, the      Election Commission  shall, in  consultation  with  the      Government  of  the  State,  designate  or  nominate  a      returning officer who shall be an officer of Government      or of a local authority:           Provided  that   nothing  in  this  section  shall      prevent the  Election Commission  from  designating  or      nominating the  same person to be the returning officer      for more than one constituency."      (Emphasis added). 947      The contention  of respondent  No.  1  which  has  been accepted by  the High  Court is  that the  Secretary of  the Legislative Assembly  being not  an officer of Government or of a local authority he was not qualified to be appointed as the Returning  Officer. The argument is that ’Government’ in the expression ’an officer of Government’ used in section 21 of the  Act means  the Executive  only and an officer of the Legislature is not, therefore, an officer of Government.      This case  is an  illustration of  some legal  problems solutions for  which appear  to be quite obvious but when an attempt is made to give reasons for such solutions one would be   confronted    with   many   difficulties   though   not insurmountable. The expressions ’Government’ and ’an officer of Government’ are not defined in the Constitution or in the Act. Article  367 of  the Constitution  provides that unless the context  otherwise requires,  the General  Clauses  Act, 1897, shall,  subject to  any adaptations  and modifications that  may   be  made   therein  under  Article  372  of  the Constitution,  apply   for   the   interpretation   of   the Constitution as  it applies for the interpretation of an Act of the  Legislature of  the Dominion of India. Section 3(23) of the  General Clauses  Act, 1897  defines ’Government’  as follows:           "3(23)  ’Government’  or  ’the  Government’  shall      include both  the  Central  Government  and  any  State      Government."      The above  definition is an inclusive definition and it suggests that  there may  be other organs of State which may be  included   within  the   meaning   of   the   expression ’Government’.  The   expressions  ’Central  Government’  and ’State Government’  are defined  in section 3(8) and section 3(60) of  the General  Clauses Act, 1897 respectively. These definitions are  to be  adopted unless  there is anything in

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the context  to  the  contrary.  A  general  review  of  the constitutional provisions  shows various expressions used in it to describe the several organs of the State. In Part I of the Constitution  the expressions  ’the Union’. ’the States’ and ’the  Union Territories’  are used. In Article 12 of the Constitution,  we   find  the  expressions  ’Government  and Parliament of  India’ and ’Government and the Legislature of each of  the States’ suggesting that Government is different from the  Union  Legislature  or  the  Legislatures  of  the States.  This   is  for   purposes  of   Part  III   of  the Constitution. In  Article 102(1)(a) and Article 191(1)(a) of the Constitution,  the expressions ’the Government of India’ and ’the  Government of any State’ are used and they provide that a person holding an office of profit under the 948 Government of  India or  a State  Government is disqualified for being  chosen as  a member  of Parliament  or of a State Legislature respectively.  Article 98 and Article 187 of the Constitution  provide   for  the   appointment  of  separate secretariat staff  of each  House of  Parliament and  of the State Legislatures respectively. Article 146 and Article 229 of the  Constitution respectively  deal with the appointment of officers  and servants  of the  Supreme Court  and of the High  Courts.   Article  148(5)   and  Article  318  of  the Constitution  respectively   deal  with  the  conditions  of service etc.  of the  employees working in the office of the Comptroller and  Auditor-General of  India  and  the  Public Service Commissions.  Part XIV  of the Constitution contains provisions  relating   to  the   services  under  the  Union Government and  the State  Governments. It  contains Article 311 which  guarantees certain  rights which cannot be denied to the  employees in  the Legislature  and in the Judiciary. Dealing with  the nature  of the office held by the officers working in  the High  Court, who are governed by Article 229 of the Constitution this Court has observed in Pradyat Kumar Bose v.  The Hon’ble  the Chief  Justice  of  Calcutta  High Court(1) thus:           "A close scrutiny of the terminology so used shows      a marked departure in the language of article 320(3)(c)      from that in articles 310 and 311. Officers and members      of the  staff attached  to a  High Court  clearly  fall      within the  scope of  the phrase  "persons appointed to      public  services  and  posts  in  connection  with  the      affairs of  the State" and also of the phrase "a person      who is  a member of a civil service of a State" as used      in articles  310 and 311. The salaries of these persons      are paid out of the State funds as appears from article      229(3) which  provides that the administrative expenses      of a  High Court including all salaries, allowances and      pensions payable  to or  in  respect  of  officers  and      servants of  the High  Court, are  chargeable upon  the      Consolidated Fund of a State. The item relating to such      administrative expenses  has to from part of the annual      financial  statement  to  be  presented  to  the  State      Legislative Assembly  under article  202 and  estimates      thereof can  form the  subject matter of the discussion      in the  Legislature under  article 203(1).  They  must,      therefore, be  taken "to  hold posts in connection with      the affairs of the State and to be members of the civil      service of the State". 949      Entry 5  of List  II of  the Seventh  Schedule  to  the Constitution relates  to ’Local  Government’ that is to say, the  constitution  and  powers  of  municipal  corporations, improvement  trusts,   district  boards,  mining  settlement

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authorities and  other local  authorities for the purpose of local self-government  or village administration. In each of these cases  it becomes  necessary to  examine the  relevant provisions of  law applicable  to it  in order  to determine whether the  officers and  staff of  the various  organs are officers  of  Government  or  not.  Before  taking  up  such examination the  meaning of  the expression ’Government’ has to be ascertained.      A student  of  International  Law  understands  by  the expression  ’State’   as  a   fully  sovereign   independent community residing  in a  specified territory  with a  legal capacity to  enter into  international relations  and having the power  to fulfil the obligations which the international law imposes  on the  family of  nations. It should also have been admitted  or recognised  as a  State on  a  footing  of equality with other States. A State implies the existence of a community or group of people occupying a geographical area or territory  in which  they permanently  reside  possessing internal sovereignty and independence of foreign control and a  political   organisation  or  agency  through  which  the collective will of the people is expressed and enforced. The last of  the elements  of  a  State  referred  to  above  is generally called  as a  Government. A  student of  Political Theory and Comparative Politics may describe a Government as a  monarchical,   republican,  democratic   or   dictatorial depending upon  its peculiar  features. It may be federal or unitary. A  political philosopher  may describe a Government as imperial,  colonial, capitalist  or socialist.  The above list is  not really exhaustive. But these are only different forms of  Government and  Government’ here is used in a very broad sense. From the legal point of view, Government may be described  as   the  exercise  of  certain  powers  and  the performance of  certain  duties  by  public  authorities  or officers,  together   with  certain   private   persons   or corporations exercising  public functions.  The structure of the machinery of Government and the regulation of the powers and duties  which belong  to the  different  parts  of  this structure are  defined by  the law  which also prescribes to some extent  the mode  in  which  these  powers  are  to  be exercised  or   these  duties   are  to  be  performed  (See Halsbury’s Laws  of England,  Fourth Edition,  Vol. 8,  Para 804). Government  generally connotes  three estates, namely, the Legislature, the Executive and the Judiciary while it is true that  in a  narrow sense  it is  used  to  connote  the Executive only. The meaning to be assigned 950 to that  expression, therefore,  depends on  the context  in which it is used.      In our  Constitution, which  has a  federal  structure, there are both at the level of the Union and at the level of the  States   detailed   provisions,   pertaining   to   the Legislature, the  Executive and the Judiciary. All the three organs are  concerned with the governance of the country one organ makes the laws, the second enforces them and the third interprets them  though sometimes  their  functions  may  be overlapping. In  this sense  all the  three organs  together constitute the  Government at  their respective level. It is significant that the President is a part of parliament under Article 79  of the  Constitution, the executive power of the Union  is  vested  in  him  under  Article  53  (1)  of  the Constitution and  he appoints  Judges of  the Supreme  Court under Article  124 (2)  and he can issue an order removing a Judge of  the Supreme  Court under  Article 124  (4) of  the Constitution,  of   course,  subject   to  the   limitations contained therein.  At  the  level  of  the  State  too  the

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position is  analogous to  the position  at the level of the Union. The  Governor is  a part  of the  Legislature of  the State  under   Article  168(1)   of  the  Constitution.  The executive power  of the State is vested in him under Article 154(1) and  he is  consulted in the appointment of judges of the High Court. While under Article 235 of the Constitution, the  High   Court  is  vested  with  the  control  over  the Subordinate Judiciary of the State, in the case of dismissal or  removal   of  a  judicial  officer  in  the  Subordinate Judiciary of  the Governor  has to issue the order though on the recommendation  made by the High Court. A study of these provisions shows  that there  is no  water tight compartment between the three major organs of the State. The Comptroller and Auditor-General  of  India  though  he  is  assigned  an independent status is an officer under the Union Government. (See Gurugobinda  Basu v.  Sankari Prasad Ghosal & Ors.) The Judges of  the Supreme  Court and  of a  High Court  are not servants of  Government but  hold  a  constitutional  office (vide Union  of India  v.  Sankal  Chand  Himatlal  Sheth  & Anr.(2) and  Hargovind Pant  v. Dr. Raghukul Tilak & Ors.(3) But the  Comptroller and  Auditor-General of  India and  the Judges of  the Supreme  Court and  of a  High Court  are not eligible to  contest elections  to Parliament  and the State Legislatures  in  view  of  Article  102(1)(a)  and  Article 191(1)(a) of the Constitution, as the case may 951 be, because  they are serving in connection with the affairs of the Union (See Article 360(4)(b) of the Constitution) and are, therefore,  holding offices of profit under the Central Government. The position of a person who works as an officer of the  Legislature of a State is also the same. Even though he belongs  under Article  187 of  the Constitution  to  the staff of  the State  Legislature, he  is still an officer of Government in  the  broad  sense  in  which  the  expression ’Government’  is  used  in  Article  102(1)(a)  and  Article 191(1)(a)   of   the   Constitution.   If   the   expression ’Government’ used here is construed as meaning the Executive Government only,  then it  would defeat  the very purpose of these provisions of the Constitution. Similarly he has to be treated as  an officer of Government for purposes of section 21 of  the Act  also qualified  for being  appointed as  the Returning Officer  for an election held under the Act. It is not  disputed   that   after   the   commencement   of   the Constitution, the  Secretaries  of  the  State  Legislatures almost as  a matter of rule are being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative  Councils of  States and  Parliament has not thought it  fit to  amend suitably,  section 21  of the  Act expressly including  the officers  of the State Legislatures amongst the  persons qualified  to be appointed as Returning Officers even  though it  has amended  that section  once by specifically  including   officers  of   local  authorities. Parliament all  along has  treated the  Secretaries  of  the State Legislatures  as officers  of Government  for purposes section 21  and has  found it  convenient to  do  so  having regard to  the nature of the work to be carried out by them. It may  be noted that even though Article 98 and Article 187 of the  Constitution  contemplate  the  establishment  of  a separate secretariat  staff for each House of Parliament and of the  State Legislature  respectively,  the  salaries  and allowances of  the members of that staff are paid out of the Consolidated Fund  of India or of the State, as the case may be after  they are  voted by  the House or Houses concerned. Their  appointment  and  other  conditions  of  service  are regulated by Rules made by the President or the Governor, as

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the case may be, until appropriate law is made by Parliament or the  State Legislature, as the case may be. We are of the view that  the word  ’Government’ Article  102(1)(a) and  in Article  191(1)(a)   of  the   Constitution  and   the  word ’Government’ in the expression ’an officer of Government’ in section 21  of the Act should be interpreted liberally so as to include  within its  scope the Legislature, the Executive and the Judiciary. The High Court erred in equating the word ’Government’ occurring  in section  21 of  the  Act  to  the Executive Government  only and  in further  holding that the officers of the 952 State Legislature  could  not  be  treated  as  officers  of Government for  purposes of that section. The finding of the High Court  that the  Secretary of  the Uttar  Pradesh State Legislature could  not be appointed as the Returning Officer for  the   election  to   the  Rajya  Shaba  is,  therefore, unsustainable.      The second  question to  be considered  is whether  the nomination of the appellant was liable to be rejected on the ground that  the proposer  was not  eligible to  nominate  a candidate as  he had  not made  and subscribed  the oath  or affirmation  as   prescribed   by   Article   188   of   the Constitution.      Section 33 of the Act prescribes the requirements for a valid nomination.  It provides  that  the  nomination  paper should be completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Clauses (d)  and (e)  of section  2(1) of the Act define the words  ’election’  and  ’elector’  respectively.  ’Election’ means an election to fill a seat or seats in either House of Parliament  or   in  the   House  or  either  House  of  the Legislature of  a State  other than  the State  of Jammu and Kashmir. ’Elector’  in relation  to a  constituency means  a person whose  name is  entered in the electoral roll of that constituency for  the time  being in  force and  who is  not subject to any of the disqualifications mentioned in section 16 of  the Representation  of the  People Act,  1950 (43  of 1950). Sub-clause  (b) of  clause (1)  of Article  80 of the Constitution states  that the  Council of  States (the Rajya Sabha) shall  in addition to twelve members nominated by the President under  sub-clause (a)  thereof consist of not more than two  hundred and  thirtyeight  representatives  of  the States and  of the  Union territories. Clause (2) of Article 80 of the Constitution provides that the allocation of seats in the  Council of States to be filled by representatives of the  States  and  of  the  Union  territories  shall  be  in accordance with  the provisions  in that behalf contained in the Fourth  Schedule to  the  Constitution.  Clause  (4)  of Article 80  provides that  the representatives of each State in Council of States shall be elected by the elected members of the  Legislative Assembly of the State in accordance with the system  of proportional  representation by  means of the single transferable  vote. Section  152 of  the Act provides that the  Returning Officer  for on  election by the elected members of  the Legislative  Assembly of  a State  to fill a seat or  seats in  the  Council  of  States  shall  for  the purposes of  such election  maintain in  his office  in  the prescribed manner and from a list of elected members of that Legislative Assembly.  Clause (c)  of sub-rule (1) of Rule 2 of the 953 Conduct  of  Elections  Rules,  1961  defines  "election  by assembly members" as an election to the Council of States by the elected  members of  the Legislative Assembly of a State

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or by  the members  of the  electoral  college  of  a  Union territory or  an election  to the  Legislative Council  of a State by the members of the Legislative Assembly of a State. Elector’ is  defined by clause (d) of sub-rule (1) of Rule 2 of the  said Rules,  in relation  to an election by Assembly members as any person entitled to vote at that election.      In the  present case,  the notification  containing the names of  elected members  of the  Uttar Pradesh Legislative Assembly who  participated at  the election  in question had been published  under section  73 of the Act on June 9, 1980 and  that   the  previous   Legislative  Assembly  had  been dissolved earlier  in February,  1980. This  is not  a  case where general elections to the Legislative Assembly had been held before  the normal  tenure of  the existing Legislative Assembly was  over. Section  73 of  the Act which prescribes the publication of results of general elections reads thus:           "73, Publication  of results  of general elections      to the  House of  the People  and the State Legislative      Assemblies,-Where a  general election  is held  for the      purpose of  constituting a new House of the People or a      new State Legislative Assembly, there shall be notified      by the  Election Commission  in the Official Gazette as      soon as  may be  after the  results of the elections in      all the  constituencies (other  than those in which the      poll could  not be  taken for  any reason  on the  date      originally fixed  under clause (d) of section 30 or for      which the  time for completion of the election has been      extended under  the provisions  of section  153),  have      been  declared  by  the  returning  officer  under  the      provisions of  section 53  or,  as  the  case  may  be,      section 66,  the names of the members elected for those      constituencies and  upon the issue of such notification      that House  or Assembly  shall be  deemed  to  be  duly      constituted:           Provided that the issue of such notification shall      not be deemed-           (a) to preclude- 954                (i) The taking of the poll and the completion           of the  election in  any Parliamentary or Assembly           constituency or  constituencies in  which the poll           could not  be taken  for any  reason on  the  date           originally fixed  under clause  (d) of section 30;           or                (ii) the  completion of  the election  in any           Parliamentary   or    Assembly   constituency   or           constituencies for  which time  has been  extended           under the provisions of section 53; or           (b) to  affect the  duration of  the House  of the      People or  the  State  Legislative  Assembly,  if  any,      functioning immediately  before the  issue of  the said      notification." (emphasis added)      On the  publication of the notification on June 9, 1980 under section  73 of  the  Act  in  the  instant  case,  the Assembly was  deemed to  be duly constituted. Article 188 of the Constitution  prescribes the  oath to  be taken  or  the affirmation to  be made  by every  member of  a  Legislative Assembly or a Legislative Council. It reads:           "188. Every  member of the Legislative Assembly or      the Legislative Council of a State shall, before taking      his seat,  make and  subscribe before  the Governor, or      some person appointed in that behalf by him, an oath or      affirmation according  to the  form  set  out  for  the      purpose in the Third Schedule."      Article  191   of  the   Constitution  prescribes   the

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disqualifications for membership of the Legislative Assembly or Legislative  Council of  a State. On the incurring of any such disqualification  a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof. Article 193 of the Constitution provides for the penalty for sitting and voting  before making  oath or affirmation under Article 188 of  the Constitution  or  when  not  qualified  or  when disqualified the  penalty being  in respect of each day five hundred rupees  to be  recovered as a debt due to the State. It does  not say  that if an elected member of a Legislative Assembly sits  and votes before taking oath as prescribed by Article 188 of the Constitution he shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4) 955 of the  Constitution if for sixty days he is absent from all meetings of  the  House  without  its  permission.  Now  the question is  whether the  making of oath or affirmation is a condition precedent  for being eligible to act as a proposer of a  valid nomination  for election to the Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is  that a member elected to a Legislative Assembly cannot sit  and vote  in the  House before  making  oath  or affirmation. The  words ‘sitting  and voting’ in Article 193 of the  Constitution imply  the summoning of the House under Article 174  of the  Constitution by the Governor to meet at such time  and place as he thinks fit and the holding of the meeting of  the House  pursuant to  the said  summons or  an adjourned meeting.  An elected member incurs the penalty for contravening Article  193 of  the Constitution  only when he sits and  votes at  such a  meeting of the House. Invariably there is  an interval  of time between the constitution of a House after  a general election as provided by section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears  in the notification issued under section 73 of the Act  is entitled  to all  the privileges,  salaries  and allowances of  a member  of the Legislative Assembly, one of them being  the right  to  function  as  an  elector  at  an election held for filling a seat in the Rajya Sahha. That is the effect  of section  73 of the Act which says that on the publication of  the notification under it the House shall be deemed to  have been  constituted. The  election in question does not  form a  part of the Legislative proceedings of the House carried  on at its meeting. Nor the votes cast at such an election  is a  vote given  in the  House  on  any  issue arising before  the House.  The Speaker  has no control over the election.  The election is held by the Returning Officer appointed for  the  purpose.  As  mentioned  earlier,  under section 33  of the  Act  the  nomination  paper  has  to  be presented to  the Returning  Officer between  the  hours  of eleven o’clock  in the  forenoon and  three o’clock  in  the afternoon  before   the  last   day  notified   for   making nominations under  section 30  of the  Act. Then all further steps such  as scrutiny  of nominations  and  withdrawal  of nominations take place before the Returning Officer. Rule 69 of the  Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning  Officer for  such election  shall, as soon as may  be   after  the   last  date   for  the  withdrawal  of candidatures, send to each elector a notice informing him of the date,  time and  place fixed for polling. Part VI of the Conduct of  Elections Rules, 1961 which contains Rule 69 and Part VII  thereof deal  with the procedure to be followed at an election

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956 by assembly  members. Rule  85 of  the Conduct  of Elections Rules, 1961  provides  that  as  soon  as  may  be  after  a candidate has  been declared  to be  elected, the  returning officer shall  grant to  such  candidate  a  certificate  of election in  Form  24  and  obtain  from  the  candidate  an acknowledgement of  its  receipt  duly  signed  by  him  and immediately send  the acknowledgement  by registered post to the Secretary  of the  Council of  States or as the case may be, the  Secretary of the Legislative Council. All the steps taken in  the course  of the  election thus fall outside the proceedings that take place at a meeting of the House.      We may  here refer to the decision of the Calcutta High Court in  Bhupendra Nath  Basu v. Ranjit Singh.(1) The facts of that  case were  these. An  election was held on February 14, 1913  to the Legislative Council of the Governor-General from  the   constituency  consisting   of  the  non-official additional members  of the  Bengal Legislative  Council each having two  votes to  fill  two  seats  in  the  Legislative Council of  the Governor-General.  There were  at that  time thirty four  non-official additional members but two of them had not  taken the  oath of  allegiance at  the time  of the election as prescribed by the Bengal Council Regulation VII. At the  election there  were four  candidates-the  plaintiff Bhupendra Nath  Basu,  the  Ist  defendant  Maharaja  Ranjit Singh, the  2nd defendant  Surendra Nath  Banerjee and Nawab Badruddin Haidar.  As  a  result  of  the  poll  the  second defendant got  22 votes,  the first  defendant got 18 votes, the plaintiff  17  and  Nawab  Badruddin  Haidar  11  votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to  the Governor-General  filed a  suit before  the High Court  questioning the  validity of  the  election.  He prayed that  the votes  should be  recounted after excluding the votes cast by the two members who had not taken the oath of allegiance.  Regulation VII  referred to  above  provided that every  person elected  nominated under  the regulations should before  taking his  seat at  a meeting of the Council make an  oath or  affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the  oath or  affirmation prescribed  by Regulation VII within such  time as  the Governor-in-Council  may  consider reasonable, the Governor, shall by notification in the local Official Gazette  declare the  election or  nomination to be void or  his seat  to be vacate". Such a declaration had not been made on the date of the election. 957 The contention  of the  plaintiff was  rejected by  the High Court in the following terms:           "Moreover, I am not satisfied that the view of the      Government as  to the  taking of the oath of allegiance      is not  a correct one. Doubtless the English cases that      were referred  to, the  case of  the Mayor of Penryn (1      Strange 582)  and The  King v.  Swyer (1830) 10 B. & C.      486) have decided that a person is admitted to a public      office, which  requires the  oath of  allegiance,  only      when the oath of allegiance is taken. That does not get      rid  of   the  difficulty   that  arises   from   these      Regulations. These  Regulations constitute an electoral      College of  elected members  of the  Local  Council  to      elect two  persons to  be members of the Council of His      Excellency the  Governor-General. I am not satisfied on      the Regulations  that the  learned Advocate-General has      called my attention to, that when the electors have the      right of  giving their  votes by  means  of  registered

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    letter, for  the purpose  of being members of electoral      college and  for that  purpose only, that the mere fact      of election  to the local Council was not sufficient to      constitute  a   person  so  elected  a  member  of  the      electoral college.  It  is  only  for  the  purpose  of      exercising the  legislative functions  conferred by the      Regulations and  by the Act that the oath of allegiance      is required.  Moreover,  as  the  Advocate-General  has      pointed out,  the mere fact of omission to take an oath      of allegiance  does not  ipso facto  cause a  member to      vacate his  seat; under  Regulation VIII  of the Bengal      Council Regulations,  the discretion  is given  to  the      Governor as to his declaring a seat to be vacant if the      person elected  fails to take an oath of allegiance. In      my opinion,  in this  case the  Rule fails  and must be      discharged, and discharged with costs.      We are  of the  view that an elected member who has not taken oath  but  whose  name  appears  in  the  notification published under  section 73  of the Act can take part in all non-legislative activities  of an  elected member. The right of voting  at an  election to  the Rajya  Sabha can  also be exercised by him. In this case since it is not disputed that the name  of the  proposer had been included before the date on which  he  proposed  the  name  of  the  appellant  as  a candidate in  the notification published under section 73 of the Act 958 and in  the electoral  roll maintained  under section 152 of the Act,  it should  be held  that there was no infirmity in the nomination.  For the same reason even the electoral roll which contained  the names  of elected  members appearing in the notification  issued under  section 73 of the Act cannot be held  to be  illegal. That  is how  even respondent No. 1 appears to have understood the true legal position as he was also proposed  as a  candidate by an elector who had not yet made the  oath or  affirmation. The  second contention  also fails. No  other contention  was pressed  before us.  We are therefore, of  the view  that the  findings recorded  by the High Court  on the  basis  of  which  the  election  of  the appellant to the Rajya Sabha was set aside are erroneous.      In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by  respondent No. 1. Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout. N.V.K.                                      Appeals allowed. 959