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PETITIONER: RABINDRA KUMAR NAYAK

       Vs.

RESPONDENT: COLLECTOR, MAYURBHANJ, ORISSA & ORS.

DATE OF JUDGMENT:       19/02/1999

BENCH: K.T.Thomas, Syed Shah Mohammed Quadri

JUDGMENT:

QUADRI.J.

       Leave is granted.

       The question that arises in this appeal  is  whether the appellant was holding ’office of profit’ under the State Govt.   while  functioning provisionally as Assistant Public Prosecutor  and  was  therefore  disqualified  to  become  a member/Chairman  of  a  Samiti  under  the  Orissa Panchayat Samiti Act 2959.

       The factual backdrop in which the question falls for consideration may briefly be set out here :

       On  August  14,  1995  the  appellant,  an  advocate practising  in  the  courts  of  Cuttack,  was  appointed as Assistant Public Prosecutor provisionally under Rule 5(4) of the Orissa Law Officers Rules, 1971 (for short ’the  rules’) read with Section 25 of the Criminal Procedure Code, 1973 to conduct the criminal cases.  He was entitled to daily fee of Rs.  100/-  subject  to restrictions under the rules.  While so he contested the election to the seat of  the  member  of Moroda  Panchayat Samiti and the fourth respondent contested for the seat of member of Gudigan Panchayat samiti.    After being  elected  as  members,  both  of them contested in the election to the post of Chairman of Moroda Panchayat Samiti. Appellant was declared elected as Chairman on  February  10, 1997.   Having  lost  in  the contest, the fourth Respondent initiated proceeding against the appellant under Sec.   45-B of  the  Orissa  Panchayat  Samiti Act, 1959 (for short ’the Act’) in the court of the District Judge, Mayurbhanj on  the ground  that  as  Assistant Public Prosecutor he was holding ’office of profit’ under the Govt.  so he was  not  eligible to  be  either  a member or the Chairman of Moroda Panchayat Samiti.  The appellant resisted the same on  two  grounds  : first  that his appointment under Rule 5(4) of the Rules was a stop-gap arrangement so he  was  not  ’holding  office  of profit:   and  second  that the petition filed by the fourth respondent under Sec.  45-B of the Act was not  maintainable as  after  the election was over his only remedy was to file an election petition under Section 44-A of the Act.

       On Sept. 20, 1997 the learned  District  Judge  held that  the  petition  under Section 45-B was maintainable and the appellant was holding officer of profit under the  Govt.

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within  the  meaning  of Sec. 45(1)(i) of the Act; so he was disqualified to be a member or  Chairman  of  the  Panchayat samiti.  The appellant challenged that order before the High Court of Orissa. On March 10, 1998 the High Court  dismissed the  writ  petition confirming the said order of the learned District Judge. Against that order of  the  High  Court  the appellant is before us in appeal by special leave.

       Shri   Janaranjan   Das,  learned  counsel  for  the appellant urged the very same two contentions before  us  as were  raised  before  the  High  Court  namely, (i) that the appointment of the appellant as Assistant Public  Prosecutor was  provisional,  as  a stop-gap arrangement as such he was not holding office of profit and (ii) after the election  of the  appellant was over only Election Petition under Section 44-A but not petition under Sec.  45-B of the  Act  was  the remedy of the fourth respondent.

       We  shall deal with the first contention reading the order of appointment of the appellant  as  Assistant  Public Prosecutor which runs as under :

Government Of Orissa

Law Department

No.XX 11126/L dated BBSR, the 14th August, 1995

From

Shri II.Mohapatra, OS,J.S.(Sr.Br.)  Legal Remembrancer.

To

The District Magistrate, Mayubhanj.

Sub :   Appointment of Asst.Public Prosecutors for the         district of Mayurbhanj.

Sir,

       I am directed to say that Govt. have been pleased to appoint the following Advocates as  Asst.Public  Prosecutors provisionally  under  Rules  5(4) of the Orissa Law Officers Rules, 1971 read with Sec. 25  of  the  Cr.  P.C.,  1973  to conduct the criminal cases in the courts of magistrates both Judiciary  and Executive with places shown their names until further orders.

       1 to 3. xxx xxx xxx             A.P.P.Baripada            4.   Shri Rabi Nayak              - do -            5.   xxx xxx xxx                  ****

The A.P.Ps are eligible  to  get  daily  fee  of  Rs.  100/- (Rupees  one  hundred  only) subject to such restrictions as are provided in Orissa Law Officers Rules, 1971.

       The appointment is purely temporary and liable to be terminated at any time without notice.

       The person concerned may be intimated accordingly.

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                                       Yours faithfully,

                                             sd/-

                                       Legal Remembrancer"

       The order refers to Section 25  Cr.  P.C.  and  rule 5(4)  of  the  Rules.  Section  25  of  the Code of Criminal Procedure imposes an obligation on the State  Government  to appoint  in  every  district Assistant Public Prosecutor for conducting prosecution in the Courts  of  Magistrates.  Rule 5(4) of the Rules in in the following terms :

       "In  case  of  any  contingency  arising  due  to         temporary absence or vacancy in the office of the         Law Officer for any reason whatsoever, subject to         the provisions contained in Section 492(2) of the         Criminal Procedure Code, 1898,  the  State  Govt.         may  appoint  a  Law Officer temporarily till the         return of the existing incumbent or  the  vacancy         is filled up, as the case may be."

       A  perusal  of  the rule quoted above leaves no room for any doubt that it provides  for  appointment  of  a  Law Officer  in two contingencies : (i) temporary absence of the existing incumbent, and (ii) vacancy in the  office  of  law officers for whatever reason. An appointment made under this rule  is  terminable on the return of the existing incumbent or on the vacancy being filled up, as the case may be.

       A plain reading of the order of appointment  of  the appellant  and  the  aforementioned provisions shows that in discharge  of  the  statutory  obligation  the  State  Govt. appointed  him  along  with  others  as  an Assistant Public Prosecutor provisionally and that it  is  purely  temporary, terminable at any time without notice.

       We  shall  now  consider whether such an appointment will fall within the clutches of Section 45(I)(i)  which  is extracted below :

       "45(1).  Disqualification  for  becoming a member         and continuing as a member - A person  shall  not         be eleigible to stand for election under sub-sec.         (1) of Sec. 16 if he -

       (i) holds any office of profit under the State or         Central Govt. or any local authority."

       The phrase "holds any office of profit" employed  in this clause  is  the  bone  of  contention.   The expression "office of profit’ only means an office which yields  income or  profit;  the  word  ’office’  had been subject matter of judicial consideration as long back as in 1922.    In  Great Western Railway Co.    vs.   Bater [(1922) 8 Tax Cases 231], Rowlatt.J.  defined the term "office" or "employment" as one 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.

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This  was  approved  by  the  House of Lords in MeMillan vs. Guest (1942) AC 561.

       The  Constitution  Bench  of  this  Court  in  Kanta Kathuria vs.  Manak Chand Surana [AIR 1970  SC  694]  quoted with  approval  the aforementioned exposition of ’office’ by Rowlatt.J.   In  that  case  the  question  was  whether  an advocate appointed as a Special Govt.  Pleader to assist the Govt.  Pleader in a particular case, hold "office of profit" under the  Govt.   and hence incurred disqualification under Article 191 of the Constitution of India.   Relying  on  the said   exposition,   the  minority  view  was  expressed  by Hidayatullah, CJ.  (speaking for himself and Mitter,J.) thus

       "What matters is that was an office created apart         from Mrs. Kathuria. It is in evidence that it was         first  held  by  Mr.  Maneklal   Mathur   another         advocate.  It is likely that if Mrs. Kathuria had         declined some one else  could  have  been  found.         Therefore,  there  was  an  office which would be         successively held; it  was  independent  of  Mrs.         Kathuria  who  filled  it,  it  was a substantive         prostion  and  as  permanent   as   supernumerary         offices  are. Every one of the tests laid down by         Rowlatt.J. are found here.

               We would therefore, hold  that  the  High         Court  was  right  in  its  conclusion  that Mrs.         Kathuria  hald  an  office.  Since  there  is  no         dispute  that  it  was  for  profit and under the         State, the election of Mrs. Kathuria must be held         to be void as she was disqualified to  stand  for         the election."

In  coming  to  that conclusion, the learned Judges followed their own judgment in Mahadeo vs. Shantibai  [1969  (2)  SCR 422]  wherein it was held that the appellant therein who was on the panel of lawyers  prepared  by  the  Western  Railway Administrations, held office of profit under the Govt.

       But  Sikri.J.  speaking  for  the  majority,   after referring  to  the  same  exposition of the term ’office’ as well as the observations of Lord Atkin and  Lord  Wright  in Memillan’s case (supra) observed.

       "There  was  no  doubt  that if her engagement as         Special   Government    Pleader    amounted    to         appointment  to  an office, it would be an office         of profit under the State  Govt.    of  Rajasthan         ......

       Therefore  no  particular  significance  can   be         attached  to the notification made under Rule 813         appointing  the  appellant   as   Special   Govt.         Pleader.  We  cannot  visualise  an office coming         into existence, every time a pleader is asked  by         the  Govt  to appear in a case on its behalf. The         notification of his name under Rule 813 does  not         amount to the creation of an ’office’."

The  difference  of  opinion  between  the  majority and the minority is on the question whether by the notification  the Govt.  created  office  of Special Govt.  Pleader but not in

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regard to meaning of the expression ’office of  profit’  and the application of the tests enunciated by Rowlatt.J.

       In  a  subsequent judgment of this Court in Madhukar G.F.Pankakar vs. Jaswant Chobbildas Rajani &  Ors.  [AIR1976 SC 2283], the enunciation of Rowlatt. J. and observations of the  House  of  Lords  in Memillan’s case, referred to above were relied upon to hold that a Medical Practitioner working as a  panel  doctor  appointed  under  the  Employees  State Insurance  Scheme  did not hold "office of profit" under the State Govt. so as to attract disqualification under  Section 16(1)(g)   of  the  Maharashtra  Municipalities  Act,  1965. Krishna Iyer,J. speaking for the Bench concluded :

       "The critical test of independent existence of         the position irrespective of the  occupant  is         just  not  satisfied.............we are unable         to hold that there is an  ’office  of  profit’         held   by   him   and   that   he   is  ’under         government’."

       From  the  above discussion it follows that to incur disqualification under Section 45(1)(i) of the Act  it  must be  shown  that  :  (i)  there  was  a  permanent  office of Assistant Public Prosecutor (ii) income  or  profit  accrued from that office and (iii) the appellant held that office.

       Now adverting to the facts of this case, there is no controversy that permanency  is  attached  to  the  post  of Assistant  Public  Prosecutor and appointment to that office is regulated by the Rules which deal with  the  remuneration of the  law  officers.   It is immaterial that the appellant did not in fact receive any fee.  Requirements (i) and  (ii) are therefore,  satisfied.  The appointment of the appellant as a Law Officer Assistant Public Prosecutor under the Rules would satisfy the third requirement as well.

       However, Mr.      Das  would  contend  that  as  the appointment of the appellant was a stop gap  arrangement  it could  not  be  said  that  he was holding office of profit. This contention is devoid of merit.   From  what  is  stated above  it  is  clear that to fulfill the requirements of the said expression it must be shown that permanency is attached to the office and not to the term for which a  person  holds it.   Persons who fill the office come and go in succession. One may succeed the other after  a  long  gap  or  in  quick succession.  How long nor remains in office is irrelevant to decide whether  he  holds  it as office of profit.  We have, therefore, no hesitation is concluding  that  the  appellant was  holding  office  of profit on the relevant date and was not eligible to stand for election of member or Chairman  of the  Panchayat Samiti and in view of the provision of clause (i) of sub-section (2) of Sec 45 he  shall  cease  to  be  a member afortiori to be the Chairman of the Samiti.

       We find  no  merit   in the second contention of the learned counsel as well. To apprcciate  this  contention  it may  be  useful to refer to the provisions of Chapter VIA of the Act which was  inserted  by  Orissa  Act  24,  1961.  It contains 17 sections (44A to 44R) dealing with the filing of election  petition,  grounds  on  which  the  election  of a returned candidate can be declared void the procedure to  be adopted by the Election Commissioner and all allied matters. The Election Petition has to be filed before the Subordinate Judge having jurisdiction over the place where the office of

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the  Smiti  is  situated.  The  grounds  for  declaring  the election void are  enumerated  in  clauses  (a)  to  (c)  of sub-section  (1)  of  Sec.  44-L.  Clause @ incorporates the ground on which the appellant is sought to be  dislodged  by filing an application under Section 45-B. Sec. 44-L @ of the Act reads as under.

       "44-L Ground for declaring election  void  -  (1)         The   Election  Commissioner  shall  declare  the         election of a returned candidate void, if  he  is         of the opinion -

        "@  that  such  person disqualified for election         under the provisions of this Act."

This provision confcrs prwer on the Election Commissioner to declare the election of a returned candidate void if  he  is of  the  opinion  that such person is disqualified on any of the grounds mentioned in sub-section (1) which includes that such  person  was  disqualified  for  election   under   the provisions  of  the Act. Sec 45 contains the list of various disqualifications for a person to become or continue to be a member of the Samiti. We have held above that the  appellant suffered disqualification under Sec. 45 (1)(i) of the Act.

       Section  45-B  which  empowers the District Judge to decide the question of disqualification is quoted hereunder:         "45-B.  District  Judge  to  decide  question  of         disqualification :-

       (1)     Whenever it is alleged that any member of         a  Samiti  is  or  has  become  disqualified,  or         whenever any such  member  is  himself  in  doubt         whether  or  not he is or has become disqualified         such member or  any  other  member  may  and  the         Chairman at  the  request  of the Samiti.  shall,         apply to the place where the office of the Samiti         is situated, for a decision on the allegation  or         doubt.

        (2)    The  District  judge,  after  holding an         enquiry in the prescribed manner shall  determine          whether  or  not  such  member  is or has become         disqualified and his decision shall be final.

       (3)     Pending such decision the member shall be         entitled to act as if he was not disqualified."

Sub-section  (1) of Section 45-B provides that if it is alleged that any member of a Samiti is or has become disqualified, then the member himself if he is in doubt as to whether or not he is or has become disqualified or any other  member  may,  and  the Chairman  of  the  Samiti,  at the request of the samiti, shall apply to the District Judge having jurisdiction over the  place where  the office of the samiti is situated and seek a decision on the allegation or  doubt.    Sub-section  (2)  empowers  the District  Judge to determine the disqualification of the member and  attaches  finality  to  the   decision   given   by   him. Sub-section  (3)  entitles  the  concerned  member  to act as a member as if he was not disqualified during the pendency of the proceedings before the District Judge.

       Having  given  a  resume  of relevant provisions of the Act, we shall proceed to consider whether in view  of  specific

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machinery  provided  under  Chapter  VI-A  to deal with matters connected with election of member/Chairman,  a  petition  under section   45-B  is  maintainable  after  the  election  of  the appellant.  The Election Petition under  Section  44-A  can  be filed by any candidate who need not be a member (Section 44-C); but  an  application  under  Section 45-B can be filed as noted above by a member of the Samiti  who  is  in  doubt  about  his incurring  disqualification  the  Chairman of the Samiti at the request of the Samiti or any  other  member.    Whereas  in  an application under Section 44-A a candidate can claim not only a declaration  that  the  election  of all or any of the returned candidates is void but  also  a  further  declaration  that  he himself or any other candidate stands duly elected Section 45-B is  not  concerned  with  either declaring the election void or granting any consequential declaration as to who has been  duly elected.   It  merely  enables the persons specified therein to invite a decision on the  question  of  disqualification  of  a member.   Though  disqualifications  mentioned in Section 45 of the Act are one of the grounds under Section 44-L on which  the Election  Commissioner  can  declare the election of a returned candidate void; there are also other grounds on which  election of returned  candidate  can  be declared void.  Yet those other grounds cannot be the subject matter of  an  application  under Section 45-B.  Whereas the election petition under Section 44-A has  to  be  filed  within  15 days after the date on which the result of the election was announced on period of limitation is prescribed for an application under Section  45-B;  it  can  be filed at any time while the member continues to act as a member of the  Panchayat Samiti.  There is no doubt that there is some overlapping between the two sections but field of operation  of these two  Sections  is  different  and distinct.  Indeed under section 45-B a District  Judge  is  not  pronouncing  upon  the validity  of  the  location  but  is  only pronouncing upon the questions to whether a member is  or  has  become  disqualified under the  Act.    It  cannot be laid down that on relief under Section 45-B can be claimed after the declaration of the result of election.

       For the above reasons, we have no hesitation in holding that the remedy of filing election petition under Section  44-A is no bar to file application under Section 45-B of the Act for inviting  a  decision  on the question of disqualification of a member.

       In the result, we confirm the order  under  appeal  and accordingly dismiss the same with costs.