9911796707
Advanced Search 
TMI Blog1983 (11) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Returning officer by his order dated May S, 1980 on the ground that he was holding an office of profit under the Government of the State of Uttar Pradesh and hence was disqualified under s Article 191(1)(a) of the Constitution for being chosen as a member of the Legislative Assembly. After such rejection the polling took place on May 28, 1980 and the appellant who secured the highest number of votes was declared elected on June 1, 1980. Aggrieved by the result of the election, the respondent who was not allowed to contest the election by reason of the rejection of his nomination paper filed an election petition before the High Court of Allahabad challenging the correctness of the order of rejection of his nomination paper and the result of the election which was held thereafter. He contended that since the-post of an Assistant Teacher in a Basic Education School which he held was not an office of profit under the State Government the rejection of his nomination was improper and, therefore, the election of the appellant was liable to be declared as void as provided in section 100(1)(c) of the Representation of c the People Act, 1951. The High Court being of the opinion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with in Part XIV of the Constitution. For holding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such an whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court observed in the course of its judgment at page 394 thus: "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 removable 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 decisive factor. But the appointment of the appellant does not come within this test." I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duties were controlled by the Comptroller and auditor General who was different from the Government. This Court rejected the plea of the appellant holding that what had to be considered was the substance of the matter and not the form. It observed: "In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government companies within the meaning of the Indian Companies Act, 1956 and 100% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder of an office of profit under the Government, though there are safeguard in the Constitution as to his tenure of office and removability therefrom ...As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case." Ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government to appoint the Managing Director and to issue directions to the Company in its general working does not bring respondent No. 1 directly under the control of the Government." Divya Prakash v. Kultar Chand Rana & Anr.(1) is a decision of this Court which is very close to the present case. There the Court had to consider whether the post of a Chairman of the Board of School Education of the State of Himachal Pradesh appointed under section 18 of the Himachal Pradesh Board of School Education Act, 1968 was an office of profit under the State Government. The Court while holding that the said office was an office under the State Government held that since the candidate concerned was appointed in an honorary capacity without any remuneration ever though the post carried remuneration, he was not holding an office of profit and thus was not disqualified under Article 191(1)(a) of the Constitution. Now we come to the latest decision of this Court which is very relevant of purposes of this case and that is State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors in which the question was whether the employees transferred to the Gujarat Panchayat Service and working und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linary action which may be taken against them, are to be regulated by the Rules made by the Government. The Rules so made are particularly required to contain a provision entitling servants so such cardres in the panchayat service to promotion to such cadres in the State service as may be prescribed vide Section 203(4)(a). This is an important provision. There cannot be any question of a rule providing for promotion from the panchayat service to the State service unless the panchayat service is also a service under the State. Again Section 203(5) requires that rules may provide for inter-district transfers of servants belonging to the panchayat service and the circumstances in which and the conditions subject to which such transfers may be made. This provision along with the other provisions of Section 203 which provide for the promotion and transfer of servants belonging to the district, taluqa and local cadres within the district, taluqa and gram or nagar clearly show that the servants are not the servants of the individual panchayats but belong to a centralised service." In the light of the above pronouncements we shall proceed to examine this case. There is no dispute tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the educational session 1973-74 with the result that the desired object would not have been achieved. Therefore, in order to implement the said decision immediately, the Uttar Pradesh Basic Education Ordinance, 1972, was promulgated. (5) The Uttar Pradesh Basic Education Bill, 1972, is being introduced to replace the said Ordinance." A reading of the above Statement of objects and Reasons shows that the Act was enacted for the purpose of enabling the State Government to take over the responsibility of primary education from the local authorities such as Zila Parishads, Municipal Boards and Mahapalikas. For this purpose the Act provides for the constitution of a Board to run the school imparting primary education instead of keeping them as a part of a Department of Education of the State Government. The Board is established by the State Government under section 3 of the Act with the Director, ex officio, as its Chairman. The other members of the Board are two persons to be nominated by the State Government from amongst Adhyakshas, if any, of Zila Parishads; one person to be nominated by the State Government from amongst the Nagar Pramukhs, if any, of the Mahapalikas; one p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any district or in the State or in any part thereof; (f) to acquire, hold and dispose of any property, whether movable or immovable and in particular, to accept gift of any building or equipment of any basic school or normal school on such conditions as it thinks fit; (g) to receive grants, subventions and loans from the State Government; (g-1) to have superintendence over the Zila Basic Shiksha Samitis and the Nagar Basic Shiksha Samitis in the performance of their functions under this Act and subject to the control of the State Government, to issue directions to the Samitis which shall be binding on such Samitis; (g-2) to constitute sub-committees (from amongst the members of the Zila Basic Shiksha Samitis and Nagar Basic Shiksha Samitis) for such purposes as the Board thinks fit; (h) to take all such steps as may be necessary or convenient for, or may be incidental to the exercise of the power, or the discharge of any function or duty conferred or imposed on it by this Act; Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, he became an employee of the Board under section 9(1) of the Act which provided for the transfer of employees of the local bodies to the Board. Section 9(1) of the Act reads thus : "9. Transfer of employees-(1) On and from the appointed day every teacher, officer and other employee serving under a local body exclusively in connection with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same if the Board had hot been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are altered by the rules made by the State Government in that behalf: Provided that any service rendered under the local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board: Provided further that Board may employ any such teacher, officer or other employee in the discharge of such func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above Schedule are either the State Government or officers appointed by the State Government. The said officers are all officers of the Government Department who hold the posts in the Board ex officio, that is, by virtue of the corresponding post held by them under the Government. The Rules provide for the procedure to be followed in disciplinary proceedings and the punishments that may be imposed when an employee is found guilty of any act of misconduct. Rules 5 of the said Rules provides for an appeal against any order imposing punishment to the prescribed authority. The procedure laid down in Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the Uttar Pradesh Government is required to be followed as far as possible in the case of the employees of the U.P. Board of the Basic Education. The funds of the Board mainly come from the contribution made by the State Government. The school in question is not a privately sponsored institution which is recognised by the Board. The Statement of Objects and reasons attached to the Bill which was passed as the Act clearly says that the Act was passed in order to enable the State Government to take over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the final decision of the State Government or other Government officers, as the case may be. This Court, as mentioned earlier, held in Divya Prakash's case (supra) that the officers of the Board of School Education constituted under the Himachal Pradesh Board of School Education Act, 1968 which was a body corporate having perpetual succession and a common seal held their offices under the Government although in that particular case it was held that the office was not an office of profit as the person concerned was working in an honorary capacity. We have gone through the Himachal Pradesh Board of School Education Act, 1968 and we find that the provisions of that Act are almost similar in pattern to the provisions of the Act with which we are concerned in this case. On behalf of the respondent it is however urged that the Board of Basic Education being a body corporate having perpetual succession and a common seal its employees cannot be considered as holding any office of profit under the Government and in support of this contention reliance has been placed on the decision of the High Court of Allahabad in Radha Krishna Visharad v. Civil Judge, Aligarh & Ors. In that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponsibility of its Government and as observed earlier the Act was passed with the object of enabling the Government to take over all basic schools which were being run by the local bodies in the State and to manage them as provided specifically in section 4(2) (cc) of the Act and to administer all masters pertaining to the entire basic education in the State through the Board consisting mostly of officers appointed by the Government. The rules made regarding the disciplinary proceedings in respect of the teachers in the basic schools managed by the Board as observed earlier vest the final voice in the State Government or its Officers and almost the entire financial needs of the Board are met by the Government. The Board for all practical purposes is a department of the Government and its autonomy is negligible. Sub-section (2) of section 13 of the Act which emphasis is placed by the respondent is also not of much significance. It no doubt recognises the possibility of a dispute arising between the Board and the Government regarding the functions of the Board but that very sub-section provides that if any such dispute arises the decision of the State Government shall be final and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
