Important Points
1. An Assistant Public Prosecutor appointed temporary and functioning provisionally as Assistant public Prosecutor is holding ‘office of profit’ within meaning of Section 45(1)(i) of the Orissa Panchayat Samiti Act and as such disqualified to become member of Samiti.
2. Remedy of filing election petition u/s 44-A of the Orissa Panchayat Samiti Act is no bar to file application u/s 45-B for inviting a decision on the question of disqualification of a member.

Headnote:(i) Orissa Panchayat Samiti Act, 1959-Section 45(1)(i)-Disqualification for becoming member-Holding any office of profit under State/Central Govt.-Assistant public prosecutor-Provisional appointment temporarily-Holds office of profits-Not eligible to stand for election.
       Held : 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. (Para 14)
       15. 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 aperson 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 one remains in office is irrelevant to decide whether he holds it as office of profit. We have, therefore, no hesitation in concluding that the appellant was holdingoffice 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 Section 45 he shall cease to be a member affortiori to be the Chairman of the Samiti. (Paras 15 & 16)
       (ii) Orissa Panchayat Samiti Act, 1959-Section 45-B read with Section 44A-Application to decide question of disqualification-Application u/s 45-B after election-Remedy of filing election petition u/s 44A is no bar to file application u/s 45-B.
       Held : 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 invita decsiion on the question of disqualificationof 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, no 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 the 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 election but is only pronouncing upon the question as to whether a member is or has become disqualified under the Act. It cannot be laid down that no 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. (Paras 19 & 20)

Judgment

Quadri, J.-Leave is granted.

2. The question that arises in this appeal is whether the appellant was holding ‘office of profit’ under the State Government 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, 1959.

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

3.1 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 35 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 respondnet 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 Section 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 Government, 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 Section 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.

3.2 On September 20, 1997, the learned District Judge held that the petition under Section 45-B was maintainable and that the appellant was holding office of profit under the Government within the meaning of Section 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.

4. 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 offence of profit; and (ii) after the election of the appellant was over only Election Petition under Section 44-A but not petition under Section 45-B of the Act was the remedy of the fourth respondent.

5. 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.

The District Magistrate,

Mayurbhanj.

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

Sir,

I am directed to say that Government 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 Section 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 A.P.P. Bar

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1999 Supreme(SC) 223

Cases Referred (3)