1. Election disqualification — Assistant Government Pleader — Alleged service under State Government — Section 139(1)(c), Bihar Panchayat Raj Act, 1993. (Para 1 , 2 )
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2018 Supreme(SC) 687
SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, D.Y. Chandrachud, JJ.
State Election Commissioner, Bihar Patna & others - Appellants
Versus
Janakdhari Prasad and others - Respondents
Civil Appeal No. 1463 of 2008
Decided On : 03-07-2018
Important Points
IMPORTANT POINT
There must be master-servant relationship to hold that a person is in Government service.
There must be master-servant relationship to hold that a person is in Government service.
Subject
Election Law - Disqualification of Candidates
Act Referred
BIHAR AND ORISSA MUNICIPAL ACT: S.198
BIHAR PANCHAYAT ELECTION RULES: R.122
BIHAR PANCHAYAT RAJ ACT: S.139(1)(c)
CONSTITUTION OF INDIA: Art.226, Art.243(f)(1)(b), Art.191, Art.102(1)(a), Art.58(2)
CRIMINAL PROCEDURE CODE: S.109, S.110
MYSORE TOWN MUNICIPALITIES ACT: S.14, S.14(1), S.14(1)(a)(a)(iii)
BIHAR PANCHAYAT ELECTION RULES: R.122
BIHAR PANCHAYAT RAJ ACT: S.139(1)(c)
CONSTITUTION OF INDIA: Art.226, Art.243(f)(1)(b), Art.191, Art.102(1)(a), Art.58(2)
CRIMINAL PROCEDURE CODE: S.109, S.110
MYSORE TOWN MUNICIPALITIES ACT: S.14, S.14(1), S.14(1)(a)(a)(iii)
Headnote
(a) Constitution of India – Article 243F(1)(b) r/w section 139, Bihar Panchayat Raj Act, 1993 and Rule 122, Bihar Panchayat Election Rules, 1995 – Office of profit – Not defined in Constitution or the Act – If there is really some gain, its label ' honorarium' ' remuneration' ' salary' is not material – Even the quantum is not material – gain should be received or receivable – Choosing not to draw emoluments is immaterial. (Para 23, 24)
AIR 1954 SC 653; AIR 1955 SC 166; AIR 1964 SC 254; AIR 1958 SC 52; (1969) 2 SCR 422 ; (1969) 3 SCC 268; (1977) 1 SCC 70; (1985) 1 SCC 151; (2001) 7 SCC 425; (2006) 5 SCC 266 – Relied upon
[1942] AC 561 – Referred
(b) Bihar Panchayat Raj Act, 1993 – Section 139 – Appellant appointed to post of Assistant Government Advocate in the panel of Assistant Government Advocates – No mention of any fixed remuneration – Whether service under State – No master-servant relationship – Respondent not amenable to any disciplinary proceeding – Respondent, held, not in Government service. (Para 33)
AIR 1967 SC 884; AIR 1967 SC 1889 – Relied upon
(1991) 1 SCC 212; (1979) 4 SCC 701; (1988) 3 SCC 144 – Referred
Facts of the case:
Janakdhari Prasad, the 1st respondent herein, was elected in the year 2001 as a member of Panchayat Samiti, Nagarnausa. On 13th February, 2004, the fifth respondent, Ravindra Nath Sharma, filed a petition before the State Election Commission, Bihar contending, inter alia, that the respondent No. 1 was working as an Assistant Government Pleader in Hilsa, subdivision of District Nalanda and, therefore, he was disqualified to hold the post of member, Panchayat Samiti.
The Election Commission disqualified the respondent under Section 139(l)(c) of the Act from the post of Member in the Panchayat Samiti.
The 1st respondent preferred a Writ Petition (CWJC) for quashment of the order of the Commission. The Single Judge set aside the order of the Commission.
Division Bench of the High Court concurred with the view expressed by the Single Judge and dismissed the appeal.
Finding of the Court:
Respondent was not a Government servant.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether appointment to a sanctioned post as a government advocate constitutes service under the State Government, thereby attracting disqualification for membership of a local body. (Para 6 )
3. Analysis of master-servant relationship — Distinction between professional engagement and government service — Absence of disciplinary control and fixed remuneration for Assistant Government Pleaders. (Para 3 , 4 , 11 , 27 , 28 , 29 , 30 , 31 , 32 , 33 )
4. Government service requires a master-servant relationship involving control, disciplinary authority, and status, which is not established in professional engagements of advocates. (Para 28 , 29 , 33 )
5. Appeal dismissed. (Para 34 )
6. What is the legal distinction between an office of profit and service under the government?
They are not synonymous. A person may hold an office of profit without being in service of the government. Service typically requires a master-servant relationship, whereas an office of profit focuses on whether pecuniary gain is receivable in regard to the office. (Para 4 , 11 , 14 , 27 )
7. What criteria determine whether a person is in the service of the government for disqualification purposes?
Service is determined by the existence of a master-servant relationship, indicated by the State's right to select and appoint the holder, the right to suspend and dismiss them, control over the method of work, and the payment of wages or remuneration. (Para 28 )
8. Does the appointment of an Assistant Government Pleader constitute government service?
No. Such appointment is a professional engagement based on a lawyer-client relationship rather than a master-servant relationship. It lacks fixed remuneration, government disciplinary rules, and a fixed retirement age, as the advocate remains subject to Bar Council discipline. (Para 3 , 33 )
9. Does the presence of a public element in a post automatically classify it as government service?
No. While a post may have a public element that makes it subject to judicial review under Article 14 of the Constitution, this does not necessarily establish the master-servant relationship required to classify the holder as being in service of the government. (Para 31 , 32 , 33 )
JUDGMENT :
Dipak Misra, CJI.
Janakdhari Prasad, the 1st respondent herein, was elected in the year 2001 as a member of Panchayat Samiti, Nagarnausa. On 13th February, 2004, the fifth respondent, Ravindra Nath Sharma, filed a petition before the State Election Commission, Bihar (for short “the Commission”) contending, inter alia, that the respondent No. 1 was working as an Assistant Government Pleader in Hilsa, subdivision of District Nalanda and, therefore, he was disqualified to hold the post of member, Panchayat Samiti in view of Section 139(l)(c) of the Bihar Panchayat Raj Act, 1993 (for brevity, ‘the Act’).
2. The Election Commission, in order to decide the issue whether the 1st respondent was in service of the State Government within the sweep of Section 139(l)(c) of the Act, referred to the appointment letter issued by the Law Department, Government of Bihar, vide which the respondent herein was appointed as an Advocate in the panel of Assistant Government Advocates and thereafter observed that the said respondent was holding a post under the State Government and was receiving fees for the cases conducted by him from the Government and hence, he would be deemed to be in service of the State. Being of this view, the Election Commission vide order dated 29.03.2004 disqualified the respondent under Section 139(l)(c) of the Act from the post of Member in the Panchayat Samiti.
3. Aggrieved by this Order of the Commission, the 1st respondent knocked at the doors of the High Court of Judicature at Patna by preferring a Writ Petition (CWJC) No. 4322 of 2004 under Article 226 of the Constitution of India for quashment of the order of the Commission. The learned Single Judge opined that the word “service” has not been defined under the Act and hence, its meaning has to be ascertained in the context it is used and the context in which it is used denotes various classes or category of posts within it. The learned Single Judge further observed that no hard and fast rule can be laid to ascertain as to which category of office shall come within the expression “service”, for host of factors have to be taken into consideration to determine such relationship. He further proceeded to observe that none of the factors may be conclusive and no single factor may be considered absolutely essential. Eventually, he stated:-
“In my opinion, for bringing an office within the expression 'service' of State Government there has to be a relationship of Master and Servant, age of entering and retirement, scale of pay or fixed remuneration, the Conduct and Discipline Rules and such other factors. The presence of one ingredient or the other may not necessarily bring a particular office within the expression 'service' in the context of disqualification but presence of some or the other is necessary for the purpose.”
Thereafter, the learned Single Judge examined the nature of appointment of a Government pleader who is paid a retainership as fee and differentiated between the nature of appointment of an Assistant Government Pleader from that of a Government Pleader and came to hold that so far as the Assistant Government Pleader is concerned, he is appointed to assist the Government Pleader and for the professional work rendered, he is paid remuneration but not paid any retainer fee. He further expressed the view that a Government Pleader is not entitled to appear against the State Government but an Assistant Government Pleader, can appear, against the State Government in a case. The Assistant Government Pleader is basically an Advocate on the roll of the State Bar Council and besides giving professional advice to other litigants by virtue of his/her engagement by the State Government, he/she also advises and represents the State Government in Courts of Law. The appointment of the Government Pleader is governed by the executive instruction which is a tenure appointment and he remains a legal practitioner for all purpose and intent. That apart, the engagement of an
