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