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D.S. Awasthi and ors. Vs. Virendra Swaroop - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberElection Petn. No. 43 of 1974
Judge
Reported inAIR1976All26
ActsConstitution of India - Articles 183 and 191 (1); Uttar Pradesh State Legislature (Prevention of Disqualifications) Act, 1971 - Sections 3; Madhya Pradesh Vidhan Mandal Sadasya Nirhate Nivaran Adhiniyam, 1967
AppellantD.S. Awasthi and ors.
RespondentVirendra Swaroop
Appellant AdvocateS.N. Shukla and ;B. Dwivedi, Advs.
Respondent AdvocateN.S. Misra, ;Prabodh Gaur, ;N.B. Singh, ;V. Swaroop and ;S.N. Verma, Advs.
Excerpt:
constitution - disqualification - article 191(1) (a) of constitution of india and section 3 of u.p. state legislature(prevention of disqualification) act, 1971 - office of chairman of u.p. legislative council is not an office of profit under the state government - chairman not disqualified from being chosen member of u.p. legislative council. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board.....orderamitav banerji, j.1. reasons for the findings on issues no. 1 (a) and (b):on the 12th may. 1975, after i had heard the counsel for the parties, i had recorded the following findings on issues nos. 1 (a), 1 (b).'i, therefore, answer issues nos. 1 (a) and (b) in the nagative and against the petitioners.'2. i had also indicated that the reasons would be given later- i now proceed to give the reasons for the above findings.3. the two issues nos. 1 cal and (b) are as follows:--1 (a) whether the respondent no. 1 was disqualified from being chosen as a member of the legislative council of the state since he was at the time of the filing of his nomination holding the office of the chairman of the legislative council, u. p.? (b) whether the respondent no. 1 was holding an office of profit.....
Judgment:
ORDER

Amitav Banerji, J.

1. Reasons for the findings on Issues No. 1 (a) and (b):

On the 12th May. 1975, after I had heard the counsel for the parties, I had recorded the following findings on issues Nos. 1 (a), 1 (b).

'I, therefore, answer issues Nos. 1 (a) and (b) in the nagative and against the petitioners.'

2. I had also indicated that the reasons would be given later- I now proceed to give the reasons for the above findings.

3. The two issues Nos. 1 Cal and (b) are as follows:--

1 (a) Whether the respondent No. 1 was disqualified from being chosen as a Member of the legislative Council of the State since he was at the time of the filing of his nomination holding the office of the Chairman of the Legislative Council, U. P.?

(b) Whether the respondent No. 1 was holding an office of profit under the State Government and was precluded from being elected a Member of the Legislative Council of the State in view of the provisions of Article 191 of the Constitution of India

Those two issues required no evidence and the learned Counsel for the partieswere heard in support of their respective contentions. Before I advert to the argument raised on behalf of the petitioner it will be relevant to mention the specific case that was taken in the election petition. The relevant averments are contained in paragraph 6 of the election petition and the relevant ground in respect thereof is raised in paragraph 33 (iv). This paragraph of the election petition reads as follows:--

6. That the respondent No. 1 (who is the Returned Candidate) had filed his nomination paper during the term of his office of Chairman of Legislative Council, U. P. without resigning from the said office and as such an objection was filed against his candidature by the Respondent No. 3, on 3-3-1974 inter alia on the ground that Shri Virendra Swaroop, respondent No. 1 was getting salary under the provisions of the U. P. State Legislature (Officers Salaries and Allowances) Act, 1952 and as such he was clearly disqualified from being chosen as a member of the Legislative Council of State under Article 191 of the Constitution of India and further that the Acts made by the U. P. State Legislature for prevention of disqualification also do not include the office of Chairman of the U. P, Legislative council. The true copy of the objections filed by petitioner No. 3 is Annexure III to this petition.'

Paragraph 33 (iv) contains the ground on which the election was challenged. Ground No. (iv) reads as follows:

'Because on the date of his election the returned candidate Shri Virendra Swaroop was disqualified to be chosen to fill the seat under Article 191 of the Constitution of India as he held the office of profit, under the Government.'

4. The contention of the learned counsel for the petitioner is that the respondent No. 1 was precluded from being elected as a Member of the Legislative council, Uttar Pradesh as he was holding an office of profit under the State Government and that no exemption had been made under the Constitution or under any provision of law to except the holder of such office from being disqualified from being chosen as a Member of the Legislative Council of the State. The relevant provision of the Constitution is contained in Article 191(1) and Clause (a). It reads as follows:--

'191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;'

It therefore, makes it clear that no person can be chosen to be a Member of the Legislative Council of a State if he holds an office of profit under the State Government except in a case where the hold-ins of such office has by a law been declared not to be a disqualification. In the present case learned counsel for the petitioner contended that the respondent No. 1 held, at the time of the filing of his nomination paper, the office of the Chairman of the Legislative Council. Uttar Pradesh; it was an office and an office of profit as well. He further contended that this was an office of profit under the State Government. The controversy in the present case is limited to only one question namely, whether the respondent No. 1 held an office of profit under the State Government. Learned Advocate-General appearing for the respondent No. 1 very fairly conceded that the respondent No. 1 was not only holding an office but an office of profit, but it was not under the State Government. He also conceded that there was neither any provision in the Constitution nor any other law under which the holding of such an office was declared not to be a disqualification. The principal question, therefore, to be considered in this case is whether the respondent No. 1 held an office of profit under the State Government at the time when he filed the nomination paper. If the answer is in the affirmative then the holding of such an office will be a disqualification but if the answer is in the negative, then it would not amount to any disqualification for the respondent No. 1 from being chosen as a Member of the Legislative Council. Uttar Pradesh.

5. In support of his above contention learned counsel urged that the Government exercises its powers through the Executive, Legislative and the Judicial branches of the Government. Each one of them is a branch of the Government Consequently, he submitted that any person holding an office of profit under any one of the above 3 branches will be deemed to be holding an office under the State Government. Another contention of his which needs to be considered along with these submissions is that the salaries and allowances of the Chairman of the Legislative Council are paid by the State Government and that makes him a holder of an office of profit under the State Government.

6. It is conceded by the counsel for the parties that there is no reported decision of any High Court or the Supreme Court as to whether the office of the Chairman of the State Legislative Council or the Speaker of the State Assembly holds an office of profit under the State Government. This question will, therefore, have to be considered in reference to the various provisions of the Constitution of India and in reference to certain decisions of various High Courts and of the Supreme Court of India.

7. A question arose whether the Member of the Legislative Council of the State holds an office of profit in the case of Ramnarain v. Ramchandra. AIR 1958 Bom 325. A Division Bench of the Bombay High Court considered the provisions of Article 191(1)(a) of the Constitution in an appeal under Section 116-A of the Representation of the People Act, 1951. One of the questions considered in that appeal was that the respondent Ramchandra was a sitting member of the Bombay Legislative Council and was also receiving Day in that capacity. A question whether he was holding an office of profit under the State Government arose in that case. It was held in that case that the payment of salary to the member of the Legislative Council made the office of the member of the Legislative Council as an office of profit, but the Court repelled the contention that the payment of salary by the State Government to such a person will amount to his holding an office of profit under the State Government. The counsel for the appellant Ramnarain in that case had contended that the chief criterion to ascertain as to whether a person was holding office under the State Government was the source from which the salary was paid. Repelling this contention it was observed:

'In our view, the source from which the salary is paid to a person holding office is not necessarily the sole test to determine whether he is holding an office under the State Government. The principal criterion is whether the appointment to the office and removal therefrom of a person is under the control of the State Government. If it be so, then it could safely be said that that person holds an office under the State Government. In the instant case, the appointment of the respondent to the office of the membership of the Bombay Legislative Council was not under the control of the State Government.' It was then observed: 'It is common ground that the respondent was elected to the Bombay Legislative Council, and under the provisions of Section 157 of the Act of 1951 he assumed the office of the membership of the Legislative Council as and from the date his name was notified in the Official Gazette. Notification of members elected is not at the option of the State Government but is obligatory on it under the provisions of Section 74 of the Act of 1951. Thus, the respondent does not owe the appointment to this post to the State Government. There is no provision in any of the enactments enabling the State Government to remove any member of the Legislative Council from his office.'

It was held in this case that a Member of the Legislative council was not a person holding an office of profit under the State Government at the time of his election. It was further held that the provisions of Article 191(1)(a) of the Constitution were not attracted to the facts of that case.

8. It will, therefore, be seen that the principal test laid down in the above decision was whether the appointment to the office and its removal is under the control of the State Government. The source from which the payment of salary and allowances was made was held not to be the chief criterion for ascertaining as to whether a person holding office was under the State Government or not.

9. In the case of Dr Deorao Laxman Anande v. Keshav Laxman Borkar, AIR 1958 Bom 314 another Division Bench of the Bombay High Court considered the provisions of Article 191(1)(a) of the Constitution and the test for deciding whether it was an office of profit under the State Government. This was also an appeal against the order passed by an Election Tribunal One of the questions for consideration was whether the appellant was disqualified to be a Member of the Legislative Assembly since he was an Insurance Medical Practitioner and whether such an office was an office of profit under the State of Bombay. Three tests were stated to be the principal tests for determining whether an office is under the Government and to put it in the words of Chainani, J., it was expressed thus:

'In our opinion, the principal tests for deciding whether an office is under the Government, are (1) what authority has the power to make an appointment to the office concerned, (2) what authority can take disciplinary action and remove or dismiss the holder of the office and (3) by whom and from what source is his remuneration paid Of these, the first two are, in our opinion, more important than the third one.''

10. In the case of Rustom Satin v. Dr. Sampoornanand, (1959) 20 Election LR 221 a Division Bench of this Court had occasion to consider whether the Chairman of the Legislative Council and the Ministers of State were Government servants. In the case of the Chairman of the Uttar Pradesh Legislative Council an argument was advanced by the learned counsel for the appellant in that case that Shri Chandra Bhal was a Government servant: (1) because he received his salary from the State exchequer. (21 because his name appeared in the Civil List, and (3) because his services were whole-time. The Division Bench observed:

'In our opinion, none of these reasons can be said to provide the correct test for determining that question. Itseems to us that the relevant tests for determining that question are:

(1) whether the person concerned was appointed by the Union or the State Government and whether his services could be terminated by the former,

(2) whether the appropriate Government has power to take disciplinary action against that person and further whether it can regulate, control and supervise his work.'

The Division Bench further relied on two decisions of the Supreme Court in Lakshminarayan, Ram Gopal and Sons Ltd. v. Government of Hyderabad, 1955 SCR 393 = (AIR 1954 SC 364) and Dha-rangadhara Chemical Works Ltd. v. State of Saurashtra. 1957 SCR 152 = (AIR 1957 SC 264) where their Lordships of the Supreme Court had occasion to lay down the chief characteristics which distinguish the relation of master and servant on the one hand, from those of principal and agent and contractor and workman on the other. It was held by the Supreme Court in the former case that a master has the further right to direct how the work is to be done by the servant, while in the latter case it held that

'the Prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.' The Division Bench applied those tests and held that Shri Chandra Bhal was not a Government servant. The Division Bench further observed as follows: 'He owed his appointment as chairman of the Legislative Council to his election under Article 182 of the Constitution. The circumstances under which his services could come to an end are enumerated in Article 183, while the procedure which had to be followed before he could be removed from his office is laid down in Article 185. In none of these crucial matters the State Government has any hand. The manner in which the business of the Legislative Council is to be conducted is laid down in Articles 188 and 189, but even they do not lay down the manner in which the work of the Chairman can be controlled, regulated or supervised, presumably because as Chairman he would himself be incharge of them. Further, Article 189(1) also gives the Chairman the right to vote in case of equality of votes in the Council, a right which we should not expect any Government servant to have. The argument that, as the salary and the allowances of the Chairman are paid out of the Government coffers he should be regarded as its servant, is also not tenable. The salary and allowances are paid to him by theGovernment not because the later is his master but because Article 186 of the Constitution enjoins their payment on the State Government.'

These observations of the Division Bench are significant for they pertain to the holder of an office of the Chairman of the Legislative Council of Uttar pradesh. It is true that in this case their Lordships were not considering the provisions of Article 191(1)(a) of the Constitution, but nevertheless they were considering whether Shri Chandra Bhal, the then Chairman of the Legislative Council of Uttar Pradesh was a Government servant. Their answer was in the negative. This authority of the Division Bench of our court, is, therefore, an authority for the proposition that the Chairman of the Legislative Council of the State of Uttar Pradesh is not a Government servant

11. I will now refer to a decision of the Supreme Court in the case of Guru Gobinda Easu v. Sankari Prasad. AIR 1964 SC 254 where their Lordships were considering whether a person appointed as auditor of Durgapur Projects Ltd. and the Hindustan Steel Ltd.. held an office or profit under the Government within the meaning of Article 102(1)(a) of the Constitution. The provisions of Article 191(1)(a) and Article 101(1)(a) are similar. The Court considered the provisions of Article 102 of the Constitution and the decisions in the case of Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 and Ramappa v. Sangappa, AIR 1958 SC 937. In both these cases the Supreme Court had laid down that the decisive test was the test of appointment. Their Lordships then observed:

'In view of these decisions we cannot accede to the submission of Mr. Chaudhuri that the several factors which enter into the determination of this question the appointing authority, the authority, vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid and the authority vested with power -to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an offence under the Government Central or State, is not satisfied. The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case. However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.'

It would thus be seen that their Lordships laid down that where all the elements, namely, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a case then the person is said to hold an office of profit under the State Government.

12. In the case of Shivamurthy Swami v. Agadi Senganna Andanappa (1971) 3 SCC 870 their Lordships of the Supreme Court laid down five tests to find out whether the office in question is an office under the Government and whether it is en office of profit. These five tests are:

(1) Whether the Government makes the appointment,

(2) whether the Government has the right to remove or dismiss the holder.

(3) Whether the Government pays the remuneration,

(4) What are the functions of the holder Does he perform them for the Government and

(5) does the Government exercise any control over the performance of these functions

13. It is thus clear that in order to show that a person has held an office of profit under the State Government these tests laid down by their Lordships of the Supreme Court have to be satisfied.

14. It will, therefore, be necessary to apply these tests to see whether the Chairman of the Legislative Council of Uttar Pradesh holds an office of profit under the State Government.

15. The first question is whether the Government makes the appointment. I am of the opinion that the answer must be in the negative. The members of the Legislative Council are elected by an electoral college as provided for in Article 171(3) of the Constitution. It provides for the election of one-third of the total number of members by the members of municipalities, district boards and other local authorities. One-twelfth of the total number of members of the Legislative Council are elected by graduates of the Universities of the State. Similarly, one-twelfth of the total number of members of the Legislative Council are elected by teachers of educational institutions within the State. One-third of the total numberof the members of the Legislative Council are elected by the members of the Legislative Assembly. The remainder are nominated by the Governor, in accordance with Clause (5) of Article 171 and these members have special knowledge or practical experience in respect of literature, science, art, co-operative movement and social service. It will thus be seen that five-sixth of the total membership of a Legislative Council are elected. Both the elected and the nominated members choose two members of the Council to be respectively the Chairman and Deputy Chairman of the Legislative Council. It will thus be seen that the members are thus elected barring those who are nominated by the Governor and these members then choose the Chairman and the Deputy Chairman. The Government has no hand for making any appointment. Where a person is elected to an office there can be no concept of a person being appointed to that office Appointment connotes that it is done by some one authorised to make the appointment. There is no provision in the Constitution giving any power to any authority to make the appointment to the office of the Chairman, Legislative Council. It cannot, therefore, be said that the Government appoints the Chairman of the Legislative Council. The first test is, therefore, not satisfied. The Second test is whether the Government has the right to remove or dismiss the holder. Article 183 of the Constitution provides for the vacation and resignation and the removal from the offices of Chairman and Deputy Chairman. There are three clauses in Article 183. A Chairman of the Legislative Council has to vacate his office if he ceases to be a member of the Council. Secondly, he may resign his office. Thirdly, he may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council. There is no other provision in the Constitution for the removal of the Chairman of the Legislative Council. There is no provision for his dismissal at all. The only way he can be removed from his office is by his fellow-members of the Legislative Council and not by the Government. There is no provision that either the Governor or the Chief Minister of the State may remove him or get him dismissed. Consequently, the second test is also not satisfied.

16. The next test is whether the Government pays the remuneration. The answer to this test will be in the affirmative. Article 186 of the Constitution provides that salaries and allowances to the Speaker and the Deputy Speaker and the Chairman and Deputy Chairman of the Legislative Assembly and Legislative Council respectively shall be paid as may be fixed by the Legislature of the Stateby Law. which in effect means that the salaries and allowances are to be paid by the State Government. The State Government pays the salary of the Chairman of the Legislative Council because Article 186 enjoins such payment. It is a constitutional provision. The burden of paying the Chairman of the Legislative Council has been placed on the State Government.

17. The next test is: What are the functions of the holder and does he perform them for the Government The function of the Chairman of the Legislative Council is principally to conduct the business of the House of the Legislative Council. It is a legislative body. It deliberates and has rules of business to conduct its affairs. Bills introduced either by the Government or by members are to be considered, deliberated upon and either passed or rejected. The function of the Chairman is to preside over the sittings of the House and guide its activities. He does not do so at the bidding of the Government or at the command of the Government. He is the master of the House and does not take orders from the Government as to how the business of the House is to be conducted. His principal function, therefore, is to see that the business before the House is conducted properly and duly. He does not take orders from the Government nor does the Government under any provision of the Constitution direct him as to how he should conduct the business of the House. He does not perform the functions for the Government. Where there are two Houses of Legislature in a State the legislative Council, being the Upper House has to consider all legislations brought before it and either vote in its favour or reject it. The voting is also done by members who are also not appointed by the Government. It will, therefore, be seen that the Legislative Council is an independent body and the Chairman of the Legislative Council is a person independent of Government control. I am therefore, of the opinion that the Chairman of the Legislative Council does not perform any function for the Government as Chairman,

18. The last test is whether the Government exercises any control over the performance of these functions. In my opinion, this test Is again not satisfied in the present case for there is nothing in the constitution which gives the State Government any control as to how these functions of the Chairman of the Legislative Council are to be performed. As stated earlier, the Chairman of the Legislative Council is the master of the House. How the proceedings should be conducted, in what manner and in what order, are the prerogative of the Chairman, andin his absence, of the Deputy Chairman. Nothing could be shown from any provision under the Constitution as to how the Government exercises any control over the performance of these functions by the Chairman of the Legislative Council. In common practice it is found that the party which commands a majority in the Legislative Council usually manages to appoint one of their members the Chairman of the Legislative Council. If that party also happens to form the Government then the Chief Minister may also belong to the same Party, but that does not mean that it is the Chief Minister who controls or regulates the business in the Legislative Council. That privilege is entirely of the Chairman of the Legislative Council. I am therefore, not satisfied that this test is also satisfied in the present case,

19. Therefore, out of the five tests if the State Government pays the salary or allowances of the Chairman of the Legislative Council it does not make him hold an office of profit under the State Government. As stated earlier, he is paid by the State Government not because of a decision by the State Government but because the Constitution enjoins it under Article 186. After all the Chairman and the Deputy Chairman of the Legislative Council and the Speaker and Deputy Speaker of a Legislative Assembly of a State have to be paid their salaries and allowances. Some authority has to pay. Which should be that authority Naturally, their salaries and allowances must come out from the coffers of the State. In the case of the Speaker and Deputy Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha their salaries and allowances are paid by the Union of India. That does not make them either a Government servant or a holder of an office of profit under the Government. According to the principles laid down by their Lordships all the five tests must be satisfied before it is held that a person is holding an office of profit under the State or the Union Government. It has been seen in the present case that the tests laid down by their Lordships of the Supreme Court are not satisfied in the present case. Merely because the State Exchequer pays the salaries and allowances of the Chairman of the Legislative Council does not make him a person holding an office of profit under the State Government. The other essential tests had to be satisfied. These have not been satisfied. Consequently, it cannot be said that the Chairman of the Legislative Council, Uttar Pradesh holds an office of profit under the State Government.

20. The contention of the learned counsel that the Legislature of a State is a part of the Government and, therefore, a member of the Legislature, became a part of the Government and as such he became the holder of an office of profit under the State Government cannot be accepted. This argument, if taken to its logical conclusion, would result in serious anomalies in the interpretation of the various constitutional provisions. Then in that event every member of the Assembly or Legislative Council will be a holder of an office of profit under the Government. This contention cannot be accepted. The constitutional provisions have to be interpreted as they exist. External aid is not necessary to interpret Article 191(1)(a) of the Constitution. It states in simple language about the disqualifications for membership of the State Legislative Assembly or the State Legislative Council under certain conditions. In my opinion, there is no ambiguity in the words used in Clause (a). The words 'office' or 'office of profit' under the Government of India or the Government of a State have come up for judicial inter-pretation in various courts and we have authoritative pronouncements on the subject. None of them contemplate or visualise the situation where every member of the Assembly or the Legislative Council is deemed to be holding an office of profit simply because he has been chosen as a member of the Assembly or the Legislative Council. In the case of AIR 1958 Bom 314 (supra) dealing with the object of Article 191 it was observed:

'The object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. Putting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members of the Legislature. This object must always be borne in mind in interpreting Article 191.'

I am in respectful agreement with the aforesaid view. If the object was to ensure that the Legislature does not contain persons who have received favours or benefits from the executive then the very object would be negatived if it be held that all the members of the Assembly and the Legislative Council held office of profit under the State Government. That was never the intention of the framers of the Constitution. The object was to have only such persons elected to the membership of the Legislature who were not receiving any favours or benefits from the Government and were not under governmental control. Otherwise, the Legislature would never be independent body. It would then be subservient to the Executive. Under our Constitution the part assigned to the Legislature is clear and definite. It is an independent body. It is not subservient to the Executive or the Government. The independence of the members could only be ensured if the membership of the Legislature was restricted to persons who have not received favours or benefits from the Executive and who are consequently, not under its obligation. If the contention of the learned counsel for the petitioners is accepted it would lead to a proposition which is not conceived of under the Constitution. I am, therefore, unable to accept the above contention of the learned counsel for the petitioners.

21. Learned counsel then referred to certain provisions of thp Constitution by way of analogy to contend that the exemption clause in respect of the Chairman of the Legislative Council was deliberately not made because he held an office of profit under the Government. Learned counsel cited the provisions of Article 191(2) which makes provisions for an exemption clause in respect of a Minister either for the Union or for a State. Clause (2) of Article 191 reads as follows:

'(2) For the purposes of this article, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.'

It was contended that in respect of a Minister there was an exemption in Article 191(2) itself but not in respect of the Chairman of the Legislative Council. Consequently, it was urged that the Chairman of the Legislative Council, who also held an office of profit, did so under the State Government. A Minister in the State Government holds an office of profit under the State Government. He is a part and parcel of the Executive branch of the State Government. He can be removed or dismissed from his post of a Minister by the Governor. The Government has power to take disciplinary action against him and further it can regulate or supervise his work. Further, if Sub-clause (2) of Article 191 were not there, then in that event every Minister of the State Government would be under an obligation to resign from the office of Minister prior to the filing of his nomination for seeking election either to the Legislative Assembly or to the Legislative Council. It will then result in a situation that even before the date of nomination all the Ministers of the State Govt. have to resign or quit their offices. Thus until the elections were over the State Govt. would be left without a Minister or even a Chief Minister. The framers of the Constitution never intended that such a situation should develop. It was therefore, necessary to provide for an exemption clause in respect of a Minister of the State Government.

22. Learned counsel for the petitioners then referred to Sub-clause (4) and to the Explanation of Article 66 which relates to the election of Vice-President. Sub-clause (4) states that a person shall not be eligible for election as Vice-President if he holds any office of profit under the Government of India or the Government of any State pr under any local or other authority subject to the control of any of the said Governments. Explanation which follows Sub-clause (4) reads as follows:

'Explanation:-- For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.'

A similar provision exists in the case of the President of the Union in Article 58. These Articles 58 and 66 are contained in Part V of the Constitution which relates to the Union. It is also contained in Chapter I which relates to the Executive. Article 53 provides that the Executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The Vice-President shall be ex-officio Chairman of the Council of States and during the period when the President is not available or there is a vacancy in the office of the President the Vice-president shall act as President and exercise all the powers of the President. Articles 58 and 65 relate to two highest offices of the Union under our Constitution. These are Executive posts and it was, therefore, necessary to make provision for exemption from the disqualification in respect of the offices held by those two highest officials of the Union. If there was no exemption clause then any person holding the office of President, Vice-president. Governor of a State, Minister of Union or State Government had to vacate these offices before seeking election to the office of the President or of the Vice-President of India. If the exemption clause was not there then even for seeking a second term the President or the Vice-President would have to vacate their offices. It was therefore, necessary to provide for the exemption clause in respect to the offices held by them. The Vice-President of India also presides over the Council of States but is also the holder of an office next to the President and has certain other duties as well. The Chairman of the Legislative Council has no functions of the Governor of a State nor does he officiate or act as the Governor of a State when the Governor is removed, dies or resigns or vacates the office. Therefore, it cannot be contended that the Chairman of the Legislative Council also holds an office of profit under the State Government, There can be no analogy on the basis of Articles 58 and 66 in relation to the office held by the Chairman of the Legislative Council of a State.

23. It was then contended that the State of Madhya Pradesh had enacted a law called the Madhya Pradesh Vidhan Man del Sadasya Nirhate Nivaran Adhiniyam, 1967 which provides that

'a person shall not be disqualified for being chosen as, or for being, a member of the Madhya Pradesh Legislative Assembly or the Madhya Pradesh Legislative Council by reason only of the fact that he holds any of the offices of profit under Government specified in the Schedule.'

The Schedule to this Act mentions a list of offices provided under Government and thereunder at serial Nos. 1 and 2 are mentioned a Speaker and Deputy Speaker of the State Legislative Assembly and a Chairman and Deputy Chairman of the State Legislative Council. On the basis of the above learned counsel contended that the Chairman of the State Legislative Council holds an office of profit under Government in the State of Madhya Pradesh. It appears so from a perusal of the Madhya Pradesh Act No. 16 of 1967. In Uttar Pradesh there is an Act called the U p State Legislature (Prevention of Disqualification) Act, 1971. U. P. Act No. 15 of 1971. In Section 3 of the above Act certain offices which are said to be offices of profit have been exempted from the disaual in cation. The list of such offices as contained in Clauses (a) to (t) of Section 3 does not include either the Speaker or the Deputy Speaker of the State Legislative Assembly or the Chairman or the Deputy Chairman of the State Legislative Council. Clause (a) of Section 3 refers to the Minister of a State or Deputy Minister or a Parliamentary Secretary to the Minister for the Union or for the State. The mere fact that the State of Madhya Pradesh has included the Chairman of the State Legislative Council as a holder of an office of profit under Government will not lead to the inference that the holder of the office of the Chairman of the Legislative Council in other States and particularly in the State of Uttar Pradesh holds an office of profit under Government. It is not known under what circumstances the Chairman and the Deputy Chairman of the Madhya Pradesh State Legislative Council and the Speaker and Deputy Speaker of the Madhya Pradesh State Legislative Assembly were said to be holding an office of profit under Government. Merely because one State has such a provision would not lead to the inference that the Chairman of the. Legislative Council of any other State also-holds an office of profit under the Government of the State. Similar provision as like the Madhva Pradesh Act does not appear to exist in any other State. If the tests laid down by their Lordships of the Supreme Court are applied the Chairman of the Legislative Council cannot fee said to be holding an office of profit under the Government. Consequently, in my opinion, there was no necessity to provide in the U. P. Act No. 15 of 1971 that the Chairmain of the Legislative Council or the Speaker of the Legislative Assembly were (not ?) holding an office of profit under the State Government.

24. The next contention was that the words 'the holder of an office' connote that it was being held under some one. The question was: under which authority was the Chairman of the Legislative Council holding office. This contention, in nay opinion, is without substance. The office of the President or the Vice-President or the Speaker of the Lok Sabha or of the Legislative Assemblies or the Chairman of the Legislative Councils ara all offices under the Constitution. They are not being held under somebody. They are offices provided for in the Constitution itself. Consequently, the Question of there being a master and sevant relationship does not exist in respect of these offices. The concept of 'holding office under someone' arises only in the case of posts or services under some Government, statutory body, local authority and the like. The concept is not applicable in the case of holders of offices under the Constitution. The suggestion of the learned counsel that the office of the Speaker of the Assembly or the Chairman of the Legislative Council was necessarily held under the Government cannot, therefore, be accepted.

25. For the reasons Indicated above I am of the opinion that the Chairman oi the Legislative Council. Uttar Pradesh does not hold any office of profit under the State Government. Consequently, I hold that respondent No. 1 was not disqualified from being chosen as a member of the Legislative Council of the State at the time of the filing of his nomination and further hold that the respondent No. 1 was not holding an office of profit under the State Government at the time when he had filed his nomination for seeking election to the Legislative Council, U. P. I further hold that respondent No. 1 was not precluded from, being elected as a member of the Legislative Council of the State under the provisions of Article 191 of the Constitution of India.


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