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Cheddu Singh Vs. Monohar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 84 of 1962
Judge
Reported inAIR1964All179
ActsUttar Pradesh Panchayat Raj Act - Sections 5A; Constitution of India - Article 311
AppellantCheddu Singh
RespondentMonohar Singh and anr.
Appellant AdvocateR.B. Basaria and ;Akhilesh Sahai, Advs.
Respondent AdvocateM.L. Trivedi, Adv. holding brief of ;B.K. Dhaon, Adv. for Respondent No. 1
DispositionAppeal dismissed
Excerpt:
service - office of profit - section 5-a of u.p panchayat raj act, 1947 - person working as extra departmental branch post master does not receive salary but a monthly allowance - he is not a government contractor but an employee of central government - held, office of profit hence disqualified from election. - - what ever functions of a post-master he performs he performs like any other post-master;.....the union within the meaning of article 311 of the constitution. an extra departmental branch postmaster may not be a civil servant or be holding a civil post within the meaning of article 311, or may not be a government servant but it does not follow that he does not hold an office, or an office of profit, under the central government.it was stated in these decisions that extra departmental branch post-masters are mere agents of government and not civil servants. we were also referred to dinabandhu sahu v. jadumoni mangaraj, air 1954 sc 411 where it was observed that it might be urged with some reason that such branch post-masters are not government servants.on the contrary it was held by dhavan, j., in sadho singh v. s. d. o. jalalabad, air 1959 all696 that such a branch.....
Judgment:

Desai, C.J.

1. This is an appeal from a judgment of our brother Nigam dismissing the appellant's petition for certiorari for the quashing of an order passed by a Sub-Divisional Officer under Section 12-C of the U. P. Panchayat Raj Act setting aside the appellant's election as Pradhan of a Gaon Sabha on the ground that he held an office of profit under the Central Government. It is not in dispute that the appellant is an extra departmental branch post master and that post master and branch post masters are appointed by the Central Government.

The appellant is paid not a salary but a monthly allowance of Rs. 15/-, dearness allowance of Rs. 12/- per month and a delivery allowance of Rs. 5/- per month. He contested the election for the office of Pradhan of a Gaon Sabha with respondent No. 1. There was no opposition to his being nominated as a candidate for the election though Section 5-A of the Act lays down that a person shall be disqualified for being chosen, or nominated to and for holding any office in a Goan Sabha if he 'holds any office of profit under the Central Government'.

The election took place and the appellant was declared duly elected as Pradhan because he secured the majority of votes. The respondent filed an election petition to challenge the election on the ground that on account of his being an extra departmental branch post-master he held an office of of profit under the Central Government and was, therefore, disqualified for being chosen and nominated for the office of Pradhan in the Gaon Sabha. The Sub-Divisional Officer accepted the respondent's contention, set aside the appellant's election and declared the respondent as duly elected in his place. The appellant then applied to our brother Nigam for certiorari for the quashing of the Sub-Divisional Officer's order on the ground that his view that he held an office of profit within the meaning of Section 5-A was erroneous but our learned brother confirmed the view taken by the Sub-Divisional Officer and dismissed the petition.

2. Sri R. B. Bisaria cited several decisions such as Ch. Venkata Swamy v. Supdt. Post Offices Ganjam Division Berhampur, AIR 1957 Orissa 112 Subbarayulu v. Supdt. of Post Offices, Tanjore Division, AIR 1961 Mad 166 and Satya Deo Bushahri v. Padam Dev, 6 Ele LR 414 (Ele. Tri. Simla) which laid down that an extra departmental branch post-master is not a member of a civil service and does not hold a civil post under the Union within the meaning of Article 311 of the Constitution. An extra departmental branch postmaster may not be a civil servant or be holding a civil post within the meaning of Article 311, or may not be a Government servant but it does not follow that he does not hold an office, or an office of profit, under the Central Government.

It was stated in these decisions that extra departmental branch post-masters are mere agents of Government and not civil servants. We were also referred to Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411 where it was observed that it might be urged with some reason that such branch post-masters are not Government servants.

On the contrary it was held by Dhavan, J., in Sadho Singh v. S. D. O. Jalalabad, AIR 1959 All696 that such a branch post-master holds an office of profit under the Central Government. It may, however, be admitted that Bhavan, J., has not discussed the question whether such a branch postmaster holds an office and whether it is an office of profit under the Central Government, because there was no dispute on these points before him. What was contended before him was that because the branch post-master had sent his resignation just a day before he was nominated he had ceased to hold an office of profit within the meaning of Section 5-A of the Act on the date of his nomination and this contention was repelled by our learned brother. It cannot be disputed that he was of the opinion that such a branch post-master holds an office of profit under the Central Government because otherwise he would not have held that his nomination was against the provisions of Section 5-A (b).

3. What is an 'office' is explained in UnitedStates v. Hartwell, (1868) 73 US 830 : 6 Wall 385.The question before the Supreme Court was whether a clerk in the office of the Assistant Treasurerof the United States was an 'officer charged withthe disbursement of the public moneys' and it wasanswered in the affirmative. Swayne, J., said atp. 832 as follows :-

'An office is a public station, or employment conferred by the appointment of Government, The term embraces the ideas of tenure, duration, emolument and duties.

The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe.

A Government office is different from a Government contract. The latter, from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.'

So he was held to be a public officer. In the same way a temporary branch post-master is an officer in the employment of the Central Government. He is not a Government contractor. And since he gets allowance for performing the duties of his office it is an office of profit. It is immaterial that he does not get a salary or that the emoluments that he gets are less than the emoluments of a regular post-master or sub-post-master. What ever functions of a post-master he performs he performs like any other post-master; he performs them as a Government servant and not as a contractor.

The duties that are assigned to him may be fewer than the duties that are assigned to a postmaster or a sub-post-master because it is a branch post-office, but whatever duties are assigned to him are exactly the same as are assigned to any postmaster or sub-post-master and are to be performed by him in the same way as by a post-master or sub-post-master. Consequently it cannot be said that he acts as an agent or contractor. The quantum of the emoluments that he receives is immaterial; it is enough that be receives emoluments by way of profit.

4. We were also referred to Venkatappa v. S. Subba Rao, AIR 1957 Mys 79 in which a stamp vendor was held not to hold an office of profit. Stamp vendors do not get any profit; a stamp vendor only gets a commission on sales made by him and it was on this ground that his office was held to be not one of profit. Similarly in Ravanna Subanna v. G. S. Kaggeerappa, AIR 1954 SC 653 a Chairman of a Taluka Development Committee was held not to bold an office of profit because the only payment that he received was a sitting fee of Rs. 6/- per day for attending meetings. The office held by an extra departmental branch past-master is thus different from the office held by a stamp vendor or a Chairman of a Taluka Development Committee.

5. The case of Swami Nath v. The S. D. O. Machhlishahr, 1958 All LJ 349 : (AIR 1958 All 660) also was cited before us; there it was held that a Mukhia removed from his office could not be said to have been dismissed from the service of the State Government within the meaning of Section 5-A (d). The question before us is quite different. A Mukhia removed from his office may not be said to have been dismissed from the service of the State Government but it does not follow that an extra departmental branch post-master does not hold an office of profit,

6. We, therefore, hold that the appellant held an office of profit under the Central Governmentand dismiss this special appeal with costs.


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