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Nabaghan Sahu Vs. Election Officer, Mukundapur Grama Panchayat and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 616 of 1970
Judge
Reported inAIR1972Ori8; 37(1971)CLT222
ActsOrissa Gram Panchayat Act, 1965 - Sections 25(1); Constitution of India - Articles 226 and 227
AppellantNabaghan Sahu
RespondentElection Officer, Mukundapur Grama Panchayat and ors.
Appellant AdvocateR. Mohanty and ;S.N. Kar, Advs.
Respondent AdvocateS.C. Sahu, Adv. for ;P.K. Dhal, Adv. and ;Govt. Adv.
DispositionPetition allowed
Cases ReferredCheddu Singh v. Monohar Singh
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........an office of profit under the central government as a sub-postmaster in mukundapur village post office. the objection was overruled and the nomination of opposite party no. 4 was accepted. polling was done on 10th of june. 1970. on 13th of june, 1970 the election officer declared opposite party no. 4 to have been elected as sarpanch. the writ application has been filed to set aside the election after declaring it to be void.opposite party no. 4 in his counter affidavit states that at the time of filing the nomination and election he was working as an extra-departmental agent in the branch post office in mukundapur village and was getting an allowance of rs. 53/- per month to work as an agent and that he had never been appointed to hold any office of profit as sub-postmaster.3......
Judgment:

G.K. Misra, C.J.

1. The only point urged by Mr. Mohantv in this writ application is that opposite party No. 4 held an office of profit under the Central Government and as such was disaualified for being elected or nominated as Sarpanch. Facts material to this contention mav only be narrated.

2. Nominations were invited from candidates intending to contest election to the office of Sarpanch for Mukundapur Grama Panchayat in the district of Cuttack. 13th of May, 1970 was fixed as the last date for filing nominations. The petitioner and opposite parties Nos. 4 to 6 filed nominations. The same were scrutinised on 13th of May, 1970. The petitioner opposed the nomination of opposite party No. 4 alleging that he was hold-ins an office of profit under the Central Government as a Sub-Postmaster in Mukundapur village post office. The objection was overruled and the nomination of opposite party No. 4 was accepted. Polling was done on 10th of June. 1970. On 13th of June, 1970 the Election Officer declared opposite party No. 4 to have been elected as Sarpanch. The writ application has been filed to set aside the election after declaring it to be void.

Opposite party No. 4 in his counter affidavit states that at the time of filing the nomination and election he was working as an extra-departmental agent in the branch post office in Mukundapur village and was getting an allowance of Rs. 53/- per month to work as an agent and that he had never been appointed to hold any office of profit as Sub-Postmaster.

3. The sole question for determination is whether a person working as an extra departmental agent in a branch post office on a monthly allowance holds an office of profit under the Central Government.

4. Section 25 (1) 00 of the Orissa Grama Panchavat Act, 1964 (hereinafter to be referred to as the Act) runs thus:

'25. (1) A person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchavat constituted under this Act, if he --

X X X X X(h) holds any office of profit under the State or Central Government or any local authority;'

There is no controversy that an extra-departmental agent in a branch post office works under the Central Government. The only question is whether he holds any office of profit. The word 'profit' conveys the idea of pecuniary gain. If there is a gain, ordinarily its quantum or amount is immaterial.

5. To determine whether an office is one held under the Government, various tests have been laid down. They are (i) whether the Government makes the appointment; (ii) whether it has the right to remove or dismiss the servant: (iii) whether it pays the remuneration: and (iv) whether it exercises control over the work of the incumbent. In certain cases some of the indicia may be absent. The main test is whether the work is controlled by the Government and it has a voice in the removal or dismissal of the employee.

Judged by these tests, there is no escape from the conclusion that an extra-departmental agent in a branch post office holds an office of profit under the Central Government. Central Government appoints these agents. Their services are liable to be removed by the Government and their work is controlled by it.

In Venkataswamy v. Superintendent. Post Offices, Ganjam Division, AIR 1957 Orissa 112 a Bench of this Court held that an extra-departmental branch postmaster cannot be held to be a Government servant. This decision was held as laying down bad law in State of Assam v. Kanak Chandra Dutta (see para 13). AIR 1967 SC 884. The view that we have taken is fully supported by Cheddu Singh v. Monohar Singh, AIR 1964 All 179.

Opposite party No. 4 was holding an office of profit under the Central Government at the material time and was therefore disqualified for being elected or nominated as a Sarpanch.

6. Section 39 (1) (c) lays down that the Munsif shall declare the election of a returned candidate void, if he is of the opinion that any nomination paper has been improperly rejected or accepted. As has already been stated, the nomination paper of opposite party No. 4 was improperly accepted by the Election Officer as the former was holding an office of profit under the Central Government. If an election petition had been filed before the Munsif the election of opposite party No. 4 the returned candidate would have been declared void.

7. The only other question is whether this Court would exercise its jurisdiction under Articles 226 and 227 of the Constitution to declare the election void when the petitioner has not resorted to the alternative remedy of filing anelection petition before the Munsif having jurisdiction under Section 30 of the Act.

Law is now well settled that existence of an alternative remedy does not bar the jurisdiction of this Court to interfere in exercise of its power under Articles 226 and 227 of the Constitution. It merely touches the field of exercise, of discretion. In this case the question involved is one of cure law and it is not necessary to send the petitioner to go through the long process of canvassing the matter through an election petition.

In the result, the writ application is allowed. Election of opposite party No. 4 as Sarpanch of Mukundapur Grama Panchayat is declared void. In the circumstances, parties to bear their own costs.

Das, J.

8. I agree.


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