Bihar Panchayat Raj Act, 1993 – s.139(1)(c) – Disqualification – Election of respondent to the post of member in the Panchayat Samiti – Disqualified by the Election Commission – Disqualification on the ground that respondent was appointed as Assistant Government Advocate under the State Government and was receiving fees for the cases conducted by him from the Government and hence, was deemed to be in service of the State – High Court set aside the order – Division Bench upheld the same – On appeal, held: There was no master-servant relationship – Respondent was not amenable to any disciplinary proceedings – No records to show that he was getting any remuneration – Even if some remuneration is attached to the office, he could not be treated to be under the service of the State Government – Aspects essential for establishing a relationship of master and servant absent – Thus, the returned candidate could not have been treated to be in service under the State Government – Order passed by the High Court upheld.
Dismissing the appeal, the Court
HELD: 1.1 In Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993, there is a postulate that a person shall be disqualified if such a person is in the service of Central or State Government or any local authority. Section 139(1)(d) lays down a disqualification if the person is in service of such institution receiving aids from Central or State Government or any local authority. The key word in both the provisions pertains to ‘service’. [Para 10][121-B-C]
1.2 In the instant case, the first respondent was treated as disqualified on the foundation that he was in service of the Government. Analyzing the letter of appointment issued by the Government of Bihar, Legal Department to the District Magistrate, the Election Commission held that the elected candidate was holding a post under the State Government and, therefore, he was disqualified under sub-section (l)(c) of Section
139 of the Act. On a careful scrutiny of the communication, it is quite vivid that the respondent No. l was appointed to the post of Assistant Government Advocate in the panel of Assistant Government Advocates constituted for the courts at Nalanda and Hilsa. There is no mention of any fixed remuneration. In the obtaining factual score, would it be appropriate to accept the submission of the appellants that the elected candidate was in the service of the government. The legislature has, in exercise of its legislative power and wisdom, not used the words “office of profit”. Therefore, whether such a letter of appointment can be construed to determine if the person is holding an office of profit is not necessary to be addressed. In the instant case, the election pertains to a Panchayat Samiti which basically relates to the concept at the grass root level. The legislature, as it seems, has not thought of office of profit because had it thought so it would have provided in that manner. The legislature had provided a disqualification keeping in view the conflict of interest. The absence of such a provision possibly is to include persons from different fields as long as they are not in service under the government or a service in an institution receiving aids from the Central or State Government or any local authority. The legislature, as the postulate stands today, has confined to categories of service. It depends on the legislative wisdom. The nature of disqualification has to be strictly construed keeping in mind that right to contest an election is not a fundamental right but the said right may be curtailed under valid statutory provision. [Paras 25, 26 and 27][132-F; 133-E-H; 134-A-C]
1.3 It has been held by this Court that a person holding a post under a State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State’s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. [Para 28][134-D-F]
State of Assam and others v. Kanak Chandra
Dutta 1967 AIR 884 : [1967] SCR 679 – followed.
1.4 As has been held by the Single Judge and rightly so, there is no master-servant relationship and the respondent was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. There is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government. [Para 33][137-D-F]
Ravanna Subanna v. G.S. Kaggeerappa 1954 AIR 653; Sakhawant Ali v. State of Orissa 1955 AIR 166 : [1955] SCR 1004; Guru Gobinda Basu v. Sankari Prasad Ghosal and others 1964 AIR 254 : [1964] SCR 311; Maulana Abdul Shakur v. Rikhab Chand 1958 AIR 52 : [1958] SCR 387; Mahadeo v. Shantibhai and others [1969] SCR 422; Srimati Kanta Kathuria v. Manak Chand Surana [1970] 2 SCR 835 : (1969) 3 SCC 268; Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and others [1976] 3 SCR 832 : (1977) 1 SCC 70; Ashok Kumar Bhattacharyya v. Ajoy Biswas and others [1985]
2 SCR 50: (1985) 1 SCC 151; Shibu Soren v. Dayanand Sahay and others [2001] 3 SCR 1020 : (2001) 7 SCC 425; Jaya Bachchan v. Union of India and others [2006] 2 Suppl. SCR 110 : (2006) 5 SCC 266; Roshan Lal Tandon v. Union of India 1967 AIR 1889 : [1968] SCR 185; Mundrika Prasad Singh v. State of Bihar [1980] 1 SCR 759 : (1979) 4 SCC 701; Mukul Dalal and others v. Union of India and others [1988] 3 SCR
868 : (1988) 3 SCC 144; Kumari Shrilekha Vidyarthi and others v. State of U.P. and others [1990] 1 Suppl. SCR 625 : (1991) 1 SCC 212 – referred to.
Great Western Railway Company v. Beater 8 Tax Cases 231; Mcmillan v. Guest [1942] AC 561 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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