BIHARILAL DOBRAY. v. ROSHAN \_,AL DOBRAY.

The Judgment of the Court was delivered by· .. . .

•

'880 .SUPlU)ME ,COURT REPOR1ll · [1984) l s.c.R..

YENKATARAMlAH, J. The question. involved. in this:appeal'is A whether an Assistant Teacher employed iil a Basie Primary School · • .· rnn by· the Uttar Pradesh Board of Basic Education constituted · under the Uttar Pradesh Basic Education Act, 1972 (U.P. Act No. }4 of 1972) .(hereinafter referred to as 'the Act':) is ·disqualified for · being chosen as a member of ihe Staie Legislative Assembiy under B. Article 191 (i)(a) of the Constitution. "';,..

The!' ~ppellant Biharilal Dobray, the repondent lloshan Lal 1. -Dobray and some o\hers were nominated as candidates at tbe · ' election 'to the Uttar Pradesh Legislative Assembly from 308 Kanauj (S,C.) Assembly consti\1iency at tb.e Jast general elections held in the · Ji-' ·C year.1980. The nomination paper of the respondent was, however, . rejected by the Returning Officer by his order dated May s; l9SO on the ground that he was holding an office .of profit under the Govern·. ·· ment ~f the State of Uttar Pradesh and. hence was disqualified under : . Article 191(1)(a) of the Con.stitution for being chosen as a member D . of the Legislative. Assembly: After su~ rejection . the polling took place on May 28, 1980 and the appellant who secured the highest number of votes was declared .elected on June I, 1980. Aggrieved . by the. result of the election, the respondent who was not allowed to contest the election ·by reason of the · r~jection of his nomination paper filed an election petition before the High Cpurt of Allahabad E. challenging the correct~ess of the order of rejection of his nomina' · lion paper and the re.sult of the electio.n which was held· thereafter.· He. contended that since the post of an A.ssistant Teacher in a Basie . •-Education School which he held was not an office of profit under the 'state Government the reject.ion of his nomi11ation was improper and, ' .

of therefore,·the election the . appellant was liabie to be declared as void as provided in section IOO(l)(c) of the Representation of the. · People Act, 1951. The High Court being of the opinion that the ··post l;ield by the respondent· was not an office of profit. tinder the State Government held that the rejection 6f his nomination· was . improper and the eleciion of the appellant was liab'!e to be declared as .void. Accordingly. the election petition was .allow.ed and the appellant's election was declared as void. Aggrieved.by the decision of the High Court, the appellant has preferred this appeal under 'section 116-A of the Representation of the ·People Act, 1951. .

H . Alth~ugh there was an aiternative plea raised in the election ·petition that the . respondent · had ceased ·to hold tpe post of the Assistant Teacher in the Basic Education School on the releva.nt date ·br reason of his prior re~is\jnatio~, it was not pressed at the hearing

. BIHARILAL v. ROSHANLAL (Venkataramiah, J:). 881

of the election petition and the Parties proceeded on the basis that the repondent was holditig the said post at all materials times. The A only issue ·tried by the High Court was whether the said. post was a:n office of profit:under the State Government or not which, as stated earlier, was answered in favour of the re;pondent. ' 0 The plea 'of_dlsqualification of the ~e.spondent for.being chosen as a member of the Legislative Assembly was based on Arlicli: 191 . of the Constit.ntion, the material part of which reads thus :

"191. (I) A person shall be disqualified for· being chosen as and for being, a member of the Legislative Assembly or Legislative Council of al). State c (a) if he holds any office of profit .u.nder the Gove- · rnment of India or the Government of any State specified in the first. Schedule, other than an office declared by the Legislatur~ of the Sta.te by law ·not to disqualify its holder; .. :: ..... :./' . . . .. D

The object of enacting Article 191(1) (a) is plain. A person who is elected to a Legislature' should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him · E remuneration and the Government has a voice in his continuance in that office, .(herds every likelihood of such ·person succumbing to -the wishes of Government. Article 19l(l)(a}.is intended to e1iminate the. possibility of a conflict between. duty and interest and to maintain the purity of the Legislatures ... The t.erm office of profit under the · Government' used iri . the. above clause though in1foterminate is.an , · F ·expression of wider im.port than a post held under the Gov(\l"nment · which is de~lt with ill. Part XIV of the· Constituttori. For holding an.office of profit under the Oovernn;ient a person need not be in the. service o(the Government·and there need not be.· any refationship-of · master and servent between them. An office of profit involves. two. : G elements, namely, that there shOuld' be an office and that it should carry. some remuneration: In .order to deter_minewhether a person Mids an office of profit under the Government several tests ar.e . ordinarily applied such an whether the Govetnment makes the ·. appointment, whether the Government has the right to.remove or. H dismiss the holder of tlie pffice, whether .the· Government pays the -. . . . ' . ~ remuneration, whether the functions performed by the holder are carried OJ). by him for the Goverl).ment and whether the · Government

•

882 SUPREME COURT .REPORTS (1984) I s.c:R. has control over the duties afld functi~ns of the holder. . Whcther'an A. office in order to be characterised as an office of profit under the . Government . should_ satisfy all these tests or whether any one or j more of them. ·may be· decisive of its true nature _has been the subject I ·matter of several cases decided by this Court but no decision appears . to Jay down conclusively thAharacteristics of an office of profit B under the Government although the Court has no doubt determined in each case whether the particular ·office involved in it was such an office or not having regard to its features . . In Maufana Abdul Shakur v. Rikhab Chand & Anr.(1)_ the question liefore this Court was whether ·the Manager of the Durgah Khwafa Saheb School run .by· a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955 held an _. office of profit under the Central Goverprpent. The appellant in , . . that case was elected to the Council of States (Rajya Sabha) py the Electoral College of Ajmer at the election held -in 1957. The un- D successful candidate, the repondent therein, filed ~n election petition questioning the validity of the eiection.· on the ground that the appellant therein was. disqualified for being chosen as a member of Parliament as he was holding tile.office of the Manager of the school belonging to the Durgah Khwaja Saheb which was governed by the Durgah Khwaja Saheb Act; 1955 and had been appointed as E Manager by the committee of management appointed by the Central Government under section 6(2) of. that Act. It was contended by him that because a member of the. committee of management could be · · removed by the Central Government and because the commiitee .could make bye-laws prescribing the cluties and powers _of the F employees of the Durgah, the appellant therein was ho.Jding an office of:profit underthe Central Government and was, therefore, disqua, . lifted lftl.der Article 102(I)(a) of the Constitution which was more or · 1ess similar to· Article 19l(l)(a) of the Constitution. The Election .Tribunal accepted the above plea and set aside the election. On appeal this Court reversed the decision of the Election Tribunal. G holdiug that the office of the Manager in question was not an office . of profit, under the Central Government. The Durgah in question .was a religious institution and its affairs were regulated ·by the Durgah· Khwaja Saheb Act, .1955. The. said Act was passed for making provision for the proper administration of the' Durgali and H .the endowment of the Durgah Khwaja Moin-l!d-din Chishti generally

(1) . (1958) . . S.c:;.R;.387. " •

•

BHiARILAL v. ~OSHANLAL (Venkatara~iah.~J.) . .883

· · ·known a·s Durgah K. hwaja ·:saheb .of Ajmer. ·The property, endow~ . ment and funds of the said Durgah· belonged to it and. not 'to the . . A .. . Central Government and the emptOyees who were working in the. Durgah were employees. c;f the Durgah. · 'The Central Government . only. had the power to· appoiot the members of. the committee. ~ This Cou-rt observed · inthe course of its judgment 'at . pag<; 394 .. thus: , · .. B )- . ''No.doubt' the Committee of the Durgah .Endow- . rnent is to be appoinkd by· the Government Of India but .• it is abodY. corp~rate with -perpetual 'succession acting I ·.~ within the four corners of the .Act.. Merely because the ..Committee or the members of the.Committee are 'remove- c .. of able by the G~vernment fndia or the tommittee. can. : make b,te-laws pre;cribing the duties and powers of its:· . employees .cannot irr our opinion ·ciinvcrt the serVants of • · ~ the Committee into holders' of office of profit under the : · Government of India. 'The appellant is neither appointed D by the Government ~f India nor is removable bythe. 0

Goveniment of India nor is he paid out of the revenues of India.. The power of the Gove111ment .to appoint a · person: to ·an ollke · of profii or to continue him in tiiat . . · office or revoke his appointment at their discretion and . · payment from out of.Government revenues are important . · factors in determining whether that person is holding an --"· ._. office of profit urider the Governme11t: though . payment " from a source other tlian: Government revenue is ·not · a always decisive ·factor. But thecappointmeni of-.the ·appellant - does .-· not ·. come . within . this. test." ..-· · ~ •

· In M. ·Ramappa v.-Saitgappa & o;s.('i°th.e question b'efore · thi_s Court was whether. Patels and Shanbhogs who were liolders of hereditary village offices governed by the Mysore Village. Offices Act, : 1908 were disqualified under Article 19l(l)(a) oftbe Constitutionfor· being chosen. as members of the State Legislativ.e · Assembly.. G Th.; ·. Court answered the question in the affirmati_ve and observed af pages , . · 1176-77 thus:·. " .· . ."- · · .. . · · · · · ... , -. · . . .

."We then come to this that'Patels and ·Sh~nbhogs .· · _are officers, w_ho are . appointed to their offices by the H . (t) (1959] S:C.R 1167, . . ,- .. · '. - -.;.-

.- .. ..

884 SUPREME COURT REPORts (1984) j s.c.a.. ' - Government though lt may be.that the Government has no option.in certain cas~s but.to 11ppoint an heir.of the last holder; that they hold their office by reason of such ' appointment only; that they work under the control and · supervision ofthe Government; that t)leir reinuneration . is paid by the Government ·out of Government funds and assets; and .th.at they are. rjlmovable by the Government, · and· that there is no· one else under whom their offices i col!ld be held, All these clearly estFblish that Patels and Shanbhogs hold offices' of profit under the Government.'' ', The next case to be enoticed _is _Gurugoliinda Basu v. Sankari. c Prasad Ghosa/ & Ors.( 1) in which this Court had to decide whether . '. the appellant therein who was a chartered accountant and a partner of a· firm of auditors. appointed as auditors of. two Government com- panies was holding an ·office of profit under the Union Government and the Government of West Bengal and was, therefore, disqualified • undc.r Article 102(1)(aJ of. the Constitution from being chosen as a • member of the Lok Sabha-. The appellant_ therein.contended that on· a true construction of Article I02(1)(a) of the Constitution he could 'not be said to hold an ~ffice of profit under the Government of India · which held the entirety of shares iii one company and the Govern• merit of West Bengal .which held.the entirety of shares of the other E company because the various tests viz. the Government: had the . 'power to appoint, the Government had the right to remove, the Government paid the remuneration and the Government contr<illed •: the functi~ns and duties of the holder of the ciffice·did not co·exist and that the ·fulfilment of sollie of the said .tests alone did not make the office an office of profit under -.the Government. He contended .. F that \lis remuneration. was j)aid by the. companies· an.d not by the · . Governments, he performed ,the. functions for the companies and · that his. duties ·were, controlled by. the Comptroller and auditor ··:General who was different from the Government: This Court rejected the plea of the appellant holding that what. had to be consi- dered was the substance of the matter and not the form. It observed:

· "In the case before ns the- appoinment of the · : appellant as also his continuance in office rest~ solely ~ith ·the Government· of India iit respect ·or the two companies._ H His remm:1eration is also fixed by Government. we· assume

(I) [196414 S.C.R. 31L

.• iliHARJLAL v. ROSHANLAL Wenkataramtah; J.) 8ll5

~ ' for the purpose of this ~ppeal that:the two'companies are ' A I statutory bodies distinct from Government but we must · 'remember at the same time that they are· Goverriment " companies within the meaning of the fodian Companies. Act, 1956 and 100% of the shares are held by the Govern· · ment. We must also remembe·r ·that fo the performance \If his functions tlie appellant is- .controlled by the Comp· B .troller and Auditor-General who himself is undoubtedly, · ho\der of an office of profit under the Government, though · there are safeguard in the Constitution as to his tenure of office and removability therefrom ........... ; .,, . As we have said earlier whether stress will be laid ou one· factor or the other· will depend on the facts of e.ach case.'.' ' ' ' c . Ultimately' the Court held that. the appellant held an offi~e of . · profit umler the.two Governments and was disqualified under Article I 02( l)(a) of the Constitution. This was a d~cision by a Beilc,h of Five Judges. But in D. Ji.. Gurushaniappa v. Abdul Khuddus Anwar & Ors.( 1) a Bench of three ·Judges of this. Cm1rt djstinguished .the D decision in Gurugobi/l{l<l Basu"s case (supra) and ·held that an omployee of a Government company. was. not. holding. aU: office of profit under' the Government. The following passa'ge in that judgment appearing at page 433 brings forth the view expressed by the Court :

"Mr. Gupta, from these ".iews . expressed by the Court, sought to draw the inference. that the primary con• sideration from ·determining whether a person holds a~ · office ·of. profit und.er a Government is the amount of c.ontrol.which the Government exercises over that officer. In>the present case, he relied on the· circumstances that· F >' . all the shares. of the Company are not only owned by· th~. ~.

Mysore Go.verument buf the Director& of the Company . • are appointed by the Government-,-,a Minister was one of the first Directors of the Company; the appointment of .the Secretary to the Company is subject to approval of the Government; and, ev.en in the general .working of the G Company, Govemrnent has the power to issue directions to the Direetors. which must be carri.ed out· by them. It was· urged that respondent No. 1 was qircctly under the control of the Managing Dire.ctor who is himself appoin• H ted .by the Government and may even be a 'lent officer'

. (1) [ 1969]3 S.C.R: 425.

I ' . ' , .,

SUPREME COURT REPORTS (i984j j S.C.R·

holdfog a permanent post under the Government: · Res· A pondeni No. 1 thus,· must be held to .De working under· · the. c9ntrol :or' the Government exercised throu~h the Managing Director. ·•

We. are unable to accept the proposition that the mere fact that the Government had· control over the B . Managing Director and other Directors as well as the power ofissuing directions .relating to the working of the Company can lead to the inference that every employee. of the Company is under the control 6f the Government. • · • The power of appointment and· dismissal of respondent c No. I vested in the Managing Dir~ctor of the Company and notin the Government. Even .the d'irections 'for the.· day-to-day work to be perform\d by respondent. No. 1 ~ould only be issued by the Managing Director of the Company and not by the Government: The indirect control of the Government which might arise because of D the power of the Governinent to appoint ihe Managing Director and to issue directions•.to the Company in its general working does not bring i'esjiondent No. I directly under the control of the Government."

E Divya Prakash v. Ku/tar Chand Rana & Anr.( 1) is a decision of this Court which is very close to the present case. ·There ·the Court had to consid~r whether the post. of a Chairman of the Board of School Education of the State of Himachal Pradesh appointed under section 18 of the Himaclial Pradesh Boarll of School Education Act, 1968 was an office of profit under the State Government. The Court F while holding that the said office was an office und'er the State Govern- . ment'held that since the candidate concerned was appointed in an honorary capacity without any remuneration ever though the post carried remuneration, ·he was not holding an office of profit and thus was not disqualified under Article 19 l(l)(a) of the Constitution. G· . . . t • .

· Now we come to the. latest decision of this C'onrt which is very relevant of purposes of this case and th~t is State o[Gujarat & Anr.. v. Raman Lal Keshav Lal Soni & Ors (2) in which the question was whether the employees transferred to the 'Gujarat Pancbayat Service H arid working under the local authorities formed under the Gujarat

. ' (!). [1975] 2 S.C.R. '749 . (2) [1983] 2 s.c.c. 33.

a1llARILAtii. RoSl!ANLAL ( Venkataramiah, J.) 887 • • Panchayats Act~ 1961 were State Government employees or not. The · said local authorities were corporate bodies constituted under the. A · statute. After considering several earlier decisions cited before it the Court observed at pages 50·.51 thus :

• "We may now revert to the question whether th~ members of the Gujarat Panchayat Service are government B servants. First, we see. that the duties which they are required to perform are in connection with those affairs of the State which are· entrusted to the Panchayat Jns.ti- tutions hy the statute· itself or by transfer by the Govern- ment under the statute. · Next, the expenditure Iowa.ids the pay and. allowance of officers and. servants of the c panchayat service, serving for the time being under any panchayai has-, no doubt, to be met by the panchayat from its own fund, but, as we have seen, the fund consists substa~tially of some ccmtributed or lent. by the State Government and of the proceeds of any tax or feeimposed by or assigned ·to the panchayat under tl)e Act. The D imposition of a· tax or a fee in the nature of a tax, as we know, is essenti~lly a function of the State. So the salary and allowances of. the servants and officers of the pancbayat service are paid out of funds contributed, or .lent by the Government or raised by the discharge of an. E ·essential governmental function. Secretariei of Gram and Nagar Panchayats are to be aPP,!linted in accordance with the Rules made by the Government, while the Taluqa Developipent Officer is .to be Secretary of the Taluqa Panchayat and the ·District Development Officer is to be the.•Secretary of the District Panchayat. Taluqa and F ~ .. · District Developmenl Officers are, of course, officers of State service. Gram and Nagar Panchayats may have other servants, as may be determined under Secti<ln 203, but they have to be appointed by such autho~ity as may prescribed by the Government · and their conditions of service shall be such as may be prescribed by the Govern- G ment. Section 203 as already noticed by us, contem- plates the constitution of. a single centralised panchayat service, the classes, cadres and posts of which have to be · determined by "the 'Government from time to time. The H · mode of recruitment, whether by examination or other- wise, the conditions of service, the power in respect of appointments, transfers and promotions of offic~rs . and . •

SUPl!.Er.IB COURT REPORTS (1984) 1 s.c.R . • serva11ts and disciplinary action which may be' taken A against them, are to be. regulated by the Rules made by the· Government. The Rules so made. are, particularly required to contain a pr_ovision entitling servants so ~uch' cadres. in· the panchayat service to promotion to such ~ . service as m:jty' .be prescribed fide cadres in· . the State 8 Section 203(4)(a). ·This is an important provision .. There cannot be any question of a rule providillg for promo!i{lll from the panchayat service to the State service unless the . parichayatservice is also·a_ service under the State. Again Section 203(5) requires that rules may provlde for inter- districi transfers of servants belonging to the panchayat c ·service and the circumstances in wbiclt and the. conditions ... subject: to which such transfers may .be made. This provi- · sion along with the oiher provisions of Section 203 which -· provide for the promotion and. trapsfer of servants belonging·to the district, taluqa and local cadres within. the district, taluqa and g~ain Of nagar clearly show that D the servants are not the servants of the .individual . panchayats but belong to a centralised service." , • ln the light of the above pronouncements we shall proceed to examine this case. There is no dispute that thnespondent was hold- . E ing the 'post of an Assistant Teacher in a Basic School on the date of his.nomination as ·a candidate at the ·election in question and was jn receipt. of the salary attached tQ that post. _The- only qu.estion .. which needs to b~' examined is whether the post he Vias holding .was one under the .State Government or i!Ot · This leads ¥S to the consi- F deration of tlie relevant prpvisions of the Act Le. ·the Uttar · Pradesh Basic Education Aot, i972. · The Statement of Objects and Reasons '' . attached to. the Bill Vlhtch later on became the Act reads thus : . - ~,

"Statement of Objects and Reasons~(!) The responsibility for primary educa,tion has so farrested G with the Zila Parishads in rural areas and with Municipal Boards artd Mahapalikas in urban areas. The administration of education at this lcve1 by the lodal bodies was not satisfactbry, and it was deterior- H ating day by day. .There was public demand for the Government to take immediate· steps for improving the ·education· at this level. Hence for reorganizing·, reforming and expending elementary education it

1\iriAR!LAL v. ROSHANLAL (Ve11kataramiah, J.) . ~~9

became necessary for the State Government to· take·· over its conttol into its own hands. A '·

(2) Repeated demands had lieeu made by all sections of · the Legislature also for the take-over of· ·the control. of elementary education by the State Government ' from local bodies. Echoing this public demand; tbe Governor had also in his address to both the Houses, B · of the Legislature ou March 20, 1972, said that in · order to strengthen the pr-iinary and junior high schools and to increase their usefulnes.s ·Government was going to 'assume full responsibility for its .control . and management. c · (3) With a view to taking .effective steps for securing the . object of Article 45 of the Constitution, and fuliiliing the assurances given in the Governor's address and . - ' . . respecting the popular demand it was. necessary to .-.

entrust the conduct and control of elementary educa- D tfon to a virile institution which may be expected to · inject new life into it and to make it•progressive. It ·was, therefore, decided by the Government to transfer .the. control of primary education· from the local bodies to the Uttar Pradesh Board of Basic Education with E effect from the educational ·session· 1972-73.

(4), The educational session had commenced and the ·Legislative Council wa~ not in session and if imme- diate actio.n had not been taken, 'the .matter would have had to be postponed till the educational .session F 1973-74 wit.h the result that the desired object would not have been achieved·. Therefore, in order to imp- lement the· said , decision immediately; the· Utt~r Pradesh Basic . Education . Ordinance, 1972, was promulgated. G (5) The Uttar Pradesh Basic Education Bill, 1972, is beirtg introdueed to replace .the said .Ordinance."

· A reading af the·above Statement of Objects and Reasons shows H .that the Act was enacted for the purpose of .enabli.ng the State.Gove- rnment to .take over the responsibility of primary education from the local authorities such. as Zila Parishads, Municipal Boards and

MO SUPR,BMB COURt RllPORTS !I9s4i l s.d.a. Mahapalikas. For this purpose the Act provides for the constitution of a Board to ruri the school imparting prim~y education instead of keeping them as a part of a Department of Educati.on of the State Government. ·The Board is established by the State. Government under section 3 of the Act .with the Director, ex officio, as its . Chairman: The 0U1er members ofthe Board are two persons to be nominated by the State Government. from amongst A!ihyakshas, if any, of Zila Paiishads; . one person to be nominated by the State. Government from ampngst the Nagar Pramukhs, if any, of· the Mahapalikas; one person to be nominated by the State ·Government from amongst the Presidents, if any, of the. Municipal Boards; the . Secretary to the State . Government in the Finance Department,. ex c offieio; the Principai of the .State Institute of Education, ex officio; the Secretary of the Board of High School and _Intermediate Education; Allahabad, .ex officio; the .President of the Uttar Pradesh Prathmik Bhikshak Sangh, ex officio; two educationists to be nominated by the State Government and an· officer. not. below the rank of Deputy . Director of Education to be nominated by the State Government·who D shall be the Member. Secretary of the Board. The functions of the Board are set out in section ·4 of the Act thus : , • "4. Funct.ion of the Board - (!) Subject to the provisions of this Act it shall be.the function of the • E Board to organise, co-ordinate and control the impart· ing of basic education and teachers' training therefore · · i.n the State, w raise its.standard and to correlate it with the system of education as a whole in t.he State.

F .. (2) Without prejudice to the generality of the provisions -0f sub-section (I) the Board shall, ·in partkular, have P?Wer-

(a) to prescribe the courses of instruction and books for basic ·education and teachers' training therefor;

(bj to conc\uct the junior high school and basic · training certificate examination and such other · examinations as the. State Government may from time to time by general or special order assign ·to it and to. grant. diploma or. certificates to. candidates successful at such examination; .

• il!HARILAL v. ROSHANLAl (Vtnkataramiah, J.). 891

(c) ·to lay down by ·general or special orders it! that behalf, norms relating to the establishment or institutions by the Zila Basic Shiksha Samitis·or Nagar Basic Shiksha Samitis and to Superintend the .said. Samitis in respect of the administration of institutions for imparting instruction and pre- paring candidates for admission to examinations • B conducted by the Board; · ·

(cc) to take over the management.of all basic schools which before the appointed day, belonged to any · local body; • c (d) to exercise supervmon and control over basic schools, normal schools, basic training certificate units and the State Institute of Education;·

(e) .to accord approval (with or without modification) to the schemes prepared by the Zila Basic Shibha D Samiti or. the Nagar Shiksha Samiti for the deve- lopment expansion and improvement of .and research in basic education in any district or in the State or in any part there~f; . E (f) to acquire,. hold and dispose of. any property, whether movable or immovable and· in parti- cular, ·to accept. gift of any building or ·equip- ment of any basic school or normal school on such.conditions.as it thinks fit; · F (g) to receive grants, subventions and Joans from the State Government; • (g-1) to have superintendence over the Zila Basic Shiksha Samitis ·and the Nagar Basic Shiksha G Samitis in the performance Of their functions under this Act and subject to the control of the State Government, to issue directions to the Samitis which shall be binding. on such Samiti~; H (j!-2) to constitute sub-committees (from amongst the members of the Zila Basic S]li~sha Sa111itis and

892 SUPREME COURT REPORTS· . [1984) 1 s,c.R.

· . Nagar Basic Shiksha Samitis) for such purposes .A as. the·Board thinks fit;

(h) to take all such steps :as may be necessary or convenient for, or may be incidental ro· the ·, exercise of the power, or the discharge of any · fllnctioil or duty conferred or imposed· on it by B • this Act; · ·

Provided that· the courses of instruction and books · · prescribed and institutions recognised· before the com.men··

c cement of this Act shall be· deemed to be prescribed or recognised by the Board under this Act, .. . For the purposes of exercising powers of m~nageme;1t supervision and oontrol over the basic schools under • . dlause (cc) ot clause (d) of sub-section (2), whicli before the appointed day .belonged to a local body the powers and ·functions of a local body in respect of such·. schools shall stand transferred to the. Board." .

·.. Sectio.n 6 of the Act which deals .with officers and . other employees of the Board reads thus· : E "" · "6 Officers and other employees of.the Board- (!) For the purposes of ~nabling it efficiently to dis· ·charge its fun,ctions under this Act the Board may . appoint. such number· of office teachers and other employee~ a~ it may, with the previons approval of the · State Government, ·think fit.

(2) xx xx'xx xx xx (3) XX XX XX XX XX" (E~phasiS added)· G Section 7 of the Act states that the Bo~rd shall have its own fund, and all receipts· o,f the Board are required tci be credited into it'

H Director . .. and all payments are to be made out of it. The Director, the Deputy .of Education (Member . Secretary) and District Basic Educa- tion Officers who are 'incharge of the administration of the Board are· ciill.cers appointed by the State Government. Section 13 o(the Act which. vests the control in the hands of the State .. Government reada thus:

imiARILAL v. ROSHANLAL.(Venklltaramiah, J.) '893 • · "13, Control by the State Government- (I) The Board shall carry out' such directions as may be A issued. to it from time to tiine by the. State Govern~ ment for the efficient administration o.f this Act., . ' . (2) If in, or in conne.ctio11 with, the e.xercise of any of . its powers and discharge of any of the functions by the Board under this Act, ·any dispute arises between · the B Board and the State Government; .<!r between the ·Board and any loca.1 · oody, the decisfon of the S!l!te · Government on' .such dispute shall be final and bind· ing OD the Board or the local body·. as the case may be. • c (3) The Board or tire local body shall furnish to the State Government such .reports; returns and other information, as the. State Government may from time to time require for the purposes of this Act." . . . . D . The respondent was .originally working as. an Assistant Teacher in the Basic Primary School, Sengarmau, '.fahsil .Kanauj, District l Farrukhabad, ·That institution was being· run and managed by the· Zila Parishad. of Farrukhabad and the re;pondent was therefore ·an. employee of the said Zila Parishaq. Ori the promulgation. of the E . U.P. Ordinance No. 14 of1972 which was replaced by the Act, he became an employee of the Board under section 9(1) of the Act which provided for the transfer. of employees· of the'local bodies to.the Board. · Section 9(1) of the A.ct readsthus : · ·

· •"9. Transfer of employees-(!) On and from the appointed day e~ry,teacher, officer and other emp· loyee serving under a· local body exclusively in eonnectiori with ,!lasic schools {including any super~ visory or inspecting staff) immediately before the· said day shall be tr,ansferred to and become a t,eacher •· officer or other employee of the Board and shall.hold office by the same· tenure, at the same · remuner~tion and upon. the;. same other terms and conditions of .service as hewould have held the.same if the Board had hot been constituted·· and shall continue to do so H· 'unless and until such tenure, .remuneration and other terms and conditions are .altered by the rules made by the State 9overnment in, that behalf;

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894 SUPREME COURT REPO.RTS [1984] l s.c.a.

. Provided that any service rendered under the • A local body· by any such teacher, officer or other • employee before the appointed day sball be dee.med to be service rendered under the Board : · 1 Provided further -that Board may .employ any such teacher, officer or other employee in the dis- B charge of such functions under this Act as it may think proper and every .such teacher, officer or other employee shall disch~rge those functions accordingly,"

In e~ercise of iis powers under se.ction 19 of the Act the State c Government has• framed the Uttar Pradesh Bifsic Educational Staff. Rules, 1973 which are applicable to a!Hhe employees of the Board.· .·The appointing authority in respect 'of Assistant Teachers is. the · District Basic· Education Officer who is an officer appointed by the State Government. The Schedule given under the said Rules which prescribes the appointing authorities and t)le appellate authorities in D respect of the different posts in: the Board is as fo!fows :

396 SUPRBME COURT REPO\lTS (1984) I s.c.R.

A • SI. Name of the No. post Appointing Authority 4'ppel!ate ·Authority . I 2 3 B I I. · Assistant District Basic Educa- Member-Secret~ry of Teachers/ tion Officer/ Additional· the Board. Mistresses District Basic Educa- of Junior tion Officer (Women) c Basic Schools. .

12Copy pinpoint12. ·Headmistresses Disirict Basic Educa- Member·!?,ecretary of Nursery tion Officer/Additional of the Board. Schools. ,District Basic Education Officer (Women)_ D

13Copy pinpoint13. Assistant Ditto. Ditto Mistresses .. of Nursery ·Schools ' (

E It is seen that all officers mentioned in column 3 and column 4 of the above Schedule are either ·the State Government.or officers app'ointed by the State Government. The said officers are all officers of the Government Department who hold the posts in the Board ex officio, that is, by virtue of the corresponding post held by them F under the Government. The Rules provide for the procedure to be followed in disciplinary proceedings and the punishments that may be i~ imposed when an employee is found guilty of any act of misconduct. Rules 5 of the sa.id Rules provides· for an appeal against any order imposing punishment to the prescribed authority. The procedure laid down in Givil Services (Classification, Control and Appeal) Rules G as applicable to servants of the Uttar Pradesh Government is required to be followed as far as possible in the case of the employees of the U.P. Board of the Basic EducatiOn. The funds of the Board mainly come from the contribution made by the State Government. The school in question is not a privately sponsored institution which is recognised by the Board. The Statement of Objects ·and reasons attached to the Bill which was passed as the Act clearly says that ·the i.' . A9t was passed in orqer to enable the State Government to taJj;e over . I

BIHARILAL v. ROSHANL~L (Venkaiaramiah; J.) 897

the ·administration of schools imparting primary education which.were being run by the local authorities into _its own hands. Even though the representatives oflocal authoritii:s are associated in the adminis- • iration of such schools after the Act wl!s . passed, the final control of the schools is vested in the Government and such control is exercised by it through the Director and Deputy Director of Basic Education (Member-Secretary) and· other District Basic Education Officers B. appointed by the Government.

The High Court principally relied on the decis.ions of this.Court in Moulana Abdul Shakur's· (supra) and D. R. Gurushantappa's case (supra) in reaching the conclusion that the respondent was not

t holding an office of profit under the Government. In the first case, as mentioned earlier, the employer was the Durgah which was a reli- gious institution whose affairs were only regulated by an Act of · Parliament and the remuneration was being paid out of the funds of c

the Durgah. In the second case the candidate in question was ·an employee of a Government company which had been registered under. the Companies Act but· the powers of management were vested in the D. Managing Director of the Company functioning in accordance with the Articles of Association of the Company and the control of the Government Was very indirect. In Kana Prabhakara Rao v. M. Seshagiri Rao & Anr.(1) in which the. judgment wa~ rendered by one of us (Fazal Ali, J.) the candidate whose nomination was questioned was a E partftime Chairman of a company called the Travel and Tourism Corporation· (Andhra Pradesh) Private-Limited who had been appoin-' ted by the Andhra Pradesh State Road Transport Corporation which was a Corporation established 11nder the Road Transport .Corpora· tions Act, 1950. In this case also the control of the Government was .. too rCmote . F

. A.. ', We are ot the view· that the present case is governed by the · principles laid down by the· judgment of thi.s Court in Raman Lal Keshav 'Lal Soni's case (supra). The functions of the employees of · the Board are in connection with the affairs of the State. In expen- G . diture of the Board is largely met out of the ·moneys contributed by the State Government to its funds. The teachers and other employees are to be appointed in accordlnce· with the rules by officers who are, themselves appointed.by the Government. The disciplinary procee• dings in respect of the employees are subject to the final· decisio~ of H r· (!) A.I.R. 1981 !l.C. 058 .

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898 SUPREME COURT REPORTs (1984] 1 s.c:iJ..

the State Government or other Government officers, as the case may be. This Court; as mentioned earlier, held iii Divya, Prakash's case (supra) that the': officers of the Board of School Education constituted under the Himachal Pradesh Board of School Education Act, 1968 which was a body corporate having 'perpetuai succession and a • common seal held . their offiees uhder the Government although in that particular case it was held that the office was not an office of profit as the person concerned was working in an honorary capacity. ·- We have gone through the Himachal Pradesh Board of School . Education Act, 196S and wc find that the provjsions of that Act are almost similar in pattern to the. provisions of the Act with which we are concerned in this case. ' .

On behalf of the respondent it is however urged that the· Board of Basic Education being a body corpora.le having perpetual succe- ssion and a common seal its employees cannot be considered as hold· ing any office of profit under the Government and in support of this 1 contention reliance has been placed on the decision of the High Court of Allahabad in Radha Krishna Vislzarad v. Civil Judge, Aligarh & Ors.(') In that case the Court had to construe the provisions of clause (c) of section l'3 of the U.P. Intermediate Education Act, 1921 which provided that a person was disqualified for being chosen a member of · Kshettra Samiti or coopted as a member thereof or for being elected. ( as a Pramukh under section 7 6f that Act if he held any office of . ·profit in the gift or disposal of Government or any local authority ·including a Gaon Sabha. The ground on which the Returning • Officer had rejected the nomination paper of the petitioner in that • case for election to the office o(the P.ramukh of Kshettra Samiti was that inasmuch as he was in the service of the J'awahar Inter College which was an institution receiving grant-in-aid from the Government, he was holding an office of profit in the gift or disposal of the ,.... Government. The Court held that the rejection was bad because all that th.e U.P. Intermediate Education Act, 1921 intended to do was l, to regulate the working of recognised. iilsHtutions and io provide for High School and Intermediate Examinations and that the said Act · did not contemplate that the Government should become the owners of the private recognised institutions. This decision is not, therefore, of much assistance to the respondent. Even though the incorporation of a body corporate may suggest that the statute j11tended it to be a

(I) 1964 All. L.J. 84Q

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eiilARiLAi.. v. kosilANLAL (Venkataramitlh, J.) 899 •tatutory corporation independent of the Government it is not con' elusive on the question whether it is really so independent. Some- times the for!" may be thM bf a body corporate independent of the Government but in subMance it may be just the alter ego of the Government itself. The true test of determination of the said ques· 0

tion depends upon the degree of control the Oovernmerit has over it, the extent of control exercised by the several other.bodies or commit-· tees over it and their composition, the degree of its dependence on· Government for its financial needs !Ind the functional aspect, namely, whether the body is discharging any important Governmental func- tion or just s0me function•which.is merely optional frJm the point of view of Government. In this connection it is necessary to recall the provisions of Article 45 of the Constitution· which require the • State to endeavour to. provide for free and compulsory education for all children until they complete the age of fourt,een years. Primary education in a State unlike th' higher d,cation is the special respon- sibility ofits Governnent and as observed earlier the Act was passed with the object of enabling the Government to take over all basic schools which were being run by the local bodies in the State and to manage them as prov.ided specifically in section 4(2) (ce) of the Act and to administer all masters pertaining to the entire basic education in the State through the Board consisting mostly of officers appointed by the Government. :fhe rules made regarding the.disCiplinary pro- ceedings in respect of the teachers in the basic sch9ols managed by the Board as observed earlier vest the final voice in the State Gove- rnment or its Officers and almost the entire fin~ancial' needs of the Board. are met by the Government. The Board for all practical pur- poses is a department of the Government and its autonomy is negli- gible. Sub-section (2)c of section 1,3 of the Act which emphasis is placed by the respondent is also not of much sig11ificance. . It no doubt recognises the possibility of a dispute arising between the Board and the Government regarding the functions of the Board but that very sub-section provides that if any such dispute arises the decision of the State Government shall be final and it shall be binding on the Board.

It is next urged on behalf of the respondent that the difference between the language of Article 58(2) and Article 66(4) of the Cons- titution which deal with the question of disqualification of a person who seeks election as President or ·vice-President respectively and tile language of Article 191(1)fa) of the Constitution should be given due importance in deci<liq.g this case. For purpose~ of convenienct'.,

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900 SUPREME COURT REPoRTS iJ9s~j I s.c.i. Article 58(2) and Artiele 66(4) of the Constitution are set out below. 1 A They read thus : . · ".58. (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Governm~nt ·of any State or under any local or other authority subject to the control of any of the said Governments. Exp'1 anat'ton ...... : ..........'.. ..

• "66.(4) A 'person sl;lall not be eligible for election as Vice-President if he holds any office of profit c under the Governmeut of India or the Government of any State or under any local or other authority of subject to the control. of any the said Governments .

Explanatio,n ............... , .. . . D The contention of the respondent is that the Board being an authority .subject to the control of the Government cannot be consi- dered as the Government itself as oiherwisc Article 58(4) and Article 6'6(4) of the Constitution wh_ich refer to' the Government as weUas other authority subject to the control' of any Government would have E · to be treated as suffering from the ·Vice of redundancy. It 'is further argued ihat when, the l;;onstitution itself has m'iide a ·distinction between the Government and other authority subject to the control of the Government, in the absence of any reference ·to any other authority subject to the control of the Government'in Article 191(i)(a) of the Constitution, the holding of an office of profit under the F Board which is only an authority under.the control of the Govern- ment would not amount to a disqualification. The argument is indeed quite atiractive. Bat it is difficult to accept it havfng regard to the provisions of the kct and the Rules. We have already shown that the Board is not an a'!thority which is truly independent of ·the· G Government and that every employee of the Board is in fact holding his office ·under the Government. This is not even a case of attempt- ing to pierce the veil and trying to find out the true natiire of some- thing after uncovering it but a case where its true nature i.e .. the subordination of the Board and its employees to the Government is writ' large on the face of the Act'and the. Rules made thereunder.

in Having considered all aspects of the question the 'light of the high purposes u_i1<lerlying. Article 19l(l)(a) of the Constitution, we

. ilittARILAL v. ROSHANLAL (Venkataramiah~ i.) . ~1 are of the view that the respond~nt was )lolding an office of profit und~r the State Government and his nomination was rightly rejected by the Returning Officer .. The judgment of the High Court is, ~herefore, liable to be reversed.

In the result, the judgment of the High Court in set aside and the election petition filed by the respondent is dismissed. B The appeal is accordingly ~llowed. Parties are, however, . directed to bear their own costs throughout.

App ea/ a/lowed.

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