BIHARILAL DOBRAY Vs. ROSHAN LAL DOBRAY

JUDGEMENT

(1.) THE question involved in this appeal is whether an Assistant Teacher employed in a Basic Primary School run by the Uttar Pradesh Board of Basic Education constituted under the Uttar Pradesh Basic Education Act, 1972 (U. P. Act No. 34 of 1972) (hereinafter referred to as 'the Act') is disqualified for being chosen as a member of the State Legislative Assembly under. Art. 191 (1) (a) of the Constitution.

(2.) THE appellant Biharilal Dobray, the respondent Roshan Lal Dobray and some others were nominated as candidates at the election to the Uttar Pradesh Legislative Assembly from 308 Kanauj (S. C.) Assembly constituency at the last general elections held in the year 1980. THE nomination paper of the respondent was, however, rejected by the Returning Officer by his order dated 5/05/1980 on the ground that he was holding an office of profit under the Government of the State of Uttar Pradesh and hence was disqualified under Article 191 (1) (a) of the Constitution for being chosen as a member of the Legislative Assembly. After such rejection the polling took place on 28/05/1980 and the appellant who secured the highest number of votes was declared elected on 1/06/1980. Aggrieved by the result of the election, the respondent who was not allowed to contest the election by reason of the rejection of his nomination paper filed an election petition before the High Court of Allahabad challenging the correctness of the order of rejection of his nomination paper and the result of the election which was held thereafter. He contended that since the post of an Assistant Teacher in a Basic Education School which he held was not an office of profit under the State Government the rejection of his nomination was improper and, therefore, the election of the appellant was liable to be declared as void as provided in Section 100 (1) (c) of the Representation of the People Act, 1951. THE High Court being of the opinion that the post held by the respondent was not an office of profit under the State Government held that the rejection of his nomination was improper and the election of the appellant was liable to be declared as void. Accordingly the election petition was allowed 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.

(3.) 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 remuneration and the Government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of Government. Article 191 (1) (a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the Legislatures. THE term "office of profit under the Government" used in the above clause though indeterminate is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. For holding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit 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.