THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM AND ARUNACHAL PRADESH)
Election Petition No. 01 OF 2014
SHRI MUK PERTIN, SON OF LATE GOTE PERTIN, RESIDENT OF HOUSE NO.E-1071, PAPUNALLAH, PO & PS : NAHARLAGUN, DIST : PAPUM PARE, ARUNACHAL PRADESH. ………… Petitioner -Versus-
SHRI LOMBO TAYENG, SON OF LATE TOSUR TAYENG, MOTUM VILLAGE, PO & PS : MEBO, DIST : EAST SIANG, ARUNACHAL PRADESH. ….…… Respondent
BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN
Advocates for the Petitioner : Mr. D Mazumdar, Sr. Advocate. Mr. PK Tiwari, Sr. Advocate. Mr. RJ Das, Advocate.
Advocates for the Respondents : Mr. N Dutta, Sr. Advocate. Mr. S Bharali, Advocate. Mr. M Das, Advocate.
Dates of Hearing : 08.04.2015, 28.04.2015 29.04.2015 & 05.05.2015
Date of Judgment : 25.05.2015
Election Pet. No. 1 of 2014 Page 1 of 43
Judgment & Order
This petition under sections 80 & 80-A of the Representation of the
People Act, 1951 presented under section 81 of the said Act, seeks a declaration
that election of respondent from 39-Mebo (ST) Legislative Assembly
Constituency of Arunachal Pradesh is void under section 98(b) read with section
100 (1) (c) of the said Act and further seeks quashing of order dated
25/26.03.2014, passed by the Returning Officer, 39-Mebo (ST) Legislative
Assembly Constituency rejecting the nomination of the petitioner as improper.
02. Basic facts are not in dispute. However, for adjudication of the case, those are set out hereunder.
03. Notification dated 15.03.2014 was issued declaring holding of general election for constitution of a new Legislative Assembly for the State of
Arunachal Pradesh giving details of the schedule of election as under: -
i) Last date of filing nominations - 22.03.2014 (Saturday) ii) Date of scrutiny of nominations - 24.03.2014 (Monday) iii) Last date for withdrawal of candidature - 26.03.2014 (Wednesday) iv) Date of polling - 09.04.2014 (Wednesday) v) Date before which election should be - 28.05.2014 (Wednesday) completed.
04. Petitioner was nominated by the Bharatiya Janata Party (BJP) as its nominee for the 39-Mebo (ST) Legislative Assembly Constituency. Respondent was nominated by the Indian National Congress as its nominee for the said
Constituency. Accordingly, both petitioner and respondent filed their respective nomination papers for the said Constituency. No other candidate filed nomination paper for the said Constituency.
Election Pet. No. 1 of 2014 Page 2 of 43
05. On 24.03.2014, when the nomination papers of both the candidates were taken up for scrutiny by the Returning Officer, respondent filed an objection against the candidature of the petitioner. It was contended that petitioner being a
Central Govt. Counsel for the Itanagar Bench of Gauhati High Court was holding an office of profit under the Govt. of India and, therefore, he was disqualified from being a member of the Legislative Assembly of Arunachal Pradesh. It was also contended that petitioner being a counsel for the Central Bureau of Investigation
(CBI) in the Itanagar Bench of Gauhati High Court, was in full time employment of the Govt. of India, which also disqualified him from being a member of the
Arunachal Pradesh Legislative Assembly. Petitioner submitted his written argument against the objection raised by the respondent. Petitioner stated that he was engaged as panel Central Govt. Counsel in the Itanagar Bench of Gauhati High
Court and in such capacity, he was not entitled to retainer fee or salary. Such engagement was for a limited period of 3 years. Nature of engagement was such that petitioner also had right of private practice. Therefore, engagement of the petitioner as Central Govt. Counsel would not amount to holding of office of profit.
It was further contended by the petitioner that such engagement of the petitioner even if held to be an office of profit stood exempted under paragraph 4 of the
Schedule appended to the Arunachal Pradesh Legislature Members (Prevention of
Disqualifications) Act, 1977. Regarding engagement of the petitioner as counsel for CBI, petitioner contended that the term of engagement as counsel for CBI was for a period of 3 years, which had expired on 02.03.2014, whereafter, petitioner did not seek extension and consequently, it was not extended. Thus, it was contended that petitioner was not holding office of profit under the Govt. and accordingly, the objection raised by the respondent should be dismissed. Election Pet. No. 1 of 2014 Page 3 of 43
06. On 26.03.2014, Returning Officer issued an order dated
25/26.03.2014 holding that engagement of the petitioner as Central Govt.
Standing Counsel amounted to holding of office of profit within the meaning of
Article 191 (1) (a) of the Constitution of India. It was further held that such office of profit was not exempted under paragraph 4 of the Schedule to the Arunachal
Pradesh Legislature Members (Prevention of Disqualifications) Act, 1977 (1977
Act). Accordingly, nomination of the petitioner was rejected by holding him to be disqualified to be a member of the Arunachal Pradesh Legislative Assembly because of holding of an office of profit.
07. Thereafter certificate of election dated 26.03.2014 was issued by the Returning Officer declaring respondent as having been duly elected from 39-
Mebo (ST) Legislative Assembly Constituency to be a member of the Arunachal
Pradesh Legislative Assembly.
08. This led to filing of the present election petition by the petitioner.
09. Respondent has filed written statement. A preliminary objection has been raised as to the maintainability of the election petition on the ground that election petition has not been presented in accordance with the required provisions of the Representation of the People Act, 1951 (1951 Act), Conduct of
Election Rules, 1961 and the Gauhati High Court Rules. It is stated that there is no report of the stamp reporter showing compliance of mandatory provisions of section 81 of the 1951 Act. Election petition was not scrutinized by the stamp reporter as required. Each and every page of the election petition has not been certified as true copy of the election petition. An averment has been made that
Election Pet. No. 1 of 2014 Page 4 of 43
Annexure-5 to the election petition, which is a copy of the 1977 Act has been tampered with by inserting a slash or oblique in Sl. No.4 thereto between the words “any office under the Govt. which is not a whole time office” and
“remunerated either by salary or fees”. On merits, it is stated that petitioner was holding the post of Central Govt. Counsel, which is an office of profit under the
Govt. and, therefore, he was rightly disqualified from being chosen as a member of the Legislative Assembly of Arunachal Pradesh. Disqualification for holding such office of profit is not saved by the 1977 Act. At the relevant point of time, petitioner was the sole Central Govt. Counsel in the Itanagar Bench of Gauhati
High Court and accordingly, he was in-charge of the entire litigation work on behalf of the Govt. of India in the Itanagar Bench. Order of the Returning Officer rejecting the nomination of the petitioner on account of his disqualification is correct. Contending that there is no merit in the election petition, it is submitted that the same should be dismissed.
10. On the basis of pleadings, this Court by order dated 03.11.2014 framed the following issues: -
1) Whether the election petition is maintainable in law? 2) Whether the order of the Returning Officer of the 39 Mebo (ST) Legislative Assembly Constituency rejecting the nomination of the election petitioner is dated 25.03.2014 or 26.03.2014? 3) Whether the election petition has been presented in accordance with law? 4) Whether there has been compliance with Sections 81, 82 and 83 of the Representation of People Act, 1951 in presenting the election petition?
Election Pet. No. 1 of 2014 Page 5 of 43
5) Whether there is any tampering with Annexure-5 of the election petition? If so, whether such tampering with Annexure-5 which is a part and parcel of the election petition renders the instant election petition liable to be dismissed? 6) Whether the engagement of the election petitioner as Central Government Counsel by Government of India, Ministry of Law and Justice, Department of Legal Affairs is on the basis of the Order No.F.36(9)/2011-Judl. dated 20.6.2011 read with the terms and conditions contained in the said Department's Office Memorandum No. 26(1)/99 -Judl. Dated 24.09.1999 and in the Office Memorandum No. F.No.27(11)/99 -Judl. dated 24.09.1999 ? 7) Whether the disqualification of the election petitioner, if any, arising out of his engagement as Central Government Counsel stands removed under the provisions of Arunachal Pradesh Legislature Members (Prevention of Disqualifications) Act, 1977? 8) Whether election petitioner having held the post of Central Government Counsel for the Itanagar Bench of Gauhati High Court was holding an office of profit and thereby disqualified for being chosen as a member of the Legislative Assembly of the State of Arunachal Pradesh in terms of Article 191 (1) (a) of the Constitution of India? 9) Whether the order of the Returning Officer of No.39 Mebo (ST) Legislative Assembly Constituency in rejecting the nomination of election petitioner and in declaring the respondent as elected is legal and valid? 10) Whether the election of respondent is liable to be declared void under Section 100(1) (c) of the Representation of People Act, 1951? 11) To what relief(s) are the parties herein entitled to? 12) Who is entitled to the costs of the instant proceeding?
11. Thereafter, respondent filed an application under Order XI Rule 1 of the Civil Procedure Code, 1908 seeking leave of the Court to deliver
Election Pet. No. 1 of 2014 Page 6 of 43 interrogatories to the petitioner. As many as nine interrogatories were suggested, which were as follows: -
“ (i) Whether in terms of the Election Petitioner’s appointment as Central Govt. Counsel, did he appear on behalf of various Central Govt. Departments and if yes, kindly provide the names of the said Departments of the Central Govt. for whom he had appeared? (ii) Whether the Election Petitioner during his term as the Central Govt. Counsel raised bills to the various Central Govt. Departments for whom he took steps and if yes, kindly provide the name(s) of various Ministries/Departments to whom the Election Petitioner during his term as the Central Govt. Counsel have raised bills? (iii) Whether the Bills raised by the Election Petitioner during his term as the Central Govt. Counsel included his professional fees for appearance in the Court, drafting, settling pleadings, giving opinion, etc. on behalf of the various Departments of the Central Government? (iv) Whether the Bills raised by the Election Petitioner were sanctioned by the Appropriate Authority prior to settling and/or paying the amounts raised in the Bills by the Election Petitioner and if yes, kindly provide the same of the Appropriate Authority? (v) Whether the Bills raised by the Election Petitioner were settled/paid by the concerned Department(s) of the Central Govt. and the Election Petitioner duly received the same? (vi) Kindly provide the names of the authorities in whose power and possession the Bills/Memos raised by the Election Petitioner during his term as the Central Govt. Counsel are? (vii) Kindly inform as to how many Central Govt. Counsel(s) were appointed specifically to the Itanagar Bench of the Gauhati High Court? (viii) Kindly inform as to who in Itanagar Bench of the Gauhati High Court used to accept notice in respect of the cases involving the Central Government? (ix) If you as the Central Govt. Counsel used to accept notice in the Itanagar Bench of the Gauhati High Court for cases involving Central Govt., did you take permission from any authority prior to appearing in such cases and if so, kindly provide the name(s)?”
12. On interrogatories being furnished, petitioner gave the following answers: - “i) As Central Govt. Counsel I appeared on behalf of various Organizations/Institutions/Departments of the Election Pet. No. 1 of 2014 Page 7 of 43
Government of India on case to case basis. Some of these Organizations/Institutions/Departments are – Central Reserve Police Force, Indo Tibetan Border Police, Post & Telegraph, All India Radio/Prasar Bharti, Army, Rajib Gandhi University, GREFF, Assam Rifles, Ministry of Human Resource Development, etc. ii) As Central Government Counsel, I raised bills to all those Organizations/Institutions/Departments of the Government of India for whom I appeared on case to case basis. The names of these Organizations/Institutions/ Departments of the Govt. of India have already been given in my answer at serial No.1 above. iii) During my term as the Central Govt. Counsel, I had raised bills in terms of paragraph VIII of the revised scheme containing terms and conditions for the Central Govt. Counsel enclosed with the Office Memorandum F.No.26(I)/99-Judl. dated 24.09.1999 and/or paragraph VIII of the revised scheme enclosed with office Memorandum F.No.27(II)/99-Judl. dated 24.09.1999. Subject to the nature of professional service rendered by me, the bills raised by me might have included fees on account of different heads like drafting of written statement/affidavit-in-opposition/petition for vacating stay /appearance etc. However, no retainer and other perquisites mentioned at paragraph VII of the revised scheme enclosed with Office Memorandum F.No.26(I)/99- Judl. dated 24.09.1999 and/or paragraph VII of the revised scheme enclosed with Office Memorandum F.No.27(II)/99-Judl. dated 24.09.1999, was paid to me as I was not entitled for the same. The bills were raised by me in a prescribed format, copy of which is enclosed herewith. (iv) That I do not know as to how the bills raised by me were processed/settled and by whom. I remember that I only interacted either with the representatives of those departments which were parties in the petitions or with the officers of the lowest rank impleaded as respondent in the petitions or with the assistants of these persons acting on their behalf. There was no proper system in place. To the best of my knowledge those who on behalf of various departments of Central Govt. contacted me were clerks/Assistants or persons of such equivalent ranks. It is these people who took the bills from me and handed over cheques to me. On certain occasions cheques came to me by post. I have no knowledge as to how my bills were processed/settled and who were the competent authorities sanctioning/clearing such bills. (V) I received cheques for many bills raised by me. Since I did not maintain the records, I do not know if all the bills raised by me were paid or not.
Election Pet. No. 1 of 2014 Page 8 of 43
(vi) I was engaged as Central Govt. Counsel on four different occasions. On each of these four occasions, my term was of 3 (three) years duration. On first occasion, I alongwith Mr. Tony Pertin were engaged as Central Govt. Counsel. On second occasion I was the only Central Govt. Counsel. On the third occasion, myself and Late Abdul Mannan were engaged as Central Govt. Counsel. On the fourth occasion, in the year 2011 I was the only Central Govt. Counsel at the Itanagar Bench. It is pertinent to mention that in many cases in the Itanagar Bench after the initial appearance of the local Central Govt. Counsel, the concerned Department/Organization of the Government of India brought Central Government counsel from the Principal Bench at Guwahati. Subject to the nature of case and desire of the concerned authorities of the Government of India, the Central Govt. Counsel either of Itanagar Bench or of Principal Bench at Guwahati conducted the case. (vii) When there was more than 1 (one) Central Govt. Counsel at Itanagar Bench, any of the Central Govt. Counsel could accept notice in respect of the cases involving the Central Govt. As per the practice, concerned advocates of the parties, as per their desire and convenience, furnished in advance a copy of the petition filed before the court to any of the Central Govt. Counsel. When I was the only Central Govt. Counsel at Itanagar Bench, such copies were only furnished to me. However, in certain cases after my first appearance, the concerned Department of the Central Govt. brought Central Govt. Counsel from the Principal Bench at Guwahati. I can easily remember few such cases. There are two connected writ petitions viz. WP(C) No.289/2014 (Lombo Tayeng Vs. State of AP), which is filed by the respondent in this election petition and the other is WP(C) No.292/2014 (Union of India Vs. Smti. Tipak Tayeng & Anr.), wherein the respondent happens to be the wife of the respondent (returned candidate) herein. Presently, these two connected cases are being conducted at Itanagar Bench by Mr. B. Pathak, who is the Central Govt. Counsel in the Principal Bench at Guwahati. In the cause list dated 30.10.2014 the aforementioned cases were listed. There was also a case of Arunachal Resin Vs. Union of India & Ors., wherein the Ministry of Petroleum & Natural Gas and Oil India Ltd. were respondents. In this case, after my initial appearance the learned Assistant Solicitor General of India Mr. R Sarma came down from Guwahati and conducted the case as per the desire of the concerned Department/Organization. viii) As per the practice followed any of the Central Govt. Counsel at Itanagar Bench could accept notice (if there was more than one counsel). In the event of there Election Pet. No. 1 of 2014 Page 9 of 43
being only one Central Govt. Counsel at Itanagar Bench, the notice was accepted by that counsel as was the case with me when I was the only counsel at Itanagar Bench. As per the practice followed, for accepting notice, no prior permission from any authority is required.”
13. Thereafter, counsel for the respondent wrote to the counsel for the petitioner on 08.12.2014 giving notice under Order XII Rule 4 of the Civil
Procedure Code, 1908, calling upon the election petitioner either to admit or deny two documents, namely, a print out copy of the Office Memorandum bearing
No.F.No.26(1)/99-Judl. dated 24.09.1999 and a print out copy of the Office
Memorandum bearing No.F.No.26(1)/2002-Judl. dated 07.02.2005. In response thereto, learned counsel for the petitioner vide letter dated 12.12.2014 informed the learned counsel for the respondent that the petitioner admits the aforesaid two documents only for the purpose of the election petition.
14. Petitioner gave evidence as PW 1. In his evidence on affidavit, he has reiterated the averments made in the election petition. Additionally, he has stated that he was engaged as Central Govt. Counsel on four different occasions.
On each of these four occasions, his term was of 3 years duration. On the fourth occasion, in the year 2011, he was the only Central Govt. Counsel at the Itanagar
Bench. In many cases in the Itanagar Bench after initial appearance of the local
Central Govt. Counsel, the concerned department/organization of the Central
Govt. brought Central Govt. Counsel from the Principal Seat at Guwahati. As
Central Govt. Counsel, he raised bills on case to case basis in terms of paragraph
VIII of the revised scheme containing terms and conditions for the Central Govt.
Counsel enclosed to the office memorandum F.No.26(1)/99-Judl. dated
24.09.1999 and/or paragraph VIII of the revised scheme enclosed to the office
Election Pet. No. 1 of 2014 Page 10 of 43 memorandum No.F.No.27(11)/99-Judl. dated 24.09.1999. He stated that he charged his fees as Central Govt. Counsel on the basis of day to day appearance on case to case basis. It was professional fees, which he received. He was not paid retainer fee and other perquisites mentioned in paragraph VIII of the revised scheme enclosed with the two office memoranda dated 24.09.1999. Without receiving retainer fee and/or salary, his engagement as Central Govt. Counsel cannot be treated to be an appointment to an office of profit, as he did not derive any pecuniary benefit. Under paragraph 4 of the Schedule to the 1977 Act, holding of any office under the Govt., which is not a whole time office remunerated either by salary or fees has not been treated to be a disqualification for being a member of the Arunachal Pradesh Legislative Assembly. Therefore, paragraph 4 of the Schedule to the 1977 Act also saved his engagement as
Central Govt. Counsel. Hence the order dated 25/26.03.2014 of the Returning
Officer is illegal. Election petition was filed on 08.04.2014. Certain defects in the election petition were pointed out by the Registry on 25.04.2014. All the defects, except one mentioned at para 8 of the report of the Administrative Officer (Judl.) of the Gauhati High Court dated 02.05.2014 were removed prior to 05.05.2014.
When the election petition was laid before the Bench on 05.05.2014, the Hon’ble
Court found only one defect therein i.e., the one mentioned in para 8 of the report dated 02.05.2014. Regarding allegation of slanting line being inserted in paragraph 4 of the Schedule to the 1977 Act annexed to the election petition, petitioner has stated that a slanting line has come between the word “office” and
“remunerated” accidently on account of somebody’s slip of pen. Paragraph 4 of the Schedule should be read without the slanting line appearing between the
Election Pet. No. 1 of 2014 Page 11 of 43 words “office” and “remunerated”. This was noticed only when it was pointed out by the respondent in his written statement.
15. PW 1 was cross-examined. In his cross-examination, he stated that he has been practicing as an Advocate since 1984 and was designated as a Senior
Advocate in the year 2014. He had not contested any election either to the
Legislative Assembly or to the Parliament earlier. This was the first election which he wanted to contest. He stated that Govt. vehicle, rent free accommodation and free rent telephone are included in pecuniary benefit and that there is nothing more in pecuniary benefit. Whenever pecuniary benefit is given, it would become an office of profit. He stated that he did not agree that his understanding of pecuniary benefit is wrong. He was engaged as Central Govt. Counsel and his term of engagement was governed by office memorandum No.26(1)/99-Judl. dated 24.09.1999 (Ext.A). He further stated that he used to appear on behalf of the Govt. of India in the trial Courts as well and his terms and conditions for appearance in lower Courts were governed by Ext.-9 i.e., office memorandum
No.F.No.27(11)-Judl. dated 24.09.1999. Ext.-A governed his terms and conditions as Central Govt. Counsel in the High Court and he used to draw bills in terms of
Ext.-A. He admitted that he had received the interrogatories, which he perused whereafter he submitted his answers. He further admitted that he had received the notice to admit documents, to which he had submitted his reply through his
Advocate, which was drafted as per his instruction. He stated that in Itanagar
Bench, he used to accept notice on behalf of the Central Govt. From January,
2011 to March, 2014, he was the only Central Govt. Counsel in the Itanagar Bench of the Gauhati High Court. During this period, he used to accept notice for Central
Govt. in all matters for the convenience of the parties. There is no office of the Election Pet. No. 1 of 2014 Page 12 of 43
Central Govt. Counsel in the Itanagar Bench of the Gauhati High Court, which functions from 10.30 in the morning to 4.30 in the evening with a break of 45 minutes in between for lunch. He stated that he had read and understood the terms and conditions of both the office memoranda dated 24.09.1999, Ext.-A and
Ext.-9, whereafter, he accepted the engagement. He further stated that though certain defects were pointed out by the Registry of the High Court in the election petition, all the defects were corrected by him, except the defect marked as item
D in the check list. Though the Hon’ble Court had pointed out that the defect was curable, he did not cure the defect because the defect was not substantial and did not cause prejudice to the respondent. He denied the suggestion that his engagement as Central Govt. Counsel was a whole time engagement. Central
Govt. Counsel in Itanagar Bench would be handling about 4/5 cases per month.
His headquarter was at Itanagar. In the course of his professional duty as Central
Govt. Counsel, he had gone out of headquarter to attend the district courts. When he went out of headquarter, he was entitled to daily fees from the day he moved out till the day he came back to the headquarter. His travelling expenses were reimbursed. While arguing in district courts, he was paid fees for effective hearing.
He has stated that on the date of effective hearing in the district courts, he did not get daily fees. At that stage, the attention of the petitioner was drawn by learned counsel for the respondent to Clauses VIII & IX of the scheme attached to Ext.-9.
He, however, stated that whenever he went out of headquarter, he used to draw bills in accordance with Ext.-9 as per prescribed format. Bills were drawn for miscellaneous incidental expenses/out of pocket expenses as per Clause XI. As per
Clause IX, he used to draw bills for cost of paper, typing, stamps and certified copy. He stated that he was entitled to fees for written opinion and that he used
Election Pet. No. 1 of 2014 Page 13 of 43 to get clerkage as per clause X for the expenses in filing of cases through clerk.
He was entitled to conference fee of Rs.300 per conference subject to maximum of three such conferences, but no conference was actually done by him.
16. No evidence was adduced on behalf of the respondent.
17. Heard Mr. D Mazumdar, learned Senior Counsel for the petitioner and Mr. N Dutta, learned Senior Counsel for the respondent.
18. Mr. Mazumdar, learned Senior Counsel for the petitioner submits that there is no office as such of Central Govt. Counsel in the Itanagar Bench of
Gauhati High Court. Though petitioner was engaged as Central Govt. Counsel in the Itanagar Bench, such engagement was part time engagement and not whole time engagement. There are very few cases involving Central Govt. in the
Itanagar Bench and as per the evidence of the petitioner only about 5 to 6 cases in a month involving Central Govt. were required to be handled by the Central
Govt. Counsel in the Itanagar Bench. No salary or retainer fees were paid to the petitioner as Central Govt. Counsel. Only professional fees and incidental expenses were paid on case to case basis. Petitioner also had the discretion to take private briefs except those briefs involving the Central Govt. Petitioner did not receive any perquisites, such as rent free accommodation, vehicle, free telephone etc.
Therefore, the petitioner did not receive any pecuniary benefit. Thus, petitioner was neither holding an office nor an office of profit under the Govt. Whatever he used to get as per the bills submitted were very little and by no stretch can such amounts be termed as pecuniary gain. Even otherwise, paragraph 4 of the
Schedule to the 1977 Act clearly saves the engagement of the petitioner as
Central Govt. Counsel from disqualification. Therefore, the Returning Officer was Election Pet. No. 1 of 2014 Page 14 of 43 not justified in coming to the conclusion that petitioner was holding an office of profit under the Govt. and on that basis rejecting his nomination on the ground of petitioner being disqualified. Learned counsel for the petitioner has placed reliance on a number of judgments, but more particularly in the Constitution Bench judgment of Srimati Kanta Kathuria Vs. Manak Chand Surana, reported in (1969)
3 SCC 268 and contends that the Constitution Bench judgment in the aforesaid case clearly covers the case of the petitioner. The following decisions were relied upon by learned counsel for the petitioner: -
1. AIR 1954 SC 653 (Gatti Ravanna Vs. G.S. Kaggeerappa). 2. 1969 (2) SCR 422 (Mahadeo Vs. Shantibhai & Ors.). 3. (1969) 3 SCC 268 (Srimati Kanta Kathuria Vs. Manak Chand Surana).
4. (1977) 1 SCC 70 (Madhukar GE Pankakar Vs. Jaswant Chobbildas Rajani).
5. (1999) 2 SCC 627 (Rabindra Kumar Nayak Vs. Collector, Mayurbhanj & Ors.).
6. (2001) 7 SCC 425 (Sibu Soren Vs. Dayanand Sahay & Ors.). 7. (2003) 8 SCC 673 (Sushil Kumar Vs. Rakesh Kumar). 8. (2006) 5 SCC 266 (Jaya Bachchan Vs. Union of India & Ors.). 9. (2012) 2 SCC 64 (Gajanan Samadhan Lande Vs. Sanjay Shyamrao Dhotre).
10. (2013) 2 SCC 239 (Purno Agitok Sangma Vs. Pranab Mukherjee). 11. (2013) 5 SCC 277 (Deepak Aggarwal Vs. Keshav Kaushik & Ors.).
19. Per contra, Mr. N Dutta, learned Senior Counsel for the respondent submits that on the basis of pleadings, documents exhibited and evidence of the petitioner, it is clear that on the date of scrutiny of his nomination, petitioner was holding an office. Holding of such office led to pecuniary gain for the petitioner.
Whether petitioner actually received pecuniary gain or the quantum of pecuniary
Election Pet. No. 1 of 2014 Page 15 of 43 gain is immaterial. If the term of engagement provides for such pecuniary gain which it did, that would suffice. Thus he was holding an office of profit. He submits that there cannot be any dispute that the office of profit held by the petitioner was under the Govt. He has referred to various decisions to press before the Court that what is an office and what is an office of profit has been decided by a long line of decisions of the Apex Court and the law on this point has by now become crystalised. By referring to various decisions and the exhibited documents particularly Ext.A and Ext.9, he submits that there cannot be any iota of doubt that by his engagement as Central Govt. Counsel, petitioner was holding an office of profit under the Govt. Respondent. As the objector had discharged the onus of proof that petitioner was holding an office of profit under the Govt., burden was on the petitioner to show or prove that he was not holding an office of profit under the Govt. A perusal of the evidence adduced by the petitioner would show that petitioner has failed to discharge such burden. Since the petitioner has failed to discharge the burden to prove that he was not holding an office of profit, he will have to suffer the consequence by way of dismissal of the election petition. Mr. Dutta has explained and distinguished the decision rendered in Srimati Kanta Kathuria (Supra) and contends that petitioner cannot get any benefit from out of the said decision as the said decision is in conformity with the long line of judicial precedents on this aspect and is distinguishable on facts. He has also placed before the Court copies of Acts of different States relating to prevention of disqualification being pari materia with the 1977 Act. Referring to the said Acts, Mr. Dutta submits that whenever the Legislature intended to exclude certain offices from disqualification, it was specifically mentioned in the
Schedule to the Act, such as the Assam Act, which excludes the office of Govt.
Election Pet. No. 1 of 2014 Page 16 of 43
Pleader or the Public Prosecutor from disqualification. Since the 1977 Act does not mention Central Govt. Counsel or Govt. Pleader in the list of offices excluded from disqualification, it is evident that the office of Central Govt. Counsel is not saved by the 1977 Act. Reference to Clause 4 of the Schedule to the said Act is misplaced as it deals with any office under the Govt., which is not a whole time office remunerated either by salaries or by fees. Learned Senior Counsel has placed reliance on the following decisions: -
1. AIR 1954 SC 653 (Gatti Ravanna Vs. G.S. Kaggeerappa). 2) AIR 1958 SC 937 (M. Ramappa Vs. Sangappa & Ors.) 3) 1969 (2) SCR 422 (Mahadeo Vs. Shantibhai & Ors.). 4) (1969) 3 SCC 268 (Srimati Kanta Kathuria Vs. Manak Chand Surana).
5) 1971 3 SCC 870 (Shivamurthy Swami Inamdar & Anr. Vs. Agadi Sanganna Andanappa & Anr.).
6) (1984) 1 SCC 551 (Biharilal Dobray Vs. Roshan Lal Dobray). 7) (1985) 1 SCC 151 (Ashok Kumar Bhattacharyya Vs. Ajoy Biswas & Ors.).
8) (1992) 4 SCC 404 (Satrucharla Chandrasekhar Raju Vs. Vyricherla Pradeep Kumar Dev & Anr.).
9) (1999) 2 SCC 627 (Rabindra Kumar Nayak Vs. Collector, Mayurbhanj & Ors.).
10) (2001) 7 SCC 425 (Sibu Soren Vs. Dayanand Sahay & Ors.). 11. (2002) 2 SCC 704 (MV Rajashekaran & Ors. Vs. Vatal Nagaraj & Ors.).
12. (2006) 5 SCC 266 (Jaya Bachchan Vs. Union of India & Ors.). 13. (2009) 9 SCC 648 (Consumer Education & Research Society Vs. Union of India & ors.).
14. 2013 (1) GLT (FB) 809 (State of Assam & Ors. Vs. Moslem Mondal & Ors.).
15. AIR 2014 SC 3477 (UC Raman Vs. PTA Rahim). 16. Phipson on Evidence 14th Edn.
Election Pet. No. 1 of 2014 Page 17 of 43
20. In his reply, Mr. Mazumdar contends that engagement of the petitioner as Central Govt. Counsel in the Itanagar Bench cannot be construed as full time office. It was a part time engagement as petitioner had the right of private practice. Therefore, petitioner’s engagement was saved under para 4 of the Schedule to the 1977 Act. He submits that since the respondent has raised objection regarding disqualification of the petitioner, burden of proof is on the respondent being the objector to establish that petitioner was holding an office of profit under the Govt. and thereby he stood disqualified or that the office of profit held by the petitioner was not exempted by the 1977 Act. He finally submits that rejection of the nomination of the petitioner was improper within the meaning of section 100 (1) (c) of the 1951 Act and, therefore, election of the respondent because of improper rejection of petitioner’s nomination is liable to be declared as void.
21. Submissions made by learned counsel for the parties have been considered. The evidence on record has been carefully examined. Decisions cited at the bar have also been perused.
22. On due consideration, the case may now be decided issue wise as framed.
23. Issue No. 1 : Whether the election petition is maintainable in law?
The election petition has been filed against rejection of nomination of the petitioner as a candidate for the 39-Mebo (ST) Legislative Assembly
Constituency and subsequent declaration of the respondent as the returned candidate. There were only two candidates in the fray. With the rejection of the nomination of the petitioner, respondent remained the lone candidate in the fray. Election Pet. No. 1 of 2014 Page 18 of 43
On his nomination papers being found in order, he was declared as the returned candidate from the said constituency vide certificate of election dated 26.03.2014.
Petitioner’s nomination has been rejected on the ground that at the time of scrutiny, he was found engaged as Central Govt. Counsel in the Itanagar Bench of
Gauhati High Court. This has been held by the Returning Officer to be an office of profit under the Govt. It has been further held by the Returning Officer that the provisions of paragraph 4 of the Schedule to the 1977 Act did not save the disqualification. Accordingly, petitioner was held to be disqualified for being a member of the Arunachal Pradesh Legislative Assembly and his nomination was rejected. This has been challenged by the petitioner as improper rejection under section 100 (1) (c) of the 1951 Act. There is, therefore, a definite cause of action for institution of the election petition. Accordingly, I hold that the election petition is maintainable in law.
24. Issue No. 2 : The issue framed is whether order of the Returning
Officer of the 39-Mebo (ST) Legislative Assembly Constituency rejecting the nomination of the petitioner is dated 25.03.2014 or 26.03.2014?
I have perused the order passed by the Returning Officer. Though the order starts with the date 25.03.2014, ultimately the Returning Officer puts his signature to the order on 26.03.2014. Therefore, it is clear that the order was signed on 26.03.2014. Date of the order is, thus, 26.03.2014. This issue is answered accordingly.
25. Issue Nos. 3 & 4 being interrelated, these are taken up together.
Issue No. 3 : Whether the election petition has been presented in accordance with law ?
Election Pet. No. 1 of 2014 Page 19 of 43
Issue No. 4 : Whether there has been compliance with sections 81,
82 and 83 of the 1951 Act in presenting the election petition?
The election petition has been filed under sections 80 & 80-A of the
1951 Act and presented under section 81 thereof. Section 80 of the 1951 Act says that no election shall be called in question except by an election petition presented in accordance with the provisions of Part-VI of the 1951 Act. Under section 80-A, it is the High Court having jurisdiction which shall try an election petition. Such jurisdiction shall be exercised ordinarily by a Single Judge of the High Court assigned for the purpose by the Chief Justice. Section 81 deals with presentation of petition. According to section 81, an election petition may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or by any elector within 45 days from the date of election of the returned candidate. Every election petition is required to be accompanied by as many copies as there are respondents and every such copy shall be attested by the petitioner under his own signature to be a true copy of the election petition. As per section 82 (a), which is relevant, a petitioner shall join as respondent the returned candidate. Section 83 deals with contents of election petition. It says that an election petition shall contain a concise statement of the material facts on which the petitioner relies and it shall be signed by the petitioner and verified in the manner laid down in the Code of
Civil Procedure, 1908 for verification of pleadings. Any schedule of annexure to the election petition shall also be signed by the petitioner and verified in the same manner as the election petition.
25.A Report of the Administrative Officer (Judl.), Gauhati High Court dated 02.05.2014 (Ext.-8) says that the election petition was filed by the Election Pet. No. 1 of 2014 Page 20 of 43 petitioner personally on 08.04.2014 during office hours. He had signed each of the pages of the petition, annexures and service copies of the petition in his presence.
The election petition along with an extra copy of the petition was filed within 45 days. The election petition is supported by an affidavit. According to the report, the election petition was in order except one defect which was that the election petition was not typed out as per Chapter-VIII (A) Rule 1 Note (1) of the Gauhati
High Court Rules.
25B. This Court by order dated 05.05.2014 had perused the aforesaid provision of the Gauhati High Court Rules, which says that the election petition should be legibly type written or printed in the English language, on durable foolscap paper or other paper similar to it in size and quality, bookwise, on one side of the paper, with not more than 20 or less than 18 lines, of about 10 words in each line on each page with an inner margin of about an inch and a quarter- wide. If an election petition is filed without satisfying the above requirement, the same is required to be returned by the stamp reporter to the petitioner forthwith for refiling after rectifying the defects. Court noticed that the report did not indicate that the election petition was returned by the stamp reporter for refiling.
However, Court was of the view that the only defect as per the report prima facie was of curable nature. Accordingly, the Registry was directed to register the election petition and simultaneously notice was issued to the respondent.
25C. Petitioner has admitted that though this Court had held the aforesaid defect to be curable, he did not cure the defect by filing election petition in terms of the aforesaid provision.
Election Pet. No. 1 of 2014 Page 21 of 43
25D. The defect as pointed out by the office and as noticed in the order dated 05.05.2014 was held to be a defect of curable nature. Even if the defect is not cured or rectified subsequently, it does not materially affect the legitimate challenge made in the election petition. In my view, the defect is not of such nature that it would render an election petition invalid. No doubt election law is highly technical and all technical aspects are required to be considered while entertaining election petitions. However, a practical view has also to be taken to ensure that a challenge to the election of a returned candidate which is otherwise valid is not aborted at the threshold because of minor curable defects.
Accordingly, issue Nos. 3 & 4 are answered in the affirmative and I hold that the election petition has been presented in accordance with law complying with the requirements of the 1951 Act.
26. Issue No. 5 : Whether there is any tampering with Annexure-5 of the election petition? If so, whether such tampering with Annexure-5 which is a part and parcel of the election petition renders the instant election petition liable to be dismissed?
In the course of hearing Mr. N Dutta, learned Senior Counsel for the respondent submitted that respondent would not press the said issue relating to tampering of document marked as Annexure-5 to the election petition. I have perused the evidence of the petitioner, PW 1, regarding filing of the election petition and the submission of learned counsel for respondent. I have also perused the Annexure-5 document, which is nothing but a copy of the 1977 Act.
On due consideration, I am satisfied that there was no tampering with Annexure-5 document. Accordingly, this issue is answered in the negative by holding that there was no tampering with Annexure-5 to the election petition. Election Pet. No. 1 of 2014 Page 22 of 43
27. Issue No. 6: Whether the engagement of the election petitioner as
Central Government Counsel by Government of India, Ministry of Law and Justice,
Department of Legal Affairs is on the basis of the Order No.F.36(9)/2011-Judl. dated 20.6.2011 read with the terms and conditions contained in the said
Department's Office Memorandum No. 26(1)/99-Judl. dated 24.09.1999 and in the
Office Memorandum No.F.No.27(11)/99-Judl. dated 24.09.1999?
From the pleadings and the evidence on record, it is established that petitioner was engaged as Central Govt. Counsel for conducting Central Govt. cases and for the conduct of cases filed against public officers while in the service of Central Govt. before the Itanagar Bench of Gauhati High Court vide order
No.F.36(9)/2011-Judl. dated 20.06.2011 for a period of 3 years. It was stated that engagement of the petitioner would be governed by the terms and conditions contained in the office memorandum of the Ministry of Law and Justice,
Department of Legal Affairs No.26(1)/99-Judl. dated 24.09.1999, which deals with fees payable for conduct of cases in the High Court. It has also come on record that engagement of the petitioner was also covered by the departmental office memorandum No.F.No.27(11)/99-Judl. dated 24.09.1999, which deals with payment of fees for appearance in the district and sub-ordinate courts. Thus, petitioner was engaged vide order dated 20.06.2011 and the terms and conditions of engagement were governed by the two office memoranda dated 24.09.1999.
Therefore, this issue is answered in the affirmative by holding that engagement of the election petitioner as Central Govt. Counsel was on the basis of the order dated 20.06.2011 and governed by the terms and conditions laid down in both the office memoranda dated 24.09.1999.
Election Pet. No. 1 of 2014 Page 23 of 43
28. In so far the other issues are concerned, I am of the view that issue No. 8 precedes issue No.7. Therefore, issue No. 8 is taken up before issue
No.7.
Question for consideration arising out of issue No.8 is whether engagement of the petitioner as Central Govt. Counsel in the Itanagar Bench of
Gauhati High Court amounts to holding an office of profit under the Govt. thereby inviting disqualification as a member of Arunachal Pradesh Legislative Assembly.
28A. Article 191 of the Constitution of India deals with disqualification for membership of Legislative Assembly or Legislative Council of a State. Since clause
(1) (a) of Article 191 is relevant for the present case, reference is made only to the said provision. Article 191 (1) (a) provides that a person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or
Legislative Council of a State if he holds any office of profit under the Govt. of
India or under the Govt. of any State other than an office declared by the
Legislature of the State by law not to disqualify its holder.
28B. A careful reading of the aforesaid provision would show that if a person holds an office of profit under the Central Govt. or under the State Govt., he would be disqualified for being chosen as, or for being a member of the
Legislative Assembly or Legislative Council of a State (in this case Legislative
Assembly of Arunachal Pradesh), unless his case comes within the exemption, which is covered by issue No. 7 and as stated above, would be discussed subsequent to the present issue. There are three crucial components in Article 191
(1) (a). To invite disqualification, a person must hold an office, that office must be an office of profit and such office of profit must be under the Govt., whether
Election Pet. No. 1 of 2014 Page 24 of 43
Central or State Govt. While, according to the petitioner, he was not holding any office, not to speak of office of profit, respondent contended that petitioner was indeed holding an office wherefrom profit accrue. Therefore, he was rightly held to be disqualified by the Returning Officer with consequential rejection of nomination. To appreciate the rival contentions, deliberation on the three aspects as noticed above would be called for.
28C. Firstly, the question is what is meant by or what is an “office” in the context of Article 191 (1) (a). Corollary to this would be the question as to whether engagement as Central Govt. Counsel, would amount to holding any
“office”.
28D. The word “office” in the context of holding an office of profit came up for consideration before the Apex Court in Mahadeo (Supra). In that case, election of the returned candidate was declared void under section 98 of the 1951
Act upholding the challenge made to the election of the appellant on the ground that he was holding three offices of profit, including one being an empanelled lawyer of the Central and Western Railway Administration.
28E. The Apex Court referred to the dictionary meaning of word “office”.
According to Webster’s New World Dictionary it means a function or duty assigned to someone, specially as an essential part of his work or position, a position of authority or trust especially in a Govt., Corporation etc. Referring to a previous decision, it was held that an office means no more than a position to which certain duties are attached. Reference was made to the observations of Lord Wright of the House of Lords in the case of Mc Millan Vs. Guest, 1942 Appeal Cases 561, who defined office as a position or place to which certain duties are attached, Election Pet. No. 1 of 2014 Page 25 of 43 especially one of a more or less public character. Relying upon the aforesaid definition, the Apex Court held that being a panel lawyer of the Railways would amount to holding an office. Since as per the terms of engagement, appellant had accepted certain obligations and was required to discharge certain duties, he was not free to take a brief against the Railway Administration. Whether or not the
Railway Administration thought it proper to entrust any particular case or litigation pending in the Court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the Railway office. Even if no instructions were given to him regarding a particular case, he was expected to appear in Court and obtain an adjournment.
In effect, this cast a duty on him to appear in Court and obtain an adjournment so as to protect the interest of the Railways. The duty or obligation was a continuing one so long as the Railways did not think it proper to remove his name from the panel of Railway lawyers or so long as he did not intimate to the Railway
Administration that he desired to be free from his obligation to render service to the Railways. In the absence of the above, he was bound by the terms of the engagement to watch the interest of the Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railways had made no arrangement for representation. It was the categorical finding of the Apex Court that all though it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railways without formally putting an end to the engagement, that would not detract from the position that he was in duty bound to work for the Railway Administration and see that its cases did not suffer by default. So long as the engagement was not
Election Pet. No. 1 of 2014 Page 26 of 43 put to an end, the appellant was holding an office in the Railway Administration.
This is the clear and categorical view of the Apex Court in Mahadeo (Supra).
28F. In Srimati Kanta Kathuria (Supra), the Constitution Bench speaking through the majority took the view that an office cannot be visualized as coming into existence, every time a pleader is asked by the Govt. to appear in a case on its behalf. While learned counsel for the petitioner has placed great reliance on this decision, learned counsel for the respondent on the other hand would submit that this decision does not support the case of the petitioner, rather it is a continuation of the view taken by the Apex Court in Mahadeo (Supra).
Since heavy reliance has been placed on this decision, a brief reference to the facts of that case would be in order. Srimati Kanta Kathuria (Supra), was an
Advocate practicing at Bikaner. By order dated 26.06.1965, Govt. of Rajasthan appointed her as Special Govt. Pleader to conduct arbitration case between Govt. of Rajasthan and Modern Construction Company arising out of construction of
Rana Pratap Sagar Dam & Jawahar Sagar Dam. The order specifically stated that she was appointed as Special Govt. Pleader to conduct the above case on behalf of the State of Rajasthan along with one Sri Murli Manohar Vyas, Govt. Advocate,
Jodhpur. The minority held that even this appointment of Smti. Kanta Kathuria as
Special Govt. Pleader in one case amounted to holding an office. However, the majority took the view that such appointment did not amount to holding an office.
Referring to Article 191 (1) (a), it was held that there must be an office, which exists independently of the holder of the office. Alluding to the meaning applied to the word office by Justice Rowlatt in Great Western Railway Company Vs. Bater, 8
Tax Cases 231, who defined an office or employment as one subsisting,
Election Pet. No. 1 of 2014 Page 27 of 43 permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders, and the observations of Lord Atkin in Mc Millan Vs. Guest 24 Tax Cases
190, the Apex Court took the view that there is no essential difference between the definitions given by Lord Wright and Lord Atkin on the one hand and the definition given by Justice Rowlatt on the other hand, which was quoted with approval in Mahadeo (Supra). In Srimati Kanta Kathuria (Supra), the Apex Court took the view that by her engagement as Special Govt. Pleader, she was not holding an office because the appellant was appointed only to assist the Govt.
Advocate in a particular case. In other words, her engagement as Special Govt.
Pleader was confined to a particular case. Therefore, her engagement did not exist independently of the office. The two were co-terminus. The assignment did not exist independently of the holder. This is the crucial difference in Srimati
Kanta Kathuria (Supra), which though accepted the definition of office given in
Mahadeo (Supra), however, distinguished it in the facts of that particular case.
28G. In the case of Satrucharla Chandrasekhar Raju (Supra), the Apex
Court held that it is generally understood that an office means a position to which certain duties are attached. To be an office, it must be shown that permanency is attached to the office and not to the term for which a person holds it. Persons who holds the office come and go in succession. One may succeed the other after a long gap or in quick succession. How long one remains in office is irrelevant to decide whether one holds it as an office. Referring to the decision in Srimati
Kanta Kathuria (Supra), it was held that the difference of opinion between the majority and the minority was on the question whether by the notification, the
Election Pet. No. 1 of 2014 Page 28 of 43
Govt. had created office of Special Govt. Pleader. The difference of opinion was not on account of the meaning of the word office. This distinction in approach between the minority and the majority in Srimati Kanta Kathuria (Supra) was also explained by the Apex Court in MV Rajashekaran (Supra).
28H. In the light of the above, the question as to whether engagement of the petitioner as Central Govt. Counsel amounts to holding an office needs to be examined. A perusal of the order dated 20.06.2011 (Ext.1) would show that petitioner was engaged as Central Govt. Counsel in the Itanagar Bench of Gauhati
High Court for conducting Central Govt. cases and for conducting cases filed against public officers while in the service of the Central Govt. The engagement was for a period of three years. As per the evidence on record, the petitioner himself was engaged as Central Govt. Counsel at Itanagar Bench on three previous occasions. Though there is an Assistant Solicitor General for the Central
Govt. in the Principal Seat of the Gauhati High Court at Guwahati, petitioner was the lone Central Govt. Counsel in the Itanagar Bench. As per the terms and conditions of engagement, he was duty bound to accept notice on behalf of the
Central Govt. in cases filed in the Itanagar Bench concerning the Central Govt.
Such notices could be served on him at any time during the course of the Court hours. Even if a particular Central Govt. Department might engage outstation counsel at a subsequent stage, it was the duty of the petitioner to accept notice on behalf of the Central Govt. at the initial stage and see to it that interest of
Central Govt. was protected. As Central Govt. Counsel, petitioner had definite duties and responsibilities. He was holding a position as Central Govt. Counsel to which certain duties were attached. Evidence on record shows that other persons were also appointed as Central Govt. Counsel in the past. It is thus evident that Election Pet. No. 1 of 2014 Page 29 of 43 there is clear demarcation between the petitioner as holder of the office of Central
Govt. Counsel and the office of Central Govt. Counsel, which exist independently of the engagement of the petitioner. It is a misconception to contend that to be an office, there must be definite infrastructure and other paraphernalia attached to such infrastructure.
28I. In the light of the above, I have no hesitation to hold that engagement of the petitioner as Central Govt. Counsel in the Itanagar Bench of the Gauhati High Court amounts to holding of “office” by the petitioner.
29. The next issue, which follows from the above, is whether such an office is an office of profit within the meaning of Article 191 (1) (a) of the
Constitution.
29A. In the case of Gatti Ravanna (Supra), the Apex Court was of the view that the word “profit” connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material. In Mahadeo (Supra), the
Apex Court after examining the meaning of the word “office” went on to examine the meaning of the expression “office of profit”. It was held that an office of profit really means an office in respect of which a profit may accrue. It was further held that it was not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him. The Apex Court in the case of Shivamurthy Swami
Inamdar (Supra), held that the word profit in the expression “office of profit” connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material, but the amount of money receivable by a person in
Election Pet. No. 1 of 2014 Page 30 of 43 connection with the office he holds may be material in deciding whether the office really carries any profit. While examining the object of Article 191 (1) (a) of the
Constitution in Biharilal Dobray (Supra), the Hon’ble Supreme Court was of the view that the term office of profit under the Govt. used in the said Article though indeterminate, is an expression of wider import than a post held under the Govt.
For holding an office of profit under the Govt., a person need not be in the service of the Govt. and there need not be any relationship of master and servant between them. An office of profit involves two elements, viz, first, there should be an office and, second, the office should carry some remuneration. This view has been reiterated in Ashok Kumar Bhattacharyya (Supra), in which case, the Apex
Court reiterated the view taken in Madhukar GE Pankakar (Supra). It was observed that to determine holding of an office of profit under the Govt., one has to look at the substance and not the form, a practical view and not a pedantic basket of tests which would guide in arriving at a sensible conclusion. In Rabindra
Kumar Nayak (Supra), the Hon’ble Supreme Court held that the expression
“office of profit” only means an office, which yields income or profit. In Sibu
Soren (Supra), the Hon’ble Supreme Court held that the question whether a person holds an office of profit is required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory provisions. While a strict and narrow construction may not be adopted which may have the effect of shutting off many prominent and other eligible persons to contest the election, but at the same time in dealing with a statutory provision, which imposes a disqualification on a citizen, it would be unreasonable to take merely a broad and general view and ignore the essential points. According to the
Election Pet. No. 1 of 2014 Page 31 of 43
Apex Court, the approach while interpreting the expression “office of profit” should have the flavour of reality.
29B. As noticed above, the word profit connotes an idea of pecuniary gain though neither the label under which it is paid nor the quantum of the amount may always be material to determine the issue. It is the entitlement which is to be examined while determining pecuniary gain and not what one gets. This position has been explained by the Apex Court in Jaya Bachchan (Supra).
Referring to the previous decisions, the Apex Court held that an office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Govt., to which some pay, salary, emoluments, remuneration or non-compensatory allowance is attached, would amount to holding an office of profit. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. Mere use of the word honorarium cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium in addition to daily allowances in the nature of compensatory allowances would be clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the pecuniary gain is receivable in connection with the office then it becomes an office of profit irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of Election Pet. No. 1 of 2014 Page 32 of 43 pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1) (a) of the Constitution, which is identical to Article 191 (1) (a). It has been held in no uncertain terms that it is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it would be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is receivable in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. In Jaya Bachchan (Supra), the office of Chairperson of Uttar Pradesh
Film Development Council to which she was appointed, carried with it a monthly honorarium of Rs.5000/-, entertainment expense of Rs.10,000/-, staff car with driver, telephones at office and residence, free accommodation and medical treatment facilities to self and family members apart from other allowances. These were held to be pecuniary gains. The fact that Jaya Bachchan is affluent and was not interested in the benefits/facilities given by the State Govt. or did not, in fact, receive such benefits, were considered not relevant to the issue. Thus, the question whether one actually receives any pecuniary gain or not is of no consequence. This position has been clarified further by the Apex Court in a recent decision in UC Raman Vs. PTA Rahim, reported in (2014) 8 SCC 934 by upholding the categorical clarification the Hon’ble Supreme Court has given on more than one occasion that an office of profit is an office which is capable of yielding a profit or pecuniary gain. The word profit has always been treated equivalent to or as a substitute for the term pecuniary gain. The very context in which the word
“profit” has been used after the word “office” shows that not all offices are
Election Pet. No. 1 of 2014 Page 33 of 43 disqualified, but only those which yield pecuniary gain as profit other than mere compensatory allowances to the holder of the office.
29C. In the light of the legal position as discussed above, the engagement of the petitioner as Central Govt. Counsel may now be examined. It has already been decided that such engagement amounts to holding an office.
Now the question is whether such office yields profit or pecuniary gain.
29D. It has already come on record that petitioner’s engagement as
Central Govt. Counsel in the Itanagar Bench of Gauhati High Court was governed by the terms and conditions of two office memorandum dated 24.09.1999, one being OM No.26(1)/99-Judl. (Ext.A) and the other being F.No.27(11)/99-Judl.
(Ext.9).There is no dispute, rather it is an admitted position that petitioner’s engagement as Central Govt. Counsel in the Itanagar Bench of the Gauhati High
Court was governed by the aforesaid two exhibits. While Ext.A dealt with appearance in the High Court, Ext. 9 dealt with appearance in the district and sub- ordinate courts. In so far appearance in High Court was concerned, it was provided that the Senior Central Govt. Standing Counsel would be in-charge of the entire litigation work on behalf of the Govt. of India in the concerned High Court or its Bench. Allocation of cases to the Central Govt. Standing Counsel was made by the Senior Central Govt. Standing Counsel. There would be Senior Central
Govt. Standing Counsel and a panel of counsel consisting of Additional Central
Govt. Standing Counsel to conduct cases on behalf of the Govt. of India in the concerned High Court. The strength of the panel of Central Govt. Counsel would be determined by the Govt. of India from time to time. Term of engagement was normally for a period of 3 years extendable at the discretion of the Govt. of India.
Election Pet. No. 1 of 2014 Page 34 of 43
Engagement of Central Govt. Counsel was terminable at any time without assigning any reason. Various duties were assigned to Central Govt. Standing
Counsel. From the evidence on record, it is clear that petitioner was the sole
Central Govt. Counsel in the Itanagar Bench of the Gauhati High Court since the year 2011. It has come on record that petitioner used to take notice on behalf of the Govt. of India in all cases in the Itanagar Bench where the Central Govt. or its officers were parties. In all cases, it was the petitioner who had accepted notice on behalf of the Govt. of India in the initial stage though at subsequent stage in some cases, other Central Govt. Counsel from the Principal Seat at Guwahati had appeared.
29E. Though petitioner was not entitled to monthly retainership fee, he was entitled to fee at different rates for different services rendered. For civil or criminal writ petitions, he was entitled to fee of Rs.2250/- per case. If the hearing went on for more than three days, he was entitled to an additional fee of Rs.375/- per day for every additional day, but not exceeding three in number by way of refresher fee. Petitioner was entitled to similar fee structure in respect of civil or criminal revision petitions, miscellaneous applications, reference under the Sales
Tax Act etc. He was also entitled to a fee of Rs.450/- per written opinion and drafting fee of Rs.750/- per pleading. Even if the Central Govt. Counsel did not argue the case himself, but only assisted the Law Officer, Advocate General of the
State or other Special/Senior Counsel, he would still be entitled to the same fee as payable to him as if he had appeared and argued the case himself. If the Central
Govt. Counsel was required to come out of headquarter in connection with Central
Govt. litigation, for example, conference with a Senior Counsel, appearance in
Court outside the headquarter, he would be entitled to a daily fee of Rs.1200/- per Election Pet. No. 1 of 2014 Page 35 of 43 day for the days of his absence from the headquarter. He would also be entitled to travelling expenses and hotel expenses per day. In addition, he was also entitled to conveyance charge of Rs.300/- for performing local journey while outside the headquarter. In addition to the fees, the Central Govt. Counsel was entitled to
10% of the fees subject to a maximum of Rs.1800/- in a case or batch of cases by way of clerkage. Petitioner was also entitled to out of pocket expenses for filing a case and other miscellaneous expenses not exceeding Rs.300/-.
29F. Similar is the fee structure for appearance of the Central Govt.
Counsel in the district and sub-ordinate courts as per Ext.9. In case of suits, he was entitled to a daily fee of Rs.600/-. For drafting written statement and memo of appeal, he was entitled to Rs.500/- per pleading and for miscellaneous applications, Rs.200/- per pleading. For going out of headquarter in connection with Central Govt. litigation, petitioner was entitled to a daily fee of Rs.900/- per day for the days of his absence from the headquarter, which was in addition to the usual fee as prescribed. He was also entitled to reimbursement of travel and hotel expenses in addition to conveyance charge of Rs.300/-. In addition to fees, petitioner as the Central Govt. Counsel was entitled to 10% of the fees as clerkage subject to a maximum of Rs.1800/- in a case or batch of cases. As in High Court, he was also entitled to out of pocket expenses not exceeding Rs.300/- per case.
29G. Petitioner in his evidence has stated that he had raised bills for the services rendered by him as per the terms and conditions of Ext.9 and Ext.A.
Besides compensatory allowances like clerkage, reimbursement of travel and hotel expenses, conveyance charge etc., petitioner was entitled to fees as per different rates, which included daily fees while discharging outstation duties in addition to
Election Pet. No. 1 of 2014 Page 36 of 43 the prescribed hearing and appearance fee. Even when he did not argue a case himself, but assisted the Law Officer or the Advocate General or a Senior Counsel, he was entitled to the fees as prescribed as if he had argued the case or had himself appeared. Such amount was clearly over and above the compensatory amount paid or payable to the petitioner, thus being non-compensatory in nature partaking the character of pecuniary gain. As held by the Apex Court, the question is not whether petitioner had received pecuniary gain, but his entitlement which is clearly established by Ext.9 and Ext.A. Petitioner’s contention that since he was not paid salary or provided rent free accommodation or vehicle etc., therefore, his engagement as Central Govt. Counsel did not amount to holding of office of profit is clearly untenable and cannot be accepted. It is thus clear that petitioner was holding an office of profit.
29H. The question as to whether such office of profit was held by the petitioner under the Govt. was not seriously argued by learned counsel for either side because the law on this point is quite well settled. In Pradyut Bordoloi Vs.
Swapan Roy, reported in (2001) 2 SCC 19, the Hon’ble Supreme Court after referring to various decisions has laid down a number of tests for finding out whether the office in question is an office of profit under the Govt. These tests are: -
i) Whether the Govt. makes the appointment? ii) Whether the Govt. has the right to remove or dismiss the holder? iii) Whether the Govt. pays the remuneration? iv) What are the functions of the holder? Does he perform them for the Govt.?
v) Does the Govt. exercise any control over the performance of those functions?
Election Pet. No. 1 of 2014 Page 37 of 43
It has been held that the decisive test for determining whether a person holds any office of profit under the Govt., is the test of appointment.
Applying the above tests to the engagement of the petitioner and the terms and conditions of his engagement, there can be no iota of doubt that the appointment of the petitioner was by the Central Govt., which was terminable at any time by the Central Govt. The remuneration was paid by the Central Govt. and the petitioner had to defend the cases of the Central Govt. or its officers. Thus, applying the above tests, it is clear that petitioner was holding an office of profit under the Govt. of India.
29I. In the light of the above, issue No. 8 is accordingly answered against the petitioner and in favour the respondent.
30. Issue No.7 may now be adverted to, which is as follows: -
Whether the disqualification of the election petitioner, if any, arising out of his engagement as Central Government Counsel stands removed under the provisions of Arunachal Pradesh Legislature Members (Prevention of
Disqualifications) Act, 1977?
Article 191 (1) (a) of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative
Assembly or Legislative Council of a State, if he holds any office of profit under the
Govt. of India or the Govt. of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. It has already been held that petitioner holds an office of profit under the
Govt. of India. Question now is whether such office held by the petitioner would
Election Pet. No. 1 of 2014 Page 38 of 43 come within the exemption declared by the Arunachal Pradesh Legislature by the
1977 Act so as to save the petitioner from disqualification.
30A. The 1977 Act has been enacted by the State Legislature of
Arunachal Pradesh providing for prevention of certain disqualifications for being chosen as, and for being, a member of the Arunachal Pradesh Legislative
Assembly. Under section 2 of the 1977 Act, a person shall not be disqualified for being chosen as, or for being, a member of the Arunachal Pradesh Legislative
Assembly by reason of the fact that he holds any of the offices being offices of profit specified in the Schedule. The Schedule to the 1977 Act mentions 13 offices being offices of profit, but being saved from disqualification by virtue of the said
Act. Learned counsel for the petitioner has argued that even if engagement of the petitioner as Central Govt. Counsel is held to be an office of profit under the Govt. of India, disqualification of the petitioner would be saved by paragraph 4 of the
Schedule to the 1977 Act. Paragraph 4 provides that any person holding any office under the Govt., which is not a whole time office remunerated either by salary or fees or any office under the Govt. which is declared by the State Govt. to be not an office of profit within the meaning of Article 191 (1) (a) of the Constitution of
India shall not be disqualified for holding such office under the 1977 Act. It was strenuously argued that since the engagement of the petitioner as Central Govt.
Counsel was not a whole time engagement, therefore, it would come within the ambit of paragraph 4 of the Schedule. It was contended that since petitioner was permitted under Exts. A & 9 to have private practice without affecting the work of
Central Govt. Counsel and since petitioner had to deal with only 4/5 cases involving the Central Govt. in a month, his engagement was a part time engagement and, therefore, it could not be said to be a whole time engagement. Election Pet. No. 1 of 2014 Page 39 of 43
The fallacy of this argument would be evident if we consider it from the perspective of the employer, which in this case is the Govt. of India. Whether an office is a part time one or a full time one is required to be considered from the stand point of the employer and not from the stand point of the holder. In the instant case, there can be no manner of doubt that from the perspective of the employer i.e., Govt. of India, the engagement of the petitioner as Central Govt.
Counsel was a whole time engagement as petitioner was duty bound to accept notice on behalf of the Central Government and look after the interest of the
Central Govt. in the Itanagar Bench in all matters concerning the Central Govt.
Though he was entitled to private practice, he could not take up brief against the
Central Government and his private practice was required to be conducted in a manner that it would not affect his work as Central Govt. Counsel. In any case, on a careful perusal of the 1977 Act, the intention of the Legislature is clear; whichever office of profit the Legislature wanted to exempt from disqualification has been specifically mentioned, such as, the office of medical practitioner rendering part time service to the Govt. Out of the 13 mentioned offices, nowhere it is mentioned that a Govt. Pleader or a Public Prosecutor or a Central Govt.
Counsel would be exempted from disqualification. Therefore, it is evident that the
Legislature did not intend to exempt the office of Central Govt. Counsel from disqualification.
30B. On the other hand, Mr. Dutta, learned Senior Counsel for the respondent has produced such removal or prevention of disqualifications Act of other States, which are pari materia to the provisions in the 1977 Act to contend that whenever and wherever the Legislature desired that the office of Govt.
Election Pet. No. 1 of 2014 Page 40 of 43
Pleader or Public Prosecutor should be exempted from disqualification those have been specifically mentioned in the respective Schedules.
30C. A perusal of the Assam State Legislature Members (Removal of
Disqualifications) Act, 1950 would reveal that paragraph 8 of the Schedule to the said Act is identical to paragraph 4 of the 1977 Act. But in the Assam Act, it is specifically mentioned in paragraph 2 that the office of Govt. Pleader or Public
Prosecutor would be exempted from disqualification. Similar is the position in the case of Madhya Pradesh Vidhan Mandal Sadasya Nirharta Nivaran Adhiniyam,
1967, where the offices of Advocate General, Govt. Pleader and Public Prosecutor are specifically saved from disqualification. The position is similar in the case of
Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya)
Act, 1972, where offices of the Govt. Pleader, Public Prosecutor, Addl. Govt.
Pleader, Govt. Advocate, Addl. Public Prosecutor, Assistant Govt. Pleader and
Assistant Public Prosecutor and any other Advocate or Pleader especially appointed by the Govt. to conduct State cases before any Court or Tribunal are exempted from disqualification. This is in addition to paragraph 8, which like paragraph 4 of the 1977 Act removes any office under the Govt., which is not a whole time office remunerated either by salary or fees from disqualification. The same is the position in respect of the Mizoram, Nagaland and Tripura Acts.
However, like the 1977 Act, the Manipur Legislature (Removal of Disqualifications)
Act, 1972 does not mention office of Govt. Pleader and Public Prosecutor as exempt from disqualification though like the 1977 Act, it mentions that an office which is not a whole time office remunerated either by salary or by fees shall be exempt from disqualification.
Election Pet. No. 1 of 2014 Page 41 of 43
30D. Whether an office is an office of profit under the Govt. inviting disqualification under Article 191 (1) (a) is required to be examined in a practical manner having the flavour of reality. A balanced approach is required to be taken keeping in mind the object behind Article 191 (1) (a). In Biharilal Dobray
(Supra), the Apex Court examined the object of enacting Article 191 (1) (a) of the
Constitution of India. According to the Apex Court, the object 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 Govt. has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of the Govt. Article 191 (1) (a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the
Legislature. This view has been reiterated in Ashok Kumar Bhattacharyya
(Supra) wherein, it has been held that a person who is elected to a Legislature or
Parliament should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. In Satrucharla Chandrasekhar Raju
(Supra), while reiterating the above views, the Apex Court explained that if such an elected person is holding an office which brings him remuneration and Govt. has a voice in his functions in that office, there is every likelihood of such person succumbing to the wishes of the Govt. Article 191 (1) (a) intends to eliminate the possibility of such a conflict between duty and interest so that the purity of
Legislature is unaffected.
30E. In the above back ground and after a dispassionate examination of the 1977 Act, it is clear that the disqualification of the petitioner by virtue of
Election Pet. No. 1 of 2014 Page 42 of 43 holding of an office of profit under the Govt. of India as Central Govt. Counsel is not removed or exempted by the 1977 Act. This issue is accordingly answered in the negative and against the petitioner.
31. Issue Nos. 9, 10, 11 & 12 being inter-related and consequential to the determination of issue Nos. 7 & 8 are taken up together. Issue Nos. 9, 10, 11
& 12 are as follows: -
9) Whether the order of the Returning Officer of No.39 Mebo (ST) Legislative Assembly Constituency in rejecting the nomination of election petitioner and in declaring the respondent as elected is legal and valid?
10) Whether the election of respondent is liable to be declared void under Section 100(1)( c ) of the Representation of People Act, 1951?
11) To what relief(s) are the parties herein entitled to?
12) Who is entitled to the costs of the instant proceeding?
From the discussions made above, it is quite clear that there is no infirmity in the order of the Returning Officer rejecting the nomination of the petitioner and declaring the respondent as elected. In the light of the above, it cannot be said that rejection of nomination of the petitioner by the Returning
Officer is improper within the meaning of Section 100 (1) (c) of the 1951 Act.
Since the Returning Officer rightly rejected the nomination of the petitioner, question of declaring the election of respondent as void does not arise. Therefore, petitioner is not entitled to any relief. Accordingly, this election petition fails and is dismissed with costs.
Judge BIPLAB
Election Pet. No. 1 of 2014 Page 43 of 43