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ASHOK KUMAR BHATIACHARYYA

v.

AJOY BISWAS AND ORS.

Nov1mber 15, 1984

(S. MURTAZA FAZAL ALI, A. VARADARAJAN AND

SABYASACm MUKHARJI JJ.]

Constitution •I Inaia 1950, Artie/es 102(2) (a) and 191(/) (a).

'Office of profit under government'-Who is holder of such office-A holder

of the office of profit under an1 authority or local authority subject to the Control

· I of the "State or Central Government-Whether disqualified from becoming a

Member

of

Parliament.

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Word• and Phrases 'Office of profit under the government of India or the

Government

of

any State-Mellllint •/-Articles 58, 102(1) (a) and 191(1) (a)

Constitution of India, 1950.

Respondent No. 1 was employed in the Agartala Municipality and held

the post of an Assistant Accountant. The Commissioners of this Municipality

were superseded by an order or the State Government under Section 553 or the

Bengal Municipal Act, 1932 as extended to the State of Tripura in 1975. Respon·

dent No, 1 who was under suspension at the time of superscssion was dismissed

from service in the disciplinary proceedings against him by the Administrator of

the Municipality on 20th December, 1975. The State Government confirmed the

order of dismissal. Respondent No.-1 was however reinstated to the post

of Accountant-in·chargc on 6th May,

1978

With immediate effect by the

Administrator.

Respondent No.

I contested the mid.term Lok Sabha election held in 1980

from the West Tripura Parliamentary Constituency, and was declared elected on

8th January, 1980.

The appellant who was a voter filed an Election Petition in the High

Court contending that respondent No. 1 was disqualified for being elected as a J

member of the House of People aa he held an office of profit under the Govern· -

ment of Tripura within the meaning of Article 102(1){a) of the Constitution. The

Hiah Court dismissed the petition holding that Respondent No. I did not hold

an office of profit under the aovernment of Tripura.

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A. K. BHAlTACHARYYA V. AJOY BTSWAS SI

In the appeal to this Court on the question : whether respondent No. 1 A

hdd •n office of profit under sub-clause (a) of Clause (I) or Anicle 102 of the

Constitution.

Dismissing the Appeal.

HELD:

1.

\Vhether in a particular case a person holds an office or profit

under the government

or not must

depend upon the facts and circumstances of

the relevant provisions. To make in all cases employees of local authorities

subject to the control of Government, holders of office or profit under the

Government wouid be to obliterate the specific differentiation made under

Atticle 58(2) of the Constitution and to extend disqualification under Article t02

(l)(a) to an extent not warranted by the language of the Article. (62 E-F]

In the instant case, having regard to the provisions of_ the Bengal Munici­

pal Act, 1932 as extended to Tripura, the Government does not control officers

like respondent No. 1 and he continues to ~e an employee of the Municipality

though bis appointment

is subject to the confirmation by the Government. He

does

not cease to be an employee of the Municipality. Local

authority as such

or any other authority does not cease to become independent entity separate

from Government. [62 D-C]

2. Respondent

No. 1 was not at the relevant time a holder of office or

profit under the Government.

Some amount of control is reco&nised even in a

local authority which is taken account of under Article SS. The High Court

rigbly held that respondent No. 1 did not hold office or profit under_ the Govern·

ment of Tripura on the date of filing of the nomination on an analysis or

relevant provisfons of the Act. [ 62 0-H)

3. The object of enacting provisions like Article 102(1)(a) and Article

191(1)(a)

is 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

government pressure.

·The term

0

office of profit under the Government" used

in clause

(a} is an expression of wider import than a post held under the

Govern­

ment which is dealt with in Part XIV of the Constitution. The measure or

control by the Government over a local authority 1.hould be judged in order to

eliminate the possibility

of a conflict between duty and interest and to maintain

the purity

of the elected bodies. (61

G-HI,

.

4. It will be clear from reference to ItemrS in List Il of VII Schedule of

the Constitution that Municipality are separately mentioned in contra~distinction

of the State government. Therefore, a local authority as such is separate and

distinct. This becomes further clear from Article S8(2) of the Constitution.

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, [57DJ G

S. A person who iS holding an office of profit either under the Govern ...

ment of India or the Government of the State or any other local or other

authority subject to the control of the said Governments is disqualified from

becoming a President but if a person bolds an office of profit under the Govero ...

meat of India or the Government of any State, he only is disqualified from

bcin~ a member or, Parliament. A holder of the of!ico of profit under an1 ff

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authority or local authority subject to the control of the State or Centt-1. .

Government is as such not disqualified from becoming a Member of Partian)u,l: · ·

en c:-Ql

D. R, Gurushantappa v. Abdul Khuddus Anwar & Ors. (1969] 3 S.C.R, 22S,

G11rugobinda Basu v. Sankari Prasad Ghosal & Ors. [1964) 4 S.C.R. 311, Maulona

Abdul Shakur v. Rikhab Chand, (1958) S.C.R. 387, Surya !Cant Roy v. Immamul

'Hai KhOn, (1975] 3 S.C.R., 909; and Mad!mker G.E, Pankakar v. Jaswant Choir

bi/da~ Rajani & Ors, (1975) 3 S.C.R, p. 832 at page 851, referred to.

Bihari/a/ Dobray v, Roshan Lal Dobray, (1984) I S.C.C, 551, explained.

CIVIL APPELLATB JUl\1SDICTION: Civil Appeal No. 1724 of 1982,

From the Judgment and Order dated the 15th March, 1982 of'

the Gauhati High Court (Agartala Bench) in E.P. No. 2 of 1980 .

. ,

·'

· G.L. Sanghi, SK, Nandy and S, Parekh, for the ~ppellant,

· · R.K. Ga;g and S.C, Blrla for the Respondent .

..

D . The Judgment of the Court was delivered by

. SABYASACHI Mu~HArui. J, This appeal arises out of the judg­

ment and an order of the Gauhati High Court in an election petition,

The petitioner appellant was a voter in the West Tripura Parliamentary

Constituency from No, 7 Ramnagar Assembly Segment, He contested

'E the mid-term Lok

Sabha election held in 1980 from the West Tripura

Padiamentary,Constituency as a nominee

of Congress (I},

There were

six candidates including the petitioner contesting the said election,

The respondent

No. 1 was a

C.P.I.(M} candidate, 8th December,

1979 was the date of filing of the nominations, Nominations were

scrutinised on 11th December, · 1979 and the withdrawal ·date was

F 13th December, 1979. On 6th January, 1980 the polling was held

and the result

of the election was declared on 8th January,

1980. The

main. contest

was between the petitioner/appellant and the respondent

No, I, Ajoy Biswas

.. The respondent No, 1 had secured 1,98,335

votes as against the appellant who had secured 1,42,990 votes. The

respondent No. 1 was declared elected. ·

Ji

.. The only point on which the election petition by the appellant/

petitioner was pressed before the High Court arid the only point

urged before

us in this appeal, is whether

'the respondent No. 1 was

disqualified for. being elected as a member

of the House of

People as

he held

an office of profit under the Government ofTripura within

the meaning

of Article 102(l}(a) of the Constitution,

On the relevant

date, respondent No. 1 wa.s the' Accountant-in-charge of the Agartala

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A. K. BHATTACHARYYA v. AJOY BISWAS (Mukharji, i.) 53

Municipality. Therefore, the question involved in this appeal, is,

whether an Accountant-in-charge of the Agartala Municipality holds

an office of profit within the meaning of Article

102(1)(a) of the

Constitution.

In order to determine this question, it will be necessary

to refer to certain facts.

Respondent No. 1

was employed in Agartala Municipality and

held the post carrying the scale of pay of Rs.

80-180 per month.

The Commissioners of the Agartala Municipality were superseded by

an order of the State Government under Section 553 of the Bengal

Municipal Act,

1932 as extended to the

State of Tripura in 1975. The

effect of Section 554 of the s~id Act is that during the period of

supersession the powers and duties of the Commissioners and Chair·

man shall be exercised and performed by the Administrator appointed

by the State Government under that section. The respondent No. 1

who

was under suspension at the time of supersession was dismissed

from service

in the disciplinary proceedings against him

by the Ad·

ministrator of the Agartala Municipality on 20th December, 1975.

The State Government thereafter had confirmed the order of dis­

missal. When the Left Front Government came in power in the

State of Tripura, the respondent No. 1 was reinstated to the post of

Accountant-in-charge of Agartala Municipality on 6th May,

1978

with immediate effect by the Administrator.

So at the relevant time

he was an Assistant Accountant and was Accountant-in-charge under

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the Agartala Municipality drawing a monthly salary of Rs.

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It is necessary to briefly note some of the relevant provisions of

the said Act

in view of the contentions urged in this appeal. Proviso

(ii) to

Section 66(2) of the said Municipal Act provides that no

appointment carrying a monthly salary of more than two hundred

rupees or a salary rising by periodical increments to more than two

hundred rupees shall

be created without the sanction of the

State

Government, and every nomination to, and dismissal from, any such

nomination shall

be subject to confirmation by the

State Government.

It appears

that the Deputy Secretary to. the

Govsrnment of Tripura

by his letter dated 6th May

1978 had conveyed to the Administrator,

Agartala Municipality, decision

of the Government for cancellation

of the order of confirmation of the dismissal communicated to him

on 19th December,

1975. As a result, the cancellation order ceased

to

be effective and respondent No.

I was reinstated and it was further

provided that the period between the date of dismissal and the date

of reinstatement would be treated as period spent on duty for all

purposes.

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S4 StlPREME COURT REPORTS {198Sj i S.C.R.

The Act further provides that there shall be established for each

Municipality a body

of Commissioners consisting of such members

or

Comll\issioners not being more than twenty nor less than six as

the State Government may specify in the notification constituting the

municipality. Such Commissioners shall be a body corporate by the

name

of the Municipal Commissioners of the place by reference to

which the Municipality is known,

having, perpetual succession and

a common seal, and by

that name shall sue and be sued. The

Mnnicipality consists

of the elected Commissioners. A Chairman is

elected by the Commissioners from amongst the Commissioners

within

30 days from the date of publication of the result of the

general election

of the Commissioners in the Municipality failing

which the

State Government has the power to appoint one of the

Commissioners

to be Chairman. A Vice-Chairman is also to be

elected from amongst themselves. The Chairman

is

empo.,,.ered "ithin

certain !imitations to transact the business connected with the Act

and exercise all the powers vested in the Commissioners under the

Act, except as otherwise provided. The Commissioners are to hold

office for four years commencing from the date

of the first meeting of

the newly formed body of Commissioners after a general election of

Commissioners in the Municipality at which a quornm is present. An

elected Chairman or Vice-Chairman may at any time be removed

from his office by a resolution

of the Commissioners as laid down in

section

61(2) or (3) of the said Act. The Act also empowered the

State Government to remove an elected Commissioner on certain

grounds set

out in section 62 of the said Act.

Jn view of the contentions raised in this appeal, it would be

relevant

to refer and set out section 66 of the said Act which is as

follows : "66. APPOINTMENT OF SUBORDINATE OFFICERS,-

(I) The Commissioners at a meeting may, subject to

the provisions

of this Act and the rules made thereunder

from time to time, determine what officers and what servants

of the Commissioners are necessary for the municipality and

may

fix the salaries and allowances to be paid and granted

to such officers and servants.

(2)

Subject to the scale of establishment approved by

the Commissioners under sub-section(!), the Chairman shall

have power

to appoint such persons as

he may think fit;)nd

A. K. BHATTACHARYYA v. AJOY BISWAS (Mukharji, J.) SS

from time to time to remove such persons and appoint

others in their places :

Provided

as follows :

(i) a person shall not be appointed to an office carrying a

monthly salary of more than

fifty rupees or a salary

rising

by periodical increments to more than fifty

rupees without the sanction of the

Commissioners at a

meeting, and an

officer or servant whose post carries a

monthly salary of more than twenty rupees shall not be

dismissed

\'iithout such sanction ;

(ii) no appointment carrying a monthly salary of more than

two hundred rupees or a salary rising

by periodical

increments to more than two hundred rupees shall be

created without the sanction of the

State Government,

and every nomination to, and dismissal from, any such

appointment shall be subject to confirmation

by the

State Government ;

(iii) no person holding an

office carrying a monthly salary

of one hundred rupees or more shall

be dismissed unless

such dismissal

is sanctioned by a resolution of the

Commissioners passed at a special meeting called for

the purpose and, except with the consent of the State

Government unless such resolution has been supported

by the votes of not less than two-thirds of the total

number

of

Commissioners holding office for the time

being.

(3) Notwithstanding anything contained in sub-section

(2), the creation of and nomination to or suspension, removal ·

or dismissal from, the post of Executive

Officer shall; irres-·

pective of the salary assigned to the post, be subject to

confirmation

by the

State Government."

The Act further provides that besides the officers and the

servants mentioned above, all or any

of the officers mentioned in

section

67 may be appointed by the

Commissioners. In certain

circumstances, the Act provides, that the State Government may have

an Executive Officer for such periog as may be specified in the Notifi­

cation. Section 93 provides that as soon as may be after the first

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day of April in every year not later than such date as may be fixed

by the State Government, the Commissioners shall submit to the

State Government a report on the administration of the Municipality

during the preceding year in such form and with such details as the

State Government may direct, and a copy of the report shall also be

submitted by the Commissioners to the District Magistrate. The

Commissioners

of a Municipality may acquire and hold property

within or without the limits of the Municipality, and all property

within the Municipality of the nature specified in section

95, other

than property maintained

by the Central Government or any other

Local Authority, are vested in and belong to the Commissioners, and

are under their direct management and control.

By Section

102 of

the said Act, the Commissioners are empowered to purchase, take on

lease or otherwise acquire any land for the purposes

of the said Act,

and may

se!J, lease, exchange or otherwise dispose of any land not

required for such purposes. They are also empowered to enter into

and perform any contract necessary for the purpose

of the Act. A

fund called the Municipal fund

is constituted for each Municipality

and all sums received by or on behalf of the Commissioners under the

said Act or otherwise, and the balance,

if any, standing at the credit

of the Municipal fund of the Municipality at the commencement of

the said Act, are credited to the said fund. The purposes to which

the Municipal Fund

is applicable are enumerated in section

108 of

the Act. If any work is estimated to cost above ten thousand rupees,

the State Government may require the plans and estimates

of such

works to be submitted for its approval, or for the approval of any

servant

of the Government before such work, in such form as it

might prescribe.

There are provisions for imposing taxes, tolls and

foes under

section

123 of the said Act and to make assessment of the rate on the

annual value

of the holdings under section 128 of the said Act.

Powers

are conferred to impose taxes. There are other provisions for raising

fund for the Municipality by

way of charging fee for registration etc.

The Act empowers raising of funds for the Municipality for carrying

out the purposes of the said Act.

In this connection it may be relevant to refer to clause

(31) of

section 3

of the General Clauses Act, 1897, and in view of the

pro­

.. visions of the Act it was held b¥ the High Court that Agartala

Mnnic1pality

is a 'Local authority' within the meaning of that

expres­

sion as defined in clause (31) of section 3 of the General Clauses Act,

1897. We are of the opinion that the High Coutt was right.

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A. k. illlATtACHARYYA V. AJOY BISWAS (Mukharji, J.) S1

In view of the facts narrated before, it was found by the High

Court and

in our opinion rightly that the respondent No. l was at the

relevant time holding an

office of profit under a local municipality.

Section 66 which we have set out hereinbefore indicates that the

appointment of persons to the category of post held

by respondent

No. 1

was to be made by the Commissioners of Municipality, but the

appointment

was subject to the confirmation by the

State Govern­

ment. The High Court held and we are of the opinion rightly that

the respondent No. I

was an

ofllcer of the Commissioners. Section 63

of the said Act provides that such ofllcers and servants of the Com­

missioners shall be subordinates to the Executive Officer appointed

by the Commissioners. The respondent No. 1 was appointed by Com­

missioners, though sanction of the Government was obtained. He

could

be removed by the Commissioners again subject to the sanction

of the Government. He was paid out of the municipal funds which

the Municipality

was and is competent to raise. From the analysis

of the provisions of the Act it is clear that though the Government

exercises certain amount of control and supervision, the respondent

No. 1 was not

an employee of the Government nor was he required

to perform governmental functions for the Government.

Municipalities are separately mentioned

in contradistinction of

the State Government

as it will be clear from reference to Item 5 in

List II of the VII Schedule of the Constitution. Therefore, a local

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authority as such is a separate and distinct entity. This will become E

further clear from Article

58(2) of the Constitution.

The question involved in this appeal

is whether respondent No.

1 held an

office of profit under sub-clause (a) of Clause

(I) of Article

102 of the Constitution. Sub-clause (a) of Article 102 (I) provides as

follows:-

"Art. 102-Disqualification for membership.-

(I) A person shall

be disqualified for being chosen as,

and for being, a member of either House of

Parliament-

( a) If he

holds any office of profit under the Government

of India or the Government of any State, other than an

office declared by Parliament by law not to disqualify

its

holder;"

Jn contra-distinction, clause (2) of Article 58 which mentions

disqualifications for election as President provides as follows

:-

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SS SUPREME COURT REPORTS [1985] 2 s.c.R.

"58 Disqualifications for election as President:

(1)

(2) A person shall not be eligible for election as Presi­

dent if he holds any office of profit under the

Government ofindia or the Government of any

State or under any local or other authority subject

to the control

of any of the said

Governments."

In fact a person who is holding an office of profit either under

the Government of India or the Government

of any

State or under

any local or other authority subject to the control

of any of the said

Governments

is disqualified from becoming the

President but if a

person holds an

office of profit under the Government of India or the

Government of any

State he only is disqualified from being a mem·

ber of Parliman!. A holder of the office of profit under any local or

other authority subject to the control

of the

State or Central Govern­

ment is as snch not disqualified from becoming a Member of

Parliament. Keeping in view these provisions, it is necessary to

consider the question whether the respondent No. 1

was holding an

office of profit under the

State Government.

In the case of

D. R. Gurushantappa v. Abdul Khuddus Anwar

&

Ors., w this Court had to consider whether a candidate employed in

a company owned

by the Government

was disqualified under Article

102(1) (a) and 191 (!)(a) of the Constitution and in this connection

considered the relevant provisions

of Articles

102(1) (a) and 191(1)

(a) of the Constitution. After discussing the case of Gurugobinda

Basu

v. Sankari Prasad Ghosal &

Ors."

1

and the decision in the case

of Maulana Abdul Shakur v. Rikhab Chand,"

1

this Court come to the

conclusion that the

mere fact that the Government had control over

the Managing Director and other Directors

as well as the power of

issuing directions relating to the working

of the company could not

lead to the inference that

every employee of the company was under

the control

of the Government.

The true principle behind this provision in Article

102 (I) (a)

is that there should not be any conflict between the duties and the

interest

of an elected member. Government controls

varioui activities

(I) [1969) 3 S.C.R. 425

(2) [1964) 4 S.C.R. 311

)3) (1958) 3 S.C.R. 387 .

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A. I::. llHAtTACHARYYA v. AJOY BISWAS (Mukherji, J.) )9

in various spheres and in various measures. But to judge whether

employees of any authority or local authorities under the control

of

Government become Government employees or not or holders of

office of profit under the Government the measure and nature of

control exercised by the Government over the employee must be

judged in the light of the facts and circumstances in each case so as to

avoid any possible conflict between his personal interests and duties

and of the Government. This position

was further examined in the

case

of

Surya Kant Royv.Imamul Hai Khan.W There under Bihar and

Orissa Mining Settlement Act, 1920, a Board called the Mines Board

of Health may

be established to provide for the control and sanita­

tion of any area within

which the persons employed in a mine reside

and for the prevention therein of the out-break

an~ spread of epide­

mic diseases. After analysing the facts of that case, this Court held

that the mere fact that the candidate

was appointed

Chairman of the

Board by State Government would not make him a person holding

an

office of profit under the State Government. There the Supreme Court referred to the decision in the case of Shivamurthy Swami v.

Agadi Sanganna Andanappaa.c

21

This Court in Surya Kant Roy v.

fmamul Hai Khan (supra) observed at page 911 as follows:-

"Here again it is to be pointed out that the Government

does not pay the remuneration nor does the holder perfrom

his fuctions for the Government. To hold otherwise would

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be to hold that local bodies like Municipal

Councils per- E

form their functions for the Government though in one sense

the functions they perform are governmental functions."

In the case of D.R. Gurushantappa v. Abdul Khuddus Anwar

& Ors. (supra) mentioned hereinbefore, at page 434 this Court

observed as follows :-

"Thus, in the case of election as President or Vice­

Pretident, the disqualification arises even if the candidate is

holding an office of profit under a local or any other autho­

rity under the control of the Central Government or the

State Government, whereas, in the case

of a candidate for

election as a Member

of any of the Legislatures, no such

disqualification is laid down

by the Constitution if the office

of profit is held under a local or any other authority under

(!) [1975) 3 S.C.R.

909

(2) [1971) 3 s.c.c. 870

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60 sbt>RElliil coi.JRt RilPoRrs [1985] i s.c.11..

the control of the Governments and not directly under any

of the Governments. This clearly indicates that in the case of

~ligibility for election as a member of a Legislature, the

holding of an

office of profit under a corporate body like a

local authority

does not bring about disqualification even if

that local authority be under the control of the Government.

The

mere control of the Government over the authority

having the power to

appoirit, dismiss, or control the work­

ing of the officer employed by such authority does not

disqualify that

officer from being candidate for election as

a member of the Legislature in the manner in which such

disqualification

comes into existence for being elected as the

President or the Vice-President. The Company, in the

present case, no doubt did come under the control

of the

Government and respondent No.

1 was holding an office of

profit under the Company; but, in view of the distinction

indicated above, it

is clear that the disqualification laid down

under Art.

191

(I) (a) of the Constitution was not intended

to apply to the holder of such an

office of

profit."

This view was again reiterated by this Court in the case of

Madhuker G.E. Panakakar v. Jaswant Chabbildas Rajani & Ors.'

11

where this Court observed as follows:-

"The core question that comes to the fore from the

survey

of the panorma of case law is as to when we can

designate a person gainfully engaged in some work having

a nexus with Government

as the holder of an

'office of

profit' under Government in the setting of disqualification

for candidature for municipal or like elections. The holding

of an office denotes au office and connotes its holder and

this duality implies the existence of the

office as an

indepen­

dent continuity and an incumbent there of for the nonce.

Certain aspects appear to

be elementary. For holding an

office of profit under Government one need not be in the

· service of Government and there need be no relationship of

master and servant

(Gurugobinda supra). Similarly, we

have to look at the substance, not the form. Thirdly, all the

several factors

str;115ed by this Court as determinative of the

holding of an 'office' under Government,· need not be con-

ft (1) (1976] 3 S,C.R. l32 at 8S1

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A. II:. BHATTACHARYYA v. AJOY BISWAS (Mukhar}i, J.) "

jointly present, the critical circumstances, not the total A

factors, prove decisive. A practical

view not pedantic basket

of

tests, should guide in arriving at a sensible conclusion."

In a recent decision of this Court in the case of Bihari/al

Dobray v. Roshan Lal Dobray,1 this Court was concerned with the

question whether an

office profit

~as held directly under the Govern­

ment in the facts of that case. There was an assistant teacher of a

Basic Primary School run by U.P. Board of Basic Education under

U.P. Basic Education Act, and it was held that it was an office of

profit under the State Government within the meaning of Article 191

(!)(a) of the Constitution and therefore he was disqualified from

election. There the respondent

was originally employed as an assistant

teacher

in a Basic

Primary School which was being run and managed

by the Zila Parishad. On coming into force of the U.P. Basic

Education Act,

1972, he became an employee of the Board of Basic

Education under Section 9

(I) of the Act. While holding the post of

an assistant teacher as such he filed his nomination for his election to

the State Legislative Assembly. But the Returing

Officer rejected his

nomination paper on the ground that he

was holding an office of

profit under the State Government and hence he was disqualified

under Article

191

(I) (a) for being elected as an MLA. Article 191 (!)

(a) is in terms pari materia with Article 102 (I) (a) of the Constitution

regarding the election to the State Assembly. The respondent therein

filed an election petition and the High

Court allowed the same

declaring that the election of the appellant

by rejecting the

nomina­

tion of the respondent was void. The appellant therefore preferred the

appeal to this Court. This Court allowed the appeal and it was held

that the respondent

was holding an office of profit under the State

Government.

As we have mentioned before, the object of enacting provisions

like Article

102 (I) (a) and Article 191(1) (a) is that a person who is

elected to Parliament or a Legislature should be free to carry on his

duties fearlessly without being subjected to any kind of governmental

pressure. The term "office of profit under the Government" used in

clause (a)

of Article

102(1) is an expression of wider import thl!n a

post in connection with the union or of any State which is dealt

with in part

XIV of the Constitution. The measure of control by the

Government over a local authority should

be judged in order to

elimin;1te the possibility of conflict between duty and interest and to

(I) [1984] I S.C.C. 155

B

c

D

E

F

G

A

B

c

D

E

F

62 SUPREMll COURT REPORTS (1985) 2 S.C.R.

maintain the purity of the elected bodies. After reviewing various

cases, and the provisions of the various sections

of the

U.P. Basic

Education Act,

l972 especially in view of section 13 of the Act, this

Court held

in the last mentioned case that the measure of control was

such

that U.P. Education Board was an authority which v.as not

truly independent

of the Government and every employee of the

Board

was in fact holding an office of profit under the

State Govern·

ment. The statement of Objects and Reasons of the U.P. Basic

Education Act, 1972 and sections 4, 6, 7, 13 and 19 all of which

have been

set out in extenso in that decision make that conclusion

irresistible.

For determination

of the question whether a person holds an

office of profit under the Government each case must be measured

and judged in the light

of the relevant provisions of the Act. Having

regard

to the provisions of the Bengal Municipal Act, 1932 as

exten·

ded to Tripura, the provisions of which have been set out herein­

before, we are of the opinion that the State Government does not

exercise any control over

officers like respondent No. 1 and that he

continues to be an employee

of the Muncipality though his

appointment

is subject to the confirmation by the Government.

Ju1t

by reason of this condition an employee of a local authority does

not cease to be an employee of the Muncipality. Local authority as

such or any other authority does not cease to become independent

entity separate from Government. Whether in a particular case it

is so

or not mnst depend upon the facts and circumstances of the relevant

provisions. To make in

all cases employees of local authorities subject

to the control of Government and to treat them

as holders of office of

profit under the Government would be to obliterate the specific

differentiation made under Article

58(2) and Article

102 (1) (a) of the

Constitution and to extend the disquaiification under Article

58 (2)

to one under Article

102 (I) (a) to an extent not warranted by the

language

of the Article.

Having noted the relevant provisions,

we are of the

opinion that

the respondent"No. 1 was not at the relevant time a holder of office

of profit under the Government. Some amount of control is recognised

oven in a local authority which is taken account of under Article 58.

The High Court held that re1pondent No. I did not hold office of

profit under the Government

of Tripura on the date of filing of the

nomination on an analysis of relevant provision$

of the Act which

we

•

•

)I

•

A. I:. BHATTACHAllYA '· AJOY BISWAS (Mukharji, J.) 63

have set out herein before. We arc in aggrecment with this view of the

Hi&h Court.

1 In the premises, respondent No. I was not disqualified from

filing his nomination. The appeal, therefore, fails and is accordingly

--• dismissed with co1ts.

N.V.K • Appia/ dismissed

-l

. ...

A

B