Full Judgment Text
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PETITIONER:
MADHUKER G. E. PANKAKAR
Vs.
RESPONDENT:
JASWANT CHOBBILDAS RAJANI & ORS.
DATE OF JUDGMENT23/03/1976
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
UNTWALIA, N.L.
CITATION:
1976 AIR 2283 1976 SCR (3) 832
1977 SCC (1) 70
CITATOR INFO :
R 1985 SC 211 (18)
R 1992 SC1959 (13,22)
ACT:
Maharashtra Municipalities Act, 1965-S. 16(1)(g)-
Holding office of profit-Meaning of-Private medical
practitioner on the panel of doctors under Employees State
Insurance Scheme-If holding office of profit.
HEADNOTE:
To provide medical facilities to the workers in
factories a statutory body called the Employees State
Insurance Corporation has been established by an Act of
Parliament. Under the Act financial resources of the
Corporation come from contributions and other monies
specified in the Act and an Employees State Insurance Fund
had been created. The State Government, to which an
obligation to provide medical treatment for insured persons
had been entrusted, may employ private medical practitioners
who run clinics as doctors under the scheme. For inclusion
of a name in the medical list of insurance medical
practitioners a doctor has to apply to the Administrative
Medical Officer. His application is considered by an
allocation committee which recommends his name to the
Director, Employees State Insurance Scheme and ultimately on
approval by the Surgeon General, his name is included in the
medical list. The doctor whose name is included in the
medical list has to abide by the duties and conditions
prescribed, is under the control of the Medical Services
Committee and may even be removed or resign from the panel.
The appellant, who was a private medical practitioner
and whose name was included in the panel of doctors
maintained by the Corporation and the respondent, were
contestants in an election for the presidentship of a
municipal council. At the time of scrutiny of the nomination
papers no objection was raised to the appellant’s nomination
and in the election that ensued the appellant was declared
elected. The respondent challenged the election on the
ground that the appellant was disqualified under s. 16(1)
(g) of the Maharashtra Municipalities Act, 1965 which debars
a person who holds an office of profit under Government from
becoming a councillor, because on the date of nomination he
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was holding an office of profit under the Government by
reason of his being a panel doctor under the Employees State
Insurance Scheme. Between the date of nomination and the
date of election, however, the appellant had resigned from
the scheme. The election tribunal allowed the respondent’s
petition and declared the appellants’ election void. At the
same time the respondent was declared as the President.
On appeal it was contended that a doctor on the medical
list prepared by the Surgeon General of the State does not
hold an office of profit within the meaning of s. 16(1)(g)
of the Act.
Allowing the appeal
^
HELD: (1) The legislative end for disqualifying holders
of office of profit under Government from seeking elective
offices is to avoid the conflict between duty and interest,
to cut out the misuse of official position, to advance
private benefit and to avert the likelihood of influencing
Government to promote personal advantage. At the same time
the Constitution mandates the State to undertake multiform
public welfare and socio-economic activities involving
technical persons, welfare workers and lay people on a
massive scale so that participatory government may prove a
progressive reality. Therefore experts may have to be
invited into local bodies, legislatures and the like
political and administrative organs based on elections. [842
E-G]
(2),a) The appellant suffered no disqualification on
the score of holding an office of profit under Government.
The legal provisions under the Act and the rules make of an
insurance medical practitioner a category different from one
who runs a private clinic and enters into contractual terms
for treatment of patients sent by Government, nor is he a
full fledged government servant.
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He is a tertium quid. [842-A]
(b) The doctor under the scheme has obligations of a
statutory savour. He is appointed on his application which
is processed by the appropriate body, removed if found
wanting obliged to discharge duties, make some reports and
subject himself to certain discipline while on the panel.
[844 F-G]
(3) (a) 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. One has
to look at the substance, not the form. [851 D-E]
Gurugobinda [1964] 4 SCR 311 referred to.
(b) In the present case the capitation fee is the
remuneration the doctor is paid and this came not from
Government direct but from a complex of sources. The power
to appoint, direct and remove, to regulate and discipline,
may be good indicia but not decisive. Government had partly
direct and partly indirect control but the conclusion is not
inevitable because the doctor is put in the list not by
Government directly but through a prescribed process where
the Surgeon General has a presiding place. How proximate or
remote is the subjection of the doctor to the control of the
Government to bring him under Government is the true issue.
The appellant was not a servant of Government, but a private
practitioner, was not appointed directly by Government but
by an officer of Government on the recommendation of a
Committee, was paid not necessarily out of Government
revenue and the control over him in the scheme was vested
not in Government but in an administrative medical officer
and director whose position is not qua Government servant
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but creatures of statutory rules. The ultimate power to
remove him did lie in Government even as he enjoyed the
power to withdraw from the panel. The mode of medical
treatment was beyond Government’s control and the clinic was
a private one. The insurance medical practitioner is not a
free-lancer but subject to duties obligations, control and
rates of remuneration under the overall supervision and
powers of Government. [851 F-G; 852 A-C]
Deorao v. Keshav, AIR 1958 Bom. 314 p. 318, para 12 and
Manipopal v. State AIR 1970 Cal. 1, 5 para 20 referred to.
(c) The appellant is not functioning under the
Government in the plenary sense implied in electoral
disqualification. The ban on candidature must have a
substantial link with the end viz: the possible misuse of
position as Insurance Medical Practitioner in doing his
duties as Municipal President. [852 D]
(4) (a) The first step is to enquire whether a
permanent, substantive position which had an existence
independent from the person who filled it can be postulated
in the case of insurance medical practitioner or is the post
an ephemeral, ad hoc, provisional incumbency created, not
independently but as a List or Panel distinguished from a
thing that survives. The distinction, though delicate, is
real. An office of insurance medical practitioner can be
conjured up if it exists even where no doctor sits in the
saddle and has duties attached to it qua office. The post of
insurance medical practitioner cannot be equated with the
post of a peon or a security gunman who too has duties to
perform. Viewed from this point Kanta and Mahadeo are
reconcilable in the former an ad hoc Assistant Government
Pleader with duties and remuneration was held to fall
outside office of profit in the latter a permanent panel of
lawyers maintained by the Railway Administration with
special duties of a lasting nature constituted an office of
profit. [852 G-H; 853 A]
(b) Had there been a fixed panel of doctors with
special duties and discipline, a different complexion could
be discerned. No rigid number of insurance medical
practitioners is required by the rules or otherwise. If an
insurance medical practitioner withdraws there was no office
sticking out even thereafter called office of Insurance
Medical Practitioner. The critical test of independent
existence of the position irrespective of the occupant is
just not satisfied. Likewise it is not possible to conclude
that these doctors though subject to responsibilities,
eligible to remuneration and liable to removal cannot
squarely fall under the expression holding under Government.
Enveloped though the
834
insurance medical officer is by governmental influence and
working within the official orbit it is not possible to hold
that there is an office of profit held by him and that he is
under Government. [853 C-E]
[Obiter: On a close study of ss. 21 and 44 and in the
light of the ruling of this court in 1953 SCR 1154 the
election petition under s. 21 is all inclusive and not
under-inclusive, even if the invalidation of the election is
on the score of the disqualification under s. 16 it is
appropriate to raise that point under s. 21 which is
comprehensive. All grounds on the strength of which an
election can be demolished can be raised in a proceeding
under s. 21. The language of the provision is wide enough.
It is not correct to say that s. 44 cuts back on the width
of the specific section devoted to calling in question an
election of a councillor (including the President). [854 D-
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F]
If the appellant’s election were invalid there was only
a single survivor left in the field. Naturally in any
constituency where there was only one valid nomination that
nominee gets elected for want of a contest.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1270,
1315-1316 of 1975.
Appeals by Special Leave from the Judgment and Order
dated the 26-8-75 of the Joint Judge at Thana in Election
Petitions Nos. 3 and 4 of 1974.
R. P. Bhat (In CAs. 1315-1316/75, K. R. Chaudhury, K.
Rajendra Chaudhury and Mrs. Veena Khanna for the Appellants
in CAs. 1315-1316/75 and in C.A. 1270/75.
D.V. Patel (In CAs. 1315-16/75, V. N. Ganpule for
respondent No. 1 in all the appeals.
D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for
respondent No. 2 in CAs. 1315-1316/75.
M. N. Shroff for respondents 4 and 5 in CAs. 1315-
1316/75.
The Judgment of the Court was delivered by
KRISHNA IYER, J. The first two civil appeals based on
admitted, abbreviated facts, revolving round the election of
the President of the Basscin Council (and the third raises
virtually the same point but refers to the bhibendi
Municipal Council) under the Maharashtra Municipalities Act,
1965 (the Municipal Act, for short) has led to long and
intricate argument, thanks partly to the haziness and
incongruity of the statutory provisions, and the hard job of
harmonizing and harmonizing and illumining which, by
interpretative effort, has drained us of our faith in the
blessings of simplicity, certainty and consistency in Indian
codified law. We may pardonably, but hopefully, permit
ourselves by way of constructive criticism of perfunctory
codification-a proliferating source of litigation-that it
was once thought,
"With a Code, all our troubles and cares would
magically vanish. The law, codified, would become
stable, predictable and certain. The rules of law,
purified, would be accessible to, and understood by,
not only the legal establishment of bench and bar but
the people as well."
835
Professor Grent E. Gilmore comments:
"The law, codified, has proved to be quite as
unstable, unpredictable, and uncertain-quite as
mulishly unruly-as the common law, uncodified, had ever
been. The rules of law, purified, have remained the
exclusive preserve of the lawyers; the people are still
very much in our toils and clutches as they ever were-
if not more so."
(Quoted by H. R. Hahlo in Codifying the Common
Law: Protracted Gestation-Mod. Law. Rev. January 1975,
p. 23, 29-30).
Election law has necessarily to be Statutory, but a
code can be clear in its scheme and must be such that
litigation-proof elections should become the rule.
Legislative nemesis, in the shape of ambiguity induced
litigation is a serious political misfortune in the area of
elections where lay men go to the polls and people’s
verdicts get bogged down in court disputes, attended with
desperate delays. Some intelligent care at the drafting
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stage, some vision of the whole scheme in the framers, will
reduce resort to legal quarrels and appellate spirals so
that the time consumed in this Court in resolving conflicts
of construction in comparatively less important legislations
can be spared for more substantial issues of general public
importance.
Civil Appeals Nos. 1315 and 1316 of 1975
One Shri Rajani, a candidate for Presidentship of the
Bassein Municipal Council and Shri Samant, a voter in that
municipal area, made common cause and filed two election
petitions challenging the declaration in favour of the
appellant, Dr. Parulekar, who was the successful candidate,
winning by a large plurality of votes.
The resume of relevant facts sufficient to appreciate
the contentions may straightway be set out. We are
confining, as suggested by counsel, to the twin appeals
relating to Bassein since the fate of Bhibandi must follow
suit. Three candidates, including the two already mentioned,
had filed nomination papers on October 21, 1974 for the
presidential election of the Municipal Council. At the time
of the scrutiny which took place two days later, no
objection was raised to the nomination of Dr. Parulekar by
anyone and, on the withdrawal of the third candidate within
time, there was a straight fight between the appellant and
the first respondent. The poll battle which took place on
17-11-74 found the appellant victor and he was so declared.
The frustrated first respondent and his supporter, 2nd
respondent, challenged the return of the appellant by
separate election petitions under s. 21 of the Municipal
Act. The sole ground on which the petitioners were founded
was that Dr. Parulekar, the returned candidate, was
disqualified under s. 16(1) (g) of the Municipal Act, the
lethal vice alleged against him being that on the date of
nomination he was holding an office of profit under the
Government, as he was then, admittedly, working as a panel
doctor appointed under the Employees’ State Insurance Scheme
(acronomically, the ESI scheme), a beneficial project
contemplated by
836
the ESI Act, 1948. Of course, the appellant doctor submitted
his resignation on November 5, 1974 and this was accepted on
November 11, 1974. Thus, before the actual polling took
place, but after the nomination, he had ceased to be on the
ESI panel. Another circumstance which may have some
significance in the overall assessment of the justice of the
case, although of marginal consequence on the law bearing
upon the issues debated at the bar, is that the appellant
has been a councillor of the aforesaid municipality since
1962 and he has also been a doctor on the ESI panel
throughout the same span of years and no one has chosen to
raise the question of disqualification on this score up till
the 1st respondent fell to his rival and had no other
tenable ground of attack. Necessity is the mother of
invention and the respondents, aided by the cute legal
ingenuity, may be, dug up the disqualification of ’office of
profit’ and, indeed, wholly succeeded before the Election
Tribunal, the Joint Judge of Thana. The Trial Judge not
merely voided the appellant’s election but declared the 1st
respondent President since he was the sole surviving
candidate. This order of the Joint Judge has been assailed
before us in the two appeals, after securing leave under
Art. 136.
Three main contentions have been urged before us by
Shri Bhatt, counsel for the appellant, which we will
formulate and deal with one by one, although on the merits
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the most formidable issue is as to whether figuring in the
medical list under the ESI scheme amounts to holding an
office of profit under Government. With a view to get a hang
of the major plea, it is necessary to study the scheme of
the ESI Act, even as to get a satisfactory solution of the
other two points we have to gather the ensemble of
provisions dealing with disqualification of candidates and
the triple remedies provided in that behalf by the Municipal
Act. The discussion, to be put in proper focus, requires
formulation of the submissions of counsel, the foremost in
importance and intricacy being whether a doctor on the
Medical List made by the Surgeon-General of the State holds
an ’office of profit’ within the meaning of s. 16(1) (g) of
the Municipal Act. Next in the order of priority is the
question whether a petition for setting aside an election of
President on the ground of disqualification for being a
councillor is permissible under s. 21 of the Municipal Act
in view of the special provision in s. 44 of the said Act
and the rules regarding objections to nominations and appeal
therefrom framed under that Act. The last question which, in
a sense, is interlinked with the earlier one is as to
whether, assuming the appellant to be disqualified, the
first respondent can be declared the returned candidate or
President, by-passing the necessity for a fresh poll-getting
elected, as it were, through the judicial constituency of
discretionary power.
It is plain democratic sense that the electoral process
should ordinarily receive no judicial jolt except where
pollution of purity or contravention of legal mandates
invite the court’s jurisdiction to review the result and
restore legality, legitimacy and respect for norms. The
frequency of forensic overturing of poll verdicts injects
instability into the electoral system, kindles hopes in
worsted candidates and induces postmortem discoveries of
’disqualifications’ as a desperate gamble in
837
the system of fluctuating litigative fortunes. This is a
caveat against overuse of the court as an antidote for a
poll defeat. Of course, where a clear breach is made out,
the guns of law shall go into action, and not retreat from
the Rule of Law.
We will proceed to take a close-up of the three lines
of attack outlined above, and if interference with the
election must follow, it will; otherwise not.
The appellant is a doctor in Maharashtra where the
municipalities are organised, based on popular franchise, in
terms of the Municipal Act. It is a heartening omen that
this local body, Bessein, has electorally attracted
professional men, not mere politicians, into its
administrative circle; for the appellant is a ’medic’ while
respondent 1 is an ’advocate’. By a margin of over a
thousand votes the former won but the lawyer rival has
invoked the law to undo the election on the ground of
disqualification based on s. 16(1)(g) of the Municipal Act.
The ban is on one who holds an office of profit under
government and the public policy behind the provision is
obvious and wholesome. We may read the relevant part of the
section:
"16(1)(g): No person shall be qualified to become
a Councillor whether by election, co-option or
nomination, who is a subordinate officer or servant of
Government or any local authority or holds an office of
profit under Government or any local authority;"
The short question then is whether the appellant is
qualified to be a Councillor (which expression is rightly
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deemed to include President, vide s. 2(7). The disqualifying
stain is stated to be that he held an office of profit under
the State Government. He did resign before the date of poll
but after the date of filing nomination. The nomination was
vitiated and subsequent resignation did not confer moksha
and the election thus became void. Assuming that if a
candidature is stigmatised by a fatal blot at the time of
nomination the election also suffers invalidity, despite
intervening removal of the disqualification, did the doctor
incur the penalty by being on the medical panel of the ESI
scheme ?
The critical question, apparently simple and limpid,
has, when saturated with precedential erudition and
lexicographic inundation, become so learnedly obscure and
conflictively turbid that were we governed by a radically
streamlined methodology of legislation and liberality of
interpretation, as obtains in other systems of
jurisprudence, much of the forensic work could have been
obviated. This is a problem of disturbing social import
outside the orbit of these appeals with which alone we are
currently engaged.
The magnificent concept of judicial review is at its
best when kept within the beautiful trellis of broad
principles of public policy and tested by the
intentionability of the statute. With this predisposition
calculated to make judge-power functionally meaningful, we
proceed to fix the contextual semantics of ’office of
profit’ as a disqualificationary factor for running for
municipal president. To begin with the
838
very beginning; what is an office ?-too simplistic to answer
with case that it is derived from ’officium’ and bears the
same sense. Indeed, in Latin and English, this word has
protean connotations and judicial choice reaches the high
point of frustration when the highest courts here and abroad
have differed, dependent on varying situations, or statutory
schemes, the mischief sought to be suppressed and the
surrounding social realities. Then we come to the second
question: what is an ’office of profit’? And, thirdly, to
the question: when is an ’office of profit’ under Government
?
The context-purpose signification of expressions of
varying imports leaves room for judicial selection.
Illustratively, we may refer to two decisions which throw
some light but turn on the statutory setting of those cases.
For instance, in Ramachandran (AIR 1961 Madras 450, 458) it
has been observed:
"..We find, in Bacon’s Abridgment at Vol. 6, p. 2,
the article headed ’of the nature of an officer, and
the several kinds of officers’, commencing thus: ’It is
said that the word ’officium’ principally implies a
duty, and, in the next place, the charge of such duty;
and that it is a rule that where one man hath to do
with another’s affairs against his will, and without
his leave, that this is an office, and he who is in it
is an officer’. And the next paragraph goes on to say:
’There is a difference between an office and an
employment, every office being an employment; but there
are employments which do not come under the
denomination of offices; such as an agreement to make
hay, herd a flock, etc; which differ widely from that
of steward of a manor, etc. The first of these
paragraphs implies that an officer is one to whom is
delegated, by the supreme authority, some portion of
its regulating and coercive powers, or who is appointed
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to represent the State in its relations to individual
subjects. This is the central idea; and applying it to
the clause which we have to construe, we think that the
word ’officer’ there means some person employed to
exercise, to some extent, and in certain circumstances,
a delegated function of Government. He is either
himself armed with some authority or representative
character, or his duties are immediately auxiliary to
those of someone who is so armed."
In Statesman v. Deb it is said:
"An office means no more than a position to which
certain duties are attached. According to Earl Jowitt’s
Dictionary a public office is one which entitles a man
to act in the affairs of others without their
appointment or permission."
Both these decisions may perhaps be generally relevant but
not precisely to the point.
We were taken through the panorama of case-law and
statute-law relating to corporations, companies, autonomous
bodies and other creatures of statute, to bring out the
content of ’office of profit under
839
government’ as distinguished from offices under the control
of government. Indeed, even the Constitution of India
disqualifies a person for being chosen as Member, if he
holds any office of profit under the Government. The
question may well arise whether the ESI Corporation is under
the control of government and can be equated with State so
that holding any office thereunder may attract the
proscription of s. 16(1)(g). We are relieved from this
industrious adventure by the stand taken by counsel for the
respondents, Shri Patel, that he stakes this part of his
case on the sole ground that the appellant doctor is holding
an office of profit under the Maharashtra government, as
such. He has no case therefore that the doctor is under the
control of the ESI Corporation, an institution controlled by
the Union government and hence is disqualified. The short
issue, therefore, is whether, under the scheme of the ESI
Act and the rules framed thereunder, the appellant squarely
falls within the description of holder of office of profit
under the State Government. This branch of enquiry takes us
to an analysis of the provisions bearing on the scheme of
the medical project under the ESI Act and the role of the
State government therein. We have some assistance from
rulings of this Court in resolving the dispute and we may
mention even in advance that a seeming disharmony between
two decisions of this Court also has to be dissolved.
Apparent judicial dissonance may give place to real
consonance, if a dissection of the facts and discernment of
the reasoning, in the light of which the decisions of this
Court are rendered, is undertaken.
The ESI Act provides medical facilities for the working
class, the primary responsibility for executing the project
being shouldered by a statutory corporation created by s. 3
of the Act and the infra-struture for implementation is
organised by the other provisions of Chapter II. A Standing
Committee administers the affairs of the Corporation. A
Medical Benefit Council is constituted by the Central
Government to help in the discharge of the duties of the
Corporation which involve expertise. The financial resources
come from contributions and other moneys specified in the
Act itself and an Employees’ State Insurance Fund has been
brought into existence in this behalf. The Corporation,
although has a separate legal personality, is under the
control of the Central Government. But that is not the
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pertinent issue before us.
The fatal sin is not that the appellant is a doctor
under the ESI Corporation but that he is holding an ’office
of profit’ under the State Government. We may ignore
provisions relating to the powers of the Corporation and
turn to the role of Government vis a vis private medical
practitioners like the appellant. He is not a full-time
employee of Government. On the other hand, he runs his own
clinic. Even so, it is argued with force that s. 58 and a
fasciculus of rules framed by the State Government under s.
96, viewed as a mini-scheme, creates offices of profit which
are filled by private doctors like the appellant.
The legal spring-board is s. 58 of the ESI Act and it
is best to start off with reading that section:
"58. Provision of medical treatment by State
Government.-(1) The State Government shall provide for
in sured persons and (where such benefit is extended to
their
840
families) their families in the State, reasonable
medical, surgical and obstetric treatment:
Provided that the State Government may, with the
approval of the Corporation, arrange for medical
treatment at clinics of medical practitioners on such
scale and subject to such terms and conditions as may
be agreed upon.
(2) Where the incidence..."
Two things are self-evident. An obligation to provide
medical treatment for insured persons has been saddled on
the State Government. Secondly, that Government may
discharge this responsibility through arrangement with
medical practitioners who run clinics. The bare bones of s.
58 have to be clothed with flesh before a viable project
comes to life. This is achieved by rules framed unders. 96
especially s. 96(1) (d) & (e). We may make it clear that the
Corporation’s entry into the field is not inhibited by s. 58
as s. 59A underscores. But what is posed before us is the
appellant’s status as a holder of an office of profit under
the Government since he is admittedly a medical insurance
officer within the mechanism set up by the rules. Here we
seek light from the several rules governing medical
insurance officers, their empanelment, control, removal and
allied matters. Some empathy with the plan of benefit by the
State Government is a pre-requisite to an insight into the
true nature of a medical insur ance officer in the context
of an office of profit.
A broad idea can be gained from the key rules and so we
sketch the outlines by reference to them, skipping the rest.
The Chief officer entrusted with the working of the scheme
is the Director Rule 2(3A) defines ’Director’ as the
Director, ESI scheme, Government of Maharashtra. This
officer, the kingpin of the whole programme, is an appointee
of the State Government. The content of medical benefits is
covered by r. 4 which extends the medical services to
insured persons and runs thus:
"4. Provision of general medical services to
insured persons by Insurance Medical Practitioners.-
(1) The State Government shall arrange to provide
general medical services to insured persons
at clinics of Insurance Medical
Practitioners, who have undertaken to provide
general medical services under these rules
and in accordance with their terms of
service.
(2) An Insurance Medical Practitioner shall be
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deemed to be appointed as an Insurance
Medical officer for the purposes of the
Regulations."
The agency for rendering medical treatment is called
Insurance Medical Practitioner. Rule 2(6) defines the
Insurance Medical Practitioner as one appointed as such to
provide medical benefits under the Act and to perform such
other functions as may be assigned to him. Rule 2(2)
authorizes the appointment of one or more officers by the
State Government to control the administration of medical
benefits and they are called ’administrative medical
841
officers’. These officers shall, under r. 5, prepare a list
of the practitioners whose applications have been approved
by the Allocation Committee (defined in r. 2(13). This list
is called the Medical List of Insurance Medical
Practitioners. Before a doctor can be included in the
medical list, he has to apply to the administrative medical
officer in the form specified by the State Government for
the purpose. The Insurance Medical Practitioners have to be
responsible for rendering medical treatment and must conform
to the conditions specified. A Medical Service Committee
shall be set up for such areas as may be considered
appropriate by the State Government. This Committee
investigates into questions between an Insurance Medical
Practitioner and a person who is entitled to obtain
treatment from that practitioner, etc. On the report of the
Medical Services Committee relating to the conduct of an
Insurance Medical Practitioner, the Director may take action
in one or more of the ways specified in r. 22(2). He may
even remove the Insurance Medical Practitioner’s name from
the medical list. There is an appeal by the aggrieved doctor
to the State Government. Rule 24 relates to investigation
into cases of disputed prescriptions, record keeping and
certification relating to Insurance Medical Practitioners.
The total impact of a detailed study of the various rules
framed by the State Government bearing on Insurance Medical
Practitioners is that a doctor applies for getting into the
Medical List, agrees to abide by the duties and conditions
prescribed, is under the control of the Medical Services
Committee and may even be removed or resign from the panel.
It is clear that he cannot extricate himself from government
control by the plea that he is a private doctor because his
entry into the Medical List is preceded by an application
for inclusion where he undertakes certain responsibilities.
Such application is considered by an Application Committee
which recommends his name to the Director, Employees State
Insurance Scheme. The Surgeon General ultimately grants the
prayer for inclusion in the Medical List on the
recommendations of the Allocation Committee. It is true that
an insurance medical practitioner has the right to resign
and also to have the name of any insured person removed from
his list. He has duties which are prescribed by the rules
vis a vis the patients. He is required to furnish various
pieces of clinical information and to do other medical
duties as are set out in r. 10. The State Government has the
power to remove the name of any individual Insurance Medical
Practitioner from the Medical List even as the latter is
entitled to give notice to the Director, ESI Scheme that he
desires to cease to be an Insurance Medical Practitioner and
that his name may be removed from the Medical List. It
follows that although he is a private doctor, running a
private clinic, he is also an Insurance Medical Practitioner
subject to the discipline, directions, obligations and
control of the relevant officers appointed by the State
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Government in implementing the medical benefit scheme.
An insurance medical practitioner-the appellant is one-
being a medical practitioner ’appointed as such to provide
medical benefit under the Act and to perform such other
functions as may be assigned to him,’ the question arises
whether this is tantamount to holding an office.
842
The legal provisions under the Act and the rules
certainly make of an insurance medical practitioner a
category different from one who runs a private clinic and
enters into contractual terms for treatment of patients sent
by Government, nor is he a full-fledged government servant.
He is a tertium quid, as it were, but the finer question is
whether this category falls squarely within the description
of ’office of profit under government’.
This very question fell for decision before the Bombay
and Calcutta High Courts but the learned Judges, on a study
of the identical provisions, arrived at antipodean
conclusions. After all, minds differ as rivers differ and,
assisted by the flow of logic in these and other rulings
cited before us, we will hopefully reach the shore of
correct interpretation. The process of mentation, the office
of words like office of profit’ which convey many meanings
and the inputs into the complex matrix of statutory
construction make what looks simple to the lay,
sophisticated for the legal, as the case on hand amply
illustrates.
Back to the issue of ’office of profit’. If the
position of an Insurance Medical Officer is an ’office’, it
actually yields profit or at least probably may. In this
very case the appellant was making sizeable income by way of
capitation fee from the medical senice, rendered to insured
employees. The crucial question then is whether this species
of medical officers are holding ’office’ and that ’under
Government’. There is a haphazard heap of case law about
these expressions but they strike different notes and our
job is to orchestrate them in the setting of the statute.
After all, all law is a means to an end. What is the
legislative end here in disqualifying holders of ’offices of
profit under government’? Obviously, to avoid a confict
between duty and interest, to cut out, the misuse of
official position to advance private benefit and to avert
the likelihood of influencing government to promote personal
advantage. So this is the mischief to be suppressed. At the
same time we have to bear in mind that our Constitution
mandates the State to undertake multiform public welfare and
socio-economic activities involving technical persons,
welfare workers, and lay people on a massive scale so that
participatory government may prove a progressive reality. In
such an expanding situation, can we keep out from elective
posts at various levels many doctors, lawyers, engineers and
scientists, not to speak of an army of other non-officials
who are wanted in various fields, not as fulltime government
senants but as part-time participants in people’s projects
sponsored by government? For instance, if a National Legal
Services Authority funded largely by the State comes into
being, a large segment of the legal profession may be
employed part-time in the ennobling occupation of legal aid
to the poor. Doctors, lawyers, engineers, scientists and
other experts may have to be invited into local bodies,
legislatures and like political and administrative organs
based on election if these vital limbs of representative
government are not to be the monopoly of populist
politicians or lay members but sprinkled with technicians in
an age which belongs to technology. So, an interpretation of
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’office of profit’ to cast the net so wide that
843
all our citizens with specialities and know-how are
inhibited from entering elected organs of public
administration and offering semivoluntary services in para-
official, statutory or like projects run or directed by
Government or Corporation controlled by the State may be
detrimental to democracy itself. Even athletes may hesitate
to come into Sports Councils if some fee for services is
paid and that proves their funeral if elected to a panchayat
! A balanced view, even if it involves ’judicious
irreverence’ to vintage precedents, is the wiser
desideratum.
The general interpretative approach hallowed by
Heydon’s case is expressed by the Bench in the Bombay ruling
AIR 1958 Bom 314 Deorao v. Keshav thus:
"The object of this provision is to secure
independence of the members of the Legislature and to
ensure that the Legislature does not contain persons,
who have received favours or benefits from the
executive and who, conse quently, being under an
obligation to the executive, might be amenable to its
influence. Putting it differently, the provision
appears to have been made in order to eliminate or
reduce the risk of conflict between duty and self-
interest amongst the members of the Legislature. This
object must always be borne in mind in interpreting
Art. 191."
While we agree that this consideration is important for
purity of elective offices, the need for caution against
exaggerating its importance to scare away men of skill in
various fields coming into socially beneficial projects on
part-time posting or small fee cannot be ignored. Informed
by these dual warnings, we proceed to assess the worth of
the rival contentions.
Section 58 charges the State Government with the duty
to provide medical facilities to insured employees. This
obligation may be discharged by arrangements with private
clinics. An Insurance Medical Officer is not a government
servant, but he is more than a mere private doctor with a
contractual obligation, for he undertakes certain functions
which are regulated by law viz., rules framed under s. 96.
The question is not what he is but whether he is ’holding an
office of profit’.
We have already referred to the principal sections and
rules, the broad scheme and infra-structure and the rights,
duties and degree of control over Insurance Medical
Practitioners exercised by the State directly or through its
officers. A further elaboration is possible, but is
supererogatory. A full study of the Bench decisions of
Bombay and Calcutta led to diametrically opposite
conclusions thus proving the wide judicial choice available
depending on the perspective, the import and the objections
one accepts from the two enactments viz. the Municipal Act
and the Insurance Act. It is a context-purpose quandary.
844
Chainani J., speaking for the Court set out the true
approach thus:
P. 318, para 12.
"In our opinion, the principal tests for deciding
whether an office is under the Government, are (1) what
authority has the power to make an appointment to the
office concerned, (2) what authority can take
disciplinary action and remove or dismiss the holder of
the office and (3) by whom and from what source is his
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remuneration paid ? Of these, the first two are, in our
opinion, more important than the third one."
Shri A. N. Ray, J. (as he then was) stated his
touchstone to be fourfold:
"The four tests which have been applied to these
cases were stated by Lord Thankerton in the case of
Short v. J. and W. Henderson, Limited, reported in
(1946) 174 L.T. 417. These four tests are :-(a) the
master’s power of selection of his servant, (b) the
payment of wages or other remuneration, (c) the
master’s right to control the method of doing the work,
and (d) the master’s right of suspension or dismissal.
Lord Thankerton referred to the observation of Lord
Justice Clerk in the judgment under appeal in that case
that a contract of service may still exist if some of
these elements are absent altogether, or present only
in an unusual form, and that the principal requirement
of contract of service is the right of the master in
some reasonable sense to control the method of doing
the work, and that this factor of superintendence and
control has frequently been treated as critical and
decisive of the legal quality of the relationship."(1)
A few searching questions and implied answers may help
a solution. Is the appellant (or those of his ilk under the
Scheme) an employee of government? Not more than any other
expert consulted by Government for fee paid? But he has
obligations of a statutory savour He is ’appointed’ on his
application which is processed by the appropriate body,
removed if found wanting, obliged to discharge duties, make
some reports and subject himself to certain discipline while
on the panel. In the words of the Bombay decision :
Para 30, p. 323.
"In the form of application, a medical
practitioner, who desires his name to be included in
the medical list, has also to state that he agrees to
abide by the terms of service. In other words, he
agrees to join a service, see also Rule 22(d), which
uses the words ’prejudicial to the efficiency of the
Service’. He is also subject to disciplinary action and
control. He cannot also resign or give up his post
except by giving three months’ notice under Service
Rule
845
14. He is also required to maintain records and to
submit returns. His employment has, therefore, all the
attributes of a service. He must, therefore, be held to
be a holder of an office. The fact that he is allowed
private practice will not alter the character of his
appointment."
The other features pointing in a different direction
are not to be overlooked either. Ray J. (as he then was)
drew the lines, boldly, when he observed:
Para 29, p. 7.
"These medical practitioners apply themselves for
inclusion in the medical list. Their payment is not out
of the government revenue but out of a special fund
consisting of contribution made by the employers.
Therefore such a fund over which the government has no
legal title and which is vested in the corporation
under the combined effect of sections 3 and 26 of the
Act to which I have already referred indicates beyond
any doubt that the remuneration of medical
practitioners is paid not out of the public exchequer.
The contention of Mr. Advocate General is correct that
medical practitioner in the present case gave nothing
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more than a voluntary undertaking to offer services in
lieu of fees for professional service rendered and the
inclusion of names in the list and the preparation of
the list did not have the effect of making the medical
practitioner an employee of the State."
x x x x
Para 23, p. 6.
"Mr. Advocate General, in my opinion, rightly
contended that the medical practitioners were really
undertaking and offering services and if the
undertaking was treated as a contract between the
medical practitioner and the persons in charge of
preparation of medical list, namely, the State or the
Corporation it was a mere contract for services and not
a contract of services. This proposition was extracted
from the decision in Gould v. Minister of National
Insurance, reported in (1951) 1 KB 731 and also in
(1951) I All. E.R. 368. That case was on the
construction of the provisions of the National
Insurance Act, 1946 and the question was whether the
appellant in that case who was a music-hall artist and
who had entered into a written contract with the second
respondent acting on behalf of several companies, under
which he undertook to appear in a variety ’act’ at a
theatre for one week from September 6, 1948 was an
employed person within the meaning of the Act. The
first respondent, the Minister of National Insurance,
had decided that during that week the appellant was not
an ’employed person’ within the meaning of the Act. It
was held that the question would turn on the particular
facts of each case and the authority of cases based on
different statutes would not always be of assistance.
It was said
846
that it would be easy in some cases to say that the
contract was a contract of service and in others that
it was a contract for services, but between these two
extremes there was a large number of cases where the
line was much more difficult to draw."
Does the destiny of this case depend on murky semantics
as to what is an ’office’-filling columns of Law Lexicons
and English Dictionaries-or the nub of the dispute turn on
contract of service versus contract for services? Alas !
Could not the law be made plainer in this area of mass-
participatory process called elections ? Dickens is still
valid about our modern Legislations unresponsive to the
common man’s need of comprehensible law and unmindful of the
court’s consequential wrestling with etherie differences !
’The law is a ass-a idiot’ (Mr. Bumble in Oliver Twist).
The commensense way, rather than the lexicographic
street, is the better route to the destination. And that
means we have to crystallise our notion of ’office of
profit’ and then test the fate of Insurance Medical
Practitioners. Profit he does derive, but does he hold an
office under Government ? Mere incumbancy in office is no
disqualification even if some sitting fee or piffling
honorarium is paid (vide: 1954 SC 653).
If a lawyer (or doctor in a system of National Health
Insurance) is on a panel of Government for looking after
cases or other legal work and paid for services rendered
but, otherwise, a freelance, does he hold an office under
Government ?
Shivamurthy Swami(1) clears the ground for the
discussion by going to the basics which determine what is an
office of profit under Government. These tests are:
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"(1) Whether the Government makes the appointment;
(2) Whether the Government has the right to remove
or dismiss the holder;
(3) Whether the Government pays the remuneration;
(4) What are the functions of the holder ? Does
he perform them for the Government; and
(5) Does the Government exercise any control over
the performance of those functions ?"
We are not faced with the plea of office under the
Corporation and thus under the Central Government but only
with the disqualification of holding an office directly
under the State Government via s. 58 read with the rules
framed under s. 96 of the Insurance Act. In this connection,
a closer link with the present situation is established by
Kanta(2) where an Advocate, acting for Government under the
directions of the Government pleader could be said to hold
an office of profit. Sikri J., (as he then was) adopted the
classic definition
847
of ’office’ given by Justice Rowlatt in Great Eastern Rly
Co.(1) as appropriate even in an electoral context and
proceeded to apply the ratio to the facts of the case.
Observed the learned Judge:
"We cannot visualise an office coming into
existence, every time a pleader is asked by the
Government to appear in a case on its behalf. The
notification of his name under rule 8B, does not amount
to the creation of an ’office’. Some reliance was also
placed on rule 4 of Order 27 C.P.C. which provides
that:
"The Government pleader in any Court shall be the
agent of the Government for the purpose of receiving
processes against the Government issued by such Court."
This rule would not apply to the facts of this
case because the appellant was appointed only to assist
the Government Advocate in a particular case. Assuming
it applies, it only means that the processes could be
served on the appellant, but processes can be served on
an Advocate under Rule 2 of Order XLV of the Supreme
Court Rules, 1966. This does not mean that an Advocate
on Record would hold an office under the client.
The learned Counsel for the respondent, Mr.
Chagla, urges that we should keep in view the fact that
the object underlying Art. 191 of the Constitution is
to preserve purity of public life and to prevent
conflict of duty with interest and give an
interpretation which will carry out this object. It is
not necessary to give a wide meaning to the word
’office’ because if Parliament thinks that a legal
practitioner who is being paid fees in a case by the
Government should not be qualified to stand for an
election as a Member of Legislative Assembly, it can
make that provision under Art. 191(1)(e) of the
Constitution. The case of Sakhawat Ali. v. The State of
Orissa(2) provides an instance where the Legislature
provided that a paid legal practitioner should not
stand in the municipal elections."
This takes us to Sakhawat Ali(2) and to Mahadeo(3) which too
afford some luciferous parallels.
In Sakhawat Ali (supra) the question arose about a
legal practitioner employed on behalf of a Municipality
standing as candidate for election to the Municipal Council.
Stress was laid on the purity of public life, an object
which would be thwarted if there arose a situation of
conflict between interest and duty. A lawyer paid by the
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municipality becoming a councillor is a situation fraught
with perils to purity in public life. This factor was
emphasized by an express provision in the Municipal Act in
that case disqualifying such paid legal practitioners from
becoming candidates. Had such a step been taken in our case,
the law would have been at least clear, whether it was wise
or no.
848
In Mahadeo’s Case(1) a fine distinction from Kanta
(supra) arose. There also the disqualification of a lawyer
on account of holding an office of profit under the
government arose. After quoting Lord Wright in Mcmillan v.
Guest(2), trying to define ’office’, the Court proceeded to
consider whether a lawyer who accepted a position on the
panel of Railway pleaders for conducting suits filed against
the Union of India on the terms and conditions therein
mentioned, was holding an office of profit. Holding that
such an appointment on the panel of lawyers for the Union of
India was an office of profit, the Court observed:
"If by ’office’ is meant the right and duty to
exercise an employment or a position to which certain
duties are attached as obsered by this Court, it is
difficult to see why the engagement of the appellant in
this case under the letter of February 6, 1962 would
not amount to the appellant’s holding an office. By the
said letter he 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 office of the Chief Commercial
Superintendent. Even if no instructions regarding any
particular case were given to him, 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 interests of the
Railway. The duty or obligation was a continuing one so
long as the railway 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 Railway. In the absence of the
above he was bound by the terms of the engagement to
watch the interests 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 Railway had
made no arrangement for representation. It is true that
he would get a sum of money only if he appeared but the
possibility that the Railway might not engage him is a
matter of no moment. An office of profit really means
an office in respect of which a profit may accrue. It
is 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 next case of considerable importance is
Gurugobinda(3) which related to a chartered accountant, a
partner of a firm of auditors of two companies which were
owned by the Union Government
849
and the State Government. Disqualification for holding an
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office of profit, again, in this circumstance, was pressed
before the Court and S. K. Das, Acg. C. J., speaking for the
Court observed:
"We think that this contention is correct. We
agree with the High Court that for holding an office of
profit under the Government, one need not be in the
service of Government and there need be no relationship
of master and servant between them."
(P. 319)
"In Maulana Abdul Shakur v. Rikhab Chand and
another (1958 SCR 387) the appellant was the manager of
a school run by a committee of management formed under
the provisions of the Durgah Khwaja Saheb Act, 1955. He
was appointed by the administrator of the Durgah and
was paid Rs. 100 per month. The question arose whether
he was disqualified to be chosen as a member of
Parliament in view of Art. 102(1) (a) of the
Constitution. It was contended for the respondent in
that case that under ss. 5 and 9 of the Durgah Khwaja
Saheb Act, 1955 the Government of India had the power
of appointment and removal of members of the committee
of management as also the power to appoint the
administrator in consultation with the committee;
therefore the appellant was under the control and
supervision of the Government and that therefore he was
holding an office of profit under the Government of
India. This contention was repelled and this court
pointed out the distinction between the holder of an
office of profit under some other authority subject to
the control of Government."
(p. 319-320)
"It has to be noted that in Maulana Abdul Shakur’s
case the appointment of the appellant in that case was
not made by the Government nor was he liable to be
dismissed by the Government. The appointment was made
by the administrator of a committee and he was liable
to be dismissed by the same body."
(p. 320)
"It is clear from the aforesaid observations that
in Maulana Abdul Shakur’s case the factors which were
held to be decisive were (a) the power of the
Government to appoint a person to an office of profit
or to continue him in that office or revoke his
appointment at their discretion, and (b) payment from
out of Government revenues, though it was pointed out
that payment from a source other than Government
revenues was not always decisive factor. In the case
before us the appointment of the appellant as also his
continuance in office rests solely with the Government
of India in respect of the two companies. His
remuneration is also fixed by Government. We assume for
the purpose of this appeal that they are Government
companies within the meaning of
850
the Indian Companies Act, 1956 and 100% of the shares
are held by the Government. We must also remember that
in the performance of his functions the appellant is
controlled by the Comptroller and Auditor-General who
is himself undoubtedly holder of an office of profit
under the Government, though there are safeguards in
the Constitution as to his tenure of office and
removability therefrom." (p. 321)
"Therefore if we look at the matter from the point
of view of substance rather than of form, it appears to
us that the appellant as the holder of an office of
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profit in the two Government Companies, the Durgapur
Projects Ltd., and the Hindustan Steel Ltd., is really
under the Government of India; he is appointed by the
Government of India, he is removable from office by the
Government of India, he perfoms functions for two
Government companies under the control of the
Comptroller and Auditor General who himself is
appointed by the President and whose administrative
powers may be controlled by rules made by the
President."
(p. 322)
"In Ramappa v. Sangappa the question arose as to
whether the holder of a village office who has a
hereditary right to it is disqualified under Art. 191
of the Constitution, which is the counterpart of Art.
102, in the matter of membership of the State
Legislature. It was observed therein.
"The Government makes the appointment to the
office though it may be that it has under the statute
no option but to appoint the heir to the office if he
has fulfilled the statutory requirements. The office
is, therefore, held by reason of the appointment by the
Government and not simply because of a hereditary right
to it. The fact that the Government cannot refuse to
make the appointment does not alter the situation."
There again, the decisive test was held to be the
test of appointment. In view of these decisions we
cannot accede to the submission of Mr. Chaudhury that
the several factors which enter into the determination
of this question-the appointing authority, the
authority vested with power to terminate the
appointment, the authority which determines the
remuneration, the source from which the remuneration is
paid, and the authority vested with power to control
the manner in which the duties of the office are
discharged and to give directions in that behalf-must
all co-exist and each must show subordination to
Government and that it must necessarily follow that if
one of the elements is absent, the test of a person
holding an office under the Government. Centre or
State, is not satisfied. The cases we have referred to
specifically point out that the circumstance that the
source
851
from which the remuneration is paid is not from public
revenue is a neutral factor-not decisive of the
question. As we have said earlier whether the stress
will be laid on one factor or the other will depend on
the facts of each case. However, we have no hesitation
in saying that where the several elements, the power to
appoint, the power to dismiss, the power to control and
give directions as to the manner in which the duties of
the office are to be performed, and the power to
determine the question of remuneration are all present
in a given case, then the officer in question holds the
office under the authority so empowered." (p. 322-323)
The core question that comes to the fore from the
survey of the panorama 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 an office and connotes its holder and this
duality implies the existence of the office as an
independent continuity and an incumbent thereof for the
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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 stressed by this Court, as determinative of
the holding of an ’office’ under Government, need not be
conjointly present. The critical circumstances, not the
total factors, prove decisive. A practical view not pedantic
basket of tests, should guide in arriving at a sensible
conclusion.
In the present case, can we say that the post
(forgetting the finer issue of office, as distinguished from
post) is under the State Government ? The capitation fee is
the remuneration the doctor is paid and this comes not from
Government direct but from a complex of sources. But
Gurugobinda and Gurushantappa(1) took the view that payment
of remuneration not from public revenue is a neutral factor.
Is the degree of control by Government decisive ? The power
to appoint, direct and remove, to regulate and discipline,
may be good indicia but not decisive, as pointed out in
Gurushantappa. In our case, Government does have, partly
direct and partly indirect, control but the conclusion is
not inevitable because the doctor is put in the List not by
Government directly but through a prescribed process where
the Surgeon General has a presiding place. How proximate or
remote is the subjection of the doctor to the control of
Government to bring him under Government is the true issue.
Gurushantappa has highlighted this facet of the question.
Indirect control, though real, is insufficient, flows from
the ratio of Abdul Shakur(2). The appellant, as elaborated
by Ray J (as he then was) in the Calcutta case, was not a
servant of government but a private practitioner, was not
appointed directly by Government, but by an officer of
government on the recommendation of a Committee, was paid
not necessarily
852
out of Government revenue and the control over him in the
scheme was vested not in Government but in an Administrative
Medical Officer and Director whose position is not qua
Government servant but creatures of statutory rules. The
ultimate power to remove him did lie in Government even as
he enjoyed the power to withdraw from the panel. The mode of
medical treatment was beyond Government’s control and the
clinic was a private one. In sum, it is fair to hold that
the Insurance Medical Practitioner is not a free-lancer but
subject to duties, obligations, control and rates of
remuneration under the overall supervision and powers of
Government. While the verdict on being under the Government
is a perilous exercise in Judicial brinkmanship, especially
where the pros and cons are evenly balanced, the ruling in
Kanta Kathuria which binds us and the recondite possibility
of conflict of duty and interest for a Municipal President
who is an Insurance Medical Practitioner under an
arrangement with Government induce us to hold that though
the line is fine, the appellant is not functioning under the
Government in the plenary sense implied in electoral
disqualification. After all, the means, i.e., the ban on
candidature, must have a substantial link with the end viz.,
the possible misuse of position as Insurance Medical
Practitioner in doing his duties as Municipal President.
This question is interlaced, in the present context,
with the concept of ’office of profit’. And the twin
problems baffle easy solution since an apparent-not real-
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conflict of reasoning exists between Mahadeo (decided by a
Bench of two Judges) and Kanta (by a Bench of five Judges).
Of course Sikri, J. (as he then was) thought that Mahadeo
’in no way militates against the view’ which appealed to the
majority in Kanta. Judicial technology sometimes
distinguishes, sometimes demolishes earlier decisions; the
art is fine and its use skilful. Both the cases dealt with
advocates and we have referred to them in the earlier resume
of precedents. Even so, a closer look will disclose why we
follow the larger Bench (as we are bound to, even if there
is a plain conflict between the two cases). Justice
Rowlatt’s locus classicus in Great Western Ry. Co. (followed
by this Court in many cases) helps us steer clear of
logomachy about ’officio’ especially since the New English
Dictionary fills four columns ! Rowlatt J. riveted attention
on ’a subsisting, 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’. So, the first step is to enquire whether ’a
permanent, substantive position, which had an existence
independent from the person who filled it’ can be postulated
in the case of an Insurance Medical Practitioner. By
contrast is the post an ephemeral, ad hoc, provisional
incumbency created, not independently but as a List or Panel
clastic and expiring or expanding, distinguished from a
thing that survives even when no person had been appointed
for the time being. ’Thin partitions do their bounds divide’
we agree, but the distinction, though delicate, is real. An
office of Insurance Medical Practitioner can be conjured up
if it exists even where no doctor sits in the saddle and has
duties attached to it qua office. We cannot equate it with
the post of a peon or security gunmen who too has duties
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to perform or a workshop where Government vehicles are
repaired, or a milk vendor from an approved list who
supplies milk to government hospitals. A panel of lawyers
for Legal Aid to the Poor or a body of doctors enlisted for
emergency service in an epidemic outbreak charged with
responsibilities and paid by Government cannot be a pile of
offices of profit. If this perspective be correct, Kanta and
Mahadeo fit into a legal scheme. In the former, an ad hoc
Assistant Government Pleader with duties and remuneration
was held to fall outside ’office of profit’. It was a casual
engagement, not exalted to a permanent position, occupied
pro-tempore by A or B. In Mahadeo, a permanent panel of
lawyers ’maintained by the Railway Administration’ with
special duties of a lasting nature constituted the offices
of profit-more like standing counsel. If, in our case, had
there been a fixed panel of doctors with special duties and
discipline, regardless of doctors being there to fill the
positions or no, a different complexion could be discerned-
as in the case of specified number of Government pleaders,
public prosecutors and the like, the offices surviving even
if they remain unfilled. On the other hand, no rigid number
of Insurance Medical Practitioners is required by the rules
or otherwise. If an Insurance Medical Practitioner
withdraws, there is no office sticking out even thereafter
called office of Insurance Medical Practitioner. The
critical test of independent existence of the position
irrespective of the occupant is just not satisfied.
Likewise, it is not possible to conclude that these doctors,
though subject to responsibilities, eligible to remuneration
and liable to removal-all with a governmental savour-cannot
squarely fall under the expression ’Holding under
Government’. Enveloped, though the Insurance Medical Officer
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is, by governmental influence, and working, though he is,
within an official orbit, we are unable to hold that there
is an ’office of profit’ held by him and that he is ’under
government’. This conclusion avoids the evil of public duty
conflicting with private interest and accommodation of more
technical persons in semi-voluntary social projects in an
era of expanding cosmos of State activity.
We hold, not without hesitation, that the appellant
suffered no disqualification on the score of holding office
of profit under government. Is it not a sad reflection on
legislative heedlessness that, notwithstanding forensic
controversy for a long period not a little legislative
finger had been moved to clarify the law and preempt
litigation. Judicial pessimism persuades us not to be
hopeful even after this judgment. The Court and the
Legislature have no medium of inter-communication under our
system. Its desirability was emphasised by Justice Cardozo,
way back in 1921 (when he addressed the Association of the
Bar of the City of New York and proposed an agency to
mediate between the courts and the legislature). In
characteristically beautiful prose he said:
"The Courts are not helped as they could and ought
to be in the adaptation of law to justice. The reason
they are not helped in because there is no one whose
business it is to give warning that help is needed.. We
must have a courier who will carry the tidings of
distress.. Today
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courts and legislature work in separation and
aloofness. The penalty is paid both in the wasted
effort of production and in the lowered quality of the
product. On the one side, the judges, left to fight
against anachronism and injustice by the methods of
judge-made law, are distracted by the conflicting
promptings of justice and logic, of consistency and
mercy, and the output of their labors bears the tokens
of the strain. On the other side, the legislature,
informed only casually and intermittently of the needs
and problems of the courts, without expert or
responsible or disinterested or systematic advice as to
the working of one rule or another, patches the fabric
here and there, and mars often when it would mend.
Legislature and courts move on in proud and silent
isolation. Some agency must be found to mediate between
them."
In the light of the conclusion we have reached, the
other two grounds raised may not strictly arise for
consideration. However, since arguments have been addressed,
we had better briefly express our view. It was argued by
Shri Bhatt that when the ground for invalidation of the
election is a disqualification for membership, the proper
procedure is to invoke s. 44 and not to resort to an
election petition under s. 21. On a close study of the two
provisions in the light of the ruling of this Court in 1953
SCR 1154, we are satisfied that an election petition under
s. 21 is all inclusive and not under inclusive. What we mean
is that even if the invalidation of the election is on the
score of the disqualification under s. 16 it is appropriate
to raise that point under s. 21 which is comprehensive. All
grounds on the strength of which an election can be
demolished can be raised in a proceeding under s. 21. The
language of the provision is wide enough. Maybe that
supervening disqualifications after a person is elected may
attract s. 44, but we are unable to agree that the latter
provision cuts back on the width of the specific section
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devoted to calling in question an election of a councillor
(including the President). We agree in this regard with the
Full Bench decision in Dattatraya(1). Likewise is the fate
of the feeble argument that because there is a provision for
challenging the nomination of a candidate and for appealing
against the decision of the returning officer regarding that
objection, it is not permissible to urge a ground then
available later before the Election Tribunal.
In the present case there was no decision by the
Returning Officer about the nomination paper, and so we are
not confronted by the appellate adjudication by the District
Judge about the validity or otherwise of the nomination and
its resuscitation before the Election Tribunal. In this view
we do not accede to the contention of the appellant based on
s. 44 or rule 15.
The third plea, not aimed at salvaging the poll success
of the appellant but in unseating the respondent who has
been declared elected by the Tribunal also has no merit from
a legal angle although it is unfortunate that in a situation
where there are only two candidates
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and the election of one is set aside by the Tribunal, the
other automatically gets returned, without resort to polls.
Anyway, in the present case, if the appellant’s election
were invalid, there is only a single survivor left in the
field, i.e., the first respondent. Naturally, in any
constituency where there is only one valid nomination, that
nominee gets elected for want of contest.
To conclude, since the appellant is not disqualified,
the appeals are bound to be allowed and we do so, but in the
circumstances, without costs.
In the connected appeal C.A. No. 1270 of 1975 the
consequence is to conform to what we have held above.
Therefore, that appeal is also allowed. The parties will
bear their respective costs through out.
P.B.R. Appeals allowed.
856