Full Judgment Text
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PETITIONER:
PASHUPATI NATH SUKUL & OTHERS.
Vs.
RESPONDENT:
NEM CHANDRA JAIN & OTHERS.
DATE OF JUDGMENT25/11/1983
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
FAZALALI, SYED MURTAZA
REDDY, O. CHINNAPPA (J)
CITATION:
1984 AIR 399 1984 SCR (1) 939
1984 SCC (2) 404 1983 SCALE (2)800
CITATOR INFO :
R 1992 SC1277 (18,62)
ACT:
Constitution of India 1950, Articles 98, 174, 102 (1)
(a), 187, 188, 191 (1) (a), and 193.
The Representation of the people Act 1951 Sections 21,
33, 73 and 152.
Candidate elected as Member of State Legislative
Assembly-Not taking oath as Member-Whether could propose a
candidate for election to Rajya Sabha and entitled to vote
in such election.
Secretary & Joint Secretary of State Legislative
Assembly-Whether ‘an officer of Government’-Appointment as
Returning officer and Assistant Returning Officer in an
election to Rajya Sabha-Validity of.
Words & Phrases-Meaning of:
‘Government’-Constitution of India 1950, Articles 102
(1) (a) and 191 (1) (a) ‘an officer of Government’-The
Representation of the People Act 1951, s, 21.
HEADNOTE:
After the Legislative Assembly of the State was
dissolved by the President elections were held and after the
results were declared the Election Commission issued a
notification containing the names of the members elected for
the constituencies on June 9, 1980. The elected members were
notified that they could take the oath as required by Art.
188 of the Constitution at the session of the Legislative
Assembly which had been summoned to meet on June 27, 1980
and on subsequent days. In the meanwhile, on June 17, 1980
the Election Commission issued a notification calling upon
the elected members of the state Legislative Assembly to
elect a person for the purpose of filling a vacancy in the
Rajya Sabha. For conducting the election the Secretary and
Joint Secretary of the State Legislative Assembly were
appointed respectively as the Returning Officer and the
Assistant Returning officer.
The appellant and respondent No. 1 in Civil Appeal No.
1775 of 1981 were nominated as the candidates at that
election. At the time of scrutiny, respondent No. 1 filed
objections to the nomination of the appellant raising two
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grounds:-(1) that the appellant was disqualified as he was a
Government
940
servant, and (2) that the proposer though an elected member
of the Assembly, was not qualified to propose the
appellant’s candidature as he had not yet taken the oath
under Article 188 of the Constitution.
The appellant contended that as he had retired
voluntarily from Government service he was not disqualified
for being chosen as a member of the Rajya Sabha and that the
proposer being an elected member of the Legislative Assembly
was competent to propose even though he had not taken the
oath as provided in Art. 188. Overruling the objections the
nomination papers of the candidates were accepted. In the
election the appellant was declared elected as a member of
the Rajya Sabha.
Respondent no. 1 therefore filed an election petition.
The High Court set aside the appellant’s election on the
grounds : (1) that as the Secretary of the Legislative
Assembly was neither an officer of the Government nor of a
local authority, he could not be appointed as the Returning
Officer under s.21, and (2) that the proposer of the
nomination paper had not made or subscribed the oath or
affirmation as required by Article 188 of the Constitution
on the date of nomination and consequently there was
improper acceptance of the nomination of the appellant.
The appellant, the Election Commission of India, and
the State preferred Appeals to this Court.
Allowing the Appeals,
^
HELD : 1 (i) The word ‘Government’ in Article 102
(1)(a) and in Article 191 (1)(a) of the Constitution and the
word ‘Government’ in the expression an officer of Government
in section 21 of the Representation of the People Act, 1951
should be interpreted liberally so as to include within its
scope the Legislature, the Executive and the Judiciary. [951
G-H]
(ii) The finding of the High Court that the Secretary
of the State Legislature could not be appointed as the
Returning officer for the election to the Rajya Sabha is
unsustainable. [952 A]
(iii) The expressions ‘Government’ and an officer of
Government’ are not defined in the Constitution or in the
Representation of the People Act 1951. Article 367 of the
Constitution provides that unless the context otherwise
requires, the General Clauses Act, 1897, shall subject to
any adaptations and modifications that may be made therein
under Article 372 apply for the interpretation for the
Constitution. Section 3 (23) of the General Clauses Act,
1897 gives an inclusive definition of ‘Government’ and
suggests that there may be other organs of State which may
be included within the meaning of expression ‘Government’,
The expressions ‘Central Government’ and ‘State Government’
are defined in section 3 (8) and section 3 (60). A general
review of the constitutional provisions shows various
expressions used in it to describe the several organs of the
State. In Part I the expressions ‘the Union’‘the States’ and
‘the Union Territories’ are used. In Article 12 the
expressions ‘Government and
941
Parliament of India’ and ’Government and the Legislature of
each of the States’ are found suggesting that Government is
different from the Union Legislature or the Legislatures of
the States. This is for purposes of Part III. In Article 102
(1) (a) and Article 191 (1) (a) the expression ’the
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Government of India’ and ’Government of any state’ are used
and they provide that a person holding an office of profit
under the Government of India or a State Government is
disqualified for being chosen as a member of Parliament or
of a State Legislature respectively. Article 98 and Article
187 provide for appointment of separate secretariat staff of
each House of Parliament and of the State Legislatures
respectively. [947 C-H; 948 A]
(iv) After the commencement of the Constitution, the
Secretaries of the State Legislatures almost as a matter of
rule were being appointed as Returning Officers for election
to the Rajya Sabha and for election to the Legislative
Councils of States, and Parliament had not thought it fit to
amend suitably, section 21 expressly including the officers
of the State Legislatures amongst the persons qualified to
be appointed as Returning officers even though it had been
amended once by specifically including officers of local
authorities. Parliament all along had treated the
Secretaries of the State Legislatures as officers of
Government for purposes of section 21, and had found it
convenient to do so [951 C-E]
(v) Even though Article 98 and Article 187 contemplate
the establishment of a separate secretariat staff for each
House of Parliament and the State Legislature respectively,
the salaries and allowances of the members of that staff are
paid out of the Consolidated Fund of India or of the State,
as the case may be after they are voted by the House or
Houses concerned. Their appointment and other conditions of
service are regulated by Rules made by the President or the
Governor, as the case may be, until an appropriate law is
made by Parliament or the State Legislature. [951 F-G]
(vi) In our Constitution, which has a federal structure
there are both at the level of the Union and at the level of
the State detailed provisions pertaining to the Legislature,
the Executive and the Judiciary. All the three organs are
concerned with the governance of the country the first makes
the laws, second enforces them and the third interprets
them. Sometimes their functions may be overlapping. All the
three organs together constitute the Government at their
respective level. [950 B-C]
(vii) The President is a part of the Parliament under
Article 79 of the Constitution. The executive power of the
Union is vested in him under Article 53(1). At the level of
the State the position is analogous. The Governor is a part
of the Legislature of the State under Article 168 (1). The
Executive power of the State is vested in him under Article
154 (1) and he is consulted in the appointments of the
judges of the High Court. While under Article 235 the High
Court is vested with the control over the subordinate
Judiciary of the State, in the case of dismissal or removal
of a judicial officer in the Subordinate Judiciary, the
Governor has to issue the order though on the recommendation
made by the High Court. A study of these provisions shows
that there is no water-tight compartment between the three
major organs of the State. The Comptroller and Auditor
General of India though he is assigned an independent status
is an officer under the Union Government. The Judges of the
Supreme Court and of
942
a High Court are not servants of Government but hold a
constitutional office. But the Comptroller and Auditor-
General of India and the Judges of the Supreme Court and of
a High Court are not eligible to contest elections to
Parliament and the State Legislatures in view of Article 102
(1) (a) and Article 191 (1) (a) because they are serving in
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connection with the affairs of the Union and are therefore,
holding offices of profit under the Central Government. [950
C-H; 591 A-B]
Pradyat Kumar Bose v. The Hon’ble the Chief Justice of
Calcutta High Court [1955] 2 S. C. R. 1331; Gurugobinda Basu
v. Sankari Prasad Ghosal & Ors. [1964] 4 S. C. R. 311; Union
of India v. Sankal Chand Himatlal Sheth & Anr [1978] I. S.
C. R. 423; & Hargovind Pant v. Dr.Raghukul Tilak & Ors.
[1979] 3 S. C. R.972 referred to.
(viii) The position of a person who works as an officer
of the Legislature of a State is also the same. Even though
he belongs under Article 187 to the staff of the State
Legislature, he is still an officer of Government in the
broad sense in which the expression ’Government is used in
Article 102 (1) (a) and Article 191 (1)(a). If the
expression ’Government used is construed as meaning the
Executive Government only, then it would defeat the very
purpose of these provisions. Similarly he has to be treated
as an officer of Government for purposes of section 21 of
the Act also qualified for being appointed as the Returning
officer for an election held under the Act. [951 A-C]
2(1) This is not a case where general elections to the
Legislative Assembly had been held before the normal tenure
of the existing Legislative Assembly was over. The previous
Legislative Assembly having been dissolved in February 1980,
on the publication of the notification containing the names
of the elected members of the Legislative Assembly on June
9,1980 under Section 73, the Assembly was deemed to be duly
constituted. [953 D; 954 D]
(ii) An elected member who has not taken ’oath’ but
whose name appears in the notification published under s. 73
of the Act can take part in all non-legislative activities
of an elected member. The right of voting at an election to
the Rajya Sabha can also be exercised by him. [957 G]
In the instant case the name of the proposer had been
included before the date on which he proposed the name of
the appellant as a candidate in the notification published
under sec. 73 of the Act and in the electoral roll
maintained under section 152. There is therefore no
infirmity in the nomination. [957 H; 958 A]
(iii) The words ’sitting and voting’ in Article 193 of
the Constitution imply the summoning of the house under
Article 174 of the Constitution by the Governor to meet at
such time and place as he thinks fit and the holding of the
meeting of the House pursuant to the said summons or an
adjourned meeting. An elected member incurs the penalty for
contravening Article 193 of the Constitution only when he
sits and votes at such a meeting of the House. Invariably
there is an interval of time between the constitution of a
house after a general election, and the summoning of the
first meeting of the House. During that
943
interval an elected member of the Assembly whose name
appears in the notification issued under section 73 of the
Act is entitled to all the privileges, salaries and
allowances of a member of the Legislative Assembly, one of
them being the right to function as an elector at an
election held for filling a seat in the Rajya Sabha. [955 B-
D]
(iv) The election for filling a seat in the Rajya Sabha
does not from a part of the Legislative proceedings of the
House carried on at its meeting. Nor the vote cast at such
an election is a vote given in the House on any issue
arising before the House. The speaker has no control over
the election. The election is held by the Returning Officer
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appointed for the purpose. All the steps taken in the course
of the election fall outside the proceedings that take place
at a meeting of the House. [955 E-F; 956 B]
Bhupendra Nath Basu v. Ranjit Singh, I. L. R. 41 Cal.
384, approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1775
1975 (E), 2736 (E) of 1981.
From the Judgment and Order dated the 10th July, 1981
of the Allahabad High Court (Lucknow Bench) in Election
Petition No. 7 of 1980.
M. C. Bhandare, T. Sridharan, Ms. S. Bhandare and Ms.
Sucharita for the Appellant in CA. 1775/81.
Dr. Y. S. Chitale and Ms. A. Subhashini for the
Appellant in CA. No. 1975 of 1981.
Mrs. S. Dixit for the Appellant in CA. 2736 of 1981.
Hari Shankar Jain and Mr. K.K. Gupta, for the
Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, I. At the conclusion of the hearing of
the above appeals on November 16, 1983, we pronounced the
following order:
"Heard counsel for the parties. The appeals are
allowed and the order of the High Court is set aside
without any order as to costs."
We now give our reasons.
944
Two questions arise for consideration in these three
appeals which are filed against the judgment and order dated
July 10, 1981 of the High Court of Allahabad in Election
Petition No. 7 of 1980. They are:
1. Whether the Secretary of a State Legislative
Assembly is not qualified to be appointed as the
Returning Officer at an election held to fill a seat in
the Rajya Sabha ?
2. Whether a person elected as a member of a
Legislative Assembly but who has not made and
subscribed the prescribed oath or affirmation as
required by Article 188 of the Constitution can validly
propose a person as a candidate at an election held for
filling a seat in the Rajya Sabha ?
In February, 1980 the Legislative Assembly or the State
of Uttar Pradesh was dissolved by the President by issuing a
notification under Article 356 of the Constitution. A
notification was issued by the Governor of Uttar Pradesh
under section 15 (2) of the Representation of the People
Act, 1951 (hereinafter referred to as ’the Act’) in April,
1980 calling upon all the Assembly constituencies in Uttar
Pradesh to elect members to the Legislative Assembly. After
the results of the elections in all the constituencies held
pursuant to the said notification were declared, the
Election Commission of India issued a notification
containing the names of the members elected for the said
constituencies as required by section 73 of the Act on June
9, 1980. The elected members were notified that they could
take the oath as required by Article 188 of the Constitution
at the session of the Legislative Assembly which had been
summoned to meet on June 27, 1980 and on subsequent days. In
the meanwhile on June 17, 1980, the Election Commission
issued a notification calling upon the elected members of
the Uttar Pradesh Legislative Assembly to elect a person for
the purpose of filling a vacancy in the Rajya Sabha. By that
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notification, the Election Commission fixed the following
programme for the purpose of the said election:
(a) 24.6.1980 - as the last date for making
nomination.
(b) 25.6.1980 - as the date for scrutiny of the
nomination papers
(c) 27.6.1980 - as the last date for withdrawal of
candidature.
945
(d) 4.7.1980 - as the date on which a poll, if
necessary, would be taken.
(e) 7.7.1980 - as the date before which the
election had to be completed.
Shri S. P. Singh, Secretary of the Uttar Pradesh
Legislative Assembly was appointed as the Returning Officer
and Shri Uma Shankar, Joint Secretary as the Assistant
Returning Officer for conducting the aforesaid election.
Pashupati Nath Sukul, the appellant in Civil Appeal No.
1775 of 1981 (hereinafter referred to as ’the appellant’)
and Nem Chandra Jain, respondent No. 1 were nominated as the
candidates at that election. At the time of scrutiny,
respondent No. 1 filed objections to the nomination of the
appellant raising two grounds-(1) that the appellant was
disqualified as he was a Government servant and (2) that the
proposer of the candidature of the appellant was not
qualified to propose his candidature as he had not yet taken
the oath as required by Article 188 of the Constitution. The
appellant pleaded that as he had retired voluntarily from
the Government service he was not disqualified for being
chosen as a member of the Rajya Sabha and that the proposer
of his candidature was an elected member of the Legislative
Assembly who was competent to make the proposal even though
he had not taken the oath as provided in Article 188 of the
Constitution. The Objections of respondent No. 1 were
overruled and the nomination papers of both the appellant
and respondent No. 1 were accepted by the Returning Officer.
At the poll which took place on July 4, 1980 the appellant
secured 325 votes and respondent No. 1 got 41 votes.
Accordingly the appellant was declared to be elected as a
member of the Rajya Sabha. Aggrieved by the result of the
election. respondent No. 1 filed an election petition before
the High Court calling in question the result of the
election on various grounds and of them we are now concerned
with two grounds only and they are (1) that as the Secretary
of the Legislative Assembly was neither an officer of the
Government nor of a local authority, he could not be
appointed as the Returning Officer under section 21 of the
Act and (2) that as the proposer of the nomination paper of
the appellant had not made or subscribed the oath or
affirmation as required by Article 188 of the Constitution
on the date of the nomination, there was improper acceptance
of the nomination of the appellant. The appellant, the
Election Commission of India, the State of Uttar Pradesh and
Shri S. P.
946
Singh, the Returning Officer were impleaded as respondents
to the election petition. The name of the Governor of Uttar
Pradesh who had also been impleaded as a respondent was
deleted by the order of the High Court. The petition was
contested by the appellant and others who had been impleaded
as respondents in the election petition. At the conclusion
of the trial, the High Court set aside the election of the
appellant on the following grounds viz. that Shri S. P.
Singh, Secretary, Legislative Assembly was not qualified to
be appointed as the Returning Officer; that the proposal of
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the candidature of the appellant by a member of the
Legislative Assembly who had not made and subscribed the
oath or affirmation as required by Article 188 of the
Constitution on the date of nomination was illegal and hence
there was improper acceptance of the nomination of the
appellant and that there was no valid electoral roll in
force on the date of nomination. Aggrieved by the judgment
of the High Court, the appellant has preferred Civil Appeal
No. 1775 of 1981, the Election Commission of India has filed
Civil Appeal No. 1975 (E) of 1981 and the State of Uttar
Pradesh has preferred Civil Appeal No. 2736 (E) of 1981. All
these three appeals are disposed of by this common judgment.
We shall first deal with the question whether the
Secretary of the Legislative Assembly was not qualified to
be appointed as the Returning Officer for the election.
Section 21 of the Act which deals with the appointment of
Returning Officers reads thus:
"21. Returning Officers-For every constituency,
for every election to fill a seat or seats in the
Council of States and for every election by the members
of the Legislative Assembly of a State to fill a seat
or seats in the Legislative Council of the State, the
Election Commission shall, in consultation with the
Government of the State, designate or nominate a
returning officer who shall be an officer of Government
or of a local authority:
Provided that nothing in this section shall
prevent the Election Commission from designating or
nominating the same person to be the returning officer
for more than one constituency."
(Emphasis added).
947
The contention of respondent No. 1 which has been
accepted by the High Court is that the Secretary of the
Legislative Assembly being not an officer of Government or
of a local authority he was not qualified to be appointed as
the Returning Officer. The argument is that ’Government’ in
the expression ’an officer of Government’ used in section 21
of the Act means the Executive only and an officer of the
Legislature is not, therefore, an officer of Government.
This case is an illustration of some legal problems
solutions for which appear to be quite obvious but when an
attempt is made to give reasons for such solutions one would
be confronted with many difficulties though not
insurmountable. The expressions ’Government’ and ’an officer
of Government’ are not defined in the Constitution or in the
Act. Article 367 of the Constitution provides that unless
the context otherwise requires, the General Clauses Act,
1897, shall, subject to any adaptations and modifications
that may be made therein under Article 372 of the
Constitution, apply for the interpretation of the
Constitution as it applies for the interpretation of an Act
of the Legislature of the Dominion of India. Section 3(23)
of the General Clauses Act, 1897 defines ’Government’ as
follows:
"3(23) ’Government’ or ’the Government’ shall
include both the Central Government and any State
Government."
The above definition is an inclusive definition and it
suggests that there may be other organs of State which may
be included within the meaning of the expression
’Government’. The expressions ’Central Government’ and
’State Government’ are defined in section 3(8) and section
3(60) of the General Clauses Act, 1897 respectively. These
definitions are to be adopted unless there is anything in
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the context to the contrary. A general review of the
constitutional provisions shows various expressions used in
it to describe the several organs of the State. In Part I of
the Constitution the expressions ’the Union’. ’the States’
and ’the Union Territories’ are used. In Article 12 of the
Constitution, we find the expressions ’Government and
Parliament of India’ and ’Government and the Legislature of
each of the States’ suggesting that Government is different
from the Union Legislature or the Legislatures of the
States. This is for purposes of Part III of the
Constitution. In Article 102(1)(a) and Article 191(1)(a) of
the Constitution, the expressions ’the Government of India’
and ’the Government of any State’ are used and they provide
that a person holding an office of profit under the
948
Government of India or a State Government is disqualified
for being chosen as a member of Parliament or of a State
Legislature respectively. Article 98 and Article 187 of the
Constitution provide for the appointment of separate
secretariat staff of each House of Parliament and of the
State Legislatures respectively. Article 146 and Article 229
of the Constitution respectively deal with the appointment
of officers and servants of the Supreme Court and of the
High Courts. Article 148(5) and Article 318 of the
Constitution respectively deal with the conditions of
service etc. of the employees working in the office of the
Comptroller and Auditor-General of India and the Public
Service Commissions. Part XIV of the Constitution contains
provisions relating to the services under the Union
Government and the State Governments. It contains Article
311 which guarantees certain rights which cannot be denied
to the employees in the Legislature and in the Judiciary.
Dealing with the nature of the office held by the officers
working in the High Court, who are governed by Article 229
of the Constitution this Court has observed in Pradyat Kumar
Bose v. The Hon’ble the Chief Justice of Calcutta High
Court(1) thus:
"A close scrutiny of the terminology so used shows
a marked departure in the language of article 320(3)(c)
from that in articles 310 and 311. Officers and members
of the staff attached to a High Court clearly fall
within the scope of the phrase "persons appointed to
public services and posts in connection with the
affairs of the State" and also of the phrase "a person
who is a member of a civil service of a State" as used
in articles 310 and 311. The salaries of these persons
are paid out of the State funds as appears from article
229(3) which provides that the administrative expenses
of a High Court including all salaries, allowances and
pensions payable to or in respect of officers and
servants of the High Court, are chargeable upon the
Consolidated Fund of a State. The item relating to such
administrative expenses has to from part of the annual
financial statement to be presented to the State
Legislative Assembly under article 202 and estimates
thereof can form the subject matter of the discussion
in the Legislature under article 203(1). They must,
therefore, be taken "to hold posts in connection with
the affairs of the State and to be members of the civil
service of the State".
949
Entry 5 of List II of the Seventh Schedule to the
Constitution relates to ’Local Government’ that is to say,
the constitution and powers of municipal corporations,
improvement trusts, district boards, mining settlement
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authorities and other local authorities for the purpose of
local self-government or village administration. In each of
these cases it becomes necessary to examine the relevant
provisions of law applicable to it in order to determine
whether the officers and staff of the various organs are
officers of Government or not. Before taking up such
examination the meaning of the expression ’Government’ has
to be ascertained.
A student of International Law understands by the
expression ’State’ as a fully sovereign independent
community residing in a specified territory with a legal
capacity to enter into international relations and having
the power to fulfil the obligations which the international
law imposes on the family of nations. It should also have
been admitted or recognised as a State on a footing of
equality with other States. A State implies the existence of
a community or group of people occupying a geographical area
or territory in which they permanently reside possessing
internal sovereignty and independence of foreign control and
a political organisation or agency through which the
collective will of the people is expressed and enforced. The
last of the elements of a State referred to above is
generally called as a Government. A student of Political
Theory and Comparative Politics may describe a Government as
a monarchical, republican, democratic or dictatorial
depending upon its peculiar features. It may be federal or
unitary. A political philosopher may describe a Government
as imperial, colonial, capitalist or socialist. The above
list is not really exhaustive. But these are only different
forms of Government and Government’ here is used in a very
broad sense. From the legal point of view, Government may be
described as the exercise of certain powers and the
performance of certain duties by public authorities or
officers, together with certain private persons or
corporations exercising public functions. The structure of
the machinery of Government and the regulation of the powers
and duties which belong to the different parts of this
structure are defined by the law which also prescribes to
some extent the mode in which these powers are to be
exercised or these duties are to be performed (See
Halsbury’s Laws of England, Fourth Edition, Vol. 8, Para
804). Government generally connotes three estates, namely,
the Legislature, the Executive and the Judiciary while it is
true that in a narrow sense it is used to connote the
Executive only. The meaning to be assigned
950
to that expression, therefore, depends on the context in
which it is used.
In our Constitution, which has a federal structure,
there are both at the level of the Union and at the level of
the States detailed provisions, pertaining to the
Legislature, the Executive and the Judiciary. All the three
organs are concerned with the governance of the country one
organ makes the laws, the second enforces them and the third
interprets them though sometimes their functions may be
overlapping. In this sense all the three organs together
constitute the Government at their respective level. It is
significant that the President is a part of parliament under
Article 79 of the Constitution, the executive power of the
Union is vested in him under Article 53 (1) of the
Constitution and he appoints Judges of the Supreme Court
under Article 124 (2) and he can issue an order removing a
Judge of the Supreme Court under Article 124 (4) of the
Constitution, of course, subject to the limitations
contained therein. At the level of the State too the
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position is analogous to the position at the level of the
Union. The Governor is a part of the Legislature of the
State under Article 168(1) of the Constitution. The
executive power of the State is vested in him under Article
154(1) and he is consulted in the appointment of judges of
the High Court. While under Article 235 of the Constitution,
the High Court is vested with the control over the
Subordinate Judiciary of the State, in the case of dismissal
or removal of a judicial officer in the Subordinate
Judiciary of the Governor has to issue the order though on
the recommendation made by the High Court. A study of these
provisions shows that there is no water tight compartment
between the three major organs of the State. The Comptroller
and Auditor-General of India though he is assigned an
independent status is an officer under the Union Government.
(See Gurugobinda Basu v. Sankari Prasad Ghosal & Ors.) The
Judges of the Supreme Court and of a High Court are not
servants of Government but hold a constitutional office
(vide Union of India v. Sankal Chand Himatlal Sheth &
Anr.(2) and Hargovind Pant v. Dr. Raghukul Tilak & Ors.(3)
But the Comptroller and Auditor-General of India and the
Judges of the Supreme Court and of a High Court are not
eligible to contest elections to Parliament and the State
Legislatures in view of Article 102(1)(a) and Article
191(1)(a) of the Constitution, as the case may
951
be, because they are serving in connection with the affairs
of the Union (See Article 360(4)(b) of the Constitution) and
are, therefore, holding offices of profit under the Central
Government. The position of a person who works as an officer
of the Legislature of a State is also the same. Even though
he belongs under Article 187 of the Constitution to the
staff of the State Legislature, he is still an officer of
Government in the broad sense in which the expression
’Government’ is used in Article 102(1)(a) and Article
191(1)(a) of the Constitution. If the expression
’Government’ used here is construed as meaning the Executive
Government only, then it would defeat the very purpose of
these provisions of the Constitution. Similarly he has to be
treated as an officer of Government for purposes of section
21 of the Act also qualified for being appointed as the
Returning Officer for an election held under the Act. It is
not disputed that after the commencement of the
Constitution, the Secretaries of the State Legislatures
almost as a matter of rule are being appointed as Returning
Officers for election to the Rajya Sabha and for election to
the Legislative Councils of States and Parliament has not
thought it fit to amend suitably, section 21 of the Act
expressly including the officers of the State Legislatures
amongst the persons qualified to be appointed as Returning
Officers even though it has amended that section once by
specifically including officers of local authorities.
Parliament all along has treated the Secretaries of the
State Legislatures as officers of Government for purposes
section 21 and has found it convenient to do so having
regard to the nature of the work to be carried out by them.
It may be noted that even though Article 98 and Article 187
of the Constitution contemplate the establishment of a
separate secretariat staff for each House of Parliament and
of the State Legislature respectively, the salaries and
allowances of the members of that staff are paid out of the
Consolidated Fund of India or of the State, as the case may
be after they are voted by the House or Houses concerned.
Their appointment and other conditions of service are
regulated by Rules made by the President or the Governor, as
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the case may be, until appropriate law is made by Parliament
or the State Legislature, as the case may be. We are of the
view that the word ’Government’ Article 102(1)(a) and in
Article 191(1)(a) of the Constitution and the word
’Government’ in the expression ’an officer of Government’ in
section 21 of the Act should be interpreted liberally so as
to include within its scope the Legislature, the Executive
and the Judiciary. The High Court erred in equating the word
’Government’ occurring in section 21 of the Act to the
Executive Government only and in further holding that the
officers of the
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State Legislature could not be treated as officers of
Government for purposes of that section. The finding of the
High Court that the Secretary of the Uttar Pradesh State
Legislature could not be appointed as the Returning Officer
for the election to the Rajya Shaba is, therefore,
unsustainable.
The second question to be considered is whether the
nomination of the appellant was liable to be rejected on the
ground that the proposer was not eligible to nominate a
candidate as he had not made and subscribed the oath or
affirmation as prescribed by Article 188 of the
Constitution.
Section 33 of the Act prescribes the requirements for a
valid nomination. It provides that the nomination paper
should be completed in the prescribed form and signed by the
candidate and by an elector of the constituency as proposer.
Clauses (d) and (e) of section 2(1) of the Act define the
words ’election’ and ’elector’ respectively. ’Election’
means an election to fill a seat or seats in either House of
Parliament or in the House or either House of the
Legislature of a State other than the State of Jammu and
Kashmir. ’Elector’ in relation to a constituency means a
person whose name is entered in the electoral roll of that
constituency for the time being in force and who is not
subject to any of the disqualifications mentioned in section
16 of the Representation of the People Act, 1950 (43 of
1950). Sub-clause (b) of clause (1) of Article 80 of the
Constitution states that the Council of States (the Rajya
Sabha) shall in addition to twelve members nominated by the
President under sub-clause (a) thereof consist of not more
than two hundred and thirtyeight representatives of the
States and of the Union territories. Clause (2) of Article
80 of the Constitution provides that the allocation of seats
in the Council of States to be filled by representatives of
the States and of the Union territories shall be in
accordance with the provisions in that behalf contained in
the Fourth Schedule to the Constitution. Clause (4) of
Article 80 provides that the representatives of each State
in Council of States shall be elected by the elected members
of the Legislative Assembly of the State in accordance with
the system of proportional representation by means of the
single transferable vote. Section 152 of the Act provides
that the Returning Officer for on election by the elected
members of the Legislative Assembly of a State to fill a
seat or seats in the Council of States shall for the
purposes of such election maintain in his office in the
prescribed manner and from a list of elected members of that
Legislative Assembly. Clause (c) of sub-rule (1) of Rule 2
of the
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Conduct of Elections Rules, 1961 defines "election by
assembly members" as an election to the Council of States by
the elected members of the Legislative Assembly of a State
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or by the members of the electoral college of a Union
territory or an election to the Legislative Council of a
State by the members of the Legislative Assembly of a State.
Elector’ is defined by clause (d) of sub-rule (1) of Rule 2
of the said Rules, in relation to an election by Assembly
members as any person entitled to vote at that election.
In the present case, the notification containing the
names of elected members of the Uttar Pradesh Legislative
Assembly who participated at the election in question had
been published under section 73 of the Act on June 9, 1980
and that the previous Legislative Assembly had been
dissolved earlier in February, 1980. This is not a case
where general elections to the Legislative Assembly had been
held before the normal tenure of the existing Legislative
Assembly was over. Section 73 of the Act which prescribes
the publication of results of general elections reads thus:
"73, Publication of results of general elections
to the House of the People and the State Legislative
Assemblies,-Where a general election is held for the
purpose of constituting a new House of the People or a
new State Legislative Assembly, there shall be notified
by the Election Commission in the Official Gazette as
soon as may be after the results of the elections in
all the constituencies (other than those in which the
poll could not be taken for any reason on the date
originally fixed under clause (d) of section 30 or for
which the time for completion of the election has been
extended under the provisions of section 153), have
been declared by the returning officer under the
provisions of section 53 or, as the case may be,
section 66, the names of the members elected for those
constituencies and upon the issue of such notification
that House or Assembly shall be deemed to be duly
constituted:
Provided that the issue of such notification shall
not be deemed-
(a) to preclude-
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(i) The taking of the poll and the completion
of the election in any Parliamentary or Assembly
constituency or constituencies in which the poll
could not be taken for any reason on the date
originally fixed under clause (d) of section 30;
or
(ii) the completion of the election in any
Parliamentary or Assembly constituency or
constituencies for which time has been extended
under the provisions of section 53; or
(b) to affect the duration of the House of the
People or the State Legislative Assembly, if any,
functioning immediately before the issue of the said
notification." (emphasis added)
On the publication of the notification on June 9, 1980
under section 73 of the Act in the instant case, the
Assembly was deemed to be duly constituted. Article 188 of
the Constitution prescribes the oath to be taken or the
affirmation to be made by every member of a Legislative
Assembly or a Legislative Council. It reads:
"188. Every member of the Legislative Assembly or
the Legislative Council of a State shall, before taking
his seat, make and subscribe before the Governor, or
some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the
purpose in the Third Schedule."
Article 191 of the Constitution prescribes the
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disqualifications for membership of the Legislative Assembly
or Legislative Council of a State. On the incurring of any
such disqualification a member of a Legislative Assembly or
a Legislative Council ceases to be a member thereof. Article
193 of the Constitution provides for the penalty for sitting
and voting before making oath or affirmation under Article
188 of the Constitution or when not qualified or when
disqualified the penalty being in respect of each day five
hundred rupees to be recovered as a debt due to the State.
It does not say that if an elected member of a Legislative
Assembly sits and votes before taking oath as prescribed by
Article 188 of the Constitution he shall automatically cease
to be a member of the House, even though it is possible that
his seat maybe declared as vacant under Article 190(4)
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of the Constitution if for sixty days he is absent from all
meetings of the House without its permission. Now the
question is whether the making of oath or affirmation is a
condition precedent for being eligible to act as a proposer
of a valid nomination for election to the Rajya Sabha. The
rule contained in Article 193 of the Constitution, as stated
earlier, is that a member elected to a Legislative Assembly
cannot sit and vote in the House before making oath or
affirmation. The words ‘sitting and voting’ in Article 193
of the Constitution imply the summoning of the House under
Article 174 of the Constitution by the Governor to meet at
such time and place as he thinks fit and the holding of the
meeting of the House pursuant to the said summons or an
adjourned meeting. An elected member incurs the penalty for
contravening Article 193 of the Constitution only when he
sits and votes at such a meeting of the House. Invariably
there is an interval of time between the constitution of a
House after a general election as provided by section 73 of
the Act and the summoning of the first meeting of the House.
During that interval an elected member of the Assembly whose
name appears in the notification issued under section 73 of
the Act is entitled to all the privileges, salaries and
allowances of a member of the Legislative Assembly, one of
them being the right to function as an elector at an
election held for filling a seat in the Rajya Sahha. That is
the effect of section 73 of the Act which says that on the
publication of the notification under it the House shall be
deemed to have been constituted. The election in question
does not form a part of the Legislative proceedings of the
House carried on at its meeting. Nor the votes cast at such
an election is a vote given in the House on any issue
arising before the House. The Speaker has no control over
the election. The election is held by the Returning Officer
appointed for the purpose. As mentioned earlier, under
section 33 of the Act the nomination paper has to be
presented to the Returning Officer between the hours of
eleven o’clock in the forenoon and three o’clock in the
afternoon before the last day notified for making
nominations under section 30 of the Act. Then all further
steps such as scrutiny of nominations and withdrawal of
nominations take place before the Returning Officer. Rule 69
of the Conduct of Elections Rules, 1961 provides that at an
election by Assembly members where a poll becomes necessary,
the Returning Officer for such election shall, as soon as
may be after the last date for the withdrawal of
candidatures, send to each elector a notice informing him of
the date, time and place fixed for polling. Part VI of the
Conduct of Elections Rules, 1961 which contains Rule 69 and
Part VII thereof deal with the procedure to be followed at
an election
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956
by assembly members. Rule 85 of the Conduct of Elections
Rules, 1961 provides that as soon as may be after a
candidate has been declared to be elected, the returning
officer shall grant to such candidate a certificate of
election in Form 24 and obtain from the candidate an
acknowledgement of its receipt duly signed by him and
immediately send the acknowledgement by registered post to
the Secretary of the Council of States or as the case may
be, the Secretary of the Legislative Council. All the steps
taken in the course of the election thus fall outside the
proceedings that take place at a meeting of the House.
We may here refer to the decision of the Calcutta High
Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts
of that case were these. An election was held on February
14, 1913 to the Legislative Council of the Governor-General
from the constituency consisting of the non-official
additional members of the Bengal Legislative Council each
having two votes to fill two seats in the Legislative
Council of the Governor-General. There were at that time
thirty four non-official additional members but two of them
had not taken the oath of allegiance at the time of the
election as prescribed by the Bengal Council Regulation VII.
At the election there were four candidates-the plaintiff
Bhupendra Nath Basu, the Ist defendant Maharaja Ranjit
Singh, the 2nd defendant Surendra Nath Banerjee and Nawab
Badruddin Haidar. As a result of the poll the second
defendant got 22 votes, the first defendant got 18 votes,
the plaintiff 17 and Nawab Badruddin Haidar 11 votes.
Accordingly defendants 1 and 2 were declared elected to fill
the two seats. The plaintiff after being unsuccessful in his
petition to the Governor-General filed a suit before the
High Court questioning the validity of the election. He
prayed that the votes should be recounted after excluding
the votes cast by the two members who had not taken the oath
of allegiance. Regulation VII referred to above provided
that every person elected nominated under the regulations
should before taking his seat at a meeting of the Council
make an oath or affirmation of his allegiance to the Crown
and Regulation VIII provided that if such a person "fails to
make the oath or affirmation prescribed by Regulation VII
within such time as the Governor-in-Council may consider
reasonable, the Governor, shall by notification in the local
Official Gazette declare the election or nomination to be
void or his seat to be vacate". Such a declaration had not
been made on the date of the election.
957
The contention of the plaintiff was rejected by the High
Court in the following terms:
"Moreover, I am not satisfied that the view of the
Government as to the taking of the oath of allegiance
is not a correct one. Doubtless the English cases that
were referred to, the case of the Mayor of Penryn (1
Strange 582) and The King v. Swyer (1830) 10 B. & C.
486) have decided that a person is admitted to a public
office, which requires the oath of allegiance, only
when the oath of allegiance is taken. That does not get
rid of the difficulty that arises from these
Regulations. These Regulations constitute an electoral
College of elected members of the Local Council to
elect two persons to be members of the Council of His
Excellency the Governor-General. I am not satisfied on
the Regulations that the learned Advocate-General has
called my attention to, that when the electors have the
right of giving their votes by means of registered
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letter, for the purpose of being members of electoral
college and for that purpose only, that the mere fact
of election to the local Council was not sufficient to
constitute a person so elected a member of the
electoral college. It is only for the purpose of
exercising the legislative functions conferred by the
Regulations and by the Act that the oath of allegiance
is required. Moreover, as the Advocate-General has
pointed out, the mere fact of omission to take an oath
of allegiance does not ipso facto cause a member to
vacate his seat; under Regulation VIII of the Bengal
Council Regulations, the discretion is given to the
Governor as to his declaring a seat to be vacant if the
person elected fails to take an oath of allegiance. In
my opinion, in this case the Rule fails and must be
discharged, and discharged with costs.
We are of the view that an elected member who has not
taken oath but whose name appears in the notification
published under section 73 of the Act can take part in all
non-legislative activities of an elected member. The right
of voting at an election to the Rajya Sabha can also be
exercised by him. In this case since it is not disputed that
the name of the proposer had been included before the date
on which he proposed the name of the appellant as a
candidate in the notification published under section 73 of
the Act
958
and in the electoral roll maintained under section 152 of
the Act, it should be held that there was no infirmity in
the nomination. For the same reason even the electoral roll
which contained the names of elected members appearing in
the notification issued under section 73 of the Act cannot
be held to be illegal. That is how even respondent No. 1
appears to have understood the true legal position as he was
also proposed as a candidate by an elector who had not yet
made the oath or affirmation. The second contention also
fails. No other contention was pressed before us. We are
therefore, of the view that the findings recorded by the
High Court on the basis of which the election of the
appellant to the Rajya Sabha was set aside are erroneous.
In the result we allow the above appeals, set aside the
judgment of the High Court and dismiss the election petition
filled by respondent No. 1. Having regard to the novelty of
the question raised in this case the parties are directed to
bear their own costs throughout.
N.V.K. Appeals allowed.
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