Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18
PETITIONER:
BIHARILAL DOBRAY.
Vs.
RESPONDENT:
ROSHAN LAL DOBRAY.
DATE OF JUDGMENT23/11/1983
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
FAZALALI, SYED MURTAZA
CITATION:
1984 AIR 385 1984 SCR (1) 877
1984 SCC (1) 551 1983 SCALE (2)761
CITATOR INFO :
R 1985 SC 211 (19)
R 1988 SC1369 (15)
D 1992 SC1959 (12,14,18,21)
ACT:
Constitution of India 1950, Article 191(I)(a):
’office of profit’-Holding of-What is-Tests for
determination.
Teacher in a Basic Primary School run by the State
Board of Basic Education constituted under a statute -
Whether holder of office of profit’- Whether disqualified
under Article 191(1)(a).
Statutory. Corporations:
Incorporation of a body corporate by statute-Tests to
determine whether it is independent of the Government.
Words & Phrases.
’office of profit’-Meaning of-Article 191(1)(a)
Constitution of India.
HEADNOTE:
In the election to a seat in a Legislative Assembly
Constituency the nomination paper of the respondent who was
an Assistant Teacher in a Basic Primary School run by the
State Board of Education was rejected by the Returning
officer on the ground that he was holding an office of
profit under the State Government’, and he was therefore
disqualified under Article 191(1)(a) of the Constitution,
for being chosen as a member of the Legislative Assembly. In
the election tho appellant was declared elected.
In his Election Petition, the respondent contended that
since the post of Assistant Teacher In a Basic Primary
School which he was holding was not an ’office of profit
under the State Government’, the rejection of his nomination
was improper and therefore the election was liable to be
declared as void. The High Court allowed the Election
Petition holding that the post held by the respondent was
not an office of the profit under the State Government’. It
declared the election as void by reason of the improper
rejection of the respondent’s nomination paper.
Allowing the appeal to this Court,
878
^
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18
HELD: 1 The respondent was holding an ’office of profit
under the Slate Government’ and his nomination was rightly
rejected by the officer. [901 A]
In the instant case, the respondent was holding the
post of Assistant Teacher in a Basic Primary School on the
date of his nomination as a candidate at the election and
was in receipt of the salary attached to that post. The
Institution wherein he was employed was being run and
managed by the Zila Parishad and the respondent was
therefore an employee of the Zila Parishad on the
promulgation of the U.P. Ordinance No. 14 of 1972 which was
replaced by the U.P. Basic Education Act, 1972 he became an
employee of the Board under section 9(1) of the Act which
provided for the transfer of employees of local bodies to
the Board. The State Government under section 19 framed the
Uttar Pradesh Basic Educational Staff Rules, 1973 which were
applicable to all the employees of the Board. The appointing
authority in respect of Assistant Teachers was the District
Basic Education officer, who was an officer appointed by the
State Government. The Schedule to the Rules prescribed the
appointing authorities and the appellate authorities in
respect of different posts in the Board. The Rules provided
for the procedure to be followed in disciplinary proceeding
and the punishment that may be imposed when an employee Was
found guilty of any act of misconduct. The procedure laid
down in the Civil Services (Classification, Control and
Appeal) Rules as applicable to the servants of the Uttar
Pradesh Government was required to be followed as far as
possible. The funds of the Board came from the contribution
made by the State Government. The School in question was not
a privately sponsored institution which was recognised by
the Board. The final control of the school was vested in the
Government and such control was exercised by it through the
Director or Deputy Director of Basic Education and other
District Basic Education officers appointed by the
Government. The Board for all practical purposes was a
department of the Government and its autonomy was
negligible. The respondent therefore held an ’office of
profit under. the State Government’.[888 E, 893 E-897 B]
2. The object of enacting Article 191(1)(a) is that a
person elected to a Legislature should be free to carry on
his duties fearlessly without being subjected to any kind of
governmental pressure. If such a persons is holding an
office which brings him remuneration and the Government has
a voice in his continuance in that office there is every
likelihood of such person succumbing to the wishes of the
Government. Article 191(1)(a) is intended to eliminate the
possibility of a conflict between duty and interest of an
elected representative and to maintain the purity of the
legislature. [881 E]
3. The term ’office of profit under the Government’
occurring in Article 191(1)(a) though indeterminate is an
expression of wider import than as ’post held under the
Government’ dealt with in Part XlV of the Constitution, [881
F]
4. For holding ’an office of profit under the
Government a person need not be in the service of the
Government, and there need not be any relationship or master
and servant between them. An office of profit involves two
elements, namely that there should been office and that it
should carry some remuneration. [881 G]
879
5. In order to determine whether a person holds an
office of profit under the Government several tests are
ordinarily applied such as whether the Government makes the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18
appointment, whether the Government has the right to remove
or dismiss the holder of the office, whether the Government
pays the remuneration, whether the functions performed by
the holder are carried on by him for the Government and
whether the Government has control over the duties and
functions of the holder. [881H-882 A]
Maulana Abdul Shakur v. Rikhab Chand & Anr. [1958]
S.C.R. 387; M. Ramappa v. Sangappa & Ors. [1959] S.C.R.
1167; Gurugobinda Basu v. Sankari Prasad Ghosal & Ors.
[1964] 4 S.C.R 311; D.R. Gurushantappa v. Abdul Khuddus
Anwar & Ors. [1969] 3 S.C.R. 425; Divya Prakash v. Kultar
Chand Rana & Anr. [1975] 2 S.C.R. 749; State of Gujarat &
Anr. v. Raman Lal Keshav Lal Soni & Ors [1983] 2 S.C.C. 33;
Kona Prabhakara Rao v. M. Seshrgiri Rao & Anr A.I.R. 1981
S.C. 658 referred to.
6. The incorporation of a body corporate may suggest
that the statute intended it to be a statutory corporation
independent of the Government. But it is not conclusive on
the question whether it is really so independent. Some times
the form may be that of body corporate independent of the
Government but in substance it may be just the alter ego of
the Government itself: The true test depends upon the degree
of control the Government has over it the degree of its
dependence on Government for its financial needs and the
functional aspect and so on. [898 H-899 B]
7. Article 45 of the Constitution requires the State to
endeavour to provide for free and compulsory education for
all children until they complete the age fourteen years.
Primary education in a State, unlike higher education, is
the special responsibility of its Government. [899 C]
In the instant case, the Uttar Pradesh Basic Education
Act, 1972 was passed with the object of enabling the
Government to take over all basic schools which were being
run by the local bodies in the State and to manage them and
to administer all matters pertaining to the entire basic
education in tho State, through the Board consisting mostly
of officers appointed by the Government. [899 F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1101 of
1982.
Appeal by Special leave from the Judgment and order
dated the 3rd March, 1982 of the Allahabad High Court in
Election Petition No. 21 of 1980.
P. R. Mridul, J. B. Dadachanji, R. Narain, O. C. Mathur
and Mrs. A. K. Verma for the Appellant.
J. P. Goyal, V. K. Verma and Rajesh for the Respondent.
The Judgment of the Court was delivered by
880
VENRATARAMIAH,J. The question involved in this appeal
is whether an Assistant Teacher employed in a Basic Primary
School run by the Uttar Pradesh Board of Basic Education
constituted under the Uttar Pradesh Basic Education Act,
1972 (U P. Act No. 34 of 1972) (hereinafter referred to as
’the Act’) is disqualified for being chosen as a member of
the State Legislative Assembly under Article 191 (1)(a) of
the Constitution.
The appellant Biharilal Dobray, the respondent Roshan
Lal Dobray and some others were nominated as candidates at
the election to the Uttar Pradesh Legislative Assembly from
308 Kanauj (S.C.) Assembly constituency at the last general
elections held in the year 1980. The nomination paper of the
respondent was, however, rejected by the Returning officer
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18
by his order dated May S, 1980 on the ground that he was
holding an office of profit under the Government of the
State of Uttar Pradesh and hence was disqualified under s
Article 191(1)(a) of the Constitution for being chosen as a
member of the Legislative Assembly. After such rejection the
polling took place on May 28, 1980 and the appellant who
secured the highest number of votes was declared elected on
June 1, 1980. Aggrieved by the result of the election, the
respondent who was not allowed to contest the election by
reason of the rejection of his nomination paper filed an
election petition before the High Court of Allahabad
challenging the correctness of the order of rejection of his
nomination paper and the result of the election which was
held thereafter. He contended that since the-post of an
Assistant Teacher in a Basic Education School which he held
was not an office of profit under the State Government the
rejection of his nomination was improper and, therefore, the
election of the appellant was liable to be declared as void
as provided in section 100(1)(c) of the Representation of c
the People Act, 1951. The High Court being of the opinion
that the post held by the respondent was not an office of
profit under the State Government held that the rejection of
his nomination was improper and the election of the
appellant was liable to be declared as void. Accordingly the
election petition was allowed and the . 1 - appellant’s
election was declared as void. . Aggrieved by the decision -
of the High Court, the appellant has preferred this appeal
under section 116-A of the Representation of the People Act,
1951.
Although there was an alternative plea raised in the
election petition that the respondent had ceased to hold the
post of the Assistant Teacher in the Basic Education School
on the relevant date by reason of his prior registration, it
was not pressed at the hearing
881
of the election petition and the parties proceeded on the
basis that the respondent was holding the said post at all
materials times. The only issue tried by the High Court was
whether the said post was an office of profit under the
State Government or not which, as stated earlier, was
answered in favour of the respondent.
The plea of disqualification of the respondent for
being chosen as a member of the Legislative Assembly was
based on Article 191 of the Constitution, the material part
of which reads thus :
"191. (1) A person shall be disqualified for being
chosen as and for being, a member of the Legislative
Assembly or Legislative Council of an State
(a) if he holds any office of profit under the
Government of India or the Government of any
State specified in the first Schedule, other
than an office declared by the Legislature of
the State by law not to disqualify its
holder;.. "
The object of enacting Article 191 (1) (a) is plain. A
person who is elected to a Legislature should be free to
carry on his duties fearlessly without being subjected to
any kind of governmental pressure. If such a person is
holding an office which brings him remuneration and the
Government has a voice in his continuance in that office,
there is every likelihood of such person succumbing to the
wishes of Government. Article 191 (1) (a) is intended to
eliminate the possibility of a conflict between duty and
interest and to maintain the purity of the Legislatures. The
term office of profit under the Government’ used in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18
above clause though indeterminate is an expression of wider
import than a post held under the Government which is dealt
with in Part XIV of the Constitution. For holding an office
of profit under the Government a person need not be in the
service of the Government and there need not be any
relationship of master and servant between them. An office
of profit involves two elements, namely, that there should
be an office and that it should carry some remuneration. In
order to determine whether a person holds an office of
profit under the Government several tests are ordinarily
applied such an whether the Government makes the
appointment, whether the Government has the right to remove
or dismiss the holder of the office, whether the Government
pays the remuneration, whether the functions performed by
the holder are carried on by him for the Government and
whether the Government
882
has control over the duties and functions of the holder.
Whether an office in order to be characterised as an office
of profit under the Government should satisfy all these
tests or whether any one or more of them may be decisive of
its true nature has been the subject matter of several cases
decided by this Court but no decision appears to lay down
conclusively the characteristics of an office of profit
under the Government although the Court has no doubt
determined in each case whether the particular office
involved in it was such an office or not having regard to
its features.
In Maulana Abdul Shakur v. Rikhab Chand & Anr.(1) the
question before this Court was whether the Manager of the
Durgah Khwaja Saheb School run by a committee of management
formed under the provisions of the Durgah Khwaja Saheb Act,
1955 held an office of profit under the Central Government.
The appellant in that case was elected to the Council of
States (Rajya Sabha) by the Electoral College of Ajmer at
the election held in 1957. The unsuccessful candidate, the
respondent therein, filed an election petition questioning
the validity of the election on the ground that the
appellant therein was disqualified for being chosen as a
member of Parliament as he was holding the office of the
Manager of the school belonging to the Durgah Khwaja Saheb
which was governed by the Durgah Khwaja Saheb Act, 1955 and
had been appointed as Manager by the committee of management
appointed by the Central Government under section 6(2) of
that Act. It was contended by him that because a member of
the committee of management could be removed by the Central
Government and because the committee could make bye-laws
prescribing the duties and powers of the employees of the
Durgah, the appellant therein was holding an office of
profit under the Central Government and was, therefore,
disqualified under Article 102(1)(a) of the Constitution
which was more or less similar to Article 191(1)(a) of the
Constitution. The Election Tribunal accepted the above plea
and set aside the election. On appeal this Court reversed
the decision of the Election Tribunal holding that the
office of the Manager in question was not an office of
profit under the Central Government. The Durgah in question
was a religious institution and its affairs were regulated
by the Durgah Khwaja Saheb Act, 1955. The said Act was
passed for making provision for the proper administration of
the Durgah and the endowment of the Durgah Khwaja Moin-ud-
din Chishti generally
883
known as Durgah Khwaja Saheb of Ajmer. The property,
endowment and funds of the said Durgah belonged to it and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18
not to the Central Government and the employees who were
working in the Durgah were employees of the Durgah. The
Central Government only had the power to appoint the members
of the committee. This Court observed in the course of its
judgment at page 394 thus:
"No doubt the Committee of the Durgah Endowment is
to be appointed by the Government of India but it is a
body corporate with perpetual succession acting within
the four corners of the Act. Merely because the
Committee or the members of the Committee are
removeable by the Government of India or the Committee
can make bye-laws prescribing the duties and powers of
its employees cannot in our opinion convert the
servants of the Committee into holders of office of
profit under the Government of India. The appellant is
neither appointed by the Government of India nor is
removable by the Government of India nor is he paid out
of the revenues of India. 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 payment from out of Government
revenues are important factors in determining whether
that person is holding an office of profit under the
Government though payment from a source other than
Government revenue is not always a decisive factor. But
the appointment of the appellant does not come within
this test."
In M. Ramappa v. Sangappa & Ors (1) the question before
this Court was whether Patels and Shanbhogs who were holders
of hereditary village offices governed by the Mysore Village
Offices Act, 1908 were disqualified under Article 191(1)(a)
of the Constitution for being chosen as members of the State
Legislative Assembly. The Court answered the question in the
affirmative and observed at pages 1176-77 thus:
"We then come to this that Patels and Shanbhogs
are officers, who are appointed to their offices by the
884
Government though it may be that the Government has no
option in certain cases but to appoint an heir of the
last holder; that they hold their office by reason of
such appointment only; that they work under the control
and supervision of the Government; that their
remuneration is paid by the Government out of
Government funds and assets; and that they are
removable by the Government, and that there is no one
else under whom their offices could be held. All these
clearly establish that Patels and Shanbhogs hold
offices of profit under the Government."
The next case to be noticed is Gurugobinda Basu v.
Sankari Prasad Ghosal & Ors.(1) in which this Court had to
decide whether the appellant therein who was a chartered
accountant and a partner of a firm of auditors appointed as
auditors of two Government companies was holding an office
of profit under the Union Government and the Government of
West Bengal and was, therefore, disqualified under Article
102(1)(a) of the Constitution from being chosen as a member
of the Lok Sabha. The appellant therein contended that on a
true construction of Article. 102(1)(a) of the
Constitution he could not be said to hold an office of
profit under the Government of India which held the entirety
of shares in one company and the Government of West Bengal
which held the entirety of shares of the other company
because the various tests viz. the Government had the power
to appoint, the Government had the right to remove, the
Government paid the remuneration and the Government
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18
controlled the functions and duties of the holder of the
office did not co-exist and that the fulfillment of some of
the said tests alone did not make the office and office of
profit under the Government. He contended that his
remuneration was paid by the companies and not by the
Governments; he performed the functions for the companies
and that his duties were controlled by the Comptroller and
auditor General who was different from the Government. This
Court rejected the plea of the appellant holding that what
had to be considered was the substance of the matter and not
the form. It observed:
"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
885
for the purpose of this appeal that the two companies
are statutory bodies distinct from Government but we
must remember at the same time that they are Government
companies within the meaning of 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
himself is undoubtedly holder of an office of profit
under the Government, though there are safeguard in the
Constitution as to his tenure of office and
removability therefrom ...As we have said earlier
whether stress will be laid on one factor or the other
will depend on the facts of each case."
Ultimately the Court held that the appellant held an
office of profit under the two Governments and was
disqualified under Article 102(1)(a) of the Constitution.
This was a decision by a Bench of Five Judges. But in D. R.
Gurushaniappa v. Abdul Khuddus Anwar & Ors.(1) a Bench of
three Judges of this Court distinguished the decision in
Gurugobinda Basu’s case (supra) and held that an employee of
a Government company was not holding an office of profit
under the Government. The following passage in that judgment
appearing at page 433 brings forth the view expressed by the
Court:
"Mr. Gupta, from these views expressed by the
Courts, sought to draw the inference that the primary
consideration from determining whether a person holds
an office of profit under a Government is the amount of
control which the Government exercises over that
officer. In the present case, he relied on the
circumstances that all the shares of the Company are
not only owned by the Mysore Government but the
Directors of the Company are appointed by the
Government-a Minister was one of the first Directors of
the Company; the appointment of the Secretary to the
Company is subject to approval of the Government; and,
even in the general working of the Company, Government
has the power to issue directions to the Directors
which must be carried out by them. It was urged that
respondent No 1 was directly under the control of the
Managing Director who is himself appointed by the
Government and may even be a ’lent officer’
886
holding a permanent post under the Government.
Respondent No. 1 thus, must be held to be working under
the control of the Government exercised through the
Managing Director.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18
We are unable to accept the proposition that the
mere fact that the Government had control over the
Managing Director and other Directors as well as the
power of issuing directions relating to the working of
the Company can lead to the inference that every
employee of the Company is under the control of the
Government. The power of appointment and dismissal of
respondent No. 1 vested in the Managing Director of the
Company and not in the Government. Even the directions
for the day-to-day work to be performed by respondent
No. 1 could only be issued by the Managing Director of
the Company and not by the Government. The indirect
control of the Government which might arise because of
the power of the Government to appoint the Managing
Director and to issue directions to the Company in its
general working does not bring respondent No. 1
directly under the control of the Government."
Divya Prakash v. Kultar Chand Rana & Anr.(1) is a
decision of this Court which is very close to the present
case. There the Court had to consider whether the post of a
Chairman of the Board of School Education of the State of
Himachal Pradesh appointed under section 18 of the Himachal
Pradesh Board of School Education Act, 1968 was an office of
profit under the State Government. The Court while holding
that the said office was an office under the State
Government held that since the candidate concerned was
appointed in an honorary capacity without any remuneration
ever though the post carried remuneration, he was not
holding an office of profit and thus was not disqualified
under Article 191(1)(a) of the Constitution.
Now we come to the latest decision of this Court which
is very relevant of purposes of this case and that is State
of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors in
which the question was whether the employees transferred to
the Gujarat Panchayat Service and working under the local
authorities formed under the Gujarat
887
Panchayats Act, 1961 were State Government employees or not.
The said local authorities were corporate bodies constituted
under the statute. After considering several earlier
decisions cited before it the Court observed at pages 50-51
thus:
"We may now revert to the question whether the
members of the Gujarat Panchayat Service are government
servants. First, we see that the duties which they are
required to perform are in connection with those
affairs of the State which are entrusted to the
Panchayat Institutions by the statute itself or by
transfer by the Government under the statute. Next, the
expenditure towards the pay and allowance of officers
and servants of the panchayat service, serving for the
time being under any panchayat has, no doubt, to be met
by the panchayat from its own fund, but, as we have
seen, the fund consists substantially of some
contributed or lent by the State Government and of the
proceeds of any tax or fee imposed by or assigned to
the panchayat under the Act. The imposition of a tax or
a fee in the nature of a tax, as we know, is
essentially a function of the State. So the salary and
allowances of the servants and officers of the
panchayat service are paid out of funds contributed, or
lent by the Government or raised by the discharge of an
essential government function. Secretaries of Gram and
Nagar Panchayats are to be appointed in accordance with
the Rules made by the Government, while the Taluqa
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18
Development officer is to be Secretary of the Taluqa
Panchayat and the District Development Officer is to be
the Secretary of the District Panchayat. Taluqa and
District Development Officers are, of course, officers
of State service. Gram and Nagar Panchayats may have
other servants, as may be determined under Section 203,
but they have to be appointed by such authority as may
prescribed by the Government and their conditions of
service shall be such as may be prescribed by the
Government. Section 203 as already noticed by us,
contemplates the constitution of a single centralised
panchayat service, the classes, cadres and posts of
which have to be determined by the Government from time
to time. The mode of recruitment, whether by
examination or other-wise, the conditions of service,
the power in respect of appointments, transfers and
promotions of officers and
888
servants and disciplinary action which may be taken
against them, are to be regulated by the Rules made by
the Government. The Rules so made are particularly
required to contain a provision entitling servants so
such cardres in the panchayat service to promotion to
such cadres in the State service as may be prescribed
vide Section 203(4)(a). This is an important provision.
There cannot be any question of a rule providing for
promotion from the panchayat service to the State
service unless the panchayat service is also a service
under the State. Again Section 203(5) requires that
rules may provide for inter-district transfers of
servants belonging to the panchayat service and the
circumstances in which and the conditions subject to
which such transfers may be made. This provision along
with the other provisions of Section 203 which provide
for the promotion and transfer of servants belonging to
the district, taluqa and local cadres within the
district, taluqa and gram or nagar clearly show that
the servants are not the servants of the individual
panchayats but belong to a centralised service."
In the light of the above pronouncements we shall
proceed to examine this case. There is no dispute that the
respondent was holding the post of an Assistant Teacher in a
Basic School on the date of his nomination as a candidate at
the election in question and was in receipt of the salary
attached to that post. The only question which needs to be
examined is whether the post he was holding was one under
the State Government or not. This leads us to the
consideration of the relevant provisions of the Act i.e. the
Uttar Pradesh Basic Education Act, 1972. The Statement of
Objects and Reasons attached to the Bill which later on
became the Act reads thus:
"Statement of objects and Reasons-(1) The
responsibility for primary education has so far
rested with the Zila Parishads in rural areas and
with Municipal Boards and Mahapalikas in urban
areas. The administration of education at this
level by the local bodies was not satisfactory,
and it was deteriorating day by day. There was
public demand for the Government to take immediate
steps for improving the education at this level.
Hence for reorganizing, reforming and expending
elementary education it
889
became necessary for the State Government to take
over its control into its own hands.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18
(2) Repeated demands had been made by all sections of
the Legislature also for the take-over of the
control of elementary education by the State
Government from local bodies. Echoing this public
demand, the Governor had also in his address to
both the Houses of the Legislature on March 20,
1972, said that in order to strengthen the primary
and junior high schools and to increase their
usefulness Government was going to assume full
responsibility for its control and management.
(3) With a view to taking effective steps for securing
the object of Article 45 of the Constitution, and
fulfilling the assurances given in the Governor’s
address and respecting the popular demand it was
necessary to entrust the conduct and control of
elementary education to a virile institution which
may be expected to inject new life into it and to
make it progressive. It was, therefore, decided by
the Government to transfer the control of primary
education from the local bodies to the Uttar
Pradesh Board of Basic Education with effect from
the educational session 1972-73.
(4) The educational session had commenced and the
Legislative Council was not in session and if
immediate action had not been taken, the matter
would have had to be postponed till the
educational session 1973-74 with the result that
the desired object would not have been achieved.
Therefore, in order to implement the said decision
immediately, the Uttar Pradesh Basic Education
Ordinance, 1972, was promulgated.
(5) The Uttar Pradesh Basic Education Bill, 1972, is
being introduced to replace the said Ordinance."
A reading of the above Statement of objects and Reasons
shows that the Act was enacted for the purpose of enabling
the State Government to take over the responsibility of
primary education from the local authorities such as Zila
Parishads, Municipal Boards and
890
Mahapalikas. For this purpose the Act provides for the
constitution of a Board to run the school imparting primary
education instead of keeping them as a part of a Department
of Education of the State Government. The Board is
established by the State Government under section 3 of the
Act with the Director, ex officio, as its Chairman. The
other members of the Board are two persons to be nominated
by the State Government from amongst Adhyakshas, if any, of
Zila Parishads; one person to be nominated by the State
Government from amongst the Nagar Pramukhs, if any, of the
Mahapalikas; one person to be nominated by the State
Government from amongst the Presidents, if any, of the
Municipal Boards; the Secretary to the State Government in
the Finance Department, ex officio; the Principal of the
State Institute of Education, ex officio; the Secretary of
the Board of High School and Intermediate Education,
Allahabad, ex officio; the President of the Uttar Pradesh
Prathmik Shikshak Sangh, ex officio; two educationists to be
nominated by the State Government and an officer not below
the rank of Deputy Director of Education to be nominated by
the State Government who shall be the Member Secretary of
the Board. The functions of the Board are set out in section
4 of the Act thus:
"4. Function of the Board - (1) Subject to
the provisions of this Act it shall be the
function of the Board to organise, co-ordinate and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18
control the imparting of basic education and
teachers’ training therefore in the State, to
raise its standard and to correlate it with the
system of education as a whole in the State.
(2) Without prejudice to the generality of the
provisions of sub-section (1) the Board shall, in
particular, have power-.
(a) to prescribe the courses of instruction and
books for basic education and teachers’
training therefor;.
(b) to conduct the junior high school and basic
training certificate examination and such
other examinations as the State Government
may from time to time by general or special
order assign to it and to grant diploma or
certificates to candidates successful at such
examination;
891
(c) to lay down by general or special orders in
that behalf, norms relating to the
establishment or institutions by the Zila
Basic Shiksha Samitis or Nagar Basic Shiksha
Samitis and to Superintend the said Samitis
in respect of the administration of
institutions for imparting instruction and
preparing candidates for admission to
examinations conducted by the Board;
(cc) to take over the management of all basic
schools which before the appointed day,
belonged to any local body;
(d) to exercise supervision and control over
basic schools, normal schools, basic training
certificate units and the State Institute of
Education;
(e) to accord approval (with or without
modification) to the schemes prepared by the
Zila Basic Shiksha Samiti or the Nagar
Shiksha Samiti for the development expansion
and improvement of and research in basic
education in any district or in the State or
in any part thereof;
(f) to acquire, hold and dispose of any property,
whether movable or immovable and in
particular, to accept gift of any building or
equipment of any basic school or normal
school on such conditions as it thinks fit;
(g) to receive grants, subventions and loans from
the State Government;
(g-1) to have superintendence over the Zila Basic
Shiksha Samitis and the Nagar Basic Shiksha
Samitis in the performance of their functions
under this Act and subject to the control of
the State Government, to issue directions to
the Samitis which shall be binding on such
Samitis;
(g-2) to constitute sub-committees (from amongst
the members of the Zila Basic Shiksha Samitis
and
892
Nagar Basic Shiksha Samitis) for such
purposes as the Board thinks fit;
(h) to take all such steps as may be necessary or
convenient for, or may be incidental to the
exercise of the power, or the discharge of
any function or duty conferred or imposed on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18
it by this Act;
Provided that the courses of instruction and books
prescribed and institutions recognised before the
commencement of this Act shall be deemed to be
prescribed or recognised by the Board under this Act,
For the purposes of exercising powers of
management supervision and control over the basic
schools under clause (cc) or clause (d) of sub-section
(2), which before the appointed day belonged to a local
body the powers and functions of a local body in
respect of such schools shall stand transferred to the
Board."
Section 6 of the Act which deals with officers and
other employees of the Board reads thus:
"6 Officers and other employees of the Board-
(1) For the purposes of enabling it efficiently to
discharge its functions under this Act the Board
may appoint such number of office teachers and
other employees as it may, with the previous
approval of the State Government, think fit.
(2) XX XX XX XX XX
(3) XX XX XX XX XX" (Emphasis added)
Section 7 of the Act states that the Board shall have
its own fund, and all receipts of the Board are required to
be credited into it and all payments are to be made out of
it. The Director, the Deputy Director of Education (Member
Secretary) and District Basic Education Officers who are
incharge of the administration of the Board are officers
appointed by the State Government. Section 13 of the Act
which vests the control in the hands of the State Government
reads thus :
893
"13. Control by the State Government- (1) The
Board shall carry out such directions as may be
issued to it from time to time by the State
Government for the efficient administration of
this Act.
(2) If in, or in connection with, the exercise of
any of its powers and discharge of any of the
functions by the Board under this Act, any dispute
arises between the Board and the State Government,
or between the Board and any local body, the
decision of the State Government on such dispute
shall be final and binding on the Board or the
local body, as the case may be.
(3) The Board or the local body shall furnish to
the State Government such reports, returns and
other information, as the State Government may
from time to time require for the purposes of this
Act."
The respondent was originally working as an Assistant
teacher in the Basic Primary School, Sengarmau, Tahsil
Kanauj, District Farrukhabad. That institution was being run
and managed by the Zila Parishad of Farrukhabad and the
respondent was therefore an employee of the said Zila
Parishad. On the promulgation of the U.P. Ordinance No. 14
of 1972 which was replaced by the Act, he became an employee
of the Board under section 9(1) of the Act which provided
for the transfer of employees of the local bodies to the
Board. Section 9(1) of the Act reads thus :
"9. Transfer of employees-(1) On and from the
appointed day every teacher, officer and other
employee serving under a local body exclusively in
connection with basic schools (including any
supervisory or inspecting staff) immediately
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18
before the said day shall be transferred to and
become a teacher, officer or other employee of the
Board and shall hold office by the same tenure, at
the same remuneration and upon the same other
terms and conditions of service as he would have
held the same if the Board had hot been
constituted and shall continue to do so unless and
until such tenure, remuneration and other terms
and conditions are altered by the rules made by
the State Government in that behalf:
894
Provided that any service rendered under the
local body by any such teacher, officer or other
employee before the appointed day shall be deemed
to be service rendered under the Board:
Provided further that Board may employ any
such teacher, officer or other employee in the
discharge of such functions under this Act as it
may think proper and every such teacher, officer
or other employee shall discharge those functions
accordingly."
In exercise of its powers under section 19 of the Act
the State Government has framed the Uttar Pradesh Basic
Educational Staff Rules, 1973 which are applicable to all
the employees of the Board. The appointing authority in
respect of Assistant Teachers is the District Basic
Education Officer who is an officer appointed by the State
Government. The Schedule given under the said Rules which
prescribes the appointing authorities and the appellate
authorities in respect of the different posts in the Board
is as follows:
"SCHEDULE"
------------------------------------------------------------
Sl. Name of the Appointing Appellate Authority
No. post Authority
------------------------------------------------------------
1 2 3 4
------------------------------------------------------------
1. Education Director of Education State Government
Superintendent (Basic)/Chairman of
(Male and the Board.
Female).
2. Assistant Deputy Director of Chairman of the
Attendance Education Board
officer (Elementary) Member
(Male and Secretary of the
Female) Board.
3. Head Clerk Ditto Ditto
4. Accountant Ditto Ditto
895
------------------------------------------------------------
Sl. Name of the Appointing Appellate Authority
No. post Authority
------------------------------------------------------------
1 2 3 4
------------------------------------------------------------
5. Store-keeper District Basic Member Secretary
Education Officer of the board
6. Other Clerks Ditto Ditto
In Rural Areas
7. Class IV Deputy Inspectors District basic
employees of schools, Deputy Education
offices and inspectresses of Officers.
Institution. Schools.
In Urban Area District Basic
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18
Education Super- Education
intendent/Lady Educa- Officers
tion Superintendent.
8. Headmasters/ District Basic Educa- Chairman of the
Headmis- tion Officer/Addi- Board
tresses in tional District Basic
Senior Basic Education Officer
Schools (Women).
9. Assistant Ditto Member-Secretary
Teachers/ of the Board
Mistresses
of Senior
Basic Schools.
10. Headmasters/ Ditto Ditto
Headmistresses
of junior Basic
Schools.
896
------------------------------------------------------------
Sl. Name of the Appointing Appellate Authority
No. post Authority
------------------------------------------------------------
1 2 3 4
------------------------------------------------------------
11. Assistant District Basic Member-Secretary
Teachers/ Education of the Board.
Mistresses Officer/Additional
of Junior District Basic
Basic Schools. Education Officer
(Women)
12. Headmistresses District Basic Member-secretary
of Nursery Education Officer of the Board.
Schools. District Basic
Education Officer
(Women)
13. Assistant Ditto Ditto
Mistresses
of Nursery
Schools.
It is seen that all officers mentioned in column 3 and
column 4 of the above Schedule are either the State
Government or officers appointed by the State Government.
The said officers are all officers of the Government
Department who hold the posts in the Board ex officio, that
is, by virtue of the corresponding post held by them under
the Government. The Rules provide for the procedure to be
followed in disciplinary proceedings and the punishments
that may be imposed when an employee is found guilty of any
act of misconduct. Rules 5 of the said Rules provides for an
appeal against any order imposing punishment to the
prescribed authority. The procedure laid down in Civil
Services (Classification, Control and Appeal) Rules as
applicable to servants of the Uttar Pradesh Government is
required to be followed as far as possible in the case of
the employees of the U.P. Board of the Basic Education. The
funds of the Board mainly come from the contribution made by
the State Government. The school in question is not a
privately sponsored institution which is recognised by the
Board. The Statement of Objects and reasons attached to the
Bill which was passed as the Act clearly says that the Act
was passed in order to enable the State Government to take
over
897
the administration of schools imparting primary education
which were being run by the local authorities into its own
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18
hands. Even though the representatives of local authorities
are associated in the administration of such schools after
the Act was passed, the final control of the schools is
vested in the Government and such control is exercised by it
through the Director and Deputy Director of Basic Education
(Member-Secretary) and other District Basic Education
Officers appointed by the Government.
The High Court principally relied on the decisions of
this Court in Maulana Abdul Shakur’s (supra) and
D.R.Gurushantappa’s case (supra) in reaching the conclusion
that the respondent was not holding an office of profit
under the Government. In the first case, as mentioned
earlier, the employer was the Durgah which was a religious
institution whose affairs were only regulated by an Act of
Parliament and the remuneration was being paid out of the
funds of the Durgah. In the second case the candidate in
question was an employee of a Government company which had
been registered under the Companies Act but the powers of
management were vested in the Managing Director of the
Company functioning in accordance with the Articles of
Association of the Company and the control of the Government
was very indirect. In Kona Prabhakara Rao v. M. Seshagiri
Rao & Anr. in which the judgment was rendered by one of us
(Fazal Ali, J.) the candidate whose nomination was
questioned was a part-time Chairman of a company called the
Travel and Tourism Corporation (Andhra Pradesh) Private
Limited who had been appointed by the Andhra Pradesh State
Road Transport Corporation which was a Corporation
established under the road Transport Corporations Act, 1950.
In this case also the control of the Government was too
remote.
We are of the view that the present case is governed by
the principles laid down by the judgment of this Court in
Raman Lal Keshav Lal Soni’s case (supra). The functions of
the employees of the Board are in connection with the
affairs of the State. In expenditure of the Board is largely
met out of the moneys contributed by the State Government to
its funds. The teachers and other employees are to be
appointed in accordance with the rules by officers who are
themselves appointed by the Government. The disciplinary
proceedings in respect of the employees are subject to the
final decision of
898
the State Government or other Government officers, as the
case may be. This Court, as mentioned earlier, held in Divya
Prakash’s case (supra) that the officers of the Board of
School Education constituted under the Himachal Pradesh
Board of School Education Act, 1968 which was a body
corporate having perpetual succession and a common seal held
their offices under the Government although in that
particular case it was held that the office was not an
office of profit as the person concerned was working in an
honorary capacity. We have gone through the Himachal Pradesh
Board of School Education Act, 1968 and we find that the
provisions of that Act are almost similar in pattern to the
provisions of the Act with which we are concerned in this
case.
On behalf of the respondent it is however urged that
the Board of Basic Education being a body corporate having
perpetual succession and a common seal its employees cannot
be considered as holding any office of profit under the
Government and in support of this contention reliance has
been placed on the decision of the High Court of Allahabad
in Radha Krishna Visharad v. Civil Judge, Aligarh & Ors. In
that case the Court had to construe the provisions of clause
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18
(c) of section 13 of the U.P. Intermediate Education Act,
1921 which provided that a person was disqualified for being
chosen a member of Kshetra Samiti or coopted as a member
thereof or for being elected as a Pramukh under section 7 of
that Act if he held any office of profit in the gift or
disposal of Government or any local authority including a
Gaon Sabha. The ground on which the Returning officer had
rejected the nomination paper of the petitioner in that case
for election to the office of the Pramukh of Kshettra Samiti
was that inasmuch as he was in the service of the Jawahar
Inter College which was an institution receiving grant-in-
aid from the Government, he was holding an office of profit
in the gift or disposal of the Government. The Court held
that the rejection was bad because all that the U.P.
Intermediate Education Act, 1921 intended to do was to
regulate the working of recognised institutions and to
provide for High School and Intermediate Examinations and
that the said Act did not contemplate that the Government
should become the owners of the private recognised
institutions. This decision is not, therefore, of much
assistance to the respondent. Even though the incorporation
of a body corporate may suggest that the statute intended it
to be a
899
statutory corporation independent of the Government it is
not conclusive on the question whether it is really so
independent. Sometimes the form may be that of a body
corporate independent of the Government but in substance it
may be just the alter ego of the Government itself. The true
test of determination of the said question depends upon the
degree of control the Government has over it, the extent of
control exercised by the several other bodies or committees
over it and their composition, the degree of its dependence
on Government for its financial needs and the functional
aspect, namely, whether the body is discharging any
important Governmental function or just some function which
is merely optional from the point of view of Government. In
this connection it is necessary to recall the provisions of
Article 45 of the Constitution which require the State to
endeavour to provide for free and compulsory education for
all children until they complete the age of fourteen years.
Primary education in a State unlike the higher education is
the special responsibility of its Government and as observed
earlier the Act was passed with the object of enabling the
Government to take over all basic schools which were being
run by the local bodies in the State and to manage them as
provided specifically in section 4(2) (cc) of the Act and to
administer all masters pertaining to the entire basic
education in the State through the Board consisting mostly
of officers appointed by the Government. The rules made
regarding the disciplinary proceedings in respect of the
teachers in the basic schools managed by the Board as
observed earlier vest the final voice in the State
Government or its Officers and almost the entire financial
needs of the Board are met by the Government. The Board for
all practical purposes is a department of the Government and
its autonomy is negligible. Sub-section (2) of section 13 of
the Act which emphasis is placed by the respondent is also
not of much significance. It no doubt recognises the
possibility of a dispute arising between the Board and the
Government regarding the functions of the Board but that
very sub-section provides that if any such dispute arises
the decision of the State Government shall be final and it
shall be binding on the Board.
It is next urged on behalf of the respondent that the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18
difference between the language of Article 58(2) and Article
66(4) of the Constitution which deal with the question of
disqualification of a person who seeks election as President
or Vice-President respectively and the language of Article
191(1)(a) of the Constitution should be given due importance
in deciding this case. For purposes of convenience,
900
Article 58(2) and Article 66(4) of the Constitution are set
out below. They read thus:
"58.(2) A person shall not be eligible for
election as President if he holds any office of
profit under the Government of India or the
Government of any State or under any local or
other authority subject to the control of any of
the said Governments.
Explanation........"
"66.(4) A person shall not be eligible for
election as Vice-President if he holds any office
of profit under the Government of India or the
Government of any State or under any local or
other authority subject to the control of any of
the said Governments.
Explanation..................."
The contention of the respondent is that the Board
being an authority subject to the control of the Government
cannot be considered as the Government itself as otherwise
Article 58(4) and Article 66(4) of the Constitution which
refer to the Government as well as other authority subject
to the control of any Government would have to be treated as
suffering from the vice of redundancy. It is further argued
that when the Constitution itself has made a distinction
between the Government and other authority subject to the
control of the Government, in the absence of any reference
to any other authority subject to the control of the
Government in Article 191(1)(a) of the Constitution, the
holding of an office of profit under the Board which is only
an authority under the control of the Government would not
amount to a disqualification. The argument is indeed quite
attractive. But it is difficult to accept it having regard
to the provisions of the Act and the Rules. We have already
shown that the Board is not an authority which is truly
independent of the Government and that every employee of the
Board is in fact holding his office under the Government.
This is not even a case of attempting to pierce the veil and
trying to find out the true nature of something after
uncovering it but a case where its true nature i.e. the
subordination of the Board and its employees to the
Government is writ large on the face of the Act and the
Rules made thereunder.
Having considered all aspects of the question in the
light of the high purposes underlying. Article 191(1)(a) of
the Constitution, we
901
are of the view that the respondent was holding an office of
profit under the State Government and his nomination was
rightly rejected by the Returning Officer. The judgment of
the High Court is, therefore, liable to be reversed.
In the result, the judgment of the High Court in set
aside and the election petition filed by the respondent is
dismissed.
The appeal is accordingly allowed. Parties are,
however, directed to bear their own costs throughout.
Appeal allowed.
902
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18