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TMI Blog1983 (11) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... cer 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olled 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic 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 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mulgation 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 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: 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters/Headmistresses in Senior Basic Schools District Basic Education Officer / additional District Basic Education Officer (Women). Chairman of the Board 9 Assistant Teachers/ Mistresses of Senior Basic schools Ditto Member-Secretary of the board 10 Headmasters/Ditto Headmistresses of Junior Basic Schools Ditto Ditto Sl. No. Name of the post Appointing Authority Appellate Authority 11 Assistant Teachers/mistresses of Junior Basic Schools. District Basic Education Officer/Additional District Basic Education Officer (Women) Member-Secretary of the Board 12. Headmistresses of Nursery Schools District Basic Education Officer (Women) Member-Secreatary of the Board 13. Assitant Mistresses of Nursery Schools Ditto Ditto It is seen that all of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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