Holding

The respondent was holding an office of profit under the State Government, making his nomination invalid.

Summary

In the 1980 Uttar Pradesh Legislative Assembly election, the nomination of Roshanlal Dobray, an Assistant Teacher in a basic primary school, was rejected on the ground that he held an office of profit under the State Government, disqualifying him under Article 191(1)(a) of the Constitution. The High Court held that the post was not an office of profit and declared the election of Biharilal Dobray void. On appeal, the Supreme Court examined whether the position of Assistant Teacher, after being transferred to the Uttar Pradesh Board of Basic Education under the Uttar Pradesh Basic Education Act, 1972, constituted an office of profit. Applying the established tests—government appointment, control, remuneration, and financial dependence—the Court concluded that the Board was effectively a department of the State and the teacher’s post was an office of profit. Consequently, the nomination rejection was valid, the High Court’s decision was set aside, and the election petition dismissed.

Issues considered

Whether the post of Assistant Teacher in a basic primary school under the Uttar Pradesh Board of Basic Education constitutes an 'office of profit' under the State Government for purposes of Article 191(1)(a) of the Constitution

Legislation cited

Representation of the People Act, 1951s. 100(1)(c)
Uttar Pradesh Basic Education Act, 1972s. 13, s. 9(1)

Subjects

office of profitdisqualificationArticle 191(1)(a)Uttar Pradesh Basic Education Actlegislative assembly electionstatutory corporationstate government controlprimary education

Judgment

877

BIHARILAL DOBRAY.
A
v.

ROSHAN \_,AL DOBRAY.

November 23, 1983. B
[S. Mu&TAZA FAZAL Au AND E.S. VENKATARAMIAH;·J~.J

Constitution of India J950, Article 19l(l)(a) :
. .•
'office of profil;-Hu/ding of-What is-Tesis fo.r determination. c
Teacher in. a Basic Primary School rUn by the State ·Board of Basic.
,Educatio~ constituted under a statute-~ Whether hO/der of 'office of Profit'-~ Whether
disqua/iftedunder Artiale 19J(l)(a).·

Statutory Corporation~.:
D
Jne,orporation of a body corpo_rate by statute-Tests ·10 determine whether ·it
is in~t!pendent of th~ Government. ,.

Words·& Plzrases.

'office ofprofit'.:-Meaning of-Article 19l(l)(a) Constitution of India. E.

In.the electi~n to ~ seat in. a Le8islati.ve Asselnbly Cons.tit~ency the"
\
nomination paper of the respondent who Was an Assistant Teacher ih a Basic
Prim::lry School fun by the St~te .Board of Education was reje~ted ·by the
Returning offieer on th~ ground~that he was-holding an ·office of profit tinder
·the Sta,te _Government•, and he was therefore disquiilified undef Article 191(1)(a) F
of the Constitution, for being chosen as a member" Of the LegislatiVe Assembly.-
In the election tho appellant was de~lared elected. ·

In his Election Petition. the respondent contended that since the post of
Assistant Teacher In a ea.sic Primary School which he was h.olciing was not· an
'office of profit under the State Government',· the· rejection of hi& · norr.ination ·G
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 Goveroriient'. It
declared the election. as ·void by reason of the improper rejection of the
resp.ondcnt's nomiDation paper. · .
H
Allowing the appeal to this Court,
878 SUPREME COURT REPORTS (1984) l s.c.R:

HELD : 1. The responder.it was holding an 'office of profit urider the
A :st-ate·Government' and his nomination .was rightly rejected by the Officer.
[901 AJ

In the inStant. case, the; respond~nt Was holding the post of Assistant
Te"acher "in a Basic Prin1ary School on·the date of his noffiination as a candidate
at the election an4 was in receipt of the salai-y attached to that post.· The
Institution wherein he was emPioyed wits being run ·and managed by the Zita
B Parishad and the respon,dent was therefore an employee of the Zila Parishad.
On the promulgation of the U.P. -Oftlinance No. 14.0f 1972 which was.
replaced- by t.he U.P. Basic Edtication Act, 1972 he b~came an employee
of the. BOard under 'section 9(1) cif the ACt which provided· for ·the transfer
of employees of I0Cal bodies tQ. the B~ard. The State Governnient under
section 19 framed the Uttar Pfadesh Basic Educational Staff Rules, 1973 which
c wer~ applicable to al~l the employees of the Board. The appointing .authority' in
respe"ct of Assistant Teachers was the District Basic Education Officer, who was
an officer ai)pointed Qy the State Government. The Suchedule to the Rules
prescribed the appointing aut~orities and the appellate allthorities in-respect of
different posts 1n {he Board. The Rules provided. for the procedure to be
followed in disciplinary proCeeding and the pullishtnent that niay be impOsed
wheq an employee was found guilty of any act o(misconduct. The procedure
D laid down in the Civil ServiCes {Classification, Control And Appeal) Rules as
applicable to the servants of the Uttar PradesJ1 Government was required to beo
fo~lowed as far ~s possible. The funds of the Board came fro1n the contribution
n1ade by the State Government. The School in question . was not a private/}•
sponsored iristitution wltich was recognised by the Board. The final control of the
schoOI wa.s· vested in the Governrnent ,and such control was cxerci&ed by it
through the f)irector or Deputy Director of Basic Education and other District
E Basic.Education Officers. appointed by the Government .. The Board for all
practical purposes was a departmCnt of the Government and its autonomy was
negligible. The respondent therefore held an 'Office of profit und~r the State
I
Government'. {888 E, 893 E-897 BJ

2~ The object of en;icting Article 19l(l)(a) is that a person elected to a
Legislature should be free to carry on his duties fearlessly without being sub-
jected to an·y kind. o.f g'overninental pressu:re. 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 Governn1ent . . Articl.c l91(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]
G ' ·- "
. 3. · The tern1 'office of profit ·under the Government' occurring in Article ,,
i91(1)(a) though.indeterminate is an expression of wider import than as 'post
held under the Governt;nent' dealt with in Part XIV of the Constitution. [881 FJ

4. For holding •an office ot profit under the.Government' a person need
Li .nOt be i"n thC service of the G_overnment, and there need not be any relationship
of master and servant betwee1:1 them. An office of profit ·involves two elements,
nan1ely that there· should be an office and that it should carry some
remuneration. [881 GJ '
•

DlHAR!LAL V• .ROSHANLAL 879
•
5. In ·order to determine whether a person holds 8.n office of profit under
the. qovernment -several tests are ordinarily· applied such ~s' whether the A
Government miikes the appointmen_t, whether the Government has the right to
remove o·r dismiss the holder of the office, whether the Gov~·~nme~t- pays the
rCmuneration, whether the functions performed by the holder are carried on' by
him for the Government and_ whether the Goverrimenf has cO:ntrol over the
duties an·d functions of the holder. [881 H:882 AJ

Maulana Abdul Sita/mi v. Ri/rhab C!umd & Anr. [1958] S.C R. 387; B
M. Ramappa v. - Sangappa & Ors. [1959] S.C.R. 1167; Gurug~binda _Basu. V.
f Sankari Prasad Ghosal & Ors, [1%4]4 S.C.R. 311; D.R. Gurnshantappa v. Abdul
Khuddus Anwar & Ors. [1969] 3 S.C.R. 425; Divya Prakash v. Ku/tar Chand Rana
& Anr. [)975] 2 S.C;R. 749; State of Gujarat & A11r. ·v. Raman Lal Keshav r.d1
Soni & Ors. [1983] 2 S.C.C. 33.; Kana Prabhakara Rao v. M. Seshrgiri Rao & Anr .
A.I.R. 1981 S.C. 658 referred to. · '

6. The incOrporation of a body corporate may suggCst that the statute
iritended it .to be a statutory co"rporation independent of the Government. B~t ·
it is not conclusive on the question whether it is really so ·"indeperidt;nt. Some- .
times the form may be that of body-corporate independent of: the GOvernment
bui in subsiance it may be Just the alter ego of the Government itself. The true·
test depends upon the degre·e o~ontrol the Government has over it· the degree D
of its_· d~pendence on Government fo~ its. financial .n~ds and the functional
aspect and so on. [898 H·899 BJ •
7. Article 45 of the Constitution requires the State to endeavour to
provide for free and co~1J)ulsOry edu~ation for a11 children Until they _con1plete
the age ~ourteen fe3rs. Primary education in a Staie, unlike higher education~
is the special ·responsibi_lity _of its Government. [ ~99 CJ E
Jn the instant case, the Uttar Pradesh Basic Education Act, 1972 was
passed with .the object of ·cn~_bling th~ Government to tak·e Over all .basic •
schools which were being ruv. by the local bodies in the State ~nd to manage
. "' them and.to administer all matters pertaining to the entire basic education in
the ·state, through the Board· corisisting mostly of officerS. appointed by the
Government. [899 ·F·G] . F

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. Mridu/, .f. B. D11dacha11ji, R. Narain, o. C. Mathur and
Mrs. A. K. Verma for the Appellant.
H
1. P. ·Goya/, V. K. Verma and Rajesh for the Respondent.
The Judgment of the Court was delivered by·
.. . .
•

'880 .SUPlU)ME ,COURT REPOR1ll · [1984) l s.c.R..

YENKATARAMlAH, J. The question. involved. in this:appeal'is
A whether an Assistant Teacher employed iil a Basie Primary School ·
• .· rnn by· the Uttar Pradesh Board of Basic Education constituted
· under the Uttar Pradesh Basic Education Act, 1972 (U.P. Act No.
}4 of 1972) .(hereinafter referred to as 'the Act':) is ·disqualified for ·
being chosen as a member of ihe Staie Legislative Assembiy under
B. Article 191 (i)(a) of the Constitution.
"';,..

The!' ~ppellant Biharilal Dobray, the repondent lloshan Lal 1.
-Dobray and some o\hers were nominated as candidates at tbe
· ' election 'to the Uttar Pradesh Legislative Assembly from 308 Kanauj
(S,C.) Assembly consti\1iency at tb.e Jast general elections held in the · Ji-'
·C year.1980. The nomination paper of the respondent was, however, .
rejected by the Returning Officer by his order dated May s; l9SO on
the ground that he was holding an office .of profit under the Govern·.
·· ment ~f the State of Uttar Pradesh and. hence was disqualified under :
. Article 191(1)(a) of the Con.stitution for being chosen as a member
D . of the Legislative. Assembly: After su~ rejection . the polling took
place on May 28, 1980 and the appellant who secured the highest
number of votes was declared .elected on June I, 1980. Aggrieved .
by the. result of the election, the respondent who was not allowed to
contest the election ·by reason of the · r~jection of his nomination
paper filed an election petition before the High Cpurt of Allahabad
E. challenging the correct~ess of the order of rejection of his nomina' ·
lion paper and the re.sult of the electio.n which was held· thereafter.·
He. contended that since the post of an A.ssistant Teacher in a Basie
. •-Education School which he held was not an office of profit under the
'state Government the reject.ion of his nomi11ation was improper and, '.
of
therefore,·the election the . appellant was liabie to be declared as
F void as provided in section IOO(l)(c) of the Representation of the. ·
People Act, 1951. The High Court being of the opinion that the
··post l;ield by the respondent· was not an office of profit. tinder the
State Government held that the rejection 6f his nomination· was .
improper and the eleciion of the appellant was liab'!e to be declared
G as .void. Accordingly. the election petition was .allow.ed and the
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. .

H . Alth~ugh there was an aiternative plea raised in the election
·petition that the . respondent · had ceased ·to hold tpe post of the
Assistant Teacher in the Basic Education School on the releva.nt date
·br reason of his prior re~is\jnatio~, it was not pressed at the hearing
. BIHARILAL v. ROSHANLAL (Venkataramiah, J:). 881

of the election petition and the Parties proceeded on the basis that
the repondent was holditig the said post at all materials times. The A
only issue ·tried by the High Court was whether the said. post was a:n
office of profit:under the State Government or not which, as stated
earlier, was answered in favour of the re;pondent.
' 0
The plea 'of_dlsqualification of the ~e.spondent for.being chosen
as a member of the Legislative Assembly was based on Arlicli: 191
. of the Constit.ntion, the material part of which reads thus :

"191. (I) A person shall be disqualified for· being
chosen as and for being, a member of the Legislative
Assembly or Legislative Council of al). State c
(a) if he holds any office of profit .u.nder the Gove- ·
rnment of India or the Government of any State
specified in the first. Schedule, other than an
office declared by the Legislatur~ of the Sta.te by
law ·not to disqualify its holder; .. :: ..... :./'
. . .
.. D
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 · E
remuneration and the Government has a voice in his continuance in
that office, .(herds every likelihood of such ·person succumbing to
-the wishes of Government. Article 19l(l)(a}.is intended to e1iminate
the. possibility of a conflict between. duty and interest and to maintain
the purity of the Legislatures ... The t.erm office of profit under the ·
Government' used iri . the. above clause though in1foterminate is.an , · F
·expression of wider im.port than a post held under the Gov(\l"nment ·
which is de~lt with ill. Part XIV of the· Constituttori. For holding
an.office of profit under the Oovernn;ient a person need not be in the.
service o(the Government·and there need not be.· any refationship-of ·
master and servent between them. An office of profit involves. two. : G
elements, namely, that there shOuld' be an office and that it should
carry. some remuneration: In .order to deter_minewhether a person
Mids an office of profit under the Government several tests ar.e .
ordinarily applied such an whether the Govetnment makes the
·. appointment, whether the Government has the right to.remove or. H
dismiss the holder of tlie pffice, whether .the· Government pays the
-. . . . ' . ~
remuneration, whether the functions performed by the holder are
carried OJ). by him for the Goverl).ment and whether the · Government

•
882 SUPREME COURT .REPORTS (1984) I s.c:R.
has control over the duties afld functi~ns of the holder. . Whcther'an
A. office in order to be characterised as an office of profit under the
. Government . should_ satisfy all these tests or whether any one or
j
more of them. ·may be· decisive of its true nature _has been the subject
I
·matter of several cases decided by this Court but no decision appears
. to Jay down conclusively thAharacteristics of an office of profit
B 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 Maufana Abdul Shakur v. Rikhab Chand & Anr.(1)_ the
question liefore this Court was whether ·the Manager of the Durgah
Khwafa 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 Goverprpent. The appellant in , .
. that case was elected to the Council of States (Rajya Sabha) py the
Electoral College of Ajmer at the election held -in 1957. The un-
D successful candidate, the repondent therein, filed ~n election petition
questioning the validity of the eiection.· on the ground that the
appellant therein was. disqualified for being chosen as a member of
Parliament as he was holding tile.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
E 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 commiitee
.could make bye-laws prescribing the cluties and powers _of the
F employees of the Durgah, the appellant therein was ho.Jding an office
of:profit underthe Central Government and was, therefore, disqua, .
lifted lftl.der Article 102(I)(a) of the Constitution which was more or
· 1ess similar to· Article 19l(l)(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.
G holdiug 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' Durgali and
H .the endowment of the Durgah Khwaja Moin-l!d-din Chishti generally

(1)
.
(1958)
. .
S.c:;.R;.387. "
•
•

BHiARILAL v. ~OSHANLAL (Venkatara~iah.~J.) . .883

· · ·known a·s Durgah K. hwaja ·:saheb .of Ajmer. ·The property, endow~
. ment and funds of the said Durgah· belonged to it and. not 'to the . . A ..
. Central Government and the emptOyees who were working in the.
Durgah were employees. c;f the Durgah. · 'The Central Government .
only. had the power to· appoiot the members of. the committee. ~
This Cou-rt observed · inthe course of its judgment 'at . pag<; 394
.. thus:
, · .. B
)-
. ''No.doubt' the Committee of the Durgah .Endow-
. rnent is to be appoinkd by· the Government Of India but .•
it is abodY. corp~rate with -perpetual 'succession acting
I ·.~
within the four corners of the .Act.. Merely because the
..Committee or the members of the.Committee are 'remove- c
.. of
able by the G~vernment fndia or the tommittee. can. :
make b,te-laws pre;cribing the duties and powers of its:·
. employees .cannot irr our opinion ·ciinvcrt the serVants of • ·
~
the Committee into holders' of office of profit under the : ·
Government of India. 'The appellant is neither appointed
D
by the Government ~f India nor is removable bythe.
0

Goveniment of India nor is he paid out of the revenues
of India.. The power of the Gove111ment .to appoint a
· person: to ·an ollke · of profii or to continue him in tiiat .
. · 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 urider the Governme11t: though . payment
" from a source other tlian: Government revenue is ·not ·
a
always decisive ·factor. But thecappointmeni of-.the
·appellant
- does
.-·
not
·.
come . within
.
this. test." ..-· ·
~
•

· In M. ·Ramappa v.-Saitgappa & o;s.('i°th.e question b'efore ·
thi_s Court was whether. Patels and Shanbhogs who were liolders of
hereditary village offices governed by the Mysore Village. Offices Act, :
1908 were disqualified under Article 19l(l)(a) oftbe Constitutionfor·
being chosen. as members of the State Legislativ.e · Assembly.. G Th.; ·.
Court answered the question in the affirmati_ve and observed af pages , . ·
1176-77 thus:·. " .·
.
."-
· ·
.. .
· · · · · ... ,
-. · . . .

."We then come to this that'Patels and ·Sh~nbhogs .·
· _are officers, w_ho are . appointed to their offices by the H
.
(t) (1959] S:C.R 1167,
. . ,- .. · '. - -.;.-

.- ..
..
884 SUPREME COURT REPORts (1984) j s.c.a..
' -
Government though lt may be.that the Government has
A no option.in certain cas~s but.to 11ppoint 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 ofthe Government; that t)leir reinuneration .
is paid by the Government ·out of Government funds and
B assets; and .th.at they are. rjlmovable by the Government, ·
and· that there is no· one else under whom their offices
i
col!ld be held, All these clearly estFblish that Patels and
Shanbhogs hold offices' of profit under the Government.''
',
The next case to be enoticed _is _Gurugoliinda Basu v. Sankari.
c Prasad Ghosa/ & 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 com-
panies was holding an ·office of profit under the Union Government
and the Government of West Bengal and was, therefore, disqualified
• undc.r Article 102(1)(aJ of. the Constitution from being chosen as a
• member of the Lok Sabha-. The appellant_ therein.contended that on·
a true construction of Article I02(1)(a) of the Constitution he could
'not be said to hold an ~ffice of profit under the Government of India ·
which held the entirety of shares iii one company and the Govern•
merit of West Bengal .which held.the entirety of shares of the other
E 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 contr<illed
•: the functi~ns and duties of the holder of the ciffice·did not co·exist
and that the ·fulfilment of sollie of the said .tests alone did not make
the office an office of profit under -.the Government. He contended ..
F
that \lis remuneration. was j)aid by the. companies· an.d 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 consi-
dered was the substance of the matter and not the form. It observed:

· "In the case before ns the- appoinment of the
· : appellant as also his continuance in office rest~ solely ~ith
·the Government· of India iit respect ·or the two companies._
H His remm:1eration is also fixed by Government. we· assume

(I) [196414 S.C.R. 31L
.•
iliHARJLAL v. ROSHANLAL Wenkataramtah; J.) 8ll5

~ ' for the purpose of this ~ppeal that:the two'companies are '
A
I statutory bodies distinct from Government but we must ·
'remember at the same time that they are· Goverriment
" companies within the meaning of the fodian Companies.
Act, 1956 and 100% of the shares are held by the Govern· ·
ment. We must also remembe·r ·that fo the performance \If
his functions tlie appellant is- .controlled by the Comp·
B
.troller and Auditor-General who himself is undoubtedly,
· ho\der 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 ou one·
factor or the other· will depend on the facts of e.ach case.'.' '
' '
c
. Ultimately' the Court held that. the appellant held an offi~e of .
· profit umler the.two Governments and was disqualified under Article
I 02( l)(a) of the Constitution. This was a d~cision by a Beilc,h of
Five Judges. But in D. Ji.. Gurushaniappa v. Abdul Khuddus Anwar
& Ors.( 1) a Bench of three ·Judges of this. Cm1rt djstinguished .the D
decision in Gurugobi/l{l<l Basu"s case (supra) and ·held that an
omployee of a Government company. was. not. holding. aU: office of
profit under' the Government. The following passa'ge in that judgment
appearing at page 433 brings forth the view expressed by the Court :

"Mr. Gupta, from these ".iews . expressed by the
Court, sought to draw the inference. that the primary con•
sideration from ·determining whether a person holds a~
· office ·of. profit und.er a Government is the amount of
c.ontrol.which the Government exercises over that officer.
In>the present case, he relied on the· circumstances that· F
>' . all the shares. of the Company are not only owned by· th~.
~.

Mysore Go.verument buf the Director& 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, ev.en in the general .working of the
G
Company, Govemrnent has the power to issue directions
to the Direetors. which must be carri.ed out· by them. It
was· urged that respondent No. 1 was qircctly under the
control of the Managing Dire.ctor who is himself appoin•
H
ted .by the Government and may even be a 'lent officer'

. (1) [ 1969]3 S.C.R: 425.
I ' . ' , .,

SUPREME COURT REPORTS (i984j j S.C.R·
holdfog a permanent post under the Government: · Res·
A pondeni No. 1 thus,· must be held to .De working under· ·
the. c9ntrol :or' the Government exercised throu~h the
Managing Director. ·•

We. are unable to accept the proposition that the
mere fact that the Government had· control over the
B
. Managing Director and other Directors as well as the
power ofissuing directions .relating to the working of the
Company can lead to the inference that every employee.
of the Company is under the control 6f the Government. • ·
• The power of appointment and· dismissal of respondent
c No. I vested in the Managing Dir~ctor of the Company
and notin the Government. Even .the d'irections 'for the.·
day-to-day work to be perform\d by respondent. No. 1
~ould 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
D the power of the Governinent to appoint ihe Managing
Director and to issue directions•.to the Company in its
general working does not bring i'esjiondent No. I directly
under the control of the Government."

E Divya Prakash v. Ku/tar Chand Rana & Anr.( 1) is a decision of
this Court which is very close to the present case. ·There ·the Court
had to consid~r whether the post. of a Chairman of the Board of
School Education of the State of Himachal Pradesh appointed under
section 18 of the Himaclial Pradesh Boarll of School Education Act,
1968 was an office of profit under the State Government. The Court
F while holding that the said office was an office und'er the State Govern-
. ment'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 19 l(l)(a) of the Constitution.
G· . . . t • .

· Now we come to the. latest decision of this C'onrt which is very
relevant of purposes of this case and th~t is State o[Gujarat & Anr..
v. Raman Lal Keshav Lal Soni & Ors (2) in which the question was
whether the employees transferred to the 'Gujarat Pancbayat Service
H arid working under the local authorities formed under the Gujarat

. ' (!). [1975] 2 S.C.R. '749 .
(2) [1983] 2 s.c.c. 33.
a1llARILAtii. RoSl!ANLAL ( Venkataramiah, J.) 887
• •
Panchayats Act~ 1961 were State Government employees or not. The
· said local authorities were corporate bodies constituted under the. A
· 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 th~
members of the Gujarat Panchayat Service are government
B
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 Jns.ti-
tutions hy the statute· itself or by transfer by the Govern-
ment under the statute. · Next, the expenditure Iowa.ids
the pay and. allowance of officers and. servants of the c
panchayat service, serving for the time being under any
panchayai has-, no doubt, to be met by the panchayat
from its own fund, but, as we have seen, the fund consists
substa~tially of some ccmtributed or lent. by the State
Government and of the proceeds of any tax or feeimposed
by or assigned ·to the panchayat under tl)e Act. The D
imposition of a· tax or a fee in the nature of a tax, as we
know, is essenti~lly a function of the State. So the
salary and allowances of. the servants and officers of the
pancbayat service are paid out of funds contributed, or
.lent by the Government or raised by the discharge of an. E
·essential governmental function. Secretariei of Gram
and Nagar Panchayats are to be aPP,!linted in accordance
with the Rules made by the Government, while the Taluqa
Developipent 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 F
~ .. · District Developmenl Officers are, of course, officers of
State service. Gram and Nagar Panchayats may have
other servants, as may be determined under Secti<ln 203,
but they have to be appointed by such autho~ity as may
prescribed by the Government · and their conditions of
service shall be such as may be prescribed by the Govern-
G
ment. Section 203 as already noticed by us, contem-
plates 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
H
· mode of recruitment, whether by examination or other-
wise, the conditions of service, the power in respect of
appointments, transfers and promotions of offic~rs . and .
•
SUPl!.Er.IB COURT REPORTS (1984) 1 s.c.R .
•
serva11ts and disciplinary action which may be' taken
A against them, are to be. regulated by the Rules made by
the· Government. The Rules so made. are, particularly
required to contain a pr_ovision entitling servants so ~uch'
cadres. in· the panchayat service to promotion to such
~ . service as m:jty' .be prescribed fide
cadres in· . the State
8 Section 203(4)(a). ·This is an important provision .. There
cannot be any question of a rule providillg for promo!i{lll
from the panchayat service to the State service unless the
. parichayatservice is also·a_ service under the State. Again
Section 203(5) requires that rules may provlde for inter-
districi transfers of servants belonging to the panchayat
c ·service and the circumstances in wbiclt and the. conditions
... subject: to which such transfers may .be made. This provi- ·
sion along with the oiher provisions of Section 203 which -·
provide for the promotion and. trapsfer of servants
belonging·to the district, taluqa and local cadres within.
the district, taluqa and g~ain Of nagar clearly show that
D
the servants are not the servants of the .individual
. panchayats but belong to a centralised service."
,
•
ln the light of the above pronouncements we shall proceed to
examine this case. There is no dispute that thnespondent was hold- .
E ing 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
jn receipt. of the salary attached tQ that post. _The- only qu.estion
.. which needs to b~' examined is whether the post he Vias holding .was
one under the .State Government or i!Ot · This leads ¥S to the consi-
F deration of tlie relevant prpvisions of the Act Le. ·the Uttar · Pradesh
Basic Education Aot, i972. · The Statement of Objects and Reasons ''
. attached to. the Bill Vlhtch later on became the Act reads thus : . - ~,

"Statement of Objects and Reasons~(!) The
responsibility for primary educa,tion has so farrested
G with the Zila Parishads in rural areas and with
Municipal Boards artd Mahapalikas in urban areas.
The administration of education at this lcve1 by the
lodal bodies was not satisfactbry, and it was deterior-
H
ating 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
1\iriAR!LAL v. ROSHANLAL (Ve11kataramiah, J.) . ~~9

became necessary for the State Government to· take··
over its conttol into its own hands. A '·

(2) Repeated demands had lieeu 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; tbe
Governor had also in his address to both the Houses, B
· of the Legislature ou March 20, 1972, said that in
· order to strengthen the pr-iinary and junior high
schools and to increase their usefulnes.s ·Government
was going to 'assume full responsibility for its .control .
and management. c
· (3) With a view to taking .effective steps for securing the
. object of Article 45 of the Constitution, and fuliiliing
. - ' . . .-
the assurances given in the Governor's address and
respecting the popular demand it was. necessary to
.

entrust the conduct and control of elementary educa- D
tfon 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 E
effect from the educational ·session· 1972-73.

(4), The educational session had commenced and the
·Legislative Council wa~ not in session and if imme-
diate actio.n had not been taken, 'the .matter would
have had to be postponed till the educational .session F
1973-74 wit.h the result that the desired object would
not have been achieved·. Therefore, in order to imp-
lement the· said , decision immediately; the· Utt~r
Pradesh Basic . Education . Ordinance, 1972, was
promulgated. G
(5) The Uttar Pradesh Basic Education Bill, 1972, is
beirtg introdueed to replace .the said .Ordinance."

· A reading af the·above Statement of Objects and Reasons shows H
.that the Act was enacted for the purpose of .enabli.ng the State.Gove-
rnment to .take over the responsibility of primary education from the
local authorities such. as Zila Parishads, Municipal Boards and
MO SUPR,BMB COURt RllPORTS !I9s4i l s.d.a.
Mahapalikas. For this purpose the Act provides for the constitution
A of a Board to ruri the school imparting prim~y education instead of
keeping them as a part of a Department of Educati.on 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 0U1er members ofthe Board are two persons to be
nominated by the State Government. from amongst A!ihyakshas, if
B
any, of Zila Paiishads; . one person to be nominated by the State.
Government from ampngst 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
c offieio; the Principai 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
Bhikshak 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
D shall be the Member. Secretary of the Board. The functions of
the Board are set out in section ·4 of the Act thus : ,
•
"4. Funct.ion of the Board - (!) Subject to the
provisions of this Act it shall be.the function of the •
E Board to organise, co-ordinate and control the impart·
ing of basic education and teachers' training therefore ·
· i.n the State, w raise its.standard and to correlate it
with the system of education as a whole in t.he State.

F
.. (2) Without prejudice to the generality of the provisions
-0f sub-section (I) the Board shall, ·in partkular, have
P?Wer-

(a) to prescribe the courses of instruction and books
for basic ·education and teachers' training
G therefor;

(bj to conc\uct the junior high school and basic ·
training certificate examination and such other ·
examinations as the. State Government may from
H time to time by general or special order assign
·to it and to. grant. diploma or. certificates to.
candidates successful at such examination; .
•
il!HARILAL v. ROSHANLAl (Vtnkataramiah, J.). 891

(c) ·to lay down by ·general or special orders it! that
behalf, norms relating to the establishment or A
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 pre-
paring candidates for admission to examinations
• B
conducted by the Board; · ·

(cc) to take over the management.of all basic schools
which before the appointed day, belonged to any
· local body;
• c
(d) to exercise supervmon 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 Shibha
D
Samiti or. the Nagar Shiksha Samiti for the deve-
lopment expansion and improvement of .and
research in basic education in any district or in
the State or in any part there~f; .
E
(f) to acquire,. hold and dispose of. any property,
whether movable or immovable and· in parti-
cular, ·to accept. gift of any building or ·equip-
ment of any basic school or normal school on
such.conditions.as it thinks fit; ·
F
(g) to receive grants, subventions and Joans from
the State Government;
•
(g-1) to have superintendence over the Zila Basic
Shiksha Samitis ·and the Nagar Basic Shiksha G
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 Samiti~;
H
(j!-2) to constitute sub-committees (from amongst the
members of the Zila Basic S]li~sha Sa111itis and
892 SUPREME COURT REPORTS· . [1984) 1 s,c.R.

· . Nagar Basic Shiksha Samitis) for such purposes
.A as. the·Board thinks fit;

(h) to take all such steps :as may be necessary or
convenient for, or may be incidental ro· the
·,
exercise of the power, or the discharge of any ·
fllnctioil or duty conferred or imposed· on it by
B •
this Act; · ·

Provided that· the courses of instruction and books ·
· prescribed and institutions recognised· before the com.men··

c
cement of this Act shall be· deemed to be prescribed or
recognised by the Board under this Act, ..
. For the purposes of exercising powers of m~nageme;1t
supervision and oontrol over the basic schools under • .
dlause (cc) ot clause (d) of sub-section (2), whicli 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." .

·.. Sectio.n 6 of the Act which deals .with officers and . other
employees of the Board reads thus· :
E
"" · "6 Officers and other employees of.the Board-
(!) For the purposes of ~nabling it efficiently to dis·
·charge its fun,ctions under this Act the Board may
. appoint. such number· of office teachers and other
employee~ a~ it may, with the previons approval of the
· State Government, ·think fit.

(2) xx xx'xx xx xx
(3) XX XX XX XX XX" (E~phasiS added)·
G
Section 7 of the Act states that the Bo~rd shall have its own
fund, and all receipts· o,f the Board are required tci be credited into it'

H
Director
. ..
and all payments are to be made out of it. The Director, the Deputy
.of Education (Member . Secretary) and District Basic Educa-
tion Officers who are 'incharge of the administration of the Board are·
ciill.cers appointed by the State Government. Section 13 o(the Act
which. vests the control in the hands of the State .. Government reada
thus:
imiARILAL v. ROSHANLAL.(Venklltaramiah, J.) '893
•
· "13, Control by the State Government- (I)
The Board shall carry out' such directions as may be A
issued. to it from time to tiine by the. State Govern~
ment for the efficient administration o.f this Act.,
. ' .
(2) If in, or in conne.ctio11 with, the e.xercise of any of .
its powers and discharge of any of the functions by the
Board under this Act, ·any dispute arises between · the B
Board and the State Government; .<!r between the
·Board and any loca.1 · oody, the decisfon of the S!l!te ·
Government on' .such dispute shall be final and bind·
ing OD the Board or the local body·. as the case
may be. • c
(3) The Board or tire 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."
. . . . D
. The respondent was .originally working as. an Assistant Teacher
in the Basic Primary School, Sengarmau, '.fahsil .Kanauj, District
l Farrukhabad, ·That institution was being· run and managed by the·
Zila Parishad. of Farrukhabad and the re;pondent was therefore ·an.
employee of the said Zila Parishaq. Ori the promulgation. of the E
. U.P. Ordinance No. 14 of1972 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 A.ct readsthus : · ·

· •"9. Transfer of employees-(!) On and from the F
appointed day e~ry,teacher, officer and other emp·
loyee serving under a· local body exclusively in
eonnectiori with ,!lasic schools {including any super~
visory or inspecting staff) immediately before the· said
day shall be tr,ansferred to and become a t,eacher •·
officer or other employee of the Board and shall.hold
G
office by the same· tenure, at the same · remuner~tion
and upon. the;. same other terms and conditions of
.service as hewould have held the.same if the Board
had hot been constituted·· and shall continue to do so H·
'unless and until such tenure, .remuneration and other
terms and conditions are .altered by the rules made
by the State 9overnment in, that behalf;

' "'
894 SUPREME COURT REPO.RTS [1984] l s.c.a.

. Provided that any service rendered under the
•
A local body· by any such teacher, officer or other
• employee before the appointed day sball be dee.med
to be service rendered under the Board : · 1
Provided further -that Board may .employ any
such teacher, officer or other employee in the dis-
B
charge of such functions under this Act as it may
think proper and every .such teacher, officer or other
employee shall disch~rge those functions accordingly,"

In e~ercise of iis powers under se.ction 19 of the Act the State
c Government has• framed the Uttar Pradesh Bifsic Educational Staff.
Rules, 1973 which are applicable to a!Hhe 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 t)le appellate authorities in
D respect of the different posts in: the Board is as fo!fows :
396 SUPRBME COURT REPO\lTS (1984) I s.c.R.

A • SI. Name of the
No. post
Appointing
Authority
.
4'ppel!ate ·Authority

I 2 3
B
I I. · Assistant District Basic Educa- Member-Secret~ry of
Teachers/ tion Officer/ Additional· the Board.
Mistresses District Basic Educa-
of Junior tion Officer (Women)
c Basic Schools.
.
12. ·Headmistresses Disirict Basic Educa- Member·!?,ecretary
of Nursery tion Officer/Additional of the Board.
Schools. ,District Basic Education
Officer (Women)_
D
13. Assistant Ditto. Ditto
Mistresses ..
of Nursery
·Schools '
(

E It is seen that all officers mentioned in column 3 and column 4
of the above Schedule are either ·the State Government.or officers
app'ointed 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
F under the Government. The Rules provide for the procedure to be
followed in disciplinary proceedings and the punishments that may be
i~
imposed when an employee is found guilty of any act of misconduct.
Rules 5 of the sa.id Rules provides· for an appeal against any order
imposing punishment to the prescribed authority. The procedure
laid down in Givil Services (Classification, Control and Appeal) Rules
G 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
H recognised by the Board. The Statement of Objects ·and reasons
attached to the Bill which was passed as the Act clearly says that ·the
i.'
.
A9t was passed in orqer to enable the State Government to taJj;e over
.
I
BIHARILAL v. ROSHANL~L (Venkaiaramiah; J.) 897

the ·administration of schools imparting primary education which.were
being run by the local authorities into _its own hands. Even though A
the representatives oflocal authoritii:s are associated in the adminis-
• iration of such schools after the Act wl!s . 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
B.
appointed by the Government.

The High Court principally relied on the decis.ions of this.Court
in Moulana Abdul Shakur's· (supra) and D. R. Gurushantappa's
case (supra) in reaching the conclusion that the respondent was not

t holding an office of profit under the Government. In the first case,
as mentioned earlier, the employer was the Durgah which was a reli-
gious institution whose affairs were only regulated by an Act of
· Parliament and the remuneration was being paid out of the funds of
c

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
D.
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 Kana Prabhakara Rao v. M. Seshagiri
Rao & Anr.(1) in which the. judgment wa~ rendered by one of us
(Fazal Ali, J.) the candidate whose nomination was questioned was a E
partftime Chairman of a company called the Travel and Tourism
Corporation· (Andhra Pradesh) Private-Limited who had been appoin-'
ted by the Andhra Pradesh State Road Transport Corporation which
was a Corporation established 11nder the Road Transport .Corpora·
tions Act, 1950. In this case also the control of the Government was ..
too rCmote . F

. A.. ', We are ot the view· that the present case is governed by the ·
principles laid down by the· judgment of thi.s 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 expen- G
. diture 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 accordlnce· with the rules by officers who are,
themselves appointed.by the Government. The disciplinary procee•
dings in respect of the employees are subject to the final· decisio~ of H
r· (!) A.I.R. 1981 !l.C. 058 .

•
898 SUPREME COURT REPORTs (1984] 1 s.c:iJ..

the State Government or other Government officers, as the case may
be. This Court; as mentioned earlier, held iii 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 'perpetuai succession and a •
common seal held . their offiees uhder 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, 196S and wc find that the provjsions 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 corpora.le having perpetual succe-
ssion and a common seal its employees cannot be considered as hold·
ing any office of profit under the Government and in support of this
1
contention reliance has been placed on the decision of the High Court
of Allahabad in Radha Krishna Vislzarad v. Civil Judge, Aligarh &
Ors.(') In that case the Court had to construe the provisions of clause
(c) of section l'3 of the U.P. Intermediate Education Act, 1921 which
provided that a person was disqualified for being chosen a member of
· Kshettra Samiti or coopted as a member thereof or for being elected. (
as a Pramukh under section 7 6f 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 o(the P.ramukh of Kshettra Samiti was
that inasmuch as he was in the service of the J'awahar 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 th.e U.P. Intermediate Education Act, 1921 intended to do was l,
to regulate the working of recognised. iilsHtutions and io 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 j11tended it to be a

(I) 1964 All. L.J. 84Q

•
eiilARiLAi.. v. kosilANLAL (Venkataramitlh, J.) 899
•tatutory corporation independent of the Government it is not con'
elusive on the question whether it is really so independent. Some-
times the for!" may be thM bf a body corporate independent of the
Government but in subMance it may be just the alter ego of the
Government itself. The true test of determination of the said ques·
0

tion depends upon the degree of control the Oovernmerit has over it,
the extent of control exercised by the several other.bodies or commit-·
tees over it and their composition, the degree of its dependence on·
Government for its financial needs !Ind the functional aspect, namely,
whether the body is discharging any important Governmental func-
tion or just s0me function•which.is merely optional frJm 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 fourt,een years. Primary
education in a State unlike th' higher d,cation is the special respon-
sibility ofits Governnent 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 prov.ided specifically in section 4(2) (ce) 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. :fhe rules made regarding the.disCiplinary pro-
ceedings in respect of the teachers in the basic sch9ols managed by
the Board as observed earlier vest the final voice in the State Gove-
rnment or its Officers and almost the entire fin~ancial' needs of the
Board. are met by the Government. The Board for all practical pur-
poses is a department of the Government and its autonomy is negli-
gible. Sub-section (2)c of section 1,3 of the Act which emphasis is
placed by the respondent is also not of much sig11ificance. . 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 difference
between the language of Article 58(2) and Article 66(4) of the Cons-
titution which deal with the question of disqualification of a person
who seeks election as President or ·vice-President respectively and tile
language of Article 191(1)fa) of the Constitution should be given
due importance in deci<liq.g this case. For purpose~ of convenienct'.,
•

900 SUPREME COURT REPoRTS iJ9s~j I s.c.i.
Article 58(2) and Artiele 66(4) of the Constitution are set out below. 1
A 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 Governm~nt ·of any
State or under any local or other authority subject to
B the control of any of the said Governments.
Exp'1 anat'ton ...... : ..........'.. ..

• "66.(4) A 'person sl;lall not be eligible for election
as Vice-President if he holds any office of profit
c under the Governmeut of India or the Government
of any State or under any local or other authority
of
subject to the control. of any the said Governments .

Explanatio,n ............... , .. . .
D The contention of the respondent is that the Board being an
authority .subject to the control of the Government cannot be consi-
dered as the Government itself as oiherwisc Article 58(4) and Article
6'6(4) of the Constitution wh_ich refer to' the Government as weUas
other authority subject to the control' of any Government would have
E · to be treated as suffering from the ·Vice of redundancy. It 'is further
argued ihat when, the l;;onstitution itself has m'iide 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(i)(a)
of the Constitution, the holding of an office of profit under the
F Board which is only an authority under.the control of the Govern-
ment would not amount to a disqualification. The argument is indeed
quite atiractive. Bat it is difficult to accept it havfng regard to the
provisions of the kct and the Rules. We have already shown that
the Board is not an a'!thority which is truly independent of ·the·
G Government and that every employee of the Board is in fact holding
his office ·under the Government. This is not even a case of attempt-
ing to pierce the veil and trying to find out the true natiire of some-
thing after uncovering it but a case where its true nature i.e .. the
subordination of the Board and its employees to the Government is
H writ' large on the face of the Act'and the. Rules made thereunder.

in
Having considered all aspects of the question the 'light of the
high purposes u_i1<lerlying. Article 19l(l)(a) of the Constitution, we
. ilittARILAL v. ROSHANLAL (Venkataramiah~ i.) . ~1
are of the view that the respond~nt was )lolding an office of profit
und~r the State Government and his nomination was rightly rejected A
by the Returning Officer .. The judgment of the High Court is,
~herefore, 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.
B
The appeal is accordingly ~llowed. Parties are, however, .
directed to bear their own costs throughout.

App ea/ a/lowed.

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