Holding

The Secretary of the State Legislative Assembly is an officer of government and may be appointed Returning Officer, and the lack of oath does not disqualify an elected member from proposing a candidate in a Rajya Sabha election.

Summary

The Supreme Court examined two issues arising from a Rajya Sabha election in Uttar Pradesh: whether the Secretary of the State Legislative Assembly could be appointed as Returning Officer under Section 21 of the Representation of the People Act, 1951, and whether an elected Assembly member who had not yet taken the oath prescribed by Article 188 could validly propose a candidate. The Court interpreted the term "government" in the Act liberally, holding that it includes the legislature, so the Secretary qualifies as an officer of government and may be appointed Returning Officer. It further held that the oath is not a condition precedent for exercising the right to vote or propose a candidate in a Rajya Sabha election, as the member is deemed to have all privileges of a legislator upon publication of the election results. Consequently, the High Court’s order setting aside the appellant's election was reversed. The appeals were allowed, the election petition dismissed, and the appellant’s election to the Rajya Sabha upheld.

Issues considered

Whether the Secretary of a State Legislative Assembly is qualified to be appointed as Returning Officer for a Rajya Sabha election under Section 21 of the Representation of the People Act, 1951.
Whether an elected member of a Legislative Assembly who has not taken the oath under Article 188 can validly propose a candidate in a Rajya Sabha election.

Legislation cited

Constitution of Indias. Article 102(1)(a), s. Article 12, s. Article 146, s. Article 148(5), s. Article 174, s. Article 187, s. Article 188, s. Article 191(1)(a), s. Article 193, s. Article 229, s. Article 318, s. Article 367, s. Article 80, s. Article 90, s. Article 98
General Clauses Act, 1897s. Section 3(23), s. Section 3(60), s. Section 3(8)
Representation of the People Act, 1951s. 152, s. 21, s. 33, s. 73

Subjects

Returning OfficerRajya Sabha electionRepresentation of the People ActGovernment definitionOath of officeArticle 188Section 21Electoral lawDisqualificationLegislative AssemblyConstitution of India

Judgment

PASHUPATI NATH SUKUL & OTHERS.
A
"'
P.

NEM CHANDRA JAIN & OTHERS.

Novem/Jer il5, 198/J B
•
· [S. MuRTAZA FAZAL Au, 0, Ca1NNAPPA REDDY, &
E."S. VBNKATARAlo!IAH, JJ.j
•

•
Constitution of lndia J95o, 1rticlq 98, 174, 102 {/) (•), 187, 188, 191 (/)
(a), ~ml 193• . c
The Represantation of the people Act 1951Section•.21,33, 73 aml 152;

Candidate eiected as Member of State Legislative ,.fisethbly...;....Not _taking
oath as Member-Whether could propose a cd~didate for e/e,:tion to Rajya Sabha
Ond entitled to vote in -such election. - D
.,
1
Secretary & Joint Secretary of State Legfalalive Assemb/y-Whelher 'an
officer O/Government'-Appointment as Retur11ing officer and A.ssistanl Returning
Ufficer in an el;clion to _Rajya _Sabha-VaJidi1~ of.
...
.•
Words & Phrases-Meaning_ of: E
•Gove1nment'-Cons1i1ution of Jndia 1950, Afticles 102 (l) (a) and 191 (1)
(a) •an officer of Go~ernme1u'-The Repr~sentution of the People A'"I 1951, s, 21.

After the Legislative Assembl)' of lhe State was dissolved by the President
"elections Were held _and after the results were declared the Election Comm1s- F
,., . aiO".l issued a notification containing the names of the members elected for the
constituencies on June 9, 1980. The elected rpcmbers were .notified that they
could take the oath as required- b) Art. 188 of the Constitution at the session of
Che Legislative Assembly which had been summoned to meet on J unc 27, 1980
and on subsequent d:iys. In the meaiwhile, on JunC 17-. 1980 the E_lection .
Commission issued a notification calling upon the elected members of the State
Le&islative Assembly to elect a person for the purpose of ·filling a vacancy ia G
tho Kajya Sabha. For conducting the election the Secretary and Joint Secretary
of the State_ Legislative Assembly .wefe appointcd-,respeclivcl)' as the Returnina:
Officer and ·the Assistarit Returning officer.

The appellant and respondent No. I "in Livil Appeal No. 1175 of 19_81 H
were nominated aa the candidates at that clectio~. J).t the time of scrutiny,
respondent No. 1 filed objections to the nomination of the appellant raising two
srounds;-(1) that the appellant was disquali6e_d as he w~s a Government

.. •
---. - .
.'
SUPREME COURT REPoRTS (1984] i s.C.a.
. -_·.
. . .• _ . ·' :. ,· . -; : .. : ;-- .: ·- ----:--.,,-- 'i -•--:- .. ' - .
servant, and (2) that the proposer _tbotig'1 an elected _inember ·or the Assembly, ·
was not ·qualified to propose-the: appellanCs candid.iture as he had not yet taken- ..
the oa!h under: Article 18~ ~f the CoristUution.. ·· · ·· ·
•.

The apPellant .'c~ritended... th<it nad reti~ed volunta"fitY 'rrorri· as· he-
GOvernment service he was.Ilot-disqua1ified for b'"eing Chosen as 3. member of the . :-
. Rajya Sabha ;nd that.the prop(nerbeiag.an elected··member or .the'_Legislaiive-. - '~
:AsseQ:tbly was. competent io'.prOpoSe eyen thOUgh hC. haci not taken the oath as .-.!"--\. -.
provided in Art. 188. Oveiruling-the objectioD.s-- the; ."nomination papers Of the -
· -_· C3Ddidates wei-e aCcePied. IO fhe election- the aPpellant Was declared elected as
.a_.membe~_Of the Rajy~_Sabha. __ .- ·.' J· · ·.. · • .(
·- .•,.
. . . ..ReSPondCnt-··n~. ·1 th~refore tit~d an·~ electioO PetitiOn. -The i:Iigh°Cou;t.set-
aside.th~ ap"pellant"s electiOn o_ii. the gfOunds ·: ·11r th~t_ as thq SecretarY of the
Legislative .AsseffibtY· _was .neither 110 ·offii:ef of the -Government nor of a ·10C31 . ~·
·, - - authQriry·. he could not ·be app_ointed · o:s ihe ReiurniD8: --<?fficCf UJ?.de"r s.21. iind ·~.·
(2) that."the· propOser of the·nominatioa i}aper--had no·t _mide or subscribed the ,
,.. oath. or affirmation as required by Article 188 of the Constitution on;tbe date of
··~ noniiriation arid consCquently there_ w·as irilproper acceptance o~ the-·D.omination
"oftbe·appellilµt~·-·_- ,.,·,.' - ~.·. - .
.. ·.
. D ·•
.'°ThC ~PP~it~nl,-~i1e fiectiori ·Com~js~i~n-Of i~dia, and tl~e St~te.P~eferred .
.'Appeals to this Cou~t~' ' · _-(.: ~- .' .· - -- -~ . . · - ..
__; ~--. - . ·- -- - -. . . ·-· . ~

Allowing 'the_ Appeals.
, .· _ . > ~ ·, . . . ·-. '-
. ·• . . . . - • •. -_ f . - • ' - .- •

• . HELD: .l (i) ..The word :•Gov<rnment'· in Article 102' (l)(a)' and in
:.Article 191 (l)(a) Of the (onstituti~~ ·and the' word •90Verrunent' in the expfes.: .-
.;. ~ .:·. 'sion.UD.·officer of Government• jn Section 21 of the Representation ryf thO: PeoPle
. · ~ ACt; 1951 sbo-uld be "intCrPreted liberally ·so _as·. ~-o include· within its scope the
. · Legi.slatur~. t~·e Exe~utive and tlle Judiciaiy;: [~51 G~HJ ·. ' . . . .
- - ._ '. •, - ..
• (ii} ·The fi~ding -of the H-igh Co_uft ihat the Secretary of the" State.Legis-
- lature could not be appointed as the Returning officer for the· electi_on to.the
· '. RajyaSabha is un.Sustainabl~: [952'A)'· •

(iii). n.e e~preSsions
·,Gove;nn-lent'". rind .GOvehllnent' ·are : . '~ti ~me~~--.:;· ~J--. -
-, not .defin'ed ·in thC Con~tiJtltioD oi irt.the·Rcpr~seatation 'of the Peopl~ Act 1951 •.
I\ Article ·367 ·'Of :the· COnstitution _-provides·. that ,unless-. the conteit otberwi'se
•. ;i G -~ · ·rCqtiireS, thC Oenerai: C:Iauses A'tt 1 _J 897; sha:u _··.subject t~_any ad"aptiltions- and .
'·, _. ·- modificati0ns--th3.t may be ffiade therein unde[ Artic1~372 apply for the inte"r- ·
~ ·pr"eiation for the _ConStitution. Section 3 (23) Ofihe Gene"ral Clauses"• Act,'1897:- ;_ ·
. ·givCs cin inclusivC defirlition ·or •ooVer;nrnent~ _and sUggCsts· th:it there maY bi:
. other orgaD.s of State ·which may_ be.included within the ineaning of _expression
· -.: ·-".·._'GovC~enl·. ~The expressions ·~ntral Oov.ernment• and •state·-: Governmeflt•
· · H · ·: _-;. aie ,.defineci- _in sectio'n -3 (8) and·.. section. 3. ,·(60).~ A: generiit"; _reVieW _ of
·.- _the constitUti~nal proVisiolls_ shows various _expreSsio"nS_ used in it to describe the~
. - 1" , . several .organs of the State.. lri PMt I. the· eXPreSsions 'tM.UniOn• 'the States•, and
·. -;·.-.·, · 'ihe. UniOn TcrtitoriCs'-are Used. In~ Article 12 ~e-expresajons 'G_O:V~Ininent" ai:id

·:-- .
.,'• .
•
il. N. SUKUL V. N.C. JA1N· 941
Parliamen.t of India' abd 'Government andthe Legislature of each of the States'.
" are found suggesting. that Government is different fron1 lhe Union L:egislature
A
._.
•I or the Legislatures of the States. This is for purpo~es of Part lJL ID Article 102 ·
(I) (a)'and Ariicle 191 (!)(a) the. expression 'the Government of India' and
'Government of any. State• are used and they provide that a pt!rSon ~olding
an office of profit under the Government· of 11'dia or a s'_tate Governm~n~ i§
disqualified for Oeing chosen as a member -Of Parliamerit or of a State Legisla-
. ture respeCtively. Article 98 a:nd Article 187 p~ovide for appointment. of
sepafate secreta'riat staff. of each "House of Parlian1ent and· .of the State •· B
Legislatures respectively. t947 C-H; 948 A]

. (iv) After the cq~~efic_e111cnt of the C0nstitution, the· Sec~etaries or' the
State. Legislatures alinost as· a matter o(rute·wei:e being appointed as Returniiljj"
·Officers for election to the· Raj}' a Sabha· and .for election to. the· Legislative
Councils of States, aTid Parliament had not thought it fit to amend su_itably,
section 21 exp'ressly inciuding the officers- of the Stat; Legisiatufes ·amongst the c
persons qualified to be 3.ppoi"nted as Returnjng officers' even though it pad beeri.
· amended· once by speeificaliy including officers of local authorities. Parliament
all along had treated the Secretaries Or the State .Legislatures ·as ·officers. of
Government for purposes of section 2!, and had found i~ convenient tO do so.
[951 C·E] .
))
(v) Even though Article 98 and Article 187 contemp1atethe establishment
of a separate secretariat staff for eilch House of P"arliariient and· the State Legis-
.lature respectively,. the sal3.iies 8.ntl allowanc.es of the members of ihat Staff are
· pafa out of.the Consolidated.Fund.of India or o(tbe State, as the case may be
after they are voted by the HOuse or Houses concerned. Their appointmerit and
other conditions of service 8:re regulated by Rules ~ade by the :President or the
Governor,·as: th~ case nlay be, ualil ~n appropriate law is .made by Parliament E
or the State Legislature. [951 F~] . .. ·

• (vi) In our·Constitution, ~bich has~ federlll sturcture thefe ~re b·oth at
thc le:vel of the tJnion and at the level of the State detalled provisi.ons peftaining
· to the LCgiila~ure, the Executive and ·~hC Judiciary. AU the thre~: organs arc
.·conceriled with the governance o_f the·country the. first makes the laws, second
enforces thf:m and the third interpfets them.,Sometimes their functions .may be F
overlapping. All the three orgb.ns ~Ogether constitute the ·Government ·at their ·
respective level: [950 B·CJ · A • • · •

(vi[> The· President is -a part of the Parliament under Article 79 of the.
Constifution. The executive power: of_t.he Union is vested in him.under Article
53(1 ). At the level of the State the positioll is analogous. The Go.vernor is a· part.
of the legislatrire 9f tbC State under Article 168 (1). The Executive power of the
G
State is vested in him under Article.154 (1) and he is consulted in the· apj)Oint-
ments of the judges of the High Court. While under Article 235 .the High Go~rt
-is.v~sted with the control ov:er the: ~ubon:linate JudiCi<iry of the State, in the case
of .dismissal ot removal of,_ a judicial officer· in the Subordinate 1udiciary, ·the .
Govern.of has to issue the order tho~gh on the· tecorrimeQ.dation made bY the
I
rr High Court. A study of these provisions shows that there is no .water-tight H
compartment between the.three major oigans of the State. The. Comptroll~r aiid
Auditor General of India though he is assigned·· all indc.Pendent status. is an
. officer under tbe UoiQa Qqvera;n~iit. }'he Jud~es of the Supreme Couri and of
'
942 '
SUPRBMB COUllT REPORTS
.. I

(1984) 1 s.c.it.
I'

a High Court are not servanfa of Government but hold a constitutional office•
.A B~t.the Comptro1ler and Au3itor-General of India and the Judges of the
Supreme Court and of a High Court are not eligibJe to contest elections to
.'
Parliament and the State Legislatures in view of Article 102 (I) (a) and Article
191 (1) (a) because they are serving in connection with the affairs of the
Union and are therefore. holding offi.zes of profit under the Central
Government. [950 C-H; 591 A-Br

Pradya/ Kumar Bose v. The Hon'ble the. Chief Justice of Calcutta High 1-
• Court.[1955) 2 S, C.R. 1331; Gurugobinda Basu. v. Sankari Prasad Gh0sa/.& Ors .
[1964] 4 S. C. R· 311; Union of India v. Sanko/ Chand Himat/al Sheth & Anr. ,, b:
¢

·s.
[1978] i. C.R. 423; & Hargov/nd Pant v. Dr .•f!aghukul Tilak & Ors. [1979] 3

c.
S. C. R.972 referred to:

(viii) The position Of a person who works as an officer of the LegislatUrc
of.a State is also thC S!me. Even though he .belongs under Article 187.to the
1..
•'

stilff of the-State Legislature, he .js still an officer of Government in the broad .
. sense in which the- expression •1 GOvernment is used in Article 102{1) (a) ·and -(
Article 191 (l)(a): If the expresSion 'Goveinn1ent used is construed as meaning
the Executive Government only, then it would defeat the very purpose of these
provisions. Similarly he has to be treated ~s an officer of Government for
D purposes of section 21 of the Acl also" qualified for being appOinted as ihe
. Returning officer for an election held under the.AGL [951 A·C]

2 (i) This iS not a case where general, elections to the Legislative
Assembly had been lleld Sefore the normal tenure ·or the existing Legislative
,.
Assembly was· over. The previous Legislati~e Assembly having been· dissol~ed. <· f-
E in FebtUary 1980, on the publication of the notification. containing the names of
\Iii A'!
the elected inembers of the LegiS.lative Ass~~ly on June 9, 1980 under Section
73, the Assembly was deemed to be duly coi'l!;t1tuted: (953 D; 954 DJ "
I
(ii) An elected me·mber ·who' has not taken •oath' but whose name ·
appears i~ the notific·ation published ·under s. 73 of the Act can ·take p;.trt in all
non-legislative activities of an elected mr.mber. The right of voting at an election
.. • --
•
I

F · to the Rajya Sabha can also be exercised by him, (957 GJ

Jn thC. instant.case .the name of. the. 'proposer. had been included before '"'
the date on which he propoSed the name of the appellant as' a c'andidate-in the J,
notification published under sec. 73 of the Act· and· in the eteCtoral ·roll tnain-
talned under section 152. There is therefore no infirmity in the nomination: ,
G [957 H; 958 A]
If.111
"
. (Iii) The words 'sitting and voting' in Article 19} of the Consthutjon
.imply the Summoning of the house under Article 174 .of the Conslitution by the
(iovernor to meet at such time and place as he thinks fit and the .holding of the
meeting of the House .pursuant to the said summons or an adjourned meeting .
H .An elected member incurs the penalty for contravening Article 193 of the Cons-
tiiution only when he sits arid vot~s at such a meeting of the House.· JnvariS:bly
there is an interval of time between the conslitution of_ a house after a general
election, and .the summoning of the first meeting of th~ House. During that
943
•
P.N. SUKUL.V. N.c. JAIN (Verikatatamtah,J.)'

interval an elected member of the ·Assembly whose name appears In the notiti~ ·
cation issued under section 73 of the Act is entitled to all the privileges, salaries A
and allowances of.a' mem~er of the Legitlative Assembly, one of them being
the right 'to function as an elect~r at an election held for filling a· seat in the
Rajya Sabha. [955 B·D]
.(jv) The election for filling a seat -in the Rajya Sabha does nOt frorii a
part of the. Legislative proceedings of the House carried on at its meeting. Nor
the vote cast at Such an election is a vote given in the· House on -any issue B
arising before the House: The Speaker 11as no control o~er the election·: The
election is held by the Returning Officer appointed for the pllrpose. All the •
steps take.n in the course o( the election fall outside the proceedings that take·
place at a meeting of the Hou... [955 E-F; 956 BJ

Bhupendra Nath Bdsu v. Ranjit Sin'gh, I. L. R. 41 Cal. 384, approved. c
C1v1L APPELLATE JURISDICTION : Civil Appeal · Nos. 1775
1975 (E), 2736 (E) oL1981.

Fr.om the Judgment and Order dated the 10th July, 1°981 of
the Allahabad High ·Court (Luck~ow Bench) in Election Petition D
No. 7 of 1980.

M. C. Bhandare, T. Sridharan, Ms. S. · Bhartdare. and Ms.
Sucharita for the Appellant in CA. 1775/81.
ll
Dr. Y. .S. Chitale and Ms. A. Subhashini for the Appellant in
CA. Np. 1975 of 19Sl •
• Mrs. S. Dixit for the Appollant in CA. 2J36 ofl981.

I!ari Shankar Jain and Mr. K. K. Gupta, for the Respondent.. l'i
The Judgment of the Court was delivered by

V BNKATARAMIAf\, I. At the ~oncliis.ion of the hearing of the
above appeals on November 16, 1983, we pronounced the following G,
order: •

"Heard Gounsel for the parties. The appeals are allowed
and.the order of the High Court is set aside without any order
as. to costs.~' ,
H
wc now give our reasons.
• 944 .
•

. SUPREME COURT RBFORTs [i9MJ t.s.c,a.
•
•'
li1.

A
Two questions arise for consideration in .these Hiree appeals i r
which.are filed against the judgment and order dated July JO, 1981
of the High Court of. Allahabad in Election Petition No. 7of1980. r
They are: ''

• I. Whether the Secretary of a State Legislative Assembly is
B not qualified to be appointed as the Returning Officer at an
. election held to fill a seat in the Rajya Sabha ?.
•
, ·2, Whether a person elected as·a member of a Legislative
Assembly but who has not made. and subscribed the prescribed
oath or affirmation as required by Article 188 of the Constitu·
c tion can validly ·propose ·a person as. a candidate at an elec·
tlon held for filli11g a seat in the Rajya Sabha ?

In February, 1980 the Legisfative Assembly or the State ·of
Uttar Pradesh was dissolved by/the President by issuing a notifica·
· tion und~r Arti.cle 356 o(thc Constitution. A notification was issued
D by the Governor of Uttar Pradesh ·under section 15 (2) of the Repre·
sentation.of the People Act, 1951 (hereinafter referred to as 'the Act'>'
in April, 1980 calling upon· all the Assembly constituencies in Uttar :
Pradesh to· elect· members to· the Legislative Assembly, After the
results of the ·elections in ail the constituen.cies held · pursuan.t to the
E said notification were declared, the. Election Commission of India
a
issued notification containing the nanies of the members elected for
the said constituenCies as required by sectioiJ 73 of the Act on 'June.
9, 1980. The elected members were notified that they could take.the •
oath as required .by Article 188 of the C9nstitution at the session of
the Legislative Assembly which. had been summoned 'to meet on.
r · June. ·21, 1980 and on subsequ·ent days, .In the meanwhile on June-
17, 1980, the Election Commission issued a notification calling upon
· the elected members. of. the Uttar Pradesh,Legislative Assembly to
elect a person for the purpose of fillirig a vacancy fo the Rajya Saoha,
By that notification, the Election Commission fixed the following ·
programme for the purpose of the ~aid election ;
G
(a) 24.6.1980 ·- . as the hst date fo~ making· nomination ..

(bl . 25 611980 as the date for scrutiny of the nomi·
nation papers. •
B
(c) 27.6. 1980 as, the last date for withdrawai. of
candidatur~.

•.
•
•
• ii.~. sumut v. N.c. tAIN (Venkataramiah, J.) 945

(d) .4. 7.1980 as the date on which a poll, .if neces"

~
' sary, would lie taken. A
"' (e) 7. 7.1980.
- as the date before ·which. the election
had to be completed.
. .- -- ...
·shri S. P. Singh, Secretary of the Uttar Pradesh Legislative
Assembly was· appointed: ~as the· Returning Officer ·and Shri Uma. · B
Shankar, Joint Secretary as the Assistant Returning Offi~er for con· ..
ducting the ~foresaid election. •

Pashupati Nath Sukul, the appellant in Civil Appeal No. 1775
'of 1981 (hereinafter referred to as 'the appellant') and Nern· Chandra
Jain,
.
respondent No. 1 were nominated
. .
·as the candidates at that
election. At the time of scrutiny, respondent No. 1 filed objections to
. the nomination of the appellant raising two grounds-(!) that the
appellant was disqualified as he was a .Government servant'and (2)
" that the proposer of the candidature of the appellant was not quali•
tied· to propose his candidature· as he had not yet taken the oath as. D
required by Article 188 of the Constitution. The appellant pleaded
.that as' he had retired voluntarily. from the Government service he
was not ·disqualified for being chosen as a member of. the Rajya
Sabha and. that the proposer of his candidature was an elected mem-
r·,
ber of the Legislative .Assembly who was competent to make ihe E
propo~al even though he had not taken the oath as p;ovided in . ·
Article 188 of the Constitution. The Objections of ~espondent
· No. r were overruled and the nomination papers of both the
appellant and respondent No.. · l were accepted by the Returning
· Officer. At the poll which took pface on July 4, 1980 the appellant
secured 325 votes ani respondent No .. 1 got 41 ~otes. Accordingly F
. the appellant• ·was declared to be elected as a member ·of the Rajya
Sabha. Aggrieved by .the resµ le 'of the electiOn, respondent No. 1
filed an election petition before the High Court calling in· question
the, result of the election on. various grounds and of them we are
now concerned wi.th two grounds only and they are (1) that as the G
Secretary . o(the Legisl.ative Assembly was neither an officer of the
:·Government nor of a local authority, he 9ould riot be appointed as
the· Returning Officer· under section 21 of the Act and 12) truit as the
proposer of the nomination paper o( the appellant· 'had not made or
sabscribed the. oath or affirmation as required by Article 188 of the
Gonstitution on the date of the nomination,'there was i~proper accep"·
H.
tance of the nomination of the appellant. The appellant, the Election
· Commission of India, the State 9f Uttar Prade.sh and Shri s. p,

'
•

946 SUPREM(COURT REPoins . (1984) 1 s.c:R.

Singh, the Returning Officer were impleaded as respondents to ihe
election petition. The name of the· Governor of Uttar Pradesh who
had also been impleaded as a respondent.was deleted.by the order.of .•
the High Court. The petition was contested by the appellant and
others who bad been implcaded as respondents in theeiection peti- ·
tion. At the conclusion of the trial, the High Court set aside the
·electfon of the appellant' on the following grounds viz. that
B
Shri S. i>. Singh, Secretary, Legislative Assembly was not qualified
·to ·be appointed as the Returning Officer; that the proposal of the
candidature of the appellant by a member of the Legislative Assembly
who had not made and subscribed.the oath or affirmation a:s required
by Article 188 of the Constitution on the date of nomination was ·
illegal and hence there was improper acceptance of the nomination
of the ~ppellant and that there was no valid electoral roll in force on
the date of ·nomination.. Aggrieved by th~ judgment of the High
Court; the appellant has preferred Civil Appeal No. 1775of1981,
the.Election Commission of India.bas filed Civil Appeal No. 197'5
D
(E)of ·198 l and the State of Uttar Pradesh has preferred Civil
Appeal No. 2736 (E) of J98J. All these .three appeals are disposed
of by this common jud.gment.

We shall fi~s( deal with'the question whether the Secretary of.

•
the Legislative Assembly was not. qualified to be appointed as the
Returning Officer for.the election. Section 21 of the Act which deals
with the appointmeni of Returning 01'ficers reads thus : ·

. "21. Returning Officers-For every constituency, for
every election to fill a seat or seats in the• Council of
. States and fgr every election by the members of the Legis-
lative Assembly of a State to fill a seat or seats in the
Legislative Council of the State, the Election Commission
shall ' in .consultation with the Government of the State'
.

designate or nominate a returning· officer wh9 shall be an
officer of Government or of a lo~al authority :
G
Provided that nothing in this section shall prevent
the Election Commi~sion from designating or nominating
the same person to be the returning officer for more than
one constituency."
H
· (Emphasis added).

I
P.N. SUKU~ v. N.c. JAIN (Venkataramiah, J.) 947 .
The contention of respondent No. I which' has been accepted
by th~ High Court is that the Sectetary of the Legislative Assembly A
being not an officer of Government or of a loca;J authority he was
not qualified to be appointed as the Returning Officer. The argument
is that 'Government' in the. expression 'an officer of Government'
usedin ·section' 21 of the Act m~ans the Executive only and an officer ·
of the Legisiature is not, ther~fore,'an officer
ofGovernment. B
. This case is an·illustration ·Of some legal problems ·solutions
for which appear to be quite obvious but when an attempt is made
to give reas 0ns for such solutions one wo.uld be confronted with
. many difficulties though not insurmountable. The expressions
'Government' and 'an officer of Government' are not defined in the c
Co~st1tution ·or in the Act. Article 367 of the Constitution· provides
· that unless the context otherwise requires, the·. General Clauses Act,
·1897, shall, subject to any adaptations and modifications that may be
made therein under Aritcle 3n of the Constitution, apply .for the
interpretation of the Constitution as it applies for .the interpretation
I)
of an Act of the Legislature of the Dominion oflndia. Section 3 (23) ·
of the General Clauses ,fot, 1897 defines .<Governme.nt' as follows : .

. .A
"3(23) 'Government' or. 'the Government' shall
include both the Central Government and any State
Government;"
E
The above definition is an inclusive definitii>n and it suggests
that there may be other organs of State which may be included with-
.in the meaning of the expresSion '.Government'. The ·expressions
· 'Central Government' and .'State.Government' are defined .in· section
3(8) and section 3(60) of the General Clauses Act, 1897 respectively.
These definitious are to be adopted unless there·. is. aµything in the
context to the contrary. A general review of the constitutional pro-
visions shows various expressions used in it to describe the several
organs of the State. In Part I :Of the Constitution the expressions
'the Union'. 'the States' and 'the Union '):'erritories' are used, In
. Article 12 olthe Constitution, we find the expressions 'Government G
· and Parliament of India' aiid 'Government and the Legislature of
. each of th~ States' suggesting that Government is different from the
Union Legislature or th~ Legislatures of the State.s. This is . for .
purposes of Part III of the· Constitution. In Article J02(l)(a) and
)-· I1
... Article 191(\)(a) of the Constitution, the expressions 'the Government .
of. India' and 'the Government ot any State' are .used and they.
provide th~t a person holdin~ an office of l'rofit under the.
948 SUPREME COURT REPORTS 119841 t s.c~R.

. Government of India cir a State Government is disqualifled for. beina
chosen as a member of Parliame.nt or of a State Legislature. respee· ·
lively. Article 98. and Article 187 of the Constitution wovide for the
appointment of separte secretariat staff of each House of Parliament
'r
and of the State. Legislatures respectively. Artide 146,and Article 229

.. of the Constitution respectively deal with the appointment of officers
and servants of the Supreme Court atid of the High Courts.- Article
148(5) and Article 318 of the Constitution respectively deal with the . :i.,
of
conditions of service etc; of the employees working in the office the
Comptroller and Auditor-General of India and the Public Service
. Commissions. Part XIV of ihe .~onstitution contains provisions relat· .
ing to the services under the Union Government and the State Govern:
c · meats. It contains Article 31 I which guarantees certain rights which
. cannot be denied to the employees in the Legislature and in the •
. Judiciary. Dealing with the riature of the office held by .the officers
working in t)le High .Court, who are governed by Article 229 of the
Constitution' this Court has observed in Praayat Kumar Bose v. The
D Hon'ble the Chief Juctice of Calcutta High Court(1) thus :

."A close scruti~y of the terminology so used .shows a.
marked departure in the language of article 320(3)(c)
from that. in articles 310 and 31 !. Officers and
members. of ·the staff attached to a High Court clearly
E fall within the scope of the phrase "persons appointed •
to.public services and.posts in connection with.the affairs
of the State" and also of the phrase "a person who .is a
member of; civil service pf'a State" · as used in · articles
. 310' and 311. The .salaries of these persons are· paid out
of the State fuods as appears from article 229(3) which
F provide; that the administrative expenses of a High Court
including all salaries, allowai;ices and pensions payabl~ to.
or in respect of officers and. servants of the High Court,
are chargeable upon the Consolidated Fund of a ·state.
The item relating to such administrative expenses . has to .
G . form part of the annual finaticial stateme~ t t() be presen•·
ted to the State Legislative Assembly utider article 202
and estimates thereof can form the subject matter ,_of the
·discussion in the Legislature under article 203(1 ). They
must, therefore, be taken."toj;hold posts in connection
with the affairs ofthe State and ·10 be~ memb~rs, of :the
civil service of the: State".

(1) (1~5512.S.C.R. 1331•.
.'
'
- ·P.N. SUKUL v. N.C. JAIN (Venkataramiah, J.)
.. 949
. Entry ? of List II of the Seventh Schedule to .the· Constitution
> relates to 'Local Governm'ent' that is· to say, the constitution .and A
.1
\
po~ers of municipal corporations, improvement trusts, 'district
boards, mining settlement authorities and other local authorities for
l the. purpose of local self-government or village administration. .fo
each of these cases it becomes necessary to examine the relevant
B
~ l
• provisions of law applicable to it in order to determine whether the
officers and staff of the various organs are officers of Go.vernment or
I ·not. Before taking up such examination the meaning of the expression
'Government' has to be asceriained. ·
_,J..
A student of International Law understands by the expression
"State' as a . fully ·sovereign independent community residing in a
c
speCified territoiy with. a legal capaci\y to enter into international·
. relations: and having the power to fulfil the obligations which the ··
international law imposes on the .family of nations. It should also
have been adm\tted or · recog lised as ·a State on a footing of equality ·
. with other State.s. A State implies the existence of ,a coinmunity D
. or group of people occupying a geographical area ·or territory
. in which they pdmanently r~side possessing foternal sover~ignt;/ and
..A indepondence of foreign control ·and a political organisation or
agency thro~gh which. the. collective will of the people is expressed
and enforced. The last of the elements of a State referred to above
is generally called as a Govermilent. A student of Political Theory E
. and Comparative Politics may discribe a Government as a monarchi-
cal, republican, democratic or dictatorfal depending upon its peculiar
features. It·may ·be feder~l or unitary. A political philosopher may
describe a li)overnment as imper.ial, colonial, capitalist or socialist,·
The .above .list is not .really . exhaustive. But these are only different
forms of Government aµd 'Government' here is used in a very broad
sense. From the legal point 6r view; Ciovernment may be described
as the exercise of' certain powers at:1d the performance of certain ,
dutie.s by public au,thorities or officers, togeth'er With certain private
persons or corporations exercising public functions. 'f.he strudure of
the Ill;•chinery o.f Government and. the regulation of the powers and G
duties which belong to the different parts of this structure are defined
by the law whi<;h also prescribes to.some extent the mode in which
these powers a re to be exercised or these duties are to be performed
. (See Halsbury's Laws of England, Fourth Edition, Vol. 8, Para 804).
Government generally connotes three estates, namely, the Legislature,
H
the Executive and the Judiciary while it is true that in a narrow ·sense
.
it.is used to connote the Executive onl?"· The meaning to be assignea
.
. ·,
950 SUPREME COURT REPORTS (1984) 1 s.c.R.

to that expression, therefore; depends on the context in which it is
A ~~ ,
•
In our Constitution,· which has a federal structure, there are ·
hoih at the level of the Union and at the level of the States
detailed provisions, .pertaining to the legislature, the Executive
and the Judiciary. All the . three organs are concerned with the •
B governance of ihe country one organ makes the laws, the second
enforces them and the third interprets them though sometimes ·
their ftinctions may be overlapping. · In ibis sense all · the three
organ·s together constitute the Government at their r.espective
levet It is significant thai the President is. a part of parliament under
c Article 79 of the Constitution, the executive power of the Union is
vested in him under Article 53 (I) of .the Constitution and he
appoints Judges of the Supreme Court under Article 124 (2) and ho
can issue an order removing a Judge of the Supreme Court under
Article 124 (4). of the Constitution, of course, subject to the limita·
tions contained therei.n. At the level of the State too the position is
D analogous to the position at the level of the Union. The. Governor
is ;part of the legislature of the State under Article 168(1) of the
Constitution. The r.xecutive power ·or the State is vested in him
under A.rticle 154(1) and he is consulted in the appiontment of judges
of the High Court. · While under Article 735 of the Constitution, the
E High Court is vested with the conttol over the· Subordi11ate Judiciary I .
of the State, in the case of dismissal or removal of a judicial officer
in the Subordinate Judiciary, the Governor has to issue the order
though on the recommendation made by ihe · High Court. A study
· . •of tbrse provisions shows that there is no water tight ~ompartment
. between the th~ee major organs of the State. The Comptroller and
F Auditor-General oflndia though he.is assigned an independent status
is an officer under the Union Government. (See Gurugobinda Basu v:
Sankari Prasad Ghosal & Ora.)(I) The Judges of the Supreme Court
and of a. High Court are not ·servants of Government but hold a
constitutional office (vide Union of India v. Sankal Chand Himatlal
G Sheth & Anr.(2) and Hargovind Pant v. Dr. Raghukul Tilak & Ors.(')
But the Comptroller and Auditor-General of India· and the Judges of
the Supreme Court and of a High Court arc not eligible to contest·
elections to Paritament'and the State legislatures in view of Article
!02(i)(a) and Article 19l(l)(a) of the Constitution, as .the case may
H
(!) [196414 S.C.R. 311. .
• c2J [197BJ 1 s.c.R: 423.
(3) (1979) 3 S'.C.R. 972. •
P,N. rnKUL ~. N.C. JAIN (Venkatarami~h. J.) 951

be, because they are serving in connection with the affairs of. the
Union (See Article ~60(4)(b) of the Constitution) and are, therefore, A
holding offices of profit·under the Central Government. The position
of a person whoiworks as an ·officer of the Legislature of a State is
also the same. Even though he be1ongs under Article 187 of the
Constitution to the staff of the State Legislature, he is still an officer
of Government' in the broad sense . in which the expression B
'Government' is used in Article l02(l)(a) and Article 19l(l)(a) of the
Constitution. If the expression 'Government' used here is construed
as- meaning the Executive Government only, then it would defeat the .
.very purpose of these provisions of the Constitution. Similarly he·
has to be treated as an officer of Government for purposes of.. section
21 of the Act also qualified for being appointed as the Returning c
Officer for an election held under the Act. It is· not disputed that
after the commencement of the Constitution, the Secretaries of the
State Legislatures almo;t as a. ~att~'r of rule are being app~inted as
•
' Returning Officers for election to the Rajya Sabha a.nd for election
to the Legislative Councils ofStates a'nd Parliament has not thought D
'it fit.to amend suitably, ·section 21 of the. Act expressly including·
the officers of the State Legislatures amongst the persons qualified to
be appointed as Returning Officers even though it has amended that
section once by specifically including officers of local authorities.
Parliament all along has treated the Secretaries of the State Legisla-
tnres as officers of Government for purposes sectio.n 21 and ha; found E
. it convenient to do so having regard to the nature of the work to be
carried out by them. It may be noted that eye~ though Article 98
and Article.18Tof the Consitution contemplate the establishment of
a separate secretariat staff for each House of Parliament and of the
State Legisiature respectively, the salaries and allowances of the mem-.
F
bers of that staff are paid out of the Co11solidated ·Fund of India ·or
of the State, as the case may be after they are voted by the House or
Houses· concerned. Their appointme11.t and other- conditions · of
service are regulated by Rules made by the President· or ihe Gover~
nor, as the case may be, until appropriate law is made by Parliament
.or the State Legislature, as the ca~e may _!)e. W.e are of the view that G
the word 'Government'· Article l02(l)(a) and in Article J9l(l)(a)
of the Constitution and the word .'Government' in the expression ·'an
officer ef Government' in section 21 of the Act should.be ,interpreted
liberally so as to include within its scope the Legislature, ·the Execu~
tive and the Judiciary. The High Court erred in equating the word H
'Government' occurr~ng in section 21 of the Act to the Executive·
Governmeot only and in further holding that the officers of .the
•
'952 SUPREME COURT .REPORTS (1984] 1 s.c.R.

State Legjslatu.re could not be treated as officers ·of Government for
A purposes of that section. The finding of the High Court that' the
· Secretary of the Uttar Pradesh State Legislature could not be appoin-
ted as the Returning Officer for the election to the· Rajya Shaba is,.
therefore, unsuslainable. · · '

B
· The second question to b~ considered is whether the no~lnation
of the appellant was liable to be rejected ·on th~· ground that the
propose.r was not eligi.ble to nominate a candidate as he had :not made
and subscribed the oath or affirmation as prescribed by Article 1s8 of
ihe Constitution. · ·

· Section 33 :Of the.,Act p.rescribes th~ ·requirements for .a valid
n?mination. It provides that the nomination paper should be com-
pleted in the prescribed form and signed .by the the candidate and by
an elector of the constituency as propose~ .. Clauses (d) and (e) of
0

section 2(1) of the. Act define the ·words 'ekction' .,and 'elector' ..
respectively. 'Election' means an election to fill. a seat or seats in
D either House of Parliament odn the House or either Ho.use of the
. Legislature' of a State
. . the State of Jammu and Kashmi~.
othd than .
''Elector' in refatiop to a co11stitµency means· a person whose name.is )
entered .in the electoral roll of tJ:iat constituency for the ·time being
i11 force and who is not subject to ·any of the. di.squalifications men-
•
E tioned in section 16 of the Representation of. the Pepple Act, 1950 (43 · ;
of 1950). Sub-<(lii\ise .(b) o(clause (1) of Article 80 of the Constitution
states that the Council of States (the Rajya Sabha) shall in addition
to twelve members nominated by the President 'under sub-clause (a}
thereof consist of not more than two·· hundred· .·antl tbiriyeight
representatives of t~e States a.nd of the Union territories. Clause (2) ·
F of Article 80 of the Constitution provides that the allocation of seats ·
.in the Council or' States to. be filled by representatives of the . States
and of the Union territories shall be in accordance with the provi"
sfons in that behalf contained in the Fourth' Schedule · to the
Constitution. Clause (4) of Article 80 provides that the representatives
of each State in Council of States shall be elected by the elected mem- ·
G
hers of the Legislative Assembly of the 'State .in accordance· with· the
system of proportional representation by, means ?f the single
transferable vote. Section 152 of the Aci provides that the Returning
·Officer fer on election by the elected· members of the Legislative
Assembly ~f a State to fill a seai or seats in _the Council of States
H shall for. th~ purposes of such election maintain in' bis office in the.
prescribec;I inanner and from a list of elected me!?lbers of that
Legislative Assembly. Clause {c) of sub·rule {l) of Rule 4 of the
• . I
P.N. smru~ v. N.c. JAIN (V~nkatar11miah, J.) .. 953

Conduct of Elections Rules, J.961 defines· :"election by assembly
members" as an election to the Council oCStates by the elected mem· A
. bers of the Legislative Assembly of a State or by the members of the
· · electoral college of a Union territory ot an ·election to the Leg_isla-
tive Council of a State by the members of the. Legislative Assembly
ofa State. 'Elector' is defined by clause (d) of sub-rule (I) of Rule 2
ofth<rsaid Rules; in relation to an electi()n by Assembly members. as ·B
l - any person entitled to vo!e at that election ..

In the present case, the notification containing the names of.
ele~ted ·members of the Uttar. Pradesh Legislative Assembly· who
participated at the ele~tion ·in questjon bad been published under
section 73. of the Act on iune 9, 1980 and that the previous Legisla- C
live Asseinbly had been dissolved earlierin February, 1980. • This is
not a case where general elections to the Legislative Assembly had
been held before the normal tenure of the existing Legislative ·
Assembly was over. Section 73 of· the Act which prescribes the
,. publication of results of general elections reads thus : D
"73, Publication of results of general elections to the
House. of the People and th'e Staie Legislative Assem-
. blies,-Where a general election is held for the purpose ·of
constituting a new Hou•e of the P<ople ·or ane.w State
Legislative Assembly, there shall be notified by the E
Election Commission in the Official Gazette as soon as
may be after the res.lilts of.the elections in all the consti'
tuencies (other tha.n those in which the poll could not be
. taken for any reason on the date originally fixed under
"'. clause (d) of section 30 or for which the time for comple- .
tion of the· election ]las been extended unde~ the
F
provisions of section 153), have, been declared by the .
returning officer under !he proviSions of section 53' or, as
the <ease may be, section· .6(), the names of the members
elected for those constitue~cies and upon the issue of such
notification that House or Assembly shall be deemed to be G
duly constituted :

.. Provided that_ the issue of sucli notification ·shall not
be deemed-;
B
(a) to preclud~-

•
..
•
954 SUP~ COURT REPORTS [1984] 1 s.c.R.

(i) The taking of the poll and the completion
A of the election in any .Parliamentary or Assembly
constituency or constituencies in which the· poll
could not be taken· for any. reason on the date
originally fixed under clause. (d) of section 30; or

B (ii) the completion ~f the election in any
Parliamentary 9r Assembly constituency or consti·
tuencies for which time has been extended under
the provisions of se.ctibn 53; or ·

(b) to affect the duration of the House. of the People
c or the State Legislaiive Assembly, . if any, functioning
'immediately before the issue of the said notification." .
(emphasis added)

On the publication of the notification on ·'June• 9, 1980 under
D section 73 of the Act in the instant case, the Assembly was d~emed
'to be duly' constituted. Article 188 of the ConstitutiOn prescribes
the oath. to· be taken orthe affirmation to be made by every member
ofa Legislative Assembly or a Legislative Council. It reads : ..
•
"188. Every member of the Legi~Jative Assembly or
E. the Legislative Council of a State shall, before· taking his •
·seat, make and subscribe before ·tfie Governor, or some
. person appointed in that behalf by him, an oath or· •
affirmation according .to the form set out for the

F
purpose in the Third Schedule."

Article 191 of tl:ie Constitution prescribes the disqualiiications
.
for membership of the Legislative Assembly or Legislative Council·
·of a State. ·on the incurring of any such .disqualification .a membe.r or'
a Legislative Assembly or a Legislative Council ceases to be a member
thereof. 'Article 193 of the Constitution provides. for the penalty ·for
G sitting and voting before making oath or affirmation· under Article 188
of the Constitution or when not qualified or when disqualified the
penalty being in respect of ea.ch day five hundred rupees. to be
recovered as a debt due tO' the State. It does not say that if an . •
elected member of a Legislative Assembly sits and votes before
H taking oath as prescribed by Article 188 of the Constitution he ·shall
automatically cease to be a m_ember of the House, even though it is
. possible that his seat mayjie. declared as vacant under Article )90(4)
.1'.N. SUKUL v. N.c. JAIN (Venkataraniiah, J.) 955.
6
of the Constitution 1f for sixty days he is absent from all meetings of
I I
the H9use without its permission. Now the question is whether the A
.
. _.\ making of oath or affirmation· is a condition precedent for being
eligible to act ~s a proposer of a valid nomination for election to the
Rajya Sabha. The rule contained in Article 193 of the Constitution,
as stated earlier is that a member elected to a legislative Assembly
cannot sit and ;ate in the House before making oath or affirmation. B
The words 'sitting and voting' in Article 193. of the Constitution i1'.'ply
the summoning of the House under Article 174 of the Constitution by
the Governor to meet at such time and place as he thinks fit and. the
holding of the melting of the .House pursuant to the said. sumll'.ons
· or an adjourned meeting. An elected member incurs the penalty for
contravening Article 193 of the Constitution only ·when he sits and
votes at such a meeting of the House. Invariably there is. an interval
of time between the constitution of a House. aftei a general election
as provided by section 73 of the Act and the summoning of the first
meeting of the House. During that interval an elected member . of
the Assembly whose name appears in the notification issued under D
section 73 of the Act iS entitled to all the privileges, salaries and
allowances of a member of the Legislative Assembly, one of them
being the right to function as an elector at an election held for filling
a seat In the Rajya Sabha. That is the effect of section 73 of the Act
which says that on the publication of. the notification under it the
House shall be deemed to have· been constituted. The election in ll ,
question does not form a part of the Legisfotive p_roceedings of the
House carried on at its meeting. Nor the votes cast at such an election
is .a vote given in th(House on any issue arising before the House.
The Speaker has no control over the election. The election is held
by the Returning Officer appointed for the purpose. As mentioned
earlier, under section: 33 of the Act the nomination paper has to be F
presented to the Returning Officer between the hours of eleven
o'clock in the forenoon and.three o'clock in the afternoon before the
last day :notified for making nominations under section 30 of the Act.
Then all further steps such as ·scrutiny of nominations and withdrawal
. of nominations take place before the Returning Officer. Rule 69 of G
the Conduct of Elections Rules, 1961 provides that at an election by
Assembly members: where a poll becomes necessary, the Returning .
Officer for such election shall, as soon as may be after the last date
for the withdrawal of candidatures, send to each elector a notice
. informing him of the dat.e, time and place fixed for polling. Part VI H
··of-the Conduct.of Elections Rules, 1961 which contains Ruie 69 and
Part VII thereof deal with the procedure to be followed at an election
•. '

StlPREMB COURT. REPOiltS . [i984]i s.c.it.
by .assembly members:· Rule 85 of the Conduct of Elections'Rules'
. .
A -

1961 provides that as soon as niay be after a candidate has been .
.·declared to be Clected; the returning officer shall grant to such candi-
date a certificate of election in Form 24 and obtain from the candidate
.. an acknowledgement of its receipt duly signed bY him and immediat~ly
Send the acknowleqgement by registered post to the Secretary of the
B Council or-States· or as the case may be, the Secretary of the Legisla-
tive Council. All the steps taken in .the course of the election thus
fall outside the proceedings that .take place at· a me~ting of the.
House.

.'
. . . . . . .
We may here refer to the decision of the Calcutta High Court in
c · Bhupendra Narh Basu v. Ranjit Singh.(1) The facts of that case .were
these. An election was'held on February 14; 1913 lo the Legisla•ive
Council of the Governor-Ge.neral from th·e constituency consisting of
the non-official· additional 'members of the .Bengal Legislative Council
each having two. yotes to fiB two seats in the Legislative Council of
D the Governor-General. There were. at. that time thirty four non-
official additional members but two of them had not taken the oath
of allegiance at the time of the election as prescribed by the Bengal
Council Regulation Vil. Ai the election there were four candidates-
.the plaintiff Bhupendra Nath Basu, -the lst defendant Maharaja
Ranjit-Sirigh, the ?nd defendant Surendra Nath Banerjee and Nawab
..E Badruddin Haidar. ·As a result or'the· poll the second defendant ·got
.22 .votes, the first defendant got 18 votes, the plaintiff 17 and Nawab
Badruddin Haidar 11 votes. .Accordingly defendants I and 2 ·were
declared elected to fill the two seats. The plaintiff after being
unsuccessful in his petition to the Governor-General filed a suit
F ·. before the High Court questioning the validity of the. election. He
prayed ·th.at ·the. votes should be recounted after excluding the votes c.
cast. by the two members who had not· taken the oath of allegiance~
Regulation :vn referred to above provided 'that· every persori _elected.
nominated )lnder the regulations should before taking his seat a.t a
meeting of the Council make an oathor affirmation of bis allegiance
G to the <;rown and Regulation VIII provided ihat if such a person
"fails to make the oath.or affirmation prescribed by Regulation VII
within such' time as the Govern·or-in·Council ttlay consider reasim-.
able, the Governor, shall by notification in the local Ofticial Gazette
dec!are'the election or nomination to be void-or his seat to be vacate".
Such, a declaration had not been made on the date of the electillµ. ~. ·

(I) LL.R ..4t Cal. 384,
l'.N; SUBIUL v. 11.c. JAIN (Venkataramioh, J.) 951

! The contention of the plantiff was rejected by the High Court in the
• following terms : · · • A

"Moreover, I am not satisfied that the view of the
Government as io t])e taking of the oath.of allegiance- is·
not a correct one. Doubtless the English cases that were
). -' .
referred tq, the case of the Mayor of Penryn (I Strange Ji.
582) and The King v. Swyer (1830) 10 B: {it;<;:. 486) liave
decided that a person is admitted to a public office,
which requires the oath of allegiance, only when t.he oath
of allegiance is taken. That does not .get rid ot the
·difficulty · that· arises from these . Regulations. These
Regulations constitute an electoral Coll~ge of · elected c
members of the Local.C.ouncil to elect two persons to be
j members of the Council ofl:lis Excellency the Governor·
\ General. I. ~m not satisfied on the Regulations . that the,·
i learned Advocatc-Generaihas called' my .attention to, that •
when the electors have the right of giving their votes by
means of registered letter •. for the purpose of being mem-
bers of electoral college and for that purpose only, that
.A.
,. the mere faci of election· to· the local ·cou.ncil was riot·
sufficient to constitute a person so elected a . member of
the electoral college. 'It is only for the purpose of exercis-
~ ing the legislative functions conferred by the Regulations ·
''
and by the Act that the oath of allegiance is required.
l Moreover, as the Advocate-General has pointed out, the
' mere fact of omission to. take an oath of allegiance· does
•
not ipso facto cause a member to·vacate his ··seat; under·
"· .. Regulation VIII of the Bengal CounciL Rogulations, the' F
. ),
discretion is given to the Governor as to his declaring a •
seat to be vacant if the person . elected fails to ·1ake an .
oath of alle£:iance .. In my opinion, in this case the Rule
. fails and must be discharged, and discharged with costs .
•
We are of the view that an elected member who has noi taken
.oath but whose name appears .jn the notification published under
s.ection 73 of the Act can take part in all non-legislative activities of
an elected memher: The right of voting at an election to. the Rajya
Sabha can also be exercised by him·. li1 this case since it is nof dis; .
~ .. .. H·
puted that the name of the. proposer had been· included before the ·.
date on which he proposed the name ·of the' appellant as a
candidate in the 'notification ·published under section . 73 of the Act
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958 SUPREME COURT REPORTS [1984) I s.c.R.

and in the electoral roll maintained nnder section 15~ of the Act, it
A should be held that there was no infirmity in the nomination. For
the same reason'even the electoral roll whh;h contained the names of
elected members appearing. in the notification issued under section 73
of the Act cannot be. held to be illegal. That is how even respondent
No.! appears to have understood the true legal position as he was also
proposed as a candidate by an elector who had not yet made the oath
B or affirmation. The second contention also fails. No other contention
was pressed before us. We ate t.herefor.e, of the view that the findings
recorded by the High Court on the .basis .ofwh.ich the election of the
appellant to the Rajya Sabha was set aside are erroneous.

c In the result we allow the above appeals,.set aside the judgment
of the High Court and dismiss the election petition· filled by respon·
dent No. !. Having regard to the novelty oCthe question raised in
this case
. the parties are directed to
. bear their own costs throughout.

N.V.K . • Appeals allowed:..

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