Holding

A provisional appointment as Assistant Public Prosecutor is an office of profit, and a Section 45‑B petition challenging disqualification is maintainable irrespective of a Section 44‑A election petition.

Summary

Rabindra Kumar Nayak, an advocate, was provisionally appointed as Assistant Public Prosecutor under the Orissa Law Officers Rules, 1971 and CrPC, 1973. While holding this post he was elected as a member and subsequently as Chairman of Moroda Panchayat Samiti. A rival candidate filed a petition under Section 45‑B of the Orissa Panchayat Samiti Act, 1959 alleging that Nayak’s appointment constituted an "office of profit" under the State Government, rendering him disqualified. The District Judge and the Orissa High Court held that the appointment was an office of profit and that Nayak was disqualified. On appeal, the Supreme Court examined whether a provisional appointment qualifies as an office of profit and whether a Section 45‑B petition is maintainable after an election result. The Court held that the post of Assistant Public Prosecutor is a permanent office that yields profit, thus an office of profit, and that a Section 45‑B petition is permissible irrespective of a Section 44‑A election petition. Consequently, the appeal was dismissed.

Issues considered

Whether a provisional appointment as Assistant Public Prosecutor constitutes an "office of profit" under Section 45(1)(i) of the Orissa Panchayat Samiti Act, 1959.
Whether an application under Section 45‑B of the Act is maintainable after the election result, i.e., whether filing an election petition under Section 44‑A bars a Section 45‑B petition.

Legislation cited

Code of Criminal Procedure, 1973s. Section 25
Orissa Panchayat Samiti Act, 1959s. 44-A, s. 44-L, s. 45, s. 45(1)(i), s. 45(2)(i), s. 45-B

Subjects

office of profitdisqualificationPanchayat SamitielectionAssistant Public ProsecutorSection 45-BSection 44-AOrissa law

Judgment

A RABINDRA KUMAR NAYAK t·
v.
COLLECTOR, MAYURBHANJ, ORISSA AND ORS.

FEBRUARY 19! 1999

B [K.T. THOMAS AND S.S.M. QUADRI, JJ.]

Parichayats :
·-
Orissa Panchayat Samiti Act, 1959, Section 45(1)(i).
c Panchayat Samiti--Member and Chainnan--Eli!t:tion of-Disqualifica-
tion of candidates-Holder of "office of profit"-An advocate, provisionally,
appointed as Assistant Public Prosecutor, under R. 5(4) read with S. 25
Cr.P.C., was elected as member and Chainnan of Samiti--Validity of-Held,
the office of Assistant Pubic Prosecutor is an "office of Profit" under the State
D Govemment-He1u;e, such a person is not eligible to contest the election for
the post of member or Cl1ainnan and, if elected, would cease to be a member
and a fortiori to be Chairman-Orissa Law Officers Rules, 1971, R. •.
5(4Kriminal Procedure Code, 1973, S. 2~Service Law.

Sections 44-A and 45-B-Scope and ambit of-Although there is some
E overlapping between the two Sections yet their field of operation is different
and distinct.

Section 45-B-Disqualification of a member--Detennination of-Ap-
plication under-Maintainability of-Held, remedy ·under S. 44-A is no bar
F for an application filed under S.45-B.

Words and Phrases :

"Office of profit''--Meaning of-In the context of S. 45(1)(i) of the
Orissa Panchayat Samiti Act, 1959.
G The appellant, an Advocate, was appointed as Assistant Public
Prosecutor provisionally under Rule 5(4) of the Orissa Law Officers Rules
1971 read with Section 25 of the Criminal Procedure Code, 1973 to conduct
criminal cases. The appellant was entitled to a daily fee of Rs. 100 subject
to restrictions under the Rules. While so, he and respondent No. 4 were
H elected members of different Panchayat Samitis. The appellant and respon-
768
-~
I

R.K. NAYAK v. COLLECTOR MAYURBHANJ, ORISSA 769
dent No. 4 contested for the post of Chairman of the Samiti of which the A
appellant was a member. The appellant was declared elected as Chairman.
Having lost in the contest, r~spondent No. 4 initiated proceeding against
the appellant under Sections 45-B of the Ot;issa Panchayat Samiti Act, 1959
in the court of the DistJ"ict Judge on the'"grourtd that as Assistant Public
Prosecutor he was holding 'office of profit' under the Government, so he
was not eligible to be either a Member or Chairman of the Panchayat B
.Samiti. The District Judge allowed the l\PPlication filed by respondent No.
4 and the High Court confirmed the said order. Hence the appeal.
--·
On behalf of the appellant it was conteµded that the appointment of
th"e appellant as Assistant Public Prosecutor was provisional, as a stopgap
arrangement, as such he was not holding office of profit; and that after the
c
election of the appellant was over, only an Election Petition under Section
44-A but not petition under Section 45-B of the Act was the remedy of
respondent No. 4.

Dismissing the appeal, this Court D

..__ • HELD: 1. The expression "office of profit" only means an office, which
yields income or profit. The term "office" or "employment" means as one
subsisting, permanent, substantive position which has an existence inde-
pendent from the person who filled it, which went on and was filed in
succession by successive holders. [774-D-E] E

KamtaKathuria v.Manak Chand Surana, AIR (1970) SC 694, followed.

Mahadeo v. Shantibai, [1969] 2 SCR 422; Madhukar GE. Pankakar v.
Jaswant Chobbildas Rajani, AIR (1976) SC 2283; Great Westem Railway Co.
v. Bater, (1922) 8 Tax Cases 231 and Macmillan v. Guest, (1942) AC 561, F
referred to.

2.1. To incur disqualification under Section 45(1) (i) of the Orissa
Panchayat Samiti Act, 1959 it must be shown that : (i) there was a per-
manent office of Assistant Public Prosecutor, (ii) income or profit accrued
from that office, and (iii) that the appellant held that office. It is indis- G
potable that permanency is attached to the post of Assistant Public
,.. Prosecutor and appointment to that office is regulated by the Orissa Law
Officers Rules, 1971 which deal with the remuneration of the law officers.
It is immaterial that the appellant did not in fact receive any fee. Require-
ments (i) and (ii) are, therefore, satisfied. The appointment of the appellant H
1-

770 SUPREME COURTREPORTS [1999) 1 S.C.R.
A as a Law Officer/Assistant Public Prosecutor under the Rules would satisfy -r-
the third requirement as well. [776-C-D]

2.2. The appellant's contention that as the appointment of the appel-
lant was a stopgap arrangement, it could not be said that he was holding
office of profit is devoid of merit. It is clear that to fulfil the requirements
B . of the expression "office of profit" it must be shown that permanency is
attached to the office and nor to the term for which a person holds it.
·f·
Persons who fill the office come and go in succession. One may su~ceed
the other after a long gap or in quick succession. How long one remains
in office is irrelevant to decide whether one holds it as office of"'profit. ,
C Therefore, it has to be held that the appellant was holding office of profit
on the relevant date and was not eligible to stand for election of member
or Chairman of the Panchayat Samiti and in view of the provision of
Section 45(2)(i) he shall cease to be a member and a fortiori to be the
Chairman of the Samiti. [776-E-G]
D 3.1. TI1ere is no doubt that there is some overlapping between Sec-
tions 44-A and 45-B but the field of operation of these two Sections is
different and distinct. Indeed under Section 45-B, a District Judge is not
pronouncing upon the validity of the election but is only pronouncing upon
the question as to whether a member is or has become disqualified under
E the Act. It cannot be laid down that no relief under Section 45,B can be
claimed after the declaration of the result of the election and therefore,
the remedy of filing election petition_ under Section 44-A is no bar to file
application under Section 45-B of the Act for inviting a decision on the
question of disqualification of a member. [779-B-D]
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 943 of t
1999.

From the Judgment and Order dated 10.3.98 of the Orissa High
Court in O.J.C: No. 13498 of 1997.
G
Janaranjan Das, Debasis Mohanty and K.N. Tripathi for the
Appellant.

Hardev Singh, Ms. Madhu Moolchandani for the Respondents.

H The Judgment of the Court was delivered by
R.K NAYAK v. COLLECTOR MAYURBHANJ, ORISSA {QUAD RI, J.] 771
QUADRI, J. Leave is granted. A
The question that arises in this appeal is whether the appellant was
holding 'office of profit' under the State Government while functioning
provisionally as Assistant Public Prosecutor and was therefore disqualified
to become a member/Chairman of a Samiti under the Orissa Panchayat
Samiti Act, 1959. B
The factual backdrop in which the question falls for consideration
may briefly be set out here :

On August 14, 1995 the appellant, an advocate practising in the
courts of Cuttack, was appointed as Assistant Public Prosecutor c
provisionally under Rule 5(4) of the Orissa Law Officers Rules, 1971 (for
short 'the rules') read with Section 25 of the Criniinal Procedure Code,
1973 to conduct the criminal cases. He was entitled to daily fee of Rs. 100
subject to restrictions under the rules. While so he contested the election
to the seat of the member of Moroda Panchayat Samiti and the fciurth D
respondent contested for the seat of member of Gudigan Panchayat samiti.
After being elected as members, both of them contested in the election to
the post of Chairman of Moroda Panchayat Samiti. Appellant was declared
elected as Chairman on February 10, 1997. Having lost in the contest, the
fourth Respondent initiated proceeding against the appellant under
Section 45-B of the Orissa Panchayat Samiti Act, 1959 (for short 'the Act') E
in the court of the District JUdge, Mayurbhanj on the ground that as
Assistant Public Prosecutor he was holding 'office of profit' under the
Government so he was not eligible to be either a member or the Chairman
of Moroda Panchayat Samiti. The .appellant resisted the same on two
grounds : first that his appointment under Rule 5(4) of the Rules was a F
stop-gap arrangement so he was not 'holding office of profit' and second
that the petition filed by the fourth respondent under Section 45-B of the
Act was not maintainable as after the election was over his only remedy
was to file an election petition under Section 44-A of the Act.

On September 20, 1997 the learned District Judge held that the G
petition under Section 45-B was maintainable and the appellant was hold-
ing office of profit under the Government within the meaning of Section
45(1)(i) of the Ai:t; so he was disqualified to be a member or Chairman of
the Panchayat Samiti. The appellant challenged that order before the High
Court of Orissa. On March 10, 1998 the High Court dismissed the writ · H
772 SUPREME COURT REPORTS [1999] 1 S.C.R.
A petition confirming the said order of the learned District Judge. Against I·
that order. of the High Court the appellant is before us in appeal by special
leave.

Shri Janaranjan Das, learned counsel for the appellant, urged the
very same two contentions before us as were raised before the High Court
B namely, (i) that the appointment of the appellant as Assistant Public
Prosecutor. was provisional, as a stop-gap arrangement, as such he was not
holding office of profit and tii) after the election of the appellant was over
only Election Petition under. s.ection 44-A but not petition under Section
45-B of the Act was the remedy of the fourth respondent.
c We shall deal with the first contention reading the order of ap-
pointment of the appellant as Assistant Public Prosecutor which runs as
under:

"GOVERNMENT OF ORISSA
D
LAW DEPARTMENT

No.XX 11126/L dated r3BSR, the 14th August, 1995

From
E Shri 11.Mohapatra, OS,J.S.(Sr.Br.)
Legal Remembrancer.

To

The District Magistrate, Mayurbhanj.
F
Sub: Appointment of Astt. Public Prosecutors for the district of
Mayurbhanj.

Sir,
G I am directed to say that Government have been pleased to
appoint the following Advocates as Asst.Public Prosecutors
provisionally under Rules 5(4) of the Orissa Law Officers Rules,
1971 read with Section 25 of the Cr.P.C., 1973 to conduct the
criminal cases in the courts of magistrates both Judiciary and
.H Exec~tive with places shown their names until further orders .
t
R.K. NAYAK v. COLLECTOR MAYURBHANJ, ORISSA [QUADRI, J.] 773
1 to 3. xxx xxx xxx AP .P .Baripada A
4. Shri Rabi Nayak - do -

5. xxx xxx xxx ****

B
The A.P.Ps are eligible to get daily fee of Rs. 100 (Rupees one
hundred only) subject to such restrictions as are provided in Orissa
Law Officers Rules, 1971.

The appointment is purely temporary and liable to· be ter- C
minated at any time without notice.

The person concerned may be intimated accordingly.

Yours faithfully,
D
sd/-
)

Legal Remembrancer"

The order refers to Section 25 Cr. P.C. and rule 5(4) of the Rules.
Section 25 of the Code of Crim:.nal Procedure imposes an obligation on E
the State Government to appoir1t in every district Assistant Public
Prosecutor for conducting prosecution in the Courts of Magistrates. Rule
5(4) of the Rules is in the following ~erms :

"In case of any contingency arising due to temporary absence or
vacancy in the office of the Law Officer for any reason whatsoever, subject F
to the provisions contained in Section 492(2) of the Criminal Procedure
Code, 1898, the State Govt. may appoint a Law Officer temporarily till the
return of the existing incumbent or the vacancy is filled up, as the case may
be."

A perusal of the rule quoted above leaves no room for any doubt G
that it provides for appointment of a Law Officer in two contingencies : (i)
... temporary absence of the existing incumbent, and (ii) vacancy in the office
of law officers for whatever reason. An appointment made under this rule
is terminable on the return of the existing incumbent or on the vacancy
being filled up, as the case may be. H
774 SUPREME COURT REPORTS (1999] 1 S.C.R.
A A plain reading of the order of appointment of the appellant and the
aforementioned provisions shows that in discharge of the statutory obliga-
tion the State Government appointed him along with others as an Assistant
Public Prosecutor provisionally and that it i.s purely temporary, terminable
at any time without notice.

B We shall now consider whether such an appointment will fall within
the clutches of Section 45(1)(i) which is extracted below :

"45( 1). Disqualification for becoming a member and continuing as
a member - A person shall not be eligible to stand for election
C under sub-sec. (1) of Sec. 16 if he -

(i) holds any office of profit under the State or Central Govern-
ment or any local authority."

The phrase "holds any office of profit" employed in this clause is the
D bone of contention. The expression "office of profit" only means an office
which yields income or profit; the word 'office' had been subject matter of
judicial consideration as long back as in 1922. In Great Western Railway Co.
v. Bater, (1922) 8 Tax Cases 231, Rowlatt. J. defined the term "office" or
"employment" as one subsisting, permanent, substantive position which had
E an existence independent from the person who filled it, which went on and
was filled in succession by successive holders. This was approved by the
House of Lords in McMillan v. Guest, (1942) AC561.

The Constitution Bench of this Court in Kanta Kathuria v. Manak
Chand Surana, AIR (1970) SC 694 quoted with approval the aforemen-
F tioned exposition of 'office' by Rowlatt. J. In that case the question was
whether ail advocate appointed as a Special Government Pleader to assist the
Government Pleader in a particular case, held "office of profit" under the
Government and hence incurred disqualification under Article 191 of the
· Constitution of India. Relying on the said exposition, the minority view was
G expressed by Hidayatullah, 0. (speaking for himself and Mitter,J.) thus:
"What matters is that there was an office created apart from Mrs.
Kathuria. It is in evidence that it was first held by Mr. Maneklal
....
Mathur another advocate. It is likely that if Mrs. Kathuria had
declined some one else would have been found. Therefore, there
H was an office which could be successively held; it was independent
t:
R.K. NAYAK v. COLLECTOR MAYURBHANJ, ORISSA [QUADRI,_J.] 775

( .., of Mrs. Kathuria who filled it, it was a substantive position and as A
permanent as supernumerary offices are. Ev.ery one of the tests
laid down by Rowlatt.J. are found here.

We wollid therefore, hold that the High Court was right in its
conclusion that Mrs. Kathuria held an office. Since there is no
dispute that it was for profit and under the State, the election of B
Mrs. Kathuria must be held to be void as she was disqualified to
stand for the election."
..,
In coming to that conclusion, the learned Judges followed their own
judgment in Mahadeo v. Shantibai, (1969) 2 SCR 422, wherein it was held
that the appellant therein who was on the panel of lawyers prepared by the
c
Western Railway Administrations, held office of profit under the Government.

But Sikri, J. speaking for the majority, after referring to the same
exposition of the term 'office' as well as the observations of Lord Atkin
and Lord Wright in McMillan's case (supra) observed, .D
"There was no doubt that if her engagement as Special Government
).
Pleader amounted to appoiiitment to an office, it would be an
office of profit under the State Government of Rajasthan ......

Therefore 110 particular significance can be attached to the E
notification made under Rule 813 appointing the appellant as
Special Government Pleader. We cannot visualise an office coming
into existence, every time a pleader is asked by the· Government
to appear in a case on its behalf. The notification of his name under
Rule SB does not amount to the creation of an 'office'."
F
The difference of opinion between the. inajority and the minority is on the
question whether by the notification the Government created office of
Special Government ·Pleader but not in regard to meaning of the expression
'office of profit' and the application of the tests enunciated by Rowlatt, J.

In a subsequent judgment of this Court in Madhukar G.F. Pankakar G
v. Jaswant Chobbildas Rajani & Ors., AIR (1976) SC 2283, the enunciation
of .Rowlatt, J. and observations of the House of Lords in Mcmillan's case,
... /
, referred to above were relied upon to hold that a Medical Practitioner
working as a panel doctor appointed under the Employees State Insurance
Scheme did not hold "office of profit" under the State Government so as to H
L
776 SUPREME COURT REPORTS (1999] 1 S.C.R.
A attract disqualification under Section 16(1)(g) of the Maharashtra
Municipalities Act, 1965. Krishna Iyer, J. speaking for the Bench concluded :

"The critical test of independent existence of the position irrespec-
ti".e of the occupant is just not satisfied .............we are unable to
B hold that there is an 'office of profit' held by him and that he is
'under government'.''
(-
From the above discussion it follows that to incur disqualification
under Section 45(1)(i) of the Act it must be shown that : (i) there was a
C permanent office of Assistant Public Prosecutor, (ii) income or profit
accrued from that office, and (iii) the appellant held that office.

Now adverting to the facts of this case, there is no controversy that
permanency is attached to the post of Assistant Public Prosecutor and
appointment to that office is regulated by the Rules which deal with the
D remuneration of the law officers. It is immaterial that the appellant did not
in fact receive any fee. Requirements (i) and (ii) are therefore, satisfied.
The- appointment of the appellant as a Law Officer/Assistant Public
Prosecutor under the Rules would satisfy the third requirement as well.

However, Mr. Das would contend that as the appointment of the
E appellant was a stop gap arrangement it could not be said that he was
holding office of profit. This contention is devoid of merit. From what is
stated above it is clear that to fulfill the requirements of the said expression
•
it must be shown that permanency is attached to the office and not to the I
~

term for which a person holds it. Persons who fill the office come and go
F in succession. One may succeed the other after a long gap or in quick r
succession. How long one remains in office is irrelevant to decide whether •
he holds it as office of profit. We have, therefore, no hesitation in conclud-
ing that the appellant was holding office of profit on the relevant date and
was not eligible to stand for election of member or Chairman of the
G Panchayat Samiti and in view of the provision of clause (i) of sub-section
(2) of Section 45 he shall cease to be a member afortiori to be the
Chairman of the Samiti.

We find no merit in the second contention of the learned counsel as
well. To appreciate this contention it may be useful to refer to the
H provisions of Chapter VIA of the Act which was inserted by Orissa Act 24,
..
-
+
R.K. NAYAK v. COLLECTOR MAYURBHANJ, ORISSA [QUADRI, J.] 777

.., 1961. It contains 17 sections (44A to 44R) dealing with the filing of election A
petition, grounds on which the. election of a returned candidate can be
declared void the procedure to be adopted by the Election Commissioner
and all allied matters. The Election Petition has to be filed before the
Subordinate Judge having jurisdiction over the place where the office of
the Samiti is situated. The grounds for declaring the election void are
enumerated in clauses (a) to (c) of sub-section (1) of Section 44-L. Clause·
B
© incorporates the ground on which the appellant is sought to be dislodged

"44-L. Ground for declaring election void - (1) The Election Com- c
missioner shall declare the election of a returned candidate void,
if he is of the opinion -

"© that such person disqualified for election under the
provisions of this Act."
D
This provision confers power on the Election Commissioner to declare the
> election of a returned candidate void if he is of the opinion that such
person is disqualified on any of the grounds mentioned in sub-section (1)
which includes that such person was disqualified for election under the
provisions of the Act. Section 45 contains the list of vi;rious disqualifica-
E
tions for a person to become or continue to be a member of the Samiti.
We have held above that the appellant suffered disqualification under
Section 45 (l)(i) of the Act.

Section 45-B which empowers the District Judge to decide the ques-
~
tion of disqualification is quoted hereunder: F
... "45-B. District Judge t'o decide question of disqualification :-

(1) Whenever it is alleged that any member of a Samiti is
or has become disq~alified, or whenever any such mem-
ber is himself in doubt whether or not he is or has G
become disqualified such member or any other member
may and the Chairman at the reque5t of the Samiti shall,
... apply to the District Judge, having jurisdiction over the
place where the office of the Samiti is situated, for a
decision on the allegation or doubt. H
778 SUPREME COURT REPORTS [1999] 1 S.C.R.

A (2) The District judge, after holding an enquiry in the
prescribed manner shall determine whether or not such
member is or has become disqualified and his decision
shall be final.

(3) Pending such decision the member shall be entitled to
B act as if he was not disqualified."

Sub-section (1) of Section 45-B provides that if it is alleged that any
member of a Samiti is or has become disqualified, then the member himself
if he is in doubt as to whether or not he is or has become disqualified, or
C any other member may, and the Chairman of the Samiti, at the request of
the Samiti, shall apply to the District Judge having jurisdiction over the
place where the office of the Samiti is situated and seek a decision on the
allegation or doubt. Sub-section (2) empowers the District Judge to deter-
mine the disqualification of the member and attaches finality to the
D decision given by him. Sub-section (3) entitles the concerned member to
act as a member as if he was not disqualified during the pendency of the
proceedings before the District Judge.

Having given a resume of relevant provisions of the kt, we shall
proceed to consider whether in view of specific machinery provided under
E Chapter VI-A to deal with matters connected with election of mem-
ber/Chairman, a petition under section 45-B is maintainable after the
election of the appellant. The Election Petition under Section 44-A can be
filed by any candidate who need not be a member (Section 44-C); but an
application under Section 45-B can be filed, as noted above by a member
F of the Samiti who is in doubt about his incurring disqualification, the
Chairman of the Samiti at the request of the Samiti, or any other member.
Whereas in an application under Section 44-A, a candidate can claim not
only a declaration that the election of all or any of the returned candidates
is void but also a further declaration that he himself or any other candidate
stands duly elected, Section 45-B is not concerned with either declaring the
G election void or granting any consequential declaration as to who has been
duly elected. It merely enables the persons specified therein to invite a
decision on the question of disqualification of a member. Though dis-
qualifications mentioned in Section 45 of the Act are one of the grounds
under Section 44-L on which the Election Commissioner can declare the
H election of a returned candidate void; there are also other grounds on
+
R.K.NAYAK v. COLLECTORMAYURBHANJ, ORISSA[QUADRI,J.] 779
which election of returned candidate can be declared void. Yet those other A
grounds cannot be the subject matter of an application under Section 45-
B. Whereas the election peti,tion under Section 44-A has to be filed within
15 days after the date on which the result of the election was announced,
no period oflimi~ation is prescribed for an application under Section 45-B;
it can be filed at any time while the member continues to act as a member
of the Panchayat Samiti. There is no doubt that there is some overlapping
B
between the two sections but the field of operation of these two Sections
is different and distinct. Indeed under .section 45-B a District Judge is not
pronouncing upon the validity of the focation but is only pronouncing upon
the question as to whether a memb~ is or has become disqualified under
the Act. It cannot be laid down that no relief under Section 45-B can be c
claimed after the declaration of the result of election.

For the above reasons, we ha~e no hesitation in holding that the
remedy of filing election petition under Section 44-A is no bar to file
application under Section 45-B of the Act for inviting a decision on the
question of disqualification of a member. D
;. In the result, we confirm the order under appeal and accordingly
dismiss the same with costs.

V.S.S. Appeal dismissed.