Supreme Court of India
SATRUCHARLA CHANDRASEKHAR RAJUversusVYRICHERLA PRADEEP KUMAR DEV AND ANR.
- Citation
- 1992 INSC 236
- Decided
- 4 September 1992
- Disposal
- Appeal(s) allowed
- Bench
- K JAYACHANDRA REDDY
Holding
The appellant was not holding an office of profit under the Government; consequently, he was not disqualified from being elected.
Summary
Satrucharla Raju was appointed as a single teacher in a primary school run by the Integrated Tribal Development Agency (ITDA), a registered society. He was suspended pending an enquiry, tendered his resignation on 26 October 1989 (which was not accepted), and subsequently filed his nomination and was elected to the Andhra Pradesh Legislative Assembly in November 1989. The defeated candidate challenged his election, alleging that Raju held an office of profit under the State Government at the time of nomination, rendering him disqualified under Article 191(1)(a) of the Constitution and the Representation of the People Act. The High Court held that he was disqualified, but the Supreme Court reversed this, holding that the ITDA, though funded and partially controlled by the Government, was a separate statutory body and the power to appoint and remove teachers rested with the Project Officer, not the Government; therefore Raju did not hold an office of profit under the Government. The appeal was allowed and the High Court's order set aside.
Issues considered
- Whether the appellant, as a teacher employed by the Integrated Tribal Development Agency, held an office of profit under the State Government at the time of filing his nomination.
- Whether the control, appointment, removal and remuneration mechanisms of the ITDA render the post an office of profit under the Government for purposes of disqualification under Article 191(1)(a) and the Representation of the People Act.
Legislation cited
- Andhra Pradesh Education Act, 1982s. Section 7
- Civil Services (Classification, Control and Appeal) Rules
- Constitution of Indias. Article 102(1)(a), s. Article 191(1)(a), s. Article 58(2)
- Representation of the People Act, 1951s. 10, s. 116-A
Subjects
office of profitdisqualificationRepresentation of the People Actelection petitionIntegrated Tribal Development Agencyteacher appointmentgovernment controlconstitutional lawArticle 191(1)(a)Article 102(1)(a)
Judgment
A SATRUCHARLA CHANDRASEKHAR RA.JU
v.
VYRICHERLA PRADEEP KUMAR DEV AND ANR.
SEPTEMBER 4, 1992
B [K. JAYACHANDRA REDDY AND G.N. RAY, JJ.]
Representation of the People Ac4 1951-Sections 10, l 16A, read with
Articles 102(1)(a), 191(J)(a), 58(2) of the Constitution of India-Dis-
qualification-Holding an office of profit under Government-Tests of--Ob-
C jects of Articles 102(1)(a), 191 (J)(a)---Cons11Uctioit-Method.
Representation of the PeopleAc4 1951-8ections 10, 116-A. read with
Attic/es 58(2), 191(1)(a) of the Constitution of India-Post of a teacher in
ITDA-whether an office of profit under Government.
D Representation of the People Act, 1951-fiections JO, 116-A read with
Article J91(J)(a) of the Constitution of lnditr-''Officer"-Meaning of-Office
o/ profiHngredientS-Office of profit and holding a post under the Govern-
ment-Whether same.
The Project Officer or the lntergrated Tribal Development Agency
E (ITDA) appointed the appellant as a Single Teacher in a primary school.
He joined duty in January 1988 and was working in a school or the ITDA.
On 2.8.88 the Tribal Welfare Officer on Inspection of the school,
noticed some irregularites. By an order dated 23.8.88, he kept the appel'.
lant under suspension pending enquiry.
F
The appellant questioned the order before the State Administrative
Tribunal by filing a petition, but his petition was rejected.
On 26.10.1989 the appellant submitted his resignation to the Project
G Officer, who was the appointing authority. The Project Officer made an
endorsement 011 the letter than his resignation could not be accepted In
view of the pending enquiry.
Subsequently the election programme for the Legislative Assembly
was announced and the appellant filed his nomination and contested
H election from the 8 Nagaru (S.T.) constitutency on 22.11.89. Counting took
408
SATRUCHARLA RAJU v. VYR!CHERLA 409
place on 26.11.89 and on 27.11.89 the appellant was declared duly elected. A
The respondent No.1, who was one of the contesting candidates and
who lost the election, filed an election petition challenging the election of
the appellant on the ground that the appellant was disqualified as be was
holding an office of profit under the Government not only on the date or
filing the nomination but also subsequently In view or the fact that bis B
resignation was not accepted In view of the pending enquiry.
The appellant contended before the High Court that the ITDA under
which be was deemed to be holding an office as a teacher was only a
registered society under the Societies Registration Act and that the society
could not be said to be the Government nor was a part or the Government; C
and that be tendered bis resignation on 26.10.89, which was to be deemed
to have come Into effect from that date.
Tbe Issue before the High Court was whether the appellant (respon·
dent No. 1 before the High court) was holding an office or profit under D
the State Government on the date of bis nomination and was disqualified
to contest for the same.
Th~ High Court, allowing the election petition, held that the appel·
lant was holding an office of profit and thus Incurred the disqualification.
E
This appeal was filed under Section 116·A of the Representation or
the People Act, 1951 against the High Court's order.
The appellant contended that the reasons given by the High Court
were not enough to conclude that the appellant was holding an office or
profit under the Government; that one of the main tests was whether the F
Government got power to appoint and to dismiss the appellant from
service; that the Government did not have the authority to dismiss him
whereas be was appointed by the Society and the Society could dismiss
him; that the Society was a registered society and the society was not the
Government or a part or the Government and thus the appellant was not G
holding an office or profit under the Government.
On the question, whether the appellant was holding an office or
profit under the State Government at the relevant time and was disquallll·
able under Article 191(1)(a) or the Constlt11.tlon or India for being chosen
as a member of the Legislative Assembly, allowing the appeal, this Court, H
410 SUPREME COURT REPORTS(1992) SUPP. 1 S.C.R.
A HELD: 1.01. In order to determine whether a person holds an office
of profit under the Goverment, several tests are ordinarily applied such
as whether the Government makes the appointment, whether the Govern-
ment bas the right to remove or dismiss the holder of the office, whether
the Government pays the remuneration, whether the functions performed
by the bolder are carried on by him for the Government and whether the
B Government has control over the duties and functions of the bolder•.
[423 D-E]
1.02. Some of the tests or principles that emerge for determining
C whether a person holds an office of profit under the Government, may be
summarised thus: [421-C]
(1) The power of the Government to appoint a person In office or to
revoke his appointment at the discretion. The mere control of the Govern-
ment over the authority having the power to appoint, dismiss, or control
D the working of the officer employed by such authority does not disqualify
that officer from being a candidate for election as a member of the
Legislature. [421-D]
(2) The payments from out of the Government revenues are impor-
E tant factors In determining whether a person is holding an office of profit
or not of the Government. Thoui:h payment from a source other than the
Government revenue is not always a decisive factor. [421-E]
(3) The Incorporation of a body corporate and entrusting the func-
tions to it by the Government may suggest that the statute intended it to be
F a statutory corporation independent of the Government. But It is not con-
clusive on the question whether it is really so independent. Sometimes, the
form may be that ofa body corporate independent of the Government, but in
substance, it may be the just alter ego of the Government itself. [421 F-GJ
G <4) The true test or determination of the said question depends upon
the degree of control, the Government has over it, the extent of control
exercised by very other bodies or committees, and its composition, the
degree of Its dependence on the Government for its financial needs and the
functional aspect, namely, whether the body Is discharging any important
Governmental function or just some function which is merely optional
H from the point 'of view of the Government. [421-H, 422·8]
SATRUCHARLA RAJU v. VYRICHERLA 411
1.03. Articles 102(1)(a) and 191(1)(a) of the Constitution, deal with A
disqualifications of a person being chosen as a member of the Parliament
or the State Legislatnres respectively on the ground of holding of office of
profit nnder the Government. [422-D]
1.04. The object of enacting Articles 102(1)(a) and 191(1)(a) is that
there should not be any conRict between the duties and interests of an B
elected member and to see that such an elected member can carry on freely
and fearlessly bis duties without being subjected to any kind of
governmental pressure, thereby Implying that if such an elected person Is
holding an office which brings him remunerations and If the ,Government
bas a voice In bis functions In that office, there is every likelihood of such C
person succumbing to the wishes of the Government. These Articles are
Intended to eliminate the possibility of such a conRict between duty and
Interest so that the purity of legislature is unaffected. [422 E·F]
1.05. Articles 102(1)(a) and 191(1)(a) are incorpprated In order to
elemlnate or reduce the risk of conRlct between the duty and Interest D
amongst the member of the Legislature and to ensure that the Legislature
does not contain persons who have received benefits from the Executive
and who consequently being under an obligation might be amenable to its
Influence. Therefore this object must be borne In mind In Interpreting
these Articles. [428-H, 429·A] E
1.06. In Interpreting the Articles 109(1)(a) and 191 (l)(a), the object,
namely to avoid conRlct between duty and Interest and to eliminate the
misuse of official position to advance private benefit and to avoid
likelihood of Influence of the Government to promote personal advantage.
It must also be borne In mind that under these provisions the right to F
contest is being taken away on the ground of the said disqualification.
Such a ban on candidature must have a sulistantlal and reasonable nexus
to object thlit Is to be achieved, namely the elimination possibility of
misuse of the position. It Is from this point of view that the right to
appoint and right to remove the bolder of the officer In many cases G
becomes an Important and decisive test. The source of payment for the
office may also be taken Into consideration but Is not always a decisive
factor. Likewise the control exercised by the Government may be one of the
tests but that by Itself Is not a decisive test. [430 D-E]
1.07. The Government Is undertaking several projects and activities H
412 SUPREME COURT REPORTS(l992] SUPP. 1 S.C.R.
A through the corporations and local bodies exercising some control over
such corporations or bodies. In that view of the matter they may come
within the meaning of the "State' as envisaged in Article 12 but that may
not be a decisive factor In deciding the Issue. [439-A]
1.08. Section 10 of the Representation of People Act as well as Article
B 58(2) of the Constitution of India do indicate that all persons employed in
the undertakings, corporations or local bodies where Government exer-
cises some con\rol cannot be deemed to suffer disqualification for contest-
ing the elections except to the extent indicated therein. [439-B]
C 1.09. If a strict and narrow construction Is to be applied that
amounts to shutting off many prominent and other eligible persons to
contest the elections which forms the fundamental basis for the
democratic set-up. Therefore several factors depending upon the facts of
each case ha-:e to be taken into consideration in deciding whether a
particular person is disqualified by virtue of his holding an office of profit
D before concluding that such an office is under the Government. [439 C-D]
Ravana Subana v. G.S. Kageerappa AIR 1954 SC 653; Mau/ana Abdul
Shakur v. Rikhab Chand and another, [1958] SCR 387; Dr. Deorao Lwcman
Anande v. Kashav Lwcman Borkar, AIR 1958 Bombay 314; M. Ramappa v.
E Sangappa and others, [1959] SCR 1167; Gopala Kump v. S.A. Paul, AIR
1!161 Kerala 242; Ioli Prasad v. Kalka Prasad, AIR 1962 All 128; Kona
Prabhakar Rao v. M. Seshagiri Rao, [1982] 1 SCC 422; Gurngobinda Basu
v. Sankari Prasad Ghosa/, [1!164] 4 SCR 311; Ashok Kumar Bhattacharyya
v. Ajay Biswas and ors., [1985] 2 SCR SO; D.R. Gurnshantappa v. Abdul
Khaddus Anwar and Ors. [1969] 3 SCR 425; Madhuker G.E. Pankakar v.
F Jaswant Chobbildas Rajani and Ors., [1976] 3 SCR 832; Shivamurthy Swami
lnamdar etc. v. Agadi Sanganna Andanappa etc., [1971] 3 SCC 870; and
KarlJhari Bhimaji Rohamare v. Shanker Rao Genuji Ko/he and Others, AIR
1975 SC 575, referred to.
G Bihari Lal Dobray v. Roshan Lal Dobray, [1984] 1 SCC 551, distin-
guished.
2.01. The Government has some control over the ITDA which is set
up as a project, since it provides funds and sanctions the posts; the
District Collector is appointed as Project Officer and some officers are
·H ex-officio members of the ITDA, which carries out the object of providing
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.] 413
the compulsory education. in tribal areas. But the ITDA is a registered A
society having its own constitution. Though the Project Officer Is the
District Collector, he acts as a dltl'erent entity. [440·F]
2.02. The power to appoint or to remove teachers Is not with the
Government hut with the Project Officer. The Government may have
control over the appointing authority but has no direct control over the B
teachers. The small post that appellant holds in ITDA Is only that or a
Teacher who Is directly under the control of the Project Officer. In such a
situation the question of any conflict between his duties and Interests as
an elected member does not arise since It cannot be said that he Is a
teacher, can be subjected to any kind of pressure by the Government which C
has neither the power to appoint him nor to remove him from service.
Taking a practical view of the· substance of these factors Into consldera·
tlon the appellant cannot be held to be holding an office of profit under
the Government. (440 G-H, 441-A]
3. Generally It is understood that an office means a position to D
which certain duties are attached. An office of profit involves two elements
namely that there should be such an office and that It should carry some
remunerations. It is not the same as holding a post under the Government
and therefore for holding an office of profit under the Government, a
person need not be in the service of the Government. (422-EJ E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4184 of
1991.
From the Judgment and Order dated 25.9.91 of the Andhra Pradesh
High Court in Election Petition No. 9 of 1990. F
C. Sitaramiah and B. Parthasarthy for the Appellant.
M.M. Gangi.deb and P .K. Manohar for the Respondents.
The Judgment of the Court was delivered by
G
K. JAYACHANDRA REDDY, J. This is an appeal under Section
116-A of the Representation of the People Act, 1951 preferred against the
order of the High Court setting aside the election of the appellant who was
elected as a member of the Andhra Pradesh Legislative Assembly from No.
8 Naguru (ST) constituency on the ground that he was holding an office of H
414 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A profit under the State Government at the relevant time and was thus
disqualified under Article 19l(l)(a) of the Constitution of India for being
chosen as a member of the Assembly.
The appellant was appointed as a Single Teacher in a primary school
run by the Integrated Tribal Development Agency ("ITDA" for short) by
B its Project Officer. He joined duty in January 1988 and was working in a
school in Jiyyammavalasa Manda! in Vizianagaram district. On 2.8.88 the
Tribal Welfare Officer inspected the said school and is alleged to have
noticed some irregularities and he kept the appellant under suspension
pending enquiry by an order dated 23.8.88. The appellant questioned the
C same before the Andhra Pradesh Administrative Tribunal by filing a peti-
tion but the same was rejected. Thereafter by a letter dated 26.10.1989 the
appellant submitted his resignation to the Project Officer who was the
appointing authority. However, the Project Officer made an endorsement
on the said letter that his resignation cannot be accepted in view of the
D pending enquiry. Subsequently the election programme for the Legislative
Assembly was announced and the appellant filed his nomination and
contested election ·from the above-mentioned constituency on 22.11.89.
Counting took place on 26.11.89 and on 27.11.89 the appellant was declared
duly elected. The respondent No. 1, who was one of the contesting can-
didates and who lost the election, filed an election petition challenging the
E election of the appellant on the ground that the appellant was disqualified
as he was holding an office of profit not only on the date of filing the
nomination but also subsequently in view of the fact that his resignation
was not accepted in. view of the pending enquiry and therefore he shall be
deemed to be holding an office of profit under the Government. The
respondent also stated in his election petition that he was not aware of the
F
appellant's disqualification at the time of the scrutiny of the nomination
papers. The appellant filed a written submi.sSion contesting the election
petition inter alia contending that the ITDA under which he is deemed to
be holding an office as a teacher was only a registered society under the
Societies Registration Act and the said society cannot said to be the
G Government nor is a part of the Government and that it is an independent
body. It is also stated that since he has tendered his resignation on 26.10.89
it shall be deemed to have come into effect from that iiate.
The only issue that can:e up for consideration before the High Court
H in the election petition was whether the first respondent i.e. appellant
SATRUCHARLA RAJU v. VYRJCHERLA [REDDY, J.] 415
herein was holding an office of profit under the Government of Andhra A
Pradesh on the date of his nomination and was disqualified to contest for
the same.
Evidence was led in by both the sides. The main contention of the
appellant was that the ITDA was only a registered society and even B
assuming that the Government has some control over the sanction of posts
and composition of the governing body of the ITDA it cannot be said to
be the Government or part of it or to be an instrumentality of the Gov-
ernment. Therefore the appellant cannot be said to have been holding an
office of profit and the mere fact that he was appointed as a teacher by
tho Project Officer of the Society he cannot be deemed to have been C
appointed by the Government. The learned Judge after referring to the
relevant clauses of memorandum of association of the Society held that (i)
Although the Society appears to be independent of the State Government
but in substance its activities are controlled by the officers of the Govern-
ment who are ex-officio members of the governing body. The Chairman as D
well as the Project Officer are the officers of the State Government. A
majority of the me:nbers of the governing body are the officers holding
posts in the Government by virtue of which they became the ex-officio
members of the governing body. Thus for all practical purposes it is the
officers of the Government who control the activities of the society: (ii)
though the Project Officer is the appointing authority of the appellant but E
he is only a Secretary of the Society by virtue of his being an officer in the
Government; (iii) the Government sanctions the number of posts of
teacher, fixes their scales of pay; (iv) although the rules provide to have
funds of its own by way of recurring and non-recurring grants made by the
Government of India but it is the Government who sanctions the funds: (v) F
since the Civil Services (Classification, Control and Appeal) Rules of the
State Government are being applied to the teachers of the Society, they
must be deemed to have been treated as the employees of the Government.
The State has to provide free and compulsory education to all the children
and primary education is also the responsibility of the State Government
and it is meeting expenditures out of its funds. Therefore the function of G
appointment of the teachers in the Society by the Project Officer is one of
the Governmental functions and thus the State Government exercises
ahnost full control. For the aforesaid reasons the High Court held that
the appellant was holding an office of profit and fous incurred the
disqualification. H
416 SUPREME COURT REPORTS(1992] SUPP. 1 S.C.R.
A Learned counsel for the appellant before us contended that the
reasons given by the High Court by themselves, even if accepted to be
correct, ar~ not enough to conclude that the appellant was holding an office ·
of profit and that one of the main tests is whether the Government has got
power to appoint and to dismiss the appellant from service and that
B admittedly the Government has not the authority to dismiss him and this
coupled with the fact that the Society is a registered society would clinch
that the Society is not the Government or a part of the Government and
that the appellant was not holding an office of profit under the Govern-
ment. The learned counsel also submitted that some of the reasons given
C by the High Court are not conclusive for holding that the Society is the
Government or a part of the Government.
Before we proceed further one aspect namely that the appellant
ceased to be a teacher before he filed his nomination to contest the
assembly election by virtue of the fact that he sent a letter of resignation
D to the post, has to be considered. Admittedly the resignation was not
accepted by the day of his election and he was kept under suspension
pending enquiry w.e.f. 23.8.88 and he was being paid the subsistence
allowance in accordance with the Andhra Pradesh Civil Services (Clas-
sification, Control and Appeal) Rules. The learned Judge of the High
E Court has also mentioned in the judgment that the appellant did not persist
on framing an issue in this regard and hence no specific issue was framed
as to whether the resignation of the appellant was effective from the date
he submitted his resignation and ·therefore he ceased to be a teacher. It
appears that the said plea was not pressed at the time of hearing of the
F election petititon. Therefore it follows that the appellant was holding the
said post at the time of his nomination and election. The only question
therefore to be considered is whether the first respondent was holding an
office of profit under the State Government.
Article 19l(l)(a) of the Constitution of India which imposes the
G disqualifications is as follows:
"191. Disqualifications for membership-(1) A person shall
be disqualified for being chosen as, and for being, a mem-
ber of the Legislative Assembly or Legislative Council of a
H State-
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.) 417
(a) if he holds any office of profit under the Government A
of India or the Government of any State specified in the
First Schedule, other than an office declared by the Legis-
lature of the State by law not to disqualify its holder;
xx xxx xx xxli'
B
The scope and the meaning of the words "holds any office of profit
under the Government. ........ ." have been considered in a number of cases.
In Ravanna Subana v. G.S. Kageerappa, AIR 1954 SC 653 it was held that
an office of profit must be held under the Government to which any pay,
salary, emoluments are attached. In Maulana Abdul Shakur v. Rikhab C
Chand and another, [1958] SCR 387 the appellant held the post of Manager
of a school run by a committee constituted under the provisions of Durgah
Khawaja Sahib Act (36 of 1955) under the Central Government. Under the
provisions of the said Act, all the Committee members are to be appointed
by the Central Government which is also empowered to supersede the D
Committee and the appellant was appointed as Manager by the said
Committee. When the appellant was elected to the Council of States, the
unsuccessful candidate questioned the election on the ground that the
appellant was appointed by a committee of management which in turn was
appointed by the Central Government and that the Committee of the
Management could be removed by the Central G0vernment, therefore the E
appellant was holding an office under the Central Government. The Elec-
tion Tribunal accepted the said contention and set aside the election of the
appellant. On appeal this Court reversed the decision of the Tribunal
holding that 'No doubt, the Committee of the Durgah Endowment is to be
appointed by the Government of India, but it is a body corporate with F
perpetual succession acting within the four corners of the Act. Merely
because the Committee or the members of the Committee are removable
by the Government of India or the Committee can make by-laws prescrib-
ing the duties and powers of its employees, cannot convert the servants of
the committee into the holders of profit under the Government of India.
The appellant is neither appointed by the Government of India nor is remov- G
able by the Government of India nor paid out of the revenues of Government
of India.' It was furth~r held that "the power of the Government to appoint
a person to an office of profit or to continue him in that office or revoke his
appointment at their discretion and payment from out of Government
revenues are important factors in determining whether a person is holding an H
418 SUPREME COURT REPORTS[l992] SUPP. l S.C.R.
A office of profit under the Government though payment from a source other
than the Government revenues is not always a decisive factor. But the
appointment of the appellant does not come within this test."
(emphasis supplied)
B In Dr. Deorao Laxman Anande v. Keshav Laxman Borlcar, AIR 1958
Bombay 314 it was observed that:
"Before a person can be held to be disqualified under
Article 191(l)(a), three things must be proved that (1) he
held an office: (2) that it was an office of profit: and (3)
c that it was an office under the Government of India or the
State Government."
This Court further observed that:
D "In our opinion, the principal tests for deciding whether an
office is under the Government, are (1) what authority has
the power to make an appointment to the office concerned,
(2) what authority can take disciplinary action and remove
or dismiss the holder of the office and (3) By whom and
from what source is his remuneration paid? Of these, the
E first two are, in our opinion, more important than the third
one."
Applying the aforesaid tests, it was held that an Insurance Medical Prac-
titioner functioning under the Employees State Insurance Act, 1948 is
F holder of an office under the State Government. In M.Ramappa v. Sangap-
pa and others, [1959] SCR 1167 this Court observed that "Patels and
Shanbhog.s who are the holders of hereditary village offices governed by
the Mysore Village Offices Act, 1908 are officers who are apointed to their
offices by the Government though it may be that the Government has no
G option in certain cases but to appoint an heir of the last holder; that they
hold their office by reason of such appointment only; that they work under
the control and supervision of the Government; that their remuneration is
paid by the Government out of Government funds and assets; and that they
are removable by the Government, and that there is no one else under
whom their offices could be held." In Gopala Kurup v. S.A. Pau~ AIR 1961
H Kerala 242 the contention was that the appellant, a teacher in aided school,
SATRUCHARLA RAJU v. VYRICHERLA [il.EDDY, J.] 419
was disqualified to stand for the election as he is a person holding an office A
of profit under the Government, after the Kerala Education Act and the
exemption from disqualification granted earlier in favour of persons hold·
ing an office in any educational institution other than the Government
institution has no application after the Kerala Education Act. Repelling
the contention, it was held that even after the Kerala Education Act, "The B
aided schools with their own properties, their own funds and their separate
personalities, cannot be treated as Government institutions and in absence
of such merger, the employees of such institutions would still enjoy the
benefits allowed to any other educational institution other than a Govern-
ment Institution: and that therefore, they are entitled for exemption. In Joti
Prasad v. Ka!ka Prasad, AIR 1962 All 128 it was held that "Vice- Chancellor C
of the Agra University, holding an office which is a whole time job carrying
a salary, is appointed by the Government of Uttar Pradesh in his capacity
as the Chancellor of the University under the provisions of the Agra
University Act, 1926. Even so, the Vice-Chancellor is ~ot disqualified to
stand as a Member of the U.P. Legislative Council from the U.P. D
Graduates Constituency on the ground that he holds the office of profit
under the State Government. The provisions of the Agra University .<\ct
reveal the intention of the Lagislature not to regard the Chancellor to be
a part of the State Government. While exercising his powers under tne said
Act, the Chancellor does not exercise the executive powers of the State
and the office of the Vice Chancellor cannot be said to be under the State E
Government by virtue of the appointment having been made by the Gover·
nor in another capacity." In Kona Prabhakar Rao v. M. Seshagiri Rao, [1982]
1 SCC 442 this Court after referring to Gurngobinda Basu v. Sankari Prasad
Ghosal, [1964] 4 SCR 311 and Mau/ana Abdul Shakur's case accepted the
ratio therein that the factors which are held to be decisive were (a) the F
power of the Government to appoint a person to an office of profit or to
continue him in that office or to revoke his appointment at their discretion,
and (b) payment from out of Government revenues, though it was pointed
out that payment from a source other than Government revenues was not
always a decisive factor.
G
Learned Judge of the High Court after referring to these and other
decisions formulated tests or principles to be applied for determining
whether the person holds an office of profit under the Government or not.
On a consideration of the' several G.Os. and some clauses from the
memorandum of association of the ITDA Vizianagram (Parvtipuram) and H
420 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A its rules and regulations, the learned Judge concluded thus:
•
"From the aforesaid circumstances, it is seen that the State
Government exercises almost full control over the
sanctioning of the posts and the composition of the Govern-
ing Body of the society predominantly consists of the of-
B ficers of the Government who are ex-officio members by
virtue of their office in the Government: It is also evident
that the. entire expenditure is met by the Government and
in fact the Government has sanctioned the posts and fixed
their pay-scales. It is also clear that with regard to the
c disciplinary action, the CCA rules are being applied and
there are not rules framed by the Society with regard to
the same.
Frain all the aforesaid circumstances, it is evident that
the Government is discharging its function of providing
D primary education from out 1 of its own funds through the
instrumentality of the Project Officer in I.T.D.A. areas.
Although the appointment is made by the Project Officer,
but it is the Government that is in control of the creation
of posts, the fixation of scales of pay and the salaries of
the teachers are being paid out of the amounts sanctioned
E
by the Government from its funds. In fact, the society bas
no budget of its own, and for all purposes, the society is
treated as a limb of the Government.
For all the aforesaid reasons, I hold that the Isl respon-
F dent was holding an office of profit under the State
Government and is disqualified for being chosen as and
from being a member, of the Legislative Assembly of the
State of Andbra Pradesh."
Learned counsel for the appellant submitted that even assuming that
G the Government has control over the !TOA because of several factors like
sanctioning of posts and funds, the appellant was only appointed by the
Project Officer and he alone has the power to revoke bis appointment.
According to the learned counsel, in a case of this nature, the decisive test
is whether the Government has power to appoint a person or to revoke his
H appointment and that learned Judge of the High Court has not kept the
SATRUCHARlA RAJU v. VYRICHERLA [REDDY, J.] 421
same in view while holding that the appellant was holding an office of profit A
under the Government." Learned counsel further submitted that the office
l,eld by the appellant under ITDA does not in any manner come into
conflict with his duties as a legislator as he does not have any direct
obligations with the Government. Therefore, it cannot be said that he was
holding an office of profit under the Government since he is neither B
appointed by the Government nor his appointment can be revoked by the
Government.
On a careful examination of the ratio laid down in the above men-
tioned cases some of the tests or principles that emerge for determining
whether a person holds an office of profit under the Government, may be C
summarised thus:
"(1) The power of the Government to appoint a person in
office or to revoke his appointment at the discretion. The
mere control of the Government over the authority having
the power to appoint, dismiss, or control the working of D
the officer employed by such authority does not disqualify
that officer from being a candidate for election as a mem-
ber oF the Legislature.
(2) The payment from out of the government revenues; are
E
important factors in determining whether a person is hold-
ing an office of profit or not of the Government. Though
payment from a source other than the government revenue
is not always a decisive factor.
{3) The incorportion of a body corporate and entrusting F
the functions to it by the Government may suggest that the
statute intended it to be a statutory corporation inde-
pendent of the Government. But it is not conclusive on the
question whether it is really so independent. Sometimes,
the form may be that of a body corporate independent of
the Government, but in substance, it may be the just alter
G
ego of the Government itself.
( 4) The true test of determination of the said question
depends upon the degree of control, the Government has
over it, the extent of control exercised by very other bodies H
422 SUPREME COURT REPORTS(1992) SUPP. 1 S.C.R.
A or committees, and its composition, the degree of its de-
pendence on the Government for its financial needs and
the functional aspect, namely, whether the body is discharg-
ing any important Governmental function or just some
function .which is merely optional from the point of view of
the Government."
B
It can be seen that one of the main tests of determination of the
question is the degree and extent of control i.e. direct or remote over the
ITDA by the Government particularly with reference to making the ap-
pointment of the persons in office or to revoke the same at its discretion.
C In this context it is necessary to refer to some later decisions of this Court
which are directly on this point and some of which have not been cited
before the High Court. Before doing so we may, however, usefully refer to
the object underlying Articles 102{1){a) and 191{1)(a) of the Constitution.
These two Articles deal with disqualifications of a person being chosen as
D a member of the Parliament or the State Legislatures respectively on the
ground of holding of office of profit under the Government. Generally it
is understood that an office means a position to which certain duties are
attached. An office of profit involves two elements namely that there should
be such an office and that it should carry some remunerations. It is not the
same as holding a post under the Government and therefore for holding
E an office of profit under the Government, a person need not be in the
service of the Government. It is well-settled now that the object of enacting
Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict
between the duties and interests of an elected member and to see that such
an elected member can carry on freely and fearlessly his duties without
F being subjected to any kind of governmental pressure, thereby implying
that if such an elected person is holding an office which brings him
remunerations and if the Government has a voice in his functions in that
office, there is every likelihood of such person succumbing to the wishes
of the Government. These Articles are intended to eliminate the possibility
of such a conflict between duty and interest so that the purity of legislature
G is unaffected. In Bihari Lal Dobray v. Roshan Lal Dopray, (1984) 1 SCC
551 this Court observed thus:
"The object of enacting Article 191(l)(a) is plain. A person
who is elected to a Lagislature should be free to carry on
H his duties fearlessly without being subjected to any kind of
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, l.J 423
governmen al pressure. If such a person is holding an office A
which brings him remuneration and the Government has a
voice in his continuance in that office, there is every
likelihood of such person succumbing to the wishes of
Government. Article 191(1)(a) is intended to eliminate the
possibility of a conflict between duty and interest and to
maintain the purity of the Legislatures."
B
InAshok Kumar Bhattacharyya v.Ajoy Biswas and Ors., [1985) 2 SCR
50 this Court observed as under:
"The true principle behind this provision in Article C
102(1)(a) is that there should net be any conflict between
the duties and the interest of an elected member."
In this background, we shall examine the ratio laid down in some of
the cases with respect to other general tests to be applied. As already
noticed that in order to determine whether a person holds an office of D
profit under the Government. Several tests are ordinarily applied such as
whether the Government makes the appointment, whether the Government
has the right to remove or dismiss the holder of the office, whether the
Government pays the remuneration, whether the functions performed by
the holder are carried on by him for the Government and whether the
Government has control over the duties and functions of the holder. In E
Maulana Abdul Shakur's case as noted above one of the main tests laid
down is that the power of the Government to appoint a person to an office
or profit or to continue him in that office or revoke his appointment at
their discretion and payment from out of Government revenues are impor-
tant factors and that in determining whether a person is holding an office F
of profit under the Government the source of payment is not always a
decisive factor. In Gurugobinda Basu 's case it was held that for holding an
office of profit under the Government, a person need not be in the service
of the Government and there need not be any relationship of master and
servant. While upholding the diaqualification the Court held that: G
'It is clear from the aforesaid observations that inMaulana
Abdul Shakur's case, (1958! SCR 387 the factors which were
held to be decisive were (a) the power of the Government
to appoint a person to an office of profit or to continue him
in that office or revoke his appointment at their discretion, H
424 SUPREME COURT REPORTS[l992] SUPP. l S.C.R.
A and (b) payment from out of Government revenues, though
it was pointed out that payment from a source other than
Government revenues was not always a decisive factor. In
the case before us the appointment of the appellant as also
his continuance in office rests solely with the Govermnent
of India in respect of the two companies."
B
In D.R. Gurnshantappa v. Abdul Khaddus Anwar and Ors., [1969] 3 SCR
425 once again these tests are reiterated. After referring to the above-men-
tioned cases and while rejecting the contention that the amount of control
which the Government exercises ~could be the main test, it was held thus:
c
"We are unable to accept the proposition.that the mere fact
that the Government bad control over the Managing Direc-
tor and other Directors as well as the power of issuing
directions relating to the working of the Company can lead
D to the inference that every employee of the Company is
under the control of the Govermnent. The power of ap-
pointment and dismissal of respondent No. 1 vested in the
Managing Director of the Company and not in the Govern-
ment. Even the directions for the day-to-day work to be
performed by respondent No. 1 could only be issued by the
E Managing Director of the Company and not by the Govern-
ment. The indirect control of the Govermnent which might
arise because of the power of the Govermnent to appoint
the Managing Director ~d to issue directions to the Com-
pany in its general w~rking does not bring respondent No.
F 1 directly under the control· of the Government. In
Gurugobinda Basu's case, [1964] 4 SCR 311 the position
was quite different. In that case, the appellant was ap-
pointed by the Government and was liable to be dismissed
by the Govermnent. His day-to-day working was controlled
by the Comptroller and Auditor-General who was a servant
G of the Government and was not in any way an office-bearer
of the two Companies concerned. In fact, the Court had
no hesitation in holding that the appellant in that case was
holding an office of profit under the Govermnent, because
the Court found that the several elements which existed
H were tlie power to appoint, the power to dismiss, the power
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.] 425
to control and give directions as to the manner in which A
the duties of the office are to be performed, and the power
to determine the question of remuneration. All these ele-
ments being present, the Court did not find any difficulty
in finding that the appellant was holding an office of profit
under the Government. In the case before us, the position
is quite different. The power to appoint and dismiss
B
respondent No. 1 does not vest in the Government or in
any government servant. The power to control and give
directions as to the manner in which the duties of the office
are to be performed by respondent No, 1 also does not vest
in the Government, but in an officer of the Company, Even c
the power to determine the question of remuneration pay-
able to respondent No. 1 is not vested in the Government
which can only lay down rules relating to the conditions of
service of the employees of the Company. We are unable
to agree that, in these circumstances, the indirect control
D
exercisable by the Government because of its powers to
appoint the Directors and to give general directions to the
Company can be held to make the post of Superintendant,
Safety Engineering Department, an office of profit under
the Government."
E
It was further observed that:
"In this connection, a comparison between Arts, 58(2) and
66(4), and Arts, 102(1) and 191(1)(a) of the Constitution
is of significant help, In Arts, 58(2) and 66(4) dealing with F
eligibility for election as President or Vice-President of
India, the Constitution lays down that a person shall not be
eligible for election if he holds any office of profit under
the Government of India or the Government of any State
or under any local or oth~r authority subject to the control
of any of the said Governments. In Articles 102(1)(a) and
G
191(1)(a) dealing with membership of either House of
Parliament or State Legislature, the disqualification arises
only if the person holds any office of profit under the
Governmcn, oflndia or the Government of any State other
than an office declared by Parliament or Stage Legislature H
426 SUPREME COURT REPORTSf1992] SUPP. 1 S.C.R.
A by law not to disqualify its holder. Thus, in the case of
election as President or Vice-President, the disqualifica-
tion arises even if the candidate is holding an office of profit
under a local or any other authority under the control of
the Central Government or the State Government,
whereas, in the case of a candidate for election as a Mem-
B ber of any of the Legislatures, no such disqualification is
laid down by the Constitution if the office of profit is held
under a local or any other authority under the control of
the Governments and not directly under any of the Govern-
ments. This clearly indicates that in the case of eligibility
c for election as a member of a Legislature, the holding of
an office of profit under a corporate body like a local
authority does not bring about disqualification even if that
local authority be under the control of the Government. The
mere control of the Government over the authority having the
power to appoin~ dismiss, or control the worldng of the officer
D employed by such authority does not disqualify that officer
from being a candidate for election as a member of the
Legislature in the manner in which such disqualification
comes into existence for being elected as the President or the
Vice-President. The Company, in the present case, no doubt
did come under the control of the Government and respon-
E
dent No. 1 was holding an office of profit under that
Company; but, in view of the distinction indicated above,
it is clear that the disqualification laid down under Art.
191(l)(a) of the Constitution was not intended to apply to
the holder of such an office of profit."
F
(emphasis supplied)
In Madhuker G.E. Pankakar v. Jaswant Chobbildas Rajani and Ors., (1976]
3 SCR 832 the question arose whether the appellant, a Doctor in a
municipality in Maharashtra was holding an office of profit under the
G Government. After referring to some of the above mentioned cases, this
Court held as under:
''The core question that comes to the fore from the survey
of the panorama of case law is as to when we can designate
H a person gainfully engaged in some work having a nexus
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.] 427
with Government as the holder of an office of profit under A
Government in the setting of disqualification for candida-
ture for municipal or like elections. The holding of an office
denotes an office and connotes its holder and this duality
implies the existence of the office as an independent con-
tinuity and an incumbent thereof for the nonce.
B
Certain aspects appear to be elementary. For holding
an office of profit under the Government one need not be
in the service of Government and there need be no
relationship of master and servant (Gurugobinda supra).
Similarly, we have to look at the substance, not the form. c
Thirdly, all the several factors stressed by this Coutt, as
determinative of the holding of an 'office' under Govern-
ment, need not be conjointly present. The critical cir-
cumstances, not the total factors, prove decisive. A practical
view not pedantic basket of tests, should guide in arriving at
a sensible conclusion.
D
In the present case, can we say that the post (forgetting
the finer issue of office, as distinguished from post) is
under the State Government? The capitation fee is the
remuneration the doctor is paid and this comes not from E
Gove~nment direct but from a complex of sources. But
Gurugobinda and Gurushantappa [1969) 3 SCR 425 took
the view that payment of remuneration ~ot from public
revenue is a neutral factor. Is the degree of control by
Government decisive? The power to appoint, direct and F
remove, to regulate and discipline,. may be good indicia
but not decisive, as pointed out in Gurushantappa. In our
case, Government does have, partly direct and partly in-
direct, control but the conclusion is not inevitable because
the doctor is out in the Llst not by Government directly but
through a prescribed process where the Surgeon General G
has a presiding place. How proximate or remote· is the
subjection of the doctor to the control of Government to
briog him under Government is the true issue."
(emphasis supplied) H
428 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A Now we shall refer to Ashok Kumar Bhattacharyya's case on which consid-
erable reliance is placed by the appellant. The question therein was
whether respondent No. 1 who was elected, was disqualified under Article
102(1)(a). He was e: 1ployed by the Agartala Municipality. He was ap-
pointed by Commissioners, though sanction of the Government was ob-
tained and he could be removed by the Commissioners again subject to the
B sanction of the Government. He was paid out of municipal funds which the
municipality was and is competent to raise. It was also accepted that from
the analygis of the provisions of the Act the Governmeni exercises certain
amount of control and supervision o •er the municipality, but the High
Court however held that inspite of these conditions being there, the elected
C candidate was only holding an office of profit under the local municipality
and not under the Government. The Supreme Court, while upholding the
same, observed that one of the tests to be emphasised was the power to
appoint and power to remove. After referring to almost all the above
mentioned cases this Court held as under:
D "Government controls various activities in various spheres
and in various measures. But to judge whether employees
of any authority or local authorities under the control of
the Government become Government employees or not or
holders of office of profit under the Government the
E measure and nature of control exercised by the Govern-
ment over the employee must be judged in the light of the
facts and circumstances in each case so as to avoid any
possible conflict between his personal interests and duties
and of the Government."
F (emphasis supplied)
To the same effect is the ratio in this context laid down in Bihari Lal
Dobray's case wherein it was observed as under:
"In order to determine whether a person holds an office of
G profit under the Government several tests are ordinarily
applied such as whether the Government makes the ap-
pointment, whether the Government has the right to
remove or dismiss the bolder of the office ....... "
H Articles 102(1)(a) and 19l(l)(a) are incorporated in order to
SATRUCHARLA RAJU v. VYRICHERLA (REDDY, J.] 429
eliminate or reduce the risk of conflict between the duty and interest A
amongst the members of the Legislature and to ensure that the Legislature
does not contain persons who have received benefits from the Executive
and who consequently being under an obligation might be amenable to its
influence. Therefore this object must be borne in mind in interpreting these
Articles. It is in this context the words "under the Government" so far as B
the present case is concerned, become more relevant and should be
examined from. that perspective keeping in view the necessary power to
appoint or remove.
In Maulana Abdul Shakur's case it was held thus:
"A comparison of the differnt articles of the Constitution
c
58(2), 66(4), 102(1)(a) dealing with membership of the
State Legislatures shows in the case of members of the
Legislatures unlike the case of the president and the Vice-
President of the Union the disqualificatioa arises on ac-
count of holding an office of profit under the Government D
of India or the Governments of the States but not if such
officer is under a local or any other authority under the
control of these Governments. As we have said the power
of appointment and dismissal by the Government is an
important consideration which detennines in favour of the E
person holding an office ofprofit under the Government; but
the fact that he is not paid from out of the State revenues is
by itself a neutral factor."
(emphasis supplied)
F
In Shivamurthy Swami lnamdar etc. v. Agadi Sanganna Andanappa etc.,
[1971] 3 sec 870, after referrin~ to some of the above mentioned decisions
this Court held thus:
"The tests for finding out whether an office in question is
an office under a Government and whether it is an office G
of profit, are (1) Whether the Government makes the ap-
pointment: (2) Whether the Government has the right to
remove or dismiss the holder: (3) Whether the Government
pays the remuneration: (4) What are the functions of the
holder? Does be perform them for the Government and H
430 SUPREME COURT REPORTS[l992) SUPP. 1 S.C.R.
A (5) Does the Government exercise any control over the
performance of these functions?"
(emphasis supplied)
In Gumgobinda Basu's case it was observed that the question has to
B be examined from the point of view of substance rather than of form and
on the facts of that case and the power of the Government of India to
remove the office holder from office is noted as one of the tests.
In the case before us, the appellant was holding an office of profit
but the matter does not end there. As already noted the next and most
C important. requirement is whether that office was under the Government.
In appreciating this aspect, we have to bear in mind, in interpreting these
Articles, the object namely to avoid conflict between duty and interest and
to eliminate the misuse of official position to advance private benefit and
to avoid likelihood of influence of the Government to promote personal
D advantage. It must also be borne in mind that under these provisions the
right to contest is being taken away on the ground of the said disqualifica-
tion. Such a ban on candidature must have a substantial and reasonable
nexus to the object that is to be achieved namely the elimination of
possibility of misuse of the position. It is from this point of view that the
E right to appoint and right to remove the holder of the office in many cases
becomes an important and decisive test. The source of payment for the
office may also be taken into consideration but is not always a decisive
factor. Likewise the control exercised by the Government may be one of
the tests but as mentioned above that by itself is not a decisive test.
F Now we shall refer to some of the relevant factors which have been
taken into consideration by the learned Judge of the High Court in holding
that the appellant held an office of profit "under the Government". No
doubt the several G.Os referred to by the learned Judge indicated that all
the educational institutions in the ITDA shall be brought under the unified
control of the Education Department but at the same time we find that
G ITDA will have administrative control and supervision. From some of the
G.Os it is clear that the Government accorded sanc~ion for the creation of
the posts and funds for meeting the expenditure. The evidence of the
Project Officer, however, shows that he alone appoints teachers and has
also the power to remove them but that is in the capacity of Project Officer
H but is not in the capacity of District Collector. No doubt at the time of
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.] 431
appointment of Project Officer, he was a Government employee but once A
he is appointed as a Project Officer he became an officer of the ITDA
exercising administrative control particularly in the matter of appointment
of teachers and the removal. The Articles of Memorandum .,f Association
at the !TOA which is a registered society and some of the rules and
regulations are as follows:
B
'II. The Office of the Society shall be located at the Office
of the Secretary{freausrer of the Society designated as
Project Officer, Integrated Tribal Development Agency,
Vizianagaram.
III. (A) The main objectives of the Society shall be;
c
(1) To identify the problems of the tribals in the area;
(2) To investigate into problems with a view to formulate
firm measures for the development of the area improving D
the economic and educational standards; and to maintain
social and cultural heritage of the tribals and
(3) To formulate and to devise ways and means of im-
plementing suitable programmes for the benefit of the
tribals and the development of the area like; E
(a) Land Reclamation
(b) Provision of irrigation facilities by harassing the avail-
able minor irrigation sources and digging new wells, apart
from carrying repairs to minor irrigation sources. F
(4) To execute these plans for the benefit of the small tribals
either directly or through others in coordination with the
existing agencies engaged in this direction in the field, G
where private, public or co-operative such as Zilla
Parishad, the Agro-Industries Corporation, Co-operative
Banks, Girijen Corporation, Commercial Banks, Depart-
ments of the State and Central Government etc. (5) To
review the progress of execution of these activities as well H
432 SUPREME COURT REPORTS{1992] SUPP. 1 S.C.R.
A as the effectiveness of the benefits directed towards the tribals.
(B) To attain the main objectives cited above, the Society
may:
B
(c) to undertake generally such other activities as con-
ducive to the promotion of the economic interests and
social and educational welfare of the Tribals for the attain-
c ment of the above objects;
(IV) The Governing Body of the Society shall be the body
constituted as such under the regulations of the Society.
The relevant rules and regulations are also extracted
D hereunder:
"(2) Location: Office of the Secretaryffreasurer designated
as Project Officer, l.T.D.A. Vizianagararn.
E
(IV) (a) The Society shall maintain a roll of members at its
registered office and every members shall sign the roll and
state therein, his occupation and address.
•
(g) The Agency shall in consultation with the State Govern-
F
ment appoint a member-Secretary in whom the Executive
Authority of the Agency will vest.
(h) The Government of Andhra Pradesh State shall be
entitled to obtain information advice and assistance of the
G Society on all matters connected with all programmes
undertaken or to be undertaken by the Society.
(V) POWERS OF THE GOVERNING BODY.
(i) Save as herein expressly provided, as having to be passed
H the Soc!iety in a general meeting, all the duties, powers,
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.) 433
functions and rights whatsoever or consequential or in- A
cidental to the carry out of the objectives of the Society
shall only be exercised or performed by the Governing
Body subject to such limitations as the Government of
Andhra Pradesh may from time to time impose in respect
of the expenditure of its grant.
B
(IX) FUNDS OF THE SOCIETY:
(i) The funds of the society shall consist of the following:
(a) Recurring and non-recurring grants made by the
Government of India for the furtherance of the objectives C
of the Society:
(b) Income from investments
( c) Income from other sources.
D
(ii) The bankers of the Society shall be appointed by the
Governing Body. All funds of the Society should be paid
into Society's account with the said bankers and shall not
be withdrawn except on cheques signed by the Secretary
duly empowered in this behalf.
E
(X) ACCOUNTS AND AUDIT:
(a) The Accounts of the Society shall be audited by a
chartered accountant to be appointed by the Government
of Andhra Pradesh. The nature of audit to be applied and
F
the detail arrangements to be made in regard to the form
of accounts and their maintenance and prescribed by the
Bye-laws to be framed by the Governing Body and ap-
proved by the Government of Andhra Pradesh.
G
(XI) DUTIES OF THE OFFICE BEARERS:
(h) Project Officer will be in over all charge of the schemes
and will take up the entire correspondence and will be in
over all charge of the schemes. H
434 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A
(XII) PROPERTY OF THE SOCIETY:
All property belong to the Society shall be deemed to be
vested in the Governing Body of the Society but shall be
B referred as 'the property of the Society''
(XIII) SUITS AND PROCEEDINGS BY AND AGAINST
THE SOCIETY:
(a) The Society may sue or maybe sued in the name of the
C Chairman or Secretary or any office bearer authorised by
the Governing Body in this behalf."
(XIV) CONSTITUTION OF THE BODY:
(1) Distt. Collector Chairman
D Vizianagram.
JCXXXX xxxxx xxxxxxx
xxxxx xxxxx xxxxxxx
E (18) Special Deputy Collector, Member
(Tribal Welfare) Kluiapota,
(19) M.L.A. representing the Par- Member
vatipuram tribes constituency
(20) Tribal M.LA. S.Kota Assembly Member
Constituency.
F (21) Tribal M.LA. Naguru Assembly Member
Constituency.
(22) Tribal M.LA. Satur Assembly Member
Constituency.
(Sr. Nos. 19 to 22 M.LAs. of the
G
four local constituencies.)'
No doubt these rules go to show that the Governing Body of the Society
consists of 19 members who were officers of various Departments of
Government of Andhra Pradesh. They are ex-officio Chairman, Members,
H Secretary or Treasurer by virtue of their being in Government service. The
SATRUCHARLA RAJU v. VYRICHANDRA [REDDY, J.] 435
remaining four are local legislators. At the most from this what all that can A
be said is that the Government sanctions the funds and sanctions the posts
and exercises some control over the ITDA. The learned Judge also took
into consideration yet another aspect namely that it is the responsibility of
the State Government to provide compulsory education and the ITDA
under the supervision and control of the Government particularly the B
Education Department is carrying out the governmental activities namely
W provide education through the instrumentality of the Project Officer in
ITDA areas. The learned Judge in this context held thus:
"Moreover, under the provisions of Article 45 of the Con-
stitution, the State has to provide free and compulsory c
education to all children until they complete the age of 14
years. Primary education is also the responsibility of the
State Government. Section 7 of the A.P. Education Act,
1982 provides that the State Government shal_l endeavour
to provide compulsory education for all children until they
D
complete the age of 14 years and promote school education
in the State by securing and maintaining the universal
education hereafter for such children. With that objective,
as it is the responsibility of the State Government, it sanc-
tioned the number of poets of teachers in J.T.D.A. areas,
also and is meeting the expenditure out of its funds. Thus, E
the function of appointment of teachers in I.T.D.A. by the
Project Officer is one of the important governmental func-
tion."
No doubt, this is also one of the tests that has to be taken into consideration F
as pointed out by this court in Bihari/a/ Doqray's case but this aspect again
forms part of one of the main tests namely the nature of control that the
Government has over the ITDA. The learned Judge also has taken into
account that for the purpose of disciplinary action the ITDA has adopted
the Civil Services (Classification, Control and Appeal) Rules. But here G
again these Rules are meant to be enforced by ITDA through the Project
Officer or any other concerned officer of ITDA. It is only for the benefit
of the internal administration of ITDA that these rules are adopted.
Therefore mere adoption of these Rules does not in any manner vest the
power in the Government to appoint or remove the teachers. The whole
scheme is a project set up by the Government meant for the welfare of the H
436 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A tribals. But it is entrusted to ITDA, an authority by itself, subject to the
control of the Government in certain respects just like any other local
authority.
We must point out that the learned Judge has no doubt taken certain
relevant tests to be applied into consideration and has dealt with them in
B a clear and able manner but with great respect we are unable to agree with
him that the appellant held an office of profit "iinder the Government." We
reiterate that \le was holding an office of profit in ITDA over which the
Government has control. But we are concerned with the disqualification of
the appellant and in appreciating the same it becomes necessary lo deter-
c mine whether holding such an office comes in any manner into conflict with
his duties as a legislator and with his obligations with the Government
because of the office he holds. It is in this context the test whether the
Government has power to appoint or dismiss him assumes great impor-
tance. (vide Ashok Kumar Bhattacharyya'.s case)
D At this stage we may usefully refer to observations made by this
Court in Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Ko/he and
others, AIR 1975 SC 575 which are under:
"The law regarding the question whether a person holds an
office of profit should be interpreted reasonably having
E regard to the circumstances of the case and. the times with
which one is concerned, as also the class of person whose
case we are dealing with and not divorced from reality."
Now, we may refer to Bihari/a/ Dobray's case on which the learned
F counsel for the respondents placed considerable reliance. That was a case
where the elected candidate was originally employed as an Assistant
Teacher in a Basic Primary School run by the Zila Parishad in U .P. On
coming into force of the U .P. Basic Education Act, 1972 he became an
employee of the Board of Basic Education under Section 9(1) of the Act.
G While holding the post of the Assistant Teacher he filed his nomination.
He was elected and his election was questioned by the unsuccessful can-
didate. The High Court dismissed the election petition and in appeal
before this Court, it was contended that the elected candidate at the time
of filing his nomination was holding an office of profit. The rules framed
under the Act lay down that the appellate authorities in case of disciplinary
H proceedings are the State Government or the officers of the Government
SATRUCHARLA RAJU v. VYRICHERLA [REDDY, J.J 437
depending upon the nature of the posts. This Court after referring to the A
provisions of the Act and the rules held thus:
"It is seen that all officers mentioned in column 3 and
column 4 of the above Schedule are either the State
Government or officers appointed by the State Govern-
ment. The said officers are all officers of the Government
B
Department who hold the posts in the Board ex officio, that
is, by virtue of_ the corresponding post held by them under
the Government. The rules provide for the procedure to
be followed in disciplinary proceedings and the punish-
ments that may be imposed when an employee is found c
guilty of any act of misconduct. Rule 5 of the said rules
provides for an appeal against any order imposing punish-
ment to the prescribed authority. The procedure laid down
in Civil Services {Classification, Control and Appeal) Rules
as applicable to servants of the Uttar Pradesh Government
D
is required to be followed as far as possible in the case of
the employees of the U .P. Board of Basic Education. The
funds of the Board mainly come from the contribution
made by the State Government. The school in question is
not a privately sponsored institution which is recognised by
the Board. The Statement of Objects and Reasons attached E
to the Bill which was passed as the Act clearly says that the
Act was passed in order to enable the State Government
to take over the administration of schools imparting
primary education which were being run by the local
authorities into its own hands. Even though the repre-
F
sentatives of local authorities are associated in the ad-
ministration of such schools after the Act was passed, the
final control of the schools is vested in the Goverrunent and
such control is exercised by it through the Director and
Deputy Director of Basic Education (Member Secretary)
and other District Basic Education Officers appointed by G
the Government."
On the basis of these findings this Court held that the Government had
direct control and that subordination of the Board and its employees to
the Government is writ large on the face of the Act and the rules made H
438 SUPREME COURT REPORTS(1992] SUPP. 1 S.C.R.
A thereunder. Learned counsel for the respondents submitted that the facts
in the instant case also are similar. We do not agree. The facts in Bihari/al
Dobray's case are distinguishable. There, the appointing authority of the
teachers is the District Education Officer and the State Government
frames rules prescribing the conditions of service, tenure of service,
remuneration and other terms including disciplinary action and removal of
B teachers and other employees who are thus appointed. This Court, how-
ever, taking these aspects into consideration held that under the Act, the
Government took over all the Basic Schools with the object of providing
compulsory education to the children and that every employee of the Board
is in fact holding the office under the Government. As a matter of fact in
C a later decision i.e. in Ashok Kumar Bhattacharyya's case this Court distin-
guished Bihari/al Dobray's case and held thus:
"The measure of control by the Government over a local
authority should be judged in order to eliminate the possibility
of confilict between duty and interest and to maintain the
D purity of the elected bodies. After reviewing various cases,
and the provisions of the various sections of the U .P. Basic
Educatiou Act, 1972 especially in view of section 13 of the
Act, this Court held in the last mentioned case that the
measure of control was such that U .P. Education Board
E was an authority which was not truly independent of the
Government and every employee of the Board was in fact
holding an office of profit under the State Government.
The Statement of Objects and Reasons of the U.P. Basic
Education Act, 1972 and sections 4, 6, 7, 13, and 19 all of
which have been set out in extenso in that decision make
F
that conclusion irresistible."
(emphasis supplied)
Therefore Bihari/a/ Dobray's case is not of much assistance to the respon-
G dents. As a matter of fact, "s already observed in Bihari/al Dobray's case
as well as Ashok Kumar Bl1ottacharyya's case the emphasis was also on the
nature of the post held and the possibility of conflict' between duty and
interest of an elected member and to appreciate the same the test is
whether the Government has power to appoint or dismiss the employee
H who is being chosen as a legislator.
SATRUCHARLA RAJU v. VYRICHANDRA [REDDY, J.] 439
It is also necessary to bear in mind that the Government is under- A
taking several projects and activities including commercial activities
through the corporations and local bodies exercising some control over
such corporations or bodies. In that view of the matter they may come
within the meaning of the "State'" .ti envisaged in Article 12 but that may
not be a decisive factor in deciding \he issue. As a ~atter of fact Section
10 of the Representation of People Act as well as Article 58(2) of the
B
Constitution of India do indicate that all persons employed in such under-
takings, corporations or local bodies cannot be deemed to suffer dis-
qualification for contesting the elections except to the extent indicated
therein. This aspect also has been considered in some of the above-men-
tioned decisions. If a strict and narrow construction is to be applied that C
amounts to shutting off many prominent and other eligible persons to
contest the elections which forms the fundamental basis for the democratic
set-up. Therefore several factors as indicated above depending upon the
facts of each case have to be taken into consideration in deciding whether
a particular person is disqualified by virtue of his holding an office of profit D
before concluding that such an office is under the Government. In Mad-
huker G.E. Pankakar's case. as to what should be the approach, it was
observed thus:
"After all, all law is a means to an end. What is the legislative
end here in disqualifying holders of 'offices of profit under E
government'? Obviously, to avoid a conflict between duty
and interest, to cut out the misuse of official position to
advance private benefit and to avert the likelihood of
influencing government to promote personal advantage. So
this is the mischief to be suppressed. At the same time we F
have to bear in nund that our constitution mandates the
State to undertake multiform public welfare and socio-
economic activites involving technical persons, welfare
workers, and lay people on a massive scale so that par-
ticipatory government may prove a progressive reality. In
such an expanding situation, can we keep out from elective G
posts at various levels many doctors. lawyers, engineers and
scientists, not to speak of an army of other non-officials
who are wanted in various fields, not as full-time govern-
ment servants but as part-time participants in people's
projects sponsored by government? For instance, if a Na- H
440 SUPREME COURT REPORTS[I992J SUPP. 1 S.C.R.
A tional Legal Services Authority funded largely by the State
comes into being, a large segment of the legal profession
may be employed part-time in the ennobling occupation of
legal aid to the poor. Doctors, lawyers, engineers, scientists
and other experts may have to be invited into local bodies,
legislatures and like political and administrative organs
B based on election if these vital limbs of representative
government are not to be the monopoly of populist poli-
ticians or lay members but sprinkled with technicians in an
age which belongs to technology. So, an interpretation of
'office of profit' to cast the net so wide that all our citizens
c with specialities and know-how are inhibited from entering
elected organs of public administration and offering semi-
voluntary services in para-official, statutory or like projects
run or directed by Government or Corporation controlled
by the State may be detrimental to democracy itself. Even
athletes may hesitate to come into Sports Councils if some
D
fee for services is paid and that proves their funeral if
elected to a panchayat ! A balanced view even if it involves
judicious irreverence to vintage precedents, is the wiser
desideratum. 11
E What emerges from the above discussion is that the Government has
some control over the !TOA which is set up as a project, since it provides
funds and sanctions the posts: the District Collector is appointed as Project
Officer and some officers are ex-officio members of the ITDA which carries
out the object of providing the compulsory education in tribal areas. But
F the !TOA is a registered Society having its own constitution. Though the
Project Officer is the District Collector, he acts as a different entity. The
power to appoint or to remove teachers is not with the Governemnt but
with the Project Officer. The Government may have control over the
appointing authority but has no direct control over the teachers. The small
post that appellant holds in !TOA is only that of a Teacher who is directly
G under the control of the Proj~ct Officer. In such a situation the question
of any conflict between his ,juties aud interests as an elected member does
not arise since it cannot be said that he, as a teacher, can be subjected to
any kind of pressure by the Government which has neither the power to
appoint him nor to remove him from service. Taking a practical view of
H the substance of these factors into consideration, we are of the view that
I
SATRUCHARLA RAJU v. VYRICHERLA (REDDY, J.] 441
the appellant cannot be held to be holding an office of profit under the A
Government. Accordingly the Order of the High Court is set aside and the
appeal is allowed. Parties are directed to bear their own costs throughout.
V.P.R. Appeal allowed.
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