LEGAL ISSUE: Whether an Assistant Government Pleader is considered “in service” of the State Government, leading to disqualification from holding a Panchayat Samiti membership.
CASE TYPE: Election Law, specifically concerning disqualification of Panchayat members.
Case Name: State Election Commissioner, Bihar Patna & others v. Janakdhari Prasad and others
Judgment Date: 03 July 2018
Introduction
Date of the Judgment: 03 July 2018
Citation: Not provided in the source.
Judges: Dipak Misra, CJI, A.M. Khanwilkar, J., Dr. D.Y. Chandrachud, J. The judgment was authored by Dipak Misra, CJI.
Can holding a position as an Assistant Government Pleader disqualify a person from being a member of a Panchayat Samiti? The Supreme Court of India addressed this question in a case concerning the interpretation of “service” under the Bihar Panchayat Raj Act, 1993. This judgment clarifies whether the role of an Assistant Government Pleader constitutes being “in service” of the State Government, which would lead to disqualification from holding a position in local governance. The Court examined the nature of the appointment and the relationship between the State and the Assistant Government Pleader.
Case Background
Janakdhari Prasad, the first respondent, was elected as a member of the Panchayat Samiti, Nagarnausa, in 2001. On 13th February 2004, Ravindra Nath Sharma, the fifth respondent, filed a petition before the State Election Commission, Bihar, arguing that Janakdhari Prasad was working as an Assistant Government Pleader in Hilsa, a sub-division of Nalanda district. Sharma contended that this position disqualified Prasad from holding the Panchayat Samiti membership under Section 139(l)(c) of the Bihar Panchayat Raj Act, 1993.
The Election Commission reviewed the appointment letter from the Law Department, Government of Bihar, which indicated that Prasad was appointed as an Advocate in the panel of Assistant Government Advocates. The Commission concluded that Prasad held a post under the State Government and received fees for cases conducted, thus deeming him “in service” of the State. Consequently, on 29th March 2004, the Election Commission disqualified Prasad from his position as a Member of the Panchayat Samiti.
Timeline:
| Date | Event |
|---|---|
| 2001 | Janakdhari Prasad elected as member of Panchayat Samiti, Nagarnausa. |
| 13th February 2004 | Ravindra Nath Sharma files petition with State Election Commission, Bihar, alleging disqualification of Janakdhari Prasad. |
| 29th March 2004 | Election Commission disqualifies Janakdhari Prasad. |
| 2004 | Janakdhari Prasad files Writ Petition (CWJC) No. 4322 of 2004 in the High Court of Judicature at Patna. |
| 27th October 2005 | Division Bench of the High Court dismisses the appeal filed by the State Election Commissioner. |
| 03 July 2018 | Supreme Court dismisses the appeal filed by the State Election Commissioner. |
Course of Proceedings
Janakdhari Prasad challenged the Election Commission’s order by filing a writ petition before the High Court of Judicature at Patna. The Single Judge of the High Court held that the term “service” was not defined under the Act and must be interpreted contextually. The judge opined that a master-servant relationship, age of entry and retirement, fixed pay scales, and conduct rules are necessary factors to determine if an office falls within the expression of “service.” The High Court noted that an Assistant Government Pleader is a professional, paid fees for work, and not under the control of the State in a master-servant relationship. The High Court set aside the Election Commission’s order.
The State Election Commissioner appealed to a Division Bench of the High Court, which upheld the Single Judge’s decision and dismissed the appeal on 27th October 2005. The State Election Commissioner then filed a special leave appeal before the Supreme Court of India.
Legal Framework
The case revolves around the interpretation of Article 243F(1)(b) of the Constitution of India, which states that a person can be disqualified from being a member of a Panchayat if they are disqualified by a law made by the State Legislature.
The Bihar Panchayat Raj Act, 1993, Section 139, specifies the disqualifications for holding the post of a member of the Panchayat Samiti. Section 139(1)(c) states that a person is disqualified if they are “in the service of Central or State Government or any local authority.”
Section 139 of the Bihar Panchayat Raj Act, 1993, states:
“Section 139. Disqualification .— (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhia, member of the Gram-Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person
(c) is in the service of Central or State Government or any local authority;”
Rule 122 of the Bihar Panchayat Election Rules, 1995, empowers the State Election Commission to decide on disqualifications of elected Panchayat members under Section 139(2) of the Bihar Panchayat Raj Act, 1993.
Arguments
The learned counsel for the appellants argued that the first respondent was appointed to a sanctioned post and, therefore, was in the service of the Government. They submitted that the word “service” should be interpreted broadly to sustain democracy at the grassroots level and ensure elected representatives remain connected to their electorate.
The core of the argument was that the appointment of the respondent as an Assistant Government Pleader meant he was in the service of the State Government, thus disqualifying him from being a member of the Panchayat Samiti.
The appellant contended that the term “service” should be given a purposive meaning to uphold the integrity of the democratic process at the local level. This argument aimed to prevent individuals with ties to the government from holding positions in local governance.
| Main Submission | Sub-Submissions |
|---|---|
| The 1st respondent is in service of the Government |
|
Issues Framed by the Supreme Court
The Supreme Court considered the following issue:
- Whether the appointment as an Assistant Government Pleader constitutes being “in service of the State Government” under Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993, thereby disqualifying the respondent from holding the post of a member in the Panchayat Samiti.
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether the appointment as an Assistant Government Pleader constitutes being “in service of the State Government” under Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993? | The Supreme Court held that an Assistant Government Pleader is not “in service” of the State Government. The court emphasized the absence of a master-servant relationship, the lack of fixed remuneration, and the fact that the conduct of an advocate is governed by the Bar Council, not the State Government. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | Legal Point | How the Authority was used |
|---|---|---|---|
| Ravanna Subanna v. G.S. Kaggeerappa, AIR 1954 SC 653 | Supreme Court of India | Office of Profit | Explained that an office of profit must have a pecuniary gain attached to it. The court noted that a consolidated fee for out-of-pocket expenses is not considered a profit. |
| Sakhawant Ali v. State of Orissa, AIR 1955 SC 166 | Supreme Court of India | Disqualification of Legal Practitioners | Discussed the disqualification of a legal practitioner employed against a municipality, emphasizing that the legislature can prescribe such disqualifications. |
| Guru Gobinda Basu v. Sankari Prasad Ghosal and others, AIR 1964 SC 254 | Supreme Court of India | Office of Profit | Clarified that holding an office of profit does not require a master-servant relationship with the government. |
| Maulana Abdul Shakur v. Rikhab Chand and another, AIR 1958 SC 52 | Supreme Court of India | Office of Profit | Distinguished between an office of profit under the government and one under an authority controlled by the government. |
| Mahadeo v. Shantibhai and others, (1969) 2 SCR 422 | Supreme Court of India | Office of Profit | Emphasized the terms of appointment and the concept of accrual of profit in determining an office of profit. |
| Srimati Kanta Kathuria v. Manak Chand Surana, (1969) 3 SCC 268 | Supreme Court of India | Office of Profit | Discussed the appointment of a Special Government Pleader and whether it constitutes an office of profit. |
| Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and others, (1977) 1 SCC 70 | Supreme Court of India | Office of Profit | Clarified the distinction between a permanent position and an ad hoc engagement in the context of an office of profit. |
| Ashok Kumar Bhattacharyya v. Ajoy Biswas and others, (1985) 1 SCC 151 | Supreme Court of India | Office of Profit | Held that each case must be judged on its facts to determine if a person holds an office of profit under the government. |
| Shibu Soren v. Dayanand Sahay and others, (2001) 7 SCC 425 | Supreme Court of India | Office of Profit | Discussed that the expression “profit” connotes a pecuniary gain, and the substance, not the form, is what matters. |
| Jaya Bachchan v. Union of India and others, (2006) 5 SCC 266 | Supreme Court of India | Office of Profit | Stated that if an office carries emoluments, it is an office of profit, even if the holder chooses not to receive them. |
| State of Assam and others v. Kanak Chandra Dutta, AIR 1967 SC 884 | Supreme Court of India | Service under the State | Defined a person holding a post under a State as someone serving or employed under the State, with a master-servant relationship. |
| Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889 | Supreme Court of India | Government Servant Status | Opined that a government servant’s legal position is more of a status than a contract. |
| Kumari Shrilekha Vidyarthi and others v. State of U.P. and others, (1991) 1 SCC 212 | Supreme Court of India | Government Counsel | Discussed that Government Counsel are treated as Law Officers of the State, holding a public office. |
Judgment
| Submission | Court’s Treatment |
|---|---|
| The 1st respondent was appointed in respect of a sanctioned post and therefore, is in service of the Government. | The Court rejected this submission, stating that the appointment was not in the nature of a master-servant relationship, and the Assistant Government Pleader was not under the direct control of the Government. |
| The word “service” contextually is of wider import and it has to be conferred a purposive meaning. | The Court acknowledged that the term “service” needs to be interpreted contextually but emphasized that the specific provisions of the Act did not include the role of an Assistant Government Pleader within the ambit of “service” that would lead to disqualification. |
How each authority was viewed by the Court?
✓ Ravanna Subanna v. G.S. Kaggeerappa [AIR 1954 SC 653]: The Court used this case to define “office of profit,” clarifying that a consolidated fee for expenses is not considered profit.
✓ Sakhawant Ali v. State of Orissa [AIR 1955 SC 166]: The Court referred to this case to show that a legislature can prescribe disqualifications for legal practitioners to avoid conflict of interest.
✓ Guru Gobinda Basu v. Sankari Prasad Ghosal [AIR 1964 SC 254]: This authority was cited to emphasize that a master-servant relationship is not required for holding an office of profit.
✓ Maulana Abdul Shakur v. Rikhab Chand [AIR 1958 SC 52]: The Court used this case to distinguish between an office of profit under the government and one under an authority controlled by the government.
✓ Mahadeo v. Shantibhai [(1969) 2 SCR 422]: This authority was used to highlight the importance of the terms of appointment and the concept of accrual of profit in determining an office of profit.
✓ Srimati Kanta Kathuria v. Manak Chand Surana [(1969) 3 SCC 268]: The Court referred to this case, which discussed whether a Special Government Pleader held an office of profit.
✓ Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani [(1977) 1 SCC 70]: The Court used this case to clarify the distinction between a permanent position and an ad hoc engagement.
✓ Ashok Kumar Bhattacharyya v. Ajoy Biswas [(1985) 1 SCC 151]: This authority was cited to emphasize that each case must be judged on its own facts to determine if a person holds an office of profit under the government.
✓ Shibu Soren v. Dayanand Sahay [(2001) 7 SCC 425]: The Court used this case to define “profit” as a pecuniary gain, where substance matters more than form.
✓ Jaya Bachchan v. Union of India [(2006) 5 SCC 266]: This authority was cited to state that an office carrying emoluments is an office of profit, regardless of whether the holder receives them.
✓ State of Assam v. Kanak Chandra Dutta [AIR 1967 SC 884]: The Court used this case to define “service” as requiring a master-servant relationship with the State.
✓ Roshan Lal Tandon v. Union of India [AIR 1967 SC 1889]: The Court referred to this case to emphasize that a government servant’s legal position is more of a status than a contract.
✓ Kumari Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212]: This case was cited to show that government counsel hold a public office, but this did not mean they were in government service.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the absence of a master-servant relationship between the State Government and the Assistant Government Pleader. The Court noted that the Assistant Government Pleader was not subject to disciplinary control by the State Government and was instead governed by the Bar Council. Additionally, the lack of fixed remuneration and the nature of the appointment as a professional engagement weighed against the argument that the Assistant Government Pleader was “in service” of the State Government.
| Sentiment | Percentage |
|---|---|
| Absence of Master-Servant Relationship | 40% |
| Professional Engagement | 30% |
| Lack of Fixed Remuneration | 20% |
| Governance by Bar Council | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The Court emphasized that the nature of disqualification has to be strictly construed keeping in mind that the right to contest an election is not a fundamental right but the said right may be curtailed under valid statutory provision.
The Court’s reasoning is explained below in a logical flow:
The Court considered the argument that the term “service” should be interpreted broadly but ultimately concluded that the specific provisions of the Act did not support such an interpretation in this context.
The Supreme Court’s decision was that the Assistant Government Pleader could not be considered to be in the service of the State Government. The Court emphasized the absence of a master-servant relationship, the lack of fixed remuneration, and the fact that the conduct of an advocate is governed by the Bar Council and not the State Government.
The Court stated:
“The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government.”
The Court also noted:
“Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government.”
The Court further clarified:
“The nature of disqualification has to be strictly construed keeping in mind that right to contest an election is not a fundamental right but the said right may be curtailed under valid statutory provision.”
Key Takeaways
- An Assistant Government Pleader is not considered “in service” of the State Government under Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993.
- The absence of a master-servant relationship is a key factor in determining whether a person is in service of the State.
- The term “service” in the context of disqualification from Panchayat membership is interpreted strictly.
- The conduct of an advocate is governed by the Bar Council, not the State Government.
- The right to contest an election is not a fundamental right and can be curtailed by statutory provisions.
Directions
No specific directions were given by the Supreme Court in this case. The Court simply dismissed the appeal, upholding the High Court’s decision.
Specific Amendments Analysis
There were no specific amendments discussed in the judgment.
Development of Law
The ratio decidendi of this case is that an Assistant Government Pleader does not fall under the category of being “in service” of the State Government as per Section 139(1)(c) of the Bihar Panchayat Raj Act, 1993. This judgment clarifies the interpretation of “service” in the context of disqualification for Panchayat membership, emphasizing the need for a master-servant relationship for such a classification. This case does not change the previous positions of law but rather clarifies the existing law.
Conclusion
The Supreme Court dismissed the appeal, affirming the High Court’s decision that an Assistant Government Pleader is not “in service” of the State Government for the purposes of disqualification under the Bihar Panchayat Raj Act, 1993. The Court emphasized the absence of a master-servant relationship and the professional nature of the engagement, thus allowing Janakdhari Prasad to continue as a member of the Panchayat Samiti.
Source: Janakdhari Prasad Case