Karnail Singh vs State of Punjab

S.D. Aggarwal, CJ.,

These are four petitions under Articles 226 of the Constitution of India, challenging the instructions issued by the Secretary to Government of Punjab, Department of Rural Development and Panchayats, on 27th December, 1992, specifying therein the persons who are not entitled to contest as Sarpanch or Panch of the panchayat elections.

In writ petition No. 522 of 1993, the petitioners are all working as employees of the Punjab Tractors Limited. In writ petition No. 417 of 1993, the petitioner is an employee of the Pepsu Road Transport Corporation. In writ petition No. 419 of 1993, the petitioners are the employees of Punjab State Electricity Board and in writ petition No 883 of 1993, again the petitioner is an employee of the Punjab Tractors Limited. Section 6 of subclause (5) of the Punjab Gram Panchayat Act, 1952, hereinafter referred to as the ''Act'') enumerates persons who are not entitled to stand for election as or continue to be a Sarpanch or Panch. The relevant clauses (a) and (g) of subsection (5) of Section 6 of the Act are quoted below :

"(5) No person who

(a) is not a member of the Sabha or is not qualified to be elected as a member of the Legislative Assembly; or

(b) xx xx xx

(c) xx xx xx

(d) xx xx xx

(e) xx xx xx

(f) xx xx xx

(g) is a whole time salaried servant of any local authority or State or the Union of India; or

(h) xx xx xx

(i) xx xx xx

(j) xx xx xx

(k) xx xx xx

(l) xx xx xx

(m) xx xx xx

(n) xx xx xx

(o) xx xx xx

(p) xx xx xx

shall be entitled to stand for election as, or continue to be a Sarpanch or Panch :

Provided that a member of either house of Parliament or of the Legislature of the Punjab State may be elected as a Sarpanch or Panch if, alongwith his nominationpaper he gives a written undertaking to the effect that he shall resign his membership of either House of Parliament or of the Legislature of the Punjab State as the case may be, and so resigns before taking the oath under Subsection (1) of Section 9."

The instructions which are the subject of challenge dated 27th December, 1992 are quoted below :

"The Secretary to Government of Punjab, Department of Rural Development and Panchayats.

All the Deputy Commissioners in the State.

Memo No. 6/3/BI92/130887900 Chandigarh, Dated the 27th December, 1992.

Subject : General Election to Gram Panchayats in the State Clarification.

"The persons who are not entitled to contest as Sarpanch or Panch in Panchayat Elections have been given in Section 6(b) (g) of the Punjab Gram Panchayat Act, 1952. Section 6(5)(g) of the Punjab Gram Panchayat Act, 1952 provides as under :

6(5) No person who

xxxxxxx

(g) is a whole time salaried servant of any local authority or State or the Union of India;

xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

shall be entitled to stand for election or continue to be a Sarpanch or Panch.

The opinion of the Law Department was sought as to whether the employees of Boards/Bank/Universities are eligible to contest the Panchayat Elections. The Law Department have opined in this behalf as under :

Following the law laid down in Ajay Hasia v. K.M. Sehravardi, (AIR 1981 SC 487), the Corporations/Boards a list of which has been furnished by the Administrative Department can well be covered under the definition of the ''State'' under Article 12 of the Constitution of India. The Municipal Committees and the Municipal Corporations are specially covered under the definition of Local Authority. Therefore, employees of these Corporations/Boards/Municipal Committees and Corporations are debarred from contesting election to the Gram panchayat and as such there should be no legal objection if the employees of these agencies are put on election duty. This replies both the questions raised by the Administrative Department.

According to the above advice the employees of these agencies (list enclosed) are debarred from contesting election to the Gram Panchayats and as such the employees of these agencies to be put on election duty.

The above mentioned clarification may be brought to the office of the ReturningcumPresiding Officers for their Information during the forthcoming Elections to Gram Panchayats.

The receipt of this letter may please be acknowledged.

Sd/

Additional Director Panchayats

for Secretary to Government of Punjab, Department of Rural Development and Panchayats."

Along with these instructions, a list has been attached which consists of 56 organisations. The list of Boards/Corporations/Municipalities/Universities is also mentioned below :

"1. Punjab Agro Ind. Corp.

Punjab Alk. Chemicals Ltd.

Punjab Backward Classes land Dev. & Fin. Corp,

Punjab State Coop Agri. Dev Bank Ltd.

Punjab State Coop Bank.

Punjab State Council for Science & Technology,

Punjab State Consofed.

Elect. Dev. & Irod. Crop. Ltd.

Punjab Energy Development Agency.

Punjab ExSer. Corp.

11 Punjab Finance Corp.

Punjab Development Corporation.

Punjab Khadi and Village Industry Board.

Govindwal Ind. & Investment Corp.

Handloom and Textiles Dev. Corp. Ltd.

Punjab Housefed.

Punjab State Hosiery and Knitwear Corp.

Punjab Housing Development Board.

Land Dev. & Reclamation Corp.

Punjab Leathra.

Land Use and Waste Dev. Board.

Markfed.

Milkfed.

Punjab Mandi Board.

Punjab National Fertilizer and Chemicals Ltd.

PUNSUP

P.C.L.

Punjab State Elect. Board.

P.S.I.D.C.

Punjab Poultry Dev. Corp.

P.R.T. Corp.

Planning Board

Punjab Police Housing Corp.

Punjab State Education Board.

PUNSEED

SPINFED

SUGARFED

Punjab Seed Corp. Authority.

Punjab S.C. Land Dev. & Fin. Corp,

Small Ind. & Export Corp.

Social Welfare Advisory Board.

Punjab Tubewell Corp.

Punjab Tractors (Mohali).

Punjab Tourism Development Corp.

University Text Book Boards.

Punjab Warehousing Corp.

Punjab Water Supply and Sewerage Board.

Punjab Women & Children Dev. & Welfare Corp.

Water Pollution Board.

Punjab Wireless System Ltd.

WEAVCO

Punjab University, Chandigarh.

Punjabi University, Patiala.

Punjab Agriculture University, Ludhiana.

Guru Nank Dev University, Amritsar; and

All the Municipal Corporations and Municipal Committees in the State."

After the issue of these instructions, another instruction was issued on 14th January, 1993 by virtue of which it was directed that the employees of the Cooperative Societies in the State are not restrained from contesting the elections of the Panchayats.

The effect was that out of list of Boards/Corporations/Municipalities/Universities, Cooperative Societies in the State were excluded and their employees were permitted to contest the elections of the Panchayats. The petitioners have urged that they are not whole time salaried servants of the State of Punjab and as such the impugned Notification issued under Section 6 subclause (5)(g) of the Act is ultra vires the Act and as such is liable to be quashed and cannot be given effect to.

In our opinion, it is not necessary for us to go into the question whether the petitioners, are whole time salaried servants of the State of Punjab or not as the petitioners are clearly debarred from contesting the elections of the Panchayats under clause (a) of subsection (5) of Section 6 of the Act which has been quoted above.

Clause (a) clearly provides that if a person is not qualified to be elected as a member of the Legislative Assembly, he is not entitled to stand for the election as Sarpanch or Panch. Article 191 of the Constitution of India lays down the disqualifications for Membership of the Legislative Assembly. Article 191 of the Constitution of India is quoted below :

"191. (1) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder :

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule."

It is apparent that under subclause (a) of clause (1) of Article 191 of the Constitution of India, if a person holds any ''office of profit'' under the Government of India or the Government of any State then he is disqualified from being elected as a member of the Legislative Assembly. In view of this subclause (a), if a person holds any ''office of profit'' under the Government of India or the Government of any State, then he is not qualified to be elected as a member of the Legislative Assembly. In view of this provision, if any person in the State of Punjab holds any ''officer of profit'' under the State of Punjab then he is disqualified from contesting the election as a Panch or the Sarpanch under subclause (a) of subsection (5) of the Act, which has been quoted above. The question, therefore, which remains for consideration before us is as to what is the meaning to be given to the words ''office of profit'' under the Government of any State. This expression came up for consideration before Hon''ble the Supreme Court in Biharilal Dobray v. Roshan Lal Dobray, AIR 1984 SC 385. Hon''ble Venkataramiah, J. (as he then was) opined as follows :

"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. The term office of profit under the Government" used in the above clause though indeterminate is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. 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 between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of 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. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government although the Court has no doubt determined in each case whether the particular office involved in it was such an office or not having regard to its features."

The case of Biharilal (supra) was a case where the question was as to whether an Assistant Teacher employed in a Basic Primary School run by the Uttar Pradesh Board of Basic Education is disqualified for being chosen as a Member of the State Legislative Assembly. The Supreme Court laid down the test to determine as in which case an employee of statutory body would be held to be holding ''office of profit''. The Hon''ble Supreme Court laid down as follows :

"Even though the incorporation of a body corporate may suggest that the statute intended it to be a statutory corporation independent of the Government 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 just that alter ego of the Government itself. 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 the several other bodies or committees over it and their composition, the degree of its dependence on 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 from the point of view of Government."

In the case before us, the learned Advocate General for the State of Punjab has categorically stated the Punjab tractors, Limited, Punjab State Electricity Board and Pepsu Road Transport Corporation are entirely funded by the State Government and the State Government exercises complete control over them. No contrary evidence has been brought by the petitioners in this case. In the circumstances, we hold that in all the four petitions the petitioners are holding ''offices of profit'' under the State of Punjab and as such they would clearly come within the disqualification mentioned in sub clause (a) of subsection (5) of Section 6 of the Act and as such they have been rightly disqualified from contesting the election as a Sarpanch or a Panch. In the circumstances, it cannot be said that the instructions issued on 27th December, 1992 is any manner illegal or ultra vires the Act.

In the instructions issued on 27th December, 1992, reference has been made to clause (g) of subsection (5) of Section 6 of the Act meaning thereby that the instructions have been issued under subclause (g). This in our opinion does not make any difference. The mere mention of a wrong provision in the instructions does not make the instructions illegal when they are referable to another clause of the same Section which gives power to the State Government to issue instructions in the line which they have issued. In the result, we do not find merit in all the petitions. They are accordingly dismissed. No order as to costs.