Shri Divya Parkash vs Shri Kultar Chand Rana

Chet Ram Thakur, J.—Shri Kultar Chand Rana Respondent No. 1 was declared elected to the Himachal Pradesh State Legislative Assembly from Shahpur Constituency in Kangra District during the elections held in March, 1972. The Petitioner, who is a voter in that constituency, has challenged the election on the ground, amongst others, that Respondent No. 1 at the time of filing the nomination paper and at the time of being elected as a member of the Assembly was holding an office of profit under the Government of Himachal Pradesh and as such under Article 191(1)(a) of the Constitution of India he was disqualified for election to the Legislative Assembly.

The Respondent was nominated Chairman of the Board of School Education of Himachal Pradesh in the year 1969 by the Himachal Pradesh Government under the provisions of the Himachal Pradesh Board of School Education Act, 1968 (hereinafter to be called the 1968 Act) and continued to work in this capacity upto 25th March, 1972. The Board was constituted by the Himachal Pradesh Government u/s 3 of the 1968 Act. It was averred in the petition that the appointing and dismissing authority of the Chairman is the Himachal Pradesh Government under the law. Further, the regulations of the Board have been made by the Government u/s 27 of the aforesaid Act and the salary of the Chairman has also been fixed by the Government in the scale of Rs. 1600�1800. The Government is not only the appointing and dismissing authority qua the Chairman but is also the controlling authority. The Government has the power to issue directions as to the manner in which the duties of the office are to be performed, and to determine his remuneration. In view of this the Respondent was holding the office of profit under the Government at the time of his election and as such under Article 191 of the Constitution he was disqualified to contest the election.

In his preliminary objections the Respondent averred that he was the honorary Chairman of the Board which was a body corporate established u/s 3 of the 1968 Act. Therefore, he was not holding an office of profit under the Government of Himachal Pradesh. According to him, paras 5 and 6 of the petition did not disclose any enforceable cause of action. In the alternative it was pleaded that in case it was held to be an office under the State Government the Respondent was protected by the provisions of Section 3(m) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 (hereinafter to be called the 1971 Act). In his reply on merit it was denied that he was holding any office of profit under the Government at the time of filing his nomination papers or at the time of his election. He further averred that the Board is a body corporate and any person who is the employee or working under that statutory body cannot be said to hold an office of profit under the Government of India or under the Government of any State as envisaged under Article 191 of the Constitution. The other averments were also denied.

The Court on the pleadings of the parties framed a large number of issues, both preliminary as well as on merits. The preliminary issues except issue No. 7 were disposed of vide my order, dated 25th September, 1972. Out of the issues struck on merits the others were not pressed or were given up by the Petitioner on whom the onus lay and, therefore, we are left only with one issue on merits, which is to the following effect:

Whether the Respondent No. 1 was disqualified under the provisions of Articles 102 and 191 of the Constitution from contesting the election in view of his holding the office of the Chairman of the Board of School Education?

The preliminary issue No. 7 which was not disposed of earlier and was left to be decided on merits along with issue No. 1 with the mutual consent of the parties is also as under:

Issue No. 7:

Whether paras 5 and 6 of the petition do not disclose enforceable cause of action and what is its effect?

As both these above issues are inter-connected, therefore, they shall be dealt with together.

Findings on Issues Nos. 1 and 7:

It is admitted that Respondent on the date of the filing of the nomination papers and on the date of election was a Chairman of the Board of School Education and it is also admitted that he continued to hold this office till the 27th March, 1972, i.e. even after the results of the elections had been declared. It is also not disputed that the Board of School Education is a body corporate and the Chairman is nominated by the Government under the provisions of Section 18(1) of the 1968 Act. It is contended by the learned Counsel for the Petitioner that the Government was the removing authority qua the Chairman and it had also the control over the Board in its day to day functions. The Board had passed a resolution fixing the salary of the Chairman and the Respondent could claim that salary from the Board. There is no doubt that he had contracted to renounce the salary and had agreed to work in an honorary Capacity but that did not protect the Respondent from incurring disqualification under Article 191(1)(a) of the Constitution for election to the Legislative Assembly.

On the other hand, Shri Inder Singh learned Counsel for the Respondent has taken great pains to draw my attention to the various provisions of the 1968 Act. According to him, there exists no provision either in the Act or in the Regulations authorising the Board to fix the salary of the Chairman of the Board nor is there any provision authorising the Government to fix the salary of the Chairman just as in the case of Vice-Chancellor a specific provision for fixing the salary of the office of the Vice-Chancellor has been made in the first statute of the Himachal Pradesh University. The resolution passed and sent by the Board to the Himachal Pradesh Government was not approved and the Government on the contrary passed an order appointing Shri Kultar Chand Rana in an honorary capacity. In the absence of any provision for the salary of the Chairman in the Act or the regulations the Government could make the appointment in an honorary capacity and which it did. Insofar as the resolution was concerned the same was a dead letter which did not give any enforceable right to the holder of the office to claim any salary. Further on he contended that no doubt the appointment of the Chairman was made by the Government but there was no control of the Government on the Chairman in the strict sense of the word. The Board has been constituted to promote the educational interests of the people and with that object the Government exercises its general control over the Board and that control could not be like that of a master over his servant. He, therefore, contended that the Chairman did not hold any office of profit under the Government of India or the State so as to be disqualified for election under Article 191(1)(a) of the Constitution. In the alternative it had been argued that if he had incurred any disqualification, the same stood removed by Section 3(m) of the 1971 Act.

The learned Counsel for the parties have in support of their respective contentions relied on a catena of authorities.

Under Article 191 of the Constitution a person shall be disqualified for being chosen as a member of any of the House of the State Legislature--"(a) if he holds any office of profit under the Government of India or the Government of any State other than an office declared by law in the case of membership of either House of Parliament by Parliament and in the case of membership of a State Legislature by the Legislature of the State not to disqualify its holder; (b), (c), (d) and (e)....". From this, therefore, it follows that the ingredients of the disqualification as mentioned above are that, firstly, it must be an office, secondly, it must be an office of profit, and, thirdly, it must be under the Government. This principle underlying the disqualification has purposely been laid down in order to avoid any conflict between a private interest of a person and his duties as the member of the legislature for as a member he needs to be independent in order to be able to properly represent the interest of the people whom he represents. But if he holds any office of profit his interest in the office may keep him beholden to the Government as has been held in Deorao Laxman Anande Vs. Keshav Laxman Borkar, . In Shivamurthy Swami v. Agadi Sanganna Andnappa, (1971) 3 SCC 870 the essential tests for finding out whether an office in question is an office under Government and whether it is an office of profit had been laid down and the same are:

(1) Whether the Government makes the appointment;

(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 he perform them for the Government; and

(5) does the Government exercises any control over the performance of these functions.

In Gurugobinda Basu Vs. Sankari Prasad Ghosal and Others, it had been laid down that 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 between them. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government. Similarly in Raghunath Misra Vs. Kishore Chandra Deo Bhanj and Others, , the true test to determine whether a person holds an office of profit under the State is the power of the Government to appoint the person to the office or to revoke his appointment. Payment of remuneration to him from a source other than Government revenue is not always the decisive factor. Further in Lahri Singh v. Attar Singh and Ors. 1953 E.L.R. 403 , it was laid down that the consideration to be borne in mind in the case of an office of profit is not whether the holder himself made profit out of the office, but whether the office was one which enabled him to make profit. In Srimati Kanta Kathuria Vs. Manak Chand Surana, where an advocate was appointed as a Special Government Pleader to assist the Government Pleader in a particular case the question arose whether he held any office of profit and whether he incurred disqualification laid down in Article 191(1)(a) from contesting the election. Their Lordships held that the word "office" has various meanings depending upon its context. The words "its holder" occurring in Article 191(1)(a) indicate that there must be an office which exists independently of the holder of the office. Similarly in Brahma Dutt Vs. Paripurna Nand Family and Others, relying on Srimati Kanta Kathuria Vs. Manak Chand Surana, it was held that an office is a subsisting, permanent substantive position which has existence independent from the person who fills it which goes on and is filled in succession by successive holders. In Hoti Lal v. Raj Bahadur E.L.R. 1958 55, it was held that in order that an office may be an office of profit it is not necessary that there must be a fixed pay attached to the office. If the holder of the office can charge any fee or remuneration for exercising the function of his office, he holds an office of profit. In this case one Mukat a lawyer was acting as an Oath Commissioner under Rule 69 of the General Rules (Civil), 1952 (Rajasthan). At the time he filed his nomination paper for election to the Parliament, the Returning Officer rejected the nomination paper on the ground that Mukat was holding an office of profit under an appropriate Government and was, therefore, disqualified under Article 102 of the Constitution. The tribunal upheld the order of the Returning Officer and on appeal to the High Court of Rajasthan it was held that there are certain well-accepted criteria for determining whether there is an office in existence or not. These criteria are:

(1) That the office should be independent of the person holding it, meaning thereby that the office must exist even if the person is not there.

(2) The office cannot be assignable or heritable.

(3) That there should be a relation of master and servant between the Government on the one hand and the person holding the office on the other.

(4) That it must be for a specified period.

Thus so far as an Oath Commissioner is concerned, all these characteristics of an office are present. The office of the Oath Commissioner exists whether there is any person actually appointed to it or not. It was further held that the Oath Commissioners charge certain fees for verifying affidavits and these fees bring them income. Thus the office of the Oath Commissioner brings a profit to the holder there of and it must be, therefore, held to be an office of profit. The fact that there is no fixed pay for the office is immaterial. So long as profit arises by fees or by commission to the holder of an office, the office will be an office of profit.

In order to see whether these tests are applicable in the case of the Petitioner we have to go through the 1968 Act as also the regulations made thereunder by the Board. Section 3 of the 1968 Act provides for the establishment of a Board of School Education and Sub-section (2) of this section makes the Board a body corporate by the name of the Board of School Education, having perpetual succession, and common seal and power to acquire and hold property, both movable and immovable etc. Section 4 makes provision for the composition of the Board. It shall consist of the Chairman--ex-officio member, elected members, nominated members and the co-opted members. Section 6 lays down the terms of office of the members other than the ex-officio member. Sub-section (2) of this section lays down that if the elected member ceases for any reason to be a member of the Assembly he shall cease to be a member and his office shall become vacant. Sub-section (4) makes provision for terminating the nomination of the member before the expiry of his normal period of three years. Sub-section (5) makes provision for resigning the membership of the Board. Sub-section (6) talks about the filling up of the vacancy, that has fallen vacant because of the resignation, etc. for the remaining period. Sub-section (7) says that the outgoing member if otherwise qualified shall be eligible for re-election, re-nomination or occupation.

Here it would be pertinent to state that the learned Counsel for the Respondent contends that there is no provision in this section made for the removal, dismissal, etc. of the Chairman and that was deliberately done in order to avoid the effect of Article 311(2) of the Constitution.

The Chairman has been nominated, admittedly, under the provisions of Section 18 of the 1968 Act, and there is admittedly no provision in the Act made anywhere for the removal, etc. of the Chairman. Obviously no provision could be made under Sub-section (7) because it speaks about the resignation, removal, etc. of the other members of the Board, whereas the Chairman cannot admittedly be removed by the Board since he has been appointed by the State and the Board being an authority lower to the State Government was not competent to take any disciplinary action, and, therefore, u/s 15 of the Himachal Pradesh General Clauses Act, 1968 it cannot be disputed that the power to appoint must include the power to suspend or dismiss. Hence it follows that after the appointment of the Chairman is made by the Government then the removal must also be done by the Government and I may also quote with advantage Lekhraj Satramdas, Lalvani Vs. Deputy Custodian-cum-managing Officer and Others,

Section 10 of the Act speaks of the powers and functions of the Board, and those powers are contained in Clauses (1) to (18). The functions are so to say, to prescribe courses of instructions; to conduct examinations based on such courses; admit to its examinations; publish the results; grant diplomas and certificates; prescribe conditions for recognition of the schools; admission and receive such fees as may be prescribed; co-operate with other authorities; place before the Government the views of the Board; call for the report from the Director on the condition of any institution; apply for recognition and direct inspection of such institutions; arrange for publication of text books or other books of study; adopt measures to promote the physical, moral, cultural and social welfare of students in recognised institutions; organisation of lectures on administration and educational exhibitions, seminars and symposiums; institute and award scholarships; conduct departmental examinations; take necessary steps with regard to modernising the school curricula, strengthening of science and mathematics education, etc. and to do all such other acts and things ancillary to any of the purposes specified therein for the purpose of carrying into effect the provisions of the Act.

Section 11 enumerates the powers of the Government vis-a-vis the Board. The Government has been given the powers to address the Board with reference to anything conducted or done by the Board and to communicate to the Board its views on the matter with which the Board is concerned, and the Board is required to report to the Government such action if any as it proposes to take or has taken up on the communication received under Sub-section (1) and furnish an explanation for failure to take action. If the Board has failed to take action to the satisfaction of the Government with reference to the matter covered by the communication the Government after considering the explanation has been authorised to issue directions consistent with the Act as it may think fit and the Board shall comply with such directions and in case of emergency the Government is also clothed with the power to take any such action consistent with the Act. Further, the Government has been given the power to suspend the execution of any resolution or order of the Board or prohibit the doing of any act ordered or purported to be ordered to be done by the Board, if the Government is of opinion that such a resolution, order or act is in excess of the powers conferred by or under the Act upon the Board. However, the Government is required to place a report on the Table of the Legislative Assembly at the earliest possible opportunity stating the reasons for such action. Section 12 states about the constitution of the Board. Section 14 states about the application of the Board funds. The funds of the Board arc to be appropriated towards the payment of the charges and expenses incidental to the several matters specified in the Act and to any other purpose for which by or under the Act powers are conferred or duties imposed upon the Board. Section 17 says as to who are the officers of the Board. Chairman is also included in the officers of the Board. Section 18 talks about the nomination of the Chairman, about his qualifications, the nature of his office and his eligibility for re-election. Section 19 says that the Chairman shall be the administrative head of the Board and his duties shall be to see that the Act and the regulations are faithfully observed and he shall have all the powers necessary for the purpose. Section 23 talks about the other officers and servants of the Board, and Sub-section (4) of this section speaks about the qualifications and conditions of service and the scale of pay of officers and servants of the Board other than the Deputy Secretary, Assistant Secretary and Secretary and which are to be determined by the regulations. Section 24 talks about the constitution of the various committees to be appointed by the Board. Section 26 talks about the powers of the Board to make regulations and it further says that Board may make regulations for the purpose of carrying into effect the provisions of this Act. The purposes for which regulations are to be made are given thereunder. According to Section 26(2)(i) provision has been made for the making of regulations with regard to the appointment of officers, clerks and other servants of the Board and conditions of their service. Clause (p) of Sub-section (2) of Section 26 states about the emoluments and allowances of the members of the Board and all its committees. Section 27 states that the first regulations shall be made by the Government and they shall be deemed to have been made by the Board and continue in force until altered or modified by the Board.

Now we have to study the provisions of the regulations.

The first regulations were made by the Administrator, Himachal Pradesh, on 24th December, 1970, called as the Himachal Pradesh Board of School Education Regulations, 1970 (hereinafter to be referred to as the regulations). Chapter I deals with the title, commencement and the definitions. Chapter II deals with the meetings of the Board and rules for the elections of the committees. Regulation 2 of Chapter II provides for bye-laws relating to the procedure to be observed at the meetings of the Board and its committees. Chapter III deals with the terms of office of members and the committees and filling up of vacancies. Under Regulation 27 of Chapter III is mentioned the Constitution of the Executive Committee and Chairman is also shown as one of the persons who is to be on the committee. Regulation 29 under this chapter states that subject to the control of the Board the Executive Committee shall have powers enumerated thereunder and in Clauses (n) and (o) are given the powers for fixing and determining the rates of travelling, halting and conveyance allowances to the members of the Board and the committees thereof. Chapter IV deals with the officers of the Board and it has been stated therein that the appointment, terms of office and powers of the Chairman have been laid down, in sections 18 and 19 of the Act and the powers delegated to him under Clause 19(5) of the Act are also enumerated therein. Chapter VI deals with the finances of the Board. Chapter XII deals with the appointment, conditions of service of the officers and the employees of the Board and the deputations to the Board. Regulation No. 1 under this chapter lays down the classification of the employees. Part 2 of this chapter deals with the appointment, suspension, removal and control over the employees of the Board who arc divided into three Classes, (a), (b) and (c).

Thus from the perusal of the scheme of the 1968 Act the position that emerges is that the Chairman is an officer of the Board. He is also a member of the Board. However, in the Act there does not appear to be any provision about the salary of the Chairman. Mr. Nag contends that Clause (18) of Section 10 is the residuary clause whereby the Board has been given the power to fix the salary of the Chairman. But this submission of Mr. Nag is barren of substance. Section 10 enumerates the powers and functions that are to be performed by the Board. After a close study of this section it would be apparent that this clause deals with the allied matters to those mentioned in the foregoing clauses of that section and for purposes of carrying out the provisions of the Act. Therefore, it cannot be said that Clause (18) is a residuary clause under which the Board is clothed with the authority to fix the salary of the Chairman of the Board.

The Petitioner had pleaded in para 6(c) of the petition that the salary of the Chairman had been fixed by the Government and the scale also had been given therein. It had also been mentioned that Regulations u/s 27 of the aforesaid Act had been made and the salary had been fixed by the Government meaning thereby that the Government had been authorised to fix the salary of the Chairman under the regulations. In view of this stand taken by the Petitioner in the pleadings he cannot now be permitted to take up a stand contrary to his pleadings. In the first instance there is no power vested in the Board under the provisions of Section 10(18) of the 1968 Act nor the Petitioner has taken that stand in the pleadings that it was the Board which was the competent authority for fixing and determining the salary of the Chairman as he has now attempted to do during the course of arguments.

The further submission is that Section 26 gives power to the Board to make regulations providing for the purposes of carrying out into effect the provisions of the Act. In other words, what he means to say is that the Act gives the power to the Board to make regulations for fixing the salary of the Chairman and a pointed reference has been made to Clause (p) of Sub-section (2) of Section 26, in which there is a mention about the emoluments and allowances to members of the Board and all its committees. Section 26(2)(p) reads as:

(2) In particular and without prejudice to the generality of the foregoing power, the Board may make regulations providing for all or any of the following matters, namely:

(a) to (o) XXXX

(p) the emoluments and allowances of members of the Board and all its committees; and

(q) XXXX

This clause undoubtedly speaks about the power of the Board to make regulations for providing for emoluments and allowances to the members of the Board and its committees, but there is no separate and independent provision about the salary for the office of the Chairman. Primarily the Board has been authorised to make regulations for the purposes of carrying into effect the provisions of the Act and in particular with regard to the matters specified therein.

The regulations have been perused and there is no provision whatsoever about the salary of the Chairman. The resolution, Exhibit PW. 1/C, was passed by the Board fixing the scale of pay for the post of the Chairman. This resolution, it is not disputed, was sent to the Government. The stand in the petition was that the Government sanctioned the scale of pay which means that it was sent by way of recommendation. This further finds support from the statement of Miss Bhagat (P.W. 1) also that the resolution was sent to the Government by way of recommendation which means that the Board was not competent to fix the salary. It merely proposed the salary subject to the approval of the Government. However, I have already stated that there is no specific provision authorising the Board to fix the salary or remuneration of the Chairman. Section 26(2)(p) merely says that the regulations would be made for such and such purposes and the determination of emoluments and allowances of the members of the Board and its committees is also one of the purposes, but no regulations had been framed. The learned Counsel for the Petitioner has contended that in the absence of any regulations the Board was competent to pass a resolution fixing the salary of the Chairman of the Board and that the resolution passed by the Board had the force of a regulation. The learned Counsel has relied on a number of authorities to support his contention that the Board being a corporate body was a State and any resolution, etc. passed by that authority had the force of law or regulation as contemplated under Article 13 of the Constitution. This argument may be set at rest by saying that the corporate body is a State and any rule or regulation passed by it has got the force of law, is only for purposes of Chapter III of the Constitution which deals with the fundamental rights and, therefore, there is no need to cite the authorities.

The further contention is that in the absence of any regulation the Board in exercise of its executive powers had the authority to pass a resolution so as to carry on its work and in this behalf also reliance is placed on B.N. Nagarajan and Others Vs. State of Mysore and Others, which says that:

There is nothing in terms of Article 309, Proviso, which abridges power of executive to act without a law under Article 162.

This authority has got no application. Though the Board is a corporate body yet it cannot be compared to the State so as to have executive functions exercisable under Article 162 of the Constitution.

The further submission is that there is no prohibition under Sections 26, 23(4) and 10(18) to do a particular thing and, therefore, in the absence of any specific prohibition the Board was competent to pass a resolution and for this also reliance is placed on Mysore State Road Transport Corporation v. Gopinath Gundachar Char AIR 1968 S.C. 161, It was held in this authority that:

The conjoint effect of Sections 14(3)(b), 34 and 45(2) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the Slate Government u/s 34 and the regulations if any, framed u/s 45(2)(c). But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit. There is necessarily a time-lag between the formation of the Corporation and the framing of regulations u/s 45(2). During the intervening period, the Corporation must carry on the administration of its affairs with the help of officers and servants. In the absence of clear words, it is difficult to impute to the Legislature the intention ion that the Corporation would have no power to appoint officers and servants and fix the conditions of service unless the regulations u/s 15(2) are framed.

The authority is distinguishable. There was the question of appointment of officers and servants of the Corporation. In the instant case the question is about the determination of the remuneration of the Chairman. He is nominated by the Government and not by the Board. The Act and the regulations do not make any provision for fixation and determination of the salary of the Chairman. Therefore, the Board could not be said to be competent to pass any resolution merely because there existed a provision u/s 26(2)(p) that regulations may be made providing for remuneration and allowances of the members of the Board. The first regulations had to be made by the Government and the Board was not competent to pass any resolution so as to take the place of a regulation. Moreover, this stand is totally against the case of the Petitioner, as contained in para 6(c) of the petition.

It had also been urged that Section 23(4) of the 1968 Act makes a provision for the conditions of service and the scales of pay of officers and servants of the Board. The Chairman being an officer of the Board was also covered by that sub-section and, therefore, the Board was competent to fix the salary. This argument is wholly devoid of any force because the bare perusal of the section would reveal that the word, "officers" occurring in this Sub-section (4) does not cover the Chairman. It relates only to those officers who arc appointed by the Board and not by the Government. Therefore, this point also fails.

The resolution, it may be stated, was passed by the Board without any lawful authority because the first regulations were to be made by the State Government and the regulations which were made did not contain any provision authorising the Board to fix the remuneration or salary of the Chairman. The resolution, therefore, was a dead letter, giving no enforceable cause of action to the Respondent because he had contracted to act in an honorary capacity vide his consent note, Exhibit P.W. 4/B. The object in not making any provision either in the Act or the regulations for the salary of the Chairman appears to be that the Chairman is to be an eminent educationist and his term is only for three years in the first instance and there may be persons who may like to work in an honorary capacity, like the Respondent, and there may be persons who may not be agreable even on payment of a fat salary. Therefore, it has been left, I think, to the discretion of the Government to fix the remuneration of the Chairman. Further, the contract entered into by the Respondent would also show that the office of the Chairman is not a salaried office. The appointment letter of Shri Tapinder Singh which has been placed on the record by the Petitioner also shows that this pay is personal and not attached to the office. If the pay is not attached to the office and is attached to the holder of the office then it does not amount to an office of profit. In the instant case Shri Kultar Chand Rana admittedly did not draw any salary on the basis of the contract but his successor was allowed a salary at Rs. 1800 by the notification, dated 28th September, 1972. This notification states the terms and conditions of nomination of Shri Tapinder Singh. It clearly goes to show that the pay is attached to the holder. The office is permanent and it does not fall in succession or by inheritance and the office is also independent of the holder but the fact remains that no profit is attached to the office and the salary is attached to the holder. Therefore, this resolution which has been made the basis for the challenge of election of Shri Kultar Chand Rana was not at all acted upon nor it was ''approved by the Government.

The learned Counsel for the Petitioner has also attached the validity of the notification, Exhibit P.W. 1/A. According to him, the first portion of the notification whereby the appointment of the Respondent has been made by the Government is valid but the latter portion whereby the appointment has been made honorary is void and that the void part can be severed from the valid part and he has relied on a number of authorities on the point as to what is void and voidable and also on the doctrine of severability. But suffice it to say that all these authorities arc besides the point and the application of doctrine of severability is not at all attracted. The notification nominating Shri Kultar Chand Rana has been made by the competent authority u/s 18 of the 1968 Act. He was appointed in an honorary capacity and that portion of the notification is also quite valid in as much as there is no provision in the Act or the regulations about the remuneration of the Chairman, who is nominated by the State Government and, therefore, it is the State Government who is competent to fix his salary at its discretion according to the qualifications and the terms and conditions settled with the incumbent at a particular time keeping in view his academic qualifications. The Respondent consented to work in an honorary capacity and the Government accepted the same. Therefore, there is nothing wrong when it is not against the statutory provisions. In view of this I hold that no salary is attached to the office nor Shri Kultar Chand Rana drew any salary nor was he capable of receiving in terms of the contract.

It is a common ground that the Chairman is nominated by the Government and u/s 11 of the 1968 Act the Government exercises a certain amount of control over the functions of Board for which the Chairman is directly responsible, therefore, in a way the Chairman is under the control of the Government. 27. The next submission made by the learned Counsel for the Petitioner is that the T.A. and D.A. is allowed to the Respondent vide notification No. 1-229/70-Sectt. EDO-I, dated 6th March, 1971 and that he was thereby disqualified. But this submission has got no force. According to Section 2(a) of the 1971 Act "compensatory allowance" means such sum of money as the Government may determine as being payable to the holder of an office by way of travelling allowance, daily allowance, sitting allowance, conveyance allowance or house rent allowance for the purpose of enabling him to recoup any expenditure incurred by him in performing the functions of that office. Section 3 of the aforesaid Act deals with the prevention of disqualifications for membership of the Legislative Assembly of Himachal Pradesh and it says that, "a person shall not be disqualified for being chosen as, and for being, a member of the Himachal Pradesh Legislative Assembly by reason only of the fact that he holds any of the following offices of profit under the Government of India or the Government of any State:

(a) to (1) XXXX

(m) the office of Chairman or Vicc-Ghairman, director, or member of any statutory or nonstatutory body other than any such body as is referred to in Clause (1) if the holder of such office is not entitled to any remuneration other than compensatory allowance.

Thus in view of Clause (m) of Section 3, the grant of T.A. and D.A. to the holder of the office of the Chairman is protected and the holder of the office getting any such payments which fall within the definition of compensatory allowance will not incur disqualification for election to the Parliament or the State Legislature.

The learned Counsel has further contended that the Respondent has been allowed an official car, a house, a driver and a peon and this would also make the office an office of profit. But here it would be pertinent to say that the Petitioner did not take a specific plea with regard to these concessions and amenities which he sought to elicit out in the examination of Miss Bhagat (P.W. 1). Moreover, the grant of a car and a house will not amount to any office of profit as the Chairman is entitled to conveyance and house rent allowance in lieu thereof. Therefore, this would also be covered by the definition of compensatory allowance and he is protected u/s 3(m) of the 1971 Act. As for the amenities of a chauffeur and a peon it is quite immaterial inasmuch as the chauffeur is a necessary appendage when the car has been placed at the disposal of the Chairman and the peon is also necessary to maintain the house. Therefore, these concessions in the first instance which have not been taken in the pleadings and secondly, which have been only tried to be proved in evidence without any pleadings do not amount to any office of profit, and if they do, they are covered u/s 3(m) read with Section 2(a) of the 1971 Act.

It had further been contended that the Respondent had not gone into the witness-box to rebut the case of the Petitioner with regard to the T.A. and D.A. and other amenities and that adverse inference must be drawn against him u/s 114(g) of the Indian Evidence Act. The Respondent did not deny that he drew T.A. and D.A. and used official car and residence, therefore, there was no point of any rebuttal. Hence this argument also fails.

To sum up, the Board is a corporate body, the office of the Chairman is a continuing office and there is no salary fixed to the office. Shri Kultar Chand Rana was nominated by the Government in an honorary capacity and the former had also consented to work as such. The Government being the appointing authority was the removing authority in terms of Section 15 of the Himachal Pradesh General Clauses Act. The control of the Government was also there. Shri Kultar Chand Rana held the office, which was an office under the Government of Himachal Pradesh but the office was not an office of profit. The T.A. and D.A. paid to the Respondent is covered by the definition of the compensatory allowance for the purpose of the 1971 Act and as such the holder drawing any such compensatory allowance is protected from incurring disqualification u/s 3(m) of the aforesaid Act. Shri Tapinder Singh, the successor of Shri Kultar Chand Rana, was nominated by the Government and while fixing his terms and conditions of service his pay was fixed at Rs. 1800 and this would further show that there was no pay attached to the office but to the holder; in order to incur disqualification it must be attached to the office which must be independent of the holder of the office. The resolution passed by the Board was without authority, it was never acted upon and it is a dead letter. In view of the contract Shri Kultar Chand Rana could not enforce his claim against the Board or the State for any salary. In view of this the issues are decided against the Petitioner.

The result, therefore, is that the petition fails and is hereby dismissed with costs, assessed at Rs. 2,000 to be paid to Shri Kultar Chand.