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Office of profit and loss of membership-II

While the matter was pending before the Supreme Court, the Governor promulgated Ordinance no. 3 of 1964 and removed the alleged disqualification retrospectively.

india Updated: Apr 24, 2006 00:12 IST
BC Shukla

While the matter was pending before the Supreme Court, the Governor promulgated Ordinance no. 3 of 1964 and removed the alleged disqualification retrospectively.

In another case, the Government of Himachal Pradesh appointed KC Rana as chairman of the Board of School Education. While serving as chairman, Sri Rana was elected as a member of the state Legislature. The court noticed that the order of appointment itself disclosed that Sri Rana would hold the post in an honourary capacity.

 It was held that in the absence of any profit accruing to the respondent, he can not be held to hold any office of profit – 1975 (i) SCC 264.

It appears that Jaya Bachchan episode has created panic amongst politicians. With the resignation of several senior parliamentarians the situation has taken a serious turn. The office of the Election Commission is flooded with identical complaints.

The archaic rule contained in Article 102 and 191 is manifestly vague and is capable of being misused, to the detriment of democracy. On the one hand, the law provides for unseating the members and at the same time, it gives lever to the legislatures so that the legislators may escape the penalty. The line of distinction between qualification and disqualification is very thin, and even the courts and the constitutional authorities have differed in interpreting the weasel words.

Teachers of the Basic schools maintained by the Basic Education Board have been held to be the holders of the office of profit, but their counterparts serving in Inter colleges, Degree colleges and Universities are free to contest elections, although their salaries are totally funded by the state. Under the circumstances the confusing concept of the office of profit deserves to be defined with greater clarity, certainty and rationality.

No doubt the task is going to be Herculean, yet no crisis is so acute which human ingenuity cannot resolve. However, the famous dictum of Burke should not be lost sight of- ‘ If we cannot have reform without justice, we should not have any reform.’

Another bone of contention is regarding the question whether the membership of any person can be terminated from a back date? If so, whether such member can be asked to refund the salary, allowances and other perquisites which he had received or enjoyed as such member?

In the case of a govt. servant, it has been held that his services cannot be terminated from a back-date. This is the general rule which admits of some exceptions as well.

Thus, where the employee was appointed without necessary qualifications prescribed for the post or where the appointee was a minor, the contract of service culminating into the appointment is void and the same can be terminated with retrospective effect.

However, there is no law under which a person, whose membership has been terminated, can be asked to refund the amount of salary and allowances which he has received as such member during the period of retrospectivity.

If a person was legitimately entitled to some pecuniary advantage on the date of its receipt, he cannot be compelled subsequently to stew in juice which was not of his own making. In 2003 (3) UPLBEC 2279, it was held by the High Court that if an employee was allowed to serve for a few years, after the due date of his retirement because of some mistake in his service records, then it would be neither just nor proper to recover the excess salary from him.

But the post-retiral benefit can be granted to him only on the basis his real date of birth. The same equitable principle should be applied to the case of Jaya Bachchan also.

 

 

                Concluded
(The writer is former secretary, UP Assembly)