Office of profit and loss of membership
WE LEARN from history that we do not learn from history. Thus, Jaya Bachchan became the second member of the Rajya Sabha who was unseated for holding an office of profit under the Government of UP, the first being R. Mohanarangan, an ADMK member who was disqualified for holding the office of special representative of TN Government when MG Ramchandran was the Chief Minister. The only distinction was that the disqualification of Mohanarangan was not given a retrospective effect.india Updated: Apr 10, 2006 00:56 IST
WE LEARN from history that we do not learn from history. Thus, Jaya Bachchan became the second member of the Rajya Sabha who was unseated for holding an office of profit under the Government of UP, the first being R. Mohanarangan, an ADMK member who was disqualified for holding the office of special representative of TN Government when MG Ramchandran was the Chief Minister. The only distinction was that the disqualification of Mohanarangan was not given a retrospective effect.
Article 102 (i) (a) of the Constitution provides that a person shall be disqualified for being chosen as, and for being a member of either House of Parliament, if he holds any office of profit under the Government of India or the Government of any state, other than an office declared by Parliament by law, not to disqualify its holder. Somewhat similar provision exists in Article 191 (i)(a) in relation to the members of a state Legislature.
For inviting the mischief of the above Articles, the following conditions must be proved:
(a)There must be an office, which must exist independently of its holder.
(b)Such office must be an office of profit (an office to which any pay, salary, emoluments or allowance is attached).
(c)Such office must be held under the Government (whether Central or state).
(d)Such office must not have been declared by law not to disqualify its holder.
For holding the office of profit under the Government, the person concerned need not be in the service of the Govt. and there need not be any relationship of master and servant. The expression ‘office of profit’, though indeterminative, is an expression of wider import. The word ‘profit’ conveys the idea of some pecuniary gain. If there is a gain, then its quantum or amount was not material.
The term ‘office of profit’ has been the subject-matter of interpretation in a number of judicial pronouncements, and a cursory reference to some of them may throw adequate light on the controversy involved. In an Andhra Case (1992), the appellant was a teacher in a primary school run by the Tribal Development Agency which was a registered society.
He successfully contested the Assembly election but his election was set aside on the ground that he was appointed by the Collector. The Supreme Court held that the appointing authority of the teacher was the Project Officer, although the duties of the said office were being discharged by the Collector and as such, the appellant was not holding any office under the Government. But in the case of Behari Lal Dohrey, an assistant teacher in a basic school run by the UP Board of Basic Education, his election was set aside on the ground that the Board of Basic Education, though an autonomous body, was nothing but a department of the State Government vide AIR 1984 SC. 385.
In the case of statutory corporations, if the Auditor is appointed by the Government and he gets his remuneration from such Government, then such Auditor shall be deemed to hold an office of profit under the Government although in the performance of his duties, he is supposed to be guided by the Comptroller and Auditor General of India who was himself the holder of an office of profit-vide AIR 1958 SC 52. In a Punjab case, one Darbara Singh, Chairman of Panchayat Samiti, was elected as MLA from Jullundhar. His election was challenged on the ground that as chairman of Panchayat Samiti, he was the recipient of salary and allowances from the state.
During the pendency of the case, the Panjab Government promulgated Ordinance No. 10 of 1967 declaring that the chairman of Panchayat Samiti shall not be deemed to have been disqualified and consequently, the petition was dismissed- AIR 1969 SC 262.
The Iron & Steel Factory of Mysore was owned by the Govt. of Mysore. In 1962 a private limited company was incorporated and it took over the factory from the state government. The respondent was serving in the factory from before 1962, and he continued to serve it even after its takeover.
Subsequently he was elected to the Mysore Assembly. It was argued before the Apex court that all the shares of the new company were owned by the state government which had the power to appoint its directors and therefore, the respondent was disqualified from being elected.
This argument was rejected and it was held that the new company was an entity separate and distinct from the Government and the company’s employees can not be said to be government servants—vide AIR 1969 SC 744. Some what similar views were expressed in Dargah Khwaja Saheb school of Ajmer. The school was administered by a committee appointed by the Govt. of India under an Act of 1955. The Manager of the school was elected to the Rajya Sabha. It was held that though the Managing committee was appointed by the Government, the Manager was never appointed by the Government, and his salary was also not paid from the state exchequer. Hence, the member was not disqualified.
In a Rajasthan case of 1970, Kanta Kathuria was appointed as a special counsel to assist the Government pleader in an arbitration dispute. During the pendency of such engagement, Kathuria was elected as an MLA. The question whether the lady advocate was holding an office of profit was referred to a full bench of five Judges, and by a majority, the High Court decided the dispute in favour of the lady advocate.
To be continued
(The writer is ex-Secy,