Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Sanjay Misra) Appearance:
For the Petitioner/s : Mr. Arun Sharma, Mr. N.K. Pandey, Mr. Jai Singh, Ms. Sudha Pandey, Mr. Ramesh Rai, Mr. Akhilesh K. Dwivedi, Mr. Rakesh Prasad, Mr. Dinesh Prasad, Mr. Ghanshyam Singh, Mr. Ravindra Prakash Srivastava, Mr. Ram Singh, Mr. J.P. Mishra.
Historically, Part IX of the Constitution of India was inserted by the Constitution (Seventy-third Amendment) Act, 1992 with effect from 24th April, 1993 regarding the Panchayats. In this part of the Constitution, two Articles, being Articles 243-F and 243-K, are very important for the purpose and are reproduced hereunder:
"243-F. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat--
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."
"243-K. Elections to the Panchayats.--(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
According to Mr. Arun Sharma and Mr. N.K. Pandey, learned Counsel appearing for the petitioner/s on different occasions, Shiksha Mitra and/or Aanganbari workers are not holding the civil posts. They are not getting any salary from the Government but only honorariums. They are not Government servants and no service rule of the State Government is applicable to them. Therefore, they are not holding any office of profit to attract any bar regarding contesting Panchayat elections.
The petitioners further contended that the Election Commission can not debar them because as per the Constitutional mandate given under Article 324 of the Constitution, the Election Commission has only power of superintendence, not to debar any body from being a candidate. Article 328 of the Constitution says that subject to the provisions of the Constitution and insofar as the provision in that behalf is not made by the Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses. They themselves have contended that under Section 12-BB of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter in short called as the 'Panchayat Raj Act') the power of superintendence is vested in the State Election Commission.
We find from Article 191 of the Constitution, which relates to election of the State Legislature under Chapter III of Part VI of the Constitution, who will be disqualified for becoming a Member of the Legislative Assembly or Legislative Council of the State. Article 191 (1) (a) deals with the 'office of profit', as under:
"191. Disqualifications for membership.--(1) A person shall be disqualified for being chosen as, and 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;
*** *** *** *** *** *** *** *** ***."
The Panchayat Raj Act has also made the similar provision under Section 5-A (c) of Chapter II-A, as under:
"5-A. Disqualification for membership.-- A person shall be disqualified for being chosen as, and for being, the Pradhan or a member of a Gram Panchayat, if he--
(a) *** *** ***
(b) *** *** ***
(c) holds any office of profit under a State Government or the Central Government or a local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government;
*** *** *** *** *** *** *** *** ***"
With the supportive argument of Mr. Satish Chaturvedi, learned Additional Advocate General of the State, Mr. P.K. Mishra, learned Counsel appearing for the Election Commission, has contended that a person is disqualified from becoming member of the respective Panchayat or Panchayats as per restrictions imposed under the Uttar Pradesh Local Bodies (Prevention of Disqualification) Act, 1975 (hereinafter in short called as the ''Act, 1975'). It provides that it is an office or place of profit under or in the gift or disposal of Government which disqualifies or be deemed ever to have disqualified the holder thereof for being chosen as, or for being, member of any local body. In the year 2006, the Uttar Pradesh State Legislature (Prevention of Disqualification) Act, 1971 (hereinafter in short called as the ''Act, 1971') was amended by incorporating the words "honorarium, daily allowance" in the place and instead of the words "daily allowance" alone under Section 2 thereof. Under Section 3 of the Uttar Pradesh State Legislature (Prevention of Disqualification) (Amendment) Act, 2006 (hereinafter in short called as the ''Act, 2006'), several exceptions are inserted. Such exceptional clause does not include Shiksha Mitra and/or Aanganbari workers.
According to us, the stand taken by Mr. Mishra has substance. The State Election Commission is vested with the vast power to conduct the election. It is no body's case that the State Election Commission has no power of superintendence. The word "superintendence" includes all the powers exercisable by the Election Commission to hold the elections properly. Therefore, it has to proceed in accordance with law for the purpose of holding the election independently. Power of superintendence presupposes that Election Commission will intimate the people who will be allowed to cast the vote or contest the election in accordance with law and who are not. The letter regarding Shiksha Mitra and/or Aanganbari workers etc., as communicated, does not speak about independent decision of the Election Commission, though such power is vested with it.
Whether the State Election Commission is empowered or not, this point is well settled on the basis of the Constitution Bench judgement of the Supreme Court reported in AIR 1952 SC 64 (N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and others), wherein it has been held that the word "election" can be and has been appropriately used with reference to the entire process, which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. Paragraph-10 of such judgement speaks as follows:
"(10). I think that a brief examination of the scheme of Part XV of the Constitution and the Representation of the People Act, 1951 will show that the construction I have suggested is the correct one. Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, Art. 324 with the second and Art. 329 with the third requisite. The other two articles in Part XV, viz., Arts. 325 and 326 deal with two matters of principle to which the Constitution framers have attached much importance. They are: (1) prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult suffrage. Part XV of the Constitution is really a code in itself providing the entire groundwork for enacting appropriate laws and setting up suitable machinery for the conduct of elections."
In AIR 1972 SC 187 (Sadiq Ali and another Vs. The Election Commission of India, New Delhi and others) it has been held by a three Judges' Bench of the Supreme Court that the Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State shall be vested in the Commission. There is also no substance in the contention that as power to make provisions in respect to elections has been given to the Parliament by Article 327 of the Constitution; the power can not be further delegated to the Commission. The opening words of the Article 327 are "subject to the provisions of this Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, can not be said that when the Commission issues direction, it does so not on its own behalf but as the delegate of some other authority. It may also be mentioned in this context that when the Central Government issued Conduct of Elections Rules, 1961 in exercise of its powers under Section 169 of the Representation of People Act, 1951, it did so after consultation with the Commission.
Again in AIR 1978 SC 851 (Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others) another Constitution Bench of the Supreme Court has held that the Article 324 (1) vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of the President and Vice President held under the Constitution. Article 324 (1) is thus couched in wide terms. Power in any democratic set up, as is the pattern of our polity, is to be exercised in accordance with law. That is why Articles 327 and 328 provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State Legislatures respectively. When appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State Legislatures, the Commission has to act in conformity with those laws and the other legal provisions made thereunder. Even so, both Articles 327 and 328 are "subject to the provisions" of the Constitution which include Articles 324 and 329. Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324 (1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. In 1984 (2) SCC 656 (A.C. Jose Vs. Sivan Pillai and others) also it has been held by a three Judges' Bench of the Supreme Court that when there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections. In other words, the powers of the Commission are meant to supplement rather than supplant the law in the matter of superintendence, direction and control as provided by Article 324. It is further clarified therein that where the Act and the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election. In 2002 (8) SCC 237 [In the matter of Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter)] it has been held by the Supreme Court that the Parliament is empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature but without affecting the plenary powers of the Election Commission. In 2006 (8) SCC 352 : JT 2006 (9) SC 320 (Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad and others) another Constitution Bench of the Supreme Court has further held about the independency and nature of work of the State Election Commission as the Election Commission of India giving widest terms. In paragraphs- 23 to 28 the Supreme Court has held as under:
"23. In terms of Article 243-K and Article 243-ZA (1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision.
24. The words, "superintendence, direction and control" as well as "conduct of elections" have been held in the "broadest of terms" by this Court in several decisions including Special Reference No. 1 of 2002, In re, [2002 (8) SCC 237] and Mohinder Singh Gill Vs. Chief Election Commr. [1978 (1) SCC 405] and the question is whether this is equally relevant in respect of the powers of the State Election Commission as well.
25. From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions.
26. The State Election Commissions are to function independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the panchayats and municipalities.
27. Article 243-K(3) also recognises the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission "such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1)". It is accordingly to be noted that in the matter of the conduct of elections, the Government concerned shall have to render full assistance and cooperation to the State Election Commission and respect the latter's assessment of the needs in order to ensure that free and fair elections are conducted.
28. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the State Government concerned in discharging its constitutional obligation of holding the elections to the panchayats or municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the State Government concerned to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfil the constitutional mandate."
If we go by the conjoint reading of the judgements referred above, it will be construed that "election" means the entire process of election, which will be conducted by the Election Commission as an independent authority in accordance with the law. The Commission being creature of the Constitution has plenary and residuary powers to overcome the respective situations. Such nature of work is to supplement the law but not to supplant. Superintendence, direction, control and conduct of elections have been held by the Court on numerous occasions in the broadest terms. It has been held by the Supreme Court that it is duty of the State Election Commission to hold the elections of the panchayats and municipalities within time. Against this background, we hold and say that having such widest power with the Commission, the communication, which is impugned hereunder, is incidental in nature, which can not be said to be beyond the competence of the State Election Commission.
In respect of the question of "office of profit" a Constitution Bench of the Supreme Court in the judgement reported in AIR 1958 SC 52 (Abdul Shakur Vs. Rikhab Chand and another) held that the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. In AIR 1964 SC 254 (Guru Gobinda Basu Vs. Sankari Prasad Ghosal and others) again a Constitution Bench of the Supreme Court held that the source from which the remuneration is paid is not from public revenue is a neutral factor--not decisive of the question. Whether stress will be laid on one factor or the other will depend on the facts of each case. At the time of passing the order the Constitution Bench considered the arguments of five tests, namely, (i) whether the Government makes the appointment to the office; (ii) whether Government has the right to remove or dismiss the holder of office; (iii) whether the Government pays the remuneration; (iv) what are the functions which the holder of the office performs and does he perform them for the Government; and (v) does Government exercise any control over the performance of those functions. In 1971 (3) SCC 870 (Shivamurthy Swami Inamdar Vs. Veerabhadrappa Veerappa) it has been held by the Supreme Court that the word "profit" connotes the idea of pecuniary gain. In AIR 1984 SC 385 (Biharilal Dobray Vs. Roshan Lal Dobray) the Supreme Court held that the true test of determination of the 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 aspects, namely, whether the body is discharging any important governmental function or just some function which is merely optional from the point of view of the Government. A three Judges' Bench of the Supreme Court in the judgement reported in JT 2001 (5) SC 504 (Shibu Soren Vs. Dayanand Sahay & ors.) has held that the expression "office of profit" has not been defined either in the Constitution or in the Representation of People Act. In common parlance, the expression ''profit' connotes an idea of some pecuniary gain. If there is really some gain, its label - ''honorarium' - ''remuneration' - ''salary' is not material- it is the substance and not the form which matters and even the quantum or amount of "pecuniary gain" is not relevant- what needs to be found but is whether the amount of money receivable by the concerned person in connection with the office he holds, gives to him some "pecuniary gain", other than as ''compensation' to defray his out of pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him. With a view to determine whether the concerned office is an "office of profit", the Court must, however, take a realistic view. In AIR 2002 SC 742 (M.V. Rajashekaran and others Vs. Vatal Nagaraj and others) it has been held by the Supreme Court that the word "office" is of indefinite content. The Court, therefore, is required to find out as to whether there exists any nexus between the duties discharged by the candidate and the Government, and that a conflict is bound to arise between impartial discharge of such duties in course of his employment with the duties which he is required to discharge as a member of legislature (as in that case), on being elected. While examining the aforesaid question the Court has to look the substance and not the form and further it is not necessary that all factors and tests laid down in various cases must be conjointly present so as to constitute the holding of an office of profit under the Government. The expression "office of profit" is that it should be interpreted with the flavour of reality bearing in mind the object for enactment of Article 102 (1)(a) of the Constitution, namely, to eliminate or in any event to reduce the risk of conflict between the duty and interest amongst members of the legislature (as in that case) by ensuring that the legislature does not have persons who receive benefits from the executive and may thus be amenable to its influence. In 2006 (5) SCC 266 (Jaya Bachchan Vs. Union of India and others) a three Judges' Bench of the Supreme Court has held that it is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is "receivable" in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. It has been further held therein that in fact, mere use of the word "honorarium" can not take the payment out of the purview of profit, if there is pecuniary gain for the recipient.
The date of delivery of judgement of Jaya Bachchan (supra) is very important. Such judgement was delivered on 08th May, 2006 just after the amendment came into force by the Act, 2006 on 20th March, 2006, which includes "honorarium" in Section 2 of the Act, 1971.
Mr. Arun Sharma, learned Counsel appearing for the petitioner in the main writ petition, in his first phase of argument before exchange of affidavits, relied upon two important judgements, one of the Supreme Court reported in 2007 (11) SCC 681 (State of Karnataka and others Vs. Ameerbi and others) and another of the Full Bench of this Court reported in 2010 (2) UPLBEC 1457 [Sheela Devi (Smt.) and another Vs. State of U.P. And others) to establish that the post of Aanganbari workers is not a civil post, therefore, they can not come under the trappings of definition of such nature from contesting the elections. According to us, there is a fallacy in understanding the ratio of the judgements. Fallacy is that in both the cases it was held that the post of Aanganbari workers is not the civil post, to which there is no doubt or dispute. But definition of "office of profit" is not restricted with the civil post. The Supreme Court judgement in its paragraph-38 of Ameerbi (supra) has clarified the position:
"38. It is also not a case where the doctrine of parity of employment can be invoked. It is true that nomenclature of a term of payment is not decisive but the substance is as was held in Jaya Bachchan v. Union of India [2006 (5) SCC 266] but the question has to be determined having regard to the issue involved. We are concerned herein with only one question viz. whether the respondents are holders of any civil post. We are, having regard to the materials on record, of the view that they are not."
The Supreme Court has already held in Jaya Bachchan (supra) that term of payment is not decisive but the substance. Therefore, widest meaning speaks that either salary or perquisites or daily allowance or remuneration or gift or honorarium, anything of such nature is required to be construed as "office of profit". In Jaya Bachchan (supra) the Supreme Court held that the receivable pecuniary gain in regard to the office means "office of profit".
It has been contended by the petitioner in paragraph-7 of the leading writ petition that the Government order, which has been communicated by the State Election Commission, is illegal and against the law because the lecturers of any college, who are getting salary of Rs.30,000/- per month approximately, may fight the election while Aanganbari workers, Shiksha Mitra, etc. have been restrained by the aforesaid Government order. It has been further submitted particularly in respect of Aanganbari workers that they are getting Rs.1500/- per month from the Central Government and Rs. 200/- per month from the State Government. Thus, the petitioner/s wanted to submit that action on the part of the respondent is in violation of Article 14 of the Constitution. In support of such submission, reliance has been placed on the judgements of Single Judge of this Court reported in 1986 UPLBEC 1335 (Dr. Smt. Rajendra Kumari Verma Vs. Sri Vijay Singh Rana and others), 1986 UPLBEC 1307 (B.C. Saxena Vs. Dr. Hari Krishna Awasthi and others) and 1986 All. L.J. 507 (Sarnam Singh Vs. Smt. Puspa Devi and others). But neither the same have any binding effect nor we are persuaded by the ratio of those judgements. According to us, amount of money received or received negligibly is not relevant but whether pecuniary gain is receivable in regard to the office and not is relevant to consider the case.
Though we are incidentally called upon to determine such issue as to whether such action is in violation of Article 14 of the Constitution or is there any intelligible differentia between the two, yet it is duty of the Court to clarify the position.
According to us, though "office of profit" is one of the criteria but if we go to the deep of the matter, we shall be able to find that the Court has always discouraged such a situation where "office of profit" directly or indirectly influences the election process. In M.V. Rajashekaran (supra) it has been held by the Supreme Court that the Court is required to find out whether there exists any nexus between the duties discharged by the candidate and the Government and that a conflict is bound to arise between impartial discharge of such duties in course of his employment with the duties which he is required to discharge as a member of legislature (as in that case), on being elected. It was further held that while examining the aforesaid question the Court has to look the substance and not the form. The expression "office of profit" should be interpreted with the flavour of reality to eliminate or reduce the risk of conflict between the duty and interest amongst the members by ensuring that the legislature does not have persons who receive benefits from the executive and may thus be amenable to its influence. Therefore, the questions whether the lecturers are getting more emoluments from the college and whether they are eligible to contest the elections or not, though debatable upon being called at an appropriate time but we can not shut our eyes with regard to duties of Shiksha Mitra and/or Aanganbari workers, who are appointed on the recommendations of Panchayats and discharging their functions as executives of such Panchayats and want to be elected simultaneously holding such "office of profit". In 2001 (2) SCC 19 (Pradyut Bordoloi Vs. Swapan Roy), while considering the facts therein, the Supreme Court held that the person working as a clerk in Coal India Limited does not and can not bring any influence or pressure on him in his independent functioning as Member of Legislative Assembly, meaning thereby the influence or pressure in between the "office of profit" and the post, for which the election is going to be held, is material and there the intelligible differentia arises. The intelligible differentia is not with regard to quantum of pecuniary gain and working in a particular post but whether one is working in such a post, which has direct nexus or connection and can influence or pressurize the electors.
One basic question was asked by one of us (Sanjay Misra, J.) to the petitioner/s, whether Shiksha Mitra and/or Aanganbari workers can be able to contest the election and simultaneously continue with the office or not, to which no answer was received by the Court from any of the petitioners. As we understood, as soon as they want to file the nomination for the election of the Panchayat, they have to surrender their post, which they are holding in the Panchayat itself and if it is so, the plea which has been taken before this Court by the petitioner/s is illusory in nature.
The right to elect and right to be elected are statutory rights. Statutory creations they are and, therefore, subject to statutory limitations as held by the Supreme Court in AIR 1982 SC 983 (Jyoti Basu and others Vs. Debi Ghosal and others). Therefore, when the statute prohibits that no person, who is receiving honorarium, can contest the election and no exception has been shown under the Act to contest the election even having office of profit, we are of the firm opinion that Shiksha Mitra and/or Aanganbari workers having attached to the office of Panchayat on payment of honorarium can not be eligible to contest the election.
Hence, in totality of the matter we are of the view that the writ petitions can not succeed and accordingly, the same are dismissed, however, without imposing any cost.
(Justice Amitava Lala) I agree.
(Justice Sanjay Misra) Dated: 28th October, 2010.
SKT/-