REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
[Arising out of SLP [C] No.7319 of 2009]
Anokh Singh ...Appellant
VERSUS
Punjab State Election Commission ...Respondent
WITH
CIVIL APPEAL NO. OF 2010
[Arising out of SLP [C] No.10948 of 2009]
Harchand Singh ...Appellant
VERSUS
State of Punjab and Ors. ...Respondents
JUDGMENT
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These appeals arise out of a common judgment of
the Punjab and Haryana High Court dated 5.12.2008 in
Writ Petition Nos. 7727 of 2008, 8264 of 2008, 8270 of
2008, 8279 of 2008, 8310 of 2008 and 11724 of 2008.
1
3. The primary issues raised in all these writ petitions
were:-
i) Whether the office of a Lambardar would be an
`office of profit’ so as to disqualify the
incumbent of such an office to seek election as
Panch of the Gram Panchayat.
ii) Whether the Anganwari workers employed in
the various social-welfare schemes in the State
of Punjab held an `office of profit’ and
consequently disqualified for seeking election
to the Gram Panchayats.
iii) Whether the State Election Commissioner,
Punjab was justified in issuing the clarificatory
Memorandum, Memo No. SEC-2008/4365
dated 30.4.2008 on the subject “General
Elections to Panchayat Samitis and Zila
Parishads – 2008 Clarification regarding
contesting of election by Lambardars and
Anganwari workers.
2
4. Civil Writ Petition No. 7727 of 2008 was filed by a
Lambardar, who was seeking election to the Gram Sabha,
Village Ladpur, Tehsil Amloh, Distt. Fatehgarh Saheb.
He had come to know from a news item in the Daily `Ajit’
dated 3.5.2008 that Lambardar and Anganwari workers
have been debarred from contesting election as Member
Panchayat. On enquiry, the appellant came to know that
a Circular Memo No. SEC-2008/4365 has been issued
conveyed to all the Deputy Commissioners-cum-District
Electoral Officers in the State that Lambardars and
Anganwari workers, who are ineligible to contest
elections as Member of Panchayat because they hold
`office of profit’. As a result of which, the appellant was
debarred from contesting the election as Member
Panchayat, which he intended to contest as he was
otherwise duly qualified to contest the same. The prayer
in the writ petition was for issuance of a writ in the
nature of certiorari quashing the impugned
memorandum by which Lambardars and Anganwari
3
workers have been debarred from contesting the
elections.
5. Similarly, the Civil Writ Petitions No. 8264 of 2008,
8270 of 2008, 8279 of 2008 and 8310 of 2008 were filed
by Anganwari workers claiming that they could not be
disqualified as they were not holding any `office of profit’.
Civil Writ Petition No. 11724 of 2008 sought a direction
to the respondents not to permit respondent No. 5, who
was an Anganwari worker to participate in the election of
Sarpanch of Gram Panchayat of Village Ghaloti.
6. The High Court upon detailed consideration of the
entire matter concluded that the office of Lambardars is
an `office of profit’ and, therefore, the Lambardar would
be disqualified from contesting the election. To this
extent, the impugned memorandum was held valid.
Consequently, Civil Writ Petition No. 7727 of 2008 was
dismissed.
4
7. With regard to the Anganwari workers, the High
Court held that the Anganwari workers did not hold any
civil post under the Government. It is also held that the
Anganwari workers do not hold an `office of profit’ under
the State Government. Consequently, Civil Writ Petition
Nos. 8264 of 2008, 8270 of 2008, 8279 of 2008 and
8310 of 2008 were allowed and the impugned
memorandum was quashed so far as it pertained to the
Anganwari workers.
8. In view of the decision rendered in the aforesaid writ
petitions, Civil Writ Petition No. 11724 of 2008 for
issuing direction not to permit the Anganwari worker,
respondent No. 5, to participate in the election of
Sarpanch of Gram Panchayat was dismissed.
9. In this appeal, we are only concerned with the issue
as to whether an incumbent Lambardar would hold an
`office of profit’ under the Government.
5
10. Although by a common order, the High Court has
decided the writ petitions in two parts. The first part
relates to the Lambardars in C.W.P. 7727 of 2008 and
connected matters. In these matters, the High Court
crystallized three issues for consideration. Firstly,
whether the disqualification prescribed under Section
208 of the Panchayati Raj Act or the disqualification
prescribed under Section 11 of the State Election
Commission Act is applicable in case of the petitioner.
Secondly, whether the petitioner, as a Lambardar, holds
an `office of profit’. Thirdly, whether in view of
clause (1) of Article 243F of the Constitution read with
Section 2(a) of the Punjab State Legislature (Prevention of
disqualifications) Act, 1952, the petitioner shall not be
deemed to be disqualified for being chosen as a member
of a Panchayat as the office of Lambardar is one of the
offices of profit, holding which does not attract
disqualification.
6
11. The second part relates to Anganwari Workers in
CWP No.11724 of 2008, CWP No. 8264 of 2008 and
connected matters. The issues highlighted in these
matters are :
Firstly whether the Anganwari workers were holding
`office of profit’. Secondly whether the State Election
Commission was justified in issuing circular dated
30.4.2008 clarifying that Anganwari workers are
disqualified to contest the election of Members of
Panchayats.
12. In the matters concerning Lambardars, the High
Court observes that in view of the judgment of this Court
in Som Lal Vs. Vijay Laxmi & Ors.1 the disqualifications
prescribed under Section 11 of the State Election
Commission Act would prevail. Under the Panchayati Raj
Act, by virtue of Section 208 a person would be
disqualified to contest the elections as a member of
Panchayat, if he is a whole-time salaried employee of the
1
[(2008) 11 SCC 413]
7
State Government. But under Clause 11(g) of
State Election Commission Act, a person is so
disqualified if he holds an `office of profit’ under the State
Government. However, the issue has been set at rest by
this Court in Som Lal’s case (supra), therefore, we need
not say more on this issue.
13. Now the next issue would be to see whether the
High Court was correct in concluding that the office of
Lambardar would be an `office of profit’ under the
Government, as the incumbent would be entitled to
receive an honorarium of Rs.900/- per month.
14. We have heard the learned counsel for the parties.
The learned counsel appearing for the appellant submits:
(i) An office of Lambardar is merely a heritage
office as his paramount duty was to collect
land revenue which has been abolished in the
state of Punjab.
8
(ii) A Lambardar is only being paid an honorarium
of Rs.900/- per month with no other
remuneration, emolument, perquisite or
facilities. The logic behind paying such
payment is that he does not have to spend
money out of his own pocket while discharging
his duties.
(iii) The Punjab State Legislature (Prevention of
Disqualification) Act, 1952, section 2 of the Act
enumerates that a person shall not be
disqualified for being chosen as and for being a
member of the Punjab State Legislature for
holding `office of profit’ under Government of
India or Govt. of State of Punjab and hence
memo dated issued by the respondent dated
30.4.2008 is void ab initio.
(iv) The respondent, i.e. Punjab State Election
Commission has no power and authority
under the Punjab State Election Commission
9
Act, 1994 to issue the memorandum in
question.
(v) The disqualification of the appellant from
contesting the election is clearly ultra vires of
the Constitution of India and also provisions of
Punjab State Election Commission Act, 1994.
15. On the other hand, the counsel for the respondent
submits:
(i) Exemption from being called an `office of profit’
granted to the office of the Lambardar under
the Punjab State Legislature (Prevention of
Disqualification ) Act, 1952 applies only in the
case of election to State Legislative Assembly
and not in case of election as Member of
Panchayat.
(ii) The Government exercises power of
appointment and removal over `office of profit’
10
for those who perform functions for the
government and receives remuneration in form
of honorarium, conditions laid down as
indicative of `office of profit’ in Maulana Abdul
Shakoor Vs. Rikhab Chand and Anr2 and
Shivamurthy Inamdar Vs. Agadi Sanganna
Andanappa3.
(iii) The word `profit’ connotes the idea of a
pecuniary gain and if the pecuniary gain is
received in connection with the office, it is an
`office of profit’ irrespective of whether the gain
is actually received or not.
(iv) The Amount of money received is not
important and neither is the label attached to
the pecuniary gain being made, as long as
money is received by virtue of holding the
office
2
[AIR 1958 SC 52]
3
[(1971) 3 SCC 870]
11
16. In our opinion, even this issue is no longer res
integra. In a recent judgment in the case of Mahavir
Singh Vs. Khiali Ram & Ors.4 this Court has held that :
“Although the post of Lambardar is governed
by the provisions of the Punjab Land Revenue
Act and the Rules framed thereunder, holder of
the said post is not a government servant. He
does not hold a civil post within the meaning
of Article 309 of the Constitution of India.”
17. Since the Lambardar is not holding any post under
the Government, no salary is payable to him. There is no
pay scale attached to the office of Lambardar. Therefore,
it cannot be said that he is in receipt of any
remuneration.
18. The duties to be performed by a Lambardar and the
remuneration, for holding the said office are tabulated in
Rules 20 and 21 of the Punjab Land Revenue Rules.
These rules are as under:
“20. In addition to the duties imposed upon
headman by law for any purpose, a headman
shall –
4
[(2009) 3 SCC 439]
12
(i) collect by due date all land-revenue and
all sums recoverable as land revenue
from the estate, or Sub-Division of an
estate in which he holds office, and pay
the same personally or by revenue money
order or by remittance of currency notes
through the post at the place and time
appointed in that behalf to the Revenue
Officer or assignee empowered by
Government to receive it.
Selected lambaradars, approved by the
Collector, may pay land revenue and all
sums recoverable as land revenue from
the estate or sub division of an estate in
which they hold office, by cheques on the
Imperial Bank of India, provided that
there is a branch of the Imperial Bank at
the headquarters of the district in which
the said estate is include;
(ii) collect the rents and other income of the
common land and account for them to
the persons entitled thereto;
(iii) acknowledge every payment received by
him in the books of the land owners and
tenants;
(iv) defray joint expenses of the estate and
render account thereof as may be duly
required of him;
(v) report to the tehsildar the death of any
assignee of land revenue or Government
pensioner residing in the estate, or the
marriage or re-marriage of a female
drawing a family pension and residing in
the estate, or the absence of any such
person for more than a year;
(vi) report to the tehsildar all encroachments
on roads including village roads or on
Government waste lands and injuries to
or appropriations of, nazual property
13
situated within the boundaries of the
estate;
(vii) report any injury to Government
buildings made over to his charge;
(viii) carry out to the best of his ability, any
orders that he may receive from the
Collector requiring him to furnish
information, or to assist in providing or
payment supplies or means of transport
for troops or for officers of Government on
duty;
(ix) assist in such manner as the Collector
may from time to time direct at all crop
inspections, recording or mutations
surveys preparation of record of rights, or
other revenue business carried on within
the limits of the estate;
(x) attend the summons of all authorities
having jurisdiction in the estate, assist all
officers of the Government in the
execution of their public duties, supply to
the best of his ability, any local
information which those officers may
require, and generally act for the land
owners, tenants and residents of the
estate or sub division of the estate in
which he holds office in their relations
with the Government;
(xi) report to the patwari any outbreak of
disease among animals;
(xiii) report to the patwari the deaths of any
right holders in their estates;
(xiii) report any breach or cut in a Government
irrigation canal or channel to the nearest
canal officer, (ziledar) or canal patwari;
(xiv) under the general or special directions of
the collector, to assist by the use of his
personal influence and otherwise all
officers of Government and other persons,
14
duly authorised by the Collector in the
collection and enrolment of recruits for
military service whether combatant or
non-combatant;
(xv) render all possible assistance to the
village postman while passing the night
in the village, in safeguarding the cash
and other valuables that he carries.”
Remuneration of the headman was as under :
“Rule 21 (i) The remuneration of a headman in
an estate or sub division of an estate, owned
chiefly or altogether by Government shall be
such a portion of the village officer’s cess or of
the income accruing to Government from the
estate as may be sanctioned by the Financial
Commissioner.
(ii) In other estates the remuneration of a
headman shall be the remunerations
appointed when the land revenue of the estate
was last assessed.
(iii) In any case not provided for by sub-section
(i) and (ii), a headman shall receive a portion of
the village cess equal to five per cent of the
land revenue for the time being assessed on
the estate or portion of the estate in which he
holds office whether the assessment is leviable
or not.
(iv) The Collector may at any time alter the
existing arrangements in an estate regarding
the collection of the land revenue by the
different headmen and the division of the
remuneration between them.”
15
19. Under the aforesaid rules, the Lambardar was
receiving a portion of the village officer’s cess or of the
income accruing to the Government from the estate
which was fixed by the Financial Commissioner. Under
Rule 21(iii), the Lambardar was entitled to a portion of
the village officer’s cess equal to ten percent of the land
revenue assessed on the estate or the portion of the
estate in which he holds office, whether the assessment
is levied or not. It is an undisputed fact that the Punjab
Government has abolished land revenue. Therefore,
Lambardar has no land revenue to collect. Thus the
Lambardar would not receive any remuneration as 10%
of the land revenue assessed.
20. Thereafter the aforesaid percentage of cess has been
replaced by an honorarium of Rs.500/- pm under a
circular dated 9.10.2006 issued by the Government of
Punjab, Department of Revenue and Rehabilitation to all
Deputy Commissioners in the State. Currently the
Lambardar receives Rs.900/- per month as honorarium.
16
This honorarium is merely compensatory to meet the out
of pocket expenses, incurred in the performance of his
duties.
21. The High Court has rejected the submission that
such an honorarium would not fall within the ambit of
the term `office of profit’. The High Court has concluded
that –
“In the instant case, the Lambardars are being
appointed by the official of the Government
and they can be removed by the official of the
Government. Their appointments are under
the statute and are in overall control of the
Government. They are also receiving
monthly honorarium which cannot be said
to be compensatory in nature [Emphasis
supplied]. The facts of this case are fully
covered by the aforesaid tests laid down for
finding out whether the office of profit is an
office under a Government.”
22. In our opinion, the High Court has erroneously
distinguished the observations of this Court in the case
of Shivamurthy Swami Inamdar Vs. Veerabhadrappa
Veerappa5. In the aforesaid case, this Court laid down
5
[1971 (3) SCC 870]
17
some of the tests that may be relevant to determine as to
whether a particular office can be said to be an `office of
profit’. These tests 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 exercise any
control over the performance of those
functions?”
All the five tests would be relevant to determine that
whether a particular office is an office under the
Government. For determining whether such an office is
also an `office of profit’, tests 3, 4, 5 assume importance.
It is, therefore, necessary to evaluate the nature and the
importance of the functions performed. It would be
essential to determine whether it would be necessary for
the person holding an office under the Government to
incur any expenditure in performance of the functions.
These matters would then have to be correlated to any
18
honorarium, allowance or stipend that may be attached
to the office. Without examining any of these issues, the
High Court concluded that the honorarium received by
the Lambardar is not compensatory in nature. We are
unable to endorse the approach adopted by the High
Court.
23. Bearing in mind these tests, we may now examine
whether the office of Lambardar is an `office of profit’.
It would be apparent from the facts that though the
Lambardar may not be holding a civil post, he would be
holding an office under the Government. The Lambardar
is not paid any salary but is entitled to receive an
honorarium of Rs.900/- per month. He receives no
salary, emoluments, perquisites or facilities. Is that
sufficient to conclude that he holds an `office of profit’?
This seems to be the conclusion reached by the State
Election Commissioner, whilst issuing the impugned
19
circular dated 30.4.2008. The High Court affirmed the
aforesaid conclusion.
24. The term `office of profit’ has not been defined in the
Constitution, Representations of Peoples Act, Punjab
State Election Commission Act or the Panchayati Raj Act.
It is one of those rare terms which is not even defined in
the General Clauses Act, 1897. It has, however, been
judicially considered in numerous judgments of this
Court. We may notice here some of the judgments.
25. In Gatti Ravanna, son of Gatti Subanna, Gubbi
Taluk, Mysore State Vs. G.S.Kaggeerappa, Merchant,
Gubbi6 considered whether a person holding the position
of the Chairman of Gubbi Taluk Development Committee,
could be said to be holding an `office of profit’ under the
Government. In that case, the Chairman was entitled to
a fee of Rs.6/- for each sitting of the aforesaid
Committee. It was clearly held by this Court that a fee of
6
(AIR 1954 SC 653)
20
Rs.6/- which the Chairman was entitled to draw for each
sitting of the Committee was neither meant to be
payment by way of remuneration nor it could amount to
profit; and the fee was paid to the Chairman to enable
him to meet “out of pocket expenses, which he has to
incur for attending the meetings of the Committee.” It
was held as under:-
“The plain meaning of the expression seems to
be that an office must be held under
Government to which any pay, salary,
emoluments or allowance is attached. The
word “profit” connotes the idea of pecuniary
gain. If there is really a gain, its quantum or
amount would not be material; but the amount
of money receivable by a person in connection
with the office he holds may be material in
deciding whether the office really carries any
profit.
From the facts stated above, we think it can
reasonably be inferred that the fee of Rs 6
which the non-official Chairman is entitled to
draw for each sitting of the committee, he
attends, is not meant to be a payment by way
of remuneration or profit, but it is given to him
as a consolidated fee for the out-of-pocket
expenses which he has to incur for attending
the meetings of the committee. We do not
think that it was the intention of the
Government which created these Taluk
Development Committees which were to be
manned exclusively by non-officials, that the
21
office of the Chairman or of the members
should carry any profit or remuneration.”
26. The High Court gives no reason for concluding that
the honorarium received by a Lambardar is not
compensatory in nature. The High Court erred in not
analyzing the real and substantive nature of the
honorarium. The High Court failed to take notice of the
fact that the respondents had placed no material on the
record to establish that the honorarium of Rs.900/-
would result in a net gain to the Lambardar. In other
words, the out of pocket expenses for attending to the
duties of a Lambardar would be less than Rs.900/- per
month. This court in S.Umrao Singh Vs. Darbara Singh
& Ors.7 has clearly held :-
“5. The payment to a Chairman, Panchayat
Samiti, under Rule 3 is described in the rule
as a monthly consolidated allowance in lieu of
all other allowances for performing all official
duties and journeys concerning the Panchayat
Samiti within the district, including attending
of meetings, supervision of plans, projects,
schemes and other works, and also for the
discharge of all lawful obligations and
7
[1969 (1) SCR 421]22
implementation of Government directives. This
provision in very clear language shows that the
allowance paid is not salary, remuneration or
honorarium. It is clearly an allowance paid for
the purpose of ensuring that the Chairman of
a Panchayat Samiti does not have to spend
money out of his own pocket for the discharge
of his duties. It envisages that, in performing
the duties, the Chairman must undertake
journeys within the district and must be
incurring expenditure when attending
meetings, supervising plans, projects, schemes
and other works and also in connection with
the discharge of other lawful obligations and
implementation of Government directives. No
evidence has been led on behalf of the
appellant to show that a Chairman of a
Panchayat Samiti does not have to perform
such journeys in the course of his official
duties and to incur expenditure in that
connection. The State Government, which was
the competent authority, fixed the allowance
for a Chairman of a Panchayat Samiti at Rs
100 per month, obviously because it was of the
opinion that this sum will be required on an
average every month to meet the expenses
which the Chairman will have to incur in this
connection. In these circumstances, the
burden lay on the appellant to give evidence on
the basis of which a definite finding could have
been arrived at that the amount of Rs.100 per
month was excessive and was not required to
compensate the Chairman for the expenses to
be incurred by him in the discharge of his
official duties as envisaged in the rule. That
burden clearly has not been even attempted to
be discharged by the appellant.
23
8. Our attention was drawn by learned
counsel to the fact that in Rule 7 the persons
entitled to daily allowance are divided into two
categories and a Chairman of a Panchayat
Samiti belonging to Category I is entitled to Rs
6 per diem when a Member of the Samiti
belonging to Category II is only entitled to Rs 4
per diem. The argument was that there was no
explanation for payment at a higher rate to the
Chairman and, consequently, it must be held
that the Chairman must be making gain out of
the payment to him of daily allowance. We are
unable to accept this submission. The daily
allowance is invariably fixed after estimating
what extra expenditure in a day the person
concerned would have to incur. A Chairman, it
appears, was expected to incur more
expenditure per day than a Member, and that
seems to be the reason why a higher rate of
daily allowance was prescribed for him. In any
case, such a payment is clearly meant only to
cover additional expenditure and out-of-pocket
expenses of the Chairman and, while no
evidence has been advanced to show that out
of the amount received as daily allowance the
Chairman will in fact invariably make a saying,
it cannot be held that this payment would
result in gain so as to make the office an office
of profit.”
The aforesaid observations are squarely applicable to the
facts and circumstances of this case. Even the payment
of allowances to Chairman Panchayat Samiti was held to
be out of pocket expenses. It was emphasised that the
24
burden lay on the appellant to give evidence to show that
amount paid would be in excess of the expenses. It was
further observed that even with regard to higher
allowance paid to Chairman for performing duties outside
the district, there was no evidence from which an
inference could be drawn that the allowance paid would
be in excess of the expenditure incurred in performance
of the duties by the Chairman.
27. In the case of K.B. Rohamare Vs. Shanker Rao
Genuji Kolhe8, this Court again considered the factors
which are necessary to be taken into consideration :-
i) Whether the office in question is an office
holding under the Government; and
ii) Whether such an office is an `office of profit’.
Considering the question in the light of the test laid down
in the case of Shivamurthy Swami (Supra), it was held
that a member of the Board would be holding an office
8
[(1975) 1 SCC 252]
25
under the Government. It was, however, observed that
mere drawal of the daily allowance and traveling
allowance could not make membership of the Board, an
`office of profit’ as the allowances drawn by such member
would be merely compensatory in nature. In coming to
the aforesaid conclusion, this Court considered the
nature of the payment made to the members of the
Board. It was observed that the dictionary meaning of
the word `honorarium’ would not be of much help.
Therefore, “the matter must be considered as a matter of
substance ratter than of form, the essence of payment
rather than its nomenclature”.
28. In considering the substance of the nature of the
payment made, this Court considered in detail the
various payments made to the member of the Wage
Board as well as the number of meetings attended and
the places at which the meetings were attended. This
was not necessary to determine whether the particular
member made a profit after the payments made to him
26
but to see the effect of payments in general. Upon
examination of the entire material, it was observed as
under:-
“The question has to be looked at in a realistic
way. Merely because part of the payment made
to the first respondent is called honorarium
and part of the payment daily allowance, we
cannot come to the conclusion that the daily
allowance is sufficient to meet his daily
expenses and the honorarium is a source of
profit. A member of the Wage Board cannot
expect to stay in Taj Hotel and have a few
drinks and claim the expenditure incurred,
which may come perhaps to Rs 150 to Rs 200
a day, for his personal expenses. In such a
case it may well be held to give him a
pecuniary gain. On the other hand he is not
expected to live like a sanyasi and stay in a
dharmshala and depend upon the hospitality
of his friends and relatives or force himself
upon them. Nobody with a knowledge of the
expenditure likely to be incurred by a person
staying at a place away from his home could
fail to realise how correct the assessment of
the learned Judge is. We are satisfied that the
payments made to the first respondent cannot
be a source of profit unless he stays with some
friends or relatives or stays in a dharmshala.
The appellant has not satisfied the test or
discharged the burden pointed out by this
Court in Umrao Singh case. The law regarding
the question whether a person holds an office
of profit should be interpreted reasonably
having regard to the circumstances of the case
and the times with which one is concerned, as
also the class of person whose case we are
27
dealing with and not divorced from reality. We
are thus satisfied that the first respondent did
not hold an office of profit.”
29. The expression `office or profit’ was reconsidered in
detail by this Court in the case of Shibu Soren Vs.
Dayanand Sahay9. This Court, apart from reiterating
the ratio of law in the aforesaid two cases i.e.
K.B. Rohamare Vs. Shanker Rao Genuji Kolhe (Supra)
and Shivamurthy Swami (Supra) observed as follows:-
“27. With a view to determine whether the
office concerned is an “office of profit”, the
court must, however, take a realistic view.
Taking a broad or general view, ignoring
essential details is not desirable nor is it
permissible to take a narrow view by which
technicality may overtake reality. It is a rule of
interpretation of statutes that the statutory
provisions are so construed as to avoid
absurdity and to further rather than defeat or
frustrate the object of the enactment.
28. While interpreting statutory provisions,
courts have to be mindful of the consequences
of disqualifying a candidate for being chosen
as, and for being, a Member of the legislature
on the ground of his holding an office of profit
under the State or the Central Government, at
the relevant time. The court has to bear in
mind that what is at stake is the right to
9
[(2001) 7 SCC 425]
28
contest an election and to be a Member of the
legislature, indeed a very important right in
any democratic set-up. “A practical view,
not pedantic basket of tests” must, therefore,
guide the courts to arrive at an appropriate
conclusion. A ban on candidature must have a
substantial and reasonable nexus with the
object sought to be achieved, namely,
elimination of or in any event reduction of
possibility of misuse of the position which the
legislator concerned holds or had held at the
relevant time. The principle for debarring a
holder of office of profit under the Government
from being a Member of Parliament is that
such person cannot exercise his functions
independently of the executive of which he
becomes a part by receiving “pecuniary gain”.
Under Article 102(1)(a), of course, Parliament
has the jurisdiction to declare an “office” as
not to disqualify its holder to be a Member of
Parliament and likewise under Article 191(1)(a)
the State Legislature has the jurisdiction to
declare an “office” as not to disqualify its
holder to be a Member of the State
Legislatures. Moreover, apart from the office
being an “office of profit”, it must also be an
office under the State or Central Government.
30. It was further observed that for determining of the
core question each case has to be judged in the light of
the relevant provisions of the statute and its own peculiar
facts. This is to ensure that there should not be any
29
conflict between the duties and interest of an elected
member.
31. In view of the above, the conclusion reached by the
High Court that receipt of Rs.900/- is not compensatory
can not be accepted. It would be preposterous to accept,
in this day and age, that a sum of Rs.900/- per month
would be sufficient to cover the out of pocket expenses of
a Lambardar.
32. In this case the High Court erred in recording a
conclusion without insisting on the evidence on the basis
of which such conclusion could have been recorded. The
circular dated 30.4.2008 merely states :-
“To
All the Deputy Commissioners-cum-
District Electoral Officers in the State.
Memo No. SEC-2008/4365
Chandigarh, dated the 30.4.2008
30
Subject : General Elections to Panchayat
Samitis and Zila Parishads – 2008
Clarification regarding contesting of
election by Lambardars and
Anganwari Workers.
…
Some of the Deputy Commissioners-cum-
District Electoral Officers have raised the
question whether the Lambardars and
Anganwari workers are eligible to contest
Panchayati Raj Institution elections. The
answer to this question depends upon whether
the aforesaid functionaries are holding “office
of profit” under the State Government. The
Hon’ble Supreme Court of India has laid down
certain tests for determining the question
whether a particular office is an office under
the State Government or not: particularly in
Shivamurthy Swami Inamdar Vs. Agadi
Sanganna Andanaappa as follows:-
i) Whether the government makes the
appointment;
ii) Whether the government has the right to
remove or dismiss the holder;
iii) Whether the government pays
remuneration;
iv) What the functions of the holder are and
does he perform them for government;
and
v) Does the government exercise any control
over the performance of these functions.
Therefore, the question whether a person is
holding an office of profit under the
Government of India or a State has to be
decided by applying these tests to the facts
31
and circumstances of each case. Applying
these questions to the instant case, it is well
established that both the above mentioned
functionaries are appointed by the
Government and the Government has the right
to remove them. They are also paid
remuneration. However, it has been said that
the remuneration is of the nature of
honorarium. Here, on “office of profit” the
Hon’ble Supreme Court of India held in
Ravanna Subanna Vs. Kaggeerappa that the
word `profit’ connotes the idea of pecuniary
gain. If there is really a gain, its quantum or
amount would not be material but the amount
of money receivable by a person in connection
with the office he holds may be material in
deciding whether the office really carried any
profit. Further, it is also well established that
functions performed by both Lambardar and
Anganwari workers are for the government and
the government also exercises control over the
performance of these functions. A similar
point has been decided by the Hon’ble
Supreme Court in Ramappa Vs. Sangappa
where the Hon’ble Supreme court observed
that the appointment of Patels and Shanbhogs
was made by the Government under the
Mysore Village Offices Acts 1908 and though it
may be under the statute it had no option but
to appoint the heir to the office, if he fulfills the
statutory requirements, but the office was held
by them by reason of the appointment by the
government and not simply because of
hereditary right to it. They worked under the
control and supervision of the Government,
could be removed by the government and were
paid by it.
32
Accordingly, the Commission is of the
view that the Lambardar and Anganwari
workers held “office of profit” and thus are
ineligible to contest.
Sd/-
(A.K. Dubey)
State Election Commissioner, Pb.”
A perusal of the circular would clearly show that State
Election Commission has failed to take note of the factual
situation. The circular is based on a misinterpretation of
the law laid down by this Court in the cases of
Shivamurthy and Ravanna Subanna (supra). There is
no material on the record to show that the receipt of
Rs.900/- per month by the Lambardar would invariably
lead to a saving. Even though the office of Lambardar is
regarded as a mere relic in this day and age, it still
carries with it certain important duties which are to be
performed by the incumbent. Although purely
`honourary’ being a Lambardar gives the incumbent a
certain status in the village. In some cases, the office of
33
Lambardar has been in the same families for generations.
For them, it becomes a matter of honour and prestige
that the office remains in the family. Learned counsel for
the appellant has rightly submitted that the office of
Lambardar is a heritage office. Therefore, some families
would cherish the office of Lambardar, even though the
incumbent does not get any salary, emoluments or
perquisites. In our opinion, the very basis of issuing the
circular was non- existent and misconceived. On this
very basis, the High Court has quashed the circular in
relation to Anganwari workers. In our opinion, for the
same reasons the circular could not be sustained qua the
Lambardars also.
33. In view of the aforesaid conclusion, we need not
consider the effect of Section 2(a) of the Punjab State
Legislative (Prevention of disqualifications) Act, 1952, on
Section 11(g) of the State Election Commission Act. By
virtue of the aforesaid Act a Lambardar would be
qualified to contest the elections for legislative assembly.
34
This could be a stepping stone for becoming the Chief
Minister of the State. Therefore, it would seem a little
incongruous that a Lambardar would not be permitted to
seek election to the Panchayat. The village level
democracy is the bedrock of the Indian National
Democracy. Being a member of Panchayat can be the
beginning of a long career in public life. Therefore, the
disqualification introduced though the impugned circular
could prove disastrous to democracy at the grassroots
level in Punjab. But we need not go into controversy, as
we have already held that the office of a Lambardar
would not be an `office of profit’.
34. In view of the above, the appeal is allowed. The
impugned judgment of the High Court is set aside, in so
far as it relates to Lambardars. The impugned circular
dated 30.4.2008 is quashed and set aside qua the
Lambardars also.
35
Civil Appeal No. of 2010 @ Special Leave
Petition (C) No.10948 of 2009 :
1. Leave granted.
2. In view of the judgment in Civil Appeal
No. ………………of 2010 @ SLP (C) No. 7319 of 2009, this
appeal becomes infructuous and is dismissed as such.
……………………………..J.
[B.Sudershan Reddy]
……………………………..J.
[Surinder Singh Nijjar]
New Delhi;
October 29, 2010.
36