S. Rama Mohan Ray vs A. Kishore Chandra Patra And Ors. on 22 August, 1994

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55
Orissa High Court
S. Rama Mohan Ray vs A. Kishore Chandra Patra And Ors. on 22 August, 1994
Equivalent citations: AIR 1995 Ori 4
Author: Nanavati
Bench: G Nanavati, P Misra

JUDGMENT

Nanavati, C.J.

1. Whether an Assistant Public Prosecutor appointed by the Government of Orissa under Section 25 of the Code of Criminal Procedure, 1973 can be said to be a Government servant is the question which arises for consideration in this petition, in the context of Section 16 of the Orissa Municipal Act, 1950 (hereafter referred to as “the Act”), which provides for disqualification of candidates for election as a councillor of a municipal council.

2. The petitioner is a practising advocate. By an order of the Government of Orissa dated 28th June, 1991, he has been appointed as an Assistant Public Prosecutor under Section 25 of the Code to conduct criminal cases in the Courts of Magistrates, both judicial and executive, at Saroda in the district of Ganjam. The appointment is purely temporary and liable to be terminated at any time without notice. As an Assistant Public Prosecutor, he gets daily fee of Rs.50/- subject to such restrictions as are provided in the Orissa Law Officers Rules, 1971. The petitioner contested the election to the post of Chairman, Saroda Notified Area Council, got elected and assumed that office on 18-6-1992. Opposite party No. 1, who had also contested the said election but had lost, filed an election petition being M.J.C. No. 45 of 1992 in the Court of the District Judge, Ganjam (hereafter referred to as “the Tribunal”). The election of the petitioner was challenged, inter alia, on the ground that he being an Assistant Public Prosecutor was a Government servant and as such was not qualified to contest the election. The Tribunal held that the petitioner was a Government servant on the date of filing of the nomination paper and was thus not qualified for being elected as a counciller, It, therefore, allowed the petition and set aside the election of the petitioner. The Tribunal has further directed the Cpllector-cum-District Magistrate to take appropriate steps for filling up the vacancy. This order passed by the Tribunal is challenged in this petition. This Court admitted the petition on 11-11-1993 and stayed that part of the order of the Tribunal by which it has directed the Collector to fill up the vacancy.

3. What is contended by the learned counsel for the petitioner is that the order passed by the Tribunal is bad on two grounds. Firstly, because the question whether the petitioner was or was not disqualified under Clause (xi) of sub-sec, (1) of Section 16 of the Act was referred to the State Government under Section 15 of the Act and as the decision of the Government has been made final by the said provision, the Tribunal had no jurisdiction to decide that question again. The second reason is that an Assistant Public Prosecutor is not a Government servant, as contemplated by Section 16 of the Act.

4. Sections 16 and 15 of the Act are material for our purpose and, therefore, for ready reference, the relevant parts thereof are extracted below:–

 "16. Disqualification of candidates    for
election- 
   

 (1) No person shall be qualified for elec
tion as a councillor of a municipal council if
such person- 
  xx xx                          XX 
 

 
(xi) is a Government servant either whole time or part time or has been dismissed from Government service for corruption ,or disloyalty to the State, unless a period of five years has elapsed since his dismissal: 
   

 Provided that if any question arises, either before or after an election, whether any person is or is not disqualified under this clause, the question shall be referred to the State Government whose decision shall be final; 
  XX XX                                      XX  
   

"18. Power to question election by petition- 
   

 (1) The election of any person as a Chairman or councillor may be questioned by election petition on the ground- 
   

 (a) that such person committed, during or in respect of the election proceedings, a
corrupt practice as defined in Section 28, or  
 

 (b) that such person was declared to be elected by reaso'n of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes, or  
 

 (c) that such person though enrelied as an elector Was disqualified for election under the provisions of Sections 15, 16 and 29. 
  xx xx                          xx".    
 

5. The learned counsel submitted that there are two parallel provisions in the Act, one contained in Section 16 and the other contained in Section 18, providing for a decision on the question as to whether a person is or was qualified or not for election as a councillor under Section 16(1)(xi) of the Act. Whereas Section 18 is general in terms, Section 16(1)(xi) is a specific provision in that behalf and moreover the decision under Section 16 is made final. In view of the well settled principles of interpretation that a special provision will prevail over a genera] provision and that when there are in a statute two provisions which are in conflict with each other, such as both of them cannot stand, they should be, if possible, so interpreted that effect can be given to both and that a construction which renders either of them inoperative and useless should not be adopted except in last resort, it should be held that the State Government and not the Tribunal has the power to decide whether the person is a Government servant and as such is or was disqualified to contest the election. In order to show how under such circumstances provisions of a statute should be construed, the learned counsel drew our attention to the decisions of the Supreme Court in Bengal Immunity Co. Ltd. v. State’of Bihar, AIR 1955 SC 661; L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt., AIR 1961 SC 200; J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170; D. Sanjeevayya v. Election Tribunal, A.P., AIR 1967 SC 1211; Firm Amar Nath Basheshar Dass v. Tek Chand, AIR 1972 SC 1548; Commr. of Sales Tax, U.P. v. M/s. Mangal Sen Shvam Lal, AIR 1975 SC 1106 : (1975 Tax LR 1535); Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331; P. K. Unni v. Nirmala Industries, AIR 1990 SC 933; and Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC96: (1991 AIR SCW 2754). The learned Government Advocate appearing for the State has supported this contention. On the other hand, Mr. R.K. Mortapatra, learned counsel appearing for the contesting opposite party, submitted that the correct interpretation would be that the State Government’s decision has to be regarded as final till the election process is over and thereafter the Tribunal has the jurisdiction to decide that question. He referred to the decision of this Court in Sudhir Kumar Ghosh v. Ank Kameya, (1961) 27 Cut LT (Notes) 6.

6. In view of these rival contentions, it is necessary to examine what exactly has been provided by the legislature in this behalf. Section 16 provides for disqualification of candidates for election. It enumerates the grounds on which a person shall be regarded as disqualified for election. Clause(xi) of Sub-section (1) of Section 16 provides that if the person happens to be a Government servant, either whole-time or part-time or has been dismissed from Government service of corruption or disloyalty to the State and unless a period of five years has elapsed since his dismissal, he shall not be qualified for election as a councillor. The proviso to that clause is important for our purpose. By enacting the proviso, the legislature has further provided that if any question arises either before or after an election, whether any person is or is not to be disqualified under that clause, the said question shall be referred to the State Government. The decision of the State Government is made final. The words to be noted in this proviso arc “is or is not” and “before or after on election”. It is also necessary to take note of Rule 27 of the Orissa Municipal (Councillors) Election Rules, 1950, because it provides that if a question of ineligibility or disqualification of a candidate arises before election, then under that rule the Election Officer has to decide that question. His decision is also made final. As Section 16 provides for disqualification of candidates for election, obviously it would operate at the stage anterior to election. The legislative scheme, as it appears from a joint reading of Sections 16 and 37 and Rule 27, is that once an election process starts, it should not be postponed or interfered with. If any question arises, say with respect to disqualification of a candidate or in regard to propriety of acceptance or rejection of a nomination paper, then it has to be decided by the Election Officer or by the State Government, as the case may be, and their decision is made final. This finality of decision continues till the election is over. (See the decision of this Court in O.J.C. No. 70 of 1959 (Sudhir Kumar Ghose v. Ank Kamaya) disposed of on 2-8-1960 : (1961) 27 Cut LT (Notes) 6).

7. Applying the principles of harmonious construction, we can say that if a question is raised regarding disqualification of a candidate on any ground other than the one mentioned in Clause (xi) of sub-section (1) of Section 16, then that will have to be decided by the Election Officer, whereas if it is on the ground mentioned in Clause (xi), then that question will have to be decided by the State Government, it has also to be so in view of the other well settled principle of interpretation that generalio speciali Bus dergant, i.e., the special derogates from the general, or generalis clausula non porrigitur ad ea quae antia specialiter sunt comprehensa, i.e., a general clause does not apply to those matters for which special provision has already been made.

8. Though it is not otherwise necessary to refer to Section 17 of the Act as the question of the subsequent disqualification of a councillor does not arise in this petition, reference to that section and also to Section 38, in our opinion, is useful for understanding the legislative scheme as regards who should be approached and when if a question of disqualification of a candidate or a councillor arises. Section 17 provides for disqualification of a councillor. Obviously, that section would apply at the stage posterior to election, i.e., after a person is elected as a councillor. Like Section 16, it also enumerates certain grounds on which a councillor would become disqualified to hold his office. If a person becomes a Government servant, either whole-time or part-time after being elected as a councillor, then he incure the disqualification as provided by Clause (g) of that section. The said clause also provides that if a question arises whether a person is or is not disqualified under that clause, then that question shall be referred to the State Government. The decision of the State Government under this clause is also made final. But if a question arises as to whether the councillor has incurred disqualification on any other ground, then that question will have to be referred to the District Judge of the district in which the municipality is situated. That is what Section 38 provides. Section 38 reads as under:–

“38. District Judge to decide question of disqualification of councillors.-

(1) Whether it is alleged that any person, who has been elected as councillor, is disqualified under Section 16 or 17 and such person does not admit the allegation or whenever any councillor himself is in doubt whether or not he has become disqualified for office under Section 16 or 17, such councillor or any other councillor may, and the Chairman at the request of the council, shall apply to the District Judge of the District in which the municipality is situated.

(2) The said Judge after making such enquiry as he deems necessary shall determine whether or not such person is disqualified under Section 16 or 17 and his decision shall be final.

(3) Pending such decision, the councillor shall be entitled to act as if he were not disqualified.”

As can be seen, this section is wider in scope, in as much as issue of disqualification of a councillor can be raised not only on grounds mentioned in Section 17, i.e., on the grounds which come into existence after the person is elected as a councillor, but also on the grounds mentioned in Section 16, i.e., on the grounds which had made him ineligible for election while he was a candidate, i.e., before he came to be elected as a councillor. But under Section 38, an issue regarding disqualification of a councillor can be raised only by a councillor and by no other person. So far as disqualification on the ground of being a Government servant is concerned, that question is intended by the legislature to be decided by the State Government either under Section 16(1){xi) or under Section I7(g), as the case may be, and Section 38 will have no application on the same principle of interpretation which he have referred to above. The legislature probably brought under Section 38 not only the grounds of disqualification mentioned in Section 17 but also those mentioned in Section 16 realising the probability of the question of disqualification of a candidate not being raised prior to the election, either because the disqualification was not noticed or for some other reason. But the District Judge acting under Section 30 cannot held that the councillor was not validly elected. What he is authorised to determine is whether or not the councillor is disqualified, meaning thereby that he has ceased to become eligible to hold his office. If election of a person is to be questioned on the ground that he was not validly elected, then it has to be done under Section 18 of the Act,

9. Under Section 18, election of any person as a councillor can be questioned on the grounds mentioned in Clauses (a), (b) and (c) of Sub-section (I) of that section. Under Clause (c), election of a person as a councillor can be challenged on the ground that he was disqualified to stand for election under the provision of Sections 15, 16 and 29. In other words, election of a person as a councillor can be challenged on the ground that he was not qualified to stand for election as a councillor. The Act provides that such a petition shall be heard by the Tribunal. Though Section 18 comes into operation after the election is over, the question of disqualification is to be decided with reference to the disqualification incurred before election.

10. What is submitted on behalf of the contesting opposite party is that even if that is so, Section 18 is a general provision, as it provides for challenge to election on the ground of disqualification not only under Sections 15 and 29 but also under any of the clauses of Section 16 of the Act. On the other hand, the proviso to Clause (xi) of Section 16(1) is a special provision with respect to disqualification on the ground of being a Government servant. Therefore, the special provision would prevail over the general provision with the result that if there is a prior decision of the State Government on the point, then the Tribunal will be bound by it, and if there is no such decision, then the Tribunal has to raise and refer the question to the State Government for its decision. The words “either before or after an election” in Section 16(1)(xi) clearly indicate that.

11. As pointed out earlier, the question whether a person is or is not a Government servant may arise before an election or after the election. The disqualification on that ground might have arisen before the election or it may arise after the election. Thus, the question of disqualification of the person on the ground of his being a Government servant can arise under Section 16 before or after the election and it is for this reason that the legislature has used the words “either before or after an election” in the proviso to Clause (xi) of Section 16(j). Obviously, such question would not arise under Section 17 that it is that reason why we do not find the words “either before or after an election” in the proviso to Section 17(g). Under both the Section 16(1)(xi) and I7(g), the question which falls for determination is “whether any person is or is not disqualified under this clause”. The legislature has advisedly not used the words “was or was not” in the proviso to Section 16(I)(xi), because it wanted that question to be decided by the Tribunal is an election petition. The words “was disqualified election” are to be found in Section 18(1)(c) which clearly Indicate that the legislature wanted such a question to be decided by the Tribunal under Section 18. The inquiry contemplated at an earlier stage, i.e., before the election is not a full fiedged inquiry, because that would hold up the election process. Therefore, the legislature has provided for a full-fledged inquiry not only in respect of disqualifications mentioned in Sections 15, 16 and 29 of the Act but also on other grounds mentioned in Clauses (a) and (b) of Section 18. Section 18 is thus a comprehensive provision as it provides for all grounds on the strength of which an election can be challenged. The legislature, therefore, could not have intended and it would not be proper to cut down the width of that section by applying the principles of interpretation relied upon by the learned counsel for the petitioner. Though apparently there is overlaping of Sections 16(1)(xi) and 18(1)(C), really they are not parallel provisions. In our opinion, on plain language of Sections 16 and 18 it will have to be held that if a question arises whether any person is or is not disqualified under Section 16, then that question is to be referred to the State Government for its decision, whether it arises before the election or after the election. But if the question is whether the person elected is disqualified for election under the provisions of Sections 15, I6and 29, then it will have to be decided by the Tribunal under Section 18. For all these reasons, we reject the contention that Section 16(1)(xi) being a special provision would prevail over Section 18 and, therefore, the Tribunal has no jurisdiction to decide in an election petition the question whether a person who contested the election was disqualified or not on the ground that he is a Government servant.

12. As regards the second ground of challenge, it was submitled that the Tribunal committed an error in holding that the petitioner was disqualified for election as he is a Government servant.

13. Before we proceed to consider the rival submissions and ihe decisions relied upon, two aspects need 10 be emphasised. Whether the relationship of master and servant exists would be a question of fact in each case and that will have to be decided on consideration of all material arid relevant circumstances having a bearing on that question. As the same time, the Court has to adopt the proper interpretative approach and apply the established legal principles and recognised tests laid down in that behalf. The other aspect is that the disqualifying words used in Section I6(1)(xi) are “Government servant either whole-time or part-time.” Whereas in Clauses(xi) and (x) of Sub-section (1) of Section 16 the words used by the legislature are “is employed as a paid legal practitioner” and “is an officer or servant holding office” respectively, the words used in Clause (xi) are “is a Government servant”.

14. The undisputed facts may be referred to first. The petitioner is a practising lawyer. On 20-6-1991 Government appointed him as an Assistant Public Prosecutor under Section 25 of the Code to conduct criminal cases in the Courts of Magistrate at Sarada. His appointment is purely temporary and liable to be terminated at any time without notice. He is not paid any salary but gets a daily fee of Rs. 50/- subject to the restrictions provided’ in the Orissa Law Officers Rules, 1971. He is not a part of any of the regularly constituted services of the state. He is not holding any cadre post or ex-cadre post. He is not governed by any statutory or non-statutory rules framed by the Government except in the matter of entitlement of fees. He is also not governed by the Orissa Government Servants Conduct Rules, 1959 nor by the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. He is free to act and appear as an advocate in all cases except that he cannot appear against the Government. He is not subject to any control as regard the manner in which he has to conduct cases as an Assistant Public Prosecutor.

15. Next we will consider that should be the proper interpretative approach while interpreting the provision for disqualification of a professional tike a lawyer for contesting as election to Municipality or such other elective representative body. Generally it can be said that restrictions by way of disqualification for standing for an election are imposed for preservation of purity in public life. On the other hand, Courts have to safeguard against unnecessary exclusion of professionals who have some employment nexus with Government from for participating in municipality or other elective body. In this context the observations made by the Supreme Court in Madhukar G. E. Pankakar v. Jaswant Chobbildas Rajani, AIR 1976 SC 2283, which are highly instructive, are quoted hereunder (at Pp. 2290-2291) :–

“22……. What is the legislative and (sic. and) here in disqualifying holders of ‘offices of profit under Government*? Obviously, to avoid a conflict between duty and interest, to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing Government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving techinical persons, welfare workers, and lay people on a massive scale so that participatory Government may prove a progressive reality. In such an expending situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army or other non-officials who are wanted in various fields, not as full-time Government servants but as part-time participants in people’s projects sponsored by Government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part-time in the enabling occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative Government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of ‘office of profit’ cast the not so vide that all our citizens with specialities and know how are inhibited from entering elected organs of Public administration and offering semi-voluntary services in para-official, statutory or like projects run or directed by Government or Corporations controlled by the State may be detrimental to democracy itself. Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat: A balanced view, even if it involves ‘juridious irrevarence’ to vintage precedents, the wiser desideratum.

23. The general interpretative approach hallowed by Heydon’s case is expressed by the Bench in the Bombay ruling, AIR 1958 Bom 314, Daorao v. Keshav thus :

“The object of this provision is to secure independence of the members of the Legislature and the ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, consequently, being under an obligation to be executive, might be amenable to its influence. Putting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members ‘of the Legislature. This object must always be borne in mind in interpreting Article 191.”

While we agree that this consideration is important for purity of elective offices, the need for caution against exaggerating its importance to scare away men of skill in various fields coming into socially beneficial projects on part-time posting or small fee cannot be ignored. Informed by these dual warnings we proceed to assess the worth of the rival contentions.”

In that case the Supreme Court has also observed that “a practical view, not pedentic basket of tests, should guide in arriving at a sensible conclusion.”

16. Having noted that should be the correct approach, we will now consider what should be the tests laid down for the purpose of deciding whether in a given case the relationship of master and servant exists or not. In the case of State of U.P. v. Audh Narain Singh, AIR 1965 SC 360, the Supreme Court has observed as under (at p. 363):–

“Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant.”

In State of Assam v Kannk Chandra Dutta, AIR 1967 SC 884, what the Supreme Court has stated in that behalf is (at p. 886) : —

“……. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State’s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.”

17. We shall now refer to the other decisions relied upon by the learned counsel of both the sides.

18. The learned counsel for the opposite party relied heavily upon the following observation made by the Supreme Court in Mahadeo v. Shantibhai, (1969) 2 SCR 422 :–

“If by “office” is meant the right and duty to exercise an employment or a position to which certain duties are attached as observed by this Court, it is difficult to see why the engagement of the appellant in this case under the letter of February 6, 1962 would not amount to the appellant’s holding an office. By the said letter he accepted certain obligations and was required to discharge certain duties. He was not free to take a brief against the Railway Administration. Whether or not the Railway Administration thought it proper to entrust any particular case or litigation pending in the Court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent. Even if no instructions regarding any particular case were given to him, he was expected to appear in Court and obtain an adjournment. In effect this cast a duty on him to appear in Court and obtain an adjournment so as to protect the interests of the Railway. The duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the panel of Railway lawyers or so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render service to the Railway. In the absence of the above he was bound by the terms of the engagement to watch the interests of the Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had made no arrangement for representation. It is true that he would get a sum of money only if he appeared but the possibility that the moment. An office of profit really means an office in respect of which a profit may accrue………..”

That was a case under the Representation of the People Act, 1950 and the above quoted observations have been made by the Supreme Court while interpreting the phrase “office of profit”.

19. Our attention was also drawn to the decision of the Supreme Court in Smt. Kanta Kathuriav. Manak Chand Surana, AIR 1970 SC 694. In that case the question which had arisen for consideration by the Supreme Court was whether an advocate appointed as a Special Government Pleador to assist the Government Pleader in a particular case did not hold any ‘office’ and hence he did not incur disqualification under Article 191 of the Constitution. The Supreme Court after noting that the word ‘office’ has various meanings has indicated when a person can be said to hold an office.

20. In Madhukar G. E. Pankakar v. Jaswant Chobbildas Rajani, AIR 1976 SC 2283, a question had arisen whether a medical practitioner working as a panel doctor under the Employees’ State Insurance Scheme holds an “office of profit” under the State Government so as to attract disqualification under Section 16(1)(g) of the Maharashtra Municipalities Act, 1965. The Supreme Court after referring to its earlier decisions in Sakhawat Ali, AIR 1955 SC 166), in Gurugobinda(AIR 1964 SC 254), in.Mahadeo’s case ((1969) 2 SCR 422) and in Kanta (AIR 1970 SC 694), and after referring to the following five tests laid down in Shivamurthy Swami ((1971) 3 SCC 870), vis.,

“(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?”

held that it was not possible to say that there was an “office or profit” held by him and that he was under Government.

21. Our attention was also drawn to the decision of the Supreme Court in Kumari Shrilekha Vidyarthi etc. etc. v. State of U. P., AIR 1991 SC 537, wherein the Supreme Court in the context of Article 311 of the Constitution has explained the distinction between the expressions “professional engagement” and “appointment to a post under the Government.” In that case the Supreme Court has held that the appointment of a District Government Counsel by the State Government cannot be said to be only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it. The presence of public element attached to the ‘office’ or ‘post’ of District Government Counsel is eifficient to attract Article 14 of the Constitution. Our attention was particularly drawn to the following observations made in paragraph 13 (at p. 546) of the judgments :–

“…….The expression ‘professional engagement’ is used therein to distinguish it from ‘appointment to a post under the Government’ the strict sence. This, however, does not necessarily mean that a person who is not a Government servant holding a post

under the Government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of Clause 3 of Para 7.06 means only this and no more. ……..”

In State of Punjab v. Gurdarshan Singh Grewal, AIR 1993 SC 2482: (1993 AIR SCW 2216), a question had arisen whether a practising advocate who was appointed as part-time Administrator General and Official Trustee-cum-Treasurer, Charitable Endowments was a Government servant and thus entitled to the protection under Article 311 of the Constitution. The Supreme Court held that while deciding such a question the character of the post and the person who holds the post are relevant. In view of the circumstances that he continued to be an advocate, that his service was terminable with one month’s notice, that there was no pay scale prescribed for the post and that the rules relating to Government servant did not apply to him, it was held that he was not a Government servant.

22. In none of these cases the Supreme Court was called upon to interpret the expression “Government servant” in the context of electoral disqualification. In those cases the Supreme Court has explained what is meant by either ‘office’ or ‘post’ and when a person can be said to have held an “office of profit under the Government”. That there is a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government and that the expression “an officer of profit under the Government” has a wider connotation is clearly borne out from the decision in Guru Gobinda Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254. The following observation made in Kumari Shrilekha Vidyarthi, (AIR 1991 SC537):–

“……This, however, does not necessarily mean that a person who is not a Government servant holding a post under the Government does not hold any public office……..”

also brings out the distinction between the two. In the case of Madhukar, (AIR 1976 SC 2283) also the Supreme Court has held that for holding an office of profit under a Government, one need not be in the service of the Government and there need not be relationship of master and servant. Therefore, all those decisions are not of any direct help but they are helpful in understanding the meanings of the words ‘office’ and ‘post’ and how and under which circumstances the Supreme Court has held that the person concerned was either holding as office of profit or a civil post under the State. We have already pointed out earlier that it is not in dispute that the petitioner is not in civil service of the State. He is not a part of any of the services constituted by the State, Even while relying upon the definition of “Government servant” in the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, the learned counsel for the contesting opposite party conceded that position. It is not relevant for our purpose to consider whether the petitioner can be said to be holding an “office of profit” as the words of disqualification in Section 16(1)(xi) are different. It was, therefore, contended by the learned counsel that the petitioner as an Assistant Public Prosecutor holds a civil post under the State and, therefore, is a Government servant. It was submitted that an Assistant Public Prosecutor is a person appointed under Section 25 of the Code of Criminal Procedure and thus holds a statutory post. The nature of duty which he has to perform indicates that public element is attached to that post. He is appointed and can be removed by the Government. His remuneration by way of fees is paid by the State. All these factors cearly show that he is holding a civil post under the State, and, therefore, he is a “Government servant” as defined by Rule 2(f) of the Orissa Civil Services (Classification, Control and Appeal) Rules. Though the submission is ingenious, it has no substance in it because the said Rules are not applicable to the petitioner and the definition of the expression “Government servant” in Rule 2(f) is for the purposes of the said Rules. The said rules do not apply because the petitioner has not been appointed under the said rules and secondly, because it will not be necessary to give not less than one month’s notice to him for terminating his service. Rule 3 excludes such persons from the purview of the said rules. Moreover, the civil posts contemplated by the said rules are specified therein and the post of Assistant Public Prosecutor is not one of them. Reliance placed on Rule 2(0, far from supporting the contention raised by the learned counsel, goes to some extent against him. It can be said that the Legislature while making the Government servant disqualified from contesting an election as a councillor was aware of this definition of “Government servant”. It can be inferred that the Legislature did not intend that those who are not in civil service of the State and those who do not hold posts falling within the purview of the said rules should be treated as Government servants. In our opinion, considering the position of an advocate, the nature and duties of the post of Assistant Public Prosecutor, and the fact that he is not paid any salary, he is not subjected to any administrative disciplinary control of the State and, more particularly, in view of the definition of the expression “Government servant”in Rule 2(f) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, an Assistant Public Prosecutor cannot be regarded as a Government servant,

23. It may be stated that an objection was raised to the nomination of the petitioner before the election and the State Government had decided that the petitioner was not a Government servant. Before us also, the State has submitted that an Assistant Public Prosecutor appointed under Section 25 of the Code of Criminal Procedure is not a Government servant. The learned counsel for the petitioner has pressed this circumstance in support of his contention by emphasising that the State and the petitioner have understood the appointment as professional engagement. He submitted that though the appointment is made by the Government, that cannot vest it with additional sanctity, and in support of this submission, reliance was placed upon the decision in State of U. P. v. U. P. State Law Officers Association, 1994 Vol.1 SVLR (1) 100: (AIR 1994 SC 1654).

24. We will now refer to the three decisions which were relied upon by the learned counsel for the contesting opposite party wherein it has been held that an Assistant Public Prosecutor in a Government servant.

We shall first deal with the decision of the Calcutta High Court in Satyabrata Moha-patrav.State of W.B., (1981) 2 Cal HN20. In that case, the two petitioners were Assistant Public Prosecutors and as their services were terminated, they challenged the orders of termination before the High Court. Though in that case a contention was raised generally that Assistant Public Prosecutors are not Government servants, it was not seriously disputed that Assistant Public Prosecutors in West Bengal are Government servants. The reason which appears from the report, for taking that view is that they were appointed in accordance with the West Bengal Assistant Public Prosecutors (Qualification, Method of Recruitment and Conditions of Service) Rules, 1974 framed under Article 309 of the Constitution. They were also subject to the West Bengal Service Rules, 1971 and the West Bengal Civil Services (Classification, Control and Appeal) Rules, 1971. This judgment, therefore, cannot be of any help to the contesting opposite party. The Madras High Court in M. D. Sigamani v. Vidyasagaran, (1969) 1 Mad LJ 99, and in Kannappan v. Abbas, 1986 Cri LJ 1022, has held that the Assistant Public Prosecutors are appointed by the Government only for conducting prosecutions in the courts and they are full-time Government servants. In Kannappan’ case, it has further observed that they are not advocates or legal practitioners entitled to practise as advocates, and their duty, as their designation itself mentions, is only to conduct prosecutions on behalf of the State. To put, it differently, they have no right to practise or take briefs to defend the accused in criminal cases. These observations and the Rules referred to in the said judgment go to show that the Assistant Public Prosecutors in the State of Tamil Nadu constitute a service of that State. Their appointments and the terms of service are governed by the rules framed by the State of Tamil Nadu under Article 309 of the constitution. Therefore, these three decisions are clearly distinguishable.

For the reasons stated above, we hold that an Assistant Public Prosecutor is not a Government servant Who would attract disqualification under Section 16(1)(xi) of the Orissa Municipal Act, 1950. We accordingly allow this petition, quash and set aside the impugned judgment and order passed by the tribunal in Misc. Judicial Case No. 45 of 1992 (Annexure 7). No order as to costs.

P.C. Misra, J.

25. I agree.

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