{"id":46260,"date":"1999-02-19T00:00:00","date_gmt":"1999-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rabindra-kumar-nayak-vs-collector-mayurbhanj-orissa-on-19-february-1999"},"modified":"2018-07-07T13:06:37","modified_gmt":"2018-07-07T07:36:37","slug":"rabindra-kumar-nayak-vs-collector-mayurbhanj-orissa-on-19-february-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rabindra-kumar-nayak-vs-collector-mayurbhanj-orissa-on-19-february-1999","title":{"rendered":"Rabindra Kumar Nayak vs Collector, Mayurbhanj, Orissa & … on 19 February, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rabindra Kumar Nayak vs Collector, Mayurbhanj, Orissa & … on 19 February, 1999<\/div>\n
Author: Quadri.J.<\/div>\n
Bench: K.T.Thomas, Syed Shah Quadri<\/div>\n
           PETITIONER:\nRABINDRA KUMAR NAYAK\n\n\tVs.\n\nRESPONDENT:\nCOLLECTOR, MAYURBHANJ, ORISSA & ORS.\n\nDATE OF JUDGMENT:\t19\/02\/1999\n\nBENCH:\nK.T.Thomas, Syed Shah Mohammed Quadri\n\n\n\n\nJUDGMENT:\n<\/pre>\n
QUADRI.J.\n<\/p>\n
\tLeave is granted.\n<\/p>\n
\tThe question that arises in this appeal\t is  whether
\nthe appellant was holding ‘office of profit’ under the State
\nGovt.\twhile  functioning provisionally as Assistant Public
\nProsecutor  and\t was  therefore\t disqualified  to  become  a
\nmember\/Chairman\t of  a\tSamiti\tunder  the  Orissa Panchayat
\nSamiti Act 2959.\n<\/p>\n
\tThe factual backdrop in which the question falls for
\nconsideration may briefly be set out here :\n<\/p>\n
\tOn  August  14,\t 1995  the  appellant,\tan  advocate
\npractising  in\tthe  courts  of\t Cuttack,  was\tappointed as
\nAssistant Public Prosecutor provisionally under Rule 5(4) of
\nthe Orissa Law Officers Rules, 1971 (for short ‘the  rules’)
\nread with Section 25 of the Criminal Procedure Code, 1973 to
\nconduct the criminal cases.  He was entitled to daily fee of
\nRs.  100\/-  subject  to restrictions under the rules.  While
\nso he contested the election to the seat of  the  member  of
\nMoroda\tPanchayat Samiti and the fourth respondent contested
\nfor the seat of member of Gudigan Panchayat samiti.    After
\nbeing  elected\tas  members,  both  of them contested in the
\nelection to the post of Chairman of Moroda Panchayat Samiti.
\nAppellant was declared elected as Chairman on  February\t 10,
\n1997.\tHaving\tlost  in  the contest, the fourth Respondent
\ninitiated proceeding against the appellant under Sec.\t45-B
\nof  the\t Orissa\t Panchayat  Samiti Act, 1959 (for short ‘the
\nAct’) in the court of the District Judge, Mayurbhanj on\t the
\nground\tthat  as  Assistant Public Prosecutor he was holding
\n‘office of profit’ under the Govt.  so he was  not  eligible
\nto  be\teither\ta member or the Chairman of Moroda Panchayat
\nSamiti.\t The appellant resisted the same on  two  grounds  :
\nfirst  that his appointment under Rule 5(4) of the Rules was
\na stop-gap arrangement so he  was  not\t‘holding  office  of
\nprofit:\t  and  second  that the petition filed by the fourth
\nrespondent under Sec.  45-B of the Act was not\tmaintainable
\nas  after  the election was over his only remedy was to file
\nan election petition under Section 44-A of the Act.\n<\/p>\n
\tOn Sept. 20, 1997 the learned  District\t Judge\theld
\nthat  the  petition  under Section 45-B was maintainable and
\nthe appellant was holding officer of profit under the  Govt.
\nwithin\tthe  meaning  of Sec. 45(1)(i) of the Act; so he was
\ndisqualified to be a member or\tChairman  of  the  Panchayat
\nsamiti.\t The appellant challenged that order before the High
\nCourt of Orissa. On March 10, 1998 the High Court  dismissed
\nthe  writ  petition confirming the said order of the learned
\nDistrict Judge. Against that order of  the  High  Court\t the
\nappellant is before us in appeal by special leave.\n<\/p>\n
\tShri   Janaranjan   Das,  learned  counsel  for\t the
\nappellant urged the very same two contentions before  us  as
\nwere  raised  before  the  High\t Court\tnamely, (i) that the
\nappointment of the appellant as Assistant Public  Prosecutor
\nwas  provisional,  as  a stop-gap arrangement as such he was
\nnot holding office of profit and (ii) after the election  of
\nthe  appellant was over only Election Petition under Section
\n44-A but not petition under Sec.  45-B of the  Act  was\t the
\nremedy of the fourth respondent.\n<\/p>\n
\tWe  shall deal with the first contention reading the
\norder of appointment of the appellant  as  Assistant  Public
\nProsecutor which runs as under :\n<\/p>\n
 Government Of Orissa<\/p>\n
 Law Department<\/p>\n
No.XX 11126\/L dated BBSR, the 14th August, 1995<\/p>\n
From<\/p>\n
 Shri II.Mohapatra, OS,J.S.(Sr.Br.)
\n Legal Remembrancer.\n<\/p>\n
To<\/p>\n
 The District Magistrate, Mayubhanj.\n<\/p>\n
Sub :\tAppointment of Asst.Public Prosecutors for the
\n\tdistrict of Mayurbhanj.\n<\/p>\n
Sir,<\/p>\n
\tI am directed to say that Govt. have been pleased to
\nappoint the following Advocates as  Asst.Public\t Prosecutors
\nprovisionally  under  Rules  5(4) of the Orissa Law Officers
\nRules, 1971 read with Sec. 25  of  the\tCr.  P.C.,  1973  to
\nconduct the criminal cases in the courts of magistrates both
\nJudiciary  and Executive with places shown their names until
\nfurther orders.<\/p>\n
\n\n\t1 to 3. xxx xxx xxx\t\tA.P.P.Baripada\n\t   4.\tShri Rabi Nayak\t\t     - do -\n\t   5.\txxx xxx xxx\t\t     ****\n\n<\/pre>\n
The A.P.Ps are eligible\t to  get  daily\t fee  of  Rs.  100\/-
\n(Rupees\t one  hundred  only) subject to such restrictions as
\nare provided in Orissa Law Officers Rules, 1971.\n<\/p>\n
\tThe appointment is purely temporary and liable to be
\nterminated at any time without notice.\n<\/p>\n
\tThe person concerned may be intimated accordingly.\n<\/p>\n
\t\t\t\t\tYours faithfully,<\/p>\n
\t\t\t\t\t      sd\/-\n<\/p>\n
\t\t\t\t\tLegal Remembrancer”\n<\/p>\n
\tThe order refers to Section 25\tCr.  P.C.  and\trule
\n5(4)  of  the  Rules.  Section\t25  of\tthe Code of Criminal
\nProcedure imposes an obligation on the State  Government  to
\nappoint\t in  every  district Assistant Public Prosecutor for
\nconducting prosecution in the Courts  of  Magistrates.\tRule
\n5(4) of the Rules in in the following terms :\n<\/p>\n
\t“In  case  of  any  contingency\t arising  due  to
\n\ttemporary absence or vacancy in the office of the
\n\tLaw Officer for any reason whatsoever, subject to
\n\tthe provisions contained in Section 492(2) of the
\n\tCriminal Procedure Code, 1898,\tthe  State  Govt.
\n\tmay  appoint  a\t Law Officer temporarily till the
\n\treturn of the existing incumbent or  the  vacancy
\n\tis filled up, as the case may be.”\n<\/p>\n
\tA  perusal  of\tthe rule quoted above leaves no room
\nfor any doubt that it provides\tfor  appointment  of  a\t Law
\nOfficer\t in two contingencies : (i) temporary absence of the
\nexisting incumbent, and (ii) vacancy in the  office  of\t law
\nofficers for whatever reason. An appointment made under this
\nrule  is  terminable on the return of the existing incumbent
\nor on the vacancy being filled up, as the case may be.\n<\/p>\n
\tA plain reading of the order of appointment  of\t the
\nappellant  and\tthe  aforementioned provisions shows that in
\ndischarge  of  the  statutory  obligation  the\tState  Govt.
\nappointed  him\talong  with  others  as\t an Assistant Public
\nProsecutor provisionally and that it  is  purely  temporary,
\nterminable at any time without notice.\n<\/p>\n
\tWe  shall  now\tconsider whether such an appointment
\nwill fall within the clutches of Section 45(I)(i)  which  is
\nextracted below :\n<\/p>\n
\t“45(1).\t Disqualification  for\tbecoming a member
\n\tand continuing as a member – A person  shall  not
\n\tbe eleigible to stand for election under sub-sec.
\n\t(1) of Sec. 16 if he –\n<\/p>\n
\t(i) holds any office of profit under the State or
\n\tCentral Govt. or any local authority.”\n<\/p>\n
\tThe phrase “holds any office of profit” employed  in
\nthis clause  is\t the  bone  of\tcontention.   The expression
\n“office of profit’ only means an office which yields  income
\nor  profit;  the  word\t‘office’  had been subject matter of
\njudicial consideration as long back as in 1922.\t   In  Great
\nWestern Railway Co.    vs.   Bater [(1922) 8 Tax Cases 231],
\nRowlatt.J.  defined the term “office” or “employment” as one
\nsubsisting permanent,  substantive  position  which  had  an
\nexistence  independent\tfrom  the person who filled it which
\nwent on and was filled in succession by successive  holders.
\nThis  was  approved  by\t the  House of Lords in MeMillan vs.
\nGuest (1942) AC 561.\n<\/p>\n
\tThe  Constitution  Bench  of  this  Court  in  Kanta
\nKathuria vs.  Manak Chand Surana<\/a> [AIR 1970  SC\t694]  quoted
\nwith  approval\tthe aforementioned exposition of ‘office’ by
\nRowlatt.J.   In\t that  case  the  question  was\t whether  an
\nadvocate appointed as a Special Govt.  Pleader to assist the
\nGovt.  Pleader in a particular case, hold “office of profit”
\nunder the  Govt.   and hence incurred disqualification under
\nArticle 191 of the Constitution of India.   Relying  on\t the
\nsaid   exposition,   the  minority  view  was  expressed  by
\nHidayatullah, CJ.  (speaking for himself and Mitter,J.) thus<\/p>\n
\t“What matters is that was an office created apart
\n\tfrom Mrs. Kathuria. It is in evidence that it was
\n\tfirst  held  by\t Mr.  Maneklal\t Mathur\t  another
\n\tadvocate.  It is likely that if Mrs. Kathuria had
\n\tdeclined some one else\tcould  have  been  found.
\n\tTherefore,  there  was\tan  office which would be
\n\tsuccessively held; it  was  independent\t of  Mrs.
\n\tKathuria  who  filled  it,  it\twas a substantive
\n\tprostion  and  as  permanent   as   supernumerary
\n\toffices\t are. Every one of the tests laid down by
\n\tRowlatt.J. are found here.\n<\/p>\n
\t\tWe would therefore, hold  that\tthe  High
\n\tCourt  was  right  in  its  conclusion\tthat Mrs.
\n\tKathuria  hald\tan  office.  Since  there  is  no
\n\tdispute\t that  it  was\tfor  profit and under the
\n\tState, the election of Mrs. Kathuria must be held
\n\tto be void as she was disqualified to  stand  for
\n\tthe election.”\n<\/p>\n
In  coming  to\tthat conclusion, the learned Judges followed
\ntheir own judgment in Mahadeo vs. Shantibai  [1969  (2)\t SCR
\n422]  wherein it was held that the appellant therein who was
\non the panel of lawyers\t prepared  by  the  Western  Railway
\nAdministrations, held office of profit under the Govt.\n<\/p>\n
\tBut  Sikri.J.  speaking\t for  the  majority,   after
\nreferring  to  the  same  exposition of the term ‘office’ as
\nwell as the observations of Lord Atkin and  Lord  Wright  in
\nMemillan’s case (supra) observed.\n<\/p>\n
\t“There\twas  no\t doubt\tthat if her engagement as
\n\tSpecial\t  Government\tPleader\t   amounted    to
\n\tappointment  to\t an office, it would be an office
\n\tof profit under the State  Govt.    of\tRajasthan
\n\t……\n<\/p>\n
\tTherefore  no  particular  significance\t can   be
\n\tattached  to the notification made under Rule 813
\n\tappointing  the\t appellant   as\t  Special   Govt.
\n\tPleader.  We  cannot  visualise\t an office coming
\n\tinto existence, every time a pleader is asked  by
\n\tthe  Govt  to appear in a case on its behalf. The
\n\tnotification of his name under Rule 813 does  not
\n\tamount to the creation of an ‘office’.”\n<\/p>\n
The  difference\t of  opinion  between  the  majority and the
\nminority is on the question whether by the notification\t the
\nGovt.  created\toffice\tof Special Govt.  Pleader but not in
\nregard to meaning of the expression ‘office of\tprofit’\t and
\nthe application of the tests enunciated by Rowlatt.J.\n<\/p>\n
\tIn  a  subsequent judgment of this Court in Madhukar
\nG.F.Pankakar vs. Jaswant Chobbildas Rajani &  Ors.<\/a>  [AIR1976
\nSC 2283], the enunciation of Rowlatt. J. and observations of
\nthe  House  of\tLords  in Memillan’s case, referred to above
\nwere relied upon to hold that a Medical Practitioner working
\nas a  panel  doctor  appointed\tunder  the  Employees  State
\nInsurance  Scheme  did not hold “office of profit” under the
\nState Govt. so as to attract disqualification under  Section
\n16(1)(g)   of  the  Maharashtra\t Municipalities\t Act,  1965.
\nKrishna Iyer,J. speaking for the Bench concluded :\n<\/p>\n
\t“The critical test of independent existence of
\n\tthe position irrespective of the  occupant  is
\n\tjust  not  satisfied………….we are unable
\n\tto hold that there is an  ‘office  of  profit’
\n\theld   by   him\t  and\tthat   he   is\t‘under
\n\tgovernment’.”\n<\/p>\n
\tFrom  the  above discussion it follows that to incur
\ndisqualification under Section 45(1)(i) of the Act  it\tmust
\nbe  shown  that\t :  (i)\t there\twas  a\tpermanent  office of
\nAssistant Public Prosecutor (ii) income\t or  profit  accrued
\nfrom that office and (iii) the appellant held that office.\n<\/p>\n
\tNow adverting to the facts of this case, there is no
\ncontroversy that permanency  is\t attached  to  the  post  of
\nAssistant  Public  Prosecutor and appointment to that office
\nis regulated by the Rules which deal with  the\tremuneration
\nof the\tlaw  officers.\t It is immaterial that the appellant
\ndid not in fact receive any fee.  Requirements (i) and\t(ii)
\nare therefore,\tsatisfied.  The appointment of the appellant
\nas a Law Officer Assistant Public Prosecutor under the Rules
\nwould satisfy the third requirement as well.\n<\/p>\n
\tHowever, Mr.\t  Das  would  contend  that  as\t the
\nappointment of the appellant was a stop gap  arrangement  it
\ncould  not  be\tsaid  that  he was holding office of profit.
\nThis contention is devoid of merit.   From  what  is  stated
\nabove  it  is  clear that to fulfill the requirements of the
\nsaid expression it must be shown that permanency is attached
\nto the office and not to the term for which a  person  holds
\nit.   Persons who fill the office come and go in succession.
\nOne may succeed the other after\t a  long  gap  or  in  quick
\nsuccession.  How long nor remains in office is irrelevant to
\ndecide whether\the  holds  it as office of profit.  We have,
\ntherefore, no hesitation is concluding\tthat  the  appellant
\nwas  holding  office  of profit on the relevant date and was
\nnot eligible to stand for election of member or Chairman  of
\nthe  Panchayat Samiti and in view of the provision of clause\n<\/p>\n
(i) of sub-section (2) of Sec 45 he  shall  cease  to  be  a
\nmember afortiori to be the Chairman of the Samiti.\n<\/p>\n
\tWe find\t no  merit   in the second contention of the
\nlearned counsel as well. To apprcciate\tthis  contention  it
\nmay  be\t useful to refer to the provisions of Chapter VIA of
\nthe Act which was  inserted  by\t Orissa\t Act  24,  1961.  It
\ncontains 17 sections (44A to 44R) dealing with the filing of
\nelection  petition,  grounds  on  which\t the  election\tof a
\nreturned candidate can be declared void the procedure to  be
\nadopted by the Election Commissioner and all allied matters.
\nThe Election Petition has to be filed before the Subordinate
\nJudge having jurisdiction over the place where the office of
\nthe  Smiti  is\tsituated.  The\tgrounds\t for  declaring\t the
\nelection void are  enumerated  in  clauses  (a)\t to  (c)  of
\nsub-section  (1)  of  Sec.  44-L.  Clause @ incorporates the
\nground on which the appellant is sought to be  dislodged  by
\nfiling an application under Section 45-B. Sec. 44-L @ of the
\nAct reads as under.\n<\/p>\n
\t“44-L Ground for declaring election  void  –  (1)
\n\tThe   Election\tCommissioner  shall  declare  the
\n\telection of a returned candidate void, if  he  is
\n\tof the opinion –\n<\/p>\n
\t “@  that  such\t person disqualified for election
\n\tunder the provisions of this Act.”\n<\/p>\n
This provision confcrs prwer on the Election Commissioner to
\ndeclare the election of a returned candidate void if  he  is
\nof  the\t opinion  that such person is disqualified on any of
\nthe grounds mentioned in sub-section (1) which includes that
\nsuch  person  was  disqualified\t for  election\t under\t the
\nprovisions  of\tthe Act. Sec 45 contains the list of various
\ndisqualifications for a person to become or continue to be a
\nmember of the Samiti. We have held above that the  appellant
\nsuffered disqualification under Sec. 45 (1)(i) of the Act.\n<\/p>\n
\tSection\t 45-B  which  empowers the District Judge to
\ndecide the question of disqualification is quoted hereunder:
\n\t“45-B.\tDistrict  Judge\t to  decide  question  of
\n\tdisqualification :-\n<\/p>\n
\t(1)\tWhenever it is alleged that any member of
\n\ta  Samiti  is  or  has\tbecome\tdisqualified,  or
\n\twhenever any such  member  is  himself\tin  doubt
\n\twhether\t or  not he is or has become disqualified
\n\tsuch member or\tany  other  member  may\t and  the
\n\tChairman at  the  request  of the Samiti.  shall,
\n\tapply to the place where the office of the Samiti
\n\tis situated, for a decision on the allegation  or
\n\tdoubt.\n<\/p>\n
\t (2)\tThe  District  judge,  after  holding an
\n\tenquiry in the prescribed manner shall\tdetermine
\n\t whether  or  not  such\t member\t is or has become
\n\tdisqualified and his decision shall be final.\n<\/p>\n
\t(3)\tPending such decision the member shall be
\n\tentitled to act as if he was not disqualified.”\n<\/p>\n
Sub-section  (1) of Section 45-B provides that if it is alleged
\nthat any member of a Samiti is or has become disqualified, then
\nthe member himself if he is in doubt as to whether or not he is
\nor has become disqualified or any other\t member\t may,  and  the
\nChairman  of  the  Samiti,  at the request of the samiti, shall
\napply to the District Judge having jurisdiction over the  place
\nwhere  the office of the samiti is situated and seek a decision
\non the allegation or  doubt.\tSub-section  (2)  empowers  the
\nDistrict  Judge to determine the disqualification of the member
\nand  attaches  finality\t to  the   decision   given   by   him.
\nSub-section  (3)  entitles  the\t concerned  member  to act as a
\nmember as if he was not disqualified during the pendency of the
\nproceedings before the District Judge.\n<\/p>\n
\tHaving\tgiven  a  resume  of relevant provisions of the
\nAct, we shall proceed to consider whether in view  of  specific
\nmachinery  provided  under  Chapter  VI-A  to deal with matters
\nconnected with election of member\/Chairman,  a\tpetition  under
\nsection\t  45-B\tis  maintainable  after\t the  election\tof  the
\nappellant.  The Election Petition under\t Section  44-A\tcan  be
\nfiled by any candidate who need not be a member (Section 44-C);
\nbut  an\t application  under  Section 45-B can be filed as noted
\nabove by a member of the Samiti\t who  is  in  doubt  about  his
\nincurring  disqualification  the  Chairman of the Samiti at the
\nrequest of the Samiti or any  other  member.\tWhereas\t in  an
\napplication under Section 44-A a candidate can claim not only a
\ndeclaration  that  the\telection  of all or any of the returned
\ncandidates is void but\talso  a\t further  declaration  that  he
\nhimself or any other candidate stands duly elected Section 45-B
\nis  not\t concerned  with  either declaring the election void or
\ngranting any consequential declaration as to who has been  duly
\nelected.   It  merely  enables the persons specified therein to
\ninvite a decision on the  question  of\tdisqualification  of  a
\nmember.\t  Though  disqualifications  mentioned in Section 45 of
\nthe Act are one of the grounds under Section 44-L on which  the
\nElection  Commissioner\tcan  declare the election of a returned
\ncandidate void; there are also other grounds on which  election
\nof returned  candidate\tcan  be declared void.\tYet those other
\ngrounds cannot be the subject matter of\t an  application  under
\nSection 45-B.  Whereas the election petition under Section 44-A
\nhas  to\t be  filed  within  15 days after the date on which the
\nresult of the election was announced on period of limitation is
\nprescribed for an application under Section  45-B;  it\tcan  be
\nfiled at any time while the member continues to act as a member
\nof the\tPanchayat Samiti.  There is no doubt that there is some
\noverlapping between the two sections but field of operation  of
\nthese two  Sections  is\t different  and distinct.  Indeed under
\nsection 45-B a District\t Judge\tis  not\t pronouncing  upon  the
\nvalidity  of  the  location  but  is  only pronouncing upon the
\nquestions to whether a member is  or  has  become  disqualified
\nunder the  Act.\t   It  cannot be laid down that on relief under
\nSection 45-B can be claimed after the declaration of the result
\nof election.\n<\/p>\n
\tFor the above reasons, we have no hesitation in holding
\nthat the remedy of filing election petition under Section  44-A
\nis no bar to file application under Section 45-B of the Act for
\ninviting  a  decision  on the question of disqualification of a
\nmember.\n<\/p>\n
\tIn the result, we confirm the order  under  appeal  and
\naccordingly dismiss the same with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rabindra Kumar Nayak vs Collector, Mayurbhanj, Orissa & … on 19 February, 1999 Author: Quadri.J. Bench: K.T.Thomas, Syed Shah Quadri PETITIONER: RABINDRA KUMAR NAYAK Vs. RESPONDENT: COLLECTOR, MAYURBHANJ, ORISSA & ORS. DATE OF JUDGMENT: 19\/02\/1999 BENCH: K.T.Thomas, Syed Shah Mohammed Quadri JUDGMENT: QUADRI.J. Leave is granted. The question that arises in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-46260","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRabindra Kumar Nayak vs Collector, Mayurbhanj, Orissa & ... on 19 February, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rabindra-kumar-nayak-vs-collector-mayurbhanj-orissa-on-19-february-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rabindra Kumar Nayak vs Collector, Mayurbhanj, Orissa & ... on 19 February, 1999 - 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