Dismissed

Tukaram Kshemchandra Redkar v. Sanjay Shanker Mandrekar

Bombay HC12 Feb 2014WP/747/2013

Case brief

AI extract

What is this about?

Writ petition challenging the setting aside of a municipal councillor's election on the ground that he held an office of profit under the Government as a primary teacher in a government-aided school whose management had been taken over by the Government. The High Court upheld the disqualification under Section 16(1)(i) of the Municipalities Act and dismissed the petition.

What the court decided

AI extract

Tukaram Kshemchandra Redkar Vs Sanjay Shanker Mandrekar — Election Law | Bombay HC (2014)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 747 OF 2013

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Tukaram Kshemchandra Redkar, major in age, r/o. H. No. 13/278, Jetty, Mormugao, Harbour, Goa.

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….. Petitioner.

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Versus

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Sanjay Shankar Mandrekar, major of age, r/o. H. No. 353, Upper Jetty, Mormugao, Goa. ….. Respondent.

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Mr. V. A. Lawande, Advocate for the Petitioner.

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Mr. S. Karpe, Advocate for the Respondent.

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CORAM : U. V. BAKRE, J. RESERVED ON : 15^th January, 2014. PRONOUNCED ON : 12^th February, 2014.

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JUDGMENT :

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Heard Mr. Lawande, learned Counsel appearing on behalf of the petitioner and Mr. Karpe, learned Counsel appearing on behalf of the respondent.

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Rule. Rule made returnable forthwith. By consent heard

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forthwith.

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By this petition, the petitioner has taken exception to the

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judgment and order dated 21/10/2013 passed by the learned District Judge – I, South Goa, Margao (Trial Court) in Election Petition No. 1/2010/I.

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Since 25/09/1989, the petitioner is working as a primary teacher in a Government Aided School which was managed and administered by Shree Susenashram Education Society (the Society). The said school has been taken over by the Government under subsection (1) of Section 20 of the Goa, Daman and Diu School Education Act, 1984 (the Education Act) as from 04/05/2010. The Chief electoral Officer, for the State of Goa, vide notification published in the Official Gazette dated 04/10/2010, under the provisions of Goa Municipalities Act, 1969 (the Municipalities Act), declared the electoral process for the Municipal Councils and to elect Councilors, including for Mormugao Municipal council. Petitioner filed his nomination and in the election held on 31/10/2010, he was duly elected as the Councilor, as he was declared as Returned Candidate to fill the seat of Ward No. 5 of Mormugao Municipal Council.

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5. The election of the petitioner was challenged by the respondent on 12/11/2010 before the District Court at Margao, under Section 22 of the Municipalities Act, inter alia, on the ground that the petitioner was disqualified to be chosen as a Member of the Municipal Council since he is employed as Primary Teacher in a Government

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Aided School established by the Society, the managment of which school has been taken over by the Government. It was alleged that the petitioner holds an Office of Profit under the Government of Goa and hence was disqualified to contest Municipal election in terms of Section 16 of the Municipalities Act. The said Election Petition was registered as Election Petition No. 1/2010/I.

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The petitioner filed written statement and contested the Election Petition, inter alia, on the grounds:- that he had not incurred any disqualification; that the society is a Private Registered Society registered under the Societies Act, which is neither the Department of the Government nor Office of the Government and also not an instrumentality of the Government; that the said society is an independent body having its own bye laws and management and that although by virtue of Grant-in-Aid, the salaries paid to the petitioner by the Society are out of the grants received by the Society from the Government of Goa, he, however, is not directly paid by the Government or by the Director of education; that receiving of salary in the above manner does not amount to holding an Office of Profit, as alleged; that the Education Act and the Rules made thereunder do not control or govern the services of the petitioner as a Primary Teacher of the Government of Goa; that it is only the appointing Authority, which is the Management which can remove the petitioner from service and as such, examining the entire Scheme of the Education Act and the

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Rules, under no circumstances can it be held that the petitioner is holding Office of Profit under the Government.

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Issues were framed by the Trial Court based on the rival contentions of the parties. Vide the impugned judgment, the learned Trial Court held that the final authority of termination or suspension of any employee is the Director of Education, who is the employee of the Government and without whose approval no such suspension or termination can be made. He further observed that the Director is authorised to direct the management to fix the salaries of the employees and the management is bound to comply with the same. Learned Judge further observed that the salary is paid to the petitioner from the Government fund on monthly basis. He further held that the Director who is a Government Employee has direct control over the appointment, service conditions, suspension and termination of the petitioner from service. He held that the petitioner, from the day the Director of Education took over the management of the school, would remain in service at the sweet will of the Government. The Trial Court, relying upon the judgment of the Hon'ble Supreme Court in the case of

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“Biharilal Dobray, V/s. Roshan Lal Dobray” reported in AIR 1984 SCC 385, held that for all purposes the petitioner was holding his Office under the Government. Consequently, the petition was allowed and it was ordered that the petitioner stands disqualified in view of the provision of Section 16(1)(i) of the Municipalities Act. The said

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judgment and order dated 21/10/2013 passed by the Trial Court is impugned in the present petition.

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Section 16 (1) (i) of the Municipalities Act reads as under :

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“ 16. Disqualifications for becoming a Councillor . —

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(1) No person shall be qualified to become a Councillor by election, who—

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(a) ….............

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(b) …............

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(i) is a subordinate officer or servant of the Government

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or any local authority or holds an office of profit under

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the Government or any local authority.

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Mr. Lawande, learned Counsel appearing on behalf of the petitioner, while assailing the impugned judgment, submitted that admittedly the petitioner is not a subordinate officer or the servant of the Government or any local authority. He submitted that the only question is therefore whether the petitioner holds an Office of Profit and if yes whether it is under the Government. He submitted that the judgment of the Apex Court in the case of “Biharilal Dobray” (supra) is not applicable to the present case. He submitted that the true tests are whether the Government is the appointing authority and whether the Government has authority to dismiss the petitioner from services. He submitted that admittedly the petitioner is not appointed by the Government and Government has no authority to dismiss him from

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services. He pointed out that in the case of “Biharilal Dobray” (supra), the respondent Roshan Lal was holding the post of assistant teacher and the appointing authority in respect of assistant teachers was the District Basic Education Officer who was an officer appointed by the Government. He further pointed out that in the case of “Bihari Lal Dobray” (supra), the final control of the school was vested in the Government. He further submitted that what has been taken over by the Government on 04/05/2010 is the Management of the school and the same is temporary but the petitioner still remains the employee of the school and his service conditions have not been varied. He submitted that merely because the petitioner is an employee of the Government Aided School, he cannot be held to be holding the Office of Profit under the Government. According to him, therefore, the impugned judgment is perverse and liable to be quashed and set aside.

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10 . Mr. Lawande, learned Counsel appearing on behalf of the petitioner relied upon the following judgments:

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(i). Aklu Ram Mohto V/s. Rejendra Mohto [(1999) 3 SCC 541]

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(ii). Satrucharla Chadrasekhar Raju V/s. Vyricherla Pradeep Kumar Dev and another [(1992) 4 SCC 404]

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(iii). Krishnappa V/s. Narayansingh and others [1953 Election Law Reports (Vol-VII), page 294]

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11 . On the other hand, Mr. Karpe, learned Counsel appearing on behalf of the respondent, while supporting the impugned judgment, vehemently contended that the judgment of the Supreme Court in the case of “Biharilal Dobray” (supra) fully applies to the present case. He submitted that for holding an Office of Profit under the Government, a person need not be in the service of the Government. He further submitted that there are several tests to determine whether a person holds an Office of Profit under the Government but it is not necessary that all the tests should be satisfied. He read out paragraph 5 of the judgment in the case of “Biharilal Dobray” (supra) and submitted that most of the tests mentioned herein are satisfied in the present case. According to him, there is no need of full control of the Government and even indirect control is sufficient. He pointed out that as from 04/05/2010 i.e. from a date prior to the filing of nomination papers for election, by the petitioner, the Management of the school wherein the petitioner is employed as a teacher was taken over by the Government. He invited my attention to the document at Exhibit-34 which reveals that the salary to the petitioner is paid from the Government funds on a monthly basis and a cheque is drawn in the name of Assistant Director of Education. He read out paragraph 8 of the judgment of the Apex Court in the case of “Aklu Ram Mahto” (supra) and submitted that this judgment in fact helps the respondent. According to him, the judgment of Election Tribunal in the case of “Krishnappa” (supra) is not applicable as the facts are totally

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different. He, therefore, urged that there is no perversity in the impugned judgment and order. He relied upon the case of “Jai Singh and others v/s. Municipal Corporation of Delhi and another” reported in (2010) 9 SCC 385, wherein the nature and scope of power under Article 227 has been explained by the Apex Court. He, therefore, urged that the Writ Petition bears no substance and should be dismissed.

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I have perused the material on record. I have considered the submissions made by the learned Counsel for the parties and also the judgments relied upon by them.

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There is no dispute that in terms of Section 16(1)(i) of the Municipalities Act, as on the date of filing the nomination for the election, the candidate should not hold an Office of Profit under the Government. The object is to eliminate likelihood of such person succumbing to the wishes of Government and the possibility of a conflict between duty and interest and to maintain the purity of the Municipalities. The relevant portion quoted by the Trial Court, in the impugned judgment, from paragraph 21 of the judgment in the case of “Biharilal Dobray ”(supra) is as follows :

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“21. The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by the several other bodies or committees

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over it and their composition, the degree of its dependence on Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of Government. In this connection it is necessary to recall the provisions of Article 45 of the Constitution which require the State to endeavour to provide for free and compulsory education for all children until they complete the age of fourteen years. Primary education in a State unlike the higher education is the special responsibility of its Government and as observed earlier the Act was passed with the object of enabling the Government to take over all basic schools which were being run by the local bodies in the State and to manage them as provided specifically in section 4(2)(cc) of the Act and to administer all matters pertaining to the entire basic education in the State through the Board consisting mostly of officers appointed by the Government. The rules made regarding the disciplinary proceedings in respect of the teachers in the basic schools managed by the Board as observed earlier vest the final voice in the State Government or its Officers and almost the entire financial needs of the Board are met by the Government. The Board for all practical purposes is a department of the Government and its autonomy is negligible. Subsection (2) of section 13 of the Act on which emphasis is placed by the respondent is also not of much significance. It no doubt recognises the possibility of a dispute arising between the Board and

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the Government regarding the functions of the Board but that very sub-section provides that if any such dispute arises the decision of the State Government shall be final and it shall be binding on the Board.”

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In paragraph 5 of the judgment in the case of “Biharilal Dobray” (supra), on which much emphasis was laid by the learned Counsel for the respondent, the Apex Court has, inter alia, held as follows:

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“ The object of enacting Article 191(1)(a) is plain. A person who is elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the Government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of government. Article 191(1)(a) is intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the Legislatures. The term “office of profit under the Government” used in the above clause, though indeterminate, is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. For holding an office of

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profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such as whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterized as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this Court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government although the Court has no doubt determined in each case whether the

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particular office involved in it was such an office or not having regard to its features.”

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There can be no dispute about the principles laid down in the case of “Biharilal Dobray” (supra). The Apex Court has referred to the case of “Maulana Abdul Shakur Vs. Rikhab Chand” , (AIR 1958 SC 52), wherein it has been held that the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government, though payment from a source other than Government revenue is not always a decisive factor. The main tests laid down in the case of “Biharilal Dobray” (supra) can be said to be “whether the Government makes the appointment; whether the Government has the right to remove or dismiss the holder of the office; whether the Government pays the remuneration; whether the functions performed by the holder are carried on by him for the Government; and whether the Government has control over the duties and functions of the holder.”. Let us now see as to what were the factors due to which, in the case supra, the respondent Roshan Lal Dobray was held to be holding an office of profit under the State Government. The respondent Roshan Lal was working as an Assistant Teacher in a Basic Primary School run by the Uttar Pradesh Board of Basic Education Act, 1972. His

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nomination paper was rejected by the Returning officer by order dated 05/05/1980. The appellant, Biharilal Dobray, was declared elected. The Election Petition filed by the respondent before the Allahabad High Court, was allowed since the High Court was of the opinion that the post held by the respondent was not an Office of Profit under the State Government and the rejection of his nomination was improper. The election of the petitioner was declared as void. Therefore the petitioner, Biharilal Dobray, had approached the Apex Court by way of Appeal. The plea of disqualification of the respondent was based on Article 191 of the Constitution, the material part of which reads thus:

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“ 191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-

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(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First schedule, other than an office declared by the Legislature of the state by law not to disqualify its holder,...”

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In exercise of its powers under Section 19 of the Uttar Pradesh Basic Education Act, 1972, the State Government had framed the Uttar Pradesh Basic Educational Staff Rules, 1973, which were applicable to all the employees of the Board. The appointing authority in respect of the respondent who was an Assistant Teacher, was the District Basic Education Officer who was an officer appointed by the State

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Government. All the appointing Authorities and Appellate Authorities were either the State Government or officers appointed by the State Government. The said officers were all officers of the Government Department who held the posts in the Board ex officio, that is, by virtue of the corresponding posts held by them under the Government. The rules provided for the procedure to be followed in disciplinary proceedings and the punishments that may be imposed when an employee was found guilty of any act of misconduct. The procedure laid down in Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the Uttar Pradesh Government were required to be followed as far as possible in the case of the employees of the U. P. Board of Basic Education. The funds of the Board mainly came from the contribution made by the State Government. The Statement of Objects and Reasons attached to the Bill which was passed as the Act clearly said that the Act was passed in order to enable the State Government to take over the administration of schools imparting primary education which were being run by the local authorities into its own funds. Even though the representatives of local authorities were associated in the administration of such schools after the Act was passed, the final control of the schools was vested in the Government and such control was exercised by it through the Director and Deputy Director of Basic Education (Member Secretary) and other District Basic Education Officers appointed by the Government. Considering the above facts,

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in the light of which Roshan Lal was held to be holding office of profit under the State Government, in the case of “Biharilal Dobray” (supra), let us see if the petitioner falls in the same category for being disqualified on the ground that he holds office of profit under the state Government.

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The petitioner was appointed as primary teacher in the School run by the Society. The said School is admittedly a Government Aided School and the Government of Goa gives grant to the said School in terms of grant-in-aid Code and the salary of the staff members of the Society including teachers and administrative staff is paid by the said Society from the said grants received from the Government. The petitioner was drawing a salary of ` 2400/- per month as on the date of filing his nomination for election. The Education Act was enacted to provide for better organisation and development of School Education in the State of Goa and for matters connected therewith or incidental thereto. Admittedly, the Education Act is applicable to the School run by the Society. There are Goa Education Rules, 1986, made by the Government in the exercise of powers conferred by Section 29 of the education Act, which are applicable to the said School run by the Society.

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Section 5 of the Education Act provides for recognition of the School by appropriate authority. The appropriate authority in

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terms of Section 2(e) of the Education Act means the Administrator or any other officer authorized by him in this regard. The Administrator in terms of Section 2(a) of the Education Act means the Administrator of the Union territory appointed by the President under Article 239 of the Constitution. By virtue of Section 3 of the Education Act, the Administrator, by notification specifies the minimum scales of pay of the teachers of School whether recognized or not. Government has powers, under Section 4, to regulate education in Schools. In terms of Section 7 of the Education Act, the Government grants aid to such Recognized Schools. Section 11 of the Education Act provides for terms and conditions of service of employees of such Recognized Private Schools. Only a Recognized School is entitled to the aid from the Government. Without prior permission of the Director, no employee of an Aided School can be dismissed, removed, reduced in rank, compulsorily retired or his service otherwise terminated. In order that the Managing Committee of such Recognized Schools may suspend any of its employee, prior approval of the Director is necessary. If such approval is not taken within 15 days, the termination is deemed to be void. The Director is required to be satisfied of the reasonableness or adequacy of the ground of suspension of the employee. Section 12 of the Education Act says that the employees of the Recognized Schools shall be governed by the Code of Conduct as may be prescribed. It lays down certain things which should be mandatorily prescribed in the Code amongst other

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things. The employees are liable to disciplinary action as prescribed. Section 13 regulates the salaries of the employees. Section 18 regulates the admissions to Recognized Schools and Section 19 regulates the fees and other charges. Chapter IX of the Education Rules, more particularly, Rule 100 lays down the Code of conduct for the Heads of the Schools, teachers and employees.

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Thus, though the office of the petitioner is not created by the statute, however, the conditions of service of the petitioner are regulated by law and the petitioner's remuneration is paid out of a public fund.

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In the present case, what has further happened is that as from 04/05/2010 i.e. from a date prior to the date of filing of nomination papers for election by the petitioner, the Management of the Society has been taken over by the Government, under Section 20 of the Education Act, which provides as under:

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“20. Taking over management of school.- (1) Whenever the Administrator is satisfied that the managing committee or manager of any recognized school,

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(i) has contravened any provision of this Act or of any rule or order made thereunder, or

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(ii) has neglected to perform any duty or obligation

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imposed on it by or under this Act, or

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(iii) has mismanaged the affairs of the school or has misappropriated or has misapplied any money standing to the credit of any Fund of the School, or

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(iv) has managed the affairs of the school in a manner prejudicial to the public interest, or

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(v) has omitted or neglected to pay its share towards the medical facility, pension, gratuity, provident fund and other prescribed benefits of the employees of the school, in accordance with the provisions of sub-section (2) of section 13, or

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(vi) has closed down the school or any class or section of the school in contravention of the rules made under this Act or any order, direction issued thereunder, or

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(vii) has made a written representation expressing its inability to run the school, and that it is expedient in the public interest or in the interests of school education or in order to secure the proper management of the school to take over the management of such school, he may, after giving the managing committee or the manager of such school a reasonable opportunity of showing cause against the proposed action, take over the management of such school for a limited period not exceeding three years:

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Provided that, where the management of a school has been taken over for a period of three years or less, the Administrator may, if he is of opinion that in order to secure proper management of the school it is expedient

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that such management should continue to be in force after the expiry of the said limited period, he may, from time to time issue directions for the continuance of such management for such period not exceeding one year at a time as he may think fit, so, however, that the total period for which such management is taken over shall not, in any case, exceed five years.

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(2) Whenever the management of any school is taken over under sub-section (1), every person in charge of the management of such school immediately before its management is taken over, shall deliver possession of the school property to secure proper management to the Administrator or any officer authorized by him in this behalf.

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(3) After taking over the management of any school under this section, the Administrator may arrange to manage the school through the Director or any other person or body of persons authorized by the Director in this behalf, subject to such terms and conditions and on such remunerations as he may specify (hereinafter referred to as the authorized officer or authorized body, as the case may be).

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(4) Where the management of any school has been taken over under sub-section (1), the managing committee or manager of such school, may within three months from the date of taking over, make a representation to the Administrator, who may, after considering the said representation made by the managing committee or the manager pass such order, including an order for the restoration of the management or for the reduction of the

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period during which the management of such school shall remain vested in the Administrator, as he may deem fit.

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(5) Where the management of a school has been taken over under this section, the Administrator shall pay or cause to be paid such rent as may be payable for the building of the school to the person entitled to receive it as was being paid by the managing committee or the manager immediately before the management of such school was taken over.

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(6) During such period as any school remains under the management of the authorised officer or the authorised body,

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(a) the service conditions, as approved by the Administrator of the employees of the school who were in employment immediately before the date on which the management was taken over shall not be varied to their disadvantage;

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(b) all educational facilities which the school had been affording immediately before such management was taken over, shall continue to be afforded;

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(c) the School Fund, the School Staff Account Fund and the Pupils' Fund shall be made available to the authorised officer or authorised body, for being spent for the purposes of the school;

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(d) no resolution passed at any meeting of the managing committee of such school shall be given effect to unless,

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approved by the Government; and

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(e) the authorized officer or the authorized body shall have the right to open any account in any bank or to draw money from any Fund referred to in section 10. No person in charge of the management of the school at any time before the date on which the management of the school is taken over under sub-section (1) shall have such right.

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(7) If at any time on the application of the managing committee or manager of the school or otherwise it appears to the Administrator that the purpose for which the management of the school was taken over has been fulfilled or that for any other reason it is not necessary that the school should be continued to be managed by him, he may cancel the order made by him under sub-section (1) and, may restore the management of the school to its managing committee and thereupon the management of the control of the school shall vest in the managing committee.

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(8) Whenever the management of any school is taken over by the Administrator under this section, it shall be lawful for him to make such provisions with regard to the scales of pay and other conditions of service, seniority, pension and other retirement benefits of the employees on an equal footing with the employees of similar schools run by the Government.

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(9) If, on the expiry of the period specified under subsection (1) or the extended period specified under the proviso to that sub-section, the managing committee does

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not take over the management of the school, the Administrator shall, notwithstanding anything contained in sub-section (1), continue to remain in charge of the management of the school, and he shall, by a notice, require the managing committee to take over the management of the school. If the Administrator does not, within one month from the date of issue of the said notice, receive any reply thereto, he shall, within fourteen days after the expiry of the month, send to the managing committee of the school, by registered post, another letter, referring to the first letter, and stating that no reply thereto has been received and that if a reply to the second letter is not received within one month of the date of issue thereof, a notice shall be published in the Official Gazette declaring the society, trust or other association of individuals owing or managing the school to be defunct:

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Provided that any time within ten years from the date of publication of the notice in the Official Gazette, any rightful owner of the school comes forward to take over the management of the school and its assets, the Administrator shall transfer the school together with its assets and liabilities to such rightful owner and thereupon the school and its assets and liabilities shall cease to remain vested in the Government.

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(10) Where the management of an aided school has been taken over by the Administrator, the authority granting such aid shall continue to grant aid to the school.

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(11) Where the management of any school had been taken over by the Administrator before the commencement of

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this Act, and such management was continuing at such commencement, and managing committee of such school has not, after such commencement, taken any steps to take over the management of the school from the Administrator it shall be lawful for the Administrator to continue to manage such school and to grant aid to the school to the full extent admissible under this Act or the rules made thereunder.

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As per the order dated 04/05/2010, the management of the School has been taken over by the Government for a period of three years in the first instance and Smt. Sylvia D'Souza, Assistant Director of Education, South Education Zone, Margao, has been appointed as Authorized Officer, on behalf of the Director of Education, to conduct the activities of the School. In terms of this order, one of the things which the Authorized Officer has to ensure is that in case the employees, including the Headmaster, act/s in contravention of the instructions of the Authorized Officer or if there is any act of indiscipline or in subordination or flouting of the instructions issued by the Authorized Officer, such cases shall be dealt with as per the provisions of Education Act and the Rules made thereunder. No doubt, the petitioner is neither appointed by the Government nor by any officer appointed by the Government, but is appointed by the Society. But, now, since the Government has entered into the shoes of the management by taking over the same from the Society, the petitioner can be removed from service, reduced in rank, or compulsorily retired

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from service by the Authorized Officer, appointed by the Government, after complying with the relevant provisions of the Education Act and Rules. Thus, as from 04/05/2013, there is full control of the Government over the management of the School and in the matter of removal of the petitioner from service, or reduction of his rank or retiring him compulsorily, etc.. The activities of the Society are fully controlled by the officers of the Government, as from the date of taking over the management of the school, and the salary of the petitioner has been directly paid from the Government fund on monthly basis and the cheque is drawn in the name of Assistant Director of Education, South Education Zone, Margao. This is evident from the answer to the query supplied by the Deputy Director of Education to the petitioner vide Exhibit-34 under the Right to Information Act, which answer is, otherwise, not disputed. In my considered view, there is nothing wrong in the finding of the Trial court that the petitioner, from the day the Director of education took over the management of the School, would remain in service at the sweet will of the Government. This is certainly a decisive factor to hold that the petitioner is holding office of profit under the Government. It is true, as pointed out by the learned counsel appearing on behalf of the petitioner, that in terms of sub-section 6(a) of Section 20 of the Education Act, during such period as any school remains under the management of the authorised officer or the authorised body, the service conditions, as approved by the Administrator of the employees

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of the School who were in employment immediately before the date on which the management was taken over shall not be varied to their disadvantage. The Administrator can only make such provisions with regard to the scales of pay and other conditions of service, seniority, pension and other retirement benefits of the employees on an equal footing with the employees of similar schools run by the Government. That does not mean that the Authorized officer is helpless even in case of contravention of the instructions, any act of indiscipline or insubordination or flouting of the instructions, done by the petitioner. In such cases, the authorized Officer is entitled to deal with the petitioner, in the same manner as was the Society, as per the provisions of the Education Act. In terms of sub-section (7) of Section 20 of the Education Act, if at any time on the application of the managing committee or manager of the School or otherwise it appears to the Administrator that the purpose for which the management of the School was taken over has been fulfilled or that for any other reason it is not necessary that the School should be continued to be managed by him, he may cancel the order made by him under subsection (1) and, may restore the management of the School to its managing committee and thereupon the management of the control of the School shall vest in the managing committee. But, the fact remains that from 04/05/2013 till today, the entire management of the School is with the Government. Considering all the factors as above, merely because the petitioner was not appointed by the Government

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and because the Code of Conduct under Rule 100 of the Education Rules does not mention that a teacher is precluded from contesting any type of election, it cannot be held that the petitioner is not holding the Office of Profit under the State Government. The main factors appear to be that the petitioner is paid his salary by the Government from public fund; Government has authority to remove or reduce his rank or retire him voluntarily and entire activities of the management of the School are controlled by the Government. In all the circumstances above, the findings of the Trial Court that the Director of Education, who is the Government employee, has direct control over the appointment, service conditions, suspension, termination, etc. of the petitioner, and that from the day the Director of Education took over the management of the School, the petitioner would remain in service at the sweet will of the Government, appear to be correct and in no case can be termed as perverse. “Biharilal Dobray” case (supra) has been rightly applied by the Trial Court, to the petitioner.

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21 . In the case of “Satrucharla Chandrasekhar Raju” (supra), relied upon by the learned Counsel appearing on behalf of the petitioner, the appellant was a Single Teacher in a primary school run by the Integrated Tribal Development Agency (“ITDA”, for short) by its Project Officer. He filed nomination and contested election for the legislative assembly and was declared duly elected. The respondent

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no. 1 who was one of the contesting candidates and who lost the election, had filed an Election Petition challenging the election of the appellant on the ground that the appellant was disqualified as he was holding an office of profit not only on the date of filing the nomination but also subsequently in view of the fact that his resignation was not accepted in view of the pending inquiry and therefore he shall be deemed to be holding an office of profit under the Government. It was the contention of the appellant that ITDA was only a registered society and even assuming that the Government had some control over the sanction of posts and composition of the governing body of the ITDA, it could not be said to be the Government or part of it or to be an instrumentality of the Government and therefore the appellant could not be said to have been holding an office of profit. The learned Judge after referring to the relevant clauses of Memorandum of Association of the society held that: (i) although the society appeared to be independent of the State Government but in substance its activities were controlled by the officers of the Government who were ex-officio members of the governing body. The Chairman as well as the Project Officer were the officers of the State Government. A majority of the members of the governing body were the officers holding posts in the Government by virtue of which they became the ex-officio members of the governing body. Thus, for all practical purposes it was the officers of the Government who controlled the activities of the society; (ii) though the Project Officer was the

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appointing authority of the appellant but he was only a secretary of the society by virtue of his being an officer in the Government; (iii) the Government sanctioned the number of posts of teacher, fixed their scales of pay; (iv) although the rules provided to have funds of its own by way of recurring and non-recurring grants made by the Government of India but it was the Government who sanctioned the funds: (v) since the Civil Services (Classification, Control and Appeal) Rules of the State Government were being applied to the teachers of the society, they must be deemed to have been treated as the employees of the Government. The State had to provide free and compulsory education to all the children and primary education was also the responsibility of the State Government and it was meeting expenditures out of its funds. Therefore, the function of appointment of the teachers in the society by the Project Officer was one of the Governmental functions and thus the State Government exercised almost full control. For the aforesaid reasons, the High Court held that the appellant, in that case, was holding an office of profit and thus incurred the disqualification. It was contended before the Hon'ble Supreme Court by the learned Counsel for the appellant that the reasons given by the High Court by themselves, even if accepted to be correct, were not enough to conclude that the appellant was holding an office of profit and that one of the main tests was whether the Government has got power to appoint and to dismiss the appellant from service and that admittedly the Government had not the

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authority to dismiss him and this coupled with the fact that the society was a registered society would clinch that the society was not the Government or a part of the Government and that the appellant was not holding an office of profit under the Government. The Hon'ble Supreme Court, upon careful examination of the ratio laid down in various cases, observed that some of the tests or principles that emerge for determining whether a person holds an office of profit under the Government, are as under:

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(1) The power of the Government to appoint a person in office or to revoke his appointment at the discretion. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature.

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(2) The payment from out of the government revenues are important factors in determining whether a person is holding an office of profit or not of the Government, though payment from a source other than the government revenue is not always a decisive factor.

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(3) The incorporation of a body corporate and entrusting

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the functions to it by the Government may suggest that the statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent. Sometimes, the form may be that of a body corporate independent of the Government, but in substance, it may be the just alter ego of the Government itself.

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(4) The true test of determination of the said question depends upon the degree of control, the Government has over it, the extent of control exercised by very other bodies or committees, and its composition, the degree of its dependence on the Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of the Government.

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Thus, the Hon'ble Supreme Court, in the case of “Satrucharla Chandrasekhar Raju” (supra), observed that one of the main tests for determination of the question was the degree and extent of control i.e. direct or remote control over the ITDA by the Government particularly with reference to making the appointment of the persons in office or

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to revoke the same at its discretion. It has been held that the right to appoint and right to remove the holder of the office in many cases becomes an important and decisive test. It has been held that the source of payment for the office may also be taken into consideration but was not always a decisive factor and likewise control exercised by the Government may be one of the tests but by itself was not a decisive test. The Hon'ble Supreme Court referred to judgment in the case of “Biharilal Dobray” (supra) and found that the facts in that case were distinguishable. The Supreme Court found that the appointing authority of the teachers in the case of “Biharilal Dobray” (supra) was a District Education Officer and the State Government framed rules prescribing the conditions of service, tenure of service, remuneration and other terms including disciplinary action and removal of teachers and other employees who were thus appointed. It was held that “Biharilal Dobray” case (supra) was not of much assistance to the respondents. The Supreme Court further observed that in the case of “Biharilal Dobray” (supra) as well as in the case of “Ashok Kumar Bhattacharya” [(1985) 1 SCC 151], emphasis was also on the nature of the post held and the possibility of conflict between duty and interest of elected members and to appreciate the same, the test was whether a Government had power to appoint or dismiss the employee who was being chosen as a legislator. The Supreme Court found that the Government had some control over the ITDA which was set up as a project, since it provided funds and sanctioned the posts; the District

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Collector was appointed as Project Officer and some officers were exofficio members of the ITDA which carried out the object of providing the compulsory education in tribal areas. It was, however, found that the ITDA was a registered Society having its own constitution and though the Project Officer was the District Collector, he acted as a different entity. It was found that the power to appoint or to remove teachers was not with the Government but with the Project Officer. The Government may have control over the appointing authority but had no direct control over the teachers. The small post that appellant held in ITDA was only that of a Teacher who was directly under the control of the Project Officer. It was held that in such a situation, the question of any conflict between his duties and interests as an elected member did not arise since it could not be said that he, as a teacher, could be subjected to any kind of pressure by the Government which had neither the power to appoint him nor to remove him from service. Ultimately, it was held that the appellant could not be held to be holding an office of profit under the Government. The order of the High Court was set aside. In my considered view, since right to remove the holder of the office; the source of payment for the office and the degree of control are held to be important and decisive tests in the case of “Satrucharla Chandrasekhar Raju” (supra), the said case is not of much assistance to the petitioner.

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In the case of “ Aklu Ram Mahto” (supra), the observations

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made in the earlier case reported in AIR 1964 SC 2534, have been reiterated as follows:

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“In the case of “Guru Gobinda Basu v. Sankari Prasad Ghosal” (AIR 1964 SC 2534), the Court after examining earlier authorities enumerated various factors which enter into the determination of the question whether a person holds an office of profit under the Government. He holds an office of profit under the Government if the Government is:

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(1) the appointing authority;

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(2) the authority vested with power to terminate the appointment;

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(3) the authority which determines the remuneration;

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(4) the source from which the remuneration is paid; and

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(5) the authority vested with power to control the manner in which the duties of office are discharged.”

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The Hon'ble Supreme Court in the case of “Aklu Ram Mahato” (supra) held as under:

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“All factors need not be present. Whether stress will be laid on one factor or the other will depend on the facts of each case. But where several elements are present in a given case then the officer in question holds the office under the authority so empowered. This Court pointed out that the Constitution itself makes a distinction between "the holder of an office of profit under the Government" and "the holder of a post or service under the Government" (See Articles 309 and 314).

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The Constitution has also made a distinction between "the holder of an office of profit under the Government" and "the holder of an office of profit under a local or other authority subject to the control of the Government" [See Article 58(2) and 66(4)]. In Gurugobinda Basu's case (supra), the appellant was a chartered accountant. He was a partner of a firm of auditors. This firm acted as auditors of two companies amongst others. One of the companies was wholly owned by the Union of India and the second company was wholly owned by the West Bengal Government. The Court was required to consider whether the chartered accountant could be said to hold an office of profit under the Government. In this context this Court said that an office of profit under the Government need not imply that the person holding the office should be in the service of the Government. There need not be any relationship of master and servant. However, in that case the chartered accountant was appointed as an auditor of the two companies by the Central Government; he was removable by the Central Government; the Comptroller and Auditor General of India exercised full control over him and his remuneration was fixed by the Central Government although it was paid by the companies concerned. In this situation the Court said that he was holding an office of profit under the Government.”

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It has been held in the case of ”Aklu Ram Mahato” (supra)

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that the true tests of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by several other bodies or committees over it and their composition, the degree of its dependence on Government for its financial needs and its functional aspect, namely, whether the body is discharging any important governmental function or just some function which is merely optional for the Government. After considering judgments in various cases like “Biharilal Dobray” (supra), “Satrucharla Chandrasekhar Raju” (supra) , etc. the Apex Court held

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thus :

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“15. The Bokaro Steel Plant is under the management and control of the Steel Authority of India Ltd. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Government. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in Bokaro Steel Plant is under the control of the Steel Authority of India Ltd. Their remuneration is also determined by the Steel Authority of India Ltd. The functions discharged by the Steel Authority of India Ltd. or by the Bokaro Steel Plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Ltd. set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating,

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buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades and types. These objects also include rendering consultancy services to promote and organise an integrated and efficient development of iron and steel industry and to act as an agent of the Government / public sector financial institutions in the manner set out in the Objects clause. In this context a worker holding the post of a Khalashi or a Meter Reader is not subject to the control of the Central Government nor is the power of his appointment or removal exercised by the Central Government. Control over his work is exercised not by the Government, but by the Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government.”

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In the present case, all the tests necessary to hold that the petitioner is holding office of profit under the State Government, as enumerated in the judgment in the case of “Aklu Ram Mahato” (supra), except the one of power of appointment, are fulfilled. Therefore, there is force in the contention of the learned counsel appearing for the respondent that this authority in fact assists the respondent and not the petitioner.

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In the case of “Krishnappa” (supra), relied upon by the learned Counsel appearing on behalf of the petitioner, firstly it was

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found that the State of Madhya Pradesh did not directly pay the portion of the dearness allowance to the respondent no. 1 or any other teacher but it was paid out of the funds earmarked for the purpose and placed at the disposal of the management of the school for payment to the teachers and secondly it was found that the annual grant received by the School from the Government was mixed with the fund belonging to the School, and out of this amalgamated fund the teachers were paid their salaries. Thus, the facts of that case are totally different. However, the learned Counsel appearing on behalf of the petitioner relied upon the observation in Sir Thomas Erskine May's Treatise on “The Law, Privileges, Proceedings and Usage of the Parliament” which observation is as under:

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“ To determine whether a person held an office of profit under the government of a State or no, the real test would be whether the Government of the State had the power to appoint or dismiss such holder of office. The test of power of removal from office (and such Government would have the power to remove or dismiss him from office if it has the power to appoint him to such office) it must be held that the person holds that office under the Government of the State; and this is irrespective of whether the salary attached to the office is paid by the State or paid out of some other funds.”

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In the present case since as from 04/05/2010, the entire control of the School, in which the petitioner works as a teacher, is with the Government and since the Government is paying his salary and having stepped into the shoes of the management, has power to remove the petitioner or reduce his rank or compulsorily retire him after following the prescribed procedure, the above observation of Sir Thomas Erskine May cannot come to the rescue of the petitioner.

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29 . In the case of “Jai Singh and others” (supra), the nature and scope of power of the High Court under Article 227 of the Constitution of India has been considered. In paragraph 15 of the judgment, the Apex Court has observed observed thus :

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“ 15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under

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this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.”

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30 . In view of the discussion supra, in my view there is no perversity in the impugned judgment and order passed by the learned Trial Court and applying the principles laid down by the Apex Court in

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the case of “Jai Singh and others” (supra), there is no scope for interference. The election of the petitioner has been rightly held to be illegal and void and he has been rightly disqualified to be chosen as Councillor. Hence, the petition deserves to be rejected.

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31 . In the result, the petition is dismissed. Rule is discharged. No order as to costs, in the facts and circumstances of the case.

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U. V. BAKRE, J.

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Tukaram Kshemchandra Redkar v. Sanjay Shanker Mandrekar

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Tukaram Kshemchandra Redkar v. Sanjay Shanker Mandrekar

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