ASHOK KUMAR BHATTACHARYYA versus AJOY BISWAS AND ORS.

Citation: [1985] 2 S.C.R. 50 · Decided: 15-11-1984 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Cited by 4 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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ASHOK KUMAR BHATIACHARYYA 
v. 
AJOY BISWAS AND ORS. 
Nov1mber 15, 1984 
(S. MURTAZA FAZAL ALI, A. VARADARAJAN AND 
SABYASACm MUKHARJI JJ.] 
Constitution •I Inaia 1950, Artie/es 102(2) (a) and 191(/) (a). 
'Office of profit under government'-Who is holder of such office-A holder 
of the office of profit under an1 authority or local authority subject to the Control 
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of the "State or Central Government-Whether disqualified from becoming a 
Member of Parliament. 
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Word• and Phrases 'Office of profit under the government of India or the 
Government of any State-Mellllint •/-Articles 58, 102(1) (a) and 191(1) (a) 
Constitution of India, 1950. 
Respondent No. 1 was employed in the Agartala Municipality and held 
the post of an Assistant Accountant. The Commissioners of this Municipality 
were superseded by an order or the State Government under Section 553 or the 
Bengal Municipal Act, 1932 as extended to the State of Tripura in 1975. Respon· 
dent No, 1 who was under suspension at the time of superscssion was dismissed 
from service in the disciplinary proceedings against him by the Administrator of 
the Municipality on 20th December, 1975. The State Government confirmed the 
order of dismissal. Respondent No.- 1 was however reinstated to the post 
of Accountant-in·chargc on 6th May, 1978 With immediate effect by the 
Administrator. 
Respondent No. I contested the mid.term Lok Sabha election held in 1980 
from the West Tripura Parliamentary Constituency, and was declared elected on 
8th January, 1980. 
The appellant who was a voter filed an Election Petition in the High 
Court contending that respondent No. 1 was disqualified for being elected as a J 
member of the House of People aa he held an office of profit under the Govern· -
ment of Tripura within the meaning of Article 102(1){a) of the Constitution. The 
Hiah Court dismissed the petition holding that Respondent No. I did not hold 
an office of profit under the aovernment of Tripura. 
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A. K. BHAlTACHARYYA V. AJOY BTSWAS 
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In the appeal to this Court on the question : whether respondent No. 1 
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hdd •n office of profit under sub-clause (a) of Clause (I) or Anicle 102 of the 
Constitution. 
Dismissing the Appeal. 
HELD: 1. \Vhether in a particular case a person holds an office or profit 
under the government or not must depend upon the facts and circumstances of 
the relevant provisions. To make in all cases employees of local authorities 
subject to the control of Government, holders of office or profit under the 
Government wouid be to obliterate the specific differentiation made under 
Atticle 58(2) of the Constitution and to extend disqualification under Article t02 
(l)(a) to an extent not warranted by the language of the Article. (62 E-F] 
In the instant case, having regard to the provisions of_ the Bengal Munici-
pal Act, 1932 as extended to Tripura, the Government does not control officers 
like respondent No. 1 and he continues to ~e an employee of the Municipality 
though bis appointment is subject to the confirmation by the Government. He 
does not cease to be an employee of the Municipality. Local authority as such 
or any other authority does not cease to become independent entity separate 
from Government. [62 D-C] 
2. Respondent No. 1 was not at the relevant time a holder of office or 
profit under the Government. Some amount of control is reco&nised even in a 
local authority which is taken account of under Article SS. The High Court 
rigbly held that respondent No. 1 did not hold office or profit under_ the Govern· 
ment of Tripura on the date of filing of the nomination on an analysis or 
relevant provisfons of the Act. [ 62 0-H) 
3. The object of enacting provisions like Article 102(1)(a) and Article 
191(1)(a) is that a person who is elected to a Legislature or Parliament should be 
free to carry on his duties fearlessly without being subjected to any kind of 
government pressure. ·The term 0 office of profit under the Government" used 
in clause (a} is an expression of wider import than a post held under the Govern-
ment which is dealt with in Part XIV of the Constitution. The measure or 
control by the Government over a local authority 1.hould be judged in order to 
eliminate the possibility of a conflict between duty and interest and to maintain 
the purity of the elected bodies. (61 G-HI, 
. 
4. It will be clear from reference to ItemrS in List Il of VII Schedule of 
the Constitution that Muni

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