DIVYA PRAKASH versus KULTAR CHAND RANA & ANR.

Citation: [1975] 2 S.C.R. 749 · Decided: 18-11-1974 · Supreme Court of India · Bench: A. ALAGIRISWAMI · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
c 
D 
749 
DIVY A PRAKASH 
v. 
KULTAR CHAND RANA & ANR. 
November 18, 1974 
[A. ALAGIRISWAMI AND R. S. SARKARIA, JJ.] 
llimccha/ Pradtsh Board of School Education Act, 1969, ss. 10(18), 23(4), 
26(2) (i) and (P):--Chairman of Board-Appointed in honorary capacity-If 
holds office of profit within Art. 191 (I )(a) of Co11stitutio11. 
The respondent, who was elected to the State Legislative Assembly, was, at 
the time of filing nominations, Chairman of the Board of School Education 
of the State. having been nominated by the State Government 
under 
the · 
Himachal Pradesh Board of School Education Act, 1969. The Board passed 
a resolution, fixing a scale of pay for the post, but the order appointing the 
respondent made it clear that he was appointed only in an honorary capacity. 
On the question whether he was holding an <:>ffi:e of profit under the State 
Government and as such was disqualified for election under Art. 191 (I)( a) of 
the Constitution, 
HELD : (I) The Chairman of the Board is an office under the State Gov-
ernment but it is not an office of profit. The test for deciding whether the first 
respondent was holding an office -0f profit is whether he can sue for or otmrwise 
claim the scale of pay fixed by the resolution of the Board. In the face of 
the order of appointment such a. claim would not be upheld. 
[750G; 752F-G] 
(2) Assuming tMt the post itself carried a scale of pa:y the holding of the 
offi:e h~ not resulted in any profit to the first respondent. It is n0t even a 
case where the Chairman was appointed to an office and a salary. was provided 
by the order of appointment, and he gave up his right to the salar}'. (75 IA-Cl 
E 
( 3) Further. the Board was not competent to fix a scale of pay for the 
G 
H 
Chairman: (75!0] 
(a) Section 10(18) of the Act does not enable the Board to fix the scale 
of pay, because. fixing the scale of pay of the Chairman callnot be said to be 
an act ancillary to any of the purposes mentioned in els. (I) to (17) of the 
section or, to be ·one for the purpose of .:arrying into effect the provisions of 
the Act. (7510-E] 
. 
(b) Section 23 ( 4), which enables the Board to make regulations regarding 
qualifications, conditions of serviee and scales of pay of officers and servants · 
of the Board other than Secretary, Deputy Secretary and Assistant Secretary, 
would apply only to officers lower in rank than the officers mentioned. Otherwise, 
the A~t, while eonferring on the Government the power to specify the condi-
tion of service including the scale of ·pay of·Ass~nt Secretary, Deputy Secre-
tary and Secrettj, would be leaving to the Board to determine. the sea.le of PllY 
of the Chairman by clubbin,1: him along with Officers and servants Of the Boant 
lower in rank than an Assistant Secretary. [751F-752A] 
· 
(c) Section 26(2)(i) which relates to the power of the Board to mate 
regulations for the appointment of officers. .:Jerks and other servants and Ille 
conditions of their 'Service. cannot cover the Chairman, .because, there is· no 
question of the Board being. competent to deal with the appointment or condi· 
tions of servf~ of the Chairman. [752C] 
(d) Section 26(2)(p) which speaks of ·the emoluments and allowances of 
the members ol the Board and aU its committees, camiot refer. to tile Chair-
man, be;aUSe. -tinder the Act, there is · a distinction. between the Chairman and 
members; [752C-D]. · 
· 
750 
SUPREME COURT REPORTS 
[1975] 2 s.C:.R. 
( e) Moreover, though generally ·speaking, the pay of a person can be said 
A 
to be his emoluments the emoluments and allowa:nees referred to in cl. (p) 
cannot refer to a scale of pay, because, the Act does not contemplate any scale 
of pay for n\embers. 
[752D-El 
CIVIL APPELLATE JuR1smcnoN : Civil Appeal No. 1326 of 1973. 
From the Judgment & Order datey the 31st July, 1973 of the 
Himachal Pradesh High Court in Election Petition No. 10 of 1972. 
,B 
Yogeshwar Prasad, S. K. Bagga and Mrs. S. K. Bagga, for the appel-
lant. 
Hardyal Hardy, S. K. Mehta, K. R. Nagaraja and M. Qumaruddin, 
for the respondents. 
The Judgment of the Court was delivered by 
ALAGIRISWAMI, J. 
Elections were held in March 1972 to 
the 
Himachal Pradesh State Legislative Assembly. The 1st respondent was 
elected to tbat Assembly from the Shahpur Constituency in Kangra 
District. An election petition was filed by the appellant, a voter in that 
constituency, on the ground, among otliers, that at the time of fiJing 
of 
nominations 
th
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