MAHADEO versus SHANTIBHAI AND ORS.

Citation: [1969] 2 S.C.R. 422 · Decided: 15-10-1968 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 5 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

MAHADEO 
v. 
SHANTIBHAI AND ORS. 
October 15, 1968 
(M. HIDAYATULLAH, C.J., AND G. K. MITTER, J.j 
Election-Elected candidate appointed on panel of Lawy.ers by Rail-
way adn1inistration-Duty bound to watch any cases against Railway-
Not free to take briefs against Raihvay-Raihvay not bound to 
entrust 
any particular case to hin1-Jf appointn1ent involving rights and dutf.es-
Whether candidate holding an "office of profit". 
The appellant's election to the M.P. Legislative Assembly in February 
1967 was challenged by an election petition mainly on the allegation that 
he was disqualified from being a candidate as he held certain offices 
of 
profit under the Government. 
The trial Judge allowed the election peti-
tion holding that the appellant held an office of profit under the Govern-
ment being on the panel of lawyers prepared by the Central and Western 
Railway Administration and having been at the material time a Professor 
of Law in a Government College on a regular salary of Rs. 250 
per 
month; it was also held that on the material before the court it could 
not be said that the appellant held 
the post of the 
President-Member 
of a Tribunal constituted under s. 73 of the Madhya Pradesh Town 
Improvement Trust Act, 1960. 
' 
On appeal to this Court, 
HELD : Dismissing the appeal : 
(i) "By office" is meant the right and duty to exercise an employment 
or a position to which certain duties are attached. The appellant held 
such an office by his cnagagemcnt on the. basis of a letter of appoint-
ment dated February 6, 1962 addressed to him by the Chief Commer-
cial Superintendent of the Railway and his reply thereto wherelw he 
accepted certain obligations and was required to discharge certain duties. 
He was not free to take a brief against the Railway 
Adininistration. 
Whether or not the Raihvay Administration thought it proper to entrust 
any particular case to him, it was his duty to \Vatch ·all cases coming up 
for hearing against the 
Railway 
Administration and to 
give 
timely 
intimation of the same to the office of the Chief Commercial Superintend-
ent. Even if no instructions regarding any· particular case were given to 
him, he was expected to appear in court and obtain adjournment. 
In 
effect this cast a continuing duty on· him to protect the interests of the 
Railway as long as his engagement continued. 
The fact that the appel-
lant would be paid only if he appeared in a case and the possibility of 
the Railway's not engaging hin1 \Vas a matter of no moment. 
An office 
of profit realy means an office in respect of which a profit nlay accrue. 
It is not necessary that it should be possible to predicate of a holder of 
. an office of profit that he was bound to get a certain amount of profit 
irrespective of the duties discharged by him. [426 F---427 CJ 
Although it was open to the appeilant to terminate the engagement 
at any time and he might even commit a breach of etiquette by ·accept-
ing a brief against the, Railway without forn1a1ly putting an end to the 
engaO'ement that would not detract from the position that he was in 
du'iy "botmd
0 to work for the Railway Administration and see that 
it 
causes did not suffer by default. 
So long as the engagement was not 
put an end to, he was holding an office of profit in the Railway Adminis-
A 
. .,, 
B 
c 
D 
E 
F 
• 
G 
• 
H 
A 
.,.. 
B 
... 
c 
D 
E 
F 
G 
• 
H 
MAHADEO v. SHANT!BHAI (Mitter, J.) 
423 
!ration, and as such was disqualified for being elected to the Legislative 
Assembly of Madhya Pradesh. 
The Statesman (Private) Ltd. v. H. R . 
Deb and others [1968] 3 S.C.R. 614; Mcmillan v. Guest [1942] Appeal 
Cases 561; referred to. [427 E-F] 
· 
(ii) Although it was not necessary for the purpose of the present 
case to express any final opinion on. the point, on the facts, there was 
great force in the appellant's contention that he did not hold an office 
of profit by being a Professor of Law in a Government. College on. a 
salary of Rs. 250 per month. 
The Management of the College in ques-
tion had been handed over to the University. The appellant was only 
a temporary Government servant. 
He had never become 
permanent 
nor had a lien on the post. 
He. was sent on deputation to the University 
in 1959 and in the ordinary course of things such deputation would have 
come to an end in 1964 when he attained the age of superannuation. 
No order was passed in respect of him at any time either by the Govern-
ment or by the University until a

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