LexRABINDRA KUMAR NAYAK versus COLLECTOR, MAYURBHANJ, ORISSA AND ORS.
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A RABINDRA KUMAR NA YAK v. COLLECTOR, MA YURBHANJ, ORISSA AND ORS. FEBRUARY 19! 1999 B [K.T. THOMAS AND S.S.M. QUADRI, JJ.] Parichayats : Orissa Panchayat Samiti Act, 1959, Section 45(1)(i). c Panchayat Samiti--Member and Chainnan--Eli!t:tion of-Disqualifica- tion of candidates-Holder of "office of profit"-An advocate, provisionally, appointed as Assistant Public Prosecutor, under R. 5 ( 4) read with S. 25 Cr.P.C., was elected as member and Chainnan of Samiti--Validity of-Held, the office of Assistant Pubic Prosecutor is an "office of Profit" under the State D Govemment-He1u;e, such a person is not eligible to contest the election for the post of member or Cl1ainnan and, if elected, would cease to be a member and a fortiori to be Chairman-Orissa Law Officers Rules, 1971, R. 5(4Kriminal Procedure Code, 1973, S. 2~Service Law. E Sections 44-A and 45-B-Scope and ambit of-Although there is some overlapping between the two Sections yet their field of operation is different and distinct. Section 45-B-Disqualification of a member--Detennination of-Ap- plication under-Maintainability of-Held, remedy ·under S. 44-A is no bar F for an application filed under S.45-B. G Words and Phrases : "Office of profit''--Meaning of-In the context of S. 45(1)(i) of the Orissa Panchayat Samiti Act, 1959. The appellant, an Advocate, was appointed as Assistant Public Prosecutor provisionally under Rule 5(4) of the Orissa Law Officers Rules 1971 read with Section 25 of the Criminal Procedure Code, 1973 to conduct criminal cases. The appellant was entitled to a daily fee of Rs. 100 subject to restrictions under the Rules. While so, he and respondent No. 4 were H elected members of different Panchayat Samitis. The appellant and respon- 768 t· ·- •. -~ I R.K. NAY AK v. COLLECTOR MA YURBHANJ, ORISSA 769 dent No. 4 contested for the post of Chairman of the Samiti of which the A appellant was a member. The appellant was declared elected as Chairman. Having lost in the contest, r~spondent No. 4 initiated proceeding against the appellant under Sections 45-B of the Ot;issa Panchayat Samiti Act, 1959 in the court of the DistJ"ict Judge on the'"grourtd that as Assistant Public Prosecutor he was holding 'office of profit' under the Government, so he B was not eligible to be either a Member or Chairman of the Panchayat .Samiti. The District Judge allowed the l\PPlication filed by respondent No. --· 4 and the High Court confirmed the said order. Hence the appeal. On behalf of the appellant it was conteµded that the appointment of th"e appellant as Assistant Public Prosecutor was provisional, as a stopgap c arrangement, as such he was not holding office of profit; and that after the election of the appellant was over, only an Election Petition under Section 44-A but not petition under Section 45-B of the Act was the remedy of respondent No. 4. Dismissing the appeal, this Court D • HELD: 1. The expression "office of profit" only means an office, which ..__ yields income or profit. The term "office" or "employment" means as one subsisting, permanent, substantive position which has an existence inde- pendent from the person who filled it, which went on and was filed in succession by successive holders. [774-D-E] E KamtaKathuria v.Manak Chand Surana, AIR (1970) SC 694, followed. Mahadeo v. Shantibai, [1969] 2 SCR 422; Madhukar GE. Pankakar v. Jaswant Chobbildas Rajani, AIR (1976) SC 2283; Great Westem Railway Co. v. Bater, (1922) 8 Tax Cases 231 and Macmillan v. Guest, (1942) AC 561, F referred to. 2.1. To incur disqualification under Section 45(1) (i) of the Orissa Panchayat Samiti Act, 1959 it must be shown that : (i) there was a per- manent office of Assistant Public Prosecutor, (ii) income or profit accrued G from that office, and (iii) that the appellant held that office. It is indis- potable that permanency is attached to the post of Assistant Public ,.. Prosecutor and appointment to that office is regulated by the Orissa Law Officers Rules, 1971 which deal with the remuneration of the law officers. It is immaterial that the appellant did not in fact receive any fee. Require- ments (i) and (ii) are, therefore, satisfied. The appointment of the appellant H 1- 770 SUPREME COURTREPORTS [1999) 1 S.C.R. A as a Law Officer/Assistant Public Prosecutor under the Rules would satisfy -r- the third requirement as well. [776-C-D] 2.2. The appellant's contention that as the appointment o
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