STATE ELECTION COMMISSIONER, BIHAR PATNA & OTHERS versus JANAKDHARI PRASAD AND OTHERS

Citation: [2018] 5 S.C.R. 112 · Decided: 03-07-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

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Judgment (excerpt)

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STATE ELECTION COMMISSIONER, BIHAR PATNA &
OTHERS
v.
JANAKDHARI PRASAD AND OTHERS
(Civil Appeal No. 1463 of 2008)
JULY 03, 2018
[DIPAK MISRA,CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Bihar Panchayat Raj Act, 1993 – s.139(1)(c) –
Disqualification – Election of respondent to the post of member in
the Panchayat Samiti – Disqualified by the Election Commission –
Disqualification on the ground that respondent was appointed as
Assistant Government Advocate under the State Government and
was receiving fees for the cases conducted by him from the
Government and hence, was deemed to be in service of the State –
High Court set aside the order – Division Bench upheld the same –
On appeal, held: There was no master-servant relationship –
Respondent was not amenable to any disciplinary proceedings –
No records to show that he was getting any remuneration – Even if
some remuneration is attached to the office, he could not be treated
to be under the service of the State Government – Aspects essential
for establishing a relationship of master and servant absent – Thus,
the returned candidate could not have been treated to be in service
under the State Government – Order passed by the High Court
upheld.
Dismissing the appeal, the Court
HELD: 1.1 In Section 139(1)(c) of the Bihar Panchayat Raj
Act, 1993, there is a postulate that a person shall be disqualified
if such a person is in the service of Central or State Government
or any local authority. Section 139(1)(d) lays down a disqualification
if the person is in service of such institution receiving aids from
Central or State Government or any local authority. The key word
in both the provisions pertains to ‘service’. [Para 10][121-B-C]
1.2 In the instant case, the first respondent was treated as
disqualified on the foundation that he was in service of the
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Government. Analyzing the letter of appointment issued by the
Government of Bihar, Legal Department to the District
Magistrate, the Election Commission held that the elected
candidate was holding a post under the State Government and,
therefore, he was disqualified under sub-section (l)(c) of Section
139 of the Act. On a careful scrutiny of the communication, it is
quite vivid that the respondent No. l was appointed to the post of
Assistant Government Advocate in the panel of Assistant
Government Advocates constituted for the courts at Nalanda and
Hilsa. There is no mention of any fixed remuneration. In the
obtaining factual score, would it be appropriate to accept the
submission of the appellants that the elected candidate was in
the service of the government. The legislature has, in exercise
of its legislative power and wisdom, not used the words “office of
profit”. Therefore, whether such a letter of appointment can be
construed to determine if the person is holding an office of profit
is not necessary to be addressed. In the instant case, the election
pertains to a Panchayat Samiti which basically relates to the
concept at the grass root level. The legislature, as it seems, has
not thought of office of profit because had it thought so it would
have provided in that manner. The legislature had provided a
disqualification keeping in view the conflict of interest. The
absence of such a provision possibly is to include persons from
different fields as long as they are not in service under the
government or a service in an institution receiving aids from the
Central or State Government or any local authority. The
legislature, as the postulate stands today, has confined to
categories of service. It depends on the legislative wisdom. The
nature of disqualification has to be strictly construed keeping in
mind that right to contest an election is not a fundamental right
but the said right may be curtailed under valid statutory provision.
[Paras 25, 26 and 27][132-F; 133-E-H; 134-A-C]
1.3 It has been held by this Court that a person holding a
post under a State is a person serving or employed under the
State. There is a relationship of master and servant between the
State and a person holding a post under it. The existence of this
relationship is indicated by the State’s right to select and appoint
the holder of the post, its right to suspend and dismiss him, its
STATE ELECTION COMMISSIONER, BIHAR PATNA v.
JANAKDHARI PRASAD
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right to control the manner and method of hi

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