TaxTMI 
TaxTMI 
1983 (11) TMI 327
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....respondent was, however, rejected by the Returning officer by his order dated May S, 1980 on the ground that he was holding an office of profit under the Government of the State of Uttar Pradesh and hence was disqualified under s Article 191(1)(a) of the Constitution for being chosen as a member of the Legislative Assembly. After such rejection the polling took place on May 28, 1980 and the appellant who secured the highest number of votes was declared elected on June 1, 1980. Aggrieved by the result of the election, the respondent who was not allowed to contest the election by reason of the rejection of his nomination paper filed an election petition before the High Court of Allahabad challenging the correctness of the order of rejection of his nomination paper and the result of the election which was held thereafter. He contended that since the-post of an Assistant Teacher in a Basic Education School which he held was not an office of profit under the State Government the rejection of his nomination was improper and, therefore, the election of the appellant was liable to be declared as void as provided in section 100(1)(c) of the Representation of c the People Act, 1951. The High....
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....ession of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. For holding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. An office of profit involves two elements, namely, that there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government several tests are ordinarily applied such an whether the Government makes the appointment, whether the Government has the right to remove or dismiss the holder of the office, whether the Government pays the remuneration, whether the functions performed by the holder are carried on by him for the Government and whether the Government has control over the duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this Court but no decision appears to lay down concl....
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....overnment only had the power to appoint the members of the committee. This Court observed in the course of its judgment at page 394 thus: "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the Committee or the members of the Committee are removeable by the Government of India or the Committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisiv....
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....e companies and not by the Governments; he performed the functions for the companies and that his duties were controlled by the Comptroller and auditor General who was different from the Government. This Court rejected the plea of the appellant holding that what had to be considered was the substance of the matter and not the form. It observed: "In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government companies within the meaning of the Indian Companies Act, 1956 and 100% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder of an office of profit under the Government, though there are safeguard in the Constitution as to his tenure of office and removability therefrom ...As we have said earl....
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....e Managing Director of the Company and not by the Government. The indirect control of the Government which might arise because of the power of the Government to appoint the Managing Director and to issue directions to the Company in its general working does not bring respondent No. 1 directly under the control of the Government." Divya Prakash v. Kultar Chand Rana & Anr.(1) is a decision of this Court which is very close to the present case. There the Court had to consider whether the post of a Chairman of the Board of School Education of the State of Himachal Pradesh appointed under section 18 of the Himachal Pradesh Board of School Education Act, 1968 was an office of profit under the State Government. The Court while holding that the said office was an office under the State Government held that since the candidate concerned was appointed in an honorary capacity without any remuneration ever though the post carried remuneration, he was not holding an office of profit and thus was not disqualified under Article 191(1)(a) of the Constitution. Now we come to the latest decision of this Court which is very relevant of purposes of this case and that is State of Gujarat & Anr. v....
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....r by examination or other-wise, the conditions of service, the power in respect of appointments, transfers and promotions of officers and servants and disciplinary action which may be taken against them, are to be regulated by the Rules made by the Government. The Rules so made are particularly required to contain a provision entitling servants so such cardres in the panchayat service to promotion to such cadres in the State service as may be prescribed vide Section 203(4)(a). This is an important provision. There cannot be any question of a rule providing for promotion from the panchayat service to the State service unless the panchayat service is also a service under the State. Again Section 203(5) requires that rules may provide for inter-district transfers of servants belonging to the panchayat service and the circumstances in which and the conditions subject to which such transfers may be made. This provision along with the other provisions of Section 203 which provide for the promotion and transfer of servants belonging to the district, taluqa and local cadres within the district, taluqa and gram or nagar clearly show that the servants are not the servants of the individual p....
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....1972-73. (4) The educational session had commenced and the Legislative Council was not in session and if immediate action had not been taken, the matter would have had to be postponed till the educational session 1973-74 with the result that the desired object would not have been achieved. Therefore, in order to implement the said decision immediately, the Uttar Pradesh Basic Education Ordinance, 1972, was promulgated. (5) The Uttar Pradesh Basic Education Bill, 1972, is being introduced to replace the said Ordinance." A reading of the above Statement of objects and Reasons shows that the Act was enacted for the purpose of enabling the State Government to take over the responsibility of primary education from the local authorities such as Zila Parishads, Municipal Boards and Mahapalikas. For this purpose the Act provides for the constitution of a Board to run the school imparting primary education instead of keeping them as a part of a Department of Education of the State Government. The Board is established by the State Government under section 3 of the Act with the Director, ex officio, as its Chairman. The other members of the Board....
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.... schools, normal schools, basic training certificate units and the State Institute of Education; (e) to accord approval (with or without modification) to the schemes prepared by the Zila Basic Shiksha Samiti or the Nagar Shiksha Samiti for the development expansion and improvement of and research in basic education in any district or in the State or in any part thereof; (f) to acquire, hold and dispose of any property, whether movable or immovable and in particular, to accept gift of any building or equipment of any basic school or normal school on such conditions as it thinks fit; (g) to receive grants, subventions and loans from the State Government; (g-1) to have superintendence over the Zila Basic Shiksha Samitis and the Nagar Basic Shiksha Samitis in the performance of their functions under this Act and subject to the control of the State Government, to issue directions to the Samitis which shall be binding on such Samitis; (g-2) to constitute sub-committees (from amongst the members of the Zila Basic Shiksha Samitis and Nagar Basic Shiksha Samitis) for such purposes a....
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....binding on the Board or the local body, as the case may be. (3) The Board or the local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act." The respondent was originally working as an Assistant teacher in the Basic Primary School, Sengarmau, Tahsil Kanauj, District Farrukhabad. That institution was being run and managed by the Zila Parishad of Farrukhabad and the respondent was therefore an employee of the said Zila Parishad. On the promulgation of the U.P. Ordinance No. 14 of 1972 which was replaced by the Act, he became an employee of the Board under section 9(1) of the Act which provided for the transfer of employees of the local bodies to the Board. Section 9(1) of the Act reads thus : "9. Transfer of employees-(1) On and from the appointed day every teacher, officer and other employee serving under a local body exclusively in connection with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the B....
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....enior Basic Schools District Basic Education Officer / additional District Basic Education Officer (Women). Chairman of the Board 9 Assistant Teachers/ Mistresses of Senior Basic schools Ditto Member-Secretary of the board 10 Headmasters/Ditto Headmistresses of Junior Basic Schools Ditto Ditto Sl. No. Name of the post Appointing Authority Appellate Authority 11 Assistant Teachers/mistresses of Junior Basic Schools. District Basic Education Officer/Additional District Basic Education Officer (Women) Member-Secretary of the Board 12. Headmistresses of Nursery Schools District Basic Education Officer (Women) Member-Secreatary of the Board 13. Assitant Mistresses of Nursery Schools Ditto Ditto It is seen that all officers mentioned in column 3 and column 4 of the above Schedule are either the State Government or officers appointed by the State Government. The said officers are all officers of the Government Department who hold the posts in the Board ex officio, that is, by virtue of the corresponding post held by them under the Government. The Rules provide for the procedure to be followed in disciplinary ....
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....rism Corporation (Andhra Pradesh) Private Limited who had been appointed by the Andhra Pradesh State Road Transport Corporation which was a Corporation established under the road Transport Corporations Act, 1950. In this case also the control of the Government was too remote. We are of the view that the present case is governed by the principles laid down by the judgment of this Court in Raman Lal Keshav Lal Soni's case (supra). The functions of the employees of the Board are in connection with the affairs of the State. In expenditure of the Board is largely met out of the moneys contributed by the State Government to its funds. The teachers and other employees are to be appointed in accordance with the rules by officers who are themselves appointed by the Government. The disciplinary proceedings in respect of the employees are subject to the final decision of the State Government or other Government officers, as the case may be. This Court, as mentioned earlier, held in Divya Prakash's case (supra) that the officers of the Board of School Education constituted under the Himachal Pradesh Board of School Education Act, 1968 which was a body corporate having perpetual succ....
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.... in substance it may be just the alter ego of the Government itself. The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by the several other bodies or committees over it and their composition, the degree of its dependence on Government for its financial needs and the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely optional from the point of view of Government. In this connection it is necessary to recall the provisions of Article 45 of the Constitution which require the State to endeavour to provide for free and compulsory education for all children until they complete the age of fourteen years. Primary education in a State unlike the higher education is the special responsibility of its Government and as observed earlier the Act was passed with the object of enabling the Government to take over all basic schools which were being run by the local bodies in the State and to manage them as provided specifically in section 4(2) (cc) of the Act and to administer all masters pertaining to the entire basic edu....