PASHUPATI NATH SUKUL & OTHERS. ve
NEM CHANDRA JAIN & OTHERS.
”
November 25, 1983 -
-{S. Murtaza Fazat Aut, O, CHINNaPPa REDDY, & ' ES. VENKATARAMIAH, 3. J]: :
« 1
. Constitution of India isso, Aviles “98, 174, 102 W) @:. 187, 188, 191 ® (a), and 193. .
The Represantation of the people Act 195] Sections al, 33, 73 and 152,
Candidate elected as Member of State Legislative Aisernbly-—Not taking oath as Member— Whether could propose a condidate for elec tion to Rajya Sabha and entisied to vote in- ail election. : .
M Secretary & Joint Secretary of State Legislative Assembl ‘y— Whether * an. officer of Government’ —Appointment as Returning officer and Assistant Returning Officer in an election to Rajya Sabha— Validity of. . Words & Phiases—Meaning of: ‘Gove: nment'—Constitution of india 1950, Articles 102 (2) (a) and 191 (1) (a) ‘an officer of Government’—The Representation of the People Act 1951, 8, 21.
After the Legislative Assembly of the State was dissolved by the President elections were held and after the résuits were declared the Election Commission issued a notification containing the names of the members elected for the constituencies ou June 9, 1980. The elected members were notified that they . could take the oath as required by Art. 188 of the Constitution af the session of _ the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days. Jn the meagwhile, on June 17, 1980 the Election - Commission issued a notification calling upon the elected members of the State Legislative Assembly to elect a person for the purpose of filling a vacancy ia
’ the Rajya Sabha. For conducting the election the Secretary and Joint Secretary of the State Legislative Assembly were appointed. Tespectively as the Returning Officer and the Assistant Returning officer. —
° .
The appellant and respondent No. 1'in Civil Appeal No. 1775 of 1981 were nominated as the candidates at that election, At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds;——(1) that the appellant was disqualified as he was a Government
’
274 . . + : . : a a
* 940 os SUPREME court F REPORTS ot seat s. Git. we aoe servant, and 2) that the proposer ‘thoug? an- elected member of the Assembly, “ A. _+ Was not qualified to propose the. appellant’s candidature as he e bad not vel taken ; the ¢ oath under Article 183 of the Constitution, - ao po .
. The. ‘appellant. “eonitended . “that” as’, he: had “retired voluntarily ‘ ‘from: a a . Government service he was. not disqualified for being chosen as a member of the 2°) ~ . Rajya Sabha and that the proposer being an elected “member of .the Legislative “B : :Assembly was competent to.propose even though he had not taken the oath as | provided in Art. 188, Overruling - the objections: the “nomination papers of the 7 - candidates were accepted. In the election. the © appellant was declared elected as
: : - a ‘member of the Rajya. Sabha. Ste. le rot at - . n | Respondent’ nol] therefore filed ai an. election | petition. The igh Court setb om a ‘aside the appellant" 's election on. the grounds: rosy that as the Secretary of the ; a
~ Legislative Assembly'was -neither an ‘officer of the: Government nor of a local ou Foyt _ authority he could not ‘be appointed “zs the Returning . Officer under s, 2land -° oy J mae) that the proposer of the nominatior paper had not made or subscribed the - , . “oath! or affirmation as required by. Article 188.of the Constitution on-the date of ° “nomination and consequently 1 there, was improper acceptance of the’ ‘nomination , 2 “of the appellant. a a ons . The appeliant.' ‘the Election Commission of India, and the State prefered Toes «Appeals to this Court, wo a whe ph yay ;
+ oe, Mah gta ft i. : wo “Allowing the Appedl,
Es un a . Lo Bets ian Das “HELD: 1 @ The word ‘Government’: in Anticle: 102" (Dep and in. |. a vo “Artic 191 aya) of the C onstitution and the word ‘Government’ ij in the expres- =~ : ton 4” SS. 'sion anvofficer of Government’ ia section 21 of the Representation of the People or mo Sooner 1951 should be interpreted liberally “so as’. to includ within its ‘scope the . ; Legislature, the Executive eand the Judiciary, 51 G- Hy * mya oh ante “as o > Gis The finding. of the High ‘Court that: the Secretary of the State Legis« °F. . “Yatute could not.’ be appointed as the Returning officer for, the. election to the on
‘ uM Rajya Sabha i is unsustainable. [952 Ale a Q o piemeerte als ae ett Gi) The expressions “Government ‘and ‘ai officer. of Goveranient’ ‘are © a
: “pot defined i in the Constitution or in the Representation of the People Act 1951...
_ Article ‘367 “of ‘the Constitution ‘provides-. that ,unless, the context otherwise
: ‘requires, the General: Clauses Att, 1897, shall’ “subject to.any adaptations: and”
| 3: modifications ‘that may be made therein under Article. 372 apply for the inter-"
oN ~pretation for the Constitution. Section 3 (23) of the General Clauses’ Act, 1897-~° en “gives an inclusive definition of ‘Government’ and suggests that there may be.” other organs of State which may. be included within the meaning of expression »
. prey “... {Goyernment,, : The expressions ‘Central Government’ and ‘State: Government” - ~."
“" A “are defined. in section 3 (8) and” section. 3° (60).. A: general: review of - _/-- Bele. i! the constitutional provisions, stows various expressions. used i in itto describe the © ne ley . Several organs of the State. In Part I the ‘expressions ‘the Union” ‘the States” and un “the Union Territories" are used. In- Article 12 the expressions ‘Government and
\ p. ; ae , . ; A. * a a” d
1. r
BN. sdgL yA SM
Parliament of India’ and ‘Government andthe Legislature of each of the States’.
are found suggesting. that Government is different from the Union Legislature
. of the Legislatures of the States. This is for purposes of Part 1Tf, In Article 102 - . .
(1) (a)‘and Article 191 (1) (a) the. expression ‘the Government of India’ and ‘Government of any State’ are used and they provide that a person holding
- an office of profit under the Government-of India or a State Government ig ’ disqualified for being chosen as a member of Parliament or of a State Legisla- - ture respectively. Article 98 and Article 187 provide for appointment, of ; “separate secretariat staff. of each House of Parliament and of the State ~ Legistatures respectively. 947 C-H; 948 ‘Al .
(iv) After the commencement of the Constitution, the Secretaries of the .
State Legislatures almost as a matter of rule ‘were being appointed as Returning’.
. Officers for election to the Rajya Sabha and for election to. the Legislative
Councils of States, and Parliament had not thought it fitto amend suitably, section 21 expressly including the officers. of the State Legislatures ‘amongst the persons qualified to be appointed as Returning officers even though it had been.
‘amended: once by specifically including officers of local authorities. Parliament all along had treated the Secretaries of the State -Legislatures ‘as officers. of Government for purposes of section a2, aod had found it convenient to do so.
(951 CE]
(v) Even though Article 98 and Article 187 contemplate the establishment of a separate secretariat staff for each House of Parliament and the State Legislature respectively, . the salaries and allowances of the members of that staff are
; paid out of.the Consolidated Fund of India or of the State, as the case may be after they are voted by the House or Houses concerned. Their appointment and other conditions of service are regulated by Rules made by the President or the Governor, ‘as the case may be, ugil an appropriate law is made by Parliament or the State Legislature, (951 F- 1 .
(vi) In our Constitution, which has a federal sturcture there are e both at the level of the Union and at the level of the State detailed provisions pertaining
* to the Legislature, thé Executive and ‘thé Judiciary. Ail the three: organs are concerned with the governance of | the country the first makes the laws, second enforces them and the third interprets them, Sometimes their functions may be overlapping. All the three organs together constitute the | ‘Government ‘at their — respective level. [950 BC] 7;
‘
(vii) The President is a part of the Parliament under’ Article 79 of the.
’ Constitution, Thé executive power of the Union is vested in him under Article 53(]). At the level of the State the position is analogous. The Governor is a part -. _of the Legislature of the State under Article 168 (1). The Executive power of the ©
State is vested in him under Article.154 (1) and he is consulted in the: appointments of the judges of the High Court. While under Article 235 the High Court
-is vested with the control over the Subordinate Judiciary of the State, in the case of | dismissal of removal of,a judicial officer-in the Subordinate Judiciary,’ the.
" Governor has to issue the order though on the’ feconimendation made by the
‘High Court. A study of these provisions shows that there is no water- tight compartment between the three major organs of the State. The Comptroller and
Auditor General of India though he is assigned-'an independent status. is an - - officer under the Union Government. The Judges of the Supreme Court and of
942 _—— SUPREME COURT REPORTS (1984) 1sok.
a High Court are not servants of Government but hold a constitutional office.
_ But the Comptrojler and Auditor-General of India and the Judges of the —
, Supreme Court and of a High Court are not eligible to contest elections to Parliament and the State Legislatures in yiew of Article 102 (4) (a) and Article 191 (1) (a) because they are serving in connection with the affairs of the Union and are therefore, holding offices of profit under the Central Government. (950 CH; 591 A-By
Pradyat Kumar Bosev. The Hon'ble the Chief Justice of Caleutta High Court [1955] 2S. C. R. 1331; Gurugebinda Basu v. Sankari Prasad Ghosal-& Ors. {1964} 4S. C. R. 311; Union of India y. Sankal Chand Himatial Sheth & Aur.
- (1978] 1.8. C, R. 423, & Hargovind Pant vy. Dr. Raghukut Tilak & Ors. [1979] 3
S.C. R. 972 teferred to.
(viii) The position of a petson who works as an officer of the Legislaturé. of.a State is also the sme. Even though he belongs under Articlc 187 to the staff of the-State Legislature, he js still an officer of Government in the broad - |
_sense in which the expression .“Government is used in Article 102-(1) (a) and
Article 191 (1)(a); If the expression ‘Government used is construed as meaning | the Executive Government only, then it would defeat the very purpose of these provisions. Similarly he has to be treated as an officer of Government for purposes of section 21 of the Act also, qualified for being appointed as the ‘Returning officer for an election held under the’Act. (951 A-C] .
2 (i) This ig not a case wheré general elections to the Legislative Assembly had been ltield fefore the normal tenure of the existing Legislative Assembly was over. The previous Legislative Assembly having been dissolved
_ in February 1980, on the publication of the notification containing the names of the elecléd members of the Legislative Assembly on June 9, 1980 under Section 73, the Assembly was deemed to be duly constituted. [953 D; 954 Dj ,
Gi An elected member ‘who’ has not taken ‘oath’ but whose name ©
_ appears in the notification published under s, 73 of the Act can: take part in all ‘non-legislative activities of an elected member. The right of voting at an election - to the Rajya S Sabha can also be exercised by him. [957 G) |
In the instant case the name of. the ‘proposer, had been included before the date on which he proposed the name ‘of the appellant as'a candidate in the notification published under sec. 73 of the Act-and’ in the electoral -roil main-
-tained under section 152. There is therefore no infirmity in the nomination: © : (957 H; 958 Aj 7c
; (iil) The words ‘sitting and voting’ in Article 193 of the Constitution imply the summoning of the house under Article 174 of the Constitution by ‘the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Cons- ’ titution only when he sits and votes at such a meeting of the House, : Invariably there is an interval of time between the constitution of a house after a general election, and the summoning of the first meeting of the House. During that
~~ i= a > é e 4 . 4o a «se , « 3 ‘ -& af
2a EZ
4 | BN, SUKUL.», N.C. JAIN (Venkataramiah, J.) 943 _. 4 interval an elected member of the ‘Assembly whose name appears in the notifi-
. b ; cation issued under section 73 of the Act is entitled to all the privileges, salaries
' 4 ‘and allowances of.a member of the Legitlative Assembly, one of them being the right to function as an elector at an lection held for filling a seat in n the. Rajya Sabha. (955 B-D}. . ;
in The election for filling a seat -in the Rajya Sabha does not from a part of the Legislative proceedings of the House carried on at its meeting. Nor the vote cast at such an election is a vote given in the -House on - any issue.
_ arising before the House. The speaker has no control over the election: The . election is held by the Returning Officer appointed for the purpose. All the stéps taken in the course of the election fal] outside the proceedings that take’ place at a meeting of the House, [955 B-F; 956 B]
” - Bhupendra Nath Basu v. Ranjit Singh, LL. R. 41 Cal, 384, approved.
, ‘Civic. APPELLATE JuRispicTION : Civil Appeal “Nos. 1775 = 1975 (B), 2736 (E) of 1981. oo
From the Judgment and Order dated the. 10th July, 1981 of the Allahabad High Court (Lucknow Bench) in. Election Petition No. 7 of 1980,
M. C. Bhandare, T. Sridharan, Ms. S.' Bhandare. and Ms. ; Sucharita for the Appellant in CA. 1775/81. , a0 Dr. ¥. Ss. Chitale and Ms. A. Subhashini for the Appellant in CA. No. 1975 of 1981. |
. : - Mrs. S. Dixit for the Appellant in CA. 2736 of. 1981. oe : . Hari Shankar J Jain and Mr. K. K. Gupta, for the Respondent, a | » . — ' The Judgment of the Court was s delivered by
‘ Se VeNKATARAMIAH, I. At the conclusion of the hearing of the above appeals on November 16, 1983, we pronounced the following
_ order : »
“Heard counsel for the parties. The appeals are allowed . and the order of the High Court i is Set aside without any order as.to costs.”’
mi r 0 We now give our reasons,
6440 7 > SUPREME COURT REPORTS | [1984] 1.s.c.n.
Two questions arise for consideration in these three appeals which are filed ‘against the judgment and order dated July 10, 1981 of the High Court of. Allahabad i in Election Petition No. 7 of 1980. They are:
~
-1, Whether the ‘Secretary ofa State Legislative Assembly is ' not qualified to be appointed as the Returning Officer at an election held to fill a seat in the Rajya Sabha 2
| 2. Whether a person ‘elected as'a member of a Legislative Assembly but who has not made.and subscribed the prescribed oath or affirmation as required by Article 188°of the Constitu- tion can validly “propose -a person as. a candidate at an élec-:
tion held for filling’ a seat in the Rajya Sabha ?
In February, 1980, the Legislative Assembly or the State of
’ Uttar Pradesh was dissolved by the President by issuing a notifica- ‘tion under Article 356 of the Constitution. A notification was issued by the Governor of Uttar Pradesh under section 15 (2) of the Repre-
' sentation of the-Peopie Act, 1951 (hereinafter referred to as ‘the Act’) in April, 1980 calling upon all the Assembly constituencies in Uttar -
Pradesh to-elect- members to- the Legislative Assembly. After the results of the elections in all the constituencies held “pursuant to the said notification were declared, the Election Commission of India issued a notification containing the names of the members elected for
" the said constituencies as required by section 73 of the Act on June. - 9, 1980. The elected members were notified that they could take the oath as required. by Article 188 of the Constitution at the session of - the Legislative Assembly which. had been summoted to meet on.
"June. 27, 1980 and on subsequent days, Inthe meanwhile on June _ 17, 1980, the Election Commission issued a notification calling upon the elected members of. the Uttar Pradesh Legislative Assembly to | . . elect a person for the purpose of filling a vacancy in the Rajya Sabha. - By that notification, the Election Commission fixed the following , programme for the purpose of the said election :
a) 24.6.1980 as sthe ‘Hist date for making't nomination. -
(b) 25.6,1980 — as s the date for scrutiny of the nomi- nation papers.
(c) 27.6.1980 ~—. as. the last ° date for withdrawal of , candidature. ,
Yr, nha re tz
~~ a ¢ as i .
7}
, BAN, SUKUL ¥. N.C. SAIN (Venkataramiah, J.) 945
; ee (d): 4,7.1980 — as ‘the date on which a ‘poll, if neces-
- 7 “sary, would be taken.
. (©) 7.7.1980 — | a the date before ‘which the election - had to be completed.
. ‘Shri §S. P. Singh, Secretary “of the Uttar Pradesh Legislative Assembly was appointed: as the Returning Officer and Shri Uma A Shankar, Joint Secretary as the Assistant Returning Officer for con-. ducting the aforesaid election. © i + 7
. Pashupati Nath Sukul, ‘the appellant in Civil Appeal No. 1775 ,
‘of 1981 (hereinafter referred to as ‘the appellant’) and Nem~> Chandra
‘Jain, respondent No. 1 were nominated as the candidates at: that
5 © ‘election. At the time of scrutiny, respondent No. 1 filed objections to . the nomination of the. appellant raising two grounds—(1) that the appellant was disqualified as.he was a Government servant and (2)
*. that the proposer of the candidature of thé appellant was not quali- fied to propose his candidature-as he had not yet taken the oath as-
_ required by Article 188-of the Constitution. The appellant pleaded ko that as: he had retiréd voluntarily from the Government service he ‘4 was not ‘disqualified for -being chosen as a member of thé Rajya _ Sabha and that the proposer of his candidature was an elected mem-— ber of the Legislative Assembly who was competent to make the . proposal evett though. he had not taken the oath as provided in. - Article 188 of the Constitution. The Objections of sespondent ‘No. 1 were overruled and the nomination papers of both the appellant and respondent No.1 were accepted by the Returning . *. Officer. At the poll which took place on July 4,.1980 the appellant secured 325 votes ani tespondent No. .1 got 41 Votes. Accordingly
. the appellant*'was declared to be elected as a member of the Rajya A . . Sabha. Aggrieved bythe result ‘of the election, respondent No. 1 filed an election petition before the High Court calling in question : the, result of the election on various grounds and of them we are’
now concerned with two grounds only and they are (1) that as the Secretary of the Legislative Assembly was neither an officer of the
- Government nor of a local authority, he could riot be appointed as the Returning Officer: under section 21 of the Act and (2) that as the proposer of the nomination paper of the appellant “had not made or.
‘subscribed the. oath or affirmation as required by Article 188 of the — r . Gonstitution on the date of the nomination, ‘there was improper accep=: _ ___ tance of the nomination of the appellant. The appellant, the Election — ; Commission of India, the State of Uttar Pradesh and Shri 8. P
946 mo SUPREME COURT REPORTS * [1984] 1 s.c.k.
Singh, ‘the Returning Officer were impleaded as respondents to the election petition. The name of the’ Governor of Uttar Pradesh who had also been impleaded as a respondent was deleted by the order.of the High Court. The petition was contested by the appellant and
"others who bad been implcaded as respondents in the election -peti- tion. At the conclusion of the trial, the High Court set aside the election of the appellant on the following grounds viz, that Shri S. P. Singh, Secretary, Legislative Assembly was not qualified
‘to be appointed as the Returning Officer, that the proposal of the candidature ofthe appellant by a member of the Legislative Assembly who had not made and subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination was illegal and hence there was improper acceptance of the. nomination ~ of the appellant and that there was no yalid electoral roll in force on the date of nomination. Aggrieved by the judgment of the High Court; the appellant has preferred Civil Appeal No. 1775 of 198], : the-Election Commission of India. has filed Civil Appeal No. 1975 (E) of 1981 and the State of Uttar Pradesh has preferred Civil Appeal No, -2736 (E) of 1981. All these three appeals are disposed of by this common judgment.
We. shall first’ deal with'the question whether the Secretary of the Legislative Assembly was not, qualified to be appointed as the - Returning Officer for the election, Section 21 of the Act which deals with the appointment of Returning Officers reads thus : ,
_ “21, Returning Officers—For every constituency, for
‘ every election to filla seat or seats in the” Council of . States and for every election by the members of the Legis-" :
lative Assembly of a State to fill a seat or seats in the
"Legislative Council of the State, the Election Conimission shail, in consultation’ with the Government of the State, _designate or nominate a returning: officer who shall be an - officer of Government or of @ local authority :
Provided that nothing in this section shall prevent
" the Election Commigsion from designating or nominating the same person to be the returning officer for more than one constituency.”
. (Emphasis added).
. v ce
P.N. SUKUL Vv. N.C. JAIN (Venkataramiah, J.) © 947
_The contention of respondent No. 1 which’ has been accepted by the High Court is that the Secretary of the Legislative Assembly being not an officer-of Government or of a local authority he was
' not qualified to be appointed as the Returning Officer. The argument
-many difficulties though not insurmountable.. The expressions . ‘Government’ and ‘an officer of Government’ are not defined in the.
is that ‘Government’ in the expression ‘an officer of Government’
used in section 21 of the Act méans the Executive only and an officer of the Legislature is not, therefore,'an officer of Government.
* This case is an-illustration of some legal problems solutions - for which appear to be quite obvious but when an ‘attempt is made to give reasons for such solutions one would be confronted with
Constitution-or in the Act. Article 367 of the Constitution provides
’ that unless-the context otherwise requires, the’ General Clauses Act,
"1897, shall, subject to any adaptations and modifications that may be made therein under Aritcle 372 of the Constitution, apply for the
_ interpretation of the Constitution as it applies for the interpretation _ of an Act of the Legislature of the Dominion of India. Section 3 (23) > of the General Clauses -\ct, 1897 defines ‘Government’ as follows :.
-3(23) ‘Government’ or. ‘the Government’ shall include both the Central Government and any State Government,” ae .
The above definition is an inclusive definition and it suggests that there may be other organs of State which may be included with- in the meaning of the expressioh ‘Government’. The ‘expressions
” ‘Central Government’ and ‘State.Government’ are defined in’ section
3(8) and section 3(60) of the General Clauses Act, 1897 respectively, These definitions are to be adopted unless there” is. anything in the context to the contrary. A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State. In Part lof the Constitution the expressions ‘the Union’. ‘the States’ and ‘the Union Territories’ are used; In
' Article 12 of the Constitution, we find the expressions ‘Government and Parliament of India’ and ‘Government and the Legislature of
-each of thg States’ suggesting that Government is different from the -. Union Legislature or the Legislatures of the States: This is -for purposes of Part III of the: Constitution. In Article 102(1)(a) and
“Article 191(1)(a) of the Constitution, the expressions ‘the Government.
of. India’ and ‘the Government of any State’ are used and they provide that a person holding an office of profit under the
;
48 ‘SUPREME COURT REPORTS rise) 1 S.C.R,
; ~ Government of India ¢ or a State Government is disqualified for. being chosen as a member of Parliament or of a State Lepislaturé. respec- tively. Article 98 aud Article 187 of the Constitution provide for the appointment of separte secretariat staff of. each House of Parliament - and of the State Legislatures respectively, Article 146,and Article 229 _of the Constitution respectively deal with the appointment of officers
- and servants of the Supreme Court and of the High Courts~ Article . ‘ 148(5) and Article 318 of the Constitution: respectively deal with the’. conditions of service etc. of the employees working in the office of the: -
Comptroller and Auditor-General of India and the Public Service
Commissions, Part XIV of the Constitution contains provisions relat- .
ing to the services under the Union Government and the State Govern- - ments. It contains Article 311 which guarantees certain rights which _ cannot be denied to the employees in the Legislature and in the
Judiciary. Dealing with the nature of thé office held by the officers - — working i in the High Court, who are governed by Article 229 of the
Constitution’ this Court has observed in Pradyat Kumar Bose v. The
Hon'ble the Chief Juctice of Calcutta High Court(’) thus :
7 “A close scrutiny of the terminology so used shows a marked departure in the language of article 320(3)(c): from’ that.in articles. 310 and 311. Officers and members. of the staff attached to a ‘High Court clearly fall. within the scope of the phrase “‘persons appointed to. public services and.posts in connection with.thé affairs . - . of the State’’ and also of the phrase “a person’ who is a _ member of a civil service of'a State”-as used in articles -, 310'and 311. The salaries of these persons are’ paid out of the State funds as appears from article’ 229(3) | which provides that the administrative expenses of a High Court a including all salaries, allowances and pensions payable to- _or in respect of officers and servants of the High Court, are chargeable upon the Consolidated Fund of a State, The item relating to such administrative expenses , has to’ form part of the annual financial statement to be presen.ted to the State Legislative Assembly under article 202 - and estimates thereof can form the subject matter. Of the ‘discussion in the Legislature under article 203(1). They _ must, therefore, be taken ,“‘to},hold posts in connection with the affairs ofthe. State and ‘to be} members, of ‘the civil service of the: State” o \
Re eee acme anamn ' (1) 11955] 2.S.C.R, 1331,
Po
~
..
j
- PN. SUKUL v. N.C. JAIN (Venkataramiah, J.) * 949.
Entry 5 of List Il of the Seventh Schedule to the Constitution relates to ‘Local Government’ that is to say, the constitution and | powers of municipal | corporations, improvement trusts, ‘district boards, mining settlement authorities and other local authorities for the. purpose of local self-government or village administration. In each of these cases it becomes necessary to examine the relevant
7 provisions of law applicable to it in order to determine whether the.
officers and staff of the various organs are officers of Government or
- not. Before taking up such examination the meaning. of the expression ‘Government’ has to be ascertained.
A student of International Law understands by the expression ‘State’ as a fully ‘sovereign indepéndent community residing in a specified territory with.a legal capacity to enter into international .
. relations, and having the power to fulfil the: obligations whicli the - international law imposes on the family of nations. It should also | have been admitted or recog 1ised as a State on 2 footing of equality
” with’ other States. -A State implies the existence of ,a community : .of group of people occupying a geogtaphical area or _ territory
_ in which they permanently reside possessing internal sovereignty and independence of foreign control and a poljtical organisation or
. agency througa which the. collective will of the people is expressed . and enforced. The.last of the elements of a State referred to above is generally called as a Governinent. A student of Political Theory
_and Comparative Politics may discribe a Government as a monarchi- cal; republican, democratic or dictatorial depending upon its peculiar features, _Itmay be federal or unitary. A political philosopher may describe a Government as imperial, colonial, capitalist or socialist, -
The above list is not really exhaustive. But thesc are only different forms of Government and “Government! here is uséd in a very broad sense, From the legal point Of view; Government may be described as the exercise of certain powers and the pétformance of certain ~ duties by public authorities or officers, together: with certain private persons or corporations exercising public functions. The structure of the machinery of Government and the regulation of the powers and duties which belong to the different parts of this structure are defined
“by the Jaw which also prescribes to some extent the mode in which
". these powers are to be exercised or these duties are to be performed "(See Halsbury’s Laws of England, Fourth Edition, Vol. 8, Para 804).
Government generally connotes three estates, namely, the Legislature,
' the Executive and the Judiciary while it is true that in a narrow sense
" it-is used to connote the Executive only. The meaning to be assigned
950 - ‘SUPREME COURT REPORTS, 1984] 1 s.c.8-.
7 to that expression, "therefore, depends on the context in which it is used,
In. our Constitution,‘ which has a federal structure, there are < both at the level of the Union and at the level of the States ' detailed provisions, pertaining to the Legislature, the Executive and the Judiciary. All the three organs are concerned with the governance of the country one organ makes the laws, the second enforces them and the third interprets them though sometimes - their functions may be overlapping. In this sense all the three organs together constitute the Government at their respective - level: It is significant that the President is a part of parliament under
Article 79 of the Constitution, the executive power of the Union is - vested in him under Article 53 (1) of the Constitution and he appoints Judges of the Supreme Court under Article 124 (2) and he can issue an order removing a Judge of the Supreme Court under Article .124 (4) of the Constitution, of course, subject to the limitations contained therein. At the level of the State too the position is analogous to the position at the level of the Union. The Governor isa ‘part of the Legislature of the State under Article. 168(1) of the Constitution. The executive power ‘of the State is vested in him under Article 154( 0) and he is consulted inthe appiontment of judges of the High. Court. While under Article 235 of the Constitution, the High Court is vested with the control over the’ Subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary, the Governor has to issue the order though on the recommendation made by the’ High Court. A study
“of these provisions shows that there is no water tight compartment.
etween the three major organs of the State. The Comptroller and Auditor-General of India though he.is assigned an independent status ig an officer under the Unioh Government. (See Gurugobinda Basu v. Sankari Prasad Ghosal & Ors.)(?)_ The Judges of the Supreme Court and of a High Court are not - -setvants of Government but hold a constitutional office (vide Union of India v. Sankal Chand Himatlal
| ‘Sheth & Anr.(2).and Hargovind Punt v. Dr. Raghukul Tilak & Ors.(8)_ .
But the Comptroller and Auditor-General of India and the Judges of the Supreme Court and of a High Court are not eligible to contest:
‘elections to Partfamentf and the State Legislatures in view of Article 102(1)(a) and Article 191¢ 1)(a) of the Constitution, as the case may
A) [1964] 4 S.C.R. 311. (2) {1978} 1 S.C.R: 423, (3) [1979] 3 S.C.R. 972. .
o
BN, SUKUL y, mC. JAIN (Venkataramiah, J.) | 951 be, because they are serving in connection with the affairs of, the
~ Union (See Article 360(4)(b) of the Constitution) and are, therefore, holding offices of profit-under the Central Government. The position of a person whowworks as an officer of the Legislature of a State is also the same. Even though he belongs under Article 187 of the Constitution to the staff of the State Legislature, he is still an officer of Government’ in the broad sense in which the expression
_ ‘Government’ is used in Article 102(1)(a) and Article 191(1)(a) of the
Constitution. If the expression ‘Government’ used here is construed as meaning the Executive Government only, then it would defeat the
' yery purpose of these provisions of the Constitution. Similarly he:
has to be treated as an officer of Government for purposes of section 21 of the Act also qualified for being appointed as the. Returning
. Officer for an election held under the Act. It is not disputed that . - after the commencement of the Constitution, the Secretaries' of the State Legislatures almost as a matter of rule are. being appointed as. " Returning Officers for election. to the Rajya Sabha and for election to the Legislative Councils of States and Parliament has not thought ‘it fit-to amend suitably, section 21 of the Act expressly including the officers of the State Legislatures amongst the persons qualified to be appointed as Returning Officers even though it has. amended that section once by specifically including officers of local authorities.
Parliament ali along has treated the Secretaries of the State Legisla- - tures as officers of Government for purposes section 21 and has found it convenient to do so having regard to the nature of the work to be carried out by them. It may be noted that even though Article 93° and Article 187'of the Consitution contemplate the establishment of a separate secretariat staff for each House of Parliament and of the
State Legisiature Tespectively, the salaries and allowances of the mem-. - bers of that staff are paid out of the Consolidated Fund of India or
"of the State, as the case may be after they are voted by the House or
‘Houses - concerned. Their appointment and other. conditions - of service are regulated by Rules made by the President- or the Gover- .
nor, as the case may be, until appropriate law j is made by Parliament or the State Legislature, as the case may be. We are of the view that
. the word ‘Government’ Article 102(1)(a) and in Article 191(1}{a)
of the Constitution and the word ‘Government’ in the expression ‘an officer of Government’ in section 21 of the Act should.be jnterpreted . " liberally so as to include within its scope the Legislature, ‘the Execu- tive and the Judiciary. The High Court erred in equating the word
'. ‘Government’ Occurring in section 21 of the Act to the Executive Government only and in further holding that the officers of the ..
Dp
952 ' *. SUPREME COURT REPORTS ; - 11984) 1 s.c.Re |
State Legislature could : not be treated as officers of Government for purposes of that section. The finding of the High Court that? the Secretary of the Uttar Pradesh State Legislature could not be appoin- . ted as the Returning Officer for the election to the’ Rajya Shaba is, therefore, unsustainable. .
+ The second question to, be considered i is whether the nomination
_ of the appellant was liable to be rejected ‘on the: ‘ground that the proposer was not eligible.to nominate a candidate as he had ‘not made and subscribed the oath or attire mation as prescribed by Article 188 of.
the Constitution.
- Section 33:0f the Act prescribes the . “requirements for a valid nomination. It provides that the nomination paper should be com- pleted i in the prescribed form and signed by the the candidate. and by ~ - - atrelector of the constituency as proposer. . Clauses (d) and (e) of
- section 2(1) of the Act define the ‘words ‘election’ .and ‘elector’
respectively. ‘Election’ means an election to fill. a seat’ or seats in _ either House of Parliament orin the House or either. House of the Legislaturé of a State other than the State of Jammu and Kashmir. “Elector’ in relation to a constituency means: a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to-any of the disqualifications men- tioned in section 16 of the Representation of the People Act, 1950 (43° of 1950). Sub-clause (b) of clause (1) of Article 80 of the Constitution . States that the Council of States (the Rajya Sabha) shall in addition to.twelve members nominated by the President under sub-clause (a) ' thereof consist: of not more than two ‘hundred and ‘ thirtyeight representatives of the States-and of the Union territories.. Claitse (2)' of Article 80 of the Constitution provides that the allocation of seats °° in the Council of States to be filled by representatives of the “States and of the Union territories shall be in accordance with the provi- sions in that behalf contained in the Fourth’ Schedule ‘to the. : Constitution. Clause (4) of Article 80 provides that the representatives © of each State in Council of States shall be elected by the elected mem- | bers of the Legislative Assembly of the State in accordance: with’ the
‘. system of proportional representation by, means of the single - transferable vote. Section 152-of the Act provides that the Returntng
Officer for on election: by the elected members of the Legislative — - Assembly of a State to fill a seat-or seats in the Council: of States.
"shall for the purposes of such election maintain in’ his office in the ptescribed manner and from a list of elected members of that. Legislative Assembly. Clause (c), of sub-rule (1) of Rule 2 of the .
sd rn \
"P.N, SUKUL ¥. N.C. JAIN (Venkateramiah 3) 953° Conduct of Flectfons Riles, 1961 defines’ “election by assembly . members” as an election to the.Council of States by the elected mem-
. bers of the Legislative Assembly of a ‘State or by the members of the = electoral college of a Union territory of an-election to the Legisla- tive Council of a State by the members of the. Legislative Assembly of a State. ‘Elector’ is defined by clause (d) of sub-rule (1) of Rule 2 of the'said Rules, in relation to an election by Assembly members - as any person entitled to vote.at that election. .
aT
"Tn the present case, the notification containing the names of,
* elected'members of the Uttar. Pradesh Legislative Assembly: who participated at the election in question had been published under section 73 of the Act on June 9, 1980 and that the previous Legislative Assembly had been dissolved earlier'in February, 1980.° This is not a case where general elections to the Legislative. Assembly had — been held before the normal tenure of the existing Legislative. Assembly was over. Section 73 of the Act which prescribes the
. publication of results of general elections reads thus :
“73, ‘Publication of results of general elections to the House, of the People and the State Legislative Assem-
- blies, ~Where a general election is held for the purpose of constituting a new House of the People’ or a new State. Legislative Assembly, there - shall be notified by the Election Commission m the Official Gazette’ as soon as -
-" .. may be after the results of the elections in all the consti tuencies (other than those i in which the poll could not be - taken for any.reason onthe date originally fixed under clause (d) of section 30 or for which the.time for comple- . tion of the election has been extended under the: provisions of section 153), have. been declared by the | Tetutning officer under the provisions of section 53’or, as the case may be, section: .66, the. names of the members elected for those constituencies and upon the issue of such notification that House ¢ or Assembly shall be deemed to be duly constituted : to .
Provided that the issue 0 of such notification shall not be deemed— ‘
(a) to preclude—
954 SUPREME COURT ReporTs——s«*[ 1984) 1S...
(i) The taking of the poll and the completion of the election in any -Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any.reason: on the date’ originally fixed under clause. (d) of section 30; 0 or
(ii) the ‘completion of the election in any Parliamentary gr Assembly constituency or constituencies for which time has been extended under the provisions of sectitn 53;0r *
(b) to affect the duration of the House. of the People or the State Legislative Assembly, . if any, functioning "immediately before the issue of the said notification.”
(emphasis added)
On the publication of the notification on “June* 9, 1980 under section 73 of the Act in the instant case, the Assembly was deemed ~
‘to be duly constituted. Article 188 of the Constitution prescribes the oath to-be taken or-the affirmation to be made by every member ofa Legislative Assembly ora Legislative Council. It reads :
“188, Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some ‘person appointed in that behalf by him, an oath or“ affirmation according to the form set out for the. purpose in the Third Schedule.” a
Article 191 of the Constitution prescribes ‘the disqualiiications: for membership of the Legislative Assembly or Legislative Council’ ‘of a State. On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member "thereof. Article 193 of the Constitution provides. for the penalty’ for sitting and voting before making oath or affirmation under Article 188.
of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees, to be
-recovered as a debt due to’ the State. It does not say that if an
élected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 of the Constitution he ‘shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4)
>>
.
™.
ot SUKUL v, N.C, JAIN (Venkataramiah, J). 9856 of the Constitution if for sixty days he is absent from all meetings of. the House without its permission. Now the question is whether the
. making of oath or affirmation is a condition precedent for being eligible to act as a proposer of a valid nomination for election to the
- Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly
" cannot sit and vote in the House before making oath or affirmation. .
The words ‘sitting and voting’ in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the
_ holding of the metting of the.House pursuant to the said summons or an adjourned meeting, .An elected member incurs the penalty “for contravening Article 193 of the Constitution only ‘when he sits and votes at such a meeting of the House. Invariably there is an interval -of time between the constitution of a House. after’ a general election — as provided by section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under | section 73 of the Act is entitled to all the privileges, salaries and . allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held. for filling a seat in the Rajya Sahha. That is the effect of section 73 of the Act which says that on the publication of. the notification under it the - House shall be deemed to have been constituted. The election in . question does not form a part of the Legislative proceedings of the House carried on at its meeting. Nor the votes cast at such an election
- is a vote given in the House on any issue arising before the House.
The Speaker has no control over the election. The election is held | by the Returning Officer appointed for the purpose, As mentioned earlier, under séction 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven o’clock in the forenoon and three o’clock in the afternoon before the last day notified for making nominations under section 30 of the Act Then afl further steps such as ‘scrutiny of nominations and withdrawal
_ of nominations take place before the Returning Officer. Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members.where a poll becomes necessary, -the Returning . Officer for such election shall, as soon ag may be after the’ last date for the withdrawal of candidatures, send to each elector a notice _ informing him of the date, time and-placé fixed for polling. Part VI “of the Conduct of Elections Rules, 1961 which contains Rule 69 and
Part VII thereof deal with the procedure to be followed at an election
956 © oe - ; SUPREME COURT néronts th98a) i S.c.k.
by assembly members. "Rule 85 of the: Conduct of Elections Rules,
1961 provides that as soon. as may be after a candidate has been. declared to be elected; the returning officer shall grant to such candi- ‘date a certificate of election in Form 24 and obtain from the candidate
- an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary: of the
Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the. election thus fall outside the Proceedings that take place at'a meeting of the,
House.
We may here refer to the decision. of the Calcutta High Court i in - ‘ Bhupendra Nath Basu v. Ranjit Singh.2)- The facts of that -case were these. An election was held on February 14, 1913 to the Legislative
Council of the Governor-General from the constituency consisting of ~ the non-official additional ‘embers of the Bengal Legislative Council each having two-votes to fill two seats in the Legislative Council of the’ Governor-General. There were at. that time thirty four non- official additional members but two of them had not taken the -oath of allegiance at the time of the election as-prescribed ‘by the Bengal Council Regulation VII. At the election there were four candidatées— the plaintiff Bhupendra Nath Basu,-the Ist defendant Maharaja
Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and’ Nawab
. ‘Badruddin Haidar. -As a result of the poll the second defendant ‘got _ _22 votes, the first defendant got 18 votes, the plaintiff 17 and. Nawab ‘Badruddin Haidar 11 votes. .Accordingly defendants 1 and 2: were” declared clected to fill the two seats. The plaintiff after being - unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity: of the. election. He
- prayed ‘that ‘the. votes should be recounted after excluding the votes cast. by the two members who had not’ taken the oath of allegiance,
Regulation ‘VII referred to above provided that every person elected, nominated under the regulations should befere taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person oo “fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council thay consider reasone. ~ able, the Governor, shall by notification in the local Official Gazette _- declare’ the election or nomination to be void-or his seat to be vacate’, Such, a declaration had not been made on the date of - the election. .
.
eee ne nee (1) LR. a cal. 384,
{ er i a
=
BN. SURUL ¥. N.C. JAIN ( Venkataramia, J) 957°
The contention of the blantit was s rejected by the High Court ‘in. the , following terms : , *
“Moreover, Lam not satisfied that the view of the Government as to the taking of the oath.of allegiance is not a correct one. Doubtless the English cases that were
' referred to, the case of the Mayor of. Penryn (1 Strange ~- 582) and The King v. Swyer (1830) 10 B. & C. 486) liave decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the +. difficulty that arises from these . Regulations. These Regulations constitute an electoral College of ‘elected members of the Loval.Council to elect two persons to be members of the Council of His Excellency the Governor- General. I am not satisfied on the Regulations , that the. . learned Advocate-General has called’ my attention to, that. when the electors have the right of giving their votes ‘by means of registered letter, for the purpose of being | members of electoral college and for that purpose only, that .
_ the mere fact of election’ to the local Council was not’ sufficient to constitute‘a person so elected a- member of the electoral college. It is only for the purpose of exercising the legislative functions conferred by the Regulations .
. and by the Act that the oath of allegiance is requiréd.
. Moreover, as the Advocate-General has pointed out, the mere fact of omission to.take an oath of allegiance does _ not ipso facto cause a member to’vacate his ‘seat; under Regulation VITI of the Bengal Council. Regulations, the discretion is given to the Governor as to his declaring a *. seat to be vacant if the person , elected fails to take an . oath of allegiance.. In my opinion, in this casé the Rule
_ fails and must be discharged, and discharged with costs,
We are of the view that an elected member who has not taken oath but whose name’ appears jn the notification published under | section 73 of the Act can take part in all non-legislative activities of, an elected member. The right of voting at an election to the Rajya
' Sabha can also be exercised by him. In this case since it is not disputed that the name of.the proposer had been included before the |. * date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act
“8B
958 oo ‘SUPREME COURT REPORTS [1984] 1 S.C.R.
and in the electoral roll-maintained under section 152 of the Act, it - should be held that there was no infirmity in the nomination. For the same reason’ even the electoral roll which contained the names of elected members appearing, in the notification issued under section 73
; _ Of the Act cannot be held to be illegal. That is how even respondent _ No.1 appears to have understood the true legal position as he was alse - proposed as a candidate by an elector who had not yet made the oath 6r affirmation. The second coatention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the:
appellant to the Rajya Sabha was set aside. are erroneous, .
In the result we allow the above appeals, .set aside the judgment ” of the High Court and dismiss the election petition filled by respondent No. 1. Having regard to the novelty of the question raised in © this case the parties are directed to bear their own costs throughout.
NV-K. a re Appeals allowed.
a».