The Allahabad High Court has held that time bound contractual services on honorarium basis cannot be termed to be an office of profit and hence, an elected pradhan, receiving honorarium in a private contractual service, alone is not a decisive factor to state that he is disqualified from being pradhan.
Holding an office of profit by an elected pradhan leads to disqualification for membership of a Gram Panchayat, by virtue of Section 5-A(c) of the U.P. Panchayat Raj Act, 1947.
Justice Attau Rahman Masoodi explained that an 'office of profit' has two essential ingredients:
First, a "true pecuniary benefit", based on a master-servant relationship between the government and the person concerned.
Second, the executive authority of the person for which the pecuniary benefit against a position is derived must owe its existence to the office held by him.
Accordingly, he held,
"The payment of honorarium alone is not a decisive factor but it is the master and servant relationship of which the authority and control vests in the government coupled with the fact that the office has an independent existence irrespective of the occupant…an employment of which the position goes with the termination of contract and for which there is no protection of tenure against any disciplinary measure is a pure contract of service, therefore, any incentive to meet out of pocket expenses like payment of honorarium cannot be classified to be an office of profit."
However, the court opined that the efficiency of a candidate in the matter of performance of his/her duties as a Gram Pradhan is always open to be examined as per law. Thus, it directed every District Magistrate to ensure that a CCTV camera and video conferencing facility connected to the district headquarter is installed in the district so that the participation of panchayat members in the meetings at Gram Panchayat is duly ascertained and monitored by the State.
Justice Masoodi also delved into the question whether the State Election Commission has the authority to identify and categorise the offices of profit.
Finding the answer in the negative, he held that the power to prescribe the conditions of disqualification can be exercised exclusively by the legislature of the State or the Parliament.
The court observed that though the State Election Commission is empowered with superintendence, direction and control of the preparation of electoral rolls as well as the conduct of elections, there is no constitutional or statutory prescription to it for laying down what amounts to holding an office of profit.
"By virtue of Article 243(K) of the Constitution of India the State Election Commission is empowered with superintendence, direction and control of the preparation of electoral rolls as well as the conduct of elections. This power vested in the State Election Commission cannot be understood to have conferred upon the Commission an authority to lay down as to holding of what offices would be a disqualification which essentially lies within legislative domain of the State.
The apex court decision rendered in the case of Lily Thomas v. Union of India and others reported in (2013) 7 SCC 653 also gives a clear indication 13 that it is the legislature of the State or Parliament alone which may prescribe the conditions of disqualification. To say that the State Election Commission has a power to specify offices of profit that too without there being any constitutional or statutory authority, in my humble view, is clearly in excess of the jurisdiction," the court observed.
These observations were made in a petition filed by an elected Gram Pradhan who was removed from her services as being disqualified, for her engagement to the office of Auxiliary Nursing Midwifery, on a monthly payment of honorarium.
Noting that the office of ANM had not been notified as an 'office of profit' by the State government, the court set aside the order of dismissal.
The court also disapproved of the fact that the DM had relied upon a notice issued by the State Election Commission according to which certain appointments on honorarium basis lead to disqualification for being an elected member of Panchayat.
"It is not the case at hand that the State Government has prescribed certain appointments on honorarium basis to be a disqualification. Once it is clear that the District Magistrate has placed reliance upon the circular issued by the State Election Commission, this Court has no hesitation to observe that the District Magistrate stepped into an error which is apparent on the face of record."
Case Title: Neelam Nigam v. State Of UP
Case No.: Misc. Single No. 26883/2019
Quorum: Justice Attau Rahman Masoodi
Appearance: Advocate Devendra Pratap Singh (for Petitioner); Standing Counsel Anuj Garg (for State)
Click Here To Download Judgment