Karnataka High Court
Ramakrishna Hegde vs The State Of Karnataka And Others on 17 September, 1992
Equivalent citations: AIR1993KANT54, 1992(4)KARLJ324, AIR 1993 KARNATAKA 54
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER
1. Briefly stated the facts leading to the writ petition are:
The petitioner was elected as a Member of the Karnataka Legislative Assembly from Basavanagudi Constituency, Bangalore City on 27th Nov, 1989. He was offered the post of Deputy Chairman of the Planning Commission in the rank of Cabinet Minister. Since he was aware that acceptance of an 'office of profit' under the Government of India would be a disqualification for being a Member of the Legislative Assembly, he was not inclined to accept the offer. Accordingly, he conveyed his views to Government of India. When consulted the Law Ministry advised the Government of India that in view of the provisions of Karnataka Legislature (Prevention of Disqualification) Act, 1956 (for short the 'Act') there would be no bar on the petitioner holding the post of the Deputy Chairman of the Planning Commission and to continue as Member in the Karnataka Legislative Assembly so long as he does not receive any remuneration other than the compensatory allowance for holding the post of Deputy Chairman of the Planning Commission. Thereafter, the petitioner accepted the post of the Deputy Chairman of the Planning Commission. In the order of appointment of the petitioner to the said post, it is specifically stated that the petitionr would not draw any salary, he would be entitled only to the travelling allowance/daily allowance, conveyance allowance or a chauffer-driven car and house rent allowance or rent free furnished accommodation including free supply of electricity and water. Having accepted the said appointment on the terms and conditions mentioned in the appointment order Annexure A, the petitioner held the said post till 6-7-1990, on which date he tendered his resignation to the post of Deputy Chairman of the Planning Commission. In the meanwhile, he continued as a Member of the Legislative Assembly.
2. The third respondent filed a petition dated 30-12-1989 under Art. 192 of the Constitution of India to His Excellency the Governor of Karnataka contending that the post of Deputy Chairman of the Planning Commission has the status of a Cabinet Minister of Union of India; the incumbent of the said post is entitled to receive all benefits of a Cabinet Minister; therefore the aid office was capable of yielding the pecuniary gain and it is an office of profit attracting Art. 191(1)(a) of the Constitution of India; hence action is to be taken as the petitioner has incurred disqualification under the said Article. The Governor of Karnataka referred the complaint of the third respondent under Art. 192(2) of the Constitution to the second respondent-Chief Election Commission to obtain opinion on the question as to disqualification of the petitioner. The petitioner received a notice from the second respondent to answer the complaint. He replied to the said notice raising various objections. He has specifically stated in the reply that so long as the incumbent of the office of the Deputy Chairman of the Planning Commission did not draw any salary other than the compensatory allowance he will not incur disqualification under Art. 191(1)(a) of the Constitution. He has specifically stated that as per the terms of the appointment order-Anne-xure-A he could draw no salary; therefore there was no question of the petitioner holding office of profit and that the petitioner as a matter of fact also did not draw any salary. It was further pointed out that in view of the provisions of the Act the office held by the petitioner as Deputy Chairman of the Planning Commission on the terms mentioned did not attract disqualification under Article 191(1)(a) of the Constitution.
3. Since the second respondent did not proceed with the complaint for some time the third respondent filed W.P. No. 17666/90 before this court seeking a writ of mandamus to the second respondent to furnish its opinion. In the said writ petition the petitioner was the second respondent. The learned single Judge rejected the writ petition by his order dated 29-8-1990 holding that the provisions of Art. 191 prima facie were not attracted to the facts of the case in view of he fact that the petitioner had ceased to be the Deputy Chairman of the Planning Commis-sion. Aggrieved by the said order of the learned single Judge, the third respondent took up the matter in W. A. No. 1963/90. The Division Bench of this Court disposed of the said writ appeal on I3-3-199I directing the second respondent to dispose of the matter expeditiously and at the same time set aside the order of the learned single Judge without hearing the petitioner as he was deleted from the array of the respondents in the said writ appeal at the instance of the third respondent. Thereafter the second respondent having heard parties and their Counsel tendered its opinion to the Governor of Karnataka under Art. 192(2) of the Constitution in Reference Case No. 1/90 dated 4-7-1991. On the basis of the said opinion rendered by the second respondent the Governor of Karnataka by his order dated 6th Aug. 1991 Annexure J has disqualified the petitioner from the Membership of the Karnataka Legislative Assembly with effect from 5-12-19S9. Hence, this writ petition is filed seeking a writ in the nature of certiorari quashing the order Annexure J dated 6-8-1991.
4. Respondent No. 1 is represented by the learned Advocate General. Respondent No. 2 though served has remained unrepresented. The respondent No. 3 having entered appearance has filed the statement of objections stating that the petitioner cannot maintain the writ petition and he is not entitled for any releif. The order passed by the Governor of Karnataka cannot be called in question in view of the embargo placed under Art. 361 of the Constitution. In the writ petition the Governor is not made party because of the constitutional prohibition. The impugned order was passed by the Governor in his exclusive power without the aid and advise of the State Cabinet or the State Government. As such the State of Karnataka cannot have any say in the matter. Hence, the impugned order is not justiciable and the writ petition is not at all maintainable.
5. It is further contended in the statement of objections that after the impugned order was passed the petitioner convened a press conference, attributed mala fides to respon-
dents 1 and 2 and described the order impugned as absurd, vindictive, motivated, etc. The statement of the petitioner received wide publicity through the medias. Further the order passed by the Governor of any State or the President of India is not open to challenge under Art. 226 of the Constitution of India except on the grounds that the order was passed :
(a) on collateral considerations.
(b) in contravention of the rules of natural justice.
(c) on no evidence or
(d) on the advise of the executive or other authority, who was not entitled to advise the Governor in the matter of exercising the quasi-judicial functions.
In this writ petition the petitioner has not raised any of these grounds, but only states that the order of disqualification is bad in law because he had not received any salary as the Deputy Chairman of the Planning Commission. The Petitioner was aware that the office of the Deputy Chairman of the Planning Commission was an 'office of profit', and therefore an arrangement was made that he should not receive the salary attached to the office. He has adopted a clever mechanism to avoid disqualification. The opinion of the law Ministry that in view of the provisions of the Act there would be no bar to the petitioner holding the office of the Deputy Chairman of the Planning Commision does not help the petitioner at all. Thus, respondent No. 3 prayed for dismissal of the writ petition.
6. Sri Santhosh Hegde, learned counsel for the petitioner, contended that :
(1) As per the appointment order Annexure-A under which the petitioner was appointed as the Deputy Chairman of Planning Commission he was not entitled to draw salary except the allowances mentioned therein. Hence, the second respondent ought to have held that the petitioner was not holding any 'office of profit'.
(2) The second respondent has failed to see that the provisions of the Act clearly pro-
tected the Membership of the petitioner in the Karnataka Legislature Assembly despite the fact that the petitioner held the post of Deputy Chairman of the Planning Commission of India. Further, any disqualification, if incurred by the petitioner, the same was removed under Section 3 of the Act.
(3) The impugned order-Annexure-J was passed in violation of the principles of natural justice inasmuch as the second respondent has relied on certain office files, contents of which were not disclosed either to the petitioner or to his Counsel. Even the impugned order-Annexure-J was passed without giving any opportunity to the petitioner after receiving opinion from the second respondent.
(4) The writ petition is maintainable on the facts of the present case. In view of Art. 361 of the Constitution Governor could not have been impleaded in the writ petition. The impugned order-Annexure-J although was passed by the Governor of Karnataka it was passed according to the opinion Annexure-H given by the second respondent the Election Commission of India. Under Art. 192(2) of the Constitution the order has to be passed according to the opinion given by the Election Commission. There was no choice or discretion left to the Governor under Art. 192(2) of the Constitution. Since the Governor has acted according to the opinion given by the second respondent, which opinion was effective and material, the peiitioner has impleaded the Election Commission as the second respondent besides State of Karnataka represented by the Chief Secretary. Thus, the writ petition is perfectly maintainable.
The learned Counsel has cited few decisions in support of his submissions, to which I will refer to them at appropriate stage.
7. Sri V.H. Ron, learned Counsel for respondent No. 3, urged that the writ petition itself is not maintainable against the action of the Governor in passing the impugned order-Annexure-J, as ihe action was not the one taken on the aid and advise of Council of Ministers under Art. 163 of the Constitution of India. The opinion of the Election Commission has merged with the impugned order Annexure J. Hence, the same cannot be questioned in view of Art. 361 of the Constitution. The petitioner cannot challenge the action of the Governor as he cannot implead the Governor. The learned counsel for respondent No. 3 has cited few decisions in support of his submissions.
8. Sri A.K. Subbaiah the third respondent at the subsequent date of hearing when Sri. V.H. Ron, learned Counsel was not able to come to the Court, supplemented the arguments contending that :
(1) the office of Deputy Chairman, Planning Commission carries pay scales. Even though the petitioner did not get salary, the fact that he enjoyed a Cabinet rank and got various allowances including well furnished free accommodation, chauffer-driven car and could travel any where in India having the facility of the State Guest are sufficient to hold that the petitioner had held the office of profit as Deputy Chairman of Planning Commission.
(2) The Planning Commission is not a Committee within the meaning of Sec. 2A of the Act. Even otherwise the office of Chairman or a Member of a Committee shall disqualify the holder of such office if he is in receipt of or entitled to any remuneration other than the compensatory allowance. In the instant case the office of the Deputy Chairman of the Planning Commission was entitled to remuneration. It was immaterial whether the petitioner received salary or not. Hence, the Act did not remove the disqualification incurred by the petitioner. He also cited decisions in support of his arguments.
9. Sri P. P. Muthana, learned Advocate General, submitted that the Governor has acted only in a accordance with the opinion of the Election Commission.
10. I have carefully considered the submissions made by the learned counsel appearing for the parties.
11. In view of the objections by respondent No. 3 as to the very maintainability of the writ petition, I will take up that point first, for consideration.
12. It was contended that the opinion of the Election Commission merged with the impugned order Annexure J; the Governor has passed the impugned order without the aid and advise of Council of Ministers under Article 163 of the Constitution; the Chief Secretary of the State of Karnataka cannot represent or defend the Governor in a case like this, as such the Governor cannot he impleaded as respondent in view of the bar contained under Article 361 of the Constitution and in the absence in the proceedings, no relief can be granted to the petitioner.
13. Under Article 192 of the Constitution whenever a question arises whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the Governor shall obtain opinion of the Election Commission on such question and shall act according to such opinion under Article 192(2) of the Constitution. In this regard the Governor acts in the exercise of all constitutional authority and in the discharge of his constitutional obligation in referring the question as to the disqualification and obtaining the opinion of the Election Commission. Article 192 does not leave any discretion or choice to the Governor. He has to refer a question as to the disqualification to the Election Commission for its opinion and shall act according to such opinion. In effect and substance it is the opinion of the Election Commission that decides the fate of a Member of the Legislature of a State. Although the impugned order Annexure J is made by the Governor, it is only a formal order. The Election Commission is very much before the Court as the second respondent in this petition. Further, there is no much controversy on facts and they are not debated before me.
14. In the case of Brundaban Nayak v. Election Commission of India, the scheme of Article 192 came up for consideration. In the said decision also the Governor was not party to the proceedings. Para 6 of the said decision reads at page 1886 :
"We are satisfied that this contention also is not well founded. The scheme of Art. 192(1) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces this decision under Art. 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad's contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice oh the appellant calling upon him to file his statement and produce his evidence in support thereof."
This view of the Supreme Court found favour in the later case -- The Election Commission of India v. N. G. Ranga, . In the said case also the President of India was not before the Court.
15. In (Samsher Singh v. State of Punjab) in para 149, the Supreme Court has stated (at page 2228) :
"The constitutional mechanism is that the President (Governor) shall refer the question of disqualification of a member for the opinion of the Election Commission and 'shall act according to such opinion', so that whether the right to decide is formally in the President or is to be exercised by the aid and advice of his Ministers, it is immaterial, since the actual adjudication has always to be made by the Election Commission which binds the Government and the President merely appends his signature to the order in regard to such decision".
The Full Bench of Madras High Court in K.S. Haja Shareff v. His Excellency the Governor of Tamil Nadu, Madras, has ruled that as against a decision pronounced under Art. 192(1), a writ petition could be entertained under Art. 226 by a High Court, although the scope of judicial review is limited in its extent to the situations mentioned in para 14 of the said decision.
16. Having regard to the scheme as contained in Arts. 191 and 192 of the Constitution, the decision on the question raised under Art. 192(1) undoubtedly has to be pronounced by the Governor, but that decision has to be essentially in accordance with the opinion of the Election Commission. A complaint in respect of a disqualification subsequently incurred by a member of a Legislature in substance has to be tried by the Election Commission though the decision in the form has to be made by the Governor. Actual adjudication has always to be made by the Election Commission although formal order has to be pronounced by the Governor under Art. 192(2) of the Constitution. It is exactly what is done in the case on hand. Since the Governor has no choice or discretion but to pass the order in accordance with the opinion of the Election Commission under Art. 192(2) of the Constitution, the writ petition is maintainable even in the absence of Governor being a party to the proceedings when the Election Commission is itself before the Court.
17. The next point that comes up for consideration is whether the petitioner became subject to the disqualification for being a Member of the Karnataka Legislative Assembly under Art. 191(J)(a) of the Constitution.
18. The petitioner was appointed as Deputy Chairman of the Planning Commission as perthe appointment order-Annexure-A dated 13th December, 1989 on the terms and conditions mentioned therein. Since the said document has material bearing on the question to be decided, I consider it appropriate to reproduce the same :
"No F.6(1397)/89-Adm. T Government of India Planning Commission Dated 13th December, 1989 ORDER Subject : Terms and conditions of the appointment of Shri R. K. Hedge as Deputy Chairman, Planning Commission.
The appointment of Shri R. K. Hegde as Deputy Chairman, Planning Commission notified by the Cabinet Secretariat's Notification No.A-12031/2/89/Adm.I, dated 5th December, 1989 will be governed by the following terms and conditions :
(1) Shri. Hegde will draw no salary; and (2) he would be entitled only to the following :
(a) Travelling allowance/daily allowance;
(b) conveyance allowance or a chauffer-driven car; and
(c) house rent allowance or rent-free furnished accommodation, including free supply of electricity and water.
(M. N. Varadarajan) Under Secy. to the Govt. of India,"
It is clear from the terms and conditions of appointment order of the petitioner as Deputy Chairman of the Planning Commission that he was not to draw any salary, but was entitled to travelling allowance/daily allowance; conveyance allowance or a chauffer-driven car and house rent allowance or rent-free furnished accommodation, including free supply of electricity and water. It is not disputed that the petitioner did not receive any salary. From the aforesaid appointment order it is clear that he was not entitled to receive any remuneration. Whether receiving of allowances mentioned therein amount to any profit to the petitioner so as to state that the petitioner was holding 'office of profit' under the Government of India is a matter to be examined. Further, whether the disqualification, if any, incurred by the petitioner was removed by virtue of S. 3 of the Act is also a matter for consideration. It is not the case that any fixed salary was attached to the post of the Deputy Chairman of the Planning Commission and no material is placed to show that the said post carried with it a pay scale or a fixed salary. Even there is no finding of respondent No. 2 in this regard. What were the conditions of appointment are to be seen from the appointment order-Annexure-A itself. As stated already, the petitioner neither received the salary nor he was entitled to receive any salary.
19. The Supreme Court in the case of Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Kolhe, has stated that a question whether a person holds an office of profit should be interpreted reasonably, having regard to the circumstances of the case and the times with which one is concerned, as also the class of persons whose case is dealt with and not divorced from reality. A person may hold an office, but he need not be the holder of the office of profit within the meaning of Art. 191(1)(a) of the Constitution so as to incur disqualification. The word 'profit' connotes the idea of pecuniary gain. Hence, in deciding the question whether the office really carried any profit, the amount of money receivable by a person by virtue of holding such office becomes material.
20. In the case of Umrao Singh v. Darbara Singh the Supreme Court considered the case of the successful candidate, who was the Chairman of a Panchayat Samithi. He was paid Rs. 100/- a month as a consolidated allowance for performing all official duties and journeys concerning the Panchayat Samitis. He was also granted mileage and daily allowance for journeys performed for any official work outside the District. The Court pointed out that there was no evidence from which an inference could be drawn that the amount received by a Chairman for travelling allowance or daily allowance was in excess of the amount of expenditure, although the said allowances were in addilion to the payment of consolidated monthly allowance and as such it was not established that there was any pecuniary gain to the Chairman.
The Supreme Court yet in another case Divya Prakash v. Kultar Chand Rana, has ruled that (at page 1068) :
"In the absence of any profit accruing to the Chairman as a result of the holding of the office of Chairman, it cannot be said that he was holding an office of profit".
In the said decision the Supreme Court has followed the aforesaid decision in Karbhari Bhimaji Rohamare's case. Para 2 of the decision reads :
"The only ground which is relevant for the purpose of decision of this appeal and which was urged before this Court, was that as the 1st respondent was holding an office of profit under the State Government he was disqualified under Art. 191(1)(a) of the Constitution to be elected as a member of the State Legislative Assembly. The 1st respondent was nominated Chairman of the Board of School Education of Himachal Pradesh in the year 1969 by the Himachal Pradesh Government under the provisions of Himachal Pradesh Board of School Education Act, 1969. At all relevant times he was holding that post. Under S. 18 of the Act the Chairman is nominated by the Government. The Board is constituted by the Government under S. 3 of the Act. Though there is nothing said in the Act about the authority competent to remove the Chairman from his office it may be assumed for the purposes of this case that the Government was competent to do so. There can be very little dispute and indeed it is not disputed that the office of the Chairman of the Board is an office under the State Government. The only question is whether it is an office of profit. Admittedly, the 1 st respondent was not in receipt of a salary. The order appointing him to the post of Chairman makes it clear that he was appointed only in an honorary capacity. The fact that he was entitled to receive travelling and daily allowance in the course of the discharge of his duties as Chairman would not be a disqualification because of the provisions of S. 3(m) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, and this is not disputed. What is, however, contended on behalf of the appellant is that though the 1st respondent might not have been in receipt of a salary, the post itself carried a scale of pay and therefore it is an office of profit which the 1st respondent was holding. We are unable to agree. The question is whether the holding of the office has resulted in any profit to the holder of that office, however small that profit may be. We have discussed this question at great length in the judgment delivered by us today in C.A. No. 2365 of 1972 (reported in) . In the absence of any profit accruing to the 1st respondent as a result of the holding of the office of Chairman it cannot be said that he was holding an office of profit. This is not even a case where the Chairman was appointed to an office and a salary was provided for him by the order of appointment or he was entitled to a salary as a result of the appointment and he gave up his right to the salary. The order of appointment itself was one made in an honorary capacity.".
The Supreme Court proceeded to say that the test for deciding whether a person holds an office of profit is very simple. The test being whether he can sue for or otherwise claim the scale of pay fixed. In the face of the order of appointment such a claim would not be upheld. In the case on hand looking to the order of appointment-Annexure-A the petitioner could not have sued or otherwise claimed any remuneration.
21. In Ravanna Subanna v. G. S. Kaggeerappa S. 2 of the Mysore Legislature (Prevention of Disqualifications) Act 1951 came up for consideration, which provision is similar to S. 3 of the Act, if not identical. This is what the Supreme Court has stated in para 13 of the decision (at page 657) :
"The High Court in deciding this point against the appellant laid great stress upon the provision of S.2 of the Mysore Legislature (Prevention of Disqualifications) Act 1951 which lays down that :
"a person shall not be disqualified for being chosen and for being a member of the Mysore Legislature by reason only of the fact that he holds any of the offices of profit specified in the schedule to the Act".
Item No. 2 of the schedule mentions "the Chairman, Director or member of any committee or board appointed by the Government". All that the section lays down is that persons holding certain offices, as specified in the schedule, amongst which the Chairman or a member of a committee or board appointed by the Government is included shall not be disqualified for being chosen as a member of the Legislature by reason only of the fact that he holds an office of profit.
We do not think that the implication of the provision is that the offices mentioned in the schedule must necessarily be regarded as offices of profit, irrespective of the fact whether any profit is at all attached to them or not and that but for these provisions the persons holding them could not have been eligible for being chosen as members of the Legislature. The object of the section may be to grant exemption to holders of offices of certain descriptions and the provision in substance is that they will enjoy this exemption even though otherwise they might be regarded as holders of offices of profit.
In any view it cannot be argued that even if a Chairman or a member of a Government committee works in a purely honorary capacity and there is no remuneration attached to the office, he will still be regarded as a person holding office of profit in view of the provisions of the section. This provision might in our opinion have been made only out of abundant caution and nothing else. We think therefore that the view taken by the High Court is not right and as we hold that the appellant was not holding any office of profit under the Government at the material time he was certainly entitled to be chosen as a Councillor under the Mysore Town Municipalities Act. The result is that we allow the appeal, set aside the judgment of the High Court and restore that of the Sub-Judge, Tumkur. The appellant will have the costs of this appeal".
22. In this back-drop of the position of law, let me now consider the facts of the case on hand. The petitioner was appointed as Deputy Chairman of the Planning Commission under Annexure-A. He was not entitled to draw any salary except the allowances mentioned in the order of appointment. In the memorandum dated 30th December, 1989-Annexurc-B submitted by the third respondent to the Governor of Karnataka it is stated that the office of the Vice-Chairmanship of the Planning Commission of India is an office to which definite duties are attached, which are of public character. Further the said office is a permanent substantive position which exists independently of the holder. Since the said office is capable of yielding a profit or pecuniary gain it is an office of profit for the purpose of Art. 191(1)(a) of the Constitution of India. Therefore, the petitioner is disqualified for being a Member of the Karnataka Lagislative Assembly.
23. It was not disputed before the second respondent that the office of the Deputy Chairman of the Planning Commission is an office under the Government. The dispute is confined to the question whether this office is an 'office of profit'.
Section 2(a) of the Act defines the 'Committee' as :
"'Committee' means any Committee, Commission, Council, Board or any other body of one or more persons whether statutory or not, set up by the Government of India or the Government of any State".
Compensatory allowance is defined in S.2(b), which reads :
"'Compensatory allowance' means such sum of money as the Central Government, or the Government of any State, as the case may be, may determine as being payable to the Chairman of any other member of a Committee by way of travelling allowance, daily allowance, sitting fee, conveyance allowance or house rent allowance for the purpose of enabling the Chairman or other member to recoup any expenditure incurred by him in attending any meeting of a Committee or performing any other function as a member of a Committee".
Section 3 of the Act so far it is relevant reads thus :
"3. Removal of certain disqualifications: It is hereby declared that the following offices shall not disqualify and shall be deemed never to have disqualified, the holders thereof for being chosen as, or for being members of the Karnataka Legislative Assembly or the Karnataka Legislative Council :
(a) to (c) xx xx xx xx xx
(d) the office of the Chairman or Member of a committee :
Provided that the holder of any such office is not in receipt of or entitled to, any remuneration other than the compensatory allowance".
The definition of 'Committee' takes within its fold 'Commission' also. Hence, the Planning Commission is also a Committee for the purpose of the Act. The third respondent urged that the Planning Commission cannot be included within the meaning of 'Committee'. Even otherwise the case of the petitioner does not fall under S. 3(d) as he was entitled to receive remuneration although he did not draw salary. Hence, he had subjected himself to disqualification. He added, receiving of various kinds of allowances, chauffer-driven car, rent free furnished accommodation and having the privileges of a State Guest and the rank of a Cabinet Minister amounted to profit to the petitioner by virtue of holding the office of the Deputy Chairman of the Planning Commission.
24. From the plain reading of the definition of the Committee under the Act, it is clear that the Planning Commission is a Committee for the purpose of the Act and the third respondent himself in Annexure-B has stated that the office of the Vice-Chairmanship of the Planning Commission is a permanent substantive position which exists independently of the holder. The allowances to which the petitioner was entitled under the terms and conditions of his appointment order as can be seen from Annexure-A come within the meaning of Compensatory Allowance. No material was placed either before the second respondent or in this Court to show that any salary or pay scale was attached to the post of the Deputy Chairman of the Planning Commission to state that the petitioner was entitled to any remuneration. In addition, the appointment order-Annexure-A has spelt out clearly that the petitioner would draw no salary. The learned Counsel for the petitioner contended that each time whenever a person was appointed as Deputy Chairman of the Planning Commission in the past he was appointed on the terms and conditions agreed to. Since under the very appointment order the petitioner was not entitled to draw any salary his case is covered by clause (d) of S. 3 of the Act.
25. The other aspect to be considered is whether the petitioner as a matter of fact profited himself by holding the office so as to call it a pecuniary gain. No material was placed either before the second respondent or before this Court to show that the petitioner had a pecuniary gain by receiving allowances which were above the actual expenditure so as to make profit as observed by the Supreme Court in Karbhari Bhimaji Rohamare's case. Yet again, as laid down by the Supreme Court in the said case each case has to be considered reasonably and taking into consideration the person involved so as to say that he has made profit by holding the office. In the instant case the petitioner has received allowances which come within the meaning of 'Compensatory Allowance' as a Deputy Chairman of the Planning Commission (Committee for the purpose of the Act). Whether a person holds an office of profit shoule be interpreted reasonably taking into consideration the class of person at the relevant time. Merely because the petitioner had some privileges as a State Guest or a rank of a Cabinet Minister, it cannot be said that he had pecuniary gain. In the instant case, no evidence was placed before the second respondent to show that the office of the Deputy Chairman of the Planning Commission really carried any profit. The petitioner looking to the order of appointment-Annexure-A could not have sued or otherwise claimed any salary. Judged by the test indicated by the Supreme Court in the case of Divya Prakash v. Kultar Chand Rana, it cannot be said that the petitioner held an office of profit. In the light of the law laid down by the Supreme Court in the aforementioned cases of Umrao Singh and Divya Prakash and keeping in view the facts of the case on hand I have no hesitation to hold that the petitioner did not hold the 'office of profit' as Deputy Chairman of the Planning Commission.
26. The third respondent, in view of the Full Bench decision of the Madras High Court in K. S. Haja Shareff v. His Excellency the Governor of Tamil Nadu, Madras, urged that a writ petition could be entertained under Art. 226 by a High Court questioning a decision pronounced under Art. 192, but the petitioner could secure relief only by establishing vitiating factors, namely, that order was passed by the Governor (i) on collateral considerations or (ii) the rules of natural justice were not observed or (iii) the Governor's judgment was coloured by the advice or representation made by the Executive, or (iv) it was founded on no evidence.
27. In the instant case, as stated above no evidence was placed before the second respondent to show that the petitioner had pecuniary gain or profit by holding the office. Further, as stated in the aforesaid decision if a Constitutional functionary, whom power had been conferred to take a decision which has the seal of finality, wrongly interprets the Constitutional provisions, then the decision so arrived at will have to be set aside by issue of a writ of certiorari, because it would not be a valid order in the eye of law.
28. In this view of the matter, the impugned order-Annexure-J dated 6-8-1991 is liable to be quashed holding that the petitioner had not subjected to disqualification under Art. 191(1) of the Constitution.
29. In the result, for the reasons stated, this Writ Petition is entitled to succeed. Hence, I proceed to pass the following order :
(1) The Writ Petition is allowed.
(2) The impugned order dated 6-8-1991 passed in Case No. GS 620 PC 1989-Annexure-J is quashed.
(3) No costs.
30. Petition allowed.