Patna High Court - Orders
Veena Devi vs The State Election Commission & Ors on 15 May, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13545 of 2013
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1. Veena Devi W/O Sri Manoj Kumar Chaudhary Resident Of Village -
Akhtiyarpur, P.S. Bikram, District - Patna
.... .... Petitioner/s
Versus
1. The State Election Commission, Bihar Through State Election
Commissioner, Bihar, Sone Bhawan, Birchand Patel Path, Patna
2. The State Election Commissioner, Bihar, Sone Bhawan, Birchand Patel
Path, Patna
3. The Secretary, State Election Commission, Bihar, Sone Bhawan,
Birchand Patel Path, Patna
4. The District Magistrate - Cum - District Election Officer ( Panchayat ),
Patna
5. The Block Development Officer - Cum - Returning Officer, Bikram,
Patna
6. Nalni Kant S/O Resident Of Village + P.O. + P.S. Bikram, District -
Patna
7. Lawlesh Kumar S/O Ram Bhawan Prasad Resident Of Village -
Udarchak, P.S. Bikram, District - Patna
.... .... Respondent/s
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
11 15-05-2014The present writ application is directed against the order dated 03.07.2013 passed by the respondent State Election Commissioner ( for short „the SEC‟) in case No. 19 of 2012 preferred by the respondent no.7 for unseating the writ petitioner after declaring her disqualified to hold the elected post of Mukhiya of Gram Panchayat Raj, Akhtiyarpur, Manjhauli in the District of Patna under Section 136(1)( c)(d) and (i) of the Bihar Panchayat Raj Act, 2006 read with Rule 117 of the Bihar Panchayat Election Rules 2006 ( for short „the Rules‟) framed Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 2/15 under the Act. The writ petitioner has also prayed for appropriate writ in the nature of certiorari setting aside the guidelines/letter issued by the respondent -SEC as contained in letter No. 1499 dated 06.03.2011(Annexure-1) whereby it was instructed to all the District Magistrate-cum- District Election Officer (Panchayat) to hold ASHA workers not eligible to contest the Panchayat election. The petitioner has also prayed for some other ancillary relief(s).
Factual matrix of the case would briefly be indicated. Election to the post of Mukhiya of Panchayat in- question was held in the year 2011. The petitioner filed her nomination on 07.03.2011 to contest the post of Mukhiya. She disclosed in the accompanying bio-data that she was working as the Accredited Social Health Activists ( ASHA). On scrutiny of nomination paper, the same was found valid and accepted. The petitioner was allowed to contest the election. She was declared elected having secured the majority of valid votes. After lapse of more than a year of her such election as Mukhiya, the respondent nos. 6 and 7 filed separate applications/complaints before the respondent- SEC with a prayer to declare the petitioner disqualified to hold the elected post of Mukhiya and un-seat her on the ground that at the time of filing nomination paper the Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 3/15 petitioner was working as ASHA worker. On the basis of those complaints the respondent- SEC registered case no. 19 of 2012 wherein notice was issued to the petitioner. The petitioner appeared and filed her reply contending therein that she was working as ASHA worker at the time of filing of nomination paper which was duly disclosed in the nomination paper which on scrutiny was found valid and accepted. There was no suppression of any fact relating to her engagement as ASHA worker. It was further contended that the petitioner by reason of her assignment as ASHA worker did not hold a civil post or an office of profit rendering her disqualified from contesting the said post. The respondent- SEC by the impugned order dated 03.07.2013 (Annexure-2) relying on the letter /guideline dated 06.3.2011 (Annexure-1) issued by the respondent- SEC held the petitioner disqualified to hold the post of Mukhiya.
Heard Mr. S.B.K. Manglam, learned counsel for the petitioner, Mr. Sanjeev Kumar AC to SC-30 for the State, Mr. Rajni Kant Jha for the State Health Society, Mr. Amit Shirvastava for the respondent -State Election Commission and Mr. K.K. Sinha for the contesting private respondent no.7.
The question which fell for consideration before the respondent- SEC as also before this Court is whether the petitioner Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 4/15 having been engaged as ASHA worker was holding an office of profit and was, therefore, disqualified to contest the election and hold the post of Mukhiya. The respondent-SEC, as is evident from the impugned order, has un-seated the petitioner holding her disqualified under section 136(1)( c)(d) & (i) of the Act in the light of the instruction/guidelines issued by the Commission on 6th of March, 2011 (Annexure-1). The respondent SEC, however, also noted that at the time of filing nomination the petitioner had not disclosed that she was engaged as ASHA worker. The aforesaid observation/findings made in the impugned order does not appear to be supported from the records. The petitioner, in the bio-data furnished along with the nomination paper (Annexure-3), had disclosed that she was also discharging her function as ASHA worker which was merely a social service propelled by incentive(s). The respondent -SEC upheld the contention of the respondent/applicants on the sole ground that in the light of instruction/guidelines dated 6th March, 2011 (Annexure-1) issued by the respondent SEC, ASHA workers was/were not eligible to contest the election in the light of the provisions contained in Section 136(1)( c)(d) and (i) of the Act, and as such, she was disqualified to hold the post. Apart from the above the respondent
-SEC has not considered the matter in the light of other Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 5/15 submissions of the parties that, in fact, the ASHA worker is not the service under the Central or State Government or any local authority or in service of any such institution receiving aid from Central or State Government or any local authority and/or holds any salaried office or office of profit under the Panchayat. The petitioner has, therefore challenged apart from the sustainability of the impugned order passed by the respondent- SEC the legality of the order/communication dated 6.3.2011 (Annexure-1) issued by the respondent- SEC debarring ASHA worker from contesting the Panchayat election in the light of the relevant provisions of the Act. This Court would, therefore, first proceed to examine the pregnability/sustainability of the communication dated 6.3.2011 (Annexure-1).
In order to appreciate the challenge to the said communication/guidelines it would be desirable to first notice the relevant facts and thereafter the legal propositions enunciated by the Courts to be applied for resolution of such dispute.
Under the National Rural Health Mission ( NRHM) every village in the Country has been provided with a trained family community health activities called the Accredited Social Health Activists (ASHA) selected from the village itself by the Aam Sabha of the Gram Panchayat. Such community health Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 6/15 worker after selection is imparted training to work as an interface between the community and the Public health system. Selection of such workers vests in the Gram Panchayat and the performance of her work is monitored by the Medical Officer of the Area. Monitoring and genral supervison of selection of such workers has been assigned to the District Health Society. Any women between the age group of 25 to 45 having the capability or inclination to render such public service and residing within the territory of the Gram Panchayat can be selected who is literate and has at least passed Class 8th examination. In lieu of her performance as ASHA she is paid incentives. In the counter affidavit filed on behalf of the State Health Society , Bihar Patna ( respondent no.8) a chart (Annexure R 8/A) setting out details of incentives headwise payable to ASHA has been enclosed wherefrom it appears that such activists/ workers on performing specified job(s) under maternal health care, immunization, child health, family planning and national disease control programme(s) etc. are paid incentives at prescribed rate(s). On being selected such worker is issued an engagement letter and after completing the training she is required to sign an agreement in the Form appended at Annexure R8/B. On going through the terms of the said agreement it appears that such ASHA worker is not entitled to a Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 7/15 fixed honorarium. They are paid fixed incentives against the social activities performed by them in the specified fields connected with public health care. Indisputably the conditions of their engagement and disengagement are not governed by any Rule but by the guidelines issued by the State Health Society under NRHM.
The holder of office of profit under the Central Government or the State Government have been declared ineligible to contest election under various laws/statutes. In the context of the present Act also, any person holding office of profit is declared ineligible/disqualified to contest the election (see Section 136 of the Act). However, what shall constitute an office of profit has not been defined in any of the Act/statute although creating a bar for such holder/person from contesting the election. This is also the case under the Act in question. The Hon‟ble Apex Court in the case of Shivamurthy Swami Inamdar vs. Agadi Sanganna Andanappa & Anr. [1971 (3) SCC 870] dealing with this issue held as under in para 14 ( at pg 875 of the report):-
".....In other words, the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached. The word „profit‟ connotes the idea of pecuniary gain. If there is really a gain, its quantum or Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 8/15 amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit-see Revenna Subanna v. G.S. Kaggerappa . This Court in several decisions has laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests are: (1) whether the Government makes the appointment; (2) Whether the government has the right to remove or dismiss the holder; (3) Whether the government pays the remuneration; (4) What are the functions of the holder? Does he perform them for the government and (5) Does the Government exercise any control over the performance of those functions?"
Again dealing with the said point/issue the Apex Court in Shibu Soren vs Dayanand Sahay & Ors. [(2001) 7 SCC 425] emphasizing the need of taking a realistic view crystallizing from the attending facts of the case observed as under in para 26:-
"26. The expression "office of profit" has not been defined either in the Constitution or in the Representation of the People Act. In common parlance the expression "profit" connotes an idea of some pecuniary gain. If there is really some gain, its label-"honorarium"- "remuneration"- "salary" is not material- it is the substance and not the form which matters and even the quantum or amount of "pecuniary gain" is not relevant- what needs to be found out is whether the amount of money receivable by the person concerned in connection with the office he holds, gives to him some Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 9/15 "pecuniary gain", other than as "compensation" to defray his out-of-pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him."
The Hon‟ble Apex Court in the said report clearly called upon the Court or the Tribunal engaged with adjudication of such dispute to desist from taking a broad or general view ignoring essential details of the service or job rendered by such holder of the office before finding that the office held by such person would be an office of profit. Essential details or particular facts of the case are, therefore, mandated to be taken into consideration with a view to examine whether the holder of the office can be held as the holder of office of profit. The Apex Court further pointed out the test(s) or the parameters to be applied to find whether the person holds an office of profit under the Government or the local body as the case may be reiterating its view expressed in Satrucharla Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev & Anr. [(1992) 4 SCC 404]. It is profitable to extract hereinbelow para 29 of the said report (Shibu Soren vs Dayanand Sahay & Ors.) which reads thus:-
"29. When can a person be said to be holding an office of profit "under the Government" came up for consideration by this Court in Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 10/15 after examining a catena of authorities, it was opined : (SCC pp.413-14 para11) "11. on a careful examination of the ratio laid down in the abovementioned cases some of the tests or principles that emerge for determining whether a person holds an office of profit under the Government, may be summarized thus:
(1)The Power of the Government to appoint a person in office or to revoke his appointment at its discretion. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the legislature.
(2)The payment from out of the government revenues are important factors in determining whether a person is holding an office of profit or not of the government. Though payment from a source other than the government revenue is not always a decisive factor.
(3)The incorporation of a body corporate and entrusting the functions to it by the Government may suggest that the statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent.
Sometimes, the form may be that of a body corporate independent of the Government, but in substance, it may just be the alter ego of the Government itself.
(4) The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by very other bodies or committees, and its composition, the degree of its dependence on the Government for its financial needs Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 11/15 and the functional aspect, namely, whether the body is discharging any important governmental function or just some function which is merely optional from the point of view of the Government."
Seen thus, the Hon‟ble Apex Court propounded the legal tests/parameters to be applied in determination of the core question. Each case has to be judged in the light of the relevant provisions of the statute and its own peculiar facts. While challenging the sustainability of the communication (Annexure-
1) issued by the respondent- SEC, learned counsel for the petitioner has urged that the same does not meet these requirements. In fact, no consideration of the relevant parameters in the light of the rule provision has been made before issuing the said communication as is evident from bare perusal thereof. This Court would extract hereinbelow the contents of Annexure-1:-
"fo"k;%& iapk;r vke fuokZpu 2011% vk"kk dk;ZdRrkZ ds in ij dk;Zjr efgyk ds iapk;r pquko esa vH;FkhZ cuus ds laca/k esa A egk'k;
funs'kkuqlkj mi;qZDr fo'k; ds lac/ak esa dguk gS fd dfri; O;fDr;ksa }kjk fyf[kr :i ls ,oa nwjHkk"k ij ;g i`PNk dh tk jgh gS fd vk"kk dk;ZdRrkZ ds :i esa dk;Zjr efgyk iapk;r fudk;ksa@xzke dpgjh ds inksa ij ukekadu nkf[ky dj ldrh gS vFkok ugha\ 2 fcgkj iapk;r jkt vf/kfu;e] 2006 dh /kkjk 136 ¼1½ dh dafMdk& ¼x½] ¼?k½ ,oa ¼>½ esa mfYyf[kr fujgZrk laca/kh izko/kkuksa ds vkyksd esa vk"kk dk;ZdRrkZ ds fujgZrk ds laca/k esa vk;ksx }kjk leh{kk dh x;h ,oa leh{kksijkar ik;k x;k fd vk"kk dk;ZdRrkZ ds in ij fu;qDr efgyk iapk;r fudk;ksa@xzke dpgjh ds inksa ds fy;s fuokZpu ugha yM+ ldrh gSA"Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 12/15
In this context, it has further been submitted that the Punjab State Election Commission ( for short „the PSEC‟) in some what similar manner had issued a circular dated 30-04-2008 debarring the „Lambardars‟ and „Anganwadi workers‟ from contesting the election as they were holding office of profit under the State Government in the light of Shivamurthy Swami Inamdar (supra) which fell for consideration before the Hon‟ble Apex Court in Anokh Singh vs. Punjab State Election Commission (2011) 11 SCC 181. In consideration of the submissions made by the parties and on perusal of the said Circular the Hon‟ble Apex Court found and declared the said Circular unsustainable in law being based on mis- interpretation of the law laid down in Shivamurthy Swami Inamdar (supra). The Apex Court in paragraph no. 35 of Anokh Singh (supra) stated as under:-
"35.A perusal of the circular would clearly show that the State Election Commission has failed to take note of the factual situation. The circular is based on a misinterpretation of the law laid down by this court in Shivamurthy nor Ravanna Subanna. There is no material on the record to show that the receipt of Rs.900 per month by the Lambardar would invariably lead to a saving."
Along with Interlocutory Application No. 1594 of Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 13/15 2014 the petitioner has enclosed a communication dated 11.02.2014 issued by the Secretary, Health-cum-Executive Director of respondent State Health Society, Bihar (Annexure-A) whereby the Secretary of the respondent- SEC was requested to review the order/instruction issued by the respondent SEC dated 6th March, 2011 (Annexure-1) indicating therein that ASHA worker primarily discharge the function of a social activist who performs such function after discharge of her daily chore. They do not receive any fixed honorarium. They should therefore, not be treated as holder(s) of an office of profit inasmuch as several States of the Union Of India have not imposed such ban on such worker from contesting the Panchayat election. Nothing has been brought to the notice of this Court that in the light of such request made by State Health Society, Bihar, the respondent -SEC has re- considered/ reviewed the matter in so far as the instruction/direction dated 6.3.2011 (Annexure-1) is concerned. Even otherwise also this Court is satisfied that the instruction issued by the respondent- SEC vide communication contained in Annexure-1 is bereft of any reason in support thereof. This Court further finds that the application filed by the private respondent(s) herein was allowed and the petitioner was unseated from the post in- question principally relying on the said Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 14/15 communication/instruction dated 06.03.2011 issued by the respondent- SEC. The legality of the order passed by the statutory authority has to be judged by the reasons assigned therein and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Law, in this regard, formulated by the Hon‟ble Apex Court in AIR 1978 SC 851= (1978) 1 SCC 405 [(Mohinder Singh Gill & Anr. V. The Chief Election Commissioner, New Delhi & Ors.)] is, by now, well settled. Bearing in mind those principles of law this Court, on critically analyzing the impugned order dated 03.07.2013 passed by the respondent SEC is unable to uphold the same. The legality of the communication/circular dated 06.03.2011 issued by the respondent- SEC which formed the basis of the order is also under challenge. This Court finds the said communication/instruction dated 06.03.2011 debarring the desirous candidate like the petitioner from contesting the election does not meet the legal requirements of law. The said communication /instruction dated 06.03.2011 (Annexure-1) is held in-operative in law w.e.f. the date of this order, until the said matter is reconsidered/ reviewed by the respondent- SEC in the light of request made by the Secretary, Department of Health-cum Executive Director of the respondent State Health Society,Bihar.
Resultantly, the application is allowed. The order Patna High Court CWJC No.13545 of 2013 (11) dt.15-05-2014 15/15 dated 03.07.2013 passed by the respondent -SEC in case no. 19 of 2012 is quashed and set aside and the said case is restored on the file of the respondent- SEC for fresh consideration and disposal in accordance with law uninfluenced in any manner by the instruction/circular dated 06.03.2011 (Annexure-1) issued by the respondent -SEC. Both parties shall produce copy of the present order before the respondent- SEC enabling the said authority to dispose of the case afresh in accordance with law .
Parties are left to bear their own cost(s).
(Kishore Kumar Mandal, J) Shyam/-