Tarun Agarwala, J.
Heard Sri Neeraj Garg, the learned counsel for the petitioner and Sri Paresh Tripathi, the learned Addl. C.S.C. for the respondents.
By means of this writ petition, the petitioner has challenged the validity and legality of the order dated 15th March, 2012 by which the petitioner was removed by the District Magistrate u/S 5-A (c) read with Section 95 (1) (g) (v) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the âAct of 1947).
The facts leading to the filing of the writ petition is, that the petitioner was appointed on 04.07.2001 as a Junior Clerk in Balganga Mahavidhyalaya, Central Camer in Tehri Garhwal. On 24th July, 2007, his services were confirmed. The institution at the relevant moment of time was a non-aided educational institution and was also affiliated to H.N.B. Garhwal University. The salary was paid to the petitioner from the own resources of the Committee of Management. In the year 2008, the petitioner applied to the institution seeking permission to contest the election on the post of Gram Pradhan of Gram Panchayat Dhabsorh, Block Bhilingana, District Tehri Garhwal. The Educational Institution granted the permission, on the basis of which, the petitioner contested the election and was elected as a Gram Pradhan.
On 14th October, 2009, the State Govt. issued a Government Order granting aid to the institution where the petitioner was working as a Junior Clerk. As a result of the grant-in-aid being provided to the educational institution, it transpires that a complaint was lodged before the District Magistrate intimating him that the petitioner was holding an office of profit and, consequently, incurred a disqualification and was liable to be removed from the post of Gram Pradhan. Based on this complaint, the District Panchayat Raj Officer issued a notice dated 1st October, 2011 intimating the petitioner that he was holding an office of profit, i.e., holding the post of a Junior Clerk in a College and, consequently, advised either to resign from the post of Gram Pradhan or resign from the post of Junior Clerk. It is alleged that inspite of the receiving of the notice, no reply was submitted by the petitioner and, accordingly, another notice dated 22nd February, 2012 was issued directing the petitioner to resign from either of the post within 15 days from the date of the notice otherwise action for removal would be taken under Section u/S 5-A read with Section 95 (1) (g) (iii) (v) of the Act of 1947. Since the petitioner did not resign, the District Magistrate issued an order dated 15th March, 2012 removing the petitioner as the Gram Pradhan on the ground that the petitioner was holding an office of profit, namely, the post of Junior Clerk in an educational institution. The petitioner, being aggrieved by the order of his removal, has filed the present writ petition.
The short contention of the learned counsel for the petitioner is, that the petitioner was not holding an office of profit and did not incur any disqualification as provided under Section 5-A read with Section 95 (1) (g) (v) of the Act of 1947. Further no opportunity of hearing was provided to the petitioner. No notice whatsoever was given and, consequently, the action taken by the impugned order is violative of the principles of natural justice. It was also urged that the petitioner was not holding an office of profit and that the petitioner could only be removed upon an Election Petition to be filed in view of Article 243-O (b) of the Constitution of India and that the petitioner could not be removed u/S 95 (1) (g) (v) of the Act of 1947.
On the other hand, the respondents in their counter affidavit have submitted that the post of Junior Clerk is an office of profit as provided u/S 2 (c) (iv) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. In the said Act, public services and posts have been defined which includes services and posts in an educational institution owned and controlled by the State Government. The stand of the respondents is, that the institution concerned was receiving grant-in-aid from the State Govt. The appointment or recommendation for the removal of an employee has to be approved by the State Govt. The State Govt. has the power under the State Universities Act, 1973 to appoint an authorised controller if the educational institution commits a default in payment of salary to its teachers and staff and, consequently, the State Govt. exercises control over the institution. It was contended that since there would be a conflict of interest in the two offices, the petitioner, holding an office of profit, stood disqualified u/S 5-A (c) Act of 1947.
In so far as the first point is concerned, the submission of the learned counsel for the petitioner that no opportunity of hearing was given is bereft of merit. The Court finds from the perusal of the impugned order that a notice dated 01/10/2011 and 22/02/2012 was given to the petitioner giving an opportunity to resign from either of the office which he did not avail of and, consequently, after the expiry of the notice period, the District Magistrate was justified in issuing the impugned order. This court does not find that there has been a violation of Article 14 of the Constitution of India.
The contention of the petitioner that the petitioner could only be removed through the election petition to be filed as contemplated u/S 12-C (1) (b) (ii) of the Act read with Article 243-O (b) of the Constitution of India and that he could not be removed u/S 95 (1) (g) (v) of the Act of 1947 is also erroneous.
An election petition contemplated under Article 243-O (b) of the Constitution of India read with Section 12-C of the Act can only be filed by an aggrieved person. At the time when the petitioner was elected as the Gram Pradhan, he incurred no such disqualification as contemplated u/S 5-A (c) of the Act since he was not holding an office of profit as he was only a Junior Clerk in an institution which was not an aided institution. The Educational Institution was a private recognized institution with no financial support being granted by the State Govt. Consequently, there was no reason to file an Election Petition at that stage since the petitioner did dot incur any disqualification as contemplated u/S 5-A (c) of the Act of 1947.
The disqualification, if any, occurred subsequently when the Government issued a G.O. in 2009 granting aid to the Educational Institution where the petitioner was working as a Junior Clerk. A question which arises at this stage is, whether a disqualification occurred subsequently is contemplated u/S 5-A (c) of the Act or not. For facility, the said provision is extracted hereunder :-
â5-A. Disqualification of membership. â A person shall be disqualified for being chosen as, and for being, [the Pradhan or ] a member of a Gram Panchayat, if he â
(a) â¦..
(b) â¦..
(c) holds any office of profit under a State Government or the Central Government or a [local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government;]â
A perusal of the aforesaid provision would indicate that a person shall be disqualified for being chosen as the Gram Pradhan if he holds any office of profit. In the opinion of the Court, the Office of profit can be held at any moment of time during the period the petitioner is holding the office of Gram Pradhan and it is not necessary that disqualification should only occur on or before the petitioner is elected as the Pradhan. The disqualification can occur even during the period when the petitioner was working as the Pradhan.
A perusal of Section 5-A (c) of the Act indicates that a person would be disqualified if he holds an office of profit under the State Government or the Central Government or the local authority or a Board, Body or a Corporation which is owned and controlled by the State Government or the Central Government. The State has also relied upon the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. Section 2 (c) (iv) of the Act defines public services and posts as under:-
â2 (c) âPublic services and postsâ means the services and posts in connection with the affairs of the State and includes services and posts in - (iv) an educational institution owned and controlled by the State Government or which receives grants in aid from the State Government, including a university established by or under a Uttar Pradesh Act, except an institution established and administered by minorities referred to in clause (1) of Article 30 of the Constitution;â
A perusal of the aforesaid indicates that public services and posts means the services and posts in connection with the affairs of the State and includes services and posts owned and controlled by the State or which receives grants-in-aid from the State Government.
In the light of the aforesaid, on the question of office of profit, the Supreme Court in Ashok Kumar Bhattacharyya Vs. Ajoy Biswas and others, AIR 1985 SC 211 held that the true principle is that there should not be a conflict between duty and interest of an elected member. The Supreme Court held :-
âThe measure of control by the Government over a local authority should be judged in order to eliminate the possibility of conflict between duty and interest and to maintain the purity of the elected bodies.â
In this background, the Court will examine the ratio laid down in the cases cited by the learned counsel for the parties with respect to the test to be applied as to whether a person is holding an office of profit or not.
In order to determine whether a person holds an office of profit under the Government, several tests are ordinarily applied such as whether the Government has a right to remove or dismiss the holder of the office; whether the Government pays the remuneration; whether the functions performed by the holder are carried out by him for the Government and whether the Government has control over the duties and functions of the holder.
In Abdul Shakur Vs. Rikhab Chand and another, AIR 1958 SC 52, the appellant was appointed by the Administrator of the Durgah as a Manager of a school run by the Committee of Management constituted under the Durgah Act 1955. It was contended that the Govt. of India had the power to appoint and remove the members of the Committee of Management as also the power to appoint the Administrator in consultation with the Committee and, therefore, the appellant was holding an office under the Government of India. This contention was repelled. The Supreme Court pointed out the distinction between the holder of the office of profit under the Government and the holder of the office of profit under some authority subject to the control of the Government. The Supreme Court held :
âNo doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the committee or the members of the committee are removable by the Government of India or the committee can make bye-laws prescribing the duties and power of its employees cannot in our opinion convert the servants of the committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test.â
In Guru Gobinda Basu Vs. Sankari Prasad Ghosal, AIR 1964, SC 254, the Supreme Court held that for holding an office of profit under the Government, a person need not be in service of the Government and there need not be any relationship of master and servant. While upholding the disqualification, the Supreme Court held :-
âIt is clear from the aforesaid observations that in Maulana Abdul Shakurs case, 1958 SCR 387: (AIR 1958 SC 52) the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor. In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies.â
In D.R. Gurushantappa Vs. Abdul Khuddus Anwar, AIR 1969 SC 744, the Supreme Court considered whether a candidate on the date of the scrutiny of the nomination papers was an employee in a company owned by the Government was disqualified under Article 102 and 191 of the Constitution of India. The Supreme Court, after considering its earlier cases, held that the mere fact that the Government had controlled over the Managing Director and other Directors would not lead to any inference that other employee of the company are under the control of the Government.In Ashok Kumar Bhattacharryya Vs. Ajay Biswas, AIR 1985 SC 211, an issue was raised whether an Accountant-in-charge of the Agartala Municipality held an office of profit within the meaning of Article 102 of the Constitution. It was found that the appointment of Accountant-in-charge was to be made by the Commissioner of the Municipality and such appointment was subject to the confirmation of the State Govt. It was also found that the Accountant-in-charge could only be removed by the Commissioner subject to the sanction of the Government. It was also found that the Accountant-in-Charge was to be paid out of the municipal funds. The Supreme Court held that that even though the Government exercised certain amount of control and supervision, the Accountant-in-charge was not an employee of the Government nor was he performing any governmental function for the Government. The Supreme Court held :-
âFor determination of the question whether a person holds an office of profit under the Government each case must be measured and judged in the light of the relevant provisions of the Act. Having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the provisions of which have been set out herein before, we are of the opinion that the State Government does not exercise any control over officers like respondent No. 1 and that he continues to be an employee of the Muncipality though his appointment is subject to the confirmation by the Government. Just by reason of this condition an employee of a local authority does not cease to be an employee of the Muncipality. Local authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases employees of local authorities subject to the control of Government and to treat them as holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) and Article 102 (1) (a) of the Constitution and to extend disqualification under Article 58 (2) to one under Article 102 (1) (a) to an extent not warranted by the language of the Article.
Having noted the relevant provisions, we are of the opinion that the respondent No. 1 was not at the relevant time a holder of office of profit under the Government. Some amount of control is recognised oven in a local authority which is taken account of under Article 58. The High Court held that respondent No. I did not hold office of profit under the Government of Tripura on the date of filing of the nomination on an analysis of relevant provisions of the Act which we have set out hereinbefore. We are in agreement with this view of the High Court.â
In Satrucharla Chandrasekhar Raju Vs. Vyricherla Pradeep Kumar Dev and another, AIR 1992, SC 1959, the appellant was elected as M.L.A. and was disqualified for holding an office of profit under the Government on the ground that he was a teacher in a school run by the registered society. The Supreme Court set aside the order of the High Court holding that the appellant was not holding an office of profit and that he was only a teacher who was under the control of the Project Officer and was not under the control of the Government. The fact that the Government had a control over the appointing authority did not mean that the Government had a direct control on the teachers. The Supreme Court accordingly held :-
âWhat emerges from the above discussion is that the Government has some control over the ITDA which is set up as a project, since it provides funds and sanctions the posts; the District Collector is appointed as Project Officer and some officers are ex-officio members of the ITDA which carries out the object of providing the compulsory education in tribal areas. But the ITDA is a registered society having its own constitution. Though the Project Officer is the District Collector, he acts as a different entity. The power to appoint or to remove teachers is not with the Government but with the Project Officer. The Government may have control over the appointing authority but has no direct control over the teachers. The small post that appellant holds in ITDA is only that of a Teacher who is directly under the control 14
of the Project Officer. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the Government which has neither the power to appoint him nor to remove him from service. Taking a practical view of the substance of these factors into consideration, we are of the view that the appellant cannot be held to be holding an office of profit under the Government. Accordingly the order of the High Court is set aside and the appeal is allowed. Parties are directed to bear their own costs throughout.â
In Sarnam Singh Vs. Smt. Puspa Devi and others, 1986 ALL.L.J. 507, the learned Single Judge of the Allahabad High Court held that a teacher serving in the Higher Secondary School to which Intermediate Education Act was applicable could contest the U.P. Legislative Assembly and that such teacher in Higher Secondary School which was controlled by the Committee of Management did not hold an office of profit since the State Government had no direct control over the day-to-day affairs run by the Committee of Management.
In Pradyut Bordoloi Vs. Swapan Roy, (2001) 2 SCC 19, the Supreme Court held :
âPosed with the perplexed problem - whether a person holds an office under the Government, the first and foremost question to be asked is : whether the Government has power to appoint and remove the person on and from the office? If the answer is in the negative, no further enquiry is called for, the basic determinative test having failed. If the answer be a positive one, further probe has to go on finding answers to questions framed in Shivamurthys case (supra) and searching for how many of the factors pointed out in Guru Gobinda Basus case (supra) do exist? The totality of the facts and circumstances reviewed in the light of the provisions of relevant Act, if any, would lead to an inference being drawn if the office held is under the Government. The inquisitive over-view-eye would finally query: on account of holding of such office would the Government be in a position to so influence him as to interfere with his independence in functioning as a member of Legislative Assembly and/or would his holding of the two offices-one under the Government and the other being a member of Legislative Assembly, involve a conflict of interests inter se? This is how the issue has to be approached and resolved.â
In Smt. Chandrawati Devi Vs. Phoolchand Bind and others, [2005 (23) LCD 84], a Division Bench of the Allahabad High Court, after considering the judgment of Supreme Court, found that the Food Corporation of India was not owned and controlled by the Central Govt. and that the Food Corporation of India was a statutory Corporation established under an Act and that the management was vested with the power of Directors. The Court found that the Central Govt. did not have any control over the Corporation or its employee in its day-to-day functioning nor the Central Govt. had the power to make any appointment or remove an employee of the Corporation. The Court accordingly held that the respondents being a workman of the Food Corporation was not holding an office of profit.
In the light of the aforesaid decisions, the underlying idea is, that the employee should be free from any pressure from the Government so that there is no conflict of interest in the discharge of his independent duties as an elected person. The first and foremost criteria that should be applied is, whether the Government has the power to appoint or remove the person from the office. If the answer is in the negative, then no further inquiry is called for and if the answer is in positive then further probe is required as to whether the Government is in a position to influence the person or to interfere with his independent functioning as the Pradhan. In this regard the words âowned and controlledâ as given in Section 5-A (c) of the Act comes into play. These words, namely, âowned and controlledâ indicates pervasive control in relation to the appointment and dismissal and control on the appointee by the State Govt. The Court need not dilate on this issue as the Supreme Court in Ajay Hasia and others Vs. Khalid Mujib Sehravardi and others, 1981, 1 SCC 722 had the occasion to deal with this subject and found that there must be in existence of a deep and pervasive State control which may afford an indication that the Corporation was a State agency or an instrumentality of the State.
An Educational Institution is run by a Committee of Management constituted by the Society under the Societies Registration Act, 1960. Even though, the functioning performed by the Committee of management is of great public importance and partakes the character of a governmental function, the Court cannot jump to the conclusion that the Committee of Management or the Society creating the Committee of Management is an instrumentality or agency of the State. The Committee of Management pertains to a private recognized Government aided educational institution, which in the opinion of the Court, does not have the status of statutory body. This opinion of the Court is concluded by the decision of the Supreme Court in Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshim Narain and others, AIR 1976, SC 888. Further, the Full Bench of the Allahabad High Court in Aley Ahmad Abidi Vs. District Inspector of Schools and others, AIR 1977, All. 539, held that the Intermediate College which is required to have a scheme of administration under the U.P. Intermediate Education Act, is not a statutory body.
In the instant case, the Committee of Management is vested with the authority to manage and conduct the affairs of the institution. The Committee of Management is comprised of persons elected by the general body of the society from amongst its members. The Committee is governed by the Societys rules and regulations. The Institution in which the petitioner is working as a Junior Engineer is affiliated to H.N.B. Garhwal University. The first statute of H.N.B. Garhwal University, 1978 is applicable. Chapter 21 of the First Statutes relates to qualification and conditions of service of non-teaching staff of an affiliated college. Statute 21.02 provides that admission made by the management of the college shall not take effect unless it is approved in writing by the Director of the Education. Similarly, it has been urged that for the removal of an employee, an approval is also required to be taken from the authority concerned. On the other hand, it was urged by the learned Addl. C.S.C. that pervasive control of the State can be seen from a perusal of Section 57 and 58 of the U.P. State Universities Act, 1973 which provides that if the Committee of Management willfully defaults in paying the salary to the teachers or other employees of the college, it would be open to the State Govt. to appoint an authorised controller in the institution who would take over and manage the affairs of the institution.
The contention of the State counsel that the appointment and dismissal of an employee has to be approved by the Director of Education and the salary to the staff and the teacher in an educational institution is disbursed by the State Govt. and, therefore, there is a total control or pervasive control by the State Govt. does not find merit. Such approval or disapproval or disbursement of salary, does not indicate total control or pervasive control. It does not come within the ambit of the words âowned or controlled by the State Govt.â Such approval and disapproval as stated aforesaid only indicates an indirect control. These checks and balances provided under the Statutes and the Act to the educational authorities or to the University and the State Govt. only serves as a watch dog to ensure that there is no arbitrariness on the part of the Committee of Management or by its society in carrying out its day-to-day affairs.
On the question of indirect control, the Court is fortified by the fact that the State Universities Act and the Statutes which governs the conditions of service of the employee of an Educational institutional is, that the State Government has no power to dispense with the service of any employee of the educational institution on its own motion nor can it take any action for the dismissal of any employee. Similarly, the State Government has no power to appoint any person as a clerk and that the initiation has to be done only by the management. Consequently, there is no direct control, nor does the State Govt. own or control the educational institution nor does it have a deep and pervasive control over the affairs of the Committee of Management in running the institution on a day-to-day basis. In this regard, the Court is of the opinion that the mere control of the Government over the authority having the power to appoint, dismiss or control the working of the employee does not disqualify that employee from being a candidate for the election of a Gram Pradhan.
In view of the aforesaid, Section 2 (c) of the Act of 1994 is not applicable. The said provision is confined to providing reservation in the educational Institutions. The mere fact that aid is provided by the State Government does not make the State Government control the educational institution. There must be deep and pervasive control.
In the light of the aforesaid, the Court is of the opinion that the State Govt. has no power to appoint or remove the petitioner as a Junior Clerk in the educational institution. Consequently, the Court holds that the petitioner was not holding an office of profit and that the State Govt. has no control on day-to-day functioning of the educational institution or on its employees. Consequently, the impugned order passed by the District Magistrate removing the petitioner from the post of Gram Pradhan u/S Section 95 (1) (g) (v) of the Act of 1947 was manifestly erroneous in law and cannot be sustained and is quashed. The writ petition is allowed.
The Court finds that an interim order was passed restraining the State Govt. from appointing any other person as the Gram Pradhan. Consequently, the respondents are directed to allow the petitioner to continue on the post of Gram Pradhan till the end of his term. In the circumstances of the case, the parties shall bear their own cost.