Chandramauli Kr. Prasad, J.
1. This application has been filed for quashing the order dated 29.3.2004 passed by the State Election Commission in Case No. 7 of 2004 disqualifying the petitioner to hold the post of member of the Panchayat Samiti, Nagarnausa.
2. Facts lie in a narrow compass.
3. While the petitioner was an Assistant Government Pleader, he contested the election and got elected as the Member of Panchayat Samiti, Nagarnausa. Respondent No. 7 herein filed a petition before the State Election Commission, hereinafter referred to as the Commission under Rule 122 of the Bihar Panchayat Election Rules stating therein that the petitioner, being an Assistant Government pleader in Hilsa Sub-Division of the District of Nalanda, is disqualified to be a member of the Panchayat Samiti, in view of Section 139(1) (c) of the Bihar Panchayat Raj Act, hereinafter referred to as the 'Act'. The Commission noticed the petitioner and on consideration of the plea advanced on his behalf as also respondent No. 7 came to the conclusion that the petitioner shall be deemed, to be in the service of the State Government and therefore, disqualified to be a member of the Panchayat Samiti in terms of Section 139 (1) (c) of the Act.
4. Mr. Mukteshwar Singh appears on behalf of the petitioner, whereas the State is represented by J.C. to AAG II Mr. K.B. Nath had appeared on behalf of the Commission and respondent No. 7 is represented by Mr. Ashutosh Ranjan Pandey.
5. The only question raised in the present application is as to whether petitioner is in the service of the State Government and therefore disqualified for being elected as member of the Panchayat Samiti.
6. Petitioner admits that at the relevant time he was an Assistant Government Pleader, but his plea is that it is not a service of the State Government, whereas the contesting respondents contend that the Assistant Government Pleader is in the service of the State Government and, therefore disqualified in terms of Section 139(1)(c)of the Act.
7. Article 243F of the Constitution of India, inter alia provides for disqualification for being chosen as a member of the Panchayat. Same reads as follows :
'243-F. Disqualifications for membership :
(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat.'
(a) xx xx xx xx xx xx
(b) If he is so disqualified by or under any taw made by the legislature of the State.'
8. The Legislature of the State of Bihar had enacted Bihar Panchayat Raj Act and Section 139, thereof provides for disqualification for being member of the Panchayat Samiti and various other bodies. Section 139(1)(c) of the Act which is relevant for the purpose reads as follows :
'139. Disqualification.--
(xxx): (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhia, member of the Gram Panchayat, Sarpanch, panch of the Gram Katchahri, Member of the Panchayat Samiti and member of Zila Parishad, if such person.
(a) xx xx xx
(b) xx xx xx
(c) Is in the-service of Central or State Government or any local authority.'
9. Thus, the question is as to whether an Assistant Government Pleader can be said to be in the service of the State Government. The word service has not been defined under the Act and hence its meaning has to be ascertained in the context it is used. The expression 'service' in the context it is used denotes various classes or category of post within it. No hard and fast rule can be laid to ascertain as to which category of office shall come within the expression service. A host of factors have to be taken into consideration to determine such relationship, None of these factors may be conclusive and no single factor may be considered absolutely essential. In my opinion, for bringing an office within the expression 'service' of State Government there has to be a relationship of Master and Servant, age of entering and retirement, scale of pay or fixed remuneration, the Conduct and Discipline Rules and such other factors. The presence of one ingredient or the other may not necessarily bring a particular office within the expression 'service' in the context of disqualification but presence of some or the other is necessary for the purpose.
10. Bearing in mind the aforesaid, I proceed to examine the facts of the present case. The Government pleader as also the Assistant Government Pleaders are appointed by the State Government in exercise of its executive power. Under Section 2(7) of the Code of Civil Procedure Government Pleader includes any officer appointed by the State Government to perform any of the functions imposed by the Code of Civil Procedure and also any pleader under his direction. Under the Bihar Practice and Procedure Manual certain duties are cast on the Government Pleader i.e. to drew a plaint for the State Government, notice received by the Collector under Section 80 of the Civil Procedure Code is to be forwarded to the Government Pleader and the Government Pleader is to give opinion on that. In sum and substance the Government Pleader is a counsel appointed by the State Government to conduct and defend its civil proceeding for which he is paid the retainership as also fee. So far as the Assistant Government Pleader is concerned, he is appointed to assist the Government Pleader and for the professional work rendered, he is paid remuneration but not paid any retainer fee. A Government Pleader is not entitled to appear against the State Government but an Assistant Government Pleader, can appear, against the State Government in a case. The Assistant Government Pleader is basically an Advocate in the roll of the State Bar Council and besides giving professional advice to other litigants by virtue of his engagement by the State Government it also advises and represents the State Government in Courts of Law. The appointment of the Government Pleader is governed by the executive instruction which is a tenure appointment and he remains a legal practioner for all purpose and intent:
11. When I apply the aforesaid test, I find that the engagement of an Advocate as an Assistant Government Pleader is a professional engagement and the relationship between the State and that of the Assistant Government Pleader is that of a lawyer and client and not Master and Servant. There is no age limit either minimum or maximum for engagement of a person as an Assistant Government Pleader nor there is age of retirement. Assistant Government Pleader is paid remunerations for the professional work done by him and his remunerations is not fixed in a particular, time scale. In fact he can appear against the State Government. No conduct or Discipline Rule govern its conduct and he is bound by same Code of Conduct as any other lawyer. The aforesaid factors taken together clearly show that Assistant Government Pleader cannot be said to be a service of the State Government so as to bring him within the mischief of Section 139(1)(c) of the Act.
12. It is worthwhile mentioning here that the office of profit under the State and service in the State are expression which cover different field and therefore a person may hold office of profit under the State but at the same time cannot be said to be in the service of the State. In the service of the State Government and office of profit in the State Government are expressions not synonymous to each other but carry entirely different meaning, and, as such, the decision in regard to the expression 'office of profit' shall have no bearing for decision in the present' case.
13. In the result, the application is allowed, impugned order is set aside. However, in the facts and circumstances of the case, there shall be no order as to cost.