Judgment:
C.S. Dharmadhikari, J.
1. The petitioners in this case have challenged the common order passed by the Additional Commissioner, Nagpur Division, Nagpur, allowing the application filed by the respondents No. 4 and 5 under sub-section (2) of section 40 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as 'the Act') holding that the petitioners are disqualified from being Councillors of Zilla Parishad, Bhandara.
2. It appears to be an admitted position that after the petitioners were elected as Councillors of the Zilla Parishad, Bhandara, they came to be appointed as Assistant Government Pleaders in the years 1981 and 1982 in the District and Sessions Court, Bhandara. It also appears to be an admitted position that, after their appointment as Assistant Government Pleaders, they had sought permission from the Government under Rule 7 of the Law Officers (Conditions of Service) Rules, 1939, equivalent to Rule 35 of the present Law Officers Rules, for their continuance as Members of the Zilla Parishad. The Government granted them necessary permission.
3. After their appointments as Assistant Government Pleaders and Additional Public Prosecutors in the District of Bhandara, the respondents No. 4 and 5 filed applications under sub-section (2) of section 40 of the Act before the Commissioner and, by his aforesaid order, the Commissioner allowed the said application. It is this order of the Commissioner which is challenged in the present writ petition.
4. Shri Palshikar, the learned Counsel appearing for the petitioners, contended before us that section 16(1)(h) of the Act should be read with Rule 35 of the Law Officers (Conditions of Service) Rules. According to the learned Counsel, by the said rule the disqualification, if any, stands removed. He also contended that if section 16(1) of the Act is read as a whole, then it is quite obvious that holding an office of the Assistant Government Pleader and Additional Public Prosecutor will not amount to a disqualification under the said section. In this context, he has specifically drawn our attention to exception (iv) in section 16(2) of the Act. If all these provisions are read together and harmoniously a conclusion is inevitable that being professionally engaged even as an Assistant Government Pleader or as an Additional Public Prosecutor, will not amount to a disqualification under section 16(1)(h) of the Act. It was also contended by Shri Palshikar that holding an office of an Assistant Government Pleader or an Additional Public Prosecutor is not 'holding an office of profit' within the meaning of section 16(1)(h) of the Act. In support of these contentions, Shri Palshikar has placed strong reliance upon the decisions of the Supreme Court in Smt. Kanta Kathutria v. Manak Chand Surana, : [1970]2SCR835 , and Manohar Nathuram Samarth v. Marotrao and others, : [1979]3SCR1078 .
5. We find it difficult to accept these contentions of Shri Palshikar. The law on the point is by now well settled. The Supreme Court has held, in the case of State of Gujarat and another v. Raman Lal Keshav Lal Soni and others, : (1983)ILLJ284SC , as follows :---
'27. We have to first consider the question whether the members of the Gujarat Panchayats Service are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither polite nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of maser and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not.....'
Thus, the question as to whether a person holds an office of profit under or in the gift of the Government must, to some extent, depend upon the facts and circumstances of each case. In Mahadeo v. Shantibhai and others, reported in 1972 40 elr 81, the Supreme Court observed as under :
'Learned Counsel for the appellant argued that the appellant was not a salaried employee of the Railway. He was not even bound to act for the Railways and if he thought it proper to accept a brief against the railway the Railway Administration could only take step against him for breach of professional etiquette and nothing more. According to Counsel, he could only get remuneration in case he thought it proper to act on the terms of the letter and appeared in any case to support the cause of the Railway. In our view, although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement that would not detract from the position that he was in duty bound to work for the Railway Administration and see that its causes did not suffer by defaults. So long as the engagement was not put an end to, he was holding an office of profit in the Railway Administration, and as such was disqualified for being elected to the Legislative Assembly..........'
That was a case of a Railway Counsel on panel. Thereafter, somewhat similar question fell for consideration of the Supreme Court in the case of Smt. Kanta Kathuria v. Manak Chand Surana, : [1970]2SCR835 , wherein, paragraph 21, the Supreme Court observed as under :---
'It seems to us that the High Court erred in holding that the appellate held an office. There is no doubt that if her engagement as Special Government Pleader amounted to appointment to an office. It would be an office of profit under the State Government of Rajasthan. The word 'office' has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context. It seems to us that the words its holder' occurring in Article 191(1)(1), Indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the legislature of the State has been authorised by Article 191 to declare an office of profit not to disquality its holder contemplates existence of an office apart from its holder. In other words, the legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified..........'
On the facts of the above case, the Supreme Court held that a Counsel engaged for a particular case was not holding an 'office of profit'.
6. In the case before us, the petitioners are appointed as Assistant Government Pleaders and Additional Public Prosecutors in the Bhandara District and Sessions Court, under the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules 1939. Rule 2(d) defines the expression 'Government Pleader', to mean District Government Pleader, Additional Government Pleader, Assistant Government Pleader, and subordinate Government Pleader. It also provided for the qualification and duties for the sald post as well as the remuneration payable. Under the rules Government has a right to select a person and appoint him. It has a right to terminate the employment. Government has also prescribed the conditions of employment. It has a right to issue directions about the method and manner in which the work is to be carried out. The office of Pubic Prosecutors and Additional Public Prosecutors is an office created by criminal Procedure Code. The Code also lays down rights and duties of the said posts and the manner in which said duties are to be discharged.
7. Thus the office of Assistant Government Pleader and Additional Public Prosecutor exists independent of the person occupying it and is subject to the over all control of the Government. In these circumstances, a conclusion is inevitable that the petitioners, being holding the office of Assistant Government Pleaders and Additional Public Prosecutors, was holding the 'office of profit' under the Government.
8. Rule 7 of the Law Officers Rules, on which reliance is placed by Shri Plashikar and under which the Government granted petitioners a permission of continue as Councillors of the Zilla Parishad, reads as under :---
'7. Not to be members of local bodies without permission---(1) No Law officer shall stand for election to any local body without the previous permission of Government.
(2) If a law officer is a member of any local body at the time of his appointment, he shall resign his membership immediately after his appointment, unless he has obtained the permission of Government for continuing such membership.'
This is part of Law Officers Conditions of Service rules. This rule is meant for internal discipline and lays down a code of conduct for law officers. In this context reference could usefully be made to the decision of Supreme Court in : [1979]3SCR1078 Manohar v. Marotrao and others. Hence Rule 7 cannot be construed as a provision for removing the disqualification or an exception to section 16(1)(h) of the Act. The legislature, in terms, has provided for an exception in section 16(2)(iv) of the Act when it thought that a person being professionally engaged on behalf of the Zilla Parishad as a legal practitioner should not be disqualified under Clause (i) of section 16 of the Act, which deals with a direct or indirect or indirect interest in any contract with or on behalf of the Zilla Parishad. The legislature in its wisdom has not laid down any exception to the disqualification incorporated in section 16(1)(h) of the Act. Therefore, what has not been provided directly cannot be achieved indirectly by taking recourse to the Law Officers (Conditions of Service) Rules.
9. Even by taking recourse to a harmonious construction the exception carved out by section 16(2)(iv) cannot be obliquely imported in section 16(1)(h) of the Act. Section 16(1)(h) of the Act uses an Expression which is of a wider import. Once it is held that the Assistant Government Pleader or Additional Public Prosecutor is an 'office of profit' under or in the gift of the Government, than the conclusion is inevitable that the person holding the said office incurs a disqualification under section 16(1)(h) of the Act.
10. In our view, the learned Additional Commissioner was perfectly justified in coming to the conclusion that the petitioners are disqualified to continue as councillors of the Zilla Parishad in view of the provisions of section 16(1)(h) of the Act. Hence Rule discharged with no order as to costs.