In the Supreme Court of India Civil Appeal No.1463 OF 2008 Petitioner State Election Commissioner, Bihar Patna Respondent Janakdhari Prasad Date of Judgement 3rd July 2018 Bench Honorable Chief Justice Dipak Misra; Honorable Justice A. M. Khanvilkar; Honorable Justice Dr. D.Y. Chandrachud
The first respondent was chosen in the year 2001 as a member of Panchayat Samiti, Nagarnausa. On 13th February 2004, the fifth respondent, Ravindra Nath Sharma, recorded a request before the State Election Commission, Bihar contending, inter alia, as an Assistant Government Pleader in Hilsa, District Nalanda and, accordingly, he was precluded to hold the post of part, Panchayat Samiti considering Section 139(l)(c) of the Bihar Panchayat Raj Act, 1993.
Statutes & provisions involved
a. Articles 19(1) (g), 102(1)(a), 226, 191, 243F(1)(b) of the Constitution of India, 1950
b. Sections 139(1) (c), 139(1), 139(2) of the Bihar Panchayat Raj Act, 1993
c. Rule 122 of the Bihar Panchayat Election Rules, 1995
a. The Election Commission, so as to choose the issue whether the first respondent was in the administration of the State Government according to the scope of Section 139(l)(c) of the Act, alluded to the arrangement letter gave by the Law Department, Government of Bihar, vide which the respondent thus was designated as an Advocate in the board of Assistant Government Advocates and from there on saw that the said respondent was holding a post under the State Government and was accepting charges for the cases led by him from the Government and consequently, he would be considered to be in the administration of the State.
b. Being of this view, the Election Commission vide request dated 29.03.2004 precluded the respondent under Section 139(l) (c) of the Act from the post of Member in the Panchayat Samiti.
c. Aggrieved by this Order of the Commission, the first respondent thumped at the entryways of the High Court of Judicature at Patna by favoring a Writ Petition (CWJC) No. 4322 of 2004 under Article 226 of the Constitution of India for subduing of the request for the Commission.
d. The Judge opined that “administration” has not been characterized under the Act and subsequently, its significance must be found out in the setting it is utilized and the setting in which it is utilized signifies different classes or classification of posts inside it.
e. Distressed by the High Court’s judgment the appellant appealed to the Apex Court.
a. Regardless of whether the first respondent was in the administration of the State Government under the scope of Section 139(l)(c) of the Act, alluded to the arrangement letter gave by the Law Department, Government of Bihar, vide which the respondent thus was delegated as an Advocate in the board of Assistant Government Advocates and from there on saw that the said respondent was holding a post under the State Government and was getting expenses for the cases directed by him from the Government and henceforth, he would be esteemed to be in the administration of the State?
a. From the petitioner’s side a question was raised, in the getting accurate score, would it be proper to acknowledge the accommodation of the appellants that the chosen up-and-comer was in the administration of the legislature. They contended that the legislative body has, in the activity of its administrative force and shrewdness, not utilized the words “office of benefit”.
b. Subsequently, regardless of whether such a letter of arrangement can be understood to decide whether the individual is holding an office of benefit isn’t important to be tended to in spite of the fact that they have alluded to specific specialists to welcome the unique situation and its key reason.
a. In the moment case, the political race relates to a Panchayat Samiti which fundamentally identifies with the idea at the grass-root level. The legislative body, as it appears to us, has not thought of office of benefit in light of the fact that had it suspected as much it would have given thus.
b. In Sakhawant Ali vs. The State of Odisha[i], the governing body had given a preclusion keeping in see the irreconcilable situation. The nonattendance of such an arrangement potentially is to incorporate people from various fields as long as they are not in administration under the legislature or service in an establishment getting helps from the Central or State Government or any neighborhood authority. The governing body, as the hypothesize stands today, has limited to classes of service referenced hereinbefore.
The Court held that the nominee couldn’t have been entitled to receive any service under the State Government in absence of the relationship of servant and master even if that person gets remuneration, and the appeal was dismissed.
a. The Court observed that it can’t be merely accepted that the appointment of District Government Counsel by the State Government is just an expert commitment like that between a private customer and his legal advisor, or that it is simply authoritative with no open component joining to it, which might be ended whenever at the sweet will of the Government barring judicial review.
b. It is shown the closeness of open component appended to the ‘office’ or ‘post’ of District Government Counsel of each category secured by the reprimanded circular. This is adequate to pull in Article 14 of the Constitution and bring the subject of the legitimacy of the denounced roundabout inside the extent of judicial review.
The Court passed by the idea of open component connected to the office or post of Government Pleader. It has not communicated the supposition that they are under the Government service. Nevertheless, as has been held beforehand and as it should be, there is no master-servant relationship and the respondent was not agreeable to any disciplinary continuing. He has effectively communicated the view that the leaders of the supporter are dependent upon the control of the Bar Council. It is evident that there is nothing on record to show that he was getting any compensation. Regardless of whether some compensation is joined to the workplace, he can’t be blessed to receive be under the administration of the State Government. The viewpoints which are basic for setting up a relationship of ace and hireling are missing in the said case.
It relies upon the administrative intelligence of the legislation. It should be expressed that the idea of exclusion must be carefully translated remembering that option to challenge a political race is anything but a basic right however they said right might be moderated under a legitimate statutory provision.
“The views of the authors are personal“
[i] Sakhawat Ali vs. The State of Odisha Civil Appeal No. 81 of 1953.