Summary
The Supreme Court upheld the setting aside of a Panchayat Samiti member’s disqualification based on his engagement as an Assistant Government Advocate. The Bihar statute disqualified persons in government service, a category distinct from holding an office of profit. His panel appointment did not establish the essential master-servant relationship; professional discipline lay with the Bar Council. The Election Commissioner’s appeal was dismissed.
Issues
- Whether appointment to a panel of Assistant Government Advocates amounted to government service attracting disqualification from Panchayat membership.
- Whether office-of-profit principles could enlarge the statutory disqualification for government service.
Provisions considered
- Section 139(1)(c) and (d), Bihar Panchayat Raj Act, 1993The disqualification concerned service of government, a local authority or an aided institution. Its terms required strict construction; an office of profit could not be substituted for the specified service relationship. (¶¶ 9, 10, 27, 33)
- Rule 122, as amended in 2002, Bihar Panchayat Election Rules, 1995The Rule empowered the State Election Commission to decide statutory disqualification after sufficient opportunity of hearing. The Commission’s jurisdiction did not enlarge the grounds prescribed in Section 139. (¶ 9)
Held
- Government service and an office of profit are distinct concepts. The legislature chose a service-based disqualification; courts could not extend it merely because a professional engagement might raise office-of-profit considerations. The right to contest, although not fundamental, could be curtailed only by the valid statutory provision as strictly construed. (¶¶ 14, 27)
- A service relationship is assessed through such indicia as selection, appointment, suspension, dismissal, control over the manner of work and remuneration, considered with the surrounding circumstances. The relevant master-servant indicia were absent here. (¶¶ 28, 29, 33)
- The panel-appointment letter specified no fixed remuneration. The advocate was not subject to government disciplinary proceedings, and professional conduct remained governed by the Bar Council. Even an attached remuneration would not by itself establish government service. (¶¶ 25, 26, 33)
- Shrilekha Vidyarthi recognised a public element in government counsel appointments sufficient to attract Article 14 review; it did not hold that such counsel were government servants. It therefore did not establish the statutory disqualification in this case. (¶¶ 30, 31, 32, 33)
Result
Appeal dismissed; High Court’s decision setting aside the Election Commission’s disqualification sustained. No order as to costs.