Maulana Abdul Shakur vs Rikhab Chand And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 335 of 1957

Decision Date: 12 September 1957

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, A.K. Sarkar

In the matter titled Maulana Abdul Shakur versus Rikhab Chand and another, the Supreme Court delivered its judgment on the twelfth day of September, 1957. The opinion was authored by Justice J. L. Kapur, and the bench was composed of Justices J. L. Kapur, Bhuvneshwar P. Sinha, and A. K. Sarkar. The petitioner in this appeal was Maulana Abdul Shakur, while the respondents were Rikhab Chand and an additional party. The case citation appears in the 1958 volume of the All India Reporter at page 52 and in the 1958 Supreme Court Reports at page 387. The dispute involved an election‑related question of disqualification based on the constitutional provision that a member of Parliament must not hold an office of profit under the Government, as set out in Article 102(1)(a) of the Constitution of India. The specific statutory framework concerned the Durgah Khwaja Saheb Act of 1955, sections 4(1), 5, 6, 9, 11, and 20, which dealt with the management of the Durgah Khwaja Saheb School and the appointment of its manager. The central issue was whether the manager of the school, who received a monthly remuneration of one hundred rupees, could be said to hold an office of profit under the Government at the time of his election to the Council of States, thereby rendering his election invalid.

The factual background recorded that the appellant, Maulana Abdul Shakur, occupied the position of manager of a school that operated under a committee of management established pursuant to the Durgah Khwaja Saheb Act, 1955. His appointment to that managerial post was made by the administrator of the Durgah Khwaja Saheb, and his salary was drawn from the endowment funds of the Durgah, not from the Treasury of the Government of India. In the election for a seat in the Council of States, conducted by the Electoral College of Ajmer, the appellant was declared elected. The unsuccessful candidate, identified as the first respondent, challenged the validity of the election on the ground that the appellant, by holding the managerial office, was occupying an office of profit under the Government, and therefore was disqualified under Article 102(1)(a). The respondent relied upon sections 5 and 9 of the Durgah Khwaja Saheb Act, arguing that these provisions gave the Government of India the power to appoint and remove members of the management committee and to appoint the administrator in consultation with the committee, which, in the respondent’s view, placed the appellant under governmental control and supervision, thereby creating an office of profit. The Court examined these submissions and observed that the appellant was neither appointed by the Government of India nor removable by it, and that his remuneration was not fixed by the Government but was paid from the Durgah’s own funds. Consequently, the Court concluded that the appellant’s position was held under a statutory committee that functioned as a body corporate, and that such an appointment could not be characterised as an office of profit under the Government within the meaning of Article 102(1)(a). Accordingly, the Court held that the appellant’s election was valid and distinguished the present decision from the earlier case of Shivnandan Sharma v. The Punjab National Bank Ltd., (1955) 1 S.C.R. 1427. The judgment formed part of Civil Appeal No. 335 of 1957, filed by special leave against the order of the Election Tribunal of Ajmer dated 31 January 1957, which had set aside the appellant’s election. The appeal was argued by counsel for both parties, and the judgment was delivered by Justice Kapur.

In this case the appellant, Maulana Abdul Shakoor, had been elected to the Council of States by the Electoral College of Ajmer, which was composed of thirty members of the State Legislature of Ajmer. He obtained nineteen votes while the opposing candidate, who was the first respondent, obtained seven votes. The total number of valid votes cast was twenty‑six and there were three votes that were declared invalid. The result of the election was published in the Official Gazette on thirty‑first March 1957, thereby confirming the election of the appellant. The unsuccessful candidate, the present first respondent, filed an election petition on second May 1956. The petition did not need to set out every allegation because the central dispute between the parties concerned whether the successful candidate, the appellant, occupied an “office of profit” under the Government at the material time. The election that was being challenged had taken place on twenty‑second March 1956. By a notification dated seventeenth February 1956, the period for filing nominations was fixed between twenty‑eighth February 1956 and first March 1956. The date for scrutiny of the nominations was set for fifth March 1956 and the polling was scheduled for twenty‑second March 1956. The appellant filed two nomination papers on twenty‑eighth February 1956 and a third nomination paper on first March 1956. The respondent, Rikhab Chand Jain, also filed his nomination papers on first March 1956. On fifth March 1956 the respondent raised objections to the validity of the appellant’s nomination, principally contending that the appellant was holding an office of profit under the Government. The Returning Officer, in an order dated sixth March 1956, rejected the two nomination papers filed by the appellant on twenty‑eighth February 1956, but accepted the third nomination paper filed on first March 1956. The officer reasoned that, under the provisions of the Durgah Khwaja Saheb (Emergency Provisions) Act, 1950 (Act XVII of 1950), which remained in force up to twenty‑ninth February 1956, the appellant was indeed holding an office of profit under the Government; however, with the coming into force of the Durgah Khwaja Saheb Act (Act XXXVI of 1955) on first March 1956, the appellant no longer held such an office. Subsequently, on third May 1956 the respondent filed an election petition under section 81 of the Representation of the People Act, 1951, asserting that the third nomination paper of the appellant should also have been rejected because, even under the Durgah Khwaja Saheb Act (XXXVI of 1955), the appellant was still holding an office of profit and therefore his candidature fell within the prohibition of article 102(1)(a) of the Constitution. The respondent further prayed that he be declared elected, arguing that the votes cast in favour of the appellant constituted “thrown away” votes and that the respondent alone had secured a majority of the valid votes. A majority of the Election Tribunal, by its order dated thirty‑first January 1957, held that on first March 1956 the appellant was still holding an office of profit under the Government and that his nomination was therefore disqualified by article 102(1)(a). Consequently, the tribunal set aside the appellant’s election and, accepting the contention of “thrown away” votes, declared the respondent to be elected.

In the matter before the Tribunal, the majority of members concluded that the appellant’s election was void because the appellant was deemed to have occupied an office of profit under the Government at the relevant time, and they consequently set aside the appellant’s election and, accepting the claim that votes cast for the appellant had been “thrown away,” declared the respondent to be elected. The Chairman of the Election Tribunal dissented from that view. He held that, as of 1 March 1956, the appellant was no longer in receipt of an office of profit under the Government, that the nomination paper filed on that date had therefore been properly accepted, and that the appellant’s election was valid. Accordingly, the Chairman said the respondent could not be declared elected. The Tribunal also considered the two nomination papers filed by the appellant on 28 February 1956. All members of the Tribunal agreed that those two papers were invalid because, on that earlier date, the appellant still held an office of profit under the Government. The Tribunal observed that it was unnecessary to examine the validity of the February 28 papers in detail, for the decisive issue was whether the March 1 nomination was valid; if that nomination stood, the earlier ones became immaterial. The argument before the Court proceeded on the assumption that the appellant held an office of profit, and the dispute was confined to the question whether that office was held under the Government of India, thereby invoking the disqualification provision in Article 102(1)(a) of the Constitution. To resolve the controversy, the Court identified the pivotal question of construction: whether the appellant was holding an office of profit under the Government of India and, if so, whether Article 102(1)(a) applied. Article 102(1) states that a person shall be disqualified from being chosen as, and from being, a member of either House of Parliament “if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder.” This provision appears under the heading “Disqualifications of Members.” In the same part of the Constitution, Part V, the disqualifications for election to the offices of President and Vice‑President are set out. Article 58, which deals with the President, provides that a person shall not be eligible for election as President if he holds any office of profit under the Government of India, the Government of any State, or under any local or other authority subject to the control of those Governments. A similar restriction exists for the Vice‑President in Article 66(4). Counsel correctly highlighted that the language of these provisions differs: for the President and Vice‑President, the holding of an office of profit under an authority subject to governmental control is a disqualification, whereas the Constitution does not expressly extend that same language to members of the legislatures.

Khwaja Saheb Akbari, the institution in which the appellant held the appointment of manager (mohatmin), functioned as a school for teaching Persian, Arabic and Muslim theology. Until the year 1951 the school had been managed and operated by the Government of the Nizam of Hyderabad, after which the Durgah Committee assumed control. On 28 February 1955 the appellant received an honorary appointment as mohatmin, that is, manager of the school, from the Administrator of Durgah Khwaja Saheb. The appointment required the appellant to work under the direction of the Administrator and to be responsible for the overall management of the school. Commencing in May 1955, the appellant began to receive a monthly payment of Rs 100, an amount that was described in various submissions as either a salary or an honorarium. The counsel for the appellant subsequently framed three questions of construction, asserting that the appointment as manager did not constitute an office, nor an office of profit, and certainly not an office of profit under the Government. The appellant’s counsel argued that a finding in favour of the appellant on the third question—whether the post was an office of profit under the Government—would render the decisions on the first two questions unnecessary. Assuming, however, that the appellant did hold an office of profit, the remaining issue was whether that office fell within the meaning of “office of profit under the Government” prescribed by Article 102(1)(a) of the Constitution. To resolve this point, the Court needed to examine the statutory provisions that created the appointing authority and conferred powers upon it.

Historically, the Durgah Khwaja Saheb Endowment had been administered, up to and including the year 1936, by a committee formed by the Chief Commissioner of Ajmer under section 7 of the Religious Endowments Act of 1863. In 1936 the Central Legislature enacted the Durgah Khwaja Saheb Act (23 of 1936), which transferred the management and administration of the endowment to a Durgah Committee established under section 4 of that Act. The Committee was incorporated as a body corporate with perpetual succession and a common seal, and it possessed the capacity to sue and be sued in the name of its President. Section 5 of the 1936 Act prescribed that the Committee should consist of twenty‑five members, a mixture of elected and nominated individuals. Section 11(f) expressly empowered the Committee to appoint all of its servants. The 1936 Act was later superseded by the Durgah Khwaja Saheb (Emergency Provisions) Ordinance 3 of 1949, which itself was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Act (XI of 1950). Under section 3 of the 1950 Act, the Committee created by the 1936 legislation was deemed superseded, and the administration was vested in an Administrator appointed by the Central Government. Section 7 of the 1950 Act stipulated that the Administrator would be subject to the control of the Central Government and would exercise all powers previously held by the Committee under the 1936 Act. The provisions of the 1950 Act remained operative until 29 February 1956, a period during which the appellant filed two nomination papers on 28 February, both of which were subsequently rejected by the Returning Officer.

In 1956 the appellant filed two nomination papers on February 28, but the Returning Officer rejected those papers. The Durgah Khwaja Saheb Act of 1950 was subsequently replaced by the Durgah Khwaja Saheb Act (XXXVI of 1955). That later Act received the President’s assent on 14 October 1955 and became effective on 1 March 1956. Section 4(1) of the 1955 Act transferred the administration, control and management of the Durgah Endowment to a Committee. The Committee is described as a body corporate that possesses perpetual succession, a common seal and the capacity to sue and be sued through its President. Section 5 provides that the Committee must consist of a minimum of five and a maximum of nine members, all of whom must be of the Hanafi Muslim faith and are to be appointed by the Central Government. Section 8 authorises the Central Government to supersede the Committee. Under section 9 the Central Government, after consulting the Committee, may appoint a Nazim who functions as the administrator of the Durgah and as the ex‑officio secretary of the Committee. The Nazim’s salary is fixed by the Central Government but is paid out of the revenues of the Durgah Endowment funds. The Committee exercises its powers of administration, control and management through the Nazim. The powers and duties of the Committee are enumerated in section 11; clause (i) of that section, which is material to the present dispute, states: “The powers and duties of the Committee shall be—(i) to appoint, suspend or dismiss servants of the Durgah Endowment.” Section 20 gives the Committee authority to make bye‑laws to implement the purposes of the Act. The respondent drew particular attention to sub‑section 2 of section 20, which provides that, “In particular and without prejudice to the generality of the foregoing power such bye‑laws may provide for—(i) the duties and powers of the employees of the Durgah.” Sub‑section 5 of the same provision further provides that the Central Government may, after publishing its intention, cancel any bye‑law it has approved and confirmed, and that such bye‑law shall then cease to have effect. The respondent argued that, because the 1955 Act makes the Committee a body appointed by the Government, that the Government also appoints the Nazim through whom the Committee acts, and that section 6(2) gives the Government power to remove any Committee member, the appellant was under the control and supervision of the Central Government. Consequently, the respondent contended that the appellant occupied an office of profit under the Government of India. It was further noted that the Constitution, in specifying disqualifications for the President and Vice‑President, expressly includes holding an office of profit under the Government of India, under any State Government, or under any local or other authority subject to the control of those Governments.

In this case the Court observed that the constitutional provision disqualifying persons who hold an office of profit under the Government of India or any State does not extend to offices that are held under a local or other authority that is merely subject to the control of those Governments. Accordingly, the Constitution does not apply that particular disqualification to members of the legislatures. The Court noted that, although the Committee of the Durgah Endowment is appointed by the Government of India, it is a corporate body with perpetual succession that operates strictly within the limits set by the governing Act. The Court held that the mere fact that the Committee or its individual members may be removed by the Government of India, or that the Committee is empowered to frame bye‑laws governing the duties and powers of its employees, does not transform the servants of the Committee into holders of an office of profit under the Government of India. Specifically, the appellant was found not to have been appointed by the Government of India, not to be removable by that Government, and not to receive remuneration from the revenues of India. The Court further explained that the essential factors for determining an office of profit include the Government’s power to appoint a person to the office, to continue the person in that office, to revoke the appointment at its discretion, and the source of payment being Government revenues; however, payment from a non‑government source is not invariably decisive. On the facts before it, the appellant’s appointment did not satisfy any of these criteria. The Court observed that several election cases cited from the Election Law Reports were decided on facts that differed materially from the present matter and therefore offered little guidance. Moreover, the argument advanced by the respondent that the power of dismissal by the Government—or by an officer to whom that power had been delegated—should apply was rejected, because the appellant could not be dismissed by the Government or by any person authorized by it. The appellant was characterized as a servant of a statutory body, and that body’s authority over its servants stems solely from the powers conferred upon it by the statute. The respondent then attempted to strengthen his position by relying on the decision in Shivnandan Sharma v. Punjab National Bank Ltd., a case decided under the Industrial Disputes Act concerning whether a cashier appointed by the Bank’s treasurer and paid by the Bank was a servant of the Bank. That decision held that a master who employs a servant and authorizes that servant to employ others for a specific task, with the expectation of fidelity and efficiency for remuneration, thereby makes those employed individuals, together with the servant, servants of the master. The Court concluded, however, that this rule did not apply to the present facts because the appellant was not employed by a servant of the Government who had been authorized to engage servants for the performance of services for the Government.

It was observed that the appellant was not an employee of the Government and his remuneration did not come from Indian revenues. While the absence of payment from Union revenues is not always decisive, the Court considered it to have some relevance in the present matter. A comparison of the constitutional provisions on membership of State Legislatures—namely Articles 58(2), 66(4), 102(1)(a) and 19(1)(a)—showed that, unlike the President and Vice‑President of the Union, a legislator may be disqualified only if he holds an office of profit under the Government of India or a State Government, and not if the office is under a local or other authority that is merely under governmental control. The Court reiterated that the power to appoint and dismiss, or the degree of control exercised by the Government, is a crucial factor in determining whether an office is an office of profit under the Government. However, the fact that the salary is not drawn from State revenues is, by itself, a neutral consideration. The Court found that the appellant’s appointment as a mohatmin (manager) of the school did not satisfy any of the tests previously discussed. Moreover, on 1 March 1956, the appellant held an appointment under a Committee that is a statutory body; this appointment could not be described as one made by or under the control of the Government of India, and his salary was paid from the Durgah Endowment funds rather than Government revenues. In light of these facts, the majority of the Tribunal was held to have erred in concluding that the appellant occupied an office of profit under the Government, and the contrary view expressed by the Chairman was deemed correct. Because this finding resolved the question of the office of profit, the Court did not need to examine alleged “thrown away” votes or the correctness of the respondent’s election. Accordingly, the Court held that the appellant’s election had been wrongly set aside, allowed the appeal, set aside the Tribunal’s majority order, and awarded costs to the appellant in both this Court and before the Tribunal.