Case Note & Summary
The dispute concerned an election petition challenging the election of a member to the Himachal Pradesh State Legislative Assembly on the ground that he held an office of profit under the State Government at the time of filing nominations. Elections were held in March 1972 to the Himachal Pradesh State Legislative Assembly, and the first respondent was elected from the Shahpur Constituency in Kangra District. The appellant, a voter in that constituency, filed an election petition contending that the first respondent, who was Chairman of the Board of School Education, Himachal Pradesh, held an office of profit under the State Government and was therefore disqualified under Article 191(1)(a) of the Constitution. The first respondent had been nominated Chairman of the Board in 1969 by the Himachal Pradesh Government under the Himachal Pradesh Board of School Education Act, 1968, and the order of appointment clearly stated that he was appointed only in an honorary capacity. The High Court of Himachal Pradesh dismissed the election petition on 31 July 1973, leading to the appeal before the Supreme Court. The core legal issue was whether the Chairman of the Board held an office of profit under the State Government. It was undisputed that the office of the Chairman was an office under the State Government. The appellant argued that although the respondent was not receiving salary, the post itself carried a scale of pay fixed by Board Resolution No. 12 dated 17 January 1970 at Rs. 1600-1800 per month, thus making it an office of profit. The respondent contended that he was appointed in an honorary capacity, received no salary, and that travelling and daily allowances were not disqualifying due to Section 3(m) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971. The Supreme Court held that the crucial question was whether the holding of the office resulted in any profit to the holder, however small. In the absence of any profit accruing to the respondent, the office could not be considered an office of profit. The appointment order itself made it clear that he was appointed only in an honorary capacity, and it was not a case where salary was provided and waived. The Court further held that the Board was not competent to fix a scale of pay for the Chairman. Section 10(18) did not enable the Board to fix the scale of pay because fixing the Chairman's pay was not ancillary to the purposes listed in clauses (1) to (17) or for carrying into effect the provisions of the Act. Section 23(4) applied only to officers lower in rank than Deputy Secretary, Assistant Secretary, and Secretary, not to the Chairman. Sections 26(2)(i) and 26(2)(p) also did not cover the Chairman's pay because the Chairman was distinct from members and employees, and the Act did not contemplate a scale of pay for members. Accordingly, the Supreme Court dismissed the appeal and upheld the High Court's decision, ruling that the first respondent was not disqualified from being a member of the Legislative Assembly.
Headnote
A) Election Law - Office of Profit - Disqualification under Article 191(1)(a) Constitution - Chairman of Board of School Education appointed in honorary capacity does not hold office of profit if no profit accrues - Constitution of India, Article 191(1)(a) - The respondent was nominated Chairman of the Board of School Education by the State Government under the Himachal Pradesh Board of School Education Act, 1968, and appointed in an honorary capacity. The order of appointment made it clear that no salary was payable. Held that though the office is under the State Government, it is not an office of profit because the holding of office did not result in any profit to the holder; the test is whether the holder can sue for or otherwise claim the scale of pay, and such claim would not be upheld given the honorary appointment. B) Election Law - Office of Profit - Actual Profit Requirement - Even if post carried scale of pay, no disqualification if no profit accrued to respondent - Constitution of India, Article 191(1)(a) - It is not a case where salary was provided by appointment and waived; the appointment itself was honorary, so no right to salary ever arose. The Board's resolution fixing salary did not create entitlement for the Chairman because the Board lacked competence. Held that no profit accrued to the respondent. C) Statutory Interpretation - Board's Power to Fix Chairman's Pay - Section 10(18) does not empower Board to fix Chairman's scale of pay - Himachal Pradesh Board of School Education Act, 1968, Section 10(18) - Fixing scale of pay of Chairman is not ancillary to purposes in clauses (1) to (17) nor for carrying into effect provisions of the Act. Held that Board resolution fixing salary for Chairman was invalid. D) Statutory Interpretation - Conditions of Service of Officers - Section 23(4) applies only to officers lower in rank than Deputy Secretary, Assistant Secretary, and Secretary, not to Chairman - Himachal Pradesh Board of School Education Act, 1968, Section 23(4) - The Government fixes conditions of service for Secretary, Deputy Secretary, Assistant Secretary; Board cannot determine Chairman's pay by clubbing him with lower officers. Held that Board cannot fix Chairman's pay under Section 23(4). E) Statutory Interpretation - Regulations for Officers - Section 26(2)(i) and Section 26(2)(p) do not cover Chairman's pay - Himachal Pradesh Board of School Education Act, 1968, Sections 26(2)(i), 26(2)(p) - Section 26(2)(i) concerns appointment and service conditions of officers, clerks, and servants but not Chairman; Section 26(2)(p) refers to emoluments and allowances of members, not Chairman because Act distinguishes Chairman from members; emoluments do not refer to scale of pay as Act does not contemplate pay for members. Held that Board resolution fixing Chairman's scale of pay is without authority.
Issue of Consideration
Whether the Chairman of the Himachal Pradesh Board of School Education holds an office under the State Government and an office of profit within Article 191(1)(a) of the Constitution; whether the Board was competent to fix a scale of pay for the Chairman.
Final Decision
Supreme Court dismissed the appeal and upheld the High Court's dismissal of the election petition. It held that the first respondent, though holding an office under the State Government, was not holding an office of profit because the appointment was honorary and no profit accrued; the Board's resolution fixing a scale of pay was invalid due to lack of statutory competence.
Law Points
- Office of profit requires actual profit to holder
- Honorary appointment excludes profit
- Test is whether holder can sue for salary
- Board cannot fix Chairman's scale of pay
- Section 10(18) not ancillary to pay fixation
- Section 23(4) excludes Chairman
- Section 26(2)(i) and 26(2)(p) do not cover Chairman's pay
