Supreme Court Upholds Disqualification of Appellant in Office of Profit Case Under Article 102(1)(a) of Constitution. Auditor of Government Company, Whose Appointment, Removal, and Control Rest with Central Government and Comptroller and Auditor-General, Holds Office of Profit Under Government Even Without Master-Servant Relationship.

Election petition challenging the election of a returned candidate to the Lok Sabha on the ground of disqualification under Article 102(1)(a) of the Constitution for holding an office of profit under the Government.

The respondents (election petitioners) sought a declaration that the appellant's election was void; the appellant sought reversal of the High Court judgment, dismissal of the election petition, and restoration of his election.

The appellant, a chartered accountant and partner of an audit firm, was elected to the Lok Sabha; two voters filed an election petition alleging that as auditor of government companies and director of a state financial corporation he held offices of profit under the Government of India and the Government of West Bengal, disqualifying him under Article 102(1)(a).

The Election Tribunal allowed the election petition and declared the appellant's election void; the High Court dismissed the appeal and granted a certificate under Article 133(1)(c) of the Constitution; the appellant then appealed to the Supreme Court.

Whether the appellant held an office of profit under the Government of India or the Government of West Bengal by virtue of his position as auditor of government companies and director of the West Bengal Financial Corporation. What tests determine whether a person holds an office under the Government for the purpose of Article 102(1)(a) of the Constitution, and whether those tests are cumulative.

The appellant contended that the expression 'under the Government' requires the coexistence of several tests—power to appoint, right to remove, payment of remuneration, nature of functions, and exercise of control—all showing subordination to the Government; fulfillment of only some tests is insufficient. The respondents contended that the tests are not cumulative, and the court should look to the substance rather than the form; the office of auditor of a government company, though not in government service, is under the Government because appointment, removal, control, and remuneration determination rest with government authorities. The appellant argued that since the remuneration was paid by the companies and not from public revenue, and there was no master-servant relationship, he did not hold an office under the Government. The respondents highlighted the special provisions of Section 619 of the Companies Act, 1956, which vest appointment and control of government company auditors in the Central Government and Comptroller and Auditor-General, demonstrating subordination to the Government.

A person holds an office of profit under the Government if the government has the power to appoint, dismiss, control and give directions as to the manner of performing duties, and determine remuneration, even if not all these powers coexist and even if remuneration is paid by a government company rather than from public revenue. A master-servant relationship is not necessary. The special statutory provisions for appointment and control of auditors of government companies under Section 619 of the Companies Act, 1956, which override the general provisions of Section 224, demonstrate sufficient subordination to the Government to constitute holding an office under it, thereby attracting disqualification under Article 102(1)(a) of the Constitution.

For holding an office of profit, under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. Where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed and the power to determine the question of remuneration are all present in a given case then the officer in question holds the office under the authority so empowered. It is clear from the aforesaid provisions that notwithstanding Section 224 of the Act which empowers every company to appoint an auditor or auditors at each annual general meeting, the appointment of an auditor of a Government company rests solely with the Central Government and in making such appointment the Central Government takes the advice of the Comptroller and Auditor-General of India.

The appellant was elected to the House of the People from Burdwan Parliamentary Constituency in February-March 1962 and declared elected on March 1, 1962. Two voters filed an election petition on April 10, 1962, challenging the election on the ground of disqualification under Article 102(1)(a) of the Constitution. The Election Tribunal allowed the petition and declared the appellant's election void. The appellant appealed to the High Court under Section 116-A of the Representation of the People Act, 1951; the High Court dismissed the appeal on September 27, 1962, and granted a certificate of fitness under Article 133(1)(c) of the Constitution. The appellant then filed Civil Appeal No. 486 of 1963 before the Supreme Court, which rendered judgment on August 14, 1963.

• Constitution of India: Article 102(1)(a), Article 133(1)(c)
• Indian Companies Act, 1956: Section 2(18), Section 224, Section 617, Section 619
• Representation of the People Act, 1951: Section 116-A