S S. Ghadha, J.
(1) This order will be treated as in continuation of the order of April 22, 1980 determining the preliminary issues and it is, therefore, unnecessary to re-state the substance of the pleadings. The material controversy raised in the election petition is the subject matter of issue No. 7. Issue No. 7
"Whether Shri Madan Lal Khurana was in the service of the Government at the relevant time and belonging to the class of gazetted officers. If so, whether the election of the respondent is liable to be declared as void on the ground of corrupt practice under Section 100(1)(b) read with Section 123(7) of the Representation of the People Act, 1951? O.P.P."
(2) Shri Madan Lal Khurana (for short Shri Khurana) was returned at the election of 1977 to the Metropolitan Council for Delhi constituted under the provisions of Delhi Administration Act, 1966. He was appointed as an Executive Councillor by a notification dated June 24, 1977, Ex. P-5, published in the Delhi Gazette Extraordinary of Friday, June 24, 1977. He was functioning as an Executive Councillor at the relevant time of the last Parliamentary election. Section 40 of the Representation of the People Act, 1951 (here after referred to as the Act) permits a candidate at an election to appoint in the prescribed manner any one person other than himself to be his election agent and then any such appointment is made, notice of the appointment has to be given in the prescribed manner to the returning officer. Rule 12 of the Conduct of Election Rules, 1961 prescribes the procedure for appointment of an election agent. It provides that any appointment of an election agent under Section 40 shall be made in Form 8 and the notice of such appointment shall be given by forwarding the same in duplicate to the returning officer who shall return one copy thereof to the election agent after affixing thereon his seal and signatures in token of his approval of the appointment. There is no doubt that Shri Atal Behari Vajpayee, the returned candidate (for short the respondent) made the appointment of Shri Khurana as the election agent in the prescribed manner. The certified copy of Form 8 in the records of the Returning Officer, New Delhi Parliamentary Constituency is Ex. P-2 and its English translation is Ex. P-2/T. It contains the nomination by the Respondent of Shri Khurana as the election agent and the acceptance of Shri Khurana. The original letter of the Returning Officer, New Delhi Parliamentary Constituency, Ex. P-3, establishes that the appli- cation of the respondent in Form 8 was presented to the Returning Officer on December 31, 1979 and a copy was returned thereof. In para 8 (a) of the election petition, the allegation is that the respondent obtained the assistance , Shri Khurana, a person belonging to the class of gazetted officers in the service of the Government, for the furtherance of his prospects of the election (i) by appointing him as an election agent, and (ii) by involving him in the conduct of election compaign. In the corresponding paragraph of the written statement, there is a specific denial of the allegation that Shri Khurana was a person belonging to the class of gazetted officers in the service of the Government but the respondent has omitted to traverse the other material allegation in sub para, (a) of para 8 of the election petition. It is also not disputed even at the Bar that the respondent had appointed Shri Khurana as his election agent at the election and this appointment is valid in law.
(3) Xx xx xx
(4) I may now consider the true nature of the office of the Executive Councillor held by Shri Khurana in order to determine whether he was in the service of the Government at the time he acted as the election agent of the respondent.
(5) The structure of the Government for our country is detailed in the Constitution of India. Parts V, Vi and Viii of the Constitution of India lay it down for the Union, the States and the Union Territories specified in the First Schedule, respectively. It is broadly divided into three departments, the Executive, the Legislature and the Judiciary. The Constitution of India has not, however, recognised the doctrine of separation of powers in its absolute rigidity but the functions of different parts of the Government have been sufficiently differentiated. The Executive power of the Union is vested in the President and is to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution (Article 53). The executive power of the State vests in the Governor and is to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution (Article 154). Subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which Parliament has power to make laws except that unless expressly provided in the Constitution or by any law made by Parliament, the executive power does not extend to any matter in the concurrent legislative list (Article 73). Similarly, the executive power of the State is made co-extensive with its legislative power, subject, how. vew, regarding matters in concurrent legislative list, to the executive power expressly conferred by the Constitution or by any law made by the Parliament, upon the Union or the authorities thereof (Article 162). The exercise of the executive power of the Union is the function of the President and in order to aid and advice him, the provision is made in Article 74 that "there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice". Under Artice 75, the Prime Minister is to be appointed by the President and the other Ministers are to be appointed by the President on the advice of the Prime Minister. The Ministers hold office during the pleasure of the President. Before a Minister enters upon his office, the President administers to him the oath of office and secrecy. A Minister who for any period of six consecutive months is not a member of either House of Parliament ceases to be a Minister at the expiration of that period. The salaries and allowances of Ministers, are such a Parliament may from time to time by law determine and till then, they are as specified in the Second Schedule. Provision is also made for the conduct of the Government of India's business in Article 77. All executive action of the Government of India is expressed to be taken in the name of the President. Orders and other instruments are to be authenticated in such a manner as may be specified in the Rules to be made by the President. The President is also to make Rules for the more convenient transaction of the business of the Government of India and for the allocation among Ministers of the said business. Articles 162, 163 and 166 contain mutates mutants same provision for the Council of Ministers to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
(6) It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue for governmental functions that remain after legislation and judicial functions are taken away. The executive function comprises both the determination of policy as well as carrying it into execution and includes the initiation of the legislation, the maintenance of the order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State. By reason of Article 298, it will also include the carrying on of the trading operations, the acquisition, holding and disposing of property and the making of the contract for any purpose ("Rai Sahib Ram Jamaya Kapur and others v. State of Punjab", ).
(7) In the limited backdrop of the above provisions of the Constitution and the extent of the Executive function, the question to be considered is whether the Prime Minister and other Ministers or the Chief Minister and the other Ministers are persons in the service of the Government. One cannot forget that in our country there is a responsible system of Government both at the Centre and in the States. The candidates contest elections on their affiliation to the particular political party and may be returned. There is unwritten convension that the leader of the party which commands the majority in the House is entrusted with the task of forming the Government and the Ministers are generally the leaders and are chosen from the party. When the Ministers occupy the positions, they form political part of the Government. When appointed as Ministers, they occupy a dual capacity. In one capacity) the Ministers aid and advice the President or the Governor, as the case may be, in the exercise of his functions. The President as well as the Governor is the Constitutional head. As pointed out by the Supreme Court in "Samsher Singh v. State, of Punjab and another", , "the President as well as the Governor is the
Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power of function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business, made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of- business is. the decision of the President or the Governor." In other words, the President or the Governor acts on the aid and advice of the Council of Ministers. and the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of States in all matters which vest in the executive whether those functions are executive or legislative in character.. Ministers while acting under Rules of business are carrying out the executive functions, not as persons in service of the Government, but as a part and parcel of the Government.
(8) In their capacity as leaders of their party, the Ministers have to explain to the electors the policies and programmes which they seek to. enforce: A Minister merely by reason of his office would not suffer from any disability either to contest at the next elections or to. assist for the furtherance of the prospects of the party candidates election or to ask the electors to vote for them who are pledged to support those policies and programmes. This. was the view taken by the Andhra Pradesh High Court in "Jailakshmi Dayamma v. Janardhan Reddi", 17 E. L. R. 302 with which I am in respectful agreement.
(9) Reliance was placed by Shri A.K. Sen, the learned counsel for the petitioner on Emperor v. Shiv Nath Banerjee" wherein it was held that "so far as it is relevant in the present case, their Lordships are unable to accept the suggestion by counsel for the respondent that the Home Minister is not an officer subordinate to the Governor within the meaning of Section 49(1), and so far as the decision in "Emperor v. Amendra Prasad", I. L. R. 1939 Calcutta decides that a Minister is not such an officer, their Lordship are unable to agree with it." The Privy Council in that case considered the provisions of Section 49 of the Government of India Act, 1935 which provides as under :
"The Executive authority of a province shall be exercised on behalf of his Majesty by the Governor, either directly or through officers subordinate to him."
What the Privy Council lays down in that case is that the Minister is an officer subordinate to the Governor, but from that it does not of necessity follow that a Minister is in the service of the Government ("Laljibhai Jodhabhai Bar v. Vinodchandra Jethalal Patel", ). In that case, a candidate had appointed the
Parliamentary Secretary to the Chief Minister of the State of Gujarat as his election agent and utilised his services for furtherance of the prospects of his election. The question arose whether that candidate was guilty of any corrupt practice under Section 123(7) of the Act. It was held that Parliamentary Secretaries in the State of Gujarat form part of the Government and they cannot be regarded as being in the service of the Government within the meaning of Section 123(7). In "Rustam Satin v. Sampoornanand", 20 E. L. R. 221, the Allahabad High Court held that a Minister cannot be held to be a Government servant. In "Amirchand v. Surendra Lal Jha and others", 10 E. L. R. 57 the Election Tribunal, Nagpur held that Ministers are officers appointed by the Governors but they are in no sense servants of the Government, and the rules requiring Government servants to refrain from taking part in election propaganda or in any other way assisting a candidate in an election, do not apply to them. In "Triloki Singh v. Shivrajwati Nehru", 16 E. L. R. 234, the Election Tribunal, Lucknow, after referring to the provisions contained in the Constitution relating to the Council of Ministers in the State expressed that the Ministers themselves constitute the Government and it is obvious that a person cannot be at the same time be a master as well as a servant. In "Mast Ram v. Iqbal Singh", 12 E. L. R. 34, the Election Tribunal, Amritsar held that the Ministers are not persons serving under the Government of any State arid there can be no objection canvassing by them in the support of a candidate. In "Kartick Chandera Bout v. Bijoy Krishna De". 1962 Doabia E. L. 282, the Election Tribunal, Balasore expressed the view that Shri Nehru's assistance by addressing election meetings cannot be said to be an assistance of a person in the service of the Government for the furtherance of the election prospects.
(10) Xx xx xx xx xx
(11) Xx xx xx xx xx
(12) Xx xx xx xx xx The Administration of Delhi was being carried on through an Administrator of Delhi appointed by the President under Article 239. A Bill was introduced in Parliament with a statement of objects and reasons that "this Bill has been brought forward with the object of providing for a larger measure of association of the representatives of the people of the union Territory of Delhi with the administration of the territory. It seeks to establish a Metropoliton Council for the entire territory and also an Executive Council to assist and advise the Administrator of the territory." Parliament, therefore, made an Act to provide for the Administration of the Union Territory of Delhi and for matters connected therewith and called it the Delhi Administration Act, 1966 (Act No. 19 of 1966) for short called the Admn. Act) The Admn. Act received the assent of the President on June 2, 1966. Sections provides for the constitution, of a Metropolitan Council for Delhi. The total number of seats in the Metropolitan Council to be filled by persons chosen by direct election from territorial constituencies are 56. The Central Government is also empowered to nominate not more than 5 persons, not being persons in the service of the Government, to be memoers of the Metropolitan Council. Reservation of seals for the Scheduled Castes in the Metropolitan Council is also made. Section 4 provides for the de-limitation of the constituencies for the purposes of election to the Metropolitan Council. Qualifications for membership to fill in a seat in the Metropolitan Council are laid down in Section 6 :
"A person shall not be qualified to be chosen to fill a seat in the Metropolitan Council unless he : (a) is an elector for any constituency and makes and subscriber before some person authorised in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the schedule; (b) is not less than 25 years of age; and (c) in the case of constituenby reserved for Scheduled Castes, is also a member of any one of those Castes."
Disqualifications for membership are laid in Section 19 to the following effect:
"19 (1) A person shall be disqualified for being chosen as, and for being, a member of the Metropolitan Council if he is for the time being disqualified for being chosen as, and for being, a member of either House of Parliament under any of the provisions of Article 102 or of any law made in pursuance of that article. (2) For the purposes of this section, a person shall not be deemed to hold an office of profit by reason only that he is a member of the Executive Council. (3) If any question arises as to whether a member has become disqualified for being such a member under the provisions of Subsection (1), the question shall be referred for the decision of the President and his decision shall be final. (4) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion."
(13) Section 7 provides that the persons entitled to vote at the election of members shall be the persons entitled, by virtue of the provisions of the Constitution and the Representation of People Act, 1950 to be registered as voters at elections to the House of People. So much of the electoral roll for any Parliamentary Constituency for the time being in force as relates to the areas comprised within a constituency found under Section 4 is deemed to be the electoral roll for that constituency for the purposes of the Admn. Act. A right to vote is given by Section 8 to every person whose name is, for the time being, entered in the electoral roll of a constituency, at the election of a member from that constituency. By force of Section 9, the provisions of Part I and Parts Iii to Xi of the Act and of any rules or orders made there under, for the time being in force, are applied in relation to an election to the Metropolitan Council, as they apply in relation to an election to the Legislative Assembly of a State, subject to such modifications as the Central Government may, after consultation with the Election Commission, by order, direct. The duration of the Metropolitan Council, unless sooner dissolved, is for 5 years from the date appointed from its first meeting according to the
(14) Shri Khurana was chosen by direct election from a territorial constituency. In other words, he was returned at the election of 1977 to the Metropolitan Council for Delhi as an elected representave under the provision of the Admn. Act. The origin of being a member of the Metropolitan Council is the election under the Admn. Act as contrasted to any employment or in service under the Government. The Central Government is also empowered to nominate not more than 5 persons to be members of the Metropolitan Council but the Legislature has laid down a restriction that those persons should not be in the service of the Government. The policy of the law is to keep Government Servants aloof from politics. The necessary inference is that the members of Metropolitan Council will delver into politics. A Government servant by virtue of his being an holder of office of profit is in elligible to seek election to the Metropolitan Council for Delhi and for similar considerations the legislature has prohibited his nomination to be a member of the Metropolitan Council.
(15) Section 27 of the Admn. Act provides that there shall be an Executive Council, consisting of not more than four members. One of whom shall be designated as the Chief Executive Councillor and others as the Executive Councillors, to assist and advice the Administrator in the exercise of his functions in relation to matters enumerated in the State list or the concurrent list, except in so far as he is required by or under the Admn. Act to exercise his functions or any of them in his discretion.or by or under any law to exercise any judicial or quasi-judicial functions. The functions of the Metropolitan Council are laid down in Section 22 reading as follows :
"22 (1) Subject to the provisions of this Act, the Metropolitan Council shall have the right to discuss, and make recommendations with respect to, the following matters in so far as they relate to Delhi, namely: (a) proposals for undertaking legislation with respect to any of the matters enumeraton an the State List or the Concurrent List in the Seventh Schedule to the Constitution in so far as any such matter is applicable in relation to union territories (hereafter referred to as the State List and the Concurrent List); (b) proposals for extension to Delhi of any enactment in force in a state relatable to any matter enumerated in the State List or the Concurrent List; (c) proposals for legislation referred to it by the Administrator with respect to any of the matters enumerated in the State List or the Concurrent List; (d) the estimated receipts and expenditure pertaining to Delhi to be credited to and to be made from, the Consolidated Fund of India; and notwithstanding anything contained in the Delhi Development Act, 1957, the estimated receipts and expenditure of the Delhi Development Authority; (e) matters of administration involving general policy and schemes of development in so far as they relate to matters enumerated in the State List or the Concurrent List; ( f) any other matter referred to it by the Administrator. (2) The recommendations of the Metropolitan Council, after having been duly considered by the Executive Council, shall, wherever necessary, be forwarded by the Administrator to the Central Government with the views, if any, expressed thereon by the Executive Council."
By force of Section 15 of the Admn. Act, every member of the Executive Council has the right to speak in, and otherwise take part in the proceedings of the. Metropolitan Council, and any Committee of the Metropolitan Council of which he may be a member, but cannot by virtue of that Section be entitled to vote. Under our Constitution there is a responsible system of Government both at the Centre and in the States. The Government of Union Territories Act, 1963 provides for Legislative Assemblies and Council of Ministers for the said Union Territories. In every State and the Union Territory covered by the Government of Union Territories Act, 1963, there is a Council of Ministers with the Chief Minister at the head to aid and advice the Governor/Administrator in the exercise of his functions. The Leader of the party which commands the majority in the Legislative Assembly is entrusted with the task of forming the Government and the Ministers are chosen from the party. When the Chief Minister and other Ministers occupy the positions, they form political part of the Government. In their capacity as leaders of the political party, they have to explain the policies and programmes which they seek to enforce.
(16) Under the Admn. Act a person has first to be chosen by direct election from the territorial constituencies or be nominated by the Central Government to be a member of the Metropolitan Council. A member can be appointed as the Chief Executive Councillor or Executive Councillor by the President only if he commands or is expected to command the majority of the members of the Metropolitan Council. There is no such statutory provision but is an established convention in democracy. The last three elections to the Metropolitan Council adhered to this convention. As in the case of Ministers in the State or the said Union Territories, a member of the Executive Council who for any period of six consecutive months is not a member of the Metropolitan Council, ceases to be a member at the expiration of the period of six months (Section 28(4). In other words, the Executive Councillor has to get himself elected or nominated as a member within six months of his appointment; otherwise he will have to vacate his office. The essential qualification has to be acquired within six months. The intention of the Parliament is clear that a member of the Executive Council who is not a member of the Metropolitan Council could be chosen by direct election from one of the territorial constituencies within a period of six months. If an Executive Councillor is considered to be a person in the service of the Government, then he cannot take part in politics and elections. The Central Civil Services (Conduct) Rules, 1964 prohibit it in case of Government servants. Participation of Government servants in political activities is not allowed. In that case the Executive Councillor will not be in a position to canvass or take part in the elections. The Legislature could not have intended such an anamolous situation. A person in the service of the Government cannot also be nominated by the Central Government. With the result that a person who is not already a member of the Metropolitan Council and is appointed as an Executive Councillor has to vacate the seat after six months. In that case the provisions of Section 28(4) of the Admn. Act are meaningless. It cannot be imputed to the legislature that a provision would be made which cannot be worked out.
(17) The Executive Councillors as also the members of the Metropolitan Council constitute an integral part of the Legislative proposals. The recommendations are made by the Metropolitan Council on matters relating to legislation in Delhi. Under Article 246(4) of the Constitution, Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State list. In exercise of this power Parliament is not fettered by anything in the entries in the State list or anything following there from. No Legislature is created for Delhi and hence all laws are passed by Parliament. The functions of the Metropolitan Council are limited to making proposals for undertaking legislation or for extension to Delhi of any enactment in force in a State. It is not a complete association of the people of Delhi in the legislative activity, which is possessed by Parliament. But that is so in case of other Union Territories even after a Legislature it created for a Union Territory. Parliament still possesses paramount power to legislate with respect to any matter included in List Ii, for the Union Territories. The Legislature of a Union Territory has no exclusive power with respect to List Ii as the legislatures of the States possess. There is thus no appreciable difference in the legislative functions of the Executive Councillors viz-a-viz Ministers in the Union Territory having Legislature.
(18) The Executive Councillors also exercise the powers in matters of administration involving general policy and schemes of development. The Executive Councillors assist and advice the Administrator in the exercise of his functions in relation to matters enumerated in the State list or concurrent list except for certain excepted matters. The function of the Executive Councillors is primarily advisory. Section 29 of the Admn. Act provides for .the conduct of business. The President makes rules for the allocation of 'Business to the members of the Executive Council in so far as it is not business with respect to which the Administrator is required by or under the Admn. Act to act in his discretion. Any decision taken by the Executive Councillors under the rules of business would be the decision of the Administrator. The Executive functions discharged under the allocation of business by the Executive Councillors would be the executive action of the Administrator. This power to discharge the functions by the Executive Councillors is akin to the one enjoyed by the Ministers in the States. The Executive Councillors constitute the political part of the Government and vacate office with the Government. The tenure of the Executive Councillors is dependent on the fluctuations of the political wing of the Government. A person who himself is a limb of the political part of the Government or exercising the executive power cannot, even by stretching the language of Section 127(1) of the Act to a breaking point, be regarded as in the service of the Government.
(19) It is next argued by Shri A.K. Sen that Shri Khurana was in the service of the Government at the relevant time as he accepted the appointment as Executive Councillor and subjected himself at all times to the lawful orders and directions of the Government in respect of his duties and functions as an Executive Councillor. Reliance is placed on Section 30 of the Admn. Act, which provides that notwithstanding anything in the Admn. Act, the Administrator and the members of the Executive Council shall be under the general control of, and comply with such particular directions, if any as may from time to time be given by the President. According to the counsel, the President which means the Government, is entitled in law to give orders to the Executive Councillor and have it obeyed. Thus the relationship of master and servant comes into existence by the Government having the control of the work done by the Executive Gouncillor. Reliance is placed on para 872 of Halsbury"s Laws of England, Third Edition Vol. 25 reading :
"872. The contract of service. The relationship of master and servant is characterised by a contract of service, express or implied, between the master and the servant. A contract of service is one in which a person undertakes to serve another and to obey his reasonable orders within the scope of the duty undertaken. Whether or not a particular contract is a contract of service is a question of fact, depending upon the terms of the engagement, the method of remuneration, and the power of controlling and dismissing the worker, although none of these factors is by itself conclusive. A contract of service must be distinguished from a contract for services. The distinction between a servant and an independent contractor is considered hereafter. The distinction between a service occupancy and a tenancy of premises is considered elsewhere in this work."
(20) Reliance is next placed on "D.C. Works Ltd. v. State Saurashtra and others", , wherein it was held :-
"The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way : "In the one case the master can order or require what is to be done while in the other case he cannot only order or require what is to be done but how itself it shall be done". (Per Hilbery, J. in Collins v. Hertfordshire County Council, 1947 Kb 598 at p. 615 (A)). x x x x x "The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the master of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd., 1947(1) A.C. 1, at p.23(E). "The proper test is whether or not the hirer had authority to control the manner of execution of the Act in question."
(21) Reliance is further placed on Harish Chandra Bajpai and another v. Triloki Singh and another", wherein it was held that there is in law a well-established distinction between a contract for service and a contract of service. In one case the master can order or require what is to be done while in the other case he cannot only order or require what is to be done but how it shall be done. Reference is also made to "Goolbai Motabai v. Pestonji", A. 1. R. 1935 Bombay 333 and "Ram Phal Raghu Nath Sahai v. Braham Parkarh", A.I.R. 1962 Pg. 129 (but the law is not advanced in those cases). Reliance is lastly placed on "Kishore Chandra Deo Bhani v. Raghunath Misra", 19 E.L.R. 1 where their Lordship of the Supreme Court laid down the distinction between serving under the Government and in the service of the Government in these words :
"In our opinion, there is a distinction between "serving under the Government" and "in the service of the Government," because while one may serve under a Government, one may not necessarily be in the service of the Government; under latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. There are, according to Batt (on the law of the Master and servant), two essentials to this relationship; (1) the servant must be under the duty of rendering personal services to the master or to others in his behalf, and (2) the master must have the right to control the servant's work either personally or by another servant or agent and, according to him, "It is this right of control or interference, of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant characteristic in this relation and marks off the servant from an independent contractor, or from one employed merely to give to his employer's control in doing the work or effecting the service; he has to shape and manage his work so as to give the result he has contracted to effect......"
(22) Reference is also made to "Maulana Abdul Shakur v. Rikab hand and another", 1958 S.C.R. 387; "Guru Gobinda Basu v. Sankari Prasad Ghosal and others" and "Madhukar G.E. Pankakar v. Jaswant
Choubildas Rajani & others", . In all those cases, the question considered was whether the concerned person was holding an office of profit under the Government. The factors which are decisive in such a case are the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues. But for holding an office of profit under the Government, one need not be in the service of the Government and there need be no relationship of master and servant between them. There is a vast difference between the holder of an office of profit under the Government and the holder of a post or service under the Government.
(23) There is no dispute to the test laid down by the Supreme Court in determining the relationship of master and servant or one as being in the service of the Government. It is the right to control the manner in which that person does his work that makes the person subordinate, as being in service. Another important factor is that the person must be under the duty of rendering personal services to the master or to others on his behalf. The provisions of the Admn. Act do not lay down the manner in which the work of assisting or tendering advice to the Administrator by the Executive Councillors can be controlled, regulated or supervised by the Government. The President has made rules for the allocation of business to the members of the Executive Council in so far as it is not the business with respect to which the Administrator is required by or under the Admn. Act to act in his discretion and for the more convenient transactions of business with the members of the Executive Council. The business is transacted by the Executive Councillors without there being any direct control or supervision of the Government in regard to the manner or method of transacting the business. The rules do not spell out any direct control. Section 30 of the Admn. Act speaks of the general control and not direct control. The general control cannot give the right to control the manner in which the Executive Councillors do their work or discharge their functions. The provisions of the Admn. Act also do not lay down how the functions of the Metropolitan Council in regard to the legislative proposals or in relation to matters of administration involving general policies and schemes of development in so far as they relate to matters enumerated in the State list or the concurent list are to be discharged. Subject to the Rules regulating the procedure of Metropolitan Council, a member has a right to ask questions on any matters in so far as it falls within the purview of Metropolitan Council under Sub-section (1) of Section 22 of the Admn. Act. The Admn. Act does not contain any provisions as to how that is to be regulated. Every member of the Executive Council has a right to speak in, and otherwise to take pirt in the proceedings of the Metropolitan Council, and any Committee of the Metropolitan Council of which he may be named as a member. There is no administrative control of the Government in the exercise of that right of the Executive Councillors. No oral evidence has been led in this case to show the manner or method of the control of the functions or work. A person in the service of the Government has a reference of the person in respect of whom the Executive control is vested in the Government. The absence of the right of the Government to directly supervise and control the work is because the Executive Councillors are masters of themselves and are not in the service of the Government.
(24) Bhagwati, J. who spoke for the Supreme Court in Lakshminarayan Ram Gopal and Son Ltd. v. The Government of Hyderabad", , quoted with approval the distinction between a servant and agent indicated in Powell's law of agency and Halsbury as follows :
"The distinction between a servant and an agent is thus indicated in Powell's Law of Agency, at page 16 :- (a) Generally a master can tell his servant what to do and how to do it. (b) Generally a principal cannot tell his agent how to carry out his instructions. (c) A servant is under more complete control than an agent; and also at page 20 : (a) Generally, a servant is a person who not only receives instructions from his master but is subject to his master's right to control the manner in which he carries out those instructions. An agent receives his principal's instructions but is generally free to carry out those instructions according to his own discretion. (b) Generally, a servant, qua servant, has no authority to make contracts on behalf of his master. Generally, the purpose of employing an agent is to authorise him to make contracts on behalf of his principal. (c) Generally, an agent is paid by commission upon effecting the result which he has been instructed by his principal to achieve. Generally, a servant is paid by wages or salary. The statement of the law contained in Halsbury's Laws of England -Hailsham Edition-Volume 1, at page 193, article 345 where the petitions of an agent, a servant and independent contractor are thus distinguished: ...... .. . . . "An agent is to be distinguished on one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given to him in the course of his work; an inpependent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master's implied agent, the extent of the agency depending upon the duties or position of the servant. Applying these principles it was held that the appellants there were to act as the agents of the Company and carry on the general management of the business of the Company subject to the control and supervision of the Directors. That does not, however, mean that they acted under the direct control and supervision of the Directors in regard to the manner and method of their work. The control and supervision of the Directors was a general control and supervision and within the limits of their authority the appellants there as agents of the Company had perfect discretion as to how that work of general management was to be done both in regard to the method and the manner of such work.
(25) Xx xx xx
(26) It is further urged by the council for the petitioner that under Section 27 of the Admn. Act, the Executive Councillors are to assists and advice the Administratior in the exercise of his functions unlike the Gouncil of Ministers with the Prime Minister at the head to aid and advice the President in exercise of his functions (Article 74), or the Gouncil of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions (Article 163), or the Council of Ministers in each Union Territory with the Chief Minister at the head to aid and advice the Administrator in the exercise of his functions (Section 44 of the Government of Union Territory of India, 1963). Reference is also made to Section 9 of the Government of India Act, 1935 wherein it was similarly provided that there shall be a Gouncil of Ministers, not exceeding 10 in number, to aid and advice the Governor-General in the exercise of his functions. It was contrasted to Section 11 of the Government of India Act, 1935 which made provisions as to defense, ecclesiastical affairs, external affairs and the tribal areas and being assisted in the exercise of those functions by Councillors. According to the council, to aid is between two equals and to assist is between a subordinate and superiors and thus assisting the Administrator in the exercise of his functions by an Executive Councillor contained an element of subordination to make him in the service of the Government. Reliance is placed on Craies on Statute Law that "if we find that in previous legislation two different works have been designedly used to express two distinct things, we may assume that in subsequent statutes the legislative has not lost sight of the distinction uniformly observed in the proceeding statutes".
(27) The words 'to aid and advice' or 'to assist and advice' are not defined either in the Constitution or in the Government of Union Territories Act or in the Admn. Act. In Webster's Third New International Dictionary, 'aid' means to give help or support to; to facilitate; to assist. 'To assist' means to give support or aid. In Shorter Oxford English Dictionary, "to aid" means to give support to; to held, assist, succour. "To assist" means to aid, help; to second, to succour, to promote. In common parlance there is no real difference between 'to aid' or 'to assist' and both are interchangeable words. The framers of our Constitution made the President a constitutional and formal head of the Executive and by using the words 'to aid and advice' directed to make him act with the advice of the Council of Ministers. By the use of the words to aid and advice, it is made clear that the President though elected, would act as a constitutional head only on the advice of the Ministers. The real executive powers are vested in the Ministers or the Cabinet Ministers. Under Section 27 of the Admn. Act, the Administrator is not bound to accept the assistance and advice rendered to the Administrator as the proviso suggests that in case of difference of opinion between the Administrator and the members of the Executive Council on any matters, the Administrator shall refer it to the President for decision and act according to the decision given thereon by the President. In that sense there is thus difference of the acceptance of the advice in all cases. From that it does not of necessity follow that an Executive Councillor is in the service of the Government.
(28) Reliance is also placed on the provisions of Section 28 of the Admn. Act that the members of the Executive Council are appointed by the President, that the members of the Executive Council hold office during the pleasure of the President and that the salaries and allowances of the members of the Executive Council are such as the President, may, by order determine. The appointment of Shri Khurana was made by the Vice President acting as President on June 24, 1977 by notification of the same date (Ex. P-5). The President also made the order called the Executive Councillor (Salaries and Allowances) Order, 1966 (Ex. P-4). According to the counsel for the petitioner, all these factors do suggest that the Executive Councillors are in the service of the Government. It is true that the Executive Councillor is appointed by the President and that he holds office during the pleasure of the President, but that by itself will not make the Executive Councillor in the service of the Government. The constitutional functionaries and the holders of high constitutional offices exercising State powers are not employees or servants or holders of employment urnder the Government, yet all of them are appointed by the President. The Governors, Judges of the Supreme Court and High Court, The Comptroller and Auditor General of India and the Chief Election Commissioner are all appointed by the President. They cannot be regarded as subordinate to the Government of India. They are only subordinate to the provisions of the Constitution. The appointment of the said constitutional functionaries by the President which means in fact and in substance the Government of India, is only a mode of appointment. The Prime Minister and other ministers are also appointed by the President and they hold office during the pleasure of the President, yet no one has suggested that they are in the service of the Government on that account. The salaries and allowances are paid to the Executive Councillors by the Government out of the consolidated fund of India not because the Government is the Master. The salaries and allowances are paid to the Executive Councillors under the statutory mandate contained in Section 28(5) of the Admn. Act and the Presidential order issued and not because they are regarded as Government servant. The members of the Parliament and State Legislatures are paid their salaries and allowances, yet no one ever suggested that they be regarded as in the service on that account. Payment of emoluments from the State fund to the Executive Councillors also docs not make them in the service of the Government.
(29) Before a member of the Executive Council enters upon his office, the Administrator is to administer him the oath of office and secrecy according to the form set out for the purpose in the Schedule to the Admn. Act (Section 28(3)). Similarly) under Section 45(4) of the.Government of Union Territories Act,1963, before a Minister enters upon his office, the Administrator has to administer to him the oath of office and of secrecy according to the forms set out for the purpose in the First Schedule. The language in the two forms is substantially the same in material particulars. Similar is the position in case of Prime Minister and other Ministers Article (75(4) & Article 164(3)). Oath of office is also administered to the functionaries under the Constitution. The administration of the oath of office conflicts with a person being in the service of the Government. The Government servants are not administered any oath of office.
(30) A person serving under the Government is not synonymous with the Government servant and there is an essential difference between them. Being conscious of it, I may say that the Government servants are persons who are appointed by the Government to any civil service or post in connection with the affairs of the Union. Part Xiv of the Constitution of India provides for the services under the Union and the State. Then there are rules relating to posting, transfer, conduct, discipline with power of suspension and dismissal, pension and gratuity. None of them are shown or argued as being applicable to the Executive Councillors. Article 16 of the Constitution lays down the equality of opportunity in the matters of public employment. The appointment of an Executive Councillor by the President under Section 28(1) of the Admn. Act in case of an appointment to an office under the State, would attract Article 16 cannot be suggested that the people of the Delhi or even the limited number of the members of the Metropolitan Council can claim as a matter of right for being considered for appointment as an Executive Councillor.
(31) Xx xx xx
(32) The Admn. Act was enacted with the object of providing a large measure of association of the representatives of the people of the Union Territory of Delhi with the administration of the territory. It sought to establish a Metropolitan Council for the entire territory and also an Executive Council to assist and advice the Administrator of the Territory. Shrl Khurana was returned at the election of 1977 to the Metropolitan Council as an elected representative under the provisions of the Admn. Act. The origin of being a member of the Metropolitan Council is the election under the Admn. Act as contrasted to any employment or in service under the Government. A member can be appointed as the Chief Executive Councillor or Executive Councillor by the President only if he command commends ' or is expected to the majority of the members of Metropolitan Council. When appoined as Executive Councillors, they occupy dual capacity. The Executive Councillors constitute the political part of the Government and vacate office with the Government. A person who himself is a limb of the political part of the Government or exercising executive power cannot, even by stretching the language of Section 127(1) of the Act to a breaking point, be regarded as in the service of the Government. The provisions of the Admn. Act do not lay down the manner in.which the work of assisting or tendering advice to the Administrator by the 'Executive Councillors can be controlled, regulated or supervised by the Government. The absence of the right of the Government to directly supervise and control the work is because the Executive Councillors are masters of themselves. The appointment of the Executive Councillors by the President is only a mode of appointment and cannot be regarded as in service of the Government on that account. Payment of emoluments from the State fund to the Executive Councillors also does not make them in the service of , Government. The administration of the oath of office to the Executive Councillors conflicts with a person being in the service of the Government. The conclusion is irresistible that Shri Khurana was not in the service of the Government at the relevant time. Issue No. 7 is held against the petitioner. Relief
(33) In view of my finding on issue No. 7, the election petition fails and is dismissed with costs. Counsel's fee Rs. 1,000.00