Apex Law Journal
Apex Law Journal
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Office of Profit

Wednesday, November 10, 2010
Office of Profit

Office of Profit — The term ‘office of profit’ has not been defined in the Constitution, Representations of Peoples Act, Punjab State Election Commission Act or the Panchayati Raj Act. It is one of those rare terms which is not even defined in the General Clauses Act, 1897. It has, however, been judicially considered in numerous judgments of this Court.

 
Office of Profit

Office of Profit — In the case of Shivamurthy Swami Inamdar Vs. Veerabhadrappa V eerappa [1971 (3) SCC 870], this Court laid down some of the tests that may be relevant to determine as to whether a particular office can be said to be an ‘office of profit’. These tests are :- 

 

“(1) Whether the Government makes the appointment; 

 

(2) Whether the Government has the right to remove or dismiss the holder ; 

 

(3) Whether the Government pays the remuneration; 

 

(4) What are the functions of the holder? Does he perform them for the Government; and 

 

(5) Does the Government exercise any control over the performance of those functions?”

 

        All the five tests would be relevant to determine that whether a particular office is an office under the Government — For determining whether such an office is also an ‘office of profit’, tests 3, 4, 5 assume importance — It is, therefore, necessary to evaluate the nature and the importance of the functions performed. It would be essential to determine whether it would be necessary for the person holding an office under the Government to incur any expenditure in performance of the functions — These matters would then have to be correlated to any honorarium, allowance or stipend that may be attached to the office — Without examining any of these issues, the High Court, in the present case, concluded that the honorarium received by the Lambardar is not compensatory in nature — We are unable to endorse the approach adopted by the High Court.
 

 
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