In the present case, a writ petition was filed under the Article 32 of the Constitution of India against the order of the Hon’ble President of India, dated 16th March, 2006, whereby, the Hon’ble President in exercise of his powers conferred under Article 103(1) of the Constitution of India has decided, after obtaining the opinion of the Election Commission under Article 103(2), that the petitioner stands disqualified for being a Member of the Rajya Sabha on and from 14th day of July, 2004. The challenge is also to the opinion dated 2nd March, 2006 rendered by the Election Commission to the Hon’ble President, under Article 103(2) that the petitioner has became disqualified under Article 102(1)(a) of the Constitution for being a Member of the Rajya Sabha on and from 14th July, 2004 on her appointment by the Government of Uttar Pradesh as Chairperson of the U.P. Film Development Council by an Official Memorandum dated 14th July 2004, and sanctioned to her the rank of a Cabinet Minister with the facilities as mentioned in O.M. No. 14/1/46/87-C. Ex. (1) dated 22nd March 1991 (as amended from time to time). The benefits to which she became entitled, as a consequence, were:
(i) Honorarium of Rs. 5,000 per month;
(ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750 outside the State. Rs. 10,000 per month towards entertainment expenditure.
(iii) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class IV employees.
(iv) Body Guard and night escort.
(v) Free accommodation and medical treatment facilities to her and family members.
(vi) Free accommodation in government circuit houses/guest house and hospitality while on tour.
- Whether the office held by the petitioner is an office of profit for disqualification within the purview of Article 102?
The term `holds an office of profit’ in Article 102 is not clearly defined in Constitution or any other law but is interpreted by the court in many of its decisions. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is `holding an office of profit’. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. In fact, mere use of the word `honorarium’ cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Further, payment of honorarium, along with the daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, it is more relevant to answer that whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “Pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a).
The Writ Petition is therefore dismissed because the question whether petitioner actually received any pecuniary gain or not is of no importance and therefore the Hon’ble court finds no merit in current writ petition.