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Even advisory posts are offices of profit: EC

Sunday 26 March 2006, by VENKATESAN*J.

Commission order in Jaya Bachchan case lays down five criteria

New Delhi: The Election Commission while recommending the disqualification of Jaya Bachchan as member of Parliament has held that though her post as chairperson of the Uttar Pradesh Film Development Council was only advisory, it will come within the ambit of `office of profit.’

In its quasi-judicial order, the Commission citing Supreme Court judgments laid down five criteria for determining an "office of profit"- whether the government makes the appointment of the holder of the office; whether the government has the right to remove or dismiss the holder; whether the government pays remuneration; what are the functions of the holder and does he perform them for the government and whether the government exercises any control over the performance of these functions.

In the light of these criteria, the Commission held that even if a post created by the government was only "advisory", the holder would come within the purview of the disqualifications mentioned in Article 102(1)(a) of the Constitution.

Rejecting Jaya Bachchan’s contention that her role as chairperson of the Council was only that of advising the State Government on policies related to the development of films, the Commission said "the very fact that the State Government has considered it necessary to set up the Council shows that the government is interested in the development of film industry in the State and has undertaken the task by setting up the Council to aid and advise it in this regard."

This finding assumes significance in the context of arguments by the Congress party that the office of chairperson of the National Advisory Council held by Sonia Gandhi was only for the purpose of giving advice and it would not come within the purview of `office of profit’ for the purpose of disqualification as a Member of Parliament.

The Commission said that it was clear from the U.P. Government order appointing Jaya Bachchan as chairperson of the UPFDC that she enjoyed the status of a Cabinet Minister with attendant benefits and facilities. The Council and its chairperson had certain important duties to perform for the government. "No government would set up a Council and make appointments thereto with such high status without any significant reason or end to achieve. It is thus futile to contend that the Council is not performing any important function of or for the government," the Commission said.

It noted that Jaya Bachchan’s appointment was made by the State Government, which also had the power to terminate it. The expenditure on the maintenance of the office was wholly borne by it and it controlled its functioning.

See online : The Hindu

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