“Dear Lalit ji, can a government employee become a trustee?”, it's a question that has often been asked by my readers who are government employees and want to engage in social work. I have written several articles on how to register a public charitable trust and a society. I have been thinking of answering this question since long and today I am actually going to do so!
Before actually hovering around the moot question, it is important to understand what is the meaning of government employee in the eyes of law. The definition of government employee under various statutes and laws is very different from our day-to-day interpretation. While we consider the term for every employee who is directly or indirectly working under the Central/State governments, the law first and foremost only defines the term “government servant” and it further restricts the definition to specifically defined categories.
While the term government servant is clearly defined, the term government employee has not clear definition in the statutes.
For example, under the Central Services (Conduct) Rules, 1964 government servant means any person appointed by the Union Government to any civil service or post in connection with the affairs of the Union and includes a civilian in a Defense Service. While the above Rules are applicable to the Central Civil Services, each state also has its own state services conduct rules. So, any employee working for the central/state government but not falling under the ambit of this definition need not worry at the very outset as she certainly has no bar or restriction from her employment with the government.
Now coming to the main topic, you know by now through my previous articles that the trusts in India are governed by the Indian Trusts Act, 1882.
The Indian Trusts Act is silent on the status of a government employee as far as the role of trustee is concerned. Position of a trustee holds a lot of significance because of the well-established fiduciary relationship that exist between beneficiaries of trust and the trustee. Thus, the Indian Trusts Act leaves no loopholes in ensuring that the essence of such a relationship is kept intact.
In my article on NRI as a trustee, I have already explained that there are two critical sections under the Indian Trust Act which clarify the eligibility of a trustee.
Section 10 deals with the eligibility criteria of a trustee. It clearly states that a person capable of holding a property can become a trustee. However, where the trust is subject to exercise of discretion, such a person must be competent to contract. Any government servant would easily be able to fulfill these two conditions.
Once the eligibility criteria under section 10 are fulfilled, the only glitch that remains is the categorization mentioned under the Section 60. Wherein Section 10 directly determines the eligibility of a trustee, Section 60 indirectly poses a bar on the person(s) falling under certain categories by classifying them as person(s) not proper to become a trustee.
According to the Section 60 of Indian Trusts Act, following persons can not become a trustee:
- A person who is having domicile of any foreign country.
- An alien enemy.
- A person having an interest inconsistent with that of beneficiary.
- A person in insolvent circumstances.
- A married woman and a minor, unless the personal law of the beneficiary allows otherwise.
In most likely circumstances a government employee would be directly fulfilling four out of five classifications since a government employee cannot be a person domiciled abroad and neither can he/she be an alien enemy. Further he/she cannot marry a minor and he/she cannot be a person in insolvent circumstances otherwise it would altogether lead to termination of his/her employment as a government employee.
The only criterion that has to be ensured is whether he/she is a person having an interest inconsistent with that of the beneficiary. Even the last criterion does not pose any explicit bar from becoming a trustee. It is rather an anticipatory clause. So, after thoroughly addressing each clause, it is pretty evident that the classification under Section 60 would hardly act as a barrier in way of a government employee from becoming a trustee.
So, can a government employee become a trustee?
I have explained various relevant acts above. But you might ask, “in simple English, please?”. Well, in simple English, there is nothing in the Indian Trusts Act that bars a government employee from becoming a trustee. As a result, if you're a government employee, you can become a trustee. At the same time, we would suggest that:
- you should make sure that the NGO is not engaged in activities that are against the government's policies or government's stand on issues concerned. You wouldn't want to appear against the government or otherwise you may face disciplinary action.
- you should inform your superiors about the NGO, its objectives and its activities
It could be safely conclude that a government employee can become a trustee. The mere fact of being employed by the State/Central Government does not bar someone from becoming a trustee of a Public Charitable Trust.
Hope this article helped you in getting a clear picture on the present topic. In case of any doubt, feel free to comment!