AMITAVA LALA,J. - (1.) ALL the matters are connected with each other since common questions are involved therein, as a result whereof we formulate the following points for the purpose of deciding the controversy involved in the present writ petitions: (A) Whether the State Election Commission has any right to debar the Shiksha Mitra and/or Aanganbari workers from contesting the Panchayat elections? (B) Whether the honorarium receivable by Shiksha Mitra and/or Aanganbari workers for rendering their respective services falls within the purview of "office of profit"?
(2.) HISTORICALLY , Part IX of the Constitution of India was inserted by the Constitution (Seventy-third Amendment) Act, 1992 with effect from 24th April, 1993 regarding the Panchayats. In this part of the Constitution, two Articles, being Articles 243-F and 243-K, are very important for the purpose and are reproduced hereunder: "243-F. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide." "243-K. Elections to the Panchayats.--(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats." According to Mr. Arun Sharma and Mr. N.K. Pandey, learned Counsel appearing for the petitioner/s on different occasions, Shiksha Mitra and/or Aanganbari workers are not holding the civil posts. They are not getting any salary from the Government but only honorariums. They are not Government servants and no service rule of the State Government is applicable to them. Therefore, they are not holding any office of profit to attract any bar regarding contesting Panchayat elections.
(3.) THE petitioners further contended that the Election Commission can not debar them because as per the Constitutional mandate given under Article 324 of the Constitution, the Election Commission has only power of superintendence, not to debar any body from being a candidate. Article 328 of the Constitution says that subject to the provisions of the Constitution and insofar as the provision in that behalf is not made by the Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses. They themselves have contended that under Section 12-BB of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter in short called as the 'Panchayat Raj Act') the power of superintendence is vested in the State Election Commission.;