Manas Nath Roy, J. - (1.) For the election Indrani Gram Panchayat (hereinafter referred to as the said Panchayat), the appellants in this appeal viz. Panchkari Halder and Kashi Nath Mondal and so also the Respondent Nos. 1 and 2 viz. Purna Chandra Haider and Nera Pada Mahara (hereinafter referred to as the said respondents) were candidates and their nomination papers were accepted by the Block Development Officer, I who was also the Block Returning Officer, being respondent No. 6.
(2.) The said respondents were not successful in the election and I as such, they on or about 5th October, 1983, challenged the successful elections of the appellants to the said Panchayat Sahapara Constituency and obtained Civil Rule No. 10268 (W) of 1983, claiming, inter alia, amongst others that the nomination papers of the appellants should have been rejected, as they had suppressed the fact and a very material one viz. they were employees of the Gobindapur Non-Formal Sikhya Sibir (hereinafter referred to as the said Sibir) and drew or receive salary for such service. It was also claimed that the above fact was known by the said respondents much after such election of the appellants and they have also learnt that before seeking election, the appellants had not tendered their resignations. Such being the position, the said respondents claimed that the appellants were disqualified under section 8(b) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the said Act), which postulates that a candidate would be disqualified to such election or to become a member of Gram Panchayat, if he is in service of, or receives remuneration from, the Central or State Government or a Gram Panchayat or Panchayat Samiti or a Zilla Parisbad. The knowledge as mentioned above, was claimed to have been firmly received by the said respondents-through the letter dated 20th June, 1983 (Annexure-A to the writ petition), addressed by the Secretary ad-hoc Committee of the District School Board, Murshidabad. The said letter has been attested by the Assistant Inspector of School, attached to the District School Board, Murshidabad who has certified that Sri Kashinalh Mcndal has been serving as Inspector, Gobindapur Non-Formal Centre under the management of the School Board as mentioned above.
(3.) The said Respondents have further stated that the records as mentioned above were the appointment letters of the appellants. It was their specific case that a large portion of the remumeration of the appellants being borne by the Central Government, they were persons, who received remumneration form the Central Government and as such, disqualified to such election or to contest in the election of the said Panchayat. In such view of the matter it was asserted that the elections of the appellants were void, ab initio, unlawful, irregular and as such should be set aside. It was further claimed that the notification dated 17th March, 1983 (Annexure-B to the affidavit-in-opposition), by which the position relating to the eligibility of persons for contesting the Panchayat elections has been thought to be clarified and which was issued by the Department of Panchayat, Government of West Bengal, really dehors the provisions contained in sections 8, 97 and 142 of the said Act, which deal with and lay down the situations when a person would be disqualified to be a members of Gram Panchayat, Panchayat Samiti and Zilla Parished respectively. The notification as indicated above was claimed by Mr. Halder, appearing for Respondent No. 3, the Government of West Bengal (as mention in the Memorandum of appeal), to have been issued under section 222 of the said Act, which makes provisions for removing difficulties and says that if any difficulty arises in giving effect to the provisions of this Act, the State Government may take such steps or issue such orders not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the purpose of removing such difficulty. It should be noted that clause 3(iii) of the said notification amongst others has made provisions for Primary School teachers appointed by the District School Board/Teachers of special cadre Primary School, who were initially appointed by D. I. of schools but subsequently absorbed by District School Board, to be not ineligible to become members of the 3 tier Panchayat bodies apart from hying down in clause 2(1) that Primary School teachers who are Government employees but are on deputation to District School Board/Teachers of Special cadre and Government sponsored Primary Schools, who are appointed by D. I. of Schools and remunerated from Government through him, are not eligible to become members of any tier of the Panchayat bodies. It should also be noted that Mr. Majumder claimed and contended the notification to be not only ultra vires but extra vires too. In fact he claimed the notification to be ultra vires of section 222 of the said Act and Rule 99 of the Rules framed thereunder. The notification in question was issued prior to the holding of the concerned election which was an 29th May, 1978. He have indicated and given the relevant particulars of the concerned notification, as on the basis of the arguments advanced in the appeal, the same would have great bearing.;