- (1.) The subject-matter of this writ petition is a circular dated 14th April, 2003 issued by the Joint Secretary, West Bengal State Election Commission providing inter alia that the members of National Volunteer Force and Home Guards are not eligible to contest in the Panchayat Elections. The petitioner has challenged the legality of the said circular and has also prayed for a writ in the nature of mandamus commanding the respondents to allow the petitioner to continue to function as an elected member of the Hemtabad Panchayat Samity. The undisputed facts of the case are as follows :- The petitioner, enrolled as a Home Guard and posted at Hemtabad Police Station, by a letter dated 8th April, 2003, applied to the Superintendent of Police concerned for grant of leave during the period between 9th April, 2003 and 14th April, 2003. On 9th April, 2003 the petitioner filed his nomination paper for election to the Hemtabad Panchayat Samity. On 14th April, 2003 the aforesaid circular was issued by the Election Commission. On 26th April, 2003 the petitioner appears to have applied to the Superintendent of Police for leave during the period between 1st May, 2003 and 28th May, 2003. The petitioner was declared to have been elected to the Hemtabad Panchayat Samity on 14th May, 2003. The respondent No. 5, a member of the said Hemtabad Panchayat Samity applied to the District Magistrate on 5th August, 2003 challenging the election of the petitioner on the basis of the aforesaid circular dated 14th April, 2003 and prayed for a declaration that the petitioner Was disqualified. The petitioner appears to have been directed by the District Magistrate to appear before him for a hearing on 18th August, 2003. The present writ petition was filed on 2nd September, 2003. An ad interim order directing the parties to maintain status quo was passed by this Court on 29th September, 2003. The matter thereafter was taken up for hearing on 8th October, 2004 when this Court, after hearing the parties, directed the prescribed authority to dispose of the matter, challenging the election of the petitioner subject however to the result of the writ petition. On 3rd November, 2004 the prescribed authority declared the petitionerto have been disqualified to contest the election since he was ineligible under the circular dated 14th April, 2003 to contest the same. By the same order he was also removed from office with immediate effect. The writ petition was thereafter taken up for hearing on 11th January, 2005.
(2.) Mr. Milan Bhattacharya, learned Counsel appearing for the petitioner submitted :- (a) The bar contemplated under Section 97 of the West Bengal Panchayat Act, 1973 cannot apply to the case of the petitioner because the petitioner is not nor ever was in the service of the State Government or a Gram Panchayat or a Panchayat Samity or a Zila Parishad or a Mahakuma Parishad or the Council. (b) The petitioner is a volunteer within the meaning of provisions of Section 3 of the West Bengal Home Guards Act, 1962. (c) In any event the petitioner was appointed under Section 4 of the West Bengal Home Guards Act, 1962 by the Superintendent of Police who is a statutory authority and not the State. (d) The bar contained in Section 97 of the West Bengal Panchayat Act, 1973 has to be strictly construed. By a prolix process of reasoning a volunteer cannot be equated with a servant of the State Government. In support of his submission he relied on a full bench judgment in the case of Darbari Lai v. Shrimati Dharam Wati reported in AIR 1957 All 541. He also relied on a judgment of the Apex Court in the case of the Messers Fraser and Ross reported in AIR 1960 SC 971. (e) Relying on another judgment of the Apex Court in the case of State of West Bengal and Others v. H. N. Bhowal reported in 1994 (4) SCC 78, he submitted that it has conclusively been held by the Apex Court that a volunteer engaged under the West Bengal National Volunteer Force Act cannot be treated as a constable under the West Bengal Police Force. (f) Lastly he submitted that the notification dated 14th April, 2003 has in any event no manner of application because it was issued on 14th April, 2003 and the nomination was filed on 11th April, 2003. There was therefore no prohibition operating against the petitioner on the date of filing of the nomination. He accordingly submitted that the writ petition should be allowed and an order should be passed as prayed for.
(3.) Mr. L. C. Bihani, learned Senior Advocate appearing forthe Election Commission submitted that:- (a) The circular dated 14th April, 2003 was issued by the Commission pursuant to Rule 99 of the West Bengal Panchayat (Election) Rules, 1972. He submitted that the Election Commission is duly authorised by the aforesaid rule to issue the circular for the purpose of giving effect to the provisions of the West Bengal Panchayat Act, 1973. (b) The circular dated 14th April, 2003 was issued to clarify the earlier circular dated 17th March, 1983 which provided that the Home Guards were not eligible to become member of a Panchayat Samity while they were on active duty. He submitted that the prescribed authority in its order has on the basis of evidence arrived at a finding that the petitioner was on active duty at the time when he filed his nomination. He accordingly submitted that even without taking into consideration the circular dated 14th April, 2003 the petitioner was declared disqualified to contest the election. (c) Relying on a Single Bench judgment of this Court in the case of Kinkar Karmakar v. Government of West Bengal reported in 1999 (2) Calcutta Law Times 320, he submitted that the Home Guards occupy the same position as that of the police personnel of Class 4 category and therefore, they are to be treated to be in the service of the State Government and are therefore squarely covered by the prohibition contained in Section 97 of the West Bengal Panchayat Act, 1973. (d) Lastly he submitted relying on a judgment of the Apex Court in the case of State of West Bengal and Others v. Jivan Krishna Das and Others reported in 2002 (4) SCC 721 that the Home Guards constitute a stand by post and therefore cannot be treated differently from the Police Officers.;