Purna Chandra Halder v. STATE OF WEST BENGAL — 1984 DIGILAW 105 (CAL)

Judgment 1. IN this matter the petitioners have prayed for issuance of a writ in the nature of mandamus commanding Sri Panchkari Haldar and Sri Kasinath Mondal respondents nos. 5 and 6 to withdraw the membership from Indran Gram Panchayat with a declaration that their nomination was invalid and their election that was held on 31. 5. 83 was violative of Section 8 of West Bengal Panchayat (Election)Act, 1973. 2. THIS Court on 5th of October, 1983 issued a rule calling upon the opposite parties which include District Magistrate as well as the District Panchayat Election and Block Development Officer to show cause why a writ should not be issued in the nature of mandamus for cancellation of the said election referred to above. The case of the petitioners is that they were the candidates of election of indran Gram Panchayat as the respondents nos. 5 and 6 Panchkari Haldar and kasinath Mondal were. At the time of filing of the nomination papers the said Sri Haldar and Mondal (respondents nos. 5 and 6) suppressed the fact that they were the employees of Gobindapur Non-Formal Sikhya Sibir and used to receive a monthly salary for their service and after being declared as members of the Indrani Gram Panchayat the petitioners came to learn from the office of the respondent no. 4 Block Development Officer that respondents nos. 5 and 6 did not render resignation which they should have as in such a case they were disqualified to contest the said election under section 8 (2) of the West Bengal panchayat Act, 1973. 3. THE petitioners' case is that a large portion of salary of Sri Haldar and Sri mondal is borne by the Central Government and as such they are the persons who received remuneration from the central Government and therefore they are disqualified to be a member of Gram panchayat within the meaning of Section 8 of the West Bengal Panchayat act, 1973. The very clause of the said section on which Mr. Mazumdar, Counsel for the petitioners relies on runs as follows :- "a person shall not be qualified to be a member of the Gram Panchayat if he is in the service, or received remuneration from the Central or the State Govt. or the Gram Panchayat or a Panchayat Samiti or a Zilla Parishad. Mazumdar, Counsel for the petitioners relies on runs as follows :- "a person shall not be qualified to be a member of the Gram Panchayat if he is in the service, or received remuneration from the Central or the State Govt. or the Gram Panchayat or a Panchayat Samiti or a Zilla Parishad. " The petitioners' case is that the said respondents are still in service and have been receiving remuneration at all material times from the Centre as the teacher and before filing the nomination paper they had not tendered their resignation and at the relevant times they were in service and had received the remuneration even after being elected as members of the Gram Panchayat. So they assert that their election is void in law and liable to be set aside inasmuch as either they are the employees of the government at the time of filing of the nomination papers or persons who received remuneration from the Central government and became disqualified to become members under the West Bengal Panchayat Act, 1973, 4. IN the affidavit in opposition a preliminary objection has been taken. The said respondents contend that no application for writ does lie in view of Section 204 of the West Bengal Panchayat act 1973. Under the said Section if any; dispute arises as to the -validity of election under the said Act any person entitled to vote at such election may within 30 days after the date of declaration of the result of such election file a petition calling in question such a petition before a Munsif having jurisdiction where such election is in respect of Gram panchayat. Subject to the said preliminary objection the said respondents Sri Mondal and Sri Haldar state that they are the mere instructors of Gobindapur Education Centre on a purely part-time basis and were entitled to receive a honorarium of Rs.105/- per month for the services rendered by them. They deny that they are either in service of or receives remuneration from the Central or the state Govt. as alleged. They further state that District School Board of Murshidabad was a separate body corporate separate from any Government, central or State having perpetual succession and common seal and constituted under Section 14 of the Bengal Primary education Act, 1930. The said body has a fund known as the District Primary education Fund. as alleged. They further state that District School Board of Murshidabad was a separate body corporate separate from any Government, central or State having perpetual succession and common seal and constituted under Section 14 of the Bengal Primary education Act, 1930. The said body has a fund known as the District Primary education Fund. Grants given by the central Government are made available to the State Government and subsequently allocated as grant extended by the state Government and the grants that are received are merged with the District Primary Education Fund and as such any payment made there from cannot be said to be payment by way of remuneration paid either by the Central or the State Government. They deny on the reasons aforesaid that they are either in the employment of Central Government or State Government or receive remuneration from any of those two Governments and refute the challenge of the petitioners that they are not eligible for being elected. 5. MR. MAZUMDAR, Counsel for the petitioner refers to me several sections of the West Bengal Primary Education Act to show that the governmental control over such fund and even in the matter of appointment. The Constitution of the central Primary Education Committee of the Bengal Rural Primary Education act shows that the Government has control over such schools and Board set up under the Primary Education Act. The district School Board too is substantially represented by the Government officials and Sections 20, 21 and 22 also point out to the facts of government control in administering the Board. Mr. Mazumdar drew my attention to Sections 37 and 38 of the said Act to show that the grants in respect of the said schools would be from fund to be called District Primary Education Fund and under Section 40 of the said Act every board in which the district, primary education board become vested shall each year prepare in the prescribed form a budget of income and expenditure of the board for the ensuing financial year and shall submit it to the State Government through the Director of Public instructions on or before 30th November each year. The State Government may modify the budget, alter the budget or approve the budget as it would think necessary. Mr. The State Government may modify the budget, alter the budget or approve the budget as it would think necessary. Mr. Mazumdar argues that provisions of the Act go to show that governmental control is the major factor in the matter of administration of primary education and the plea of Mr. Kabir that it is run by a board independent of any governmental control is be lied by the provisions of the Act itself. In this connection two judgments one reported in AIR 1979 s. C. 1628 (Ramana v. I. A. Authority of India Lid.) and another reported in a. I. R. 1980 S. C. page 1992 (M/s. Kasturilal vs. State of Jammu and Kashmir)may be referred to. Mr. Mazumdar has rightly pointed out with reference to the said judgments that fund though budgeted by the Board is approved by the state Government and control too is retained and exercised by the State Government and those who hold the plenary power to regulate such functions of the Board and the schools set by it ;are also of State Government agencies tall these facts rule out the argument of Mr. Kabir that the said board is an independent organisation nothing to do with the State Government or central Government, let alone being the agencies of any of those governments, does not hold good. Mr. Mazumdar also referred to me a judgment reported in air 1984 S. C. page 385 (Biharilol vs. Roshanlal. This case is in many respects similar to the facts and the conditions of the present case under consideration. In this case Supreme Court held that U. P. Board of Basic Education is not an authority which is truly independent of the Government and every employee of the board is in fact holding its office under the Government. Supreme court observed "this is not even a case attempting to pierce the veil and trying to find out the true nature of something after uncovering it but a case where its true nature i.e. the subordination of the board and its employees to the Government is writ large on the face of the consideration too. After analysing the provisions of Bengal Primary Education Act as well as West Bengal Panchayat Act 1973 such a finding is inescapable. After analysing the provisions of Bengal Primary Education Act as well as West Bengal Panchayat Act 1973 such a finding is inescapable. In another judgment reported in 1971 (3) S. C. Cases at page 870 (Shivamurthy Swami v. Agadi Sangannd andanappa) Supreme Court held that tests for finding out whether an office in question is an office under a Government and whether it is an office of profit it is to be seen whether the Government pays the remuneration-whether the Government exercises control over the performance and its functions and in my view of the provisions of the Primary Education Act 1930 are analyse it leaves no doubt Government exercises such control which would be interalia manifest from the financial assistance received, and approval of the budget as sanctioned and made by the government and the fund or the source from which the respondents concerned draw their remuneration. In this judgment reported in 1971 S. C. Cases it is observed that the word 'profit' connotes an idea of a pecuniary gain. If there is really such a gain its quantum or amount would not be material. I say this because Mr. Kabir argued that not only the respondents concerned were the part-time instructors but their remuneration also were negligible being in the region of Rs. 105 -. Mr. Mazumdar referred to me a passage in Quinquennial Digest 1976-1980, Vol. 5-a case noted under panchayat Act decided by Jammu and kashmir High Court, reference as it has been given there is 1980 Srinagar L. J. page 33 but he could not give me the judgment itself. As it appears from the synopsis of the judgment that the words "in the employment of the Government" can be distinguished from the words "a government servant". J. and K. High Court held (as it appears prima facie from the Quinquennial Digest) "there is a difference between one who is in the employment of Government and the other who is the Government Servant. These expressions are not synonymous. J. and K. High Court held (as it appears prima facie from the Quinquennial Digest) "there is a difference between one who is in the employment of Government and the other who is the Government Servant. These expressions are not synonymous. A village headman may not be a government servant but he is in the employment of the Government." In this case too, respondents Haldar and Mandal may not be Government servants but being the part-time instructors certainly they are in the employment of the government as they draw their remuneration from the fund budget of which is approved by the government; undoubtedly this is a financial assistance made by the Government by its sanction. 6. MR. KABIR, Counsel for the respondents argues that the said respondents do not get any salary or remuneration. What they get is only honorarium of Rs.105/- per month and he refers to Annexure 'a' to substantiate his statement. 'salary' according to the Shorter Oxford dictionary (Illustrated) Vol. II, 3rd Ed. page 1981 does not exclude honorarium. Salary according to the said dictionary means "remuneration of service rendered, fees and honorarium". Therefore, the argument of Mr. Kabir that honorarium does not come within the preview of salary is untenable. The other contention of Mr. Kabir that the Board is not Government is also untenable in view of the discussions made above. Government, does exercise statutory powers and Board is also under the control of the Government which will appear from the provisions of the Bengal Rural Primary Education Act, 1930 as discussed above. Mr. Mazumdar rightly pointed out that the very perusal of Section 6 of the Bengal Rural Primary Education act, 1930 patently shows that it is a wing of the Government and I hold it is. Mr. Kabir's next point was when nomination papers were submitted it was not objected to, nor was it, objected to when election was held. Such a point had been taken after the results of election were published. His main ground however as I find is based on Section 204 of West Bengal panchayat Act. He argued it is a dispute arising as to the validity of an election under the Panchayat Act and therefore a petition should have been filed within SO days after the result of the election being declared. His main ground however as I find is based on Section 204 of West Bengal panchayat Act. He argued it is a dispute arising as to the validity of an election under the Panchayat Act and therefore a petition should have been filed within SO days after the result of the election being declared. In reply to that the petitioners have stated they had no knowledge about the drawing of' the remuneration by the said respondents as a part-time instructor till after the election. 7. AFTER hearing the respective counsel Mr. Mazumdar and Mr. Kabir I want to deal with the preliminary objection first as to whether this writ application lies in view of the provisions under Section 204 of the West Bengal Panchayat act, 1973. The said section lays down-if any dispute arises as to the validity of any election the person aggrieved will file a petition within thirty days after the date of declaration of results before the munsif having jurisdiction. In my opinion although jurisdiction has been conferred on the Munsif to adjudicate upon the dispute with regard to an election on an application, this does not stand as a bar to challenge the validity of the election by a writ petition. The High Court may exercise its constitutional jurisdiction in proper cases, for effective and speedy remedy if the facts and circumstances of the case so demand. 8. MR. KABIR argues that by allowing time to run and by not protesting to it, the petitioners are debarred from challenging the election in this proceeding. Here in this case the election has been challenged because the respondents according to the petitioners, suffered under a legal disqualification which, they say, they came to know after the election results were published. If they resorted to a proceeding before the learned munsif, matter might have delayed. If it were simply a case of a dispute where certain facts are challenged by one party and are refuted by the other party i would not have assumed jurisdiction in this matter. If they resorted to a proceeding before the learned munsif, matter might have delayed. If it were simply a case of a dispute where certain facts are challenged by one party and are refuted by the other party i would not have assumed jurisdiction in this matter. But in this case apart from the speedy remedy of expeditious disposal of the matter, when the very eligibility of the persons to contest the election has been challenged and it is submitted that they came to know of the disqualification after the period of limitation such an application will be maintainable as these are cogent reasons to assume jurisdiction and High Court can go into the question of dispute in its writ jurisdiction to assess the constitutional validity of the matter in dispute in such a case. In this case apart from the plea of the petitioners that they came to know about this fact after the period of limitation of 30 days was over, one of the learned Judges of this court issued the rule. When once rule has been issued I do not think that I should accept the preliminary objection of Mr. Kabir which would further delay the matter and i disallow the objection. 12. Regarding the merits of the case I have already discussed that the respondents might not be in the service of the government but they received remuneration from the Government as being in their employment. I have analysed hereof before the facts of this case in the light of the judgments reported in 1971 (3) S. C. Court cases (supra), AIR 1979 s. C. 1628 (supra) and AIR 1984 S. C. 385 (supra) and on such analysis I am of the view that the said respondents Panchkari Haldar and Kasinath Mondal who were working as the part time instructors at Govindapur were in the employment. of the Government and receive remuneration from the Government and as such they were disqualified from contesting the election within the meaning of Section 8 (b) of the West Bengal Panchayat Act, 1973 Mr. Kabir's contention that their appointment was purely temporary in nature and could be terminated without any notice cannot be concerned should not be of much substance in view of the fact that bar it that the persons receiving remuneration from the government at the time of filing the nomination paper or contesting the election. Kabir's contention that their appointment was purely temporary in nature and could be terminated without any notice cannot be concerned should not be of much substance in view of the fact that bar it that the persons receiving remuneration from the government at the time of filing the nomination paper or contesting the election. If there is any violation of that, it matters little whether their employment could be terminated without notice or whether the appointment is temporary. 9. IN the conclusion I want to say that this bar, that is to say, the disqualification of contesting the election by any person holding an office of profit has the ultimate purpose to leave out any person who has the chance of being biased in favour of the Government Central or State. This bar is there in view of the fact that a candidate must be in a position to act independently without any bias or spirit of partisanship and he was a person holding any office of profit or receiving remuneration or being in employment of the Government that independence or non-partisan attitude might suffer or might be subjected to a kind of submissiveness. Therefore, these cases in my view, should be considered in such a way as to see that no pecuniary link of intending candidates with the Government, may it be state or Central, should be subsisting. In this case I find that these two respondents were although part-time in the employment of the Government and at the relevant time having their honorarium which is nothing but remuneration from an authority or, organisation which is a wing of the Government using the fund of the government which exercises its control over it. In that state of affairs the election of the respondents cannot be sustained. 10. CONSIDERING all these facts I make the rule absolute. Writ be issued in the nature of mandamus directing the respondents to, treat the election held on 31. 5. 83 of the respondents Panchkari haldar and Kasinath Mondal as invalid I set aside the said election holding further that the nomination of the said Sri Haldar and Sri Mondal stand cancelled. I, however, make no order as to costs.