JUDGMENT M.N. Roy, J. For the election of 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 Halder and Nera Pada Mahara (hereinafter referred to as the said Respondents) were candidates and their nomination papers were accepted by the Block Development Officer, who was also the Block Returning Officer, being Respondent No. 6. 2. The said Respondents were not successful in the election and on 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 received 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 S. 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 a Gram Panchayat, if he is in service of, or receives remuneration from, the Central or State Government or a Gram Panchayat or a Panchayat Samiti or a Zilla Parishad. The knowledge as mentioned above, was claimed to have been firmly received by 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 also been attested by the Assistant Inspector of School, attached to the District School Board, Murshidabad and has certified that Sri Kashinath Mandal has been serving as Inspector Gobindapur Non-Formal Centre under the management of the School Board as mentioned above. 3. The said Respondents helve further stated records as mentioned above were the appointment letters of the appellants. 3. The said Respondents helve further stated records as mentioned above were the appointment letters of the appellants. It was their specific case that a large portion of the remuneration of the appellants being borne by the Central Government, they were persons who received remuneration from 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 sought to be clarified and which was issued by the Department of Panchayat, Government of West Bengal really de hors the provisions contained in Ss. 8, 97 and 142 of the said Act, which deals with and lays down the situations when a person would be disqualified to be members of Gram Panchayat, Panchayat Samiti and Zilla Parishad respectively. The notification as indicated above was claimed by Mr. Halder, appearing for Respondent No.3, the Government of West Bengal (as mentioned in the Memorandum of appeal), to have been issued under S. 222 of the said Act, which make provisions for removing difficulties and says that if any difficulty arise 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 other has made provisions for primary school teachers appointed by the District School Board/Teachers of Special cadres primary school, who were initially appointed by D.I. of School but subsequently absorbed by District School Board, to be not ineligible to become members of the 3 tier Panchayat bodies apart from laying down in clause 2(i) that primary school teachers who are Government employees but are on deputation to District School Boards/Teachers of Special cadre and Government sponsored Primary School, 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. Majumdar claimed and contended the notification to be not only ultra vires too. In fact he claimed the notification to be ultra vires of S. 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 on 29th May 1978. We have indicated and given the relevant particulars of the concerned, notification as on the basis of the arguments advanced in this appeal, the same would have of great bearing. 4. The affidavit-in-opposition which was filed in the Rule, we on behalf of the appellants herein, who were Respondents Nos. 5 and 6 in the Rule. The said affidavit was dated 13th February 1984 and the deponent of the same was one Abdul Basar. He made such affidavit as agent and tadbirkar of those Respondents and also claimed to be acquainted with the facts and circumstances of the cases, apart from being competent to depose in the matter and duly authorized to affirm the affidavit. In the affidavit, it has been stated that the writ petition is misconceived and not maintainable because of the provisions of S. 204 of the said Act as in view of the provisions contained therein, the forum for questioning the validity if a Panchayat election would not be this Court and such challenged could only be entertained by the learned Munsif, having jurisdiction. This apart, at the time of the hearing of this Appeal Mr. This apart, at the time of the hearing of this Appeal Mr. Sarkar also relied on S. 11, which makes provisions for removal of a member of Gram Panchayat and lays down that (1) The prescribed authority may, after giving an opportunity to a member of a Gram Panchayat to show cause against the action proposed to be taken against him, by order remove him from office- (a) if after his election he is convicted by a criminal court of an offence involving moral turpitude and punishable with imprisonment for more than six months; or (b) if he was disqualified to be member of the Gram Panchayat at the time of his election; or (c) if the incurs any of the disqualifications mentioned in clauses (b) to (g) of S. 8 after his election as a member of the Gram Panchayat; or (d) if he is absent from three consecutive meeting of a Gram Panchayat without the leave of the Gram Panchayat; or (e) if he does not pay any arrear in respect of any tax, toll, free or rate payable under this Act or the Bengal village Self-Government Act, 1919, (Ben. Act V of 1919), or the West Bengal Panchayat Act, 1957, (West Ben Act I of 1957), or the West Bengal Zilla Parishad Act, 1963 (West Ben Act XXXV of 1963) (2) Any member of a Gram Panchayat who is removed from his office by the prescribed authority under sub-section (1) may, within thirty days from the date of the order, appeal to such authority as the State Government may appoint in this behalf, and, thereupon, the authority so appointed may stay the operation of the order till the disposal of the appeal and may, after giving notice of the appeal to the prescribed authority, and after giving the appellant an opportunity of being heard, modify, set aside or confirm the order. (3) The order passed by such authority on such appeal shall be final. The other section viz. S. 204 deals with disputes as to election and provides that. (3) The order passed by such authority on such appeal shall be final. The other section viz. S. 204 deals with disputes as to election and provides that. (1) If any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election may, within third days after the date of the declaration of the results of such election, file a petition, calling in question such election- (a) before the Munsif having jurisdiction where such election is in respect of a Gram Panchayat or Panchayat Samiti, and (b) before the District Judge of the district, where such election is in respect of Zilla Parishad (2) When filling a petition under sub-s. (1), the petition shall deposit in court, as security for the costs likely to be incurred, a sum of- (a) fifty rupees, where the petition is filed before the Munsif, and (b) two hundred rupees, where the petition is filed before the District Judge (3) The District Judge may transfer any petition filed before him under sub-s (1) to any Judicial Officer Subordinate to him not below the rank of a Subordinate Judge. (4) In dealing with a petition under sub-s (1), the Munsif, the District Judge or the Judicial Officer to whom the petition is transferred under sub-s (3) (hereinafter referred to as the Judge) may hold such enquiry as he deems necessary. (5) The procedure to be followed by the Judge including all matters relating to the filing of such petition shall be such as may be prescribed. (6) The Judges shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents. (7) The decision of the Judge shall be final and shall not be called in question in any court. (6) The Judges shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents. (7) The decision of the Judge shall be final and shall not be called in question in any court. (8) No Court shall grant an injunction- (i) to postpone the election of- (a) a member of Gram panchayat, a nyaya panchayat, a panchayat samiti or a zilla parishad, or (b) a Pradhan, an Upa-pradhan, a Pradhan Vicharak, a Sobhapati, a Sahakari Sabhapati, a Sabhadhipati or Sahakari Sabhadhipati; or (ii) to prohibit a person declared to have been elected under this Act from taking part in the proceeding of the Gram Panchayat, Nayaya Panchayat, Panchayat Samiti or Zilla Parishad, as the case may be, to which he has been elected; or (iii) to prohibit the members formally elected or appointed to a Gram Panchayat, Nyaya Panchayat, Panchayat Samiti or Zilla Parishad, as the case may be under this Act from entering upon their offices. 5. The deponent of the concerned affidavit has also stated that there was no withholding or super-session of any material facts by the appellant and the nominated papers as filed by them were duly accepted. It has been denied that the appellant were or are employee of the concerned Board. It has been stated that the appellants were appointed by the said concerned District School Board, Murshidabad and were assigned to discharge the duties and function as Inspectors of Gobinpur Education Centre and part-time basis at an honorarium of Rs. 105/- per month. It has also been stated that such payment was not borne by the Central Government and as such the appellants was not disqualified to seek election for the said Gram Panchayat. It was also the categorical assertions of the said deponent that the appellants were neither in the services of the Central or State or State Government nor they had received any remunerations from those Governments. In fact, the employment of the appellants were stated to be non-formal in nature and were meant for children, who were unable to join ordinary primary schools. The employment of the appellants were stated to be as primary teachers of a special cadre. In fact, the employment of the appellants were stated to be non-formal in nature and were meant for children, who were unable to join ordinary primary schools. The employment of the appellants were stated to be as primary teachers of a special cadre. The concerned School Board has also been claimed to be a body corporate having perpetual succession and common seal and has further been claimed to be constituted under section 14 of the Bengal (Rural) Primary Education Act, 1930 (hereafter referred to as the said 1930 Act). It has been stated that the said Board has a fund by the description of “District Primary Education Fund” (hereinafter referred to as the said fund) and all moneys received from the Government by way of grants, form part of the said fund. The deponent has further stated that the grants given by the Central Government are made available to the State Government and they are subsequently allocated as grants extended by the State Government. It has also been the claim of the deponent that the grants on receipt, merge with the said fund and any payment made therefrom, would not be payment of remuneration either by the Central or State Government. It was also the specific case of the deponent that the position relating to the eligibility of person contesting election for Panchayats have been indicated and clarified in the notification as referred to hereinbefore. The notification, as indicated earlier, has been stated by Mr. Halder appearing for the State of West Bengal, to have been issued under and in terms of S. 222 of the said Act. The short and effective submission of the deponent, in view of the facts and circumstances as indicated hereinbefore was that the appellants were not disqualified under S. 8(b) of the said Act as they neither received any remuneration from the Central or State Government nor were in the service of any of such Government. It was further claimed that the elections of the appellants of the said Panchayat were due, legal and proper. It was further claimed that the elections of the appellants of the said Panchayat were due, legal and proper. Some of the relevant portions from the affidavit-in-reply have been indicated hereinbefore and apart from that the said Respondents, by their concerned reply dated 14th February 1984, have denied the other material allegations, apart from claiming that the appellants being disqualified candidates could not continue as members of the said Panchayat and their disqualifications as mentioned above would not allow them to be in the office of the said Panchayat. It has also been claimed that in view of the character of the challenge as thrown and established and since such challenge goes to the root of the matter, neither S. 11 nor S. 204 would operate as a bar to maintain the petition. The disqualifications of the appellants have also been claimed to be incurable and for such incurability, this Court would not be justify in entertaining this petition in the writ jurisdiction. 6. By his judgment and order dated 28th March 1984, which has been impeached in this appeal, Ashamukul Pal J has made the Rule absolute and has directed the issue of a writ in the nature of Mandamus, holding inter-alia amongst other that the election of the appellants herein as held on 31st May 1983, to be invalid. As such the learned Judge has further directed that the nominations of the appellants should be cancelled. The basis of such determination was that the appellant, at the relevant time, even though in the part-time service were in the employment of the Government, as they were receiving honorarium, which was nothing but remuneration and that too from an authority or organization which is a wing of the Government and more particularly when such authority or organization was using the fund of the Government and having control over them. 7. Mr. Kabir, who first made the submission in support of the appeal and then was followed by Mr. 7. Mr. Kabir, who first made the submission in support of the appeal and then was followed by Mr. Sarkar stated that the election of the said Panchayat was held on 31st May 1983 and from the statements made in paragraph 5 of the petition, which were to the effect that the petitioners state that the said Respondents No. 5 and 6 are still in service and have been receiving remuneration from the said centre as instructors i.e. Teacher And even before filling nomination paper they have not tendered their resignation to the authority concern and on 8.6.83 the petitioners came to know on enquiry that they are in service and have received the remuneration after being elected as members of the Gram Panchayat, a Xerox copy are annexed and are marked “A” to the petition for identification, it would be apparent that the said Respondents had the knowledge of the alleged disqualification of the appellants on 8th June 1983, but they had moved this Court on 5th October 1983, without resorting to the other remedy as envisaged under S. 204 of the said Act. It was specifically claimed by Mr. Kabir that the terms of the said S. 204 would be bar and this Court in view of such bar, should not entertain the writ petition or make any interference. On the submissions of Mr. Kabir, such was followed by Mr. Sarkar, who apart from S. 204 also pleaded S. 11 of the said Act, to be a bar in addition thereto in entertaining or maintaining the writ petition. The first and essential point in our view which is required to be determined in this case, is whether the petition, out of which is present appeal was taken, was maintainable and such point should be decided before deciding the case on merits, as such preliminary point would go at the root of the jurisdiction of matter. The terms of the sections as mentioned above, have been indicated hereinbefore. 8. It was in fact claimed and contended by Mr. The terms of the sections as mentioned above, have been indicated hereinbefore. 8. It was in fact claimed and contended by Mr. Sarkar that no application for a writ or appropriate writs would lie, in view of S. 204 of the said Act, as in terms of the provisions as contained therein, 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 election before a Munsif having jurisdiction, when such election is in respect of a Gram Panchayat, According to Mr. Sarkar, be it under S. 11 or S. 204 of the said Act the said Respondents had ample opportunities to have the election of the appellants challenged and set aside in the facts of this case and the fact that those provisions were specific bars in entertaining the writ was totally overlooked by the learned Judge while passing the impugned order. In fact, it was the contentions of Mr. Sarkar that the right to challenge the election under S 204 in case of any disqualification of a candidate under the said Act. would be a post-election right and that right under S 11 of the said Act would include both pre and post-election rights S. 11(1)(c) of the said Act lays down that in case of defaults in respect of the authorities as mentioned therein. for the year previous to that in which the election is held, an intending candidate would be disqualified and similar disqualifications have been prescribed for the candidature of any person in respect of election to Panchayat and Zilla Parishad. In case of a member of any Gram Panchayat, who is removed from his office by the prescribed authority under sub s (1) of S 11, he may within 30 days from the date of the order, appeal to such authority as the State Government may appoint in this behalf. On such appeal being taken the authority concerned in terms of section 11(2) of the said Act is required to dispose of the appeal after giving the appellant an opportunity of being heard and on such hearing the appellate authority may set aside or confirm the order. On such appeal being taken the authority concerned in terms of section 11(2) of the said Act is required to dispose of the appeal after giving the appellant an opportunity of being heard and on such hearing the appellate authority may set aside or confirm the order. Such right under S 11 is given to a person who is found to be disqualified Section 204 of the said Act which deals with disputes as to election, gives right to a person eligible to vote in the concerned election of the Gram Panchayat or Panchayat Samity or Zilla Parishad to file a petition questioning the concerned election. A person who is not a voter has no right to challenge the concerned election. This section also prescribe the application of the principles of natural justice as it is obvious that a person who has been successful cannot be denuded of his success in any manner whatsoever without being given appropriate opportunities to him Apart from the above, the contesting candidate under S. 204 may be deemed to be interested in the election and thus they would also have a right to challenge the successful election of their adversaries. It is no doubt true that the onus to prove illegality of the election would be upon the person who would claim the election to be void or irregular and illegal for the reasons and circumstances as mentioned in S 204. It must also be observed that the statutory requirements of the election law must be strictly observed and complied with and that an election contest is not an action at law or a suit in the equity, but is purely a statutory proceeding unknown to common law and the Courts possess no common law power. The limitation for the purpose of filing an election petition under S. 204 of the said Act challenging the validity of the election, is 30 days, after the result of the election is declared. While computing the said period of 30 days the date of declaration of the result should be excluded. The limitation for the purpose of filing an election petition under S. 204 of the said Act challenging the validity of the election, is 30 days, after the result of the election is declared. While computing the said period of 30 days the date of declaration of the result should be excluded. In the case of Mrinal Mitra v. Additional District Judge Alipore 70 CWN 1001, a question arose as to whether in an appropriate case, the delay in filling such petition under S 204 of the said Act can be condoned by the Court under S 5 of the Limitation Act, 1963 and the said question was answered in the affirmative. The right of challenge under Ss 11 and 204, according to Mr. Majumdar would not have the same character as was sought to be urged by Mr. Sarkar, the necessary particulars whereof, have been mentioned hereinbefore. According, to him, the terms of the two sections and more particularly of S 204 would make it clear that the relief under the said section, which would be available to any of the contesting candidates and also to a voter, would be a right which can be exercised after the election is over and the result of the said was undeclared and the rights under S. 11 in view of the terms of the S. 204, would not be operative or effective after the results of the election are declared. Mr. Majumdar stated that the rights under S. 11, on the basis of the terms of the word and language as used, would mean a right given to a person whose candidature has been sought to be interfered with by the prescribed authority. In our view, such submission of Mr. Majumdar, would be of substances and if is held that the rights under S.11 flow even after the declaration of result of the concerned election, then the provisions of S. 204 of the limitation as prescribed therein, for preferring an election petition would become nugatory as in that event even after not availing of such rights as granted under S. 204 of the said Act to the person as mentioned hereinbefore, they may sought to challenge the concerned election even after the period of limitation as prescribed under S. 204 of the said Act. If such contingency is allowed, then we are of the view that there would be no finality of any election of the kind which is being dealt with by us. 9. While on the submission that the writ proceeding in the instant case was not maintainable and Article 226 would be no remedy in an election petition like the present one more particularly when there has been statutory remedy of relief available under the said Act Mr. Sarkar firstly, referred to the case of Probodh Lal Moitra v. Additional District Magistrate, 24 Parganas & Ors, 61 CWN 11. That was a proceeding under Rule 20 of the Bengal Municipal Rules, which provided for an appeal against inclusion of names in nomination list. Such appeal was allowed and a challenge being thrown latter in a proceeding under Article 226 of the Constitution of India, the question of maintainability of such petition was considered and on consideration of the scheme of the concerned Act which was found to be for expeditions holding of the election and to postpone the ventilation of any grievance to a stage after the election, it has been observed that when an applicant has an alternative remedy which he has allowed to be barred by lapse of time, it is no argument to say, he should be granted leave under Article 226 of the Constitution as the legal remedy was barred. But in that case it has also been observed that the High Court may interfere in a case where the statute does not provide a remedy, Secondly, Mr. Sarkar referred to the determinations of the Supreme Court in the case of N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakhal, Salem Dist & Ors, AIR 1952 SC 64 Mr. Sarkar made specific reference to the observations that the law of elections in India does not contemplate that there should be two attacks on matters connected with ejection proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts hiving been expressly excluded), and another after they hive been completed by means of an election petition. Any matter which has the effect of vitiating an ejection should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. Under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question, Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. It follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the ejection tribunal, which is to be an independent body, at the stage when the matter is brought up before it. The case under consideration was one under the Representation of the Peoples Act which has been deemed or held to be a self contained enactment so far as elections are concerned, which means and as appeared that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder. Section 80, which is drafted in almost the same language as Article 329(b), provides that "no election shall be called in question except by an election petition presented in accordance with the previsions of this Part" Section 80, along with Ss. 100, 105 and 170 are the main provisions regarding election matters being judicially dealt with, and there is no provision anywhere to the effect that anything connected with election can be questioned at an intermediate stage After that and thirdly, Mr. 100, 105 and 170 are the main provisions regarding election matters being judicially dealt with, and there is no provision anywhere to the effect that anything connected with election can be questioned at an intermediate stage After that and thirdly, Mr. Sarkar referred to the case of Nanhoo Mal & Ors, v. Hira Mal & Ors. AIR 1975 SC 2140 , wherein it has been observed that the election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provides at any intermediate stage. The election itself can be questioned only on one or more of the three grounds mentioned in sub-s. (2) of S. 43B. The only ground in the present case on the basis of which the election of the President was questioned in writ jurisdiction of High Court was that there was a non-compliance with the provisions of Rule 6 made under the Act. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District-Judge. In the circumstances, there was no room for the High Court exercising its power under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge and fourthly, Mr. Sarkar referred to the Supreme Court decision in the case of Biharilal Dobray v. Roshan Lal Dobrary, AIR 1984 SC 385 . In that case the term “office of profit under the Government” has been considered and the test to determine as to when and how a person would be holding such office have been laid down. Sarkar referred to the Supreme Court decision in the case of Biharilal Dobray v. Roshan Lal Dobrary, AIR 1984 SC 385 . In that case the term “office of profit under the Government” has been considered and the test to determine as to when and how a person would be holding such office have been laid down. In that case it has been observed that an Assistant Teacher employed in a Basic Primary School run by the Utter Pradesh Board of Basic Education constituted under the Utter Pradesh Basic Education Act, 1972 (U.P. Act No. 34 of 1972) is qualified for being chosen as a member of the State Legislative Assembly under Article 191(1)(a) of the Constitution, as he holds an office of profit under the State Government. Such finding has been arrived at after consideration of the various provisions of the U.P. Basic Education Act, 1972 and the Rules framed thereunder and it has been observed that those provisions show that the State Government exercises administrative disciplinary and financial control and in fact overall control over the U.P. Board of Basic Education and its employees apart from holding, that the concerned Board is not an authority which is truly independent of the Government and every employees of the Board is in fact holding his office under the Government. This is not even a case of 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 subordinate of the Board and its employees to be Government is writ large on the face of the Act and the Rules made thereunder. 10. Mr. Halder, appearing for Respondents No. 3, also adopted the submission as advanced by Mr. 10. Mr. Halder, appearing for Respondents No. 3, also adopted the submission as advanced by Mr. Sarkar on S. 204 of the said Act and he stated further that under S. 222 of the said Act, within has made provision for removing difficulties and lays down that if any difficulty arises in giving effect to the provisions of this Act, the State Government may take such steps or issue such order 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, the State Government in the instant case, in exercise of such power, has issued the notification as in Annexure “B” to the affidavit-in-opposition, the relevant particulars whereof, have been mentioned hereinbefore. It was the specific submission of Mr. Halder on instruction that the concerned notification was issued under S.222 by the State Government and it was also submitted by him that even though there has been no mentioned of S. 222 in the said notification, the issue of the notification under that section must be accepted must presumed. This notification was admittedly issued by the Joint Secretary to the Government of West Bengal, which in our view, without other necessary particular being disclosed, cannot be treated as a notification issued by the State Government, which incidentally is the requirement of the statue. That apart, the said S. 222, has been appropriately stated by Mr. Majumdar to have been declared ultra vires by the determinations in the case of A.K.M. Hassan-uz-Zaman & Anr. V. Debabrata Bandopadhya & Ors. 82 CWN 806. In fact, in the said determination it has been observed that S 222 of the Panchayat Act 1973, which empowers the Government to take steps or issue orders for the removal of any difficulty is unconstitutional as there is no indication as to in which cases any difficulty can be said to have arisen and it is left to the subjective view of the Government to decide whether any difficulty has arisen or not and no indication as to what kind of steps, legislative, executive or by rule-making may be taken by the Government. There is a complete freedom of the Government for taking any action which it considers necessary or expedient. There is a complete freedom of the Government for taking any action which it considers necessary or expedient. There is a naked and arbitrary power given to the State Government and as such, the said section is bad and Government has no authority to take any action pursuant to the same. We are informed that the determinations as mentioned hereinbefore, is still the good law or holds the field as no appeal has either been taken or any determination has been made reversing the same. The being the position, Mr. Majumdar also contended that when a notification has been issued on the basis of a provision of the said Act, which has been declared ultra vires so the notification itself is ultra vires and extra vires and that being the position, any steps taken pursuant thereto, would also be ultra vires and that the writ petition in the instant case would be maintainable as such point regarding the ultra vires character of the notification and so also the proceeding would not be within the competence of the learner Munsif under S 204 of the said Act, to decide. He claimed further that the entire election having thus been ultra vires or the process thereof being void and writ proceeding in the instant case would be maintainable and this Court can determine the issue as involved. As indicated earlier, it was the specific submissions of Mr. Majumdar, that because of the nature and character of the proceeding as indicated hereinbefore, which could not in any event be determined by the Tribunal under the said Act, there would be no justification in the submission of both Mr. Sarkar and Mr. Halder that this Court should not entertain the writ petition or that the learned trial Judge had committed any wrong or he was in error. 11. The notification as involved in this case and as mentioned earlier was dated 17th March 1983 and the date of the judgment in A.K.M. Hassan-Uz-Zaman & Anr. Vs. Debadrata Bandopadhya & Ors. (supra) was 29th May 1978 i.e. much prior to the concerned election of the said Panchayat, which was held on 31st May 1983. That being the position there were justification in the submissions of Mr. Vs. Debadrata Bandopadhya & Ors. (supra) was 29th May 1978 i.e. much prior to the concerned election of the said Panchayat, which was held on 31st May 1983. That being the position there were justification in the submissions of Mr. Majumder that the holding of the election on the basis of a notification which should be declared ultra vires and furthermore, the provisions under which the said notification was issued having the similar character, the action as taken in this case was ultra vires and the notification itself was extra vires and thus the election as a whole and as held on the basis of such notification was null and void. In support of the above submissions, Mr. Majumder referred to the determination in the case of Bar Council of Delhi & Anr. Vs. Surjeet Singh Ors, AIR 1980 SC 1612 , which has observed that if the proviso to Rule 3(j) of the Bar Council of Delhi Election Rules 1968 was ultra vires, then the whole election based on electoral roll prepared pursuant to the proviso would be completely vitiated and would be liable to be set aside and mere approval of such rule by Bar Council of India could not make the same valid. In that case, it has also been observed that if the election is held on the basis of such illegally prepared electoral roll the petitioner, on account of his exercising right of franchise cannot be estopped from challenging the election which was glaringly illegal and void. In that case it has also been observed that it the electoral roll is prepared on the basis of a rule which was void and ultra vires, such challenge would be available even after the election is held and an application under Article 226 would be maintainable and alternative remedy would be no bar, in case the election is held on the basis of a void and ultra vires rule relating to the preparation of electoral roll. While on the point, further reference was made by Mr. Majumder to the case of The King Vs. The Assessment Committee of the Metropolitan to the case of Shoreditch, Ex parte Morgnu, (1910) 2 KB 859. While on the point, further reference was made by Mr. Majumder to the case of The King Vs. The Assessment Committee of the Metropolitan to the case of Shoreditch, Ex parte Morgnu, (1910) 2 KB 859. In that case amongst others It has been observed that no tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of the jurisdiction and the decision on jurisdiction is always subject to review by the High Court which does permit the inferior tribunal either to usurp a jurisdiction which it does not possess whether at all or to the extent claimed or to refuse to exercise a jurisdiction which it has and ought to exercise. It was also the specific submissions of Mr. Majumder, in the facts of the case, that when the concerned notification was extra vires, if not ultra vires in view of the fact that the same was issued under a provision of the statute which was declared ultra vires by the determination as indicated hereinbefore the entire proceeding became or was ultra vires and since such point could not be decided by the Tribunal under S.204 of the said Act the writ petition in this case and that too on the challenges as thrown through the pleadings, which included the pleadings in, the affidavit in reply, was maintainable. 12. Mr. Majumder also Contended that even if Mr. Halder's contentions that the notification in question was issued for the removal of doubts are correct, the same would be ultra vires not only for the grounds as indicated above but also on the ground that the said notification has sought to extend the scope and character or the qualifications as are meant and required under the said Act, for an intending candidate and furthermore, as by such notification, while trying to remove the difficulties or in the garb of the same delegation of legislative powers has been made in favour of the executive authority. In support of the submissions as above, reference was firstly. made by Mr. Majumder to the case of M/s Jalan Trading Co. Private Ltd Vs. In support of the submissions as above, reference was firstly. made by Mr. Majumder to the case of M/s Jalan Trading Co. Private Ltd Vs. Mill Mazdoor Sabha, AIR 1967 SC 691, which construed the provisions of Payment of Bonus Act, 1965 and more particularly S.37 of the same and has laid down that a section of the statute would be invalid if the same delegates legislative power to executive authority, as such delegation is not permissible. He secondly referred to the determinations in the case of Straw Products Ltd Vs. Income tax Officer 'A' Ward Bhopal & Ors. AIR 1968 SC 579 , which has observed that clause (2) of explanation (b) of Taxation Laws (Merged States) (Removal of Difficulties) Amendment Order 1962 to be ultra vires of power of Central Government under S.6 of the Taxation Laws (Extension to merged States and Amendment) Act, 1967 Such determination was made on the reasons that (1) the expression "depreciation actually allowed connotes under S.10(2)(vi) of the Income-tax Act under Clause (2) of the Removal of Difficulties Order, 1949 and the notification under S.60-A of the Income-tax Act depreciation taken into account in assessing the income of an assessee arising from carrying on business and does not mean, depreciation merely allowable or applicable under the taxing provision, (2) exercise of the power to make provisions or to issue directions as may appear necessary to the Central Government is conditioned by the existence of a difficulty arising in giving effect to the provisions of any Act, Rule or Order. The section does not make the arising of the difficulty a matter or subjective satisfaction of the Government. it is a condition precedent to the exercise of power and existence of the condition if challenged must be established as an objective fact, (3) S 10(5) of Income-tax Act is merely a definition clause. It does not deal with the determination of the quantum of depreciation 'Depreciation" in respect of specified assets is allowed under S.10(2)(vi) of the Income-tax Act. It does not deal with the determination of the quantum of depreciation 'Depreciation" in respect of specified assets is allowed under S.10(2)(vi) of the Income-tax Act. That clause is applied to the merged States subject to the modification made by the 1949 Order, and the amount actually allowed under the law of the merged State is to be taken into account in determining the written down value and the depreciation allowance referred in Clause (c) of the proviso to Clause (vi) of S.10(2) The fact that the assets are acquired by a person at a time when he is not an assessee under the Indian Income-tax Act or under the State Act will not disable him when he is assessed to lax on the profits of the business from claiming the benefit of the depreciation allowance on those assets if used for the purpose of the business and (4) the power conferred by S.6 of Act 67 of 1979 is a power to remove a difficulty which arises in the application of the Income-tax Act to the merged States. it can be exercised in the manner consistent with the scheme and essential provisions of the Act and for the purpose for which it is conferred. The 1962 Order which seeks, in purported exercise of the power to remove a difficulty which has not arisen is therefore, unauthorized. Therefore, and thirdly, Mr. Majumder referred to the case of Madeva Upendra Sinai etc & Ors Vs. Union of India & Ors., AIR 1975 SC 797 , where the word "difficulty" in clause 7 of the Taxation Laws (Extension to Union Territories) Regulation, 1963 was construed and the validity of the second proviso to clause 3 of the Taxation Laws Extension to Union Territories) (Removal of Difficulties) Order, 1970 was considered. Union of India & Ors., AIR 1975 SC 797 , where the word "difficulty" in clause 7 of the Taxation Laws (Extension to Union Territories) Regulation, 1963 was construed and the validity of the second proviso to clause 3 of the Taxation Laws Extension to Union Territories) (Removal of Difficulties) Order, 1970 was considered. It has been observed in that case that the existence or arising of a 'difficulty' is the sine quanon for the exercise of the power If this condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all Again, the difficulty contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not a difficulty arising aliunde or an extraneous difficulty Further, the Central Government can exercise the power under the clause only to the extent it is necessary for applying or giving effect to the Act etc. and no further It may slightly linker with the Act to round off angularities and smoothen the joints or remove minor obscurities to make it workable, but it cannot change disfigure or do violence to the basic structure and primary features of the Act. In no case, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act. 13. In view of the infirmities of the notification as indicated above, it was the further case of Mr. Majumder that the acceptance of nomination papers of the appellants, was improper and invalid and in fact there was no appropriate acceptance of the concerned nomination papers, as such acceptance was done on the basis of a notification, which itself as void. The above submissions were sought to be supported by Mr. Majumder on a reference to Administrative Law (Fifth Edition) by H.W.R. Wade and more particularly to the observation that an act which is for any reason in excess of power (ultra vires) is often described as being 'outside jurisdiction'. 'Jurisdiction', in this context, means simply 'power', though sometimes it bears the slightly narrower sense of 'power to decide', e.g. as applied to statutory tribunals. It is a word to which the courts have given different meanings in different contexts, and with which they have created a certain amount of confusion. 'Jurisdiction', in this context, means simply 'power', though sometimes it bears the slightly narrower sense of 'power to decide', e.g. as applied to statutory tribunals. It is a word to which the courts have given different meanings in different contexts, and with which they have created a certain amount of confusion. But this cannot be explained intelligibly except in the particular contexts where difficulties have been made Nor should the difficulties be exaggerated For general purposes 'jurisdiction' may be translated as 'power' with very little risk of inaccuracy and the further observations that any administrative act or order which is ultra vires or outside jurisdiction is void in law, i.e. deprived of legal effect This is because in order to be valid it needs statutory authorisation and if it is not within the powers given by the Act, it has no legal leg to stand on The Court will then quash it or declare it to be unlawful or prohibit any action to enforce it. The terminology here depends to some extent on the remedy granted 'Quashing' is used in connection with the remedy of certiorari, but in effect it is simply a declaration of nullity A declaratory judgment is an alternative remedy with similar effect; it declares the offending act to be a nullity in law Prohibition of execution may be an order of prohibition (a prerogative remedy) or an injunction. But these technicalities make no difference to the legal result : an act found to be outside jurisdiction (ultra vires) is void and a nullity, being destitute of the statutory authority without which it is nothing, apart from the further observations that once the court has declared that some administrative act is legally a nullity, the situation is as if nothing had happened. In this way the unlawful act or decision may be replaced by a lawful one. If a compulsory purchase order is quashed as being ultra vires, there is nothing to prevent another order being made in respect of the same land, provided that it is done lawfully Thus a public authority or tribunal is often given loous poenitentiae and is able to correct an error by starting afresh-something which it might otherwise be unable to do. Mr. Majumder also referred to Rule 99 of the West Bengal Panchayat Rules. Mr. Majumder also referred to Rule 99 of the West Bengal Panchayat Rules. 1974, which also postulate the provisions for removal of difficulties, if any, by the Government and lays down that (1) the State Government may issue such general or special directions as may, in its opinion, be necessary for the purpose of giving effect to the rules, or holding any election under the Act, apart from laying down that (2) in any, difficulty arises in giving effect to the provisions of the rules, or holding any election, the Government as occasion requires, may, by order, do any thing which appears to it to be necessary for the purpose of removing the difficulty. In view of the fact, of the case, Mr. Majumder also contended with reference to the determinations in the case of Dhulabhai etc Vs. State of Madhaya Pradesh & Anr, AIR 1969 SC 78 , that the challenges as involved in this case, would not be barred and that too though a writ proceeding, as the acceptance of the nomination papers of the appellants, on the basis of such ultra vires nature of S.222 and the extra vires character of the notification issued thereunder, was void ab initio and patently illegal, apart from being irregular. That being the position, Mr. Majumder contended that the availability of other or alternative remedy as pleaded by his adversaries, would be no bar to have the application in question maintained under Article 226 of the Constitution of India. While on the point, a further reference was made by Mr. Majumder to the case of Titaghur Paper Mills Co Ltd. & Anr Vs. State of Orissa & Anr, 1983 SC 603, In that case, a point arose as to whether a writ petition would be maintainable, when the petitioner, having efficacious remedy by way of appeal and second appeal under the Sales Tax Act, failed to get necessary reliefs in appeal and also failed to have the case stated to High Court and It has been observed that the Act provides for a complete machinery to challenged an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petitioner under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. The case as indicated above was referred to and relied on by Mr. Majumder for the other observation that evolved on consideration of the determinations in the case of K.S. Venkataraman & Co. Vs. State of Madras, AIR 1966 SC 1089 , and to the effect that the majority decision in that case rests on the principle that part of the Act at all, and as assessment under such provisions is not made under the Act’ but is wholly Without the jurisdiction and (2) the question whether a provision is ultra vires or not cannot be decided by any of the authorities created by the Act and therefore cannot be the subject matter of a reference to the High Court or a subsequent appeal to this Court. The plea regarding the ultra vires character of S.222 of the said Act or the extra vires nature of the notification as issued thereunder, not having been appropriately pleaded or taken in the main petition and there having been no proper facts elucidating such plea, Mr. Sarkar contended that the new plea as sought to be taken now, must not be allowed to be urged or should not be entertained at this stage. In fact, he submitted that the concerned notification has not been challenged. To establish such plea viz new plea without due elucidation of further fact must not be allowed to be agitated, Mr. Sarkar referred to the determinations in the case of Kayalappara Kottarathil Kochuni @ Moopil Nayar v The State of Madras AIR 1960 SC 1080 . In fact, he submitted that the concerned notification has not been challenged. To establish such plea viz new plea without due elucidation of further fact must not be allowed to be agitated, Mr. Sarkar referred to the determinations in the case of Kayalappara Kottarathil Kochuni @ Moopil Nayar v The State of Madras AIR 1960 SC 1080 . In that case it has been observed that ordinarily, when a question raised depends upon an elucidation of further facts not disclosed in the statements already filed, the Supreme Court in a petition under Article 32 would be very reluctant to allow a party to raise such a plea at the time of arguments, apart from holding further, hut where the validity of the impugned Act (here Madras Act 32 of 1955) depends upon the application of Article 31A of the Constitution the Supreme Court would not be justified in not allowing the respondents to raise the contention that the petitioner's sthanam is an "estate" within the meaning of Article 31A of the Constitution and therefore the Act extinguishing or modifying the rights pertaining to the said sthanam cannot be questioned on the ground that it infringes Articles 14, 19 and 31 of the Constitution even though there is no sufficient material on the record. That apart, next reference was made by Mr. Sarkar to the case of A. St. Arunachalam Pillai Vs. M/s. Southern Roadways Ltd & Anr, AIR 1960 SC 1191 . In that case it has been observed that in a petition under Article 226 for a writ of certiorari to quash certain order the High Court acts rightly in allowing the petitioner to urge a plea which goes to the root of the matter and is based on a Division Bench decision of the High Court arrived at since the filing of the writ petition although the authority whose jurisdiction was being questioned by the new plea and had not taken the objection in his petition under Article 226. It should be noted that Mr. Sarkar felt the difficulty about the other submissions put forward by Mr. Majumder on the question of ultra vires nature of S.222 in view of the Calcutta decision as referred to hereinbefore and more particularly became of the submissions of Mr. Halder that the notification in question, was Issued under S.222 Such difficulty having been experienced by him, Mr. Sarkar felt the difficulty about the other submissions put forward by Mr. Majumder on the question of ultra vires nature of S.222 in view of the Calcutta decision as referred to hereinbefore and more particularly became of the submissions of Mr. Halder that the notification in question, was Issued under S.222 Such difficulty having been experienced by him, Mr. Sarkar contended that the notification as issued was an illegality and that has not over-ridden the scope of the concerned section. It was claimed by him that the notification in the Instant case, even If the same was issued under or in terms of S. 222 of the said Act, the same should be regarded as a redundant one Mr. Sarkar further claimed on a reference to the Law of Ultra Vires, 2nd Edition (Tagore Law Lectures) by Satya Ranjan Das, the said word should be meant to have been often used in the sense of want of “legal authority of a Court to do certain things," According to the Author of the book as mentioned above, there has been confusion between the terms ultra vires and want of jurisdiction and a broad distinction between the term "Without jurisdiction" and ultra vires can be drawn. It has been pointed out that all acts beyond the powers of the Court of law, when adjudicating between litigants, are known as done without Jurisdiction and all acts done by person which would include any company of Association or body of individuals whether incorporated or not, exercising statutory or other powers beyond the power possessed by them are known as ultra vires. Mr. Sarkar pointed out that according to the Author of the treatise as mentioned hereinbefore "illegality", in the largest sense of the words, no doubt in includes what is ultra vires. It was pointed out by him that what is beyond the power of a person, is illegal in the sense that everything is illegal what is not warranted by law But, 'illegal" and ultra vires are phrases to which distinct meanings have, and very popularly have been attached. "illegal" in the strict application of the word refers to that quality which makes the act itself one contrary to law and the term ultra vires has referred to the illegal power of a person to do an act. An act may be legal and at the same time ultra vires. "illegal" in the strict application of the word refers to that quality which makes the act itself one contrary to law and the term ultra vires has referred to the illegal power of a person to do an act. An act may be legal and at the same time ultra vires. The word illegality in its strictly legal sense is applicable only to those acts which are wrongful, without reference to the absence of legal power of the person doing them as distinguished from the expressed provisions According to Author as mentioned above, an act may be wrongful by reason of prohibition or it may be wrongful by reasons of being opposed to public policy or because it is tainted with fraud or crime or because it is vitiated by duress or undue influence. The Author of the treatise has further observed that the phrase ultra vires is applicable only to acts done in excess of the legal power of the doer as distinguished from want of jurisdiction and illegality as such may be called the essence of the doctrine of ultra vires which again is action in excess of the power possessed by a person within the concerned limitation Mr. Sarkar in short, submitted that thus the word ultra vires would mean any act by a person beyond the powers. The word ultra vires according to Legal Dictionary would mean beyond the scope, power or authority of any Corporation or statutory body the said term implies absence of capacity or power of the person to do any act. An act is said to be ultra vires when it is enacted in excess of the legislative power. A Rule as observed in the case of P. Janardhana Vs. Union of India AIR 1970 Mys 171, would be ultra vires when the same is enacted in excess of the legislative power. The general theory of Judicial Control is commonly called the doctrine of ultra vires. The statute gives power for certain purposes only, or subject to some special procedure or with some other kind of limitations. Union of India AIR 1970 Mys 171, would be ultra vires when the same is enacted in excess of the legislative power. The general theory of Judicial Control is commonly called the doctrine of ultra vires. The statute gives power for certain purposes only, or subject to some special procedure or with some other kind of limitations. The limits are to be found not only in the statute itself, but in the general principles of construction which the Courts apply, if It is felt that any act is outside the defined limits or an act unjustified by law, the same would thus be termed as ultra vires such act is alia a wrongful act by the ordinary law, the same would be illegal and the ordinary remedies would lie. When the Legislature grants power to authorities, it inevitably also gives them discretion, if such discretion, is not conferred, the authority has no power, but a duty and many problems of judicial control may emerge with the question where the power ends and the duty begins. The doctrine of ultra vires is thus foot confined to cases of plain excess of power, it also governs the abuse of power, e.g. if something is done for the wrong reasons, or by the wrong procedure In law, the consequences are the same; an improper motive or a false step in procedure makes an administrative act just as illegal as does a flagrant excess of the power of the authority The whole basis of control would be "illegality" rather than merits But, there are many situations, in which "merits" may govern "illegality". Most powers are exercised for certain purposes but not for others, and many powers are required to be exercised reasonably and Courts are to pass judgments, as observed in Wade's Administrative Law, on the motive and propriety of Government actions, in order to determine whether it is legal. The term ultra vires is of two kinds viz substantive and procedural. The first is illustrated by the case of delegation. A subordinate legislation as observed in the case of Venkateswara Vs. Government of A.P. AIR 1966 SC 829, cannot contradict the Patent Act. The doctrine of procedural ultra vires states that when a power is given to do a certain thing in a certain way, the same must be done in that way or not at all. A subordinate legislation as observed in the case of Venkateswara Vs. Government of A.P. AIR 1966 SC 829, cannot contradict the Patent Act. The doctrine of procedural ultra vires states that when a power is given to do a certain thing in a certain way, the same must be done in that way or not at all. The term ultra vires as observed in the case of Ananda Prakesh Vs. Assistant Registrar, AIR 1968 Allahabad 22, implies absence of capacity or power of the person to do any act and it is not necessary, as observed that an act to be ultra vires must be illegal. There must be a distinction made between ultra vires acts and irregular acts, In the latter case, persons dealing without notice of any informality are entitled to presume omine rite esse acia i.e. all acts have been done rightly. The term ultra vires simply means "beyond powers" or "lack of power". The said term signifies a concept distinct from “illegality" in the loose or the widest sense everything that is not warranted by law illegal but in its proper or strict connotation "illegal" reference to that quality which makes the act itself contrary to law The term ultra vires points to the capacity or power of the person to do that act As indicated earlier, it is not necessary that an act to be ultra vires must also be illegal. An act may be illegal because it is prohibition by law or for reasons like fraud, undue influence or because of the same may be opposed to public policy The essence of the doctrine of the ultra vires as mentioned earlier is that the act is done in excess of the power possessed by the person in law and such doctrine proceeds on the basis that the person has limited powers The word "ultra vires" as disclosed in Principles of Administrative Law by Jain and Jain, would mean an act in excess of jurisdiction. 14. Applying the tests as laid down or indicated Above. there is no other way out but to hold that the acceptance of the nomination papers in respect of the election of the said Panchayat. 14. Applying the tests as laid down or indicated Above. there is no other way out but to hold that the acceptance of the nomination papers in respect of the election of the said Panchayat. was made on the basis of a notification, which was issued under S.222 of the said Act, which, in view of the determinations of this Court in A.K.M. Hassan-uz- Zaman's case (supra), cannot now be deemed to be the part of the said Act or a valid piece of legislation. Such being the position, the said notification should also be deemed to be extra vires if not ultra vires. There is no doubt that no election could be held or should be allowed to be held on the basis of the provisions of the statute or the notification made thereunder, which are ultra vires or extra vires and thus illegal. If any election is held on the basis of such records as involved in this case then the entire election would be null and void or void ab initio in election disputes, ordinarily, the procedures as prescribed in the concerned Act for the redress must be followed and exhausted before taking out a writ proceedings, but there may be exceptional cases like the present one viz under such special circumstances as involved in this case, in which a writ proceedings would be maintainable as Tribunal created or established under Ss.11 and 204 of the said Act, would not be justified or have the jurisdiction to decide the dispute with regard to the ultra vires nature of holding the election or acceptance of the nomination papers. Such being the position and more particularly when, the challenge as thrown, goes to the root of the jurisdiction and validity of the proceedings, which again the Tribunals or the Authorities under Ss.11 and 204 of the said Act, would not be authorised and justified to decide, the writ proceedings in this case, in our view was maintainable and no illegality or any irregularity was committed by the learned trial Judge, in entertaining the same. The acceptance of the nominations of the appellants, was thus improper, invalid, illegal and irregular. 15. The acceptance of the nominations of the appellants, was thus improper, invalid, illegal and irregular. 15. The other point, which is now left to be decided is on merits, viz whether the appellants were duly competent to contest the election of the said Panchayat and whether they were disqualified to seek the election because of their character of service or for the manner in which they were employed. The disqualifications of being elected members of a Gram Panchayat are mentioned and indicated in S.8 of the said Act the provision lays down that subject to the provisions contained in Ss.94 and 97, a person shall not be qualified to be a member of a Gram Panchayat, if- (a) …… …… …… ……… ……… ……… ……… …..… ….… ……… (b) he is in service of, or receives remuneration from, the Central or State Government or a Gram Panchayat Samiti or Zilla Parishad, (c) …… …… …… ……… ……… ……… ……… …..… ….… ……… (d) …… …… …… ……… ……… ……… ……… …..… ….… ……… (e) …… …… …… ……… ……… ……… ……… …..… ….… ……… (f) …… …… …… ……… ……… ……… ……… …..… ….… ……… (g) …… …… …… ……… ……… ……… ……… …..… ….… ……… (h) …… …… …… ……… ……… ……… ……… …..… ….… ……… On a reference to that provision and testing the same with the tests as laid down in the case of Biharilal Dobray v. Roshan Lal Dobray (supra), Mr. Sarkar contended that the appellants being mere instructor of the concerned Education Centre and that too on a purely part-time basis and more particularly when they were just entitled to a honorarium of Rs 105/- per month for the services as rendered, would not be deemed to be receiving remuneration either from the Central or State Government. It was also the claim and contention of Mr. Sarkar that the School Board in question was a separate entity and a body corporate, having a perpetual succession and a common seal and is not under the direction, control and supervision of either of the Government as mentioned above and is constituted under S.14 of the said 1930 Act. It was also the claim and contention of Mr. Sarkar that the School Board in question was a separate entity and a body corporate, having a perpetual succession and a common seal and is not under the direction, control and supervision of either of the Government as mentioned above and is constituted under S.14 of the said 1930 Act. That section lays down that every Board shall be a body corporate by the name of "the District School Board of (name of district)," shall have perpetual succession and a common seal and shall by the said name sue and be sued, with power to acquire and hold property. both movable and immovable, and subject to the prescribed conditions, to transfer any property held by it and to contract and do all other things necessary for the purposes of this Act. It was also stated by Mr. Sarkar that the Board has a fund which is known as District Primary Education Fund and grants by the Central Government as made available to the State Government are allotted as grant extended by the State Government and such grants, as soon as they are received, merge with the District Primary Education Fund. On such merger, Mr. Sarkar contended that the grant as received lose its character and as such any payment made from that merged fund cannot be said to be payment by way of remuneration by either of the Governments as mentioned above In fact on such submissions as aforesaid, Mr. Sarkar claimed that the appellants were not servants of either of the Governments or they have received or receive any remuneration from any of these Governments. Apart from S.14 of the said 1930 Act, Mr. Sarkar referred to sub s.(2) of Ss.37 and S.38 of that Act Section 37 as mentioned above make provisions for the formation of the District Primary Education Fund and sub-s (2) thereunder. lay down that the District Primary Education Fund shall become vested in the Board, be under its control and shall be held by it in trust for the purposes of the Act Section 38 lays down the objects for which the District Primary Education Fund shall be applied Mr. lay down that the District Primary Education Fund shall become vested in the Board, be under its control and shall be held by it in trust for the purposes of the Act Section 38 lays down the objects for which the District Primary Education Fund shall be applied Mr. Sarkar also contended that the Board as mentioned above cannot also be termed as or considered to be an instrumentality of any of the Governments as mentioned above or such character of or necessary instrumentality cannot be evolved and considered in view of the provisions of the said 1930 Act. 16. As indicated hereinbefore, Mr. Halder appearing for the Respondent No 3 supported the appellants. His concession regarding the notification as issued under S. 222 of the said Act has been recorded hereinbefore. He also contended that the determinations in the case of Biharilal Dobray v. Roshan Lal Dobray (supra) would not apply with full force at all, in the facts and circumstances of this case. It was Mr. Halder's specific submissions that whether there has been one or many Boards would not be very material and the most material and effective point to be found out is whether an employee is holding an office of profit, would be the source from which he gets the payment. It was his submissions on the abovementioned case that the real issue for determination in the same was Article 191 of the Constitution of India That was further stated by him to have been decided on the basis of the determinations and principle, as involved in State of Gujarat Vs. Raman Lal Keshav Lal Soni, AIR 1984 SC 151 , where the question involved was whether the employees transferred to the Gujarat Panchayat Service and Walking under the local authorities formed under the Gujarat Panchayat Act, 1961 were State Government employees or not In the Gujarat case the local authorities were held and found to be Corporate bodies. The said Gujarat Judgment where the Gujarat Pancayat officers were found to be Government Servants and thus civil servants or holding civil posts under or in term, of Article 311 of the constitution of India, should be the good law even on the submissions of Mr. The said Gujarat Judgment where the Gujarat Pancayat officers were found to be Government Servants and thus civil servants or holding civil posts under or in term, of Article 311 of the constitution of India, should be the good law even on the submissions of Mr. Halder to the effect that even If there is a determination by the Supreme Court composed of lesser number of Judges than an earlier judgment such earlier judgment should be held to be the law of the land. The earlier Gujarat Judgment was by a Bench composed of five learned Judges while the later determination as mentioned above, was by a Bench composed of two learned Judges. The relevant observations in the said Gujarat case were that the Panchayat Service constituted under S.203 of the Gujarat Panchayats Act is a civil service of the State and the members of the service are Government servants. The High Court was justified in directing the State Government to discharge its statutory duty to make orders for the equation of posts and to extend the benefits arising out of the reports of the two Pay Commissions in question, which benefits had been denied to the local cadre only, apart from holding that it is neither polite nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant none may be conclusive. On the other hand, no single factor may be considered absolutely essential The presence of all or some of the factors such as, the right to select for appointment, the right to appoint the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not and the duties which the members of the Gujarat Panchayat Service are required to perform are in connection with those affairs of the State which are entrusted to the Panchayat Institutions by the statute itself or by transfer by the Government under the statute. The expenditure towards the pay and allowance of officers and servants of the Panchayat serving for the time being under any Panchayat has, no doubt, to be met by any Panchayat from its own fund, but, the fund consists substantially of sums contributed or lent by the State Government and of the proceeds of any tax or fee imposed by or assigned to the Panchayat under the Act. The imposition of a tax or a fee in the nature of a tax, is essentially a function of the State So the salary and allowances of the servants and officers of the Panchayat service are paid out of funds contributed or lent by the Government or raised by the discharge of an essential governmental function Secretaries Gram and Nagar Panchayats are to be appointed in accordance with the rules made by the Government, while the Taluqa Development Officer, is to be the Secretary of the Taluqa Panchayat and the District Development Officer is to be Secretary of the District Panchayat Taluqa and District Development Officers are, of course, officers of the State service Gram and Nagar Panchayats may have other servants, as may be determined under S.203, but they have to be appointed by such authority as may be prescribed by the Government and their conditions of service shall be such as may be prescribed by the Government Section 203, contemplates the constitution of a single centralised Panchayat Service, the classes, cadres and posts of which have to be determined by the Government from time to time The mode of recruitment, whether by examination or otherwise, the conditions of service, the powers in respect of appointments, transfers and promotions of officers and servants and disciplinary action which may be taken against them, are to be regulated by the rules made by Government. The rules so made are particularly required to contain "a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State Service, as may be prescribed vide S.207(4)(a). The rules so made are particularly required to contain "a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State Service, as may be prescribed vide S.207(4)(a). This is important provision. There cannot be any question of a rule providing for promotion from the Panchayat Service to the State Service unless the Panchayat Service is also a service under the State. The provision of S. 205 which enables an appointment to be made to a post in the Panchayat Service by transfer of a member of the State Service necessarily implies that the Panchayat Service is also a service under the State Further. S.206(1)(i) provides for the allocation to the Panchayat Service of such number of officers and servants out of the staff transferred to the Panchayat under Ss.157, 158, 325, as the Government may deem fit Section 206(1)(ii) further provides for the a allocation to the Panchayat Service of such other officers and servants employed in the State Service as may be necessary to enable the Panchayats to discharge efficiently their functions and duties under the Act Obviously this transfer and allocation of members of State Services to the Panchayat Service under Ss 157, 158, 325, 206(1)(i) and 206(1)(iii) will be impermissible unless the Panchayat Service is also a service under the State Otherwise, there would be a patent violation of the provision of Article 311 of the Constitution Section 206-A authorises a review of allocation within a period of four years and reallocation to the State Service of these transfers under Ss. 157 and 158. The very idea that there can be an allocation to the Panchayat Service from a State Service and a reallocation from the Panchayat Service to the State Service is only consistent with the Panchayat Service also being a service under the State In that case it has also been observed that Panchayat Service is distinct from a Stare Service because the Panchayat institutions whom it serves together constitute an almost parallel but subsidiary Government It is only in that sense Panchayat Service is distinct from a State Service and not in the sense that members of the service are not servants of the State. To establish his submissions as indicated above viz which decision should a High Court follow in case an earlier judgment of the Supreme Court, composed of larger number of Judges than the later one, Mr. Halder referred to the decision of the Supreme Court in the case of Union of India & Anr. Vs. K.S. Subramanian, AIR 1976 SC 2433 In that case it has been observed that the proper course for a High Court is to try to find out and follow the opinions expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court That is the practice followed by the Supreme Court itself The practice has now crystallized into a rule of law declared by the Supreme Court. If however, tile High Court is of opinion that the views expressed by larger benches of the Supreme Court are not applicable to the facts of the case It should say so giving reasons supporting its point of view Even if we take into consideration, the submission of Mr. Halder or follow the practice as mentioned in the above case, we feel that would not help him in this case, as even on the law as laid down in the Gujarat case reported in AIR 1984 SC 161 , the applicants may be disqualified and the more so when the said judgment has not been differed from in the subsequent case in AIR 1984 SC 385 . The subsequent Supreme Court decision according to Mr. Halder was really one where Article 191 of the Constitution of India was involved and considered and such being the position, it was also his submissions that the said determination cannot be applied in the facts of this case. In support of such submissions, Mr. Halder referred to the observations of the Supreme Court to the effect that any case, even a locus classicus, is an authority for what it decides. In support of such submissions, Mr. Halder referred to the observations of the Supreme Court to the effect that any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision which is cited as a precedent Human mind trained even in the strict discipline of law, is not averse to taking easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations. The question of discrimination arises under Article 14 and not under Article 19 of the Constitution Where a case before the Court involved considerations limited and germane to the application of Article 14, the principles enunciated therein cannot be treated as of universal application and in that process to apply them to cases arising under other articles of the Constitution, particularly Articles 19 and 21 of Constitution, as made in the case of Hazamohideen & Ors Vs. Amar Singh & Anr AIR 1983 SC 1155 . We feel it difficult to apply the tests as laid down or referred to as above in the facts of this case. 17. Mr. Halder further contended in the tone of Mr. Sarkar, that the concerned Board in this case was not ail instrumentality or agency of either of the Governments as mentioned hereinbefore and such being the position, the same would not be a "State" or "Authority" under Article 12 of the Constitution. To establish his submissions as above Mr. Halder referred to the case of Ajay Hasia etc v. Khalid Mujib Shravardi & Ors AIR 1981 SC 487 , wherein it has been observed that it is immaterial for determining whether a Corporation is an authority whether the Corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act or it may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetiral origin, it would be an “authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and is an given case it would have to be decided on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12 A juristic entity which may be "State" for the purpose of Part III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. 18. In the case of Sabhajit Tewary v Union of India, AIR 1975 SC 1329 , to which reference was made by Mr. Halder, Council of Scientific and Industrial Research, has been determined to be not an authority under Article 12 on the finding amongst others that the same is a society registered under the Societies Registration Act and is not an authority within the meaning of Article 12. The Society does not have a statutory character like the Oil and Natural Gas Commission or the Life Insurance Corporation or Industrial Finance Corporation. The Society does not have a statutory character like the Oil and Natural Gas Commission or the Life Insurance Corporation or Industrial Finance Corporation. The fact that the Prime Minister is the president or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion guidance and ca-operation of scientific and industrial research and other activities of the Council towards the development of industries in the country are carried out in a responsible manner. In fact reference to that case was made, for the purpose of establishing the necessary tests which are required to determine an “authority” under that Article and Mr. Halder stated that these criterion are not available in the case of the Board as in this case and as such their employees do not hold a Civil post either under the State Government or the Union of India and that being the position the appellants in this case were not debarred or disqualified under S.8(b) of the said Act. Mr. Halder also contended that the writ proceedings as taken out in this case by the said. Respondents was not maintainable, in view of the provision of the said Act, the particulars whereof have been indicated and discussed while dealing with the submissions on the preliminary points as raised by Mr. Sarkar. It was contended further by Mr. Halder that since no arguable issue was raised or such point is involved in this case so in terms of the determinations in the case of Abadhraj Dukharam Pande & Anr. Vs. State of Maharashtra, AIR 1979 SC 1703 , no interference should have been made or was need to be made by the learned trial Judge. Mr. Halder, in addition to the above, also referred to the determinations in The case of Titagarh Paper Mills Co. Ltd. & Ors. Vs. State of Orissa & Anr. (Supra). 19. Mr. Vs. State of Maharashtra, AIR 1979 SC 1703 , no interference should have been made or was need to be made by the learned trial Judge. Mr. Halder, in addition to the above, also referred to the determinations in The case of Titagarh Paper Mills Co. Ltd. & Ors. Vs. State of Orissa & Anr. (Supra). 19. Mr. Majumder specifically contended and claimed that large portions of the salary of the appellants were borne by the Central Government in this circumstances as mentioned hereinbefore and more particularly when the concerned Primary Fund or a portion thereof is formed by the grant as received from the Government and as such, the appellants should be deemed to be or considered as persons who received remunerations from such Government and for that, they were disqualified to seek election for the said Panchayat under S.8(b) of the said Act. Mr. Majumder also contended that such disqualification was in existence much prior to the date of filling of the nomination papers by the appellants, as they were drawing their salaries or receiving remunerations in the manner as indicated hereinbefore from the concerned fund long prior to the date of filing their nomination. On a reference to the different provisions of the said 1980 Act and more particularly on a reference to Ss 6, 14, 21, 24, 25, 27, 30, 36, 37(i), 37(ii), 39 and 40 of the same, and 40 also Rule 3(i) thereunder, Mr. Majumder wanted to establish that there was control of the concerned Government over the District Primary Education Fund in question and so also in the matter of appointment of tile employees like those of the appellants. Majumder wanted to establish that there was control of the concerned Government over the District Primary Education Fund in question and so also in the matter of appointment of tile employees like those of the appellants. He also claimed that the constitution of the Central Primary Education Committee under the said 1930 Act, shows such control as indicated above On a reference to the following extracts: 2(1) …… …… …… ……… ……… ……… ……… …..… ….… ……… (a) …… …… …… ……… ……… ……… ……… …..… ….… ……… (b) …… …… …… ……… ……… ……… ……… …..… ….… ……… (i) …… …… …… ……… ……… ……… ……… …..… ….… ……… (ii) …… …… …… ……… ……… ……… ……… …..… ….… ……… (2) No person shall be appointed to any post in a primary school maintained by the Board (i) if he is not a citizen of India as defined in Part II of the Constitution of India, and (ii) if he is under the age of 18 years Explanation-For the purpose of this rule, a teacher shall be deemed - (1) to have passed the School Final Examination if he has passed any public examination declared or deemed to be its equivalent by the Education Department of the State Government for purpose of appointment in a teaching post, and (2) to possess (raining when he has passed.- (i) any of the examinations held in West Bengal and conducted or recognised by the Director of Public Instruction, West Bengal, on completion of a course of Junior Basic Training or Primary Training, or (ii) an examination of any other course of training declared or deemed to be the equivalent of Junior Basic Training by the Education Department of the State Government.” 3(1) A Board shall appoint teachers, whether temporarily or substantively, only from the panel of qualified teachers for the district forwarded by the Director of Public Instruction, West Bengal, and in accordance with the directions, If any, given by him (2) In Issuing letters of appointment, Board shall ensure, as far as possible, that a person is appointed as a teacher in the school which is nearest to his residence. This, however, shall not be construed to mean that he cannot be appointed elsewhere or transferred subsequently to any other school, if the Board so cociders necessary. 3A. This, however, shall not be construed to mean that he cannot be appointed elsewhere or transferred subsequently to any other school, if the Board so cociders necessary. 3A. No name shall be forwarded by the Director of Public Instruction, West Bengal, for appointment under a Board unless it has been included in the panel of qualified teachers prepared for the district after adequate publicity and in the manner provided in rule 3B. 3B(1) The Director of Public Instruction, West Bengal, may, with the approval of the State Government, set up a Selection Committee in each district to assist him in selecting suitable persons from amongst the candidates for inclusion in the penal of qualified teachers for the district (2) The Selection Committee may hold such tests including interview, as they may deem proper and necessary for the candidates, but it is open to the Selection Committee to call only those amongst the candidates, they may consider suitable The interview and other tests shall be held at a convenient place or places in the district or with the prior approval of the State Government, outside the district (3) The Selection Committee shall send their list of names of qualified persons recommended by them to the Director of Public Instruction, West Bengal, who may modify or alter the list. Only the names as finally approved by the Director of Public Instruction, West Bengal, shall be included in the panel for the district (4) …… …… …… ……… ……… ……… ……… …..… ….… ……… (5) The Director of Public Instruction, West Bengal, may remove at any time the name of any person from the panel for failure of the person to accept or join, in time, an appointment offered to him by the Board or for other good and adequate reasons. 3C(1) in preparing a panel of teachers and in the matter of appointment of teachers in schools under a Board, the Director of Public Instruction, West Bengal, shall ensure, as far as practicable, that persons belonging to Scheduled Caste and Scheduled Tribes are empanelled and given appointments on the basis of the ratio of their respective population to the total population in the district and that women are empanelled and appointed in adequate numbers. (2) A Board shall ensure, as far as possible, that in schools in the areas wholly or mainly inhabitated by the persons belonging to Scheduled Tribes or Scheduled Castes, appointments are given to Scheduled Tribe, or Scheduled Castes, as the case may be, from the notification no.975 Edu(P) dated 26th October 1971 as issued by the Government of West Bengal, Education Department, Primary Branch and also on a reference to the extracts from notification no 1137-Edn(P) dated 23rd November 1971 to the effect that :- 1. …… …… …… ……… ……… ……… ……… …..… ….… ……… 2. …… …… …… ……… ……… ……… ……… …..… ….… ……… 3. …… …… …… ……… ……… ……… ……… …..… ….… ……… 4. …… …… …… ……… ……… ……… ……… …..… ….… ……… 5. Organiser-teachers may be appointed in a particular school with the prior approval of the Director of Public Instruction, West Bengal at the time it is granted recognition, provided they posses the minimum qualifications and the rules regarding staff-entitlement on the basis of roll strength are strictly observed Appointment may also be given to the teacher-in-positions in a particular school at the time of its recognition, provided they posses the minimum qualifications and the staff-entitlement rules are strictly observed. "Teacher-in-position" are those who were appointed at a point of time after the establishment of a particular school but before its recognition, whereas organiser-teachers are those who have served the school since its establishment. Qualified organiser-teachers will be given first preference in the matter of appointment in a school obtaining recognition, and "teacher-in-position" will be given second preference. Where two or more teachers in-position are candidates for retention, and the roll strength does not justify the retention of all of them, the appointment (s) should be given on the basis of length of service in the school, so that earlier appointments arc protected. Where the roll strength dues not justify the number of teachers found at the time of recognition, and the choice lies between two or more organiser-teachers or two or more teacher-In-position, their cases should be carefully considered so that the better/best person is selected and appointed Prior approval of the Director of Public Instruction, West Bengal, should be obtained to the appointment of all teachers-in-position. Sanction of the Governor is further accorded to the payment of a sum of Rs. Sanction of the Governor is further accorded to the payment of a sum of Rs. 22,00,000 (Rupees Twentytwo Lakhs) only, during the current financial year, for meeting the recurring cost for payment of teachers pay and allowances, District School Boards' Provident Fund Contribution @ 6.1/4%, Money Order Commission and Contingency @ Rs. 25/- per month for School etc. for three month, The distribution and placement of funds at the disposal of the District School Boards for meeting the recurring cost of running the scheme will be made by the Director of Public Instruction, West Bengal subject to adjustment according to actual expenditure. The Governor is also pleased to accord sanction to a total non-recurring grant of Rs 7,60,000/-. (i) Purchase of Furniture, equipment etc. for 1200 new Primary Schools @ Rs.300/- per school…………….Rs.3,60,000/- (ii) Construction of building of 400 Primary Schools @ Rs.1,000/- per school Rs.4,00,000/- Total Rs.7,60,000/- (Rupees seven lakhs and sixty thousand) only, as detailed in the margin, towards purchase of furniture and equipments of 1200 now primary schools and construction of 400 primary school buildings in backwards areas as mentioned in paragraph 1. The Director of Public Instruction, West Bengal, is hereby authorised to release the entire non-recurring grant during the current financial year in one or more instalmants. This order issues with the concurrence of the Finance Department vide their U.O.No. BVI(1) 1379 dated the 22nd October, 1971. The Accountant General, West Bengal, is being informed, as issued by the Government of West Bengal Education Department Primary Branch, Mr. Majumder supplemented his arguments that the Government has real control over the concerned school and the relevant Board as set up under the said 1930 Act. In fact, he contended that apart from financial control, other relevant controls of the Government were there over the employees concerned viz the appellants herein. On a further reference to sections 37, 38 and 40 of the said 1930 Act und the character of formation of the District Primary Education Fund as formed from the grants as issued and the control of the State Government through their Director of Public Instructions and so also the budgetary control of the State Government, Mr. Majumder argued that the appropriate Government has the real control over the school in question and the concerned Board Mr. Majumder argued that the appropriate Government has the real control over the school in question and the concerned Board Mr. Majumder also referred to the letters of appointment of the appellants for establishing that they were really appointed by the concerned Board, over which, as claimed by him the State Government has control. 20. In view of the above facts, Mr. Majumder further claimed that the case would come well within the determinations in the case of Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr, AIR 1975 SC 1331 and according to him, applying the tests of agency, control and instrumentality in the facts of this case, the appellants must be deemed to be disqualified under section 8(b) of the said Act, for seeking electron to the said Panchayat, the more so when, applying those tests, the Board in this case, should at least be held to be under the control, supervision and direction of the State Government and more particularly when such Government has admittedly the necessary control. While on the point of instrumentality, reference was also made by Mr. Majumder to the case of Som Prakash Rekhi Vs. Union of India & Anr, A.I.R. 1981 SC 212, which has laid down that if a statutory corporation, body or other authority is an instrumentality or agency of the Government, it would be an "authority" and therefore "State" within the meaning of that expression in Article 12, and is subject to the same constitutional limitations as Government. The preponderant considerations for pronouncing an entity as State agency or instrumentality are (i) financial resources of the State being the chief funding Source (ii) functional character being governmental in essence, (iii) plenary control residing in Government, (iv) prior history of the same activity having been carried on by Government and made over to the new body and (v) some element of authority or command. Whether the legal person is a corporation created by a statute, as distinguished from under a statue, is not an important criterion although it may be indicium. Whether the legal person is a corporation created by a statute, as distinguished from under a statue, is not an important criterion although it may be indicium. A careful study of the features of the Airport Authority and a government company covered by Ss.7, 9, 10 and 12 of Burma Shell (Acquisition of Undertakings in India) Act (1976) discloses a close parallel except that the Airport Authority is created by a stature while Bharat Petroleum (notified under S.7 of the Act) is recognised by and clothed with rights and duties by the statute Applying the constellation of criteria collected from Airport Authority, AIR 1979 SC 1628 on a cumulative basis to the given case there is enough material to hold that the Bharat Petroleum Corporation is "State" within the enlarged meaning of Article 12 The common sense signification of the expression "other authorities under the control of the Government of India" is plain and there is no reason to make exclusion on sophisticated grounds such as that the legal person must be a statutory corporation, must have power to make laws, must be created by and not under a statute and so on. When, a reference was made by him to the case of P. Pushpakarum Vs. Coir Board & Anr. 1979(1) LLJ 139 , wherein Coir Board, following the determination in Pankajakaham Vs. Union of India, ILR 1976(2) Kerala 1, has been held to be a "State" under Article 12 and for establishing his submissions that the Board in this case has the character of a "State" or "Authority" in terms of Article 12, Mr. Majumder made a further reference to the case of Harinath Prasad Vs. The State of Bihar & Ors. 1977 Lab IC 1933, where it has been observed that the District Board being a local Government body is "State". 21. While dealing with S.8(b) of the said Act, Mr. Majumder contended that the term remuneration as used therein should have wider meaning than office of profit and to establish that, reference was made by him to the case of Guru Gobinda Basu Vs. Sankari Prasad Ghosal & Ors. AIR 1964 SC 254 , where it has been observed that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. Sankari Prasad Ghosal & Ors. AIR 1964 SC 254 , where it has been observed that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government. The Constitution has also made a distinction between the holder of an office of profit under the Government and the holder of an office of profit under a local or other authority subject to the control of Government The decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. It is not correct to say that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all coexist and each must show subordination to Government and that if one of the elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor-not decisive of the question. Whether stress will be laid on one factor or the other will depend on the facts of each case However, where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then it must be held that the officer in question holds the office under the authority so empowered. On the basis of the determinations all mentioned above, Mr. On the basis of the determinations all mentioned above, Mr. Majumder claimed that reality there would be no difference so far imposing disqualifications in an election of the present nature between the office of profit and interest or between an actual holder of a civil post or a person receiving remuneration like the appellants, as in any one of those cases, a contesting or intending candidate would be disqualified under section 8(b) of the said Act. It was also contended by him and that too with substance, and on the basis of the dictionary meaning that there would be no distinction or difference between the words remuneration and honorarium and the word remuneration as used in S.8(b) of the said Act would also include honorarium. 22. From the relevant facts as disclosed and testing them with the laws of the land and that too when the provisions of the said 1930 Act establish Governmental control as a major factor in the matter of Primary Education, it can be held that the learned trial Judge was not unjustified in making his observations and necessary determinations by the judgment and order' as impeached. On the basis of the provisions of the relevant statutes it cannot be doubted or disputed in this case that the control of or by the Government is a major factor in the matter of primary education and such view, that no fund of the Board even though budgeted by them is required to be approved by the State Government and they retain control over the same cannot also be overlooked and the other fact that the State Government hold plenary power to regulate the same or the functions of the Board and thus the school, cannot further be overlooked. Such being the position, in agreement with the learned Judge, we also hold that the Board in this case has no independent existence. This case, in our view, is fully covered by the determinations in the case of Biharilal Dobray Vs. Roshan Lal Dobray (supra). Where the Supreme Court has observed that, U.P. Board of Basic Education is not an authority truly independent of the Government and every employee of that Board is in fact holding office under the Government. A similar finding in this case and that too on consideration of the relevant facts and the law on the point cannot be avoided. Where the Supreme Court has observed that, U.P. Board of Basic Education is not an authority truly independent of the Government and every employee of that Board is in fact holding office under the Government. A similar finding in this case and that too on consideration of the relevant facts and the law on the point cannot be avoided. To find out and determine whether an employee is holding an office under a Government or whether such 'office is an office of profit, as observed in the case of Shivamurthy Swami Vs. Agadi Sauranna Anandappa, 1971(3) SCC 870 , would depend on the fact and determination whether the Government pays the remuneration or any part thereof or not and whether the Government exercises control over the performances and functions of the concerned Board or the School under them. On consideration and construction of the provisions of the said 1930 Act, the answer to such question must be in favour of the said respondents and against the appellants herein. We must keep it on record that Mr. Majumder had referred to the determinations of the Jammu and Kashmir High Court, on their Panchayat Act as reported in 1983 Srinagar Law Journal 83 and which lays down that the worth "In the employment of Government" can he distinguished from the words "a Government servant". We have not been able to consider that determination further as Mr. Majumder could not produce the report. But we agree that there is a difference between the terms as mentioned above and there would in fact be a difference between one who is in the employment of the Government and the other who is Government Servant. The learned Judge, while on this point, has appropriately observed that a village headman may not be a Government servant even though he is in the employment of the Government. The appellants herein were not Government servants but being the part-time instructors. they can certainly be said or deemed to be in the employment of the Government as they drew their remuneration from a fund, the budget whereof was not only approved by the Government but the more so when, the Government not only gave financial assistance, but also had sectional control over such fund. As indicated earlier, we must also record that honorarium would come within the purview and meaning of salary or remuneration. As indicated earlier, we must also record that honorarium would come within the purview and meaning of salary or remuneration. Apart from the above, on a reference to S.6 of the said 1930 Act, which lays down how a District School Board has to be constituted, there cannot also be any doubt that the Board as constituted under that provision would be a wing of the Government or the replica of the same. We are also of the view that If the cases of the appellants are tested with the tests as laid down in the cases as cited at the Bar, the results will be the same and the one and only answer would be that the appellants because of the holding of the posts as indicated were debarred from seeking ejection to the said Panchayat under S.8(b) of the said Act. 23. It should also be recorded that apart from his submissions as recorded hereinbefore. Mr. Sarkar also submitted that since the names of the appellants were included in the relevant voters' list and which was in force for the time being, they could be members of the said Panchayat. In support of such submissions, reference was made to the case of Sultan Khan Vs. Sailesh Chandra Nandy, AIR 1963 Cal 527 . The qualifications of the appellants to seek election for the said Panchayat were neither challenged nor the same were in issue. In view of the other disqualifications of the appellants as indicated above, that determination, as indicated by Mr. Haldar would neither hold good nor apply in this case. It was also the submissions of Mr. Sarkar on a reference to the case of Shivamurthy Swami Inamdar Vs. Agadi Sanganna Andanappa, 1971 (3) SCC 870 , that since the word profit connotes the idea of pecuniary gain and as in this case there has been no such evidence of profit, so the appellant were not debarred under S. 8(b) of the said Act. In view of our discussions on the point and the determination as made, we are of the view that the said determination has no direct application in the facts of this case. It must be noted that on the question of ouster of Court’s jurisdiction Mr. Majumder placed reliance on the case of Commissioner of Customs & Excise Vs. In view of our discussions on the point and the determination as made, we are of the view that the said determination has no direct application in the facts of this case. It must be noted that on the question of ouster of Court’s jurisdiction Mr. Majumder placed reliance on the case of Commissioner of Customs & Excise Vs. Cure & Dealay Ltd (1961) 3 All ER 541, wherein it has been held among others that the words "appears to them necessary" when used in a section of a statute conferring power on a competent authority, did not necessarily make the authority sole judge of what its powers were as well as sole judge of the way in which it would exercise such powers the statute has conferred". While on the question of other remedy and powers of the Courts to interfere, Mr. Majumder, in addition to his submissions a mentioned earlier, relied firstly on the case of The Director Enforcement Directorate etc & Ors. Vs. Saroj Kumar Bhotika & Anr. AIR 1978 Cal 65 , where it has been observed that where two of the grounds raised, such as, there was no nexus between the objects of the enactment and the condition imposed under it and the condition was vague, uncertain and ambiguous could not be gone into by any authority constituted under the Act, writ application was maintainable, apart from holding that if redress can be had through the law under which the action under challenge is proposed to be taken, writ application would not be entertained. But when the challenge is such as cannot be determined by the authority appointed to take action, the writ jurisdiction of the High Court remains unimpaired. In each case the High Court has to see whether the ground on which the challenge is based can be entertained, tried and determined by the authority which the Statute has created. If the Court finds that authority is incapable of dealing with that ground or making any pronouncement upon it, the Courts would entertain an application for an appropriate writ and secondly, he relied on the case of Siddappa Yellappa Kundargi Vs. The Election Officer & Anr., AIR 1980 Kant 104. If the Court finds that authority is incapable of dealing with that ground or making any pronouncement upon it, the Courts would entertain an application for an appropriate writ and secondly, he relied on the case of Siddappa Yellappa Kundargi Vs. The Election Officer & Anr., AIR 1980 Kant 104. In that case, it has been observed that in extraordinary circumstances the High Court in exercise of jurisdiction under Article 226 may decide the validity of the election especially after the election is over and exercise of jurisdiction would not delay the completion of the election Mr. Majumder also made a passing reference to the case of A.K.M. Hassan Uz Zaman & Ors Vs. Union of India & Ors 1982 2 SCC 218 and contended that even the determinations as made by the Supreme Court in that case would not be against his contentions as the election of the appellants in this case were void ab initio. As observed earlier and still we say that availability of other or alternative remedy in the statute viz through Ss.11 and 204 of the said Act, in the facts and circumstances of the case would not help the appellants or to uphold their contentions, as the entire election of the appellants, because of the unauthorised acceptance of the nomination papers became a nullity. 24. Such being the position, we dismiss the appeal and uphold the contentions of the said Respondents on merits and so also the preliminary point as urged. There will be no order as to costs. We must also record that even if the points on merits were answered in favour of the appellants, they could not claim to be successful in their elections and that too because of our findings against them on the preliminary point and the more so when we have found and observed that their nomination papers were accepted unauthorisedly and not duly. Prayer for stay of operation of this order is refused. Prayer for leave to appeal to the Supreme Court is also refused, al we are of the view that no point of substantial importance is involved in this case, which is required to be decided by the Supreme Court. Amarendra Chandra Sengupta, J.- I agree Appeal dismissed