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2009 DIGILAW 945 (CAL)

Surat Machhuar v. STATE OF WEST BENGAL

2009-12-23

KALYAN JYOTI SENGUPTA, Md.Abdul Ghani

body2009
JUDGMENT Kalyan Jyoti Sengupta, J. 1. THE Court: THE above appeal has been preferred against judgment and order of the learned Single Judge dated 25th June, 2008 by which without calling for any affidavit at the admission stage after observing the legal proposition the learned Single Judge has disposed of the application without granting any relief as prayed for. THE fact for which filing of the writ petition had given rise is stated hereunder: THE petitioner/appellant being the member of the Schedule Caste community contested Panchayat Election in 2008 held for reconstitution of the Gram Panchayat of the segment of Baghmundi (XIII) in the District of Purulia. By above notification the Office of the Pradhan of the said segment has been reserved for Schedule Caste category. THE said Gram Panchayat comprises of 13 members. 2. IT is stated that after election was held and petitioner having been declared to be successful candidate in the election attempt was made for reconstitution of the Gram Panchayat with selection of the Pradhan. As the petitioner being sole elected candidate from Scheduled Caste Community is entitled to occupy the said office of Pradhan by operation of law automatically and there could not be any hindrance to it. But the Principal Secretary Department of Panchayat and Rural Development issued a memorandum dated 10th June 2008 by which scope and purport of section 20 of the West Bengal Panchayat Elections Act, 2003 (hereinafter refereed to as the said Act) and the procedure for selection of Pradhan is sought to be clarified. The said memorandum was under challenge in the writ petition on the ground amongst others the said secretary has no jurisdiction or authority to issue such clarification laying down procedure for application of section 20. Besides the same being not only ultra vires the Panchayat Act and all the rules framed thereunder and also provision of Constitution of India. According to the writ petitioner there was no need for clarification for applicability of section 20 of the said Act. IT is said that section 20 of the said Act specifically provides in case of non-availability of the Scheduled Caste candidate for occupying the office of Pradhan in the reserved area with the method of co-option. According to the writ petitioner there was no need for clarification for applicability of section 20 of the said Act. IT is said that section 20 of the said Act specifically provides in case of non-availability of the Scheduled Caste candidate for occupying the office of Pradhan in the reserved area with the method of co-option. The learned Trial Judge accepted the submission that the said memorandum dated 10th June, 2008 issued by the Government of West Bengal through its concerned Principal Secretary cannot possibly override the statutory provision or the rules framed thereunder. IT was also opined by the learned Trial Judge that the said memorandum has not overridden statutory provision or Rules framed thereunder. After observing this the learned Trial Judge did not pass any order in the writ petition as prayed for. IT is argued before us in this appeal that the learned Trial Judge failed to exercise it powers by not granting relief in spite of having accepted the case made out by the applicant. It appears at the admission stage on 7th July, 2009 the Division Bench of this Court after discussing the law in great details and after having prima facie satisfied about illegality in the said memorandum passed an order staying, operation thereof till the hearing of the appeal. By the said interim order the writ petition was allowed to hold the office of Pradhan. 3. IN the aforesaid background it has been urged by the learned Counsel for the appellant that the said memorandum dated 10th June, 2008 is patently mala fide act of the Secretary concerned which cannot learned to be a Government decision within the meaning of Article 162 of the Constitution of India. It has been urged that section 20 of the said Act leaves no manner of ambiguity for which any clarification or explanation is required. Section 20 of the said Act provides in case of non-availability of the candidate from the reserved category methodology for co-option has been provided. According to the learned Counsel for the appellant the impugned memorandum is really issued aiming at to negate the provision of the said Act and the Rules as well as provision of Constitution for holding the office of Pradhan by an elected candidate from reserved category. This Memorandum is totally contrary to and/or inconsistent with the provision of law and the same cannot be allowed to be operative. This Memorandum is totally contrary to and/or inconsistent with the provision of law and the same cannot be allowed to be operative. He has drawn our attention to the various provisions of the said Act and also relevant rules and provisions of the West Bengal Panchayat Act, 1973. 4. THE learned Counsel for the respondent submits that after the election it is more often found that it becomes impossible to constitute the Panchayat Board when a political party having majority number of members does not have any member belonging to reserved category. For obviating difficulty the aforesaid memorandum has been issued for smooth operation of the law to get candidate of reserved category for occupying the office of the Pradhan. THE learned Counsel for the respondent urges further that this kind of clarification can be issued under Article 162 of the Constitution of India, providing exercise of executive power of the State when there has been an ambiguity in the statutory provision. No affidavit-in-opposition was filed before the learned Trial Judge nor the same has been filed before us. We take the statement and averment made in the application for interim relief as being true and correct. Moreover we have enquired of the learned Counsel for the respondent whether the petitioner/appellant belonged to Schedule Caste Community or he has been elected as member of the Gram Panchayat in the segment where office of the Pradhan is declared to be reserved for being filled up by Scheduled Caste Candidate. The learned Counsel for the respondent did not dispute the aforesaid factual aspect moreover from the document annexed to the writ petition and paper book it appears that in the Segment of Baghmundi XIII the office of Pradhan has been notified for the Scheduled Castes Community. The petitioner has also been certified to have been declared elected in the said segment. Under those circumstances point for consideration in this case is whether the Memorandum dated 10th June, 2008 is valid and lawful, or not. 5. SINCE the said memorandum had been issued purporting to clarify section 20 of the said Act, it is thus necessary to reproduce section 20 of the said Act: "Co-option of persons in respective category. In case of non-availability of persons of reserved category for filling up the office of Pradhan or Upa-Pradhan. 5. SINCE the said memorandum had been issued purporting to clarify section 20 of the said Act, it is thus necessary to reproduce section 20 of the said Act: "Co-option of persons in respective category. In case of non-availability of persons of reserved category for filling up the office of Pradhan or Upa-Pradhan. Sabhapati or Sahakari Sabhapati and Sabhadhipati or Sahakari Sabhadhipati so reserved, a person of that reserved category may be co-opted to fill up of that office after swearing in an oath of affirmation before the authority as may be specified: Provided that such person so co-opted shall have to be elected within six months from the date of his co-option in regard to that office against a suitable casual vacancy of that body: Provided further that the person so co-opted shall have the powers and obligations of an ordinary member." 6. IT is clear from the aforesaid Section that provision has been made for filling up amongst others the office of Pradhan or Upa-Pradhan of Gram Panchayat by the elected candidate belonging to reserved category. In case of non-availability non elected candidate from that category may be co-opted. There may be diverse situations and circumstances where either reserved candidate may not be available to contest election nor is elected in the election of Gram Panchayat. Keeping in view the above situation to fulfil the object of reservation of Scheduled Castes and Scheduled Tribes etc category the provision for co-option has been made by the legislature to facilitate the process of filling up the office of Pradhan from the reserved category by co-option as above. In our view provision of section 20 of the said Act be made applicable in case of non-availability of the elected persons of reserved category for filling up of the Office of Pradhan or Upa-Pradhan. To put it differently section 20 of the said Act has no application when an elected candidate in reserved category is available. In the context of above discussion the impugned Memorandum is now to be examined. The same is for the sake of convenience is set out below: "ENGLISH TRANSLATION Govt. of West Bengal. Panchayat and Rural Development Department Jessop Building (2nd Floor) 63, N-S. Road, Kolkata-700001. Memo No. 2456/PN/O/1/1E-9/2003 Dated 10.06.2008. From: Dr. Manabendra Roy Principal Secretary, West Bengal Govt. To: District Panchayat Election Officer and District Magistrate. The same is for the sake of convenience is set out below: "ENGLISH TRANSLATION Govt. of West Bengal. Panchayat and Rural Development Department Jessop Building (2nd Floor) 63, N-S. Road, Kolkata-700001. Memo No. 2456/PN/O/1/1E-9/2003 Dated 10.06.2008. From: Dr. Manabendra Roy Principal Secretary, West Bengal Govt. To: District Panchayat Election Officer and District Magistrate. Subject: Explanation and procedure of Application of section 20 of West Bengal Panchayat Elections Act, 2003. Sir, After the General Panchayat Election in 17 districts of this State the matter of conducting First meeting and Election of Office bearers have been dealt with in details in Memo No.2238/P-N/0/One/One E-9/2003 dated 27.05.2008. After that quite good numbers of problems in relation to the election of office bearers from various districts have been pointed out. All those mainly relate to the Reservation of the Post and insufficiency of eligible person for the reserved post of a particular class. For solving those problems, by explaining section 20 of West Bengal Panchayat Elections Act, 2003, clear direction is given below regarding the procedure of application of the same:- 1. In the Election held recently if any political party gets absolute majority (more than half of the total numbers) in any Gram Panchayat, Panchayat Samity and Zila Parishad but no member belonging to the particular class for which the post has been reserved for the post of Pradhan/Sabhapati/Sabhadhipati respectively for the said Gram Panchayat, Panchayat Samity or Zilla Parishad is elected for the said political party in that case the said political party can co-opt any person belonging to the said particular class under section 20 of West Bengal Panchayat Elections Act, 2003. Pg.-2 If any elected member from such political party from which one or more than one member has been elected in that Panchayat or any elected independent members belongs to the class eligible for the said reserved post in that case also the party having absolute majority will be able to co- opt the member eligible for the election to the reserved post for any particular class. The procedure of application of co-option is being explained.- (A) The said person must have the qualification to become a candidate under sections 4, 5 and 6 of West Bengal Panchayat Elections Act and the said person shall have no disqualification under section 7 of the said Act. The procedure of application of co-option is being explained.- (A) The said person must have the qualification to become a candidate under sections 4, 5 and 6 of West Bengal Panchayat Elections Act and the said person shall have no disqualification under section 7 of the said Act. (B) The name of the person, the name of his father/mother/husband and address along with the part number serial no. of the voter list, of the Gram Panchayat which contains the name of the said person, proposed by two third majority of the total members elected with the symbol of the political party which has got absolute majority (more than half of the total members) shall have to be submitted before 3 days of the First meeting of the said Panchayat to the Block Development Officer in case of Gram Panchayat, to S.D.O. in case of Panchayat Samity and District Magistrate in case of Zilla Parishad. (C) The Block Development Officer or Sub-divisional Officer or District Magistrate (as the case may be) by giving consent after considering the eligibility of the said proposed person will send to the concerned Panchayat, the date of the first meeting through the nominated presiding Officer. The Presiding Officer will bring to the knowledge of all the members the resolution adopted on the day of the first meeting and will make arrangement for the oath of the co-opted member with other members. (D) The membership of the said co-opted member will be governed under section 20 of the aforesaid Act. He will enjoy the power like an ordinary member and will perform his responsibility. However he will have to be elected positively from any vacant post of the concerned Gram Panchayat or Panchayat Samity or Zilla Parishad within six months from the date of the First meeting otherwise his membership will be cancelled. 2. If any Panchayat no political party gets absolute majority in that case the members belonging to the particular class for which the post of Pradhan or Sabhapati or Sabhadhipati is reserved who has been elected from reserved or unreserved seat (he may belong to any political party or may be independent) will be elected to the concerned post as per West Bengal Panchayat Formation Rules. In this case there is no scope of co- option. 3. In this case there is no scope of co- option. 3. If in any Panchayat no political party gets absolute majority and no meiriber is eligible to be elected in the specified reserved post for Pradhan or Sabhapati or Sabhadhipati is elected from any reserved or unreserved seat in that case the election to the post of Pradhan or Sabhapati or Sabhadhipati will remain suspended for the time being. In the first meeting the election of Upa-Pradhan or Sahakari Sabhapati or Sahakari Sabhadhipati (as the case may be) will be held and he will exercise the power and perform the responsibility of the Pradhan or Sabhapati or Sabhadhipati temporarily. However, if in any post fallen vacant suddenly any member belonging to the said class is elected then he may be appointed to the post of Pradhan or Sabhapati or Sabhadhipati. 4. If the post of Upa-Pradhan/Sahakari SabhapatilSahakari Sabhadhipati or respectively Gram Panchayat or Panchayat Samity or Zilla Parishad remains reserved for any particular class then the process has to be completed in the same manner as per the situation stated earlier. 5. If in the election, of the office bearer of a Gram Panchayat or Panchayat Samity or Zilla Parishad more than one candidate gets equal number of votes then the Presiding Officer will complete the election procedure by lottery. The Presiding Officer will decide as to how the lottery will be held. IT is necessary to mention here that although more than one party from coalition at the time of election of office bearer as per section 20 of West Bengal Panchayat the coalition of parties will take part in the election of the office bearer, as a single party with the election symbol of (illegible). The candidate who will get maximum votes will be the winner. The members including the independent members) who will vote against the winning candidate or the member who will refrain from voting, will be treated as opposition members and the political party or parties to whom they will belong will be called opposition party. Kindly inform the political parties of your District (National Party or State Party) soon about the aforesaid explanation and procedure of application. Kindly inform the political parties of your District (National Party or State Party) soon about the aforesaid explanation and procedure of application. Yours faithfully, Sd/- Manabendra Nath Roy 10/06/08 Principal Secretary West Bengal Govt." Upon plain reading of the said Memorandum it emerges the following features: It has been issued by the Principal Secretary West Bengal Government to the District Panchayat Election Officer and District Magistrate purporting to explain the procedure of application of section 20 of the said Act. 7. BUT this Memorandum has not been issued in the name of the Governor to hold it as being executive action under Article 162 of the Constitution of India. Reading the text of the said memorandum it appears to us that applicability of the procedure of the said section 20 of the said Act has been laid down in case where a particular political party gets absolute majority in any Gram Panchayat without having any candidate being elected from reserved category, of its own party the said majority party has been enabled to co-opt notwithstanding availability of any elected candidate belonging to the reserved category who is not a member of the majority party. 8. MR. Chakraborty contends that the aforesaid memorandum is Constitutionally valid as the Government with its executive power under Article 162 of the Constitution of India has issued this memo in order to remove impasse for constitution of Gram Panchayat and to fill up the Office of the Pradhan from the reserved category. We think this submission has got no force and we express our inability to accept the same for the following reasons: It is true by virtue of Article 162 of the Constitution executive power can be issued co-extensively with the legislative power of the State. In order to hold a particular decision being valid exercise of power tests laid down under Article 166 has to be satisfied. Article 166 reads as follows: "Article 166. Conduct of business of the Government of a State- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. In order to hold a particular decision being valid exercise of power tests laid down under Article 166 has to be satisfied. Article 166 reads as follows: "Article 166. Conduct of business of the Government of a State- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (Emphasis supplied) (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. Above provision leaves no manner of doubt constitutionally valid executive action has to be expressly taken in the name of the Governor and any thing short of this, cannot be said to be valid executive action. Therefore provision of Article 162 cannot be read in isolation of the Article 166 and it should be read with Article 166 as in the body of the Constitution there is no contemplation of two provisions of executive power of the State. We have noted from the aforesaid memorandum it is not issued in the name of Governor expressly. Any action under Article 162 in our view must be in the name of Governor expressly not by the Secretary himself in his own name. 9. IN support of our aforesaid views we find a Division Bench judgment of Punjab and Haryana High Court reported in 1969(71) Punjab Law Report 162 as has been annotated in AIR Manual 5th Edition Volume 10 at page 652. 10. 9. IN support of our aforesaid views we find a Division Bench judgment of Punjab and Haryana High Court reported in 1969(71) Punjab Law Report 162 as has been annotated in AIR Manual 5th Edition Volume 10 at page 652. 10. IT has been observed amongst others as follows: "The executive power of the State under Article 162 has to be exercised in accordance with the provision of Article 166 in as much as order passed in exercise of executive power should be expressed to be taken in the name of the Governor and has to be authenticated in such a manner as may be specified in the relevant rules made by the Governor." We therefore held that the aforesaid Memorandum has no force of executive power under the Constitution and it is simple letter from the Principal Secretary to the District Magistrates. According to us the Principal Secretary cannot have any right to write such letter to do anything to touch any statutory provision or to divert its operation aiming at to frustrate the provision. 11. EVEN assuming aforesaid Memorandum is a piece of executive action then we are of the view that executive action cannot be taken always, it can only be taken when there is no legislative action in appropriate field or there has been complete ambiguity in the provision of law to clarify the same. In other words the executive power cannot be exercised in occupied field. The West Bengal Panchayat Act has already been enacted for constitution of local bodies and the said Act provides for making rules for its effective implementation. Moreover the said Act has been enacted and rule has been framed thereunder to provide complete method or mechanism for constitution of Gram Panchayat. It is thus clear that Constitution of Gram Panchayat or for filling up the office of Pradhan or Upa-Pradhan are now occupied field of the legislature. Any exercise aiming at to modify, explain or vary the provision of law can only be done by the competent legislature and legislature alone and according to the procedure laid down thereunder. Separation of power in the Constitution is the basic structure of the Constitution and this concept is no longer debatable issue. Any exercise aiming at to modify, explain or vary the provision of law can only be done by the competent legislature and legislature alone and according to the procedure laid down thereunder. Separation of power in the Constitution is the basic structure of the Constitution and this concept is no longer debatable issue. The executive has been vested power under Article 162 of Constitution of India to take action needed, in the field of legislature, but it must not extend its hand in abuse of power of this Article when legislature is in the field, if done it will tantamount to encroachment of the field of legislature unconstitutionally by the executive. 12. THE learned Single Judge of the Andhra Pradesh High in a case reported in AIR 1980 (AP) 267 discussed the extent of power of executive under Article 162 with reference to the legislative field. In paragraph it is observed amongst other as follows: "It is now well known that the area within which the legislature can make laws. Absent legislation on a topic, the executive Government can govern by means of Administrative directions, provided those directions do not harm or injure the rights of the citizens. It follows therefore, that so long as the legislature has not spoken its mind on the appropriate policy of resumption of lands from the landless poor assignees, the order of executive Government contained in G.O. No Ms Bo. 1142 completely governs, and controls the situation." In the AIR Manual volume 10 at page 663 a decision of Punjab and Haryana (1983 Lab IC (N)C) 50 has been noted and annotated as follows:- "The Government can not amend or supersede a statutory rule by administrative instructions. It can, however, fill in the graps a supplement the Rules where they are silent but cannot issue instructions which are inconsistent with the Rules already framed." 13. IN view of foregoing discussion we are unable to hold the aforesaid Memorandum can be legally valid one as it has been issued in respect of a subject which has already been taken care of by the legislature by the aforesaid two enactments. 14. WE fail to understand why such clarification was at all required to be issued to vary and amend the statutory provision. 14. WE fail to understand why such clarification was at all required to be issued to vary and amend the statutory provision. Nowhere in the West Bengal Panchayat Act, 1973 or the said Act contemplate for formation of Gram Panchayat by any political party by its majority. The Panchayat Act, 1973 has nowhere made provision that Pradhan must be elected from any political party having majority in the number of members. Nowhere in the West Bengal Panchayat Act, 1973 or the said Act contemplate for formation of Gram Panchayat by any political party by its majority. The Panchayat Act, 1973 has nowhere made provision that Pradhan must be elected from any political party having majority in the number of members. Section 9 of the Panchayat Act, 1973 has been provided for filling up of the office of Pradhan and Upa-Pradhan and the said provision is set out hereunder: (1) "Every Gram Panchayat shall, at its first meeting at which a quorum is present, elect, in the prescribed manner, on e of its members to be the Pradhan and another member to be the Upa-Pradhan of the Gram Panchayat: [Provided that the members referred to in clause (ii) of sub-section (2A) of section 4 [shall neither participate in nor be eligible for such election: [Provided further than subject to such rules as may be made in this behalf by the State Government, a member shall not be eligible: for such election unless he declares in writing that on being elected, he shall be a whole time functionary of his office and that during the period for which he holds or is due to hold such office, he shall not hold any office of profit unless he has obtained leave of absence from his place of employment or shall not carry on or be associated with any business, profession or calling in such manner that shall or is likely to interfere with due exercise of his powers, performance of his functions or due discharge of his duties:] [Provided also] that subject to such rules as may be made by the State Government in this behalf, the offices of the Pradhan and the Upa-Pradhan shall be reserved for the Scheduled Castes and the Scheduled Tribes in such manner that the number of offices so reserved at the time of any general election shall bear, as nearly as may be, the same proportion to the total number of such offices within a district as the population of the Scheduled Castes or the Scheduled Tribes, as the case may be, in all the Blocks within such district taken together bears with the total population in the same area, and such offices shall be subject to allocation by rotation in the manner prescribed: Provided also that the offices of the Pradhan and the Upa-Pradhan in any Gram Panchayat having the Scheduled Castes or the Scheduled Tribes population, as the case may be, constitution not more than five per cent of the total population in the Gram, shall not be considered for allocation by rotation: Provided also that in the event of the number of Gram having the Scheduled Castes or the Scheduled Tribes population constitution more than five per cent of the total population, falling short of the number of the offices of the Pradhan and the Upa-Pradhan required for reservation in the district, the State Election Commissioner may, by order, include, for the purpose of reservation, other such offices of the Pradhan and the Upa-Pradhan beginning from the Gram having higher proportion of the Scheduled Castes or the Scheduled Tribes, as the case may be, until the total number of seats required for reservation is obtained:] [Provided also that in a district, determination of the offices of the Pradhan reserved for the Scheduled Castes, the Scheduled Tribes and women shall precede such determination of the offices of the Upa-Pradhan: Provided also that if, for any term of election (hereinafter referred to in this proviso as the said term of election), the office of the Pradhan in a Gram Panchayat is reserved for any category of persons in accordance with the rules in force, the office of the Upa-Pradhan in that Gram Panchayat shall not be reserved for the said term of election for any category, and if, in accordance with the rules applicable to the office of the Upa-Pradhan, such office is required to be reserved for the said term of election, such reservation for the same category shall be made in another office of the Upa-Pradhan within the district in the manner prescribed, keeping the total number of offices so reserved for the said term of election equal to the number of such offices required to be reserved in accordance with the rules in force: Provided also that when in any term of election, an office of the Upa-Pradhan is not reserved on the ground that the corresponding office of the Pradhan is reserved in the manner prescribed, such office of the Upa-Pradhan not reserved on the ground as aforesaid, shall be eligible for consideration for reservation during the next term of election in the manner prescribed:] [Provided also that not less than one-third of the total number of the offices-of the Pradhan and the Upa-Pradhan reserved for the Scheduled Castes and the Scheduled Tribes, shall be reserved by rotation for the women belonging to the Scheduled Castes or the Scheduled Tribes, as the case may be; Provided also that not less than one-third of the total number of offices of the Pradhan and the Upa-Pradhan in a district including the offices reserved for the Scheduled Castes and the Scheduled Tribes, shall be reserved for the women, and the offices so reserved shall be determined by rotation in such manner as may be prescribed: Provided also, that notwithstanding anything contained in the foregoing provisions of this sub-section or elsewhere in this Act, the principle of rotation for the purpose of reservation of offices under this sub-section shall commence from the first general elections to be held after the coming into force of section 8 of the West Bengal Panchayat (Amendment) Act, 1994 (West Bengal Act XVIII of 1994), and the roaster for reservation by rotation shall continue for every three successive terms for the complete rotation unless the State Election Commissioner, for reasons to be recorded in writing and by notification, directs fresh commencement of the rotation at any stage excluding one or more terms from the operation of the rotation: Provided also that no member of the Scheduled Castes or the Scheduled Tribes and no woman, for whom the offices are reserved under this sub-section, shall, if eligible for the office of the Pradhan or the Upa- Pradhan, be disqualified for election to an office not so reserved: Provided also that the provisions for reservation of the offices of the Pradhan and the Upa-Pradhan for the Scheduled Castes and the Scheduled Tribes shall cease to have effect on the expiry of the period specified in Article 334 of the Constitution of India.] (2) The meeting to be held under sub-section (1) shall be convened by the prescribed authority in the prescribed manner." Thus it appears from the said section nowhere it contemplates the concept of majority. In practice such concept of majority may be relevant practice, howsoever is practical and logical cannot be allowed to be perpetuated to defeat express provision of law. We are of the considered view what is not in the Act cannot be brought in by the bureaucratic action aiming at to add or vary provisions of enactment. Section 20 of the said Act can be brought into action only in case of non-availability of the elected member from the reserved category. We are of the opinion it is the right of elected candidate belonging to reserved category to fill up the office of the Pradhan or Upa-Pradhan irrespective of party affiliation. According to us after election is over the identity of the political party will not be a reckoning factor at all as neither in the Constitution nor in the said Act there is any recognition or mention of any political party. Once a candidate is elected backed by any political party he becomes the member to represent all the electors in the particular segment, he thenceforth is not the representative of any political party nor the member of electors who cast votes in his favour and that is why there is no mention in the Constitution of identity and/or existence of political party. Only it is mentioned in the Representation of the Peoples Act, 1958 to facilitate democratic process. A political party having majority no doubt dominates to fill up the office for which election is held in practice. But it has no recognition under law. 15. THE said Memorandum no doubt has spelt out what is not mentioned in section 20. In other words applicability of the said section 20 has been made nugatory and infructuous by the aforesaid Memorandum. We are of the view that Government action cannot supersede the statutory provision. 16. UNDER those circumstances we are of the view that the learned Trial Judge has observed correctly the position of the law vis-a-vis the said Memorandum and section 20 of the said Act. Unfortunately in spite of having noted the aforesaid legal proposition His Lordship dismissed the writ petition and has not granted relief as prayed for. Accordingly we hold that the said Memorandum issued on 10th June, 2008 is not only ultra vires of the Constitution of India but also the West Bengal Panchayat Act 1973 and section 20 of the said Act. Accordingly we hold that the said Memorandum issued on 10th June, 2008 is not only ultra vires of the Constitution of India but also the West Bengal Panchayat Act 1973 and section 20 of the said Act. We allow the appeal and set aside and quash the same. The interim order passed earlier by the Division Bench now stands confirmed. There will be no order as to cost.