Patna High Court
Bishwanath Pd. Singh vs The State Of Bihar And Ors. on 6 August, 1970
Equivalent citations: AIR1971PAT310, AIR 1971 PATNA 310
JUDGMENT U.N. Sinha, J.
1. This application has been filed by the petitioner under Articles 226 and 227 of the Constitution of India, praying that an order passed by the Sub-divisional Officer, Sasaram, dated the 14th April, 1970, rejecting the nomination paper of the petitioner for his candidature of Mukhiya of Kaki Dumri Gram Panchayat in the district of Shahabad under the Bihar Panchayat Raj Act, 1947 (Bihar Act 7 of 1948) be quashed. A copy of the order of the Sub-divisional Officer, Sasaram has been incorporated in Annexure 4. The petitioner's nomination paper had been accepted by the Election Officer by order dated the 4th April, 1970 and a copy of this order has been incorported in Annexure 1. The petitioner's nomination paper was rejected by the Sub-divisional Officer on the ground that he was disqualified under Section 79 (1)
(b) of the Bihar Panchayat Raj Act. 1947 (hereinafter to be called the Act), as he was in the service of the Central Government. At that time the petitioner was working as a Post Master of Dumri under Chenari Sub Post Office. The writ case is being contested by respondent No. 5, who was another candidate for the Mukhiyaship.
2. The petitioner's case is that he was an extra departmental agent from 1960, working in the post office at Dumri under Chenari Sub Post Office, and as extra departmental agents receive honorarium only and not regular pay from the Government, his nomination paper was wrongly rejected. It appears from the order of the Election Officer, mentioned above, that his view was that the petitioner was not in regular service of the Government and, therefore, he was not disqualified for the election in question.
3. According to the counter affidavit filed by respondent No. 5, the petitioner was an employee of the Central Government and, therefore, he was disqualified under Section 79 (1) (b) of the Act. It now appears that this point does not require consideration in this case, in view of another circumstance, which may be stated as follows: There is a proviso to Section 79 (1) (b) of the Act which states that in cases of disqualification falling under Clause (b) of Section 79 (1) of the Act, the disqualification may be removed by a General or special order of the Government in this behalf. The expression "Government" has been defined in the Act as the Government of Bihar, In paragraph 9 of the writ application it has been stated that the Government of Bihar by a notification dated the 23rd February, 1960, published in the Bihar Gazette, Part II, page 1537. on the 20th April, 1960 had declared that extra departmental agents working in post offices were not disqualified for election, nomination or appointment to gram Panchayats. In a counter affidavit filed on behalf of the Sub-divisional Officer, Sasaram, respondent No. 2, it has been stated that the notification in question had not been produced before the Sub-divisional Officer, Sasaram and presumably for this reason, the petitioner had been disqualified. On this point respondent No. 5 has taken the following stand in the counter affidavit filed on his behalf. It is alleged that the notification of the Government of Bihar is contrary to Rule 18(4) of the Posts and Telegraph Extra Departmental Agents (Conduct and Service) Rules. 1964. According to this respondent, the explanation given by the Director General o£ Posts and Telegraphs, incorporated in Annexure A of the counter affidavit supports this contention.
4. Rule 18 (4) of the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 reads as follows:--
"18 ... ... ... ... ... ... ... ...
(4) No employee shall canvass or otherwise interfere or use his influence in connection with or take part in, an election to any Legislative or local authority:
Provided that-
(i) an employee qualified to vote at such election may exercise his right to vote but where he does so, he shall give no indication of the manner in which he proposes to vote or has voted,
(ii) an employee shall not be deemed to have contravened the provisions of this rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force."
The relevant portion of Annexure A runs thus:--
"Sub:-- Extra Departmental Agents -- Appointment of Mukhiya and Sarpanchas of Village Panchayats etc. A question has been raised whether Mukhias and Sarpanchas of Village Panchayats etc. can be appointed as Extra Departmental Agents.
In this connection attention is invited to Rule 18 of P. & T. Extra Departmental Agents (Conduct and Service) Rules 1964, which in clear terms, lays down that no extra Departmental Agents shall be a member of, or be otherwise associated with any political party or any organisation in aid of or assist In any other manner any political movement or activity.
The position as will be seen from the preceding paragraph is very clear and there should hardly be person holding an elective office to be considered for the appointment of Extra Departmental Agents, as such an office clearly means that he is associated with local politics."
Having heard the learned counsel for the petitioner and learned counsel for respondents Nos. 2 and 5, I am of the opinion, that, in view of the Government of Bihar's notification dated the 23rd February, 1960. a copy of which was produced in Court, the petitioner was wrongly disqualified by the Sub-divisional officer, Sasaram. The arguments of learned counsel for respondent No. 5 in support of his client's counter affidavit are not valid. Rule 18(4), quoted above, can only refer to the service conditions between an employer and an employee, even if it be assumed that taking part in an election to a local authority includes a candidature thereof. Annexure A may clarify the stand of an employer with respect to extra departmental agents, but neither Rule 18(4) nor the direction given in Annexure A can affect the legislative competency so far as the proviso to Section 79 (1) (b) of the Act is concerned. Learned counsel for respondent No. 5 has referred to Item No. 31 of List I and Item No. 5 of List II of the Seventh Schedule of the Constitution of India and to Section 74 of the Indian Post Office Act, 1898 (Central Act No. VI of 1898) and has contended that the proviso to Section 79 (1) (b) of the Act, removing certain disqualifications was unconstitutional.
It is contended that the proviso in question is in conflict with Section 74 of the Indian Post Office Act. under which the Rules referred to above have been framed. I am not at all sure that these Rules were framed under Section 74 of the Indian Post Office Act. But, in any event, the argument of the learned counsel in this context cannot be accepted. The State Legislature obtained its competence to enact Section 79 of the Act under Item No. 5 of List II of the Seventh Schedule of the Constitution and there does not appear to be any such conflict as is contended for. According to learned counsel for respondent No. 5, the State Legislature was competent to enact Section 79 (1) (b) of the Act, whereas it could not enact the proviso under consideration, removing disqualification of persons holding service under the Central Government. In my opinion, this argument has been rightly refuted by Sri Shreenath Singh appearing for the State of Bihar when he argued that the State Legislature need not necessarily have incorporated the disqualification in Section 79 (1) (b) at all. and if it could, it could also remove the disqualification in accordance with the proviso, by which the Government of Bihar can remove the disqualification by a general or special order. It is difficult to accept the argument of learned counsel for respondent No. 5, that, even if no disqualification for employees of the Central Govt. was incorporated in the Act, their nomination papers could be reiected under Rule 18(4} of the Rules, quoted above. The terms of employment, if any, between an employer and an employee cannot bring forward a disqualification for election, nomination or appointment so far as the Act is concerned. Neither the Indian Post Office Act nor the Rules relied upon by learned counsel for respondent No. 5 nor the directions contained in Annexure A refer to any disqualification for election, nomination or appointment as Mukhiya of a Gram Panchayat. Therefore, in my opinion, the Sub-divisional Officer, Sasa-ram was in error in rejecting the petitioner's nomination paper. So far as the petitioner's employment is concerned, there is a reference to the fact in the Sub-divisional Officer's order that he had tendered his resignation on the 1st April, 1970, Learned counsel for the petitioner stated in Court that this resignation has now been accepted and, therefore, even the question of relationship between an employer and an employee is merely academic. However, for the reason that the Government of Bihar had removed the disqualification incorporated in Section 79 (1) (b) of the Act, this application must succeed.
5. Lastly, it has been argued on behalf of respondent No. 5 that under Rules 26 and 72 of the Bihar Panchayat Election Rules, 1959, respondent No. 5 must be held to have been declared elected as Mukhiya of the Gram Panchayat as he was the only candidate left in the field and, therefore, the petitioner was duty bound, to file an election petition calling in question the election. This contention is also not valid. Respondent No. 5 had not been declared elected, and as a matter of fact, by an order passed by this Court on the 27th April, 1970, it was ordered that during the pendency of the writ application the declaration of this respondent as Mukhiya will be stayed. In any event, if the petitioner's nomination paper had been wrongly rejected by the Sub-divisional Officer, Sasaram, for the reasons dealt with above, there is no bar in this writ application being allowed, if the contention raised on behalf of respondent No. 5 based on the invalidity of the relevant proviso to Section 79 (1) (b) of the Act is rejected.
6. The writ application is, therefore, allowed and the order of the Sub-divisional Officer, Sasaram, dated the 14th April, 1970 is set aside, with the result that the election of the Mukhiya of Kaki Dumri Gram Panchayat must now proceed from the stage at which the petitioner's nomination paper had been accepted by the Election Officer by his order dated the 4th April, 1970. In the circumstances of the case, there will be no order for costs of this Court.
Sarwar Ali, J.
7. I agree.