Calcutta High Court (Appellete Side)
Rasheda Bibi vs The State Of West Bengal & Ors on 4 July, 2017
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
017
W.P. 12582(W) of 2017
Rasheda Bibi
Vs.
The State of West Bengal & Ors.
Mr. Robiul Islam,
Mr. S.D. Mahapatra
... For the Petitioner.
Mr. Swapan Kumar Dutta, ld. Sr. Adv.,
Mr. Vivakananda Tripati
... For the State.
The petitioner files the present writ petition for a direction upon the respondent
authority, particularly the District Magistrate, Murshidabad, the respondent no.4 to take step against the illegal selection of Rekha Bibi, the private respondent no.7.
Mr. Robiul Islam, learned advocate for the petitioner submits that the election for the post of Sabhapati of Domkal Panchayat Samity, Murshidabad was held on 3rd November, 2016. The private respondent no.7 was elected under the General Caste Category. Thereafter on the selfsame date i.e. on 3rd November, 2016 she was selected by the elected members of the said Panchayat Saamity as Sabhapati. He draws my attention to Section 98 of the West Bengal Panchayat Act, 1973. The relevant portion of Section 98 is quoted below:-
"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 Sabhapati in a Panchayat Samiti is reserved for any category of persons in terms of the rules in force, the office of the Sahakari Sabhapati in that Panchayat Samiti 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 Sahakari Sabhapati, 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 Sahakari Sabhapati 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:"
He submits that the said post of Sabhapati is reserved for OBC category but, the private respondent no.7 has been elected under General Caste Category. Therefore, she cannot be selected for the post of Sabhapati, which is reserved for OBC category. He further submits that the private respondent no.7 has already taken so many policy decisions against the interest of the public of that area. She has already siphoned off huge fund which has been 2 granted by the Central Government for betterment and upliftment of the concerned Panchayat area. He prays that the Hon'ble Court should set aside the selection of the private respondent no.7 as Sabhapati of Domkal Panchayat Samity.
Mr. Swapan Kumar Dutta, learned senior advocate for the State submits that no such complaint for defalcation of fund by the private respondent no.7 has ever been lodged by the petitioner before any competent authority. He submits that it is not clear from the writ petition that the said post is reserved for Scheduled Caste category.
Considering the submissions advanced by the learned advocates for the parties and after perusing the record and the relevant section, in my considered view, the said post of Sabhapati is reserved for Scheduled Caste and Scheduled Tribe and Other Backward Class candidates. It is clear that the private respondent no.7 does not belong under Scheduled Tribe and Scheduled Caste category. She belongs to General Caste category. Though she was elected but cannot be selected for the post of Sabhapati of Dompkal Panchayat Samity. Considering the submissions as advanced by the parties this court on last occasion directed the respondent authorities to file a report in the form of an affidavit thereby explaining how and in what manner the private respondent No.7 being a general caste category has been selected for the post of Sabhapati of Domkal Panchayat Samity, Murshidabad though the said post is reserved for scheduled caste and scheduled tribe and other back ward class category. On last occasion this court also restrained the private respondent No.7 from taking any major financial policy decision till the disposal of the writ petition. On last occasion Mr. Dutta, learned senior Advocate appearing for the State authority submitted a report in the form of an affidavit.
Mr. Islam, learned Advocate appearing for the petitioner prayed for some time to file exception. Such prayer was allowed. Unfortunately, today when the 3 matter was called on Mr. Islam failed to file any exception against the report. Mr. Islam submits that since question of point of law is involved, therefore, his client does not want to file any exception against that report. Therefore, this court directs Mr. Dutta to proceed with his argument on the basis of the report. Mr. Dutta, learned Advocate appearing for the State authority draw my attention to the Memo dated 25th September, 2013 (appears at page 5 of the report). Mr. Dutta further emphasises that when a post is reserved for the scheduled caste and scheduled tribe categories then even a member selected from a general caste category having scheduled caste/scheduled tribe/OBC category certificate, she/he can be selected for the said post reserved for such categories. Mr. Dutta further contends that it is not necessary for a candidate to be selected under reserved category to enjoy the said seat reserved for such category.
Per contra, Mr. Islam, learned Advocate appearing for the petitioner submits that Sections 94 and 98 of the West Bengal Panchayat Act, 1973 prescribes otherwise. He further contends that it is crystal clear from Section 98 of the said Act that the post which is reserved for OBC category and the person who has contested on behalf of the OBC category, such person should be elected for the said reserved OBC category post and no other person who has contested the election from the general category having OBC certificate could claim to be selected for the said post reserved for OBC category.
Considering the submissions as advanced by the learned Advocate appearing for the parties and after perusing the records as well as the relevant Sections and 4 the circular dated 25th September, 2013, in my opinion since the post is reserved for the OBC category and the petitioner contested under OBC category and subsequently elected, then she should be selected for the post reserved for OBC category. But in the present case though the respondent NO.7 having OBC category certificate but it is evident from the record that she contested the said post under general caste category and she also was subsequently elected but at the time of selection for the said post of Savapati which is reserved for OBC category she was selected thereby depriving the petitioner along with other members who have been elected under OBC category. I cannot find any reason to elect the respondent No.7 for the said post of Savapati though admittedly she contested under general caste category. This arrangement casts some doubt in the mind of the court. Be that as it may, in my considered view I find no force in the argument of Mr. Dutta. On the contrary, I find some substance in the argument of Mr. Islam, learned Advocate appearing for the petitioner. The court cannot ignore the fact, subsequent circular cannot override the Act itself unless the Act is amended. Therefore, in the backdrop of the above discussions, in my view the respondent No.7 cannot be allowed to enjoy the post of Savapati. Accordingly, the selection of the respondent No.7 to the post of Savapati under OBC category is hereby quashed and set aside. Resultantly, the respondent No.7 is removed from the said post. I direct the respondent No.5, the Sub-Divisional Officer, Domkal Sub-Division, P.O. & P.S. Domkal, District: Murshidabad to take steps for selection and to fill up the post of Savapati from the reserved OBC category candidates who have been elected under OBC category. Such exercise 5 shall be completed within four weeks from the date of communication of this order. Till the selection of the Savapati, the respondent No.6, the Block Development Officer, Domkal Block, District: Murshidabad is directed to take the charge of the Savapati of the concerned Panchayat Samity.
With these directions, the writ petition is disposed of.
There will be no order as to costs.
Let urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Samapti Chatterjee, J. ) s