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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 Election Act, 2003. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1. In the Election held recently if any political party gets absolute majority (more that half of the total numbers) in any Gram Panchayat, Panchayat Samity and Zilla 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 belong to the said particular class under Section 20 of West Bengal Panchayat Election Act, 2003.

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 5 and 6 of the West Bengal Panchayat Election Act and the said person shall have no disqualification under Section 7 of the said Act."

On a bare reading of the said Section 20 as quoted and the clarification by the Principal Secretary of the State issuing a Circular Letter dated 10th June, 2008, there is no iota of doubt that under the camouflage of the word "clarification" practically the Section 20 was intended to be amended by adding new words, letters and sentences. Hence, the question involved herein is whether the Principal Secretary under the garb of clarification may tamper or amend or modify the provision of Section 20. It appears that Section 20 and more particularly the provision of co-option of any non-elected member either in the Gram Panchayat or Panchayat Samity or in the Zilla Parishad will come into play when and only when the condition precedent of applicability of the said Section would be fulfilled, namely, "in case of non-availability of persons of reserved category" which means that in the event there is no elected representative of the reserved category in that particular Gram Panchayat or Panchayat Samity or in the Zilla Parishad, any outsider non-elected member could be co-opted to fill up the office of Pradhan, Upa-Pradhan, Sabhapati, Sahakari Sabhapati and Sabhadipati as the case may be so reserved. But by the said Circular Letter dated 10th June, 2008 a completely opposite thing has been asserted by the Principal Secretary in the name of clarification of said Section 20 whereby and whereunder it is provided that when any political party will get absolute majority in any Gram Panchayat, Panchayat Samity or in the Zilla Parishad but there was no member belonging to that particular class for which the post was reserved for the office of Pradhan/Sabhapati/ Sabhadipati respectively for the concerned gram panchayat, Panchayat Samity and in the Zilla Parishad, as the case may be, elected from the said political party, then the said political party can co-opt any person belonging to the said particular class under Section 20 of the said West Bengal Panchayat Elections Act, 2003. Hence, it appears that the foreign words which were not present in the statute in Section 20 as quoted above namely, the power of a political party to select a candidate for co-option in the event of securing the majority number of candidates in the aforesaid gram panchayat, Panchayat Samity and in the Zilla Parishad as the case may be, has been incorporated by the Circular Letter which is as per our reading is nothing but amendment of section 20.