Prabhati Sarkar & Ors vs State Of West Bengal & Ors on 12 February, 2010
In the unreported decision of a Division Bench of this Court in the case of
Musuk Rajak vs. State of West Bengal in A.P.O.T. No.262 of 2008 disposed of on
July 10, 2008, relied upon by Mr. Deb Barman, a notification dated June 10,
2008 issued by the Principal Secretary, Govt. of West Bengal, seeking
clarification of Section 20 of the Act of 2003 was challenged. By the said
notification, a political party having majority of the members was sought to be
invested with the authority to co-opt a person of the reserved category for the
selection of Pradhan if that political party failed to return any successful
candidate of the reserved category and the person elected in the reserved office
was a member of the political party having failed to obtain majority in the body.
Such notification was held to be prima facie illegal for twofold reasons: First, the
law did not authorise the Principal Secretary of the concerned department to
amend the statutory provision enacted by the Legislature and secondly, when
there was already an elected candidate of the reserved category who was
available for the office of the Pradhan, Section 20 of the Act of 2003 did not
permit co-option by any political party simply because the elected member of the
reserved category belonged to the opposition group. We respectfully agree with
15
the view taken by the said Division Bench. We, however, fail to appreciate how
the said decision can be of any help to the appellant. We are concerned here with
a situation where after the removal of the Pradhan, there will be no available
candidate for the office of the Pradhan of the reserved category because, sub-
section (2) of Section 12 as inserted by the West Bengal Panchayat (Amendment)
Act, 2008 bars candidature of such members for election to the office of the
Pradhan and Upa-Pradhan for a period of one year, as indicated earlier, whereas
in that case, immediately after the election, there was an available elected
member of the reserved category and in such a case, she should be elected
automatically as Pradhan once her name is proposed. The said decision rather is
in tune with the view that we have taken in this case and is of no avail to the
appellants.