BISHWANATH PD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(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.