1. The petitioner is a resident of village Maharajpur in Union Daulatabad, Police Station Berhampore, district Murshidabad. In an election of the Daulatabad Union Board held on the 22nd, February 1953, 9 members including the petitioner were elected. One of the persons elected was opposite party No. 3, Md. Saraftulla Sirkar of village Ruhia. It appears that for the last 12 or 13 years, opposite party No. 3 has been in Government service & is even now employed in Government service as Union Agricultural Assistant of Paharpur Union in Lalbagh Sub-Division of the district of Murshidabad. He is a Government servant working under the Director of Agriculture, Government or West Bengal. Under the Bengal Village Self-Govornment Act 1919, Section 7, every person of full age of 21 years and having a place of residence within the union who satisfies certain condition and qualification laid down therein is entitled to vote and to be elected a member of the Union Board if he is a resident within the Union. The Government Servants Conduct Rules 1926, were promulgated under Section 96-B of the Government of India Act, 1919. It is not denied that the opposite party No. 3 is a wholetime 'Government servant' as defined by these Rules. Under Article 372 of the Constitution, these Rules have been adopted by the President by an Adaptation Order, to conform to the Constitution. Rule 23 of the said Rules (as adapted) contains a prohibition upon a 'Government servant' from taking part in certain proceedings. The original Rule 23 was amended by notification No. 3304F/P/1R/17/51 dated the 6th November 1951. This amendment was effected in exercise of the powers conferred by Article 309 of the Constitution read with Articles 313 and 372 of the Constitution and paragraph 19 of the Adaptation of Laws Order 1950 as subsequently amended. Under this amendment, Rule 23 Sub-rule 2 of the Rules stands as follows:
'A whole-time Government servant shall not canvass or otherwise interfere or use his influence in connection with, or take part in, any election to a legislative body, Municipal Committee, District Board, or other local body whether in India or elsewhere :
Provided that a Government servant who isqualified to vote at such election may exercisehis right to vote, but if he does so, shall giveno indication of the manner in which he pro-poses to vote or has voted.'
2. This Rule is doubtlessly based on principles of public morality and clearly precluded the opposite party. No. 3 from taking part in the election of the Union Board held on the 22nd February 1953. The immediate problem that has arisen is that after the election of the members of the Union Board, a stage has now come for a President to be elected and the Presidential election was fixed to be held on the 18th May. It is argued that if the opposite party No. 3 is allowed to take part in the presidential election, the election of the president will be vitiated. The petitioner therefore asks that the election of opposite party No. 3 should be set aside and the presidential election stayed, until the election of a member in place of opposite party No. 3. I might here mention that it is stated in the petition that on or about the 11th April 1953 the petitioner made an application to the District Magistrate, inter alia, stating that the election of the opposite party No. 3 may be declared void but the District Magistrate has not taken any notice of it and has not even cared to reply.
3. In the present application the opposite party No. 3 has appeared and the learned Government Pleader has appeared for the opposite parties Nos. 1 and 2. The position taken up on behalf of the opposite parties Nos. 1 and 2 is that the opposite party No. 3 was and is a Government servant and therefore clearly ineligible for standing in the election. It is stated that he did so by suppressing the fact that he was a Government servant. It is further said that departmental steps are being taken against the opposite party No. 3. Mr. Sen appears on behalf of opposite party No. 3 and argues as follows. He says that the Rules which are known as the 'Government Servants Conduct Rules 1926', have been promulgated under Section 96B of the Government of India Act, but that has not taken away the validity of other legislation on the subject. He further argues that these Rules have no more effect than departmental rules and they cannot prevail against a statute which is passed by a competent legislature. According to him, his client is perfectly eligible to stand as a member of the Union Board under Section 7 of the Bengal Village Self-Government Act. He admits that the Ruleslay down that no Government servant could be allowed to stand or take part in an election in connection with a local body but he argues that the only effect of it was that if there was a violation of those Rules, his client could be dismissed from the service of the Government but the election cannot be vitiated.
I am afraid I am unable to accept this argument. It is true that where there is a conflict between a Statute and what may be called mere departmental rules, the Statute must prevail. For example, if a private institution was to make a rule that its members or employees would not be allowed to take part in an election, the only effect of it will be, in case of a violation of the rules, to precipitate departmental proceedings against the offending member or employee but the election cannot be vitiated. But where a valid law Imposes a disqualification, such disqualification must be taken into account in the conduct of the election itself. Or in other words, where a person is disqualified by any existing law; or rules having the force of law, to stand at an election; he is wholly debarred from standing in such an election, even if the law or rules applicable to that particular election does not make him ineligible. It is not possible to consider him eligible from one point of view but ineligible from the other and keep them separated in water-tight compartments. To take an example; Under Section 7, any adult member residing in the Union who satisfies certain conditions can vote and be elected as member. There is nothing in Section 7 to prevent a person, who is insane but who otherwise satisfies the conditions laid down therein, to either vote or be elected. It is however not possible to argue that an insane person could be allowed to vote or be elected as a member of the union Board. This shows that in considering whether a person is to be allowed to enjoy a particular legal right, we cannot exclude his dis-qualifications. These Rules known as the 'Government Servants Conduct Rules 1926' (as adapted under the Constitution) have the force of law and therefore a Government servant who is disqualified under it cannot be said to be otherwise qualified to take part in an election, simply because he conforms to the provisions of the law or Rules regarding that particular election. The result is that the election of respondent No. 3 to the membership of the Union Board is absolutely void.
4. Mr. Sen next argues that in such an event, the petitioner has the right to prefer an election petition before the District Magistrate under Section 17B of the Bengal Village Self-Government Act. It is true that there is such a right, but in view of the fact that an application has already been made before the District Magistrate, of which he has not taken any notice, I do not think that I should be justified in postponing the matter and allowing the Union Board to function with a member whose election is clearly invalid, such a course in the present circumstances would give rise to a great deal of complication as the Board will be functioning with a member not properly elected. It is not desirable that the wrong person should function in a public body or in the administration thereof for a minute longer than can be helped and specially as the disqualification of opposite party No. 3 rests on the principle of public morality. In the present case no material question of fact is disputed and it is merely a question of law and I do not see that any benefit to the parties could result from my adjourning this matter until the election petition is disposed of.
5. The next question to be considered is as to what should be done with the Presidential election. It is argued that as long as there is a quorum, the Presidential election can go on and the invalidity of the election of any particular member does not vitiate any such proceeding (Section 13 of the Village Self-Government Act). It is not necessary for me to express any opinion on that matter.
6. The result is that this Rule is made absolute. The election of opposite party No. 3 Saraftulla Sarkar alias Md. Saraftulla Sarkar, respondent No. 3, to the membership of the Union Board of Daulatabad is set aside. He is also restrained from acting as such member. As regards the presidential election, I do not say anything excepting dissolving the interim injunction. If the remaining members think that it is possible to go on with such an election, they will hold it but the opposite party No. 3 will not be entitled to take part in any such proceeding. It will be for the Government to take steps for the election of a member in place and stead of respondent No. 3 but that is a matter in which it is not necessary for me to give any directions. It has been pointed out on behalf of respondent No. 3 that the fact of his being employed by Government was known to the petitioner for a considerable period of time. Upon a consideration of all the facts in this case I make no order as to costs.