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Md. Sarafatulla Sarkar Vs. Surja Kumar Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 235 of 1953
Judge
Reported inAIR1955Cal382,59CWN652
ActsGovernment Servants Conduct Rules, 1926 - Rule 23; ;Bengal Village Self-Government Act, 1919 - Section 10A; ;Government of India Act, 1915 - Sections 63E, 80B and 83E; ;Constitution of India - Articles 102 and 191
AppellantMd. Sarafatulla Sarkar
RespondentSurja Kumar Mondal and ors.
Appellant AdvocateNirmal Chandra Sen, Adv.
Respondent AdvocateHemendra Kumar Das, ;Rabindra Narayan Chakravarty and ;Biswanath Bajpayee, Advs.
DispositionAppeal allowed
Excerpt:
- .....as a candidate for election to the union board by sub-rule (2) of rule 23, government servants' conduct rules, 1926, read with sub-rule (3) thereof. upon the application being made, a rule was issued on the appellant and respondents 2 to 10, calling upon them to show cause why the election of the appellant should not be set aside and why a writ in the nature of mandamus should not be issued, directing respondents 2 and 3, that is the district magistrate of murshidabad and the circle officer of north circle in sadar sub-division of the district, to forbear from holding the election of the president of the union board until the election of a lawful member in the place of the appellant.at the final hearing of the rule, it was made absolute. the election of the appellant was set aside and.....
Judgment:

Chakravartti, C.J.

1. This appeal raises a short but important point. Having considered the matter and having heard the learned Advocates, I find myself, with great respect, unable to subscribe to the view taken by the learned trial Judge.

2. The appellant is a resident of village Maharajpur, situated within the jurisdiction of the Doulatabad Union Board. At the elections to the Union Board of that Union held on 22-2-1953, the appellant offered himself as a candidate and was elected. At the same time, eight other candidates also succeeded in the election. At the relevant time, the appellant was holding the post of Union Agricultural Assistant of the Paharpur Union, which, it would seem, is a post under the Director of Agricultural, Government of West Bengal. Itis admitted by all parties that be was a whole-time Government servant

3. After the results of the election had been published, Respondent 1, who was another successful candidate, moved this Court under Article 226 of the Constitution for a Rule on the appellant to show cause why his election should not be set aside. The ground on which that application proceeded was that the appellant was a Government servant and therefore he was disqualified from offering himself as a candidate for election to the Union Board by Sub-rule (2) of Rule 23, Government Servants' Conduct Rules, 1926, read with Sub-rule (3) thereof. Upon the application being made, a Rule was issued on the appellant and respondents 2 to 10, calling upon them to show cause why the election of the appellant should not be set aside and why a writ in the nature of mandamus should not be issued, directing respondents 2 and 3, that is the District Magistrate of Murshidabad and the Circle Officer of North Circle in Sadar Sub-Division of the District, to forbear from holding the election of the President of the Union Board until the election of a lawful member in the place of the appellant.

At the final hearing of the Rule, it was made absolute. The election of the appellant was set aside and he was also restrained from acting as a member of the Union Board. The learned Judge made no order as regards the election of the President.

4. It is against that order that the present appeal was preferred.

5. The view taken by the learned trial Judge, Sinha J., is that the Government Servants' Conduct Rules, 1926, have the force of law and that their effect is to create in the case of Government servants a disqualification for election to the bodies named in the Rule, which include local bodies. The learned Judge considered it immaterial that the holding of a post under the Government had not been mentioned as one of the disqualifications for election in Section 10A, Bengal Village Self-Government Act, 1919, because in his view, the enumeration of disabilities in that section was not exhaustive. The learned Judge instanced the case of a lunatic which had not been mentioned in the section and asked whether, by reason of that omission, a lunatic would be eligible for election as a member of a Union Board. According to the learned Judge, the effect of Rule 23, Government Servants' Conduct Rules was not merely to put a ban on Government servants which they could disregard during the continuance of the service only at their peril, but its effect was to create an absolute ineligibility for election.

6. Mr. Sen, who appears on behalf of the appellant, has submitted that the view taken by the learned Judge of the scope and effect of Rule 23 was not correct. He argued what he appears to have argued before the learned trial Judge as well that the object of the Government Servants' Conduct Rules was limited to the regulation of the conduct of the Government servants as a matter of domestic discipline, but the Rules could not create a disability for which there was no warrant, either in the Constitution or in the relevant statute, namely, the Bengal Village Self-Government Act. In support of his contention, Mr. Sea referred to various provisions of the Government of India Act, 1915-19, the present Constitution ofIndia and the Bengal Village Self-Government Act.

7. As regards the authority under which the Government Servants' Conduct Rules, 1926,' was trained, none of the learned Advocates appearing in the case could give any definite or reliable information. Sinha J., proceeded on the footing, that the original Rules of 1926 had been promulgated under Section 96B of the then Government of India Act, namely, the Act of 1919 and that those Rules had been successively continued in opera-lion, first under the Government of India Act of 1935, and then under Arts. 309, 319 and 372 of the Constitution. They had also been adapted and amended. As we did not find anything in the publications handed up to us to show the origin of the Rules of 1926, we asked the learned- Advocates to inform us on what material the view taken by Sinha J., was based. We were informed, that his Lordship had proceeded on statements made from the Bar. Unfortunately, we have not been placed in a position to see definitely that the Rules were in fact framed or confirmed under Section 96B, Government of India Act, 1919, nor have we been informed in what manner they came to he applicable to members of services held under the Slate Governments.

We expected at least the learned Government-Pleader to be able to throw some light on thepoint, but he frankly confessed that he was unableto do so. As regards the learned Advocates appearing for private parties, they told us that theGovernment Servants' Conduct Rules were not available for purchase and enquiries made by them of the State Government as regards the character andorigin of the Roles had elicited no reply.

8. I need not, however, tarry over that point any longer, because I am prepared to proceed on the assumption that the Government Servants' Conduct Rules were initially framed under the Government of India Act of 1919 and have since then been continued in force in the manner stated by Sinha J. Still, however, I am unable to agree with the learned Judge, with every respect to him, that the effect of Rule 23 of the Rules is to create an ineligibility for election in the case of Government Servants.

9. On the assumption I have made, the scope and object of the Government Servants' Conduct Rules appear to my mind sufficiently from Sub-section (2) of Section 96B, Government of India Act, 1915-19. That sub-section reads as follows:

'The Secretary of State in Council may make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct.'

The rest of the sub-section is not material. It will be noticed that the aim of any Rules which may be framed under the sub-section must necessarily be to provide for the several matters mentioned in the sub-section itself and their scope must be to classify the services, to lay down the methods in which recruitments to them shall be made, to prescribe the conditions of service, to fix pay and allowances and to lay down rules relatingto discipline and conduct. It is not necessary to dispute that any Rules framed under the sub-section will have the force of law, as Sinha J., has held; but, to my mind, the question we have before us is not answered by saying that the Government Servants' Conduct Rules have the force or law, because the enquiry as to the object of the Rules and the effect created by them remains. The only part of Sub-section (2) of Section 96B which we needconsider in the present context is the part which speaks of 'discipline and conduct'.

It appears to me to be 'abundantly' clear that in so far as the Government Servants' Conduct Rules provide for discipline and document and, in doing so, forbid conduct of certain varieties, their aim is merely regulation of the conduct of Government servants, as such servants, and that aim is sought to be attained by prescribing certain rules of correct conduct and laying down penalties for their breach. If a Govt. servant disregards any of the Rules which bear upon discipline and conduct and conducts himself in a manner not approvedby the Rules or forbidden by them, he may incur the penalties for winch the Rules provide. It cannot, however, be that any of his other rights as a citizen will be affected. Taking the present case, if a Government servant violates the prohibition against offering himself as a candidate for election to one or another of the bodies mentioned in Rule 23, he may incur dismissal or such other penalty as the authorities may consider called for, but the breach of the conditions of service committed by him cannot disenfranchise him or take away from him any of the rights which he has in the capacity of the holder of franchise.

While, therefore, a Government servant, offering himself for election to one of the bodies mentioned in Rule 23, may bring upon himself disciplinary action, which may go as tar as dismissal, the consequence cannot also be that his election will be invalid or that the validity of his election will be affected by the breach. The disqualification imposed by Rule 23 is of the nature of a personal bar which can be overstepped only at the Government servant's peril as regards his membership of a service under the Government. It is not and cannot be an absolute disqualification in the natureof ineligibility.

10. It appears to me that such meaning of Rule 23appears from the language of the Rule itself. Sub-rule (2) of that rule, as amended, reads 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 is qualified to vole at such election may exercise his right to vote, but if he does so, shall give no indication of the manner in which he proposes to vote or has voted.'

I may also quote Sub-rule (3) which completes the prohibition. As amended, it reads thus:

'A Government servant who issues an address to electors or in any manner publicly announces himself or allows himself to be publicly announced as a candidate or prospective candidatefor election to a legislative body, Municipal Committee, District Board, or other local body shall be deemed for the purpose of Sub-rule (2) to take part in an election thereto.'

What the Rule enjoins is that a Government servant shall not take part in any election and that he shall also not take part in the form of offering himself as a candidate. The Rule does not say that a Government servant, so long as he holds a post in the service of the Government, shall be ineligible for election to any of the bodies mentioned. The prohibition is directed at personal conduct and not at rights owned by the Government servant concerned. Illustrations of an absolute prohibition of the nature of a real disqualification or ineligibility will be found in Sections 63E(1) and 80B, Government of India Act, 1915-19 and Articles 102 and 191 of the present Constitution which deal, in both cases, with qualification for election to the Central or the State Legislature. I am entirely unable to persuade myself that the kind of disqualification imposed by Sub-rules (2) and (3) of Rule 23, Government Servants' Conduct Rules is of the nature of the disqualification created by the provisions in the Constitution Acts to which I have referred. The former is limited kind of disqualification, operating only within the sphere of Government service and indicating what acts will constitute a lapse from conduct proper to a Government servant, but not creating a legal incompetence for doing the acts declared undesirable or forbidden.

11. In my view, the fact that the appellant was at the relevant time holding a post in the service of the Provincial Government did not make him a person ineligible for election to the Union Board. His violation of the sub-rules might well have led to other unplesant consequences and we were informed that they did so lead, because he has since been dismissed from Government service. His right to offer himself as a candidate for election and the validity of the election which he secured, were not, to my mind, affected in any way by reason of his being a Government servant at the time.

12. I have so far proceeded on the assumption that the Government Servants' Conduct Rules were framed initially under Section 96B, Government of India Act of 1915-19, as stated by the learned Judge. That assumption can hardly be correct, because Section 96B speaks only of rules that may be made by the Secretary of State for India in Council. The present rules do not appear to have been framed by that authority. A more correct hypothesis would seem to be that in exercise of the power conferred upon him by Section 96B, the Secretary of State framed the Civil Services (Classification, CONtrol and Appeal) Rules and it was under Rule 48 of those rules that the Government Servants' Conduct Rules, 1926, were framed. Sub-rule (1) of Rule 48 empowers the Governor-General in Council to make rules to regulate the conduct of members of the Central Services and Sub-rule (2) empowers the local Government of a Governor's Province to make rules to regulate the conduct of members of the Provincial and Subordinate Services. I am quoting the language of the rules, as they stood before the recent adaptation. The Central and the State Governments are thus given power to make rules inrespect of members of the services under their respective administrative control. There are indications in certain foot-notes that the present rules were framed by the Central authority, but how they came to be applicable to members of services under the administrative control of the State Government could not be explained before us. It may be that each State Government adopted the Central rules, either for the sake of uniformity or in order to save themselves trouble. Be that as it may, it is important to note that under both the sub-rules in Rule 48, rules are to be made only 'to regulate the conduct' of members of the Services. In other words, the whole scope and object of the rules contemplated by the provision is to lay down principles of proper conduct to be observed by Government servants as such servants. Rules framed under an authority to regulate the conduct of Government servants can only lay down what they ought or ought not to do in order to be correct in their conduct as such servants. They are only conditions of service. They cannot go further and create absolute incapacities.

13. The matter appears to me to admit of a simple test. Rule 23 is not the only rule among the Government Servants' Conduct Rules which contains a prohibition. Rule 8, for example, forbids a gazetted officer to lend money to any person possessing land within the local limits of his authorities. Rule is forbids a Government servant to become the proprietor of a newspaper without the previous sanction of the local Government. Yet, if a gazetted officer docs lend money to a person of the specified category or a Government servant does purchase a newspaper without previous sanction, none can say in the first case that the officer shall not be entitled to recover the amount of the loan or in the second case, that the Government servant shall acquire no title to the newspaper.

14. In my opinion, the Government Servants' Conduct Rules are only rules of internal discipline, operating within the sphere of Government service and limited in their operation to that sphere. They specify certain acts which can be done by Government servants only in a certain way and other acts which may not be done by them at all, consistently with the conduct they are required to maintain as Government servants.

15. Further the rules cannot and do not go. They cannot and do not create a legal disability in Government servants to do effectively the acts forbidden by the rules, if they are otherwise competent to do them, whatever the consequences of transgressions in this regard may be to their career as Government servants.

16. For the reasons given above, this appeal must be and is allowed. The order made by the learned Judge is set aside and it is directed that the application made by respondent 1 under Article 226 of the Constitution shall stand dismissed. We do not propose to make any order for costs.

17. Lahiri, J.

I agree.


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