Judgment:
Jyotirmay Bhattacharya, J.
1. The legality of the notice dated 8th September, 2006, issued by the eleven out of seventeen members of Hizole Gram Panchayat being Annexure P-3 to this writ petition by which a requisitioned meeting was convened for selection of Pradhan under Section 213B(2)(b) of the West Bengal Panchayat Act, 1973 is under challenge in this writ petition.
2. The Pradhan of the said Gram Panchayat was placed under suspension under Section 213B of the said Act, with effect from 13th January, 2005 as he was detained in police custody in connection with a criminal proceeding for a period exceeding forty-eight hours.
3. Pursuant to the order passed by the prescribed authority on 13th January, 2005 being Annexure P-1 to this writ petition, the Upa-Pradhan took over the charge of Pradhan on 13th January, 2005 and since then she has been discharging the functions and duties of the Pradhan. The prescribed authority, in its said order dated 13th January, 2005, directed the Upa-Pradhan to discharge the functions of the Pradhan until Pradhan resumes his charge and if situation so arises.
4. Admittedly, the Pradhan is still under suspension and as such he has not yet resumed his charge.
5. Problem started when the eleven members of the said Gram Panchayat, by their notice dated 17th August, 2006, requested the Upa-Pradhan to convene a meeting for selection of Pradhan so that the selected Pradhan can act temporarily until the office bearer placed under suspension is reinstated in his office or is subsequently removed or vacates the office by resignation or otherwise in conformity with the provisions of the Act and the rules made thereunder.
6. Since the Upa-Pradhan ignored the said notice and did not convene any meeting for the said purpose, the said eleven members issued another notice on 8th September, 2006 being Annexure P-3 to this writ petition, by which a requisitioned meeting was convened, to be held at the office of the said Gram Panchayat at 12.00 noon on 18th September, 2006 for the said purpose.
7. The validity of the said notice has been challenged by the Upa-Pradhan in this writ petition.
8. Mr. Sanyal, learned Advocate appearing for the petitioner submitted that since the Upa-Pradhan was given the charge of the office of the Pradhan by the prescribed authority under Sub-section (4) of Section 9 of the said Act, she cannot be removed from the office of the Pradhan until a new Pradhan is elected and assumes his office or until the Pradhan resumes his duties, as the case may be.
9. Mr. Sanyal submitted that since admittedly neither a new Pradhan has yet been elected nor the Pradhan has yet resumed his duties, her right to exercise the powers, perform the functions and discharge the duties of the Pradhan cannot be disturbed.
10. Mr. Sanyal further submitted that selection of Pradhan under Section 213B(2)(b) of the said Act cannot be opted by the members of the Gram Panchayat when the Upa-Pradhan was given the charge of the office of the Pradhan under Section 9(4) of the said Act.
11. Mr. Chatterjee, learned Advocate appearing for the private respondents supported the impugned notice by submitting that since the provision contained in Section 213B(2)(a) of the said Act is subject to the provision of Section 213B(2)(b) of the said Act and Section 213B(2)(b) also starts with non-obstante clause, the provision contained in Section 213B(2)(b) is not controlled by the provision of Section 213B(2)(a) of the said Act. According to Mr. Chatterjee there is no illegality in the impugned notice as the said notice was issued by the members of the said Gram Panchayat in exercise of their right of selection of the Pradhan for a temporary period so long as the Pradhan remains under suspension.
12. Heard the learned Advocates of the parties considered the materials-on-record.
13. Since the fate of this writ petition hinges upon the interpretation of the provisions of Section 9(4) as well as Sections 213B(2)(a) & (b) of the said Act, the said provisions are set out hereunder for convenient appreciation:
9(4) When-
(a) the office of the Pradhan falls vacant by reason of death, resignation, removal or otherwise, or
(b) the Pradhan is, by reason of leave, illness or other cause, temporarily unable to act,
the Upa-Pradhan shall exercise the powers, perform the functions and discharge the duties of the Pradhan until a new Pradhan is elected and assumes office or until the Pradhan resumes his duties, as the may be.
213B(2) When an office bearer in a Panchayat is placed under suspension under Sub-section (1),-
(a) subject to the provisions under Clause (b), the other office bearer in such Panchayat shall exercise the powers, perform the functions and discharge the duties of the office bearer under suspension, under Sub-section (4) or Sub-section (5) of Section 9, Section 98 or Section 143, as the case may be,
(b) notwithstanding the provision under Clause (a), such Panchayat may, by majority decision of the existing members directly elected to that Panchayat, in a meeting specially convened for the purpose, select a person from among them not being an office bearer, to act temporarily in place of the office bearer under suspension and on being so selected, he shall exercise the powers, perform the functions and discharge the duties of such office bearer until the office bearer placed under suspension is reinstated in his office or is subsequently removed or vacates the office by resignation or otherwise in conformity with the provisions of the Act and the rules made thereunder:Provided that the notice of such meeting shall be given by the office bearer holding the charge with an intimation to the prescribed authority referred to in first proviso to Sub-section (1) of Section 16, Section 105 or Section 150, as the case may, and such prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing within a week of the meeting on the proceedings of the meeting.
14. On plain reading of Section 213(B)(2)(a) of the said Act, this Court finds that the provision contained therein is controlled by Section 213B(2)(b) of the said Act as Section 213B(2)(a) starts with 'subject to the provisions of Clause (b)'. On the contrary the provision contained in Section 213B(2)(b) is an independent provision which is not controlled by Clause (a) thereof as Clause (b) starts with a non-obstante clause. Clause (b) of Section 213B(2), thus can operate independently notwithstanding any provision contained in Clause (a) thereof.
15. Selection of temporary Pradhan during the period of suspension of Pradhan, is permitted under Section 213B(2)(b) of the said Act.
16. Now question has cropped up as to whether Section 213B(2)(b) can be opted when Upa-Pradhan has been given the charge of the office of the Pradhan under Section 9(4) of the said Act?
17. Section 9(4) of the said Act authorizes the Upa-Pradhan to exercise the powers, perform the functions and discharge the duties of the Pradhan during the period of temporary vacancy in the office of the Pradhan in any of the circumstances as mentioned in Clauses (a) and (b) hereunder.
18. Similar provision has also been made in Section 213B(2)(a) of the said Act authorizing the Upa-Pradhan to exercise the powers, perform the functions and discharge the duties of the Pradhan during the period of suspension in the manner as provided under Section 9(4) of the said Act.
19. Since a special provision has been made for this ad hoc arrangement during the period of suspension of the Pradhan under Section 213B(2) of the said Act, the provisions contained therein cannot be controlled and/or limited by the provision of Section 9(4) of the said Act.
20. Then again the provision contained in Clause (a) of Section 213B(2) can be worked out subject to Clause (b) which again starts with a non-obstante clause; meaning thereby that when the majority numbers in a meeting specially convened, selects a person from among them not being an office bearer to act temporarily in place of the office bearer under suspension, the selected person will discharge the duties of the office bearer during the period of his suspension.
21. Thus on conjoint reading of the said provisions, this Court holds that the Upa-Pradhan can discharge the duties of the Pradhan during the period of his suspension so long as the majority numbers do not opt for selection of a temporary Pradhan as per Clause (b) of Section 213B(2) of the said Act.
22. After all the Pradhan is an elected post. As such whenever the majority decides to select a Pradhan even for temporary period, the Upa-Pradhan cannot object to such selection in view of the non-obstante clause contained in Clause (b) of Section 213B(2) of the said Act. That apart, the Upa-Pradhan will not lose anything as the Upa-Pradhan will still remain a Upa-Pradhan even after selection of Pradhan for temporary period. Rather the Upa-Pradhan will be benefited otherwise as he/she will be relieved of his/her additional duties, in case a Pradhan is selected for such vacuum period.
23. Thus, this Court does not find any merit in this application. This application thus stands rejected. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.