1. The point is whether a Scheduled Caste candidate having been elected from general or unreserved seat of a Gram Panchayat can be a Pradhan of such Gram Panchayat reserved for Scheduled Caste candidate or not. Factually there are altogether three successful scheduled caste candidates. Out of the three candidates two won from the reserved seats when another won from unreserved or general seat.

2. Mr. Utpal Majumdar, learned Counsel appearing for the petitioner contended that whenever a seat is reserved for Scheduled Caste candidate there should be true reflection of representation of such community. A Scheduled Caste candidate having been represented from general seat cannot be the true representative of the Scheduled Caste community. Moreover, there was no scope of enquiry of the candidature of such Scheduled Caste candidate when the nomination paper had been filed by him as a general candidate.

3. He has drawn my attention to the situation of the grass-root level where according to him, everything is possible to achieve the goal. According to me, it is true, that illiteracy in the grassroot level gives rise to muscle power not and intellectual power. Such power can manipulate or misuse the office. That apart, due to direct distribution of the fund under various governmental schemes to the Panchayats sometimes develop illegal money power. But neither I am law maker nor administrator but adjudicator. Therefore, I have no other alternative but to proceed on the basis of the given case with additional pain on the back of mind. When I go through the West Bengal Panchayat Act, 1973 and the West Bengal Panchayat (Constitution) Rules, 1975, I see that seats of Gram Panchayat Pradhan are being kept reserved by rotation and such rotation is to be followed for the entire period of five years' tenure. Therefore, if one is elected as Pradhan he or she will remain in that post for five years' tenure unless he or she is removed from the office or by the act of God unable to continue.

4. Article 334 of the Constitution of India is providing reservation of seats and special representation to cease after certain period. However, we cannot forget that the difference of caste, creed, religion, tribe etc. is deep rooted in our country in spite of modernization or globalization etc. Both simultaneously run and unfortunately we follow the both. True respect to the seniors, true sympathy for the ‘have-not’ and true respect to Almighty are secondary things for the present days to be remembered. Therefore, unless the mentality is changed the achievers will get the goal but the commoners will die. The differences are illusory. There are two classes i.e ‘have’ and ‘have-not’. They may belong to any caste, creed, religion and tribe. Crude reality say so. The other class i.e middle class, creature of British rulers of the pre-independent period of the country is very matured but presently they are fighting for survival either being attached to ‘have’ or ‘have-not’.

5. Making discussion as above is not academic but to give a reflection how far we can go for reservation ignoring the merit and rule of majority which is the very foundation of the democratic process. A Panchayat is an independent local Government. Much prior to the 73rd amendment of the Constitution by directive principles of State Policy in Article 40, the organisation of Village Panchayats are declared as units of self-Government. After 73rd amendment Article 243(d) describes Panchayat is an institution (by whatever name called) of self-Government constituted under Article 243-B, for the rural areas. Article 243-B speaks about constitution of Panchayats while Article 243-C speaks about composition of Panchayats. Therefore, why the post of a Pradhan, being the head of such Panchayat and single post will not be declared reservation free? Why the Pradhans of different Gram Panchayats will be treated as ‘Class’? Can it be said that all the Chief Ministers of the different States in the country is ‘Class’? Why not? The reason is that the State Governments are independent local Governments thereby self-Government. Hence the head of the same being single post cannot be reserved, therefore, the same is reservation free. Hence when Panchayats are self-Government, the post of Pradhans cannot be controlled by reservation. If at all the reservation is needed that may be restricted only to the number of seats of the Panchayats but not with the leadership of the members. Choice of leader of a house is discretion of the members. Such leader may belong to any category. Moreover, if any reservation is made ignoring the rule of majority of the house then such part of the Constitution will have to be declared as unconstitutional. Reservation of leadership ignoring the merit and majority is nothing but pushing the clock backwards. Unless and until leadership of the Panchayats become free from-reservation the country will never go forward. Percentage of reservation in number of seats or constituency in the Panchayats cannot be equated with the leadership of Gram Panchayats. Benefit of the people of reserved categories can be controlled by their representations but not by the leadership. A leader of house is leader of all irrespective of caste, creed, religion, tribe etc.

6. Coming back to the Chapter i.e Part IX inserted by way of 73rd Amendment I find that various Articles inserted therein for the purpose of formation of Panchayats etc. in the country. One Article is there i.e Article 243-D which is basically made for reservation of seats. Surprisingly in the sub-Article (4) thereunder question of reservation of the post of Chairpersons were inserted. It speaks that the offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide with certain proviso about the proportion of such representation therein. But where is the scope of such insertion in Article 243-D irrespective of issue of reservation of the post of Chairperson of the Gram Panchayats? Has this Article made for the same? Is it the true import of the heading of the Article and sub-Articles (1), (2) and (3)? Is it not fixed for reservation of seats to which presently there is no controversy? What is the necessity of clubbing reservation of seats with Article 243-D without clubbing with Article 243-C which deals with composition of Panchayats precisely the question of Chairpersons? Is it not alien, foreign or in harmonius with the import of Article 243-D? Is it not confusing so to say that Chairpersons perhaps meant the seats of the Gram Panchayat? Can it be said that reservation for the posts of Chairpersons can be accepted without due deliberation in the Parliament or in the legislative houses?

7. No doubt that the interest of the Scheduled Castes and Scheduled Tribes are to be protected from social injustice and all forms of exploitation as per Article 46 being directive principle of State policy.

8. There is also no doubt that as per Article 334 as of date reservation of seats in the respective Houses of the People can be maintained by the State. But how a condition cannot be imposed about choice of leadership of a legislative house ignoring the rule of majority! The posts of Chairpersons of any level cannot be equated either with the Members of Parliament, Legislative Assembly etc. or with the Panchayat members of any level or the other portfolio holders even nearer to such posts. This can only be equated with single cadred post like Prime Minister, Chief Minister etc. because he or she is the leader of a self-Government. Repeated prescriptions under the part say that Chairpersons shall be elected in such manner as the Legislature of a State may, by law, provide. If it is so why the question of reservation comes? Item No. 5 of the State List being List II in the Seventh Schedule under Article 246 also speaks about local Government as follows:—

“5. Local government, that is to say, the Constitution and powers of municipal corporations, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration”.

9. Therefore, when Panchayat is a local self-Government, composition of such local self-Government is to be governed under Article 243-C. Article 243-D only speaks about reservation of seats. There cannot be any embargo about such reservation. But in the garb of reservation of seats under Article 243-D if there is any strong reference about reservation of Chairpersons then the same will be marching over the scope and ambit of Article 243-C which deals with composition of Panchayats. If it is allowed to be done without declaring unconstitutional, the predominant character of Article 243-C will be subdued. Only requirement of Article 243-D is reservation of seats. There was no occasion to deal with the reservation of the Chairpersons or articulate in such manner.

10. In a democratic set up various political parties are choosing their candidates. One political party or group or alliance may be gainer when other may be loser. If today's prescription is accepted then the wining political party/group/alliance may lose the leadership unless and until such type of candidate/s is/are available with them. A member of a minority group/alliance will become Chief Minister of majority group/ alliance. Is it not an impossible situation? Can one think of it particularly at the Union or State level? Therefore, making such forceful Chairpersons cannot be said to be valid piece of law. This will not only create danger for the present but also for the future. This is the reason for which so many unholy political alliances are being formed at the grass-root level. No healthy competition is there. This is totally dispute-oriented Poorer section of people are worst sufferer. This is absolutely contrary to the Panchayat Raj. Therefore, the reservation for the posts of Chairpersons has to be struck down.

11. Mr. Majumdar has brought my notice to Section 2(25) of the Act which says who will be considered as Scheduled Castes. There I find such Castes, Races. Tribes or parts or groups who are in the schedules of the respective States under Article 341 of the Constitution of India are to be treated as Scheduled Castes. Although Mr. Majumdar raised an issue that the private respondent cannot be held to be Scheduled Caste, as he possesses surname ‘Modok’ which is not in the schedule of the State under Schedule Castes and Scheduled Tribes, (Prevention, of Atrocities) Act, 1989 but I find from the certificate issued by the authority under the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act, 1994 that he is declared as Scheduled Caste. According to him, since there is no scope of challenge of the certificate of the candidate being contested from the general seat it might so happen that a seat of Scheduled Caste is interfered with by a non-scheduled caste candidate.

12. According to me, the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act, 1994 gives power for cancellation or revocation of the certificate by the authority under the Act itself. Being aggrieved by such declaration if a person proceeds before such authority for such cancellation or for appeal or go before any other Forum for such cancellation same may be cancelled and in such case automatically he will cease to be the Pradhan reserved for a Scheduled Caste candidate. But as on date, the Court has no other particulars to consider such issue. The Court is called upon to consider whether a Scheduled Caste candidate can fill up the Post of the Pradhan made for Scheduled Caste even being elected from general seat or not. In the process so many questions by necessary implications have been developed which have been dealt with as far as possible.

13. Upon going through a proviso under Section 4 of the Act relating to Gram Panchayat and its Constitution I find as follows:

“Provided also that no member of the Scheduled Castes or the Scheduled Tribes and no women for whom seats are reserved under this sub-section shall, if eligible for election of a Gram Panchayat, be disqualified for election to any seat not so reserved”.

14. Therefore, there is no embargo upon a Schedule Caste candidate for being elected from any seat which is not reserved. An interesting example available for the same. Once wheal was travelling by bus I had seen some gentlemen were very much in quarrelling or teasing mood to a lady who was occupying a seat other than the seats reserved for the ladies. According to them the seats other than seats made for the ladies are automatically reserved for the gentlemen by necessary implication. On the other hand the lady was saying that the seats cannot be said to be reserved for gentlemen automatic. Now sitting in the arm-chair of highest judiciary of the State, I say that the lady was right. The concept is some seats are reserved for ladies but others are general, therefore, the lady cannot be debarred from occupying general seat.

15. When I go through the Rules I find that the most important Rules from the purpose of due consideration are Rule 2-A and Rule 3(7). So far as the Rule 2-A is concerned, it is made for reservation of the Posts with various other explanations in connection thereto which have already been dealt with by the Court. In the second proviso under sub-rule (3) of Rule 2-A I find that the reservation is made from the roster making valid till the next term of election. Such roster during the next term of election shall be deemed to commence after excluding the grams or the blocks, as the case may be, reserved for the preceding term but such excluded grams or blocks may be taken up again for reservation or exhausting the grams or the blocks available in the roster for that term. However, certain powers are given to the authorities for the change of category etc. which are not very important for the purpose of due consideration here. Rule 3(7)(a) is very important which speaks as follows:

“If only one candidate is proposed and seconded, the Presiding Officer shall, in Form 4, declare him to be duly elected to be the Pradhan of the Gram Panchayat:

Provided that when an office of the Pradhan is reserved for the category or persons belonging to the Scheduled Castes, the Scheduled Castes (Women), the Scheduled Tribes or the Scheduled Tribes (Women) and when —

(i) There is only one seat or constituency of members reserved for the same category or persons in that Gram Panchayat, and

(ii) only one candidate elected from the reserved seat referred to in Clause (i) is proposed as candidate for election to the office of the Pradhan.

it shall not be necessary to second the candidature of that person and on being proposed, the Presiding Officer shall declare him in Form 4, to be duly elected to be the Pradhan of the Gram Panchayat”.

16. Mr. Majumdar banged upon such provision like anything to establish his case. According to him, if there is only one candidate for the constituency of members i.e Pradhan etc. reserved for any category that will be filled up by the candidate from the reserved seat but when more than one candidates are there then there will be contest not only between the candidates elected from the reserved seats but also unreserved seat. Is it not artificial differentiation?

17. According to me it is not. When there is one seat and one candidate, there is no question of election at all. A formal selection of such candidate will be made but when there are more than one candidates there should have to be an election. Singular includes plural and vice-versa. There the question is to be understood by way of necessary implication. Factually, there are three Schedule Caste candidates. Two of them are elected from the reserved seats and one is declared elected from the unreserved seat. Therefore, there has to be an election. Hence the argument of Mr. Majumdar is hypothetical. Every provision of law is to be considered on the given case not on the basis of hypothesis. Even if I feel there is a vacuum no relief can be granted to the petitioner in the present case.

18. Then Mr. Majumdar contended that when there is one candidate and he is elected from the reserved seat there would not be any election but when there are more than one candidates there should be election not only amongst themselves but also amongst such type of candidates elected from general or unreserved seats. According to me such gray area is covered by the Supreme Court Judgment reported in AIR 1998 SC 815, Kasambhai F. Ghanchi v. Chandubhai D. Rajput. Three-Judges' Bench of the Supreme Court held that even if one Schedule Caste candidate contested from a general or unreserved seat and won his/her Schedule Caste character remains unchanged. Therefore, my reading is that when there are more than one candidates contested for the reserved post of Chairperson or Pradhan then such contest can be held amongst the Scheduled Caste candidates elected either from the reserved seats or from the unreserved or general seats.

19. On 9th June, 2003 a Government Circular has been issued on behalf of the Department of Panchayats and Rural Development by the pen of Joint Secretary, Paragraph 4 and sub-paragraph (a) thereto is as follows:

“4. On the eve of Sixth Panchayat General Elections, you have already declared certain offices of the Pradhan, Upa-Pradhan, Sabhapati, Sahakari Sabhapati, Sabhadhipati or Sahakari Sabhadhipati reserved for the Scheduled Caste, Women Scheduled Caste, Scheduled Tribes, Women Scheduled Tribes or Women as the case may be. For elections to these offices such reservations shall be kept into consideration. In this connection following guidelines shall be operational:—

(a) When an office is reserved for a specified category of members it is not necessary that the members elected from a seat reserved for the same category shall only be eligible for such election. Any member elected from an unreserved seat or from a seat reserved for another category shall be eligible for such election provided he/she has the necessary caste/tribe/gender/qualification. To cite an example when an office is reserved for women scheduled caste in addition to a member elected from a seat reserved for women scheduled caste, a woman elected from an unreserved seat or from a seat reserved for scheduled caste or for woman shall be eligible for the office reserved for scheduled caste or for woman shall be eligible for the office provided she is a woman scheduled caste. Again for an office reserved for scheduled caste a man or woman elected from an unreserved seat or a seat reserved for woman shall be eligible for the office provided he or she belongs to that particular category of persons. It will suffice if the eligibility is claimed and declared before the Presiding Officer at the appropriate time. It will, however, be necessary for the members who have not been elected from a seat reserved for the specified category, to produce scheduled caste or scheduled tribe certificate issued by a competent authority in order to establish his or her claim.”

20. Mr. Majumdar contended that by issuing administrative circular the Government cannot override the prescribed statutory rule. The circular is expressly militating with the aforesaid prescribed Rule 3(7)(a). When rule speaks for election of a candidate from the reserved seat circular speaks election even from an unreserved seat. Therefore, the question arose before this Court whether the circular is supplant of the rule or supplement of the rule.

21. According to me it is well settled that circular cannot override a statutory rule, but the reality has to be verified on the subject context. Under Section 4(2) 5th proviso of the W.B Panchayat Act a candidate under such category cannot be declared disqualified for election to any seat not so reserved. Therefore, election of a scheduled caste candidate from the unreserved post is not unknown to the Act. Hence the question is what he/she will do if he/she is elected from such seat. Such vacuum is to be filled up by the ratio of AIR 1998 SC 815 (supra). Therefore there cannot be any embargo of issuance of such circular. In effect, the circular is supplement of the Act. Had there been no law, the Supreme Court judgment would have governed the field. Therefore in all respect the circular cannot be treated as supplant of the rule. The rule stands between the Act and the circular. If the Act says that a candidate under such category cannot be declared disqualified for election to any seat not so reserved and if the rule is silent about the same obviously the circular will fill up the vacuum particularly when the ratio of the Supreme Court judgment is governing the field.

22. Mr. L.C Bihani, learned Senior Counsel appearing for the Election Commissioner intervenor contended before this Court that his office has fullest sympathy for the petitioner but by the prescription of law nothing can be done to him at present. He cited various judgments. In AIR 1959 SC 1318. V.V Giri v. D. Suri Dora & Others, I find that a Constitutional Bench of the Supreme Court held that the candidate from any such community cannot forfeit his right by contesting from a general seat. In 1997 there was a change. In a judgment reported in AIR 1997 SC 347 (Saraswati Devi v. Smt. Shanti Devi), the Supreme Court held that when a post is reserved for being filled up by a member belonging to one category who has been elected from such seat will be the appropriate candidate but not candidate who is elected from an unreserved seat or general seat. Therefore, had there been a valid existence of such judgment, the case of the petitioner would have been succeeded but in the next year a three-Judges Bench of the Supreme Court overruled such judgment as reported in AIR 1998 SC 815 (supra). Hence, the ratio of the judgment reported in AIR 1997 SC 347 (supra) has no face value.

23. Now, let me confine my analysis to the question of applicability of the judgment reported in AIR 1998 SC 815 (supra) in the present case because Mr. Majumdar raised certain distinguishing features about applicability of the ratio of such judgment. The vital distinguishing feature is that the judgment runs counter to the Articles of the Constitution and on the basis of the Gujarat Municipalities Act and the Rules framed thereunder. Therefore, the same cannot be applicable here where there is a valid existence of the Act and Rules for the Panchayat election in the State. Secondly, in such case a roster of one year in a 4 years span of life of elected body was the vital point for consideration but in the present case, in the name of roster the total span of the elected body treated as roster. Therefore, there is no roster. Thirdly, subject-matter of Municipal election and Panchayat election cannot be treated at par with each other. So far as the third point is concerned. I find the Articles being Articles 243-T and 243-D of the Constitution are similarly placed in respect of reservation of seats unlike the filling of offices of Chairpersons etc. which has been already dealt with. Therefore, such point cannot be said to be valid ground for the purpose of making a distinguishing feature even from the plain reading. Hence the same is ruled out. So far as the first point is concerned, the same is not only discussed on-the basis of the available Act or Rules of different States but also on the basis of the Articles of the Constitution. When Articles of the Constitution in between the Municipality and Panchayat are more or less identical, ratio of the judgment reported in AIR 1998 SC 815 (supra) will have to be principally applicable in the present case. The principle is that even if one is elected from the general constituency, being Scheduled Caste candidate, he or she cannot lose his/her identity as a Scheduled Caste candidate. Therefore, it is immaterial whether it is Municipal election or Panchayat election. If one is Scheduled Caste by character he or she ought to be declared as eligible candidate for the purpose of filling up one or more posts if required to be filled up by such candidates. According to me such ratio is applicable even the sole candidate is elected from any unreserved seat. By the subsequent development the words ‘reserved seat’ in Rule 3(7)(a), Proviso II become redundant. Therefore the words redundant cannot find place in the rule nor can overnde the circular. Hence such words of the rule will be formally excluded by a suitable replacement in the light of the judgment and order of this Court. The second important point is the fixation of period of roster. The roster means a circle within the tenure for the purpose of filling up the post. Therefore, such rotation cannot be restricted for the full period of the elected body. If it is done then the same cannot be called as roster. When one candidate of one reserved category is there, then there is no problem, he can be able to continue for the whole tenure but if there are more than one candidates then there should be a rotation of one year or so to accommodate each one to avoid any controversy and to adjudge the ability. The roster for the entire tenure is wholly impracticable and dispute-oriented. Hence roster must have to be made within the tenure for giving accommodation to more than one candidates from such category within such tenure. Accordingly such part will also be suitably amended.

24. Mr. Rabilal Moitra, learned Government Pleader appeared for the State and even adopting the argument of Mr. Bihani contended that this type of dispute can be considered as an election dispute by virtue of Section 2(9a) and Section 9 of the Act. However, such submission is opposed even by the Election Commission apart from the petitioner. According to Mr. Moitra, general election means an election of members held simultaneously for constitution of the Gram Panchayats etc. Therefore, general election does not mean the election of the members but constitution of Gram Panchayats. According to him the process of election of Pradhan under Section 9 clearly speaks about the election of such office. One is preelection and other is post-election. Therefore, the writ petition itself is not maintainable. The private respondent adopted the argument of the respondents in merit.

25. According to me there is a fallacy of argument of Mr. Moitra. The fallacy is that the election of the Gram Panchayat is controlled by the West Bengal Panchayat (Election) Rules, 1974 whereas filling up the post of Pradhan and Upa-Pradhan is controlled by the West Bengal Panchayat (Constitution) Rules, 1975. The election in general is to be guided by the Election Rules. These two parts are so categorical that there is no need for further discussion in this respect and I cannot hold the argument as advanced by Mr. Moitra on that score is to be accepted.

26. So far as the preliminary point is concerned the writ petition succeeds. So far as merit is concerned, the writ petition cannot succeed at present because more than one Scheduled Caste candidates are available to contest the post of Pradhan and the Scheduled Caste candidates having been contested from the general seat cannot lose the characteristic of being Schedule Caste. Although no formal relief has been granted to the petitioner but since the Court has recommended two necessary modification of the Rules, the writ petition is formally treated to be disposed of. The following recommendations are as follows: (a) The words ‘reserved seat’ in Rule 3(7)(a), Proviso II in the West Bengal Panchayat (Constitution) Rules, 1975 be suitably amended; (b) Roster will be suitably made within the tenure of five years, to accommodate more than one candidates and to judge their ability. However, no order is passed as to costs.

27. Prayer for stay is made, considered and refused.

September 10, 2003.

28. After delivery of the judgment on 16th July, 2003 in the case of Bidhya Charan Singha v. State of W.B being W.P No. 1401 of 2003 two other similarly placed matters-came forward when such question was further reviewed by the Court.

29. Mr. Ashish Sanyal and Mr. Amit Prakash Lahiri appearing for the petitioners in two Writ Petitions being W.P No. 8805(W) of 2003 and in W.P No. 9274(W) of 2003 respectively reiterated the issues in further forceful manner to satisfy the test more and more. That apart few new points were also raised. According to Mr. Sanyal the scope and ambit of AIR 1998 SC 815 (supra) is per incuriam in view of the provisions under Article 243-D of the Constitution of India. Article 243-D(1) says that the reservation of the seats for the Scheduled Caste and Scheduled Tribe candidates will be made as per the population and such seats may be allotted by rotation to different constituencies in a Panchayat whereas Paragraph 13 of AIR 1998 SC 815 (supra) says that the seats will be reserved as per roster but not as per the nature of constituency from which the person is elected. Hence when such judgment is per incuriam and has no binding effect upon this Court. The Court may proceed independently without being influenced by such judgment. Moreover, the ratio of such judgment is based only to destroy the ratio of AIR 1997 SC 347 (supra) npfhing else.

30. Mr. Lahiri has taken a stand that the circular in question came into force on 9th June, 2003, thereby cannot be effective retrospectively. Apart from that a new question has been raised that the candidate is an Anganwadi worker, therefore, cannot be elected as a candidate for the Panchayat election etc. in view of a judgment of this Court. Such question is a new venture and non-issue hereunder, therefore, cannot be adjudicated. This Court is not concerned with such new issue. If the petitioner desires he can raise such issue before the appropriate Court or authority.

31. Mr. Bihani, learned Senior Counsel appearing on behalf of the Election Commission, contended before this Court that there is nothing new to be reconsidered by this Court excepting two points which are dealt with hereunder. He said that it is not correct to say that the judgment is per incuriam. Meaning of per incuriam is given in Paragraph 44 of the Constitution Bench judgment of the Supreme Court reported in AIR 1988 SC 1531 : 1988 Crt LJ 1661, A.R Antulay v. R.S Nayak. “Per incuriam” are those decisions given in ignorance or for-getfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong. Therefore, the judgment reported in AIR 1998 SC 815 (supra) cannot be said to be per incuriam in this context, when the subject-matter was considered with reasons.

32. I think there is a basis of such argument. The explanation of Mr. Sanyal is that since the rotation of reserved seats to different constituencies in a Panchayat has been provided under Article 243-D and since the Supreme Court in AIR 1998 SC 815 (supra) exceeded the constitutional mandate by saying that the reservation of the seats will be made as per roster but not on the nature of constituency, therefore, the same is penincuriam. I am sorry to say that the said explanation cannot be acceptable. Such part of Article 243-D has only made the provision for reservation of seats or constituency in which has got nothing to do in respect of interpretation as to whether a person cbncerned having been elected from an undeserved/general seat, loses his/her characteristic of being Scheduled Caste candidate or not. Article 243-T and Art. 243-D are more or less similar so far as such part is concerned. It has been rightly pointed out that had there been only citation of AIR (1997) SC 347 (supra) before this Court and Court would have had passed an order guided by such judgment without getting reference of AIR 1998 SC 815 (supra) then it would have been considered as a judgment per incuriam because Court had no knowledge about the subsequent judgment which has overruled the earlier judgment. Therefore, I cannot accept the submission of Mr. Sanyal.

33. So far as the argument of Mr. Lahiri is concerned factually the date of nomination of the election is 11th April, 2003. The date of circular is 9th June, 2003. Election of Panchayat was to be held on 17th June, 2003. Office of the Pradhan or Upa-Pradhan was supposed to be filld up on 28th June, 2003. Therefore, can it be said that such circular is not effective for the purpose? I do not find any justification of such submission because the circular is not made for election of the Panchayat but for Constitution of the Panchayat which is governed by different set of Rules and factually it will be incorrect to say that by virtue of the circular a retrospective operation was tried to be made by this State. That apart, Mr. Bihani on behalf of the Election Commission cited Paragraph 107 of the judgment reported in 1990 Supp SCC 440, Narendra Kumar Maheshwari v. Union of India to satisfy the Court that this type of circular is of the nature of guidelines which does not fall in the category of legislation, direct, subordinate, ancillary. It has only advisory role to play. It will not be taken into account under judicial control unless it involves arbitrariness or discrimination or undermines a basic public purpose and the statute under which it is issued. Therefore, I cannot also accept the submission of Mr. Lahiri.

34. Therefore, I do not want to deviate from my original view point. Accordingly, the ratio of the judgment and order which has been passed in W.P No. 1401 of 2003, Bidhya Charan Singha v. State of West Bengal, will govern these two matters i.e W.P No. 8805(W) of 2003, Mala Majhi v. State of W.B and W.P No. 9274(W) of 2003, Smt. Nirmala Goreit v. State of W.B There is only one additional point which was unsettled in the earlier occasion in spite of the observations, settled hereunder. The reservation of the posts of the Chairpersons of the Gram Panchayats at any level is declared unconstitutional. Therefore, State Government is entitled to amend the Act suitably to elect a Chairperson on the basis of the Art. 243-C without being influenced by the Art. 243-D of the Constitution of India unless, of course, by due delebrations a consensus is arrived at in the light of the judgment and order of the Court. In other words, if there is any conflict between the rule of majority and rule of reservation, the rule of majority will prevail because the same is very foundation of the Indian democracy. Precisely the post of Pradhan at any level being Chairperson of a Gram Panchayat cannot be declared as reserved for any category being chief post of the local self-Government. However all possible steps are to be taken for the future election without disturbing the existing one as such no individual relief is granted to any of the petitioners. For the existing one a roster system can be implemented by Governmental circular to test the future course of action. In any event if this roster system is made, the qustion of roster as directed earlier amongst the members of one category need not be implemented. Thus, the writ petitions are disposed of. No order is passed as to costs.

35. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.

Order accordingly.