Rule 23 of the Government Servants' Conduct Rules, 1926, does not create an ineligibility for election in the case of Government Servants.

( 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. It is 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. S