Dave, J. - (1.)THIS is a writ application under Art. 226 of the Constitution of India.
(2.)NOBODY has put in appearance on behalf of the non-petitioners, nor any one of them has cared to file any reply. The facts stated by the petitioner, therefore, remain uncontroverted
It is averred by the petitioner that he was elected as a member of the Municipal Board, Nagaur, in May 1958, and thereafter, he continued to attend the meetings of the said Board till 17th October, 1959, when the Rajasthan Municipalities Act No. 38 of 1959 came into force and whereby the Rajasthan Town Municipalities Act of 1951, under which the elections were held, was repealed. He proceeds to state that under the Rajasthan Town Municipalities Act of 1951, which will hereinafter be referred as the Old Act, he was a qualified member of the Board, even though he was a part-time Government servant, being an Assistant Public Prosecutor. After 17th October, 1959, when the Rajasthan Municipalities Act of 1959 came into force, he suffered from disqualification under sec. 26 (viii) thereof, because persons holding even part-time appointments under the Central or a State Government or a Local authority were disqualified for being members of the Board. As soon as the said Act, which will hereinafter be called as the New Act, came into force, he stopped attending the meetings of the Board as a conscientious lawyer. On 18th February, 1960, the Rajasthan Municipalities (Transitory Provisions) Order, 1960, which will herein-after be referred as "the Order", came into force and thereby the words "or part-time" appearing in clause (viii) of sec. 26 of the New Act were omitted till the constitution of the first municipal board or municipal council, as the case may be, came into existence under the New Act. The petitioner goes on to say that after the said Order came into force, the disqualification with which he had suffered temporarily was removed and so he commenced attending the meetings of the Board. He informed the Government that he had recommenced attending the meeting by a letter dated 1st March, 1960, a copy of which marked Ex. 5 has been placed on the Board's meeting on the 20th March, 1960, and on that day, the members of the Board raised no objection about his attending the meeting. On the other hand, they unanimously passed a resolution put forward by Shri Navratanraj Mehta, whereby they approved and welcomed his return to the meeting of the Board and impliedly granted him leave for the period during which he had remained absent from the meetings of the Board on account of the change which was effected in law. It is alleged by the petitioner that on the 30th April, 1960, an important meeting of the Board was scheduled to be held for considering a vote of no-confidence in the Chairman. Only a day before that meeting i. e. on 29th April, 1960, the petitioner received a copy of a letter of the District Magistrate, Nagaur, at about 9. 30 P. M. intimating him that the Director of Local Bodies had informed the Collector on phone that the petitioner was no more member of the Board, as he was removed from the membership for having incurred disqualification by remaining absent in 3 consecutive meetings of the Board. He also received a wire to the same effect from the Director of Local Bodies. He further received a communication No. MPL/gen. 7026/ DOM 60 dated 29th April, 1960, from the Director of Local Bodies confirming the said telegram. It is this order of the Director of Local Bodies which is sought to be impugned by this application.

It is alleged by the petitioner that the Director of Local Bodies had issued the said Order on the eve of the meeting of the Board, which was called to discuss the no-confidence motion in the Chairman with the sole and ulterior motion to help the Chairman since his continuance in office depended on a very thin margin of votes. It is further urged that in view of the change which was effected in section 26 of the New Act he could not possibly attend the meetings of the Board from 17th October, 1959 to 18th February, 1960, when clause (viii) of sec. 26 was again amended by the said order of 1960. It is contended by him that the Director of Local Bodies' order dated 29th April, 1960, is thus illegal and, therefore it should be quashed. It is further urged that when the Municipal Board had itself impliedly given him leave of absence for the period between 17th October, 1959, and 18th February, 1960, there was absolutely no justification for the Director of Local Bodies to remove the petitioner under sec. 63 of the New Act.

We have given due consideration to the points raised by the petitioner. It may be pointed out that under the Old Act, the term "salaried servant of the Government" was defined in section 4 clause (17) as follows: - "salaried servant of the Government" shall not include a retired servant of the Government in receipt of pension or a person in receipt of a salary from the Government who is not a fulltime servant of the Government" The petitioner was Assistant Public Prosecutor, he was free to take up civil cases and so he was not a full-time servant of the Government. He was, therefore, not covered by the definition of "salaried servant of the Government". He was a duly elected member of the Municipal Board and it is not denied that he continued to attend the meetings of the Board till 17th October, 1959, when the New Act came into force. Under the New Act, it was provided in sec. 26 that a person, notwithstanding that he was otherwise qualified, shall be disqualified for being chosen as, and for being, a member of a board if he held a salaried or part-time appointment under the Central Government, or a State Government or a local authority. From 17th October, 1959, therefore, the petitioner suffered from disqualification for being a member of the Municipal Board and he acted very wisely in remaining away from the meeting of the Board thereafter. On 18th February, 1950, sec. 26 of the New Act was amended by the said Order of 1960 and the words "or part-time" were deleted from Cl. (viii) of sec. 26 till the constitution of the first muni-* cipal board or municipal council, as the case may be, under the New Act. The petitioner's disqualification, therefore, was removed from 18th February, 1960, and thereafter, he did not absent himself from any meeting of the Board. It is thus clear that during the period commencing from 17th October, 1959, to 18th February, 1960, the petitioner remained absent from the meetings of the Board not on account of any personal reasons or of his own will but because he suffered from a statutory disability. Sec. 63 (l) (a) of the New Act, under which the order of removal was passed against the petitioner, runs as follows: - "removal of members - (1) The State Government may, subject to the provisions of subsections (2) and (3) remove a member of a board on any of the following grounds; namely: - (a) that he has absented himself from the meetings of the board for more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period without leave of the board: Provided that the period during which such member was in jail as an under trial prisoner or as a detenu or as a political prisoner shall not be taken into account" A plain reading of the said provision would show that its main object is to see that the members of the Board attend the meetings and take active interest in its work. If some member absents himself from the meetings for more than three consecutive months or three consecutive general meetings, then he incurs the liability of removal by the Government after he is afforded an opportunity to explain the cause of his absence. The very use of the words "absented himself" shows that the member's absence should be of his own volition e. g. , carelessness, negligence or lack of interest in the work of the Board etc. If on the other hand, the absence is forced upon him by some law, then it cannot be said that he had absented himself. It would be manifestly unjust to compel him, on the one hand, not to take part in any meeting by disqualifying him temporarily and then on the other hand to accuse him for his absence from the meetings. In the present case, the petitioner was temporarily disqualified from being a member and under such circumstances, it was not correct on the part of the Director of Local Bodies to remove him from the membership of the Board under sec. 63 (1) (a ). It may be further pointed out that the petitioner has placed on record a copy of the resolution, which, was moved by one of the members of the Board on 4th March, 1960, recommending to the Government that no action should be taken against the petitioner on account of his absence from the meetings of the Board during the period referred above. This resolution was passed unanimously In the meeting of the Board on 20th March, 1960, and thus it is cleat that the Board impliedly gave leave to the petitioner to absent himself from the said meetings, since he was suffering from a statutory disability in that duration. There was thus all the more reason that the Director of Local Bodies ought not to have proceeded against the petitioner under sec. 63 (l) (a) of the New Act. It appears from Exs. P3 and P4 produced by the petitioner that when a notice was given to him to show cause against his removal under sec. 63, be had brought all these facts to the notice of the Director of Local Bodies and also to the Assistant Secretary, Government of Rajasthan, Local-Self Government Department and it is unfortunate that the facts and circumstances narrated by him were not taken into consideration before passing the order of removal against him. It has already been noted above that nobody has cared to appear on behalf of the non-petitioners to justify the action taken against the petitioner.

We, therefore, allow the writ application and hereby quash the order of the Director of Local Bodies dated 29th April, 1960. Since the application has not been contested, we leave the petitioner to bear his own costs. .

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