SUBHLESH Vs. STATE OF UTTARAKHAND & ANOTHER
LAWS(UTN)-2013-8-15
HIGH COURT OF UTTARAKHAND
Decided on August 12,2013

Subhlesh Appellant
VERSUS
State of Uttarakhand and another Respondents

JUDGEMENT

V.K. Bist, J. - (1.) HEARD learned counsel for the parties and perused the record. Though counsel for the petitioner placed lengthy arguments, but ultimately he confined his argument whether in the facts and circumstances of the case the question of disqualification should have been referred to the Prescribed Authority under Section 6 -A of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) which provides that 'if any question arises as to whether a person has become subject to any disqualification mentioned in Section 5 -A or in sub -section (1) of Section 6, the question shall be referred to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final', and on this ground learned counsel for the petitioner prayed for grant of interim order today itself.
(2.) LEARNED Addl. Chief Standing Counsel for the State vehemently opposed the grant of interim order on the ground that the petitioner stood disqualified in view of Section 5 -A(c) of the Act. He submits that once a person is disqualified of being elected a Gram Pradhan or continued to be a Pradhan, the question of referring the matter to the Prescribed Authority does not arise and in any case, the petitioner is improving his case. He submitted that in the present case, it is not disputed that the petitioner was holding the office of profit, when she was elected Gram Pradhan, this fact is also admitted to the petitioner and the question whether she was getting remuneration or not, does not help the petitioner. In support of his contention, learned Addl. C.S.C. referred paragraph -11 of the decision, reported in : 2006(5) SCC -266, which is being reproduced below: - A careful examination of the decisions relied upon by learned counsel on behalf of the petitioner shows that each of those cases turned on its own facts and did not lay down any proposition of law contrary to what has been laid down in a series of decisions starting from Ravanna Subanna to Shibu Soren. It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is 'receivable' in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. Learned Addl. C.S.C. for the State further referred the judgment of Hon'ble Single Judge of this Court passed in Writ Petition No., 1367 (SS) of 2011 'Smt. Suma Devi vs. State of Uttarakhand and ors.' in which the Hon'ble Single Judge of this Court held the post of Aaganbari Karyakarti as 'office of profit'. It was also pointed out that Special Appeal No. 295 of 2011 'Smt. Suma Devi vs. State and ors.' is pending against the said judgment which has been admitted by the Division Bench of this Court but no interim order is granted by the Division Bench.
(3.) HAVING heard learned counsel for the parties and upon examining the record, it is directed that till next date of listing, execution of the impugned order dated 31.07.2013 (contained as annexure no. 1 to the writ petition) passed by District Magistrate, Haridwar, shall remain stayed.;


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