R.L. Gulati, J. - (1.) THIS is a petition Under Article 226 of the Constitution of India.
(2.) THE 7th Respondent, Chandra Kishore Tiwari, was elected as Pradhan of Gaon Sabha Katogarh. He was required to take oath of his office before one Ganga Prasad Pandey, the Blook Pramukh, Block Airayan, distt. Fatchpur. It appears that Sri Tiwari was hostile towards Sri Pandey. In a strongly worded letter dt. 20 -6 -1972 he boycotted the oath administration proceedings before Sri Ganga Prasad Pandey and refused to take oath before him. He in his letter stated that he would take oath before any Administrative Officer and not before Sri Pandey. The Block Development Officer sent this letter to the Distt. Panchayat Raj Adhikari for instructions. The D.M. Fatehpur, the 4th Respondent, wrote a letter to Sri Tiwari advising him to take oath before the Block Pramukh. The Blook Pramukh wrote back to the DM that in view of the provisions con ained in Section 12 -E of the U.P. Panchayt Raj Act, Sri Tiwari shall be deemed to have vacated his office as soon as he refused to take oath in the first instance and as such, there was no question of giving him oath. The matter was then referred to the State Govt. The State Govt. came to the conclusion that the refusal of Sri Tiwari did riot come within the purview of Section 12 -E inasmuch as he had not refused to take oath before the Block Development Committee but before the Block Pramukh, who was not authorised to administer the oath. In the opinion of the State Govt. the DM or anybody authorised by him should issue instructions for fixing a date to administer oath to Sri Tiwari. Accordingly 18 -11 -1972 was fixed by the DM for administration of oath to Sri Tiwari before the Block Development Committee. In the meantime the present petition was admitted on 13 -11 -1972 and the administration of oath to Sri Tiwari was stayed. The Petitioners are the voters and the members of the Gaon Sabha Katogarh. While the Petitioner No. 1 is the Up -pradhan of the Gaon Sabha, the Petitioners Nos. 1 and 3 are the other two candidates who contested the election of the Pradhan. Their contention is that Sri Tiwari vacated the office as soon as he refused if take oath and as such, he was not enl tied to be administered oath as directed by the State Govt.
(3.) NOW there is no doubt that Under Section 12 -E(2) of the U.P. Panchayat Raj Act any member of the Gaon Sabha who declines or otherwise refuses to make and subscribe such that or affirmation as aforesaid shall be deemed to have vacated the office forthwith. But the oath of office has to be administered in accordance with Sub -section (1) of Section 12 -E, Which lays down that oath shall be taken before such authority as shall be prescribed. Rule 86 prescribes the authorities which are entitled to administer the bath. The authorities prescribed are: (1) Block Development Officer, Asstt. Block Development Officer, Asstt. Distt. Panchayat Officer Panchayat Inspector Tehsildar Naib -Tehsildar or any other Officer or officers appointed by the DM in that behalf. Now a Block Pramukh is not one of the Officer prescribed by Rule 86. He could be entitled to administer the oath if he had been nominated in this behalf by the DM. According to the Petitioner's own Showing in para 5 of the writ petition, it is the Director of Panchayat Raj, U.P. who nominated the Blook Pramukhs for administer the oath. Thus the Block Pramukhs was not a person qualified -to administer the oath and as such , the refusal of Sri Tiwari to take oath before him could not attract the provisions of Section 12 -B(2) of the U.P. Panchayat Raj Act. It follows that even though Sri Tiwari had refused to take oath before the Block Pramukh, he was justified in doing so because the latter had no authority to administer the oath. In these circumstances it cannot be said that Sri Tiwari had vacated the office of Pradhan when he declined to take bath. He is still entitled to take oath before a duly qualified Officer.;