- (1.) By this writ petition, the petitioner has challenged the order dated 31.5.2010 (Annexure P-12) passed by respondent No. 1 allowing the appeal of respondents No. 3 and 4 by holding that the petitioner who was working on the post of Auxiliary Nurse & Midwife is a whole time job and, therefore, she is disqualified from holding the post of Sarpanch under Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994. The petitioner was elected as Sarpanch of village Kurari, Tehsil and District Mohali. Admittedly, at that time she was working as Auxiliary Nurse & Midwife under the National Rural Health Mission. A complaint was submitted by respondents No. 3 and 4 to the District Development and Panchayat Officer, Mohali to the effect that the petitioner was liable for disqualification. The DDPO sought information from the employer of the petitioner and it came to the notice that the petitioner was appointed as ANM under RCH-II program on contract basis on a consolidated salary of Rs. 5,500/- per month under the National Rural Health Mission and that her salary was being paid out of the funds received from the Government of India under the said mission. Thereafter, the DDPO, Mohali, vide letter dated 9.9.2009 (Annexure P-4) intimated respondent No. 2 to take action against the petitioner. Accordingly, a notice was served upon the petitioner on 25.9.2009. Thereafter, the Director, Rural Development and Panchayats, Punjab ordered regular inquiry to be conducted by the Additional Deputy Commissioner (Developments) Mohali. Inquiry report was submitted on 18.11.2009 and on a consideration thereof, the notice was withdrawn. Respondents No. 3 and 4 carried the matter in revision before the Financial Commissioner-cum-Principal Secretary, Panchayat Department. The Financial Commissioner, vide order dated 31.5.2010, held as follows :- In view of the aforesaid position, the basic issue before this Court is that "whether the appointment of the Sarpanch as ANM, which has been made by Mission Director (NRHM)-cum-Director, Health Services Chandigarh Administration vide his Memo No. 3589 dated 23.3.2007 attracts the disqualification mentioned under Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994 or not." In this regard, the relevant provision is reproduced as under:- A person shall be disqualified for being chosen as and for being a member of a Panchayat if he is a whole-time salaried employee of any local authority, statutory, corporation or Board or a Cooperative society, registered under the Punjab Cooperative Societies Act, 1961, or of the Stale Government or the Central Government. In the present case, the appointment letter has been issued by the Director, Health Services, Chandigarh Administration and it is absolutely not relevant that whether such appointment was made on regular basis or on contract basis. The important thing which requires- to be seen is that such person should be a whole time salaried employee of local authority, statutory, corporation or Board or a Co-operative society, registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government. It is also an established fact that the job of Auxiliary Nurse and Mid Wife (ANM) is of whole time and it cannot be termed as a part time job. Therefore, the case of Smt. Varinder Kaur (Respondent No. 2) Sarpanch Gram Panchayat Kurari, Block Kharar, District SAS Nagar comes under the aforesaid disqualification. Accordingly, the appeal of the appellant is allowed. The order dated 16.2.2010 of Director, Rural Development and Panchayats (Respondent No. 1) is hereby quashed and the case is remanded back to the Director to pass the appropriate orders within 15 days in accordance with law.
(2.) Impugning the order dated 31.5.2010, the petitioner is before this Court.
(3.) Counsel for the petitioner has argued that firstly the Financial Commissioner (respondent No. 1) has not kept in view the dictum of the Hon'ble Supreme Court in Som Lal v. Vijay laxmi and others, 2008 11 SCC 413wherein their Lordships held that in such a case where the provision for disqualification is separately mentioned in the Punjab Panchayati Raj Act, 1994 (for short 'the first Act'), and in the Punjab State Election Commission Act, 1994 (for short 'the second Act'), it would be the provisions of the second Act which would hold the field. As per the learned counsel, the first mistake made by respondent No. 1 was in treating the matter of disqualification under Section 208 of the first Act. Counsel for the petitioner has further argued that had respondent No. 1 decided to proceed under the correct Act i.e the second Act, he would have had to take recourse to Section 12 of the second Act. Section 12 is quoted herein below:- 12. State Government to decide dispute regarding disqualification.- (1) If any question arises as to whether a member or any Panchayat or Municipality has become subject to any of the disqualifications specified in Article 243F or 243V of the Constitution of India or in Section 11, the question shall be referred for decision of the State Government and his decision shall be final. (2) Before giving any decision on such question, the State Government shall obtain the opinion of the Election Commission and shall act according to such opinion.;