CHAUHAN, J. - (1.) THOUGH the matter was listed today for grant of interim relief, yet with the consent of learned counsel for the parties, the matter was heard finally.
(2.) THE instant writ petition has been filed for quashing the order dated 27. 01. 2001 (Annx. 6) by which the petitioner has been removed from the post of Sarpanch being disqualified and also against the order dated 09. 04. 2001 (Annx. 7) by which the seat has been declared vacant. The facts and circumstances giving rise to this case are that petitioner was elected as a Sarpanch in the election held on 04. 02. 2000. She was alleged to be disqualified to contest the election as she had given birth to a third child on 01. 04. 1996 i. e. after the cut-off date 27. 11. 1995 and as she made a misrepre-sentation, the proceedings were initiated against her. Smt. Sita Devi, respondent No. 6 filed an application/complaint to the Chief Executive Officer, Zila Parishad, Barmer on which the enquiry was conducted and the report was submitted to the Divisional Commissioner on 03. 06. 2000 wherein after being satisfied with the report, notice was issued to the petitioner, who submitted her reply on 03. 08. 2000 denying the factum that she had incurred disqualification by having the third child after the cut-off date. According to her, the last child was born to her on 20. 12. 1994. However, after considering the entire record and, particularly the certificate of vasectomy dated 29. 03. 1997 wherein petitioner's husband has recorded the age of the youngest child as one year on that day, the impugned orders have been passed. Hence this petition. Shri Choudhary, learned counsel appearing for the petitioner has raised a large number of issues and denied the factum of having third child to the petitioner after the cut-off date. However, Miss Kusum Rao, learned counsel appearing for the respondents has submitted that there is an Entry at Serial No. 23 in Book No. 2 of the Gram Panchayat, Meethadi wherein date of birth of the youngest son of the petitioner has been recorded as 01. 04. 1996. Nanu Ram, husband of the petitioner, has been given certificate of Vasectomy in which the age of the youngest son was shown as 29. 03. 1997. She has filed copies of the register of death and birth, ration card and date of birth certificate and documents showing vasectomy as Annexures R/1, R/2, R/3 and R/4 respectively. Thus, in view of the above there is no scope of interference on that count with the finding of fact recorded by the Divisional Commissioner that petitioner gave birth to the third child after the cut off date and was disqualified to contest the election. The entries in the official record carried with them the presumption of correctness u/s. 35 of the Evidence Act. Undoubtedly, such presumption is rebuttable by adducing appropriate evidence. Vide Mohammed Iqram Hussain vs. State of U. P. (1); Umesh Chandra vs. State of Rajasthan (2); and Ram Harakh vs. Hamid Ahmed Khan Petitioner did not lead any evidence before the Competent Authority to rebut the said presumption that the official record, copies of which have been filed as Annx. R/1 to R/4, were not correct. As the petitioner failed miserably to rebut the aforesaid presumption, no interference is required on that count. Section 114 of the Evidence Act provides for a similar presumption of regular performance while discharging official duties, There is no allegation by the petitioner that the entries made by the officers have been made incorrectly, to harm him. There is no such allegation in the petition, therefore, correctness of the aforesaid entries cannot be doubted.
(3.) SHRI Choudhary has raised the issue regarding the jurisdiction of the Divisional Commissioner to interfere in the matter. Miss Kusum Rao, learned counsel for the respondents has placed reliance upon See. 98 of the Rajasthan Panchayati Raj Act, 1994 which empowers the State Government to authorise any officer to perform a particular function and produced the notification dated 16. 05. 2000, by which the State has conferred the required competence on the Divisional Commissioner. Even if, in law, the Divisional Commissioner had no competence to entertain the matter, it does not require any interference on the technical ground for the reason that the Writ Court is not bound to interfere with an order merely on technical ground where the action had been taken in view of public policy and statutory provisions. The Writ Court may refuse to interfere even if the order is found to be illegal and without jurisdiction, but the Court is satisfied that the impugned order has met the ends of justice. In Mohammed Swaleh & Ors. vs. Third Additional District Judge, Meerut & Anr. (4) the Apex Court has observed as under:- "it was contended before the High Court that no appeal lies from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid before the District Judge, the order of the prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground, the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintain-able before the learned District Judge, in the appeal before the learned District Judge, the same should not be set-aside. But the High Court has exercised its jurisdiction u/art. 226 of the Constitu-tion. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore, in the facts and circum-stances of the case, justice has been done, though, as mentioned hereinbefore, technically the appellant had the point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting-aside the order of the Prescribed Authority, in exercise of the jurisdiction u/art. 226 of the Constitution, then no exception can be taken. As mentioned herein-before, justice has been done and as the improper order of the Prescribed Authority has been set-aside, no objection can be taken. " (Emphasis added ). The ratio of the aforesaid judgment squarely applies to the facts of this case. Even if the Divisional Commissioner was not competent to do so, looking to the conduct of the petitioner, the order does not require any interference in exercise of extraordinary jurisdiction of the Writ Court u/art. 226 of the Constitution. ;