Sunil Kumar Garg, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 22.7.2002 against the respondents with the prayer that by an appropriate writ, order or direction, the circular dated 12.7.2002 (Annex. 2) issued by the respondent No. 1 State of Rajasthan by which it was directed that on becoming the post of Sarpanch vacant belonging to reserved category, if the Vice -Chairman does not belong to reserved category, in that event, State Government could nominate any member of reserved category for taking over the charge of that vacant post and the order dated 12.7.2002 (Annex. 4) by which in compliance of circular Annex. 2 dated 12.7.2002, the respondent No. 5 Sohan Lal, who belongs to reserved category (OBC) was nominated and given charge of Sarpanch, Gram Panchayat Chunagarh, Panchayat Samiti, Sri Ganganagar till further orders or till vacancy is filled -in up by election, whichever is earlier, be quashed and set aside.
(2.) THE case of the petitioner as put forward by him in this writ petition is as follows The petitioner is elected Panch Ward No. 1 Gram Panchayat Chunagarh District Sri Ganganagar from OBC category and Shri Sultana Ram (hereinafter referred to as the deceased was elected as Sarpanch of Gram Panchayat Chunagarh from OBC category. The deceased died on 26.6.2002 and on his death, the post of Sarpanch, Gram Panchayat Chunagarh became vacant. Thus, after the death of the deceased, charge of the office of Sarpanch, Gram Panchayat Chunagarh was to be handed over to another Panch belonging to OBC. The further case of the petitioner is that in the Gram Panchayat Chunagarh, there were three Panchas belonging to OBC and, therefore, the Collector, Sri Ganganagar (respondent No. 4) decided to call a meeting of the Panchayat to elect one person in place of the deceased and Tehsildar was appointed to preside over that meeting. The Tehsildar (Revenue), Sri Ganganagar through letter Annex. 1 dated 5 -6/7/2002 called a meeting to be held on 15.7.2002 at 11.00 AM for filling up the vacancy caused due to the death of the deceased. The further case of the petitioner is that the respondent No. 3 Hira Lal Indora is MLA from Sri Ganganagar constituency and he is a close friend of respondent No. 5 Sohanlal so he wanted that the vacancy which occurred due to death of the deceased should be filled -in up by the respondent No. 5 Sohanlal. Therefore, for extraneous consideration, he got issued a circular dated 12.7.2002 (Annex. 2) by which it was directed that on becoming the post of Sarpanch vacant belonging to reserved category, if the Vice -Chairman does not belong to reserved category, in that event. State Government could nominate any member of reserved category for taking over the charge of that vacant post. According to the petitioner, the circular Annex. 2 dated 12.7.2002 issued by the Government of Rajasthan was against the provisions of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as "the Act of 1994") and Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as "the Rules of 1996"). Furthermore, the said circular Annex. 2 was also issued in violation of the circular issued earlier on 21.3.2002 (Annex. 3). The further case of the petitioner is that on the same day i.e. on 12.7.2002 through Annex. 4 on the vacancy which occurred because of death of deceased, the respondent No. 5 Sohanlal, who was also member of the OBC was nominated by the State Government and he was given charge of Sarpanch, Gram Panchayay Chunagarh, Panchayat Samiti, Sri Ganganagar till further orders or till vacancy is filled -in up by election, whichever is earlier.
(3.) IN this writ petition both the circular Annex. 2 dated 12.7.2002 and the order dated 12.7.2002 (Annex. 4) have been challenged on various grounds and the main grounds are as follows (i) That the circular Annex. 2 dated 12.7.2002 on the very face is arbitrary and unconstitutional and the same has been issued against the provisions of Section 25 of the Act of 1994. (ii) That under Section 25 of the Act of 1994, the power to nominate the person to take over the charge of office of Sarpanch has been given to the competent authority and as per Notification issued by the State Government under Clause (vii) of Section 2 of the Act of 1994 on 12.12.1994, which was published in the official gazette on 26.12.1994, for the purpose of Section 25, the Collector would be the competent authority and not the State Government. Therefore, appointment on the vacancy caused due to death of the deceased could only be filled -in up by the order of the Collector and not by the State Government and, therefore, order Annex. 4 is bad in law and without jurisdiction and thus, cannot be sustained. (iii) That circular Annex. 2 and order Annex. 4 have been issued with ulterior motive and for extraneous consideration and thus, cannot be sustained. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondent No. 5. The case of the respondents is that the vacancy which occurred due to death of the deceased, could not be filled -in up under the provisions of Section 25 of the Act of 1994, but it should be filled -in up under the provisions of Sub -section (2) of Section 26 of the Act of 1994 and therefore, the appointment of respondent No. 5 by the State Government through Annex. 4 cannot be said to be illegal one. Furthermore, the circular Annex. 3 dated 21.3.2002 was not in consonance with the provisions of the Act of 1994 and that is why, circular Anenx. 3 was superseded by issuance of circular Annex. 2 dated 12.7.2002, According to the respondents, the only power for nomination of the Sarpanch under Sub -section (2) of Section 26 of the Act of 1994 is vested with the State Government and that power was rightly exercised by the State Government through Annex. 4, as Collector and Tehsildar had no authority under the provisions of the Act of 1994 to fill in up the vacancy caused due to the death of any Sarpanch. It has been further contended that Section 25 of the Act of 1994 is not applicable in the present case and on the contrary, reliance has been placed on Section 42 of the Act of 1994. Hence, it was prayed that the writ petition filed by the petitioner be dismissed.;