JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by Smt. Jyoti Bai and Smt. Singari Bai against an order of Civil Judge, Nagaur, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960.
(2.) TWO women were to be co-opted on 5th January, 1960. Nomination papers were filed by Smt. Jyoti Bai, Smt. Singari Bai, Smt. Heeran and Smt. Pyarudi. The nomination papers of Smt. Heeran and Smt. Pyarudi were rejected by the Sarpanch on the ground that the Panchas who had nominated them had not taken the oath of office prescribed under sec. 15 of the Rajasthan Panchayat Act. He accordingly declared Smt. Jyoti Bai and Smt. Singari Bai as duly co-opted without taking a poll. Smt. Heeran and Smt. Pyarudi challenged the co-option of Smt. Jyoti Bai and Smt. Singari Bai on the ground that their nomination papers were wrongly rejected by the Sarpanch. The learned Civil Judge followed the decision of this Court in Mool Chand Jhanjhari Vs. Collector Ajmer (1) and held that it was not necessary for a Panch to take oath of office before filing a nomination paper. He accordingly set aside the co-option of the petitioners. The petition has been contested on behalf of Smt. Heeran and Smt. Pyarudi. The point which came up for consideration in Moolchand's case (1) was whether it was necessary for a member of the Panchayat Samiti to take oath of office before filing a nomination paper in co-option proceedings. Section 72 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 runs as follows: - "72. Oath of allegiance to be taken by the members.- (l) Every member of a Panchayat Samiti and a Zila Parishad shall, before taking his seat, make, at a meeting of the Panchayat Samiti or the Zila Parishad, or in the alternative before the Collector, an oath or affirmation of his allegiance to the Constitution of India in the following form, namely: - "i. . . . . . . . . having become a member of the Panchayat Samiti Zila Parishad, swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will faithfully discharge the duty upon which I am about to enter. " (2) Any member who fails to make, within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down in sub-sec. (1) shall cease to hold his office and his seat shall be deemed to have become vacant. (3) No member shall take his seat at" a meeting of the Panchayat Samiti or the Zila Parishad or do any act as such member unless he has made the oath or affirmation as laid down in this section. (4) The oath or affirmation referred to in sub-sec. (1) shall be taken, at the meetings refer red to in secs. 1l and 12 or in secs. 44 and 45, before the officer presiding thereat and, if any member does not so take the oath or affirmation, he may do so subsequently within the time specified in sub-sec. (2 ). (a) before the Pradhan, if he is a member of the Panchayat Samiti, and (b) before Pramukh, if he is a member of the Zila Parishad. " It is contended on behalf of the petitioners that this decision is not applicable to the facts of the present case as sec. 15 of the Rajasthan Panchayat Act is differently worded. Section 15 of the Rajasthan Act runs as follows: - "15. Oath or affirmation.- Every Panch or Sarpanch shall, as soon as possible after his election or appointment, as the case may be make in the prescribed manner the prescribed oath or affirmation of his office and, unless this is done, shall not perform any of his functions under this Act. " I am unable to hold that there is any vital difference in the wordings of sec. 72 of the Rajasthan Panchayat Samitis & Zila Parishads Act and sec. 15 of the Rajasthan Panchayat Act so as to make the decision in Moolchand's case (1) inapplicable to the facts of the present case. Section 72 (3) of the Rajasthan Panchayat Samitis and Zila Parishads Act affirms that no member shall take his seat at a meeting of the Panchayat Samiti or do any act as such member unless he has taken the prescribed oath. Section 15 of the Rajasthan Panchayat Act also lays down that unless oath is taken by a Panch or Sarpanch, he shall not perform any or his functions under the Panchayat Act. The language used in sec. 15 of the Rajasthan Panchayat Act is similar to the language used in sec. 61 of the Rajasthan Municipalities Act, 1959, wherein it is laid down that every member shall, before entering upon his duties as such, make and subscribe before the Collector or his nominee for the purpose an oath or affirmation in the prescribed form. The question whether or not it was necessary for the elected members of the municipal board to take oath before taking part in co-option proceedings came up for consideration before a Division Bench of this Court in Manak Chand Vs. The State of Rajasthan (2 ). It was observed that it was not necessary that elected members should take oath of office before embarking on the duties of co-option. The reasoning given in that case is applicable to the present case to which the provisions of the Panchayat Act are applicable. The co-option of members is a step in the formation of Panchayat itself. The elected Panchas and the Sarpanch in taking part in co-option proceedings exercise a statutory right of electing further members and do not perform any duty as members of the Panchayat. It is only after the Panchayat is fully constituted that the Sarpanch, the elected members and the co-opted members can function as a Panchayat. Till the Panchayat is not fully constituted, a Panch or a Sarpanch does not perform any function as a member of the Panchayat. It appears to me that the expression "shall not perform any of his functions under this Act" contemplates the discharge of a duty as a member of the Panchayat. I accordingly hold that the decision of the learned Civil Judge is correct and dismiss the petition. In the circumstances of the case, I direct that parties shall bear their own costs of this petition. .;