SINGH, CJ. - (1.) BY this writ petition, the petitioner challenges the orders, dated 7. 7. 2000 (Annex. P/8) and 11. 07. 2000 (Annx. P/9), passed by the Divisional Commissioner, Ajmer; and Development Officer, Panchayat Samiti, Mandal (Bhilwara), respectively. BY the first order dated 7. 7. 2000 the petitioner, who was elected as Sarpanch of Gram Panchayat, Dhunwala (Tehsil Mandal) on 31. 1. 2000, was placed under suspension by the Divisional Commissioner and a recommendation was made to the State Government for declaring the seat vacant since he was elected as a general category candidate, against a reserved seat. Even by the second order dated 11. 07. 2000 the petitioner was placed under suspension from the elected post of Sarpanch, Gram panchayat, Dhunwala, by the Development Officer, Panchayat Samiti, Mandal.
(2.) THE facts giving rise to the petition, are as follows:- THE District Election Officer published a list of wards and constituencies specifying the seats for Scheduled Castes, Scheduled Tribes, women, other backward classes and general candidates (Annex. P/1 to the writ petition ). THE petitioner as well as other two candidates, namely, Ashok Kumar Birla and Shanker lal Jat submitted their nomination papers and contested the election for the post of Sarpanch, Gram Panchayat, Dhunwala. While the petitioner and Ashok Kumar Birla were candidates belonging to the general category, Shanker Lal Jat was a candidate belonging to the Other Backward Classes. In the election, the petitioner was declared elected as Sarpanch on 31. 01. 2000 by the Returning Officer, since he had polled the largest number of votes, as against the other candidates. Pursuant to his election as Sarpanch, the petitioner was administered the oath of office, for which the Returning Officer issued the certificate, dated 01. 02. 2000. On 03. 05. 2000, Section 19 of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act") was amended by way of insertion of clauses (n), (o) and (p) with effect from 27. 12. 1999. At this stage, it will be appropriate to reproduce the relevant provisions of Section 19 of the Act, which runs as under:- " 19. Qualification for election as a Panch or a member.-Every person registered as a voter in the list of voters of a panchayati Raj Institution shall be qualified for election as a Panch or as the case may be a member of such Panchayati Raj Institution unless such person- . . . . . . . . . . . . . . . . . . . . . . . . (n) in case of a seat reserved for the Scheduled Castes or Scheduled Tribes or Backward Classes of the State, is not a member of any those Castes or Tribes or classes, as the case may be; (o) in the case of a seat reserved for the women, is not a woman; and (p) in the case of a seat reserved for women belonging to Scheduled Castes or Scheduled Tribes or Backward Classes, is not a member of any of these Castes or tribes or Classes, as the case may be, and is not a woman. " Besides the aforesaid addition of clauses (n), (o) and (p), in Section 19 of the Act, amendment was also carried out in Section 38 and 39 of the Act. Sections 38 and 39 of the Act, as amended, read as follows:- " 38. Removal and suspension.- (1) the State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution, who (a) refuses to act or becomes incapable of acting as such; (b) is guilty of misconduct in the discharge of duties or any disgraceful conduct; Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing record its findings on the charges leveled. 39. Cessation of membership- (1) A member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he- (a) is or becomes subject to any of the disqualifications specified in Sec. 19; or (b) has absented himself from three consecutive meeting of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or (c) is removed from the membership; or (d) resigns from the membership; or (e) dies; or (f) fails to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment. (2) Whenever it mace to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-sec. (1), the concerned authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member. Provided that until a declaration under this sub-section is made he shall continue to hold his office. " After the amendment to Section 19 of the Act, an order was issued by the Secretary, Gramin Vikas, to the Divisional Commissioners on 06. 06. 2000, for taking action, in accordance with the amended provisions of Sec. 19, read with Section 39 of the Act, in respect of the persons, who were declared elected against the reserved seats, though they belonged to the other categories. Copies of the letter were sent to various authorities, including the District Collectors. The District Election Officer cum the Collector, Bhilwara, by his letter dated 06. 06. 2000 informed the Divisional Commissioner, Ajmer that petitioner, a general category candidate was elected against the seat reserved for a Scheduled Caste candidate and this mistake occurred due to typing error in the list which was issued specifying reserved and unreserved seats. Another letter dated 7. 6. 2000 was sent by the Additional Chief Executive Officer, Zila Parishad, Bhilwara to the Divisional Commissioner, Ajmer for declaring the post of Sarpanch vacant, in accordance with the decision of a writ petition being S. B. Civil Writ Petition No. 973/2000.
(3.) IT is pertinent to point out that in that petition a dispute was raised with regard to election to the office of Sarpanch of village Jagpura (Tehsil Asind), Bhilwara. IT was claimed in that writ petition that the post of Sarpanch of the aforesaid village was reserved for a Scheduled Caste candidate, but election to the said post was held treating the seat to be unreserved. In the writ petition, it was inter alia, prayed that the seat be declared vacant, since a general category candidate was elected to the post. A learned Single Judge of this Court disposed of the writ petition with the direction that in case the petitioner files a representation before the Chief Election Officer, the same shall be considered strictly in accordance with law. On 16. 06. 2000, the Divisional Commissioner issued a notice to the petitioner, seeking his reply in regard to his election as a general category candidate against a seat, which was reserved for a scheduled caste candidate. The petitioner on 04. 07. 2000 submitted a reply, in which it was, inter alia, stated that the seat was declared to be unreserved seat; he had contested the election and was duly elected. He also claimed that the provisions of Sections 39 and 19 (n) to (p) were ultra vires of the Constitution, since they were given retrospective effect. On 7. 7. 2000, as already pointed out, the petitioner was placed under suspension by the Divisional Commissioner, and a recommendation was made to the State Government, for declaring the set of Gram Panchayat, Dhunwala, as vacant. On similar lines, an order dated 11. 07. 2000 was issued by the Development Officer, Panchayat Samiti, Mandal, by virtue of which the petitioner was placed under suspension. On 10. 8. 2000, the Director & Special Secretary to the Govt. of Rajasthan in Panchayati Raj Department addressed a letter to the Divisional Commissioner, whereby he conveyed the decision of the Government to the effect that the post of Sarpanch, Dhunwala shall stand vacated by the petitioner. The petitioner, being aggrieved by the aforesaid orders (Annex. P/8 & P/9) filed the instant writ petition on 23. 1. 2001. ;