JAGAT NARAYAN, J - (1.) THIS is a petition under Art. 226 of the Constitution challenging the retirement proceedings held by Shri Karnail Singh respondent No. 6 at which the two petitioners Hariram and Hazariram, members of Sadhasar Nyaya Panchayat, were retired. The petition has been contested on behalf of Gadh Singh and Begaram respondents Nos. 4 and 5 who are the remaining Nyaya Panchas.
(2.) SEC. 27g (7) of the Rajasthan Panchayat Act lays down that as nearly as possible, one-third of the members of a Nyaya Panchayat shall retire by rotation, as soon as may be, on the expiration of every second year in accordance with rules made in that behalf by the State Government. The following rules of the Rajasthan Panchayat and Nyaya Panchayat Election R. 1960 are relevant in this connection - R. 64. When members of a Nyaya Panchayat to retire - (1 ). . . . . . . . . . . . . . . . . . (2) The Deputy District Development Officer shall, every second year, determine the number of members of a Nyaya Panchayat that shall retire upon the expiry of that year as provided in sub-sec. (7) of sec. 27c. R 65. Meeting for determining members of Nyaya Panchayats to retire first - (1) Before the expiration of two years from the date of formation of a Nyaya Panchayat, such officer, not below the rank of Tehsildar, as may be authorised by the Deputy District Development Officer in this behalf shall convened meeting of such Nyaya Panchayat on a date and time to be fixed by such officer for the purpose of determining the members of the Nyaya Panchayat who shall first retire as provided in sub-sec. (7) of sec. 27c (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R. 69. SECond retirement - (1) on the occasion of the second retirement of members of the Nyaya Panchayat, as provided in sub-sec. (7) of sec. 27c, a meeting shall be held before the expiration of four years from the date of its formation, as provided in sub-rule (1) of rule 65. (2) At this meeting the members to be retired, as determined under rule 64, shall be selected out of such of the first members of the Nyaya Panchayat as did not retire on the first occasion. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R. 70. Third and subsequent retirements - (1) On the occasion of the third or any subsequent retirement, as provided in sub-sec. (7) of sec. 27-C, no meeting shall be held. (2) After the retirement referred to in R. 69, the members to be retired on the expiration of every second year as determined under R. 64, shall be those who have been longest in office as such members. In the present case the Deputy District Development Officer first issued order Ex. P 1 dated 23. 2. 63 (page 15) appointing the Tehsildar of Nokha to conduct the retirement proceedings. In this order it was stated that one-third the total number of Panchas shall be retired. Another order Ex. A l dated 18. 3. 63 (page 27) was issued in continuation of the previous order. It was stated in it that where the number of Panchas is not divisible by three the fraction remaining after dividing the number by three shall be treated as one whole number. In accordance with this order the officer who conducted the retirement proceedings retired two Nyaya Panchas even though there were only four Panchas. In my opinion only one Panch should have been retired. Sec. 27c (7) lays down that "as nearly as possible one-third of the members of a Nyaya Panchayat shall retire by rotation". This means that the number of Panchas who are retired shall be as near as possible to one-third. Now 1/3 of four is 1-1/3 The nearest possible whole number to this is one and not two. If the number of Panchas had been 5 then the nearest possible number of Panchas who would be liable to be retired would have been 2. If it had been laid down in the law that at least one-third of the Panchas shall be retired on the expiration of every second year then alone out of 4 Panchas 2 would have to retire. I accordingly hold that the retirement proceedings were vitiated as two Panchas were retired instead of one. The next ground on which the retirement proceedings have been challenged is that they were conducted by a Naib Tehsildar and not by a Tehsildar. In Ex. P 3 (page 19), the proceedings drawn up by Shri Karnail Singh, he has described himself as Incharge Tehsildar Nokha. The contesting respondents have alleged in para 3 of their reply that the Tehsildar of Nokha Shri Mangal Chand Kochar had gone on leave from 3. 4. 63 to 1. 6. 63 after banding over charge to Shri Karnail Singh Naib Tehsildar on 1. 4. 63 and Shri Karnail Singh continued to act as Tehsildar upto 1. 6. 63 when Shri Ram Kumar Agarwal took over as Tehsildar Nokha. At the time of the hearing of the stay matter in this case I had directed Mr. Chandmal to file a copy of some order showing that Shri Karnail Singh was appointed to officiate as Tehsildar. No such order was however filed. I therefore hold that Shri Karnail Singh was only an Incharge Tehsildar and was not acting or officiating Tehsildar. Under sec. 29 (i) of the Land Revenue Act he was only empowered to perform the routine duties of the Tehsildar. The duty to conduct retirement proceedings under the provisions of the Rajasthan Panchayat Act is a statutory duty, which can only be performed by a permanent or officiating Tehsildar and not by an Incharge Tehsildar. In this connection clause 11 of the Rajasthan Civil Courts Ordinance may be referred to. It provides that the Additional Judge or Civil Judge holding temporary charge of the office of District Judge can exercise the powers of the District Judge. This provision expressly empowers such officers to exercise all the powers of the District Judge in the temporary absence of the permanent incumbent. No such provision has been made under the Land Revenue Act authorising the Naib Tehsildar to exercise the powers of the Tehsildar in the temporary absence of the latter. I accordingly hold that the retirement proceeding conducted by Shri Karnail Singh were void. A preliminary objection was taken that the present writ petition was a belated one inasmuch as the retirement proceedings took place on 11. 4. 63 whereas the present writ petition was filed on 16. 9. 63. The petitioners have explained that they ignored retirement proceedings as they were a nullity and continued to act as Nyaya Panchas. In view of this the petition cannot be said to be a belated one. In any case it is not so grossly belated that even after being heard on merits it may be dismissed on this ground when the Court finds that the impugned proceedings are a nullity. I accordingly allow the writ petition and set aside the retirement proceedings. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. . ;