Alok Sharma, J. - (1.) The issue in all the petitions is as to whether the Chairpersons/Members of the Panchayati Raj Institutions can be removed, proceeded against in an enquiry under Sec. 39 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter "the Act of 1994") read with Rule 23 of the Panchayati Raj Rules, 1996 (hereinafter "the Rules of 1996") and/or suspended under Sec. 38(4) of the Act of 1994 in respect of pre -election disqualifications.
(2.) Counsel for the petitioners have submitted that the issue referred to above is covered on all fours by the Full Bench judgment of this Court in the case of Smt. Sameera Bano v/s. State of Rajasthan [ : 2007 (2) RLW 1674] wherein it was held that an elected Sarpanch/Member of the Panchayat, cannot be proceeded against by the government for alleged pre -election disqualification in an administrative enquiry or removal in the exercise of powers under Sec. 39 read with Sec. 19(1) of the Act of 1994. It has been submitted that the same issue was subsequently adjudicated by the Single Bench of this Court, following the Full Bench judgment aforesaid, in the case of Seema Devi Tomar v/s. State & Ors. [ : 2008 (2) RLW 1764 (Raj.)]. It has been submitted that various election petitions against the elected Chairpersons and Members of the Panchayati Raj Department are pending as provided for under the Act of 1994 as also are First Information Reports on allegations of forgery in obtaining qualifications making the candidates eligible for the election, yet the State Government is seeking to initiate parallel statutory enquiry in respect of the same alleged pre -election disqualifications/forgeries and in the course thereof has even suspended the elected Chairpersons and Members of the Panchayati Raj Institutions by resort to Sec. 38(4) of the Act of 1994 in a manner wholly illegal and arbitrary. The very maintainability of enquires under Sec. 39 of the Act of 1994 and Rule 23 of the Rules of 1996 and suspension under Sec. 38(4) of the Act of 1994 for reason of alleged pre -election disqualification has been impugned.
(3.) Mr. Anurag Sharma, AAG appearing for the respondents has relied upon the judgment of the Apex Court in the case of Rabindra Kumar Nayak v/s. Collector, Mayurbhanj, Orissa & Ors. [ : (1999) 2 SCC 627] to contend that the judgment of the Full Bench of this Court in the case of Smt. Sameera Bano (Supra) is per incuriam. He submitted that a similar issue arose before the Apex Court where the question formulated was whether for impugning the election of a returned candidate only an election petition under Sec. 44 -A of the Orissa Panchayat Samiti Act, 1959 (hereinafter "the Act of 1959") was maintainable on ground detailed in Sec. 44 -L or proceedings under Sec. 45 -B of the Act of 1959 for the same purpose would also be maintainable. Ss. 44 -A, 44 -L and 45 -B of the Act of 1959 read as under: Section 44 -A. No election of a person as a member of a Samiti held under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. Section 44 -L. (1) The Election Commissioner shall declare the election of a returned candidate void, if he is of the opinion - - (a) that such person committed during or in respect of the election proceedings a corrupt practice as specified in Sec. 4 -N; (b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes; (c) that such person was disqualified for election under the provisions of this Act; (d) that any nomination paper has been improperly rejected; or (e) that there has been any non -compliance with, or breach of any of the provisions of, this Act or the rules made thereunder. (2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the Officer or Officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election.; Section 45 -B. (1) Whenever it is alleged that any member of a Samiti is or has become disqualified, or whenever any such member is himself in doubt whether or not he is or has become disqualified such member or any other member may and the Chairman at the request of the Samities shall, apply to the District Judge, having jurisdiction over the place where the office of the Samiti is situated, for a decision on the allegation or doubt. (2) The District Judge after holding an enquiry in the prescribed manner shall determine whether or not such member is or has become disqualified and his decision shall be final. (3) Pending such decision the member shall be entitled to act as if he was not disqualified.";