- (1.) THE petitioner, by this writ petition, has sought to challenge the order dated 02.07.2009 (Annexure-3). THErefore, it has been prayed that the said order may be quashed and set aside. Further, it is prayed that the respondents may be directed to appoint the petitioner on the post of Sarpanch of Gram Panchayat, Kasba Shahar, District Karauli.
(2.) THE relevant facts giving rise to the present writ petition are that the elections of Gram Panchayat, Kasba Shahar, were held in the year 2005. THE petitioner who belongs to the Scheduled Caste category was elected as a panch from Ward No.1. THE post of Sarpanch was also reserved for the Scheduled Caste category. Shri Ramdev Sambhariya was elected as Sarpanch of the said Gram Panchayat. THEreafter, Sarpanch Ramdev Sambhariya expired on 26.05.2009 as a result of which, the post of Sarpanch of the Gram Panchayat had become vacant. THE District Collector, Karauli had called all the panchas of the panchayat belonging to scheduled castes category. In this regard, notice was issued by Zila Parishad Karauli on 23.06.2009 and by Panchayat Panchayat Samit, Nadoti on 24.06.2009. In pursuance thereof, the Gram Panchayat had issued notice on 25.06.2009. THE District Collector, Karauli had then appointed Shri Jagdish, respondent No.6 as Sarpanch of the Gram Panchayat, Kasba Shahar vide order dated 02.07.2009. It is the said order which has been assailed by the petitioner in the present writ petition. The case of the petitioner is that the appointment of respondent No.6 as Sarpanch on 02.07.2009 by District Collector, Karauli respondent No.2 is in gross violation of the provisions of the Rajasthan Panchayati Raj Act, 1994 and Rules made thereunder. The post of Sarpanch of Gram Panchayat, Kasba Shahar was reserved for Scheduled Caste and accordingly late Shri Ramdev Sambhariya had been so elected. In the Gram Panchayat, there are three panchas of the said reserve category. The petitioner belongs to the Bairwa caste and as such he also falls within the category of Scheduled Caste. Therefore, he was so elected as a Panch from Ward No.1 of Gram Panchayat Kasaba Shahar, in the year 2005. According to the petitioner, when the post of Sarpanch of Gram Panchayat had become vacant, the same was to be filled up amongst the panchas who belonged to the same reserved category. The petitioner has the support of the majority of the members/panchas, as there were nine of them in his favour. Therefore, the petitioner has stated that a member belonging to reserve class and enjoys the majority in the Gram Panchayat should have been appointed on the post of Sarpanch which had fallen vacant on account of the death of Sarpanch elected in the year 2005. Therefore, it has been submitted by the counsel for the petitioner that the action of the respondents was in total violation of the provisions of Rajasthan Panchayati Raj Act, 1994 and the Rules made thereunder in appointing respondent No.6 as Sarpanch of Gram Panchayat, Kasba Shahar. Further, he has submitted that the impugned order is not legally sustainable in as much as it is against the spirit of the Panchayati Raj Act and the Rules. It has also been submitted that by passing of the impugned order, the respondents had ignored and disregarded the wishes of the majority of the panchas of the Gram Panchayat. The respondent State has contested the writ petition by way of filing reply to it. The case of the respondent is that respondent No.6 has been appointed by District Collector, Karauli, respondent No.2 as per the law and there has been no violation of any provision of the Rajasthan Panchayati Raj Act or the Rules framed thereunder. Further, it is the case of the respondents that normally a vacant post in a Panchayati Raj institution is to be filled up by election but it is not neessary to be so filled up if the term of such vacancy would expire within six months from the date of its occurrence. In the instant case, the elected Sarpanch Shri Ramdev Sambhariya had expired on 26.05.2009 and the Block Development Officer of Panchayat Samiti, Nandoti had informed about it to the District Collector on 01.06.2009 with the request that the vacant post may be filled up as per Section 25 of the Panchayati Raj Act, 1994. Further, it is stated that the post of Sarpanch, in the instant case, was reserved for Scheduled Caste and the District Collector being the appropriate authority appointed respondent No.6, a panch from the reserved Ward No.2, on the post of Sarpanch. It has also been submitted that there were three panches belonging to Scheduled Caste and the post of Sarpanch was also reserved for the same category. The District Collector had chosen the best way of selecting the Panch from amongst the three, by way of holding eligibility test. Therefore, there was no illegality in the method/procedure adopted by the District Collector for appointing a Sarpanch. The respondent State has denied about holding of a competitive examination for selection of the Sarpanch. It was for watching their eligibility that they were called on 29.06.2009 at 11.00 a.m. in the office of Zila Parishad, Karauli. The respondent State has denied that the petitioner enjoys the support of the majority of panchas, for want of knowledge. It has been submitted by the counsel for the respondents that Section 25 of the Act of 1994 empowers the competent authority to appoint a person for handing over the charge of Sarpanch. Respondent No.6 has also filed a separate reply whereby he has denied the averments made in the writ petition. He has raised objection with regard to the maintainability of the writ petition and also eligibility of the petitioner to be appointed as a Sarpanch or even as a panch in view of the provisions under Section 19(1) of the Rajastha Panchayati Raj Act as he is having more than two children. He has also submitted that nine panches had never requested respondent No.2 by way of representation as mentioned in para 5 of the writ petition. Further, it is stated that even otherwise such a representation has no recognition in the eye of law. According to respondent No.6, claim of majority is a disputed question of law and he has sought indulgence of the Court to direct the petitioner to prove the majority by leading evidence before the competent court. Respondent No.2 is said to have adopted a fair method to appoint the most eligible and knowledgeable person as Sarpanch in a number of Gram Panchayats in similar manner and as per the information of the answering respondent, none of them had challenged the same. It has also been submitted that such like affidavits as mentioned in the writ petition have no sanctity for determination of the questions involved in the present case. Respondent No.2 is said to have appointed respondent No.6 after adjudging the suitability of all the three candidates and he was found to be most suitable. Before adverting to the merits of the case, it would be more appropriate to take note of the relevant provisions of law i.e. Sections 25, 26 and 42 of the Rajasthan Panchayati Raj Act, 1994, which are as under:- 25. Handing over of charge.- (1) Whenever the election of a member or Chairperson or Deputy Chairperson of a Panchayati Raj Institution has been declared to be void, or whenever such member or Chairperson or Deputy Chairperson - (i) is not found qualified or becomes disqualified under Sec. 19 to hold his office, or (ii) ceases to be so under the provisions of this Act, or (iii) fails to make the prescribed oath or affirmation in accordance with the provisions of this Act, or (iv) is removed from office or is suspended under Sec. 38; or (v) resigns his office under Sec. 36, or Whenever a motion of no-confidence is passed against the Chairperson or the Deputy Chairperson of a Panchayati Raj Institution under Sec. 37; or Whenever the term of office of a Panchayati Raj Institution expires or the election of all the members of Panchayati Raj Institution with or without the Chairperson has been declared void, or such election or the proceedings subsequent thereto have been stayed by an order of a competent Court; or Whenever a Panchayati Raj Institution is dissolved under this Act, such member or Chairperson or Deputy Chairperson or all any of them shall forthwith handover charge in the prescribed manner of his or their office including all papers and properties pertaining to such office in his or their actual possession or occupation- (a) in the case of a member, to the Chairperson of the Panchayati Raj Institution concerned; (b) in the case of Chairperson, to the Deputy Chairperson of such Panchayati Raj Institution or, where there is no Deputy Chairperson, to such member of such Panchayati Raj Institution or other person as the competent authority may direct 1[;] 2[Provided that charge of office of any Chairperson who was elected to an office reserved for the persons belonging to Scheduled Castes or the Scheduled Tribes or the Backward Classes or for Women, shall be handed over as per directions of the Competent Authority, to a member, if any, of the said Castes, Tribes or Classes or a Woman member, as the case may be, in the manner as may be prescribed and where there is no such member belonging to said Castes, Tribes, Classes or a Woman member to whom charge can be given as aforesaid, the charge shall be handed over in the manner as may be prescribed, to any member not belonging to the aforesaid categories.] (c) in the case of a Deputy Chairperson, to the Chairperson of the Panchayati Raj Institution concerned or, where there is no such Chairperson, to such member of such Panchayati Raj Institution or other person as the competent authority may direct; (d) in the case of a Panchayati Raj Institution of which the term of office has expired, to such new Panchayati Raj Institution as has been constituted; and (e) in the case of a Panchayati Raj Institution dissolved under this Act, to the 20 Administration appointed under Sec. 95. (2) Upon the election or appointment of a new member or Chairperson or Deputy Chairperson or upon the constitution of a new Panchayati Raj Institution, and after the oath or affirmation of office required by this Act has been duly made, the person holding, on the date on which such oath or affirmation is made, charge of the office of such member or Chairperson or Deputy Chairperson of the Panchayati Raj Institution shall in pursuance of Sub-sec. (1), forthwith handover to the person so elected or to the Panchayati Raj Institution so constituted, as the case may be, the charge of office including all papers and properties pertaining to such office in his actual possession or occupation. (3) If any person fails or refuses to handover charge of office as required under Sub-sec. (1) or Sub-sec. (2), the competent authority may, by order in writing, direct the person so failing or refusing to hand over such charge forthwith to the person or persons entitled thereto under Sub-sec. (1) or Sub-sec. (2), as the case may be. (4) If the person to whom a direction has been issued under Sub-sec. (3) fails to comply with the direction, he shall, on conviction, be punished with imprisonment for term not exceeding one year or with fine not exceeding one thousand rupees or with both. (5) Any officer empowered by the competent authority in this behalf may, without prejudice to any action that has been or may be taken under Sub-secc. (4) use such force as may be deemed necessary for enforcing the provisions of Sub-sec. (1) and (2) and may for that purpose invoke in the prescribed manner the assistance of the police or the nearest Magistrate competent to do so. 26. Sarpanch and his election.- (1) Every Panchayat shall have a Sarpanch who must be a person qualified to be elected as a Panch and shall be elected by the electors of the whole Panchayat Circle in the prescribed manner. (2) If the electors of a Panchayat Circle fails to elect Sarpanch in accordance with this section of if the Panchas fails to elect an Up-Sarpanch, the State Government shall appoint a person to the vacancy till vacancy is filled up by election within a period of six months and the person so appointed shall be deemed to be a duly elected Sarpanch or Up-Sarpanch, as the case may be. 42. Filling up of vacancies- The event of the office of a member or chairperson or deputy chairperson of a Panchayati Raj Institution becoming vacant by death, removal, resignation or otherwise under this Act shall be forthwith reported to the State Election Commission. An election to fill the vacancy shall be held in such manner as may be prescribed. The foregoing provisions of this Act shall apply to such election and the member or the chairperson or the deputy chairperson so elected shall hold office for the remainder of the term during which the outgoing member or the chairperson or the deputy chairperson would have been entitled to hold office, if the vacancy had not occurred : Provided that it shall not be necessary to fill up the vacancy if the term of such vacancy would expire within six months from the date of the occurrence of the vacancy. Coming to the facts of this case, after election of Ramdev Sambhariya as Sarpanch of Gram Panchayat in the year 2005, he expired on 26.05.2009. As a result of which the post of Sarpanch of Gram Panchayat had become vacant. A look to the provision of Section 25 of the Act of 1994 goes to show that it enumerates five contingencies when the charge of Sarpanch is handed over. But in case of death of duly elected Sarpanch, the provision of Section 25 of the Act has no application because the said contingency has not been envisaged therein. Therefore, the case of the respondent that on the request of Block Development Officer vide letter dated 01.06.2009, the Collector proceeded and appointed the respondent as Sarpanch under the provisions under Section 25 of the Act of 1994 cannot be accepted, as being illegal and contrary to the relevant law.
(3.) A reading of Section 42 of the Act makes it clear that in the event of the office of a member, chairperson or deputy chairperson of the Panchyati Raj Institution having become vacant by death, then the vacancy is to be filled up by election if the term of such vacancy does not expire within six months. A person so elected is to hold office for the remaining period of the term during which the outgoing person would have been entitled to hold office, if the vacancy had not occurred. Under Section 26 of the Act, the State Government is empowered to appoint a person till the vacancy is filled up by election within a period of six months. Of course, the said provision is applicable in a situation when the electors of a Panchyat Circle fails to elect Sarpanch in accordance to sub-section (1) of Section 26 or if the panchas fails to elect an Up-sarpanch. Therefore, there is a consonance between the provisions of Section 26 and 42 of the Act of 1994 in the manner that if a vacancy is caused due to death, the State Government can fill up such vacancy by appointment till election are held for the same. In other words, the State Government has power to fill up the vacancy on account of the death of a member or chairperson or deputy chairperson till such vacancy is filled up by election. In the instant case, the post of Sarpanch had become vacant in the month of May, 2009 on expiry of duly elected Sarpanch Ramdev Sambhariya and such vacancy could have been filled up by an appointment made by the State Government until the elections were to be held in accordance to Section 42 of the Act, as the term was to expire after six months from the date of the occurrence of the vacancy. The tenure of Sarpanch so elected would have more than six months, as term of Panchyat would come to an end on 30.01.2010. Therefore, the proviso to Section 42 would not be attracted and the respondent State, after appointing the person on the post of Sarpanch in the month of May should have proceeded for holding the election to fill up the vacancy of Sarpanch which had occurred on account of the death of duly elected Sarpanch. But the respondent State had proceeded to appoint the Sarpanch, before the new elections in an illegal manner which was not prescribed under law. The District Collector was to appoint a person amongst the members belonging to the reserved class to which the deceased Sarpanch had belonged. The Collector had called a meeting for appointment of Sarpanch and proceeded to hold an eligibility/competitive examination of the panchas belonging to the reserved class. The District Collector had not taken into consideration the fact that petitioner had raised his claim on the basis of majority of the panchas being in his favour. It is true that a person other than the one belonging to the reserve class could not have been appointed on the post of Sarpanch. But when there were three eligible panchas then the learned Collector should have adopted a democratic method to select a person amongst them. Moreover, it was not notified in advance that the persons eligible for being appointed on the post of Sarpanch were to face test/competitive examination on the basis of which they would be adjudged suitable. ;