RABINDRA KUMAR NAYAK Vs. COLLECTOR MAYURBHANJ ORISSA

JUDGEMENT

(1.) Leave is granted.

(2.) The question that arises in this appeal is whether the appellant was holding 'office of profit' under the State Government while functioning provisionally as Assistant Public Prosecutor and was therefore disqualified to become a member/Chairman of a Samiti under the Orissa Panchayat Samiti Act, 1959.

(3.) The factual backdrop in which the question falls for consideration may briefly be set out here: On August 14, 1995 the appellant, an advocate practising in the Courts of Cuttack, was appointed as Assistant Public Prosecutor provisionally under Rule 5(4) of the Orissa Law Officers Rules, 1971 (for short 'the Rules') read with Section 25 of the Criminal Procedure Code, 1973 to conduct the criminal cases. He was entitled to daily fee of Rs. 100/- subject to restrictions under the rules. While so he contested the election to the seat of the member of Moroda Panchayat Samiti and the fourth respondent contested for the seat of member of Gudigan Panchayat Samiti. After being elected as members, both of them contested in the election to the post of Chairman of Moroda Panchayat Samiti. Appellant was declared elected as Chairman on February 10, 1997. Having lost in the contest, the fourth Respondent initiated proceeding against the appellant under Section 45-B of the Orissa Panchayat Samiti Act, 1959 (for short 'the Act') in the Court of the District Judge, Mayurbhanj on the ground that as Assistant Public Prosecutor he was holding 'office of profit' under the Government, so he was not eligible to be either a member or the Chairman of Moroda Panchayat Samiti. The appellant resisted the same on two grounds:first that his appointment under Rule 5(4) of the Rules was a stop-gap arrangement so he was not 'holding office of profit'; and second that the petition filed by the fourth respondent under Section 45-B of the Act was not maintainable as after the election was over his only remedy was to file an election petition under Section 44-A of the Act.