ORDER
S.B. Mhase, J.
1. Heard learned Counsel for the respective parties.
2. Initially, while granting rule in this petition, it was directed to hear this petition along with Writ Petition No. 1 of 1999, in which challenge is made to the President’s election. Whereas, the present petition is in respect of the disqualification incurred by the present petitioner under sections 16(1)(g) and 44(3) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (for the sake of brevity, hereinafter, referred to as the “said Act”). The issues involved in both these matters are different and therefore, the petitions are segregated and present petition i.e. Writ Petition No. 11 of 1999 is taken up for final hearing.
3. The petitioner has also filed Civil Application No. 4844 of 1999 requesting this Court to hear the writ petition finally today, because the process of election to fill in the vacancy of the petitioner has commenced and the last date for filing the nomination paper is 11-10-1999. According to the petitioner, if the said election is allowed to he continued and concluded, then, this petition will be infructuous and if subsequently the petition is allowed then anomalous position will arise. In these circumstances, the civil application is allowed.
4. It is pertinent to note that the petitioner was elected from Ward No. 8 as a Councillor of the Beed Municipal Council in December, 1996. At that time, the petitioner was not employed anywhere. In November, 1997 the petitioner was appointed as a Daily Wage Conductor by the Maharashtra State Roadways Transport Corporation, Beed (for the sake of brevity, hereinafter, referred to as the M.S.R.T.C.), Thereafter, the respondent No. 3 has moved an application to the respondent No. 2 to the effect that as a result of the services of the petitioner as a Conductor with the M.S.R.T.C. the petitioner be disqualified. Accordingly the petitioner was disqualified by the respondent No. 2 Collector, under section 16(1)(g) of the said Act, after making necessary enquiry, on 15-12-1998. Said order passed by the respondent No. 2 is challenged by the petitioner in this petition.
5. Section 16(1)(g) of the said Act, under which the petitioner has incurred disqualification, reads as follows:-
“16(1) No person shall be qualified to become a Councillor whether by election, or nomination, who,–
(g) is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority.”
6. No doubt, M.S.R.T.C. is a Corporation of the Government established under the Road Transport Corporation Act, 1950. It is a separate statutory body, even though there may be a Government support to the said body. The M.S.R.T.C. is therefore, neither the Government nor local authority within the meaning of section 2(20) of the said Act. Not only that but the post of Daily Wage Conductor which the petitioner is holding is not an office of profit under the Government or any local authority. This issue has been considered and decided by the learned Single Judge of this Court in case of Kadam Rupsingh Bhivji v. Returning Officer, Municipal Council, Ahmednagar, . In that case, instead of M.S.R.T.C., the petitioner was employed with the Maharashtra State Electricity Board, which is also a board constituted under the Electricity Act. The employee of the M.S.R.T.C., in view of the aforesaid situation, cannot be disqualified under the provisions of section 16(1)(g) of the said Act. The order impugned is not in accordance with the law and therefore, it is illegal and needs to be quashed and set aside.
7. Second aspect, which is raised before us is that the order mentions that the notice issued by the Collector to the petitioner was received by him on 15-12-1998, on which date itself the impugned order was passed. Further, the application at Exhibit “K” was also made on 15-12-1998 and certified copy was also given on 15-12-1998. These instances show that only a show has been made to project that an opportunity of hearing was given to the petitioner to answer the notice of disqualification. We deprecate such a practice on the part of the officers, like the respondent No. 2 Collector in the matters of public importance wherein the elected representative is to be removed from the office. The order is bad and suffers from violation of the principles of natural justice.
8. Thirdly, Shri Borde, learned Counsel appearing for the respondent No. 3 points out that the section 44(5) of the said Act states that the order passed by the respondent No. 2 Collector is to be challenged before the State Government within 15 days from the date of receipt of the decision of the Collector. Thus, the learned Counsel for the respondent made an attempt to show that there is an alternate remedy available to the petitioner and the petition is not tenable. It is well settled principle that the availability of the alternate remedy is not a bar or obstacle for this Court to exercise the powers under Article 226 of the Constitution of India. Further, this petition was admitted by this Court as stated earlier and now, at this stage, it will not be appropriate to direct the petitioner to approach the State Government, and that too especially when the election process to file in the vacancy arisen because of the disqualification of the petitioner has already been commenced. We are, therefore, not inclined to entertain the objection putforth by the learned Counsel for the respondent No. 3.
9. Shri Borde, learned Counsel also raised a ground that the election process has commenced and the same should not be interfered by this Court, in view of the provisions of Article 243-ZG of the Constitution of India. We are not inclined to accept the said objection, because the said vacancy can only be filled in provided there is a vacancy. However, as we have recorded the finding that the order passed by the respondent No. 2. Collector disqualifying the petitioner
and creating a vacancy, is illegal and requires to be quashed and set aside, as a consequence, there is no vacancy available at all to be filled in by way of the election. In such a case, if the election is allowed to go on, then it will be redundant and will also put unnecessary burden on the public exchequer.
10. In the result, the writ petition is allowed. The impugned order passed by the respondent No. 2 dated 15-12-1998 disqualifying the petitioner under sections 16(1)(g) and 44(3) of the Maharashtra Municipal Council, Nagar Panchayats and Industrial Townships Act, 1965 so also the consequent process of election, which is set in motion by the respondent No. 2 to fill in the vacancy of the petitioner, is hereby quashed and set aside.
11. Rule is accordingly made absolute. No order as to costs.
12. Writ petition allowed.