JUDGMENT
1. Heard Mr. D.K. Sinha, learned Counsel for the appellant and Mr. P.K. Shahi, learned Advocate General for the respondents.
2. This appeal is directed against the order dated 18.7.2007, passed by a learned Single Judge of this Court in C.W.J.C.No. 14236 of 2006 dismissing the writ application.
3. The short facts giving rise to this appeal are as under:
The appellant, who was working on the post of Angan Bari Sevika, resigned from her post on 20th February, 2006 to contest for the post of Mukhiya of Pakharpur Gram Panchayat in the district of Arwal. Her resignation dated 20th February, 2006 was accepted on 21.2.2006 by the Aam Sabha. In the election for the post of Mukhiya, however, she was elected. After her election, the matter, however, was reported to the Election Commission that the appellant was disqualified to contest, the election of Mukhiya as she was an Angan Bari Sevika, coupled with the facts that her resignation was not accepted properly and she was holding a post of profit. The election Commission thereafter issued notices to the parties, where the appellant appeared and put forth her claim saying that, she had resigned from the post of Angan Bari Sevika on 20.2.2007 and the same was accepted by the Aam Sabha of the Gram Panchayat on 21.2.2006 and since she was duly elected on the post of Mukhiya she ceased to be an Angan Bari Sevika. On scrutiny of the matter and materials on record, the Election Commission, however, held that her resignation was hurriedly accepted, in a meeting convened by her husband, who was erstwhile Mukhiya of the Gram Panchayat in question and. since her resignation was not properly accepted she was disqualified for the post of Mukhiya. The decision of the Election Commission, however, was challenged before this Court in the writ jurisdiction by filing a writ application which was dismissed giving rise to this appeal.
4. Mr. D. K. Sinha, learned Counsel appearing on behalf of the appellant, submitted that the appellant had resigned and her resignation was accepted by the Aam Sabha of the Gram Panchayat and, thus, she ceased to be an Angan Bari Sevika and thereafter she contested the election for the post of Mukhiya where she was found successful. Learned Counsel further submitted that the post of Angan Bari Sevika is not a Government post and, therefore, she would not be deemed to be in Government service nor she was holding any post of profit. Learned Counsel also submitted that once she was declared, as elected Mukhiya the Election Commission had no jurisdiction to unseat her as the remedy was to file an election petition before the Tribunal.
5. The learned Advocate General appearing on behalf of the respondents, on the contrary, submitted that the appellant continued to work on the post of Angan Bari Sevika and her resignation since was not accepted in a valid and due mariner, she was disqualified for the post of Mukhiya. Learned Counsel in this context submitted that to convene a meeting of the Aam Sabha a seven days prior notice was required to be given which admittedly was not done and further the meeting so convened was not attended by the C.D.P.O. who was ex-officio member of the Aam Sabha. Learned Counsel further contended that in any view of the matter, the resignation, if any, tendered by the appellant could, have been accepted by the CD. P.O. under the modified circular in Clause 9 dated 26.9.2005.
6. The learned Single Judge of this Court, on appreciation of facts, pleadings of the parties and. arguments of the counsel, held, that since the writ petitioner was holding a post of profit and her resignation was not Validity accepted from the post of Angan Bari Sevika, she was disqualified for the post of Mukhiya. It further held that as per the circular dated 26.9.2005, the resignation of an Angan Bari Sevika was acceptable by the C.D.P.O. and not by the Aam Sabha which was convened hurriedly at the instance of the husband of the writ petitioner.
7. Section 136 (1) of the Bihar Panchayat Raj Act, 2006 (hereinafter to be referred to as the ‘Act’) contemplates the conditions to contest the election for the post of Mukhiya.
8. Clause (Gha) of Section 136 (1) contemplates that a person who is in service of any Establishment/Institution run by the Central Government or the State Government would be disqualified, for the post of Mukhiya. At the same time, Clause (Jha) of Sub-section (1) of Section 136 of the Act contemplates that a person should not hold any post of profit .
9. The appellant, admittedly, was functioning as an Angan Bari Sevika under a scheme of the State Government where she was getting honorarium and, thus, she was holding a post of profit in the Panchayat itself. In view of Clause (Jha) of Section 136(1) of the Act, thus, she was disqualified for the post of Mukhiya.
10. Sub-section 2 of Section 136 of the Act further contemplates that on disqualification, as referred, to above in Sub-section 1 of Section 136, the Election Commission would be competent to take a. decision in case it would be satisfied that the candidate who was elected as Mukhiya had violated the conditions aforesaid and it may declare the person concerned as not fit for the post aforesaid. The right to set aside the election, thus, also vests in the election Commission.
11. From the materials on records it appears that the provision of the circular dated 26.9.2005 which was mandatory was not followed nor the mandates of Clause 5 of the same were observed by not convening a meeting with prior notice.
12. In this connection, it would be relevant to point out that Sub- section 3 of Section 20 of the Act postulates that in an ordinary manner there should be prior notice of seven days to be affixed on the notice board and in case of certain emergency three days prior notice is required to convene a meeting of the Aam Sabha.
13. Admittedly, in this case the appellant resigned on 20th February, 2006 and the meeting of the Aam Sabha was convened just next day on 21.2.2006 without applying the provisions of Sub-section 3 of Section 20 of the Act and. the Circular of the State Government dated. 26.9.200 5.
14. It is undisputed that no notice whatsoever was affixed on the notice board in either circumstance and in the meeting so held, the C.D.P.O. was not present.
15. In this situation, the learned Single Judge of this Court was wholly justified in holding that the resignation of the appellant was accepted hurriedly in a manner not-sanctioned, by law.
16. Since the resignation of the appellant was not accepted in a prescribed manner, as referred to above, there is no difficulty to hold that she was still continuing on the post of Angan Bari Sevika and she was enjoying the post of profit and thus would be disqualified, for the post of Mukhiya as per Section 136(1) of the Act. The resignation of the writ petitioner, however, was not paced even before the C.D.P.O. for the post-facto sanction and the appellant contested the election of Mukhiya without proper resignation.
17. Mr. Sinha, learned Counsel lastly submitted that the appellant since was not in Government service, it would not be a disqualification of her to continue on the post of Mukhiya.
18. The submission of Mr. Sinna, however, appears to be wholly misconceived in view of the provisions of Section 136 (Gha) and (Jha).
19. The writ petitioner was a member of a scheme sponsored by the State Government and she was getting honorarium and thus she was enjoying a post of profit. This being the disqualification, she was not competent to contest the election for the post of Mukhiya.
20. In the background of the facts, as stated above, the findings recorded by the learned Single Judge of this Court, in no manner, can be said to be either bad in law or on facts.
21. For the reasons aforementioned, therefore, we find no merit in this appeal.
This appeal is accordingly dismissed.
No costs.