JUDGMENT : Das, J. - The Petitioner and opposite party No. 1 were elected as members of the Bramhagiri Grama Punchayat in the district of Puri in the year 1959. The election to the office of the Sarpanch was held on 29-2-1964 to which the Petitioner and opposite party No. 1 were nominated as candidates. 2. It is the case of the Petitioner that opposite party No. 1 Panchanan Pradhan was, on the date of election, serving in the State Publicity Department as a paid worker and as such he was disqualified from standing for election for the office of Sarpanch under Clause (0) of Section 10(9) of the Orissa Grama Panchayat Act (hereinafter referred to as ?the act?). It appears that on 29-2-1964 the opposite party No. 1 made an application before the Block Development Officer who was working as the Election Officer in this case, to extend the date of election by 15 days, so that the resignation of his office which he had tendered may be accepted. But the election officer rejected the nomination paper of opposite party No. 1 on the ground that he was holding an office of profit and was thus disqualified to stand for the election, under Clause (c) of Sub-section (9) of Section 10 of the Act-and declared the Petitioner as elected to the office of the Sarpanch, as there was no other contesting candidate. Against this order of the Election Officer; the opposite party No. 1 moved the Sub-Divisional Officer, Puri, under Rule 24 of the Rules and the Sub-divisional Officer by his order dated 16-5-1964 set aside the order of the Election Officer and directed a fresh election to beheld. It is against this order of the Sub-divisional Officer the present application has been filed under Article 226 of the. Constitution. 3. Section 9 of the Act states that on the first establishment of Grama Sasan, the prescribed authority shall cause to be prepared in the prescribed form a register of population of persons ordinarily residing in the Grama and another of adults ordinarily residing therein. Certain disqualifications have been provided at this stage and a person affected by such disqualification is debarred from being enrolled in the said register of adults. The holding of an office of profit under the State Government is that a disqualification at this stage. Certain disqualifications have been provided at this stage and a person affected by such disqualification is debarred from being enrolled in the said register of adults. The holding of an office of profit under the State Government is that a disqualification at this stage. Therefore, there was no bar to the opposite party No. 1 being enrolled as an adult member u/s 9 of the Act. Section 10(1) provides that as soon as may be after its establishment, every Grama Sasan shall elect in the prescribed manner from among its members an Executive Committee which shall be known as the Grama Panchayat and the Grama Panchayat shall elect in the prescribed manner a Sarpanch and a Naib Sarpanch from among its members. In this connection, it is necessary to refer to the provisions of Section 10(9) of the Act. Sub-section (9) imposes certain disqualification on a person from being a member of the Grama Panchayat. It says- (9) A person shall not be eligible to stand for election or continue to be a member of the Grama Panchayat or a Panchayat of an Adalti Panchayat constituted under this Act, if (a).... (b).... Sub-section (9) imposes certain disqualification on a person from being a member of the Grama Panchayat. It says- (9) A person shall not be eligible to stand for election or continue to be a member of the Grama Panchayat or a Panchayat of an Adalti Panchayat constituted under this Act, if (a).... (b).... (c) he holds any office of profit under the State or the Central Government or a Local authority other than that of a Sarpanch, Naib Sarpanch or Member of a Grama Panchayat or President or Panch of an Adalti Punchayat; (d) he has been dismissed from service of the State Government, Central Government or a Local authority; (e) he has been in arrears of any tax, fee or rate due by him to the Grama Sasan for a continuous period of two years; or (f) he is in the habit or encouraging litigation in the villages and has been declared to be so on enquiry by the prescribed authority in the prescribed manner; Provided further that the disqualification under Clause (d) may be removed by the State Government in the prescribed manner: Provided further that the disqualification under Clause (e) shall cease upon payment of the arrears or on remission thereof in accordance with the provisions of the Act and the rules made thereunder: Provided also that anyone or more of the aforesaid disqualifications shall be given effect to in the prescribed manner and in case of any dispute the matter shall be referred to the State Government whose decision shall be final and shall not be questioned in any court of law 4. That on the date of election of Sarpanch, the opposite party No. 1 was working as a publicity worker under the State Government cannot be disputed, though it was contended here that he offered his resignation on 27-2-1964 which was accepted on that date. It cannot also be disputed that he himself made an application to the Election Officer to postpone the election of the Sarpanch for fifteen days so that in the meanwhile his resignation may be accepted. The learned Sub-divisional Officer who heard the dispute under Rule 24 also accepted the position that Panchanan held the said office on the date of the election. As seen above, Section 10(9) expressly debars a person suffering the disqualifications mentioned therein from standing or continuing as a member of the Grama Panchayat. The learned Sub-divisional Officer who heard the dispute under Rule 24 also accepted the position that Panchanan held the said office on the date of the election. As seen above, Section 10(9) expressly debars a person suffering the disqualifications mentioned therein from standing or continuing as a member of the Grama Panchayat. No doubt in respect of the disqualifications mentioned in Clause (d) and (e) they may be removed or may cease to have any effect, as provided in the provisos to Sub-section (9) of Section 10 quoted above, but no such provision has been made regarding the disqualification mentioned in Section 10(9)(c) in so far as the holder of an office of profit under the State is concerned. Such disqualification must, therefore, be considered as absolute and unqualified and can be removed only upon the person ceasing to hold such office. Thus the opposite party No. 1 was not eligible to be a member of the Grama Panchayat on the date of election. The next question is whether such a person can be nominated as a candidate for election to the office of the Sarpanch. 5. Rules 31-0 to 31-G lay down the procedure for election of the Sarpanch and Naib Sarpanch. At the moment we are concerned with Rule 31-0 and E. Rule 31-D relates to the filing of the nomination paper and Rule 31-E lays down the procedure to be followed after such papers are filed. It says that if there is only one duly nominated candidate, there shall be no ballot, but if there are two or more such candidates the votes of the members present at the meeting shall be taken. The Election Officer rejected the nomination of the opposite party No. 1 obviously on the ground that he being a person disqualified u/s 10(9)(c) was not eligible to continue as a member of the Grama Panchayat and since Section 10(1) requires that a Sarpanch has to be elected from among the members of the Grama Panchayat, the opposite party No. 1 not being such a member was not even eligible to stand for the election. 6. 6. It was held by the learned Sub-divisional Officer and was also contended here on behalf of the opposite parties that the Election Officer had not been conferred with any power to reject the nomination papers and an that he was concerned with at that stage is to see if the candidate was duly proposed and seconded by a member of the Grama Panchayat. No doubt, no express powers had been given to the Election Officer to reject a nomination, but all the same he as entrusted with the duty to examine if the candidate was duly nominated. In the process of such examination, he not only has to see that a particular candidate has been duly proposed and seconded, as required under Rule 31-D, but he has also to be satisfied that the proposed candidate satisfied an the essential qualifications prescribed in law to enter him to be nominated as a candidate. 7. A question identical to the one now raised before this Court also came up for consideration before a Division Bench of this Court in Nityananda Panda v. Raghunath Padhi 28 C.L.T. 446 : I. L.R. 1962 Cutt. 217, which was a case under the Orissa Panchayat Samiti and Zilla Parish ad Act, 1959, relating to the election of the Chairman of the Panchayat Samiti. Under that Act, a Sarpanch of a Grama Panchayat is an ex-officio member of a Panchayat Samiti and as such a member has right to propose the nomination of a member for the election of the Chairman of the Panchayat Samiti. One Gopinath Naik who was a member of the Umri Panchayat Samiti on the basis of his being a Sarpanch of Pujaripur Orama Panchayat proposed the name of Nityananda Panda as a candidate for election as Chairman. One of the contesting candidate raised an objection that he (Gopinath) had no right to propose the name of Nityananda as he himself had ceased to be a Sarpanch and a member of the Grama Panchayat by reason of his holding an office of profit under the State Government. The election commissioner accepted this objection and held that Nityananda was not duly nominated and declared his nomination to be invalid. This decision of the election commissioner was challenged in a Writ Petition before this Court. The election commissioner accepted this objection and held that Nityananda was not duly nominated and declared his nomination to be invalid. This decision of the election commissioner was challenged in a Writ Petition before this Court. In that case it was contended that even if Gopinath held an office of profit u/s 10(9)(c) of the Act and was disqualified to continue as a member of the Grama Panchayat, that disqualification does not extend to his becoming a member of the Panchayat Samiti under the Zilla Parishad Act and the election commissioner had no jurisdiction to hold that he ceased to be a member of the Grama Panchayat until he was so declared by a notification of the State Government, under Rule 35 of the Orissa Grama Panchayat Rules, 1949. But this contention was negatived by the aforesaid decision of this Court and their Lordships had that the election commissioner had jurisdiction to examine whether the nomination was made by a person entitled to nominate and to determine whether Gopinath Naik was qualified to propose the nomination as he was holding an office of profit under the State Government. They however, observed that this finding of the election commissioner was not conclusive to remove Gopinath from the office of Sarpanch until he was so removed in accordance with Rule 35 of the Grama Panchayat Rules. That decision fully covers the present case and therefore the point does not require any further elaboration. 8. In the present case, as already stated, on the date of filing of the nomination and election, opposite party No. 1 suffered a disqualification under Sub-section (9) of Section 10 and as such he was not eligible to continue as a member of the Grama. Panchayat and thus not entitled to stand as a candidate for the Sarpanch and his nomination was rightly rejected by the election officer. The learned Sub-divisional Officer, however, was not correct in appreciating the legal position. No doubt, he is correct in saying that the disqualification enumerated in Sub-section 9 only relates to the membership of the Grama Panchayat, but the seems to have overlooked the effect of the provisions of Section 10(9) which expressly lay down that a person suffering from such a disqualification shall not be eligible to continue as a member of the Grama Panchayat. Section 10(1) lays down that a Sarpanch shall be elected from among the members of the Grama Panchayat. The combined effect of both the provisions makes it clear that a person who shall not be eligible to continue as a member of the Grama Panchayat shall equally be ineligible to be elected to the office of the Sarpanch. As such he is a person who is not eligible to be nominated for election for the office of the Sarpanch. Such a person cannot be said to be duly nominated. As I have already said the point does not require any further discussion in view of the aforesaid decision of this Court. 9. In this connection, it may be remembered that the last proviso of Section 10(9) quoted earlier, lays down that any one or more of the aforesaid disqualifications shall be given effect to in the prescribed manner and in case of any dispute the matter shall be referred to the State Government whose decision shall be final and shall not be questioned in any court of law. Rules 35 and 38-A prescribe the mode or manner of giving effect to such disqualifications. Under Rule 35 the Provincial Government may by notification remove any Sarpanch or Naib Sarpanch if he ceases to be a member of the Grama Sasan and under Rule 38(A). The District Magistrate may by notification remove a member of the Grama Panchayat if he is disqualified u/s 10(9) of the Act. The distinction between a disqualification u/s 10(9) and a removal under Rule 35 or 38(A) as the case may be, has to be borne in mind. One imposes the disqualification which operates itself by its own force and the other is only machinery to give effect to such disqualification and nothing more. One is substantive, the other is procedural. Any delay in taking action or not taking action at all under the Rules in giving effect to the disqualification will not in any way affect the status of the person suffering a disqualification. The rules cannot override the express provisions of the Act. They wilt give effect to the purposes of the Act. In this connection a decision of this Court in Haribandhu Satpathy v. Chandrasekhar Surendra Singh and Ors. The rules cannot override the express provisions of the Act. They wilt give effect to the purposes of the Act. In this connection a decision of this Court in Haribandhu Satpathy v. Chandrasekhar Surendra Singh and Ors. 31 C.L.T. 708 was placed before us, in support of the contention that the disqualifications envisaged u/s 10(9) of the Act does not automatically take effect, but they have to be given effect to in the manner prescribed by the Rules. I do not think that decision supports the contention now urged before us. The facts of that case are entirely different. There a rival candidate to a Panchayat election challenged the election under Rule 24 of the Rules. A point was raised that be was a defaulter in the matter of payment of Panchayat tax for a continuous period of two years. It is no doubt a disqualification u/s 10(9)(e), but such disqualification was not an absolute one, but was to cease automatically on payment or remission of such tax. Moreover, the question of eligibility of the candidate was never raised at any stage. Thus, the main legal question now under controversy did not come up for consideration in that case. 10. No doubt at the time of election to the Grama Panchayat the Election Officer under Rule 9 while examining the nomination papers for the Membership of the Grama Panchayat, has to find out if the candidates are duly qualified and have been duly nominated and the expression ?duly qualified? has been omitted from Rule 31-E and under that Rule the Election Officer has only to find out if a candidate has been duly nominated. This, at best, might be a drafting omission in the Rules. The legislature has clearly laid down the law in Section 10(9) and it could not be the policy of the law that a person who is disqualified to be a member of the Grama. Panchayat will be qualified to be elected as a Sarpanch. This goes against the express provision of Section 10(1) also. Thus, the only construction that could be given to Rule 31-E is that the candidate for Sarpanchship must also be continuing as a member of the Grama Panchayat. 11. If the nomination paper of opposite party No. 1. was declared to be invalid, the Petitioner under Rule 31-E was entitled to be declared elected? Thus, the only construction that could be given to Rule 31-E is that the candidate for Sarpanchship must also be continuing as a member of the Grama Panchayat. 11. If the nomination paper of opposite party No. 1. was declared to be invalid, the Petitioner under Rule 31-E was entitled to be declared elected? and rightly was so declared by the election Officer. The decision of the election Officer must accordingly be upheld and that of the Sub-Divisional Officer set aside. In the result, therefore, the petition must be allowed and the Petitioner declared to have been duly elected on 29-2-1964 as a Sarpanch and the said election shall be upheld and all subsequent proceedings quashed. The Writ would accordingly issue, but there would be no costs. Ahmad, C.J. 12. I agree. Final Result : Allowed