JUDGMENT M. Srinivasan, C.J.—The petitioner is an elected member of the Panchayat Samiti, Indora. The results were declared on 24-12-1995. A meeting of the newly elected members was fixed on 28-12-1995 and a notice was issued to the members in Form No 40 under Rules 85 and 86 of the Himachal Pradesh Panchayati Raj (Election) Rules In the meeting held on 28-12-1995, there was no quorum and the meeting was adjourned to 31-12-1995. On that date, 15 elected members took oath or affirmation as per section 127 of the Himachal Pradesh Panchayati Raj Act. 2. The petitioner herein had sent a communication to the District Election Officer on 28-12-1995 itself pointing out that 11 members, who had received the meeting notices had not attended the meeting on 28-12 1995 and thus there was a clear cut refusal on their part to take oath and thereupon the provisions of section 127 (2) of the Act would come into operation. On 29-12-1995, the Authorised Officer-Cum-Tehsildar, Indora sent a show cause notice to respondents No. 4 to ) 4 herein calling upon them to show cause why their election should not be declared invalid and why fresh poll should not be held for their posts under the provisions of section 127 of the Act. It is not clear from the records whether any replies had been sent by the said respondents. At any rate, another notice was issued under Form No. 40 as per Annexure P-6 fixing the meeting for 11-1-1996. The members were called upon to have oath administered and also elect Chairman and Vice-Chairman of the Panchayat Samiti in accordance with section 79 of the Act. The attention of the members was also drawn to section 127 of the Panchayati Raj Act. 3. On 11th January, 1996, respondents No. 4 to 14 took oath of affirmation and the Chairman and Vice-Chairman were elected. The 10th respondent was elected as Chairman and the 15th respondent was elected as Vice-Chairman. 4. The attention of the members was also drawn to section 127 of the Panchayati Raj Act. 3. On 11th January, 1996, respondents No. 4 to 14 took oath of affirmation and the Chairman and Vice-Chairman were elected. The 10th respondent was elected as Chairman and the 15th respondent was elected as Vice-Chairman. 4. The present petitioner has filed this writ petition for quashing the proceedings dated 11-1-1996 and for directing respondents No.1 to 3 to hold election to the office of Chairman and Vice-Chairman of Panchayat Samiti with duly elected 15 members, who were present on 3i-i2-1995 and had taken oath The third prayer in the writ petition is to declare the election of respondents No.10 and 15 as Chairman and Vice-Chairman respectively null and void. The other prayers are only consequential. 5. The contention of the petitioner is that under section 127 of the Act when respondents No 4 to 14 remained absent at the meeting held on 28-12-1995, their election shall be deemed to be invalid and thus they ceased to be members of the Panchayat Samiti. Sub-section (2) of section 111 reads as follows : "if any such person refused to take or make such oath or affirmation, except on account of such disability for which permission of the prescribed authority is obtained, his election shall be deemed to be invalid and a fresh election shall take place.” 6. Our attention is drawn to section 79 of the Act, which provides for election of Chairman and Vice-Chairman of the Panchayat Samiti. Under that Section, as soon, as possible after the declaration of the results of the election, but not later than one week of such declaration, the Deputy Commissioner concerned shall call under his Presidentship a meeting of all elected members for the purpose of oath or affirmation of allegiance under section 127. Thus, according to learned counsel, a time limit of one week has been prescribed under these two Sections for the purpose of any elected member taking oath or affirmation of allegiance According to learned counsel, if oath has not been taken as provided under section 127 within a period of one week from the declaration of the results, the election of the member shall be deemed to be invalid in the eye of law and thus he ceases to be a member of the Panchayat Samiti. The only course open thereafter to the authorities is to hold fresh election for the said post. Learned counsel submits that in the present case, there is no explanation whatever on the part of respondents No. 4 to 14 as to why they did not attend the meeting dated 28-12-1995. It is, therefore, contended that their absence from the meeting should be construed as refusal on their part within the meaning of section 127 (2) to take oath, or affirmation of allegiance. 7. On the other hand, learned Advocate General contends that mere absence from a meeting convened for the purpose of administering oath and electing Chairman and Vice-Chairman will not amount to refusal within the meaning of section 127(2). According to learned Advocate General, there must be a positive statement or act on the part of the concerned member, which should show that he has refused to take oath. 8. We find that Rule 85 (4) provides that notice for the meeting for the purpose of administering oath and election of Chairman and Vice-Chairman shall be despatched atleast five days before the date of meeting at their permanent address and shall contain the date, time, place and purpose of the meeting The notice shall be in Form No. 40 as per sub-rule (2) of Rule 85 A perusal of the Rule shows that the requirement of five days is a minimum requirement as it use the expression atleast’. It is also seen that the word shall’ is used and it is. mandatory. Learned counsel for the petitioner contends that in the context the word shall’ cannot be construed to be mandatory and it is only directory and it should be understood as ‘may’. For this purpose, learned counsel places reliance on the provisions of section 79 of the Act It is pointed out by him that sub-section (1) of section 79 requires the Deputy Commissioner to call under his Presidentship a meeting as soon as possible after the declaration of the results. According to learned counsel, if the requirement of five days notice is construed to be mandatory then the period available before the issue of notice and the date of declaration of results will not be more than a day. According to learned counsel, if the requirement of five days notice is construed to be mandatory then the period available before the issue of notice and the date of declaration of results will not be more than a day. In other words learned counsel submits that such notice, as contemplated under section 79 must be issued within one day from the date of declaration of the results of the election order to have .five clear days. Therefore, according to him, Rule 85 (4) should be construed only as directory and not mandatory. 9. We are unable to accept this contention. A perusal of section 79 along with Rule 85 (4) shows that there is ample time for issue of notice of at least five days before the date of meeting. While section has taken care to fix the maximum time limit at one week, the Rule takes care to say that each member must have at least five days notice. Thus, the Rule is in consonance with the section and cannot be considered to be in any way contrary to the section, if the Rule is construed as mandatory, Hence, the contention of the learned Counsel is rejected. 10. Turning to the facts of the case, it is seen that the first notice was issued on 24-12-1995. The meeting was fixed for 28-12-1995, There is no doubt whatever that the period of notice is not in accordance with Rule 85 (4) Hence, the notice issued on 24-12-1995 is not a valid notice The second notice is said to have been issued on 29-12-1995 for the meeting held on 31-12-1995. Though the record is not very clear on that aspect of the matter, learned Counsel for the petitioner says that the second notice was issued on 28 12-1995 itself for the meeting to be hed on 31-12-1995. Whatever it may be, the period of five days for the purpose is not available. Hence, that notice is also not valid one. Though the record is not very clear on that aspect of the matter, learned Counsel for the petitioner says that the second notice was issued on 28 12-1995 itself for the meeting to be hed on 31-12-1995. Whatever it may be, the period of five days for the purpose is not available. Hence, that notice is also not valid one. Only the third notice, which is dated 6-1-1996 and which has fixed the meeting on 11-1-1996 could be said to be in accordance with the provisions of Rule 85 (4) In that meeting dated 1-11-1996, respondents No, 4 to 14 have taken oath and, therefore, they have become full fledged members of the Panchayat Samiti Thus, section 127 (2) has not come into operation in the case of respondents No. 4 to 14, 11. Learned Counsel for the petitioner contends that no prejudice has been caused to respondents No 4 to 14 by the notice issued on 24-12-1995 fixing the meeting for 28-12-1995, According to learned Counsel, they had received the notices and thus they cannot raise the contention that there was no compliance with Rule 85 (4) We are unable to accept that contention also If there is a notice, which is not in accordance with the relevant Rules, then it is not a valid notice and no question of considering the prejudice to the party concerned will arise 12. It is enough to point out in such circumstances that the absence from the meeting in pursuance to invalid notice cannot be construed in law as refusal to take oath within the meaning of section 127 (2) of the Act. 13. In such circumstances, we are unable to accept any of the contentions of the writ petitioner. The writ petition fails and it is dismissed. There will he no order as to costs. Petition dismissed.