JUDGMENT 1. - By way of these writ petitions a challenge has been made to the notification issued by the State Election Commission for holding elections for the posts of "Pramukh/Up Pramukh/Pradhan" for various Panchayati Raj Institutions. 2. The facts which are common in all the writ petitions are that posts of "Pramukh/Up Pramukh/Pradhan" and also the Ward Member fell vacant as holders of the post were elected as a Member of Legislative Assembly. In some cases, posts of Ward Member fell vacant on account of death of the member. As a consequence of falling posts of "Pramukh/Up-Pramukh/ Pradhan" vacant, State Election Commission issued notification to hold elections for those posts, which have been questioned by way of these writ petitions mainly on the ground that without holding the election of Ward Member at the first instance, the State Election Commission should not have issued notification to hold elections of the posts of Pramukh/Up-Pramukh/Pradhan (hereinafter referred to as 3 posts'). 3. Learned counsel appearing in these cases raised common issue for determination by this Court. Referring to the constitutional provision pertaining to Panchayat as well as provision of the Panchayati Raj Act, 1994 (hereinafter referred to Act, 1994) and Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as 'the Rules of 1994'), it,is contended that object behind making amendment in the constitution is to bring specific provision for Panchayati Raj Institutions and to see that Panchayati Raj Institutions work as per the mandate of Constitution. For that purpose Article 243(C) of the Constitution of India provides composition of Panchayats. Referring to the aforesaid provision, it is urged that when composition of Panchayats provides a proper representation on the basis of territorial constituencies then to maintain the aforesaid mandate, the State Election Commission should have conducted elections of vacant seats of respective wards first so as to complete the composition of Panchayats for further elections on the posts of "Pramukh/Up-Pramukh/Pradhan". 4. Referring to the facts of the case, it is stated that a few persons holding the post of Pramukh/Up-Pramukh/Pradhan were recently elected as members of legislative assembly, thus not only that aforesaid posts fell vacant but the posts of Ward Member also fell vacant. 4. Referring to the facts of the case, it is stated that a few persons holding the post of Pramukh/Up-Pramukh/Pradhan were recently elected as members of legislative assembly, thus not only that aforesaid posts fell vacant but the posts of Ward Member also fell vacant. To clarify the position, it is submitted that by way of direct election; ward members are elected and after holding the direct election of ward members, posts of Pramukh/Up-Pramukh/Pradhan are filled up by way of indirect election from and amongst elected ward members. In the absence of an election of a ward member of a particular ward, the voters coming from the aforesaid ward will have no representation and chance to contest election of the post of Pramukh/Up-Pramukh/Pradhan, thus, the mandate of Constitution as envisaged and provided under Article 243(C) of the Constitution of India would be violated. 5. A reference of the Act of 1994 and the Rules made therein is also made. Section 9 of the Act of 1994 provides establishment of Panchayat whereas Sections 10 and 11 provide estabishment of Panchayat Samiti and Jila Parishad. Sections 12, 13 and 14 provide composition of 3 Panchayati Raj Institutions whereas Section 17 provides duration of an election of Panchati Raj Institutions. Sections 28 and 29 provides for election of Pradhan/Up-Pradhan and Pramukh/Up-Pramukh. Referring to the aforesaid provisions, learned counsels for petitioners submitted that after conducting election of Ward Members as required and after having composition of Panchayati Raj Institutions, election for " the post of Pramukh/Up- Pramukh/Pradhan/Up-Pradhan can be held as per the provisions of Sections 28 and 29 of the Act of 1994. According to them, in absence of election of Ward Member, composition of Panchayati Raj Instituions would not be complete, thus to hold election of 3 posts indicated above is improper. On the strength of the provisions of the Act of 1994 also, a challenge has been made to the election in the manner it is going to be conducted. Referring to Section 42 of the Act of 1994, it is stated that as per the aforesaid provision, in the event of office of Member, Chair-person or Deputy Chair-person of the Panchayati Raj Institutions becoming vacant due to death, removal, resignation or otherwise, then it should be forthwith reported to the State Election Commission and thereupon election is to be held in such manner as may be prescribed. Referring to the word 'forthwith' as used under Section 42 of the Act of 1994, it is submitted that when post of ward member falls vacant, the State Election Commission is under an obligation to forthwith conduct the election. A reference of Rules of 1994 has also been made to demonstrate that how the election has to be conducted and to further show that in view of Rules 80 and 81 of the Rules of 1994, petitioners cannot challenge the election as they belong to a ward where post of Ward Member is lying vacant, as such, petitioners cannot be elected as ward members so as to further contest election on the 3 posts indicated above and till they are candidates of the aforesaid election, an election petition cannot be maintained. A reference of Rule 58A of the Rules of 1994 has also been made to show that bye-election of the member of Panchyat Samiti and Ziia Parishad has to be conducted as per the provisions of Section 42 of the Act of 1994. 6. Another ground taken by the petitioners is that action of the State Election Commission is malafide as it is to benefit those who are already members of ward and to deprive the candidates like the petitioners who cannot be a ward member in the absence of election of the ward. To support their contention, learned counsel for petitioners learned counsel for petitioners placed reliance on the judgments of the Hon'ble Supreme Court in the case of M.V. Venkataramana Bhat v. Returning Officer and Tehsildar and Others, reported in AIR 1994 SC 1431 and in the case of K. Venkatachalam v. A. Swamickan and Another, reported in AIR 1999 SC 1723 . 7. On the other hand, side opposite submitted that none of the arguments raised by counsel for petitioners are tenable in the eye of law, apart from taking an objection regarding maintainability of the writ petition referring to Article 243(O) of the Constitution of India. It is urged that an election can be questioned only by way of election petition, thus, writ petitions for that purpose cannot be maintained. Defining the word 'election', it. It is urged that an election can be questioned only by way of election petition, thus, writ petitions for that purpose cannot be maintained. Defining the word 'election', it. is urged that it is not that the final result can be construed to be election but the entire process is considered to be election as per the proposition laid down by the Hon'ble Apex Court in the case of N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem District and Others, reported in AIR 1952 SC 64 (1) . It is further urged that time and again the Hon'ble Supreme Court has categorically held that once a notification for election is issued, High Court should not interfere therein by passing interim orders and for that purposes various judgments are referred, but mainly judgments in the cases of S.T. Muthusami v. K. Natarajan and Others, reported in (1988) 1 SCC 572 and Election Commission of India v. Shivaji and Others, reported in (1988) 1 SCC 277 relied. Coming to merit of the case, it is submitted that Article 243(C) of Constitution of India provides composition of the Panchayats and perusual of the aforesaid provision does not show that bye-election of the post of Chair-person and Deputy Chair-person of the Panchayati Raj Institution cannot be held unless bye-election of all the wards are conducted. Referring to the provisions of the Act of 1994 also, it is submitted that there is no provision to provide that unless election of all the wards is held, bye-election of the post of Pramukh/Up-Pramukh/Pradhan cannot be held. So far as the issue of representation of ward member is concerned, it is an eventuality that comes in many elections like election of President and Vice-President of India also where to give representations of various constituencies, members of Parliament and members of the Legislative Assembly give their votes and while holding such election many of the constituencies may remain unrepresented where Parliament Seat or Seat of Legislative Assembly fall vacant and bye-elections are not held. Referring to the election of Speaker of the Parliament, it is further submitted that while holding such election, it is not necessary that no vacancy of member be there. If a Parliament Member dies and resigns and consequently making the post vacant, election of Speaker cannot be withheld on that ground. Referring to the election of Speaker of the Parliament, it is further submitted that while holding such election, it is not necessary that no vacancy of member be there. If a Parliament Member dies and resigns and consequently making the post vacant, election of Speaker cannot be withheld on that ground. Compositions of two houses and duration thereof are provided under Chapter-11 of the Constitution and so far as election of Speaker and Deputy Speaker is concerned, it is provided under Article 93 of the Constitution of India, thus, on the strength of the aforesaid arguments, it is submitted that action of the respondents is not in violation of the constitutional mandate or the provisions of the Act of 1994. 8. So far as reference of Section 42 of the Act of 1994 and Rule 58A of the Rules of 1994 is concerned, it is submitted that the word used 'forthwith' is only to inform the Election Commission about the vacancy and not to hold the election itself though immediately when 3 posts fall vacant in different Panchayati Raj Institutions, a decision was taken in the month of December itself to hold bye-election and accordingly it was notified. It is submitted. that if the argument of the petitioners is-accepted, then after taking a decision to hold election of 3 posts indicated above in the month of December, if any ward member dies or resigns subsequently then also election cannot be held. Thus, it was prayed that looking to the aforesaid, there is no merit in the writ petition and, therefore, same may be dismissed. 9. I have considered the rival submissions made by learned counsel for parties and scanned the matter carefully. 10. Before going into the merits of the case, I will deal with the objections raised by the learned counsel for the respondents regarding maintainability of the writ petition. Since a reference of Article 243-0 of the Constitution has been made, thus the aforesaid Article is reproduced hereunder for ready reference: "243-0. 10. Before going into the merits of the case, I will deal with the objections raised by the learned counsel for the respondents regarding maintainability of the writ petition. Since a reference of Article 243-0 of the Constitution has been made, thus the aforesaid Article is reproduced hereunder for ready reference: "243-0. Bar to interference by courts in electoral matters-Nothithstanding anything in this Constitution: (a) the validity of any law relating to the determination of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State." 11. Perusal of the aforesaid Article shows that no election of any Panchyat shall be called in question except by an election petition to such an authority and in such manner as provided. If the aforesaid constitutional provision is looked into then definitely this writ petition is not maintainable as word 'election' is used to embrace the whole procedure of election and the 1 aforesaid aspect was considered by the Hon'ble Apex Court in the case of N.P. Ponnuswami. (supra). Part of the relevant para 7 is quoted hereunder for ready reference: "The word "election" has been used in Part XV of the Constitution in f the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in Art. 324 specially points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Art. 329(b). The term "election" may be taken to embrace the whole procedure which consists of several stages and embraces many steps, whereby an "elected member" is returned, whether or not it be found necessary to take poll. It is not used in a narrow sense." 12. In view of the aforesaid judgment, any issue pertaining to election can be challenged by way of election petition only. The matter, however, does not end here because what has been provided by the State Legislature is also required to be seen. It is not used in a narrow sense." 12. In view of the aforesaid judgment, any issue pertaining to election can be challenged by way of election petition only. The matter, however, does not end here because what has been provided by the State Legislature is also required to be seen. Rule 80 and 81 of the Rules of 1994 are reproduced hereunder: "80. Manner of challenging an election under the Act: An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisidiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds: (a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or (b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or (c) that any nomination was improperly rejected, or (d) that the result of the election in so far as it concerns the returned candidate was materially affected: (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate, or (iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (iv) by any non-compliance with the provisions of the Act or of these rules, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes." 81. Who may present election petition- (1) A petition under rule 80 may be presented by any candidate at such election. Explanation: The petition shall be deemed to have been duly presented, if it is delivered by the person making the petition or by person authorised in writing in this behalf by the person making the petition. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. Explanation: The petition shall be deemed to have been duly presented, if it is delivered by the person making the petition or by person authorised in writing in this behalf by the person making the petition. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 500 along with the petition by way of security for the costs of the opposite party. (3) The petitioner shall also send a copy of the petition under a certificate of posting to the District Election Officer (Panchayats) concerned. 13. Perusal of Rules 80 and 81 of the Rules of 1994 shows that an election petition can be filed only by a candidate to the post of Pramukh/Up-Pramukh/Pradhan and in view of that, petitioners being not a candidate to the post of Pramukh/Up-Pramukh/Pradhan, thus cannot maintain an election petition. In such circumstances, if a person having grievances pertaining to election, then he cannot be made remediless and in those circumstances, writ petition is held to be maintainable unless Rules 80 and 81 of the Rules of 1994 are amended so as to provide a remedy to others than the candidate to the election. This view is supported by the judgment of the Hon'ble Supreme Court in the case of M.V. Venkataramana Bhat (supra). The facts of the aforesaid judgment are different than of the present case, but the ratio of the aforesaid judgment is that in absence of any procedure to challenge the validity of the election under the Act and Rules, writ jurisdiction can be exercised. In the present matter also, so far as petitioners are concerned, they cannot maintain an election petition, thus grievances raised in these writ petitions cannot be thrown out on the ground of non-maintainability of the writ petition. Accordingly, objections so raised by learned counsel for respondents for rejection of the writ petitions on the ground of maintainability cannot be accepted unless rules are amended. 14. Now, coming to the merits of the case, the main argument raised by the petitioners is that without holding an election of the post of Ward Member so falling vacant, election of 3 posts indicated above cannot be held. The aforesaid aspect is raised in reference to the constitutional provision as well as provisions of the Act and Rules of 1994. The aforesaid aspect is raised in reference to the constitutional provision as well as provisions of the Act and Rules of 1994. Firstly, all learned counsel for the petitioners fairly conceded that neither in Constitution nor Panchayati Raj Act and Rules, there exists a provision to the effect that without holding the election of the post of Ward member so falling vacant, bye-election of 3 posts indicated above cannot be held. Learned counsel for petitioners, however, submit that if election of Ward-Member is not conducted first, the voters of a particular ward will have no chance to contest election of 3 posts indicated above and thereby they would be denied representation and their valuable rights. The aforesaid aspect is considered first taking note of the fact that petitioner is only an aspirant to contest election of Ward Member and it cannot be said that he would definitely contest and be elected as Ward Member. Thus, a challenge to the election has been made by a person who may not be a party/voter to elections of three posts. This is apart from the fact that bye-elections are conducted in certain contingencies as given out under Section 42 of the Act of 1994 and it is nowhere provided that bye-election of Chair-person or Vice Chair-person of Panchayati Raj Institution cannot be held, if election of a Ward member is not conducted on seat falling vacant. The aforesaid aspect is required to be looked into by taking note of other provisions of the Constitution more specifically in respect of election of Speaker as per Article 93 and 94 which is quoted hereunder for 1 ready reference: "93. The Speaker. and Deputy Speaker of the House of the People: The house of the people, shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker and Deputy Speaker becomes vacant, the House shal choose another member to be Speaker or Deputy Speaker, as the case may be. "94. "94. Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker: A member holding office as 1 Speaker or Deputy Speaker of the House of the People: (a) shall vacate his office if he ceases to be a member of the House of the People; (b) may at any time, by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such 1 member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House; Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution: Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office untill immediately before the first meetings of the House of the People after the dissolution." 15. A look at the aforesaid provisions shows that if post of Speaker or Deputy Speaker becomes vacant, House shal choose any other member to the post of Speaker or Deputy Speaker. How a post of Speaker or Deputy Speaker can fall vacant is provided under Article 94 of Constitution. It is not seen that Speaker would not be chosen unless election of a Parliament seat fallen vacant and election thereupon is conducted. Learned counsel for respondents are right in submitting that bye-elections are conducted from and amongst members' available. For Panchayat elections also a specific reference of Sections 28 & 29 would be relevant, which are quoted hereunder for ready reference: "28. Election of Pradhan and Up-Pradhan: (1)The elected member of the Panchayat Samiti, as soon as may be, choose two members from amongst themselves to be respectively the Pradhan and Up-Pradhan thereof, and so often as there is a casual vacancy in the office of Pradhan or Up-Pradhan, they shall choose another member from amongst themselves to be the Pradhan or Up-Pradhan, as the case may be: Provided that no election shall be held if a vacancy is for a period of less than one month. (2) The election of Pradhan and Up-Pradhan and the filling up of the vacancies in the said offices shall be in accordance with such rules as may be made. 29. Election of Pramukh and Up-Pramukh: (1) The elected members of the Zila Parishad shall, as soon as may be, choose two members from amongst themselves to be respectively the Pramukh and Up-Pramukh thereof and so often as there is a casual choose another member from amongst themselves to be the Pramukh or Up Pramukh, as the case my be : Provided that no election shall be held if a vacancy is for a period of less than one month. (2) The election of the Pramukh and the Up-Praamukh of a Zila Parishad and the filling up of vacancies in the said offices shall be in accordance with such rules, as may be made. 16. Section 28 provides that in case of casual vacancy of the office of Pradhan and Up-Pradhan, they shall choose another member from and amongst themselves. The aforesaid terminology used under Section 28 & 29 shows that in case of casual vacancy, the Election of Pradhan/Up-Pradhan and even Pramukh/Up Pramukh would be from and amongst the members existing. Thus, aforesaid provision does not support the arguments raised by learned counsel for petitioners, rather it goes against them. it my be a situation that in the absence of election of ward, voters of that ward would not be in a position of contest election for the post of Chair-person of Deputy Chair-person of the Panchayti Raj Institution, but that is a circumstance, which cannot make the action of the respondents as illegal unjust and hit by constitutional mandate or provision oof the Act because such a situation can exist in many elections which include even the election of Speaker of the Parliament President and Vice President of the Country and if the argument of the learned counsel for petitioners is accepted, then election to the post of President or Vice-President of India s well as Speaker of the Parliament would become difficult if not impossible. Hence, the main argument of learned counsel for petitioners cannot be accepted. The aforesaid aspect was also considered from another angle as was argued by learned counsel for respondents. Hence, the main argument of learned counsel for petitioners cannot be accepted. The aforesaid aspect was also considered from another angle as was argued by learned counsel for respondents. it my be that in a case where as per the prayer of the petitioner, election of Ward Member is conducted first and thereafter a decision is taken to hold election for the post of Chair-Person or Vice Chair-person falling vacant as is the case herein . However, after taking such a decision and before holding elections of the post of Chair-person, if another ward Member dies or resigns, then on acceptance of the arguments of petitioner's counsel, election of Chair-person and Vice Chair-person cannot be conducted whereas keeping post of Chair-person and Vice Chair-person vacant for and to be looked after by others of indefinite term cannot be said to achieve the objects as undersigned by the Parliament. Thus, looking to the aforesaid analogy also, I am not inclined to accept the argument of learned counsel for petitioners. 17. It is further necessary to note that it is a case of bye-election to the post of Pramukh/Up-Pramukh/Pradhan and not election which is otherwise held in the beginning of the term of a Panchayati Raj Institution. Therefore, it is necessary to keep in mind that when bye-election is to be conducted, it can be from and amongst the existing members Section 28 focuses light on this aspect where it is provided that in case off a casual vacancy, members may choose another member as Chairperson/Deputy Chairperson from amongst themselves. The aforesaid provision clearly demonstrates that in what manner casual vacancy of Chair-person and Deputy Chair-person of thee Panchayati Raj Institution is to be filed up because first part or Sections 28 & 29 makes a reference of the election at the beginning of the term, but the second part pertains to filling up casual vacancy. The aforesaid provision clearly demonstrates that in what manner casual vacancy of Chair-person and Deputy Chair-person of thee Panchayati Raj Institution is to be filed up because first part or Sections 28 & 29 makes a reference of the election at the beginning of the term, but the second part pertains to filling up casual vacancy. It is provided that same would be filled from and amongst the members themselves thus, taking note of the aforesaid analogy it can be safely held that in bye-election off Chair-person or Deputy Chair-person, it would be from and amongst members existing The aforesaid provision is not otherwise in conflict with the constitutional provision because Article 243 (C) makes a reference about the composition of Panchayat which does exist here Constitution nowhere provides that an election of Chair-person or Deputy Chair-person cannot be held unless a vacant seat of ward member is first filled. In absence of a constitutional or legislative provision to the effect that post of Chairperson or Deputy Chairperson cannot be filled without filling of the post of ward members petitioners cannot claim a right by way of a writ petition 18. The Court further feels it necessary that the issue should be dealt with after taking harmonious construction of the provisions of law and while giving verdict in respect of legal provision a situation may not be created where the ratio of the judgment may create hindrance to he elections of various other posts. It is for that reason and purpose, reference of the election of the post of President or Vice President of the country as well as Speaker or Deputy Speaker is given. Thus, taking overall view on the aforesaid aspect i am not included to accept the argument of learned counsel for petitioners. 19. It is necessary to deal with the argument of learned counsel for petitioners form an other angle also. The main argument of learned counsel and voters of the ward concerned will remain unpresented in the election of Chair-person or Deputy Chair-person, In the present matter, the seats of ward aforesaid argument has ben raised. It may be that there is a situation where a ward members resigns or disqualifies and such ward member is not holding the post of Chair-person or Deputy Chair-person. It may be that there is a situation where a ward members resigns or disqualifies and such ward member is not holding the post of Chair-person or Deputy Chair-person. The seat or ward member is now to be filled by way of bye-election simplicitor because the post of Chair-person or Deputy Chair-person is already occupied . The question is that even after election of ward members by way of bye-election, said ward members or voters of the ward will have no chance of representation to the post of Chairperson or Deputy Chairperson as they have no liberty to contest thee election of the aforesaid. post as it is already accepted, then after holding bye-election of ward members, the election of Chair-person or Deputy Chair-person has to be conducted afresh so that newly elected ward members my also get chance to contest the election on the post off Chair-person or Deputy Chair-person, whereas no such election to the post of Chair-person or Deputy Chair-person can be held as the post is already occupied. Thus in that situation also despite of election of post of ward members, the voters or the ward concerned or elected of post of ward members get no chance too contest election and represent the post of Chairperson or Deputy Chairperson. The aforesaid illustration has been given to show that a bye-election cannot be equated with a case of routine election or election conducted in beginning of the term of the Panchayati Raj Institution as bey elections are conducted under certain contingencies. 20. The last issue is as to whether this Court may pass interim orders in the election matters after it is being notified. It is a settled proposition of law that Court should not pass interim orders in election matters and the Hon'ble Supreme Court has reiterated the aforesaid position time and again. In the case of S.T. Muthosami (supra) pertaining to election of Panchayat Union Council, the Hon'ble Supreme Court held that the High Court should not interfere in the election process and the view has otherwise been expressed by the Hon'ble Apex Court even in the case of Election Commission of India v. Shivaji (supra). Thus, I have no hesitation to hold that argument of learned counsel for respondents needs acceptance on the issue that Court should not pass interim orders after the elections are notified. 21. Thus, I have no hesitation to hold that argument of learned counsel for respondents needs acceptance on the issue that Court should not pass interim orders after the elections are notified. 21. In view of the discussion made above, I do not find any merit in the writ petitions, hence, all the writ petitions are dismissed with no order as to costs.Writ Petition Dismissed. *******