Judgment M.R. Shah, J.—Leave to amend as prayed for. 1.0 By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for appropriate writ, direction or order quashing and setting the impugned order dated 15.01.2011 passed by the Additional Development Commissioner, State of Gujarat – Respondent No. 1 herein as well as the order dated 29.11.2010 passed by Respondent No. 2 – District Development Officer, Mehsana by which, in exercise of powers under Section 32(2) of the Gujarat Panchayat Act, 1993 (hereinafter referred to as “Act, 1993”), petitioner has been declared disqualified to continue as Member of the Taluka Panchayat, Kheralu in view of Section 30(1)(j) of the Act, 1993 and consequently declaring the said post held by the petitioner as vacant and also consequently holding that the petitioner is removed/disqualified as President of the Taluka Panchayat, Kheralu. 1.1 As per Section 30(1)(j) of the Act, 1993, no person who is a servant of the Government or servant of any local authority shall be a member of Panchayat or continue as such. As per Section 32(1) of the Act, if any member of Panchayat who is elected, as such, was subject to any of the qualification mentioned in Section 30 of the Act, 1993 at the time as the of his election, he shall be disabled from continuing to be a member and his office shall become vacant. In the present case, petitioner is serving as a teacher in the Municipal High School, Kheralu, run, administered and managed by Kheralu Municipality (a local authority) and therefore, short but an important question of law which is posed for consideration of this Court is whether a person serving in an institution run, administered and managed by a local authority is disqualified to be the member of the Panchayat as provided under Section 30(1)(j) of the Act, 1993? 2.0 Facts leading to filing of the present petition in nut-shell are as under: 2.1 It is the case on behalf of the petitioner that since possessing educational qualification of B.A. (English) and B.Ed. (English), she was earlier appointed as Assistant Teacher in some another school. 2.0 Facts leading to filing of the present petition in nut-shell are as under: 2.1 It is the case on behalf of the petitioner that since possessing educational qualification of B.A. (English) and B.Ed. (English), she was earlier appointed as Assistant Teacher in some another school. That thereafter, an advertisement came to be published in daily newspaper on 09.12.2003 for appointment of Assistant Teacher in Municipal High School, Kheralu and pursuant to the same, petitioner applied for the post and the selection committee consisting of District Education Officer, Mehsana, Member of the Gujarat Secondary Education Board, Gandhinagar, Principal of Municipal High School, Kheralu and Member of the Municipal Borough, Kheralu undertook the selection proceedings and placed the petitioner at Sr.No. 2 in the merit list. However, a candidate who was at Sr.No.1 in the merit list, did not accept the appointment and therefore, the petitioner came to be appointed vide order dated 26.02.2004. That the appointment of the petitioner came to be approved by District Education Officer, Mehsana and thereafter, even the Commissioner, Mid-Day Meal School, State of Gujarat also granted approval to the appointment of the petitioner and thereafter petitioner joined the Municipal High School, Kheralu as an Assistant Teacher. 2.2 It is the case on behalf of the petitioner that the said Government Middle School, Kheralu was earlier run by erstwhile State of Bombay and by Government Resolution dated 22.08.1952, the administration and management of the said school was transferred to Kheralu Municipality. Therefore, it is the case on behalf of the petitioner that only the management of private Secondary School which was run by erstwhile State of Bombay, was transferred to the Municipality and thereby, staff of the school does not become employee of the Municipality. 2.3 That the petitioner contested the election of the member of Kheralu Taluka Panchayat which was held in the month of October, 2010. That at the relevant time of scrutiny of nomination paper of the petitioner, an objection came to be raised that the petitioner is holding salaried office in Nagarpalika and therefore, she incurs disqualification under Section 30(1) of the Act, 1993. However, at the relevant time, said objection was not pressed into service. That thereafter, the petitioner contested the election which was held on 21.10.2010 and the petitioner came to be declared as elected member of the Taluka Panchayat. However, at the relevant time, said objection was not pressed into service. That thereafter, the petitioner contested the election which was held on 21.10.2010 and the petitioner came to be declared as elected member of the Taluka Panchayat. That thereafter, petitioner also contested the election of the President of Taluka Panchayat and the election for the post of President came to be conducted on 09.11.2010 wherein petitioner defeated Respondent No. 3 – the contesting candidate by 8:7 votes and the petitioner became the President of Kheralu Taluka Panchayat. That thereafter Respondent No. 3 lodged objection on 09.11.2010 before the District Development Officer that the petitioner is disqualified to become the member of the Panchayat as per Section 30(1)(j) of the Act, 1993 and therefore, she is required to be removed as a member of the Taluka Panchayat. That the District Development Officer issued show-cause notice dated 12.11.2010 to the petitioner calling upon the petitioner to show cause as to why the petitioner should not be declared disqualified under Section 30(1)(j) of the Act, 1993. That the petitioner submitted her reply to Respondent No. 2, inter-alia, stating that she has not incurred any disqualification and thereby requested the authority to drop the proceedings. That thereafter the petitioner approached this Court by way of Special Civil Application No. 14934/2010 challenging the aforesaid show-cause notice, however, this Court did not entertain the said petition as the same was at the stage of show-cause notice and therefore, petitioner withdrew the same. That thereafter the impugned order came to be passed by Respondent No. 2 holding that the petitioner is disqualified to be the member of the Panchayat as per Section 30(1)(j) of the Act, 1993 and therefore, in exercise of powers under Section 32(1)(a) read with Section 32(2) of the Act, 1993, the post which was held by the petitioner as member of the Panchayat was declared vacant and consequently petitioner came to be removed as President of the Taluka Panchayat, Kheralu. 2.4 Being aggrieved and dissatisfied with the order passed by Respondent No. 2, petitioner preferred an Appeal being Appeal No. 228/2010 before the Additional Development Commissioner, State of Gujarat - Respondent No. 1 herein who, by his impugned order dated 15.01.2011 has dismissed the said Appeal confirming the order passed by Respondent No. 2. 2.4 Being aggrieved and dissatisfied with the order passed by Respondent No. 2, petitioner preferred an Appeal being Appeal No. 228/2010 before the Additional Development Commissioner, State of Gujarat - Respondent No. 1 herein who, by his impugned order dated 15.01.2011 has dismissed the said Appeal confirming the order passed by Respondent No. 2. Being aggrieved and dissatisfied with the aforesaid two orders, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 2.5 During the pendency of the petition, as Respondent No. 2 has issued agenda on 18.02.2011 calling for meeting of the members of the Kheralu Taluka Panchayat for conducting election for the post of President, Kheralu Taluka Panchayat which has become vacant in view of the impugned orders, the petitioner has also challenged the same by way of Amendment. 3.0 Shri B.B. Naik, learned Senior Advocate has appeared with Shri Dipen Desai, Learned Advocate appearing on behalf of the petitioner and Shri Shalin Mehta, Learned Advocate with Shri Tushar Chaudhary, Learned Advocate appeared on behalf of Respondent No. 3 and Shri H.S. Munshaw, Learned Advocate has appeared on behalf of Respondent No. 2 and Ms. Jirga Jhaveri, learned Assistant Government Pleader has appeared on behalf of Respondent No. 1 State. 4.0 Shri B.B. Naik, learned Senior Advocate appearing on behalf of the petitioner has submitted that petitioner has been disqualified under Section 30(1)(j) of the Act, 1993 and therefore, in order to not to be eligible to continue as a member of the Panchayat, the petitioner has to be a servant of the Government or local authority. It is submitted that petitioner is servant of neither the Government nor local authority. It is submitted that petitioner is a teacher working in Private Secondary School which is only managed by Kheralu Nagarpalika. It is submitted that petitioner is not an employee of the Kheralu Nagarpalika as the petitioner has not been appointed by the Kheralu Nagarpalika but has been appointed by following procedure laid down under the Gujarat Secondary Education Act by the committee constituted under the Gujarat Secondary Education Act. It is submitted that prior to the appointment of the petitioner, the NOC was sought from the District Education Officer, Mehsana which came to be granted vide order dated 21.11.2003. It is submitted that prior to the appointment of the petitioner, the NOC was sought from the District Education Officer, Mehsana which came to be granted vide order dated 21.11.2003. It is submitted that even after the appointment, the approval of the District Education Officer and Commissioner, Mid Day Meal School was sought and the said authorities granted approval to the appointment of the petitioner in exercise of powers conferred under them under the Gujarat Secondary Education Act and various government resolutions of the Education Department. Therefore, it is submitted that petitioner is as such appointed by following procedure laid down under the Gujarat Secondary Education Act and is an employee of Private Secondary School as defined in Section 2 of the Gujarat Secondary Education Act. 4.1 It is submitted that in order to be a servant of the Municipality, the petitioner ought to have been appointed as per the provisions of Section 50 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as “Act, 1963”). It is submitted that Section 50 of the Act, 1963 provides that appointment of officers and servants of the Municipality shall be made with previous sanction of the Director on sanctioned post made in accordance with the Rules framed thereunder Section 271. It is submitted that the staff setup of the Kheralu Nagarpalika approved by the Director does not include the teachers working in the Secondary School and therefore, it becomes clear that the petitioner is not an employee of the Municipality. It is submitted that petitioner is an employee of the Private Secondary School and not of the Municipality – Kheralu Nagarpalika. 4.2 It is submitted that the Recruitment Rules framed under Section 271 of the Act, 1963 have been framed with regard to the Kheralu Municipality with the sanction of the Director and as per the said Rules, appointment of the servant of the Nagarpalika is to be made by the Chief Officer by undertaking the procedure prescribed therein by the Chief Officer and has to be placed before the selection committee of the Nagarpalika. It is submitted that in the case of the petitioner, said procedure contemplated under the Recruitment Rules framed under Section 271 of the Act, 1963 has not been followed but the appointment of the petitioner is made by an absolutely different selection committee constituted under the Gujarat Secondary Education Act and in the entire proceedings, the selection committee of the Municipality has no role to play. It is further submitted that Recruitment Rules of the Kheralu Municipality do not apply to the petitioner and therefore, it is clear that petitioner is not an employee of Kheralu Nagarpalika. 4.3 It is further submitted on behalf of the petitioner that the salary of the petitioner is paid out of the salary grant released by the State Government and only management of the school is given to the Nagarpalika/Municipality. It is submitted that the Government of Bombay vide its Government Resolution dated 22.08.1952 transferred the management of the Private Secondary School to the Kheralu Municipality and bare perusal of the said resolution also shows that only management of the Private Secondary School was transferred to the Municipality and therefore, the petitioner does not become the employee of the Municipality. It is submitted that even the building in which the school runs is of the Kelavani Mandal and not of the Municipality and the school management is paying monthly rent to the Kelavani Mandal which clearly means that the school is not running in the municipality building. 4.4 It is further submitted on behalf of the petitioner that petitioner is an employee of Private Secondary School to which the provisions of the Gujarat Secondary Education Act apply and provisions of the Act, 1963 do not apply, therefore, the petitioner is not employee of the Municipality. 4.5 It is submitted on behalf of the petitioner that the respondent authorities have not properly considered the resolution of the State Government dated 16.09.1992 whereby the earlier restriction for employees of teaching staff of schools to contest election has been lifted and thereby, the State Government has resolved that the employees of the Private Secondary Schools can participate in the election. 4.6 Shri Naik, learned Senior Advocate appearing on behalf of the petitioner has further submitted that even the affidavit of the Chief Officer of Kheralu Municipality also makes it clear that the petitioner is not an employee of the Municipality and does not belong to the setup sanctioned by the Director of the Municipality. 4.7 It is further submitted on behalf of the petitioner that impugned order passed by Respondent No. 2 confirmed by Respondent No. 1 is absolutely malafide exercise of powers and under political pressure since the petitioner belongs to Indian National Congress which is a party opposite to the party in power. It is further submitted that even the objection qua disqualification of the petitioner has been lodged only after the petitioner came to be elected as President of the Taluka Panchayat, Kheralu on 09.11.2010 and not when the petitioner came to be elected as member of the Taluka Panchayat on 23.10.2010, which makes it clear that that till 09.11.2010, there was no objection against the petitioner being a member of the Taluka Panchayat but only when the petitioner came to be elected as a President, the aforesaid objection was lodged. 4.8 Though not pressed during the course of submissions, in the written submissions, it is submitted on behalf of the petitioner that that Respondent No. 3 has not availed efficacious remedy and only remedy available under Section 31 of the Act, 1993 is by challenging the election of the petitioner, but Respondent No. 3 has resorted to seeking exercise of powers under Section 30 of the Act, 1993. It is submitted that powers under Section 31 of the Act, 1993 are in the nature of election petition maintainable before the Civil Judge where trial would be conducted and evidence could have been led for proving whether the petitioner was disqualified or not? 4.9 Shri Naik, learned Senior Advocate appearing on behalf of the petitioner has relied upon the following decisions of the Hon’ble Supreme Court in support of his above submission and in support of his prayer to allow the present petition by quashing and setting aside the impugned orders. (i) Shivamurthy Swami Inamdar vs. Agadi Sanjanna Andanappa (1971) 3 SCC 870 (Para 14) (ii) Lalitha Bai vs. Returning Officer, City Municipality Elections, Gulbarga & Others AIR 1971 Mysore 35 (iii) Media Transasia India Ltd. & Anr. vs. Indian Airlines Ltd. & Ors. (i) Shivamurthy Swami Inamdar vs. Agadi Sanjanna Andanappa (1971) 3 SCC 870 (Para 14) (ii) Lalitha Bai vs. Returning Officer, City Municipality Elections, Gulbarga & Others AIR 1971 Mysore 35 (iii) Media Transasia India Ltd. & Anr. vs. Indian Airlines Ltd. & Ors. AIR 2003 Gujarat 27 (Paras 11, 12) (iv) Anokh Singh vs. Punjab State Election Commission & Another JT 2010 (12) SC 1 (Para 17) No other submissions have been made and no other decisions have been cited except referred to herein above. 5.0 Petition is opposed by Shri Shalin Mehta, Learned Advocate appearing with Shri Tushar Chaudhary, Learned Advocate appearing on behalf of Respondent No. 3. It is submitted that petitioner is an Assistant Teacher of Municipal High School, Kheralu (local authority) and therefore, is a servant of the local authority to incur disqualification under Section 30(1)(j) of the Act, 1993. It is submitted that on 12.11.2010, Respondent No. 2 issued show-cause notice to the petitioner calling upon the petitioner to show cause why she should not be disqualified under Section 30(1)(j) of the Act, 1993 as she was servant of Kheralu Municipality by virtue of being an Assistant Teacher of a school owned, run and managed by Kheralu Municipality. It is submitted that after hearing the rival parties, Respondent No. 2 has passed an order dated 29.11.2010 holding that the petitioner was disqualified under Section 30(1)(j) of the Act, 1993. It is submitted that the said order has been confirmed by the appellate authority, therefore, it is submitted that two authorities below have concurrently held and found against the petitioner and have declared the petitioner as disqualified under Section 30(1)(j) of the Act, 1993, which are neither illegal nor contrary to the provisions of the statute. 5.1 It is submitted by Shri Mehta, Learned Advocate appearing on behalf of Respondent No. 3 that petitioner is an Assistant Teacher of Kheralu Municipal School. That by Government Resolution dated 22.08.1952, the said school together with its building was transferred to Kheralu Municipality subject to various conditions mentioned in the said resolutions. That staff of the school also was taken over by Kheralu Municipality of course with the option to those who were not willing to get absorbed with Kheralu Municipality. That by Government Resolution dated 22.08.1952, the said school together with its building was transferred to Kheralu Municipality subject to various conditions mentioned in the said resolutions. That staff of the school also was taken over by Kheralu Municipality of course with the option to those who were not willing to get absorbed with Kheralu Municipality. It is submitted that Para 3 of the said Government Resolution clearly brings out that the staff taken over by Kheralu Municipality was to be governed by terms and conditions laid down in Government Resolution dated 27.07.1951. It is submitted that thus, if the petitioner is an employee of the Kheralu Municipal School and if the said school owned, run and managed by the Kheralu Municipality, the petitioner would perforce become an employee of Kheralu Municipality. It is further submitted even the reply affidavit filed by Chief Officer of Kheralu Municipality – Respondent No. 6 herein and the District Education Officer, Mehsana – Respondent No. 5 clearly state that the school in which the petitioner is serving is managed by Kheralu Municipality and that there is no separate trust constituted for running the school. It is submitted that if there was a private trust running the school with the grant of the State Government, things would have been different. However, in this case, the municipal school, though governed by the provisions of the Gujarat Secondary Education Act, 1972, is run by Kheralu Municipality. Therefore, the employer of every person serving in the school would be Kheralu Municipality because there is no private trust running or managing the school. Therefore, it is submitted by this measure, the petitioner is by all means an employee or servant of Kheralu Municipality. 5.2 It is further submitted that petitioner’s salary is being paid from the grant made available by the State Government to Kheralu Municipality. It is submitted that in the affidavit filed by Respondent No. 5, District Education Officer, Mehsana, it is stated that if the State Government stops the grant, Kheralu Municipality would become liable for payment of the salary. It is submitted that payment of salary to an employee would only be done by his / her employer only. It is submitted that if Kheralu Municipality is not the petitioner’s employer, the question of paying salary to the petitioner from the funds made available to Kheralu Municipality by the State Government would not arise. It is submitted that payment of salary to an employee would only be done by his / her employer only. It is submitted that if Kheralu Municipality is not the petitioner’s employer, the question of paying salary to the petitioner from the funds made available to Kheralu Municipality by the State Government would not arise. 5.3 It is further submitted that even the disciplinary authority in case of the petitioner is the President of Kheralu Municipality with the approval of the District Education Officer. If the Kheralu Municipality were not the petitioner’s employer, its President would not have wielded disciplinary authority over the petitioner. It is submitted that the disciplinary powers always vest in the employer and this makes the petitioner an employee or servant of Kheralu Municipality. 5.4 It is further submitted that even the petitioner has got the benefits of pay revision that are given to the Government employees, Panchayat employees and municipality employees. On retirement, the petitioner would be entitled to pension which would be paid by the municipality from the coffers of the State Government, the pension would be sanctioned by the Chief Officer of the Kheralu Municipality. 5.5 It is further submitted by Shri Mehta, Learned Advocate appearing on behalf of Respondent No. 3 that the petitioner’s argument that since her appointment is made by a committee constituted under the provisions of the Gujarat Secondary Education Act, she is not an employee of Kheralu Municipality is absolutely misconceived. It is submitted that the said committee cannot be said to be the petitioner’s employer. It is submitted that this is because the said committee does not foot the petitioner’s wage bill. It is submitted that the said committee is not responsible for the petitioner’s pension. It is submitted that the said committee is not responsible for the petitioner’s pay revision and the said committee was constituted only for the purpose of selection and by no stretch of imagination, the said committee can be said to be employer as sought to be contended on behalf of the petitioner. 5.6 It is further submitted that the authority has rightly passed the order under Section 32(1)(a) read with Section 30(1)(j) of the Act, 1993 as, being the servant in the school run and managed by the local authority (Kheralu Nagarpalika), petitioner was disqualified to be a member of the Taluka Panchayat, Kheralu. 5.6 It is further submitted that the authority has rightly passed the order under Section 32(1)(a) read with Section 30(1)(j) of the Act, 1993 as, being the servant in the school run and managed by the local authority (Kheralu Nagarpalika), petitioner was disqualified to be a member of the Taluka Panchayat, Kheralu. Therefore, no illegality has been committed by appropriate authority and the appellate authority. 5.7 Now, so far as the contention on behalf of the petitioner that Respondent No. 3 had alternative efficacious remedy by way of election petition under section 31 of the Act, 1993 is concerned, it is submitted that as such the said ground was not pressed by the learned Senior Advocate appearing on behalf of the petitioner. It is submitted that even otherwise the aforesaid has no substance at all. It is submitted that the question with respect to disqualification of a member of the Panchayat, as per Section 30 of the Act, 1993 is required to be considered as per the procedure laid down under the Act i.e. Section 32 and therefore, Respondent No. 2 has rightly exercised the power. 5.8 Now, so far as the reliance placed upon the decisions of the Hon’ble Supreme Court as well as this Court on behalf of the petitioner referred to herein above, Shri Mehta, Learned Advocate appearing on behalf of Respondent No. 3 has submitted that the said decisions would not be applicable to the present case as the question before the Hon’ble Supreme Court in the said decisions were with respect to holding of post in office of profit and therefore, on facts, said decisions would not be of any assistance to the petitioner. 5.9 Shri Mehta, Learned Advocate appearing on behalf of Respondent No. 3 has heavily relied upon the decision of the Hon’ble Supreme Court in the case of R. Dalmia vs. Commissioner of Income Tax reported in (1977) 2 SCC 467 in support of his submission that when the school in which the petitioner is serving is run, administered and managed by the Kheralu Nagarpalika, the entire control over the school, administratively, disciplinary etc. is with the Kheralu Nagarpalika/Municipality and therefore, petitioner is rightly disqualified under Section 30(1)(j) of the Act, 1993. Making above submissions and relying upon the above decision, it is requested to dismiss the present petition. is with the Kheralu Nagarpalika/Municipality and therefore, petitioner is rightly disqualified under Section 30(1)(j) of the Act, 1993. Making above submissions and relying upon the above decision, it is requested to dismiss the present petition. 6.0 An affidavit-in-reply is filed on behalf of the State affirmed by the District Education Officer, Mehsana – Respondent No. 5 herein. It is stated that petitioner is serving in Municipal High School, Kheralu Municipality and management of the said school is done by the Kheralu Municipality. It is further stated that petitioner is serving in a local authority. It is further stated that the school is managed by the Kheralu Municipality wherein specific resolution has been passed by State of Bombay and therefore, the Government Resolution dated 16.09.1992 is not applicable in the case of the petitioner. It is stated that considering the following grounds, the petitioner can be said to be a servant of the local authority. 1. The appointment order is issued by Kheralu Nagarpalika and the said school is managed by the Kheralu Nagarpalika. The name of the school is Municipal High School, Kheralu which does not have any separate trust for management. 2. The service conditions of the petitioner is under Gujarat Secondary Education Regulation, 1974, Section 27. Grant in Code, 1964 is applicable. 3. The management of the school is carried out by Nagarpalika on the basis of resolutions of Nagarpalika. 4. If suppose the grant is not issued by the State Government then responsibility to manage the affairs of the school is on the shoulders of Nagarpalika as well as accounts audit of the local authority fund which is done by the District Education Officer as well as Local Fund Test Audit. 5. The appointing committee as per the Secondary Education Act one of the member is of Municipal Borough, Kheralu as well as Principal, Municipal High School, Kheralu. 6. That the disciplinary authority of the petitioner’s school is also President under the approval of District Education Officer of Section 36 of Gujarat Secondary Education Act, 1972. Therefore, it is submitted that no illegality has been committed by Respondent Nos. 1 and 2 in declaring the petitioner as disqualified to be a member of the Taluka Panchayat, Kheralu as per Section 30(1)(j) of the Act, 1993. Therefore, it is requested to dismiss the present petition. Therefore, it is submitted that no illegality has been committed by Respondent Nos. 1 and 2 in declaring the petitioner as disqualified to be a member of the Taluka Panchayat, Kheralu as per Section 30(1)(j) of the Act, 1993. Therefore, it is requested to dismiss the present petition. 7.0 An affidavit-in-reply is also filed by the Chief Officer of Kheralu Municipality – Respondent No. 6 herein. It is stated that the staff of the school are not belonging to setup sanctioned by the Director of Municipalities and the management of the school is functioning separately, however, there is no separate registered trust for functioning of the above mentioned school. So far as the salary of the staff of the school is concerned, the same is being granted by the Government/Education Department. 7.1 An affidavit-in-reply is filed by Respondent No. 2 justifying its order submitting that petitioner is rightly held to be disqualified to be a member of the Panchayat as per Section 30(1)(j) of the Act, 1993 as she is the servant of the local authority – Kheralu Nagarpalika/Municipality i.e. serving in the school which is absolutely run, administered and managed by the Kheralu Municipality. Therefore, it is requested to dismiss the present petition. 8.0 Heard Learned Advocates appearing for respective parties at length. At the outset, it is required to be noted that the Government Middle High School, Kheralu was earlier run, administered, managed by the erstwhile State of Bombay and by resolution dated 22.08.1952 of the Education Department of the Government of Bombay, the entire school i.e. Government Middle High School, Kheralu came to be transferred to the Kheralu Municipality, Kheralu together with the building subject to the conditions mentioned in the said resolution. It is the contention on behalf of the petitioner that the said school was transferred to Kheralu Municipality only for the purpose of management by the Kheralu Municipality. However, considering the entire resolution dated 22.08.1952 as a whole, it appears that by the aforesaid resolution, Government of Bombay directed that the Government Middle High School, Kheralu together with its building should be transferred to the Kheralu Municipality, Kheralu. Thus, entire Government Middle High School, Kheralu came to be transferred to the new management i.e. Kheralu Municipality, Kheralu. Therefore, Kheralu Municipality can be said to be the management of the said school since 1952. Thus, entire Government Middle High School, Kheralu came to be transferred to the new management i.e. Kheralu Municipality, Kheralu. Therefore, Kheralu Municipality can be said to be the management of the said school since 1952. Admittedly, petitioner is serving as an Assistant Teacher in the said Municipal High School, Kheralu and the management of the said school is Kheralu Municipality, Kheralu. Therefore, the question which is posed for the consideration of this Court is whether the petitioner who is serving as Assistant Teacher in the Municipal High School, Kheralu, the management of which is Kheralu Municipality, Kheralu is disqualified to be a member of Panchayat as per Section 30(1)(j) of the Act? 8.1 It is the case on behalf of the petitioner that as the appointment of the petitioner was made by the selection committee constituted under Section 35 of the Gujarat Secondary Education Act and as per the Rules and Regulations of the Government and the appointment of the petitioner is governed by the Gujarat Secondary Education Act and as the post on which the petitioner is serving is not included into the setup of the Kheralu Municipality/Nagarpalika sanctioned by the Director of Municipalities and therefore, the petitioner cannot be said to an employee of the Kheralu Nagarpalika/Municipality and therefore, the petitioner has not incurred any disqualification as per section 30(1)(j) of the Act, 1993. The aforesaid cannot be accepted. Considering the provisions of Section 35 of the Gujarat Secondary Education Act, committee constituted under Section 35 of the said Act can never be said to be the appointing authority and/or the employer of the petitioner. The selection committee is constituted under Section 35 of the Gujarat Secondary Education Act consisting of the representative of the School Management; representative of the Secondary Education Board; representative of the State Government/District Education Officer to select an employee in the school. Therefore, the said committee cannot be said to be an employer and/or the appointing authority of the petitioner. It is an admitted position that the petitioner is serving in the school which is run, administered and managed by the Kheralu Municipality. When a pointed question was asked to the learned Counsel appearing on behalf of the petitioner as to who is the employer of the petitioner, learned Counsel appearing on behalf of the petitioner could not satisfactorily answer the same. When a pointed question was asked to the learned Counsel appearing on behalf of the petitioner as to who is the employer of the petitioner, learned Counsel appearing on behalf of the petitioner could not satisfactorily answer the same. Initially it was sought to be contended on behalf of the petitioner that as the appointment order of the petitioner is issued by the members and therefore, it was sought to be contended that the Principal can be said to be the appointing authority, however, subsequently, learned Counsel appearing on behalf of the petitioner has conceded that as such Principal of the school cannot be said to be the appointing authority of the petitioner. Similarly, the Principal also cannot be said to be the employer of the petitioner. Under the provisions of the Gujarat Secondary Education Act, as such the Trust and/or the management of the school recognized under the provisions of the Gujarat Secondary Education Act can be said to be the employer and appointing authority who is required to take disciplinary action subject to safeguards provided under the provisions of the Gujarat Secondary Education Act and the Regulations. In the present case, as stated herein above, the Government Middle School, Kheralu which was earlier managed by the erstwhile State of Bombay has been transferred with staff and the building etc. pursuant to the aforesaid Government Resolution of Government of Bombay dated 22.08.1952. Therefore, for all the purposes, Kheralu Municipality can be said to be the employer of the petitioner/entire staff of the said school. Therefore, for all practical purposes, even under the provisions of the Gujarat Secondary Education Act, Kheralu Municipality can be said to be the management/employer of an Assistant Teacher of the said school. Merely because the service conditions of the petitioner is governed by the provisions of Gujarat Secondary Education Act and Regulations, it cannot be said that the petitioner is not the servant of the school which is run, administered and managed by the Kheralu Municipality. Considering Section 30(1)(j) of the Act, 1993, a person who is servant of Government or servant of any local authority is disqualified to be and/or continued to be the member of the Panchayat. Considering Section 30(1)(j) of the Act, 1993, a person who is servant of Government or servant of any local authority is disqualified to be and/or continued to be the member of the Panchayat. Considering the aforesaid facts and circumstances, it cannot be said that petitioner being an Assistant Teacher in the Municipal High School, Kheralu, the management of which is Kheralu Municipality, petitioner is not the servant of the said Municipality/Nagarpalika (local authority) incurring the disqualification under Section 30(1)(j) of the Act, 1993. 8.2 It is the contention on behalf of the petitioner that as the Municipal High School, Kheralu in which the petitioner is serving as an Assistant Teacher is run and managed by the Kheralu Municipality/Nagarpalika only and therefore, petitioner cannot be said to be an employee of the Kheralu Municipality/Nagarpalika and/or as service conditions of the petitioner is not governed by the provisions of the Gujarat Municipalities Act and/or the post on which the petitioner is serving is not within the setup of Kheralu Municipality/Nagarpalika, petitioner cannot be said to be the servant/employee of Kheralu Muncipality. The aforesaid prima facie seems to be attractive but has no substance. When a pointed question was asked to the learned Counsel appearing on behalf of the petitioner as to what does he mean by “run and managed” by Kheralu Municipality. To that learned Counsel appearing on behalf of the petitioner has submitted that “run and managed” means only supervision by the Kheralu Municipality. As such the learned Counsel appearing on behalf of the petitioner could not satisfactorily convince the Court with respect to meaning of “run and managed”. As observed by the Hon’ble Supreme Court in the case of R. Dalmia vs. CIT reported in (1997) 2 SCC 467, “manage” means “to control”, “to act to administer”, “to conduct or direct affairs”. In the said decision the Hon’ble Supreme Court has even observed that “management” includes the “act of managing by direction or regulation or administration or control or superintendence”. As stated herein above, even considering the provisions of Gujarat Secondary Education Act, Kheralu Municipality can be said to be the management and the recognition is granted only under the provisions of the Gujarat Secondary Education Act and it cannot be disputed that recognition to run, administer or manage is required to be granted in favour of a Trust/Management. As stated herein above, even considering the provisions of Gujarat Secondary Education Act, Kheralu Municipality can be said to be the management and the recognition is granted only under the provisions of the Gujarat Secondary Education Act and it cannot be disputed that recognition to run, administer or manage is required to be granted in favour of a Trust/Management. As per the affidavit filed by the Municipality, as such the Municipal High School is run, administered and managed by the Kheralu Municipality and as such there is no separate Trust. Therefore, even considering the earlier Government Resolution dated 22.08.1952 issued by the Education Department, State of Bombay, the entire Government Middle School, Kheralu was transferred to the new management i.e. Kheralu Municipality/Nagarpalika. Therefore, the entire control over the Municipal High School, Kheralu is with the Kheralu Municipality/Nagarpalika and/or the committee constituted by the said Kheralu Nagarpalika/Nagarpalika consisting of the members/councilors of the Kheralu Nagarpalika/Municipality, therefore, for all practical purposes, Kheralu Municipality is the management who is running the Municipal High School, Kheralu in which the petitioner is serving as an Assistant Teacher and therefore, the petitioner can be said to be servant of such a local authority and therefore, being a servant of such a local authority i.e. Kheralu Municipality/Nagarpalika, the petitioner is disqualified to be and/or to be continued as member of the Panchayat. Considering Section 32(1)(a) of the Act, 1993, the petitioner is rightly held to be disabled from continuing to be a member of the Taluka Panchayat, Kheralu and consequently as President of the Taluka Panchayat, Kheralu. 9.0 Shri Naik, learned Senior Advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Shivmurthy Swami Inamdar vs. Agadi Sanjanna Andanappa reported in (1971) 3 SCC 870 and has submitted that if all the tests as mentioned by the Hon’ble Supreme Court in the said decision i.e. (1) whether the Government makes an appointment; (2) whether the Government has the right to remove/dismiss the holder; (3) whether the Government pays the remuneration; (4) what are the functions of the holder, does he perform them for the Government; (5) does the Government exercise any control for the purpose of those functions? are satisfied, in that case only, a person can be said to be an employee of the Government and/or holding the post of office of profit. are satisfied, in that case only, a person can be said to be an employee of the Government and/or holding the post of office of profit. The aforesaid cannot be accepted. It is to be noted that the Hon’ble Supreme Court in the said case was considering the question with respect to holding the post of “office of profit” under the Government and in the said decision, the Hon’ble Supreme Court laid down some of the tests that may be relevant to determine as to whether a particular office can be said to be an “office of profit”. It is the submission on behalf of the petitioner that all the aforesaid tests are required to be satisfied and if all the tests are satisfied then and then only, it can be said that person is holding an “office of profit” under the Government. The aforesaid cannot be accepted. The Hon’ble Supreme Court has never stated in the said decision that all the aforesaid five tests are to be satisfied and then and then only a person can be said to be holding the “office of profit” under the Government. If any of the aforesaid tests is satisfied, in that case, it can be said that a person is holding the “office of profit” under the Government. In the present case, as stated herein above, the Kheralu Municipality/Nagarpalika is running, administering and managing the affairs of the school and its management and Kheralu Municipality/Nagarpalika and/or the committee constituted by the said Municipality exercise the control over the performance of the functions of the institution/Municipal High School, Kheralu. Therefore, the petitioner is rightly held to be declared as disqualified to be and/or continued to be a member of the Taluka Panchayat, Kheralu and consequently the President of the Taluka Panchayat. 9.1 Now, so far as the reliance placed upon the decision of the Hon’ble Supreme Court in the case of Anokh Singh (Supra) is concerned, on facts, the said decision will not be applicable to the facts of the present case and the said decision would be of no assistance to the petitioner. In the said case, the question was with respect to the office of Lambardar and the question before the Hon’ble Supreme Court was whether holding the post of Lambardar can be said to be holding the “office of profit” under the Government? In the said case, the question was with respect to the office of Lambardar and the question before the Hon’ble Supreme Court was whether holding the post of Lambardar can be said to be holding the “office of profit” under the Government? Considering the fact that those Lambardars were paid only honorarium and the honorarium received by Lamabardar was not compensatory in nature, the Hon’ble Supreme Court held that holding the post of Lambardar cannot be said to be holding the post of “office profit”. 9.2 Now, so far as the reliance placed upon the decision of this Court in the case of Media Transasia India Ltd. (Supra) reported in AIR 2003 Delhi 27 relied upon by the learned Counsel appearing on behalf of the petitioner is concerned, the said decision also shall not be applicable to the facts of the present case and/or shall not be of any assistance to the petitioner. In the case before this Court, dispute was with respect to post of the member of the Town Committee constituted by the Area Development Authority which is distinct from the Corporation, as Area Development Authority is altogether a different entity under the provisions of the Gujarat Town Planning Act. Under the circumstances, the said decision shall not be applicable to the facts of the present case. 9.3 It is next contended on behalf of the petitioner that as Respondent No. 3 has not availed efficacious and only remedy available under Section 31 of the Act, 1993 by challenging the election of the petitioner, the impugned decision requires to be quashed and set aside. It is submitted that the powers under Section 31 are in the nature of election petition maintainable before the learned Civil Judge where trial would be conducted and evidence could have been led for proving whether the petitioner was disqualified or not. At the outset it is required to be noted that though initially the aforesaid was argued but subsequently the same was not pressed into service by the learned Counsel appearing on behalf of the petitioner, however, despite the above, since the aforesaid is part of the written submissions, this Court is dealing with the same. At the outset it is required to be noted that though initially the aforesaid was argued but subsequently the same was not pressed into service by the learned Counsel appearing on behalf of the petitioner, however, despite the above, since the aforesaid is part of the written submissions, this Court is dealing with the same. It is to be noted that the question with respect to disqualification of a person to be a member of the Panchayat and/or to continue to be a member of the Panchayat is required to be considered under Section 32 of the Act, 1993 and therefore, on an application submitted by Respondent No. 3 before the competent authority, when the competent authority has held and declared the petitioner to be disabled from continuing to be a member and subsequently declared the post held by the petitioner as vacant, no illegality has been committed by the respondents/competent authority. The question whether such a dispute of disqualification of a member to be or continued to be a member of the Panchayat for incurring the disqualification under Section 30 of the Act, 1993, by way of election petition under Section 31 of the Act is a larger question which is kept open. However, prima facie it appears that the election petition before the learned Civil Judge, Junior Division under Section 31 of the Act, 1993 is with respect to validity of any election of a member of the Panchayat. However, the aforesaid is only prima facie observation and aforesaid question is kept open. In any case, the question with respect to disability of a member of the Panchayat from continuing as members is required to be dealt with and considered under Section 32 of the Act, 1993. Under the circumstances, no illegality has been committed by the concerned respondents and authorities in declaring the petitioner is disabled from continuing on the post of member of a Taluka Panchayat, Kheralu and consequently the President of the Taluka Panchayat, Kheralu and the post held by the petitioner is rightly declared as vacant. Under the circumstances, no illegality has been committed by the concerned respondents and authorities in declaring the petitioner is disabled from continuing on the post of member of a Taluka Panchayat, Kheralu and consequently the President of the Taluka Panchayat, Kheralu and the post held by the petitioner is rightly declared as vacant. 10.0 In view of the above and for the reasons stated above, no illegality has been committed by both the authorities below in declaring the petitioner to be disabled to continue on the post of member of the Taluka Panchayat, Kheralu and consequently as President of the Taluka Panchayat, Kheralu and declaring the said post held by the petitioner as vacant in exercise of powers under Section 30(1)(a) of the Act, 1993 and considering Section 30(1)(j) of the Act, 1993. Hence, petition fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule discharged. No costs. P P P P P