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2012 DIGILAW 139 (PNJ)

Varinder Kaur v. State of Punjab

2012-01-24

AJAY TEWARI

body2012
JUDGMENT Mr. Ajay Tewari, J.: (Oral) - By this writ petition, the petitioner has challenged the order dated 31.5.2010 (Annexure P-12) passed by respondent No.1 allowing the appeal of respondents No.3 and 4 by holding that the petitioner who was working on the post of Auxiliary Nurse & Midwife is a whole time job and, therefore, she is disqualified from holding the post of Sarpanch under Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994. 2. The petitioner was elected as Sarpanch of village Kurari, Tehsil and District Mohali. Admittedly, at that time she was working as Auxiliary Nurse & Midwife under the National Rural Health Mission. A complaint was submitted by respondents No.3 and 4 to the District Development and Panchayat Officer, Mohali to the effect that the petitioner was liable for disqualification. The DDPO sought information from the employer of the petitioner and it came to the notice that the petitioner was appointed as ANM under RCH-II program on contract basis on a consolidated salary of Rs.5500/- per month under the National Rural Health Mission and that her salary was being paid out of the funds received from the Government of India under the said mission. Thereafter, the DDPO, Mohali, vide letter dated 9.9.2009 (Annexure P-4) intimated respondent No.2 to take action against the petitioner. Accordingly, a notice was served upon the petitioner on 25.9.2009. Thereafter, the Director, Rural Development and Panchayats, Punjab ordered regular inquiry to be conducted by the Additional Deputy Commissioner (Developments) Mohali. Inquiry report was submitted on 18.11.2009 and on a consideration thereof, the notice was withdrawn. Respondents No.3 and 4 carried the matter in revision before the Financial Commissioner-cum-Principal Secretary, Panchayat Department. Thereafter, the Director, Rural Development and Panchayats, Punjab ordered regular inquiry to be conducted by the Additional Deputy Commissioner (Developments) Mohali. Inquiry report was submitted on 18.11.2009 and on a consideration thereof, the notice was withdrawn. Respondents No.3 and 4 carried the matter in revision before the Financial Commissioner-cum-Principal Secretary, Panchayat Department. The Financial Commissioner, vide order dated 31.5.2010, held as follows :- “ In view of the aforesaid position, the basic issue before this Court is that “whether the appointment of the Sarpanch as ANM, which has been made by Mission Director (NRHM)-cum-Director, Health Services Chandigarh Administration vide his Memo No.3589 dated 23.3.2007 attracts the disqualification mentioned under Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994 or not.” In this regard, the relevant provision is reproduced as under :- ‘A person shall be disqualified for being chosen as and for being a member of a Panchayat if he is a whole-time salaried employee of any local authority, statutory, corporation or Board or a Cooperative society, registered under the Punjab Cooperative Societies Act, 1961, or of the State Government or the Central Government.’ In the present case, the appointment letter has been issued by the Director, Health Services, Chandigarh Administration and it is absolutely not relevant that whether such appointment was made on regular basis or on contract basis. The important thing which requires to be seen is that such person should be a whole time salaried employee of local authority, statutory, corporation or Board or a Co-operative society, registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government. It is also an established fact that the job of Auxiliary Nurse and Mid Wife (ANM) is of whole time and it cannot be termed as a part time job. Therefore, the case of Smt. Varinder Kaur (Respondent No.2) Sarpanch Gram Panchayat Kurari, Block Kharar, Ditrict SAS Nagar comes under the aforesaid disqualification. Accordingly, the appeal of the appellant is allowed. The order dated 16.2.2010 of Director, Rural Development and Panchayats (Respondent No.1) is hereby quashed and the case is remanded back to the Director to pass the appropriate orders within 15 days in accordance with law.” 3. Impugning the order dated 31.5.2010, the petitioner is before this Court. 4. Accordingly, the appeal of the appellant is allowed. The order dated 16.2.2010 of Director, Rural Development and Panchayats (Respondent No.1) is hereby quashed and the case is remanded back to the Director to pass the appropriate orders within 15 days in accordance with law.” 3. Impugning the order dated 31.5.2010, the petitioner is before this Court. 4. Counsel for the petitioner has argued that firstly the Financial Commissioner (respondent No.1) has not kept in view the dictum of the Hon’ble Supreme Court in Som Lal vs Vijay Laxmi and others, (2008) 11 SCC 413 wherein their Lordships held that in such a case where the provision for disqualification is separately mentioned in the Punjab Panchayati Raj Act, 1994 (for short ‘the first Act’), and in the Punjab State Election Commission Act, 1994 (for short ‘the second Act’), it would be the provisions of the second Act which would hold the field. As per the learned counsel, the first mistake made by respondent No.1 was in treating the matter of disqualification under Section 208 of the first Act. Counsel for the petitioner has further argued that had respondent No.1 decided to proceed under the correct Act i.e the second Act, he would have had to take recourse to Section 12 of the second Act. Section 12 is quoted herein below :- “12. State Government to decide dispute regarding disqualification.-- (1) If any question arises as to whether a member or any Panchayat or Municipality has become subject to any of the disqualifications specified in Article 243F or 243V of the Constitution of India or in Section 11, the question shall be referred for decision of the State Government and his decision shall be final. (2) Before giving any decision on such question, the State Government shall obtain the opinion of the Election Commission and shall act according to such opinion.” 5. Counsel for the petitioner has further argued that a perusal of the impugned order reveals that respondent No.1 has held the petitioner liable for disqualification and before doing so, he has not taken the mandatory opinion of the Punjab State Election Commission. 6. Counsel for respondents No.3 and 4 has, however, argued that even if the first Act was not applicable, the petitioner would be liable for disqualification under Section 11(g) of the second Act. Section 11(g) provides for disqualification on the following ground :- “11. 6. Counsel for respondents No.3 and 4 has, however, argued that even if the first Act was not applicable, the petitioner would be liable for disqualification under Section 11(g) of the second Act. Section 11(g) provides for disqualification on the following ground :- “11. Disqualifications for membership of a Panchayat or a Municipality.- A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality,- (a) xx xx xx (g) if he holds an office of profit under the Government of India or any State Government; or” 7. As per the learned counsel, the primary question is whether the petitioner has attracted disability. He has relied upon Ravanna Subanna v. G.S. Kaggeerappa, AIR 1954 SC 653 Guru Gobinda Basu v. Sankari Prasad Ghosal and others, AIR 1964 SC 254, and Jaya Bachchan v. Union of India and others, (2006) 5 SCC 266 in support of this assertion. As regards the applicability of Section 12 of second Act, learned counsel has argued that the petitioner did not give a chance to the authorities to act under Section 12 and pre-empted the whole action by rushing to this Court by way of the instant writ petition. As per the learned counsel the stage for invocation of Section 12 of the second Act had not yet come and the Director Panchayats to whom the matter was remitted would have acted as per Section 12 of the second Act. 8. In my considered opinion, the argument regarding the attraction of the disability by the petitioner need not be gone into at this stage because of the argument of counsel for the petitioner with regard to Section 12 of the second Act. A perusal of the impugned order, extracted above, reveals that he has formed an opinion that the petitioner has attracted the disability and remitted the matter only for passing a formal order by the Director Panchayats. It is not disputed that before forming this opinion, respondent No.1 did not take recourse to the provisions of Section 12 of the second Act which have been couched in mandatory terms. In this view of the matter, I deem it appropriate to set aside the order dated 31.5.2010 and remit the matter to respondent No.1 to be disposed of afresh, as per law. Ordered accordingly. In this view of the matter, I deem it appropriate to set aside the order dated 31.5.2010 and remit the matter to respondent No.1 to be disposed of afresh, as per law. Ordered accordingly. Since the matter relates to the election of the year 2008, parties are directed to appear before respondent No.1 on 27.2.2012 and respondent No.1 shall pass the final order within two months thereafter. No costs. ---------0.B.S.0------------