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Rajasthan High Court · body

2014 DIGILAW 1442 (RAJ)

Harshpal Kaur v. State of Rajasthan

2014-08-01

M.N.BHANDARI

body2014
ORDER These four writ petitions have been heard together and are decided by common judgment as the facts and controversies are not only related to one person but are inter-linked. BRIEF FACTS OF THE CASE: The petitioner was elected as Chairperson of Municipal Council, Alwar. The election of the petitioner was challenged by maintaining election petition by a defeated candidate, Sweta Saini. The election petition is still pending before the Additional District Judge No.1, Alwar. One of the ground taken in the election petition is that petitioner does not belong to OBC though the post was reserved for that category. It is alleged by the petitioner that due to political influence of the opponent party, caste certificate issued in favour of the petitioner was cancelled on 29th January, 2010 by the Tehsildar. The petitioner challenged the order of Tehsildar. The writ petition preferred by the petitioner was disposed of with the directions for constitution of committee as per judgment of Hon’ble Apex Court in the case of Kumari Madhuri Patil & Another vs. Additional Commissioner, Tribal Development & Others, AIR 1995 SC 94 to verify the caste of the petitioner and the order passed by the Tehsildar was set aside by the court as he was not competent to pass the order. The respondents constituted a State Level Scrutiny Committee (in short “Committee”) consists of three members, which according to the petitioner, was contrary to the subsequent directions of Hon’ble Apex Court in the same case of Kumari Madhuri Patil, (1997) 5 SCC 437 . Therein, the direction was given to constitute the committee of five members. It is also stated that the committee did not consider the objections about its constitution and proceeded without holding proper meetings. The petitioner then preferred writ petition No.1110/2013 and one of the petition out of the four cases was decided in the meantime. In the meanwhile, the committee passed order on 14.03.2013 wherein the caste certificate issued in favour of the petitioner was cancelled holding that she is not belonging to OBC. The petitioner thereafter challenged the order dated 14.03.2013 by maintaining a Writ Petition No.5233/2013. During pendency of the second writ petition, the respondents passed another order on 09.04.2013 declaring election of the petitioner to be illegal and removed her from the post of Chairperson. The petitioner filed third writ petition bearing No.6011/2013. The petitioner thereafter challenged the order dated 14.03.2013 by maintaining a Writ Petition No.5233/2013. During pendency of the second writ petition, the respondents passed another order on 09.04.2013 declaring election of the petitioner to be illegal and removed her from the post of Chairperson. The petitioner filed third writ petition bearing No.6011/2013. The respondents thereafter passed another order on 06.05.2013 to supersede the earlier order of removal and substituted it by suspension. The petitioner filed fourth writ petition to challenge the order of suspension. In the meanwhile, Writ Petition No.5233/2013 was disposed of with the direction to the petitioner to make a representation to the committee again. The petitioner then preferred SLP before Hon'ble Apex Court which was thereafter disposed of with the request to the High Court to decide all the four writ petitions and accordingly judgment dated 25.05.2013 was set aside with remand of the case. In view of the above, four writ petitions have been heard together and are decided by this common judgment. The petitioner, in person, has challenged the constitution of the committee in the first writ petition mainly on the ground that constitution of the committee is not as per the direction of the Hon'ble Apex Court. The Hon'ble Apex Court in the case of Kumari Madhuri Patil (supra) directed for constitution of five members committee instead of three members as was earlier directed in the said case (in the year 1995). In the second writ petition, the order of the committee has been challenged where caste certificate has been cancelled. It is alleged that the committee passed order without sending the matter to the Vigilance Committee and causing inquiry as directed by Hon'ble Apex Court. The committee superficially passed the order by calling the report from the Collector without causing inquiry by themselves. The Collector submitted the report which was nothing but literally the same as was given earlier by the Tehsildar to cancel the caste certificate. The report of the committee so as the order are nothing but an empty formality to endorse the same view and the finding as was recorded by the Tehsildar in an illegal manner and had been set aside by the court. The report of the committee so as the order are nothing but an empty formality to endorse the same view and the finding as was recorded by the Tehsildar in an illegal manner and had been set aside by the court. It is also stated that the committee members had not attended the meeting with the coram and otherwise notices for hearing were given in such a manner that they were received by the petitioner after appointed date thus fair and proper opportunity of hearing was not given. It is lastly contended that the objection regarding constitution of the committee should have been decided first and thereupon to give opportunity of hearing to the petitioner which includes a chance to lead evidence to prove her caste. The committee decided all the issues by one order leaving no chance for the petitioner to lead evidence because she was all the times pursuing her case on the issue of constitution of the committee. It is also contended that the committee made a report adverse to the petitioner only for the reason that caste “Jat” was not mentioned in the service record of her father. It cannot be a ground to deny caste certificate rather the committee was required to verify as to whether petitioner falls in OBC category or not and it should have been in the manner directed by Hon'ble Apex Court in the case of Kumari Madhuri Patil (supra). In view of the above, finding of the committee deserves to be set aside. The order of removal from the post of Chairperson of Municipal Council, Alwar no more survives as the aforesaid order has been superseded by the order of suspension thus the petitioner has admitted that the third writ petition to challenge the order of removal dated 09.04.2013 has become infructuous. The last order under challenge is of suspension. The order aforesaid was passed in supersession to the order of removal. It is contended that the order aforesaid was passed without commencement of proceedings under Section 39 of Rajasthan Municipalities Act, 2009 (in short “Act of 2009”). The petitioner has placed on record the note-sheet of the Department of Local Self Government which does not indicate initiation of action against the petitioner under Section 39 of the Act of 2009. It is contended that the order aforesaid was passed without commencement of proceedings under Section 39 of Rajasthan Municipalities Act, 2009 (in short “Act of 2009”). The petitioner has placed on record the note-sheet of the Department of Local Self Government which does not indicate initiation of action against the petitioner under Section 39 of the Act of 2009. The note-sheet shows a decision for removal of the petitioner from the post of Chairperson on the report of the committee. In view of the above and as order of suspension is politically motivated, it deserves to be set aside. E Converso, the Officer Incharge has supported all the orders passed by the respondents. It is submitted that constitution of the committee was as per judgment of Hon'ble Apex Court in the case of Kumari Madhuri Patil (supra). The aforesaid judgment has been reiterated by this court while disposing of the writ petition bearing No.1626/2010 vide its judgment dated 04.03.2010. Therein, referring to the judgment of Kumari Madhuri Patil (in the year 1995), a direction was given to constitute the committee and relevant part of the aforesaid judgment was reproduced. The respondents accordingly constituted three members committee. The petitioner is however trying to confuse the issue in reference to the subsequent order of Hon'ble Apex Court in the case of Kumari Madhuri Patil (reported in the year 1997). Therein, on an application, the order was passed by Hon'ble Apex Court only in respect of State of Maharashtra where various difficulties were shown. Hon'ble Apex Court therein issued direction for constitution of five members committee for various areas. In view of the above, there was no illegality in the constitution of the committee. It is next contended that the order passed by the committee was after giving proper opportunity of hearing to the petitioner. The committee had given several dates to the petitioner to lead evidence but when she failed to do so, findings were recorded after seeking report from the District Collector, Alwar thus there is no illegality therein. So far as the order of removal from the post of Chairperson of Municipal Council, Alwar is concerned, it was passed on cancellation of caste certificate of OBC. The post was reserved for OBC and on cancellation of caste certificate, the petitioner was not entitled to hold the post. So far as the order of removal from the post of Chairperson of Municipal Council, Alwar is concerned, it was passed on cancellation of caste certificate of OBC. The post was reserved for OBC and on cancellation of caste certificate, the petitioner was not entitled to hold the post. However, the order of removal has been superseded and the writ petition for that reason has become infructuous. Coming to the last order of suspension, the Officer Incharge submitted that in view of finding of the committee adverse to the petitioner, she was suspended from the post while sending the matter for judicial inquiry thus action as required under Section 39 was initiated. In view of the above, all the writ petitions preferred by the petitioner deserve to be dismissed. I have considered rival submissions of the parties and scanned the matter carefully after going through the record. The first challenge is to the order dated 18.03.2011 for constitution of the committee of three members. It is mainly in reference to the order passed by Hon'ble Apex Court in the case of Kumari Madhuri Patil (reported in the year 1997). The judgment in the aforesaid case was considered by this court in the earlier writ petition bearing No. 1626/2010, decided vide judgment dated 4th March, 2010. The relevant paras of that judgment are quoted hereunder for ready reference: “In the case of Kumari Madhuri Patil (Supra), the Hon'ble Supreme Court has laid down the procedure for scrutinizing of a caste certificate as under: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent Gazetted Officer or non-Gazetted Officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the concerned castes or tribes or tribal communities etc. 6. by the concerned castes or tribes or tribal communities etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an office or post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/ appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post. In the case of GM, Indian Bank vs. R. Rani & Another, (2007) 12 SCC 796 , the Hon'ble Supreme Court has clearly observed that the directions given in the case of Kumari Madhuri Patil (Supra) are not merely guidelines, but have binding force of law. Once a procedure has been established by the Hon'ble Supreme Court, in absence of any rules or regulations, the procedure established by the Apex Court would carry the force of law. Therefore, the State is under a legal obligation to constitute the Committee as enumerated by the Apex Court. In the present case, admittedly the caste certificate has not been scrutinized by any Committee, as no Committee exists in the State Government of Rajasthan. Therefore, the Tehsildar was neither justified in issuing the notice dated 25.01.2010, nor justified in passing the impugned order dated 29.01.2010. In this view of the matter, this Court set asides the notice dated 25.01.2010 and the impugned order dated 29.01.2010. This Court directs the State to constitute a Committee as laid down by the Apex Court in the case of Kumari Madhuri Patil (Supra) and to refer the petitioner's case to the said Committee within a period of two weeks from the date of receipt of certified copy of this order. The Committee is expected to decide the petitioner's case within a period of further two weeks.” The perusal of judgment in petitioner's own writ petition not only refers the direction of Hon'ble Apex Court in the case of Kumari Madhuri Patil but final direction of this court. The Committee is expected to decide the petitioner's case within a period of further two weeks.” The perusal of judgment in petitioner's own writ petition not only refers the direction of Hon'ble Apex Court in the case of Kumari Madhuri Patil but final direction of this court. The judgment aforesaid was in reference to the final order passed by Hon'ble Apex Court in the case of Kumari Madhuri Patil (reported in the year 1995) where direction for constitution of the committee is of three members. Accordingly, I do not find any illegality in the action of the respondents regarding constitution of the committee. It was rather constituted as per judgment in the case of petitioner herself. It would be relevant to refer the subsequent order of Hon'ble Apex Court in the case of Kumari Madhuri Patil (reported in the year 1997) and the said order is quoted hereunder for ready reference: “1. This application has been filed to recall the judgment giving various directions; and to substitute in their place the directions sought for in the prayer clause of the application. 2. As regards the first prayer to recall the Order dated 2-9-1994 with regard to the grant of the caste certificates, we do not think that it is advisable to recall the order for the reason that this Court had deliberated upon the issue and entrusted the power to issue certificates of social status to a higher officer, namely, Sub-Divisional Officer, who is expected to objectively go into the question and grant or refuse to grant social status certificates. Accordingly, we reject prayer (a). 3. As regards prayer (b) read with direction No.(iv) of the Order of this Court, we too appreciate the inconvenience caused due to vast area of the State. Therefore, instead of one committee of three officers, there will be three Scheduled Tribe/Caste Scrutiny Committees comprising of five members with quorum of three members, as suggested in para 4 of the directions, to take a decision. At Pune, Nasik and Nagpur, six Caste Scrutiny Committees for SCs., Denotified Tribes, Nomadic Tribes, Other Backward Classes and the Special Backward Category in existence at Mumbai, Pune, Nasik, Aurangabad, Amravati and Nagpur would continue to scrutinise the certificates issued by the respective officers and take decision in that behalf. At Pune, Nasik and Nagpur, six Caste Scrutiny Committees for SCs., Denotified Tribes, Nomadic Tribes, Other Backward Classes and the Special Backward Category in existence at Mumbai, Pune, Nasik, Aurangabad, Amravati and Nagpur would continue to scrutinise the certificates issued by the respective officers and take decision in that behalf. In this regard, it is also suggested by Shri Dholakia, learned Senior Counsel for the applicant, that in case any certificate has been wrongfully refused by the certificate issuing authority, the aforestated Committees also would go into the question and decide in that behalf, whether refusal was wrongful and in case it finds that the refusal was wrongful and in case it finds that the refusal was wrongful, they are at liberty to direct the authority to grant the certificate. 4. With regard to prayer (c) also, we feel that the Caste Scrutiny Committees for Social Welfare, Cultural Affairs and Sports Department should comprise of Additional Commissioner (Revenue) - Chairman of the Revenue Division concerned; Divisional Social Welfare Officer-Member-Secretary to function in that behalf. 5. With regard to prayer (d), along with the Vigilance Cell, one Research Officer/Tribal Development or Social Welfare Officer would be associated in finding the social status of eligibility of the officers. 6. The application is accordingly ordered. No costs.” The perusal of the order passed in the year 1997 reveals confirmation of the earlier directions but keeping in mind the difficulties in State of Maharashtra, in particular few areas mentioned therein, the constitution of committee of five members was directed. It is not for general application but limited to the area referred therein. In view of the above, I am unable to accept the objection of the petitioner regarding constitution of the committee. A challenge to the order of constitution of the committee does not sustain and the first writ petition for it bearing No. 1110/2013 is dismissed. The second writ petition is to challenge the order passed by the committee cancelling caste certificate of the petitioner. Serious allegations have been made by the petitioner regarding working of the committee where, at times, only one member remained present and even service of notice was after nominated date. There are other objections as well. The second writ petition is to challenge the order passed by the committee cancelling caste certificate of the petitioner. Serious allegations have been made by the petitioner regarding working of the committee where, at times, only one member remained present and even service of notice was after nominated date. There are other objections as well. The perusal of the order passed by the committee and allegations regarding its working are not specifically replied by the respondents and otherwise, the order is mainly based on the report of the Collector. I find that when the petitioner had raised objection for constitution of the committee, it should have been decided first so as to make it clear that now the issue would be decided on merit thus the petitioner should lead evidence. In any case, default of the petitioner for not leading evidence cannot be to her benefit however the issue would not end here. The perusal of the direction of Hon’ble Apex Court in the case of Kumari Madhuri Patil reveals that as to how the committee should function. In the instant case, the committee mainly recorded its finding based on the report given by the Collector, thus, there is failure on the part of the committee to undertake the inquiry in the manner it should have been. Even if the aforesaid default is also condoned, the question further remains about the report sent by the Collector. It is nothing but endorsement of the order earlier passed by the Tehsildar and therein the Collector did not ask the petitioner to show her caste to fall in OBC category, though the committee had given the aforesaid opportunity. The fact however remains that when report was to be made by the Collector, opportunity should have been given to the petitioner therein itself. In fact, by seeking report from the Collector, the committee had substituted its power in ignorance of the judgment of the Hon’ble Apex Court. The procedure adopted by the committee thus cannot be accepted. The fact however remains that when report was to be made by the Collector, opportunity should have been given to the petitioner therein itself. In fact, by seeking report from the Collector, the committee had substituted its power in ignorance of the judgment of the Hon’ble Apex Court. The procedure adopted by the committee thus cannot be accepted. It is further noted that basis to deny OBC certificate in absence of word “Jat” in the service record of her father in ignorance of the fact that mere use of word “Jat” alone cannot determine the caste rather any caste falls in the OBC category or not is to be determined after collection of evidence as indicated by Hon’ble Apex Court in the case of Kumari Madhuri Patil, that too by the Vigilance Cell. If the word “Jat” would have been used anywhere, nobody could have raised objection about the caste certificate. In the background aforesaid, the order dated 14.03.2013 passed by the committee cannot be allowed to sustain, accordingly, it is set aside with remand of the matter to the committee to decide the issue afresh by the procedure as provided by Hon’ble Apex Court in the case of Kumari Madhuri Patil. With the aforesaid, second writ petition is disposed of. The third writ petition is against the order of removal. However, the order aforesaid has already been superseded by the order of suspension thus third writ petition bearing No.6011/2013 has become infructuous and it is accordingly dismissed. The fourth writ petition is to challenge the order of suspension dated 06.05.2013. An elected member of Municipality can be suspended as per sub-section (6) of Section 39 of the Act of 2009. For ready reference, provision aforesaid is quoted hereunder: “(6) Notwithstanding the foregoing provisions of this section, the State Government may place under suspension a member against whom proceedings have been commenced under this section until the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the Municipality or otherwise perform the duties of a member thereof.” Perusal of sub-section (6) reveals that an elected member of Municipality can be placed under suspension on commencement of the proceedings under the said provision. The question for my consideration is as to whether the proceedings were commenced against the petitioner under Section 39 to pass an order of suspension. It is not in dispute that prior to passing of the order of suspension, the order of removal of the petitioner from the post of Chairperson was passed. It was mainly on the ground that the committee had cancelled the caste certificate however the order of removal was without adopting the procedure as given under Section 39 of the Act of 2009 and the Municipalities Rules. The respondents themselves realized their mistake and order of removal was superseded. This shows as to in what manner the respondents have taken action against the petitioner. I am not going on the issue as to whether action was politically motivated or not. The legal provisions were violated by the respondents though they are expected to be law-abider. No preliminary inquiry or charge sheet was issued to the petitioner prior to passing of the order of removal. The order of suspension, no doubt, makes a reference to send the matter for judicial inquiry but the aforesaid order is also shocking because the matter has been sent for judicial inquiry without framing definite charges. In any case and without going much into the aforesaid, I am of the opinion that when report of the committee cancelling caste certificate itself has been quashed, the very basis to pass order of removal and thereafter order of suspension cannot be allowed to stand. In any case and without going much into the aforesaid, I am of the opinion that when report of the committee cancelling caste certificate itself has been quashed, the very basis to pass order of removal and thereafter order of suspension cannot be allowed to stand. Here, it would be relevant to refer and quote note-sheet of the State Government to show that in what manner they dealt with the cases and accordingly note-sheet of the State Government is quoted hereunder: ^^27- d`i;k iSjk 6&14@,u dk voyksdu djsaA Jhefr g”kZiky dkSj uxj ifj”kn~] vyoj esa vU; fiNM+k efgyk oxZ ds vkjf{kr lHkkifr uxj ifj”kn~] vyoj ds in ij fuokZfpr gqbZ Fkh rFkk jkT;Lrjh; Nkuchu lfefr lkeftd U;k; ,oa vf/kdkfjrk foHkkx }kjk i`”B 2@lh fnukad 14-3-2013 ds vkns’k }kjk Jhefr dkSj dk tkfr izek.k i= dzekad 6195 fnukad 3-11-2009 voS/k ik;s tkus ds vfrfjDr eq[; lfpo ,oa v/;{k jkT;Lrjh; Nkuchu lfefr ds vkns’k ds ifj.kker% jkT; ljdkj }kjk Jhefr g”kZiky dkSj dks lHkkifr ds in ls rRdky izHkko ls vf/klwpuk fnukad 9-4-2013 i`”B 56@lh }kjk i`Fkd fd;k x;k gSA muds LFkku ij i`”B 55@lh }kjk vf/klwpuk tkjh dj Jhefr deys’k lSuh dks lHkkifr dk dk;ZHkkj fn;k x;k gSA 28- mijksDr vf/klwpuk fnukad 9-4-2013 ds fo:) Jhefr g”kZiky }kjk ekuuh; jktLFkku mPp U;k;ky; t;iqj ihB le{k Jhefr g”kZiky dkSj cuke jktLFkku ljdkj o vU; ¼,dy ihB fnokuh ;kfpdk la[;k 6011@2013½ izLrqr dh xbZ gS tks vHkh yfEcr gS ekuuh; U;k;ky; }kjk Jhefr deys’k lSuh dks uhfrxr fu.kZ; ysus gsrq izfrcaf/kr fd;k gqvk gSA bl ;kfpdk dh vkt fnukad 30-4-2013 dks lquokbZ ds nkSjku ;g rF; vk;k gS fd Jhefr g”kZiky dkSj dks lHkkifr ds in ls i`Fkd /kkjk 39 jktLFkku uxj ikfydk vf/kfu;e 2009 ds vUrZxr U;kf;d & tkap dh tkdj gh fd;k tk ldrk gSA Jhefr g”kZiky dkSj lHkkifr ds in ij vklhu jgus ls U;kf;d tkap esa lk{; dks izHkkfor dj ldrh gSA vr% mUgsa fuyfEcr djrs gq, U;kf;d tkap gsrq izsf”kr fd;k tkuk visf{kr gSA mijksDruqlkj vf/klwpuk esa la’kks/ku fd;k tkuk izLrkfor gSA izdj.k 7-5-2013 dks is’kh fu;r gSA 29- bl laca/k esa ;kfpdk esa jkT; ljdkj dh vksj ls iSjoh dj jgsa vfrfjDr egkf/koDrk Jh ,l-,u- dqekor th ls Hkh ekSf[kd ppkZ gqbZ gSA vr% mDr ifjizs{; esa izLrkfor gS fd foHkkxh; vf/klwpuk fnukad 9-4-2013 i`”B 56@lh esa la’kksf/kr vf/klwpuk tkjh fd;k tkdj jkti= izdk’ku djk;k tkuk izLrkfor gSA i`”B 56@lh la’kksf/kr vf/klwpuk dk izk:i i=koyh ij /ot ^^d** ij voyksduh; gS ,oa iz’kklfud fu.kZ; gsrq i=koyh izLrqr gSA** The perusal of note-sheet does not reveal preliminary inquiry into the matter or a charge sheet so as to commence proceedings under Section 39 of the Act of 2009. The order of removal was passed on the cancellation of caste certificate in violation of Section 39 and the rules and order of suspension was nothing but substitution of the order of removal without commencement of proceedings as envisaged under Section 39 and the rules made by the State Legislatures. A reference of judgment in the case of Jan Mohd. vs. State of Rajasthan, 1992 (2) WLC (Raj.) 463 would be relevant and para of the said judgment is quoted hereunder for ready reference: “In view of the aforesaid discussion, we are firmly of the view that the proceedings against a Chairman or Member of the Municipal Board commence when the preliminary enquiry report submitted to the Government is considered by the Government and the Government applies its mind to it and comes to the conclusion that a further probe in the matter is essential. For the removal of the holder of an elected public office that is Chairman or Member of the Municipal Board, if the Govt. decides to issue a notice to the incumbent under Section 63(2) of the Act to the delinquent Chairman or the Member of the Municipal Board to show cause why definite charges be not framed against him and be referred to a Judicial Officer, that is the stage where the proceedings start against the Chairman or the Member of the Municipal Board and the State Govt. has power to suspend the Chairman or a member of a Municipal Board simultaneously when it decides to issue him a notice of show cause under Section 63(2) of the Rajasthan Municipalities Act. The suspension of a Chairman or a Member of a Municipal Board pending enquiry being an interim measure the suspension does not result in civil or evil consequences and it is not penal in character. Enough safeguards have been provided in the Section so that no arbitrary, capricious or mala fide suspension may take place. However, we will like to add a word of caution that the holders of these elective public posts cannot be equated with Govt. servants and, therefore, before a holder of an elected post is suspended, the Government must have sufficient reasons to do so. However, we will like to add a word of caution that the holders of these elective public posts cannot be equated with Govt. servants and, therefore, before a holder of an elected post is suspended, the Government must have sufficient reasons to do so. Care should be taken that such suspensions should not be arbitrary and the suspensions of such elected representatives should not be brought about for political motives or consideration.” The perusal of para quoted above shows that cases of elected persons should not be dealt with as of the Government servant. In the instant case, the manner order of suspension has been passed shows not only violation of legal provisions but in haste because earlier the petitioner was dismissed from the post without adherence to the provisions of law and thereafter to cover up the action, the petitioner was then suspended. In view of reasons given above, the order of suspension dated 06.05.2013 is set aside. It would however not preclude the respondents to pass fresh order on receipt of fresh inquiry report, if it goes adverse to the petitioner but it should be in accordance to Section 39 of the Act of 2009. The judgment in this case would however not affect the election petition in any manner. The fourth writ petition is accordingly allowed.