JUDGMENT : 1. The petitioner by this writ petition has challenged the order dated 18.10.2019 whereby the respondents State Government has directed to give charge of Sarpanch as officiating Sarpanch to the respondent No.5 of Gram Panchayat Khedli. 2. Brief facts which need to be noted are that the petitioners are elected Ward Panch of Gram Panchayat, Khedli. One Smt Seema who was from SC Women category was elected as Sarpanch. The State Government vide order dated 5.7.2017 suspended Smt. Seema and during her suspension respondent No.5 Brij Mohan Koli, who is from SC category and was a Member Panch of the Gram Panchayat, was given officiating charge of Sarpanch vide order dated 18.7.2017. 3. Petitioners thereafter moved no confidence motion against the officiating Sarpanch which was signed by 7 Panch, out of 9 Panch of the Gram Panchayat and they moved a notice of no confidence motion. The said notice was forwarded by BDO Panchayat Bamanwas to the CEO, Zila Parisad, who removed respondent No.5 from the officiating charge of the Sarpanch and sought guidance from the State Government vide his order dated 5.9.2018. The State Government vide order dated 9.10.2018 held that no confidence motion cannot be initiated against an officiating Sarpanch and, therefore, directed to handover the charge of Sarpanch to Brij Mohan Koli Ward Panch and accordingly order was passed by respondent No.4 18.10.2018 reinstating respondent No.5 to take officiating charge of Sarpanch of Gram Panchayat Khedli. 4. Learned counsel for the petitioners submit that the petitioners are elected Panch and have not reposed their faith in respondent No.5. As the Sarpanch has been suspended on account of criminal case, the person nominated by the State Government as a Sarpanch would continue to work for the entire tenure inspite of the fact that the other Ward Panch have no faith in him and the very basis of Democratic set up and Panchayat would be frustrated. Learned counsel submits that in terms of provision of the Panchayati Raj Act if the Government finds that the office of the Sarpanch cannot be filled then the elected Up-Sarpanch ought to have been handed over the charge and a person nominated cannot be allowed to continue for the entire tenure as his actions would not be answerable to the other elected members if the contention of the respondent is accepted that no confidence motion cannot be initiated against him. It is submitted that provisions of Section 38 would also therefore not apply logically to such a person who has been nominated to officiate as a Sarpanch and he cannot be suspended also. 5. Per contra, learned counsel for the respondents submits that the procedure of no confidence motion cannot be adopted against a nominated officiating Sarpanch and can only be against an elected Chairperson or Deputy Chairperson. The appointment of a officiating Sarpanch is in terms of Section 25 of the Act of 1994 as it provides for nominating of a officiating Sarpanch where the Sarpanch is suspended under Section 38 of the Act 1994. Learned counsel submits that there was no women member of Schedule Caste available other than Sarpanch, who was suspended therefore as per proviso. The charge was handed over to a Ward Member, who is from the Schedule Caste category and as the provisions of Section 37 relating to no confidence motion would not apply, the Government has rightly directed the respondent No.5 to continue to hold a charge of Sarpanch. 6. Having noted the submission, it would be appropriate to look through the provisions of the Act of 1994 of Section 25, 26, 27, 30, 32, 37, 38 and 42, which are as under:- 25. Handing over of charge. 6. Having noted the submission, it would be appropriate to look through the provisions of the Act of 1994 of Section 25, 26, 27, 30, 32, 37, 38 and 42, which are as under:- 25. Handing over of charge. -(1) Whenever the election of a member of Chairperson or Deputy Chairperson of Panchayati Raj Institution has been declared to be void, or whenever such member or Chairperson or Deputy Chairperson - (i) is not found qualified or becomes disqualified under Section 19 to hold his office; or (ii) ceases to be so under the provisions of this Act; or (iii) fails to make the prescribed oath or affirmation in accordance with the provisions of this Act; or (iv) is removed from office or is suspended under Section 38; or (v) is resigns his office under Section 36; or Whenever a motion of no-confidence is passed against the Chairperson or the Deputy Chairperson of a Panchayati Raj Institution under Section 37; or Whenever the term of office of a Panchayati Raj Institution expires or the election of all the members of a Panchayati Raj Institution with or without the Chairperson has been declared void, or such election or the proceedings subsequent thereto have been stayed by an order of a competent Court; or Whenever a Panchayati Raj Institution is dissolved under this Act, Such member or Chairperson or Deputy Chairperson or all or any of them shall forthwith handover charge in the prescribed manner of his or their office including all papers and properties pertaining to such office in his or their actual possession or occupation (a) in the case of a member, to the Chairperson of the Panchayati Raj Institution concerned; (b) in the case of Chairperson to the Deputy Chairperson of such Panchayati Raj Institution or where there is no such Deputy Chairperson, to such member of such Panchayati Raj Institution or other person as the competent authority may direct [:] [Provided that charge of office of any chairperson who was elected to an office reserved for the persons belonging to Scheduled Castes or the Scheduled Tribes or the Backward Classes or for women, shall be handed over as per directions of the Competent Authority, to a member, if any of the said Castes, Tribes or classes or a women member, as the case may be, as may be prescribed and where there is no such belonging to the said Castes, Tribe, Classes or women member to whom charge can be given as aforesaid, the charge shall be handed over in the manner as may be prescribed, to any other member not belonging to the aforesaid categories.] (c) in the case of a Deputy Chairperson, to the Chairperson of the Panchayati Raj Institution concerned or, where there is no such Chairperson to such member of such Panchayati Raj Institution or other person as the competent authority may direct; (d) in the case of a Panchayati Raj Institution of which the term of office has expired, to such new Panchayati Raj Institution as has been constituted; and (e) in the case of a Panchayati Raj Institution dissolved under this Act, to the Administrator appointed under Section 95 (2) Upon the election or appointment of a new member or Chairperson or Deputy Chairperson or upon the constitution of a new Panchayati Raj Institution, and after the oath or affirmation of office required by this Act has been duly made the person holding on the date on which such oath or affirmation is made, charge of the office of such member or Chairperson or Deputy Chairperson or the Panchayati Raj Institution shall in pursuance of Sub-Section (1), forthwith handover to the person so elected or to the Panchayati Raj Institution so constituted, as the case may be the charge of office including all papers and properties pertaining to such office in his actual possession or occupation. (3) If any person fails or refuses to handover charge of office as required under Sub-Section (1), or sub section (2), the competent authority may, by order in writing direct the person so failing or refusing to hand over such charge forthwith to the persons or persons entitled thereto under Sub-Section (1), or Sub-Section (2), as the case may be. (4) If the person to whom a direction has been issued under Sub-Section (3) fails to comply with the direction, he shall, on conviction, be punished with imprisonment for a term not exceeding one year or with fine out exceeding one thousand rupees or with both. (5) Any officer empowered by the competent authority in this behalf may, without prejudice to any action that has been or may be taken under Sub-Section (4) use such force as may be deemed necessary for enforcing the provisions of Sub-Section and (2) and may for that purpose invoke in the prescribed manner the assistance of the police or the nearest Magistrate competent to do so. 26. Sarpanch and his election. - (1) Every Panchayat shall have a Sarpanch who must be a person qualified to be elected as a Panch and shall be elected by the electors of the whole Panchayat Circle in the prescribed manner. (2) If the electors of a Panchayat Circle fail to elect Sarpanch in accordance with this section or if the Panchas, fail to elect an Up-Sarpanch, the State Government shall appoint a person to the vacancy till vacancy is filled up by election within a period of six months and the person so appointed shall be deemed to be a duly elected Sarpanch or Up-Sarpanch, as the case may be. 27. Procedure for election of Up-Sarpanch on the establishment of a Panchayat. - (1) Every Panchayat shall have Up-Sarpanch. (2) On the establishment of a Panchayat for the first time under this Act, or on its reconstitution or establishment thereafter, a meeting of the Panchayat shall be called immediately by the competent authority who shall himself preside over the meeting but shall have no right to vote, and in such meeting the Up-Sarpanch shall be elected. 30. Term of office of members, Chairpersons and Deputy Chairpersons. 30. Term of office of members, Chairpersons and Deputy Chairpersons. - Except as otherwise provided in this Act - (a) the members and the Chairpersons of a Panchayati Raj Institution shall hold office during the term of the concerned Panchayati Raj Institution; and (b) the Deputy Chairperson of a Panchayati Raj Institution shall hold office as long as he continues to be a member of the concerned Panchayati Raj Institution. 32. Powers, functions and duties of Sarpanch and Up-Sarpanch. - (1) The Sarpanch shall - (a) be responsible for convening the meetings of the Gram Sabha and preside over such meetings; (b) be responsible for convening the meetings of the Panchayat and shall preside over and regulate such meetings; (c) be responsible for the maintenance of records, of the Panchayat; (d) have the general responsibility for the financial and executive administration of the Panchayat; (e) exercise administrative supervisions and control over the work of the staff of the Panchayat and the officers and employees whose services may be placed at the disposal of the Panchayat by any other authority; (f) for the transaction of business connected with this Act or for the purpose of making any order authorised thereby, exercise such powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Panchayat under this Act or the rules made thereunder; (g) furnish to the State Government or the officer incharge of Panchayat such reports, returns and record, whether periodical or otherwise, as may be prescribed or as may from time be called for; and (h) exercise such other powers, perform such other functions and discharge such other duties as the Panchayat may, by a resolution, direct or as the Government may, by rules made in this behalf, prescribe. (2) The Up-Sarpanch shall - (a) exercise such of the powers, perform such of the functions and discharge such of the duties of Sarpanch as the Sarpanch may, from time to time, subject to rules made in this behalf by the Government, delegate to him by order in writing; (b) in the absence of the Sarpanch, due either to his office remaining vacant or otherwise, exercise all the powers, perform all the functions and discharge all the duties of the Sarpanch; and (c) exercise such other powers, perform such other functions and discharge such other duties as the Panchayat may, by resolution, direct or the Government may, by rules made in this behalf, prescribe. (3) In the absence of both the Sarpanch and the Up-Sarpanch due either to their offices remaining vacant or otherwise the powers, functions and duties of the Sarpanch shall be exercised performed and discharged by such elected member of the Panchayat and in such manner as the competent authority may direct [:] [Provided that - (i) the Sarpanch shall exercise powers and perform functions and duties under Clauses (d) to (h); or (ii) the Up-Sarpanch shall exercise powers and perform functions and duties in accordance with Sub-Section (2); or (iii) an elected member of the Panchayat empowered to act in accordance with Sub-Section (3) shall exercise power and perform functions and duties of a Sarpanch; Only after seeking prior approval of the Administration and Establishment Committee constituted under Section 55-A if the State Government so directs by notification in the Official Gazette.] 37. Motion of No-confidence in chairpersons and deputy chairpersons. -(1) A motion expressing want to confidence in the chairperson or deputy chairperson of a Panchayati Raj Institution may be in accordance with the procedure laid down in the following sub-sections. (2) A written notice of intention to make the motion in such form as may be prescribed, signed by not less than one-third of the directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered in person by any one of the members singing the notice to the competent authority. (2) A written notice of intention to make the motion in such form as may be prescribed, signed by not less than one-third of the directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered in person by any one of the members singing the notice to the competent authority. (3) The competent authority shall there upon- (i) forward a copy of the notice, together with a copy of the proposed motion to the Panchayat in the case of a Sarpanch or Up-Sarpanch, to the Panchayat Samiti in the case of a Pradhan or Up-Pradhan and to the Zila Parishad in the case of a Pramukh or Up-Pramukh; (ii) convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution on a date appointed by him which shall not be later than thirty days from the date on which the notice under Sub-Section (1) was delivered him; and (iii) given to the members a notice of not less than [Seven]clear days of such meeting in such mane as may be prescribed. Explanation.-In computing the period of thirty days specified in this sub-section, the period during which the conventing of a meeting is stayed by a court shall be exclude. (4) The competent authority shall preside at such meeting: Provided that if, ,[***]he is unable to do so, the officer nominated by him shall so preside. (5) A meeting convened under sub-section (3) shall not be adjourned. (6) As soon as the meeting convened under this section commences, the presiding officer shall read to the members present, the motion to the consideration of which the meeting has been convened and declare it to be open for debate. (7) No debate on the motion under this section shall be adjourned. (8) Such debate shall automatically terminate on the expiration of two hours form the time appointed for the commencement of the meeting, if if is not concluded earlier. On the conclusion of the debate on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote. (9) The presiding officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon. On the conclusion of the debate on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote. (9) The presiding officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon. (10) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon, shall on the termination of the meeting be forwarded forthwith by the presiding officer in the case of the Chairpersons or the deputy chairperson. - (a) Of a Panchayat To the concerned Panchayat and the Panchayat Samity having jurisdiction on such Panchayat; (b) Of a Panchayat Samity. To the concerned Panchyat Samity and the Zila Parishad having jurisdiction on such Panchayat Samity; (c) Of A Zila Parishad. To the concerned Zila Parishad and the State Government (11) If the motion is carried with the support of not less than [Three fourth] of the elected members of the concerned Panchayati Raj Institution. - (a) the presiding officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the concerned Panchayati Raj Institution and by notifying the same in the Official Gazette; and (b) the concerned chairperson or the deputy chairperson shall cease to half office as such and vacate to office on or from the date on which the said notice is affixed on the notice board of the office aforesaid. (12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the same chairperson or deputy chairperson shall be made until after the expiration of one year from the date of such meeting. (13) No notice of motion under this section shall be made within two years of the assumption of office by a chairpersons or deputy chairperson. (14) The quorum to constitute a meeting for the consideration of a no-confidence motion against the chairperson or deputy chairperson shall be one-third of the total number of persons entitled to vote thereat. 38. Removal and suspension. (14) The quorum to constitute a meeting for the consideration of a no-confidence motion against the chairperson or deputy chairperson shall be one-third of the total number of persons entitled to vote thereat. 38. Removal and suspension. - (1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution, who - (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of misconduct in the discharge of duties or any disgraceful conduct; Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case the state Government shall by order in writing record its findings on the charges levelled. (2) The chairperson or the deputy chairpersons removed under Sub-Section (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned. (3) The member or the chairperson or the deputy chairperson removed under Sub-Section (1) or against whom finding have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. (4) The State Government may suspend any member including a chairperson or a deputy chairpersons of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-Section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution [stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension [;] [Provided that the State Government may also suspend any Panch on the recommendation of the Ward Sabha or a Sarpanch on the recommendation of the Gram Sabha, but the State Government shall do so only when a resolution to that effect passed by a Ward Sabha. or a Gram Sabha as the case may be, is referred by the State Government to the collector for convening a special meeting of the Ward Sabha or the Gram Sabha, as the case may be, for finally ascertaining the wishes of the members and the members present in the meeting so convened by the Collector and presided over by his nominee, reaffirm the resolution seeking suspension of the Panch or the Sarpanch, as the case may be, by a majority of two thirds of the members present and voting : Provider further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the completion of a tenure of two years by a Panch or a Sarpanch, as the case may be.] (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Section 97, be final and shall not be liable to be questioned in any Court of law. 42. Filling up of vacancies. -The event of the office of a member or chairperson or deputy chairpersons of a Panchayati Raj Institution becoming vacant by death, removal, resignation or otherwise under this Act shall be forthwith reported to the State Election Commission, An election to fill the vacancy shall be held in such manner as may be prescribed. The forgoing provisions of this Act shall apply to such election and the member or the chairperson or the deputy chairperson so elected shall hold office for the remainder of the term during which the outgoing member or the chairperson or the deputy chairperson would have been entitled to hold office, if the vacancy had not occurred : Provided that it shall not be necessary to fill up the vacancy if the term of such vacancy would expire with six months from the date of the occurrence of the vacancy. 7. 7. From perusal of the aforesaid provisions, it is apparent that the Panchayat Raj Act is silent with regard to situation like the present one where as per Section 25(1) the charge is handed-over to a nominated person by the State Government, who is a member of the Panchayat belonging to the Schedule Cast or Schedule Tribe or the backward-class or the women as the case may be, on account of vacancy caused because of the Sarpanch having been suspended on account of criminal case in terms of Section 38(4). The Sarpanch would thus obviously remain suspended till the criminal proceedings continue and in his absence, therefore, a nominated Sarpanch of the State Government would perform functions of the Sarpanch although he is not duly elected Sarpanch and situation would arise where he will continue to do so while the criminal proceedings may take long time for disposal against the suspended Sarpanch. 8. Circumstances like the present would, therefore, arise where the other members of the Panchayat may resolve to submit no confidence motion against Sarpanch. Contention of the learned counsel for the respondent is that respondent No.5 the Panchayat Raj Act does not envisage no confidence motion against a nominated Sarpanch and the respondents have rightly allowed to continue on the post of Saranch. 9. A look at Section 26(2) of the Act shows that the State Government shall upon failure of electors of a Panchayat Circle to elect a Sarpanch or Up-Sarpanch appoint a person to the vacancy till the vacancies filled by election period of six months and the person so appointed shall be deemed to be a duly elected Sarpanch or Up-Sarpanch, as the case may be. 10. In view of the aforesaid provisions the view taken by the State Government that no confidence motion cannot be taken up against a nominated Sarpanch is erroneous as there is a deeming clause under Section 26(2) for a nominated Sarpanch. The other provisions regarding no confidence motion would thus apply in a case of nominated Sarpanch also as he would be deemed to be Chairperson of the Panchayat Raj Institution. 11. The other provisions regarding no confidence motion would thus apply in a case of nominated Sarpanch also as he would be deemed to be Chairperson of the Panchayat Raj Institution. 11. In view of the above, State Authorities were directed to act in accordance with Section 37 Panchayat Raj Act on receiving no confidence motion resolution from the existing members of the Panchayat and meeting shall be conducted by giving a statutory notice of the period 7 of days and the respondent authorities are directed to conduct proceedings in terms of Section 37 Panchayat Raj Act as against respondent No.5 expeditiously forthwith. Upon passing of no confidence motion, the respondent will have to vacate the office and the State shall proceed in accordance with law. 12. Writ petition is allowed to the aforesaid extent.