JUDGMENT Dinesh Mehta, J. - By way of instant petition under Article 226 of the Constitution of India, the petitioner has prayed that the ensuing bye-election for the post of Pradhan of Panchayat Samiti, Salumber be declared illegal, while seeking quashment of the corresponding election notification dated 26.09.2019, issued by the State Government. 2. The factual matrix of the case, relevant for the present purposes lies in a very narrow compass: the petitioner having contested election of Member of the Ward No.13 of Panchayat Samiti Salumber, District Udaipur held in the year 2015, lost to Sh. Phoolchand Meena, who ultimately became Pradhan of Panchayat Samiti Salumber. The said Phoolchand Meena before completing his tenure of 5 years, passed away on 03.08.2019 leaving the office of Pradhan as well as the seat of Member, Ward No.13 vacant. 3. Since the office of Pradhan was reserved for member of Scheduled Tribe category, one Smt. Ganga Meena was given charge of Pradhan till further orders. After some time, the State Government proceeded to hold bye-election for the office of Pradhan, Panchayat Samiti Salumber and a notification dated 26.09.2019 came to be published cataloguing election programme. 4. Though election programme of Pradhan was declared, but no decision was taken by the State to fill the vacant seat of Member of Ward No.13, which too had become vacant, consequent to demise of said Phoolchand Meena. 5. The petitioner has invoked writ jurisdiction of the Court, challenging the respondents' decision of holding bye-election for the office of Pradhan, while not holding election for the post of Member of Ward No.13. The basic premise on which the writ petition has been preferred is, that until and unless election for vacant seat of Member is held, no election of Pradhan can be held. 6. With a view to canvas the proposition aforesaid, Mr. Punia, learned Senior Counsel invited Court's attention towards rules 57, 58, 59 and 63 of the Rajasthan Panchayati Raj (Election), Rules, 1994 (hereinafter referred to as the Election Rules) and Section 42 of the Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994). For the purpose of ready reference, they are being reproduced hereunder: "42. Punia, learned Senior Counsel invited Court's attention towards rules 57, 58, 59 and 63 of the Rajasthan Panchayati Raj (Election), Rules, 1994 (hereinafter referred to as the Election Rules) and Section 42 of the Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994). For the purpose of ready reference, they are being reproduced hereunder: "42. Filling up of vacancies.- The event of the office of a member or chairperson or deputy chairperson 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 foregoing 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 within six months from the date of the occurrence of the vacancy." "Rule 57. Bye-election of Sarpanch.- Whenever the office of a Sarpanch falls vacant and a bye-election is required to be held under Section 42, provisions of Rule [23]to [56] shall mutatis mnutandis apply to every byeelection for filling such vacancy. Rule 58. Election of members of Panchayat Samiti/Zila Parishad.- (1) In accordance with the time Schedule determined by the Commission, the District Election Officer (Panchayats) shall, by notification, call upon the constituencies of the Panchayat Samitis in the district and the constituencies of Zila Parishad to elect one member each and appoint xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx Rule 58A. Bye election of members of Panchayat Samiti or Zila Parishad.- Whenever the office of a member of Panchayat Samiti or Zila Parishad falls vacant and a bye-election is required to be held under Section 42, provisions of Rule 58 shall mutatis mutandis apply to every such bye-election for filling such vacancy. 59. Election of Pradhan.- (1) The Pradhan of a Panchayat Samiti shall be chosen by the elected members of the Panchayat Samiti from amongst themselves. Rule 63. 59. Election of Pradhan.- (1) The Pradhan of a Panchayat Samiti shall be chosen by the elected members of the Panchayat Samiti from amongst themselves. Rule 63. Filling up of vacancies of Pradhan, UpPradhan, Pramukh and Up-Pramukh.- (1) Any vacancy occurring otherwise than by efflux of time shall be filled by holding bye-election in accordance with the provisions of the foregoing rules contained in this chapter and the person so elected as Pradhan, Up-Pradhan, Pramukh, or Up-Pramukh shall hold office for the residue of the tenure of the Panchayati Raj Institution concerned: Provided that a person who has been removed from the office of Pradhan, or Up-Pradhan or Pramukh or Up-Pramukh under Sub-Section (1) of Section 38 of the Act, shall be ineligible for re-election to such office for the remaining term. (2) The date for such bye-election along with notice period to elect members of the Panchayat Samiti or Zila Parishad, as the case may be, shall be fixed by the State Election Commission." 7. Navigating the Court through above statutory provisions, learned Senior Counsel firstly submitted that the post of Pradhan became vacant on 03.08.2019, leaving less than 6 months' period for the scheduled date of next election, hence in light of proviso to Section 42, State cannot declare bye-election for the office of Pradhan. It was thereafter argued that consequent to death of said Sh. Phoolchand Meena, not only the office of Pradhan, but the office of Member for concerned Ward i.e. Ward No.13 also became vacant and until and unless such vacancy is filled by holding fresh election, holding election of Pradhan is violative of rights of the petitioner and other aspirants, who wish to become Member of Gram Panchayat in order to contest for the post of Pradhan. 8. In support of his submissions, learned Senior Counsel heavily relied upon an interim order dated 02.03.2009, passed by the Jaipuir Bench of this Court in a bunch of writ petitions, led by SBCWP No.2400/2009 : Ramavat Bairwa Vs. State & Ors. and submitted that the present case is identical to it, and interim order as passed in such case be also passed herein. For ready reference, the interim order dated 2.3.2009 is quoted hereunder:- "At joint request, instant petitions were taken together. State & Ors. and submitted that the present case is identical to it, and interim order as passed in such case be also passed herein. For ready reference, the interim order dated 2.3.2009 is quoted hereunder:- "At joint request, instant petitions were taken together. One of basic grievance raised by petitioners is that without first holding election of Ward member, respondents could not have initiated process for making election of Pradha/Pramukh and very notification dated 24.2.2009 issued will defeat their right to participate and become member of Ward which is not represented presently. It has been brought to the notice of this Court that in identical petition (CWP-14289/08) this Court vide order dt.22/12/08 while staying operation of notification dt.12/12/08 & 16@12@08, has granted liberty to respondents to first fill the office of the Ward member and proceed further with election of Pradhan/Pramukh. Shri RB Mathur has entered into a caveat on behalf of the respondents State Election Commission and submits that it is on going process and if for any good reasons, they fail to hold election of ward member, that will not withhold election of Pradhan/Pramukh as the case may be, and it is not the intention of s.29 of the Panchayatiraj Act, 1994. Since elections are taking place on 03/08/09, in terms of notification impugned dt.24/02/09, and there being an order of such like nature of this Court, may be an ex parte, this Court considers it proper to maintain same parity in case of present petitioners also. Issue notice to other respondents who are not represented, returnable within four weeks. In the meanwhile, this Court considers it proper to stay the operation of notification dt.24/02/09 for holding elections of Pramukh/Pradhan of Alwar, Karauli, Churu, Laxmangarh (Sikar) and Kishangarh Bas (Alwar) subject to the liberty to the respondents to first fill the office of Ward members in aforesaid Zila Parishad/ Panchayat Samiti as the case may be and proceed thereafter with the elections of Pradhan/Pramukh. List alongwith CWP-2424/09, 2427/09, 2528/09, 2443/09 & 14289/08 after pleadings are complete." 9. Heard. 10. Petitioner'S first limb of argument that since less than six months' time is remaining, the State is not justified in declaring election programme for the office of Pradhan, is per-se untenable. List alongwith CWP-2424/09, 2427/09, 2528/09, 2443/09 & 14289/08 after pleadings are complete." 9. Heard. 10. Petitioner'S first limb of argument that since less than six months' time is remaining, the State is not justified in declaring election programme for the office of Pradhan, is per-se untenable. A bare look at the proviso to Section 42 of the Act reveals that the same has been inserted with a view to avoid bye-election, in case the remaining term of a Panchayati Raj Institution is less than six months. The expression used, particularly the words "shall not be necessary", clearly indicate that the proviso confers a discretion upon the State Government to hold or not to hold election in case the remaining term of a vacancy is less than six months; the State Government may choose not to fill up the vacancy. The proviso cannot be interpreted to mean that in no case the State can fill up the vacancy, if the term of such vacancy is likely to expire within six months from the date when the vacancy arose. 11. Having examined the second contention of Mr. Punia, this Court finds that it is also equally fallacious. 12. Wading through the statutory provisions, this Court finds that according to Rule 59 of the Election Rules, Pradhan or UpPradhan of Panchayat Samiti are to be chosen by the elected members of the Panchayat Samiti from amongst themselves. Rule 58A provides that in case the office of member of Panchayat Samiti or Zila Parishad falls vacant and the bye-election is required to be held under Section 42, the bye-election shall be held in the same manner as in case of election. 13. Petitioner'S contention that since the office of Pradhan is to be filled from the elected members of the Panchayat Samiti from amongst themselves, until and unless election of a vacant seat of a Member is held, election of Pradhan cannot be held, does not appeal to this Court. 14. It is pertinent to note that vacancies of Pradhan, UpPradhan, Pramukh and Up-Pramukh is governed by Rule 63 contained in Chapter-VII of the Election Rules. 15. Rule 59 of the Election Rules provides that Pradhan of a Panchayat Samiti shall be chosen by elected members of Panchayat Samiti from amongst themselves. 14. It is pertinent to note that vacancies of Pradhan, UpPradhan, Pramukh and Up-Pramukh is governed by Rule 63 contained in Chapter-VII of the Election Rules. 15. Rule 59 of the Election Rules provides that Pradhan of a Panchayat Samiti shall be chosen by elected members of Panchayat Samiti from amongst themselves. As such, if a vacancy arises, as a result of death or otherwise, such vacancy can be filled as per Rule 59 of the Election Rules, which provides that the Pradhan of a Panchayat Samiti shall be chosen by the elected members of the Panchayat Samiti from amongst themselves, i.e., from the existing members of the Panchayat Samiti. 16. The reasons for holding aforesaid view are not for to seek: Chapter-VI of the Election Rules deals with election of members of Panchayat Samiti/Zila Parishad, which chapter contains a separate rule in the form of Rule 58A, governing bye-election of members of Panchayat Samiti or Zila Parishad. Rule 58A postulates that in case of accrual of vacancy, provisions of Rule 58 shall mutatis mutandis apply to such bye-election for filling such vacancy. 17. Rule 59 prescribes the manner of choosing Pradhan by providing that post of Pradhan of a Panchayat Samiti shall be chosen by the elected members of the Panchayat Samiti from amongst themselves. 18. Chapter-Vii, which is a separate Chapter dealing with the election of Pradhan and Up-Pradhan of Panchayat Samiti is independent of the provisions contained in Chapter-VI of the Election Rules. Chapter VII contains a separate Rule in shape of Rule 63, which in no ambiguous terms provide that a vacancy occuring otherwise than by efflux of time shall be filled by holding bye-election in accordance with the provisions of the rules contained in such chapter. 19. If Rule 58A and Rule 63 of the Election Rules are read in juxtaposition, one can find a clear distinction in the phraseology used. Rule 58A uses the expression 'a bye-election is required to be held' whereas Rule 63 mandates that a vacancy occurring 'shall be filled by holding bye-election'. As such, it is clear that in case vacancy of a member of Panchayat Samiti or Zila Parishad arises, holding of bye-election is at the discretion of the State Government, whereas holding bye-election in case of seat of Pradhan, Up-Pradhan, Zila Pramukh is necessary. 20. As such, it is clear that in case vacancy of a member of Panchayat Samiti or Zila Parishad arises, holding of bye-election is at the discretion of the State Government, whereas holding bye-election in case of seat of Pradhan, Up-Pradhan, Zila Pramukh is necessary. 20. A reference of the provisions contained in Section 28 will be of significance, which is being reproduced hereunder:- "28. Election of Pradhan and Up-Pradhan.- (1) The elected members of the Panchayat Samiti shall, as soon as may be, choose two members from amongst themselves to be respectively the Pradhan and Up-Pradhan thereof, and so often as there is a casual vacancy in the office of Pradhan or Up-Pradhan, they shall choose another member from amongst themselves to be the Pradhan or Up-Pradhan, as the case may be : Provided that no election shall be held if a vacancy is for a period of less than one month. (2) The election of the Pramukh or the Up-Pramukh of a Zila Parishad and the filling up of vacancies in the said offices shall be in accordance with such rules as may be made." 21. A simple reading of above quoted provision shows that in case of a casual vacancy in the office of Pradhan or Up-Pradhan, they shall choose another person from amongst themselves to be Pradhan or Up-Pradhan with a further stipulation that no election shall be held if a vacancy is for a period of less than a month. 22. The corresponding provision governing the election of member encapsulated in Section 13 does not contemplate holding of bye-election in case the office of member of Pancyhayat Samiti becomes vacant. As such, the proviso to Section 42 cannot be stretched to the extent of making it obligatory for the State to hold election for the post of member of Panchayat Samiti. 23. Hence, in considered opinion of this Court, the election of Pradhan or Up-Pradhan in case of accrual of vacancy can be filled by way of holding bye-election, without resorting to election of Ward members. 24. 23. Hence, in considered opinion of this Court, the election of Pradhan or Up-Pradhan in case of accrual of vacancy can be filled by way of holding bye-election, without resorting to election of Ward members. 24. That apart, post of Pradhan of a Panchayat Samiti or Pramukh of Zila Parishad is an important post and in case of accrual of vacancy, continuing such post with an adhoc arrangement by handing over charge to another person may not be conducive to the secrecy and sanctity of such post-it may reflect very existence of the democratic set up. The legislature in its wisdom has thought it fit to provide separate Chapters considering it expedient to hold election to fill up the vacancy in case of Pradhan, Up-Pradhan, Pramukh and Up-Pramukh, without resorting to filling up the vacancy of a member of Ward of a Gram Panchayat. 25. It is also to be noted that adhoc arrangement or handing over the charge is necessitated and duly provided in case of Sarpanch or Pradhan of a Gram Panchayat or Panchayat Samiti, whereas neither any provision for handing over charge for the remainder term has been enacted nor can the same be envisaged, for the post of Member of a Ward of Gram Panchayat. A Ward of a Gram Panchayat can be afforded to be unrepresented for some time, but the post of Pradhan can not continue in limbo on stopgap arrangement. 26. The reliance upon the interim order dated 02.03.2009, by learned Senior Counsel, is wholly misplaced, rather inappropriate. The learned Senior Counsel ought to have informed the Court that said writ petition has been disposed of by this Court, vide order dated 30.04.2009. An intra Court appeal thereagainst being SAW No.482/2009, too has been disposed of by this Court on 05.12.2009, which is evident from the official website of the High Court. This Court is constrained to observe that before relying upon such an interlocutory order, the learned Senior Counsel ought to have enquired about the status of the cases and inform the Court accordingly. The final orders are of course, not available on the official website of High Court, however the fact that the writ petition has been disposed of is clearly evident from the case status. 27. The final orders are of course, not available on the official website of High Court, however the fact that the writ petition has been disposed of is clearly evident from the case status. 27. After examining the matter further, this Court finds that those writ petitions have been finally dismissed by this Court vide its detailed judgment dated 30.4.2009, and the same has been duly reported in WLC (Raj) UC 2009, p.555. The relevant portion of the judgment is being reproduced hereunder:- "It is further necessary to note that it is a case of byeelection to the post of Pramukh/Up-Pramukh/Pradhan and not election which is otherwise held in the beginning of the term of a Panchayati Raj Institution. Therefore, it is necessary to keep in mind that when bye-election is to be conducted, it can be from and amongst the existing members. Section 28 focuses light on this aspect where it is provided that in case of a casual vacancy, members may choose another member as Chairperson/Deputy Chairperson from amongst themselves. The aforesaid provision clearly demonstrates that in what manner casual vacancy of Chairperson and Deputy Chair-person of the Panchayati Raj Institution is to be filled up because first part of Sections 28 & 29 makes a reference of the election at the beginning of the term, but the second part pertains to filling up casual vacancy. It is provided that same would be filled from and amongst the members themselves. Thus, taking note of the aforesaid analogy, it can be safely held that in bye-election of Chair-person or Deputy Chair-person, it would be from and amongst members existing. The aforesaid provision is not otherwise in conflict with the constitutional provision because Article 243(C) makes a reference about the composition of Panchayat which does exist here. Constitution nowhere provides that an election of Chair-person or Deputy Chairperson cannot be held unless a vacant seat of ward member is first filled. In absence of a constitutional or legislative provision to the effect that post of Chairperson or Deputy Chairperson cannot be filled without filling of the post of ward members, petitioners cannot claim a right by way of a writ petition. It is necessary to deal with the argument of learned counsel for the petitioners from an other angle also. In absence of a constitutional or legislative provision to the effect that post of Chairperson or Deputy Chairperson cannot be filled without filling of the post of ward members, petitioners cannot claim a right by way of a writ petition. It is necessary to deal with the argument of learned counsel for the petitioners from an other angle also. The main argument of learned counsel for the petitioners is that in absence of an election of ward member, petitioners and voters of the ward concerned will remain unpresented in the election of Chair-person or Deputy Chair-person. In the present matter, the seats of ward member as well as Chairperson or Deputy Chair-person fall vacant and thus, aforesaid argument has been raised. It may be that there is a situation where a ward member dies, resigns or disqualifies and such ward member is not holding the post of Chairperson or Deputy Chair-person. The seat of ward member is now to be filled by way of bye-election simplicitor because the post of Chair-person or Deputy Chair-person is already occupied. The question is that even after election of ward members by way of bye-election, said ward members or voters of the ward will have no chance of representation to the post of Chairperson or Deputy Chairperson as they have no liberty to contest the election of the aforesaid post as it is already occupied. If the argument and analogy given by the petitioners is accepted, then after holding bye-election of ward members, the election of Chair-person or Deputy Chairperson has to be conducted afresh so that newly elected ward members may also get chance to contest the election on the post of Chair-person or Deputy Chair-person, whereas no such election to the post of Chair-person or Deputy Chairperson can be held as the post is already occupied. Thus, in that situation also despite of election of post of ward members, the voters or the ward concerned or elected ward members get no chance to contest election and represent the post of Chairperson or Deputy Chairperson. The aforesaid illustration has been given to show that an byeelection cannot be equated with a case of routine election or election conducted in beginning of the term of the Panchayati Raj Institution as bye-elections are conducted under certain contingencies." 28. The aforesaid illustration has been given to show that an byeelection cannot be equated with a case of routine election or election conducted in beginning of the term of the Panchayati Raj Institution as bye-elections are conducted under certain contingencies." 28. Be that as it may, since those writ petitions have been finally decided by Jaipur Bench, vide its judgment dated 30.4.2009, the interim order dated 02.03.2009, relied upon by the petitioner is nothing short of an attempt to mislead the Court, particularly in view of the observations made in preceding paras Nos.26 and 27. 29. This petition for writ is thus, dismissed with a cost of Rs.20,000/-, for an attempt to mislead the Court. The cost aforesaid shall be deposited by the petitioner, with the Legal Services Authority, Rajasthan, Jodhpur within a period of 15 days by way of Demand Draft, while placing its proof/receipt on record of this Case. 30. The stay application also stands dismissed. 31. The matter may, however, be placed before the Registrar (Judicial) on 22.11.2019 to ascertain as to whether the cost aforesaid has been paid or not.