JUDGMENT : GANESH RAM MEENA, J. 1. The petitioner has filed instant writ petition challenging the order dated 09.12.2020 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, whereby the petitioner was placed under suspension with the order that he should not be allowed to participate in any work and proceedings of the Panchayat Samiti. 2. After due Notification for the general elections to the Panchayati Raj Institutions, the petitioner- Vijendra Kumar submitted his nomination form for Ward No. 18 on 08.11.2020 for election as a Member of the Panchayat Samiti, Laxmangarh, District Sikar. Along-with the nomination form, the petitioner submitted the details about his living children. He mentioned that he has two children namely; Paridhi, born on 04.03.2015 and another Akshita, born on 10.02.2017. The petitioner submitted the nomination form as a candidate of the political party i.e. Bhartiya Janta Party. 3. After voting for the elections, the counting of votes took place on 08.12.2020 and thereafter, the result was declared on the same day and the petitioner was declared a ‘returned candidate’ as Member of Panchayat Samiti, Laxmangarh, District Sikar from Ward No. 18 and on being declared as a returned candidate, a certificate of election was also issued by the Returning Officer. 4. After declaration of the result and the petitioner being declared as a returned candidate, a complaint on the very same day i.e. on 8.12.2020 was submitted by one Mr. Sarendra Kumar Meel, who was a defeated candidate in the election. In the complaint, which is Annex.4 in the writ petition, complainant Sarendra Kumar Meel has alleged that the petitioner- Vijendra Kumar at the time of filing of the nomination form was having two living children and on 20.11.2020 his wife has given birth to the third child. In this manner, as on the date of election i.e. on 8.12.2020, he has more than two living children and has become ineligible for being Member of the Panchayati Raj Institution. It was specifically mentioned in the said complaint that the petitioner Vijendra Kumar be declared ineligible and he be restrained from participating in the election process for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and next day respectively. 5. On the basis of the complaint dated 08.12.2020 by complainant Mr. It was specifically mentioned in the said complaint that the petitioner Vijendra Kumar be declared ineligible and he be restrained from participating in the election process for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and next day respectively. 5. On the basis of the complaint dated 08.12.2020 by complainant Mr. Sarendra Kumar Meel, making allegations against the petitioner, the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar, on 08.12.2020 issued a show cause notice to the petitioner stating that his wife has given birth to a child on 20.11.2020. It has also been mentioned in the show cause notice that on an inquiry being conducted by the Block Medical Officer, Laxmangarh, there is a confirmation of ‘missing delivery’ of his wife Smt. Anju Devi, which is her third child. Explanation to the show cause notice was to be submitted by 12:00 noon on 09.12.2020. On 09.12.2020 the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar) submitted its report/ recommendation to the Addl. District Collector, Sikar, for taking appropriate action in regard to the prayer in the complaint for declaring the petitioner ineligible and to restrain him from participating in the election for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and 11.12.2020 respectively. On 09.12.2020 the Block Chief Medical Officer, Laxmangarh, also submitted a letter stating that there were pre -delivery medical examinations of the wife of the petitioner giving out tentative delivery date as 03.12.2020. It has also been mentioned therein that since there is no information submitted to them in regard to the delivery, the same can be treated as ‘missing delivery’. 6. On 09.12.2020, the Tehsildar, Laxmangarh, District Sikar submitted to the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar, that on the basis of the inquiry report of the Patwari and the Village Development Officer, Jasrasar, it has been found that the wife of the petitioner has given birth to a healthy child on 03.12.2020. 7. 6. On 09.12.2020, the Tehsildar, Laxmangarh, District Sikar submitted to the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar, that on the basis of the inquiry report of the Patwari and the Village Development Officer, Jasrasar, it has been found that the wife of the petitioner has given birth to a healthy child on 03.12.2020. 7. On 09.12.2020 the Additional Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, issued a letter seeking explanation of the petitioner to be submitted before 24.12.2020 along-with the evidence with a specific statement of charge that he has now got third child and has incurred disqualification in view of the provision of 19(l) of the Act of 1994 and, therefore, why the petitioner should not be removed from the Member, Panchayat Samiti. 8. The Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, vide order dated 09.12.2020 placed the petitioner under suspension and ordered that he should not be allowed to participate in any work and the proceedings of the Panchayat Samiti. 9. Counsel appearing for the petitioner submitted that the impugned order of suspension is in clear violation of provision of Section 38 of the Act of 1994 and Rule 22 of the Rules of 1996. He further submitted that the grounds for suspension as envisaged under section 38 of the Act of 1994 are not available in the present case. He further submitted that the petitioner has been placed under suspension so as to keep him away from the election process and voting for Pradhan and Up-Pradhan of Panchayat Samiti Laxmangarh, District Sikar, scheduled on 10.12.2020 and 11.12.2020. 10. Dr. Ganesh Parihar, AAG counsel appearing for the respondents State and Mr. R.K. Agarwal, Sr. Advocate assisted by Mr. Shubham Kumar Sharma, appearing for the Intervener submitted that the order of suspension of the petitioner is not in accordance with law and after following the due process of law and based on the specific allegations of third living child of the petitioner, which renders him ineligible to be a Member of the Panchayati Raj Institution. 11. Considered the rival submissions made by the counsel appearing for the respective parties. 12. 11. Considered the rival submissions made by the counsel appearing for the respective parties. 12. The relevant provisions for consideration in the matter are Sections 38 and 39 of the Act of 1994 and Rule 22 of the Rules of 1996, which are as under: “38. Removal and Suspension: (1) The State Government may, by order in writing and after giving him and 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. (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 Chairperson removed under Sub-sec. (1) may at the discretion of the State Government also be removed from the membership, of any of the Panchayati Raj Institution concerned. (3) The member or the Chairperson or the Deputy Chairperson removed under Sub-sec. (1) or against whom finding have been recorded under the proviso to that sub-sec, 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 suspended any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-sec. (4) The State Government may suspended any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-sec. (1) or against whom any criminal proceedings in regard to an offense involving moral turpitude is pending trial in a Court of law and such person shall 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 wished 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-third of the members present and voting: Provided 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 Sec. 97, be final and shall not be liable to be questioned 28 in any Court of law.” “39. Cessation of membership: (1) 1 [A] member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he: (a) is or becomes subject to any of the disqualification specified is Sec. 19. (b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution. (c) is removed from the membership. (d) resigns from the membership. (e) dies. (f) fails to make the prescribed oath or affirmation of the office or membership within three months from the date of election or appointment. (c) is removed from the membership. (d) resigns from the membership. (e) dies. (f) fails to make the prescribed oath or affirmation of the office or membership within three months from the date of election or appointment. (2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-sec. (1), the competent authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member: (xxx) Provided [xxx] that until a declaration under this subsection is made he shall continue to hold his office.” “22. Procedure of enquiry: (1) Before taking any action under Sub-Section (1) of Section 38, where on its own motion or upon any complaint the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month. (2) If, upon consideration of the report received as aforesaid or otherwise, the State Government is of the opinion that action under Sub-Section (1) of Section 38 is necessary, the State Government shall frame definite charges and shall communicate them in writing to the Chairperson, Deputy Chairperson or Member of the Panchayati Raj Institution together with such details as may be deemed necessary. He shall be required to submit a written statement within one month admitting or denying the allegations, giving his defence, if any and whether he desires to be heard in person. (3) State Government may after expiry of prescribed period and considering such written statement, appointment an Enquiry Officer and also nominate any person to present the case before Enquiry Officer on behalf of the State. (4) Enquiry Officer shall consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross examination of witness shall be provided to the opposite side. (5) Enquiry Officer shall prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved along with the reasons therefore, and submit it to the State Government for final decision. Opportunity of cross examination of witness shall be provided to the opposite side. (5) Enquiry Officer shall prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved along with the reasons therefore, and submit it to the State Government for final decision. (6) The provisions of the Rajasthan Disciplinary Proceedings (Summoning of witnesses and production of documents) Act, 1959 (Rajasthan Act No. 28 of 1959) and the rules made thereunder shall also apply mutatis mutandis to enquiries being conducted against the Chairperson, the Deputy Chairperson or Member of Panchayati Raj Institution as the case may be, under these rules. (7) State Government shall consider the findings of enquiring Officer and after giving him opportunity of hearing, may either exonerate, or remove such Chairperson, Deputy Chairperson or Member from the Office or pass appropriate orders. In case of removal, it shall also be published in official Gazette: Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired.” 13. The provision of Section 38 of the Act of 1994 deals with the situations in case any Member including Chairperson or a Deputy Chairperson of the Panchayati Raj Institution; (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of misconduct in discharge of duties or any disgraceful conduct. 14. After voting and counting for the elections to the Member, Panchayat Samiti, Ward No. 18, Panchayat Samiti, Laxmangarh, the petitioner was declared a Returned Candidate after declaration of the result on 08.12.2020. On the same day, the defeated candidate Mr. Sarendra Kumar Meel, made a complaint that the petitioner has been blessed with a third living child on 20.11.2020, and therefore, he has become ineligible to contest the election and remained disqualified and to remain as a Member of the Panchayat Samiti, and therefore, he may not be allowed to participate in the election process and voting for Pradhan and Up- Pradhan scheduled on 10.12.2020 and 11.12.2020. The situation of having third child is not covered as a ground for suspension under Section 38 of the Act of 1994. A person who becomes disqualify to remain as a Member of the Panchayati Raj Institution, ceases his membership and proceedings and declaration of cessation of the membership is conducted under Section 39 of the Act of 1994. The situation of having third child is not covered as a ground for suspension under Section 38 of the Act of 1994. A person who becomes disqualify to remain as a Member of the Panchayati Raj Institution, ceases his membership and proceedings and declaration of cessation of the membership is conducted under Section 39 of the Act of 1994. Proviso to sub-section (2) of Section 39 of the Act of 1994 clearly speaks that until a declaration of cessation of membership in regard to a member of the Panchayati Raj Institution is made, he shall continue to hold his office. There is no allegation and there can’t be any allegation against the petitioner for misconduct in discharge of duties or any disgraceful conduct or allegations of refusing to act or becomes incapable of acting as such for the reason that the petitioner was elected on 08.12.2020 and was placed under suspension on the very next day i.e. 09.12.2020. 15. Taking into consideration the facts and the circumstances of the case and the provisions of law, the order of suspension is not sustainable being contrary to law and therefore, the same deserves to be quashed and set aside. 16. The petitioner was elected member of Panchayat Samiti Laxmangarh, District Sikar from Ward No. 18 after declaration of result on 08.12.2020. The voting for Pradhan and Up-Pradhan was scheduled on 10.12.2020 and 11.12.2020 respectively. On declaration of the petitioner as a Returned Candidate, the defeated candidate Mr. Sarendra Kumar Meel made a complaint on the very same day i.e. on 08.12.2020 that the petitioner has been blessed with a third living child on 20.11.2020 and, therefore, he is disqualified to remain as a member of the Panchayat Samiti and thus, he may be restrained from casting vote for Pradhan and Up- Pradhan. On the said complaint the respondent authorities issued a show-cause dated 08.12.2020 to the petitioner for submitting his explanation in regard to the allegations against him which was to be submitted by the petitioner by 12:00 noon of 09.12.2020. 17. On the perusal of the documents enclosed with the writ petition including the show-cause notice dated 08.12.2020 (Annex.5), it is very much clear that the same was dispatched to the petitioner on 09.12.2020 with the postal dispatch No. 7227. 17. On the perusal of the documents enclosed with the writ petition including the show-cause notice dated 08.12.2020 (Annex.5), it is very much clear that the same was dispatched to the petitioner on 09.12.2020 with the postal dispatch No. 7227. Further on perusal of the record it reveals that the complainant and the respondents have proceeded with a determined intention to keep the petitioner away from voting of Pradhan and Up-Pradhan. 18. Subsequent to the suspension of the petitioner, the proceedings were initiated by the respondents for cessation of the membership of the petitioner and finally the order dated 01.01.2021 was issued by the Addl. Commissioner & Joint Secretary (Enquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, declaring the petitioner disqualified to remain as a member of the Panchayati Raj Institution and the seat to which the petitioner was elected was declared vacant. The order dated 01.01.2021 was challenged by filing a writ petition bearing SBCWP No. 391/2021. The findings and the observations in the order passed in SBCWP No. 391/2021, give out that the respondent authorities have violated the provisions of law in issuing the order dated 01.01.2021 including the observation that the respondent authorities have acted in a malafide manner with an oblique motive. 19. The Hon’ble Apex Court in State of Bihar and Another vs. P.P. Sharma, IAS and Another, 1992 Supp. (1) SCC 222 has observed in paragraphs No. 50 and 51 as under:- “50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fiae manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. 51. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. 51. The action taken must, therefore, be proved to have been made mala fide for such considerations Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.” The Hon’ble Apex Court in State of Punjab vs. V.K. Khanna and Others, (2001) 2 SCC 330 , has observed in paragraphs No. 2, 11 and 37 as under: “2. The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependant upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness: And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common mans perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. 11. It is at this juncture, therefore, the relevancy of the factual details is otherwise felt to assess the situation as to whether there is existing cogent evidence of improper conduct and motive resultantly a malafide move on the part of the appellants herein against respondent No. 1 V.K. Khanna. 11. It is at this juncture, therefore, the relevancy of the factual details is otherwise felt to assess the situation as to whether there is existing cogent evidence of improper conduct and motive resultantly a malafide move on the part of the appellants herein against respondent No. 1 V.K. Khanna. The records depict that immediately before the departure of the earlier Ministry in the State of Punjab and Shri Khanna being the Chief Secretary of the State in terms of the specific orders of the then Chief Minister referred two cases to the Central Bureau of Investigation: The first being accumulation of assets in the hands of Shri Bikramjit Singh, IAS being disproportionate to the known source of income and secondly allotment of land and release of funds to the Punjab Cricket Association the Government, however, changed and soon thereafter the petitioner was chargesheeted inter alia for acting in a manner which cannot but be ascribed to be malafide and in gross violation of the established norms and procedure of the Government function contrary to the service rules and in any event, lack of fair play and lack of integrity with high moral as was expected of a senior civil servant. 37. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decisions cited from the Bar since facts are otherwise different in each of the decisions.” The Hon’ble Apex Court in Parbodh Sagar vs. Punjab State Electricity Board and Others, AIR 2000 SC 1684 , in para 13 has observed that “Incidentally, be it noted that the expression ‘mala fide’ is not a meaningless jargon and it had its proper connotation. Malice or mala fides can only be appreciated from from the records of the case in the facts of each case. There cannot possibly be any set of guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances.” 20. In view of the discussion made about, the order of suspension dated 09.12.2020 passed by the Addl. There cannot possibly be any set of guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances.” 20. In view of the discussion made about, the order of suspension dated 09.12.2020 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, is perverse, contrary to law and not sustainable and deserves to be quashed and set aside. 21. As a result, the writ petition is allowed and the impugned order of suspension dated 09.12.2020 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur is quashed and set aside. 22. Since the main petition has been allowed, the stay application and pending application/s, if any, also stand disposed of.