JUDGMENT : 1. By way of the instant writ petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for a mandamus to the respondent no.3 -District Collector to hand over the charge of the Sarpanch of Gram Panchayat 'Loharki' (hereinafter referred to as 'Gram Panchayat') to her. 2. The facts as set out in the memo of the writ petition are, that at the relevant time the seat of the Sarpanch as well as Up-Sarpanch of Gram Panchayat, which falls in the Panchayat Samiti Sankara, Tehsil Pokaran, District Jaisalmer, was unreserved or was open for the General category candidates. 3. The elections of Sarpanch and Panchas of the Gram Panchayat were held in March, 2020 and one Kishan Kanwar was elected as Sarpanch on 15.03.2020. The petitioner, who belongs to Scheduled Caste community, won the election of Panch from the open seat and was later on elected as Up-Sarpanch by the Panchas of the Gram Panchayat. 4. On 26.05.2023, Kishan Kanwar, the elected Sarpanch of the Gram Panchayat (hereinafter referred to as 'the erstwhile Sarpanch') passed away leaving the seat of Sarpanch unrepresented. 5. The Gram Vikas Adhikari of the Gram Panchayat informed the Vikas Adhikari about the death of the Sarpanch, in furtherance whereof, the District Collector, Jaisalmer in exercise of powers under Section 25(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994') handed over the charge to one of the Panchas -Smt. Mangi Devi (the respondent no.8) by order dated 13.06.2023. 6. The respondent no.8 took the charge on 14.06.2023, but soon thereafter said order was kept in abeyance by the District Collector by order dated 17.06.2023. 7. After the death of the erstwhile Sarpanch, the petitioner requested the District Collector to handover the charge to her, but the District Collector chose not to do so for which the petitioner has invoked writ jurisdiction of this Court. 8. A mandamus has been sought to the State Government/competent authority to hand over the charge of Sarpanch to the petitioner. 9. Mr. Manvendra Singh, learned counsel for the petitioner argued that the State, more particularly, the respondent no.3 is proceeding arbitrarily and is trying to give charge to other Panch just to deprive the petitioner of her right to work as Sarpanch. 9. Mr. Manvendra Singh, learned counsel for the petitioner argued that the State, more particularly, the respondent no.3 is proceeding arbitrarily and is trying to give charge to other Panch just to deprive the petitioner of her right to work as Sarpanch. He invited Court's attention towards the provisions of Section 25 of the Act of 1994 and submitted that in any of the contingencies mentioned in Sub-section (1) of Section 25 of the Act of 1994, the charge of the Sarpanch should be given to the Up-Sarpanch. It was argued that in a democratic set up, in the event of absence or death of the Sarpanch, Up-Sarpanch or Deputy Chairperson is meant to work as the Chairperson of the Panchayati Raj Institution, whereas, the respondents have firstly given the charge to the respondent no.8 dehors the statutory provisions and now a meeting of the Gram Panchayat has been convened for deciding that who should be handed over the charge of the Sarpanch, after the demise of erstwhile Sarpanch (Smt. Kishan Kanwar). 10. Placing strong reliance upon Section 32 of the Act of 1994, particularly clause (b) of Sub-section (2), learned counsel for the petitioner argued that the expression 'absence' is of very wide amplitude and in case of 'absence', either due to the contingencies mentioned in Section 25 (1)(i) to (v) or on account of death, it is the Up-Sarpanch, who is supposed to discharge all the functions and perform the duties of the Sarpanch. 11. Mr. Kunal Upadhyay, learned counsel appearing for the respondent -State, on the other hand submitted that the petitioner is not entitled to be handed over the charge simply because she happens to be an Up-Sarpanch. He argued that contingencies mentioned in clause (i) to (v) of Sub-section (1) of Section 25 enumerate various situations except 'the death', therefore, in the case of death, Sub-section (2) of Section 26 of the Act of 1994 comes into play and charge can be handed over only by the State Government. 12. He argued that contingencies mentioned in clause (i) to (v) of Sub-section (1) of Section 25 enumerate various situations except 'the death', therefore, in the case of death, Sub-section (2) of Section 26 of the Act of 1994 comes into play and charge can be handed over only by the State Government. 12. While submitting that petitioner's reliance upon Sub-section (2) of Section 32 is misplaced and the expression 'absence' is required to be read in conjunction with the situation mentioned in clauses (i) to (v) of Sub-section (1) of Section 25 of the Act of 1994, learned counsel for the respondents argued that the Legislators in their wisdom have not thought it fit to give charge to Up-Sarpanch in the event of death, which is evident from the fact that contingency of ‘death’ has been given in Section 42 of the Act of 1994, whereas the same has not been given in Sub-section (1) of Section 25 of the Act. 13. It was argued that the absence of word 'death' in Section 25 of the Act of 1994 is a conscious endeavour of the Legislature and thus, it should be given its true meaning. He emphatically argued that in the event of death, the vacancy has to be filled up by way of election, as has been provided under Section 42 of the Act of 1994 and pending election, the charge can be given only according to the procedure prescribed under Section 26(2) of the Act of 1994. 14. Learned counsel for the respondents submitted that the issue is no more res-integra, as the same has been settled authoritatively by this Court in the case of Vikramajeet vs. State of Rajasthan & Ors. reported in 2002 (5) WLN 705 . 15. Mr. Sharma, learned counsel appearing for the respondent no.8 submitted that the petitioner can neither seek a mandamus nor can she pray that the charge of the Sarpanch be handed over to her. He added that the charge can be handed over only by the State Government or Panchas in their meeting convened by the State or its nominee. 15. Mr. Sharma, learned counsel appearing for the respondent no.8 submitted that the petitioner can neither seek a mandamus nor can she pray that the charge of the Sarpanch be handed over to her. He added that the charge can be handed over only by the State Government or Panchas in their meeting convened by the State or its nominee. While reminding the Court that a meeting in this regard was convened by the District Collector by way of notice dated 30.06.2023 and that the same has been stayed by interim order dated 04.07.2023, he implored that the interim order passed in this case be vacated and the Panchas be allowed to decide amongst themselves as to who is best suited to hold the charge of the Sarpanch, until elections are held. 16. Heard learned counsel for the parties and gave my consideration over the law on the subject, including the relevant provisions. 17. As per general notions or common practice, what has been canvassed by Mr. Rathore, appears to be obvious option, but the proposition which appears to be otherwise simple, is not so, if examined in the light of the statutory provisions. 18. It would be apt to keep relevant statutory provisions handy. Hence, they are being reproduced hereinfra: "25. 17. As per general notions or common practice, what has been canvassed by Mr. Rathore, appears to be obvious option, but the proposition which appears to be otherwise simple, is not so, if examined in the light of the statutory provisions. 18. It would be apt to keep relevant statutory provisions handy. Hence, they are being reproduced hereinfra: "25. Handing over of charge.-(1) Whenever the election of a member or Chairperson or Deputy Chairperson of a 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 Sec. 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 Sec. 38; or (v) resigns his office under Sec. 36, or Whenever a motion of no-confidence is passed against the Chairperson or the Deputy Chairperson of a Panchayati Raj Institution under Sec. 37; or Whenever the term of office of a Panchayati Raj Institution expires or the election of all the members of 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 any of them shall forthwith handover 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 Deputy Chairperson, to such member of such Panchayati Raj Institution or other person has 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 Woman member, as the case may be, in the manner as may be prescribed and where there is no such member belonging to said Castes, Tribes, Classes or a Woman member to whom charge can be given as aforesaid, the charge shall be handed over in the manner as may be prescribed, to any 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 Administration appointed under Sec. 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 of the Panchayati Raj Institution shall in pursuance of Sub-sec. (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-sec. (1) or Sub-sec. (2), the competent authority may, by order in writing, direct the person so failing or refusing to hand over such charge forthwith to the person or persons entitled thereto under Sub-sec. (1) or Sub-sec. (2), as the case may be. (4) If the person to whom a direction has been issued under Sub-sec. (1) or Sub-sec. (2), the competent authority may, by order in writing, direct the person so failing or refusing to hand over such charge forthwith to the person or persons entitled thereto under Sub-sec. (1) or Sub-sec. (2), as the case may be. (4) If the person to whom a direction has been issued under Sub-sec. (3) fails to comply with the direction, he shall, on conviction, be punished with imprisonment for term not exceeding one year or with fine not 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-sec. (4) use such force as may be deemed necessary for enforcing the provisions of Sub-sec. (1) 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 of if the Panchas fails 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. 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. 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 supervision 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 Panchayats such reports, returns and record, whether periodical or otherwise, as may be prescribed or as may from time to time to 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 Clause (d) to (h); or (ii) the Up-Sarpanch shall exercise powers and perform functions and duties in accordance with Sub-sec. (2); or (iii) an elected member of the Panchayat empowered to act in accordance with Sec-sec. (3) shall exercise powers and perform functions and duties of a Sarpanch; only after seeking prior approval of the Administration and Establishment Committee constituted under Sec. 55-A if the State Government so directs by notification in the Official Gazette. 33. (2); or (iii) an elected member of the Panchayat empowered to act in accordance with Sec-sec. (3) shall exercise powers and perform functions and duties of a Sarpanch; only after seeking prior approval of the Administration and Establishment Committee constituted under Sec. 55-A if the State Government so directs by notification in the Official Gazette. 33. Powers, Functions and Duties of Pradhan.-The Pradhan Shall- (a) convene, preside at, and conduct meetings of the Panchayat Samiti; (b) have full access to all its records; (c) discharge all duties imposed and exercise all the powers conferred on him under this Act and the rules made thereunder and perform such functions as are entrusted to him by the Government from time to time; (d) encourage the growth of initiative and enthusiasm in the Panchayats and provide and provide to them guidance in the plans and production programmes undertaken by them and help the growth of co-operation and voluntary organisation therein; (e) exercise supervision & control over the Vikas Adhikari [and Block Elementary Education Officer] for securing implementation of such resolutions or decisions of the Panchayat Samiti or of the Standing Committees thereof as are not inconsistent with the provisions of this Act or any general or specific directions issued under this Act; (f) exercise overall supervision over the financial and executive administration of the Panchayat Samiti and place before the Panchayat Samiti all questions connected therewith which shall appear to him to require its orders and for this purpose may call for records of Panchayat Samiti; or (g) have emergency power to accord sanction upto a total sum of twenty-five thousand rupees in a year in consultation with Vikas Adhikari for the purpose of providing immediate relief to those who are affected by the natural calamities in the Panchayat Samiti area : Provided that the Pradhan shall place at the next meeting of the Panchayat Samiti for its ratification, the details of such sanctions. 34. 34. Powers, Functions and Duties of Up-Pradhan.-(1) The Up-Pradhan of a Panchayat Samiti Shall- (a) in the absence of the Pradhan preside at the meeting of the Panchayat Samiti; (b) exercise such power and perform such duties of the Pradhan of the Panchayat Samiti as the Pradhan from time to time may subject to the rules made by the Government in that behalf, delegate to him an order in writing; and (c) pending the election of the Pradhan, or during the absence of the Pradhan from the Panchayat Samiti Area, by reason of leave for a period exceeding thirty days, exercise the powers and perform the duties of the Pradhan. (2) In the absence of both the Pradhan and the Up-Pradhan, due either to their offices remaining vacant or otherwise, the powers, functions and duties of the Pradhan shall be exercised, performed and discharged by such elected member of the Panchayat Samiti and in such manner as the competent authority may direct. 35. Powers, Functions and Duties of Pramukh and Up-Pramukh.-(1) The Pramukh Shall- (a) perform all the duties imposed and exercise all the powers conferred on the Pramukh under this Act & rules made thereunder. 35. Powers, Functions and Duties of Pramukh and Up-Pramukh.-(1) The Pramukh Shall- (a) perform all the duties imposed and exercise all the powers conferred on the Pramukh under this Act & rules made thereunder. (b) convene, and preside over and conduct meetings of the Zila Parishad; (c) exercise administrative supervision and control over [the Chief Executive Officer and District Education Officer and through them], all officers and other employees of the Zila Parishad and the officers and employees whose services may be placed at the disposal of the Zila Parishad by the State Government and have full access to its records; (d) exercise such other powers, perform such other functions and discharge such other duties as the Zila Parishad may, by a resolution, direct or as the Government may, by rules made in this behalf, prescribe : (e) exercise overall supervision over the financial and executive administration of the Zila Parishad and place before Zila Parishad all questions connected therewith which shall appeal to him to require its orders and for this purpose may call for records of the Zila Parishad; (f) have power to accord sanction upto a total sum of rupees one lakh in a year, in consultation with the Chief Executive Officer, for the purpose of providing immediate relief to those who are affected by natural calamities in the district : (g) encourage the growth of initiative and enthusiasm in the Panchayats and provide to them guidance in the plans and production programmes undertaken by them and help the growth of co-operative voluntary organisations therein; (h) exercise such other powers as are conferred on him by or under this Act or as may be delegated to him; and (i) in order to enable him to assess the activities of the Panchayat Samitis in the district and study their programmes and problems, may, from time to time. (i) visit the blocks in the district, and (ii) inspect the works undertaken and the records maintained by the Panchayat Samitis in the district as well as the working thereof general with a view to guiding and tendering advice to the Panchayat Samitis, their Pradhans, their Vikas Adhikaris and their members, so as to develop healthy relations among them as well as between the Panchayat Samitis and Panchayats in each block and increase the production programmes in accordance with the broad policies laid down in that behalf. A report of such inspections and activities shall be made by the Pramukh to the Zila Parishad with particular reference to any defects that he may have noticed; and (j) at the end of every year, send a report as to the work of the Chief Executive Officer during that year to the Director, Panchayati Raj and Rural Development who shall append the comments with the Confidential Report of the Chief Executive Officer. (2) The Up-Pramukh shall- (a) in the absence of the Pramukh, preside over the meetings of the Zila Parishad; (b) exercise such powers and perform such functions and discharge such duties of the Pramukh as the Pramukh may, from time to time, subject to such rules, as may be made, delegate to him by order in writing; and (c) pending the election of a Pramukh or during the absence of the Pramukh from the district, or by reason of leave for a period exceeding thirty days, exercise the powers and perform the duties of the Pramukh. (3) In the absence of both the Pramukh and the Up-Pramukh, due either to their offices remaining vacant or otherwise, the power, functions and duties of the Pramukh shall be exercise, performed and discharged by such elected member of the Zila Parisha and in such manner as the competent authority may direct. 42. Filling up of vacancies.-In 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." 19. Before dilating upon the rival contentions, it is imperative to examine as to whether the present case is covered by the judgment rendered in the case of Vikramajeet (supra) or not. 20. At the first flush, the judgment in the case of Vikramajeet (supra) appears to be covering the controversy on all fours and gives an impression that the petitioner’s prayer cannot be acceded to, but then, a closer scrutiny of the facts involved in the case of Vikramajeet (supra) reveals that the petitioner therein (Vikramajeet) was a Ward Panch of Gram Panchayat Chunagarh from OBC category. On account of death of Sultana Ram, who was the Sarpanch of the said Gram Panchayat, the post of Sarpanch became vacant. Since the seat of Sarpanch was reserved for OBC category candidate and there were three Panchas of such category, the District Collector decided to call a meeting of the Gram Panchayat to elect one person to hold the charge of Sarpanch. 21. In the factual backdrop as noticed in preceding para while dealing with the provisions of Sections 25, 26 and 42 of the Act of 1994, the Court observed that the word 'death' is not mentioned in Section 25, whereas the same has been mentioned in Section 42 of the Act of 1994 and held that in exercise of powers under Sub-section (2) of Section 26 of the Act of 1994, the State Government can appoint a person to the vacant post until the same is filled by election. 22. Furthermore, in the case of Vikramajeet (supra), since the seat of Chairperson was reserved for OBC candidate, by virtue of 1st proviso to Clause (b) of Section 25, the charge could not be given to Deputy Chairperson (as he did not belong to reserved category) and the same could be given by the competent authority only to a member of such caste. Hence, the question of handing over the charge to the Deputy Chairperson did not arise. 23. But the facts of the case in hand are different – the petitioner is admittedly an elected Up-Sarpanch and she has asserted her right to be conferred charge on the basis of Section 32 of the Act of 1994. Hence, the question of handing over the charge to the Deputy Chairperson did not arise. 23. But the facts of the case in hand are different – the petitioner is admittedly an elected Up-Sarpanch and she has asserted her right to be conferred charge on the basis of Section 32 of the Act of 1994. The petitioner’s case is, that by virtue of clause (b) of Sub-section (2) of Section 32 of the Act of 1994, the Up-Sarpanch is required to perform all the functions and discharge all the duties of the Sarpanch as the expression used is, ‘remaining vacant or otherwise’. 24. It is noteworthy that provisions of Section 32 of the Act of 1994 were not at all involved in the case of Vikramajeet (supra), hence, the case of Vikramajeet (supra) relied upon by the State is contextually different. 25. This Court is, therefore, required to examine the import, purport and inter-play of the provisions contained in Sub-section (2) of Section 32 vis-a-vis Section 25, 26 and other provisions of the Act of 1994. 26. The argument advanced by Mr. Upadhyay that since Section 25(1) (i) to (v) does not include death, the question of charge to Up-Sarpanch does not arise, is though attractive, but liable to be rejected. Section 25 of the Act of 1994 has been enacted in a different fashion – it creates an obligation. Section 25 adjures the Chairperson "to forthwith handover charge". When it comes to handing over the charge, obviously, all situations or possibilities of succession to office have to be inter-vivos. Hence, death could not be and rightly has not been included in the contingencies mentioned in Section 25 of the Act of 1994. Needless to say, in the case of death of Sarpanch, he cannot be expected to hand over the charge to anyone let alone Up-Sarpanch. Therefore, exclusion of expression death from the eventualities mentioned under sub-section (1) of Section 25, instead of being a conscious endeavour, is in fact a careful and practical drafting of legislation. 27. As against this, Section 42 of the Act of 1994 casts a duty on the State Election Commission to hold election for which the term 'death' has been included in Section 42. 28. 27. As against this, Section 42 of the Act of 1994 casts a duty on the State Election Commission to hold election for which the term 'death' has been included in Section 42. 28. The expression ‘vacant’ and the situation in which the post should be treated to be vacant can well be understood from what has been contained in Section 42 of the Act. A perusal of Section 42 reveals that the office has been defined to be vacant by ‘death, removal, resignation or otherwise’. The provision of Section 42 which enjoins upon the State to fill up the vacancy is of large sweep and it takes into its fold eventuality of ‘death’. 29. Hence, there can be no two opinion that in the case of death, the post of Sarpanch shall be treated to be vacant. The term ‘vacant’ used in clause (b) of Section 32(2) should take colour from the term ‘vacant’, used in Section 42, which includes death. Hence, regardless of the fact that ‘death’ has not been mentioned in clause (b) of Section 32(2), the term ‘vacant’ shall include the seat being unrepresented on account of death. 30. A perusal of the relevant provisions given under Chapter III of the Act of 1994 and Scheme of Election/Constitution of Gram Panchayat, Panchayat Samiti and Zila Parishad shows that a Sarpach is to be elected by the electors of the whole panchayat circle, whereas Panchas are elected by the electors of different wards of panchayat circle. Whereafter, the elected Panchas elect Up-Sarpanch from amongst the elected Panchas. Pradhan and Up-Pradhan are elected by the members of the Panchayat Samiti and similarly Pramukh and Up-Pramukh are elected by the members of Zila Parishad. 31. Section 32 of the Act of 1994 is in two parts. Sub-section (1) deals with the powers and responsibilities of Sarpanch, while Subsection (2) provides for powers and responsibilities of Up-Sarpanch. Clause (b) of Sub-section (2) of Section 32 expressly provides that in the absence of the Sarpanch, Up-Sarpanch shall exercise all the powers, perform all the functions and discharge all the duties of the Sarpanch. 32. If the analogous provisions meant for Up-Pradhan and Up-Pramukh encapsulated in Section 34(1)(c) and Section 35(2)(c) are taken into consideration, the doubts, if any, gets diluted. 32. If the analogous provisions meant for Up-Pradhan and Up-Pramukh encapsulated in Section 34(1)(c) and Section 35(2)(c) are taken into consideration, the doubts, if any, gets diluted. The provisions of Section 34(1)(c) and Section 35(2)(c) of the Act of 1994 which are couched in similar words if read carefully, it can be easily discerned that it contains two situations; (i) pending election of Pradhan/Pramukh and (ii) during the absence of Pradhan/Pramukh from the panchayat samiti area or District or on account of leave exceeding thirty days, whereas provision of clause (b) of Sub-section (2) of Section 32 is designed in an entirely different manner -it only talks of absence of Sarpanch, either due to his office remaining vacant or otherwise. 33. If the provision contained in clause (b) of Sub-section (2) of Section 32 are read in juxtaposition with the provision contained in Section 34(1)(c) and Section 35(2)(c), a clear distinction in Legislation's intent comes to the fore that in absence of the Sarpanch for whatever reason, it is the Up-Sarpanch who shall exercise all the powers and perform the functions and discharge the duties of a Sarpanch, whereas, in the case of Up-Pramukh and Up-Pradhan, he/she is entrusted with such responsibilities only pending election of Pradhan or Pramukh or in the event of absence of Pradhan or Pramukh from the panchayat samiti area or from the District for a period exceeding thirty days. 34. If the reason for such difference in the legislation is to be found out, according to this Court, the same lies in the very nature of the election to the office of Sarpanch vis-a-vis Pradhan and Pramukh. As has been noted hereinabove, Sarpanch is elected by the electors of Gram Panchayat, while Pradhan and Pramukh are elected from amongst the elected members of Panchayat Samiti and Zila Parishad. Such being the position, the announcement of election and holding of election in the case of Sarpanch takes substantial time, as electors are large in number, whereas, in the case of election of Pradhan and Pramukh, as the elected members are a few, the election does not require much preparation and they can be held without any delay. 35. Such being the position, the announcement of election and holding of election in the case of Sarpanch takes substantial time, as electors are large in number, whereas, in the case of election of Pradhan and Pramukh, as the elected members are a few, the election does not require much preparation and they can be held without any delay. 35. There is yet another aspect of the matter – in the case of election of Sarpanch, a discretion has been given to the State Government not to hold election, if the remaining term is less than six months, whereas in the case of Pradhan and Pramukh such period is one month. This is because the election of the Sarpanch may take considerable time in preparation of electoral rolls etc., or for other administrative reasons and hence, when it comes to giving charge to Up-Sarpanch, the contingency 'pending the election' has not been provided in Section 32(2)(b) of the Act of 1994. Such considered and well through out distinction in the language used in Section 32(2)(b) has to be given its true meaning. 36. In other words, Up-Pradhan and Up-Pramukh are entitled to take charge of Pradhan and Pramukh only when they are not available in the panchayat samiti area or the district as the case may be, for a period exceeding thirty days. Such distinction is clearly meant to restrict the powers of Up-Pradhan and Up-Pramukh and that is precisely why the expression 'absence in the office for more than thirty days' has been used and so is the first contingency namely 'pending election of Pradhan', whereas the language used in Section 32(2)(b) is very wide if not boundless. 37. It is pertinent that in the case of Up-Pradhan and Up-Pramukh, the Legislature in its wisdom has thought it fit to enjoin upon them to exercise powers and to perform all the duties of Pradhan and Pramukh, respectively, when the election on the seat of Pradhan and Pramukh are pending. Since, the exercise of powers and responsibilities of an Up-Sarpanch in absence of Sarpanch as per Section 32(2)(b) is not restricted by such stipulation regarding pendency of election and leave/absence beyond thirty days, the stand of the State that Up-Sarpanch cannot exercise the powers of the Sarpanch pending elections, is untenable. 38. Since, the exercise of powers and responsibilities of an Up-Sarpanch in absence of Sarpanch as per Section 32(2)(b) is not restricted by such stipulation regarding pendency of election and leave/absence beyond thirty days, the stand of the State that Up-Sarpanch cannot exercise the powers of the Sarpanch pending elections, is untenable. 38. That apart, the Sarpanch is entrusted with the duties to deal with the masses at village (Gram Panchayat) level in order to deal with day to day work, therefore, to ensure that such office does not remain vacant, Sub-section (2) particularly clause (b) has been drafted in a manner different than Section 34(1)(c) and 35(2)(c), where a buffer of thirty days has been provided even for absence. 39. So far as provision of Section 26(2) of the Act of 1994 in the present case is concerned, on the basis whereof the District Collector has firstly handed over the charge to the respondent no.8 and after recalling of the said order he has convened the meeting of Panchas, its applicability is clearly out of question. Sub-section (2) of Section 26 has to be read in conjunction with Sub-section (1) of Section 26, which provides for election of Sarpanch, who is to be elected by the electors of the whole panchayat circle. Whereas, sub-section (2) stipulates that if the electors of a panchayat circle fail to elect a Sarpanch, then in such case, the State Government shall appoint a person to the vacancy till the vacancy is filled up by election. It means that Sub-section (2) can be invoked when the elections have been held and the electors could not elect Sarpanch. 40. In the instant case, such a situation has neither arisen nor has the State Election Commission notified the election. Hence, invocation of Sub-section (2) is clearly illegal. 41. Learned counsel for the respondent -State on the basis of the contingencies mentioned in clause (i) to (v) of Sub-section (1) of Section 25 of the Act of 1994 had argued that since eventuality of death has not been envisaged, the case in hands is to be treated to be a case falling under Sub-section (2) of Section 26 of the Act of 1994. 42. 42. As a matter of fact, in the event of death, the charge should automatically vest in or come to the Deputy Chairperson, subject of-course to State's intervention of handing over the charge to the Up-Sarpanch, as handing over the charge as mandated in Section 25 becomes impossible. That is where the language used in clause (b) of Sub-section (2) of Section 32 of the Act of 1994 comes into play. The phrase "in the absence of Sarpanch due to his office remaining vacant or otherwise" has to be given its natural meaning and the phrase "remaining vacant or otherwise" should be construed in the manner that ‘death’ is read into it. 43. As a consequence of the discussion foregoing, this Court is of the considered view that by virtue of provisions contained in clause (b) of Sub-section (2) of Section 32 of the Act of 1994 and in light of the interpretation of the term ‘vacant’ given hereinabove, the petitioner -Up-Sarpanch is rightful claimant to exercise all the powers and perform all the functions and discharge the duties of the Sarpanch, subject of course to statutory embargo on her powers given under the Act of 1994. 44. The writ petition is, therefore, allowed. 45. The District Collector, Jaisalmer/competent authority of the respondents is hereby directed to hand over the charge of the Sarpanch of Gram Panchayat at ‘Loharki’ to the petitioner within a period of seven days from today. 46. Stay application also stands disposed of.