BANCHHANIDHI SAMANTASIMHAR Vs. PANCHANAN PRADHAN AND 2 ORS.

JUDGEMENT

(1.) THE Petitioner and opposite party No. 1 were elected as members of the Bramhagiri Grama Punchayat in the district of Puri in the year 1959. The election to the office of the Sarpanch was held on 29 -2 -1964 to which the Petitioner and opposite party No. 1 were nominated as candidates.

(2.) IT is the case of the Petitioner that opposite party No. 1 Panchanan Pradhan was, on the date of election, serving in the State Publicity Department as a paid worker and as such he was disqualified from standing for election for the office of Sarpanch under Clause (0) of Section 10(9) of the Orissa Grama Panchayat Act (hereinafter referred to as 'the act '). It appears that on 29 -2 -1964 the opposite party No. 1 made an application before the Block Development Officer who was working as the Election Officer in this case, to extend the date of election by 15 days, so that the resignation of his office which he had tendered may be accepted. But the election officer rejected the nomination paper of opposite party No. 1 on the ground that he was holding an office of profit and was thus disqualified to stand for the election, under Clause (c) of Sub -section (9) of Section 10 of the Act -and declared the Petitioner as elected to the office of the Sarpanch, as there was no other contesting candidate. Against this order of the Election Officer; the opposite party No. 1 moved the Sub -Divisional Officer, Puri, under Rule 24 of the Rules and the Sub -divisional Officer by his order dated 16 -5 -1964 set aside the order of the Election Officer and directed a fresh election to beheld. It is against this order of the Sub -divisional Officer the present application has been filed under Article 226 of the. Constitution.

(3.) THAT on the date of election of Sarpanch, the opposite party No. 1 was working as a publicity worker under the State Government cannot be disputed, though it was contended here that he offered his resignation on 27 -2 -1964 which was accepted on that date. It cannot also be disputed that he himself made an application to the Election Officer to postpone the election of the Sarpanch for fifteen days so that in the meanwhile his resignation may be accepted. The learned Sub -divisional Officer who heard the dispute under Rule 24 also accepted the position that Panchanan held the said office on the date of the election. As seen above, Section 10(9) expressly debars a person suffering the disqualifications mentioned therein from standing or continuing as a member of the Grama Panchayat. No doubt in respect of the disqualifications mentioned in Clause (d) and (e) they may be removed or may cease to have any effect, as provided in the provisos to Sub -section (9) of Section 10 quoted above, but no such provision has been made regarding the disqualification mentioned in Section 10(9)(c) in so far as the holder of an office of profit under the State is concerned. Such disqualification must, therefore, be considered as absolute and unqualified and can be removed only upon the person ceasing to hold such office. Thus the opposite party No. 1 was not eligible to be a member of the Grama Panchayat on the date of election. The next question is whether such a person can be nominated as a candidate for election to the office of the Sarpanch.