VARINDER KAUR Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) By this writ petition, the petitioner has challenged the order dated 31.5.2010 (Annexure P-12) passed by respondent No. 1 allowing the appeal of respondents No. 3 and 4 by holding that the petitioner who was working on the post of Auxiliary Nurse & Midwife is a whole time job and, therefore, she is disqualified from holding the post of Sarpanch under Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994. The petitioner was elected as Sarpanch of village Kurari, Tehsil and District Mohali. Admittedly, at that time she was working as Auxiliary Nurse & Midwife under the National Rural Health Mission. A complaint was submitted by respondents No. 3 and 4 to the District Development and Panchayat Officer, Mohali to the effect that the petitioner was liable for disqualification. The DDPO sought information from the employer of the petitioner and it came to the notice that the petitioner was appointed as ANM under RCH-II program on contract basis on a consolidated salary of Rs. 5,500/- per month under the National Rural Health Mission and that her salary was being paid out of the funds received from the Government of India under the said mission. Thereafter, the DDPO, Mohali, vide letter dated 9.9.2009 (Annexure P-4) intimated respondent No. 2 to take action against the petitioner. Accordingly, a notice was served upon the petitioner on 25.9.2009. Thereafter, the Director, Rural Development and Panchayats, Punjab ordered regular inquiry to be conducted by the Additional Deputy Commissioner (Developments) Mohali. Inquiry report was submitted on 18.11.2009 and on a consideration thereof, the notice was withdrawn. Respondents No. 3 and 4 carried the matter in revision before the Financial Commissioner-cum-Principal Secretary, Panchayat Department. The Financial Commissioner, vide order dated 31.5.2010, held as follows :-

(2.) Impugning the order dated 31.5.2010, the petitioner is before this Court.

(3.) Counsel for the petitioner has argued that firstly the Financial Commissioner (respondent No. 1) has not kept in view the dictum of the Hon'ble Supreme Court in Som Lal v. Vijay laxmi and others, 2008 11 SCC 413wherein their Lordships held that in such a case where the provision for disqualification is separately mentioned in the Punjab Panchayati Raj Act, 1994 (for short 'the first Act'), and in the Punjab State Election Commission Act, 1994 (for short 'the second Act'), it would be the provisions of the second Act which would hold the field. As per the learned counsel, the first mistake made by respondent No. 1 was in treating the matter of disqualification under Section 208 of the first Act. Counsel for the petitioner has further argued that had respondent No. 1 decided to proceed under the correct Act i.e the second Act, he would have had to take recourse to Section 12 of the second Act. Section 12 is quoted herein below:-