SHYAM SUNDER PANDEY Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) Petitioner is the Mukhiya of Sri Kishun Gram Panchayat within Kajara P.S. in the district of Lakhisarai. He has filed this writ petition questioning the validity of order dated 19.4.2012 passed by the State Election Commission (hereinafter referred to as the Commission) in Case No. 114/ 2011, Annexure-8 whereunder the Commission having considered the complaint of respondent no. 5 held that petitioner being the Recovery Agent of Bihar Regional Bank, Kajara is in service of the Bank and disqualified from being elected as Mukhiya of Sri Kishun Gram Panchayat under sub-Section (1)(c) of Section 136 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) and having held so disqualified the petitioner from holding the post of Mukhiya of the said Gram Panchayat under sub-section (2) of Section 136 of the Act.

(2.) Learned counsel for the petitioner assailed the order dated 19.4.2012, Annexure-8 and submitted that petitioner being the Recovery Agent of Bihar Regional Bank, Kajara is not in the service of the Bank and he should not have been disqualified under the impugned order. In this connection, he also pointed out that from perusal of report of the Block Development Officer, Surjgarha dated 8.12.2011, Annexure-4, itself it would appear that petitioner is not a regular servant of the Bihar Regional Bank, Kajara his entitlement is only for payment of commission, which also did not accrue to him during the financial year 2010-11 as petitioner did not assist the Bank in recovery of the loan amount due from the various loanees of the Bank during the year 2010-11. Learned counsel for the petitioner further submitted that finding recorded in the impugned order that petitioner while discharging the duties of the Recovery Agent of the Bank is likely to misuse his position for recovery of the loan from defaulting borrowers of the Bank is nothing but.conjecture on the part of respondent Election Commissioner as there is no material placed on record that petitioner ever misused his position as Recovery Agent while making recovery of the loan due to the Bank from the borrowers who are in default. Learned counsel for the petitioner also submitted that in case petitioner is found misusing his position as Mukhiya while effecting recovery of the bad debts for the Bank he can always be removed by the State Government under Section 18 of the Act but only on the basis of conjecture that petitioner being Recovery Agent of the Bank is likely to misuse his position he cannot be disqualified holding him to be in the service of the Bank.

(3.) In support of the aforesaid plea learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of Abdul Shakur V/s. Rikhab Chand and Another, 1958 AIR(SC) 52, paragraph-12. Abdur Shakur was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. His election to the Council of States was set aside by the Election Tribunal holding that Abdul Shakur being Manager of Durgah Khwaja Sahib appointed by the Committee constituted by the Central Government, held office of profit under the Central Government his nomination paper should have been rejected. Aforesaid finding of the Tribunal was repelled by the Hon'ble Supreme Court observing that merely because the Committee or the members of the Committee which appointed Abdul Shakur as Manager of Durgah are removable by the Government of India and the Committee can make bye-laws prescribing the duties and. powers of the employees of the Durgah cannot convert the servants of the Durgah into holders of office of profit under the Government of India.