GEETA NATH JHA Vs. LALIT NARAYAN MITHILA UNIVERSITY

JUDGEMENT

(1.) The petitioner seeks direction upon the L.N. Mithila University to pay him salary from 23-7-2001. He is a Reader in the Department of Commerce in LNJ College, Jhanjharpur, under L.N. Mithila University. While in service of the University he contested the election for the office of Mukhiya from Mahrail Gram Panchayat within Andhrathadhi Block of Madhubani District and was declared elected on 15-5-2001. He took oath of the office on 23-7-2001 and has been holding the office of Mukhiya since then.

(2.) The case of the petitioner is that he contested the election after taking permission from the University. After election he has been performing the duties of two posts without any difficulty. If for any unavoidable reason he is not able to perform the duties of Mukhiya, the Up-Mukhiya can function in his absence. Thus petitioner's continuance as Mukhiya is not likely to cause any obstruction in discharge of his duties as Reader, and as he has been actually performing the duties of post of Reader, he is entitled to salary. It was stated that the post of Mukhiya is not a salaried post.

(3.) On behalf of the University it was submitted that the petitioner was no doubt given permission to contest the Panchayat election but the permission was on express condition that he will be deemed to be on leave without pay. Having obtained permission on that condition, he cannot claim salary. In other words, the petitioner cannot approbate and reprobate. Reliance was placed on Naga Bhai v. B. Shama Rao, AIR 1956 SC 539. It was submitted that the fact that office of Mukhiya does not carry salary is not relevant, for holder of office of Mukhiya is entitled to certain perks which go by the office. In any view having opted for the office of Mukhiya in his own volition, the fact that the post is not a salaried post is totally inconsequential. As a matter of fact, it was submitted, in view of the provisions of Section 139(1)(d) of the Bihar Panchayat Raj Act, 1993 as amended by Bihar Panchayat Raj (Amendment) Act (Bihar Act 14 of 1995) the petitioner was not qualified to contest the election for the post of Mukhiya.