*1* wp.8378.10.912.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8378 OF 2010 Rajashri Naryan Patil. ..Petitioner -Versus- Lalita Ramkrishna Thakur and others. ..Respondents .......... Mr.C.G.Gavnekar, for the Petitioner. Mr.R.R.Salvi, for the Respondent No.1. Mr.S.N.Bhosale, AGP, for the Respondent Nos.2 to 4. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 11th July, 2011. P.C.: 1 Rule. The Respondents waive service. By consent, Rule made returnable forthwith. 2 By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioner is challenging the order passed on 11.08.2010 by the District Collector, Raigad and the order dated 04.10.2010 of the Additional Commissioner, Konkan Division, Mumbai. The proceedings are under the Bombay Village Panchayats Act, 1958. 3 The Petitioner was elected as a panch/member of Group Gram Panchayat, Dushmi, Thakurpada, Taluka : Pen, District : Raigad in the elections held in the year 2008 from Ward No.1. The Respondent No.1 was also an elected candidate. The Respondent No.1 filed an application seeking to disqualify the Petitioner on the ground that she was employed as a part time lady attendant/nurse since 05.06.2009 and she was receiving wages or salary from the Zilla Parishad, Raigad for the said job. This fact was suppressed at the time of filing of the nomination papers. It *2* wp.8378.10.912.sxw was, therefore, clear that the Petitioner stands disqualified under Sections 14(1)(f) and 14(1)(g) of the Bombay Village Panchayats Act, 1958. It was further alleged that the Petitioner had entered her name as Rajashri Nitin Gharat, but she contested the elections in the name of Rajashri Narayan Patil, therefore, she had misled the authorities. For all these reasons, she must be disqualified from continuing as a member of the Group Gram Panchayat. 4 On a copy of that application being served on the Petitioner, she filed a reply denying all contentions. She stated that the application dated 18.06.2010 filed by the Respondent No.1 is not maintainable in law. The Petitioner pointed out that she was not working as a part time lady attendant/nurse under the National Rural Health Scheme on the date of filing of her nomination papers. She has, therefore, not incurred any disqualification much less under Section 14(1)(i) of the Bombay Village Panchayats Act, 1958. 5 Upon these allegations, the matter was heard by the District Collector, Raigad. The Collector treated this application as seeking to disqualify the Petitioner under Sections 14(1)(g) and 14(1)(i) of the Act. He held that the Petitioner was working as a part time lady attendant/nurse under the National Rural Health Scheme at sub-centre, Rave in Pen taluka from 02.06.2009 to 05.06.2010. In these circumstances and when she is directly connected with the National Rural Health Scheme, she stands disqualified under both provisions. 6 In consonance with the above conclusion, the Petitioner was disqualified by the Collector by his order dated 11.08.2010. Against that order, the Petitioner filed an appeal to the State Government which was heard by the Divisional Commissioner who agreed with the Collector and dismissed the appeal. The Commissioner held that the Petitioner was *3* wp.8378.10.912.sxw working as a part time lady attendant/nurse in the name of Rajashri Nitin Gharat, but she is continuing as a panch/member by name Rajashri Narayan Patil, therefore, she incurred disqualification and further even if she was working on temporary basis, still she is working under the supervision of the Zilla Parishad, therefore, she stands disqualified. In consonance with these conclusions, the Divisional Commissioner dismissed the appeal by the order dated 04.10.2010. 7 The Petitioner being aggrieved by both orders, filed this Writ Petition. 8 Mr.Gavnekar, learned counsel appearing for the Petitioner, has invited my attention to the impugned orders and submitted that the conclusion is contrary to law. He submits that Section 16 of the Bombay Village Panchayats Act, 1958 under which the proceedings have been instituted provides that if any member of a Panchayat is elected or appointed as such, was subject to any of the disqualification mentioned in Section 14 at the time of his election or appointment or during the term for which he has been elected or appointed incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing as a member and his office shall become vacant. The question, whether, any vacancy is arising or not has to be decided by the Collector. Mr.Gavnekar submits that no where in the complaint or in the impugned orders, it is indicated as to when the disqualification is incurred. Whether, the Petitioner was subjected to any disqualification at the time of filing of nomination papers or upon her election, has not been clarified. The disqualification either has to be at the threshold or during the term for which the Petitioner has been elected. The Collector and the Commissioner ought to have been aware of the fact that these are proceedings for disqualification of an elected member like the Petitioner. *4* wp.8378.10.912.sxw Thus, the proceedings have to be decided with due adherence to the principles of natural justice and fairness and bearing in mind the object and purpose for which the powers are conferred on them. The disqualification proceedings affect not only the concerned elected member, but the entire constituency. In these circumstances, the question, whether, the Petitioner was disqualified or not, deserves to be decided with the seriousness and gravity and that is expected from such high powered officers. In these circumstances, the allegation that the Petitioner is disqualified under Sections 14(1)(g) and 14(1)(i) is something which is very vague. It has to be clearly set out as to whether, the disqualification is under Section 14(1)(f) or 14(1)(g) or 14(1)(i). The order cannot be passed on any distorted facts. 9 That apart, according to Mr.Gavnekar, the disqualification is incurred if the Petitioner is servant of the Government or servant of any local authority. He submits that crucial words are, whether, the Petitioner is servant of the Government or servant of any local authority. He submits that the National Rural Health Scheme is being implemented by the Central Government and it is wholly funded by the Central Government. The persons like the Petitioner working as a part time lady attendant/nurse, work on honorarium. This is a welfare scheme which is aimed at improving health in rural areas. If the Petitioner is working in this scheme, she cannot be termed as servant of the Government or local authority. There was always doubt in the mind of both authorities and therefore, the reference was made by the Collector to the concerned authority about status of the Petitioner. If there is doubt, then, that has to be resolved in favour of the Petitioner and the authorities should not have disqualified her on some assumption or conjectures or surmises. For all these reasons, Mr.Gavnekar submits that the impugned orders are *5* wp.8378.10.912.sxw unsustainable in law and same deserve to be quashed and set aside. 10 On the other hand, Mr.Salvi, learned counsel appearing for the contesting Respondent No.1 and the learned AGP appearing for the State, supported the impugned orders. They submitted that the Petitioner had suppressed from the authorities the fact that she was employed as a part time lady attendant/nurse in the National Rural Health Scheme. In such circumstances, concurrent findings of fact require no interference in writ jurisdiction and therefore, the petition be dismissed. 11 With the assistance of the learned counsel appearing for the parties, I have perused the petition and all annexures thereto including the affidavits in reply. For properly appreciating the rival contentions, reference will have to be made to Section 14(1) that is providing for disqualification for continuing as a member of the Panchayat. The relevant portion of Section 14(1) reads thus:- “14. Disqualifications:- (1) No person shall be a member of a Panchayat continue as such who- (a) to (e) ....... (f) holds any salaried office or place of profit in the gift or disposal of the Panchayat while holding such office or place, or (g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat; or (h) ..... (h-1) ..... (i) is a servant of the Government or a servant of any local authority; or (j) .... (k) ....” 12 Clause (f) of sub-section (1) of section 14 states that no member of the Panchayat shall be continued as such if he holds any *6* wp.8378.10.912.sxw salaried office or place of profit in the gift or disposal of the Panchayat while holding such office or place. Clause (g) of sub-section (1) of Section 14 speaks about disqualification of a member who has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat. It is really surprising that both, the Collector and the Commissioner, made a reference to Section 14(1)(g) of the Act. It was nobody’s case that the Petitioner was either directly or indirectly by herself or with partner has any share in the work done by the order of the Panchayat or in any contract with or under the Panchayat. It was their allegation that the Petitioner stands disqualified because she is servant of the Government or servant of a local authority i.e. Zilla Parishad. However, the officers deciding the matter themselves were in doubt as to, whether, the Petitioner holds any salaried office under the Panchayat or her employment is with or under the Panchayat, therefore, they made reference to both provisions. It is clear case of non application of mind on their part. Further non application is when they failed to find out as to how the Petitioner can be servant of the Government or any local authority. The allegations are that the Petitioner was working as a part time lady attendant/nurse in the National Rural Health Scheme. Now, the nature of the scheme and involvement of the Petitioner therein was itself a debatable issue. The authorities were not clear. The Sarpanch made a reference to the Health Officer, Primary Health Centre who clarified by a letter dated 07.06.2010 that the Petitioner is employed under the National Rural Health Scheme/Measures at Rave Centre as a part time lady attendant/nurse. She is working from 02.06.2009 and she has resigned on 05.09.2010. However, when the application was filed for disqualification on such communication and when the reply thereto was received in the *7* wp.8378.10.912.sxw last week of June, 2010, once again a reference was made to the District Health Officer, Zilla Parishad, Raigad by the Collector, Raigad and he clarified vide his letter dated 31.07.2010 that the Petitioner was working as a part time lady attendant/nurse from 02.06.2009 till 05.06.2010 on temporary basis. Having received clarification from the District Health Officer that the Petitioner was working under the National Rural Health Scheme as a part time lady attendant/nurse on honorarium and temporary basis; it is clear that this communication is not in consonance with the earlier communication dated 07.06.2010. This is a reference made by the Collector himself during the course of the present proceedings. The Collector was informed by the District Health Officer that he should also peruse the relevant documents concerning this National Rural Health Scheme/Measures initiated by the Central Government. It is clear from the letters attached to this communication that the persons like the Petitioner are working on honorarium basis so as to assist the Central Government in implementing the National Rural Health Scheme/Measures. This is entirely a Central Government’s scheme and the Central Government gives honorarium on the basis of 100% reimbursement. Having perused all these letters carefully together with the final clarification of the Taluka Health Officer, Pen Taluka, it is clear that the Petitioner was not in government service. 13 Having perused the petition and the allegations therein, it is also clear that the Respondent No.1 has failed to prove that the Petitioner was working as servant of the local authority. This is not a scheme of the Zilla Parishad. The Zilla Parishad has not employed the Petitioner as servant considering the clarifications with regard to the scheme itself. In such circumstances, there is much substance in the contentions of Mr.Gavnekar that the Petitioner has been disqualified for reasons which *8* wp.8378.10.912.sxw are not traceable to any of the provisions relied upon. The Petitioner’s disqualification under these provisions was not possible, as is clear from the orders passed by the Collector and the Commissioner. They failed to apply their mind to the provisions inasmuch as either the Petitioner is servant of the Government or servant of any local authority, both words have not been defined in the Act. They must take their colour from the general meaning attached to these words. However, the term “Zilla Parishad” is defined in Section 3(6) to mean a Zilla Parishad constituted under the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961. The allegation could be that the Petitioner is government servant or servant of any local authority. It appears that the Respondent No.1 took chance by alleging that the Petitioner is government servant and finding that the Zilla Parishad has issued some communication about work of the Petitioner, the Respondent No.1 alleged that the Petitioner is a servant of the Zilla Parishad. The authorities were obliged to find out that which of the events invite the disqualification. They could not have proceeded on some guesswork. In such circumstances and finding that what the Petitioner was performing, was the work of assisting the Governmental authorities in the National Rural Heath Scheme and for which she was paid honorarium which was fixed in terms of the scheme itself, then, it is difficult to hold that she stands disqualified. 14 In a decision reported in AIR 2005 SC 688 (K.Prabhakaran v/s P.Jayarajan), the Honourable Supreme Court held that perception hitherto prevailing that a provision for disqualification has to be construed like a penal statute may not be accurate, yet the provision must be construed bearing in mind the object and purpose sought to be achieved by insertion thereof and the construction should be as such as would advance the same. However, at the same time, the construction must be in *9* wp.8378.10.912.sxw consonance with the realities of life. When the disqualification is on account of a person being a servant either of government or a local authority, then, that has some significance which cannot be ignored. In these circumstances, both the authorities committed an error apparent on the face of record in disqualifying the Petitioner. They have failed to take into account the material that was made available to them after seeking clarifications from the authorities. 15 For all these reasons, the impugned orders are quashed and set aside. Rule is made absolute in terms of prayer clause (a). However, in the circumstances, there will be no order as to costs. (S.C. Dharmadhikari, J)