Parihar, J.
1. Petitioner having contested the election of Sarpanch of Mandawar Panchayat, Panchayat Samiti, Tonk, was declared elected as Sarpanch on 31st January, 2000. Subsequently, the petitioner was served with a charge sheet dated 24.1.2001. The petitioner was directed to submit her explanation within one month. The charge-sheet dated 24.1.2001 is under challenge in the present writ petition.
2. The action of the respondent State has been assailed mainly on the ground that the charge sheet under Rule 22(2) could not have been issued to the petitioner since most of the charges are in regard to the disqualification of the petitioner for holding the Office of Sarpanch at the time of election. Since no act as alleged in the charge sheet has been done during discharging the duties of a Sarpanch, the petitioner could not have been removed from the Office of Sarpanch. It has further been contended by the learned counsel for the petitioner that it is only by way of filing as Election Petition and a judicial pronouncement been made on the same, that the petitioner could be removed from the Officer of the Sarpanch.
3. After having considered the submissions made by the learned counsel for the parties. I have carefully gone through the material on record including the detailed reply filed on behalf of the respondents and also the relevant provisions of the Act and the Rules.
4. In the impugned charge sheet dated 24.1.2001, four charges have been levelled against the petitioner, which are reproduced here in under:-
vkjksi 1 ^^;g gS fd vkiustc ljiap in dk pquko yM+us gsrq funsZ'ku&i;= Hkjk ml le; vki }kjk larkuksa dslaca/k esa fn;s x;s 'kiFk&i;= esa rF;ksa dks fNik;k D;ksafd vkidh fu/kkZfjrfrfFk ds i'pkr dh lUrku 2 ls vf/kd gks xbZ Fkh vkSj mlds vuqlkj vki ljiap ingsrq pquko ugh yM+ ldrh Fkh bl izdkj vki >waBk 'kiFk&i;= is'k djus dhnks'kh gSA
vkjksi 2 ;g gS fd vkiuslUrku laca/kh >waBk 'kiFk i=k nsdj ifjokj fu;kstu dk;Ze dk mYya?ku fd;k gSD;ksafd vkids dqy uhu lUrku 1 eqjkjh iq=] 2 ljkst iq=h] 3dksdyk mQZ csch iq=h ftudh tUe frfFk e'k% lu~ 1992] 24-9-95 ,oa 18-5-99gSA iapk;rh jkt vf/kfu;e esa ;g izko/kku fd;k x;k gS fd ftuds fnukad 27-11-1995ls iwoZ nks ;k mlls vf/kd cPps Fks] ds ;fn mDr frfFk ds i'pkr~ ,d vkSj lUrku gkstkrh gS rks og lnL;rk ds v;ksX; ?kksf'kr fd;s tk ldrs gSaA bl izdkj fu/kkZfjrfrFkh 27-11-1995 ds i'pkr~ vkids ,d lUrku vkSj gksus ls vki jkt- iapk;r lfefr vf/kfu;e1994 dh /kkjk 19B ds vUrxZr fujgZrk esa vkrh gSA bl izdkj vf/kd larkuksa dsdkj.k vki pquko yM+us dh nks'kh gSA
vkjksi 3 ;g gS fd vki dsjk'ku dkMZ esa 7 lnL; vafdr gS ftuesa 2 lnL;ksa dh mez 3 o 1 o'kZ vafdrgSA vkius jk'ku dkMZ esa mez xyr ntZ djkbZ gSA bl izdkj jk'ku dkMZ esa xyr rF;vafdr djkus dh vki nks'kh gSA
vkjksi 4 ;g gS fd mDrizdj.k esa tkap vf/kdkjh Jh f'koiky eh.kk] iapk;r izlkj vf/kdkjh] dysDVsV]Vkasd dks fnukad 9-6-2000 dks fn;s x;s c;kuksa esa vkius viuh rhu thfor larkusdcwy dh gSA ftudh mez de'k% 10 o'kZ] 7 vkSj 8 o'kZ] ,oa 2-5 o'kZcrkbZ xbZ gS tcfd rF; blds ofijhr gSA vkidh thfor rhu larkuksa dk tUe lu~1992-24-95 ,oa 18-5-99 gS] tks ,- ,u- ,e- e.Mkoj ds ;ksX; nEifr iaftdk lsizdkf.kr gksrh gSA bl izdkj vkius vkdih rhljh thfor lUrku dh tUe frfFk dksNqik;k gS o blhfy, vki bl d`R; gsrq nks'kh gSA**
5. Section 38 of the Rajasthan Panchayati Raj Act, 1994 provides for removal and suspension of any member including a Chairperson or a Deputy Chairperson of a Panchayat Raj Institution. Section 38 is reproduced here as under:-
'38. Removal and suspension-(1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office and member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution, who.
(a) refuses to act or becomes incapable of acting as such; or
(b) is guilty of misconduct in the discharge of duties or any disgraceful conduct;
Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges levelled.
(2) The chairperson or the deputy chairperson removed under subsection (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned.
(3) The member or the chairperson or the deputy chairperson removed under Sub-section (1) or against whom findings have been recorded under the proviso to that sub-section, shall not be eligible forbeing chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded.
(4) The State Government may suspend any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-Section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension.
(5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Section 97, be final and shall not be liable to be questioned in any court of law.'
6. The procedure for enquiry has been provided in Rule 22 of the Rajasthan Pancnayati Raj Rules of 1996. Rule 22 of the above Rules is reproduced here as under:
'22. Procedure of enquiry.- (1) Before taking any action under Sub-section (1) of Section 38, where on its own motion or upon any compliant, the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month.
(2) If, upon consideration of the report received as aforesaid or otherwise, the State Government is of the opinion that action under Sub-section (1) of Section 38 is necessary, the State Government shall frame definite charges and shall communicate them in writing to the Chairperson, Deputy Chairperson or member of the Panchayati Raj Institution together with such details as may be deemed necessary. He shall be required to submit a written statement within one month admitting or denying the allegations, giving his defence, if any and whether he desires to be heard in person.
(3) State Government may after expiry of prescribed period and consideration such written statement, appoint an Enquiry Officer and also nominate any person to present the case before Enquiry Officer on behalf of the State.
(4) Enquiry Officer shall consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross- examination of witnesses shall be provided to the opposite side.
(5) Enquiry Officer shall be prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved alongwith the reason therefore, and submit it to the State Government for final decision.
(6) The provisions of the Rajasthan Disciplinary Proceedings (Summoning of witnesses and Production of Documents) Act, 1959 (Rajasthan Act No. 28 of 1959) and the rules made thereunder shall also apply mutatis mutandis to enquiries being conducted against the Chairperson, the Deputy Chairperson or member of Panchayati Raj Institution as the case may be, under these rules.
(7) State Government shall consider the findings of enquiring officer and after giving him opportunity of hearing, may either exonerate, or remove such Chairperson, Deputy Chairperson or Member from the Office or pass appropriate orders. In case of removal, it shall also be published in Official Gazette.
Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired.
7. So far as election disputes are concerned, an election under the Act can be challenged by way of an Election Petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, Rule 80 of the above Rule is reproduced here is under:-
'80. Manner of challenging an election under the Act-An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds:-
(a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or
(b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or
(c) that any nomination was improperly rejected, or
(d) that the result of the election in so far as it concern the returned candidate was materially affected.
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the candidate by a person other than candidate or by a person acting with the consent or connivance of such candidate, or
(iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or
(iv) by any non-compliance with the provisions of the Act or of these Rules, or
(e) that in fact the petitioner or some other candidates received a majority of the valid votes, or
(f) that, but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes.'
8. It has further been provided under the above Rules of 1994 that a petition under Rule 80 may be presented by any candidate at such an election.
9. Admittedly, no Election Petition has been filed against the petitioner by any of the contesting candidates. A bare reading of the provisions of the Panchayal Raj Laws in the State shows that the provisions in regard to the Election Petition are altogether different and independent of the powers of the State Government taking action against an elected member under Section 38 of the Act of 1994,
10. The constitutional validity of Section 19(L), which provides for disqualification of having more than two children has already been upheld by the Division Bench of this Court in the case of Mukesh Kumar Ajmera v. State of Rajasthan and Ors. (1).
11. This Court, under almost similar circumstances, in Bahadur Nath v. State of Rajaslhan and Ors. (2), while relying upon the earlier judgment of this Court in Rakesh Ghatiwal v. State of Rajaslhan and Ors. (3), which was affirmed by the Division Bench, held that the person, who succeeded in election by mis-representation, cannot be permitted to raise the issue that an enquiry on the administrative side is not permissible and he can be removed from the office only by way of Election Petition. In the enquiry the petitioner would have every right to lead evidence and prove his case, but such an enquiry does not warrant an interference by the Court.
12. Even otherwise, in a given case there may not be any other contesting candidate in the election and if there is any, he or she may not choose to file an Election Petition. In such circumstances, if any thing is brought to the notice of the State Government, proper action under the Rules can always be taken against the person holding the post.
13. The Court further observed that where an applicant gets an order/office by making mis-representation or playing fraud, such order cannot be sustained in the eyes of law. If a person not eligible to stand contested the election and for that purpose filed the nomination paper being disqualified under the provisions of the Act and the Rules and if he succeeds in the election by suppressing material fact, he cannot claim any right arisen out of his own wrong. It has also been observed that in case the petitioner was not eligible to contest the election, he cannot be permitted to hold the office for the reason that his entering in the office was in flagrant violation of the statutory requirement which cannot be cured by any means.
14. In the present case, as has come on record, after holding a preliminary enquiry a regular charge sheet has been issued to the petitioner under Rule 22(2) of the Rules of 1976. The petitioner has yet to submit her reply to the charge sheet before the competent authority. As has already been referred above, the competent authority is required to give held against the petitioner and only after that necessary orders can be passed. After having considered the entire facts and circumstances of the present case, looking to the nature of charges levelled against the petitioner, in my opinion, no interference is called for by this Court in the present writ petition at this stage.
15. However, in the interest of justice, since the petitioner is holding a public office, I deem it proper to direct the respondents to complete the enquiry in the present case against the petitioner and pass necessary orders within four months from the date of receipt of certificate copy of this order. It is also expected from the petitioner to cooperate with the authorities in concluding the enquiry. The time of submitting explanation to the charge sheet before the competent authorities by the petitioner is further extended to 15 days from the dale of this order.
16. The writ petition stands disposed of accordingly.