Sushila Tank vs State Of Rajasthan And Ors

The present writ petition has been filed by the petitioner challenging the order/notice dated 19.12.2016 and order dated 31.12.2019.

The order dated 19.12.2016 was passed by the respondents invoking their power under Section 38 (1) (b) of the Rajasthan Panchayati Raj Act, 1994

(hereinafter referred to as 'the Act of 1994'). The perusal of the said order shows that an enquiry was conducted against the petitioner after issuing a

charge-sheet and allegation was levelled with respect to certain irregularities said to be committed while making purchase without following the due

procedure.

The Enquiry Officer-Chief Executive Officer, Zila Parishad submitted his report on 18.11.2016 and after holding the petitioner guilty, the order dated

19.12.2016 was passed and findings were recorded against the petitioner making her disqualified to contest the election for a period of five years.

The perusal of the order dated 31.12.2019 shows that Divisional Commissioner has published a list of ineligible candidates who cannot contest the

election in view of findings recorded against them. The name of the petitioner appeared at serial No.116 in the said order and reference is made of

order No.2866 dated 19.12.2016.

Learned counsel Mr Lokesh Sharma submitted that the order dated 19.12.2016 is arbitrary and illegal and the respondents could not have invoked

Section 38 (1) (b) of the Act of 1994 as there was no misconduct committed by the petitioner and only allegation was in respect of irregularity being

committed by the petitioner.

Learned counsel further submitted that the respondents while dealing with the case of irregularity alleged to be committed by the petitioner themselves

thought that petitioner has not committed any misconduct and only some irregularity in procedure was alleged against the petitioner.

Learned counsel submitted that until the charge of misconduct was proved against the petitioner, the order dated 19.12.2016 could not have been

passed.

Mr. Lokesh Sharma, further submitted that when the recovery proceedings were initiated against the petitioner, the petitioner approached this Court

by filing writ petition and this Court on 09.01.2015 passed order of staying the recovery proceedings. Learned counsel further submitted that recovery

proceedings were stayed by the respondents at one point of time, however again the recovery proceedings were initiated and FIR was lodged against

the petitioner. Learned counsel submitted that the in the FIR, Police after investigation, filed final report and it was accepted by the Competent Court.

Learned counsel submitted that now the order dated 19.12.2016 makes the petitioner ineligible and disqualified and as such the order dated 31.12.2019

is a consequential order which needs to be interfered by this Court.

Learned counsel further submitted that the petitioner cannot suffer any disqualification only on account of the order dated 19.12.2016 as there is no

allegation of committing any misconduct while discharging the duties by the petitioner.

I have heard the learned counsel for the petitioner and perused the material available on record.

This Court finds that the order dated 19.12.2016 was passed after holding the enquiry against the petitioner.

This Court further finds that the order dated 19.12.2016 recorded a finding that the petitioner becomes disqualified to contest the election as findings

were recorded against her. The order dated 19.12.2016 if at all affects the rights of the petitioner, the petitioner was within her right to challenge the

same, at relevant time as provided under the law.

The order dated 31.12.2019 is only a consequential order and as such no illegality can be found in the said order.

The submission of learned counsel for the petitioner that the order dated 31.12.2019 has wrongly been passed under Section 38 (1) (b) of the Act of

1994 as no misconduct was committed by the petitioner, this Court finds that the order specifically makes a reference that the petitioner had made

violation of Rule 184(4) d [k x and sub-Rule 1 of Rule 183 of the Rajasthan Panchayati Raj Rules, 1996 and after giving proper opportunity to the

petitioner, the order dated 19.12.2016 came to be passed.

The submission of learned counsel that there was no allegation of committing misconduct or misuse of office by petitioner, this Court finds from

charge sheet itself (Annexure-1) that allegation was levelled of committing financial irregularity and misuse of office by committing misconduct.

This Court finds that the petitioner is now challenging the order only making herself to be eligible for contesting the election in the garb of challenging

the order dated 31.12.2019 and she assails the order dated 19.12.2016 and same cannot be permitted after lapse of 3 years.

The writ petition is misconceived, and accordingly the same is dismissed.