Patna High Court - Orders
Amerika Devi @ Amerika Kumari @ Amerika ... vs The State Of Bihar & Ors on 19 June, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10189 of 2013
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Amerika Devi @ Amerika Kumari @ Amerika Kumari Choudhary, W/O
Yamuna Prasad Chaudhary, R/O Village- Barhi, P.S.- Jainagar, District-
Madhubani.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The State Election Commissioner, State Election Office, Bihar, Sone
Bhawan, Patna.
3. The Collector, Madhubani.
4. The District Panchayat Raj Officer, Madhubani.
5. The Prakhand Vikas Padadhikari, Jainagar, District- Madhubani.
6. The Block Education Extension Officer, Jainagar, District-
Madhubani.
7. The Panchayat Secretary, Gram Panchayat Raj, Barhi, P.S.- Jainagar,
District- Madhubani.
8. Sunita Kumari Yadav, W/O Shri Binod Kumar, R/O Village- Barhi,
P.S.- Jainagar, District- Madhubani.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Murari Narain Choudhary
Mr. Vijay Kumar
Mr. Mohit Srivastava
For the Respondent-State : Mr. Suresh Kumar, A.C. to G.P. -5
For Respondent-Commission: Mr. Amit Shrivastava
Mr. Girish Pandey
For the Respondent No.8 : Mr. Sunil Kumar Tiwary
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
10 19-06-2014Heard Mr. Murari Narain Choudhary, learned counsel for the petitioner, Mr. Suresh Kumar, Assisting Counsel to Government Pleader No.5 for the State, Mr. Amit Shrivastava, learned counsel for the State Election Commission and Mr. Sunil Kumar Tiwary, learned counsel for the complainant-respondent no.8.
By way of present writ petition the petitioner has questioned the order dated 18.4.2013 passed by the respondent Patna High Court CWJC No.10189 of 2013 (10) dt.19-06-2014 2 State Election Commissioner, Bihar in Case No.89 of 2011, whereby the petitioner has been disqualified from the post of Mukhiya, Gram Panchayat Raj, Barhi, P.S. Jainagar, district Madhubani under the provisions of section 136(1) (Ga) (Gha) (Jha) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as 'the Act') read with rule 117 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as 'the Rules) framed thereunder.
The facts of the case briefly stated is that the petitioner was appointed as a Panchayat Teacher on 16.3.2007 at Primary School, Barhi. Owing to personal reasons, she submitted her resignation on 6.1.2009 before the Headmaster and upon not being accepted by him, the same was forwarded to the Panchayat Secretary who in turn referred the same to the Block Education Extension Officer, Jainagar. Following her resignation, the initial appointment of the petitioner was enquired into and it was found that the certificate submitted by her stated to have been issued by the Kameshwar Singh Sanskrit University, Darbhanga was a forged document. In view of this disclosure the appointment of the petitioner as a Panchayat Teacher was cancelled on 25.3.2009 and there is no dispute about this fact.
Two years later, the petitioner filed her nomination Patna High Court CWJC No.10189 of 2013 (10) dt.19-06-2014 3 for contesting the election of Mukhiya, Gram Panchayat Raj, Barhi, Jainagar, district- Madhubani on 23.5.2011 and was elected, the certification whereof is placed at Annexure-4 to the writ petition. A complaint was filed by the respondent no.8 before the State Election Commission questioning the election of the petitioner on grounds that she has used two different names for securing her appointment as a Panchayat Teacher and for contesting the election and that she was holding the post of profit as a Panchayat Teacher while she filled up her nomination form for contesting the election of Mukhiya. A show cause notice was issued to the petitioner to which she responded by contesting all the allegations. She submitted that whereas she never addressed herself as Amerika Kumari Choudhary as complained by the respondent no.8, her maiden name was Amerika Kumari which reflects in her educational qualification and after marriage she changed her name as Amerika Devi which reflects in her nomination form, the voter list and the photo identity card placed at Annexure 2. She thus submitted that the allegation was contrary to the factual position. In so far as holding the post of profit is concerned, she mentioned that her appointment stood terminated in the year 2009 and thus she did not hold the post of Panchayat Teacher while filling up the nomination form. A report was called for from the Sub- Patna High Court CWJC No.10189 of 2013 (10) dt.19-06-2014 4 divisional Officer, Jainagar in this connection by the Deputy Secretary, State Election Commission and his response forms part of Annexure-1 to the counter affidavit filed on behalf of the respondent no.8 in which it is categorically stated that the service of the petitioner as a Panchayat Teacher stood terminated on 25.3.2009. A copy of the opinion submitted by the District Magistrate and the Sub-divisional Officer on the allegations made by the complainant also forms part of Annexure-1. The matter thereafter was considered by the State Election Commissioner in Case No.89 of 2011 and by the impugned order dated 18.4.2013 the petitioner was held disqualified to hold the post of Mukhiya under section 136(1) read with rule 117 of the Rules framed thereunder and hence this writ petition.
I have heard learned counsel for the parties and I have perused the materials on record.
The issue accompanying this writ petition does not require elaborate discussion. A perusal of the opinion expressed by the State Election Commissioner in the impugned order for disqualifying the petitioner can be found at page 18 of the impugned order and two grounds have been assigned for forming such opinion, namely:
(a) the resignation filed by the petitioner was not approved by the competent authority; and Patna High Court CWJC No.10189 of 2013 (10) dt.19-06-2014 5
(b) the petitioner misrepresented her statement regarding educational qualification in the nomination papers.
In so far as opinion no.(a) is concerned, there cannot a better example of misconception of factual position inasmuch as once the service of the petitioner stood terminated w.e.f. 25.3.2009, her resignation becomes a redundant document and thus whether or not the resignation was accepted by the appropriate authority looses its significance. The opinion reflects complete non-application of mind.
In so far as the opinion no.(b) is concerned, there is absolutely no misrepresentation on the part of the petitioner inasmuch as item no.6 of the nomination form, a copy whereof was produced by Mr. Choudhary during the course of hearing only required the petitioner to state her educational qualification and against which the petitioner has clamed herself to be a 'literate' person. Thus even if the petitioner has not specifically mentioned her educational qualification, by claiming to be a literate person certainly she cannot be charged with misrepresentation of facts. The opinion of the State Election Commissioner regarding misrepresentation thus is not supported by any of the entries in the nomination form.
Further whereas it has been the specific averment of the petitioner that even when her appointment was cancelled on Patna High Court CWJC No.10189 of 2013 (10) dt.19-06-2014 6 25.3.2009 no criminal prosecution was launched by the State authorities, there is no denial to this statement. On the contrary the petitioner has stated that it is following the impugned order that an FIR has been instituted but then the same cannot be a ground for her disqualification. The fact goes uncontested that on the date of filing of the nomination form there was no criminal case either instituted or pending against the petitioner and in which view of the matter the reliance of the State Election Commissioner under the provisions of section 125(A) (1) (3) is totally misconceived.
For the reasons aforementioned, the order impugned cannot be sustained and is accordingly set aside. As a consequence of the order the petitioner stands reinstated on the post of Mukhiya.
This writ petition is allowed. I.A. No.5889 of 2013 is accordingly disposed of.
Let the photo copy of the nomination form be maintained on the record of the present proceedings.
(Jyoti Saran, J) SKPathak/-
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