Disqualification for contesting election under Sec. 136(1) of the Bihar Panchayat Raj Act, 2006 based on invalid acceptance of resignation and holding a post of profit.

1. Heard Mr. D.K. Sinha, learned Counsel for the appellant and Mr. P.K. Shahi, learned Advocate General for the respondents.

2. This appeal is directed against the order dated 18.7.2007, passed by a learned Single Judge of this Court in C.W.J.C.No. 14236 of 2006 dismissing the writ application.

3. The short facts giving rise to this appeal are as under:

The appellant, who was working on the post of Angan Bari Sevika, resigned from her post on 20th February, 2006 to contest for the post of Mukhiya of Pakharpur Gram Panchayat in the district of Arwal. Her resignation dated 20th February, 2006 was accepted on 21.2.2006 by the Aam Sabha. In the election for the post of Mukhiya, however, she was elected. After her election, the matter, however, was reported to the Election Commission that the appellant was disqualified to contest, the election of Mukhiya as she was an Angan Bari Sevika, coupled with the facts that her resignation was not accepted properly and she was holding a post of profit. The election Commission thereafter issued notices to the parties, where the appellant appeared and put forth her claim saying that, she had resigned from the post of Angan Bari Sevika on 20.2.2007 and the same was accepted by the Aam Sabha of the Gram Panchayat on 21.2.2006 and since she was duly elected on the post of Mukhiya she ceased to be an Angan Bari Sevika. On scrutiny of the matter and materials on record, the Election Commission, however, held that her resignation was hurriedly accepted, in a meeting convened by her husband, who was erstwhile Mukhiya of the Gram Panchayat in question and. since her resignation was not properly accepted she was disqualified for the post of Mukhiya. The decision of the Election Commission, however, was challenged before this Court in the writ jurisdiction by filing a writ application which was dismissed giving rise to this appeal.

4. Mr. D. K. Sinha, learned Counsel appearing on behalf of the appellant, submitted that the appellant had resigned and her resignation was accepted by the Aam Sabha of the Gram Panchayat and, thus, she ceased to be an Angan Bari Sevika and thereafter she contested the election for the post of Mukhiya where she was found successful. Learned Counsel further submitted that the post of Angan Bari Sevika is not a Government post and, therefore, she would not be deemed to be in Government service nor she was holding any post of profit. Learned Counsel also submitted that once she was declared, as elected Mukhiya the Election Commission had no jurisdiction to unseat her as the remedy was to file an election petition before the Tribunal.

5. The learned Advocate General appearing on behalf of the respondents, on the contrary, submitted that the appellant continued to work on the post of Angan Bari Sevika and her resignation since was not accepted in a valid and due mariner, she was disqualified for the post of Mukhiya. Learned Counsel in this context submitted that to convene a meeting of the Aam Sabha a seven days prior notice was required to be given which admittedly was not done and further the meeting so convened was not attended by the C.D.P.O. who was ex-officio member of the Aam Sabha. Learned Counsel further contended that in any view of the matter, the resignation, if any, tendered by the appellant could, have been accepted by the CD. P.O. under the modified circular in Clause 9 dated 26.9.2005.

6. The learned Single Judge of this Court, on appreciation of facts, pleadings of the parties and. arguments of the counsel, held, that since the writ petitioner was holding a post of profit and her resignation was not Validity accepted from the post of Angan Bari Sevika, she was disqualified for the post of Mukhiya. It further held that as per the circular dated 26.9.2005, the resignation of an Angan Bari Sevika was acceptable by the C.D.P.O. and not by the Aam Sabha which was convened hurriedly at the instance of the husband of the writ petitioner.

7. Sec. 136 (1) of the Bi