The main legal point established in the judgment is that a right guaranteed by law, primarily intended for the benefit of the individual, can be waived by the individual if no public interest is involved, and the waiver does not contravene any public policy.

Dipak Misra, J.

1. Questioning the soundness of the order dated 7.1.2010 passed by the learned Single Judge in CWJC No. 18104 of 2009 the appellant has invoked the appellate jurisdiction of this Court under Clause 10 of the Letters Patent.

2. The factual matrix, as have been unfolded in the writ petition as well as in this appeal, are the appellant was elected as Pramukh of Fatuha Block under the provisions of Bihar Panchayat Raj Act, 2006 (for brevity the Act). While she was functioning as the Pramukh, the members of the Panchayat Samiti sent a requisition on 5.12.2009 for convening a special meeting for No Confidence Motion against her. On the basis of the said requisition, the Block Development Officer-cum-Executive Officer issued notice for convening a special meeting on 12.12.2009. On the date fixed, a No Confidence Motion after being mooted was passed against the appellant. The appellant, as is evident, participated in the No Confidence Motion, which was passed against her and she became unseated. After the post fell vacant, the State Election Commission communicated to the District Magistrate-cum-Election Officer, Patna fixing 11.1.2010 for the date of election of new Pramukh.

3. Being dissatisfied with the aforesaid action, the appellant invoked the jurisdiction of this Court under Article 226 of the Constitution of India contending, inter alia, that the notice that was issued by the Block Development Officer-cum-Executive Officer of the Panchayat Samiti fixing the meeting on 12.12.2009 does not meet the requirement as postulated under Section 46(4) of the Act as the said provision provides that there must be a clear seven days notice for convening a special meeting for consideration of No Confidence Motion. Structuring the said stand it was urged that the date the notice was issued, that is, 5.12.2009, was to be included and the day of meeting, that is, 12.12.2009, has to be excluded and on such exclusion, the notice period would stand reduced to six days which vitiates the mandatory provision as engrafted under Section 46(4) of the Act, and therefore, the vote of No Confidence passed against her is null and void and, therefore, in the ultimate eventuate, the Notification issued by the State Election Commission to fill up the post treating the same to be vacant is unsustainable.

4. The learned Single Judge took note of the statutory provisions, the pleadings in paragraph 6 of the writ petition by which the appellant had fixed the date for convening the meeting in the Register of Panchayat Samiti and her participation in the special meeting wherein the vote of No Confidence was passed and the result of the meeting to the effect that out of 16 elected Members, three votes were found unmarked, one was found invalid and 12 Members voted against her and the conduct of the appellant which invited the wrath of the principle of approbate and reprobate expressed the view that the resolution passed against the appellant did not deserve to be interfered with. It is apt to note the learned Single Judge has also referred to the concept of democratic process of adult franchise and the concept of loss of confidence of the House to bolster his view.

5. Mr. Shambhu Prasad Singh, learned counsel appearing for the appellant assailing the pregnability of the order of the learned Single Judge has raised the following contentions:-

(a) The order passed by the learned Single Judge is totally indefensible inasmuch as after recording a finding there has been no seven clear days notice, he has declined to interfere with the resolution passed by the Panchayat Samiti by which the appellant was unseated.

(b) The learned Single Judge has erroneously applied the principle of approbate and reprobate which is not applicable to the case at hand and the reliance placed by him on the decision Sanjay Singh Som vs. The State of Bihar & Ors., (2002)3 PLJR 589 is absolutely misplaced and thereby the order passed by him becomes vulnerable.

(c) When