The main legal point established in the judgment is the authority of the State Election Commissioner to decide the disqualification of a candidate occurring prior to the election, as provided under Section 136(2) of the Bihar Panchayat Raj Act, 2006, in accordance with the provisions of Article 243-F of the Constitution of India.

The petitioner prays for quashing of the order dated 4.11.2011 of Respondent No.2, State Election Commissioner, whereby he has been disqualified for election to the post of Mukhiya of Gram Panchayat, Amba South and authorities were directed to undertake steps for fresh election as the post of Mukhiya of the Gram Panchayat has fallen vacant.

2. Before I discuss the grounds on which the impugned order has been challenged, it would be necessary to notice the relevant facts and provisions of law. The petitioner, respondent no. 6 and one Phool Kumari Devi, mother of respondent no. 6 and few others contested the post of Mukhiya of Gram Panchayat, Amba South. The last date for filing nomination was 1 .3.2011, the date of scrutiny was 8.3.2011 and date of election (voting) was 24.4.2011. The petitioner having secured highest votes was declared elected and a certificate was duly issued in her favour Respondent No. 6 objected the acceptance of nomination of petitioner in his application dated 9.3.2011 to the Secretary, State Election Commission. The Respondent No. 6 stated that petitioner was working as a Asha Worker on the date of election (polling) and thus holding office of profit, which is a disqualification for contesting election for the post of Mukhiya under Section 136(1) of 2006 Act A copy of protest application is annexed as Annexure-8 to the writ petition. One Phool Kumari Devi, mother of respondent no. 6 too filed an election petition bearing Election Petition No. 2/11 in the Court of Munsif, Sheohar-cum-Election Tribunal at Sitamarhi on 9.6.2011 for declaring the entire election process bad.

3. It is relevant to state here that both in the election petition as well as in complaint to the State Election Commission, the election of the petitioner was challenged on the same ground that the latter was disqualified to contest election as she was holding post of profit on the date of nomination (8.3.2011) as well as on date of polling (24.4.2011).

4. On the basis of complaint of Respondent No.6, the State Election Commissioner registered Case No. 71/2011 and directed the District Magistrate-cum-District Returning Officer Panchayat, Sheohar to depute a competent officer to appear in hearing on 8.9.2011 with all relevant papers including inquiry report after making necessary enquiry. The State Election Commissioner vide his order dated 4.11.2011 after considering enquiry report and papers produced by parties and after giving them due opportunity of hearing came to a finding that the petitioner was an Asha Worker on the date of filing of nomination and as such she was disqualified to contest election and hold post of Mukhiya. He further observed that on account of disqualification of petitioner, the post of Mukhiya of Gram Panchayat, Amba South has fallen vacant and steps be taken for fresh election.

5. The petitioners have assailed the impugned order of the State Election Commissioner on the following grounds:-

(i) The Election Commission has no jurisdiction to decide qualification or disqualification of a candidate occurring prior to election.

(ii) The Election Commissioner has no authority to examine the validity of election and cancel the same.

(iii) The order of Election Commissioner is perverse and the findings are not conclusive.

(iv) Even assuming he has jurisdiction to decide the issue of qualification or disqualification occurring before election, whether he ought to have entertained the complaint when the election petition also on the same ground filed by the mother of Respondent No.6 is pending before the Election Tribunal.

6. The stand of Counsels for the private respondent and State Election Commission are common. They submit that the State Election Commissioner is authorized under Section 136(2) of the Bihar Panchayat Raj Act, 2006 to decide qualification and disqualification mentioned in Sections 135(1) and 136(1) of the Bihar Panchayat Raj Act. They state that the petitioner was holding office of profit as she was work