JUDGMENT :

Dinesh Mehta, J.

1. Petitioner, an elected member of ward No. 24 of Jodhpur Municipal Corporation, has invoked the writ jurisdiction of this Court assailing the order dated 08.12.2021, whereby the Director cum Special Secretary, Directorate, Local Self Government - respondent No. 1 has sought petitioner's explanation in terms of Section 39(3) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as the 'Act of 2009') as to why judicial enquiry not be conducted against him.

2. Simultaneously with issuance of show cause notice aforesaid, the petitioner has also been placed under suspension.

3. Mr. Kotwani, learned counsel for the petitioner, has challenged the impugned order on two premises:

(i) the disqualification alleged against the petitioner (he has more than two children) relates to pre-election disqualification and thus, no proceedings against him can be initiated.

(ii) Preliminary enquiry which was got conducted by the respondent and which has been the basis of issuance of the impugned order dated 08.12.2021 has been conducted by an incompetent authority and hence, the order is illegal.

4. In support of his first contention, it was informed by learned counsel for the petitioner that the very same candidate has already filed an election petition which is pending before the competent Court on the allegation that petitioner was disqualified for having three children.

5. In support of his second contention, learned counsel has relied upon the judgment of Division Bench dated 12.11.2008 passed in State of Rajasthan & Anr. v. Ashok Kumar Machi & Anr. DB Civil Special Appeal No. 958/2008 and submitted that in almost similar circumstances preliminary enquiry having been conducted by a delegate of the competent authority has been quashed.

6. Mr. Beniwal, learned Additional Advocate General, appearing for the respondent - State on the other hand submitted that petitioner's first contention that the purported disqualification is a pre-election disqualification is absolutely misconceived, inasmuch as birth of the third child has taken place after the petitioner was elected. He argued that since giving birth to third child is a disqualification under Section 24(XVII) of the Act of 2009, and such disqualification has been acquired during his tenure as a Member of the Board, the State Government is competent to take action against him under the powers available to it under section 39 of the Act of 2009.

7. In relation to the second argument that was advanced by learned counsel for the petitioner that the preliminary enquiry which has been conducted by an incompetent authority, Mr. Beniwal submitted that the said enquiry cannot be said to be a preliminary enquiry. He asserted that it was only a fact finding enquiry and once the fact that the petitioner has fathered a third child after being elected, has come to the notice of the State, the State has issued a notice on 08.12.2021. He added that once the proceedings against the petitioner have commenced, the State was justified in suspending the petitioner in terms of sub-section (6) of section 39 of the Act of 2009.

8. It was also argued by Mr. Beniwal that maybe, the factual enquiry has been labelled as preliminary enquiry, but it cannot be said to be an enquiry provided under section 39(1) of the Act of 2009, inasmuch as the entire section nowhere uses the expression 'preliminary enquiry'.

9. Heard.

10. So far as the first argument of learned counsel for the petitioner that the respondent - State cannot proceed against the petitioner on the allegation of third child having being fathered by him for it being pre-election disqualification is concerned, this Court does not find any substance in the same.

11. Indisputably, the third child was born on 25.11.2020, after the petitioner was elected as a Member of Municipal Corporation, (03.11.2020), hence it cannot be said that the petitioner was disqualified when he filled up the nomination form or even contested the election.

12.