JUDGMENT :

1. By way of the instant writ petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for a mandamus to the respondent no.3 -District Collector to hand over the charge of the Sarpanch of Gram Panchayat 'Loharki' (hereinafter referred to as 'Gram Panchayat') to her.

2. The facts as set out in the memo of the writ petition are, that at the relevant time the seat of the Sarpanch as well as Up-Sarpanch of Gram Panchayat, which falls in the Panchayat Samiti Sankara, Tehsil Pokaran, District Jaisalmer, was unreserved or was open for the General category candidates.

3. The elections of Sarpanch and Panchas of the Gram Panchayat were held in March, 2020 and one Kishan Kanwar was elected as Sarpanch on 15.03.2020. The petitioner, who belongs to Scheduled Caste community, won the election of Panch from the open seat and was later on elected as Up-Sarpanch by the Panchas of the Gram Panchayat.

4. On 26.05.2023, Kishan Kanwar, the elected Sarpanch of the Gram Panchayat (hereinafter referred to as 'the erstwhile Sarpanch') passed away leaving the seat of Sarpanch unrepresented.

5. The Gram Vikas Adhikari of the Gram Panchayat informed the Vikas Adhikari about the death of the Sarpanch, in furtherance whereof, the District Collector, Jaisalmer in exercise of powers under Section 25(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994') handed over the charge to one of the Panchas -Smt. Mangi Devi (the respondent no.8) by order dated 13.06.2023.

6. The respondent no.8 took the charge on 14.06.2023, but soon thereafter said order was kept in abeyance by the District Collector by order dated 17.06.2023.

7. After the death of the erstwhile Sarpanch, the petitioner requested the District Collector to handover the charge to her, but the District Collector chose not to do so for which the petitioner has invoked writ jurisdiction of this Court.

8. A mandamus has been sought to the State Government/competent authority to hand over the charge of Sarpanch to the petitioner.

9. Mr. Manvendra Singh, learned counsel for the petitioner argued that the State, more particularly, the respondent no.3 is proceeding arbitrarily and is trying to give charge to other Panch just to deprive the petitioner of her right to work as Sarpanch. He invited Court's attention towards the provisions of Section 25 of the Act of 1994 and submitted that in any of the contingencies mentioned in Sub-section (1) of Section 25 of the Act of 1994, the charge of the Sarpanch should be given to the Up-Sarpanch. It was argued that in a democratic set up, in the event of absence or death of the Sarpanch, Up-Sarpanch or Deputy Chairperson is meant to work as the Chairperson of the Panchayati Raj Institution, whereas, the respondents have firstly given the charge to the respondent no.8 dehors the statutory provisions and now a meeting of the Gram Panchayat has been convened for deciding that who should be handed over the charge of the Sarpanch, after the demise of erstwhile Sarpanch (Smt. Kishan Kanwar).

10. Placing strong reliance upon Section 32 of the Act of 1994, particularly clause (b) of Sub-section (2), learned counsel for the petitioner argued that the expression 'absence' is of very wide amplitude and in case of 'absence', either due to the contingencies mentioned in Section 25 (1)(i) to (v) or on account of death, it is the Up-Sarpanch, who is supposed to discharge all the functions and perform the duties of the Sarpanch.

11. Mr. Kunal Upadhyay, learned counsel appearing for the respondent -State, on the other hand submitted that the petitioner is not entitled to be handed over the charge simply because she happens to be an Up-Sarpanch. He argued that contingencies mentioned in clause (i) to (v) of Sub-section (1) of Section 25 enumerate various situations except 'the death', therefore, in the case of death, Sub-section (2) of Section 26 of the Act of 1994 comes into play and charge can be handed