Rajasthan High Court – Jodhpur
Sarla Devi vs State Of Rajasthan on 7 August, 2025
[2025:RJ-JD:33910]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12122/2025
Sarla Devi W/o Sh. Rati Ram, Aged About 38 Years, R/o Gram
Panchayat, Napasar, Tehsil Bikaner, District Bikaner (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Local Self Government Department, Secretariat, Jaipur,
Rajasthan.
2. The Director And Special Secretary, Local Self
Government Department, Jaipur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Rajesh Joshi, Sr. Advocate,
assisted by Mr. Madhav Vyas
For Respondent(s) : Mr. Rajesh Panwar, Sr. Advocate -
cum-Addl. Advocate General
assisted by Mr. Monal Chugh and
Mr. Ayush Gehlot
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Reportable
Reserved on : 30/07/2025
Pronounced on : 07/08/2025
1. The petitioner has preferred the present writ petition with
the following prayers:-
“(i) The impugned order dated 19.06.2025 (Annexure-18) may
kindly be declared illegal and the same may kindly be quashed
and set aside.
(ii) The respondents may kindly be directed to allow the
petitioner to discharge duties as Chairperson and member of
Municipality, Napasar.
(iii) The respondent authorities may kindly be restrained from
undertaking inquiry under Section 39 of the Act of 2009 against
the petitioner.”
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (2 of 28) [CW-12122/2025]
2. The facts in nutshell are as under:-
2.1 The petitioner was elected as the Sarpanch of Gram
Panchayat Napasar on 10.10.2020. Due to a staff shortage, the
Gram Panchayat, during Gram Sabha meetings held on
20.11.2020 and 21.12.2020, decided to temporarily appoint three
persons, namely, Kalyan Singh (Panchayat Assistant), Gajendra
Pareek (Chowkidar), and Prem Singh (Peon) on a fixed
remuneration basis, effective from 25.10.2020 and 21.12.2020.
2.2 Subsequently, on 25.02.2021, the Gram Panchayat sought
approval for these contractual appointments from the Block
Development Officer, Panchayat Samiti, Bikaner.
2.3 Following a complaint regarding these appointments, the
Gram Panchayat resolved to terminate the engagements of the
aforesaid three persons on 31.12.2021. An inquiry report dated
17.01.2022 concluded that prior approval from the Panchayat
Samiti was mandatory and, in its absence, the appointments were
irregular, warranting termination.
2.4 A further inquiry was initiated to examine the appointments
and assess any financial loss incurred by the Gram Panchayat. The
second inquiry report, dated 02.11.2022, recommended recovery
of the amounts disbursed to the said three persons, noting that no
such recovery had yet been made.
2.5 Based on the allegations of misuse of position and financial
loss caused to the Gram Panchayat, the Panchayati Raj
Department decided to initiate disciplinary proceedings against the
petitioner (Sarpanch) and the Gram Vikas Adhikari. A
communication regarding this was issued to the petitioner by the
Vikas Adhikari, Panchayat Samiti, Bikaner, on 27.03.2023. Another
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (3 of 28) [CW-12122/2025]notice dated 21.06.2023 was issued seeking an explanation as to
why action under Section 38 of the Rajasthan Panchayati Raj Act,
1994 (hereinafter referred to as “the Act of 1994”) should not be
initiated. The petitioner submitted her response on 01.11.2023. As
the authorities found her explanation unsatisfactory, a notice for a
personal hearing was issued on 28.02.2024. Subsequently,
charges under Section 38 of the Act of 1994 were formally framed
against the petitioner on 06.09.2024. The specific charges are
reproduced below:
“;g gS fd vkids xzke iapk;r ukiklj esa ljiap ds in ij
inLFkkfir vof/k ds nkSjku dh ljiap o xzke fodkl vf/kdkjh
xzke iapk;r ukiklj ds fo:) in dk nq:i;ksx dj xzke iapk;r
ukiklj esa vfu;fer:i ls rhu O;fDr;ksa dks xzke iapk;r dk;kZy;
esa yxk;k tkdj izfrekg vfu;fer Hkqxrku fd;s tkus dh f”kdk;r
dh tkap iapk;r lfefr] chdkusj ds esa inLFkkfir lgk;d
ys[kkf/kdkfj;ksa dh dk;kZy; xfBr nks lnL; dsVh ds ek/;e ls
djok;h xbZ] xfBr desVh }kjk izLrqr tkap fjiksVZ esa xzke iapk;r
ukiklj }kjk vkids Lrj ls rhu O;fDr;ksa Jh dY;k.k flag Jh
xtkuUn ikjhd ,oa Jh izse flag dh fu;e fo:) fu;qfDr;ka
djus ,oa mudks dze”k% 196000@&] 160333@& o 160333@&
dqy jkf”k 516666@& :i;s dk vfu;fer Hkqxrku gksuk mtkxj
gksus ij Jheku eq[; dk;Zdkjh vf/kdkjh ftyk ifj’kn] chdkusj ds
i=kad ftich@tkap@3033@488 fnukad 13-01-2023 ,oa
lela[;d i=kad 930 fnukad 30-01-2023] 5485 fnukad 12-06-
2023 esa mDr rhuks dkfeZdksa dks Hkqxrku dh xbZ jkf”k e; C;kt
lacfU/kr ls olwyus ds funsZ”kksa dh ikyuk esa iapk;r lfefr]
chdkusj ds i=kad 2091 fnukad 27-03-2023 ,oa 2135 fnukad 21-
06-2023 }kjk mDr vfu;fer Hkqxrku jkf”k 516666@& dh vk/kh
jkf”k :i;s 258333@& e; C;kt iapk;r lfefr] chdkusj ds
jktdks’k esa f”k?kz tek djokrs gq, mDr vfu;ferrk ds laca/k esa
viuk Li’Vhdj.k@i{k izLrqr djus gsrq ftlesa Hkqxrku dh
dk;Zokgh fdu fu;eksa@izko/kkuksa ds rgr dh xbZ ds iw.kZ lk{; e;
C;kSjk izLrqr djus ds funsZ”kksa ds mijkar Hkh vkids }kjk vkfnukad
rd olwyh ;ksX; jkf”k jktdks’k esa tek ugha djok;h xbZ ,oa mDr
laca/k esa uk gh Li’Vhdj.k izLrqr fd;k x;k gSA vkidk ;g d`R;
jktdk;Z esa O;o/kku mRiUu djuk] vius inh; drZO;ksa ,oa nkf;Roksa(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (4 of 28) [CW-12122/2025]ds foijhr vkpj.k djuk ,oa mPpkf/kdkfj;ksa ds vkns”kksa dh
vogsyuk djus dh Js.kh esa vkrk gS ftlds fy;s vkidks vkjksfir
fd;k tkrk gSA”
2.6 Aggrieved by the initiation of an inquiry, the framing of
charges, and the commencement of proceedings under Section 38
of the Act of 1994, the petitioner filed S.B. Civil Writ Petition No.
7192/2024. While notices were issued in the matter, the writ
petition remains pending. As no interim relief was granted, the
proceedings continued, and a notice dated 18.09.2024 was served
on the petitioner by the Divisional Commissioner, Bikaner, seeking
her explanation. The proposed inquiry was to be conducted under
Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter
referred to as “the Rules of 1996”).
2.7 Before the inquiry could be concluded, a notification dated
07.11.2024 was issued, declaring Gram Panchayat, Napasar as a
Class IV Municipality. Consequently, under the provisions of the
Rajasthan Municipalities Act, 2009 (hereinafter referred to as “the
Act of 2009”), the petitioner assumed the position of Chairperson
of the Municipal Board, Napasar.
2.8 Upon assuming charge as Chairperson, another notice dated
28.05.2025 was issued under Section 39(1) of the Act of 2009,
calling for an explanation and framing charges against the
petitioner, which were identical to those previously framed under
the Act of 1994. For ready reference, the same is reproduced as
under:-
“;g gS fd vki xzke iapk;r ukiklj esa ljiap ds in ij dk;Z
djrs gq, xzke iapk;r ukiklj esa iapk;r lfefr chdkusj ls fcuk
vuqeksnu djok;s rhu dkfeZdksa (Jh dY;k.k flag] Jh xtkuUn
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (5 of 28) [CW-12122/2025]ikfjd ,oa Jh izse flag) dks fu;e fo:) fu;qDr fd;k x;k gS o
fu;e fo:) mDr rhuksa dkfeZdksa dks Hkqxrku fd;k x;k gS]
ftlds fy, vki vkjksfir gSA”
The petitioner submitted her reply on 02.06.2025, objecting
to the initiation of a fresh inquiry under the Act of 2009. However,
the authorities were not satisfied with her explanation.
Consequently, by the impugned order dated 19.06.2025, the
matter was referred to a Judicial Officer for inquiry under Section
39(3) of the Act of 2009, and the petitioner was simultaneously
placed under suspension in accordance with Section 39(6) of the
same Act.
Hence, this petition.
3. Learned Senior Counsel, appearing on behalf of the
petitioner, while challenging the impugned order dated
19.06.2025, made the following submissions:-
(i) The allegation against the petitioner pertains to the
appointment of three individuals on a contractual basis without
obtaining prior approval from the Panchayat Samiti. These
appointments were made in 2020 and were subsequently
discontinued in December 2021. The Panchayati Raj Department
initiated proceedings on the grounds that the petitioner had made
these appointments unlawfully and had thereby caused a financial
loss to the department.
(ii) The petitioner has challenged the delayed initiation of action
by the respondents, arguing that when the same charges were
previously considered during the inquiry initiated under Section 38
of the Act of 1994, the authorities did not find it necessary to
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (6 of 28) [CW-12122/2025]suspend her, considering the allegations. Therefore, the decision
to suspend the petitioner now, after nearly three years and at the
end of her tenure, is, according to her, unjustified. This belated
suspension, therefore, reflects the arbitrary and high-handed
conduct of the authorities, making the action not only
unreasonable but also lacking in fairness. Hence, such action of
the respondents is nothing but colourable exercise of power and
on this ground alone, the impugned order deserves to be quashed
and set aside.
(iii) It is submitted that the proceedings initiated against the
petitioner under Section 39(1) of the Act of 2009 are without
jurisdiction and, therefore, the impugned order is legally
unsustainable. Referring to the provisions of Section 39(1),
particularly clauses (d)(i), (ii), and (vi), learned counsel argued
that these provisions can be invoked only in cases of misconduct
committed by a Member in their capacity as such. In the present
case, however, the allegations pertain to actions taken by the
petitioner during her tenure as Sarpanch, prior to assuming office
under the Municipal Board. As such, it is contended that the
initiation of proceedings under Section 39(1) of the Act of 2009 is
not legally tenable.
(iv) The petitioner cannot be subjected to two concurrent
inquiries; one under the provisions of the Act of 1994, and
another under the Act of 2009, as doing so would amount to
double jeopardy.
(v) There is no valid justification for the respondents to place the
petitioner under suspension, especially when the inquiry has
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (7 of 28) [CW-12122/2025]already been entrusted to a Judicial Officer. Learned counsel relied
on the judgment of a Coordinate Bench of this Court in Meena
Vyas v. State of Rajasthan [2009 (1) RLW (Raj.) 870],
where it was held that once an inquiry is referred to a Judicial
Officer, any allegations of undue influence over the judicial process
are baseless and cannot be accepted.
(vi) The allegations against the petitioner do not amount to
misconduct. Although ‘misconduct’ is not expressly defined, it
must be of such a nature that it directly impacts the character of
the person holding the office of Sarpanch. To support this
submission, learned counsel relied on the judgment of a
Coordinate Bench in Geeta Devi Narooka v. State of Rajasthan
[2008 (2) WLC 261].
(vii) Additionally, in the present case, the three individuals were
engaged purely on a temporary basis, and necessary approval was
sought but not granted. Their services were subsequently
discontinued. At most, this amounts to irregular appointments and
cannot be classified as misconduct.
3.1 In conclusion, learned Senior Counsel appearing for the
petitioner respectfully prayed that the writ petition be allowed and
the impugned order be quashed and set aside.
4. Per contra, learned Senior Counsel – cum – AAG, Mr. Rajesh
Panwar made the following submissions:-
(i) Section 78(1)(b) of the Act of 1994 expressly provides that
the appointment of any staff must be made only with prior
approval from the Panchayat Samiti. In the present case, it is an
admitted fact that no such approval was obtained by the Gram
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (8 of 28) [CW-12122/2025]Panchayat. Accordingly, the petitioner cannot justify the
unauthorized appointments or defend her conduct in this regard.
(ii) The Panchayati Raj Institution incurred a financial loss due to
the petitioner’s unlawful actions. Therefore, the authorities were
well within their rights to initiate proceedings for the recovery of
the said amount and to take appropriate legal action against the
petitioner as per the applicable provisions of law.
(iii) By placing reliance on Section 32(f) of the Act of 1994,
which outlines the duties of a Sarpanch, it is submitted that a
Sarpanch is obligated to act strictly in accordance with the law and
must not, on their own accord, deviate from statutory provisions.
In the present case, the petitioner, while serving as Sarpanch,
acted at her own behest in influencing the Gram Sabha’s decision
and proceeded to appoint three individuals in a wholly illegal and
irregular manner. Such conduct amounts to a clear violation of her
official duties and constitutes misconduct. Therefore, the action
initiated by the competent authorities cannot be deemed either
illegal or arbitrary.
(iv) The petitioner has been rightly placed under suspension in
light of the significant financial loss caused to the public
exchequer. An amount of approximately ₹5 lakhs was disbursed to
the three individuals in question, and considering the gravity of
the financial damage inflicted upon the Panchayati Raj Institution,
the decision to suspend the petitioner is fully warranted.
Furthermore, there exists a genuine apprehension that, if the
petitioner is allowed to continue as Chairperson of the Municipal
Board, Napasar, she may tamper with the evidence.
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (9 of 28) [CW-12122/2025]
(v) By relying on the provisions of Section 38(1)(b) of the Act of
1994 and Section 39(1)(d) of the Act of 2009, which are pari
materia in nature, it is evident upon a plain reading that the acts
alleged against the petitioner clearly amount to misconduct under
both statutes. Accordingly, the respondents were fully justified in
proceeding against the petitioner under Section 39(1) of the Act of
2009.
(vi) Even though the alleged act was committed by the petitioner
during her tenure as Sarpanch, the respondents are nevertheless
empowered to initiate proceedings under Section 39 of the Act of
2009, by virtue of Section 3 of the same Act. Elaborating on this
point, it is submitted that Section 3 of the Act of 2009 deals with
the delimitation of municipalities and explicitly states that upon
the inclusion of a local area into a municipality, all liabilities, rules,
and orders applicable to the earlier local area shall be deemed to
apply to the newly constituted municipality. Therefore, any act
committed by the petitioner while serving as Sarpanch would be
deemed to fall under the purview of municipal law, and as such,
proceedings under the Act of 2009 are legally maintainable.
(vii) If the proposition advanced by the petitioner’s counsel is
accepted, it would render the authorities powerless to initiate or
take any action against misconduct committed by an individual
during their tenure as Sarpanch. Such an interpretation could not
have been the intention of the Legislature. Moreover, no individual
can be allowed to escape accountability merely on the basis of a
technical objection.
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (10 of 28) [CW-12122/2025]
(viii) In support of their submissions, learned counsel for the
respondents relied upon the provisions of Section 3(1), (7), (8)(c),
(d), and (f) of the Act of 2009, contending that liabilities arising
from the past continue to remain enforceable. Accordingly, the
petitioner’s objection regarding the competence of the authorities
to initiate proceedings under Section 39 of the Act of 2009 is
without merit and liable to be rejected.
(ix) The earlier inquiry initiated against the petitioner under
Section 38 of the Act of 1994 has effectively merged into the
present inquiry under the Act of 2009. Consequently, the
petitioner’s claim that this constitutes double jeopardy, or that two
parallel inquiries cannot be conducted, is untenable. In light of the
subsequent developments, the authorities are now proceeding
exclusively under the provisions of the Act of 2009, rendering the
earlier inquiry under Section 38 of the Act of 1994 redundant and
without further relevance.
(x) The suspension order is not arbitrary and has been passed
by the competent authority and, therefore, no interference is
required.
4.1 While concluding his arguments, learned counsel for the
respondents submitted that, in the present case, the entire
proceedings were fully justified given the circumstances. In
support of his submissions, he relied on the judgment of a
Coordinate Bench of this Court in Nirmal Kumar Pitaliya v.
State of Rajasthan; S.B. Civil Writ Petition No. 17285/2021
(decided on 01.02.2022), asserting that the State authorities are
well within their powers to place an elected representative under
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (11 of 28) [CW-12122/2025]
suspension upon deciding to initiate an inquiry under Section
39(1) of the Act of 2009.
He further cited the judgment rendered in the case of Sita
Devi Gurjar v. State of Rajasthan : S.B. Civil Writ Petition
No. 11135/2024 (decided on 06.01.2025), by a Coordinate
Bench of this Court, to argue that in matters of this nature, the
Court should refrain from interference, as the discretion to act lies
with the State authorities based on the facts and circumstances of
each individual case.
Accordingly, it was prayed that the writ petition is devoid of
merit and deserves to be dismissed.
5. In response, learned counsel for the petitioner submitted in
rejoinder that the inquiry initiated under the Act of 1994 cannot
be said to have merged with the present proceedings. He argued
that if the respondents so desire, they are free to continue with
the earlier inquiry under the 1994 Act. Relying on Rule 22 of the
Rules of 1996, he contended that the prescribed procedure under
the said Rule must be followed, and under no circumstances can
the respondents invoke Section 39(1) of the Act of 2009 to
proceed against the petitioner.
6. Heard learned counsel for the parties and perused the
material available on record.
7. Before examining the matter on merits, it would be
appropriate to re-look into the provisions, which are germane for
deciding the present controversy:-
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (12 of 28) [CW-12122/2025]
Act of 1994
“2. Definition.- (1) In this Act, unless the context otherwise
requires-
… … … …
(xiii) “Member” means a member of a Panchayati Raj
Institution and includes a Sarpanch;”
“38. Removal and Suspension.- (1) The State Government may,
by order in writing and after giving him and opportunity of being
heard and making such enquiry as may be deemed necessary,
remove from office any member including a Chairperson or a
Deputy Chairperson of a Panchayati Raj Institution, who-
(a) refuses to act or becomes incapable of acting as such; or
(b)is guilty of misconduct in the discharge of duties or any
disgraceful conduct :
Provided that any enquiry under this sub-section may, even after
the expiry of the term of the Panchayati Raj Institution
concerned be initiated or, if already initiated before such expiry,
be continued thereafter and in any such case, the State
Government shall, by order in writing, record its findings on the
charges levelled.
(2) The Chairperson or the Deputy Chairperson removed under
Sub-sec. (1) may at the discretion of the State Government also
be removed from the membership, of any of the Panchayati Raj
Institution concerned.
(3) The member or the Chairperson or the Deputy Chairperson
removed under Sub-sec.(1) or against whom finding have been
recorded under the proviso to that sub-sec, shall not be eligible
for being chosen under this Act for a period of five years from
the date of his removal or, as the case may be, the date on which
such findings are recorded.
(4) The State Government may suspended any member including
a Chairperson or a Deputy Chairperson of a Panchayati Raj
Institution against whom an enquiry has been initiated under
Sub-sec. (1) or against whom any criminal proceedings in regard
to an offense involving moral turpitude is pending trial in a
Court of law and such person shall stand debarred from taking
part in any act or proceeding of the Panchayati Raj Institution
concerned while being under such suspension :
Provided that the State Government may also suspend any
Panch on the recommendation of the Ward Sabha or a Sarpanch
on the recommendation of the Gram Sabha, but the State
Government shall do so only when a resolution to that effect
passed by a Ward Sabha, or a Gram Sabha, as the case may be,
is referred by the State Government to the Collector for(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (13 of 28) [CW-12122/2025]convening a special meeting of the Ward Sabha or the Gram
Sabha, as the case may be, for finally ascertaining the wished of
the members and the members present in the meeting so
convened by the Collector and presided over by his nominee,
reaffirm the resolution seeking suspension of the Panch or the
Sarpanch, as the case may be, by a majority of two-third of the
members present and voting :
Providing further that no resolution seeking suspension of the
Panch or Sarpanch shall be moved or passed before the
completion of a tenure of two years by a Panch or a Sarpanch,
as the case may be.
(5) The decision of the State Government on any matter arising
under this section shall,subject to any order made under Sec. 97,
be final and shall not be liable to be questioned in any Court of
law.”
Rules of 1996
“22. Procedure of enquiry.
(1)Before taking any action under Sub-Section (1) of Section 38,
where on its own motion or upon any complaint the State
Government may ask the Chief Executive Officer or any other
officer to get a preliminary enquiry done and to send his report
to the State Government within one month.
(2)If, upon consideration of the report received as aforesaid or
otherwise, the State Government is of the opinion that action
under Sub-Section (1) of Section 38 is necessary, the State
Government shall frame definite charges and shall communicate
them in writing to the Chairperson, Deputy Chairperson or
Member of the Panchayati Raj Institution together with such
details as may be deemed necessary. He shall be required to
submit a written statement within one month admitting or
denying the allegations, giving his defence, if any and whether
he desires to be heard in person.
(3)State Government may after expiry of prescribed period and
considering such written statement, appointment an Enquiry
Officer and also nominate any person to present the case before
Enquiry Officer on behalf of the State.
(4)Enquiry Officer shall consider such documentary evidence
and take such oral evidence as may be relevant or material in
regard to the charges. Opportunity of cross examination of
witness shall be provided to the opposite side.
(5)Enquiry Officer shall prepare a report on conclusion of
enquiry, recording his findings on every charge as proved or not
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (14 of 28) [CW-12122/2025]
proved or partly proved along with the reasons therefore, and
submit it to the State Government for final decision.
(6)The provisions of the Rajasthan Disciplinary Proceedings
(Summoning of witnesses and production of documents) Act,
1959 (Rajasthan Act No. 28 of 1959) and the rules made
thereunder shall also apply mutatis mutandis to enquiries being
conducted against the Chairperson, the Deputy Chairperson or
Member of Panchayati Raj Institution as the case may be, under
these rules.
(7)State Government shall consider the findings of enquiring
Officer and after giving him opportunity of hearing, may either
exonerate, or remove such Chairperson, Deputy Chairperson or
Member from the Office or pass appropriate orders. In case of
removal, it shall also be published in official gazetted:
Provided that findings shall be recorded against them if term of
election of such Panchayati Raj Institution has already expired.”
Act of 2009
“2. Definitions. – In this Act, unless the context otherwise
requires, –
… … … …
(xxxvi) “member” means any person who is lawfully a member
of a Municipality and includes, in case of a Municipal
Corporation, a corporator, in case of a Municipal Council, a
councillor and in case of a Municipal Board, a member;”
“3. Delimitation of Municipalities. –
(1) The State Government may, by notification published in the
Official Gazette, declare any local area not included within the
limits of a Municipality to be a Municipality, or include any such
area in a Municipality, or exclude any local area from a
Municipality, or otherwise alter the limits of any Municipality
and when
(a) any local area is declared as, or included in, a
Municipality, or
(b) any local area is excluded from a Municipality, or
(c) the limits of a Municipality are otherwise altered, by
amalgamation of one Municipality into another or by
splitting up a Municipality into two or more Municipalities,
or
(d) any local area ceases to be a Municipality, the State
Government may,notwithstanding anything contained in this
Act or any other law for the time being in force, by an order
published in the Official Gazette provide,-
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (15 of 28) [CW-12122/2025]
(i) in a case falling under clause (a), that the election of
the members for the area or the additional area shall be
held within a period of six months from the appointed day;
(ii) in a case falling under clause (b), that the members
who in the opinion of the
State Government represent the area excluded from the
Municipality shall be removed;
(iii) in a case falling under clause (c), that until the term of
the Municipality in which another Municipality is
amalgamated expires under this Act, the
Chairperson,Vice-Chairperson and members of such
another Municipality shall be deemed to be the members
of the Municipality in which such another Municipality is
amalgamated and where a Municipality is split into two or
more Municipalities,that the members representing the
area included in the newly constituted Municipality shall
be deemed to be the members of such new Municipality
and such new Municipality shall continue, unless
dissolved sooner, until original Municipality would have
continued;
(iv) in a case falling under clause (d), that the
Municipality shall be dissolved.
Explanation. – In this sub-Section, “appointed day” means the
day from which a change referred to in any of the clauses (a) to
(d) takes effect.
… … … …
(7) When any local area is included in a Municipality, all rules
and bye-laws made, orders, direction, notifications and notices
issued and powers conferred and in force throughout such
Municipality at the time when the said area is so included, shall
apply thereto, unless the State Government otherwise directs,
from the date of such inclusion.
(8) When an area comprised in a village is specified as, or when
any area is excluded from the village and included in, a
municipal area, then with effect from the date on which such
area is so specified or is so included, the following consequences
shall ensue, namely: –
… … … …
(c) until elections are held under sub-Section (1) or the term
of the Municipality expires under this Act, whichever is
earlier, the Sarpanch, Up-Sarpanch and the panch or
panchas representing the area of the village so included in, or
declared as a Municipality shall be deemed to be the
additional members of the Municipality in which such area of
the village is included or the Chairperson, Vice-Chairperson
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (16 of 28) [CW-12122/2025]
and the members respectively of the Municipality declared for
such area, as the case may be;
(d) the whole of the assets vesting in, and of the liabilities
subsisting against, the panchayat so declared to be a
Municipality or in case where only a part or whole of a
village is so included in a Municipality, such portion of the
said assets and liabilities as the State Government may
direct, shall devolve upon the Municipality declared for such
area or upon the Municipality in which such area of the
village is so included;
… … … …
(f) any such area shall cease to be subject to all rules,
notifications, orders and bye-laws made under the Rajasthan
Panchayati Raj Act, 1994 (Act No.13 of 1994).
… … … …
(10) Save as otherwise provided in this Section its provisions
shall have effectnotwithstanding anything contained in this Act
or in the Rajasthan Panchayati Raj Act, 1994 (Act No.13 of
1994) or any other law for the time being in force.”
“39. Removal of member. – (1) The State Government may,
subject to the provisions of sub-Sections (3) and (4), remove a
member of a Municipality on any of the following grounds,
namely: –
(a) that he has absented himself for more than three
consecutive general meetings,without leave of the
Municipality:
Provided that the period during which such member was a
jail as an under trial prisoner or as a detenue or as a
political prisoner shall not be taken into account,
(b) that he has failed to comply with the provisions of Section
37,
(c) that after his election he has incurred any of the
disqualification mentioned in Section 14 or Section 24 or has
ceased to fulfil the requirements of Section 21,
(d) that he has
(i) deliberately neglected or avoided performance of his
duties as a member, or
(ii) been guilty of misconduct in the discharge of his
duties, or
(iii) been guilty of any disgraceful conduct, or
(iv) become incapable of performing his duties as a
member, or(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (17 of 28) [CW-12122/2025]
(v) been disqualified for being chosen as member under
the provisions of this Act, or
(vi) otherwise abused in any manner his position as such
member:
Provided that an order of removal shall be passed by the
State Government after such inquiry as it considers
necessary to make either itself or through such existing or
retired officer not below the rank of State level services or
authority as it may direct and after the member concerned
has been afforded an opportunity of explanation.
(2) The power conferred by sub-Section (1) may be exercised by
the State Government of its own motion or upon the receipt of a
report from the Municipality in that behalf or upon the facts
otherwise coming to the knowledge of the State Government:
Provided that, until a member is removed from office by an order
of the State Government under this Section, he shall not vacate
his office and shall, subject to the provisions contained in sub-
Section (6), continue to act as, and exercise all the powers and
perform all the duties of, a member and shall as such be entitled
to all the rights and be subject to all the liabilities, of a member
under this Act.
(3) Notwithstanding anything contained in sub-Section (1) where
it is proposed to remove a member on any of the grounds
specified in clause (c) or clause (d) of sub-Section (1), as a result
of the inquiry referred to in the proviso to that sub-Section and
after hearing the explanation of the member concerned, the State
Government shall draw up a statement setting out distinctly the
charge against the member and shall send the same for enquiry
and findings by Judicial Officer of the rank of a District Judge to
be appointed by the State Government for the purpose.(4) The Judicial Officer so appointed shall proceed to inquire
into the charge, hear the member concerned, if he makes
appearance, record his findings on each matter embodied in the
statement as well as on every other matter he considers relevant
to the charge and send the record along with such findings to the
State Government, which shall thereupon either order for re-
inquiry, for reasons to be recorded in writing, or pass final order.
(5) While hearing an inquiry under sub-Section (4), the Judicial
Officer shall observe such rules of procedure as may be
prescribed by the State Government and shall have the same
powers as are vested in a civil Court under the Code of Civil
Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit
in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person
and examining him on oath;
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (18 of 28) [CW-12122/2025]
(b) requiring the discovery and production of any such
document or any other material
as may be predicable in evidence;
(c) requisitioning any public record; and
(d) any other matter which may be prescribed.
(6) Notwithstanding the foregoing provisions of this Section, the
State Government may place under suspension a member
against whom proceedings have been commenced under this
Section until the conclusion of the inquiry and the passing of the
final order and the member so suspended shall not be entitled to
take part in any proceedings of the Municipality or otherwise
perform the duties of a member thereof.
(7) Every final order of the State Government passed under this
Section shall be published in the Official Gazette and shall be
final and no such order shall be liable to be called in question in
any Court.”
“40. Inquiry into certain allegations after expiry of term of
office. – (1) In respect of any allegations of the nature specified
in clause (d) of sub-Section (1) of Section 39 against any
member or the Chairperson or Vice-Chairperson of a
Municipality, the inquiry referred to in the proviso to the said
sub-Section, and in sub-Sections (3) and (4) of that Section may
be initiated against such member, Chairperson or Vice-
Chairperson even after the expiry of the term of office of that
Municipality or after he has ceased to be such member or
Chairperson or Vice-Chairperson or, if already initiated before
such expiry may be continued thereafter and in each such case
except in the cases covered under sub-Section (3), the State
Government shall, by order in writing, only record its findings in
conformity with those of the Judicial Officer recorded under sub-
Section (4) of Section 39.
(2) The provisions of sub-Section (6) of Section 39 shall apply to
the findings of the State Government so recorded.(3) In case of a member, Chairperson or Vice-Chairperson, who
is reelected for the new term of the Municipality and against
whom any inquiry referred to in sub-Section (1) is initiated or, if
it has already been initiated, is continued, in respect of his
previous term in the Municipality, the provisions of Section 39
shall mutatis mutandis apply.”
“41. Disability of members removed under Section 39. – A
member who has been removed under clause (d) of sub-Section
(1) of Section 39 or against whom adverse findings have been
recorded under Section 40 shall not be eligible for re-election for
a period of six years from the date of the order of his removal or
of recording adverse findings as the case may be.”(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (19 of 28) [CW-12122/2025]
8. Based on the arguments advanced by both the counsels, the
issues which require consideration of this Court, are as under:-
(i) Whether the alleged act against the petitioner amounts to
misconduct warranting the initiation of proceedings under Section
38 of the Act of 1994 or Section 39 of the Act of 2009?
(ii) Whether the decision of the State Government to initiate an
inquiry under Section 39(1) of the Act of 2009 is legally
sustainable in respect of the misconduct allegedly committed by
the petitioner during her tenure as Sarpanch, especially after the
Gram Panchayat, Napasar was declared a Municipal Board by the
notification dated 07.11.2024?
(iii) Whether the decision to suspend the petitioner while
invoking powers under Section 39(6) of the Act of 2009 is justified
in the given circumstances, more particularly looking to the term
of the present Municipal Board, which is to expire in October,
2025?
Issue No.(i)
9. Learned counsel appearing on behalf of the petitioner has
questioned the initiation of inquiry against the petitioner under
Section 39 of the Act of 2009 on the ground that the charge
framed against the petitioner does not constitute misconduct so as
to permit the authorities to proceed under Section 39 of the Act of
2009.
9.1 The allegation levelled against the petitioner is in relation to
appointment of staff members in the Gram Panchayat, Napasar
de-hors the rules. Section 78 of the Act of 1994 provides the
procedure for appointment of Secretary and other staff. For ready
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (20 of 28) [CW-12122/2025]
reference, Section 78 (1)(b) of the Act of 1994 is reproduced as
under:-
“78. Appointment of Secretary [***] [Deleted by Section 46, of
the Rajasthan Panchayati Raj (Amendment) Act, 2000
published in Rajasthan Gazette Extraordinary Part IV-A dated
3.5.2000 with effect from 6.1.2000.] and other staff.
(1) Subject to the provisions of this Act and rules made
thereunder –
(a) xxx xxx
(b) every Panchayat may with the previous approval of the
Panchayat Samiti, appoint such other staff as may be
necessary for carrying out the duties imposed on it by or under
this Act on such conditions of service of as may be prescribed.”
9.2 It is evident from the above provisions that a Panchayat may
appoint staff members to perform necessary duties imposed under
the Act, but such appointments require prior approval from the
Panchayat Samiti. Although Section 78(1)(b) of the Act of 1994
uses the term “may,” but this cannot be construed as merely
directory. A plain reading shows that the word “may” was intended
to grant Gram Panchayats the authority to appoint staff when
necessary, but it does not absolve them from obtaining prior
approval. Thus, the provision clearly mandates that any
appointment of staff by the Gram Panchayat must be preceded by
approval from the Panchayat Samiti.
9.3 In the present case, it is an undisputed fact that the
petitioner, while serving as Sarpanch, did not obtain the requisite
prior approval from the Panchayat Samiti before appointing the
three individuals who are the subject of this dispute. It is also
undisputed that no post-facto approval was ever granted by the
Panchayat Samiti for these appointments. Whether the
engagement of these three persons was necessary to discharge
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (21 of 28) [CW-12122/2025]
the duties at that time, or whether the requisite resolution or
decision under the Act or Rules was passed and the act of the
petitioner whether constitutes misconduct, are disputed questions
of fact, which require proper inquiry. Furthermore, even if prior
approval was not obtained before engaging the staff persons,
despite it being mandatory, the question whether such
engagement without approval constitutes misconduct or mere
irregularity, has to be decided in a regular inquiry. Therefore, the
petitioner’s submission that the alleged act does not constitute
misconduct cannot be adjudicated by this Court in writ jurisdiction
under Article 226 of the Constitution of India.
9.4 It is further noted that the petitioner had earlier challenged
the initiation of inquiry under Section 38 of the Act of 1994 by
filing S.B. Civil Writ Petition No. 7192/2024, but this Court
declined to grant any interim relief.
9.5 In view of the above, this Court does not deem it appropriate
to adjudicate on factual aspects under writ jurisdiction. Whether
the acts of petitioner alleged as misconduct would come within the
purview of ‘misconduct’ or not so as to initiate inquiry either under
the Act of 1994 or the Act of 2009, can be decided only after
factual inquiry being made by the concerned authority.
Issue No.(ii)
10. This issue pertains to the competence of the respondent
authorities to proceed against the petitioner under Section 39(1)
of the Act of 2009. A comparative reading of Section 38 of the Act
of 1994 and Section 40 of the Act of 2009 clearly indicates that an
inquiry initiated under either provision may continue even after
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (22 of 28) [CW-12122/2025]
the expiry of the term of the elected member against whom the
misconduct is alleged. What emerges from a plain reading of both
provisions is that a person accused of misconduct cannot escape
his/her accountability merely because his/her term has ended.
10.1 In the present case, before the petitioner’s term as Sarpanch
concluded, Gram Panchayat Napasar was declared a Municipal
Board. When read in conjunction with Section 3(8)(f) of the Act of
2009, it becomes evident that once an area is declared as a
municipality, it ceases to be governed by the rules, notifications,
orders, and bye-laws made under the Act of 1994. In other words,
from the date of such declaration, the provisions of the Act of
1994 no longer apply to the local area concerned.
10.2 Therefore, the inquiry originally initiated under Section 38 of
the Act of 1994 no longer survives. The operation of Section 3(8)
(f) of the Act of 2009 necessitates a suitable mechanism to ensure
that any pending inquiry, such as the one in the present case,
reaches its logical conclusion. If the argument of the petitioner
that proceedings cannot be continued under Section 39 of the Act
of 2009 is accepted, it would leave the State Government with no
legal recourse to conclude the inquiry. This would result in an
untenable situation where neither the Act of 1994 nor the Act of
2009 could be invoked, effectively allowing the misconduct to go
unaddressed.
10.3 Section 39(1) of the Act of 2009 permits the State
Government to remove a Member after holding inquiry on
allegation of misconduct in discharge of his/her duties. The
petitioner was earlier Member under the Act of 1994 and later
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (23 of 28) [CW-12122/2025]
became Member under the Act of 2009 after the Gram Panchayat,
Napasar being declared as Municipal Board, Napasar.
Once petitioner became Member under the Act of 2009, she
shall be governed by the provisions of the Act of 2009 and any act
of misconduct or any other disgraceful conduct would attract the
action under Section 39(1) of the Act of 2009. After delimitation of
Municipality under Section 3 of the Act of 2009, the consequences
as provided therein would follow. After declaration of local area to
be Municipality, all rules/provisions of Act of 1994 would cease and
the local area so declared would be governed by the Act of 2009.
Moreso, in view of Section 3 of the Act of 2009, the liability/
assets of local area would also come within the purview of the Act
of 2009. Therefore, the liability, such as loss caused to the Gram
Panchayat funds and its recovery is to be effected while invoking
the provisions of the Act of 2009 only and that being so, the State
authorities can proceed under Section 39(1) of the Act of 2009
against the previous misconduct (under the Act of 1994 in this
case) and the misconduct of a Member would mean to include the
existing/past Members, therefore, the respondent-authorities have
rightly proceeded under the provisions of the Act of 2009.
10.4 This issue may also be viewed from another perspective.
While the petitioner has raised a plea of double jeopardy, such
contention is entirely misconceived. Given that the Act of 1994 no
longer applies due to the operation of Section 3(8)(f) of the Act of
2009, the authorities cannot proceed under Section 38 of the Act
of 1994. As such, there is no question of parallel proceedings or
double jeopardy.
(Downloaded on 07/08/2025 at 09:13:43 PM)
[2025:RJ-JD:33910] (24 of 28) [CW-12122/2025]
10.5 Further, a perusal of Section 38 of the Act of 1994 and
Section 39 of the Act of 2009 and so also the charges framed
against the petitioner, it is revealed that the provisions are by and
large pari-materia, so also the charge framed against the
petitioner under Section 38 of the Act of 1994 and Section 39 of
the Act of 2009 are also identical and, therefore, no prejudice
would be caused to the petitioner if the judicial inquiry against the
petitioner is allowed to be taken to its logical end.
10.6 In light of the above, this Court finds no merit in the
argument that the initiation of inquiry under Section 39 of the Act
of 2009 is without jurisdiction and the respondents-authorities are
very much competent to proceed against the petitioner.
Issue No.(iii)
11. With regard to the issue of delayed suspension of the
petitioner, it is pertinent to note that the alleged misconduct,
namely, the engagement of three individuals on an urgent and
temporary basis in October 2020, came to the knowledge of the
Panchayat Samiti in February 2021. Following this, an inquiry
report was prepared in January 2022 based on complaints
regarding the said appointments. A second report was submitted
in November 2022, and during the same month, the Divisional
Commissioner, Bikaner, appointed the Chief Executive Officer, Zila
Parishad, Bikaner, to conduct an inquiry under Rule 22 of the
Rules of 1996.
11.1 Subsequently, in February 2024, a decision was taken to
initiate proceedings under Section 38 of the Act of 1994. A
communication dated 18.09.2024 was issued by the Divisional
(Downloaded on 07/08/2025 at 09:13:44 PM)
[2025:RJ-JD:33910] (25 of 28) [CW-12122/2025]
Commissioner to the petitioner, enclosing the charge-sheet under
the said provision. These facts clearly demonstrate that the
Panchayati Raj Department was fully aware of the appointments in
question and, based on two inquiry reports, decided to proceed
with formal inquiry under Section 38 of the Act of 1994. However,
no decision to place the petitioner under suspension was taken at
that stage, perhaps indicating that the nature of the charge was
not considered sufficiently grave or that there was a lack of
material justifying such action.
11.2 Given this context, there appears to be no valid reason for
invoking the power of suspension while initiating a subsequent
inquiry under Section 39(1) of the Act of 2009, especially when
the charge remained unchanged. When a specific query was raised
by the Court to the learned counsel for the respondents regarding
the existence of any additional material justifying the petitioner’s
suspension in the second inquiry, no satisfactory response was
provided. Furthermore, a perusal of the respondents’ reply reveals
no indication that any new evidence had emerged to warrant
suspension at that stage.
11.3 The learned Senior Counsel for the respondents relied upon a
judgment of a Coordinate Bench of this Court in Nirmal Kumar
Pitaliya (supra), to contend that the State Government is
empowered to suspend a Member or Chairperson of a Municipality
as soon as an inquiry is initiated under Section 39 of the Act of
2009. While the legal proposition is not in dispute, what is
relevant is whether such power has been exercised reasonably
and judiciously. If the Department, despite having sufficient time
(Downloaded on 07/08/2025 at 09:13:44 PM)
[2025:RJ-JD:33910] (26 of 28) [CW-12122/2025]
and material, chose not to suspend the petitioner during the initial
inquiry under Section 38 of the Act of 1994, possibly due to the
limited seriousness of the charge, there appears to be no
justification for invoking suspension in the subsequent inquiry
based on the same charge.
11.4 The respondents also referred to the decision in Sita Devi
Gurjar (supra) arguing that the writ court should refrain from
interfering in matters concerning suspension orders. However, this
Court finds no merit in that argument. The observations made in
the case of Sita Devi Gurjar (supra) were specific to the facts of
that case, and nothing in the judgment suggests a binding
principle that would restrict judicial scrutiny in the present
circumstances.
11.5 On the other hand, the learned counsel for the petitioner has
relied on another decision of a Coordinate Bench of this Court in
Meena Vyas (supra), wherein it was held that once a decision is
taken to refer an inquiry to a Judicial Officer, the possibility of
exerting influence or tampering with records becomes negligible.
11.6 Applying the above reasoning to the present case, it is
evident that the inquiry has already been entrusted to a Judicial
Officer. Once such referral is made, the relevant records come
under the custody and supervision of the Judicial Officer, thereby
significantly reducing, if not eliminating, the risk of any
interference or tampering by the petitioner. As such, the
respondents’ justification for suspension on this ground appears
unconvincing.
(Downloaded on 07/08/2025 at 09:13:44 PM)
[2025:RJ-JD:33910] (27 of 28) [CW-12122/2025]
11.7 In view of the foregoing, this Court is of the considered
opinion that the decision to suspend the petitioner is not justified
in the facts and circumstances of the present case.
11.8 Another issue with regard to placing the petitioner under
suspension after more than 3 years is concerned, since this Court
has already observed that the suspension itself is unjustified, this
Court does not propose to decide this issue at this stage.
12. In view of the discussion made above, this Court finds that
the decision of the State Government to initiate inquiry under
Section 39(1) of the Act of 2009 requires no interference. The
decision to inquire for the alleged misconduct when petitioner was
Sarpanch, is also within the power of the State Government to
proceed under Section 39 of the Act of 2009. Since there is no
question of double jeopardy or two parallel proceedings, the State
Government would be at liberty proceed against the petitioner
under Section 39(1) of the Act of 2009 and decide the same in
accordance with law.
12.1 As far as suspension of the petitioner, based on the charge
levelled against her, is concerned, the same cannot be justified,
more particularly in view of the present facts and circumstances of
the case.
13. Accordingly, the writ petition is allowed in part. The
impugned order dated 19.06.2025 and so far as suspension of the
petitioner is concerned, the same is quashed and set aside and
the suspension of the petitioner is ordered to be revoked and she
be permitted to join as Chairperson of the concerned Municipal
Board forthwith. However, the respondents-authorities are at
(Downloaded on 07/08/2025 at 09:13:44 PM)
[2025:RJ-JD:33910] (28 of 28) [CW-12122/2025]
liberty to proceed against the petitioner under Section 39(1) of the
Act of 2009 and conclude the same expeditiously within a period
of three months from the date of receipt of certified copy of this
order.
14.1 Needless to observe that the petitioner shall fully cooperate
in the inquiry and would not seek unnecessary adjournments. If
the petitioner does not participate in the inquiry, then the
respondents shall be at liberty to seek revival of the present writ
petition.
15. Pending application (s), if any, shall also stand disposed of.
(SUNIL BENIWAL),J
skm/-
(Downloaded on 07/08/2025 at 09:13:44 PM)
Powered by TCPDF (www.tcpdf.org)