RABINDRA KUMAR NAYAK versus COLLECTOR, MAYURBHANJ, ORISSA AND ORS.

RABINDRA KUMAR NAYAK versus COLLECTOR, MAYURBHANJ, ORISSA AND ORS.

Appellant was holding an office of profit as Assistant Public Prosecutor under the Government, fulfilling all statutory requirements for disqualification under Section 45(1)(i); appointment's provisional nature is immaterial as permanency attaches to the office not to the term. Consequently, appellant was disqualified to be elected and to continue as member or Chairman of the Panchayat Samiti, and application under Section 45-B was maintainable.

Parties
Appellant: Rabindra Kumar Nayak; Respondents: Collector, Mayurbhanj, Orissa and Ors.
Jurisdiction
India
Judgment Date
19 February 1999
Procedural Posture
Civil Appeal / Appeal by Special Leave From Judgment of Orissa High Court
Outcome
Appeal dismissed
Legal Topics
Disqualification of Elected Members, Office of Profit, Election Petition Maintainability
Local Government Law Election Law Service Law Disqualification of Elected Members Office of Profit Election Petition Maintainability

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Parties

Rabindra Kumar Nayak

Appellant

Collector, Mayurbhanj, Orissa and Ors.

Respondents

Procedural Posture

Civil Appeal / Appeal by Special Leave From Judgment of Orissa High Court

Legal Issues

  1. 1 Whether the appellant, as Assistant Public Prosecutor, was holding 'office of profit' under the State Government and thereby disqualified under the Orissa Panchayat Samiti Act, 1959
  2. 2 Whether application under Section 45-B is maintainable after the election or whether remedy is only through an election petition under Section 44-A

Ratio Decidendi

Appellant was holding an office of profit as Assistant Public Prosecutor under the Government, fulfilling all statutory requirements for disqualification under Section 45(1)(i); appointment's provisional nature is immaterial as permanency attaches to the office not to the term. Consequently, appellant was disqualified to be elected and to continue as member or Chairman of the Panchayat Samiti, and application under Section 45-B was maintainable.

Court Disposition

Appeal dismissed

Orders

  • Order of Orissa High Court confirmed
  • Appellant ceases to be member and Chairman of Panchayat Samiti as per Section 45(2)(i)