1. Rule. Rule made returnable forthwith. Considering the nature of controversy and apprehension of the petitioner to face the same objection of disqualification in the ensuing election, the petition is taken up for final hearing with the consent of learned counsel for the parties.

2. SUBJECT–MATTER :-

Whether the post of ‘Gram Rojgar Sevak’ under the Maharashtra Employment Guarantee Act, 1977 r/w. Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and Maharashtra Employment Guarantee Scheme reinforced by the Government of Maharashtra fall within the definition of an office of profit or a salaried position in the office of a Panchayat AND is hit by disqualification under Section 14(1)(f) or (g) of the Maharashtra Village Panchayat Act, 1958 (“the Act of 1958” for brevity) is the point for consideration in this Writ Petition.

3. FACTS :-

                   3.1 The facts of the case are not in dispute. The petitioner is an elected Member of Village Panchayat, Devegaon, Tq. Pathri, Dist. Parbhani. He used to work as a Gram Rojgar Sevak under the Government Resolution dated 02.05.2011.

                   3.2 The respondent no.3 filed a complaint/dispute against the petitioner before the District Collector, Parbhani, seeking petitioner’s disqualification under Section 14(1)(f) and (g) of the Act. The respondent no.4 is the one who is conducting functions of the Grampanchayat and was also a party respondent no.1 in the dispute.

                   3.3 It was the contention of the disputant/respondent no.3 that admittedly, the petitioner was working as a Gram Rojgar Sevak. That, it is a post of profit and interest. The petitioner was getting remuneration from the said post and had interest in the Grampanchayat. As such, the respondent no.3 contended that the petitioner was to be held disqualified to continue as a Member under Section 14(1)(f)(g) of the Act of 1958.

                   3.4 The petitioner defended the complaint and denied that he was disqualified under the given provisions of the Act of 1958. It was his reply that he was working as a Gram Rojgar Sevak in view of the Government Resolution dated 02.05.2011. He would submit that in terms of the Government Resolution dated 02.05.2011, the petitioner was neither employed by the Grampanchayat nor was holding any salaried office or a position of profit in the gift or disposal of the Panchayat while holding his position.

                   3.5 The Petitioner also submitted that in the sense he is not directly or indirectly, by himself or his partner, has any share or interest in the work done by the order of the Panchayat or in any contract with, by or on behalf of, or employment with or under, the Panchayat. As such, the petitioner prayed to dismiss the complaint of disqualification lodged by the Respondent No.3.

                   3.6 The Authority to decide disqualification of an elected member of Village Panchayat rests with the District Collector u/s 14 of the Act of 1958. The respondent no.2 – District Collector heard the parties to the dispute. At the conclusion of the hearing,the Collector agreed with the objections raised by the respondent no.3. Consequently,vide order dated 03.01.2024, the respondent no.2 held the petitioner disqualified to continue on the post of Member of the Grampanchayat under Section 4(1)(f) (g) of the Act of 1958.

                   3.7 The petitioner challenged the disqualification order in an appeal under Section 16(2) of the Act of 1958 before the respondent no.1. However, vide order dated 27.06.2024 the respondent no.1 concurred with the findings rendered by the respondent no.3. Hence, the petitioner has challenged both orders referred supra in this Writ Petition.

4. SUBMISSIONS:-

                   4.1. Mr. Mahesh Kale, learned counsel for the petitioner has taken me to the Government Resolution dated 02.05.2011. He would submit that from the plain reading of the clause no.1 of the Government Resolution, it is clear that the petitioner was not a salaried person nor was employee of the State Government/Zilla Parishad/Panchayat Samiti and also was not regular salaried employee of the Grampanchayat.

                   4.2 My attention is then invited by Mr.Kale, learned counsel to clause no.2 of the Government Resolution dated 02.05.2011. Pointing out to the contents of paragraph 2, he submits that the petitioner is not appointed by the Village Panchayat. It is the Gramsabha which has conferred the work of ‘Gram Rojgar Sevak’ on the petitioner.

                   4.3 Mr.Kale further gave emphasis on clause no.7 of the Government Resolution of 2011. He would submit that the remuneration/honorarium payable to the petitioner was to be credited out of the 6% administrative expenditure. He would submit that as such it is not the Village Panchayat that pays any remuneration/honorarium to the petitioner out of the Village Panchayat’s account. Thus, applicability of Section 14 (1) (f) of the Act of 1958 is disputed by the Petitioner.

                   4.4 As regards to the disqualification u/s 14(1)(g) of the Act of 1958 is concerned, Mr. Mahesh Kale submits that the same is not applicable even remotely to the petitioner’s case. He would submit that while clause (f) refers to the position of the Village Panchayat’s Member to hold a salary office or a place of profit, while holding such office; clause (g) of Section 14(1) of the Act of 1958 refers to any share or interest of such Member in any work of the Panchayat.

                   4.5 Learned counsel for the Petitioner relies upon the decisions in the cases of (i) Rukhminbai Badrinath Shedage Vs. State of Maharashtra, 2020 STPL 45 Bombay; (ii) Divya Prakash Vs. Kultar Chand Rana and anr., 1974 STPl 3044 SC; (iii) Shivamurthy Swami Inamdar Vs. Chanbasangouda Hanumanthagouda Patil, 1970 STPL 411 SC; and (iv) Shibu Soren Vs. Dayanand Sahay, 2001 STPL 9142 SC.

                   Thus, Mr.Kale, learned counsel for the petitioner prays to allow the petition and set aside the orders of disqualification, passed by respondent no.2 and confirmed by respondent no.1.

                   4.6 Mr.Pawade, learned counsel for respondent no.3 – disputant would support the findings recorded by respondent nos.2 and respondent no.1. He would submit that the petitioner has not countered that he was working as Gram Rojgar Sevak. That, respondent no.3 - Collector in the impugned order has rightly observed that the position held by the petitioner, although may not be a salaried post but happened to be a place of profit. He would further submit that even, the respondent no.1 has concurred such findings and hence, the Writ Petition may be dismissed.

5. Discussion and consideration:-

                   With the able assistance of learned counsel for the respective parties, I have gone through the Writ Petition compilation, the documents annexed to it and the entire record of the Writ Petition. The Government Resolution dated 02-05-2011 is crucial to arrive at conclusion in the dispute in hand in the light of the disqualification provision u/s 14 (1) (f) (g) of the Act of 1958 are concerned.

                   5.1 For the sake of convenience, Section 14(1)(f) and (g) of the Act of 1958 are reproduced as follows:-

                   14.(1) No person shall be a member of a panchayat, or continue as such, who—

                   (a) …..

                   (b) …..

                   (c) …..

                   (d) …..

                   (e) …..

                   (f) holds any salaried office or place of profit in the gift or disposal of the Panchayat, while holding such office or place ;

                   or

                   (g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat ;

                   5.2. From the recitals of the clauses (f) and (g) of the Section 14(1) of the Act of 1958, disqualification u/s 14(1) (f) would depend upon the nature of work and the service conditions of the elected candidate who is alleged of the said disqualification. Similarly, the disqualification u/s 14(1) (g) of the Act would depend upon the factual aspect of the every case and the evidence to that effect.

                   Accordingly, firstly the Petitioner’s service conditions need to be tested to see whether his job is hit by Section 14 (1)(f) of the Act. This clause refers to ‘salaried post’ and ‘office of profit’. First, I shall deal on this aspect of the matter.

                   SALARIED POSITION

                   5.3 The Government of Maharashtra enacted the Maharashtra Employment Guarantee Act 1977 (‘Act of 1977’ for brevity) in conformity with Article 41 of the Indian Constitution. The object of the Act of 1977 was to make effective provision for securing the right to work by guaranteeing employment to every household whose adult members volunteer to do unskilled manual work in rural areas in the State of Maharashtra.

                   In the year 2006, the Central Government passed the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (‘MNREG Act’ for brevity). The preface to the MNREG Act provides that, to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto.

                   5.4 In view of Section 28 of the MNREG Act of 2005, the Government of Maharashtra in the year 2006 continued the Act of 1977 in conformity with the MNREGA Act 2005. In tune with the MNREGA Act of 2005, the Government of Maharashtra also enacted the Maharashtra Employment Guarantee Scheme for effective implementation of the object under the Acts of 1977 and the MNREG Act of 2005.

                   5.4.1 In terms of the provisions under the Act of 1977, three components i.e. the State, Gramsabha, and Gram Panchayat were determined with definite responsibility. It is the responsibility of the State to provide work to the adult on his/her demand within the village panchayat limit. Gramsabha is entrusted with the responsibility of organizing the work for the beneficiaries. Engaging the desirous adult on the approved work and to launch the actual work is the responsibility of the Gram Panchayat. The responsibility of record keeping is on the shoulders of the Sarpanch and the Gramsevak in the Village. Services of outsourced candidates are hired to assist the Gramsevak in his work and for updating the computer data. Such outsourced persons are named as Gram Rojgar Sevak.

                   5.5 The Act of 1977 comprised of entire mechanism to implement its object. The Government of Maharashtra issued guidelines from time to time as regards to implementation of the Act. Hiring services of helpers was thus provided. The helpers were named as Gram Rojgar Sevaks. The Government of Maharashtra issued a Government Resolution on 02-05-2011 thereby defining service conditions of the Gram Rojgar Sevaks in the State. This Government Resolution of 2011 compiled all earlier guidelines and instructions, and with an intent to streamline service norms pan State, provided the modified guidelines. The case in hand is governed by the Government Resolution dated 02-05-2011. The Government Resolution dated 02-05-2011 reads thus:-

                  

                  

                  

                  

                   5.6 From the recitals of the preface and clause No.1 to the Government Resolution dated 02-05-2011, it is crystal clear that the Gram Rojgar Sevak is not a permanent employee of Village Panchayat under the scheme of 2011 nor holds a salaried office of any type. It is abundantly clear that the petitioner’s work being Gram Rojgar Sevak, was part-time, of contractual nature on outsourced basis, and he was to be paid honorarium corresponding to the proportion of his work. It is also clear that the Petitioner was not a regular employee of State Government/Zilla Parishad/Panchayat Samiti or Grampanchayat. The preface of the Government Resolution of 2011 in fact states that the Gram Rojgar Sevak is appointed on outsourced basis.

                   5.7 For sake of convenience, clause no.1 of the Government Resolution dated 02.05.2011 is reproduced as under:-

                  

                   5.8 Clause no.2 of the Government Resolution dated 02.05.2011 also makes it clear that the petitioner cannot be said to have been appointed by the Grampanchayat. Gram Rojgar Sevak is appointed by the Gram Sabha, not by the Gram Panchayat, nor by the Zilla Parishad authorities or Panchayat Samiti authorities. Clause no.2 reads thus:-

                  

                   5.9 It is expressly provided in the Government Resolution of 2011 that it is the Gramsabha, not the Village Panchayat that hires the services of Gram Rojgar Sevak. Now, it would be needful to go through clause no. 7 of Government Resolution of 2011. The said clause clearly lays down that the payment to be given to the petitioner was to be credited out of 6% administrative expenses meant for the effective execution and implementation of Mahatma Gandhi Rashtriya Gramin Rojgar Hami Yojana. Clause 7 is reproduced as under:-

                  

                   5.10 Thus, its clear that the Gram Rojgar Sevak i.e. the Petitioner doesn’t get any salary from the Village Panchayat, nor the Petitioner holds a salaried office within the meaning of Section 14(1) (f) of the Act of 1958.

                   OFFICE OF PROFIT

                   Lets now see whether the subject-matter post i.e. Gram Rojgar Sevak can be termed as ‘office of profit/place of profit’ within the meaning of Section 14(1) (f) of the Act of 1958.

                   5.11 Disqualification of an elected member of a local body in the State of Maharashtra owing to holding an office of profit is floated from the Article 102 (1) (a) of the Indian Constitution which reads thus:

                   “102. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament— 1 [(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;”

                   Another constitutional provision u/a 191 (1) (a) speaks thus:

                   “191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State—1 [(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;]”

                   5.12 Disqualification of a democratically elected member in Indian democratic system has its deep roots in the “Separation of Power” theory adopted by the makers of the Indian Constitution. The whole object of imposing such constitutional disqualification is to avoid the conflicting interests of the democratically elected Members of Parliament and the Houses, with the executive functionary and the Institution.

                   5.13 The Local Body Acts in the State of Maharashtra derived the concept of disqualification of the elected members on the lines of the disqualifications imposed u/a 102 (1) (a) and 191 (1)(a) of the Constitution. Section 14(1) (f) and (g) of the Act of 1958 prescribes such disqualification (supra).

                   5.14 The term ‘office of profit/place of profit’ is not defined in the Act of 1958 in the State of Maharashtra. However, through the various judgments rendered by this Court as also by the Honorable Supreme Court, the interpretation is evolved that ‘office of profit or place of profit’ means a position that brings to the office-holder some financial gain, or advantage, or benefit.

                   5.15 The law evolved on the point of what is ‘office of profit’ would show that to check whether a candidate holds an office of profit/place of profit, is to test the source of appointment and the service conditions of such candidate. A number of factors determine whether the post in question is an office/place of profit or not i.e. (I) appointing authority – source of appointment, (ii) consideration against services i.e. remuneration and its source, (iii) the service conditions including the disciplinary authority etc.

                   5.16 As recorded supra, the Government Resolution of 2011 prescribes service conditions of the Gram Rojgar Sevak. It has descriptively observed above that Gram Rojgar Sevak is appointed by Gram Sabha, not by Village Panchayat or any other authority of the State Govt, Zilla Parishad or Panchayat Samiti. The services are contractual, occasional in nature and that too, on outsourced basis. The remuneration is in form of honorarium which has to be paid through the administrative expenses of the Project under the Scheme under the Act of 1977 and the Employment Guarantee Scheme. This clearly lays down that the Gram Rojgar Sevak does not hold office of profit within the meaning of Section 14(1) (f) of the Act of 1958.

                   5.17 As such, this Court hereby holds that the petitioner- the Gram Rojgar Sevak was “not holding any salaried office or place of profit in the gift or disposal of the Panchayat, while holding such office or place” within the meaning of Section 14 (1) (f) of the Act. The post of Gram Rojgar Sevak created under the Act of 1977 and regulated by the Government Resolution dated 02.05.2011 thus does not fall within the purview of Section 14(1) (f) of the Act of 1958 disqualifying an elected candidate on account of holding a salaried office or office of profit.

                   Section 14 (1) (g)

                   5.18 So far as the disqualification u/s 14(1) (g) of the Act of 1958 is concerned, Mr.Kale, learned counsel for the petitioner, in support of his arguments relies on a judgment of this Court in the case of Rukminibai (supra).

                   5.19 Learned counsel for the petitioner also places reliance on the judgments rendered by Hon’ble Supreme Court in the cases of Divya Prakash (supra), Shivamurthy Swami Inamdar (supra) and (iv) Shibu Soren (supra) Referring to these cases, Mr.Kale submits that the work of the petitioner as Gram Rojgar Sevak cannot be termed to be a work of profit/office of profit.

                   5.20 I have respectfully gone through the judgments rendered by the Hon’ble Supreme Court and passed by this court referred to herein above. It has been consistently held that the nature of work and the service conditions would determine whether a candidate is disqualified for holding a ‘office/place of profit’. In Rukminibai’s case (supra), this Court held that an elected candidate’s husband being a beneficiary of a scheme implemented in the village in one thing, but that itself doesn’t disqualify the elected woman as if she has derived some profit , share or interest in terms of Section 14 (1)(g) of the Act of 1958.

                   I have no reason to depart from the view expressed by the Honorable Supreme Court and this Court in the cited cases. In view of the nature of work of the petitioner and the mode of his honorarium, as per the Government Resolution of 2011, I find that the petitioner’s case is covered by the judgments cited by the learned counsel for the petitioner (supra).

                   5.21 Petitioner’s service conditions shown in the Government Resolution of 2011 clearly demonstrate that the Gram Rojgar Sevak has no directly or indirectly, by himself or his partner, any share or interest in any work done by order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat. As per the Scheme under the Act of 1977 and the Government Resolution of 2011, duties of the State Govt., Gram Sabha and the Village Panchayat are distinctly earmarked. As observed supra, State Govt.’s responsibility is to make available job on demand by an adult. Gram Sabha has to organize the work on which job is to be offered. Village Panchayat has to initiate the job on the work approved under the Scheme. Honorarium of the Gram Rojgar Sevak is to be paid out of the 6% fund reserved for administrative expenses. At no juncture in this set up mechanism, the Gram Rojgar Sevak has any role or an occasion to receive anyway any interest or share within the meaning of Section 14(1) (f) of the 1958 Act.

                   5.22 Even the learned Counsel for the respondent side could not place on record, except the admitted fact that the Petitioner was working as Gram Rojgar Sevak.

                   5.23 To sum up, I hold that the post of “Gram Rojgar Sevak” created under the implementation of the Maharashtra Employment Guarantee Act 1977 in conformity with the MNREGA Act 2005, and regulated by the Government Resolution dated 02.05.2011 does not form to be a salaried office or place of profit in the gift or disposal of the Panchayat within the meaning of Section 14(1)(f) of the Act. I also hold that the remuneration/honorarium earned by a Village Panchayat Member as Gramin Rojgar Sevak cannot be said to have any share or interest in any work done by the order of Panchayat or in any contract with, by or on behalf of, or employment with or under, the panchayat within the meaning of Section 14(1) (g) of the Act.

                   In other words, an elected member of a Village Panchayat who works as Gram Rojgar Sevak while on post, can not be disqualified u/s 14(1) (f) or (g) of the Maharashtra Village Panchayats Act 1958.

                   5.24 In my considered view, both the respondent nos.1 and 2 failed to correctly appreciate the provisions under Section 14(1)(f) and (g) of the Act and also utterly failed to appreciate the provisions under the Government Resolution dated 02-05-2011. I have no hesitation in my mind to hold that the petitioner has successfully made out a case for interference of this Court under Article 227 of the Constitution of India. The impugned orders cannot be sustained.

6. Hence, the following order:-

(i) The Writ Petition stands allowed.

(ii) The order dated 03.01.2024 (Exh.D), passed by respondent no.2 – Collector and confirmed by respondent no.1 – the Addl. Divisional Commissioner, vide order dated 27.06.2024 (Exh.”H”) is quashed and set aside. Consequently, it is held that the Petitioner is not disqualified u/s 14(1) (f) or (g) of the Maharashtra Village Panchayats Act 1958.

(iii) Petitioner’s position as an elected member of the Village Panchayat Devegaon, Taluka Pathri, Dist. Parbhani stands restored forthwith, if term of the Village Panchayat still subsists.

(iv) Rule made absolute in the above terms.