ARUN SINGH @ ARUN KUMAR SINGH versus STATE OF BIHAR AND ORS.

Citation: [2006] 2 S.C.R. 1058 · Decided: 07-03-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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ARUN SINGH @ ARUN KUMAR SINGH 
v. 
ST A TE OF BIHAR AND ORS. 
MARCH 7, 2006 
B 
[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] 
Election Laws: 
Bihar Panchayat Raj Act, 1993-Section 139(/)(j)!Bihar Panchayat 
C Election Rules-Rule 122-Election of member of Panchyat Samiti-Questioned 
on the ground that elected member was disqualified under Section I 39(/)(j) 
due to his dismissal from service-Election Commission holding that it was 
not a case of disqualification under the provision as dismissal was not on the 
ground of misconduct but absence from duty-Writ Petition against order of 
D Election Commission-High Court holding the appointment as Member of 
Samiti as illegal opining that absence from duty would constitute a misconduct 
and issued Writ of Quo Warranto-On appeal, held: Member was not 
disqualified under the provision-The provision would be attracted only when 
requirements laid down therein are fulfilled--No finding of fact was arrived 
at by any authority as to commission of misconduct-There was nothing to 
E show that the dismissal order fi1lfilled the condition precedent/or invoking the 
provision. 
WRITS: 
Writ of Quo Warranto--Conditions for issuing-Held: Issuance of the 
F writ is discretionary--lt should be issued only on a clear finding that the 
appointment to a public office was contrary to the statute. 
Appellant was elected as a member of Panchayat Samiti after having 
received election certificate by the competent authority. Respondent No. 
G 6 filed an election petition praying for setting aside the election of the 
appellant on the ground that the appellant was a Dafadar and he was 
discharged from the service, for his illegal and irregular conduct. The 
election petition is still pending. State Election Commission at the instance 
of respondent No. 6 held that the appellant was not disqualified as the 
order of dismissal from service passed by District Magistrate did not 
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1058 
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ARUN SINGH @ARUN KUMAR SINGH v. ST A TE OF BIHAR 
1059 
indicate that the same was for commission of misconduct. According to A 
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order of District Magistrate dismissal was for his appointment being illegal 
and superintendent of Police had indicated that dismissal was for not doing 
his work properly. 
Respondent No. 6 filed a Writ Petition questioning the order passed 
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by Election Commission. High Court held that the charge of absence from 
duty by the appellant, having been proved, the same would constitute a 
misconduct. It issued writ of Quo Warranto holding that appointment of 
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appellant as a member of Samiti was not legal. Hence the present appeal. 
Allowing the appeal, the Court 
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HELD: 1.1. The disqualification set down in Section 139(1 )(f) of 
Bihar Panchayat Raj Act, 1993 would be attracted when the requirements 
laid down therein are fulfilled, which Jould mean that the elected 
candidate should have been dismissed from ~ervice of the Central or State 
or other local authority (i) for commission of misconduct; and (ii) he has D 
been declared disqualified for employment in public service. (1063-B-CI 
1.2. No finding of fact was arrived at either by the Superintendent 
of Police or the District Magistrate or for that matter, by the State Election 
Commissioner that prior to the issuance of order of dismissal a disciplinary 
proceeding was initiated against the appellant and he was found to have E 
committed any misconduct within the meaning of the provisions of the 
Bihar Civil Services (Classification Appeal) Rules or otherwise. 
(1063-D-EJ 
1.3. The order imposing penalty was not before the High Court. 
There was nothing to show that the said order fulfilled the conditions F 
precedent for invoking the provisions of Section 139(l)(t) of the Act. The 
High Court, therefore, completely misdirected itself in holding that as the 
appellant had absented himself from duty the same constituted misconduct 
and thus his election was void. The High Court did not go into the 
correctness or otherwise of the order of the State Election Commission. G 
On what premise the power of judicial review was exercised by the High 
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Court is not indicated. No cogent or sufficient reasons have been given 
by the High Court for setting aside the well considered order of the State 
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- Election Commission. [1063-F-G) 
2. Issuance of a writ of quo warranto is discretionary and such a H 
1060 
SUPREME COURT REPORTS 
[2006] 2 S.C.R. 
A writ should be issued only upon a clear finding that the appointment to a

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