2025:UHC:10530 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 2940 of 2025 Rashida … Petitioner Versus State of Uttarakhand & Others … Respondents Mr. Pramod Bailwal, Advocate, for the petitioner. Mr. Ganesh Datt Kandpal, Deputy AG, for the State. J U D G M E N T Hon’ble Manoj Kumar Tiwari, J. Petitioner was elected as Member, Gram Sabha, Village Hazara Grant, Block Bahadrabad, District Haridwar in the last panchayat elections held in 2022. A complaint was made by one Mr. Nadeem Ali on 25.11.2023 alleging that with her nomination paper filed before Returning Officer, petitioner filed an affidavit stating that she passed 8th Standard examination from SMA Junior High School, Gangalheri, Saharanpur (U.P.) in the year 2004, but as per the certificate issued by Principal of SMA Junior High School, petitioner never studied in the said school, thus petitioner is not educationally qualified for holding the office as Member, Gram Panchayat. An enquiry was ordered to look into the allegation made in the complaint and Nayab Tehsildar issued notice to petitioner, but petitioner did not participate in the enquiry despite notice and the Tehsildar, vide order dated 15.2.2025, declared petitioner as disqualified for being appointed as Member, Gram Panchayat for want of requisite educational qualification. 1 2025:UHC:10530 Petitioner filed appeal against Tehsildar’s order, which was dismissed by Sub Divisional Magistrate, Haridwar, vide order dated 7.7.2025. Ultimately, Chief Development Officer, Haridwar passed order under Section 138(1)(d)(iii) of Uttarakhand Panchayati Raj Act, 2016 on 19.8.2025 declaring petitioner ineligible for holding office as Member, Gram Panchayat, Ward No. 12. Petitioner has approached this Court challenging the orders passed by Nayab Tehsildar, Sub Divisional Magistrate and Chief Development Officer. 2. The Constitution of India, in Article 243F, provides for disqualifications for membership, which is extracted below: “243F. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat— (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that be is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.” 2 2025:UHC:10530 3. Section 8 of Uttarakhand Panchayati Raj Act, 2016 enumerates the grounds on which a person may be declared disqualified for being appointed as Pradhan, Up-Pradhan or Member of a Gram Panchayat. Section 8(1)(q) thereof provides that a person shall be disqualified for being appointed as a Pradhan, Up-Pradhan or Member of a Gram Panchayat, if he has not passed High School or equivalent examination from any recognized institution/Board, however the minimum qualification required in respect of women and members of Other Backward Classes/Scheduled Caste/Scheduled Tribe would be Middle examination or Eight Standard. 4. Section 8(5) of the said Act provides that if any question arises as to whether a person has become subject to any disqualification mentioned in the Act, then the question shall be referred to the prescribed authority and his decision shall, subject to the result of any appeal as may be prescribed, be final. Reportedly, Tehsildar is notified as Prescribed Authority under Section 8(5) of the Act in respect of Member, Gram Panchayat and Sub Divisional Magistrate is notified as the Appellate Authority. 5. Learned Counsel for the petitioner concedes that in her nomination form, petitioner mentioned that she passed 8th Standard examination from SMA Junior High School, Gangalheri, Saharanpur. He also concedes that the Transfer Certificate allegedly issued by the 3 2025:UHC:10530 aforesaid school was enclosed by petitioner with her nomination papers, submitted before the Returning Officer, in which her Admission No. is mentioned as 1537. 6. Learned Counsel for the petitioner contends that Nadeem Ali (complainant) was earlier having very cordial relations with petitioner and her family members and by taking advantage of the confidence reposed by petitioner on him, he submitted incorrect information while filing the nomination form and he thereafter filed complaint that fake educational certificate was relied by petitioner in her nomination papers. Learned Counsel submits that in fact petitioner passed 8th Standard examination from another school, namely, Swami Vivekanand Junior High School, Chandrapal Kheri, Nakur, Saharanpur. Thus it is contended that petitioner is educationally qualified and the order passed by Tehsildar, as affirmed by Sub Divisional Magistrate, is unsustainable. Learned Counsel for the petitioner further contends that the complaint made by Nadeem Ali against the petitioner was not supported by affidavit, which is mandatory under Rule 3(2) of UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. He further submits that petitioner was not heard by Nayab Tehsildar while returning the finding that she is disqualified for holding the office as Member, Gram Panchayat. He further submits that improper acceptance of nomination papers is a valid ground for filing election petition, therefore invocation of power 4 2025:UHC:10530 under Section 138(1)(d)(iii) of Uttarakahnd Panchayati Raj Act, 2016 against the petitioner is unjust and improper and the only remedy is to file election petition. 7. Per contra, learned State Counsel submits that petitioner herself admits that nomination paper filed by her was supported by fake Transfer Certificate, allegedly issued by SMA Junior High School, Saharanpur and in her affidavit also, she wrongly stated that she passed 8th Standard from SMA Junior High School, therefore the paper submitted by the petitioner for nomination was liable to be rejected, however it was not rejected as the Returning Officer believed the information submitted by the petitioner, on oath, to be correct. He further submits that petitioner does not disown her signature on the nomination paper or in the affidavit, therefore her contention that Nadeem Ali (complainant) was instrumental in furnishing wrong information in the nomination paper cannot be accepted. He further submits that even if the contention raised by learned Counsel for the petitioner is taken on its face value, then also Nadeem Ali, who filled the nomination paper under authorization by the petitioner, acted as her agent and every act of an agent is binding upon the principal, therefore petitioner cannot escape the consequences of the acts of omission or commission of her agent. Learned State Counsel further submits that petitioner was elected as Member, Gram Panchayat based on educational certificate, which she admits is fake, therefore she 5 2025:UHC:10530 cannot be permitted now to rely upon some other educational certificate for challenging the finding returned by the Tehsildar. He further submits that petitioner was given opportunity to put forth her version during the course of enquiry held by Nayab Tehsildar, however she choose not to participate in the fact finding enquiry and the stand, which petitioner is now taking, was not taken before the Nayab Tehsildar. 8. Regarding reliance placed by petitioner on Rule 3(2) of UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, learned State Counsel submits that the said Rules do not have any application in the present case, as here Prescribed Authority has taken a decision on the question of disqualification of the petitioner as per Section 8(5) of the Act, and petitioner was suffering from that disqualification even at the time of submission of nomination paper, therefore the decision taken by the Prescribed Authority/Tehsildar cannot be questioned on the ground that the complaint was not supported by affidavit. He relies upon Article 243-F of the Constitution of India, where it is provided that whenever the question of disqualification of a Member of Panchayat arises, such question shall be referred for decision to such authority and in such manner as the Legislature of a State may, by law, provide. It is contended that Uttarakhand Panchayati Raj Act provides that question of disqualification of a Member has to be decided by the Prescribed Authority/Tehsildar and 6 2025:UHC:10530 Section 8(5) of the Act is silent about affidavit in support of complaint, therefore additional requirement of affidavit cannot be imported with the help of UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. He further submits that the said Rules were framed by State of U.P. to give effect to provision contained in Section 95(1)(g) of U.P. Panchayat Raj Act, 1947, which provided for removal of Pradhan, Up-Pradhan and Member of a Gram Panchayat. He refers to proviso to Rule 95(1)(g), which provides for an enquiry held by such person and in such manner as may be prescribed, against a Pradhan or Up-Pradhan, who is prima facie found to have committed financial or other irregularities. Thus he submits that in the present case, the allegation against the petitioner is not that she committed financial or other irregularity as Member, Gram Panchayat or misused her position as Member, but the allegation is that she was not educationally qualified for appointment as Member at the time of filing nomination paper. He submits that it is pre-election disqualification suffered by petitioner. He further submits that Full Bench of Hon’ble Allahabad High Court Court in the case of Vivekanand Yadav v. State of U.P. & Another, reported as 2010 SCC OnLine All 2702, held that a Pradhan has no right to object that complaint is not in accordance with Rule 3 of the Enquiry Rules. Answer to the questions formulated by Full Bench are given in para 108 of the said judgment, which is extracted below: “108. Our conclusions are as follows: 7 2025:UHC:10530 (a) The DM may ask the preliminary enquiry to be conducted by any officer defined under rule 2(c) of the Enquiry Rules on a complaint or a report under rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry; (b) A pradhan has no right to object that complaint or report is not in accordance with rule 3 of the Enquiry Rules; (c) A pradhan is neither entitled to be associated in the preliminary enquiry nor is entitled to the copy of the preliminary report. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered; (d) In the first and third WPs, the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the pradhan. The impugned orders in these WPs cannot be faulted on this ground; (e) In our opinion the word ‘otherwise’ in rule 5 includes and the DM can rely upon the following reports only to cease financial and administrative power and direct the final enquiry; 8 2025:UHC:10530 . A report of a person who is also defined as an enquiry officer under rule 2(c)) of the Enquiry Rules irrespective of whether he was directed by the DM to conduct the preliminary inquiry or not; . A preliminary enquiry report conducted by the DM himself. (f) In the third writ petition, the report was submitted by the DPRO, who is defined as an enquiry officer under rule 2(c) of the Enquiry Rules. The impugned order cannot be faulted on the ground that the DPRO was not asked by the DM to conduct the preliminary enquiry; However, it is open to the petitioners in the first and third WPs to raise other points before the appropriate bench.” 9. Learned State Counsel further submits that neither in her appeal filed before the Sub Divisional Magistrate nor in her reply to the show cause notice submitted before Chief Development Officer, petitioner raised the plea that the complaint is not supported by affidavit. He submits that petitioner cannot be permitted to raise a new plea in writ proceedings, which was not taken by her before the adjudicating authority. Learned State Counsel further submits that filing of affidavit would be relevant when the allegation against Pradhan, Up-Pradhan or Member is that he/she misused 9 2025:UHC:10530 official position after being elected or committed financial or other irregularities while discharging duties as Pradhan, Up-Pradhan or Member, to ensure that frivolous or motivated complaints are not made against elected public representatives. He submits that here the allegation was that petitioner is not educationally qualified and the educational certificate, relied by her in support of her claim regarding educational qualification, was found to be forged. Thus he submits that allegation of such nature cannot be brushed aside merely because the complaint is not supported by an affidavit, especially when requirement of filing affidavit in support of complaint is not mentioned in Uttarakhand Panchayati Raj Act, 2016. 10. Learned State Counsel points out that power available to the State Government under Section 138(1) of the Act is delegated to the Chief Development Officer, therefore the Chief Development Officer was well within his right to remove the petitioner from the O/o Member. He further submits that Section 8 of Uttarakhand Panchayati Raj Act, 2016 exhaustively deals with disqualification for membership of Gram Panchayat and it nowhere provides that the question of disqualification of a Member can be raised only by a written complaint, duly supported by affidavit, and question of disqualification can be referred suo moto, as and when it crops up, in view of the language used in Section 8(1) read with Section 8(5) of Uttarakhand Panchayati Raj Act, 2016. 10 2025:UHC:10530 11. This Court do not find any reason to interfere with the orders impugned in this writ petition. Part IX of the Constitution, inserted by Constitution (Seventy-third Amendment) Act, 1992, while provides in Article 243-O(b) that no election to any Panchayat shall be called in question except by an election petition, however Article 243F provides that a person shall be disqualified for being chosen as, and for being, a member of a Panchayat, if he is so disqualified by or under any law made by the Legislature of the State. Article 243F(2) further provides that the question whether Member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1) shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. The provision contained in Section 8 of Uttarakhand Panchayati Raj Act, 2016 is thus referable to Article 243F of the Constitution of India. Even though remedy of election petition is also provided in the said Act, however the question of disqualification of a Member can still be gone into by the Prescribed Authority under Section 8 of the State Act. Thus invocation of power under Section 138(1)(d)(iii) read with Section 8 of Uttarakhand Panchayati Raj Act against the petitioner cannot be faulted. This view is fortified by a judgment rendered by this Court in WPMS No. 2307 of 2020. Relevant extract of the said judgment is reproduced below: “Learned counsel for the petitioner then submits that petitioner’s election has been challenged by two persons, namely, Mr. Surjeet Singh and 11 2025:UHC:10530 Ms. Simarjeet Kaur by filing two election petitions and one of the ground taken in the election petition is that she suffers from the disqualification, mentioned in Section 8(1)(s) of the Act. He further submits that the proceedings, which culminated in passing of the impugned order, were initiated on a complaint filed by one Mr. Gurudev Singh, who is related to the persons, who have filed election petition. He, therefore, submits that since election petitions also raise similar issue, therefore, the power under Section 138(1)(d) (iii) of the Act is impliedly barred and District Magistrate was not justified in passing the impugned order. This Court is not impressed by the submission made by learned counsel for the petitioner. The power under Section 138(1)(d)(iii) of the Act is independent of the provision contained in Section 131(H)(1) dealing with election petitions. Merely because election petition can also be filed on account of some disqualification, mentioned under Section 8(1) of the Act, will not preclude the Competent Authority from exercising power under Section 138(1)(d) of the Act in appropriate cases.” 12. Learned Counsel for the petitioner concedes that the Transfer Certificate enclosed by the petitioner with her nomination paper, in support of her claim that she has passed 8th Standard, was not correct, as petitioner had passed 8th Standard from some other school. However, the fact remains that the petitioner in her affidavit filed along with her nomination paper had stated that she had passed 8th Standard from SMA Junior High School, while as per the statement of Principal of the said school, petitioner never studied in the said school. Thus it was a clear case of misrepresentation 12 2025:UHC:10530 before the Returning Officer. Although petitioner contends that she has passed 8th Standard from some other school, however she did not make such statement before the Nayab Tehsildar, who held enquiry in respect of the educational qualification of the petitioner. Petitioner’s contention that she was not given opportunity of hearing during enquiry is not correct, as Tehsildar in his order has referred to the notice dated 13.11.2024, issued to her by Nayab Tehsildar, Jwalapur. 13. Learned State Counsel is right in submitting that if petitioner permitted Nadeem Ali to fill the nomination papers, then Nadeem Ali acted as agent of the petitioner and principal is bound by the act of his/her agent. Petitioner does not disown her signature on the nomination paper and also the affidavit, therefore the defence offered by her that Nadeem Ali supplied incorrect information in the nomination paper and the affidavit cannot be accepted. 14. Reliance upon UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 is also misplaced. The said Rules were framed by State of Uttar Pradesh to give effect to Section 95(1)(g) of U.P. Panchayat Raj Act, 1947, which provides that Pradhan, Up- Pradhan or Member of a Gram Panchayat can be removed after enquiry held by such person and in such manner as may be prescribed. Section 8(5) of Uttarakhand Panchayati Raj Act, however provides that whenever a question arises as to whether a 13 2025:UHC:10530 person has become subject to any disqualification mentioned in the Act, then such question may be referred to the Prescribed Authority for decision. Thus Uttarakhand Panchayati Raj Act does not provide for a detailed enquiry, as provided in Section 95(1)(g) of UP Panchayat Raj Act, 1947, therefore the Rules framed to give effect to the provision contained in UP Act cannot be ipso facto made applicable to proceedings under Uttarakhand Act, when the nature of proceedings is different. Since Uttarakhand Act is silent as regards affidavit, therefore, requirement of affidavit cannot be read into Uttarakhand Act by having recourse to 1997 Rules, relied by the petitioner. 15. Moreover, the plea that the complaint is not supported by affidavit was not taken in her appeal or in her reply to the show cause notice, submitted before Chief Development Officer, therefore petitioner cannot be permitted to raise this plea for the first time before this Court. 16. For the reasons aforesaid, writ petition fails and is dismissed. (Manoj Kumar Tiwari, J.) 26.11.2025 Pr 14