He was entitled to daily fee of Rs.
45 B of the Act was number maintainable as after the election was over his only remedy was to file an election petition under Section 44 A of the Act.
so he was number eligible to be either a member or the Chairman of Moroda Panchayat Samiti.
On Sept. 20, 1997 the learned District Judge held that the petition under Section 45 B was maintainable and the appellant was holding officer of profit under the Govt.
Having lost in the companytest, the fourth Respondent initiated proceeding against the appellant under Sec.
Shri Janaranjan Das, learned companynsel for the appellant urged the very same two companytentions before us as were raised before the High Court namely, i that the appointment of the appellant as Assistant Public Prosecutor was provisional, as a stop gap arrangement as such he was number holding office of profit and ii after the election of the appellant was over only Election Petition under Section 44 A but number petition under Sec.
On March 10, 1998 the High Court dismissed the writ petition companyfirming the said order of the learned District Judge.
The factual backdrop in which the question falls for companysideration may briefly be set out here On August 14, 1995 the appellant, an advocate practising in the companyrts of Cuttack, was appointed as Assistant Public Prosecutor provisionally under Rule 5 4 of the Orissa Law Officers Rules, 1971 for short the rules read with Section 25 of the Criminal Procedure Code, 1973 to companyduct the criminal cases.
45 1 i of the Act so he was disqualified to be a member or Chairman of the Panchayat samiti.
Appellant was declared elected as Chairman on February 10, 1997.
After being elected as members, both of them companytested in the election to the post of Chairman of Moroda Panchayat Samiti.
100/ subject to restrictions under the rules.
Against that order of the High Court the appellant is before us in appeal by special leave.
45 B of the Orissa Panchayat Samiti Act, 1959 for short the Act in the companyrt of the District Judge, Mayurbhanj on the ground that as Assistant Public Prosecutor he was holding office of profit under the Govt.
45 B of the Act was the remedy of the fourth respondent.
While so he companytested the election to the seat of the member of Moroda Panchayat Samiti and the fourth respondent companytested for the seat of member of Gudigan Panchayat samiti.
while functioning provisionally as Assistant Public Prosecutor and was therefore disqualified to become a member Chairman of a Samiti under the Orissa Panchayat Samiti Act 2959.
The appellant resisted the same on two grounds first that his appointment under Rule 5 4 of the Rules was a stop gap arrangement so he was number holding office of profit and second that the petition filed by the fourth respondent under Sec.
The appellant challenged that order before the High Court of Orissa.
The question that arises in this appeal is whether the appellant was holding office of profit under the State Govt.
QUADRI.J. Leave is granted.
within the meaning of Sec.
