Bombay High Court
Deepak Shivram Pathare vs The State Of Maharashtra And ... on 4 December, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
(1) 1043-wp-12576-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12576 OF 2021
Deepak Shivram Pathare ..Petitioner
Versus
The State of Maharashtra and Others ..Respondents
...
Mr. S. S. Thombre, Advocate for the Petitioner.
Mr. D. R. Kale, Incharge Government Pleader for
Respondents-State.
Mr. A. B. Kadethankar, Advocate for Respondent
No.2.
WITH
CIVIL APPLICATION NO.12487 OF 2021
Vandana Dnyaneshwar Murkute ..Applicant
Versus
Deepak Shivram Patare and Others ..Respondents
...
Mr. Ajeet B. Kale, Advocate for the Applicant.
Mr. D. R. Kale, Incharge Government Pleader for
Respondents-State.
Mr. S. S. Thombre, Advocate for petitioner in WP.
Mr. A. B. Kadethankar, Advocate for Respondent
No.2.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 04th DECEMBER, 2021.
PER COURT:-
1. The petitioner is assailing the decision
of the respondents reserving the post of the
President of Panchayat Samiti, Shrirampur for Other
Backward Class category. The election to the same
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was scheduled in the meeting dated 18.11.2021.
This Court on 17.11.2021 issued notice to
respondent no.5 and had observed that, the meeting
scheduled on 18.11.2021 for electing President of
Panchayat Samiti, Shrirampur may proceed further,
however, the result of the same may not be
declared. It appears that, the meeting scheduled
on 18.11.2021 had taken place, however, the result
is not declared.
2. Mr. Thombre, learned counsel for the
petitioner strenuously contends that, on 12.12.2019
and 30.12.2019 the Notification was issued for
reserving the posts of President of Panchayat
Samities in Ahmednagar district. As per the said
Notification, out of 14 Panchayat Samities, 7 posts
were reserved. 4 posts for O.B.C, 2 for S.C. and 1
for S.T. The elections thereafter took place. In
case of Jamkhed Panchayat Samiti, the post of
President was reserved for S.T. The candidate from
S.T. category was not available. The lots were
drawn and in the lots, the post went to O.B.C. The
election for the post of President of 14 Panchayat
Samities in the district of Ahmednagar took place.
The post of President of Panchayat Samiti,
Shrirampur was reserved for O.B.C. Subsequently,
the President of Panchayat Samiti, Shrirampur was
disqualified and now on 18.11.2021 the elections
for the post of President of Panchayat Samiti,
Shrirampur was scheduled.
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3. The learned counsel further submits that,
if the President of Panchayat Samiti, Shrirampur is
to be elected from O.B.C. category, the same would
exceed 27% reservation. The O.B.C. reservation
cannot exceed beyond 27% under any circumstances.
The learned counsel heavily relied upon the
judgment of the Apex Court in a case of Vikas
Kishanrao Gawali Vs. The State of Maharashtra and
Others reported in (2021) 6 SCC 73. The learned
counsel further submits that, the Apex Court in the
said judgment has categorically observed that, view
taken by it would apply with full force to the
interpretation and application of the provisions of
the stated Act(s) and the State Authorities must
immediately move into action to take corrective and
follow up measures in right earnest including to
ensure that future elections to the concerned local
bodies are conducted strictly in conformity with
the exposition of this Court in K. Krishna Murthy
and Ors. Vs. Union of India (UOI) and Ors. reported
in (2010) 7 SCC 202, for providing reservation in
favour of OBCs. The Apex Court very specifically
observed that, reservation of O.B.C. may be upto
27% meaning thereby that reservation cannot exceed
even by a fraction of 27%.
4. The learned counsel further submits that,
in this case 4 seats are reserved for O.B.C.. The
same would be 28.57% that is beyond 27%, as such,
the same is illegal. The judgment of the Apex
Court in case of Vikas Kishanrao Gawali Vs. The
(4) 1043-wp-12576-2021
State of Maharashtra and Others (supra) applies for
future elections. If the post of President of
Panchayat Samiti, Shrirampur is to be filled in
from O.B.C. category that would be against the
mandate of the judgment of the Apex Court in a case
of Vikas Kishanrao Gawali Vs. The State of
Maharashtra and Others (supra). The mandate of
the Ordinance issued by the State of Maharashtra
thereby amending Section 58(c) of the Maharashtra
Zilla Parishads and Panchayat Samities Act, 1961
would also be violated. The learned counsel also
relies on the circular of the State Election
Commission dated 18.11.2021 following the
guidelines of the Apex Court in respect of the
elections to the posts that are fallen vacant. The
District Collector, Ahmednagar is also declaring
the bye-elections of Grampanchayats in accordance
with the directives of the State Election
Commission.
5. The learned counsel further submits that,
merely because 2019 Notification was not challenged
earlier at earlier point of time that would not
negate the right of the petitioner to assail it
when the seat has become vacant. The seat has
become vacant now and as the fresh election is
being held for the said post, the petitioner would
get the fresh cause of action to assail the same.
6. Mr. D. R. Kale, learned Incharge
Government Pleader submits that, the post of
(5) 1043-wp-12576-2021
President of Panchayat Samiti, Shrirampur was
reserved for O.B.C. under the year 2019
Notification. The said Notification is still in
force, as such, the post of President of Panchayat
Samiti, Shrirampur is being filled in from O.B.C.
candidate. Accordingly only 4 posts of Presidents
are reserved for Other Backward Classes of citizens
in the district. It was only because S.T.
candidate was not available, the lots were drawn
and according to the lots the post of President of
Panchayat Samiti Jamkhed went to O.B.C.. It cannot
be said that, reservation is exceeding 27%.
7. Mr. A. B. Kale, learned counsel for
intervener submits that, 2019 Notification
reserving the post of President of Panchayat
Samiti, Shrirampur for O.B.C., would continue till
the term is over. The term would be over in
February-2022. The learned counsel also places
reliance on the judgment of the Apex Court in a
case of K. Krishna Murthy and Ors. Vs. Union of
India (UOI) and Ors. (supra). According to the
learned counsel, the petitioner did not challenge
the Notification of the year 2019 earlier. Now
would not be entitled to assail it. According to
the learned counsel, the reservation to the O.B.C.
was 27.67% and so it will have to be rounded to
27%. The reservation does not exceed 27%.
8. Mr. Kadethankar, learned counsel appears
for respondent nos.2 and submits that, election for
(6) 1043-wp-12576-2021
the post of President of Panchayat Samities are
conducted by the State Government. The State
Election Commission has no role to play in the
same. He clarifies that, the State Election
Commission conducts the election of the Members of
the Panchayat Samities and Grampanchayat. As per
the guidelines issued by the State Election
Commission, the fraction is not rounded to the
nearest higher. Even the fraction of a percentage
would not be increased by the State Election
Commission. The learned counsel further submits
that, State Election Commission is not concerned
with conducting the election of President of
Panchayat Samities. It has not issued any
directives for the said election.
9. We have considered the submissions
canvassed by the learned counsel for the respective
parties.
10. No doubt, the judgment of the Apex Court
in a case of Vikas Kishanrao Gawali Vs. The State
of Maharashtra and Others (supra) mandates that,
all the future elections have to be conducted
according to the dictum of the Apex Court in a case
of K. Krishna Murthy and Ors. Vs. Union of India
(UOI) and Ors. (supra). The Apex Court also
observed that, expression "shall be" preceding 27%,
be construed as "may be" including to mean that
reservation for OBCs may be up to 27% but subject
(7) 1043-wp-12576-2021
to the outer limit of 50% aggregate in favour of
SCs/STs/OBCs.
11. In the present case aggregate reservation
is not exceeding 50%. The same is within 50%. The
district is considered as unit. There are 14
Panchayat Samities in the district. Out of 14
Panchayat Samitis, only 7 posts are reserved and 7
posts are meant for General category. The
reservation does not exceed outer limit of 50% in
aggregate. However, reservation of O.B.C. exceeds
27%. According to the petitioner it is 28.57%
whereas according to the intervener the same is
27.67%.
12. The question would be how far this Court
should exercise its writ jurisdiction in respect of
the Notification issued in the year 2019. The
election for the post of President of Panchayat
Samities in Ahmednagar district were held as per
the Notification dated 12.12.2019 and 30.12.2019.
The petitioner also participated in the said
election, in a way accepting the said Notification.
The President of Panchayat Samiti, Shrirampur was
elected from O.B.C. candidate. The said post was
reserved for O.B.C. under Notification of the year
2019 at the relevant time petitioner did not assail
the same. The President from O.B.C. category of
Panchayat Samiti, Shrirampur namely Sangeeta Shinde
was elected. She was disqualified while in office
on 25.10.2021 and for the remaining term the
(8) 1043-wp-12576-2021
election for the post of President of Panchayat
Samiti, Shrirampur is directed to be held under
order dated 09.11.2021. The election program was
declared and 18.11.2021 was the scheduled date of
the meeting to elect the President of Panchayat
Samiti, Shrirampur from O.B.C. category. The
remaining term would be only three months. The
said elections are held pursuant to the
Notification of December 2019 under which the post
of all Presidents of Panchayat Samities in
Ahmednagar district were filled in including that
of the President of Panchayat Samiti, Shrirampur.
Now only for remainder three months, the petitioner
is assailing the Notification of the year 2019. It
would be too late in the day now to consider the
challenge to the Notification of December 2019 for
remainder period of three months only. The bye-
election is to be held for the remainder period of
three months. The petitioner has participated in
the election process for the election to the post
of President pursuant to the same Notification of
December 2019 without raising objection to the
reservations made pursuant to the said Notification
and now for the first time challenging the 2019
Notification at the time of bye-election for
remainder period of three months.
13. The election to the post of President of
the Panchayat Samiti Shrirampur was never made
subject to the decision in any petition. It does
not appear that, said Notifications were assailed
(9) 1043-wp-12576-2021
at the relevant time. The parties have accepted
it. In view of that, at this stage we are not
inclined to exercise our writ jurisdiction.
14. Writ Petition accordingly disposed of. No
costs.
15. In view of disposal of Writ Petition,
Civil Application No.12487/2021 is also disposed
of.
16. At this stage learned counsel for the
petitioner seeks extension of interim order for
further period of three weeks.
17. It would be seen that, not even three
months of period remained for new incumbent. In
view of that, we are not inclined to pass further
orders of continuing the interim order. In case,
the petitioner succeeds, then certainly, the
parties would be governed by the judgment that may
be delivered by the Apex Court.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/December-2021
