Bombay High Court
Ajay Mansing Rajuput vs The State Of Maharastra, Through ... on 4 May, 2023
Bench: Mangesh S. Patil, S. G. Chapalgaonkar
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10615 OF 2022
Kiran Gulabrao Patil,
age 43 years, Occ. Agriculture,
R/o. Plot No.14, Sambhaji Nagar,
Dhule. Petitioner
Versus
1. The State of Maharashtra,
Through it's Department of
Rural Development,
Mantralaya, Mumbai - 32.
2. The Principal Secretary,
Rural Development Department,
Government of Maharashtra,
Mantralaya, Mumbai - 32.
3. The Collector, Dhule
District Dhule.
4. The State Election Commission,
State of Maharashtra. Respondents
...
Mr. S. P Shah, Advocate for Petitioner
Mr. S.B. Yawalkar, AGP for respondent no.1 to 3
Mr. A.B. Kadethankar, Advocate for respondent no.4
...
WITH
CIVIL APPLICATION NO.17210 OF 2022
IN
WRIT PETITION NO.10615 OF 2O22
Ashwini Bhatu Pawar,
age 27 years, Occ. President
of Zilla Parishad Dhule,
R/o Shiwalaye, 10, Anmol Nagar,
Near Raju Gandhi High School,
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Devpur, Dhule, Tq. & Dist. Dhule. Applicant
Versus
1. Kiran Gulabrao Patil,
age 43 years, Occ. Agriculturist,
R/o Plot No.14, Sambhaji Nagar,
Dhule. Respondent
(orig Petitioner)
2. The State of Maharashtra,
Through it's Department of
Rural Development,
Mantralaya, Mumbai - 32.
3. The Principal Secretary,
Rural Development Department,
Government of Maharashtra,
Mantralaya, Mumbai - 32.
4. The Collector,
Dhule, Dist. Dhule.
5. The State Election Commission,
State of Maharashtra. Respondents.
(Resp No.2 to 5
orig. respondents)
...
Mr. V.D. Hon Senior Counsel I/b Mr. D.S.Bagul, advocate
for applicant.
Mr. S.P. Shah, Advocate for respondent No.1.
Mr. S.B. Yawalkar, AGP for respondent nos.2 to 4.
Mr. A.B. Kadethankar, Advocate for respondent no.5.
...
WITH
WRIT PETITION NO.12328 OF 2022
Shri Ajay s/o Mansing Rajput,
age 32 years, Occ. Labourer,
R/o Near Maruti Mandir, Junnar,
Dhule, Tq. & Dist Dhule. Petitioner
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Versus
1. The State of Maharashtra,
through it's Chief Secretary,
Rural Development Department,
Mantralaya, Mumbai - 32.
2. The Secretary,
Rural Development Department,
Mantralaya, Mumbai - 32.
3. The Collector, Dhule,
District Dhule.
4. The State Election Commission,
New Administrative Bhavan,
Hutatma Rajguru Chowk,
Madam Cama Road, Mumbai -32.
5. The Presiding Officer,
Dhule Zilla Parishad President/
Deputy President Election-2022
and Deputy Collector, Dhule
District Dhule. (deleted)
6. Smt. Ashwini Bhatu Pawar,
Age major, Occ. Household,
R/o Office of President,
Zilla Parishad, Dhule.
District Dhule. Respondents
...
Mr. V.D.Sapkal, Senior Counsel i/b Mr. Y.B. Bolkar,
advocate for petitioner
Mr. S. B Yawalkar, AGP for Respondent nos. 1 to 3.
Mr. A.B. Kadethankar, Advocate for respondent no.4.
Mr. V.D. Hon, Senior Counsel i/b Mr. D.S. Bagul,
Advocate for respondent no.6.
...
CORAM : MANGESH S. PATIL &
S.G. CHAPALGAONKAR, JJ.
...
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...
Reserved on : 2nd March, 2023
Pronounced on : 4th May, 2023
...
JUDGMENT :- ( PER S.G. CHAPALGAONKAR, J.)
1. Rule. Rule made returnable forthwith. Both the writ
petitions are taken up together for final hearing at admission
stage by consent of the parties.
2. The petitioners have approached this court under 226 of
constitution of India raising common challenge to the order
dated 30.9.2022 passed by the State of Maharashtra, thereby
fixing the reservation to the seats of Presidents of respective
Zilla Parishads for ensuing elections. The petitioners claim to
be residents of Dhule and belong to the Backward Class.
Broadly, the grounds of challenge to the impugned order can
be summarized thus :-
a] The impugned order restricts 20.58% of
total seats for BCC reservation, although in
light of the directions issued by the Supreme
Court, 23.54% of total seats are required to
be reserved. Consequently, 8 seats out of 34
seats of president available in the state
ought to have been reserved for BCC (as
against 7 seats earmarked).
As such, out of 8 seats available for BCC, 4
seats need to be reserved for BCC women
(against 50% quota for women).
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Instead, impugned order provides
reservation of only 3 seats for BCC women.
b] The reservation for women has been
repeated at Sangli District though it could
have been avoided by applying Rule.
c] Impugned order is passed de hors mandate
of relevant rules requiring draw of lots for
fixing the reservation for BCC as well as
Women in each category,
3. The contention of the petitioners is that Article 243-D of
the Constitution of India provides for reservation of seats in
Panchayats for Scheduled Castes and Scheduled Tribes in
proportion to their population. Similarly, it enables reservation
to BCC and Women. The Constitutional mandate has been
carried forward under Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1961 (for short referred to as 'Act of
1961'). Section 42 of the Act provides for reservation of seats
of SC and ST in proportion to their population. It enables 27%
reservation for BCC with provision of 50% reservation of all
seats in such category for women. The reservation is to be
applied by rotation. State Election Commission is empowered
to issue guidelines for holding of the elections to Zilla
Parishads and Panchayat Samitis in accordance with the
reservations provided for the respective categories.
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4. Petitioners further contend that Supreme Court of India
in the matter of K. Krishnamurthy [(2010) 7 SCC 202]
considered validity of the provisions of Section 42 of the Act of
1961 and declared it unconstitutional to the extent of
providing for 27% reservation to BCC. The issue has been re-
considered by the Supreme Court in Writ Petition No.841 of
2021 and SLP No.19756 of 2021. It is observed that unless the
empirical data regarding BCC is collected, the reservation to
BCC cannot be provisioned. In pursuance of such observations
of the Supreme Court, the State of Maharashtra appointed a
dedicated Commission (Banthia Commission) to study the
status of BCC within the State. The report submitted by
dedicated commission recommends reservation to BCC up to
27% so that total reservation (including reservation for SC &
ST) does not exceed 50% of the total number of seats
available. The Supreme Court permitted the State Election
Commission to hold the elections of Panchayats in accordance
with the recommendations of the Commission vide order dated
22.7.2022. The State Election Commission issued orders for
holding the elections in deference to the directions given by
the Supreme Court.
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5. The State Government published impugned notification
dated 30.9.2022 declaring number of seats of President of Zilla
Parishad throughout the State to be reserved for each of the
category i.e. Scheduled Caste, Scheduled Tribe, BCC and
women. According to the petitioners the reservation so fixed
under impugned Notification violates directions of the
Supreme Court as well as the statutory provisions. The
contention of the petitioners is that, there are total 34 Zilla
Parishads within the State of Maharashtra. Total 9 seats are
reserved for Scheduled Caste and Scheduled Tribe, whereas 7
seats are reserved for BCC (i.e. 20.58%). However, if BCC
reservation is applied @ 23.54% in tune with population, 8
seats ought to have been allocated to BCC. Similarly, 4 seats
ought to have been allocated to BCC women. The reservation
for women at Sangli has been repeated which shows non-
adherence to relevant Rules pertaining to rotation and
allotment of seats.
6. According to the petitioners, the statutory scheme
embodied under Rule 2-B and 2-C mandates for fixing the
reservation by drawing the lots for BCC after fixation of
reservation for SC and ST. However, under impugned order,
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fixation has been done without drawing lots, which is contrary
to the statutory mandate and guidelines issued by the Election
Commission.
7. In response to the notice of this petition, the respondents
no.1 to 3 filed affidavit-in-reply. The contention of the
respondents is that in terms of the order dated 20 July 2022
passed by the Supreme Court of India in IA No.92695 of 2022
in SLP (C) No.19756 of 2021 and IA No.93235 of 2022 in SLP
(C) No.238 of 2022 the steps are taken to complete the
election process in accordance with the recommendations
made by dedicated commission. The fixation of the reservation
has been done in tune with the report of the Commission dated
7.7.2022. The percentage of reservation as well as the number
of posts available for backward classes, Scheduled Castes and
Scheduled Tribes has been indicated in report submitted by
dedicated commission.
8. As per Section 42 of the Act of 1961, half of the posts are
to be reserved for women. Half of the total number of offices
of President falling for the backward classes, Scheduled Castes
and Scheduled Tribes in Zilla Parishads are reserved for
women. Relying upon the provisions contained under Rule 2-B
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and 2-D of The Maharashtra Zilla Parishad (The President, Vice
President and Chairmen of Subjects Committees) and
Panchayat Samitis (Chairman and Deputy Chairman)
Reservation of Offices and Election Rules, 1962, it is contended
that the rotation of reservations has been applied and while
rotating such offices for such category, in subsequent terms,
offices already reserved in earlier terms for such category of
women, are excluded with intention to rorate such reservation
in all Zilla Parishad. It is further contention of the respondents
that out of total 34 posts of Presidents, 4 seats fall for
reservation of SC, 5 seats fall for reservation of ST and 7 seats
fall for reservation of BCC. Reservation of 7 seats for BCC has
been fixed in terms of recommendations of Dedicated
Commission.
9. Respondents further contends that in order to avoid
repetition, the reservations applied during earlier elections for
particular Districts have been considered. Further, considering
Rule 2-C of The Maharashtra Zilla Parishads (President, Vice
President and Chairmen of Subjects Committees) and
Panchayat Samitis (Chairman and Deputy Chairman)
Reservation of Offices and Election Rules, 1962, the State
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Government carried the exercise for fixing allotment and
rotated the reservation after excluding the Districts which were
reserved for BCC during earlier terms. Accordingly, final
reservation has been fixed as per impugned notification.
10. Mr. S.P. Shah, learned advocate appearing for the
petitioner in Writ Petition No.10615 of 2022 and Mr. V.D.
Sapkal, learned Senior advocate i/b Advocate Mr. Y.B. Bolkar
appearing for the petitioner in WP No.12328 of 2022 would
submit that the respondent authorities are bound to fix the
reservation by following due process of law. They would
submit that the Rules regarding the rotation of the seats as well
as the reservation for women have been blatantly violated by
the respondents while fixing number of reserved seats for
women and issuing the impugned order dated 30.9.2022.
They would submit that at some places, there is repetition of
reservation for women, which could have been avoided. They
would point out that the respondents have failed to fix the
reservation for BCC by drawing the lots. The procedure for
drawing lots is completely ignored. The entire procedure has
been flouted and the allotment of reservation has been done in
arbitrary and capricious manner with intention to provide the
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benefit to particular persons. On this count, they urge that
notification is liable to be quashed and set aside.
11. Learned advocates appearing for the petitioner would
rely upon the judgments delivered by the Supreme Court of
India in the matter of Vikas Kishanrao Gawali Vs. State of
Maharashtra and others reported in (2021) 6 Supreme Court
Cases 73, Seema Sarkar Vs. Executive Officer and others
reported in (2019) 6 Supreme Court Cases 559, Bharti Reddy
Vs. State of Karnataka and others reported in (2018) 12
Supreme Court Cases 61, Uday Khanderao Pawar and another
Vs. State Election Commission, through its Commissioner and
others reported in 2006 SCC online Bom. 1732, Prashant
Banslal Bamb Vs. State of Maharashtra and others reported in
2007 (4) MhLJ 341, Vitthal Dattu Gore Vs. State of
Maharashtra and others reported in 2010 (1) MhLJ 739, M.
Abdul Azeez Vs. The State of Karnataka, by its Secretary, Urban
Development Department and others reported in ILR 2014 Kar.
1839, State of Punjab and others Vs. Manjit Singh Sethi
reported in 2015 SCC online P&H 13156 and Aboobacker
Kanniyan Vs. Kerala State Election Commission and others
reported in 2020 SCC online Ker) 23472.
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12. Mr. S.B. Yawalkar, learned AGP appearing for the State
and Mr. V.D. Hon, learned Senior Counsel appearing for
respondent no.6 intervenor would submit that the respondents
have followed the due process of law and fixed the reservations
with due adherence to the relevant provisions of the Act and
the Rules. They would urge that the number of seats to be
reserved for particular reservation category is fixed in view of
the directions by the Supreme Court of India in the matter of
Rahul Ramesh Wagh Vs. State of Maharashtra and report of
dedicated commission. Petitioners having accepted the report
of dedicated commission could not have challenged percentage
of reservation for BCC and allotment of reservation for women.
The literal meaning of the provisions cannot be considered in
isolation. The object behind statuary scheme has to be given
effect by adopting harmonious interpretation. It is their
contention that while drawing the lots for offices of the
Presidents, seats reserved for the particular category in earlier
terms need to be excluded to avoid repetition. In support of
the contentions, reliance has been placed on judgment of the
Supreme Court of India in case of Sanjay Ramdas Patil Vs.
Sanjay and others reported in (2021) 10 SCC 306, State of UP
and others Vs. Pradhan Sangh Kshettra Samiti Vs. Pradhan
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Sangh Kshetra Samiti and others reported in 1995 Supp. (2)
Supreme Court Cases 305, Hem Raj Arya and ors. Vs. Election
Commission, Delhi reported in (1995) SCC (Del) 10, Harmeet
Singh Vs. Punjab State Election Commission and others
reported in (2008) SCC P & H 786, Sameer Subhash Rajurkar
Vs. The State of Maharashtra and others reported in (2020)
SCC Bom. 675 and West Bengal State Election Commission Vs.
Arup Dey and others reported in (2022) SCC (Cal) 335.
13. We have heard the learned advocates for respective
parties and with their assistance perused the record.
14. Before we proceed to appreciate the arguments
advanced by learned advocates, it is necessary to refer to the
relevant Constitutional and Statutory provisions for deciding
the contentious issue.
Article 243-D of the Constitution of India mandates for
the reservation to the post of President of Zilla Parishads in
accordance with the 73rd Constitutional amendment. Relevant
portion of Article 243-D reads as under :-
243-D. Reservation of seats :-
(1) Seats shall be reserved for
(a) the Scheduled Castes; and
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(b) the Scheduled Tribes,
in every Panchayat and the number of seats so reserved
shall bear, as nearly as may be, the same proportion to
the, total number of seats to be filled by direct election
in that Panchayat as the population of the Scheduled
Castes in that Panchayat area or of the Scheduled Tribes
in that Panchayat area bears to the total population of
that area and such seats may be allotted by rotation to
different constituencies in a Panchayat.
(2) Not less than one third of the total number of seats
reserved under clause (1) shall be reserved for women
belonging, to the Scheduled Castes or, as the case may
be, the Scheduled Tribes
(3) Not less than one third (including the number of
seats reserved for women belonging to the Scheduled
Castes and the Scheduled Tribes) of the total number of
seats to be filled by direct election in every Panchayat
shall be reserved for women and such seats may be
allotted by rotation to different constituencies in a
Panchayat.
(4) The offices of the Chairpersons in the Panchayats at
the village or any other level shall be reserved for the
Scheduled Castes, the Scheduled Tribes and women in
such manner as the Legislature of a State may, by law,
provide:
Provided that the number of offices of Chairpersons
reserved for the Scheduled Castes and the Scheduled
Tribes in the Panchayats at each level in any State shall
bear, as nearly as may be, the same proportion to the
total number of such offices in the Panchayats at each
level as the population of the Scheduled Castes in the
State or of the Scheduled Tribes in the State bears to the
total population of the State:
Provided further that not less than one third of the total
number of offices of Chairpersons in the Panchayats at
each level shall be reserved for women:
Provided also that the number of offices reserved under
this clause shall be allotted by rotation to different
Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2)
and the reservation of offices of Chairpersons (other
than the reservation for women) under clause (4) shall
cease to have effect on the expiration of the period
specified in article 334.
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(6) Nothing in this Part shall prevent the Legislature of a
State from making any provision for reservation of seats
in any Panchayat or offices of Chairpersons in the
Panchayats at any level in favour of backward class of
citizens.
15. The Constitutional scheme enabling reservation for
backward classes on the post of President of Zilla Parishad has
been brought in to effect through State Legislation i.e.
Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961.
Section 42 (4) of the Act of 1961 which provides for
reservation of the offices of President for Scheduled Castes and
Scheduled Tribes backward class of citizens and women. Sub-
clause (c) of sub Section (4) provides reservation for women.
The relevant provision of section 42 (4) of the Act of 1961
reads thus :-
42. Election Of President And Vice-President :-
(1) ........................
(2) ........................
(3) ........................
(4) There shall be reservation in the office of the
President in the Zilla Parishad for the
members belonging to the Scheduled Castes, the
Scheduled Tribes, the category of Backward
Class of citizens and women as follows :-
(a) the number of offices of Presidents to be reserved
for the Scheduled Castes and the
Scheduled Tribes in the Zilla Parishads shall bear
as nearly as may be, the same proportion
to the total number of such offices in the Zilla
Parishads as the population of the Scheduled
Castes in the State or of the Scheduled Tribes in
the State [excluding the population of the
Scheduled Tribes in a Zilla Parishad comprising
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entirely the Scheduled Areas] bears to the
total population of the State :
[Provided that, the office of the President of a Zilla
Parishad comprising entirely the
Scheduled Areas shall be reserved only for the
persons belonging to the Scheduled Tribes:-
Provided further that, the office of the President of
a Zilla Parishad falling only partially
in the Scheduled Areas shall be reserved for the
persons belonging to the Scheduled Tribes
in accordance with the provisions of clause (a):
Provided also that one-half of the total number of
offices so reserved shall be
reserved for women belonging to the Schedule
Castes or, as the case may be, the Scheduled
Tribes :
Provided also that, in a Zilla Parishad in the
Scheduled Areas where the population of
the Scheduled Tribes is more than fifty per cent, of
the total population, the office of the
President shall be reserved only for the persons
belonging to the Scheduled Tribes.
(b) the offices of Presidents to be reserved for
persons belonging to the category of
Backward Class of citizens shall be 27 per cent, of
the total number of such offices in the Zilla
Parishads :
Provided that, one-half of the offices so reserved
shall be reserved for women belonging
to the category of Backward Class of citizens;
(c) one-half of total number of offices of Presidents
(including the number of offices
reserved for women belonging to the Scheduled
Castes, the Scheduled Tribes and the
category of Backward Class of citizens) in the Zilla
Parishads shall be reserved for women.
(6) The number of offices reserved as aforesaid
shall be allotted by rotation to different
Zilla Parishads in the prescribed manner.
(7) The reservation of offices of Presidents (other than
the reservation for women) shall
cease to have effect on the expiration of the period
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specified in article 334 of the Constitution
of India.
16. In exercise of the powers conferred under the Act of
1961, the Maharashtra Zilla Parishads (President, Vice
President and Chairmen of Subjects Committees) and
Panchayat Samitis (Chairman and Deputy Chairman)
(Reservation of Offices and Election) Rules, 1962 have been
framed. Rule 2-C and 2-D of the rules deal with allotment and
rotation of reservation of the offices of President of Zilla
Parishad for Backward Class and women. Rule 2-C and 2-D
read thus: -
"2-C. Power of the State Government to allot
and rotate the reservation of offices of the
President of Zilla Parishads for backward class -
(1) Subject to the provisions of clause (b) of sub-
section (2) of Section 42 of the Act, the State
Government shall, by order, in the Official Gazette
allot, and rotate the reservation of offices of
President of Zilla Parishads (for every term) for the
persons belonging to the category of Backward
Class of Citizens (including Vimukta Jatis and
Nomadic Tribes) by drawing lots amongst the Zilla
Parishads
Provided that while allotting such offices, the
Scheduled Castes or the Scheduled Tribes shall be
excluded:
2. Notwithstanding anything contained in sub-
rule (1), while rotating such offices for the
subsequent terms the Zilla Parishads where such
Offices have been already reserved for earlier terms
for the persons belonging to the category of
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Backward Class of Citizens (including Vimukta Jatis
and Nomadic Tribes) shall be excluded until in all
Zilla Parishads, subject to the first proviso of sub-
rule (I), reservation of offices is given by rotation.
2-D. Power of the State Government to allot and
rotate the reservation of offices of the President of
Zilla Parishads for women -
(1) Subject to the provisions of clause (c) of sub-
section (4) of Section 42 of the Act, the State
Government shall, by order, in the Official Gazette
allot and rotate the reservation of offices of
Presidents of Zilla Parishads for women including
the women belonging to the Scheduled Class, the
Scheduled Tribes and the category of backward
class of citizens (including Vimukta Jatis and
Nomadic Tribes) by drawing lots amongst the Zilla
Parishads in the State :
Provided that, the lots in respect of women
belonging to the [the Scheduled Castes, the
Scheduled Tribes] and the category of Backward
Class of Citizens (including Vimukta Jatis and
Nomadic Tribes) shall be drawn only among the
Zilla Parishads where offices of Presidents are
reserved for such Castes, Tribes or as the case may
be, for the category of Backward Class of citizens
(including Vimukta Jatis and Nomadic Tribes) :
(2) Notwithstanding anything contained in sub-rule
(1), while rotating such offices for women for such
category in the subsequent terms, the Zilla
Parishads where such offices have been already
reserved in earlier terms for such category for
women, shall be excluded until in all Zilla Parishad
reservation of offices is given by rotation.
17. Pertinently, the Election Commission has issued the
election order dated 22.7.2022 namely Zilla Parishad and
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Panchayat Samitis General Election (Number of members,
formation of Wards and Reservation) Amendment order, 2020.
Perusal of clause nos.5 and 6 would show that the method for
rotation of seats for backward class has been prescribed. It
also stipulates that the seats which were reserved in earlier
elections for the Scheduled Castes and Scheduled Tribes and
women are to be excluded for the purpose of next lots.
18. In view of the aforesaid legal and factual position, we
proceed to deal with the first objection of the petitioners to the
impugned order dated 30.9.2022 passed by the State of
Maharashtra. The contention of the petitioners is that, the
impugned order restricts reservation to 20.58% of total seats
for BCC, although, in light of the directions issued by the
Supreme Court, it should be 23.54%. Since, total 34 seats of ZP
President are available in the State, 8 seats ought to have been
reserved for BCC and four seats out of BCC reservation ought
to have been allotted to BCC women. Pertinently, the
petitioners are relying upon the report dated 7.7.2022
submitted by dedicated Commission (Banthia Commission) to
contend that 23.54% of total seats are required to be reserved
for BCC. Admittedly, report of dedicated Commission was
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placed for consideration before the Supreme Court. The State
of Maharashtra had filed interim application before the
supreme court seeking permission to proceed with the election
process of the remaining local bodies on the basis of the report
of the dedicated Commission dated 7.7.2022. The Supreme
Court allowed prayer of the State of Maharashtra and
permitted it to proceed with the election in accordance with
the recommendations made by the dedicated Commission. The
report of the dedicated Commission would show that on the
basis of BCC population the number of seats of chairperson to
be reserved for BCC in local bodies have been prescribed. The
report recommends overall 23.2% reservation for the BCC
with reservation of 7 seats of ZP president out of total 34 seats
in state.
19. We have considered the submissions advanced on behalf
of petitioners. After going through the pleadings in respective
writ petitions, we could notice that in neither of these petitions
raises any challenge to the report of the dedicated Commission,
rather petitioners are relying upon the same. Allocation of 7
seats of presidents of Zilla Parishad for BCC as indicated in
report cannot be objected in absence of challenge to the report.
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The allocation of 7 seats of President of Zilla Parishad for BCC
reservation under the impugned notification/order dated
30.9.2022 issued by State Government is based on report of
dedicated commission. For the reasons stated above, we are
not inclined to entertain first objection of the petitioners.
20. The second contention of the petitioners relates to the
rotation of the reservation for women or non-observance of the
mandate of the Rules requiring draw of lots while fixing the
reservation for BCC women. Though, the petitioners have
raised general challenge to the impugned order dated
30.9.2022, which relates to the entire State of Maharashtra,
the thrust of the matter before us pertains to allocation of
reservation of General Female to the seat of President, Zilla
Parishad at Dhule. In both petitions, the petitioners are the
residents of Dhule and mainly aggrieved with allocation of
reservation for women to the seat of President of Dhule Zilla
Parishad. In that view of the matter, it would be appropriate to
deal with the challenge to the impughned order dated
30.9.2022 to that extent only. Pertinently, the petitioners are
not espousing a public cause. Since they are the residents of
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District Dhule, certainly they would have locus to challenge the
reservation of seats at Dhule only.
21. Respondent nos.1 to 3 have filed affidavit-in-reply and
put forth the explanation regarding manner of rotation applied
while fixing the reservation. The allocation of reservation of
Scheduled Castes has been done in descending order keeping
in mind the population of Scheduled Castes compared to total
population in the area of such Zilla Parishads. Under previous
notification dated 4.12.2019 Solapur, Jalna, Osmanabad and
Nagpur were considered for allotting reservation of scheduled
castes. Therefore, considering percentage of the population in
descending order, Scheduled Caste rotation has been applied.
The Nandurbar, Raigad, Palghar, Hingoli and Nanded (page
122) were notified for the reservation of Scheduled Tribe as
per notification dated 4.12.2019. In the year 2022, Nagpur,
Ahmednagar, Bhandara, Palghar and Nandurbar are reserved
for Scheduled Tribe category.
22. After allotment of reservation for Scheduled Castes and
Scheduled Tribes, 9 Districts out of 34 have been excluded
from consideration for rotating reservation of BCC. Under
notification dated 4.12.2019, Thane, Sindhudurg, Sangli,
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Kolhapur, Beed, Latur, Amrawati, Washim and Wardha seats
were allocated for BCC reservation. Therefore, those Districts
are excluded from consideration. As such, for current BCC
reservations Raigad, Ratnagiri, Nasik, Jalgaon, Dhule, Pune,
Satara, Solapur, Aurangabad, Jalna, Hingoli, Nanded,
Osmanabad, Akola, Buldhana, Yavatmal, Gadchiroli and
Gondiya i.e. total 18 Districts were available by rotation.
23. Out of the aforesaid 18 Districts, 7 seats for BCC
reservation were to be identified. Therefore, by applying the
exclusion theory, the Districts where for last three consecutive
terms BCC reservation was not allotted, are identified at first
place, those are Solapur, Jalna, Nanded and Gondiya. Out of
remaining 14 Districts, Jalgaon, Dhule, Pune, Aurangabad,
Osmanabad, Akola, Buldhana and Yavatmal were allotted BCC
reservation during last two terms. Therefore, they were
excluded from preference in the year 2022. The Hingoli
District was reserved for women in last consecutive three
terms, hence, excluded from consideration in allotment.
Similarly, Raigad, Ragnagiri, Nasik, Satara and Gadchiroli were
considered for allotment of BCC reservation. The Ratnagiri,
Satara and Gadchiroli Districts were allotted BCC reservations
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only twice during last nine terms. Hence, those Districts were
considered fit for allotment of BCC reservation. Accordingly, 7
Districts Ratnagiri, Satara, Gadchiroli, Solapur, Jalna, Nanded
and Gondiya are finally identified for BCC reservation
24. Since, 50% posts are to be reserved for women from BCC
allotment, 3 seats (out of 7 seats available for BCC) have been
reserved for the women. The districts Nanded and Gondiya
had been previously reserved for 3 and 2 times respectively for
women. Hence, those districts are excluded. Similarly, district
Solapur and Jalna were allocated with the reservation for BCC
women, hence, those are excluded. As such, districts Ragnagiri,
Satara and Gadchiroli are identified as the districts, which
were not reserved for BCC women during last three terms.
Hence are considered fit for allotment of reservation of BCC
Women.
25. While allotting reservation for general women (9 posts),
the provisions of Rule 2-D of the Rules of 1962 have been
considered for rotating the offices of the Zilla Parishad
President. Offices reserved in earlier terms for women were
excluded. As per the notification dated 4.12.2019, Jalgaon,
Pune, Aurangabad, Buldhana, Yavatmal are already provided
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reservation for last term to General Women. Therefore, those
Districts were excluded from consideration for the year 2022.
Similarly, Thane, Raigad, Sindhudurg and Washim were
consecutively reserved for General Women during last 3 terms.
Hence, they are excluded for the year 2022. Accordingly, Nasik,
Dhule, Sangli, Kolhapur, Osmanabad, Latur, Amravati, Akola
and Hingoli were identified for reservation of General Women.
According to the respondents, they have followed entire
procedure as per section 42 of the Act of 1961 and Rule 2-C &
2-D of the Rules of 1962. While applying rotation the seats
already reserved in earlier terms are excluded. Thereafter,
allotments are made as per rules.
26. Before we delve in to the correctness of rotation and
allotment of reservation under impugned order dated
30.9.2022, it would be appropriate to refer to certain
observations of the Supreme Court of India in the case of
Sanjay Ramdas Patil Vs. Sanjay and others reported in (2021)
10 SCC 306. The observations in Paragraph no.30 of the
judgment records thus :-
"30. It could thus be seen that it is more than well settled
that it is the duty of the Court to construe the Statute as a
whole and that one provision of the Act has to be construed
with reference to other provisions so as to make a consistent
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enactment of the whole Statute. It is the duty of the Court to
avoid a head-on clash between two sections and construe
the provisions which appear to be in conflict with each other
in such a manner so as to harmonies them. It is further
equally settled that while interpreting a particular statutory
provision, it should not result into making the other
provision a "useless lumber" or a "dead letter". While
construing the provisions, the Court will have to ascertain
the intention of the lawmaking authority in the backdrop of
dominant purpose and the underlying intendment of the
Statute.
27. The mandate behind the Constitutional scheme under
Article 243 D is to provide reservation to the seat of President
of Zilla Parishad. Sub-clause (6) of Article 243-D enables the
State to make provisions of reservation of the seats of
Chairperson in Panchayats in favour of backward class of
citizens. Section 42 of the Act of 1961 carries forward the
purpose of constitutional mandate. Sub-section (6) of section
42 of Act provides that number of offices reserved shall be
allotted by rotation to the Zilla Parishad in prescribed manner.
The Maharashtra Zilla Parishads and Panchayat Samitis
(Manner and Rotation of Reservation of Seats) Rules, 1996
provides for manner of rotation of the seats. Rule 10
prescribes for manner of allotment and rotation of seats
reserved for women. A combined reading of clause 2C and 2D
of Rules of 1962 would show that while applying reservation
for women, the offices reserved for the women in earlier terms
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are required to be excluded until in all Zilla Parishads,
reservation of the offices is given by the rotation.
28. If we consider the Rules in light of Legislative intent
behind the Constitutional scheme, the rotation policy will have
to be applied ensuring that reservations are not repeated in
particular Zilla Parishads and must be rotated by excluding the
Zilla Parishad, which during earlier elections were reserved for
particular category until reservation to that category is rotated
amongst all Zilla Parishads. It is also necessary to ensure that
while drawing lots, the statutory scheme is made workable and
not frustrated. It is trite that the Writ Court while examining
allotment of reservation would ensure that the reservation is
not thrust upon particular Zilla Parishad and all the Zilla
Parishads will have rotation of reservation in office of President
in accordance with the Rules of 1962. It is also trite that
allotment of reservation is job of experts. Judicial review while
entertaining the challenge would be limited to see that the
process has been given effect in accordance with the Rules and
the legislative intent behind providing for the reservation.
29. Keeping in mind the aforesaid legal proposition, we have
examined the matter in hand.
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30. The contention of petitioners that women reservation
has been repeated twice at Sangali although that could have
been avoided, cannot be accepted for the reason that under
notification for the year 2019, the District Sangli was reserved
for "OBC" women. Under the impugned notification, it has
been allocated to "General" Female (women). The statutory
scheme flowing from Rule 2C and 2D of Rules of 1962 provides
for allotment of reservation to Scheduled Castes, Schedule
Tribes and BCCs at first instance. The reservation for women,
being horizontal, operates within the vertical reservation
categories. It is, therefore, possible that at consecutive
elections, seat of President is reserved for women at particular
Zilla Parishad from different category. However, once vertical
reservation category is found to be different, objection as to
repetition of reservation for women for consecutive terms
would not sustain.
31. The petitioners contend that the reservation for General
Female has been wrongly clamped at Dhule. We have
considered the submissions. We observe that in 2019 the seat
of President of Zilla Parishad, Dhule was available to
open/General. However, for ensuing elections of 2022, it has
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been reserved for women (General). The allocation of seat for
General may be repeated while drawing the allotments.
Pertinently, rule of exclusion of the reserved seats in earlier
terms would not apply when it comes to the allotment of seat
for General, the 50% seats are unreserved and possibility of the
availability of General seat in consecutive elections cannot be
ruled out. Further, in the ensuing election, the seat of
President, Zilla Parishad, Dhule is reserved for women
(General). Therefore, there is no repetition of reservation as
contended on behalf of the petitioners. The Scheme under
Rule 2-C and 2-D of Rules of 1962 is applicable for rotation
and allotment of reservation. It is expected that in case of
reservation for women, the same seat shall not be repeated for
women from the same category. We do not find any flaw in
allotting the seat to female (General) at Dhule since such
reservation was earlier provided long back in the year 2013.
32. The next contention raised by petitioners is that,
respondents have failed to adhere to the rules regarding
drawing of lots as prescribed in Rule 2-D of Rules 1962 while
fixing reservation for BCC women. We have considered
contentions of parties on this aspect. The rule 2-D(1)
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prescribes for allotment and rotation of offices of presidents for
Women by drawing lots among Zilla Parishads in the state. The
proviso appended to rule 2-D(1) states that lots shall be drawn
for Women among the seats reserved for that particular
backward reservation category. In present case 7 offices of
presidents are reserved for BCC as per report of dedicated
commission out of 34 seats available in entire state. Further, 7
offices of Zilla Parishads President are identified for BCC
reservation after following procedure prescribed under Rule 2-
C of 1962 Rules. Since 50% of total seats are to be reserved
for women as per Section 42(4)(C) of Act of 1961, the 3 seats
out of 7 BCC seats are reserved for women. As per section
42(6) number of offices reserved, required to be allotted by
rotation to different Zilla Parishads in prescribed manner. The
rule 2-D of 1962 Rules prescribes manner of rotation and
allotment of offices of presidents of Zilla Parishads for women.
Rule 2-D (2) begins with non-obstence clause, to prescribe that
while rotating offices for women for such category in
subsequent terms, the Zilla Parishads, where such offices have
been already reserved in earlier terms for such category of
women, shall be excluded until in all Zilla Parishads
reservation is given by rotation. We have noticed that
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respondents have taken care to exclude Zilla Parishads, where
BCC Women reservation was applied in earlier elections. After
excluding those Zilla Parishads, BCC women reservation has
been fixed. We are of the view that after excluding Zilla
Parishads reserved for BCC women in earlier elections, three
Zilla Parishads are identified against three seats available for
BCC women hence there was no requirement to draw the lots.
33. The enabling provision regarding drawing of lots can be
resorted to when number of available seats for particular
reservation category are less than number of seats available for
distribution. Only when more Zilla Parishads are available for
exercising choice as compared to number of seats reserved, the
method of drawing lots can be resorted to. What we could
notice in this case is that after excluding seats reserved for
women in earlier elections, requisite number of seats could be
identified without drawing lots. Pertinently, seats notified for
reservation for particular category in impugned order shows
that repetition of reservation at particular Zilla Parishad is
avoided. It is trite law that if there is conflict in the provisions
prescribing procedural part under rules, the rule that secures
object of legislation will have to be followed. We have observed
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conflict in application of rule 2-C & 2-D of 1962 Rules which
prescribe exclusion of seats reserved in earlier elections while
drawing lots. Rules do not prescribe as to how many earlier
elections are to be considered for observing roster. In this case,
roster for last six terms has been considered as indicated in
reply affidavit filed by state. In that view of the matter, if basic
object of legislation is fulfilled without material deviation from
rules of procedure, this court would be slow in interfering the
decision of state authorities.
34. This Court in the case of Sameer Subhash Rajurkar Vs.
State of Maharashtra and others reported in (2020) 5 MhLJ
455 observed in paragraph no.40 of the Judgment as under :-
"40. The power under Article 226 of the Constitution of
India is not intended to enable the High Court to convert
itself into a Court of appeal and examine for itself the
correctness of the decision impugned and decide what is
the proper view. The High Court, in exercise of powers
under Article 226 of the Constitution cannot make a
roving enquiry and rope in all sorts of issues. The extra
ordinary power under Article 226 is to be invoked only
where circumstances are exceptional and do warrant the
exercise of such powers.
Scope for judicial review to challenge notification is
narrow. The High Court, while exercising writ jurisdiction
under Article 226 of the Constitution of India, does not
sit as an appellate authority. Role of High Court, in such
matters under judicial review is limited to find whether
the decision making process is adhered to and that there
are any malafides while issuing draft notification and
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absence of arbitrariness on the part of the Election
Commission."
35. Further the Division Bench of High Court of Calcutta in the
matter of West Bengal State Election Commission Vs. Arup Dey and
others reported in AIR 2022 Cal 128 observed in paragraph
no.21 as under :-
"21. We are also of the view that the Election Commission
which is an expert body has interpreted and applied the
relevant Rules for reserving seats for Scheduled Caste and
women candidates. Such exercise ought not to be lightly
interfered with. We find no such error in the decision of the
Election Commission as regards reservation of seats for
women candidates as would make such decision perverse or
vitiate such decision for any other reason. On the contrary,
we are satisfied that the relevant Rules have been followed,
the proper formula has been applied and the correct
procedure has been adopted for reservation of seats for
women (general) for the ensuing Municipal Elections for
South Dum Dum Municipality."
36. Applying law as indicated in the judgments referred (supra),
there is no reason to interfere in the impugned decision of the
State Government. We find that the respondent State of
Maharashtra has considered the rotation of reservations in
tune with the statutory provisions. The allotment of
reservations during last six terms has been considered as base
while applying the rotation and care has been taken to avoid
repetition of reservation for particular category in particular
district. The categories having represented at such districts in
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earlier elections are excluded from consideration under
impugned notification for 2022 and the reservation has been
spread over keeping in mind the legislative intent and
procedure under the Rules regarding manner of rotation.
37. We find that there is no flaw that would require
interference under Article 226 of the Constitution of India in
the matter of allotment of reservation under impugned order
dated 30.9.2022. Resultantly, the challenge in the Writ
Petitions fails. Writ Petitions are accordingly dismissed. No
order as to costs. Pending Civil Application stands disposed
off.
( S.G. CHAPALGAONKAR ) ( MANGESH S. PATIL )
JUDGE JUDGE
...
aaa/-
