Himachal Pradesh High Court
Manish Dharmaik vs State Of Himachal Pradesh And ... on 6 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 5987 of 2020 alongwith CWP
Nos. 6012, 6013 and 6046 of 2020
Judgment reserved on : 29.12.2020
.
Date of decision: 6th January, 2021
1. CWP No. 5987 of 2020
Manish Dharmaik ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
2. CWP No. 6012 of 2020
Bhupender Kumar
r to
Versus
...Petitioner
State of Himachal Pradesh and others ...Respondents
3. CWP No. 6013 of 2020
Chaman Prakash Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
4. CWP No. 6046 of 2020
Satish Kumar Thakur ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
______________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Jyotsna Rewal Dua, Judge
::: Downloaded on - 06/01/2021 20:17:09 :::HCHP
2
Whether approved for reporting1 : YES
For the Petitioner: Mr. T.S. Chauhan, Advocate, for the
petitioner in CWP Nos. 5987 & 6046 of
2020
.
Mr. Hamender Kumar Chandel,
Advocate, for the petitioner in CWP Nos.
6012 & 6013 of 2020
Mr. Abhimanyu Rathore, Advocate, for
the petitioner in CWP No. 6177 of 2020
For the Respondents: Mr. Ashok Sharma, Advocate General,
with Mr. Vinod Thakur, Mr. Vikas
Rathroe, Mr. Shiv Pal Manhans,
Additional Advocate Generals, with Mr.
Bhupinder Thakur, Ms. Seema Sharma
and Mr. Yudhbir Singh Thakur, Deputy
r Advocate Generals for the State in all the
cases.
Mr. Ajit Saklani , Advocate, for State
Election Commission, in all the cases.
_____________________________________________________ _
Jyotsna Rewal Dua,J.
This bunch of writ petitions questions the preparation,
implementation and rotation of election reservation roster in Gram
Panchayats for purposes of ensuing 2020-21 elections to the
Panchayati Raj Institutions in the State. Common contention of the
petitioners is that election reservation roster prepared by the State
for 2020-2021 elections is inherently faulty, as a result, reservation
of previous election years has been repeated for offices in the Gram
Panchayats/areas involved in the writ petitions in the now
Whether Reporters of local newspaper are permitted to see the judgment ?
scheduled elections thereby denying equal opportunity of
representation to members of other categories. Involving common
questions of law, these writ petitions, therefore, are taken up
.
together for disposal.
Facts from lead case CWP No. 5987 of 2020, Manish
Dharmaik Vs. State of H.P. are being considered hereinafter for
comprehending the issue raised in this bunch of writ petitions.
Grievance
2. Petitioner's grouse is that in ensuing 2020-2021
elections to be conducted for Panchayati Raj Institutions (for short
PRI) in the respondent-State under The Himachal Pradesh
Panchayati Raj Act, 1994 (in short the Act) and H.P. Panchayati
Raj (Election) Rules, 1994 (in short the Rules), the seat of Pradhan
in Gram Panchayat Khagna, Development Block Chopal, District
Shimla, H.P. has been reserved for women (General). The
office/area in question was reserved for women (General) in 2010
elections, for scheduled castes (open) in 2015 and, therefore, could
not be kept for women (General) in 2020 elections. This amounts
to repeating the reservation in the area for women (General)
thereby denying the opportunity of representation to various other
categories. Repeating the reservation in the area for women
(General) is contrary to the principle of rotation envisaged in the
Constitution of India, the 'Act' and the 'Rules'.
Since the legal question raised is with respect to the
.
alleged illegal repetition of reservation of an area for a particular
category in forthcoming elections to PRI, therefore, following
needs to be comprehended before proceeding further :-
(i) Related Legal Provisions.
(ii) Methodology adopted by the respondent State in
preparing, applying and rotating reservation roster
for election to PRI.
3. Related Legal Provisions
3(i)(a) Article 243 under Part IX of the Constitution of India
pertains to Panchayats. Article 243D provides for reservation of
seats in Panchayat elections as under :-
"243D. Reservation of seats
(1) Seats shall be reserved for :-
(a) the Scheduled Castes; and
(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 Caste,s 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.
(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."
3(i)(b) Section 8 of H.P. Panchayati Raj Act provides for
Constitution of Gram Panchayats. Reservation of seats of
Pradhans in Gram Panchayats under the Act is governed by
following Section 125 of the Act :-
125. Reservation for Chairpersons.-
(1) There shall be reserved by the Government, in the prescribed manner such
number of offices of Chairpersons in Panchayats at every level in the State for the
persons belonging to the Scheduled Castes and Scheduled Tribes and the number of
such offices, bearing as may be the same proportion to the total number of offices in the
State as the population of the Scheduled Castes in the State or of the Scheduled Tribes
in the State bears to the population of the State.
(2) One-half of offices of Chairpersons reserved in each category, for persons
belonging to the Scheduled Castes and Scheduled Tribes and of the non-reserved
offices in the Panchayats at every level shall be reserved for women.
(3) The State Government may, by general or special order, reserve such
number of offices of chairpersons for persons belonging to Backward Classes in
.
Panchayats at every level, not exceeding the proportion to the total number of offices to
be filled by direct election in the Panchayat as the population of the persons belonging
to Backward Classes in the State bears to the total population of the State and may
further reserve one-half of the total seats reserved under this sub-section for women
belonging to Backward Classes.
(4) The offices of Chairpersons reserved under sub-sections (1), (2) and (3)
shall be allotted by rotation to different constituencies in the district in such manner as
may be prescribed.
Explanation.- For the removal of doubt it is hereby declared that the principle of
rotation for the purposes of reservation of office under this section shall commence
from the first election to be held after the commencement of this Act.
Rule 28 under Chapter IV of H.P. Panchayati Raj
(Election) Rules provides for reservation of seats in Panchayats in
following manner :-
"28. Reservation of seats in Panchayats.-
(1) Before every election to a Panchayat the Deputy Commissioner or any other officer
authorised by him in this behalf shall, in accordance with the provisions of sections 8,
78, and 89 of the Act reserve the constituencies for Scheduled Castes, Scheduled Tribes
and Women in a Panchayat area and determine their rotation.
(2) In every Panchayat the population of general category, Scheduled Castes,
Scheduled Tribes and Women shall be worked out constituency-wise and the
percentage of Scheduled Caste and Scheduled Tribes and Women, in relation to the
total population of the Constituency shall be determined for the purposes of making
reservation.
(3) In every Panchayat, constituency/constituencies shall be reserved for the Scheduled
Castes and Scheduled Tribes in proportion to their population in that Panchayat area.
The constituency having highest percentage of population of Scheduled Castes shall be
reserved for the members of the Scheduled Castes and the constituency having the
highest percentage of population of Scheduled Tribes shall be reserved for the
Scheduled Tribes.
(4) If the number of constituencies to be reserved for the members of Scheduled Castes
or Tribes is more than one, then the constituency having the next highest percentage of
Scheduled Castes and Scheduled Tribes shall be reserved for the members of the
Scheduled Castes and Scheduled Tribes, as the case may be and so on:
Provided that if the total population of Scheduled Castes or Scheduled Tribes in a
.
Panchayat area is less than five percent of the total population of the panchayat area,
then no constituency shall be reserved.
(5) Out of the constituencies reserved for members of Scheduled Castes and Scheduled
Tribes, one-half of the constituencies shall be reserved for women members belonging
to Scheduled Castes and Scheduled Tribes, as the case may be, and the Constituency
having highest percentage of population of women belonging to Scheduled Castes or
Scheduled Tribes in relation to total population of the Constituency, as the case may
be, in a Panchayat area shall be reserved for such women.
(6) If the number of constituencies to be reserved for women belonging to Scheduled
Castes, or Scheduled Tribes, as the case may be, is more than one then the constituency
having the next highest percentage of women belonging to Scheduled Castes or
Scheduled Tribes, as the case may be, shall be reserved for such women, and so on.
(7) Out of the total constituencies excluding the constituencies reserved for Scheduled
Castes and Scheduled Tribes (including women belonging to Scheduled Castes and
Scheduled tribes),one- half of the constituencies shall be reserved for women and the
constituency having highest percentage of population of women shall be reserved for
such women and if the number of constituencies to be reserved for women is more than
one, then the constituency having the next highest percentage of women population
shall be reserved for general women and so on.
(8) The Constituencies reserved for Scheduled Castes and Scheduled Tribes and women
belonging to Scheduled Castes and Scheduled Tribes and women belonging to general
category on the basis of percentage of population shall be rotated after every five years
from the date of first election. At the time of next election, the
constituency/constituencies having the next highest percentage of population shall be
reserved for members of Scheduled Castes and Scheduled Tribes including women
belonging to Scheduled Castes and Scheduled Tribes and women belonging to general
category and so on for subsequent elections:
Provided that the reservation for a particular category shall not be repeated unless all
other constituencies are covered by rotation:
Provided further that the reservation for a particular category shall not be rotated in
such a constituency where the population of that category is less than 5% of the total
population of that constituency.
(8-A) Notwithstanding anything contained in these rules, the roster of reservation
of seats shall operate from the initial stage for the elections to be held after the
commencement of the Himachal Pradesh Panchayati Raj (Election) Amendment Rules,
2010 as if the said elections are being conducted for the first time under sub-rule (8)
and thereafter, the reservation of seats shall be rotated to different constituencies under
this rule.
(9) The reservations made under this rule shall be finalised by the Deputy
Commissioner or any other officer authorised by him in this behalf and shall be given
wide publicity by him by affixing a copy of order of such reservation on the notice
.
board of his office and that of the offices of Zila Parishad, Panchayat Samitis and
Gram Panchayats and he shall also send a copy of the same to the Government and this
notification shall be the conclusive proof of reservations of constituencies."
Rule 87 of the Himachal Pradesh Panchayati Raj
(Election) Rules, 1994 prescribes the procedure to be followed for
reservation of office of Pradhans in Gram Panchayats. The Rule
runs as under :-
"87.
Reservation of office of Pradhans, Gram Panchayats.-
Before every election to a Gram Panchayat the State Government or any
other officer authorised by it in this behalf shall in accordance with the provisions of
section 125 of the Act, determine the number of the offices of Pradhans of Gram
Panchayats to be reserved for Scheduled Castes, Scheduled Tribes and Women in a
block.
(2) For the purpose of reservation of the offices of the Pradhans the population
of general category, Scheduled Castes, Scheduled Tribes and women shall be worked
out Gram Sabha-wise and the percentage of Scheduled Castes, Scheduled Tribes and
women in relation to the total population of Gram Sabha, shall be determined.
(3) In every block the offices of the Pradhans of the Gram Panchayats shall be
reserved for the Scheduled Castes and Scheduled Tribes in proportion to their
population in the Block. The Gram Sabha having highest percentage of population of
Scheduled Castes shall be reserved for the members of the Scheduled Castes and the
Gram Sabha having the highest percentage of population of Scheduled Tribes shall be
reserved for the Scheduled Tribes.
(4) If the number of offices to be reserved for the members of Scheduled Castes
or Scheduled Tribes is more than one, then the Gram Sabha having the next highest
percentage of population of Scheduled Castes and Scheduled Tribes, shall be reserved
for the members of the Scheduled Castes and Scheduled Tribes, as the case may be, and
so on:
Provided that if the total population of Scheduled Castes or Scheduled
Tribes in a Block is less than 5 % of the total population, then no office shall be
reserved.
(5) Out of the offices reserved for members of Scheduled Castes and Scheduled
Tribes,one-half of the offices shall be reserved for women members belonging to
Scheduled Castes and Scheduled Tribes as the case may be, and the Gram Sabha
having highest percentage of population of women belonging to Scheduled Castes or
Scheduled Tribes, in relation to the total population of Gram Sabha, as the case may
.
be, in a block shall be reserved for such women.
(6) If the number of offices to be reserved for women belonging to Scheduled
Castes or Scheduled Tribes, as the case may be, is more than one than the Gram Sabha
having the next highest percentage of population of women belonging to Scheduled
Castes or Scheduled Tribes, as the case may be, shall be reserved for such women, and
so on.
(7) Out of the total offices, excluding the offices reserved for Scheduled Castes
and Scheduled Tribes (including women belonging to Scheduled Castes and Scheduled
Tribes), one-half of the offices shall be reserved for women, and the Gram Sabha
having the highest percentage of women population shall be reserved for general
women, and so on.
(8) The offices reserved for Scheduled Castes and Scheduled Tribes and women
belonging to Scheduled Castes and Scheduled Tribes and women belonging to general
category on the basis of percentage of population shall be rotated after every five years
from the date of first election. At the time of next election, the Gram Sabha having the
next highest percentage of population shall be reserved for members of Scheduled
Castes and Scheduled Tribes including women belonging to Scheduled Castes and
Scheduled Tribes and women belonging to general category and so on for subsequent
election:
Provided that the reservation of any office for a particular category shall not be
repeated unless all other offices in the block are covered by rotation:
Provided further that the reservation for a particular category shall not be
rotated in such a Gram Sabha where the population of that category is less than 5% of
the total population of that Gram Sabha.
(8-A). Notwithstanding anything contained in these rules, the roster of reservation
of offices shall operate from the initial stage for the elections to be held after the
commencement of the Himachal Pradesh Panchayati Raj (Election) Amendment Rules,
2010 as if the said elections are being conducted for the first time under sub-rule (8)
and thereafter, the reservation of offices shall be rotated to different Gram Sabhas
under this rule.
(9) The reservations made under this rule shall be finalised by the State
Government or by any officer authorised by it, in this behalf, and shall be given wide
publicity by affixing a copy of order of such reservation on the notice board of his
office and that of the Gram Panchayat and Panchayat Samiti and shall also send a
copy of the same to the Government for publication of the order in the Official Gazette
and this notification shall be the conclusive proof of reservations of offices as of
Pradhan in the block."
3(ii) Provisions of the Act and the Rules are not under
.
challenge. These provisions govern the reservation of offices in
Gram Panchayats for different categories. Under sub Rule 8-A of
Rules 28 and 87, year 2010 has been treated as the base election
year for the purpose of applying election reservation roster,
disregarding reservation of Gram Panchayats in previous elections.
3(ii)(a)
First exercise is determination of number of offices of
Pradhan of Gram Panchayats to be reserved for Scheduled Castes,
Scheduled Tribes and Women in a Block. The number is
determined in accordance with the provisions of the Act and the
Rules. The number is dependent upon various factors, including
the population. Population census 2011 is the foundation for
carrying out the exercise for 2020-2021 elections. Population of
different categories is worked out Gram Sabha-wise and this
percentage is determined in relation to total population of Gram
Sabha.
3(ii) (b) In every Block, offices of Pradhans of Gram
Panchayats, shall be reserved for Scheduled Castes and Scheduled
Tribes in proportion to their population in the Block. Gram Sabha
having the highest percentage of population of Scheduled Castes
shall be reserved for Scheduled Castes and Gram Sabha having
highest percentage of Scheduled Tribe population shall be reserved
.
for Scheduled Tribes. If number of offices required to be reserved
for Scheduled Castes or Scheduled Tribes is more, then Gram
Sabha having the next highest percentage of population of these
categories in the descending order shall be reserved for members
of Scheduled Castes and Scheduled Tribes.
3(ii)( c)
However, no office shall be reserved for Scheduled
Castes and Scheduled Tribes in case their population in a Block is
less than 5% of the total population.
3(ii)(d) Half of the offices reserved for Scheduled Castes and
Scheduled Tribes shall be reserved for women belonging to these
categories in the Gram Sabha with the highest percentage of
population of women in relation to total population of Gram Sabha
in the descending order.
3(ii)(e) Out of total offices, excluding the offices reserved for
Scheduled Castes and Scheduled Tribes (including women
belonging to Scheduled Castes and Scheduled Tribes), one half of
offices, shall be reserved for women in the Gram Sabha with the
highest percentage of women population belonging to general
category in the descending order.
3(ii)(f) Offices reserved for Scheduled Castes, Scheduled
Tribes, women belonging to Scheduled Castes, Scheduled Tribes
and General category, on the basis of percentage of population will
.
be rotated after every five years from the date of first election. Year
2010, under the Rule 87(8-A) has been taken as the base election
year for the purpose of applying and rotating election reservation
roster. Therefore, treating 2010 as the base year, at the time of
conduct of next elections in 2015 and all subsequent elections,
Gram Sabhas having the next highest percentage of population
shall be reserved for members of Scheduled Castes and Scheduled
Tribes, including women belonging to these categories and
belonging to general category.
3(ii)(g) First Proviso attached to Rule 87(8) says that
reservation of any office for a particular category shall not be
repeated unless all other offices in the Block are covered by
rotation. The second proviso says that reservation for a particular
category shall not be rotated in a Gram Sabha where population of
that category is less than 5% of total population of Gram Sabha.
4. Methodology adopted by State for applying
reservation roster in elections to PRI:
4(i). How the above provisions relating to reservation of
offices of Pradhans in Gram Panchayats for Scheduled Castes,
Scheduled Tribes and women belonging to Scheduled Castes,
Scheduled Tribes & general category vis-à-vis rotating these
offices amongst different reserve categories as understood by the
.
respondent-State, has been explained by it in a following
hypothetical example of a Block containing seven Gram
Panchayats i.e. A, B, C, D, E, F and G. Assuming the number of
offices to be reserved for Scheduled Castes in this Block is
determined as 2, and no other category viz. Scheduled Tribes/OBC
is present in the Block, then first of all, a chart of all seven Gram
Panchayats with percentage of Scheduled Castes population in the
Block in descending order is prepared. Hypothetical chart 'A' is as
under :-
"Chart-A"
"
Descending order of SC Population Percentage
Panchayats in Block
Sr. No. Name of Panchayat SC Population % in Panchayat
"
Next stage is preparation of chart of seven Gram
Panchayats showing percentage of SC (Women) population in the
Block in descending order. Hypothetical chart 'B' is as under :-
.
'Chart-B" "
Descending order of SC Women Percentage
Panchayats in Block
Sr. No. Name of Panchayat SC Population % in Panchayat
"
Lastly, a third chart reflecting percentage of
population of women belonging to general category is prepared.
The hypothetical chart 'C' is as under :-
"Chart-C"
Descending order of Women Percentage
Panchayats in Block
Sr. No. Name of Panchayat Female Population % in Panchayat
2. C 49.5
4. D 48.5
6. E 47.5
"
4(ii). Assuming that based on proportion of their percentage
of population, the number of seats of Scheduled Castes to be filled
in the above Block of seven (7) constituent Gram Panchayats is
.
two (2) and also assuming that reservation for no other category,
for example Scheduled Tribes etc. is required to be provided in
this Block, then 7-2 = (5) five Gram Panchayats are left for general
category. 50% of these five seats = 2.5, rounded to three(3) will
have to be reserved for women belonging to general category.
will be, thus, as under :-
r to
Reservation of offices for different categories in 2010 elections
2010 Elections
Two Gram Panchayats with maximum percentage of
Scheduled Castes population in descending order i.e. A and B
(Chart A) will be reserved for Scheduled Castes. Out of these two,
A with maximum percentage of women (Chart B) will be reserved
for SC (W). Thus, three, out of remaining five Gram Panchayats
i.e. C, D, E, F and G, have to go to W(G). Three, out of these five
Gram Panchayats in descending order of maximum percentage of
women i.e. C, D and F (Chart C) will be reserved for by W(G).
Remaining two Gram Panchayats i.e. E and G shall be unreserved.
Therefore, in 2010 elections reservation of Gram Panchayats will
be as under:-
"
Sr. No. Name of Panchayat Reservation
in 2010.
1. A SC Female
2. B SC
3. C Female
.
4. D Female
5. E UR
6. F Female
7. G UR
"
2015 Elections
In the next elections to be held in the year 2015,
assuming percentage of population and all other relevant factors in
the three charts remain as they were in 2010, then leaving Gram
Panchayats A and B, which were already reserved for SC category
in 2010, next two Gram Panchayats in descending order of
population of SC category will be C and D. So, these two
Panchayats will be reserved for SC category out of which, D
having more percentage of SC women (Chart B) shall be reserved
for women (SC). Three, out of remaining five Gram Panchayats A,
B, E, F and G, have to be reserved for women belonging to general
category. B, A and E in descending order of percentage of women
(Chart B) will, therefore, be reserved for women (General). Final
position of roster/reservation in 2015 will be as under :-
Name of Panchayat Reservation
in 2015.
1. A Female
2. B Female
3. C SC
.
4. D SC Female
5. E Female
6. F UR
7. G UR
"
2020 Elections
E and F Gram Panchayats next in line for SC category
in descending order of percentage of population (Chart A) will be
reserved for SC category, out of these, Gram Panchayat E with
higher percentage of women shall be reserved for Women (SC).
Remaining five Gram Panchayats to be kept for general category
shall be A, B, C, D and G. Three out of these remaining five Gram
Panchayats have to be reserved for Women (General).
Applying Rule 87(8) and the proviso attached to it,
out of these five Gram Panchayats A, B, C, D and G, since G has
never been reserved for W (G), therefore, it shall now have to be
reserved for W(G). Remaining four Gram Panchayats A, B, C and
D have remained reserved for W(G) either in 2010 or in 2015
elections, therefore, to avoid immediate repetition and in
accordance with the instructions issued by the respondent-State, C
and D which were reserved for W(G) in 2010 shall be repeated by
way of rotation for 2020 elections for W(G). As a fallout,
remaining Gram Panchayats A and B will go to UR. The ultimate
position will be as under :-
.
"
Sr. No. Name of Panchayat Reservation
in 2020.
1. A UR
2. B UR
3. C Female
4. D Female
5. E SC Female
6. F SC
7. G Female
"
4(iii) The Final reservation roster of above Block of 7 Gram
Panchayats in 2010, 2015 and 2020 elections comes out as under :-
"
Sr. No. Name of Reservation in Reservation in Reservation
Panchayat 2010 2015 in 2020
1. A SC Female Female UR
2. B SC Female UR
3. C Female SC Female
4. D Female SC Female Female
5. E UR Female SC Female
6. F Female UR SC
7. G UR UR Female
"
The above consolidated chart makes it crystal clear
that in the third elections (2020-2021), while rotating the election
reservation roster for the second time, there could be repetition of
.
reservation of categories in certain Gram Panchayats.
4(iv) The contention of learned counsel for the petitioner is
that Gram Panchayat Khagna in Development Block Chopal,
District Shimla, H.P. was reserved for W(G) in 2010 elections and
for Scheduled Castes (Open) category in 2015 elections. Keeping
this Gram Panchayat reserved once again for W(G) in now
scheduled 2020-21 elections, is a clear indicator that respondents
are only repeating the election reservation roster and not rotating it
in accordance with law. The argument advanced on behalf of the
petitioners is that when a Gram Panchayat was reserved for A
category in 2010 elections, for B category in 2015 elections, then
that Gram Panchayat cannot once again be reserved for A or B
category in the third election to be held in 2020-2021. This
virtually means repeating the election reservation roster contrary to
the principle of rotation of roster envisaged under the Act and
Rules. By repetition of election reservation roster for some
categories in certain Gram Panchayats, the other categories are
denied equal opportunity of representation, which should have
been made available to them for the seats in the Gram Panchayats.
The argument, crisp and simple looks attractive at first
blush, but the fact is that in any eventuality, 50% of the offices in a
Block (Gram Panchayats) are reserved for women. Reservation is
.
provided to members of Scheduled Castes, Scheduled Tribes,
women belonging to these categories and women belonging to
general category. In the first election, not less than half of the
Gram Panchayats constituting a Block may have to be reserved for
persons belonging to these categories. In the next election, the
areas left out from previous application of election reservation
roster, in descending order of percentage of population will have to
be reserved. In the third election, there could be repetition of
reservation of seats in Gram Panchayats while applying reservation
roster by way of rotation. This has been explained by the State, in
the above Charts. We are in agreement with the methodology
adopted by the State, in preparing the reservation roster, in
applying it and in rotating it over different Gram Panchayats.
Learned counsel for the petitioners though vehemently argued that
election reservation roster prepared by the State is faulty, as it
results into repetition of reservation of certain Gram Panchayats for
some of reserved categories, however, no other election reservation
roster muchless a workable one has been produced before us by
learned counsel for the petitioners in all these writ petitions.
Merely because reservation position of previous elections has been
repeated in the third election in some of the offices/Gram
Panchayats, that would not ipso facto lead to the conclusion that
.
election reservation roster is not being rotated as per law. As
observed earlier, repetition of reservation by rotation is possible.
Roster cannot be rotated uniformally for different categories.
Applying simple mathematics, 50% reservation will be repeated in
third cycle whereas 20% reservation may not be repeated upto
sixth cycle.
4(v) to
Application of Reservation Roster in cases of
separation, bifurcation, creating of Gram Panchayats and/or
their merger with new Blocks.
4(v)(a) There could be a situation where before holding of an
election, an old Gram Panchayat is re-organized, bifurcated,
separated or a new Gram Panchayat is created in a Block. There
could be situations, where after re-organization of a Gram
Panchayat, certain constituent villages of old Gram Panchayat are
merged with a new Gram Panchayat in a different Block or a Gram
Panchayat is made part of a different Block. Applicability of
election reservation roster and its rotation in these changed
scenarios of old and new position of villages/Gram
Panchayats/Blocks assumes significance. Sticking to the facts of
lead case : after 2015 elections, a new Block Kupvi from old Block
Chopal was created and consequently, certain Gram Panchayats
were transferred from Chopal to Kupvi Block. Additionally, certain
new Gram Panchayats were created in Chopal Block. We heard
.
these matters on number of days to understand the nitty-gritty of
rotation of reservation roster covering such situations. Despite
continued hearings of these matters for days together, no clear
answer with respect to application and rotation of election
reservation roster in such changed positions has been provided to
us by the State. Learned Advocate General has emphatically tried
to submit that even in such a situation, election reservation roster is
being applied and rotated in accordance with law. Whereas learned
counsel for the petitioners contended that many of the
villages/constituents of old Gram Panchayats, after merging in new
Gram Panchayats/new Blocks, were being considered in the
merged areas with their old tags attached to them, resulting in
wrong rotation of election reservation roster, thereby denying them
right of representation.
Consideration of the merged areas with their old tags
for purposes of applying and rotating the election reservation roster
is contrary to the relevant provisions of the Statute and the Election
Rules. The old tags attached with the villages in the old
Panchayats/old Blocks will vanish after their merger with new
Panchayats/new Blocks. The election reservation roster in new
Block/new Panchayat is required to be rotated strictly in
accordance with the provisions of the Act and the Rules. In this
.
regard, it will be apposite to refer to a judgment delivered on
09.10.2015 passed by Allahabad High Court in PIL No. 54764 of
2015, titled Sant Ram Sharma Vs. State of U.P. and others
alongwith connected matters. Before the Allahabad High Court,
inter alia, Constitutional validity of following provisos introduced
by way of amendments to the U.P. Panchayati Raj (Reservation
and Allotment of Seats and offices) (Tenth Amendment) Rules
2015 were in question, which provided for applicability of fresh
roster after general modification in 'areas' of the 'Panchayat areas'
in the State.
"A IV The amending Rules of 2015 The provisions of the Rules of 1994 were
amended by the tenth amendment Rules of 2015 which were notified on 16
September 2015. As a result of the amendment, the following proviso was
introduced in Rule 4(4):
"Provided further that whenever there is General delimitation of territorial
constituencies of Gram Panchayats in the State on the basis of General
modification in areas of 'Panchayat areas' of Gram Panchayats in the State or
otherwise, before a General election of the members of Gram Panchayats, then
the allotment of number of seats as provided in Rule 3 shall be made afresh to
different territorial constituencies without taking into consideration their status of
allotment in previous elections."
A similar proviso was introduced into Rule 4(6). Correspondingly, Rule 5(2),
which provides for the allotment of offices of pradhans for the Scheduled Castes,
the Scheduled Tribes and the Other Backward Classes by rotation, was amended
by the introduction of the following proviso:
"Provided further that whenever there is General modification in areas of the
'Panchayat areas' of Gram Panchayats in the State, on the basis of change in
population of 'Panchayat areas' or otherwise, before a General election for the
.
offices of Pradhans, then the allotment of number of offices of Pradhans for the
Scheduled Tribes, the Scheduled Castes and the Backward Classes, as determined
in sub-rule (1), shall be made afresh to different Gram Panchayats in the Khand
without taking into consideration their status of allotment in previous elections."
Rule 5(4) has also been amended by the introduction of a proviso which reads as
follows:
"Provided further that whenever there is General modification in areas of
'Panchayat areas' of Gram Panchayats in the State, on the basis of change in
population of 'Panchayat areas' or otherwise, before a General election for the
offices of Pradhans, then the allotment of number of offices of Pradhans reserved
for women shall be made afresh without taking into consideration their status of
allotment in previous elections."
While upholding the validity of the above amendments in the
Rules, it was observed by the Court as under :-
"In the facts of the present case, we are inclined to hold that the State
Government has not acted arbitrarily or in violation of the underlying principles
which emerge from the provisions of Article 243D of the Constitution and the U P
Panchayat Raj Act 1947 in making the amendment to the Rules of 1994. The facts
which have been narrated in the counter affidavit filed by the State Government
as well as in the supplementary affidavit which has been filed in these
proceedings, have not been controverted in any of the writ petitions. No
countervailing material or factual data to dispute the material placed on the
record by the State have been produced by the petitioners. The material which
has been placed before the Court in the form of facts and figures is sufficient to
indicate that there was a due and proper application of mind to the circumstances
which had resulted in a situation where, over the last twenty years, there had
been no delimitation exercise in the State of Uttar Pradesh. Admittedly, after
1995, a delimitation was carried out for the first time in 2014-15. The exercise of
delimitation and the creation of new gram panchayats was the result of a massive
exercise of reorganization and delimitation. In the meantime, based on the census
figures of 2001 and 2011, there has been a major change in the demographic
profile of the territorial constituencies in the rural parts of the State. These facts
have not been disputed before the Court. The only submission which has been
urged in response to the materials which have been placed on the record is that,
as a result of the decision of the State Government based on the Rules of 2015
.
allowing the State to carry out a fresh exercise of rotation, those constituencies
which had an expectation of a seat being rotated in accordance with the erstwhile
cycle would be deprived of that opportunity now. In particular, it was sought to
be emphasized that, insofar as the Scheduled Castes in the State are concerned,
21 percent of the total number of seats would have been reserved during the
course of each of the four elections which took place between 1995 and 2010. On
this basis, it was sought to be submitted that 84 percent of the total constituencies
have been reserved in the four previous elections leaving in balance 16 percent of
the remaining constituencies which may have a small or marginal representation
from amongst reserved categories. This hypothesis is countered by the Chief
Standing Counsel by submitting that there is no guarantee that a seat or
constituency will be reserved necessarily for a particular category in an ensuing
election since an arrangement has to be made on each occasion in a descending
order of population based on population figures. In our view, the point to be
noted is that the exercise which has been conducted by the State Government, has
not either abrogated the principle of rotation or deprived any reserved category -
be it the Scheduled Castes, Scheduled Tribes, Other Backward Classes or women
of their entitlement. The principle on the basis of which reserved seats would be
determined in the panchayats and for the offices of chairpersons, would be strictly
in accordance with the norms which have been laid down in Article 243D and as
specified in Section 11-A and Section 12 (5) of the U P Panchayat Raj Act.
During the course of every election to the three-tier panchayats, the process of
allocating reserved seats to territorial constituencies and of rotating
constituencies has to be necessarily carried out. The Rules, in their original form,
make it clear that the principle of rotation has to be applied as far as may be. The
words 'as far as may be' which are used in Rule 4(4), Rule 4(6) and in Rule 5(2)
are indicative of the fact that rotation itself is subject to such situational
variations that may be required. When an electoral exercise on as gigantic scale
as envisaged in the State of Uttar Pradesh is to be carried out, situational
variations are liable to occur. The constitutional validity of legislation or a
subordinate legislation can not be made to depend upon such situational
variations or aberrations.
Finally, before we conclude, we may also note that on behalf of the State, reliance
was placed on a judgment of a Division Bench of this Court in Krishna Dutt
Mishra Vs State of U P. The judgment of the Division Bench was delivered on 18
July 2005 which is prior to the decision of the Supreme Court in K Krishna
Murthy (supra). The observations contained in the judgment of the Division
Bench treat the principle of rotation purely as directory in nature. These
observations of the Division Bench in Krishna Dutt Mishra (supra) will give way
to the binding principles which have been laid down in the judgment of the
.
Supreme Court in K Krishna Murthy (supra). The object of the principle of
rotation is to ensure that no community or reserved category can lay a claim to a
reserved seat in perpetuity. Any observation to the contrary contained in the
judgment in Krishna Dutt Mishra (supra) would have no binding effect in
consequence. The observations in the judgment of the Division Bench on the
availability of judicial review would also give way to the binding principles laid
down by the Supreme Court in K Krishna Murthy.
The learned counsel appearing on behalf of the petitioners sought to draw
sustenance from a judgment rendered by a Division Bench of the Bombay High
Court in Prashant Bansilal Bamb Vs State of Maharashtra. The Division Bench
held that in light of the previous statement made before the Bombay High Court
by the State Election Commission coupled with the provisions of the State Rules of
1996 which mandated rotation of seats amongst reserved categories, the State
Election Commission was bound to act in accordance with the rules. The
judgment referred to, in our opinion, is clearly distinguishable inasmuch as in an
earlier round of litigation before the Bombay High Court, the State Election
Commission had made an affirmation on oath that it would implement the
rotation policy from the next elections. While the Rules, which fell for
consideration, had been promulgated in 1996, the first elections had taken place
in 1997 and the elections thereafter were to be held in 2007. It was in the above
factual backdrop that the above decision came to be rendered. Insofar as the
State of Uttar Pradesh is concerned, we find that the rotation policy had been
followed in four subsequent elections and the cycle of rotation itself had been
substantially completed. More importantly, we are faced with a statutory
amendment which, while not doing away with the system of rotation only bids all
to treat the ensuing elections to be the first elections and consequently provide
that rotation would commence afresh. In the light of the above distinguishing
features, we find that the judgment of the Bombay High Court does not carry the
case of the petitioners any further."
In the instant case, relevant statutory provisions and
the Rules have not been amended. It is the year 2010, which for the
purposes of application and rotation of election reservation roster,
has to be treated as first election year. Therefore, rotation of
election reservation after even change of territorial areas of Gram
Panchayats/Block, has to be strictly in consonance with the
.
applicable legal provisions. However, we do not have the
wherewithal to go into the voluminous statistics and data in this
regard, at this stage, when elections to Panchayati Raj Institutions
have already been announced and the election process is underway.
We have already spent number of days to comprehend basic facts
about application, implementation and rotation of election
reservation roster. We are also conscious of the limitations set forth
on such exercise of judicial review in view of bar of jurisdiction
imposed by Article 243-O of the Constitution of India, which is
quoted hereinbelow :-
"243-O. Bar to interference by courts in electoral matters - Notwithstanding
anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies made or purporting to be made under
article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election
petition presented to such authority and in such manner as is provided for by or
under any Law made by the Legislature of a State."
In Bal Krishan and others Vs. State of H.P. and
others 2015 (6) ILR (HP) 914, this Court considered the
preliminary objections relating to maintainability of the writ
petitions questioning the constitution, re-constitution, delimitation,
reservation of the Panchayat areas, merger of Panchayats with
Municipal areas and vice-versa, change of headquarters of Gram
Panchayats, amalgamation and alteration of respective Panchayat
areas on ground that such actions of respondents were in violation
.
of H.P. Panchayati Raj Act, 1994, Himachal Pradesh Panchayati
Raj (Election) Rules 1994 etc. After considering entire legal gamut,
the position was summed up in following operative para 33 :-
"33. The proposition which can now be culled out from the above noted
judgments of the Hon'ble Supreme Court and other High Courts including this
Court is that:-
(1) The word "election" appearing in Article 243-O and the provisions contained
in the 1994 Act and the rules framed thereunder bears larger connotation. It
embraces and includes all steps commencing from the date of notification by the
Competent Authority, whereby the electorates are called upon to elect Pradhans
and Up-Pradhans and ending with declaration of result. Reservation of offices of
Pradhan and Wards in favour of Scheduled Castes, Scheduled Tribes, Backward
Classes and Women, preparation, printing and publication of electoral rolls
(provisional and final), filing of nomination papers, scrutiny of nomination
papers and withdrawal thereof, publication of the list of eligible candidates,
allotment of symbols, appointment of election agents, the conduct of poll,
counting of votes, declaration of results and all other ancillary steps taken for the
purpose of holding elections fall within the ambit of the term "election". {N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency, Mohinder Singh Gill
v. Chief Election Commissioner, Election Commission of India v. Shivaji and
Election Commission of India v. Ashok Kumar (supra)}.
(2) (i) The bar contained in Article 243-O, which begins with non-obstante
clause, debars all Courts from entertaining any challenge to law relating to
delimitation of constituencies or allotment of seat made or purporting to be made
under Article 243-K or election to the Panchayats. This bar also operates against
the High Court's power of judicial review under Article 226. (N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency, Durga Shankar Mehta v. Raghuraj
Singh, Election Commission of India v. Shivaji and Election Commission of India
v. Ashok Kumar (supra)}
(ii) The proposition contained in Clause (i) above is subject to the condition that
challenge to the delimitation may be entertained in exceptional cases where no
objections were invited and no hearing was given provided that such challenge is
made before issue of notification for holding election. {State of U.P. v. Pradhan
Sangh Kshetra Samiti (supra)}.
(iii) The bar contained in Article 243-O (a) would operate immediately after
publication of notification of delimitation of Panchayat areas even in cases where
the same is challenged prior to issuance of notification of election.
.
(iv) The bar contained in Article 243-O(b) operates only till the adjudication of
election dispute by an adjudicatory forum created by or under any law made by
the Legislature of the State. An order made by an adjudicatory forum constituted
under the law made by the State Legislature can be called in question by filing a
petition under Article 226 of the Constitution.
(3) The bar contained in Article 243-O operates at all stages of the election i.e.
notification issued by the State Election Commission calling upon the electorate
to elect Pradhans and Up-Pradhans; reservation of offices of Pradhans in favour
of Scheduled Castes, Scheduled Tribes, Backward Classes and Women;
preparation, printing and publication of electoral rolls (provisional and final),
filing of nomination papers, scrutiny and withdrawal thereof; allotment of
symbols; appointment of election agents; counting of votes and declaration of
result.
(4) The bar contained in Article 243-O(b) does not operate qua challenge to the
constitutionality of a statutory provision relating to elections, though, even in
such a case, the High Court will be extremely loath to pass an interlocutory order
which has the effect of stalling or jeopardizing the process of election or which
may result in the constitutional hiatus on account of indirect violation of Article
243-K(3) read with Article 243-K(1).
(5) Where the petitioner raises grounds which is not barred under the aforesaid
provisions of the Constitution and is not covered in any one of the grounds as
prescribed under Section 175(1) of the Himachal Pradesh Panchayati Raj Act,
then the bar of alternate remedy by way of election petition under Section 162 of
the Act and further bar under Article 243-O of the Constitution would not be
attracted. Even in such cases, the Court will not normally pass interlocutory
orders, which has effect of interrupting, obstructing or protracting the election."
(emphasis supplied)
Before High Court of Karnataka, in Smt. Latha Vs.
State of Karnataka CWP Nos. 22740-762/2016, rendered on
judgment rendered on 06.01.2016, allocation of category-wise
reservation to Zila Panchayats for the posts of Pradhans/Up-
Pradhans was contended to be in breach of relevant Statute and the
Rules providing such reservation. State took up preliminary
objection regarding maintainability of the petitions in view of
.
Article 243-O of the Constitution of India. The Court held that
allotment of seats for the post of Pradhans in Zila Panchayat would
fall within the ambit and scope of Cluse (a) of Article 243 of
Constitution of India, therefore, writ jurisdiction of High Court
cannot be invoked. The only remedy provided and allowed by the
Authority.
r to
Constitution was of an Election Petition before the Competent
In the lead case, final reservation roster in different
Blocks of District Shimla was issued on 14.12.2020. The Election
Programme for conduct of general elections to Panchayati Raj
Institutions in the State has been notified on 21.12.2020. The
election process is already underway. Therefore, in view of ratio of
Ram Swaroop's case (supra), more particularly the conclusion
drawn in para 33(3) thereof, the bar contained in Article 243-O
becomes operative. The writ petitions, therefore, cannot be
considered as maintainable, at this stage.
Considering the above exposition of law, these writ
petitions and the grievance(s) raised by the petitioners cannot be
looked into at this stage when the elections for various Panchayati
Raj Institutions in the State have already been pronounced.
Accordingly, these petitions are dismissed reserving liberty to the
petitioners to avail appropriate remedy in accordance with law.
.
Pending applications, if any, also stand disposed of.
Before parting with the judgment, having taken note of
methodology adopted by the State in preparing, implementing and
rotating the election reservation roster for reservation of
offices/Gram Panchayats in elections to the Panchayati Raj
Institutions in the State and various contentions advanced by
learned counsel for the parties, we hereby issue following
directions to the State to be followed in future :-
(i) In cases of re-organization/bifurcation/separation/creation of Gram
Panchayats/Blocks etc., reservation of offices therein should be
allocated afresh based upon the 'changed' population structure in
accordance with relevant provisions of applicable Statute and the
Rules. However, while applying the Election Reservation Roster,
proper care should be taken so that reservation roster gets rotated
to the maximum extent possible ;
(ii) Grievances of the petitioners with respect to application and
rotation of election reservation roster over changed territories of
Gram Panchayats/Blocks, howsoever genuine these might be,
cannot be examined at this stage when election process is already
underway, in view of bar imposed by Article 243-O of Constitution
of India. In such circumstances, we direct the respondent-State to
ensure that, in future, the notification reserving offices in the Gram
.
Panchayats/Blocks in the State for various categories in elections to
Panchayati Raj Institutions is published and placed in public
domain on the website of State Election Commission at least three
months prior to the commencement of election process to enable
timely adjudication of disputes pertaining to application/rotation of
same be also taken accordingly.
r to
election reservation roster. All consequent steps in furtherance of
With the above observations, all the writ petitions are
disposed of in the aforesaid terms.
Tarlok Singh Chauhan,
Judge
6th January, 2021 (K) Jyotsna Rewal Dua,
Judge
