Sunita Sharma vs State Of Himachal Pradesh & Others
2023 Latest Caselaw 1856 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Writ Petition No.1041 of 2021 Decided on : March 6, 2023

.

Sunita Sharma

.....Petitioner Versus

State of Himachal Pradesh & others ....Respondent

Coram:

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes.

    For the Petitioner       :     Mr. Ajay Sharma, Senior Advocate,
                    r              with Mr. Ajay Thakur, Advocate.

    For the respondent       :     Mr. Hemant Vaid, Additional Advocate
                                   General, for respondents No.1 to 3.
                                   Mr. Nimish Gupta,             Advocate,         for
                                   respondent No.4.


                                   Mr. Kapil Dev Sood, Senior Advocate,
                                   with Mr. Het Ram Thakur, Advocate,
                                   for respondent No.5.




    Vivek Singh Thakur, Judge

In instant petition, petitioner has assailed action of

respondents-State, allowing respondent No.5 to contest and

thereafter elect her as President of Municipal Council Dehra,

District Kangra against the seat reserved for Women

(General), on the ground that respondent No.5 Sunita Kumari,

for belonging to a Scheduled Caste category, was not eligible

to contest and seek election as President/Chairperson, which

was reserved for Women belonging to General Category.

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2. I have heard Mr. Ajay Sharma, learned Senior

Advocate, on behalf of petitioner; Mr. Kapil Dev Sood, Senior

Advocate, appearing for respondent No.5 and Mr. Hemant

.

Vaid, learned Additional Advocate General, for respondent-

State, and have also gone through the material placed before

me.

3. Undisputed facts, in present case, are that for

conducting elections for Members/Office-bearers of Municipal

Commissioner r Kangra

Councils and Nagar Panchayats in District Kangra, Deputy

issued Order dated

announcing category-wise reservation of the Wards, whereby 4.9.2020,

Ward No.3 Hanuman Mandir was allocated to General

Category, whereas Ward No.6 Shiv Mandir was reserved for

women.

4. On 17.12.2020, Government of Himachal Pradesh

issued Notification, notifying reservation to the Offices of the

Chairpersons in Municipalities in District Kangra, wherein

office of Chairperson of Municipal Council Dehra was reserved

for Women (General) Category.

5. Petitioner and respondent No.5 are elected

Members of Municipal Council Dehra. Petitioner contested

election from Ward No.6 Shiv Mandir against a seat reserved

for Women (General Category), whereas respondent No.5

contested election from Ward No.3 Hanuman Mandir allocated

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for General Category. It is also undisputed that respondent

No.5 belongs to Scheduled Caste category.

6. Elections for electing Members of Municipal

.

Council Dehra were conducted from on 10.1.2021 onwards

and petitioner and respondent No.5 were declared elected as

Ward Members from their respective Wards from which they

contested the election. Thereafter, election for Office of

President/Chairperson of Municipal Council Dehra, which was

7.

r to reserved for Women belonging to General Category, was fixed

on 18.1.2021.

Vide communication dated 15.1.2021, Returning

Oficer-cum-SDO(C), Dehra, sought clarification from Deputy

Commissioner, Kangra, regarding reservation of post of

President in Municipal Council Dehra, on the following points:

"1. Whether a women of any category is eligible

for the post of president?

2. If a women has not taken benefit of her SC

category and has fought election in open ward, whether she is eligible for president post?

3. The women candidate has not attached any caste certificate with her nomination paper

4. In case the candidate of President seat under general category has no majority, what procedure we should adopt?"

8. District Election Officer-cum-Deputy

Commissioner, Una, had also sought clarification with respect

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to reservation of seats of Chairpersons and Members of Urban

Local Bodies (ULB). In response thereto, vide communication

dated 16.1.2021, Secretary (UD) to the Government of

.

Himachal Pradesh had conveyed to the District Election

Officer-cum-Deputy Commissioner, Una, as under:

"I am directed to refer to your letter No.60/ADC/ LFA dated 12/01/2021 on the subject cited above and to say that similar matter was referred to Law Department by the Panchayat Raj Department and the

opinion of the Law Department is as under:-

"The Hon'ble apex Court vide Judgment dated 10-02-2009 passed in Civil Appeal No.976 of 2009 titled as Bihari Lal Rada Vs Anil Jain (Tinu) r and others on the basis of the Law laid down by the Hon'ble Apex Court in other cases has held

that there is nothing in law that a person belonging to backward class and got himself elected from a ward reserved for that class is debarred from contesting the election in the office of President/Chairperson when that office

is not reserved and meant to be filled in from the members belonging to the general category. From the law laid down by the Hon'ble Apex Court in the above titled case, this department is

of the view that when a seat has been reserved for general category women then the women of Scheduled casts, Schedule Tribes and backward

class category are also eligible for contesting election against that seat.""

Similar advice was communicated to the District Election

Officer-cum-Deputy Commissioner, Kangra, as well as

Returning Officer-cum-SDO (Civil) Dehra.

9. Election of Chairperson/President of Municipal

Council Dehra was conducted on 18.1.2021, wherein

respondent No.5, Member from Ward No.3, was elected

unanimously for the post of President.

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10. Grievance of the petitioner is that respondent

No.5 belongs to Scheduled Caste category, whereas post of

Chairperson was reserved for Women belonging to General

.

Category and, therefore, petitioner had filed representation

before Returning Officer-cum-SDO (Civil), Dehra, in

furtherance whereto clarification was sought by Returning

Officer-cum-SDO (Civil), Dehra, which was responded by the

State, in terms of communication dated 16.1.2021, informing

that women belonging to any category can contest the

election for office of Chairperson reserved for Women

(General) Category, whereas, according to the petitioner, a

woman belonging to Scheduled Caste category, despite

elected as Member from a Ward reserved for women

belonging to General Category, cannot be permitted to

contest the election for the office of Chairperson/ President of

Municipal Council reserved for Women belonging to General

Category. It is claim of the petitioner that post reserved for

Woman of General Category means a post reserved for all

women, but excluding the women belonging to reserved

category.

11. Referring pronouncement of a two-Judges Bench

of Supreme Court in Sarswati Devi v. Shanti Devi (Smt.) and

others, (1997) 1 SCC 122, it has been contended that seats

meant for General Category are to be filled only by candidates

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elected on the seats reserved/meant for General Category,

and reservation of seat of President/Chairperson of Municipal

Council to a category is for the Member elected from the seat

.

reserved for the said category.

12. Referring pronouncement of the Supreme Court in

Kasambhai F. Ghanchi v. Chandubhai D. Rajput and others,

(1998) 1 SCC 285; and Bihari Lal Rada v. Anil Jain (Tinu) and

others, (2009) 4 SCC 1, it has been submitted that idea of

providing reservation is to give benefit to the weaker section

of the society but not to the persons like respondent No.5,

who, despite belonging to the Scheduled Caste category, has

been elected from the seat allocated for General Category and

is holding the post of President/Chairperson of the Municipal

Council, repeatedly grabbing the chances of women belonging

to General Category by depriving them from being elected to

the post of President/ Chairperson.

13. It has been contended on behalf of petitioner that

definition of word "general" referred in Bihari Lal Rada's case

is not applicable in present case, as the provisions contained

in Chapter-III of the Himachal Pradesh Municipal Election

Rules, 2015 provide reservation of seats to the General

Category, wherein sub-rule (7) of Rule 12 clearly prescribes

that out of total offices, including the office reserved for

Scheduled Castes and Scheduled Tribes (including women

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belonging to Scheduled Castes and Scheduled Tribes), one

half of the offices shall be reserved for women and the

Municipality having the next highest women population

.

percentage shall be reserved for women belonging to General

Category.

14. It has been contended by the learned counsel for

the petitioner that when an Office has been reserved for

women belonging to General Category, it means that such

reservation for General Category is in exclusion of the

Scheduled Castes and Scheduled Tribes women, and, thus,

respondent No.5, being a women belonging to a Schedule

Caste, cannot contest for the seat or Office reserved for

women belonging to the General Category.

15. It is also contended on behalf of the petitioner that

Returning Officer-cum-SDO (Civil) has not applied his

independent mind while dealing with the representation

submitted by the petitioner but has acted upon the advice of

the Deputy Commissioner, communicated to him on the basis

of the advice of the Secretary of the Urban Department/Law

Department, which is impermissible in law as Returning

Officer has to decide the matter applying his own mind and, in

present case, there is complete non-application of mind by the

Returning officer as he, instead of applying his mind, has

followed the instructions of the Higher Authorities.

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16. Referring State of Punjab and others v. Mohabir

Singh and others, (1996) 1 SCC 609, it has been contended

that it is duty of the authority to take a decision itself but not

.

under the direction or as per dictates of the higher authorities

and failure of the authority to do so amounts to non-

application of mind and, as such, decision is not sustainable.

Referring judgment of a Coordinate Bench of this Court,

passed in CWP No.7295 of 2012, titled as Ajay Parihar v. State

of H.P., decided on 18.5.2016, it has been contended that a

process must be completed and an act by the authorities must

be done in the manner as provided under the Act, Rules and

Law and, therefore, it has been contended that Returning

Officer had to take decision at his own, without referring the

matter to the higher authorities with respect to eligibility of

respondent No.5 to contest the election of the post/office of

the President/ Chairperson of the Municipal Council and it has

been contended that on this count petition deserves to be

allowed.

17. With respect to maintainability of the petition, it

has been canvassed on behalf of the petitioner that in present

case there is issue involved regarding exercise of power by

the concerned authority in illegal manner and the said issue

cannot be adjudicated in Election Petition. Therefore,

petitioner is entitled to invoke extraordinary jurisdiction of this

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High Court as provided under Article 226 of the Constitution of

India (Constitution).

18. It has been contended on behalf of respondents

.

that in pronouncement of the Supreme Court in Civil Appeal

No.976 of 2009 (arising out of SLP (Civil) No.19237 of 2008),

titled as Bihari Lal Rada Vs Anil Jain (Tinu) and others, decided

on 10-02-2009, reported in (2009) 4 SCC 1, it has been held

that post of President of Municipality which is required to be

filled-in by a Member belonging to Scheduled Castes,

Scheduled Tribes or Backward Classes, as the case may be,

can be filled by any Member belonging to one of those

categories, irrespective of the fact whether they have been

elected from a general ward or a reserved ward and,

therefore, present petition is not maintainable.

19. It has been submitted on behalf of respondents

that the post, in present case, was reserved for "women" and

respondent No.5, being a woman, is entitled to contest the

election from any Ward open for all, reserved for women of

General Category, in addition to Ward reserved for Scheduled

Caste Category and the fact of her belonging to a Scheduled

Caste category cannot come in her way for contesting election

for the post meant for "general category" or "women

belonging to general category".

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20. It has been contended on behalf of the

respondents that petitioner, though participated in the

election process conducted for the post/office of

.

President/Chairperson of Municipal Council, but she was not a

candidate, as no nomination by her or on her behalf was filed

and none of the elected Members proposed her name to the

post/office of President/Chairperson of the Municipal Council

and she had not objected to the election of respondent No.5

as Chairperson/ President of Municipal Council Dehra and,

therefore, she has no right and entitlement to file and

maintain the present writ petition.

21. It has been further submitted on behalf of

respondents that petitioner has alternate remedy of filing

Election Petition to challenge the election of respondent No.5

but she has failed to avail the same and on this count also

present petition is not maintainable.

22. Mr. K.D. Sood, learned Senior Advocate, referring

pronouncement of this Court in Manish Dharmaik v. State of

Himachal Pradesh and others, 2021(1) Him LR (DB) 376; and

CWP No.691 of 2021, titled as Kauser v. State Election

Commission and others, decided on 8.2.2021, as well as

provisions of Article 243ZG of the Constitution, has contended

that present petition is not maintainable.

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23. In Sarswati's case, the Supreme Court had held

that for contesting for the seat/office of President/Chairperson

of the Municipal Council reserved/meant for a particular

.

category, contestant must be elected as Member from a seat

reserved/meant for such category. In other words, the seat

reserved/meant for woman belonging to General Category can

only be occupied by a Member elected from the seat reserved

for women belonging to General Category. Heavy reliance has

24.

r to been placed, by the learned counsel for the petitioner, on this

pronouncement.

Pronouncement in Sarswati's case was considered

by a three-Judges Bench of the Supreme Court in Kasambhai's

case, wherein it was held that conclusion arrived at Sarswati's

case did not flow from the language of relevant provision and

it is not in consistent with the concept of reservation and,

thus, it does not lay down a correct law. Therefore, reliance

on behalf of the petitioner on a judgment already overruled by

a Larger Bench of the Supreme Court is of no help to her.

25. In Bihari Lal Rada's case, similar issue had arisen

for consideration before the Supreme Court, wherein it was

contended that where office of President is meant for General

Category, there only a candidate, who had contested and won

from a general seat alone was entitled to contest for the post/

office of President. Referring observations made in

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Kasambhai's case, the aforesaid plea was rejected by the

Supreme Court as under:

"34. The construction suggested by Shri Patwalia,

.

that the word 'belonging to' governs 'general category'

is grammatically attractive but suggested construction not only would defeat the main purposes of the provisions and the scheme of the Act, which is to make

special provisions for those with special needs, and to the understanding of the Legislature when it enacted Section 10 and 18 of the Act, 1973. The apprehension that persons belonging to general category may loose their chance forever or for a long time to get

themselves elected is totally untenable and unsustainable. The whole idea is to see that minimum number of seats as provided for is filled in by vulnerable sections of the Society. There can never be any constitutional or legal objection if more members

from those weaker sections get elected to the

Municipalities on their own merit from the seats meant for the unreserved category.

35. In our view, the question is no more in res integra

but squarely covered by the decision of this Court reported in Kasambhai F. Ghanchi Vs. Chandubhai D. Rajput & Anr. [1998 (1) SCC 285]. In that case the appellant therein who belonged to Backward Class but

had been elected to the Jambusar Municipality from an unreserved seat stood for election for the post of

President of the Municipality which was reserved for a Backward Class candidate. The only question that had fallen for consideration in the said case was: Whether

the appellant, who belongs to a Backward Class but had been elected to the Jambusar Municipality from an unreserved seat, could stand for election for the post of President of the Municipality which was reserved for a Backward Class candidate or whether the candidate for that post could only be a person who was elected to the Municipality from a seat which was reserved for the Backward Class? This court held:

"13. The idea of providing reservation for the benefit of the weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is

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also an effort to improve their lot. The reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. If because of their popularity a larger number of Scheduled

.

Castes, Scheduled Tribes, Backward Classes or

women get elected to the municipality than the number of reserved seats that would be welcome. When the idea is to promote the

weaker sections of the society, and to improve their lot, it would be a contradiction in terms if members belonging to that section are debarred from standing to the office of the President because such a candidate is popular enough to

get elected from a general constituency. It is a fundamental principle of democratic election that a person who is more popular is elected, popularity being measured by the number of r votes which the person gets. The language of various legal provisions do not in any way

suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be

barred from contesting the election of the President when that office is to be filled only by a reserved category person."

36. It was further observed: (Kasumbhai case)

"16. The Act and the Rules provide for reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and women. No

reservation or classification is made ward-wise. To put it differently all members of the Scheduled Castes, for example, will be regarded as belonging to one class irrespective of the fact whether they had been elected to a reserved seat or to a general seat. Similar is the position with regard to the Backward Classes, Scheduled Tribes and women. The law does not contemplate or provide for any further sub- classification of the type which has been suggested by the respondents. Just as all members of the municipality, irrespective of the fact whether they had been elected to a

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reserved seat or not, are eligible for election to the post of the President when it falls in the general category, similarly when as per the roster the President is to be one who, say, belongs to the category of Scheduled Caste then

.

all members of the municipality who are

Scheduled Caste, irrespective of the seat to which they had been elected, would be eligible to stand for election. Neither the Act nor the

Rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the President of the

municipality." (Emphasis supplied)

37. Shri Patwalia, however, made an attempt to distinguish the said judgment by submitting that the

Gujarat Municipal Act did not provide for any post of the President to be elected from the candidates

belonging to general category, therefore, a Backward Class candidate although elected from a general category seat was held to be entitled to contest for the office of the President since the said office was

reserved only for Backward Class. It was submitted that the requirement in that case was that the candidate must be a backward class candidate and it did not matter from which category of seat he was

elected.

38. According to him in the present case the office of the President is meant for general category and only a candidate who had contested and won from a

general seat alone was entitled to contest for the office of the President. We find it very difficult to rationalize much less endorse the argument advanced by the learned senior counsel.

39. In Kasambhai F. Ghanchi this Court while examining the true import and effect of the provisions of Article 243T of the Constitution of India observed:

"There is no indication or suggestion in Article 243-T or in the Act that in case the office of the President is required to be filled by a member who is a Scheduled Caste, Scheduled

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Tribe, Backward Class or a woman, then only a member who has been elected from a reserved seat can stand for election. In other words, for the purpose of election to the post of President the reservation which is contemplated by the

.

Act is only to the effect that the person elected

should belong to the category of Scheduled Caste, Scheduled Tribe, Backward Class or woman, as per the roster. Conceivably, as in the

present case, an elected member may fall within two or more categories and, in this way, may be in a position to seek re-election as envisaged by Section 33 of the Gujarat Municipal Act. If this is not so, and with the category changing every

year, as per the roster, Section 33 will become redundant. The legislative intent, therefore, clearly is that one person, whether elected from reserved or general seat, but who belongs to the r category out of which the President is to be elected, can seek re-election as envisaged by

Section 33 of the Act."

CONCLUSION

40. Be that as it may, neither Article 243T of the Constitution nor Section 10 (5) of the Haryana Municipal Act provide for any reservation to the office of the President in favour of any candidate who does

not belong to Scheduled Caste or Backward Class. Obviously there cannot be any such reservation of

seats in Municipalities nor to the office of Chairperson in favour of candidates belonging to general category. There is no separate category like general category.

The expression belonging to the general category wherever employed means the seats or offices earmarked for persons belonging to all categories irrespective of their caste, class or community or tribe. The unreserved seats euphemistically described as general category seats are open seats available for all candidates who are otherwise qualified to contest to that office.

41. The word 'General' derived from Latin word genus.

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"....It relates to the whole kind, class, or order. Pertaining to or designating the genus or class, as distinguished from that which characterizes the species or individual; universal, not particularized, as opposed to special; principal or

.

central, as opposed to local; open or available to

all, as opposed to select; obtaining commonly, or recognized universally, as opposed to particular; universal or unbounded, as opposed

to limited; comprehending the whole or directed to the whole, as distinguished from anything applying to or designed for a portion only. Extensive or common to many." (See Black's Law Dictionary, 6th Edition).

42. There is nothing in the provisions of the Act, 1973 suggesting that in case the office of the President of a Municipality is required to be filled in from the

members belonging to the general category then only a member who has been elected as such from an

unreserved ward alone can stand for election. There is nothing in law that a person belonging to Backward Class and got himself elected from a ward reserved for that class is debarred from contesting the election to

the office of President/Chairperson when that office is not reserved and meant to be filled in from the members belonging to the general category.

43. In our view, wherever the office of the President of a Municipality is required to be filled in by a member

belonging to Scheduled Caste, Scheduled Tribe or Backward Class as the case may be it would be enough if one belongs to one of those categories irrespective

of the fact whether they have been elected from a general ward or a reserved ward. Likewise, the office of the President of a Municipality if not reserved or meant for general category, all the candidates irrespective of their caste, class or community and irrespective of the fact whether they have been elected from a reserved ward or a general ward are entitled to seek election and contest to the office of the President of the Municipality."

26. No doubt, Rule 12(7) speaks about reservation of

one half of the offices, out of total offices, for women

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belonging to General Category, excluding the offices reserved

for Scheduled Castes and Scheduled Tribes, including women

belonging to Scheduled Castes and Scheduled Tribes. There is

.

exclusion of offices/seats reserved for Scheduled Castes/

Scheduled Tribes, including seats/offices reserved for women

belonging to Scheduled Castes/Scheduled Tribes, because

50% of seats of total seats/offices reserved for Scheduled

Castes/Scheduled Tribes has already been reserved for

women belonging to Scheduled Castes/Scheduled Tribes in

Rule 12(5). But, it, i.e. Rule 12(7) does not say that a woman

belonging to Scheduled Caste or Scheduled Tribe category

cannot contest to the post/office reserved for women

belonging to General Category. As a matter of fact, this sub-

section provides reservation for 'women' but not reservation

for General Category. As observed by the Supreme Court in

Bihari Lal Rada's case, 'General Category' means open to all.

It is inclusive of entire unreserved category as well as reserve

categories such as Scheduled Castes, Scheduled Tribes, Other

Backward Classes, etc.

27. Reservation is for women but not for General

Category. 'General Category' means 'all' and 'reservation for

all' makes no sense. Thus appropriate meaning of 'General

Category' is open for all.

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28. Reservation has been provided exercising power

under Articles 15 and 16 of the Constitution. Clauses (3) and

(4) of Article 15 of Constitution empower the State to provide

.

reservation for socially and educationally backward classes of

citizens, for Scheduled Castes and Scheduled Tribes and

women. There is no provision in the Constitution to provide

reservation to General Category. As a matter of fact, "General

Category" means all classes, including the categories for

whom reservation has been provided. Seats meant for

General Category cannot be filled by excluding any person of

any category who is otherwise eligible and entitled for that on

his own merit.

29. Reservation to the Members of Municipal Council

as well as Chairpersons of Municipalities has been provided in

the Constitution under Article 243T of PART IX-A, dealing with

the Municipalities. Power to provide such reservation flow

from Article 15 of the Constitution and, therefore, provisions of

such reservation are to be interpreted in consonance with the

provisions of Article 15(1) of Constitution, which provides that

the State shall not discriminate against any citizen on the

ground only of religion, race, caste, sex, place of birth or any

of them. Clauses (3), (4), (5) & (6) of Article 15 are exceptions

carved out therein providing reservation for certain classes

which nowhere provides that there shall be reservation in

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favour of 'General Category' in exclusion of Scheduled Castes

and Scheduled Tribes or Other Backward Classes.

30. Provisions of Article 15 or 243T of the Constitution

.

nowhere provide that seat of Member in Municipalities or

office of President/Chairperson can be reserved in favour of

persons belonging to General Category. "General Category"

is, in fact, an Open Category, which is not a quota for a

separate class but a category available to all men and women.

Provision of reservation is not aimed for dividing the society in

separate segments by providing reservation to each class by

creating a class as 'General Category' in exclusion of other

reserved categories.

31. Vertical Reservation for Scheduled Castes,

Scheduled Tribes and Other Backward Classes and horizontal

reservation for women is based upon historical and social

reasons, as these classes of the society were and are living in

adverse social environment, difficult geographical terrains,

living conditions, hostile atmosphere and large segment of

these classes is being discriminated and deprived of equal

social status in the society, so as to give them an environment

of equal opportunity with dignity to grow and bloom together

with other privileged classes of the society. Reservation has

been provided to socially and educationally backward classes,

which include Scheduled Castes, Scheduled Tribes, Other

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Backward Classes and Women, for providing them an

opportunity to gain equal status and dignity in the society.

Even as on date, persons belonging to a section of society not

.

permitted to enter in the house and temple; to fetch water

from common source; to have community feast together with

all classes, particularly so-called "General Category" people.

There are instances where even luggage of teachers is thrown

from accommodation rented to them on disclosure of their

r to caste; groom is not allowed to ride horse in his marriage

procession and in some places marriage procession is not

permitted to cross the village with band party. A larger

section of the society considers women as second grade

citizens not entitled to take decision on their own and there

are instances where instead of elected women candidates as a

Member/Office bearer of the Local Self Body, oath is sworn by

the husband by not permitting the wife to do so. The women

are not allowed to choose life partners of their choice and the

inter-caste marriage results into honour-killing, even burning

the couple alive, etc. These are few examples of so many

unending historical and social reasons, which are still

continuing, for which reservation has been provided for

Scheduled Castes, Scheduled Tribes, Other Backward Classes

as well as Women, but not for others. The reservation has

been provided to bring all at par.

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32. Thought behind providing reservation is that

weaker section of society, nourished with medicine of

reservation, shall, one day, become equal in status with equal

.

opportunity of growing and living in the society to live a

dignified life among all. Reservation may be equated with

crutches which are not necessitated to be provided to healthy

person but definitely to those who are not able or permitted to

stand on their legs or whose legs are weak for deprivation of

healthy atmosphere and

to equal status in

Therefore, there is no provision for providing separate

reservation to all sections of society.

the society.

33. Bharat has a heritage of an incomparable rich

culture and well developed society, based on Dharma, i.e.

Rule of Law, wishing marching of all together towards

prosperity. Oldest text Vedas pronounce that all be live

together, grow together, progress together, eat together and

march together towards the ultimate goal of life. But for

taboos and evils ingrained in the society during medieval era

we are behaving contrary to that spirit of Vedas, our ancient

rich values, culture and real Dharma and despite framing the

Constitution to achieve the goal for providing justice, liberty

and equality to all with fraternity, as envisaged in the

Preamble of the Constitution, our society is following practices

which are blur on the Indian Society and that is the reason for

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providing and continuation of reservation for deprived,

downtrodden and suppressed classes.

34. Reservation is not a quota provided to the

.

sections of the society by dividing the society in Scheduled

Castes/Scheduled Tribes/Other Backward Classes and General

Categories, in exclusion of rest from every category, but a

special provision or measure to ensure achievement of

Constitutional Goal of equality of status with dignity to all

sections of the society by providing a crutch to those whose

legs are broken or not permitted to be developed or suffering

from disease because of ill, undemocratic and irreligious

behaviour of the society. Therefore, cases related to

reservation are to be adjudicated in aforesaid historical and

social background and the conditions prevailing as on date in

the society but not on the basis of pseudo-equality, as

'unequals cannot be treated as equals'.

35. From the above discussion, it has emerged that

Vertical Reservation has been provided to achieve the goal of

the Constitution for providing social, economic, and political

justice with liberty of thought, expression, belief, faith and

worship and with equality of status and of opportunity, by

inculcating fraternity amongst all citizens with aim to protect

unity and integrity of the nation. Classes to whom Vertical

Reservation has been provided have not been excluded from

CWP No.1041 of 2021 ...23...

the mainstream or the entire society. Therefore, seats 'open

to all' or meant for "General Category" are available to all

sections of the society, including the section to whom Vertical

.

Reservation has been provided. "Open Category" or "General

Category" is not a category remained after subtracting the

categories to whom Vertical Reservation has been provided

but Open or General Category includes all, irrespective of

religion, race, caste, sex or place of birth. Everybody is free to

compete

36.

               and contest,
                    r          to
                               on   his/her    own merit,

categories provided benefit of Vertical Reservation.

Reservation for women has also been provided to including

ensure their equal participation in every field of life, including

social and administrative matters. Article 243T of the

Constitution mandates that seats not less than one-third of

total seats, including seats for reserved category, shall be

reserved for women candidates in their respective category.

Therefore, one-third or more seats can be reserved for women

in Municipalities and that seat of Member or office of

President/Chairperson of the Municipality can also be reserved

for women.

37. In Himachal Pradesh, Rule 12, contained in

Chapter-III of the Himachal Pradesh Municipal Election Rules,

2015, provides reservation of 50% seats for women in the

Municipalities. It provides that 50% of seats available in each

CWP No.1041 of 2021 ...24...

category, i.e. General Category, Scheduled Castes Category,

Scheduled Tribes Category, shall be reserved for women in

each category separately. There are two sets of seats

.

available in Vertical Reservation. For one set, in the General

Category, all men and women belonging to all categories,

irrespective of religion, race, caste, sex or place of birth,

subject to eligibility, are competent and entitled to contest.

For seats reserved for Scheduled Castes and Scheduled

Tribes, sometimes denoted as 'SC (General) and ST (General)',

all men and women of respective category, subject to

eligibility, are competent and entitled to contest for the seats

in their respective category. All men and women, entitled to

compete and contest the seat reserved for Scheduled

Castes/Scheduled Tribes/Other Backward Classes, are also

entitled to contest the seat meant for Open or General

Category.

38. Reservation of seats for women is also in aforesaid

terms, but excluding men. Therefore, all women belonging to

all categories, irrespective of their religion, race, caste, sex or

place of birth, subject to eligibility, are entitled to contest

election for the seats meant for all as well as women

belonging to Open or General Category. All women entitled to

compete and contest the seat reserved for Scheduled Castes

CWP No.1041 of 2021 ...25...

and Scheduled Tribes are also eligible for seat meant for all as

well as women belong to Open or General Category.

39. It is evident from the aforesaid discussion that a

.

man or a woman may be eligible to contest election from

more than one seat, in different capacity, as a candidate

belonging to reserved category can contest election for a seat

meant for General Category as well as reserved category, and

such person shall also be entitled to contest the election of

Member or office of President/Chairperson of the Municipality

in either capacity. There is no legal impediment or bar to a

person, including a man and a woman, to exercise his/her

right to contest in either category. Therefore, a woman

belonging to reserved category can contest election for the

seat of Member available for General Category, which is open

for all, including men and women, and she can also contest for

seat reserved for women belonging to General Category.

Similarly, a Member belonging to Scheduled Caste Category is

not disentitled for contesting and competing for the office of

President or Chairperson available for General Category or

meant for Open Category, which is available to all,

irrespective of their religion, race, caste, sex or place of birth.

Therefore, respondent No.5 was eligible to contest and hold

the post of President/Chairperson of the Municipality reserved

for 'women' belonging to General Category.

CWP No.1041 of 2021 ...26...

40. Contention of the petitioner that by seeking

clarification and explanation from the higher authorities,

concerned authority has not applied its own mind to decide

.

the issue raised before it, is also misconceived. Definitely,

decision should be taken by the concerned authority at its

own which is conferred power for that purpose and every act

of the authority must be done in the manner as provided

under the Act, Rules or Law, but, at the same time, any

authority/officer is not prohibited seeking aid and advice from

the superiors or from the experts or Law Department of the

State or otherwise, so as to arrive at a right conclusion before

arriving at a conclusion to take decision. It is not a case

where the competent authority had submitted the case before

the higher authority for dictating him the decision thereon but

it is a case where on receiving representation of the

petitioner, the competent authority sought clarification in the

matter and after receiving the clarification, that too based

upon the pronouncement of the Supreme Court, has decided

the issue raised by the petitioner and permitted respondent

No.5 to contest election for and hold the post of President/

Chairperson of the Municipality reserved for 'women'

belonging to General Category. Therefore, I am of the opinion

that the issue raised by the petitioner is misconceived and is

not sustainable.

CWP No.1041 of 2021 ...27...

41. Sections 283 and 296 of the Himachal Pradesh

Municipal Act, 1994, contained in Chapter XVII - Disputes

relating to Election, read as under:

.

"283. Election Petitions.-No election under this Act shall be called in question except by an election petition presented in accordance with the provisions of this

Chapter.

.................

296. Grounds for setting aside election.-

(1) If the authorised officer is of the opinion -

(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or

(b) that any corrupt practice has been r committed by the elected person or his

agent or by any other person with the consent of the elected person or his agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it

concerns the elected person, has been materially affected -

                              (i)     by the improper acceptance of any
                                      nomination; or





                              (ii)    by improper reception, refusal or
                                      rejection of any vote or the
                                      reception of any vote which is void;
                                      or

                              (iii)   by any non-compliance with the
                                      provisions of this Act or of any rule
                                      made under this Act; the authorised
                                      officer shall set aside the election
                                      of the elected person.





                                               CWP No.1041 of 2021
                                   ...28...

(2) When an election has been set aside under sub-

section (1), a fresh election shall be held."

42. Contention of the petitioner that unlawful exercise

.

of power by the authority cannot be adjudicated in an Election

Petition is also misconceived, as any action of the concerned

authority, contrary to provisions of law, including allowing

ineligible person to contest and compete and to be elected

can be adjudicated in the Election Petition as the same very

action shall be in question to lay challenge to the election of

unqualified or disqualified or ineligible person to the post/

office. Therefore, plea raised in present petition was available

to the petitioner for filing Election Petition to assail the

election of respondent No.5.

43. Article 243 ZG creates bar to interference by

Courts in electoral matters, which reads as under:

"243ZG. 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 243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as it provided for by or under any law made by the Legislature of a State."

CWP No.1041 of 2021 ...29...

44. The aforesaid provisions are pari materia to the

provisions related to Gram Panchayats, contained in Article

243-O of the Constitution.

.

45. A Division Bench as well as a Coordinate Bench of

this High Court in Manish Dharmaik v. State of Himachal

Pradesh and others, 2021(1) Him LR (DB) 376; and CWP No.691

of 2021, titled as Kauser v. State Election Commission and

others, decided on 8.2.2021, have already discussed the law in

this regard in the matter related to Panchayat and has arrived

at conclusion that a petition, like present one, is not

maintainable at all and, thus, on this sole point present

petition is liable to be dismissed.

46. I find force in the contention of the respondents

that at the time of election of President/Chairperson of the

Municipality, name of petitioner was not proposed by any of

the elected Member of the Municipality and she was not a

contesting candidate in the election and, therefore, she has no

right to file the present petition. It is not a case that in case of

ineligibility of respondent No.5, petitioner was the only

available candidate, as a women Member belonging to

General Category. Therefore, also petitioner is not entitled to

maintain the present petition.

47. It is also settled that availability of alternative

remedy is not an absolute bar to entertain a petition under

CWP No.1041 of 2021 ...30...

Article 226 of the Constitution. In an appropriate case, for

valid reasons and grounds, writ petition may be entertained

under Article 226 of the Constitution, as power of Judicial

.

Review provided to the High Courts, under the Constitution, is

not inhibited by any provision of alternate remedy. But, in

present case, no such extraordinary exceptional case is made

out, entitling the petitioner to maintain the present writ

petition.

48.

In election matters, person can be unseated by

way of not only Election Petition but also by filing an

appropriate Writ Petition of Quo Warranto, by a person, where

there is no alternate remedy is available, and the elected

person, being ineligible to hold the said office, has usurped

the post and power, but for petitioner, in present case, in the

facts and circumstances narrated hereinabove, such recourse

is also not available, as even otherwise, as discussed supra,

respondent No.5 is not ineligible person to hold the office of

Chairperson/President of Municipal Council so as to enable the

petitioner to maintain a writ petition of Quo Warranto against

her for holding the said office because respondent No.5 is

eligible and entitled to hold the said office.

49. In view of above discussion and in the light of the

earlier pronouncements of the Courts, I find no merit in the

CWP No.1041 of 2021 ...31...

present Writ Petition. Accordingly, the Writ Petition is

dismissed.

Writ Petition stands disposed of, so also pending

.

application, if any.

                                          ( Vivek Singh Thakur )
    March 6, 2023(sd)                              Judge.




                    r         to