Madhya Pradesh High Court
Jayesh Gurnani vs Madhya Pradesh State Election ... on 10 January, 2022
Author: Subodh Abhyankar
1
WP No.12517/2021
THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH
Single Bench : Hon'ble Shri Justice Subodh Abhyankar
Writ Petition No.12517/2021
(Jayesh Gurnani s/o Mr. Ravi Gurnani & another v. Madhya Pradesh State Election Commission & others)
1 Case No. Writ Petition No.12517/2021
2 Parties Name Jayesh Gurnani s/o Mr. Ravi Gurnani
Dilip Kaushal s/o Late Gulab Kaushal
Versus
Madhya Pradesh State Election Commission AND TWO
OTHERS
3 Date of Order 10th of January, 2022
4 Bench constituted of Single Bench
Hon'ble Shri Justice Subodh Abhyankar
Hon'ble Justice
5 Order passed by Hon'ble Shri Justice Subodh Abhyankar
6 Whether approved for Yes
reporting
7 Name of counsel for the Shri Vibhor Khandelwal, learned counsel for the petitioners.
Shri Kamal Airen, learned counsel for respondent No.1 /
parties Madhya Pradesh State Election Commission.
Shri Valmik Sakargayen, learned Panel Lawyer for
respondents 2 and 3 / State of Madhya Pradesh.
8 Law laid down 1. The sole issue which falls for consideration of this
Court is whether the gazette publication regarding
reservation of Municipal wards, issued by the State
Government on 06.11.2020, meets the constitutional
validity, as provided under Article 243-T of the
Constitution of India. (Para 23)
Held: Considering the provisions of the Act and the
Rules in the light of the constitutional provision i.e.
Article 243-T, it is found that the provision of rotation
of different seats is indeed provided in the Act as well
as the Rules and are in line with the provisions of
Article 243-T of the Constitution. (Para 25)
Judgment relied: -
K. Krishna Murthy (Dr.) and others v. Union of
India and another reported as (2010) 7 SCC 202;
"This rotational policy is a safeguard against the
possibility of a particular office being reserved in
perpetuity. It is pertinent to note that unlike the
reservation policy for panchayats, there are no
comparable provisos to Article 243-D (4) for guiding
the reservation of chairperson positions in
Municipalities. This is a notable distinction between the
otherwise analogous schemes prescribed in Article 243-
D and Article 243-T."
(Para 29)
Judgment relied: -
Sant Ram Sharma v. State of Uttar Pradesh and
others reported as 2015 SCC OnLine All 9574 = AIR
2
WP No.12517/2021
2016 (NOC 686) 318 (Para 30)
"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."
Judgment Distinguished: Tulsiram Jatav v. Union of
India & others reported as 1999 SCC OnLine MP 383
= (2001) 4 MP LJ 132.
2. Any conflict between the decision rendered by a
bench of this Court and the subsequent decision rendered
by the Supreme Court on the same issue, it would be the
Supreme Court's decision which would prevail under
Article 141 of the Constitution of India. (Para 30)
9 Significant paragraph 23, 25, 26, 27, 28, 29, 30, 31 and 32.
ORDER
(Case was heard on 08.12.2021)
Post for
10.01.2022
(SUBODH ABHYANKAR)
JUDGE
rcp
WP No.12517/2021
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Writ Petition No.12517/2021
(Jayesh Gurnani s/o Mr. Ravi Gurnani
Dilip Kaushal s/o Late Gulab Kaushal
Versus
Madhya Pradesh State Election Commission AND TWO OTHERS)
*****
Shri Vibhor Khandelwal, learned counsel for the petitioners.
Shri Kamal Airen, learned counsel for respondent No.1 / Madhya Pradesh
State Election Commission.
Shri Valmik Sakargayen, learned Panel Lawyer for respondents 2 and 3 /
State of Madhya Pradesh.
*****
ORDER
(Passed on this 10th day of January, 2022)
This petition filed under Article 226 of the Constitution
of India takes exception to the entire process of reservation of
Municipal Wards adopted by the respondents No.2 and 3 contrary to
the procedure prescribed under the Madhya Pradesh Municipalities
(Reservation of Wards for Scheduled Castes, Scheduled Tribes,
Other Backward Classes and Women) Rules, 1994 (herein after
referred to as "the Reservation Rules, 1994") and also for quashing
the impugned notification dated 06.11.2020 (Annexure P/3) issued
by the respondent No.2 (The State of Madhya Pradesh) in pursuance
to the Rule 7 of the Rules of 1994, whereby the list of Reserved
Wards has been published in the Madhya Pradesh Gazette, finalizing
the reservation of Municipal Wards of Indore Municipal Area,
without following the due process of "Rotation of Wards", as
required under Rule 4 of the Rules of 1994.
WP No.12517/2021
2. According to the petitioners, the process adopted by the
respondents for reservation of the Indore Municipal Wards is illegal,
unconstitutional and irrational and thus, deserves to be quashed.
3. Brief facts giving rise to the petition are that the
petitioners are eligible to cast their votes in the Municipal Elections
and also fulfill the eligibility criteria to contest Municipal Elections,
as provided under the Madhya Pradesh Municipal Corporation Act,
1956 (herein after referred to as the Act of 1956).
4. Respondent No.1 is the authority responsible to conduct
the Municipal Elections for 85 Wards of the Indore Municipal Area
in the light of Article 243-K read with Article 243-ZA of the
Constitution of India.
5. The following relief has been sought by the petitioners
in this petition: -
"7.1 That, the instant writ petition may kindly be allowed
and impugned Gazette notification dated 06.11.2020 may
kindly be quashed to the extent of the reservation of wards of
Indore Municipal Corporation Area;
7.2 That, the respondent no.2 and 3 may kindly be directed
to conduct the process of reservation of wards of Indore
Municipal Area for upcoming municipal election afresh by
following the due process of 'rotation' of wards in the letter and
spirit as prescribed under the Constitution of India, the Act of
1956 and the Reservation Rules of 1994;
7.3 That, the cost of petition may kindly be awarded to the
petitioners and any other order which this Hon'ble Court may
consider appropriate, may also be granted in favour of the
petitioners."
6. According to the petitioners, after publication of the
notice, as required under Rule 5 of the Reservation Rules of 1994,
WP No.12517/2021
the respondent No.3 has conducted the reservation process on
31.07.2020 (Annexure P/2) and recorded in writing the entire
process adopted for reservation of Indore Municipal Wards, as
required under Rule 6 of the Reservation Rules of 1994, but the
respondent No.3 erroneously failed in adopting the 'Rotation' system
while making the reservation of Indore Municipal Wards, as required
under Article 243-T of the Constitution of India read with Section 11
of the Act of 1956 and the Rules 3 and 4 of the Reservation Rules of
1994. The respondent No.2 has also published a list of reserved
wards in the Official gazette on 06.11.2020 (Annexure P/3), which is
under challenge in this petition.
7. Thirteen municipal wards which were earlier reserved
for Scheduled Caste Category are once again reserved for the same
category for the upcoming Indore Municipal Election and three
municipal wards which were earlier reserved for Scheduled Tribes
Category are again reserved for the said category, which according to
the petitioners, is contrary to the mandate of the Article 243-T of the
Constitution of India.
8. It is further the case of the petitioners that similar
irregularity was also committed while conducting the process of
reservation of seats for Mayor and Presidents of Municipal
Corporation and Municipalities under the Madhya Pradesh
Municipalities (Reservation of Office of Mayor and President) Rules,
WP No.12517/2021
1999, but the entire process was stayed by the Gwalior Bench of this
Court in Writ Petition No.6074/2021 vide order dated 12.03.2021
(Annexure P/5).
9. A representation to this effect has also been submitted
by the petitioners, but no action has been taken by the respondents.
10. The petitioners have also given the details of the seats
which have been reserved for SC, ST and OBC respectively
continuously for the past many years, without any rotation. The
same reads, as under: -
S.NO. CATEGORY SEATS RESERVED NUMBER OF WARDS
1 SC 13 24, 26, 35, 36, 47, 54, 18, 30, 45, 46, 59, 61, 76
2 ST 3 75, 77, 79
3 OBC 21 02, 09, 11, 14, 17, 32, 53, 58, 63, 78, 03, 06, 07, 08,
12, 16, 20, 34, 41, 43, 67.
11. Shri Vibhor Khandelwar, learned counsel appearing for
the petitioners has vehemently argued that not only the impugned
gazette notification dated 06.11.2020 is contrary to Article 243 of the
Constitution of India, Section 11 of the Act of 1956 and Rule 4 of the
Reservation Rules of 1994, but also runs contrary to the decision
rendered by the Supreme Court of India in the case of K. Krishna
Murthy (Dr.) and others v. Union of India and another reported
as (2010) 7 SCC 202; and this view has also been adopted by a
Division Bench of this Court at Gwalior in Writ Petition No.2044 of
2021 and Writ Petition No.19984 of 2020.
12. It is further submitted that the Rotation System provides
WP No.12517/2021
rationality in the process of free and fair election as well as in
implementing the constitutional thought of reservation and the same
deserves to be upheld by quashing the impugned gazette notification.
13. A reply to the said petition has also been filed by
respondent No.1 MP State Election Commission, wherein it is
admitted that the respondent is the Constitutional Body entrusting
with conducting lawful elections in the State of Madhya Pradesh and
the representation submitted by the petitioners on 26.03.2021
(Annexure P/6) has already been forwarded to respondent No.2 - The
State of Madhya Pradesh vide letter dated 07.04.2021 (Annexure
P/7) and thus, it is for the respondent No.2 to take further action in
this regard.
14. Respondent No.2, in its reply has opposed the relief
sought by the petitioners and it is submitted that there is no denying
the fact that Article 243-T of the Constitution of India clearly reflects
that there has to be a reservation of seats in the Municipal Election
for Scheduled Castes and Scheduled Tribe Category in certain
proportion for the implementation of which, the discretion is left to
the State Governments, however, as a matter of suggestion, it is
provided that reservation may be done by way of rotation.
15. Thus, it is submitted that it is not the constitutional
mandate that the reservation of seats for SC & ST in the Municipal
Election must be / shall be / always be done only by way of rotation
WP No.12517/2021
as the use of word 'may' preserves the discretionary domain with the
State Government. Hence, it is too far-fetched a contention that
reservation by way of rotation is the mandate of Article 243-T of the
Constitution of India.
16. It is further stated that Section 11 (1) of the Act of 1956
and Section 29 (A) (1) of the Municipalities Act, 1961 does not
contain provision for rotation of seats by lot, which were reserved in
preceding election for Scheduled Castes and Scheduled Tribes. This
is also clear from Rule 3 read with Rule 4 of Rules of 1994. The
provision of Article 243-T of the Constitution of India no doubt
enables rotation of seats reserved for Scheduled Castes and
Scheduled Tribes. It is further stated that what is to be noted for the
constitutional provision contained under Rule 243-T is that there is a
mandate for reservation of seats in wards in Municipal Areas for
Scheduled Castes and Scheduled Tribes category in proportion to
their population. The language used is "the seats shall be reserved",
but in the same Article so far as allotment of seats by rotation is
concerned, the Constitution has purposely used the expression "such
seats may be allotted by rotation to different constituency". It thus,
clear that the provisions of rotation is only an enabling one.
17. It is further stated that if rotation system is applied also
to the Scheduled Castes and Scheduled Tribes seats reserved in
descending order, after ascertaining their population in various
WP No.12517/2021
Municipal Areas, even the wards in areas where their concentration
of population is very low, would get reserved for them on rotation
basis. That would be, a result contrary to the intention for which the
seats are reserved on the basis of population of Scheduled Castes and
Scheduled Tribes.
18. The State has also relied upon a decision rendered by a
Division Bench of this Court in the case of Tulsiram Jatav v. Union
of India & others reported in 1999 SCC OnLine MP 383 = (2001)
4 MP LJ 132, wherein the Hon'ble High Court has rejected the plea
of reservation of seats by way of rotation in the Municipal Election.
19. It is further submitted that so far as the order passed by a
Division Bench of this Court, Bench at Gwalior in Writ Petition
No.2044 of 2021 (Rajkumar Yadav s/o Dallu Singh Yadav &
another v. The State of Madhya Pradesh & others) dated
04.03.2021 is concerned, in the said decision, the order passed by the
Division Bench in the case of Tulsiram Jatav v. Union of India &
others (supra) has not been taken into account; and thus, it cannot be
relied upon; and otherwise also, this order has already been assailed
before the Supreme Court. Thus, it is submitted that no interference
is called for in the election process for reservation concluded by the
respondent authority, which has been carried out in accordance with
the provisions of the Constitution of India and the Reservation Rules
of 1994.
WP No.12517/2021
20. In rebuttal, Shri Vibhor Khandelwal has submitted that
it may be that the order passed by the Gwalior Bench does not reflect
that it has also taken into account the order passed by the earlier
Division Bench of this Court in the case of Tulsiram Jatav v. Union
of India & others (supra), but the Supreme Court's decision in the
case of K. Krishna Murthy (Dr.) and others v. Union of India and
another (supra) passed in the year 2010 would prevail over the
Division Bench order passed by this Court.
21. Counsel has also drawn the attention of this Court to
another decision of the Allahabad High Court in the case of Sant
Ram Sharma v. State of Uttar Pradesh and others reported as
2015 SCC OnLine All 9574 = AIR 2016 (NOC 686) 318 wherein
taking into account the decision rendered by the Supreme Court in
the case of K. Krishna Murthy (Dr.) and others v. Union of India
and another (supra), it is held that "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 v. State
of UP (2005 ALJ 3016) would have no binding effect in
consequence. Thus, it is submitted that the petition be allowed with
costs.
22. Heard learned counsel for the parties and perused the
record.
WP No.12517/2021
23. The sole issue which falls for consideration of this Court
is whether the gazette publication regarding reservation of Municipal
wards, issued by the State Government on 06.11.2020 meets the
constitutional validity, as provided under Article 243-T of the
Constitution of India.
24. At this juncture, it would germane to refer to the
relevant provisions which has led to the issuance of the impugned
gazette notification.
Article 243-T of the Constitution of India reads, as under: -
"243T. Reservation of seats.
(1) Seats shall be reserved for the Scheduled Castes and
the Scheduled Tribes in every Municipality 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 Municipality as the population of the
Scheduled Castes in the Municipal area or of the Scheduled
Tribes in the Municipal area bears to the total population of
that area and such seats may be allotted by rotation to
different constituencies in a Municipality.
(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 Municipality shall be reserved for
women and such seats may be allotted by rotation to
different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities
shall be reserved for the Scheduled Castes, the Scheduled
Tribes and women in such manner as the Legislature of a
State may, by law, provide.
(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
WP No.12517/2021
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 Municipality or offices of Chairpersons in the
Municipalities in favour of backward class of citizens."
(Emphasis supplied)
Section 11 of the Act of 1956 reads, as under: -
"11. Reservation of seats.-
(1) Out of the total number of wards determined under
sub-section (1) of section 10 such number of seats shall be
reserved for Scheduled Tribes in every Municipal
Corporation as bears, as nearly as may be the same
proportion to the total number of seats to be filled by direct
election in the Municipal Corporation as the population of
the Scheduled Castes or of the Scheduled Tribes in the
Municipal area bears to the total population of that area and
such wards shall be those in which the percentage of
population of the Scheduled Castes or the Scheduled
Tribes, as the case may be, is most concentrated.
(2) As nearly as possible twenty five percent of the total
number of wards shall be reserved for other backward
classes in such Municipal Corporation, where fifty percent
or less seats are reserved for Scheduled Castes and
Scheduled Tribes, and such seats shall be allotted by
rotation to different wards in such manner as may be
prescribed:
Provided that if from any ward so reserved nomination paper
is filed for election, as a Councillor, by any member of the
backward classes, then the Collector shall be competent to
declare it as unreserved.
(3) Not less than one-third of the total number of seats
reserved under sub-section (1) and (2), shall be reserved for
women belonging to the Scheduled Castes or the Scheduled
Tribes or other backward classes, as the case may be.
(4) Not less than one-third (including the number of seats
reserved for women belonging to the Scheduled Castes,
Scheduled Tribes and other backward classes), of the total
number of seats to be filled by direct election in every
Municipal Corporation shall be reserved for women and
such seats, shall be allotted by rotation to different wards in
a Municipal Corporation in such manner as may be
prescribed.
(5) The reservation of seats under sub-sections (1), (2)
and (3) shall cease to have effect on the expiration of the
period specified in Article 334 of the Constitution of India.
Explanation: In this section 'other backward classes' means
WP No.12517/2021
category of persons belonging to backward classes as
notified by the State Government."
Rules 3 and 4 of the Rules of the Reservation Rules of 1994
read, as under: -
"3. First time reservation of wards. -
(1) Out of the total number of wards determined under
sub-section (1) of Section 10 of the Madhya Pradesh
Municipal Corporation Act, 1956 and sub-section (1) of
Section 29 of the Madhya Pradesh Municipalities Act, 1961
such number of wards shall be reserved for Scheduled
Castes and Scheduled Tribes in every' Municipality the
proportion of which in the total number of wards determined
for that municipality may be, as nearly as may be, the same
which is to the Population of the Scheduled Castes or of the
Scheduled Tribes in that municipality bears to the total
population of that municipality and such wards shall be
those in a descending order in which the population of
the Scheduled Castes or the Scheduled Tribes, as the case
may be, is most concentrated.
(2) As nearly as possible, twenty-five per cent of the total
number of wards shall be reserved for other backward
classes in such Municipalities, where out of the total number
of wards fifty per cent or less in number wards are reserved
for Scheduled Castes and Scheduled Tribes, and such wards
shall be reserved by lot from the remaining wards excluding
the wards, reserved for Scheduled Castes and Scheduled
Tribes.
(3) Out of the wards reserved for Scheduled Castes,
Scheduled Tribes and Other Backward Classes, as above, [as
nearly as possible fifty percent] wards for the women of the
aforesaid castes, as the case may be, shall be reserved, by
lot:
Provided that where only one ward is reserved for the
Scheduled Castes or Scheduled Tribes as the case may be,
then in that case, such ward shall not be reserved for woman
of Scheduled Castes or Scheduled Tribes, as the case may
be.
Explanation. - When the Collector declares any ward as
unreserved under sub-section (2) of Section 11 of the
Madhya Pradesh Municipal Corporation Act, 1956 or sub-
section (2) of Section 29-A of the Madhya Pradesh
Municipalities Act, 1961, then such un-reservation shall be
limited to that election only.
WP No.12517/2021
(4) At the time of calculation under sub-rules (1), (2) and (3)
fraction less than half shall be ignored and fraction equal to
half or more shall be counted as one.
(5) Reservation of wards for ladies shall be made by deriving
lot of unreserved wards, in such number that comes after
subtracting the number of wards reserved for Scheduled
Castes, Scheduled Tribes and Other Backward Classes under
sub-rule (3) from [as nearly as possible fifty percent] in
number of the total number of wards :
Provided that the number of wards reserved for women,
including the wards reserved for the women of Scheduled
Castes, Scheduled Tribes and Other Backward Classes [shall
be as nearly as possible fifty percent] of the total number of
wards.
(6) The reservation made as aforesaid shall remain in force
for the whole period of five years of Municipality including
casual vacancies.
4. Reservation of wards at the time of subsequent
elections. - For the purpose of every subsequent election, the
same procedure of reservation shall be adopted, which is
described in Rule 3 for the first time reservation. Provided
that the reservations to be made by lot for the purpose of
rotation, the wards which are earlier reserved for a category,
shall not be included in the lot for the reservation of that
category, until such ward does not come again in the serial of
reservation."
(emphasis supplied)
25. Considering the aforesaid provisions of the Act of 1956
and the Rules of in the light of the constitutional provision i.e.
Article 243-T, it is found that contrary to the stand of the respondents
in para 6 of their reply, the provision of rotation of different seats is
indeed provided in the Act as well as the Rules and are in line with
the provisions of Article 243-T of the Constitution.
26. It is also found that so far as the State's stand is
concerned, they have referred to the use of word "may be allotted by
the rotation to different constituencies in a municipality" in Article
WP No.12517/2021
243-T and according to them, the use of word 'may' gives a
discretion to the State Government or the municipalities to either to
adhere to the rotation, as prescribed under Article 243-T of the
Constitution of India or it can also be done away with. In contrast to
the aforesaid submissions, when we see Section 11 (2) of the Act of
1956, it clearly provides that "and such seats shall be allotted by
rotation to different wards in such manner, as may be prescribed". It
may be argued that it (Section 11(2)) refers to other backwards
classes only, but in the considered opinion of this court there appears
to be no justification in providing rotation for the seats reserved for
OBC category only to the exclusion of SC/ST categories. Thus,
reading the provisions of Section 11 (2) of the Act of 1956 in
harmony with Art. 243-T of the Constitution, it reflects that rotation
of reserved seats is for all the categories viz. SC/ST as also for OBC.
27. Similarly, Rule 3 of the Reservation Rules of 1994 also
provides that "and such wards shall be those in a descending order
in which the population of the Scheduled Caste or Scheduled Tribe,
as the case may be, is most concentrated". Similarly, in Rule 4
which refers to reservation of wards at the time of subsequent
elections, it is clearly provided that for the purpose of subsequent
election, the same procedure of reservation shall be adopted, which
is described in Rule 2 (3) of the first time reservation, " Provided that
the reservations to be made by lot for the purpose of rotation, the wards
WP No.12517/2021
which are earlier reserved for a category, shall not be included in the lot
for the reservation of that category, until such ward does not come again in
the serial of reservation.".
28. Suffice it to say that, even if the State interprets Article
243-T of the Constitution of India as only directory and not
mandatory, but in its wisdom, in the Act of 1956, and the Rules of
1994, the State Legislature has decided to rotate the seats of reserved
categories, exercising its discretion in favour of the rotation of seats
only.
29. Now coming to the applicability of Tulsiram Jatav v.
Union of India & others (supra) case. It is apparent that the
Supreme Court in its subsequent decision in the case of K. Krishna
Murthy (Dr.) and others v. Union of India and another (supra)
has observed, as under: -
"8. The overarching scheme of Article 243-D and 243-T
is to ensure the fair representation of social diversity in the
composition of elected local bodies so as to contribute to the
empowerment of the traditionally weaker sections in society.
The preferred means for pursuing this policy is the
reservation of seats and chairperson positions in favour of
Scheduled Castes (SC), Scheduled Tribes (ST), women and
backward class candidates:
With regard to chairperson positions, Article 243-D (4)
and Article 243-T (4) enable State legislatures to
reserve these offices in favour of SC, ST and women
candidates. In the case of panchayats, the first proviso
to Article 243-D (4) states that the aggregate number
of chairperson positions reserved in favour of SC and
ST candidates in an entire state should be based on the
proportion between the population belonging to these
categories and the total population. With all the
chairperson positions at each level of the panchayats in
an entire State as the frame of reference, the second
proviso to Article 243-D (4) states that one-third of
WP No.12517/2021
these offices should be reserved for women. The third
proviso to Article 243-D (4) lays down that the number
of chairperson positions reserved under the said clause
would be allotted by rotation to different panchayats in
each tier. This rotational policy is a safeguard against
the possibility of a particular office being reserved in
perpetuity. It is pertinent to note that unlike the
reservation policy for panchayats, there are no
comparable provisos to Article 243-D (4) for guiding
the reservation of chairperson positions in
Municipalities. This is a notable distinction between the
otherwise analogous schemes prescribed in Article 243-
D and Article 243-T."
(Emphasis supplied)
30. It goes without saying that in case of any conflict
between the decision rendered by a bench of this Court and the
subsequent decision rendered by the Supreme Court on the same
issue, it would be the Supreme Court's decision which would prevail
under Article 141 of the Constitution of India. It is also found that
the Division Bench of the Allahabad High Court in the case of Sant
Ram Sharma v. State of Uttar Pradesh and others reported as
2015 SCC OnLine All 9574 = AIR 2016 (NOC 686) 318 headed by
Hon'ble Shri Justice Dr. Dhananjaya Yeshwant Chandrachud, Chief
Justice (as His Lordship then was) it is held, as under: -
"65. 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 v.
State of UP (2005 ALJ 3016). 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
WP No.12517/2021
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."
(Emphasis supplied)
31. Apparent from the aforesaid that the Division Bench of
the Allahabad High Court has also opined that the decision rendered
by the Supreme Court in K. Krishna Murthy's case (supra) would
have the binding effect.
32. On the aforementioned discussion, in the light of the
constitutional mandate, and the State enactments, viz. Municipal
Corporation Act and the Rules of 1994, as also the decision rendered
by the Supreme Court in the case of K. Krishna Murthy (Dr.) and
others v. Union of India and another (supra), this Court is of the
considered opinion that the impugned gazette notification regarding
the allotment of seat cannot be sustained in the eyes of law; and
accordingly, the same is hereby quashed. However, with liberty
reserved to the State to formulate such policy of reservation of
rotation of seats as provided under Article 243-T of the Constitution
of India and issue a fresh publication for conduct of election.
Writ Petition No.12517/2021 stands allowed.
No costs.
(Subodh Abhyankar)
Judge
Pithawe RC
RAMESH CHANDRA PITHWE
2022.01.10 16:54:15 +05'30'
