Orissa High Court
Prasnna Kumar Behera And vs State Of Odisha And Others on 22 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34206 of 2021
Prasnna Kumar Behera and .... Petitioners
another
Mr. Gautam Mishra, Senior Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Parija, Advocate General assisted by
Mr. Debakanta Mohanty, Additional Government Advocate
Mr. Budhadev Routray, Senior Advocate for O.P. No.3
W.P.(C) No.35365 of 2021
Birendra Das .... Petitioner
Mr. Sukanta Kumar Dalai, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Parija, Advocate General assisted by
Mr. Debakanta Mohanty, Additional Government Advocate
M/s. Munmum Panda, Advocate for O.P. No.4
W.P.(C) No.35442 of 2021
Bholanath Behera .... Petitioner
Mr. Bidyadhar Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Parija, Advocate General assisted by
Mr. Debakanta Mohanty, Additional Government Advocate
W.P.(C) (PIL) No.36479 of 2021
Manoj Kumar Sahu .... Petitioner
Mr. Santanu Kumar Sarangi,
Senior Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Parija, Advocate General assisted by
Mr. Debakanta Mohanty, Additional Government Advocate
Page 1 of 7
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W.P.(C) No.36695 of 2021
Anirudha Das .... Petitioner
Mr.Kananbala Roy Choudhury, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Parija, Advocate General assisted by
Mr. Debakanta Mohanty, Additional Government Advocate
M/s.Munmum Panda, Advocate for O.P. No.4
&
W.P.(C) No.37376 of 2021
Sanjulata Meher @ Nayak .... Petitioner
Mr. Dinesh Kumar Patra, Advocate
Mr. Gautam Mishra, Senior Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Parija, Advocate General assisted by
Mr. Debakanta Mohanty, Additional Government Advocate
Mr. Budhadev Routray, Senior Advocate for O.P. No.4
CORAM:
THE CHIEF JUSTICE
JUSTICE A. K. MOHAPATRA
ORDER
22.12.2021
Order No.
03. 1. These writ petitions question the manner in which the
Government of Odisha has applied the provisions in Article 243-D
of the Constitution of India read with Sections 10 (5) and 10(6) of
the Orissa Gram Panchayat Act, 1964 ('the OGP Act') for
determining the percentage in the post of Sarpanches of reservation
for Scheduled Castes (SC), Scheduled Tribes (ST) and Backward
Classes of Citizens (BCC) in the Panchayat elections to be held for
the Panchayats, Panchayat Samitis and Zilla Parishads in 2022.
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2. The State Election Commission ('SEC') and the Panchayati Raj
Department of the Government of Odisha are Opposite Parties in all
the petitions. These petitions were filed at a stage when the
Notification announcing the schedule for the elections was yet to be
published.
3. The petitions were taken up for hearing yesterday 21st December,
2021, upon urgent mentioning, when the Court was informed that
the SEC had written to the Government of Odisha proposing that
the Notification for holding the aforementioned elections should be
published positively by 23rd December, 2021 keeping in view that
the election process had to be completed on or before 8th March,
2022. This was because the five-year term of the previously elected
bodies would come to an end on that date.
4. Certain developments that have taken place in the month of
December, 2021 were brought to the notice of the Court in the
course of the hearing of the petitions yesterday. As far as
reservation for BCCs in the posts of Sarpanches is concerned, the
attention of the Court was drawn to two orders of the Supreme
Court of India. The first is an order dated 6th December, 2021 in
SLP (C) No.19756 of 2021 (Rahul Ramesh Wagh v. State of
Maharashtra). The second is an order dated 17th December, 2021
of the Supreme Court of India in Miscellaneous Application Diary
No. 31495 of 2021 (Manmohan Nagar v. State of Madhya
Pradesh).
// 4 //
5. In Rahul Ramesh Wagh v. State of Maharashtra (supra), the
Supreme Court of India, after taking note of the mandatory
directions contained in the judgments of the Supreme Court in Dr.
K. Krishnamurthy v. Union of India (2010) 7 SCC 202 and Vikas
Kishanrao Gawali v. State of Maharashtra (2021) 6 SCC 73, held
that the election programme in the State of Maharashtra for election
to the local bodies would have to abide by the directions issued in
the aforementioned decisions which make it mandatory for a 'triple
test' to be fulfilled prior to making reservations for Other Backward
Classes (OBC). In terms of such triple test, it was mandatory first to
set up a dedicated Commission to conduct 'contemporaneous
rigorous empirical inquiry into the nature and implications of
backwardness qua local bodies within the State". The second
requirement was "to specify the proportion of reservation required
to be provisioned local body-wise in light of the recommendations
of the Commission, so as not to fall foul of overbreadth". The third
requirement was that such reservation in any event should not
exceed the aggregate of 50% of the total seats reserved in favour of
SC, ST and OBC taken together. It was noted by the Supreme Court
that in the State of Maharashtra even "the first step of collating
empirical data has not been completed so far." Therefore, it was
ordered that the SEC of Maharashtra "shall desist from proceeding
with the election programme already notified in respect of reserved
seats for OBC category only". This was despite the election
program already having been announced by way of publication of a
notification to that effect.
// 5 //
6. In the second mentioned order, Manmohan Nagar v. State of
Madhya Pradesh (supra), which was in the context of local body
elections in the State of Madhya Pradesh, despite the elections
being underway, the Supreme Court in its order dated 17th
December, 2021 again stayed the election process in respect of
OBC seats in all the local bodies and further mandated that such
seats would be re-notified for the 'general category'.
7. The position in Odisha, as informed by Mr. Ashok Parija, learned
Advocate General (AG) , in respect of reservation for the BCC in
posts of Sarpanches under Article 243-D (6) of the Constitution
read with Section 10 (5) (c) and Section 10 (6) of the OGP Act as
amended on 23rd September 2021, would be no different. Here
although there is a Commission set up by the Government of
Odisha in fulfillment of the first of the 'triple' tests, the second test
of the Commission making recommendations specifying the
percentage of reservations to be made, after collecting data, is not
fulfilled as on date. Consequently, in light of the aforementioned
two decisions of the Supreme Court, there can be no reservation yet
provided for BCCs in the posts of Sarpanches in Odisha in the
elections to be held. It is inevitable, therefore, for the Government
of Odisha to re-work the draft notification for holding of elections
to the Panchayats, Panchayat Samitis and Zilla Parishads in 2022.
8. Another development that has taken place, as informed by Mr.
Parija, is that in view of the deliberations in the Court during the
hearing of these petitions, and in a departure from what was the
previous practice followed from 1997 onwards, the Government of
// 6 //
Odisha has decided to rework the reservation in the posts of
Sarpanches for SCs and STs by adopting a procedure whereby it
will first complete the exercise in terms of Section 10 (5) (a) of the
OGP Act [which incidentally is identically worded as the first
proviso to Article 243-D (4) of the Constitution of India] before
undertaking the exercise under Section 10 (6) (a) and (b) of the
OGP Act.
9. In view of the above developments, Mr. Parija, learned AG
makes a statement that the Government of Odisha will now come
out with a fresh draft notification announcing the elections to the
aforementioned three Panchayat Raj institutions, which will be
published on 27th December, 2021. The Collectors will invite
objections thereto, which objections would be submitted by 3rd
January, 2022. This is after accounting for the seven-day period
which has to be provided for such exercise under Rule 3 (4) of the
OGP Election Rules, 1965. He states that such claims/objections
would be disposed of by the Collectors by 5th January, 2022 and the
final list will be communicated to the SEC on 7th January, 2022.
The date of issuance of the notification under Section 12 of the
OGP Act read with Rule 13 of the OGP Election Rules will be 8th
January, 2022.
10. The Court clarifies that it is not expressing any view on the
correctness or otherwise of the above stand of the State
Government. In view of the fact that a fresh exercise is to be
undertaken before the final publication of the notification in the
manner indicated hereinabove, learned counsel for the Petitioners
// 7 //
do not press for any of the reliefs prayed for at this stage and
reserve their rights to file fresh petitions at a subsequent point in
time.
11. Mr. Buddhadev Routray, learned Senior counsel for the SEC,
states that the SEC will correspondingly communicate to the State
Government a fresh date for publication of the election notification.
12. The writ petitions and all pending applications are disposed of.
13. An urgent certified copy of this order be issued as per Rules.
(Dr. S. Muralidhar)
Chief Justice
(A. K. Mohapatra )
Judge
U.K. Sahoo
