In a writ petition challenging the election of a Scheduled Caste Woman against the post of the President/Chairperson of the Municipal Council, which was meant for General Category Women, Justice Vivek Singh Thakur made an anomaly of reservation with crutches and said that “Reservation may be equated with crutches which are not necessitated to be provided to a healthy person but definitely to those who are not able or permitted to stand on their legs or whose legs are weak for deprivation in a healthy atmosphere and equal status in the society.
Brief Facts
The Petitioner by way of this petition has attacked the action of the State in allowing respondent No. 5 to contest and thereafter getting elected as the President of Municipal Council Dehra, District Kangra. She was elected against the seat that was reserved for Women. The challenge has been raised on the ground that Sunita Kumari (respondent no. 5) belongs to a Scheduled Caste Category and therefore was not eligible to contest and seek election as a President/Chairperson against the seat that was reserved for Women belonging to General Category.
In the Current petition, the Petitioner and respondent No.5 are elected Members of Municipal Council Dehra and respondent No.5 belongs to the Scheduled Caste category. After the elections, respondent No. 5 as well as the petitioner were declared elected as ward members from their respective Wards from which they contested the election. Then the election for the Office of President/Chairperson of Municipal Council Dehra which was reserved for Women belonging to the General Category came up. The election for the same was conducted and respondent no. 5 was elected unanimously for the post. The Grievance of the petitioner is that respondent No. 5 belonged to the category of Scheduled Caste and the pose was reserved for Women belonging to the general category.
Contentions of the Petitioner
The petitioner claims that the post reserved for Women of the General Category means a post reserved for all women, excluding the women belonging to the reserved category. The SC’s judgment in the case Saraswati Devi v. Shanta Devi and others have been referred and accordingly it is contended that the General Category seats are to be filled by only the candidates elected on the seats meant for the General Category and the reservation of the seat of President/Chairperson of Municipal Council to a category is for the Member elected from the seat reserved for the said category.
So, a seat meant for the general category must be filled by a candidate from the general category. Further, it is contended that the idea of the reservation is to provide benefits to the weaker section of the society and 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, grabbing the opportunities for Women of general category.
Contentions of the Respondent
The Respondents submitted that since in the current case the post was reserved for “women” and respondent no.5 is a woman, she is entitled to contest the election from any Ward. The seat is meant for the general category which means, open for all which includes both women of the General Category as well as the women of the 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”
It has further been contended that the 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
Observations of the Court
The Court noted that the petitioner relied on the Supreme Court’s judgment in the Saraswati case according to which it was contended that the seat reserved or meant for women belonging to the General category can only be occupied by a member elected from the seat reserved for women belonging to General Category, but this Hon’ble court noted that in the Kasambhai’s case, the Supreme Court noted that the Saraswati case did not lay down a correct law. Therefore reliance on a judgment that has been overruled by a larger bench of the SC is of no help. The court also noted that the plea in the Bihari Lal Rada case, where similar issue had arisen before the Supreme Court was rejected as per the Kasambhai’s case and the court reiterated the observation of the SC in the Bihari Lal Rada’s case that 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.
In the current case, the court noted that the reservation is for women and not for the General category. General Category’ means ‘all’ and ‘reservation for all’ makes no sense. Thus, the appropriate meaning of ‘General Category’ is open to all. Seats that are meant for General category cannot be filled by excluding any person of any category who is otherwise eligible and entitled to that on their own merit.
The court also noted down the importance of reservations and how they are meant for providing an opportunity to gain equal status and dignity in society. Several instances where still people are ill-treated based on their castes or gender as in the case of women to explain why reservation is necessary for them were also mentioned by the court.
The court concluded that the vertical reservation has been provided to achieve the goal of the constitution and the people given vertical reservation are not excluded from the mainstream or the entire society. Therefore, all women belonging to all categories, subject to eligibility, are entitled to contest elections for the seats meant for men as well as women belonging to the Open or General Category. A woman belonging to the reserved category can contest the election for the seat of Member available for the General Category, which is open for all, including men and women, and she can also contest for seats 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 the General Category or meant for the 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 the General Category.
Judgment of the Court
Th Hon’ble Court did not find merit in this writ petition as well as in it the contentions of the Petitioner and Accordingly, the Writ Petition was dismissed.
Case Title: Sunita Sharma v. State of Himachal Pradesh & Others
Coram: Hon’ble Mr. Justice Vivek Singh Thakur
Case No.: Civil Writ Petition No. 1041 of 2021
Advocate for the Appellant: Mr. Ajay Sharma, Senior Advocate, with Mr. Ajay Thakur, Advocate.
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.
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