Saraswati
Devi Vs. Smt. Shanti Devi & Ors [1996] INSC 1442 (18 November 1996)
A.S.
Anand, S.B. Majmudar S.B. Majmudar. J.
ACT:
HEAD NOTE:
Leave
granted.
By
consent of learned advocates of parties the appeal was finally heard and is
being disposed of by this judgment.
The
contesting parties are appellant on the one hand and Respondent no.1 on the
other. Both belong to Scheduled Castes. Their claim is centered round the chair
of President of the Municipal Committee, Loharu in Haryana State. The grievance of the appellant against the order of the
High court in favour of respondent no.1 can be better appreciated after looking
at the relevant introductory facts.
The
appellant as well as Respondent no.1 are Scheduled Castes women. Elections were
held to Loharu Municipal Committee. For the purpose of election of members of
the Committee, Loharu Municipal area is divided into 11 wards.
Out of
these 11 wards three wards, namely, ward nos. 1, 4 and 5 were reserved for
members belonging to Scheduled Castes. Out of these three wards, ward no.5 was
reserved for the Scheduled Castes women and ward no.2 was reserved for backward
classes. Apart from the aforesaid reservations, ward nos.8, 10 and 11 were
reserved for General women.
Elections
to Loharu Municipal Committee were held on 28th December 1994 under the provisions of Haryana
Municipal Act, 1973 (`the Act' for short). In the said elections the appellant
was elected from ward no.5 reserved for Scheduled Castes women while Respondent
no.1 was declared elected from ward no.11 which was reserved for General women.
After the said elections were over question arose about the election of
President of the said Municipal Committee. As per Section 10 sub section (5) of
the Act the offices of the President in the municipalities shall be filled up
from amongst the members belonging to General category, Scheduled Castes,
backward classes ad women by rotation and by lots in the manner prescribed.
Rule 70 sub-rule (4) of Haryana Municipal Election Rules, 1978 (`Election
Rules' for short) prescribes the manner in which the election to the office of
President of municipality could be held. The local Government Department of Haryana
vide its notification dated 20th January 1995 declared in terms of Rule 70(4)
of the Election Rules that the seat of President, Municipal Committee, Loharu,
inter alia, shall be filled up from amongst the members belonging to Scheduled
Castes category. The said rule reads as under:
"70(4).
The offices of the presidents in the municipalities shall be filled up from
amongst the members belonging to the general category, Scheduled Castes,
Backward Classes ad women by rotation which will be determined in the manner as
detailed below:
Provided
that the number of offices of the presidents reserved for the Scheduled Castes
and Backward Classes in the State shall bear as may be the same proportion to
the total number of such offices of the municipalities as the population of the
Scheduled Castes and Backward Classes in the State bears to the total
population of the State:
Provided
further that not less than one-third of the total number of offices of the
President in the municipalities shall be reserved for women including the
offices reserved for Scheduled Castes and Backward Classes women. The
reservation of offices for women shall rotate to different municipalities which
will be determined by draw of lots, by a committee consisting of the Director,
Local Bodies and Deputy Commissioners of the districts concerned or their
nominee.
If
women of the reserved category are not available, then the office of the
president shall be filled up from the male member of the said reserved
category:
Provided
further that the number of offices of the president for Scheduled Castes and
Backward Classes shall be determined on basis of their population and shall
rotate to different municipalities firstly, having largest population of
Scheduled Castes, secondly, from the remaining Municipalities having largest
population of Backward Classes and they rotate in the subsequent terms of
offices of the municipalities having their next largest population and so on.
In case percentage of population of two Municipal committees or Municipal
Councils as regard Backward Classes and Scheduled Castes is the same the
reservation will be determined by draw of lots to be conducted by a committee
consisting of Director, Local Bodies and Deputy Commissioner of district
concerned or his nominee;
Provided
further that in case of office of the Municipal Council reserved for Backward
Classes, the President shall be elected from amongst the members belonging to
the Backward Classes and in case of Municipal Committee, the member of Backward
Class shall be deemed to be elected as president of the Municipality reserved
for the Backward Classes." The Respondent no.1 contended that as she was
also an elected member belonging to Scheduled Castes women category.
She
was entitled to contest for the presidentship of the Municipality. In view of
this claim of Respondent no.1 the local Government Department of Haryana
Government vide its order date 11th February 1995 issued under Section 278 of
the Act clarified that where there is a single member of Scheduled Caste
category (man or woman) in a municipality elected from the Ward reserved and
the Office of President is to be filled up from amongst the members belonging
to Scheduled Caste Category, such single member (man or woman) belonging to
Scheduled Caste Category shall be deemed to have been elected as President of
such Municipality in the same manner as is provided for the members belonging
to the Backward Classes under sub-rule (4) of Rule of the Election Rules. This
clarification put Respondent no.1 out of contest for the presidentship as she
was elected member of the Municipal Committee not on a Scheduled Castes seat
but on a seat available to General category women. Consequently, Respondent
no.1 filed a writ petition in the High Court of Punjab & Haryana for
quashing the aforesaid Government Order dated 11th February 1995 and for a direction to admit her as a candidate to contest
for the aforesaid office of President, Municipal Committee, Loharu. Pending
this unit petition, the Local Government Department, Haryana Government vide
its notification dated 25th May 1995 appointed the appellant as President,
Municipal Committee, Loharu as according to the State Government the post of
President was by rotation reserved for a member who was elected in the category
of Scheduled Castes women and as Respondent no.1 did not belong to the said
category there was only solitary candidate, namely, the appellant for presidentship
and that is how she was appointed as President of Municipal Committee, Loharu
subject to the decision of the writ petition of Respondent no.1.
A
Division Bench of the High Court allowed the writ petition of Respondent no.1
by the impugned order dated 7th May 1996.
According to the High Court as there were two candidates in the field belonging
to the category of Scheduled Castes women, election had to be held for the post
of President and till election is held the appellant may continue as the
President of the Municipal Committee. It is the aforesaid order of the High
Court that has been brought in challenge by the appellant in the present
appeal. Pending these proceedings status quo has continued and that is how the
appellant is functioning as the President the Municipal Committee.
The
short question for out consideration is as to whether the Government Order
taking the view that appellant is the sole candidate for the post of President,
Municipal Committee, Loharu and there is no question of any contest between the
appellant and Respondent no.1 for the said post, is justified in law or not.
The relevant statutory provisions in this connection are required to be noted.
By the 73rd amendment of the Constitution, the Parliament declared
Municipalities to be the institutions of self- Government and at the same time
provided for constitutional reservation in favor of Scheduled Castes, Scheduled
Tribes and women vide Article 243T of the Constitution of India.
The
said Article provides 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 woman belonging to the Scheduled Castes or as the case
may be, the Scheduled Tribes.
(3)
... ... ... ...
(4)
The offices of Chairpersons in the Municipalities shall be reserved for the
Scheduled Castes, the Scheduled Tribes and women in such manners as the
Legislature of a State may, be law, provide.
(5)
... ... ...
(6)
... ... ..."
As per
sub-Article (4) Article 243T it becomes, therefore, clear that the offices of
Chairpersons in the Municipalities shall be reserved for the Scheduled States,
the Scheduled Tribes and women in such manner as the Legislature by an
enactment may provide. The aforesaid constitutional mandate makes it very clear
that such chairmanships of Municipalities would be made available by rotation
as provided by the State Legislature to Scheduled Castes, Scheduled Tribes and
women. Therefore, the category of women as contradistinguished from the
category of Scheduled Castes and Scheduled Tribes would form a separate
electoral division for the purpose of elections to the posts of Chairpersons of
such Municipalities. By the aforesaid Act the Haryana State provided for the statutory
procedure for such elections to the posts of Presidents of Municipal
Committees. In this connection, the relevant statutory provisions are found in
sub-rule (4) of Rule 70 of the Election Rules and Sections 10(5) and 18 of the
Act. While the relevant rule being Rule 70(4) is already extracted earlier,
Sections 10(5) and 18 of the Act read as under:
"10(5).
The offices of presidents in the municipalities shall be filled up from amongst
the members belonging to the general category, Scheduled Castes, backward
classes and women by rotation and by lots in the manner prescribed.
18.
Election of President and Vice- President.- (1) Every Municipal Committee or
Municipal Council shall, from time to time, elect one of its members to be
President for such period as may be prescribed, and the member so elected shall
become President of the Municipal Committee or Municipal Council;
Provided
that the office or the President in Municipal Committee and Municipal Councils
shall be reserved for Scheduled Castes and women in accordance with the
provisions made in Section 10;
Provided
further that if the office of President is vacated during his tenure on account
of death, resignation or no confidence motion, a fresh election for the
remainder of the period shall be held from the same category.
(2)
Every Municipal Committee or Municipal Council shall also, from time to time,
elect one vice- president:
Provided
that if the office of the vice-president is vacated during his tenure on
account of death, resignation or no confidence motion, a fresh election for the
remainder of the period shall be held.
(3)
... ... ..." On a combined reading of Article 243T of the Constitution of
India, Sections 10(5) and 18 of the Act and sub-rule (4) of Rule 70 of Election
Rules, it becomes clear that the Parliament as well as the Legislature have
enacted these provisions in order to provide for reservation of office of the
President for members of Scheduled Castes, Scheduled Tribes, backward classes
and women in rotation. A bare reading of Section 10(5) and Rule 70(4) shows
that the offices of the Presidents are to be filled from amongst members
belonging to different categories by rotation and by lots. It is not disputed
that the post of President of Loharu Municipal Committee at the relevant time
was reserved for Scheduled Castes women. So far as the appellant is concerned,
she has been elected from ward no.5 on a seat reserved for Scheduled Castes
women. Therefore, in that category she is the sole candidate. So far as Respondent
no.1 is concerned even though by coincidence she also belongs to Scheduled
Castes but she was not elected on a seat reserved for Scheduled Castes women,
but on a seat reserved for General category women from ward no.11. It is not in
dispute that in that ward there were other contesting women, not belonging to
Scheduled Castes category, but also belonging to General category. Therefore,
Respondent no.1 is a member who is elected on the seat earmarked for General
category women; she cannot be said to be a member elected on a seat reserved
for Scheduled Castes women. In ward no.5 from where the appellant contested.
General category women could not have contested, and only Scheduled Castes
women could have contested and in that context appellant emerged successful.
Therefore, she must be held to be belonging to category of Scheduled Castes and
not belonging to category of women to which Respondent no.1 belongs.
Consequently both of them cannot be treated to form a part and parcel of the
same category of seats on which they have got elected. It is true as contended
by learned counsel for Respondent no.1 and which contention has appealed to the
High Court that Rule 70(4) mandates that the offices of Presidents of the
Municipalities shall be filled up from amongst the members belonging to the
concerned categories mentioned in the Rule.
But
the said phraseology does not imply that the members must belong to a
particular caste like Schedule Castes, Backward Classes etc. because the
general words `members belonging to' are followed by different types of classes
like General category, category of Scheduled Castes, category of Backward
Classes and category of women as mentioned in the said Rule. It is obvious that
general category has nothing to do with castes. Similarly backward classes have
nothing to do with castes and the category of women is also separately
indicated. That is also not having any nexus with the castes. When the thrust
of the Rule is that offices of the Presidents in Municipalities must go by rotation
to members belonging to the specified categories, it would necessarily mean in
the context of parent Article 243T of the Constitution of India and Section
10(5) of the Act that the concerned elected members of the Municipal Committee
must have got elected on the seats available to General category candidates or
Scheduled Castes category candidates or Backward Classes category candidates or
General women category candidates by rotation. The very concept of rotation
presupposes that for the contest of Presidentship once by rotation a
reservation is made for members elected from a particular category only those
members can contest for Presidentship. As admittedly the post of President. Loharu Municipality is subjected to double reservation of being available only
to an elected member who is a Scheduled Caste woman she must have been elected
on the Scheduled Castes seat from the ward reserved for such Scheduled Castes
candidates. As admittedly only three wards, namely, 1, 4 and 5 are reserved for
members belonging to Scheduled Castes and even out of three wards only ward
no.5 from which the appellant was elected was reserved for Scheduled Castes
women and as President's post is reserved for being filled up by a member
belonging to the category of Scheduled Castes women who has been elected on
such a seat, the Respondent no.1 who is elected as a member not on any seat
reserved for Scheduled Castes women but on a seat reserved for General category
of women from ward no.11 is obviously out of the arena of contest for the post
of Presidentship of Loharu Municipality, Appellant is the sole candidate
elected on the seat reserved for Scheduled Castes women. With respect it is not
possible to agree with the reasoning of the High Court that the words `members
belonging to' as employed in Rule 70(4) of the Election Rules would bring in
all the elected members belonging to Scheduled Castes into one category to
enable them to contest for the post of President. Such a reasoning would cut
across the very scheme of reservation as envisaged by Article 243T of the
Constitution of India and Section 10(5) read with Rule 70(4) of the Election
Rules. The High Court with respect has not properly appreciated the thrust of
the provision regarding the categories of reservation envisaged by the Rule and
has equated category with castes which is not contemplated by the Act and the
Election Rules.
Consequently,
the decision rendered by the High Court on the construction of the aforesaid
relevant provisions cannot be sustained. On the other hand the Government
Notification and Clarification dated 11th February 1995 get well sustained on
the scheme of the Act and the Election Rules. It must, therefore, be held that
as Respondent no.1 and the appellant did not belong to the same category of candidates
elected on the seats reserved for Scheduled Castes women even though both were
women and belonged to Scheduled Castes; they represented separate electoral
wards indicating non- competing groups or categories of membership and as both
of them were not at part they could not contest on an equal footing for the
post of President. As admittedly appellant was the sole returned candidate from
the ward reserved for Scheduled Castes women and as the post of President was
also by rotation reserved only for a member belonging to Scheduled Castes women
category she was the sole contestant for the said post and was rightly held to
be entitled to be the President of Loharu Municipality.
In the
result this appeal succeeds and is allowed. The judgment and order of the High
Court are quashed and set aside. The writ petition filed by Respondent no.1
stands dismissed. The appellant will be entitled to continue as the President
of the Loharu Municipal Committee for her full term of office. In the facts and
circumstances of the case there will be no order as to costs.
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