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2006 DIGILAW 240 (PAT)

Sanjay Kumar Verma v. State Of Bihar

2006-03-22

BARIN GHOSH

body2006
Judgment 1. In terms of the previous direction of this court the State Election Commissioner appeared in court and explained to the satisfaction of the court the manner he has acted. 2. The learned Advocate General, appearing on behalf of the State, submitted that although Article 243D of the Constitution directs reservation to be made for schedule caste and schedule tribe candidates but there is no such mandate in so far as backward class candidates are concerned. He has drawn my attention to sub-Article (6) of Article 243D of the Constitution where it has been provided that Article 243D shall not prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class citizens. The learned Advocate General submitted that the State Government, by way of an Ordinance, has decided to make reservation in favour of backward class candidates and, accordingly, has provided for the same in section 13 of the Bihar Panchayat Raj Ordinance, 2006. Section 13 of the said Ordinance directs that the reservation in respect of backward classes shall be made in the manner as prescribed. The learned Advocate General has submitted that in terms of sub-rule (3) of Rule 9 of the Rules such prescription has been made. In sub-rule (3) of Rule 9 of the Rules it has been provided that after providing for the reservation for the schedule castes and schedule tribes, 20% of the seats at the best can be reserved for backward classes, which, inclusive of the reserved seats of schedule castes and schedule tribes, shall not exceed of 50% of the total seats and that the seats to be reserved for the backward classes shall be on the basis of the total population in descending order. He has explained that this recourse had to be taken by the State Government in as much as in the last census no attempt was made to count the heads of backward classes and as such no reliable data was available to figure out what percentage of the population of a particular constituency comprises of backward classes. He submitted that census is in the Union list and as such the State Government could not undertake head counting of backward class citizens. He submitted that census is in the Union list and as such the State Government could not undertake head counting of backward class citizens. The learned Advocate General submitted that in the lact census the head count of schedule castes and schedule tribes had been made and, accordingly, in terms of the provisions contained in the Constitution, Sub-Rule (1) of Rule 11 of the Rules directed that the reservation for schedule castes and schedule tribes shall be made on the basis of their population over the general population and while providing for the same, by the proviso to sub-Rule (1) of Rule 11 of the said Rules in so far as backward classes are concerned, it was provided that the same shall be made in terms of the provisions contained in sub-Rule (3) of Rule 9 of the said Rules. 3. The learned counsel appearing on behalf of the petitioner has drawn my attention to Form II as prescribed by the Rules. There is no dispute that in Form II there is a direction to count the heads of the backward classes. Form II has been prescribed by Rule 15 of the Rules. Rule 15 of the Rules, however, does not direct counting of heads. In such view of the matter, there is no conflict in between sub-Rule (3) of Rule 9 read with proviso to sub-Rule (1) of Rule 11 of the Rules on the one hand and Rule 15 of the Rules on the other. A direction contained in the Form as to counting of the heads of backward classes when there is no mandate in respect thereof in the Rules did not make the Election Commissioner or the Government responsible to count the heads of the backward classes. It may be possible that the Panchayat, where the largest number of population reside, may not have even one backward class candidate and as such it may be difficult to have an eligible candidate to be elected at such a Panchayat but then we are not concerned herewith the vires of the Rules, but whether the Rules have been complied with in toto by the Government and the Election Commission. Then again in the absence of head count, which can only be done by the Central Government, the safest way would be to assume that adequate number of backward class citizens will reside in the larger populated areas. 4. Then again in the absence of head count, which can only be done by the Central Government, the safest way would be to assume that adequate number of backward class citizens will reside in the larger populated areas. 4. The learned counsel for the petitioner submitted that serial nos. 10, 16,19, 21st and 26th at page 15 of the writ petition have been reserved for backward class candidates. It was submitted that having regard to such reservation the Election Commission has not followed the directions contained in sub-Rule (3) of Rule 9 of the said Rules. The Election Commissioner has drawn my attention to the fact that serial nos. 10, 16, 19, 21 and 26 had not been reserved in favour of backward class candidates. He had submitted that serial no.1 having the maximum population has been allotted for backward class candidates followed by serial no. 2, serial no.3 and thereafter serial no. 4. He has submitted that serial no. 5 could not be allotted in favour of backward class candidates in as much as the same had to be allotted to schedule caste candidates having regard to their population being majority. He submitted that the same thing happened in so far as serial no.6 is concerned, and, accordingly, serial no.7 was allotted to backward class candidate. He submitted that out of 26 only 5 constituencies, being 20% of the total constituencies could be allotted in favour of backward class candidates and they have been allotted such constituencies exactly in the manner as directed by sub-Rule (3) of Rule 9 of the Rules read with sub-Rule (1) of Rule 11 of the said Rules and the proviso thereto. In view of what has been stated above, I think the Election Commission has acted within the four corners of the Statute governing its action and there is no scope of interference and, accordingly, the writ petition fails and the same is dismissed. 5. I personally give my regards to the State Election Commissioner for helping the court in understanding the manner he has acted in the instant case.