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Karnataka High Court · body

2009 DIGILAW 525 (KAR)

Rekha Parashuram Kattimani v. State of Karnataka

2009-07-20

RAM MOHAN REDDY

body2009
Judgment :- Common questions of law and that of fact arise for decision making, hence, with the consent of the learned counsel for the parties, the petitions are clubbed together, finally heard and disposed of by this common order. 2. Petitioners, aggrieved by the notification dated 15.05.2009 providing reservation by way of rotation to the posts of Adhyaksha and Upadhyaksha in the 29 Zilla Panchayaths, under the Karnataka Panchayath Raj Act, 1993, for short ‘Act’, have preferred these petitions. 3. The petitioner in w.P.No.12889/2009 has filed an application under Order 6 Rule 17 of CPC dated 14-05-2009 to amend the prayer column in the Memorandum of writ petition for an additional prayer to declare as unconstitutional The Karnataka Panchayat Raj (Reservation to the Post of Adyaksha & Upadyaksha of Zilla Panchayat) Rules 2005, for short ‘Rules’, as beyond the purview of rule making power of the State under Section 311 of the Act. The application is allowed as it is not opposed by filing objections. The petitioner is directed to amend the writ petition accordingly. 4. In W.P.No. 13013/2009, the petitioner claims to belong to ‘Siddi’ community declared a Scheduled Tribe in the year 2003 and when included in the list of Scheduled Tribes, their numbers are not added in the census of Scheduled Tribe of the year 2001 and hence the reservation by way of rotation based on the population of the Scheduled Tribes is incorrect. 5. The petitions are opposed by filing statement of objections dated 1-5-09 of the respondent-State, contending that reservation under Section 177 of the Act is para materia with that of Article 243D of the Constitution of India, while rotation of the reservation is provided for under the Rules and is complied with. The tables indicating the rotation to Adyaksha and Upadyaksha in the Zilla Panchayats for the period from 1995 onwards upto the present ‘round’, is set out in Annexures-R1 & R2, while the Tables indicating the SC & ST population in the different districts are set out in Annexures – R3 & R4. It is stated that on the Constitution of two additional districts, namely Ramanagaram and Chikkabalapur, necessitated fresh reservation, and in that regard the State Government issued a notification dated 24.4.2009 Annexure-R5 amending Rule 3 of the ‘Rules’. It is stated that on the Constitution of two additional districts, namely Ramanagaram and Chikkabalapur, necessitated fresh reservation, and in that regard the State Government issued a notification dated 24.4.2009 Annexure-R5 amending Rule 3 of the ‘Rules’. It is further stated that the mistake in providing reservation to ST category for the post of Upadyaksha, in Udupi Zilla Panchayat, was rectified to ‘General’ as in the previous term it was reserved for SC, and that ST reservation was provided to the said post at Bangalore Rural Zilla Panchayat, by notification dated 13.5.2009 Annexure-R6. It is stated that the census of ‘Siddi’ community in Uttara Kannada, included in the list of Scheduled Tribes, not being available, could not be added to the total population of ST as set out in the letter dated 13.5.2009 Annexure-R7 of the Deputy Commissioner. 6. The main grievance of the petitioners, as aired by their learned counsel is that the rotation of reservation to the offices in the Zilla Panchayats in the notification impugned is not in compliance with the constitutional directive contained in part IX of the Constitution of India. According to the learned counsel, rotating the reservations in all the Zilla Panchayaths is haphazard, as it is not on the basis of the percentage of population of Scheduled Caste and Scheduled Tribe, resulting in instances of reservation being rotated in the very same Zilla Panchayat, on more than three occasions in the previous eight block periods of twenty months each. It is contended that the criteria for rotation of the reservation for Scheduled caste and Scheduled Tribe is the percentage of their respective population in the districts. As regards backward classes, it is urged that the absence of their census, the rotation ought to be on some reasonable and acceptable rational so as to ensure reservation in that class reaches every Zilla Panchayath, and having not done in the past ensure that the same is done, at least, in the 9th round. It is submitted that, several instances could be pointed out where backward classes are not represented in many a Zilla Panchayath. 7. Per contra, Sri. It is submitted that, several instances could be pointed out where backward classes are not represented in many a Zilla Panchayath. 7. Per contra, Sri. Ashok Haranahalli, learned Advocate General submits that reservation by way of rotation, requires a certain amount of flexibility and no mathematical precision is possible, as the criteria depends upon, a) changes in the census figures; b) increase in the number of Districts; c) addition to the List of Scheduled Tribes; d) no two persons of the same reserved category or no two women to hold the post of Adyaksha and Upadyaksha at the same time as envisaged by the Rules of 2005; and e) Substantial compliance without repetition. 8) Elaborating on the submission, Learned Advocate General contends that on the Act coming into force in the year 1995, the reservation was 4 SC, 1 ST, 6 BCA, 1 BCB and 8 unreserved and the rotation of SC & ST to the offices of the Zilla Panchayat were based on census of the year 1991, in each of the then existing 20 districts, and according to the Rules of 1995. So also it is contended that in the year 1998 the number of districts increased to 27 whence the reservation was increased to 5 SC; 1 ST; 7 BCA; 2 BCB and 12 unreserved, and as a consequence the rotation of the reservation to the offices in the 27 Zilla Panchayats too necessitated changes as set out in the Rules of 1998 and the Rules. During the year 2009 (w.e.f. 26.4.2009) on the addition of two more districts, taking their total to 29 districts, the reservation as well as their rotation necessitated proper adjustments, having regard to the census of the year 2001. 9. According to the Learned Advocate General, the increase in the number of Districts necessitated increase in reservation and as a consequence amendments to the Karnataka Panchayath Raj (Reservation of Offices of Adhyaksha and Upadhyaksha of Zilla Panchayath) Rules, 1995, for short Rules of 1995. 10. The additional parameters like no two persons of the same reserved category or no two women to hold the post of Adhyaksha and Upadhyaksha, at the same time, in the Zilla Panchayath though not a constitutional mandate, nevertheless was necessitated and provided for in the rules, to ensure rotation without repetition. 11. 10. The additional parameters like no two persons of the same reserved category or no two women to hold the post of Adhyaksha and Upadhyaksha, at the same time, in the Zilla Panchayath though not a constitutional mandate, nevertheless was necessitated and provided for in the rules, to ensure rotation without repetition. 11. Section 177 of the Act, it is contended provides for reservation to the Zilla Panchayats, in compliance with Article 243D of the Constitution of India, and that sub-Section (3) of Section 177, fixes 20 months as the term of office of Adhyaksha and Upadyaksha, in other words three block periods in a term of 5 years of the Zilla Panchayat. 12. Learned Advocate General, with reference to the tables Annexure-R1 & R2 relating to rotation of reservation to the Adhyaksha and Upadhyaksha of the Zilla Panchayats, from the very first election, on the coming into force of the Act, contends that the reservation is rotated ensuring least possible repetitions, while in respect of the previous term, that is the 8th term, and the present 9th term, there is no repetition. 13. The reservation by way of rotation to the offices of Adhyaksha and Upadhyaksha in the Zilla Panchayaths requiring some kind of “Flexibility in the joints”, it is contended is not shown to be actuated by malafides. 14. In addition, it is next contended that the process of election having commenced by the issue of the notification fixing the reservation by rotation to the post of Adhyaksha and Upadhyaksha in the 29 Zilla Panchayaths, coupled with the fact that the elections were held and results declared in Kolar and Chikkaballapur Zilla Panchayaths, there is no merit in the contention that notification impugned is either, unjust, arbitrary or perverse. 15. It is lastly contended that the Rules though in kannada language are but a repetition of the Rules of 1995 the validity of which is pending before the Apex Court in Civil Appeal No.4523/05, calling in question the opinion of a Division Bench of this Court, in H.C. Yatheesh Kumar and another – VS- The Karnataka Election Commissioner & Others ILR 2005 KAR 3323 declaring the said Rules as constitutionally invalid, and therefore the petitioners must await the decision of the Apex Court. 16. 16. The learned Senior counsel for the petitioners submits that the petitioners do not seriously question the validity of the ‘Rules’ but nevertheless oppose the manner of its application in the mater of providing rotation of reservation. 17. Having heard the learned counsel for the parties, perused the pleadings, in the absence of the word “rotation” in Art 243-O of the Constitution of India, there is no bar for this court in exercise of writ jurisdiction to entertain petitions challenging the validity of providing rotation of reservation to the Chairpersons of the Zilla Panchayat, moreso when the Election Tribunal is not invested with the jurisdiction. In other words the petitioners have no efficacious or alternate remedy. 18. The Rules of 2005 is the Kannada version of the Rules of 1998, which when declared constitutionally invalid by a Division Bench of this Court in H.C. Yatheesh Kumar’s case, supra, the State has preferred Civil Appeal No.4523/2005 before the Apex Court. By order dated 3-10-2005, the Supreme Court, while dismissing the application for vacating stay, confirmed the same and directed holding elections to the posts of Adhyaksha and Upadhyaksha in the Zilla Panchayath. The rules of 2005 according to the learned counsel for the petitioners are para materia with the rules of 1998, and if that is so, petitioners must await the decision of the Apex Court over its validity. 19. Part IX of the Constitution of India, mandates establishing Panchayaths at the village, intermediate and District levels in each state. Article 243-D provides for reservation of seats for Scheduled Castes and Scheduled Tribes, in every panchayat 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 panchayat as the population of the Scheduled Caste in the panchayat area or the Scheduled, tribe in that panchayat area bears to the total population of that area and such seats to be allotted by rotation to different constituencies in a panchayat; not less than 1/3 of the total number of seats reserved for SC & ST shall be reserved for women belonging to SC or ST. In addition not less than 1/3 of the number of seats reserved for women belonging to the SC and ST and the total number of seats to be filled by direct election in each panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a panchayat. The first proviso to Sub-Article (4) provides reservation for SC & ST to the Chairperson in the panchayats as each level as the population of the SC & ST in the State bears to the total population of the State. The second proviso states that not less than 1/3 of the offices of chairperson shall be reserved for women. The third proviso requires the number of offices reserved to be allotted by rotation to different panchayats at each level. Sub-Article 6 empowers the State to provide reservation of seats in the panchayats or offices of Chairperson in the panchayats at any level in favour of Backward class. 20. Section 162 of the Act provides for reservation of seats for SC & ST women, Backward Class ‘A’ and ‘B’ while the proviso to sub-section (3) states that the seat reserved shall be allotted by rotation to different constituencies in the District. 21. Sub-section (2) of Section 177 of the Act provides for reservation by the Government in the prescribed manner and reads thus: “177(2). 21. Sub-section (2) of Section 177 of the Act provides for reservation by the Government in the prescribed manner and reads thus: “177(2). There shall be reserved by the Government in the prescribed manner.— (a) such number of offices of Adhyaksha and Upadhyaksha of Zilla Panchayat in the State for the persons belonging to the Scheduled Castes and Scheduled Tribes and the number of such offices bearing as nearly as may be the same proportion to the total number of offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State; (b) such number of offices of Adhyaksha and Upadhyaksha in the State which shall as nearly as may be one-third of the total number of offices of Adhyaksha and Upadhyaksha in the State, for the persons belonging to the Backward Classes: Provided that out of the offices reserved under this clause, eighty per cent of the total number of such offices shall be reserved for the persons falling under category ‘A’ and the remaining twenty per cent of the offices shall be reserved for the persons falling under category ‘B’; (c) not less than one-third of the total number of offices of Adhyaksha and Upadhyaksha in the State from each categories reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and those which are non-reserved, for women: Provided that the offices reserved under this section shall be allotted by rotation to different Zilla Panchayat; Explanation.- For the removal of doubts it is hereby declared that the principle of rotation for purposes of reservation of offices under this sub-section shall commence from the first ordinary election to be held after the commencement of the Karnataka Panchayat Raj Act, 1993. (3) The term of office of every Adhyaksha and every Upadhyaksha of Zilla Panchayat shall, save as otherwise provided in this Act, be twenty months from the date of his election or till be ceases to be a Member of Zilla Panchayat, whichever is earlier. (3) The term of office of every Adhyaksha and every Upadhyaksha of Zilla Panchayat shall, save as otherwise provided in this Act, be twenty months from the date of his election or till be ceases to be a Member of Zilla Panchayat, whichever is earlier. Provided that the member who is elected as Adhyaksha or Upadhyaksha to fill the casual vacancy in the office of Adhyaksha or Upadhyaksha shall hold office for the remainder of the period for which the Adhyaksha or Upadhyaksha in whose place he has been elected would have held office if the vacancy had not occurred.” 22. The prescription is found in Rule 4 of the Rules of 2005 which will be adverted to later in this order. 23. Article 243D in part IX of the constitution providing for reservation to the Scheduled Caste, Scheduled Tribes, lays down the rule for maintaining the ratio, which the population of the class bears to the total population, the sole object being to put to work the principle of equal status. So far as the inadequacies in the representation of backward Classes is concerned. The problem not being susceptible of a solution in one stroke, the rule is kept flexible permitting wider discretion so as to attain the goal of adequate proportionate representation. 24. Rule 3 of the Karnataka Panchayat Raj (Reservation of offices of Adhyaksha and Upadhyaksha of Zilla Panchayath) Rules, 1995 provides for reservation to the offices of Adyaksha & Upadyaksha of Zilla Panchayat in accordance with sub-section (2) of Section 177 as follows: The total number of Zilla Panchayats were 20 in number in the year 1995, and the reservation was for the said Panchayats based on the population of SC & ST, recorded in the census of the year 1991 in each district and rotation was accordingly provided for the posts of Adyaksha and Upadyaksha in compliance with the ‘Rules of 1995’ By notification dated 5.3.1998, as the total number of Zilla Panchayat increased to 27 the reservation to the Chairpersons of the Zilla Panchayats changed, and the table in Rule 3 was substituted thus:- Table 25. The State of Karnataka promulgated the Karnataka Panchayat Raj (Reservation of Offices of Adhyaksha and Upadhyaksha of Zilla Panchayath) Rules, 2005 whereunder Rule 3 provides for reservation as per Table below: 26. The State of Karnataka promulgated the Karnataka Panchayat Raj (Reservation of Offices of Adhyaksha and Upadhyaksha of Zilla Panchayath) Rules, 2005 whereunder Rule 3 provides for reservation as per Table below: 26. The State having constituted two more districts namely Chikkaballapur and Ramanagara, hence two Zilla Panchayats were constituted increasing their number from 27 to 29, necessitating a substitution to the Table under Rule 3 of the Rules, by notification dated 24.4.09, which reads thus: 27. Thus, between the years 1995 to 1998, there was increase in the number of Zilla Panchayat from 20 to 27 and thereafter to 29 in the year 2009, necessitating increase in the reservation. So also, the census of the year 2001 though recorded a marginal increase in the population as against the census of 1991, necessitated changes in the reservation. 28. Rule 4 of the Rules of 2005 reads thus:- 29. Rule 4 provides reservation to the office of Adyaksha and Upadyaksha, to Scheduled Tribes, in such of the Zilla Panchayat where the percentage of population of ST is proportionally higher compared to the total population of the State. So also in respect of SC reservation for the Chairperson of the Zilla Panchayat. The sub rule states that both the offices of the Zilla Panchayat cannot be reserved for SC and St at the same time, and that reservation for the Chairpersons in the immediate past term should be reckoned. In other words, the offices of Adyaksha and Upadyaksha of a Zilla Panchayat in the proceeding (immediate) term if reserved for SC the same cannot be reserved for ST, in the next (immediate) term or vice versa. Yet another criteria is no two women can hold the offices of Adyaksha and Upadyaksha, at the same time in the Zilla Panchayat. 30. The Table Annexures – R1 & R2 indicating rotation by way of reservation to the office of Adhyaksha and Upadyaksha respectively for Scheduled Tribe, from the commencement of the Act and Rules of 1995 disclose that, there has been no repetition in any of the Zilla Panchayath, since reservation is two in number of which one is reserved for women. 31. 31. With regard to Scheduled caste, the Table, Annexures-R1 & R2 indicate repetitions to the same Zilla Panchayat in the past from the first to the seventh block periods as pointed out by the Learned counsel for petitioners to the office of the Adhyaksha in Bangalore Rural, Bangalore Urban, Bijapur, Davanagere, Gulbarga, Hassan, Mysore and Shimoga, while in the case of Upadhyaksha, in Bangalore Urban, Belgaum, Bidar, Bijapur, Chamarajanagar, Dharwad, Kodegu, Raichur, Shimoga and Uttara Kannada. Keeping in mind the parameters and criteria under the Rules of 1995 and 2005, coupled with the changes in the census of 2001; the increase in the number of Zilla Panchayats, and consequent increase in the number of seats reserved, and the admitted fact that the Rules are strictly implemented for the eighth and ninth block periods of 20 months, each, the impugned notification rotating the reservation to the offices of the Chairpersons in the Zilla Panchayats cannot be found fault with. Reckoning the mistakes committed in the past, even if any, serves no purpose but on the other hand would be counter productive, leading to further irregularities. It is not efficacious to take into consideration the past rotation of reservation and make corrections or changes in notification impugned providing for rotation to the Chairpersons of the 29 Zilla Panchayats. 32. A learned Single Judge of this Court in Doddanarasimha Reddy vs. The Secretary, Karnataka State Election Commission, Bangalore and Others 2000 (1) KLJ 487) though in the matter of providing reservation by rotation to Taluk Panchayaths, held that there should be rotation of reservation at least once in a Taluk Panchayath of the District if the District is taken as a unit. 33. A Constitution Bench of the Supreme Court in R.C. Poudyal vs. Union of India and Others 1994 supp (1) SCC 324, considering reservation of 12 seats for Bhutia-Lepcha origin in the State Legislative Assembly of Sikkim, and the enabling provision in Article 371-F(f) of the Constitution providing reservation for one section to the exclusion of the other sections, a departure from Article 332(2) and Article 170(2) relating to unanimity in the ratio to each constituency and number of seats allotted in the State on the basis of ‘one man one vote’ principle of representation, per majority decision of his lordship Justice M.N. Venkatachaliah J., as he then was, held thus: “66. Pluralist societies are the result of irreversible movements of history. They cannot be washed away. The political genius of a people should be able to evolve within the democratic system. Adjustments and solutions.” And at paragraph 116, extracted the observation of Chief Justice Warren in B.A. Reynolds vs. M.O. Sims 377 US 533 reported in 377 US 533, which reads thus: “We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement. …..So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.” And further at Paragraph 126, observed thus: “126. An examination of the constitutional scheme would indicate that the concept of ‘one person one vote’ is in its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arithmetical precision. Articles 332(3-A) and 333 are illustrative instances. The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degree of political development in different parts of India, might supply the justification for even non-elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of various parts of the country, may not justify standards based on mathematical accuracy. Articles 371-A a special provision in respect of State of Nagaland, 239-A 240 illustrate the permissible areas and degrees of departure. The systemic deficiencies in the plenitude of the doctrine of full and effective representation has not been understood in the constitutional philosophy as derogating from the democratic principle. Indeed, the argument in the case, in the perspective, is really one of violation of the equality principle rather than of the democratic principle. The inequalities in representation in the present case are an inheritance and compulsion from the past. Indeed, the argument in the case, in the perspective, is really one of violation of the equality principle rather than of the democratic principle. The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment.” (Emphasis supplied) Further, His lordship while considering the phrase “as nearly as may be” in Clause (3) of Article 332, held thus: “187. In clause (3) of Article 332, the words “as nearly as may be” have been used. These words indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the State.” 34. Reservation of seats to the 29 Zilla Panchayaths is not the subject matter in these petitions, but its rotation to the officer of Chairpersons, being Adhyaksha and Upadhyaksha of the 29 Zilla Panchayaths, Applying the aforesaid principle that the provision in the Constitution indicating proportionality of representation as necessarily being a broad, general and logical principle and the inherit systemic deficiencies, and not intended to be expressed in mathematical precision, and not a declared basic requirement in each and every part of the territory of India, it cannot be said that rotation of the reservation too should be effected by mathematical precision. As observed supra, accommodations and adjustments having regard to political maturity, awareness and degree of political development in different parts of India, might supply the justification for deviation, to some extent, in the matter of rotation while ensuring as far as may be no repetition. The differing in criteria, and the increase in the number of Districts, supra, do not justify standards based on mathematical accuracy. So long as there are legitimate considerations in the matter of rotating the reservation, some deviation, allowing some “flexibility in the joints”, in my opinion is permissible. The differing in criteria, and the increase in the number of Districts, supra, do not justify standards based on mathematical accuracy. So long as there are legitimate considerations in the matter of rotating the reservation, some deviation, allowing some “flexibility in the joints”, in my opinion is permissible. I say so, also, keeping in mind the fact that census of backward classes, is unavailable and hence there is neither criteria, or foundation for rotating the reservations to the Chairpersons, for the said class. The suggested criteria such as alphabetical order of the names of the different Districts; reckoning the population figures by excluding the Scheduled Caste and Scheduled Tribe; and drawing of lots, to provide reservation by way of rotation to Backward classes, I am afraid none pass the test of rationality or reasonableness to qualify acceptance. 35. Before parting, it must be emphasized that the practice of the State in issuing notifications providing reservation by way of rotation, on the eve of elections to the officer of Adhyaksha and Upadhyaksha of the Zilla Panchayat must be deprecated. The State ought to ensure issue of the notification well in advance, in the least, six months prior to the closing of the term of office of Adhyaksha and Upadhyaksha, so as to enable persons aggrieved to have their say in the matter. In fact, a Division Bench of this Court, in Channigappa and another vs. State of Karnataka and Others 2000 (6) KLJ 163 (DB) seized with the question of delimitation of territorial constituencies under the Karnataka Panchayath Raj Act, 1993, observed thus: “39. We however direct that in future as and when Government exercises its statutory power and acts in the matter of rotation/delimitation/adjustment of seats, in terms of the rules, affected parties are to be given an opportunity to have their say with regard to their grievances in the said matter. We would further observe that the State Government would be well-advised to amend the rules providing for an opportunity to the affected general public to avoid any criticism on the Government.” 36. Though this direction was issued 9 years ago, the state has done precious little by way of compliance. It is hoped that the State would wake up and comply with the direction supra. In the result, these petitions are dismissed. Though this direction was issued 9 years ago, the state has done precious little by way of compliance. It is hoped that the State would wake up and comply with the direction supra. In the result, these petitions are dismissed. Let a copy of this order be forwarded, under acknowledgment, to the Chief Secretary of the State for compliance.