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2011 DIGILAW 1240 (PNJ)

Joginder Singh v. State of Punjab

2011-05-18

MEHINDER SINGH SULLAR

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JUDGMENT MEHINDER SINGH SULLAR, J. - The crux of the facts, culminating in the commencement, relevant for disposal of the present writ petition and emanating from the record is that, the election for five posts of Panches of Gram Panchayat of Village Nathu Chisti, District Ferozepur, was scheduled to be held on 26.05.2008. Two posts were meant for the general category, two posts were reserved for lady Panches, whereas one post was reserved for B.C. category. Since, no candidate in B.C. category filed the nomination papers, so, the election of remaining four posts was held and one post of B.C. category remained vacant. 2. The petitioner claimed that in the year 2009, the election for the vacant seat of B.C. category was notified and Santo Bai-respondent No.8 filed her nomination papers in this category as a reserve candidate. As, no other candidate under B.C. category was available in the village, as such, she was declared elected unopposed in this regard. According to the petitioner that, respondent No.8 did not belong to the Backward Class category, but she submitted the forged and fake caste certificate. As such, numbers of villagers filed the complaints with regard to the genuineness of her B.C. category certificate. The Tehsildar conducted the enquiry and cancelled the certificate of B.C. category of respondent No.8 on 20.01.2009, which was subsequently stated to have been restored by him (Tehsildar) on 06.02.2009, without any basis. 3. Sequelly, as soon as, the villagers came to know, in the meantime, they made a complaint and her (respondent No.8) caste certificate was again cancelled on 14.02.2009 and it was again restored. It was explained that on account of the dispute of the genuineness of the caste certificate, the election of Santo Bai as a Panch was not notified. She filed the Civil Writ Petition bearing No.5487 of 2009, which was disposed of by this Court with a direction to the Deputy Commissioner to depute an officer to hold an enquiry regarding the genuineness of B.C. Certificate issued to Santo Bai, by way of order dated 26.11.2009 (Annexure P-1). 4. The case set-up by the petitioner, in brief, insofar as relevant, was that during the pendency of the earlier writ petition, the State Election Commission de-notified the indicated B.C. category seat of Panch, converted and reserved it for the Scheduled Castes Category, vide Notification (Annexure P-2). 4. The case set-up by the petitioner, in brief, insofar as relevant, was that during the pendency of the earlier writ petition, the State Election Commission de-notified the indicated B.C. category seat of Panch, converted and reserved it for the Scheduled Castes Category, vide Notification (Annexure P-2). In pursuance thereof, the petitioner along with five other candidates contested the bye-election for the post of Panch in the category of Scheduled Castes. However, the petitioner secured maximum 210 votes and was declared elected Panch by means of declaration of result (Annexure P-3). 5. Meanwhile, respondent No.8 filed another Civil Writ Petition bearing No.12658 of 2009 and challenged Notification No.630 dated 07.08.2009, by virtue of which, bye-election of the vacant seat of Panch was ordered, but the same was dismissed as withdrawn with liberty to her, to avail the alternative remedy through the medium of order dated 26.05.2010 (Annexure P-4) passed by this Court. 6. In pursuance of the order of this Court (Annexure P-1), the Sub Divisional Magistrate conducted a fresh enquiry and came to the conclusion that B.C. Certificate issued to Santo Bai, was illegal and cancelled the same, vide report dated 11.10.2010 (Annexure P-5). It was explained that the B.C. Certificate of respondent No.8 was found to be forged and was cancelled. The post of B.C. category of Panch was converted and reserved for the category of Scheduled Castes. The petitioner was duly elected as a member Panchayat in the Scheduled Castes category, but the official respondents did not notify his election as a Panch in the Official Gazette. 7. The petitioner did not feel satisfied and preferred the instant writ petition, challenged the impugned action of the official respondents and for directions to notify his election for the post of Panch in the Scheduled Castes category, invoking the provisions of Articles 226/227 of the Constitution of India. 8. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that although the B.C. Certificate of respondent No.8 was found to be fake and was cancelled, the post of B.C. category of Panch was converted & reserved for the category of Scheduled Castes and the petitioner was duly elected as a member Panchayat in the Scheduled Castes category, but the official respondents did not notify his election as a Panch in the Official Gazette, without any basis. On the basis of aforesaid allegations, the petitioner has challenged the impugned action of, and sought directions to the official respondents to notify his election for the post of Panch in the Scheduled Castes category, in the manner depicted hereinabove. 9. The respondents contested the claim of the petitioner and respondent No.2 filed written statement, while respondent Nos.1 & 3 to 5 filed their separate joint written statement, inter alia, pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner. The factum of filing of the complaint against respondent No.8, cancellation of her Certificate of Backward Class, conversion of the post of Panch from B.C. Category to S.C. Category by way of Notification (Annexure P-2) and the election (S.C. category) of the petitioner by way of Annexure P-3 are admitted by the official respondents. 10. Likewise, the private respondent No.8 filed her separate written statement, wherein it was admitted that she was elected as a Panch in the mid-term elections held in the year 2009 against the post of Panch in B.C. Category and she would be deemed to be a member Panchayat in the B.C. Category, after declaration of the result, in view of Section 72 and her election can only be challenged by way of election petition under Section 74 of the Punjab State Election Commission Act, 1994. The subsequent election of the petitioner in S.C. category in view of Notification (Annexure P-2) has not specifically been denied by her. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 11. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, the instant writ petition deserves to be accepted in this respect. 12. As is evident from the record that the Certificate of Backward Class of respondent No.8 was cancelled and on that account her election was not notified. She filed Civil Writ Petition No.5487 of 2009, which came to be disposed of by a Coordinate Bench of this Court (Permod Kohli, J.) by means of order dated 26.11.2009 (Annexure P/1). 12. As is evident from the record that the Certificate of Backward Class of respondent No.8 was cancelled and on that account her election was not notified. She filed Civil Writ Petition No.5487 of 2009, which came to be disposed of by a Coordinate Bench of this Court (Permod Kohli, J.) by means of order dated 26.11.2009 (Annexure P/1). The operative part of which is, as under:- “In view of the above circumstances, this petition is disposed of with the directions that the Deputy Commissioner, Ferozepur shall depute an Officer not below the rank of SDM to hold enquiry regarding the genuineness of the B.C. Certificate of the petitioner. The petitioner shall be associated with the enquiry all along and on conclusion of the enquiry, if the certificate of the petitioner is found to be genuine, the election of the petitioner shall be notified. However, in the event, the Certificate is found to be fake, the respondents are at liberty to hold a fresh election and also to take action against the petitioner and/or officials who may be found responsible for any dereliction of duty or connivance. Let the enquiry be completed within four months.” 13. In the wake of the order (Annexure P-1) of this Court, The Sub Divisional Magistrate conducted the enquiry and the Backward Class certificate of respondent No.8 was cancelled. Since, no candidate for the post of Panch in B.C. Category was available in the village, so, the seat of Panch of B.C. Category was converted into and was reserved for Scheduled Castes category by the Rural Development and Panchayat Department, by way of order/Notification dated 30.06.2009(Annexure P/2). 14. Ex facie, the argument of the learned counsel for respondent No.8 that since, the seat of B.C. category was wrongly converted into the post of S.C. category, so, the name of the petitioner cannot be notified as a Panch in the S.C. category, is not only devoid of merit but misplaced as well. 15. As indicated earlier, when no B.C. category candidate was available, then the post of Panch was converted into S.C. category vide order/Notification (Annexure P-2). That means, as soon as the order/Notification (Annexure P-2) was issued, then no post of Panch in the Backward Class category was in existence. 15. As indicated earlier, when no B.C. category candidate was available, then the post of Panch was converted into S.C. category vide order/Notification (Annexure P-2). That means, as soon as the order/Notification (Annexure P-2) was issued, then no post of Panch in the Backward Class category was in existence. Unless and until, order/Notification (Annexure P-2) is quashed, then to my mind, respondent No.8 cannot claim herself to be a member in Backward Class category in this context. Be that as it may, the fact remains is that the petitioner was declared elected as a Panch in S.C. category, by means of election result (Annexure P-3), in view of Notification (Annexure P-2). 16. Therefore, the argument of the learned counsel that the official respondents are duty bound to notify the name of the petitioner as a Panch in the S.C. category, has considerable force and the contrary arguments of the learned counsel for the respondents “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 17. What is not disputed here is that once, the Rural Development and Panchayat Department converted the post of Panch from B.C. category into S.C. category vide Notification (Annexure P-2) and the petitioner was declared elected as a Panch in S.C. category by virtue of declaration result (Annexure P-3), in that eventuality, the official respondents were statutorily duty bound to notify the election of Panch of the petitioner in S.C. category under the Act, which they have utterly failed to do in this context, for the reasons best known to them. In this manner, the official respondents have failed in their statutory duties and considerably delayed to notify the election of the petitioner as a Panch of the indicated Gram Panchayat. 18. In the light of aforesaid reasons, the instant writ petition is hereby accepted with costs. The official respondents are directed to notify the election of the petitioner as a Panch in S.C. category of the Gram Panchayat within a period of 15 days from the date of receipt of the certified copy of this order.