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2014 DIGILAW 1994 (BOM)

Harichand v. State of Maharashtra

2014-09-12

R.M.BORDE, V.K.JADHAV

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Judgment R.M. Borde, J. 1. Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2. The petitioner, who is an elected member of Panchayat Samiti, Kallamb, is raising exception to the order issued by the Collector, Osmanabad, prescribing reservation for the post of Chairman, Panchayat Samiti Kallamb in favour of Scheduled Caste (Women) category after draw of lots conducted on 19th August, 2014. 3. According to the petitioner, the post of Chairman of Panchayat Samiti, Kallamb, for the first time, was reserved for Scheduled Caste category in the year 1996 and after completion of rotation of seats for the reserved categories in all Panchayat Samitis in Osmanabad district, on second occasion, the seat of Chairman of Panchayat Samiti Kallamb was again reserved for Scheduled Caste category in the year 2011. On third occasion, the said post has again been earmarked for Scheduled Caste category and during draw of lots, same has been prescribed for woman member belonging to Scheduled Caste category. 4. In this context, reference shall have to be made to the Maharashtra Zilla Parishads (President, Vice-President and Chairman of Subjects Committees) and Panchayat Samitis (Chairman and Deputy Chairman) (Reservation of Offices and Election) Rules, 1962. Rule 2E of the Rules prescribe reservation of offices for election of Chairman of Panchayat Samitis in favour of Scheduled Castes, Scheduled Tribes, Category of Backward Class of citizens (including Vimukta Jatis and Nomadic Tribes) and woman (including the women belonging to such Castes, Tribes and the category). The manner of lots and rotation of offices of Chairman of Panchayat Samitis for Scheduled Caste category has been prescribed under Rule 2F (1). The manner of lots and rotation of offices of Chairman of Panchayat Samitis for Scheduled Caste category has been prescribed under Rule 2F (1). The said rule prescribes that the Government shall, by notification in the official Gazette (for the term provided under Section 65), allot the offices of Chairmen to be reserved for the Scheduled Castes, the Scheduled Tribes, the category of Backward Class of citizens (including Vimukta Jatis and Nomadic Tribes), and women as specified under rule 2E to districts, as follows: (a) The offices to be reserved for the Scheduled Castes and the Scheduled Tribes in each District shall be allotted in such manner that such reservation shall bear, as nearly as may be, the same proportion to the total number of offices of Chairmen in the District as the population of Scheduled Castes and Scheduled Tribes in that District bears to the total population of that District; (b) The offices to be reserved for category of backward Class of citizens (including Vimukta Jatis and Nomadic Tribes) in each District shall, as far as practicable, be allotted in proportion of twenty seven percent of the total number of offices of Chairmen in that District. (c) The offices to be reserved for women (including the women belonging to the Scheduled Castes, the Scheduled Tribes) and the Category of Backward Class of Citizens (including Vimukta Jatis and Nomadic Tribes) in each District shall as far as practicable, be allotted in proportion of one third of the total number of offices of Chairmen in that District. 5 Sub-rule (2)(a) of Rule 2F provides that the Collector shall, by order distribute and notify, the offices of Chairmen of Panchayat Samitis for the persons belonging to the (Scheduled Castes) in a descending order beginning with the Panchayat Samiti where the percentage of population of the area of such Panchayat Samiti is the highest. Sub rule (2)(b) of Rule 2F provides that notwithstanding anything contained in clause (a), while rotating such offices for the subsequent terms, the Panchayat Samitis, where such offices have been already reserved for earlier terms for such Castes shall be excluded, until in all Panchayat Samitis subject to first proviso to clause (a) above, reservation of offices is given by rotation. 6. In the instant matter, sub rule (2)(b) of Rule 2F has been breached. 6. In the instant matter, sub rule (2)(b) of Rule 2F has been breached. It is not a matter of doubt that on the first occasion, seat of Chairman of Panchayat Samiti, Kallamb was reserved for Scheduled Caste category. The first rotation of seats, according to the State Government, is complete and in the year 2011, post of Chairman of Panchayat Samiti, Kallamb was again reserved for Scheduled Caste category considering availability of data of population of Scheduled Caste persons in the said taluka. 7. In the affidavit-in-reply presented on behalf of the State, it is pointed out that population of Scheduled Caste category in Kallamb taluka, as per 2011 census, is 18.91%. It is the contention of the State that in the year 2011, while prescribing reservation during second round of rotation in Osmanabad district, the population figures, as per 2011 census, were not available and as per the earlier census, the seat of Chairman of Panchayat Samiti, Kallamb, was reserved for Scheduled Caste category. It is stated that after availability of census figures of 2011, on noticing that population of Scheduled Caste category persons in Kallamb taluka is highest, the State authorities again proceeded to prescribe reservation in favour of Scheduled Caste category. It is pointed out that the directions issued by the State Government, in that regard on 16.12.2013, were followed. 8. The explanation tendered by the State Government is not at all convincing and as such liable to be rejected. It is not a matter of doubt that in the year 1996, reservation was prescribed for Scheduled Caste category for the post of Chairman of Panchayat Samiti Kallamb and first round of rotation of reservation in Osmanabad district, is admittedly over prior to 2011. During the second round, considering the population figure of Scheduled Caste category in Kallamb Taluka, which is stated to be highest in the district, reservation has been prescribed in favour of Scheduled Caste category in 2011, which, according to us, has been rightly prescribed. 9. That, so far as census figure of 2011 is concerned, there is no change in the situation that population of Scheduled Caste category in the district, so far as it relates to Kallamb taluka is concerned, is highest. It is not a matter of doubt that during the second round of rotation, the post of Chairman of Panchayat Samiti, Kallamb, was already prescribed for Scheduled Caste category. It is not a matter of doubt that during the second round of rotation, the post of Chairman of Panchayat Samiti, Kallamb, was already prescribed for Scheduled Caste category. It was, therefore, obligatory on the part of the State Government to follow sub-rule (2)(b) of Rule 2F and exclude office of Chairman of Panchayat Samiti Kallamb from prescribing reservation for said category during 2014-2017 term. The provisions of sub-rule (2)(a) and (b) of Rule 2F are required to be read harmoniously. 10. We are, therefore, of the considered opinion that prescription of reservation for Scheduled Caste (women) category in respect of office of Chairman of Panchayat Samiti, Kallamb, for the year 2014, as declared by the Collector, Osmanabad, on 19th August, 2014, is erroneous and contrary to the provisions of Rules. The order prescribing such reservation, therefore, deserves to be quashed and set aside and same is accordingly quashed and set aside. 11. Writ Petition is, thus, allowed. The reservation provided in respect of office of Chairman of Panchayat Samiti, Kallamb, for the term 2014-2017 under the order dated 19.08.2014, is quashed. Respondent No.3 Collector shall reconsider the prescription of reservation and rotation in accordance with the Maharashtra Zilla Parishads (President, Vice-President and Chairman of Subjects Committees) and Panchayat Samitis (Chairman and Deputy Chairman) (Reservation of Offices and Election) Rules, 1962. 12. Rule is made absolute in above terms. There shall be no order as to costs. Parties to act on an authenticated copy of this order.