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2024 DIGILAW 196 (HP)

Sunita Sharma v. State of H. P.

2024-03-21

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The writ petition filed by the appellant/writ petitioner assailing the election of respondent No. 5, as the Chairperson of the Municipal Council, Dehra, District Kangra, Himachal Pradesh, has been dismissed and aggrieved thereby, the appellant has filed the instant appeal. 2. The brief facts of the case are that the Deputy Commissioner, Kangra at Dharamshala, Himachal Pradesh, issued office order dated 27.08.2020, as per provisions of Section 10 of the Himachal Pradesh Municipal (Delimitation and Reservation of Wards) Rules, 2015 (for short Rules, 2015) and accordingly reservation of wards was announced category wise for Municipal Councils and Nagar Panchayats of District Kangra, H.P. 3. Thereafter, the Government of Himachal Pradesh issued notification dated 17.12.2020, thereby providing reservation to the offices of Chairpersons in municipalities in District Kangra, H.P. 4. As regards the Chairperson falling in Municipal Council Dehra, District Kangra is concerned, according to the petitioner though the seat was reserved for Woman (General) Category but the same was being occupied by respondent No. 5, who belongs to the Scheduled Castes category and aggrieved thereby the petitioner filed the writ petition for the grant of the following substantive reliefs: (a) That impugned Annexure P-4, dated 03.02.2021 in allowing private respondent herein belonging to Scheduled Caste category to contest and seek election as Chair person of Municipal Council, Dehra, District Kangra, H.P. and declaring her as such, though the seat was reserved for Women (General), may very kindly be quashed and set aside with directions to the official respondents to hold fresh elections for the post of Chair person, Municipal Council, Dehra from the category of Women (General) and act accordingly to secure the ends of law and justice. 5. The learned writ Court dismissed the petition on merits and also on the ground of availability of alternate remedy and maintainability. 6. It is vehemently contended by Shri Ajay Sharma, learned Senior Counsel for the appellant, that the learned Writ Court has erred in not considering the Rules 10 and 12, more particularly, Sub-Rule 7 and 8 of the Rules, 2015, which clearly provide that the offices of the Chairpersons are to be reserved for Women belonging to the “general category” and that “general category” for the purpose of 2015 Rules means a man or woman or both belonging to this category i.e. General Category. Therefore, no person other than the woman category i.e. General Category could have been appointed or elected as the Chairperson. 7. As regards the maintainability of the petition, it is vehemently argued that writ in the nature of quo warranto, was maintainable and any other equitable consideration like estoppel, waiver etc. would not come in the way of the maintainability of the writ petition. 8. On the other hand, Shri I.N. Mehta, learned Additional Advocate General and Shri K.D. Sood, learned Senior Advocate, have supported the judgment rendered by the learned Single Judge and would contend that since the judgment has been passed after taking into consideration the law laid down by the Hon'ble Supreme Court and this Court, therefore, it warrants no interference. We have heard the learned counsel for the parties and have gone through the material placed on record. 9. Rule 10(6) and Rule 12 (7&8) of the Rules, 2015, as relied upon by the petitioner read as under: Rule 10(6) The wards reserved for Scheduled Castes, Scheduled Tribes and women belonging to Scheduled Castes and Scheduled Tribes on the basis of percentage of population shall be changed in the immediate next election and at the time of such next elections, the ward/wards having next highest percentage of population shall be reserved for Scheduled Castes, Scheduled Tribes and women belonging to Scheduled Castes and Scheduled Tribes and the ward earlier reserved shall be kept open to the “general category” and so on for subsequent elections. Rule 12(7) Out of total offices excluding the offices reserved for Scheduled Castes and Scheduled Tribes (including women belonging to Scheduled Castes and Scheduled Tribes), one half of the offices shall be reserved for women belonging to general category and so on. Rule 12(8) The offices reserved for Scheduled Castes and Scheduled Tribes and women belonging to Scheduled Castes and Scheduled Tribes and women belonging to general category on the basis of percentage of population shall be rotated after every five years from the date of first election. At the time of immediate next election, the municipality having the next highest percentage of population shall be reserved for member of Scheduled Castes and Scheduled Tribes including women belonging to Scheduled Castes and Scheduled Tribes and women belonging to general category (and the office earlier reserved shall be kept open to the members of the general category) and so on, for subsequent election. 10. It is evidently clear from the perusal of these Rules that the Rules thus talk about “general category” and further provide for rotation of vacancies. Thus, at the first blush, the arguments addressed by the learned Senior Counsel for the appellant appears to be attractive, however, when analyzed deeply, the same are without merit. 11. Somewhat identical issue had initially come up before two-Judge Bench of the Hon'ble Supreme Court in Saraswati Devi vs. Shanti Devi and Others, 1997 (1) SCC 122 , wherein the statutory requirement was that the office of the President “shall be filled up from amongst the members belonging to the general category, Scheduled Castes (SCs), backward classes and women by rotation.” While giving meaning and effect to these requirements, the Hon'ble Supreme Court held that whereby virtue of rotation, President is to be elected from amongst the members belonging to Scheduled Castes category, persons elected as members of the Committee from any other category (general, backward, women), even if they belong to SCs, would be excluded from the contest for election of President. The Hon'ble supreme Court held that once the post of President by rotation has been reserved for a particular category only those members can contest for the post of President belonging to that particular category. 12. Obviously, the aforesaid view supports the contention of the appellant, but then the view so taken was over-ruled by three-Judge Bench of the Hon'ble Supreme Court in Kasambhai F. Ghanchi vs. Chandubhai D. Rajpur and Others, 1998 (1) SCC 285 , therein the Hon'ble Supreme Court was examining the case of the election of the Gujarat Municipalities as per Section 33 of the Gujarat Municipal Act, 1963, there was reservation of Scheduled Castes, Scheduled Tribes, backward class and women for the office of President. One candidate who belongs to a backward class, had been elected to the Jambusar Municipality from an unreserved seat and he stood for election for the post of President of the Municipality which was reserved for a backward class candidate. 13. The Hon'ble Supreme Court over-ruled the judgment of Saraswati's case supra, and held that the post of President was to be filled up by rotation and the candidate having been elected from the unreserved seat can stand for the election of the President of the Municipality, which was reserved for backward class candidate. 13. The Hon'ble Supreme Court over-ruled the judgment of Saraswati's case supra, and held that the post of President was to be filled up by rotation and the candidate having been elected from the unreserved seat can stand for the election of the President of the Municipality, which was reserved for backward class candidate. The idea was to promote weaker sections of the society. The Hon'ble Supreme Court further observed that neither the Act nor the Rules contain any provision that only members elected from the reserved category would be eligible to stand for the election of the President as per the Roster. Office is required to be filled up by a person belonging to a particular category and not from a particular post. It shall be apt to reproduce Paras 14 to 16 of the judgment, which read as under: 14. In Saraswati Devi's case the appellant therein belonged to a Scheduled Caste category and had been elected as a member of the Loharu Municipality Committee from the ward reserved for Scheduled Caste woman while the respondent therein, who was also a Scheduled Caste woman, had been elected as a member of the general category. The office of the President, by virtue of the rotation, was required to be filled from amongst the members belonging to Scheduled Caste woman category. Saraswati Devi being the solitary candidate elected from the ward reserved for Scheduled Caste woman was declared as having been elected unopposed as President. This decision was challenged by Shanti Devi on the ground that she was also a Scheduled Caste woman, though elected to a seat reserved for general category and was entitled to contest the election for the President. The writ petition was allowed by the High Court who held that Shanti Devi was also entitled to contest the election to the post of the President even though she had been elected to a seat reserved for general category. In allowing the appeal filed by Saraswati Devi the court had to construe the provisions of Rule 70(4) of the Haryana Municipal Election Rules 1978 which, inter alia, provided that offices of the President in the minicipalities shall be filled up from amongst the members belonging to the general category. In allowing the appeal filed by Saraswati Devi the court had to construe the provisions of Rule 70(4) of the Haryana Municipal Election Rules 1978 which, inter alia, provided that offices of the President in the minicipalities shall be filled up from amongst the members belonging to the general category. Scheduled Castes, Backward Classes and women by rotation and 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. It also provided that in case the office is required to be filled by woman of a reserved category but such women are not available, then the office of the President shall filled up from the male member of the said reserved category. Section 10(5) of the relevant act provided that the offices of President in the municipalities shall be filled up from amongst the members belonging to general category, Scheduled Castes, Backward Classes and women by rotation and by lots in the manner prescribed. Interpreting these provisions it was observed at page 128 as follows: “On a combined reading of Article 243 T 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 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 Rules 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 Caste women. So far as the appellant is concerned, she has been elected from Ward No. 5 on a seat reserved for Scheduled Caste women. Therefore, in that category she is the sole though by coincidence she also belongs to Scheduled Caste but she was not elected on a seat reserved for Scheduled Caste 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 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 Caste women. In Ward No. 5 from where the appellant contested, and only Scheduled Caste women could have contested and ion that context the appellant emerged a Scheduled Castes and not belonging to the 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 of the Municipalities shall be filled up from amongst the members belonging to the categories concerned mentioned in the Rule. But the said phraseology does not imply that the members must belong to a particular caste like Scheduled Castes, Backward Classes etc. because the general words “members belonging to” are followed but different types of classes like General category, category of Scheduled Caste, 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 having 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 means in the context of the parent Article 243 T of the Constitution of India and Section 10(5) of the Act that the elected members concerned 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 General women category candidates rotation. The very concept of rotation presupposes that for the context of Presidentship once by rotation a reservation is made for members elected from a particular category only those members can contest for Presidentship. The very concept of rotation presupposes that for the context 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 Caste seat from the ward reserved for such Scheduled Caste candidates. As admittedly only three wards, namely, 1,4 and 5 are reserved for members belonging to Scheduled castes and even out of three wares only ward No. 5 from which the appellant was elected was reserved for Scheduled Caste women and as President's post is reserved for being filled up by a member belonging to the category of Scheduled Caste women who has been elected on such a seat, Respondent 1 who is elected as a member not on any seat reserved for Scheduled Caste 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.” 15. Neither the provisions of Article 243 T nor of Section 10(5) of the Haryana Act seem to suggest to us that Rule 70(4), which provides that offices of the President of municipalities must go on rotation to members belonging to specified categories, must necessarily mean “that the elected members concerned of the municipal committee must have got elected members concerned of the municipal committee must have got elected to the seats available to general category candidates or Scheduled Castes category candidate or Backward Classes category candidate or general women category candidates by rotation.” There seems to be no warrant for such compartmentalisation and nor do the words of the act or the Rules indicate that the concept of rotation presupposes that for the contest of President it is to be from amongst the members elected from a particular category from the seats reserved for that category. This inference which is sought to be drawn does not flow from the plain language of Article 243 T or from the provisions of the Act or the Rules framed thereunder and it also does not promote the object of reservation. This inference which is sought to be drawn does not flow from the plain language of Article 243 T or from the provisions of the Act or the Rules framed thereunder and it also does not promote the object of reservation. The legal provisions provide that office of the President of the municipality should go by rotation to members belonging to specific category and no more. These provisions dot not provide that those members, though falling in the category of Scheduled Castes, Scheduled Tribes, backward Classes or women must be only those who have been elected from the seats reserved for that category of persons. Reservation is with reference to the category/caste to which the person belongs and not the nature of constituency from which he/she was elected. 16. The Act and the Rules provide for reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and women. No reservation or clarifications made ward wise. To put it differently all members of the Scheduled Castes, for example, will be regarded as belonging to one class irrespective of the fact whether they had been elected to a reserved seat or to a general seat. Similar is the position with regard to the backward classes, Scheduled Tribes and women. The law does not contemplate or provide for any further sub-classification of the type which has been suggested by the respondents. Just as all members of the municipality, irrespective of the fact whether they had been elected to a reserved seat or not, are eligible for election to the post of the President when it falls in the general category, similarly when as per the roster the President is to be one who, say, belongs to the category of Scheduled Caste then all members of the municipality who are Scheduled Caste, irrespective of the seat to which they had been elected, would be eligible to stand for election. Neither the Act nor the rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the President of the municipality. 14. Neither the Act nor the rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the President of the municipality. 14. In Bihari Lal Rada vs. Anil Jain (Tinu) and Others, (2009) 4 SCC 1 , the Hon'ble Supreme Court was examining the case where the post of President, Municipal Council was reserved for the general category candidate. The Hon'ble Supreme Court held that whenever the office of the President, Municipal Council was required to be filled up by a member belonging to Scheduled Castes, Scheduled Tribes or backward class, it would be enough if one belongs to one of those categories irrespective of the fact whether they have been elected for the general ward or reserved ward. 15. Likewise, the office of the President of a municipality, if not reserved or is meant for a general category, then all the candidates irrespective of the caste, class or community and irrespective of the fact whether they had been elected from a reserved ward or a general ward, would be entitled to seek election and contest office of the President of the Municipality. It shall be apt to reproduce Para 35 of the judgment, which reads as under: 35. In our view, the question is no more in res integra but squarely covered by the decision of this Court reported in Kasambhai F. Ghanchi vs. Chandubhai D. Rajput and Another, 1998 (1) SCC 285 . In that case the appellant therein who belonged to Backward Class but had been elected to the Jambusar Municipality from an unreserved seat stood for election for the post of President of the Municipality which was reserved for a Backward Class candidate. The only question that had fallen for consideration in the said case was: Whether the appellant, who belongs to a Backward Class but had been elected to the Jambusar Municipality from an unreserved seat, could stand for election for the post of President of the Municipality which was reserved for a Backward Class candidate or whether the candidate for that post could only be a person who was elected to the Municipality from a seat which was reserved for the Backward Class? This court held: “The idea of providing reservation for the benefit of the weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is also an effort to improve their lot. The reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. If because of their popularity a larger number of Scheduled Castes, Scheduled Tribes, Backward Classes or women get elected to the municipality than the number of reserved seats that would be welcome. When the idea is to promote the weaker sections of the society, and to improve their lot, it would be a contradiction in terms if members belonging to that section are debarred from standing to the office of the President because such a candidate is popular enough to get elected from a general constituency. It is a fundamental principle of democratic election that a person who is more popular is elected, popularity being measured by the number of votes which the person gets. The language of various legal provisions do not in any way suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting the election of the President when that office is to be filled only by a reserved category person.” 16. Not only this, the Hon'ble Supreme Court categorically held that there cannot be any reservation of seats in municipalities, not to the office of a Chairperson in favour of the candidate belonging to “general category” as there is no separate category like general category. 17. The explanation belonging to the “general category” wherever employed means seats or offices earmarked for persons belonging to all categories irrespective of their castes, class or community or tribe. The unreserved seats euphemistic described as general seats are open seats available for all candidates, who otherwise qualified to contest that office. It shall be apt to reproduce the relevant observations as contained in Paras 40 to 44 of the Bihari Lal Rada's case (supra), which read thus: 40. The unreserved seats euphemistic described as general seats are open seats available for all candidates, who otherwise qualified to contest that office. It shall be apt to reproduce the relevant observations as contained in Paras 40 to 44 of the Bihari Lal Rada's case (supra), which read thus: 40. Be that as it may, neither Article 243T of the Constitution nor Section 10(5) of the Haryana Municipal Act provide for any reservation to the office of the President in favour of any candidate who does not belong to Scheduled Caste or Backward Class. Obviously there cannot be any such reservation of seats in Municipalities nor to the office of Chairperson in favour of candidates belonging to general category. There is no separate category like general category. The expression belonging to the general category wherever employed means the seats or offices earmarked for persons belonging to all categories irrespective of their caste, class or community or tribe. The unreserved seats euphemistically described as general category seats are open seats available for all candidates who are otherwise qualified to contest to that office. 41. The word ‘General’ derived from Latin word genus: “...It relates to the whole kind, class, or order. Pertaining to or designating the genus or class, as distinguished from that which characterizes the species or individual; universal, not particularized, as opposed to special; principal or central, as opposed to local; open or available to all, as opposed to select; obtaining commonly, or recognized universally, as opposed to particular; universal or unbounded, as opposed to limited; comprehending the whole or directed to the whole, as distinguished from anything applying to or designed for a portion only. Extensive or common to many.” (See Black's Law Dictionary, Sixth Edition) 42. There is nothing in the provisions of the Act, 1973 suggesting that in case the office of the President of a Municipality is required to be filled in from the members belonging to the general category then only a member who has been elected as such from an unreserved ward alone can stand for election. There is nothing in law that a person belonging to Backward Class and got himself elected from a ward reserved for that class is debarred from contesting the election to the office of President/Chairperson when that office is not reserved and meant to be filled in from the members belonging to the general category. 43. There is nothing in law that a person belonging to Backward Class and got himself elected from a ward reserved for that class is debarred from contesting the election to the office of President/Chairperson when that office is not reserved and meant to be filled in from the members belonging to the general category. 43. In our view, wherever the office of the President of a Municipality is required to be filled in by a member belonging to Scheduled Caste, Scheduled Tribe or Backward Class as the case may be it would be enough if one belongs to one of those categories irrespective of the fact whether they have been elected from a general ward or a reserved ward. Likewise, the office of the President of a Municipality if not reserved or meant for general category, all the candidates irrespective of their caste, class or community and irrespective of the fact whether they have been elected from a reserved ward or a general ward are entitled to seek election and contest to the office of the President of the Municipality. 44. For the aforesaid reasons we hold that the High Court ought not to have interfered with the proceedings where under the appellant was declared to have been duly elected as the President of Municipal Council, Hisar. The impugned judgment is, accordingly, set aside. 18. Somewhat similar questions of law have repeatedly come up before the Division Bench of the Punjab and Haryana High Court and some of such decisions are discussed below. 19. In Gurmit Kaur vs. State of Punjab and Others, 2008 (9) RCR (Civil) 139, the Court while examining a letter dated 27.05.2008 vide which respondent authorities had clarified that in case the post of Sarpanch is reserved for the woman belonging to a Scheduled Caste category, then even a woman belonging to Scheduled Castes but elected from General Category, can contest for the office of Sarpanch reserved for Scheduled Caste (Woman) provided that she produces a Scheduled Caste certificate to the Presiding Officer. The writ petition challenging the above said letter and election of respondent No. 6 was dismissed. 20. The writ petition challenging the above said letter and election of respondent No. 6 was dismissed. 20. In Ram Saini vs. State of Punjab and Others, 2009 (1) PLR 250, the Court held that a candidate who had been elected and declared as Panch from the seat reserved for General (woman) was fully eligible to contest the election for the office of Sarpanch, which was reserved for General Category. 21. In Karnail Kaur vs. State of Punjab and Others, 2009 (1) RCR (Civil) 248, the Court was examining the case where the Scheduled Caste (Women) was elected as Panch of the Gram Panchayat against General Category seat. She was held to be eligible to contest for the post of Chairman reserved for Scheduled Caste (women) after being elected as Panch of the Gram Panchayat Samiti against General category seat, like in the instant case where respondent No. 5 had been elected as Councilor from unreserved general category seat. 22. In Rameshwar Saini vs. State of Haryana and Others, 2011 (4) PLR 437 , the Court while examining the election to the post of President of a Municipal Committee, held that a backward class Women candidate who was elected as Municipal councilor from a general seat was ineligible to contest as President of the said Municipal Committee as long as she belongs to Backward Class and contesting the election from unreserved seat will not make her ineligible. 23. Similar reiteration of law can be found in Seema Rani vs. State of Haryana and Others, (2022) 4 RCR (Civil) 173, wherein the grievance of the petitioner was that as per notification the post of President was reserved for general (Women) and as per the notification/result, respondent No. 6 was elected from unreserved seat and subsequently vide election/result, was elected as President of the Municipal Committee, even though it was urged that respondent No. 6 was ineligible as she contested from unreserved seat while the post of the president was reserved for general woman. Relying on the aforesaid judgments, the writ petition was ordered to be dismissed. 24. Thus, in such circumstances, no fault can be found with the findings rendered by the Writ Court upholding the election to the post of President, Municipal Council, Dehra, District Kangra, H.P. 25. Relying on the aforesaid judgments, the writ petition was ordered to be dismissed. 24. Thus, in such circumstances, no fault can be found with the findings rendered by the Writ Court upholding the election to the post of President, Municipal Council, Dehra, District Kangra, H.P. 25. As regards the findings regarding the maintainability of the petition, the learned Writ Court has rightly concluded that would it had been writ in the nature of quo warranto, the petitioner could have succeeded in maintaining the same or else she is required to follow the proper remedy by filing an election petition in accordance with H.P. Municipal Act, 1994. 26. In view of the aforesaid discussion, we find no merit in the instant appeal and the same is accordingly dismissed.