Gujarat High Court
Hiteshbhai Naranbhai Vekariya vs The State Of Gujarat on 8 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/15959/2021 ORDER DATED: 08/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15959 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16385 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16770 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17533 of 2021
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HITESHBHAI NARANBHAI VEKARIYA
Versus
THE STATE OF GUJARAT
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Appearance:
MR BHARAT S PATEL, SENIOR ADVOCATE assisted by MR UMANG H
OZA(2440) for the Petitioners in SCAs 15959/21, 16385/21 & 16770/21
MS NILAM CHAUHAN for the Petitioner in SCA 17533/21
MS MANISHA L SHAH, GOVERNMENT PLEADER assisted by MS JYOTI
BHATT, ASSISTANT GOVERNMENT PLEADER for the State Government
MS DIMPLE A THAKER(6838) for the Gujarat State Election Commission
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/12/2021
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Issue involved in this batch of petitions is identical. The contentions raised in the petitions are also identical and hence, all the matters were heard together and are disposed of by this common judgment and order. The matters relate to elections of Sarpanch in gram panchayats, situated in Gondal Taluka, Rajkot District.
2. In Special Civil Application no.16770/21, the petitioner has prayed for a writ of mandamus Page 1 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the notification dated 24.9.2021 passed by the respondent no.3 at Annexure-A in Village Nagadka and has further prayed that the respondent no.3 be directed to allot the seat of Sarpanch of Village Nagadka for Scheduled Tribe category in the elections of the village panchayat.
3. In Special Civil Application no.15959 of 2021, the petitioner has prayed for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the notification dated 24.9.2021 passed by the respondent no.3 at Annexure-A in Village Sultanpur and has further prayed that the respondent no.3 be directed to allot the seat of Sarpanch of Village Sultanpur for General category in the elections of the village panchayat.
4. In Special Civil Application no.16385/21, the petitioner has prayed for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the notification dated 24.9.2021 passed by the respondent no.3 at Annexure-A in Village Bandra and has Page 2 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 further prayed that the respondent no.3 be directed to allot the seat of Sarpanch of Village Bandra for Woman General category in the elections of the village panchayat.
5. In Special Civil Application no.17533/21, the petitioner has prayed for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the notification dated 24.9.2021 passed by the respondent no.3 at Annexure-A in Village Bhunava and has further prayed that the respondent no.3 be directed to allot the seat of Sarpanch of Village Bhunava for Scheduled Tribe category in the elections of the village panchayat.
6. As mentioned hereinabove, in this batch of petitions, the contentions raised are common and the grounds as raised in Special Civil Application no.15959 of 2021 are made basis of this judgment and order, which are considered as common grounds.
7. Relying upon Rule 10 of the Gujarat Village Panchayat Elections of Sarpanch (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994 (hereinafter referred to as "the 1994 Rules" for the sake of brevity), it is contended that the notification dated Page 3 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 24.9.2021 is issued without considering the provisions of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act" for the sake of brevity) and the 1994 Rules and the same is contrary. It is further contended that the same is issued without application of mind on the part of the respondent no.3 and the same is arbitrary and violative of Article 14 of the Constitution of India.
8. It is further contended that the Collector has got the powers of rotation of the seats and has to scrupulously follow the Rules, which have not been followed and therefore, the exercise undertaken by the respondent no.3 is arbitrary and contrary of Article 14 of the Constitution of India. Referring to Rule 10 of the 1994 Rules, it is contended that as per the statutory Rules, the seats are to be allotted and not to be repeated which has not been followed by the authority. It is further contended that Rule 10 of the 1994 Rules casts duty upon respondent no.3 to allot the seats in rotation and the seats must start from item 1 to the last and till entire list is exhausted and the same cannot be repeated. It is alleged that as the same is not carried out, notification at Annexure-A is in breach of the provisions of the Act and therefore, violative of Article 14 of the Constitution of Page 4 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 India. It is also alleged that if the notification dated 24.9.2021 at Annexure-A is permitted to be continued, then, acceptance of the same would result into perpetuating illegality and in breach of the principles of natural justice. It is also contended that the Rule 10 provides that there are individual members and seat has to be provided for, which is not the same in the previous election and that there must be change in the category of seat and it is further alleged that holding of election without maintaining allotment as per the statutory mandate, the same would be arbitrary and violative of Article 14 of the Constitution of India.
9. In Special Civil Application no.17533/21, it is contended that the impugned notification is not just and proper as per Rule 6 of the 1994 Rules and in Bhunava village panchayat, no reserved seat of Scheduled Tribe candidate has been allotted. Rest of the contentions are identical and similar to other batch of petitions.
10. In response to the notice issued by this Court, the Election Commission has filed written submissions which is taken on record in Special Civil Application nos.15959/21 and 16385/21, which are taken on record. It is Page 5 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 contended by the Election Commission that as provided under Section 51 of the Act, the reservation as well as rotation is determined by the State Government. The Election Commission has further averred that the said exercise is done by the State Government as per 1994 Rules, more particularly, Rules 4 to 8 and 10 to 12. It is submitted that Section 51 of the Act and the relevant Rules of the 1994 Rules would indicate that reservation of the seats and rotation of the seats of the office of the Sarpanch of the village panchayats vest with the State Government. It is stated that the State Government is empowered to determine the extent of such reservation on the basis of the empirical data, such as, population surveys among other methods, thereby being guided by the principle of "proportionate representation".
11. The State of Gujarat has also filed written submissions, which are taken on record along with relevant annexures.
12. Heard Mr. Bharat S. Patel, learned Senior Advocate assisted by Mr. Umang Oza, learned advocate for the petitioners in Special Civil Application nos. 15959/21, 16385/21 and 16770/21, Ms. Nilam Chauhan, learned advocate for the petitioner in Special Civil Page 6 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Application no.17533/21, Ms. Manisha L. Shah, learned Government Pleader assisted by Ms. Jyoti Bhatt, learned Assistant Government Pleader for the State Government and its authorities and Ms. Dimple Thaker, learned advocate for the Gujarat State Election Commission in all the petitions.
13. Mr. Bharat S. Patel, learned Senior Advocate for the petitioners, referring to Articles 243A, 243B, 243C and 243D of the Constitution of India as well as Section 51 of the Act, contended that the impugned notification dated 24.9.2021 is issued de hors the constitutional mandate. Mr. Patel contended that the rotation has to be provided as prescribed under Rule 10 of the 1994 Rules and the allotment of seats are to be allotted to Scheduled Caste, Scheduled Tribe, Socially and Educationally Backward Class (SEBC) and women, which is not maintained in the present case as per the rotation system. Referring to the provisions of Articles 243A, 243B, 243C and 243D of the Constitution of India, it is contended by Mr. Patel that there is clear violation of the said provisions. Relying upon the provisions of Section 51(2)(a) of the Act, Mr. Patel, learned Senior Advocate for the petitioners contended that number of offices of the Sarpanch of village panchayat shall be Page 7 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 reserved by the State Government for Scheduled Caste and Scheduled Tribe in proportion to the total population of Scheduled Caste and Scheduled Tribe of the State. Mr. Patel further contended that the State Government has never provided data as regards the total population of Scheduled Caste and Scheduled Tribe of the State. It was contended by Mr. Patel that the population of the Panchayat is not to be considered while allotting the seats for the post of Sarpanch, but the population of the entire State is required to be considered while allotting the reserved seats. As provided under Section 51(2)(a) of the Act, the same cannot be diluted by the Rules. It is contended that the provisions of the Rules cannot override the provisions of the Act. It was further contended that reallotment of the seats of the Sarpanch is required to be rotated till the entire list is exhausted. It was contended that the constitutional mandate under Article 243D cannot be defeated by holding the elections without reservation of seat for Scheduled Tribe. It was contended that Article 243D commands reservation for Scheduled Caste and Scheduled Tribe in every Panchayat. Referring to Section 51 of the Act, it was contended that the said provision clearly enacts and cast the duty upon the State to declare the reservation of the seats Page 8 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 as per the population of the State and in the present case, there is no such determination by the State and illegality, if repeated, cannot change the law. It was further contended that the argument that regarding less than 5% population is neither in the 1994 Rules, nor in the Act and not even in the Constitution. Relying upon the judgment of the Division Bench of this Court in the case of Nathabhai Devabhai Zala & Anr. Vs. State of Gujarat & Ors., reported in 2012 (1) GLH 789, it was contended that the population is never the criteria. Mr. Patel contended that as per the amendment in the 1994 Rules in 2015, 50% seats are reserved for women and that would mean that 50% seats are reserved for women and rest 50% seats are not reserved for the women. It was also contended that the provisions of Section 51 of the Act is clear and as per the judgment in the case of Nathabhai Devabhai Zala (supra), the same would apply to rotation of seats in gram panchayat as well as rotation for the post of Sarpanch. It was also contended that Article 243D(4) of the Constitution of India clearly stipulates for the number of offices of the Chairperson of the village panchayat to be reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level and it further stipulates that the same shall be in Page 9 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 proportion to the population in the State and hence, the office of the Chairperson also includes Sarpanch. Referring to Rule 13 of the 1994 Rules, it was contended that the same provides for seats and not about the population. According to Mr. Patel, learned Senior Advocate for the petitioners, the population is never the criteria for Scheduled Caste or Scheduled Tribe and the same is only for Socially and Educationally Backward Class and hence, allotment of seats for the post of Sarpanch has to be made for Scheduled Tribe and Scheduled Caste. On the aforesaid contention, Mr. Patel contended that the impugned notification dated 24.9.2021 at Annexure-A is bad in law and the same deserves to be quashed and set aside and appropriate directions are required to be given to the State Government for rotation as per the provisions of the Act and the 1994 Rules. Mr. Patel thus submitted that the petitions be allowed as prayed for.
14. Ms. Nilam Chauhan, learned advocate for the petitioner in Special Civil Application no.17533/21 has adopted the arguments of Mr. Bharat S. Patel, learned Senior Advocate for the petitioners in this batch of petitions. Ms. Chauhan further contended that as stated in her petition, the allotment for the seat of Page 10 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Sarpanch for Bhunava gram panchayat has to be made as prayed for.
15. Per contra, Ms. Dimple Thaker, learned advocate for the Gujarat State Election Commission contended that as per Section 51 of the Act read with 1994 Rules and more particularly, Rules 4 to 8 and 10 to 12 clearly provide that it is the State Government who has to undertake the exercise of rotation and reservation. According to Ms. Thaker, the State Government has scrupulously followed the Act and the 1994 Rules and the petitions are misconceived and all the contentions raised in the petitions deserve to be negatived.
16. Ms. Manisha L. Shah, learned Government Pleader for the State Government authorities has taken this Court through the provisions of Articles 243B, 243C and 243D of the Constitution of India as well as Section 51 of the Act as well as Rules 4 to 10 and 13 of the 1994 Rules. Ms. Shah contended that it is the command of the Constitution and it should be by rotation as a matter of course for the Panchayat. Ms. Shah contended that the petitioners have not challenged the provisions of the Act or the 1994 Rules. Relying upon the judgment of the Hon'ble Apex Court in the case Page 11 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 of Anuradh Narayansingh & Ors. Vs. State of Uttar Pradesh, reported in (1996) 6 SCC 303 and referring to Paragraph 35 thereof, it was contended by Ms. Shah that the Courts ordinarily, except in rarest of rare cases, exercise a restraint and interfering in election matters, particularly, when the election process is underway. Ms. Shah contended that in the present case, 10800 gram panchayats and equal number of the offices of Sarpanch go for the election as per the election schedule within a period of 10 days. Referring to Article 243-O of the Constitution of India, it was contended by the learned Government Pleader that the same provides for bar to interference by Courts in electoral matters. It was further contended that though the said provisions do not bar judicial review, the same requires restraint to be exercised by Court in interference in election matters. It was further contended that it is settled principle of law that when there is an alternative efficacious remedy under the statute, the Courts do not exercise their jurisdiction as a self-imposed restriction. It was further contended that right to contest the election is not a fundamental right, nor a common law right. It was also contended that the State is vested with the powers to implement the constitutional mandate for Page 12 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 reservation and rotation as put in place by the legislative and executive powers who implement the mandate. Referring to Rule 4 of the 1994 Rules, it was contended by Ms. Shah, learned Government Pleader that for the election of Sarpanch of the village panchayat, taluka is prescribed as a unit for the same. Referring to Rule 4 of the 1994 Rules, it was contended that the same provides for determination of reservation of offices of Sarpanch in favour of Scheduled Castes and Scheduled Tribes, proportionate to the total population of Scheduled Castes and Scheduled Tribes in the taluka respectively. Reading the said Rule, it was further contended that the said Rule also prescribe that 10% of the total number of offices of the Sarpanch of village panchayats in a taluka shall be reserved by the State Government for SEBC. It was contended that Rule 5 of the 1994 Rules provides that for the villages in the taluka are required to be serially arranged in accordance with the population of Scheduled Castes in each village beginning with the village consisting of highest percentage of the population of the Scheduled Castes to be assigned special serial numbers, such as, SC1, SC2 and so on. Ms. Shah also contended that the State Government shall first allot number of offices of Sarpanch of the village Page 13 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 panchayats in taluka, reserved for Scheduled Castes including one-half of such offices reserved for women belonging to Scheduled Castes serially to the villages bearing special serial numbers for Scheduled Castes by rotation such that the preference shall be given to the reservation for women. Ms. Shah contended that the mandate provides that first reservation is to be undertaken by the State Government with respect to Scheduled Castes including and commencing with women belonging to Scheduled Castes. Ms. Shah contended that as provided under Rule 6 of the 1994 Rules, villages in the taluka are required to be serially arranged in accordance with the population of Scheduled Tribe in each village beginning with the village consisting of the highest percentage of the population of the Scheduled Tribes to be assigned special serial numbers, such as, ST1, ST2 and so on. Similarly, in the order of special serial numbers so allotted, reservation is required to be made for Scheduled Tribes including and commencing with women belonging to Scheduled Tribes. Ms. Shah, referring to Rule 7 of the 1994 Rules, contended that the same prescribes that the reservation in favour of SEBC (10% of the total number of offices of Sarpanch in the village of the taluka as mandated under Rule
4) is required to be made in those village Page 14 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 panchayats having more than 5% population of SEBC and in that case also, such reservation should also include and commence with women belonging to the SEBC. It was further contended that it is after all the above offices of the Sarpanch are reserved including and commencing with reservation of one-half of offices for women, that the remaining offices are required to be allotted to the general category. According to Ms. Shah, three lists operate in their own manner within each class and the offices of Sarpanch are required to be allotted in terms of each Rule. Ms. Shah, referring to the judgment of this Court in the case of Dixant Ishwarbhai Patel Vs. State of Gujarat rendered in Special Civil Application no.15948 of 2016, contended that it would not be possible to operate the lists in the manner as put forth by the learned counsel for the petitioners, namely, that once an office of the Sarpanch is reserved for any class, in the next election, it has to be unreserved, viz, allotted to the general category. According to Ms. Shah, statutory scheme prescribes rotation within each class. Referring to facts arising in this batch of petitions, it was contended that in the present case, total panchayats in Gondal Taluka are 79 in number, out of which, 9 have been reserved for Scheduled Castes (5 for women), out of which, zero has been Page 15 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 reserved for Scheduled Tribes, 8 seats for SEBC (4 for women). Deducting 17 from 79 enable to arrive at the figure 62 panchayats which are for the general category, out of which, 31 are reserved for women. Ms. Shah contended that thus, 40 offices of Sarpanch out of 79 village panchayats have been reserved for women. Ms. Shah also referred to the amendment dated 5.2.2015 passed by the State Government in exercise of powers conferred by Section 274 read with sub-section (3) of Section 51 of the Act, the 1994 Rules were amended, whereby in Rules 6 and 7, for the words "one-third", the words "as nearly as may be one half" has been substituted and in Rule 9, for the word "three", the word "two" has been substituted. Referring to Rule 9, the number of offices of Sarpanch of village panchayats in a taluka to be reserved for women belonging to Scheduled Caste, Scheduled Tribe and SEBC are first to be derived and reserved and then the remaining number of offices of Sarpanch after having reduced the aggregate number of the offices of Sarpanch for women, are to be reserved for the remaining categories.
17. Ms. Shah has also relied upon the chart submitted along with the written submissions in each petitions and has explained as to how Page 16 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 the 1994 Rules and more particularly, Rules 4 to 8, 10, 11 and 13 have been implemented by the State Government. It was further contended that the State Government has scrupulously followed the 1994 Rules. Ms. Shah also contended that the contention raised as regards Section 51 of the Act that there has to be reservation for Scheduled Caste and Scheduled Tribe in each Panchayat and the reliance placed for in the case of Nathabhai Devabhai Zala (supra) pertains to election of a Panchayat and according to Ms. Shah, the petitions relate to rotation on the offices of Sarpanch of the village panchayats which are different and distinct. Ms. Shah has also produced on record the notification which shows that there is reservation for the Scheduled Caste and Scheduled Tribe candidates in the Panchayat. It was also contended that the Rules have been strictly adhered to by the State Government by providing the rotation and no illegality is committed, as contended in the petitions and the petitions, being merit- less, deserve to be dismissed.
18. No other or further submissions, averments, grounds and/or contentions are made by the learned counsel appearing for the respective parties.
Page 17 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022C/SCA/15959/2021 ORDER DATED: 08/12/2021
19. Before reverting to various contentions raised by the learned counsel appearing for the respective parties, it would be appropriate to refer to Article 243 of the Constitution of India, Section 51 of the Act and Rules 4 to 10 and 13 of the 1994 Rules, which read as under:-
"243A. Gram Sabha. --
A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may by law, provide.
243B. Constitution of Panchayats. --
(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in
clause (1), Panchayats at the
intermediate level may not be
constituted in a State having a
population not exceeding twenty
lakhs.
243C. Composition of Panchayats. -- (1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to Page 18 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 be filled by election shall, so far as practicable, be the same throughout the State, (2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.
(3) The Legislature of a State may, by law, provide for the representation--
(a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level;
(b) if the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
(c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the Page 19 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 village level, in such Panchayat;
(d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within--
(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats.
(5) The Chairperson of--
(a) Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and
(b) a Panchayat at the intermediate level or district level, shall be elected by, and from amongst, the elected members thereof.
243D. Reservation of seats.-- (1) Seats shall be reserved for--Page 20 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022
C/SCA/15959/2021 ORDER DATED: 08/12/2021
(a) the Scheduled Castes; and
(b) the 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 Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging, to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes the Scheduled Tribes and women in such manner as the Legislature of a State may, by Page 21 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level 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:
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334 .
(6) Nothing in this Part shall 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 favor of backward class of citizens."Page 22 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022
C/SCA/15959/2021 ORDER DATED: 08/12/2021 Rules 4 to 10 and 13 of the 1994 Rules read as under:-
"4 : Manner of Reservation of Offices of Sarpanch (1) The reservation of offices of Sarpanch of village panchayats in the State of the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes under clause (a) of sub-section (2) of section 51 of the Act shall be made in the manner specified hereafter.
(2) The offices of sarpanch of village panchayats in at taluka shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of the offices of sarpanch of village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion to the total number of offices of sarpanch of village panchayats in a taluka as the population of the Scheduled Castes in the taluka or the Scheduled Tribes in the taluka bears to the total population of the Taluka.
(3) The offices of sarpanch of village panchayats in a taluka shall be reserved by the State Government for the Socially and Educationally Backward Classes and the number of offices of sarpanch of village panchayats in a taluka as so reserved shall be ten percent of the total number of offices of sarpanch of village panchayats in a taluka.Page 23 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022
C/SCA/15959/2021 ORDER DATED: 08/12/2021 5 : Allotment offices of sarpanch reserved for Scheduled Castes (1) For the purpose of allotment of the number of offices of sarpanch of village panchayats of a taluka determined by the State Government as reserved for the Scheduled Castes under rule 4 , the State Government shall determine to villages of taluka which consist of population of the Scheduled Castes and such villages of a taluka shall be serially arranged in accordance with the percentage of Population of the Scheduled Castes in each village beginning with the village consisting of the highest percentage of the population of the Scheduled Castes and shall be assigned serial numbers as SCI, SC2 and so on.
(2) The serial number as so assigned shall be known as special serial number for the Scheduled Castes.
(3) The State Government shall first allot the number of offices of sarpanch village panchayats in a taluka reserved for the Scheduled Castes (including one third of such offices reserved for women belonging to the Scheduled Castes), serially to the village bearing special serial numbers for Scheduled Castes by rotation, so however that preference shall be given to allotment of offices of sarpanch reserved for the women.
6 : Allotment of offices of sarpanch reserved for Scheduled Tribes (1) For the purpose of allotment of Page 24 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 the number of offices of sarpanch of village panchayats of a taluka determined by the State Government as reserved for the Scheduled Tribes under rule 4 , the State Government shall determine the villages of a taluka which consist of population of the Scheduled Tribes, and such villages of a taluka shall be serially arranged in accordance with the percentage of population of the Scheduled Tribes in each village beginning with the village consisting of the highest percentage of the population of the Scheduled Tribes and shall be assigned serial numbers as ST1, ST2 and so on.
(2) The serial numbers as so assigned shall be known as special serial numbers for the Scheduled Tribes.
(3) The State Government shall, after having allotted the offices of sarpanch of village panchayats in a taluka reserved for the Scheduled Castes under sub-rule (3) of rule 5 , allot the number of offices of sarpanch of village panchayats in a taluka reserved for the Scheduled Tribes (including one third of such offices reserved for women belonging to the Scheduled Tribes) serially to the village bearing special serial numbers for the Scheduled Tribes by rotation so however that preference shall be given to allotment offices of sarpanch reserved for the women.
7 : Allotment of offices of sarpanch reserved for socially and educationally Backward Classes (1) For the purpose of allotment of Page 25 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 the number of offices of sarpanch of village panchayats of a taluka determined by the State Government as reserved for the Socially and Educationally Backward Classes under the rule 4 , the State Government shall having regard to the decisions of the State Government under sub- rule (5) of rule 6 of the Gujarat Village Panchayats Election (Manner of Allotment of .Reserved Seats by Rotation) Rules, 1994 determine the villages of a taluka which consist of population of Socially and Educationally Backward Classes to the extent of more than five percent of the total population of the village and such village of a taluka shall be arranged in accordance with the alphabetical order of the names of village panchayats and shall be assigned serial numbers as SE 1, SE 2 and so on.
(2) The serial numbers as so assigned shall be known as special serial numbers for the Socially and Educationally Backward Classes.
(3) The State Government shall after having allotted the offices of sarpanch of village panchayats in a taluka reserved for the Scheduled Castes and the Scheduled Tribes under rules 5 and 6 allot the number of offices of sarpanch of village panchayats in a taluka determined by the State Government under clause (a) of sub-section (2) of section 51 of the Act read with sub-rule (3) of rule 4 as reserved for the Socially and Educationally Backward Classes (including one third of such offices reserved for women belonging to the Page 26 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Socially and Educationally Backward Classes) serially to the Villages bearing special serial numbers for the Socially and Educationally Backward Classes so however that preference shall be given to allotment of offices of sarpanch reserved for the women.
8 : Allotment of offices of sarpanch to others .-
The State Government shall, after having allotted offices of sarpanch of village panchayats in a taluka reserved for the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes under rules 5 6 and 7 allot the remaining office of sarpanch of village panchayats in a taluka (including those reserved for women) serially to villages bearing general serial numbers to which offices of sarpanch reserved for the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes are not allotted under rules 5 6 and 7 so however that preference shall be given to allotment of offices of sarpanch reserved for women to allotment of offices of sarpanch reserved for women other than the women belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes.
9 : Computation of reserved offices of sarpanch for women (1) the number of offices of sarpanch of village panchayats in a taluka to be reserved for women belonging to the Scheduled Castes, the Scheduled Page 27 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Tribes or as the case may be, the Socially and Educationally Backward Classes shall be derived by dividing the number of offices of sarpanch to be reserved for the Scheduled Castes, the Scheduled Tribes or, as the case may be, the Socially and Educationally Backward Classes by three.
(2) The remaining number of offices of sarpanch to be reserved for women shall be determined by the first deriving the number dividing the total number of offices of sarpanch of village panchayats in a taluka by three and number so derived shall be reduce by the aggregate of the number of offices of sarpanch to be reserved for women belonging to the Scheduled Castes the Scheduled Tribes, and the Socially and Educationally Backward Classes, under sub-rule (1).
10 : List of villages bearing special serial numbers and general serial numbers how operated .-
In every immediately succeeding election-
(a) the lists of villages bearing special serial numbers for the Scheduled Casts, the Scheduled Tribes or, as the case maybe, the Socially and Educationally Backward Classes shall-
(i) continue to be operated serially from the special serial number folio wing the special serial number where the allotment of officer of sarpanch reserved for the Scheduled Castes, the Scheduled Tribes or, as the case Page 28 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 my be, the Socially and Educationally Backward Classes had ended;
(ii) be operated till it is
exhausted; and
(iii) be reoperated from the
beginning after it is exhausted.
(b) The list of villages bearing general serial numbers shall, in BO far as allotment of offices of sarpanch reserved for the women is concerned, shall-
(i) continue to be operated serially from the general serial number following the general serial number where the allotment of officer of sarpanch reserved for the women, had ended;
(ii) be operated till it is
exhausted; and
(iii) be reoperated from the
beginning after it is exhausted.
11 : Assignment of numbers to reconstituted village panchayats (1)(a) Where by reason of amalgamation of village a new villages is constituted or by reasons of splitting up of a village, two or more new villages are constituted the village panchayats of such newly constituted villages shall be assigned general serial numbers under rule 3 and where necessary special serial numbers under and of the rule 5 , 6 and 7 and the general serial numbers as so assigned shall be adjusted in the list of general Page 29 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 serial numbers for the Scheduled Castes, Scheduled Tribes or, as the case may be, Socially and Educationally Backward Classes.
(b) Where the population of a reconstituted village referred to in sub-rule (1) is more than fifty percent of the population of the original village and the village panchayat of the original village has already been covered by rotation before the reconstitution village then the village panchayat of such reconstituted village shall not be considered for rotation till the list of general serial numbers or as the case may be special serial numbers is exhausted.
(2)(a) Where the name of a village panchayat is changed, the general serial number assigned to it shall be changed under the rule 3 and the list of general serial numbers shall be amended accordingly.
(b) Where the village panchayat with original name has already been covered by rotation then the renamed village panchayat shall not be reconsidered for rotation till the list is exhausted.
12 : Allotment of reserved office of sarpanch to continue in certain cases (1) Notwithstanding anything contained in rule 11.
(a) where by reason of amalgamation of villages a new village is constituted, then for the purpose of election of sarpanch along with the Page 30 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 general election of the village panchayat of the reconstituted village under sub-section (2) of section 262 of the Act, the allotment of reserved offices of sarpanch made in respect of the village panchayat of the village having the largest population amongst the amalgamated villages shall be deemed to be the allotment made in respect of the village panchayat of the reconstituted village;
(b) where by reason of splitting up of a village (hereinafter referred to as the "original village") two or more villages are reconstituted then for the purpose of election of sarpanch alongwith the general elections of the village panchayats of reconstituted villages, under sub- section (2) of section 263 of the Act the village panchayats of that village which has the larger percentage of population of the Scheduled Castes, the Scheduled Tribes or, as the case may be Socially and Educationally Backward Classes of the original village, shall be deemed to have the allotment of reserved office of sarpanch made of the village panchayat of the original village in respect of the Scheduled Castes, the Scheduled Tribes or, as the case may be Socially and Educationally Backward Classes till the election for the village panchayat is held alongwith the general elections of other village panchayats in the State.
(2) Save as otherwise provided in sub-rule (1) the decrease or the increase in the number of village Page 31 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 panchayats in a taluka on account of amalgamation or splitting up of village, shall not affect the allotment of reserved offices of sarpanch by rotation to different village panchayats in that taluka immediately before such decrease or increase till election of such village panchayats is held alongwith the general elections of other village panchayats in the state.
13 : Computation of offices of sarpanch to be reserved under these rules.-
While deriving the number of offices of sarpanch to be reserved under these rules, a fraction which is one half of greater than one half in value shall be counted as the end a fraction less than one half in value shall be ignored.
Section 51 of the Act reads as under:-
51 : First meeting of panchayat and election of [xxx] and UpaSarpanch (1) On the constitution of a village panchayat or on its reconstitution under section 13 or under any other provision of this Act, there shall be called the first meeting thereof for the election of Upa-Sarpanch from amongst the members of the panchayat.
(2) [(a) All offices of sarpanch of village panchayats in the State shall be reserved by the State Government for the Scheduled Tribes.
Explanation - For the purposes of Page 32 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 this clause, "village panchayat"
means the village panchayat, the whole local area of which comprises of the Scheduled Areas.]
(b) (i) As nearly as may be one-half of the total number of offices of Sarpanch of village panchayats in the State reserved under clause (a).
[xxx] shall be reserved by the State Government for women.
(3) The number of offices reserved under sub-section (2) shall be allotted by the State Government by rotation to different village panchayats in the State in the prescribed manner.
(4) The meeting shall be held on such day within four weeks from the date on which the names of members elected at the general election are published under section 15 as may be fixed by the competent authority.
Provided that where no day is fixed within the aforesaid period of four weeks, the competent authority shall report the fact to the State Government or an officer or authority authorised by the State Government and the meeting shall be held on such day as the State Government or the said officer or authority as the case may be, may specify.
(5) In the case of village panchayat, where there has been a failure to elect a Sarpanch or where the elected Sarpanch is not willing to take,' office, the first meeting of such Page 33 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 village panchayat shall be presided over by such officer as the competent authority may by order appoint in that behalf.
Such officer shall have such powers and follow such procedure as may be prescribed but shall not have the right to vote.
(6) At the first meeting of the
village panchayat no business other
than the election of the Upa-Sarpanch
shall be transacted.
(7) If at the election under this section there is an equality of voters, the result of the election shall be decided by lot drawn in the presence of the presiding officer in such manner as he may determine.
(8) In the event of a dispute arising as to the validity of an election under the foregoing provisions of this section, the dispute shall be referred within a period of thirty days from the date of the declaration of the result of the election to the competent authority for decision. The decision of the competent authority shall be final and no suit or other proceeding shall lie against it in any court."
20. Chapter 9 of the Constitution of India provides for the Panchayat. As defined under Article 243B of the Constitution of India, 3 layers of gram panchayats are provided (i) at the village level, (ii) intermediate i.e. at the taluka level, and (iii) at the District Page 34 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 level. Article 243D of the Constitution of India provides for reservation of seats for Scheduled Caste and Scheduled Tribe in every Panchayat. It further postulates that 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 the panchayat as the population of the Scheduled Castes in that panchayat area or the Scheduled Tribes in that panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in panchayat. The provision of Section 51 of the Act is in consonance with the provisions of the constitutional mandate.
21. The question, which has been raised in this batch of petitions, relates to that of the offices of Sarpanch in a gram/village panchayat and not the elections of the panchayat as a body as a whole. Sub-section (2)(a) of Section 51 of the Act provides that the offices of the Sarpanch of village panchayat in the State shall be reserved by the State Government for the Scheduled Castes and Scheduled Tribes and the number of offices of Sarpanch of village panchayat in the State so reserved shall bear as nearly as may be the same proportion to the total number of offices Page 35 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 of Sarpanch of village panchayat in the State as the population of the Scheduled Castes in the State or Scheduled Tribes in the State bears to the total population of the State. The said provision further provides that there shall be reservation for Socially and Educationally Backward Class to the extent of 10% of the offices of Sarpanch of village panchayat in the State. Thus, Section 51(2)(a) of the Act provides for reservation for Scheduled Castes and Scheduled Tribes, which is based on the proportionate to the population of the said castes to the total population of the State. The said provision provides for reservation of SEBC to the post of Sarpanch to the extent of 10% of the offices of the Sarpanch. Therefore, the same is related to total number of seats of Sarpanch in a taluka as a unit. Sub-section (3) of Section 51 of the Act provides that the reservation provided under sub-section (2) of Section 51 shall be allotted by the State Government by rotation to different village panchayats in the State in the prescribed manner. The prescribed manner as provided under the said provision is prescribed under the Rules, namely, the Gujarat Village Panchayat Elections of Sarpanch (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994, which have been duly framed and Page 36 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 published in accordance with law. Rule 3 of the Rules provides for assignment of serial number to village panchayat of a taluka and the same are to be arranged in English alphabetical order and serial numbers are to be given. Rule 4 provides for manner of reservation of offices of the Sarpanch. Sub- rule (2) of Rule 4 in fact provides the hierarchy of reservation of the post of Sarpanch. It is provided under the said sub- rule that the offices of Sarpanch of village panchayat in a taluka shall be reserved by the State Government for Scheduled Caste and Scheduled Tribe and the number of offices of the Sarpanch by village panchayat in a taluka as so reserved shall bare as nearly as may be the same proportion to the total number of offices of the Sarpanch of village panchayat in a taluka as the population of the Scheduled Caste. Similar provision is provided for reservation by rotation of Scheduled Tribes. Sub-rule (3) of Rule 4 of the 1994 Rules provides that offices of the Sarpanch of village panchayat in taluka shall be reserved by the State Government for Socially and Educationally Backward Class and the number of offices of Sarpanch of village panchayat in a taluka so reserved shall be "10%" of the total number of offices of Sarpanch of village panchayat in a taluka. Thus, Rule 4 provides Page 37 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 for reservation in consonance with the constitutional mandate for the Scheduled Caste and Scheduled Tribe based upon the proportionality of population of the taluka and sub-rule (3) provides for 10% reservation based upon total "number of offices" of Sarpanch of village panchayat in a taluka as provided under Section 51 of the Act. Thus, Rule 4 provides that the taluka has to be the unit while considering the reservation for Scheduled Caste, Scheduled Tribe and SEBC. As provided under Article 243F, population means the population as ascertained as the last preceding census which, in the case on hand, is census figures of 2011. Sub-rules (1) and (2) of Rule 4 of the 1994 Rules is in consonance with Article 243D of the Constitution of India. The said Rule is also in consonance with the provisions of Section 51(2)(a) of the Act and therefore, the contention raised by the learned Senior Advocate for the petitioners that the Rule overrides the provisions of the Act is incorrect. Sub-section (3) of Section 51 clearly provides that number of offices so reserved as per Section 52(2) of the Act shall be allotted by the State Government by rotation to different village panchayats in the State in the prescribed manner which as such is prescribed under Rule 4 and the same Page 38 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 is in consonance with the said provision. Rule 5 of the 1994 Rules provides for allotment of office of Sarpanch reserved for Scheduled Caste. Thus, the Act and the 1994 Rules provide firstly for reservation for Scheduled Caste and Scheduled Tribe and SEBC. Rule 5 of the 1994 Rules deals with the allotment of Sarpanch reserved for Scheduled Caste. The said Rule, inter-alia, provides that the State Government shall determine such seats based upon the population of villages of the taluka which consist of population of Scheduled Caste and such village or taluka shall be serially arranged in accordance with the percentage of the population of Scheduled Caste in each village beginning with the village consisting of the highest percentage of population of Scheduled Caste and shall be assigned "serial numbers" as SC1, SC2 and so on, which shall also be known as special numbers as provided under sub-rule (2) of Rule 5 of the 1994 Rules. Sub-rule (3) of Rule 5 provides for reservation for women which as on date is 50% and it also, inter-alia, provides that the same shall be reserved for Scheduled Caste serially to the village bearing special serial number by rotation by giving preference to such allotment being made for women. Thus, in case of allotment of office of Sarpanch reserved for Scheduled Caste, the population Page 39 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 of the taluka is the basis as taluka is the unit and the same is to be given special serial number and arranged in descending order of such percentage of population of Scheduled Caste beginning from high to low. After such reservation, Rule 6 provides for allotment of office of the Sarpanch reserved for Scheduled Tribe in a similar manner, wherein also, the special serial numbers are to be given. Rule 7, inter-alia, provides for allotment of office of Sarpanch reserved for SEBC class. However, it inter-alia provides that the same shall be determined having regard to the decision of the State Government and for the villages which consist for population of SEBC to the extent of more than 5% of the total population of the village and such village or taluka shall be arranged in alphabetical order by giving serial numbers which will also be known as special serial numbers such as SC1, SC2 and so on. Sub-rule (3) of Rule 7 of the 1994 Rules provides for similar provision for women of SEBC. Rule 9, as amended, provides for 50% reservation for women. Rule 10, inter- alia, provides as to how list of village bearing special serial numbers and general serial numbers are to be operated. The said Rule clearly provides that list of villages bearing special serial numbers for Scheduled Caste, Scheduled Tribe or as the case may be Page 40 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 even the SEBC shall continue to be operated serially from special serial number following the special serial number, where the allotment of office of Sarpanch reserved for Scheduled Caste, Scheduled Tribe or SEBC had ended. It is also inter-alia provided that such list shall be operated till it is exhausted and shall be reoperated from the beginning after it is exhausted. Thus, sub-rule 10(a)(i), (ii) and (iii) postulate that the list of villages, where serial numbers are given and the case of Scheduled Caste, Scheduled Tribe and SEBC is to be operated in seriatim and it is to be operated in such a manner which would amount to picking the thread from where it was left. The Rule therefore provides that the serial number at which the State Government had ended at the last election in the next election, it has to start from special serial number next to the special serial number, where it ended. Rule 10(b) speaks of general serial number which is given in case of reservation for women and the said Rule also provides that it is to be operated continuously serially from general serial number following the general number where the allotment of office of Sarpanch reserved for women had ended. Thus, Rule 10 provides for meticulous maintaining of serial numbers either special or serially to maintain rotation. Similarly, Rule 13 provides Page 41 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 that while deriving the number of offices of Sarpanch to be reserved under these Rules, a fraction which is one-half of greater than one-half value, shall be counted and a fraction less than one-half value shall be ignored. Having referred to the provisions of the Act and the Rules, it would be apt to refer to the factual matrix arising in each matter and the manner in which the same has been operated as per the impugned notification at Annexure-A qua each village. As aforesaid, in all the four matters, the area involved is Gondal Taluka, wherein total number of village panchayats is 79 in number as per the record. The total population of Scheduled Caste of Gondal Taluka as per 2011 census is 18727, whereas total population of Scheduled Tribe in Gondal Taluka is as per 2011 census is 363 and population of SEBC is 54850.
22. In Special Civil Application no.16770/21, the petitioner has prayed that for Village Nagadka, as per the petitioner, the rotation would be for Scheduled Tribe and not for women open category. As the chart which is made part of the record of this petition and which is relied upon by the learned Government Pleader shows that Gondal Taluka is taken as a unit as provided in the 1994 Rules. It further provides that total population of Gondal Page 42 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Taluka is 173353 as per the last census i.e. census figures of 2011 and the total population of Scheduled Tribe in the said taluka is only 363. By operation of Rule 13, the population of 363 is as a fraction is less than the half and hence, as per the Rules, no seat for the Sarpanch is reserved for Scheduled Tribe. However, it is reserved for women general category. Thus, as the population of Scheduled Tribe in the taluka is less than the fraction and the fraction is less than the half, as per Rule 13, no seat is required to be reserved for Scheduled Tribe for the Sarpanch.
23. In Special Civil Application no.16385/21, the competent authority has reserved the seat for Scheduled Caste category person and the prayers prayed for is for reservation for women general. By operation of Rule 5 in terms of total population of Gondal Taluka being 173353 and total population of Scheduled Caste is 18727 in proportionate to the population, 9 seats for Sarpanch are required to be reserved for Scheduled Caste. The chart submitted by the learned Government Pleader shows that out of 9 seats, 5 seats are required to be reserved for women of Scheduled Caste category. Similarly, the chart indicates that in the last election held in the year 2016, Page 43 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 the State Government had exhausted the list upto special members no.25 i.e. Village Sajadiyali. The chart indicates that the State Government has gone further as per special numbers and provided 5 seats for Villages Devda, Rupavati and Patkhilori at Sr. nos.26, 27 and 28 respectively and for Village Trakuda and Village Keshvada and similarly, for Village Bandra at Sr. no.32, Village Nanasagpar at Special no.33, Village Kolithad at Special no.34 and Village Vorakotda at Special no.35. The chart also indicates that the Village Khadapar at Sr. no.29 was already allotted seat for Scheduled Caste general in the election of 1999 and therefore, the same is not repeated for the election of 2021. The chart clearly indicates that the special numbers are given in the descending order starting from Village Dharada having highest population of 37.61%.
24. In Special Civil Application no.15959/21, the petitioner has prayed that for Village Sultanpur, post of Sarpanch should be reserved and allocated for General category and has challenged the reservation for female category. As observed hereinabove, Rule 9 of the 1994 Rules provides for reservation of the office of the Sarpanch for women. The chart submitted by the State Government clearly Page 44 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 indicates that the total number of seats for Gondal Taluka for the Sarpanch is 79 village panchayats i.e. 79 seats and 40 seats are required to be reserved for women, 5 are required to be reserved for Scheduled Caste and 4 for SEBC and 31 in the open category. The chart clearly indicates that considering the past reservation of seats reserved for women, the State Government has followed the relevant Rule, more particularly, Rule 9(2) of the 1994 Rules and has reserved the post of Sarpanch in Village Sultanpur for women as it has not been reserved more than once.
25. In Special Civil Application no.17533/21, the petitioner has contended that for Village Bhuvanana, the seat should be reserved for Scheduled Tribe. As mentioned hereinabove, the total population of Gondal Taluka as a unit is 173353, out of which, total population of Scheduled Tribe is 363, which is less than half in proportion and therefore, as per Rule 13, no seat can be reserved for Sarpanch in Gondal Taluka.
26. At this stage, the learned Government Pleader has pointed out that as provided under Section 51 of the Act and as per the constitutional mandate, in every panchayat as a whole i.e. for members, seats are reserved for Scheduled Page 45 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Caste, Scheduled Tribe and SEBC respectively based upon the figures of 2011 census, more particularly, under Sections 9(4) and 9(5) of the Act. Therefore, the contention raised by the learned counsel for the petitioners that by not providing reservation, the same would amount to breach of constitutional mandate, is incorrect. The learned counsel for the petitioners has relied upon the judgment in the case of Nathabhai Devabhai Zala (supra). The said judgment relates to election of whole village panchayat and not Sarpanch. As per the provisions of the Act, in case of election to village panchayat, a voter has to give two votes, one for the member and another for the Sarpanch, that is to say that the election of Sarpanch of every village panchayat is by direct election. What is contended in the petitions is about the reservation and rotation of the seats for election of Sarpanch and not the panchayat and therefore, the ratio laid down by this Court in the case of Nathabhai Devabhai Zala (supra) would not be applicable to the present case.
27. In view of the above, it is clearly found that the State Government has obeyed the constitutional mandate, the provisions of Sections 51(2)(a) and 51(3) of the Act as well as Rules 4 to 9 and 11 to 13 of the 1994 Page 46 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 Rules. The allotment made by the authorities under the impugned notification dated 24.9.2021 at Annexure-A does not suffer from any legal infirmity which requires interference by this Court. This Court finds that the 1994 Rules are so meticulous in nature and have elements of arithmetic and mathematics and the State Government is duty bound to adhere to it and such adherence is found in the impugned notification. Even at the cost of repetition, it is provided that as provided under the Rules, which is in consonance with the provisions of Section 51 of the Act, taluka is taken as a unit and it is found that the State Government has correctly followed the relevant Rules i.e. Rule 5 to 8 read with Rules 10 and 13 of the 1994 Rules and has provided for appropriate rotation for the post of Sarpanch.
28. Before parting, we may note that the notification for election has already been published and the election process has started. As held by the Hon'ble Apex Court in the case of Anugrab Narain Singh & Anr. Vs. State of U.P. & Ors., reported in (1996) 6 SCC 303 and the Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit Vs. Gujarat State Election Commission rendered in Special Civil Application no.1429 of 2021 Page 47 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022 C/SCA/15959/2021 ORDER DATED: 08/12/2021 dated 10.2.2021, even though the petition under Article 226 of the Constitution of India is maintainable as powers of judicial review is available, as the elections are underway, on that ground also, no interference is called for.
29. We hasten to add that the State Government and its authorities ought to have given reply to the applications filed by the petitioners and appraise them about the data as regards the population of Scheduled Castes, Scheduled Tribes and SEBC and even the rotation charts. We firmly believe that if that exercise would have been undertaken, this litigation could have been avoided. The petitions are dismissed on merits as well. Notices discharged in each petitions. However, there shall be no order as to costs.
(R.M.CHHAYA,J) (MAUNA M. BHATT,J) Maulik Page 48 of 48 Downloaded on : Wed Jan 12 08:17:26 IST 2022