Allahabad High Court
Ajay Pal Singh vs State Of U.P. And 2 Others on 27 January, 2021
Bench: Surya Prakash Kesarwani, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 48 Case :- WRIT - C No. - 21887 of 2020 Petitioner :- Ajay Pal Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Dwijendra Prasad Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1. Heard Sri Dwijendra Prasad, learned counsel for the petitioner and Sri Mata Prasad, learned Standing Counsel for the State respondents.
2. The present writ petition has been filed praying for the following reliefs:-
"(i) Issue a writ, order or direction in nature of mandamus to direct the respondent no. 2 to provide the reservation for dependent of freedom fighter in election of Zila Panchayat election area Gangiri First in District Aligarh Uttar Pradesh.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to decide the representation of the petitioner regarding the reservation for dependent of freedom fighter in election of Zila Panchayat election area Gangiri First in District Aligarh Uttar Pradesh.
(iii) Pass such other and further order which this Hon'ble Court deem fit and proper under the facts and circumstances of the case.
(iv) Award the cost of the petition in favour of the petitioner."
3. The petitioner, claiming himself to be a dependent of freedom fighter, has sought to raise a grievance with regard to his claim for reservation in the elections to the Zila Panchayat from the territorial constituency Gangiri (First), District Aligarh. He claims to have filed a representation in this regard to the District Election Officer/District Magistrate Aligarh, a copy whereof has been annexed as Annexure no. 5 to the writ petition, wherein a claim has been made for grant of reservation to the dependents of freedom fighters, in the Zila Panchayat elections to be held for the territorial constituency Gangiri (First) and also the Gram Panchayat elections to be held for the territorial constituency Village Dadon, Block Bijauli, Tehsil Atrauli. To support his claim, the petitioner has placed reliance upon a chart showing the position of reservation of the Gram Panchayat Dadon during the previous elections which is as under :-
vyhx<+ ftys ds fodkl [k.M fctkSyh ds xzke iapk;r nkanksa ds iz/kku in dk vkj{k.kA dzz0la0 xzke iapk;r dk uke iz/kku in dk vkj{k.k 01 xzke iapk;r nknksa 1995 fiNM+h tkfr 02 xzke iapk;r nknksa 2000 fiNM+h tkfr 03 xzke iapk;r nknksa 2005 efgyk 04 xzke iapk;r nknksa 2010 vukjf{kr 05 xzke iapk;r nknksa 2015 efgyk
4. The petitioner submits that while reservations have been granted in favour of the other classes, the respondent authorities are acting in an arbitrary manner in not providing reservation for dependents of freedom fighters in respect of the territorial constituency in question.
5. In order to appreciate the controversy the relevant provisions under law may be referred to.
6. Learned counsel for the petitioner, however, has not been able to point out any specific statutory provision in terms of which the claim, with regard to grant of reservation to dependents of freedom fighters in elections to Zila Panchayats and Gram Panchayats, may be made.
7. The subject matter of Panchayats is dealt with under Part IX of the Constitution. Part IX containing Articles 243, 243A to 243O and a new schedule i.e. Eleventh Schedule were inserted by the Constitution (Seventy-third Amendment Act), 1992 with effect from 24.4.1993. The object of the amendment of the Constitution and the insertion of Part IX was to strengthen the Panchayat system by giving it a constitutional base, so as to ensure that Panchayats become vibrant units of administration in rural areas by establishing strong, effective and democratic local administration for rapid implementation of rural development programmes. In terms of the provision contained under Part-IX, a uniform three-tier system of Panchayats i.e. at village, intermediate and district level has been created throughout the country.
8. The terms "district", "intermediate level" and "village", are defined under Article 243, as follows :-
"(a) "district" means a district in a State;
(c) "intermediate level" means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purposes of this Part;
(g) "village" means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified."
9. Article 243B provides for constitution of Panchayats at each of the three levels, referred to above, in accordance with the provisions under Part IX. Article 243B reads as follows:-
"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."
10. The reservation of seats in the Panchayats is provided for under Article 243D of the Constitution, which is being reproduced below :-
"243D. Reservation of seats--(1) Seats shall be reserved for-
(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 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 favour of backward class of citizens."
11. The provision for establishment of Panchayats at the intermediate level and the district level in the State of Uttar Pradesh in furtherance of the principle of democratic decentralisation of governmental functions, is contained under the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 19611 .
12. Section 3 of the Adhiniyam, 1961 provides for division of rural areas into Khands, and Section 5 envisages that there shall be a Kshettra Panchayat for every Khand.
13. In a similar manner, Section 17 provides for establishment and incorporation of Zila Panchayats and in terms thereof there shall be a Zila Panchayat for each district.
14. Keeping in view the objectives and guidelines incorporated in the Constitution (Seventy-third Amendment) Act, 1992 "The Uttar Pradesh Panchayat Laws (Amendment) Act, 1994" [U.P. Act No. 9 of 1994] was enacted providing for amendments to the United Provinces Panchayat Raj Act, 1947 and the Uttar Pradesh Kshettra Samities and Zila Parishads Adhiniyam, 1961. Amongst the various amendments, the long title of the Act, 1961 was amended to read as "Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961".
15. In order to provide for reservation of seats for scheduled castes, scheduled tribes, women and backward classes of citizens, as envisaged under Article 243D, Section 6-A and Section 18-A were inserted by the U.P. Act No. 9 of 1994 to provide for reservation of seats at the level of Kshettra Panchayat and Zila Panchayat, respectively. For ease of reference, Section 6-A and Section 18-A of the Adhiniyam, 1961 are reproduced below :-
"6-A. Reservation of seats- (1) In every Kshettra Panchayat seats shall be reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes and the number of seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats to be filed by direct election in the Kshettra Panchayat as the population of the Scheduled Castes in the Khand or of the Scheduled Tribes in the Khand or of the Backward Classes in the Khand bears to the total population of such Khand and such seats may be allotted by rotation to different territorial constituencies in a Kshettra Panchayat in such order as may be prescribed.
Provided that the reservation for the Backward Classes shall not exceed twenty seven per cent of the total number of seats in the Kshettra Panchayat.
Provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.
(2) Not less than one-third of the seats reserved under sub-section (1) shall be reserved for the women belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes, as the case may be.
(3) Not less than one-third of the total number of seats, including the number of seats reserved under sub-section (2) shall be reserved for women and such seats may be allotted by rotation to different territorial constituencies in a Kshettra Panchayat in such order as may be prescribed.
(4) The reservation of seats for the Scheduled Castes and the Scheduled Tribes shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation - It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes and the women from contesting election to unreserved seats.
18-A. Reservation of seats- (1) In every Zila Panchayat, seats shall reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes and the number of seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats to be filled by direct election in the Zila Panchayat as the population of the Scheduled Castes in the Panchayat area or of the Schedules Tribes in the Panchayat area or of the Backward Classes in the Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different territorial constituencies in a Zila Panchayat in such order as may be prescribed.
Provided that the reservation for the Backward Classes shall not exceed twenty seven per cent of the total number of seats in the Zila Panchayat.
Provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.
(2) Not less than one third of the seats reserved under sub-section (1) shall be reserved for the women belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes as the case may be.
(3) Not less than one third of the total number of seats, including the number of seats reserved under sub-section (2), shall be reserved for women and such seats may be allotted by rotation to different territorial constituencies in a Zila Panchayat in such order as may be prescribed.
(4) The reservation of seats for the Scheduled Castes and the Scheduled Tribes shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation - It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, the Scheduled Tribes, the Backward Classes, and the women from contesting election to unreserved seats."
16. Clause (4) of Article 243D contemplates reservation of the offices of the Chairpersons in the Panchayats at the village or any other level for scheduled castes, scheduled tribes and women in such manner as the Legislature of a State may, by law, provide.
17. In terms of Section 7 of the Adhiniyam, 1961 in every Kshettra Panchayat a Pramukh shall be elected by the elected members of the Kshettra Panchayat from amongst themselves and Section 7-A provides that the offices of the Pramukhs of the Kshettra Panchayats shall be reserved for the persons belonging to the scheduled castes, the scheduled tribes and the backward classes. In terms of sub-section (2) thereof not less than one-third of the offices reserved under sub-section (1) shall be reserved for the women belonging to the scheduled castes, the scheduled tribes and the backward classes, as the case may be.
18. Section 7-A of the Adhiniyam, 1961 reads as follows :-
"7-A. Reservation of the offices of Pramukhs- (1) The offices of the Pramukhs of Kshettra Panchayats in the State shall be reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes:
Provided that the number of office of the Pramukhs so reserved shall bear, as nearly as may be, the same proportion to the total number of such offices in the State as the population of the Scheduled Castes in the State or of Scheduled Tribes in the State or of the Backward Classes in the State bears to the total population of the State and the offices so reserved may be allotted by rotation to different Kshettra Panchayats in the State in such order as may be prescribed.
Provided further that the reservation for the Backward Classes shall not exceed twenty-seven per cent of total number of offices of Pramukhs in the State.
Provided also that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.
(2) Not less than one-third of the offices reserved under sub-section (1) shall be reserved for the women belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes, as the case may be.
(3) Not less than one-third of the total number of offices of Pramukhs, including the number of offices reserved under sub-section (2), shall be reserved for women and such offices may be allotted by rotation to different Kshettra Panchayats in the State in such order as may be prescribed.
(4) The reservation of the offices of Pramukhs for the Scheduled Castes and the Scheduled Tribes under this section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation- It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes, and the women from contesting election to unreserved offices."
19. The Chairperson of a Zila Panchayat namely "Adhyaksha" is to be elected by the elected members of the Zila Panchayat from amongst themselves as per Section 19 of the Adhiniyam, 1961. The reservation of the offices of Adhyaksha is to be made for the persons belonging to the scheduled castes, scheduled tribes and the backward Classes as provided under sub-section (1) of Section 19-A, and in terms of sub-section (2) thereof not less than one-third of the offices reserved under sub-section (1) shall be reserved for the women belonging to the scheduled castes, the scheduled tribes and the backward classes, as the case may be. For ready reference, Section 19-A is being extracted below :-
"19-A Reservation of the offices of Adhyaksha - (1) The offices of the Adhyakshas of the Zila Panchayats in the State shall be reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes:
Provided that the number of offices of the Adhyakshas so reserved shall bear, as nearly as may be the same proportion to the total number of such offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or of the Backward Classes in the State bears to the total population of the State and the offices so reserved shall be allotted by rotation to different Zila Panchayats in the State in such order as may be prescribed.
Provided further that the reservation for the Backward Classes shall not exceed twenty seven per cent of the total number of offices of Adhyakshas in the State.
Provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.
(2) Not less than one-third of the offices reserved under sub-section (1) shall be reserved for the women belonging to the Scheduled Castes, the Scheduled Tribes, or the Backward Classes as the case may be.
(3) Not less than one third of the total number of offices of Adhyakshas, including the number of offices reserved under sub-section (2), shall be reserved for women and such offices may be allotted by rotation to different Zila Panchayats in the State in such order as may be prescribed.
(4) The reservation of the offices of Adhyaksha for the Scheduled Castes and the Scheduled Tribes under this section shall cease to have effect on the expiration of the period specified in Article 224 of the Constitution.
Explanation- It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, the Scheduled Tribes, the Backward Classes and the women from contesting election to unreserved offices."
20. From the aforementioned statutory provisions, it is seen that reservation of seats and offices at the intermediate level and the district level under the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, is provided for under Sections 6-A, 7-A, 18-A and 19-A, as envisaged under Article 243D of the Constitution.
21. The reservation of seats and also offices of the Chairpersons, provided for under Article 243D, is for the scheduled castes, the scheduled tribes and women. In terms of clause (6) of Article 243D the Legislature of a State is enabled to make provision for reservation of seats in any Panchayat or offices of the Chairpersons in the Panchayats at any level in favour of backward class of citizens.
22. The statutory provisions as contained in the Adhiniyam, 1961, as also the provisions under Article 243D do not contemplate the reservation of seats or the offices for dependents of freedom fighters.
23. The constitutional basis of reservation in the Panchayat institutions at each of its three levels, is as per the provisions under Article 243D. The reservation provided for under Article 243D has an independent and distinct constitutional basis which cannot be compared to the affirmative action measures in terms of the enabling provisions contained under Articles 15 (4) and 16 (4) of the Constitution. The reservation of seats under Articles 15 (4) and 16 (4) of the Constitution are for distributing benefits of higher education and public employment among beneficiaries with a view that access to higher education and public employment would increase likelihood of a gradual socio-economic empowerment of the beneficiaries whereas the object of providing reservation in the Panchayats is to provide for involvement in local-self government which is intended as an immediate measure for empowerment of individuals as well as the community to which the individuals belong to enable their participation in the development process at the grass root level.
24. In order to appreciate the rationale and object for providing for reservation in panchayat institutions, we may refer to the statement of objects and reasons appended to the Constitution (Seventy Second Amendment) Bill, 1991, which was enacted as the Constitution (Seventy-Third Amendment) Act, 1992. The statement of objects and reasons reads as follows :-
"(1) Though the Panchayati Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supercessions, insufficient representation of weaker sections like Schedule Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.
(2) Article 40 of the Constitution which enshrines one of the directive Principles of State Policy lays down that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the experience in the last forty years and in view of the short-comings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayat Raj Institutions to impart certainty, continuity and strength to them.
(3) Accordingly, it is proposed to add a new Part relating to panchayats in the Constitution to provide for among other things, Gram Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairpersons of panchayats at such levels; reservations of seats for the Scheduled Castes and Schedule Tribes in proportion to their population for membership of panchayats and office of Chairpersons in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of 5 years for panchayats and holding elections within a period of 6 months in the event of supercession of any panchayat; disqualifications for membership of panchayats; devolution by the State Legislature of powers and responsibilities upon the panchayats with respect to the preparation of plans for economic developments and social justice and for the implementation of development schemes; sound finance of the panchayats by securing authorization from State Legislature for grants-in-aid to the panchayats from the Consolidated Fund of the State, as also assignments to, or appropriation by, the panchayats of the revenues of designated taxes, duties, tolls and fees; setting up of a Finance Commission within one year of the proposed amendment and thereafter every 5 years to review the financial position of panchayats; auditing of accounts of the panchayats; powers of State Legislatures to make provisions with respect to elections to panchayats under the superintendence, direction and control of the Chief Electoral Officer of the State; application of the provisions of the said Part to Union territories; excluding certain State and areas from the application of the provisions of the said Part; continuance of existing laws and panchayats until one year from the commencement of the proposed amendment and barring interference by courts in electoral matters relating to panchayats;
(4) The Bill seeks to achieve the aforesaid objectives."
25. The aforementioned statement of objects and reasons clearly takes note of the fact situation that though the Panchayat Raj Institutions have been in existence for a long time, they have not been able to acquire the status and dignity of viable and responsive peoples' bodies due to a number of reasons including insufficient representation of weaker sections like scheduled castes, scheduled tribes and women. It was accordingly proposed to provide reservations of seats for scheduled castes and scheduled tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level and reservation of not less than one-third of the seats for women.
26. The intended beneficiaries to whom reservation is to be provided i.e. scheduled castes, scheduled tribes and other backward class of citizens - are clearly identified under Article 243D which is in consonance with the statement of objects and reasons of the Seventy-third Amendment Act, for furtherance of the contemplated aim of democratic decentralization and in order to pursue the objective of ensuring that the traditionally marginalized groups should progressively gain a foothold in the institutions of local self government. The idea of providing reservation under Article 243D is to ensure that a minimum number of seats are provided for and are filled in by the vulnerable sections of the society so as to safeguard their interests by giving them an effective voice in local self government at each of the three levels of the panchayat institutions. This is more so for the reasons that for democratic decentralization to percolate to the grass root level, it would be necessary to empower the vulnerable sections of the society.
27. Claim of the petitioner with regard to providing reservation for dependents of freedom fighters in panchayat institutions is to be tested in the context of the overall scheme as envisaged under Part IX of the Constitution and the corresponding state legislation brought to implement it. The aim and object of the reservation policy contained in Part IX is to enable the marginalized sections of society namely the scheduled castes, scheduled tribes, women and backward classes of citizens, to participate in the process of democratic decentralization by having a share in governance which was hitherto denied to them. No such rationale or nexus to support the claim for providing reservation to dependents of freedom fighters in Panchayat institutions has been pointed out before us.
28. The reservation of seats and offices in the panchayat institutions being governed in terms of the provisions under Article 243D under Part IX of the Constitution and there being no provision thereunder for providing reservation to dependents of freedom fighters, the claim sought to be raised in the present writ petition does not have any legal foundation.
29. Having regard to the aforementioned facts, we are of the view that the writ petition is devoid of merits and is accordingly dismissed.
Order Date :- 27.01.2021 Pratima (Dr.Y.K.Srivastava,J.) (Surya Prakash Kesarwani,J.)