Jharkhand High Court
Piyush Kumar Jaiswal vs The State Of Jharkhand Through The ... on 14 March, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 358 of 2018
Piyush Kumar Jaiswal, age 30 years, son of Sri Krishna Kumar, resident
of Village-Checharia, P.O. & P.S.-Nagar Untari, District-Garhwa
... ... Petitioner
Versus
1. The State of Jharkhand through the Principal Secretary, Urban
Development Department, Ranchi
2. The State Election Commission through the Principal Secretary,
Ranchi
3. The Secretary, State Election Commission, Ranchi
4. The Deputy Commissioner, Garhwa
5. The Block Development Officer, Nagar Untari Block, Garhwa
... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rajeev Kumar, Advocate For the Respondent Nos. 2 & 3: Mr. Sumeet Gadodia, Advocate Mr. Ashwini Bhushan, Advocate Mr. Ritesh Gupta, Advocate Ms. Moushmi Chatterjee, Advocate Mr. Vivek Raj, Advocate
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Order No. 04 Dated: 14.03.2018 The present writ petition has been filed for a declaration that the Gazette Notification dated 03.01.2018 issued by the respondent no. 2 declaring Nagar Untari, Nagar Panchayat (01), District-Garhwa as reserved category seat for "Scheduled Caste"
instead of the "Backward Caste" without complying with the provisions of Rule 6 r/w Rule 5 of the Jharkhand Municipal Election and Election Petition Rule-2012 (hereinafter to be referred as "the Rule, 2012") is erroneous as the same has been issued without resorting to Rule 4 (1) of the Jharkhand Municipality (Determination & Publication of Backward Classes) Rules, 2015 and without taking the population ratio into consideration. A further prayer has been made for issuance of direction upon the respondent no. 4 to forward the caste-wise data based upon the census to the respondent no. 3 who may, in turn, be consequently directed to forward the same to the respondent no. 2 and republish the notification under sub-rule (2) of Rule 9 of the Rule, 2012 so far as the Nagar Untari Nagar Panchayat, District-Garhwa is concerned, before resorting to the process for election.2
2. The factual background of the case as stated in the writ petition is that in exercise of the powers conferred under Sections 4, 5, 6 and 8 of the Jharkhand Municipal Act, 2011 (hereinafter to be referred as "the Act, 2011") r/w sub-section 2(c) of Section 3 of the Act, 2011, vide notification dated 17.04.2015 issued by the respondent No. 1, village Nagar Untari of District- Garhwa and 14 adjoining revenue villages were declared as Nagar Panchayat. However, vide subsequent notification dated 18.08.2015, the respondent no. 1 in exercise of the powers conferred under sub-section 2(c) of Section 3 r/w Sections 4, 5, 6 and Sub-Section 3 of Section 8 of the Act, 2011, declared Nagar Untari Nagar Panchayat to have 17 wards on the basis of census of 2011. About same time, certain areas were carved out with 10 revenue villages of Chhatarpur Sub-Division of Palamau District vide notification dated 11.01.2016 issued by respondent no. 1 in exercise of the above mentioned powers and declared as Nagar Panchayat. The respondent no. 3 has issued a notification dated 03.01.2018, whereby a decision has been taken to declare Nagar Untari Nagar Panchayat as Reserved Constituency for Scheduled Caste candidates.
3. The learned counsel for the petitioner submits that under Right to Information Act, 2005, the petitioner has been informed that in Nagar Untari Nagar Panchayat, out of total population of 32725, the population of Backward Class is 18076, whereas the population of Scheduled Class is 6313, Scheduled Tribe is 2614 and General is 5722. However, vide impugned notification dated 03.01.2018, the post of the Chairperson in the said Panchayat has been reserved for the Scheduled Caste (woman) which is in complete violation of Rule 6 of the Rule, 2012. It is further submitted that the impugned Notification under Rule 9(2) has been issued by the respondent No. 2 without taking into consideration that it would be the first election of Nagar Untari Nagar Panchayat, therefore, the reservation, if any, should have given to the largest chunk of population and in case of any deviation, to the second largest caste and onwards in terms of Rule 6 of the Rule 2012. As per census of 2011, the population of Scheduled Caste in Nagar Untari including 14 revenue villages is 19.29%, whereas in 3 Chhatarpur Nagar Panchayat, the percentage of Scheduled Caste is 22.7%. However, Nagar Untari was declared as reserved for Scheduled Caste (woman). It is also submitted that the petitioner filed representation before the respondent nos. 2 and 3 on 15.01.2018 highlighting the said infirmity in the impugned notification, but of not effect which gives rise to filing of the present writ petition.
4. Per contra, the learned counsel for the respondent nos. 2 and 3 submits that the provision for reservation of the post of Chairperson of Nagar Panchayat is to be ascertained by taking into consideration the population of that category in the state and not the population in a particular Nagar Panchayat. It is further submitted that Act, 2011 provides for allocation of reserved seats by rotation under the direction, supervision and control of the State Election Commission subject to the rules framed in that regard. The Government of Jharkhand has promulgated the Rule, 2012 and by adopting the methodology prescribed in Rules, 2012, the seats are reserved in respect of SC, ST and BC and the same are entered in Form-2, Part-One by the State Election Commission. Accordingly, out of 15 seats of Chairperson, 7 seats were reserved and 8 seats were unreserved. The distribution of seats are; Scheduled Caste 2, Scheduled Tribe 4, Backward Classes 1 and General (unreserved) 8. It is further submitted that out of 15 Nagar Panchayats, the elections in two seats i.e., Majhiaon Nagar Panchayat and Koderma Nagar Panchayat were already held in the year, 2015 and the present elections are to be held for rest 13 Nagar Panchayats. As per rule 6(1)(kha) of the Rule 2012, the Nagar Panchayats are to be arranged in sequence and have to be entered in Form-2, Part-Two and thereafter, for the purpose of applying the method of reservation by way of rotation as per rule 6(1)(ga), the Nagar Panchayats are to be arranged taking into consideration the highest population of each category existing in the said Nagar Panchayats. It is further submitted that the present election has been treated as the second election in the State and as the reservation roster was prepared in the year 2015 itself where elections were held only in respect to 2 Nagar Panchayats, the same reservation roster is being followed in the year 2018 for the 4 purpose of remaining 13 Nagar Panchayats. Accordingly, applying the said reservation roster, the population of Nagar Panchayat in descending order i.e., from highest to lowest, has been arranged for each category in Form-2, Part-Three. After arranging the population of each category in descending order, the reservation roster in each Nagar Panchayat has been applied by the Commission. It is further submitted that Khunti Nagar Panchayat is having the highest population of Scheduled Tribes and applying the reservation roster, the post of Chairperson of Khunti Nagar Panchayat was reserved for S.T. category. Thereafter, the second point of roster has been applied for making reservation for the post of Chairman in favour of the Backward Classes and while applying the said roster, it has been found that Palamau/04-Chattarpur Nagar Panchayat is having highest population of Backward Classes and as such the seat of Chairperson of Palamau/04-Chattarpur Nagar Panchayat has been reserved for Backward Classes. Since only one post is to be reserved in favour of Backward Classes, the seat of Chairperson of Nagar Untari Panchayat could not have been reserved for Backward Classes. Thus, the principle of reservation as well as the methodology of reservation roster/rotation as enumerated under the Rule, 2012 and the examples cited therein has strictly been followed while issuing the impugned notification. Hence, no interference is needed by this Court.
5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has sought declaration that the notification bearing no. 175/2012 dated 03.01.2018 to the extent that the post of Chairperson of (01) Nagar Untari Nagar Panchayat has been reserved for Scheduled Caste category is erroneous. The thrust of argument of the learned counsel for the petitioner is that in Nagar Untari Nagar Panchayat, the population of Backward Classes is highest as compared to the population of other categories in the said Nagar Panchayat and under the said circumstances, the reservation granted for the post of Chairperson of (01) Nagar Untari Nagar Panchayat in favour of Scheduled Caste is not as per the mandate of Article 243(T) of the Constitution of India r/w Section 27 of the Jharkhand Municipal Act, 2011 and also violates the 5 provisions of Rule 6 r/w Rule 5 of the Rule, 2012. On the contrary, the State Election Commission has contended that while publishing the impugned notification, the principle of reservation roster as enumerated under the Rules, 2012 and the examples cited therein have been strictly followed.
6. Before entering into the merit of the case, it would be appropriate to go through the relevant provisions dealing with the principle of reservation in municipal election.
7. The State of Jharkhand enacted the Jharkhand Municipal Act, 2011, wherein Section 27 provides for reservation of the office of the Mayor/Chairperson, which reads as under:-
27. Reservation of office of Mayor and Chairperson (1) The office of the Mayor and Chairperson in municipalities shall be reserved in the following manner.
(2)(a) As nearly as but not exceeding fifty percent of the total offices of Mayor and Chairperson as the case may be in the State shall be reserved for-
(i) Scheduled Castes,
(ii) Scheduled Tribes,
(iii) Backward Classes, and
(iv) Women;
(b) The number of offices so reserved for Scheduled Castes and Scheduled Tribes for the offices of Mayor and Chairperson within the State as the case may be shall bear as nearly as possible the same proportion of the total number of offices of Mayor and Chairperson within the State as the case may be as the population of the Scheduled Castes and Scheduled Tribes bears to the total population of the State; and such offices shall be allotted by rotation to different municipalities by the State Election Commission in the manner prescribed by it;
(c) After reservation of offices for the Scheduled Castes and the Scheduled Tribes, the number of offices to be reserved for the Backward Classes for the office of Mayor and Chairperson within the state as the case may be shall be such number within the overall limit of fifty percent reservation for the Scheduled Castes, the Scheduled Tribes and the Backward Classes in the manner prescribed; and such offices shall be allotted to the remaining municipalities by rotation by the State Election Commission in the manner prescribed by it;
(d) As nearly as possible but not exceeding fifty percent 6 of the total number of offices reserved under clause (a) shall be reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and Backward Classes, as the case may be;
(e) As nearly as possible but not exceeding fifty percent of the total number of the offices not reserved for Scheduled Castes, Scheduled Tribes and Backward Classes shall be reserved for women;
(f) Such total number of offices reserved for women belonging to the Scheduled Castes, the Scheduled Tribes, Backward Classes, and unreserved category may be allotted by rotation under the direction, control and supervision of the State Election Commission to different municipalities in such manner as may be prescribed by it.
Explanation: For the removal of doubts, it is hereby declared that the principle of rotation for the purposes of reservation of offices for the Scheduled Castes and Scheduled Tribes and Backward Classes and women under this sub-section shall commence from the first election held after the commencement of this Act. (3) The State Government shall undertake a review every ten years in the matter relating to reservation of offices under clause (a) of sub-section (2).
(4) The reservation of offices under clause (a) of sub- section (2) shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution of India.
8. The Government of Jharkhand framed Rules, 2012, wherein sub-rule (1)(Ka) of Rule 6 provides the procedure as to how the seats are to be reserved in respect of each Municipality/Nagar Panchayat. It has been provided that at the first instance, the total number of seats to be reserved in favour of SC and ST are to be determined taking into consideration of the total population of the State vis-à-vis the population of each reserved category. For determining the seats to be reserved in favour of SC and ST categories, total population of the State of each category is taken into consideration and is multiplied by total number of seats and divided by total population of the State. Thereafter, subject to the limit of 50% of overall reservation, the seats are reserved for backward class. It further provides that horizontal reservation is also to be given to woman candidate subject to the limit of 50%. At present, the State of Jharkhand has altogether 15 Nagar Panchayats and the reservation has to be applied in respect of all the Nagar Panchayats, subject to maximum of 50% in favour of SC, ST and BC. By applying the said 7 procedure, out of 15 seats of Chairperson, 7 seats were reserved and 8 seats were unreserved with the ratio:-ST-4, SC-2, BC-1 and General- 8. It has further been provided in Rule, 2012 that the population of each category is to be arranged separately in descending order to be entered in Form-2, Part-Three and thereafter, the reservation would be given to a particular category having highest population on rotation basis.
9. It appears from the record that the first General Election for Nagar Panchayats was held in the year, 2013 and by applying the provisions of Rule 6 of Rules, 2012, the reservation roster was applied point-wise i.e., (i) Scheduled Castes, (ii) Scheduled Tribes (iii) Backward Classes (iv) General in the said election. The reservation roster for the second municipal election was prepared in the year, 2015 itself when the election for two Nagar Panchayats i.e., Manjhiaon Nagar Panchayat and Koderma Nagar Panchayat was due. As per Rule 6 of Rules, 2012, the reservation roster for second general election was as; (i) Scheduled Tribes, (ii) Backward Classes (iii) General, (iv) Scheduled Castes. By following the said the reservation roster, the first set of the second municipal election was already conducted in the year, 2015. The election of remaining 13 Nagar Panchayat (i.e., the second set) fell due in the year, 2018 for which the same reservation roster is being followed. Annexure-C to the counter-affidavit filed on behalf of respondent nos. 2 and 3 is the Chart prepared in Part-III, wherein the population of each category has been arranged in descending order. As per the reservation roster for second municipal election, considering the maximum population in the order of Scheduled Tribe, Backward Class, General, Scheduled Caste, the reservation roster has been applied in "Khunti" Nagar Panchayat, "Chhatarpur" Nagar Panchayat, "Barharwa" Nagar Panchayat and "Hussainabad" Nagar Panchayat respectively. In the second round of reservation roster, "Chakulia" Nagar Panchayat has been declared as reserved for Scheduled Tribe, no post has been reserved for Backward Class, "Jamtara" Nagar Panchayat has been reserved for General and "Nagar Untari" Nagar Panchayat has been reserved for scheduled Caste since Chhatarpur Nagar Panchayat having the second highest population of scheduled 8 Caste was already reserved for Backward Classes. Thus, I do not find any infirmity in the decision of the State Election Commission in declaring "Nagar Untari" Nagar Panchayat reserved for Scheduled Caste. There is no such provision in the Act, 2011 or in the Rules, 2012 to the effect that the reservation would be given to any category merely by taking into consideration the maximum population of that category in any Nagar Panchayat. On the contrary, a fixed procedure/methodology has been provided to reserve any constituency for the purpose of municipal elections.
10. The next contention of the learned counsel for the petitioner is that Nagar Untari Nagar Panchayat is a newly constituted one and as such, the reservation roster meant for the first election should have been applied by the respondents and by applying the reservation roster meant for second election, the respondent-State Election Commission has committed a serious error, thereby depriving the candidates of backward classes from contesting the election for the post of Chairperson of Nagar Untari Nagar Panchayat. I find no force in the said submission of the learned counsel for the petitioner. A Nagar Panchayat by itself is transitional in nature as the State Government, considering the development of the existing Village Panchayat, is empowered to constitute a Nagar Panchayat which is a continuous process. Thus, the reservation roster is to be applied uniformly irrespective of new constitution of a particular Nagar Panchayat. The reservation roster as well as the rotation cannot be applied for a particular Nagar Panchayat so far as the post of Chairperson of the same is concerned. The reservation roster has been fixed keeping in view the general election of the Nagar Panchayats and not by treating a particular Nagar Panchayat in isolation. Thus, in my considered view, the reservation roster and rotation for Nagar Panchayats should not be individually applied, rather the same should be applied in general so as to maintain uniformity in terms with the mandate of the Act, 2011 and the Rules, 2012 enumerated for conducting the election of the Nagar Panchayats failing which the purpose of reservation rotation would itself get inconsistent and unworkable. Moreover, it is well settled that if the election is imminent 9 or well under way, the Court should not intervene to impede the election process as no election will ever take place because someone or the other will always find some reason to move the Writ Court with a view to stall the election process.
11. Considering the aforesaid facts and circumstances, I find no substance in the instant writ petition and the same is accordingly dismissed.
I.A. No. 2263 of 2018 also stands disposed of.
(Rajesh Shankar, J.) Manish/A.F.R.