Karnataka High Court
Sidharam And Anr. vs State Of Karnataka, By Its Secretary And ... on 10 August, 2004
Equivalent citations: ILR2004KAR4102, 2004(6)KARLJ38, 2004 AIR - KANT. H. C. R. 2882, 2004 AIHC 4137 (2004) 6 KANT LJ 38, (2004) 6 KANT LJ 38
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER Shylendra Kumar, J.
1. The Petitioners are Members of Bilagi Town Panchayat. The Petitioners are aggrieved by the Notification dated. 12-7-2004 vide No.UDD 51 MLR 2004 (P-3) in so far as it relates to the provision for the Posts of President and Vice President in Bilagi Town Panchayat in the ensuing elections scheduled for the year 2004. In the impugned Notification, the provision so far as Bilagi Town Panchayat is concerned at Sl. No.12, the post of President is earmarked for a woman candidate from general category and post of Vice President is not reserved in favour of any category, in the sense it is open to the General Category/ all persons.
2. The grievance of the petitioners is in the context of similar provisions that had been made for these two posts in the earlier three elections in this Panchayat. The pattern of reservation during the four elections including the present election as notified under the Notification dated 12-7-2004 is as under.
RESERVATION TO THE POST OF PRESIDENT AND VICE PRESIDENT IN BILAGI TOWN PANCHAYAT SINCE 1996 _________________________________________________________________________________ Year Post Category Post Category _________________________________________________________________________________ 1996 President Gen.(W) Vice. Pres. B.C.(A) 1998 President S.C.(W) Vice. Pres. B.C.(A) 2001 President General Vice. Pres. S.C.(W) 2004 President Gen.(W) Vice. Pres. Gen. ________________________________________________________________________________
3. The grievance mainly is that while issuing the Notification, the requirement of Rule 13-A of the Karnataka Municipalities (President and Vice-President) Election (Amendment Rules) 2001 has not been followed; that in fact there is violation of the rule and further that post of President being earmarked for women candidates in general category virtually amounts to providing excess reservation in favour of women in general category over and above what has been provided for under Section 42(2)(2-A) of the Karnataka Town Municipalities Act. It is on such grounds the notification in so far as it relates to Bilagi Town Panchayat is attacked as also any election that is to be held in pursuance of this Notification.
4. This Court on a prima facie examination of the petition averments and after hearing learned Counsel for the petitioner had issued rule on 27-7-2004 and at the same time granted stay of the operation of the Notification in so far as it relates to Bilagi Town Panchayat is concerned.
5. The respondent being put on notice, the respondent No.3-Town Panchayat has entered appearance through Counsel and have also filed an application for vacating stay. It is inter alia contended that the petition is without merit; that providing the post of President to a woman candidate in general category does not in any way violate either the rule or provisions of the Act; that in fact it is in consonance with the rule in as much as under Rule 13-A, the post cannot be earmarked for the same category in successive elections and; that while in the previous election namely the elections that were held in the year 2001, the post of President had been provided for general category post and Vice-President had been provided for woman candidate in scheduled caste category; that it is not so repeated now and as such the present Notification is in compliance with the requirement of the rules.
6. Mr. Hosmath, learned Counsel for the respondents-applicant submits that the Notification cannot be said to be in contravention of Section 42(2) (2-A)of the Act also in as much as the extent of reservation as provided under this section has been given effect to and as such the Notification cannot be found fault with.
7. Though the matter had been listed for orders on application for vacating the interim order, with consent of learned counsel appearing for the parties, the matter is taken up for disposal.
8. Mr. Jayakumar S. Patil, learned Senior Counsel appearing for the petitioners contends that the Notification is not only in violation of the Rule but is one which is in violation of the rights of persons like the petitioners particularly as the Notification seeks to provide reservation in favour of women candidates from general category over and above what is contemplated under Section 42(2)(2-A)of the Act.
9. Learned Counsel submits that reservation over above what is provided for under the statutory provisions namely Section 42(2)(2-A) which is a provision made for giving effect to the constitutional mandate as contained in Article 243T of the Constitution of India and amounts to a denial of equal opportunity to the Members in general even without a corresponding statutory or constitutional protection and as such is in violation of the provisions of Article- 14 of the Constitution. Learned Senior Counsel submits that the denial of such equal opportunity which in essence is discriminatory and is not saved until and unless it is protected by any law enacted either under the provisions of Article-15(3) and 15(4) or under Article 243-T(4) of the Constitution of India.
10. Learned Senior Counsel submits that in the instant case so far as reservation in favour of women is concerned, it is at one-third in each of the category which in essence amounts to the post being earmarked to a woman candidate in the Town Panchayat once in three elections or three opportunities given to the particular category. It is in this context the Notification is attacked pointing out the pattern of reservation during the four elections beginning from the year 1996.
11. In the year 1996, the post of President had been earmarked for a woman candidate in general category; in the year 1998, it was reserved for a woman candidate-SC Category; in the year 2001, it had not been reserved in any category in a sense it was general; and now it is reserved in favour of a woman candidate in general category. Learned Counsel points out that while the post has been made available to the general category on three occasions in the last four elections including the present one, women have been given reservation for the second time in the possible three occasions which according to the learned Counsel is much in excess of the one-third provided for in the Constitution and in the corresponding statute as per Section 242(2A) of the Act. If the reservation has to be worked out in consonance with the provisions of Section 42(2)(2A) in favour of the women candidate, it can only be once for every three elections and providing twice in three elections amounts to excess reservation to this category.
12. Though learned Senior Counsel for the petitioner has also sought to demonstrate that the present Notification militates against the provisions of Rule 13-A also, it is not necessary to examine this aspect in as much as on an examination of the provisions of Article 243T read with Section 42(2)(2A) of the Act, it is obvious that what is now provided for as per the impugned Notification in so far as post of President in Bilagi Town Panchayat is concerned, it is obviously in excess of what is provided under the Act itself. When the petitioners attack the legality of the Notification on the ground of the same being in violation of the equality principles under Article-14 in as much as they are being denied an equal opportunity to compete with others particularly persons like the petitioners being kept out of the contest by providing reservation in favour of women candidates in general category, it can be sustained only if the Notification also has the statutory backing, which statute also answers the constitutional requirement. If the Notification so provides as to exceed the protection given by the statute namely Section 42(2)(2A) and even goes beyond what is enabled under the Article 243T of the Constitution of India, it cannot be saved as it is caught in the web of discrimination and being in violation of Article 14 of the Constitution of India.
13. Mr. Narayan, learned Government Pleader appearing for the respondents No. 1 and 2 fairly submitted that a Notification of the present nature in so far as earmarking of a post is concerned if it is not supported in law either by statutory provision or the constitutional provisions the same cannot be sustained.
14. Though Sri Hosmath, learned Counsel appearing for the Panchayat submitted that the elections having already been notified by the issue of calendar of events and there is no occasion for this Court to interfere at this stage and the election should be allowed to be continued as per the scheduled calendar and therefore stay should be vacated and if at all an illegality is ultimately found in the Notification, it can be set right for the next election. I am unable to accept this submission. If this Court finds a violation by any administrative act or executive action which militates against the constitutional guarantees, it is the duty of this Court to prevent the same by issue of an appropriate writ and at any rate the situation cannot be allowed to be perpetuated.
15. However, the challenge to the provision in so far as post of Vice President in this Town Panchayat is concerned, it does not suffer from similar infirmity. The grievance of petitioners in so far as the post of Vice-President is concerned is that the petitioners who belong to backward class-'B' Category have not been given an opportunity so tar by reserving the post in favour of a candidate belonging to Backward Class - B category as the post had been earlier provided for Backward Class-A Category in both 1996 and 1998 elections. The 2001 Elections which was for Scheduled Caste candidate and as of now in the year 2004 it is to a General Candidate. It is no doubt true that a person belonging to a Backward Class - B Category has not been provided any reservation so far. But, reservation in favour of persons belonging to Backward Class - B Category is at one-fifth of the reservation provided to Backward Classes which in itself is at one-third of the total available Town Panchayats. That means if the reservation in favour of Backward Classes is worked on five occasions, on one occasion it must have been given to Backward Class-B Category and the reservation in favour of Backward Class has been worked twice in the last four elections to the Post of Vice President and there is still occasion to provide for reservation in favour of the Backward Class-B Category to which the petitioners belong. At any rate, the Notification is not in contravention or in violation of the provision of reservation under Section 42(2)(2A). Therefore the argument in so far as the provision to the post of Vice President in this Town Panchayat fails and has to be rejected.
16. In the circumstances, the petitioners succeed but to the limited extent of their challenge to providing the Post of President to a woman candidate in General category during the year 2004 elections as per Notification dated 12-7-2004. The Notification in so far as it provides for this is quashed by issue of a writ of certiorari. The respondent No. 1 is at liberty to issue a fresh Notification to ensure that it is not only in consonance with the requirement of Section 42(2)(2-A) of the Act, but also by ensuring that it does not militate against equal opportunities to all others guaranteed under Article 14 of the Constitution of India itself and proceed further in the matter.
17. Rule issued and made absolute.