Jharkhand High Court
Binod Kumar Lal vs The State Of Jharkhand Through The Chief ... on 9 April, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 296 of 2018
Binod Kumar Lal, son of Late Madhusudan Lal, resident of
Khuntabandh, near S.P. Residence, Dumka, P.O. & P.S.-Dumka,
District-Dumka ... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Ranchi
2. The Commissioner, Jharkhand State Election Commission, Ranchi
3. The Secretary, Jharkhand State Election Commission, Ranchi
... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Ajay Kumar Sah, Advocate Mr. Suraj Singh, Advocate For the Respondent-State : Mr. J.F. Toppo, SC (L & C) For the Election Commission : Mr. Sumeet Gadodia, Advocate Mrs. Shilpi John, Advocate Mr. Ashwini Bhushan, Advocate
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Order No. 06 Dated: 09.04.2018 The present writ petition has been filed for quashing the part of the notification no. 175/2012, Ranchi dated 03.01.2018 so far as it relates to Sl. No. 9, Dumka Municipal Council, whereby Form '3' which relates to reservation roster of the Municipal Councils in State of Jharkhand, has been notified by the State Election Commission in exercise of power conferred under Rule 9 of the Jharkhand Municipal Election and Election Petition Rules, 2012 (hereinafter referred to as "the Rules, 2012"). By way of filing an I.A No. 2288 of 2018, the petitioner has also sought to challenge the notification no. 1221 dated 07.03.2018 by which a recommendation has been made under Section 539 of the Jharkhand Municipal Act, 2011 (hereinafter referred to as "the Act, 2011") for conducting municipal election on 16.04.2018 in all Municipal Corporations, Municipal Councils and Nagar Panchayats within the State of Jharkhand.
2. The factual background of the case as stated in the writ petition is that for conducting the Jharkhand State Municipal Election, 2018, the Secretary, State Election Commission in exercise of power conferred under Rule 9(2) of the Rule, 2012 issued notification in the 2 prescribed Form 3 of the Rule, 2012 vide notification no. 175/2012 dated 03.01.2018 by which reservation roster of all the nineteen (19) Municipal Councils has been notified and Dumka Municipal Council has been reserved for women candidates.
3. The learned counsel for the petitioner submits that in 2008 municipal election, the seat of Chairperson of Dumka Municipal Council was reserved for women candidates. Again in the year 2013 municipal election, the seat of Chairperson for Dumka Municipal Council was reserved for women candidates and now for the third term i.e., in 2018 Municipal Election, without considering the provisions of the Constitution of India and Jharkhand Municipal Act, 2011, the seat of Chairperson for Dumka Municipal Council has again been reserved for women candidates. It is further submitted that the respondents have acted in violation of the mandatory provisions under Article 243-T of the Constitution of India and Section 16 read with Section 27 of the Act, 2011 as well as Rules 5 and 6 of Rules, 2012. It is also submitted that Article 243-T of the Constitution of India and also Section 16 r/w Section 27 of the Act, 2011 mandate that the seats for election of Chairperson shall be reserved in rotation. The petitioner made representation to the Secretary, Jharkhand State Election Commission (respondent no. 3) on 04.01.2018, but no action has been taken. The learned counsel for the petitioner further submits that so far as paragraph no. 7 of Example 1 of the Schedule appended with the Rules, 2012 is concerned, the same is flexible in nature and if the provisions of paragraph no. 7 is read with Rule 8 (ka), then, though for the present year, the seat for Dumka Municipal Council, Dumka is to be reserved for women candidates, however, in case of such an anomaly, the same is required to be applied in such a manner so as to achieve the purpose of Article 243 (T)(4) of the Constitution of India and Section 27(2)(f) of the Act, 2011.
4. Per contra, the learned counsel for the respondent-State Election Commission, Jharkhand, submits that seat of Chairperson has to be reserved in favour of the women candidates and allocation of seat is to be made by way of rotation. It is further submitted that municipal election held in the year, 2008 was not conducted under the 3 provisions of the Act, 2011 and under the said circumstance, there is no question of applying the principle of rotation governed under the Act, 2011 in the said election. The first election under the Act, 2011 was held in the year 2013, wherein the principle of rotation as contained under Act, 2011 was made applicable and the seat of the Chairperson of Dumka Municipal Council was reserved for women candidates. The present election i.e., Municipal Election 2018 is the second election of Dumka Municipal Council scheduled to be held after promulgation of Act, 2011. The State of Jharkhand has framed Rules, 2012 in which detailed provisions have been made for allocation of seats by way of rotation to each municipality. It is further submitted that Rule 6(1) of Rules, 2012 provides that at the first instance, the total number of seats which is to be reserved in favour of SC/ST/Backward Classes, will have to be determined taking into consideration of the total population of the State vis-à-vis the population of each reserved category. Presently, there are 19 Municipal Councils in the State of Jharkhand and by adopting the methodology given 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 19 seats of Chairperson, 9 seats have been reserved and 10 seats have been unreserved. The distribution of seats are; Scheduled Castes-2, Scheduled Tribes-5, Backward Classes-2 and General (unreserved)-10. It is further submitted that out of 19 (nineteen) municipal councils, the election of 3 (three) seats i.e., Bishrampur Municipal Council, Jhumritelaiya Municipal Council and Chakradhar Municipal Council were held in the year, 2015. The present elections are to be held only for rest 16 (sixteen) Municipal Councils. As per Rule 6(1)(kha) of the Rule 2012, the Municipal Councils are to be arranged in sequence and have to be entered in Form 2, Part two and thereafter, for the purpose of applying the principle of reservation by way of rotation as per Rule 6(1)(ga), the municipal councils are to be arranged taking into consideration the highest population of each category existing in the said Municipal Councils. Thus, after arranging the population of each category in descending order, the reservation roster in each municipal council has been applied by the Commission.
4It is further submitted that the respondent-State Election Commission has strictly followed the principle of roster point rotation as enumerated under the Rules, 2012 and the examples cited therein. It is also submitted that no illegality has been committed by the respondent-State Election Commission in making reservation of seats of Chairperson for women candidates in respect of Dumka Municipal Council and any allegation to the contrary is liable to be rejected. It is further submitted that after determining the seats for SC/ST/BC and for General Category, the principle for reservation of women candidates has been followed.
5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has sought quashing of the notification bearing no. 175/2012 to the extent that the post of Chairman of Dumka Municipal Council has been reserved for women candidates. The thrust of argument of the learned counsel for the petitioner is that the seat of Chairperson of Dumka Municipal Council has been reserved for women candidates continuously for third term, which is in violation of the mandate of Article 243-T of the Constitution of India as well as Section 16 r/w Section 27 of the Act, 2011. On the contrary, the learned counsel for the State Election Commission, Jharkhand has contended that while publishing the impugned notification, the principle of roster point rotation as enumerated under the Rules, 2012 and the examples cited therein have been strictly followed.
6. Since in the present case, the petitioner has not challenged the validity or vires of the Act, 2011 or Rules, 2012, the issue before this Court is confined to adjudicate as to whether the respondent-State Election Commission, Jharkhand, while applying the reservation roster, has deviated or travelled from the provisions of the Act, 2011 or the Rules, 2012.
7. 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. The State of Jharkhand has enacted the Jharkhand Municipal Act, 2011, wherein Section 27 provides for reservation of the office of the Chairperson which reads as 5 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 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;
6(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 has also framed Rules, 2012, wherein sub-rule (i)(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 inter alia that at the first instance, the total number of seats reserved in favour of SC and ST are to be determined taking into consideration 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 is divided by the total population of the State. After determining the seats for SC and ST, the seat of BC is to be reserved subject to the limit of 50% of the total seat. Horizontal reservation is also to be given to the women candidates. At present, the State of Jharkhand has altogether, 19 7 municipal councils and the reservation has to be made in respect of all the municipal councils, subject to maximum of 50% in favour of SC, ST and BC. By applying the said procedure, out of 19 seats of Chairperson, 9 seats were reserved and 10 seats were unreserved with the ratio:-ST-5, SC-2, BC-2 and General- 10. It has further been provided in the Rules, 2012 that the population of each category is to be arranged separately in descending order and the same is to be entered in Form-2, Part three and thereafter, the reservation is given to the highest population on rotation basis.
9. It appears from the record that the first General Election for the Municipal Council under the Act, 2011 was held in the year, 2013. As per the provisions of Rule 6 of the Rules, 2012, the reservation roster in the said election was applied point-wise i.e.,
(i) Scheduled Castes, (ii) Scheduled Tribes (iii) Backward Classes and
(iv) General. By following the said the reservation roster, the seats were reserved for SC/ST/BC and for General Category. There were altogether 14 municipal councils in the first general election held in the year 2013 and as per example-I provided in Rule 9 (Ka) (i) of the Schedule of the Rule 2012, the reservation roster for the seats of women was 1, 3, 5, 7 and since in the first general election, Dumka Municipal Council was at fifth place, as such, it was reserved for women candidates.
10. As per Rule 6 of the Rules, 2012, the reservation roster for second general election is as; (i) Scheduled Tribes, (ii) Backward Classes (iii) General, (iv) Scheduled Castes. The present general election being the second one under the Act, 2011 in the State of Jharkhand, as per example-I provided in Rule-9(ka) of the Rule, 2012, the roster point followed is 2, 4, 6, 8, 10. Since 50% seats are required to be reserved for women candidates in each category, the second municipal council, fourth municipal council and so on have been reserved for women candidates. In the table prepared for 2018 general election, Dumka Municipal Council stands at second place, hence the same has been reserved for women candidates. The contention of the learned counsel for the petitioner that since vide impugned notification, the seat of Dumka Municipal Council has been reserved 8 for women candidates for the third time, the same is illegal, has no substance. The decision of the respondent-State Election Commission, Jharkhand cannot be said to be erroneous on that score as a fixed procedure/methodology has been prescribed under the Rules, 2012 for providing reservation to each category and by strictly following the said procedure, the respondent-State Election Commission, Jharkhand has reserved Dumka Municipal Council for women candidates.
11. Considering the aforesaid facts and circumstances, I find no substance in the instant writ petition and the same being devoid of merit is accordingly dismissed.
I.A. No. 2288 of 2018 also stands disposed of.
(Rajesh Shankar, J.) Manish/A.F.R.