Gujarat High Court
Vasantiben Dipakkumar Patel vs State Of Gujarat on 8 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/14913/2021 ORDER DATED: 08/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14913 of 2021
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VASANTIBEN DIPAKKUMAR PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
..... for the Respondent(s) No. 1
AISHVARYA(8018) for the Respondent(s) No. 2
Ms. Manisha L. Shah, learned Government Pleader with Mr. Ayaan
Patel, learned AGP GOVERNMENT PLEADER(1) for the Respondent(s)
No. 1,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed as under:
"A. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, directions quashing and setting aside the impugned notification dated 17.07.2021 (At Annexure- A) and further be pleased to direct the respondent no.3- learned District Collector and State Election Commission officer to issue fresh notification strictly as per the provisions of Gujarat Panchayats Act, 1993 and Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch By Rotation) Rules, 1994;
B. During the pendency and final disposal of the present application, Your Lordships may be pleased to stay further operation, execution and implementation of the impugned notification dated 17.07.2021 (At Annexure -A);"
2.0. Heard Mr. Nishit P. Gandhi, learned advocate for Mr. S.P. Majmudar, learned advocate for the petitioner, Ms. Page 1 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 Manisha L. Shah, learned Government Pleader assisted by Mr. Ayaan Patel, learned AGP for the respondents no. 1 and 3 and Ms. Aishvarya Gupta, learned advocate for the respondent no.2 State Election Commission.
3.0. The facts emerge from the record of the petition are as under:
3.1. It is the say of the petitioner that the allotment of seat made by the learned District Collector is absolutely illegal, arbitrary, unjustified and contrary to the provisions of the Gujarat Panchayat Act, 1993 (hereinafter referred to as the "Act, 1993") and Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch By Rotation) Rules, 1994 (hereinafter referred to as the "Rules, 1994"). It is the say of the petitioner that present petition is filed with respect to five village panchayats of Chikhli Taluka of Navsari District viz.
Chikhli, Chimla, Maliyadhara, Talavchora and Vankal are such village wherein population of non tribal is more than 75%. Relying upon the census figure of 2011, it is contended that the reservation for the post of Sarpanch which is by direct election, the allotment made is de-hors the Rules, 1994. It is contended that no reservation of Scheduled Tribe candidate is made in the aforesaid five villages. It is mainly contended that the rotation of seats by the authority is de-hors provisions of Section 51 of the Rules, 1994. It is further contended that considering the Page 2 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 population of village Talavchora one seat is required to be reserved for scheduled tribe. Similarly, in case of Vankal village, the same is required to be reserved for SEBC and remaining three seats for Chikhli and Maliyadhara and are required to be reserved for women candidates. Based upon the same, it is contended that the impugned notification is contrary to Article 243 D and 243 M of the Constitution of India. It is contended that the impugned notification is issued without application of mind and without considering the population in the aforesaid five village panchayats of non tribals being more than 75%. The petitioner has also relied upon the judgment of the Coordinate Bench of this Court in Special Civil Application No.15906 of 2016 dated 15.11.2016 .
3.2. In response to the notice issued by this Court, the respondent no.3 has filed its affidavit in reply. It is contended that the as per provision of Section 51(2) (a) of the Gujarat Panchayats (Amendment) Act, 1998 vide Notification dated 8.5.1978, Chikhli Taluka came to be specified as scheduled area, which comprising of 67 village panchayats. It is further submitted that out of 67 village panchayats, 62 village panchayats have more than 25% of tribal population. Referring to para 41 and 42 of the judgment rendered in Special Civil Application No.15906 of 2016, it is contended by the respondent no.3 that in the election for the year 2017, the allotment in five villages where non tribal population, was made as under:
Page 3 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022C/SCA/14913/2021 ORDER DATED: 08/12/2021 Name of Village Category Talavchora Scheduled Tribe Chikhli Scheduled Tribe Maliyadhara Scheduled Tribe Chimla Socially and Economically Backward class Vankal General Category (Reserved seat for women) 3.3 It is averred by the respondent no.3 that as per the provisions of Act, 1993 and Panchayats (Extension of Scheduled Areas) Act, 1996, Notification dated 17.07.2021 impugned in this petition is issued. It is also further submitted that Rules, 1994, the rotation has been considered as under:
Name of Village Category
Vankal Scheduled Tribe
Chimla Scheduled Tribe
Talavchora Scheduled Tribe
Chikhli Socially and Economically
Backward class
Malyadhara General Category (Reserved
seat for women)
3.4. It is contended as per rotation the seat of Scheduled Caste is Zero as per the population and three seats have been allotted to Scheduled Tribe and one seat for SEBC and one seat for general category reserved for women. The Page 4 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 petitioner has filed affidavit in rejoinder mainly denying the contention contended in the reply and reiterating what is stated in the petition.
4.0. Heard Mr. Nishit Gandhi, learned advocate for the petitioner has mainly contended that while considering the allotment of seats in five village panchayats for the post of Sarpanch the population of the concerned village panchayat is to be taken into consideration and the rotation of seats has to be made by the authorities are centered around the total population of the aforementioned five village panchayats of Chikhli Taluka, which according to the petitioner comes to 21885. Mr. Gandhi contended that the authorities have not followed the direction issued by this Court in Special Civil Application No.15906 of 2016 and have arbitrarily provided for rotation. According to the petitioner in Talavchora village seat of Sarpanch ought to have been reserved in this election for Scheduled Tribe, Vankal village for SEBC and three remaining seats are required to be reserved for women candidates. On the aforesaid grounds, it was contended by Mr. Gandhi that the petition deserves to be allowed.
5.0. Per contra, Ms. Manisha Lavkumar Shah, learned Government Pleader has opposed the present petition. Ms. Shah contended that there are 67 village panchayats in Navsari District out of which in 62 village panchayats, population of tribals is 75% or more and therefore, the seats Page 5 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 / office of the Sarpanch in those 62 panchayats are reserved for Scheduled Tribe. It was contended by Ms. Shah that State Government has carried out the allotment / reservation in accordance with the directions issued by this Court in its order dated 15.11.2016 in Special Civil Application No.15906 of 2016. It was contended by Ms. Shah that contentions raised in this petition are identical to the contentions raised in the writ petition being Special Civil Application No.15906 of 2016, which also pertains to the same five villages viz. Chikhli, Chimla, Maliyadhara, Talavchora and Vankal of Chikhli Taluka. Ms. Shah contended that the said petition was partly allowed and the State Government has implemented the said directions issued by this Court. Ms. Shah contended that fallacy in the argument of the petitioner in the present proceedings stems from the fact that he has considered the population of only five villages whereas this Court in its judgment dated 15.11.2016 in Special Civil Application No.15906 of 2016 has categorically held that the allotment of seats in favour of various reserves categories, in these five villages has to be done after considering the population of the said category in the entire Taluka as a unit. Ms. Shah contended that following the directions issued by this Court in Special Civil Application No.15906 of 2016 vide order dated 15.11.2016 in the last election held in 2016, the aforementioned five villages were arranged in descending order of the population of Scheduled Tribe and three seats being the first three village panchayats i.e. Talavchora, Chikhli and Maliyadhara, Page 6 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 were reserved for Scheduled Tribe candidates, one seat to the fourth village panchayat i.e.Chimla Village Panchayat was reserved for SEBC and one seat to the fifth one village panchayat being Vankal was reserved for General Category Women. Ms. Shah contended that the upcoming election schedule to be held on 19.12.2021 the population data is based on the census carried out in the year 2011. As per the said data, the population of Chikhli Taluka is 2,45,772 and same figure is recorded by this Court in its order dated 15.11.2016 passed in Special Civil Application No.15906 of 2016. Ms. Shah further contended that the State Government has carried out the rotation and accordingly two seats have been reserved for Scheduled Tribe for the villages Chimla and Vankal, SEBC for Chikhli and General Category Women for Maliyadhara village. Ms. Shah also pointed out that there was mistake in the Notification dated 17.07.2021 issued by the Collector, Navsari as far as Maliydhara is concerned, which is corrected by corrigendum dated 10.08.2021. Ms. Shah therefore, submitted that in the upcoming election the rotation has been made in accordance with the Rules, 1994. Ms. Shah further invited attention of this Court to the fact that there are total 67 village panchayats and therefore, as per the Rule 9 of Rules, 1994, 34 seats are required to be reserved for Women. It was pointed out that in the last election of 2016, 62 village panchayats were there and first 33 were reserved for women i.e. for serial no. 1 to 33 i.e. from village Jhari to Khund and 34 seats were reserved for women in General Category. It Page 7 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 was therefore, submitted that in the upcoming election, the roster for allotment of seats in favour of women in Scheduled Tribe candidates has started from serial no. 34 i.e. Ghetki Village Panchayat. Ms. Shah, therefore, contended that the contention raised by the petitioner is not only covered by the earlier judgment but petition is misconceived and meritless, deserves to be dismissed.
6.0. Before reverting to the submissions made by the learned advocates for the respective parties, it would be appropriate to refer to the following provisions of the Act, 1993, Rules 1994 and Constitution of India.
Article 243-B. (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.
Article 243-C: 243C. (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 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 Page 8 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 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) of 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 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) 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.
Article 243-D: 243D. (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 Page 9 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 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.
Section 51: First Meeting of panchayat and election of Sarpanch and Upa- Sarpanch.
51. (1) On the constitution of 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-Srupanch from amongst the members of the panchayat.
(2) (a) The offices of Sarpanch of village panchayats in the State 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 the State so reserved shall bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayat in the State as Page 10 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 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. There shall be reserved by the State Government for socially and educationally backward classes ten percent of the offices of Sarpanch of village panchayats in the State,
(b) (i) 2 [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), and (ii) 2 [As nearly as may be one-half] of the total number of offices of Sarpanch of village panchayats in the State, not so reserved, 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 Srupanch or where the elected Sarpanch is not willing to take office, the first meeting of such 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 votes, 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 Page 11 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 no suit or other proceeding shall lie against it in any court.
Rule. 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 section 51 of the Act shall be made in the manner specified hereafter. (2) The offices of Sarpanch in village panchayats in a taluka shall be reserved by the State Government for scheduled castes and the scheduled tribes and the number of the offices of Sarpanch at village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion as 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 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 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."
Rule 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 80 1, 80 2 and so on. (2) The serial number as so assigned shall be known as special serial number or 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 Page 12 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 sarpanch reserved for the women.
Rule. 6. Allotment of offices of Sarpanch reserved for Scheduled Tribes.- (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 Tribes under rule 4, the State Government shall determine the village 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 ST 1, ST 2 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 villages 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.
Rule 7. Allotment of offices of sarpanch reserved for socially and educationally backward Classes. (1) For the purpose of allotment of the number of offices of sarpanch of village panchayat 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 decision 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 village 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 l SE 2and 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 taIuka reserved for the Scheduled Castes and the Page 13 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 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 socially and educationally backward classes) serially to the Villages bearing special serial numbers or the socially and educationally Backward classes so however that preference shall be given to allotment of offices of sarpanch reserved for the women.
9. Computations 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 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 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).
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."
7.0. The aforesaid Rules, 1994 r/w Section 51 of the Act, 1993 clearly postulates that while considering the rotation for the post of Sarpanch of village Panchayat, the Taluka is to be considered as a unit. The very basis of the foundation of this petition is de-hors the provisions of Rules, 1994. It deserves to be noted that the Special Civil Application No.15906 of 2016 which was partly allowed by the Coordinate Bench of this Court incidentally relates to the Page 14 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 same Taluka i.e. Chikhli Taluka. The last election was also held as per 2011 census and upcoming election is to be held as per population figure of 2011 census. It is not in dispute that Chikhli Taluka is Scheduled Area governed by the provisions of Article 241 M of the Constitution of India. The Coordinate Bench of this Court in Special Civil Application No.15906 of 2016 has observed thus:
"21. The question that next arises for consideration is as to how the offices of Sarpanch are required to be allotted to the areas governed by the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993 Clause (a) of sub-section (2) of section 51 of the Act of 1993 reads thus:
"51. (1) xxxx (2)(a) The offices of Sarpanch of village panchayats in the State shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of offices of Sarpanch of village panchayats in the State so reserved shall bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayat in the State 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. There shall be reserved by the State Government for Socially and Educationally Backward Classes ten percent of the offices of Sarpanch of village panchayats in the State."
.22. Thus, in terms of clause (a) of sub-section (2) of section 51 of the Act of 1993, (i) the offices of Sarpanch of village panchayats in the State are required to be reserved for the Scheduled Castes and the Scheduled Tribes; (ii) the number of offices of Sarpanch of village panchayats in the State so reserved should bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayats in the State as the population of the Scheduled Castes or the Scheduled Tribes in the State bears to the total population of the State; and (iii) 10% of the offices of Sarpanch of village panchayats in the State shall be reserved for the socially and educationally backward classes.
23. Sub-section (3) of section 51 of the Act of 1993 provides that the number of offices reserved under sub-
Page 15 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022C/SCA/14913/2021 ORDER DATED: 08/12/2021 section (2) shall be allotted by the State Government by rotation to different panchayats in the State in the prescribed manner. In the exercise of powers conferred by sub-section (5) of section 274, read with sub-section (3) of sec 51 of the Act of 1993, the Government of Gujarat has made rules called the Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch by Rotation) Rules, 1994.
24. In the present case, the number of offices of Sarpanch available for allotment under clause (a) of sub- section (2) of section 51(2)(a) of the Act of 1993 are five in number. The question that arises for consideration is as to how the five offices of Sarpanch are to be apportioned in consonance with the rules framed in this regard. Rule 3 thereof, provides for "Assignment of serial numbers to village panchayats of a taluka". Rule 4 provides for the "Manner of Reservation of Offices of Sarpanch" and reads thus:
"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 section 51 of the Act shall be made in the manner specified hereafter. (2) The offices of Sarpanch in village panchayats in a taluka shall be reserved by the State Government for scheduled castes and the scheduled tribes and the number of the offices of Sarpanch at village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion as 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 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 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."
25. Thus, while section 51(2) (a) provides for reservation on the basis of the total population of the State, rule 4 provides for reservation on the basis of the total population of the taluka, which in effect and substance limits the reservation of offices of Sarpanch to areas where the Scheduled Castes and Scheduled Tribes have a larger presence. Be that as it may, that is not in issue in the present case.
26. Insofar as allotment of offices of Sarpanch by the Page 16 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 impugned notification is concerned, the stand of the respondent State authorities is that since 62 offices of Sarpanch have already been reserved for the Scheduled Tribes, which exceeds the percentage of their population, no further offices are required to be allotted to them. The respondents, accordingly, after reserving the above 62 offices of Sarpanch for the Scheduled Tribes have worked out the number of offices of Sarpanch as would be available to the Scheduled Castes and the socially and educationally backward classes by considering the total number of seats available for rotation to be 67 and have come to the conclusion that one office of Sarpanch is required to be reserved for the Scheduled Castes and the remaining for the socially and educationally backward classes. By doing so, the respondents have jettisoned the very concept of allotment by rotation as envisaged under sub-section (3) of section 51 of the Act of 1993, inasmuch as, the consequence of working out the number of seats available to each category on the basis of 67 seats, is that all the five offices of village panchayats would perpetually remain reserved for the Scheduled Castes and the socially and educationally backward classes and no office of Sarpanch would ever be available for allotment to the general category by rotation, which is contrary to the rules prescribed in that regard. Besides, the exclusion of the Scheduled Tribes from allotment of the remaining offices of Sarpanch is against the very spirit of articles 243 and 243M of the Constitution of India, inasmuch as, in view of the provisions of the PESA Act and the Amendment Act of 1998, the seats reserved for the Scheduled Tribes in villages having less than 75% of non tribals fall within the ambit of section 51(2)(a) of the Amendment Act, 1998 and the remaining seats which fall under the general provisions of the Act of 1993. Therefore, if while allotting offices of Sarpanch for the remaining seats under the provisions of clause (a) of sub- section (2) of section 51 of the Act of 1993, the Schedule Tribes are taken out of consideration, the result is that the Schedule Tribes are deprived of the right to hold the office of Sarpanch in those village panchayats which are governed by the provisions of the Act of 1993, which cannot be the intention of the legislature, nor can such intention be discerned on a reading of the provisions of the Act of 1993 or the Amendment Act, 1998. In fact the village panchayats in question fall within a Scheduled Area and therefore, ordinarily, but for the proviso to clause (a) of sub-section (2) of section of the Amendment Act, 1998, all the offices of Sarpanch would have to be reserved for the Scheduled Castes. However, the proviso Page 17 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 carves out an exception in case of villages where the population of non-tribals is 75% or more, in which case the ordinary provisions of the Act of 1993 would be applicable. The provisions of section 51(2)(a) of the Act of 1993 read with rule 4 of the rules, clearly provide for reservation of offices of Sarpanch of village panchayats in the taluka of the Scheduled Tribes in proportion to the total number of offices of Sarpanch of village panchayats in a taluka as the total population of Scheduled Castes bears to the total population of the taluka. Therefore, while carving out an exception to reservation of all the offices of Sarpanch in the taluka, it could not be the intention of the legislature or the rule making body to oust the Schedule Tribes from consideration in the village panchayats to which the provisions of the Amendment Act, 1998 would not apply. Therefore, while allotting of offices of Sarpanch by rotation under clause (a) of sub- section (2) of section 51 of the Act of 1993 read with rule 4 of the rules, the percentage of the Scheduled Tribes in the taluka is required to be taken into consideration and offices of Sarpanch even in the remaining five village panchayats are required to be allotted to the Scheduled Tribes in the same proportion to the total number of offices of Sarpanch of village panchayats in the taluka as the population of Scheduled Tribes bears to the total population of the taluka.
27. Apart from excluding the Scheduled Tribes from consideration while allotting offices of Sarpanch in the above referred five village panchayats, the respondents while considering the proportion of the Scheduled Castes and the percentage of the socially and educationally backward classes, have taken the number of offices of village panchayats in the taluka to be 67 and have worked out the total population of the Scheduled Castes in taluka to be 1.33% and have reserved one office of Sarpanch for the Scheduled Castes and have worked out 10% of the offices of Sarpanch to be reserved for thesocially and educationally backward classes at 6.7 and have come to the conclusion that seven offices of Sarpanch are required to be reserved for them and have accordingly, allotted the remaining four offices of Sarpanch in the above five village panchayats to the socially and educationally backward classes. Thus, though only five offices of Sarpanch are available for allotment, as per the computation made by the respondents out of five, one office of Sarpanch is required to be reserved for the Scheduled Castes though their population is only 1.33% of the total population of the taluka and seven offices are required to be reserved out of Page 18 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 five offices of Sarpanch to the socially and educationally backward classes, though they are required to be allotted only 10% of the offices of Sarpanch of the village panchayats (wherein the population of the socially and educationally backward classes is more than 5%) which on the face of it is absurd. Therefore, the manner in which the respondents have computed the allotment of offices of Sarpanch in the five village panchayats results into an absurdity, which is contrary to the legislative intention of reservation of offices of Sarpanch of the Scheduled Castes in proportion to the total number of offices of Sarpanch in the taluka (available for allotment under the Act of 1993) as the population of the Scheduled Castes bears to the total population of the taluka and reservation of 10% of the offices of Sarpanch for the socially and educationally backward classes. Moreover, the requirement of rotation of the offices of Sarpanch within all the classes is totally frustrated. Thus, if the provisions of the Act of 1993 read with the rules are construed in the manner put forth by the respondents, the same become unworkable.
28. In the opinion of this court, to make the provisions workable, the allotment of the remaining seats would be required to be made by considering the proportion of each class of persons in the context of the number of offices of Sarpanch of village panchayat available for allotment under clause (a) of sub-section (2) of section 51 of the Act of 1993 and not the total number of offices of Sarpanch of village panchayats in the taluka which include those reserved for Scheduled Tribes under section 51(2)(a) of the Amendment Act of 1998 and consequently are not available for allotment under the provisions of the Act of 1993. It is a settled rule of interpretation that if the language used is capable of bearing more than one construction and if a construction is employed that results in absurdity or anomaly, such construction has to be rejected and preference should be given to such a construction that brings it into harmony with its purpose and avoids absurdity or anomaly as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended.
29. At this juncture, reference may be made to the provisions of the rules which govern the allotment of offices of Sarpanch under clause (a) of sub-section (2) of section 51 of the Act of 1993. Rule 4 of the rules provides for reservation of offices of Sarpanch of village panchayats in the State of the Scheduled Castes, the Scheduled Tribes and Socially and Educationally Page 19 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 Backward Classes under clause (a) of sub-section (2) of section 51 of the Act of 1993. Under sub-rule (2) of rule 4, reservation of the offices of Sarpanch of village panchayats in a taluka for the Scheduled Castes and the Scheduled Tribes is required to be made as nearly as may be in 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. Sub-rule (3) of rule 4 provides for reservation of ten percent of the offices of Sarpanch of village panchayats in a taluka for the Socially and Educationally Backward Classes. After the number of offices of Sarpanch in village panchayats of a taluka that are to be reserved for the Scheduled Castes under rule 4 is determined by the State Government, for the purpose of allotment of such offices of Sarpanch so reserved, the State Government is required to proceed further under rule 5 of the rules and prepare a list as contemplated under subrule (1) of rule 5 of the rules. Similarly, after the number of offices of Sarpanch in village panchayats of a taluka which are required to be reserved for the Scheduled Tribes under rule 4 of the rules is determined by the State Government, for the purpose of allotment of the offices of Sarpanch so reserved, the State Government is required to proceed further under rule 6 of the rules and prepare a list as contemplated thereunder. The State Government is also required to reserve ten percent of the total number of offices of Sarpanch of village panchayats in a taluka for the socially and educationally backward classes. After reserving 10% of the offices of Sarpanch of the village panchayats in the taluka for the socially and educationally backward classes, the allotment of offices of Sarpanch is required to be made in accordance with the provisions of rule 7 of the rules.
30. After the offices of Sarpanch of village panchayats in a taluka reserved for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes are allotted, the remaining offices of Sarpanch are to be allotted in terms of rule 8 of the rules. Rules 5, 6, 7 and 8 also provide for preference to be given for allotment of offices of Sarpanch reserved for women. Rule 9 provides for computation of reserved offices of Sarpanch for women. Rule 10 provides for operation of lists of villages bearing special serial numbers and general serial numbers.
31. The core question that arises in the present case is as regards the interpretation of rule 4 of the rules. Sub-rule (1) of rule 4 provides for that reservation of offices of Page 20 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 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 in the manner specified thereafter. The manner specified thereafter is under sub-rules (2) and (3) thereof. Subrule (2) of rule provides that the offices of Sarpanch of village panchayats in a taluka shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of the offices of Sarpanch at the village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion to the total offices of Sarpanch of the 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. Sub-rule (3) provides that 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. Since, both, subrule (2) and sub-rule (3) of rule 4 of the rules speak of the total number of offices of Sarpanch of village panchayats in a taluka, the respondents on a literal meaning of the said rules contend that the reservation for the Scheduled Castes and the socially and educationally backward classes has to be computed on the basis of the total number of offices of Sarpanch of village panchayats in the taluka and not on the basis of the number of offices of Sarpanch available for allotment as contended by the petitioner.
32. In the aforesaid backdrop, the crucial question that requires to be addressed is as to what meaning should be assigned to the words "the total number of offices of Sarpanch of village panchayats in a taluka" in sub-rules (2) and (3) of rule 4 of the rules in relation to Scheduled Areas. In this regard, it is an admitted position that Chikhli taluka is a Scheduled Area governed by the provisions of article 243-M of the Constitution of India. Part IX of the Constitution makes provision for the Panchayats and is comprised of articles 243 to 243O. Article 243D provides for reservation of seats and postulates that the 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 Page 21 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 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. Article 243K of the Constitution makes provision for elections to the Panchayats. Article 243M bears the heading "Part not to apply to certain areas" and lays down that nothing in that Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2) of article 244. Sub-clause (b) of clause (4) of article 243M postulates that notwithstanding anything in the Constitution, Parliament may, by law, extend the provisions of that Part to the Schedule Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of the Constitution for the purposes of article
368. Viewed in the context of the above constitutional scheme, since Chikhli Taluka is a Scheduled Area, the provisions of the Gujarat Panchayats Act, 1993 would ordinarily not be applicable to it. However, by virtue of the PESA Act, the provisions of the Act of 1993 have been made applicable to the Scheduled Areas subject to the exceptions and modifications provided in the Gujarat Panchayats (Amendment) Act, 1998. Accordingly, villages having not less than 25% population of the Scheduled Tribes are taken out of the purview of section 51(2) (a) of the Act of 1993 and are governed by the provisions of section 51(2)(a) as substituted by the Amendment Act, 1998. Accordingly, in villages having more not less than 25% population of the Scheduled Tribes, all the offices of Sarpanch are required to be reserved for the Scheduled Tribes, whereas the remainder of the villages wherein the population of nontribals is 75% or more would be governed by the provisions of section clause (a) of sub- section (2) of section 51 of the Act of 1993 and the offices of Sarpanch of such villages would have to be reserved in accordance with the rules. Therefore, while the total number of offices of Sarpanch in Chikhli taluka are 67 in number, the total number of offices of Sarpanch available for allotment under clause (a) of sub-section (2) of section 51 of the Act of 1993 read with the rules is only of five village panchayats. If one considers the total number of offices of Sarpanch of village panchayats in the taluka for the purpose of allotment, then an absurd situation as mentioned hereinabove arises. Therefore, such construction of the provisions of the Act of 1993 read with the rules cannot be adopted and a purposive construction would have to be employed which advances Page 22 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 the object behind the statutory provisions. Accordingly, the words "total number of offices of Sarpanch of village panchayats in a taluka" employed in rule 4 of the rules would have to be construed to mean the total number of offices of Sarpanch of village panchayats in a taluka as available for allotment under rule 4 of the rules. Since the offices of Sarpanch of village panchayats of a taluka in a Schedule Area are available for allotment only after reserving offices of Sarpanch for the Scheduled Tribes in those village panchayats where the population of non- tribals is less than 75%, viz., such village panchayats which are governed by the provisions of clause (a) of sub- section (2) of the section 51 of the Amendment Act, 1998, it is only such offices of Sarpanch which are available for allotment under the provisions of the Act of 1993 and the rules framed thereunder, that would form the total number of offices of Sarpanch of village panchayats as contemplated in rule 4 of the rules. The expression "the total number of offices of Sarpanch of village panchayats in a taluka", accordingly, has to be construed to mean the total number of offices of Sarpanch of village panchayats in a taluka as are governed by the provisions of the Act of 1993 and the rules framed thereunder and are, accordingly, available for allotment thereunder.
33. As noted hereinabove, the total number of offices of Sarpanch in Chikhli taluka is 67, out of which 62 are governed by section 51(2)(a) of the Amendment Act, 1998 and only 5 villages are governed by the provisions of section 51(2)(a) of the Act of 1993. While computing the offices of Sarpanch to be reserved for these 5 villages, the respondents have taken into consideration the total number of offices of Sarpanch in the taluka and not just the offices of Sarpanch available for allotment under section 51(2)(a) of the Act of 1993. Moreover, the respondents have also taken into consideration the offices of Sarpanch in village panchayats where the population of the Scheduled Tribes is not less than 25% for the purpose of computing the offices of Sarpanch as are required to be reserved for the Scheduled Tribes. Therefore, taking into consideration the fact that the population of the Scheduled Tribes in the taluka is 67.18% as well as the fact that more than 67.18% of offices of Sarpanch in Chikhli Taluka have been reserved for the Scheduled Tribes, the respondents have not made any reservation for the Scheduled Tribes insofar as the offices of Sarpanch of the five village panchayats in question are concerned. The respondents, for the purpose of allotment of offices of Sarpanch of Chikhli taluka, have adopted the following approach:
Page 23 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022C/SCA/14913/2021 ORDER DATED: 08/12/2021 Scheduled 1 Castes Scheduled 6 Tribes 2 S.E.B.C. 1 General 3 Total 6 7
34. In the opinion of this court, the manner in which the allotment has been made by the respondents militates against the very spirit of articles 244 and 243M of the Constitution of India which are beneficial provisions made for the Scheduled Tribes. As noticed earlier, the provisions of PESA provide for reservation of all the offices of Sarpanch in the taluka for the Scheduled Tribes. However, by virtue of the proviso to section 51(2)
(a) of the Amendment Act of 1998 as applicable to the Scheduled Areas, offices of Sarpanch where the population of non-tribals is 75% or more have been taken out of the purview of the said section and are governed by the provisions of section 51(2)(a) of the Act of 1993. On a bare reading of the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993, there is nothing therein from which one could infer an intention to exclude the Scheduled Tribes from the benefit of reservation thereunder to the extent they have been granted the benefit of reservation under the provisions of section 51(2)(a) of the Amendment Act of 1998. The action of the respondents in denying reservation to the Scheduled Tribes in accordance with the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993 and the rules framed thereunder, is violative thereof and cannot be sustained.
35. As noticed earlier, after reservation of sixty two offices of Sarpanch for the Scheduled Tribes, the remaining five offices are available for allotment under the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993. Insofar as the allotment of offices of Sarpanch for the five village panchayats is concerned, the reservation of sixty two offices of Sarpanch for the Scheduled Tribes under section 51(2)(a) of the Amendment Act, 1998 are taken out of the ambit of consideration, and therefore, the allotment of offices of Sarpanch for the five village panchayats has to be made by considering the total number of offices of Sarpanch in the taluka as five and not sixty seven.Page 24 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022
C/SCA/14913/2021 ORDER DATED: 08/12/2021
36. The manner of reservation of offices of Sarpanch for the five village panchayats of Chikhli taluka available for allotment under the provisions of the Act of 1993 is required to be made in accordance the rules. In terms of sub-rule (2) of rule 4 of the rules, the offices of Sarpanch of village panchayats in a taluka shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of offices of Sarpanch of village panchayats in a taluka reserved for the Scheduled Castes and the Scheduled Tribes 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 Tribes in the taluka or the Scheduled Tribes in the taluka bears to the total population of the taluka. As held hereinabove, the expression "the total number of offices of Sarpanch of village panchayats in a taluka", has to be construed to mean the total number of offices of Sarpanch of village panchayats in a taluka as are governed by the provisions of the Act of 1993 and the rules framed thereunder and are, accordingly, available for allotment thereunder Therefore, sub-rule (2) of rule 4 of the rules shall have to be applied as if the total number of offices of Sarpanch of the village panchayats in the taluka are five. If that be so, the computation of reservation for the different categories shall be as under:
"THE SCHEDULED CASTES The total population of Scheduled Castes is 4886 as per census of 2011. The total population of the taluka is 2,45,772. The proportion of Scheduled Castes in the taluka is 1.99% = 0.0995 seats out of 5 seats."
37. At this juncture, reference may be made to rule 13 of the rules, which provides for computation of offices of Sarpanch reserved under the rules and lays down that while deriving the number of offices of Sarpanch to be reserved under the rules, a fraction which is one half or greater than one half in value shall be counted as one and a fraction less than one half in value shall be ignored. Therefore, 0.0995 being less than one half in value, shall be ignored and accordingly, no office of Sarpanch would be available for reservation for the Scheduled Castes. On behalf of the respondents, reliance has been placed upon an unreported decision of this court in the case of Nathabhai Devabhai Zala v. State of Gujarat rendered on 16.12.2011 in Special Civil Application No.17901 of 2011, wherein the court held that the mandate under sub-section (5)(a)(i) of section (9) of the Act of 1993 is that one seat in every village panchayat has to be reserved for the Scheduled Page 25 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 Castes/the Scheduled Tribes, to contend that it is mandatory for the State Government to reserve at least one seat for the Scheduled Tribes in view of the principles propounded in the above decision. This court is of the considered view that the above decision which has been rendered in the context of the provisions of section 9 of the Act of 1993 which relate to the constitution of village panchayats and inter alia make provision for reservation of seats of members of the panchayat for the Scheduled Castes and Scheduled Tribes, would have no applicability to the facts of the present case which relates to offices of Sarpanch in village panchayats and not to seats of members of the village panchayat. The said decision therefore, would not come to the aid of the respondents.
38. THE SCHEDULED TRIBES:
The total population of the Scheduled Tribes is 1,65,111 as per census of 2011.
The total population of the taluka is 2,45,772. Therefore, the population of the Scheduled Tribes is 67.18%, which is equal to 3.359 seats out of 5 seats. Accordingly, 3 seats would be required to be reserved for the Scheduled Tribes.
The allotment of the three offices of Sarpanch reserved for the Scheduled Tribes would have to be made in the manner provided in rule 6 of the rules read with rules 9 to 11 of the rules.
39. THE SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES: In terms of sub-rule (3) of rule 4 of the rules, 10% of the total number of offices of Sarpanch of the village panchayats of a taluka have to be reserved for the socially and educationally backward classes. The offices of Sarpanch so reserved for the Socially and Educationally Backward Classes would thereafter be required to be filled up in terms of rule 7 of the rules. Having regard to the fact that the total number of offices of Sarpanch of the village panchayats in the taluka is 5, 10% thereof would come to 0.5. Since a fraction of one half is to be considered as one, one office of Sarpanch would be required to be reserved for the socially and educationally backward classes.
40. Thus, after reserving three offices of Sarpanch for the Scheduled Tribes and one for the socially and educationally backward classes, one office of Sarpanch would remain for allotment to the General Category. The five offices of Sarpanch in the village panchayats of Chikhli, Chimla, Maliyadhara, Talavchora and Vankal are required to be allotted as follows: three offices of Sarpanch to the Scheduled Tribes; one office of Sarpanch Page 26 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 to the socially and educationally backward classes; and one office of Sarpanch to the General category in accordance with rules 6 to 10 of the rules. As to whether a particular office of Sarpanch is required to be reserved for women, would have to be worked out in terms of rule 6 to 10 of the rules."
Following the judgment of the Coordinate Bench of this Court Special Civil Application No.15906 of 2016 dated 15.11.2016, the State Government has provided for reservation as per the directions issued by this Court and the same is followed in the upcoming election as a whole.
7.1. The record indicates that in the last election village Talavchora was allotted SEBC, Chikhli Scheduled Tribe, Maliyadhara Scheduled Tribe, Chimla Scheduled Tribe and Vankal for General Category. By the impugned notification published for the upcoming election, Talavchora is for Scheduled Tribe Women, Chikhli SEBC, Mulyadhara General Category Women, Chimla, Scheduled Tribe Women and Vankal Scheduled Tribe Women. The said allotment is made as per the direction issued by this Court vide order dated 15.11.2016 in Special Civil Application No.15906 of 2016 that three seats are to be allotted to Scheduled Tribe, one seat to SEBC and remaining one seat to General Category.The record indicates that as total number of village panchayat in Navsari Districts are 67 in number, 34 seats are required to be reserved for women in accordance with Rule 9 of the Rules, 1994. As pointed out by Ms.Shah, learned Government Pleader the reservation for women was provided upto serial no.33 and the 34 seats of village Ghetki Page 27 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022 C/SCA/14913/2021 ORDER DATED: 08/12/2021 was reserved for Women from General Category and therefore, the allotment for women has been initiated with serial no.34 in the upcoming election. It clearly appears that allotment of reserves seats for the post of office of Sarpach for the five taluka of Navsari District is in accordance with Rules 4,5,6,7 and 8 of the Rules, 1994 and hierarchy is maintained. As population of Scheduled Caste has even noted in the judgment of this Court in Special Civil Application No.15906 of 2016 is zero which is not altered. Even in this election figures of 2011 census is basis, the authorities have first followed the hierarchy of Scheduled Tribe Women then SEBC and then General Category. Considering the allotment made in 2017 election, it clearly appears that rotation has been made as per the Rules of 1994 and considering the corrigendum dated 10.08.2021, this Court finds that there is no error in rotation and allotment of seats of the Sarpanch which is in accordance with Section 51 of the Act, 1993. Petition therefore, fails and is hereby dismissed. Notice discharged. However, there shall be no order as to costs.
(R.M.CHHAYA,J) (MAUNA M. BHATT,J) KAUSHIK J. RATHOD Page 28 of 28 Downloaded on : Wed Jan 12 08:17:21 IST 2022