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Judgment
,,,,
Jyotsna Rewal Dua, J",,,,
This bunch of writ petitions questions the preparation, implementation and rotation of election reservation roster in Gram Panchayats for purposes of ensuing 2020-21 elections to the Panchayati Raj Institutions in the State. Common",,,,
contention of the petitioners is that election reservation roster prepared by the State for 2020-2021 elections is inherently faulty, as a result, reservation of previous election years has been repeated for offices in the Gram Panchayats/areas",,,,
involved in the writ petitions in the now scheduled elections thereby denying equal opportunity of representation to members of other categories. Involving common questions of law, these writ petitions, therefore, are taken up together for",,,,
disposal.,,,,
Facts from lead case CWP No. 5987 of 2020, Manish Dharmaik Vs. State of H.P. are being considered hereinafter for comprehending the issue raised in this bunch of writ petitions.",,,,
Grievance,,,,
Petitioner’s grouse is that in ensuing 2020-2021 elections to be conducted for Panchayati Raj Institutions (for short PRI) in the respondent-State under The Himachal Pradesh Panchayati Raj Act, 1994 (in short the Act) and H.P.",,,,
Panchayati Raj (Election) Rules, 1994 (in short the Rules), the seat of Pradhan in Gram Panchayat Khagna, Development Block Chopal, District Shimla, H.P. has been reserved for women (General). The office/area in question was reserved",,,,
for women (General) in 2010 elections, for scheduled castes (open) in 2015 and, therefore, could not be kept for women (General) in 2020 elections. This amounts to repeating the reservation in the area for women (General) thereby denying",,,,
the opportunity of representation to various other categories. Repeating the reservation in the area for women (General) is contrary to the principle of rotation envisaged in the Constitution of India, the ‘Act’ and the ‘Rules’.",,,,
Since the legal question raised is with respect to the alleged illegal repetition of reservation of an area for a particular category in forthcoming elections to PRI, therefore, following needs to be comprehended before proceeding further : -",,,,
(i) Related Legal Provisions.,,,,
(ii) Methodology adopted by the respondent State in preparing, applying and rotating reservation roster for election to PRI.",,,,
Related Legal Provisions,,,,
3(i)(a) Article 243 under Part IX of the Constitution of India pertains to Panchayats. Article 243D provides for reservation of seats in Panchayat elections as under :-,,,,
“243D. Reservation of seats,,,,
(1) Seats shall be reserved for :-,,,,
(a) the Scheduled Castes; and,,,,
(b) the Scheduled Tribes,",,,,
in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the, total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled",,,,
Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat,,,,
(2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for women belonging, to the Scheduled Castes or, as the case may be, the Scheduled Tribes.",,,,
(3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be,,,,
reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.,,,,
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Caste,s 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.â€,,,,
3(i)(b) Section 8 of H.P. Panchayati Raj Act provides for Constitution of Gram Panchayats. Reservation of seats of Pradhans in Gram Panchayats under the Act is governed by following Section 125 of the Act :-,,,,
Reservation for Chairpersons.-,,,,
(1) There shall be reserved by the Government, in the prescribed manner such number of offices of Chairpersons in Panchayats at every level in the State for the persons belonging to the Scheduled Castes and Scheduled",,,,
Tribes and the number of such offices, bearing as may be the same proportion to the total number of offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the",,,,
population of the State.,,,,
(2) One-half of offices of Chairpersons reserved in each category, for persons belonging to the Scheduled Castes and Scheduled Tribes and of the non-reserved offices in the Panchayats at every level shall be reserved for",,,,
women.,,,,
(3) The State Government may, by general or special order, reserve such number of offices of chairpersons for persons belonging to Backward Classes in Panchayats at every level, not exceeding the proportion to the total",,,,
number of offices to be filled by direct election in the Panchayat as the population of the persons belonging to Backward Classes in the State bears to the total population of the State and may further reserve one-half of the,,,,
total seats reserved under this sub-section for women belonging to Backward Classes.,,,,
(4) The offices of Chairpersons reserved under sub-sections (1), (2) and (3) shall be allotted by rotation to different constituencies in the district in such manner as may be prescribed.",,,,
Explanation.- For the removal of doubt it is hereby declared that the principle of rotation for the purposes of reservation of office under this section shall commence from the first election to be held after the commencement of,,,,
this Act.,,,,
Rule 28 under Chapter IV of H.P. Panchayati Raj (Election) Rules provides for reservation of seats in Panchayats in following manner :-,,,,
“28. Reservation of seats in Panchayats.-,,,,
(1) Before every election to a Panchayat the Deputy Commissioner or any other officer authorised by him in this behalf shall, in accordance with the provisions of sections 8, 78, and 89 of the Act reserve the constituencies for",,,,
Scheduled Castes, Scheduled Tribes and Women in a Panchayat area and determine their rotation.",,,,
(2) In every Panchayat the population of general category, Scheduled Castes, Scheduled Tribes and Women shall be worked out constituency-wise and the percentage of Scheduled Caste and Scheduled Tribes and Women, in",,,,
relation to the total population of the Constituency shall be determined for the purposes of making reservation.,,,,
(3) In every Panchayat, constituency/constituencies shall be reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population in that Panchayat area. The constituency having highest percentage of",,,,
population of Scheduled Castes shall be reserved for the members of the Scheduled Castes and the constituency having the highest percentage of population of Scheduled Tribes shall be reserved for the Scheduled Tribes.,,,,
(4) If the number of constituencies to be reserved for the members of Scheduled Castes or Tribes is more than one, then the constituency having the next highest percentage of Scheduled Castes and Scheduled Tribes shall be",,,,
reserved for the members of the Scheduled Castes and Scheduled Tribes, as the case may be and so on:",,,,
Provided that if the total population of Scheduled Castes or Scheduled Tribes in a Panchayat area is less than five percent of the total population of the panchayat area, then no constituency shall be reserved.",,,,
(5) Out of the constituencies reserved for members of Scheduled Castes and Scheduled Tribes, one-half of the constituencies shall be reserved for women members belonging to Scheduled Castes and Scheduled Tribes, as the",,,,
case may be, and the Constituency having highest percentage of population of women belonging to Scheduled Castes or Scheduled Tribes in relation to total population of the Constituency, as the case may be, in a Panchayat",,,,
area shall be reserved for such women.,,,,
(6) If the number of constituencies to be reserved for women belonging to Scheduled Castes, or Scheduled Tribes, as the case may be, is more than one then the constituency having the next highest percentage of women",,,,
belonging to Scheduled Castes or Scheduled Tribes, as the case may be, shall be reserved for such women, and so on.",,,,
(7) Out of the total constituencies excluding the constituencies reserved for Scheduled Castes and Scheduled Tribes (including women belonging to Scheduled Castes and Scheduled tribes),one- half of the constituencies shall",,,,
be reserved for women and the constituency having highest percentage of population of women shall be reserved for such women and if the number of constituencies to be reserved for women is more than one, then the",,,,
constituency having the next highest percentage of women population shall be reserved for general women and so on.,,,,
(8) The Constituencies reserved for Scheduled Castes and Scheduled Tribes and women belonging to Scheduled Castes and Scheduled Tribes and women belonging to general category on the basis of percentage of population,,,,
shall be rotated after every five years from the date of first election. At the time of next election, the constituency/constituencies having the next highest percentage of population shall be reserved for members of Scheduled",,,,
Castes and Scheduled Tribes including women belonging to Scheduled Castes and Scheduled Tribes and women belonging to general category and so on for subsequent elections:,,,,
Provided that the reservation for a particular category shall not be repeated unless all other constituencies are covered by rotation:,,,,
Provided further that the reservation for a particular category shall not be rotated in such a constituency where the population of that category is less than 5% of the total population of that constituency.,,,,
(8-A) Notwithstanding anything contained in these rules, the roster of reservation of seats shall operate from the initial stage for the elections to be held after the commencement of the Himachal Pradesh Panchayati Raj",,,,
(Election) Amendment Rules, 2010 as if the said elections are being conducted for the first time under sub-rule (8) and thereafter, the reservation of seats shall be rotated to different constituencies under this rule.",,,,
(9) The reservations made under this rule shall be finalised by the Deputy Commissioner or any other officer authorised by him in this behalf and shall be given wide publicity by him by affixing a copy of order of such,,,,
reservation on the notice board of his office and that of the offices of Zila Parishad, Panchayat Samitis and Gram Panchayats and he shall also send a copy of the same to the Government and this notification shall be the",,,,
conclusive proof of reservations of constituencies.â€,,,,
Rule 87 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 prescribes the procedure to be followed for reservation of office of Pradhans in Gram Panchayats. The Rule runs as under :-",,,,
Descending order of SC Population Percentage Panchayats in Block,,,,
Sr. No,Name of Panchayat,SC Population % in Panchayat,,
1.,A,50,,
2.,B,49,,
3.,C,48,,
4.,D,46,,
5.,E,42,,
6.,F,40,,
7.,G,48,,
Sr. No.,Name of Panchayat,Reservation in 2010,Reservation in 2015,Reservation in 2020
1.,A,SC Female,Female,UR
2.,B,SC,Female,UR
3.,C,Female,SC,Female
4.,D,Female,SC Female,Female
5.,E,UR,Female,SC Female
6.,F,Female,UR,SC
7.,G,UR,UR,Female
(2) (i) The bar contained in Article 243-O, which begins with non-obstante clause, debars all Courts from entertaining any challenge to law relating to delimitation of constituencies or allotment of seat made or purporting to be
made under Article 243-K or election to the Panchayats. This bar also operates against the High Court's power of judicial review under Article 226. (N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Durga
Shankar Mehta v. Raghuraj Singh, Election Commission of India v. Shivaji and Election Commission of India v. Ashok Kumar (supra)}
(ii) The proposition contained in Clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no hearing was given provided that
such challenge is made before issue of notification for holding election. {State of U.P. v. Pradhan Sangh Kshetra Samiti (supra)}.
(iii) The bar contained in Article 243-O (a) would operate immediately after publication of notification of delimitation of Panchayat areas even in cases where the same is challenged prior to issuance of notification of election.
(iv) The bar contained in Article 243-O(b) operates only till the adjudication of election dispute by an adjudicatory forum created by or under any law made by the Legislature of the State. An order made by an adjudicatory
forum constituted under the law made by the State Legislature can be called in question by filing a petition under Article 226 of the Constitution.
(3) The bar contained in Article 243-O operates at all stages of the election i.e. notification issued by the State Election Commission calling upon the electorate to elect Pradhans and Up-Pradhans; reservation of offices of",,,,
Pradhans in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and withdrawal",,,,
thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result.
(4) The bar contained in Article 243-O(b) does not operate qua challenge to the constitutionality of a statutory provision relating to elections, though, even in such a case, the High Court will be extremely loath to pass an
interlocutory order which has the effect of stalling or jeopardizing the process of election or which may result in the constitutional hiatus on account of indirect violation of Article 243-K(3) read with Article 243-K(1).
(5) Where the petitioner raises grounds which is not barred under the aforesaid provisions of the Constitution and is not covered in any one of the grounds as prescribed under Section 175(1) of the Himachal Pradesh
Panchayati Raj Act, then the bar of alternate remedy by way of election petition under Section 162 of the Act and further bar under Article 243-O of the Constitution would not be attracted. Even in such cases, the Court will
not normally pass interlocutory orders, which has effect of interrupting, obstructing or protracting the election.â€
(emphasis supplied)
Before High Court of Karnataka, in Smt. Latha Vs. State of Karnataka CWP Nos. 22740-762/2016, rendered on judgment rendered on 06.01.2016, allocation of category-wise reservation to Zila Panchayats for the posts of Pradhans/Up
Pradhans was contended to be in breach of relevant Statute and the Rules providing such reservation. State took up preliminary objection regarding maintainability of the petitions in view of Article 243-O of the Constitution of India. The Court
held that allotment of seats for the post of Pradhans in Zila Panchayat would fall within the ambit and scope of Cluse (a) of Article 243 of Constitution of India, therefore, writ jurisdiction of High Court cannot be invoked. The only remedy
provided and allowed by the Constitution was of an Election Petition before the Competent Authority.
In the lead case, final reservation roster in different Blocks of District Shimla was issued on 14.12.2020. The Election Programme for conduct of general elections to Panchayati Raj Institutions in the State has been notified on 21.12.2020. Th
election process is already underway. Therefore, in view of ratio of Ram Swaroop’s case (supra), more particularly the conclusion drawn in para 33(3) thereof, the bar contained in Article 243-O becomes operative. The writ petitions,
therefore, cannot be considered as maintainable, at this stage.
Considering the above exposition of law, these writ petitions and the grievance(s) raised by the petitioners cannot be looked into at this stage when the elections for various Panchayati Raj Institutions in the State have already been pronounced.
Accordingly, these petitions are dismissed reserving liberty to the petitioners to avail appropriate remedy in accordance with law. Pending applications, if any, also stand disposed of.
Before parting with the judgment, having taken note of methodology adopted by the State in preparing, implementing and rotating the election reservation roster for reservation of offices/Gram Panchayats in elections to the Panchayati Raj
Institutions in the State and various contentions advanced by learned counsel for the parties, we hereby issue following directions to the State to be followed in future :-
(i) In cases of re-organization/bifurcation/separation/creation of Gram Panchayats/Blocks etc., reservation of offices therein should be allocated afresh based upon the ‘changed’ population structure in accordance with relevant
provisions of applicable Statute and the Rules. However, while applying the Election Reservation Roster, proper care should be taken so that reservation roster gets rotated to the maximum extent possible ;
(ii) Grievances of the petitioners with respect to application and rotation of election reservation roster over changed territories of Gram Panchayats/Blocks, howsoever genuine these might be, cannot be examined at this stage when election
process is already underway, in view of bar imposed by Article 243-O of Constitution of India. In such circumstances, we direct the respondent-State to ensure that, in future, the notification reserving offices in the Gram Panchayats/Blocks in
the State for various categories in elections to Panchayati Raj Institutions is published and placed in public domain on the website of State Election Commission at least three months prior to the commencement of election process to enable
timely adjudication of disputes pertaining to application/rotation of election reservation roster. All consequent steps in furtherance of same be also taken accordingly.
With the above observations, all the writ petitions are disposed of in the aforesaid terms.",,,,