Mohit Negi vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

Heard Mr. Pankaj Miglani, learned counsel for the petitioner, Mr. Pradeep Joshi, learned Standing Counsel appearing for the State of Uttarakhand

and Mr. Sanjay Bhatt, learned Standing Counsel appearing for the State Election Commission. Though notice was served on the fourth respondent,

she has chosen not to enter appearance through counsel or appear in-person; and, as such, the Writ Petition is disposed of in her absence.

The Public Interest Litigation jurisdiction of this Court has been invoked by the petitioner herein seeking a writ of certiorari to have the Government

Orders dated 20.10.2019 and 29.10.2019 quashed.

The petitioner claims to be an agriculturalist, to be a resident of village Vishnu Ghal, P.O. Bhogpur in Dehradun district, and to be earning his

livelihood carrying on agricultural operations. He has filed this Writ Petition, allegedly in larger public interest, questioning the change in the policy of

the Government regarding the district-wise reservation of Chairpersons of Zila Panchayats for the purpose of elections whereby the post of

Chairperson of Zila Panchayat in Dehradun district has been allotted to Scheduled Tribes (women) candidates. The petitioner claims that the Writ

Petition pertains to lack of good governance, and falls within the ambit of Rule 3(3)(A) of the PIL Rules of this Court.

It is the petitioner’s case that, while the process of the three Tier Panchayati Raj Elections was in progress, the Government Order dated

20.10.2019 was issued tentatively determining one post of Chairperson in Dehradun district to be allotted to the Scheduled Tribes; and, on objections

being invited to the said Government Order, he submitted his representation on 23.10.2019 which was rejected by proceedings dated 29.10.2019.

Questioning both these orders dated 20.10.2019 and 29.10.2019, the jurisdiction of this Court, under Article 226 of the Constitution of India, has been

invoked.

Mr. Pankaj Miglani, learned counsel for the petitioner, would submit that reserving the post of Chairperson, Dehradun Zila Panchayat, in favour of

Scheduled Tribes (women), is not only contrary to the provisions of Article 243-D(4) of the Constitution, but is also in violation of Rule 3 of the

Reservation Rules, 1994 (for short the “1994 Rulesâ€) as well as the Government Order dated 13.08.2019, which prescribes the procedure for

reservation and allotment of the post of Chairperson, Zila Panchayat; in terms of the 1994 Rules, it is only if the percentage of population of the

Scheduled Tribes exceeds 0.50% of the total population of the State, can reservation be provided in their favour; it is not in dispute that the total

population of the Scheduled Tribes in the State of Uttarakhand is merely 0.38%; consequently, no post of Chairperson, Zila Panchayat could have

been reserved in favour of the Scheduled Tribes; to overcome this hurdle, the State Government had added the percentage of population of the

Scheduled Tribes, vis-Ã -vis the population of the entire State, in the last four Panchayati Raj Elections together, to arrive at a figure of more than one

percent, and has reserved the Dehradun Zila Panchayat in favour of the Scheduled Tribes; even if one post of Chairperson was required to be

reserved in favour of the Scheduled Tribes, the post of Chairperson, Zila Panchayat, Udham Singh Nagar district should have been reserved, since the

population of the Scheduled Tribes in that district is higher than the population of the Scheduled Tribes in Dehradun district; and the change in policy

was introduced after the election notification was issued.

On the other hand Mr. Pradeep Joshi, learned Standing Counsel appearing for the State, would submit that in the past three Panchayati Raj

Elections held in 2003, 2008 and 2014, after the State of Uttarakhand was created, not even a single post of Chairperson, Zila Panchayat has been

reserved in favour of the Scheduled Tribes; the respondents have not violated their constitutional obligations under Article 243-D(4) of the

Constitution; if the formula prescribed in the Rules were to be read in isolation, then no post of Chairperson, Zila Panchayat in the State of

Uttarakhand can ever be reserved in favour of the Scheduled Tribues; the PIL jurisdiction of this Court cannot be permitted to be invoked for

adjudication of this issue; it is always open to a person aggrieved, or a person who intended to contest the elections, to question the same in

appropriate legal proceedings; and, since the State Government had reserved one post of Chairperson, Zila Panchayat in favour of the Scheduled

Tribes which is in the larger public interest of providing adequate representation to the Scheduled Tribes (women), no interference is called for.

Article 243-D, in Part-IX of the Constitution of India, relates to reservation of seats and, in terms of Article 243-D(1)(b), seats are to be reserved in

favour of 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 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 that Panchayat. Article 243-D(4) stipulates that

the offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Tribes in such manner as the

Legislature of a State may, by law, provide. Under the proviso thereto, the number of offices of Chairpersons reserved for 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 Tribes in the State bears to the total population of the State.

The State of Uttarakhand has 13 districts, and consequently there are 13 posts of Chairpersons of Zila Panchayats in the State. It is not in dispute

that, ever since the State of Uttarakhand was created on 09.11.2000, there has not been a single occasion where even one post of Chairperson of the

Zila Panchayat has been reserved in favour of the Scheduled Tribes. While certain persons, belonging to the Scheduled Tribes, have, no doubt, been

elected as the Chairperson of the Zila Panchayat in the earlier elections, they were all elected under the general category, since none of these 13

offices of Chairpersons of the Zila Panchayat were reserved in favour of the Scheduled Tribes in any of the previous elections (prior to 2019) on the

ground that the total population of the Scheduled Tribes in the State of Uttarakhand was less than 0.5% of the total population of the State.

It is evident from the counter-affidavit filed by the respondents that the population of the Scheduled Tribes in the State of Uttarakhand, during the

Panchayat elections held in 2003 was 0.45%; during the 2008 Panchayati Raj Elections, it was 0.39%; and in the 2014 Panchayati Raj Elections, the

population of the Scheduled Tribes in the State was 0.38% of the total population of the State. The petitioner contends that, since the population of the

Scheduled Tribes in the State of Uttarakhand in the year 2019 also was 0.38% of the total population of the State, no reservation could have been

provided in favour of the Scheduled Tribes even in this election.

The proviso to Article 243-D(4) of the Constitution of India requires the number of offices of Chairpersons reserved for the Scheduled Tribes in

the Panchayats at each level in any State to 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 Tribes in the State bears to the total population of the State.

The emphasis in the proviso is on the words “as nearly as may be†of the percentage of population. It is evident therefrom that the number

of posts of Chairpersons of the Zila Panchayat, to be reserved in favour of the Scheduled Tribes, need not, therefore, be determined with

mathematical precision. The counter-affidavit filed by the respondents also shows that the Scheduled Tribe population in Dehradun district, as per the

2011 census, was 18.45% of the total rural population of the district despite which, on account of their presence in much smaller numbers in most of

the other districts of the State, reservation could not be provided in their favour in any of the earlier Panchayati Raj Elections.

While the submission of Mr. Pankaj Miglani, learned counsel for the petitioner, that the procedure adopted by the respondents, to add the

percentage of previous three elections to the percentage of population in 2019 to bring it above 1% only to reserve one seat of Chairperson, Zila

Panchayat, does not accord, on a strict construction, with the provisions of the Panchayati Raj Act and the Rules made thereunder, is not without

merit, the fact remains that reservation of the office of Chairperson of the Zila Panchayat, in favour of the Scheduled Tribes, is required to be

provided in accordance with Article 243-D(4) of the Constitution, and its proviso. What the proviso to Article 243-D(4) requires is not a

mathematically precise determination of the percentage of population of the Scheduled Tribes vis-Ã -vis the percentage of the entire State, but for

such population of the Scheduled Tribes to be determined “as nearly as may beâ€​ in proportion to the population of the State.

Accepting the submission urged on behalf of the petitioner, would mean that no post of Chairperson, Zila Panchayat can ever be reserved in

favour of the Scheduled Tribes, despite their presence in large number in Dehradun and Udham Singh Nagar districts of the State of Uttarakhand.

The contention that the population of the Scheduled Tribes in Udham Singh Nagar district is higher than the population of the Scheduled Tribes in

Dehradun district is based on the 2001 census. The counter-affidavit, however, refer to the population of the Scheduled Tribes, as per the subsequent

2011 census, in district Dehradun to be 18.45% of the total rural population of the State, whereas the percentage of population of the Scheduled Tribes

in Udham Singh Nagar district is less ie it is 12.72% of the total rural population of the State.

The jurisdiction of this Court is exercised only in furtherance of the interest of justice and in larger public interest, and not merely on a legal point

being made out. The interest of justice and the public interest coalesce. They are very often one and the same. The Court has to keep public interest

in view while exercising its discretionary powers. (Ramniklal N. Bhutta v. State of Maharashtra: AIR 1997 SC 123;6 Manohar Lal v. Ugrasen &

others: (2010) 11 SCC 557; Master Marine Services Pvt. Ltd v. Metcalfe and Hodgkison Pvt. Ltd: (2005) 6 SCC 13;8 Air India Ltd. v. Cochin

International Airport Ltd: (2000) 2 SCC 617). This Court would refrain from interference save larger public interest. A writ of mandamus and a writ

of certiorari are discretionary, unlike a writ of habeas corpus which can be sought as a matter of right. One of the principles inherent is that the

exercise of discretionary power should be for the sake of justice and, if interference would result in greater harm to society, then this Court may

refrain from exercising the power. (State of Maharashtra v. Prabhu: (1994) 2 SCC 481).

Even if a legal flaw might be electronically detected, this Court would not interfere save manifest injustice or unless a substantial question of public

importance is involved. (Rashpal Malhotra v. Mrs. Saya Rajput: AIR 1987 SC 223 5and Council of Scientific and Industrial Research v. K.G.S. Bhatt:

AIR 1989 SC 1972). Even when some defect is found in the decisionâ€"making process, this Court would exercise its discretion with great caution

and only in furtherance of public interest, and not merely on the making out of a legal point. Only when it comes to the conclusion that overwhelming

public interest requires interference, should it intervene. (Air India Ltd. v. Cochin International Airport Ltd: (2000) 2 SCC 617.) One of the limitations

imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow

itself to be turned into a Court of appeal to set right supposed errors of law which do not occasion injustice. (Sangram Singh v. Election Tribunal,

Kotah: AIR 1955 SC 425).

Reservation of one post of Chairperson of the Zila Panchayat in favour of the Scheduled Tribes, should be considered bearing in mind that, ever

since the State of Uttarakhand was created two decades ago, not even one post of Chairperson, Zila Panchayat has been reserved in favour of the

Scheduled Tribes in any of the earlier three Panchayati Raj Elections. The endeavour of the State Government is to provide reservation in atleast one

post of the Chairperson, Zila Panchayat in favour of the Scheduled Tribes at least in the present elections (2019 elections). As the jurisdiction which

this Court exercises, under Article 226 of the Constitution of India, is discretionary, and this Court would not, save substantial injustice being caused,

interfere even if a legal flaw were to be electronically detected, we see no reason to exercise discretion under Article 226 of the Constitution of India,

to interfere.

In this context it must also be borne-in-mind that it is not even the petitioner’s case that he intended to contest the elections to the office of the

Chairperson of the Zila Panchayat. He claims to be espousing this cause in larger public interest as a resident of Dehradun district. We see no reason

to entertain this Writ Petition, as a Public Interest Litigation, at the behest of the petitioner, who has not even stated that he intended to contest the

elections to the office of Chairperson, Zila Panchayat, Dehradun, more so as it cannot be said that larger public interest would not be served by

reserving one post of Chairperson of the Zila Panchayat in favour of the Scheduled Tribes, when they have not been extended the benefit of

reservation in the earlier three elections held in the State during 2003, 2008 and 2014.

The Writ Petition fails and is, accordingly, dismissed. No costs.