MANISH DHARMAIK Vs. STATE OF HIMACHAL PRADESH
LAWS(HPH)-2021-1-42
HIGH COURT OF HIMACHAL PRADESH
Decided on January 06,2021

Manish Dharmaik Appellant
VERSUS
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

JYOTSNA REWAL DUA,J. - (1.) 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
(2.) 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.
(3.) 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." 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 :- 125. 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." 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 :- "87. Reservation of office of Pradhans, Gram Panchayats.- (1) Before every election to a Gram Panchayat the State Government or any other officer authorised by it in this behalf shall in accordance with the provisions of section 125 of the Act, determine the number of the offices of Pradhans of Gram Panchayats to be reserved for Scheduled Castes, Scheduled Tribes and Women in a block. (2) For the purpose of reservation of the offices of the Pradhans the population of general category, Scheduled Castes, Scheduled Tribes and women shall be worked out Gram Sabha-wise and the percentage of Scheduled Castes, Scheduled Tribes and women in relation to the total population of Gram Sabha, shall be determined. (3) In every block the offices of the Pradhans of the Gram Panchayats shall be reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population in the Block. The Gram Sabha having highest percentage of population of Scheduled Castes shall be reserved for the members of the Scheduled Castes and the Gram Sabha having the highest percentage of population of Scheduled Tribes shall be reserved for the Scheduled Tribes. (4) If the number of offices to be reserved for the members of Scheduled Castes or Scheduled Tribes is more than one, then the Gram Sabha having the next highest percentage of population 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 Block is less than 5 % of the total population, then no office shall be reserved. (5) Out of the offices reserved for members of Scheduled Castes and Scheduled Tribes,one-half of the offices shall be reserved for women members belonging to Scheduled Castes and Scheduled Tribes as the case may be, and the Gram Sabha having highest percentage of population of women belonging to Scheduled Castes or Scheduled Tribes, in relation to the total population of Gram Sabha, as the case may be, in a block shall be reserved for such women. (6) If the number of offices to be reserved for women belonging to Scheduled Castes or Scheduled Tribes, as the case may be, is more than one than the Gram Sabha having the next highest percentage of population 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 offices, excluding the offices reserved for Scheduled Castes and Scheduled Tribes (including women belonging to Scheduled Castes and Scheduled Tribes), one-half of the offices shall be reserved for women, and the Gram Sabha having the highest percentage of women population shall be reserved for general women, and so on. (8) The offices 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 Gram Sabha 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 election: Provided that the reservation of any office for a particular category shall not be repeated unless all other offices in the block are covered by rotation: Provided further that the reservation for a particular category shall not be rotated in such a Gram Sabha where the population of that category is less than 5% of the total population of that Gram Sabha. (8-A). Notwithstanding anything contained in these rules, the roster of reservation of offices 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 offices shall be rotated to different Gram Sabhas under this rule. (9) The reservations made under this rule shall be finalised by the State Government or by any officer authorised by it, in this behalf, and shall be given wide publicity by affixing a copy of order of such reservation on the notice board of his office and that of the Gram Panchayat and Panchayat Samiti and shall also send a copy of the same to the Government for publication of the order in the Official Gazette and this notification shall be the conclusive proof of reservations of offices as of Pradhan in the block." 3(ii) Provisions of the Act and the Rules are not under challenge. These provisions govern the reservation of offices in Gram Panchayats for different categories. Under sub Rule 8-A of Rules 28 and 87, year 2010 has been treated as the base election year for the purpose of applying election reservation roster, disregarding reservation of Gram Panchayats in previous elections. 3(ii)(a) First exercise is determination of number of offices of Pradhan of Gram Panchayats to be reserved for Scheduled Castes, Scheduled Tribes and Women in a Block. The number is determined in accordance with the provisions of the Act and the Rules. The number is dependent upon various factors, including the population. Population census 2011 is the foundation for carrying out the exercise for 2020-2021 elections. Population of different categories is worked out Gram Sabha-wise and this percentage is determined in relation to total population of Gram Sabha. 3(ii) (b) In every Block, offices of Pradhans of Gram Panchayats, shall be reserved for Scheduled Castes and Scheduled Tribes in proportion to their population in the Block. Gram Sabha having the highest percentage of population of Scheduled Castes shall be reserved for Scheduled Castes and Gram Sabha having highest percentage of Scheduled Tribe population shall be reserved for Scheduled Tribes. If number of offices required to be reserved for Scheduled Castes or Scheduled Tribes is more, then Gram Sabha having the next highest percentage of population of these categories in the descending order shall be reserved for members of Scheduled Castes and Scheduled Tribes. 3(ii)( c) However, no office shall be reserved for Scheduled Castes and Scheduled Tribes in case their population in a Block is less than 5% of the total population. 3(ii)(d) Half of the offices reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women belonging to these categories in the Gram Sabha with the highest percentage of population of women in relation to total population of Gram Sabha in the descending order. 3(ii)(e) Out of total offices, excluding the offices reserved for Scheduled Castes and Scheduled Tribes (including women belonging to Scheduled Castes and Scheduled Tribes), one half of offices, shall be reserved for women in the Gram Sabha with the highest percentage of women population belonging to general category in the descending order. 3(ii)(f) Offices reserved for Scheduled Castes, Scheduled Tribes, women belonging to Scheduled Castes, Scheduled Tribes and General category, on the basis of percentage of population will be rotated after every five years from the date of first election. Year 2010, under the Rule 87(8-A) has been taken as the base election year for the purpose of applying and rotating election reservation roster. Therefore, treating 2010 as the base year, at the time of conduct of next elections in 2015 and all subsequent elections, Gram Sabhas having the next highest percentage of population shall be reserved for members of Scheduled Castes and Scheduled Tribes, including women belonging to these categories and belonging to general category. 3(ii)(g) First Proviso attached to Rule 87(8) says that reservation of any office for a particular category shall not be repeated unless all other offices in the Block are covered by rotation. The second proviso says that reservation for a particular category shall not be rotated in a Gram Sabha where population of that category is less than 5% of total population of Gram Sabha. ;


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