M.A.KHAN, J. - (1.) ALL the above writ petitions since were on the same subject matter involving common question of law, hence all the writ petitions were heard together and are being decided by a common judgment.
(2.) PETITIONERS have filed these writ petitions for issue of a direction in the nature of certiorari quashing the Clause 3 and Clause 7 of the G.O. dated 6.6.2005 and further a direction that the provision of Section 11-A (1) third proviso and Section 12 (5) (a) second proviso of U.P. Panchayat Raj Act, 1948; Section 6-A (1) second proviso and Section 7-A (1) third proviso of U.P. Kshetriya Panchayat and Zila Panchayat Act, 1961 being beyond the Legislative competence of the State Legislature/Opposite party No. 1; for further, direction that the provisions of U.P. Panchayats (Determination and Publication of the number of persons belonging to Backward Classes) Rules, 1994 being ultra vires to the provisions of the Constitution of India and further a direction that the provisions of Rule 5 (2) second proviso, third proviso, fourth proviso, fifth proviso and Rule 5 (4) proviso of the U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994 being ultra vires to the provisions of Article 243-D of the Constitution of India as well as Section 11-A of the U.P. Panchayat Raj Act, 1947. Petitioners have further prayed for a direction for withholding and declaring that the provisions of Rule 5 (2) first proviso, second proviso and third proviso and Rule 5 (4) of the U.P. Kshetriya Panchayat and Zila Panchayat (Reservation and Allotment of Seats and Offices) Rules, 1994 being ultra vires of the provisions of Article 243-D of the Constitution of India as well as Sections 6-A and 7-A of the U.P. Kshetriya Panchayat and Zilaj'anchayat Act, 1961; and for further direction that record be summoned pertalrnngToThe-rapkL survey conducted for determination of the number of persons belonging to Backward Classes and the Family Register records of various villages maintained under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It has also inter-alia been prayed to declare the Survey, 2005 as null and void and restrain the Government from acting upon the same for the purpose of Reservation and Allotment of Seats and Offices for Backward Classes for Panchayat Elections. In one of the writ petitions it has also been prayed that a direction be issued to the Central Bureau of Investigation to conduct a thorough investigation into the rapid survey of aforementioned officers and politicians who have manipulated the records and prosecute and punish them in accordance with law and further directions to the Central Government to conduct the survey of the persons belonging to the Backward Classes under Section 17-A of the Census Act, 1948 in the State of Uttar Pradesh. The petitioners in these writ petitions have challenged the G.O. No. 1941/33-1-2005-71/2000, dated 6.6.2005 issued under the Uttar Pradesh Panchayat Raj (Reservation and Allotment of Seats and Posts) Rules, 1994 and Uttar Pradesh Kshettra Panchayat and Zila Panchayat (Reservation and Allotment of Seats and Posts) Rules, 1994 and in particular Clauses 3 and 7 thereof. By proviso to the said Clause 3 it is provided that the Gram Panchayat where Scheduled Castes, Scheduled Tribes or Backward Classes population is more than 50%, reservation for the post of the Pradhan as it will be rotated amongst the Schedule Castes, Schedule Tribes and all Backward Classes persons or Scheduled Castes, Scheduled Tribes and Backward Classes women. According to the petitioners, the reservation and rotation thereof is not only contrary to the main provision of Clause 3 but also in violation of Article 243-D of the Constitution of India. Further Clause 7 of the said G.O. provides that while calculating the posts and seats reserved for Scheduled Caste, Scheduled Tribe and Backward Classes where calculation of the population comes to more than 0.5 it will be read as an added seat and if it is less then 0.5, it will be ignored although there is limit of 27% but in effect this method leads to more than 27%. These provisions of this G.O. are, therefore, violative of provisions of Article 243-D of the Constitution of India; provisions of Clause 3 of the said G.O. and also violative of Articles 14 and 21 of the Constitution of India. Further, Rule 5 (2) of the U.P. Panchayat Raj (Reservation and Allotment of Scats and Offices) Rules, 1994 second proviso, third proviso, fourth proviso and fifth proviso and Rule 5 (4) proviso which are reiteration of G.O. dated 6.6.2005 with further decoration thereof is in violation of Rule 5 (2) and Rule 5 (4) respectively of the Uttar Pradesh Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994 as well as Article 243-D, Articles 14 and 21 of the Constitution of India. Further the provision of Rule 5 (2) first proviso, second proviso and third proviso ana Rule 5 (4) proviso of Uttar Pradesh Kshetriya Panchayat and Zila Panchayat (Reservation and Allotment of Seats and Offices) Rules, 1994 which are again para-materia to Clause 3 proviso of G.P. dated 6.6.2005 are also violative of the provision of Article 243-D, Articles 14 and 21 of the Constitution of India. Further the provisions of Section 11-A (1) third proviso, and Section 12 (5) (a) second proviso of the U.P. Panchayat Raj Act, 1947 and Section 6-A (1) second proviso and 7-A (1) third proviso of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961 is bad in law being beyond the Legislative competence of the State Legislature as the law relating to 'Census' can be legislated by the Parliament of India alone as 'census' is the subject matter of Entry 69 of the List-1 of the Seventh Schedule to the Constitution of India, similarly the Uttar Pradesh Panchayat (Determination and Publication of the Number of Persons belonging to the Backward Classes) Rules, 1994 are also beyond the Legislative competence of the respondent No. 1. The Panchayat Raj in India is an age old institution of local self governance in villages, mention of this institution is found in ancient lustory of our country. In Part-IV of the Constitution, the Directive Principle .of the State Policy (Article 40) provides that the State shall take steps to organise village Panchayat and endow them with such owner and authority as may be necessary to enable them to function as units of self-Government; that the 73rd Amendment to the Constitution in the year 1993 added Part-IX giving effect to the Directive Principles of State Policy. By Part-IX Parliament had sought to provide a self-contained code for the Constitution, reservation of seats, powers, authority, responsibilities and elections to the Panchayat. Article 243-D says that reservation of seats should be made in every Panchayat and posts thereof. The said provision also provides that the seats so reserved shall be rotated through different constituencies in a Panchayat area. Article 243-D reads as under : "243-D. 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 Panchayat 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 any State shall bear, as nearly as may be, the same proportion to the total number of such offices in, the Panchayat at each level as the population of the Scheduled Caste 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 Panchayat 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 provisions for reservation of seats in any Panchayat or Offices of Chairpersons in the Panchayat at any level in favour of Backward Class of citizens."
(3.) IN the State of Uttar Pradesh the reservations to the post of the Pradhan of a Gram Panchayat for Scheduled Castes, Scheduled Tribes and Backward Classes is to be made in accordance with Section 11-A of the United Provinces Panchayat Raj Adhiniyam, 1947 (hereinafter referred to as U.P. Panchayat Raj Act). The said provision was introduced in the year 1994 after the 73rd Amendment of the Constitution. The said provision is reproduced as under : "11-A. Pradhan and Up-Pradhan of Gram Panchayat. - (1) There shall be a Pradhan and a Up-Pradhan of the Gram Panchayat, who shall respectively be the Chairperson and Vice Chairperson thereof (2) The State Government shall, by order reserve offices of Pradhans for the Scheduled Castes, the Scheduled Tribes and the Backward Classes : Provided that the number of offices of Pradlians reserved for the Scheduled Castes, the Scheduled Tribes and the Backward Classes in the State shall bear as nearly as may be, the same proportion to the total number of such offices as the population of the Scheduled Castes in the state or of the Scheduled Tribes in the State or of the Backward Classes in the State bears to the total population of the State : Provided that the reservation for the Backward Classes shall not exceed twenty seven per cent of the total number of offices of Pradhans : Provided also that if the figures of population of the Backward Classes are not available their population may be determined by carrying out a survey in the prescribed manner. (3) Not less than one-third of the total number of offices of Pradhans reserve under sub-section (2) shall be reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes. (4) Not less than one-third of the total number of offices of Pradhans, including the number of offices of Pradhans reserved under sub-section (3), shall be reserved for women. (5) The offices of the Pradhans reserved under this section shall be allotted by rotation to different Gram Panchayats in such order as may be prescribed. (6) The reservation of the offices of Pradhans for the Scheduled Castes and the Scheduled Tribes under the section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution. Explanation. - It is clarified that nothing in this section shall prevent persons belonging to the Scheduled Castes, the Scheduled Tribes, the Backward Classes and the women from contesting election to unreserved seats." ;