F.A.O No.4806 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
F.A.O No.4806 of 2009
Date of Decision: 06.10.2009
Harkesh Chand
....Appellant
Versus
Jaswinder Kaur and others
...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Arvind Kashyap, Advocate
for the appellant.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is an appeal filed against the impugned Order dated
29-07-2009 passed by the Election Tribunal under Punjab State Election
Commission Act, 1994, vide which, the election petition filed by respondent
No.1 was accepted and the election of the present appellant was set aside.
The facts, in short, are that the respondent and the appellant
contested elections on 26-05-2008 for the post of Panch (General
Category) from Gram Panchayat, Village Channo. The respondent, herein,
polled 118 votes and the present appellant was polled only 37 votes. The
F.A.O No.4806 of 2009 2
present appellant was, thereafter, wrongly declared elected. Jaswinder
Kaur challenged the said election.
Learned counsel for the appellant does not dispute that
respondent No.1-Jaswinder Kaur was polled 118 votes while the appellant
was polled only 37 votes. The only ground on which the order setting aside
the election of appellant has been challenged is that the respondent-
Jaswinder Kaur, did not comply with Section 77 of the Punjab State
Election Commission Act, 1994 (here-in-after referred to as `the Act’) and
did not implead all the contesting candidates, which was mandatory as per
Section 77 of the Act. It was further argued that the nomination papers of
Jaswinder Kaur, was filed for the post of Panch General Category
(Woman), therefore, she could not have been declared elected against the
post of Panch General Category.
Learned counsel for the appellant has been heard.
Learned counsel for the appellant does not dispute that there
was no other candidate who had more votes than the appellant except
respondent No.1. In view of this admitted position, the only affected person
is the appellant, who was duly impleaded as party. Learned counsel for the
appellant has not brought to the notice any case law suggesting that
Section 77 of the Act is mandatory, even when no relief is sought against
the other candidates and are not affected as in the facts of the present
case.
The second argument of learned counsel for the appellant that
Jaswinder Kaur having filed the nomination papers for the post of Panch
General Category (Woman) could not have been declared elected against
the post of Panch General Category, cannot be accepted, in view of the
settled legal proposition of law. The Apex Court, in the judgment, rendered
in the case of Bihari Lal Rada v. Anil Jain (Tinu) & Ors. JT 2009(2) SC 455,
is one such case. The respondent, therein, challenged the said election of
F.A.O No.4806 of 2009 3
the appellant mainly on the ground that as per the Notification issued by
the Competent Authority, the office of the President of Municipal Council,
Hisar, had been reserved for general category candidate and the same
was to be filled in from amongst the members belonging to general
category. Meaning thereby, for the office of the President of Municipal
Council, Hisar only the members elected from the general category had a
right and not the members elected from Backward Class category. In the
facts of that case, it was held as follows :-
” There is nothing in the provisions of the
Act, 1973 suggesting that in case the office of the
President of a Municipality is required to be filled in
from the members belonging to the general
category then only a member who has been
elected as such from an unreserved ward alone
can stand for election. There is nothing in law that
a person belonging to Backward Class and got
himself elected from a ward reserved for that class
is debarred from contesting the election to the
office of President/Chairperson when that office is
not reserved and meant to be filled in from the
members belonging to the general category.33. In our view, wherever the office of the
President of a Municipality is required to be filled in
by a member belonging to Scheduled Caste,
Scheduled Tribe or Backward Class as the case
may be, it would be enough if one belongs to one
of those categories irrespective of the fact whether
they have been elected from a general ward or a
reserved ward. Likewise, the office of the President
of a Municipality if not reserved or meant for
general category, all the candidates irrespective of
their caste, class or community and irrespective of
the fact whether they have been elected from a
reserved ward or a general ward are entitled to
seek election and contest to the office of the
President of the Municipality.”F.A.O No.4806 of 2009 4
Similar view has also been expressed by a Division Bench of
this Court in the case of Sampuran Singh (supra). In that case, the
controversy was, whether a Panch, who was elected as such against the
seat reserved for General Category, is eligible to contest the election of the
office of Sarpanch, which is reserved for the category of Scheduled Caste.
The Division Bench, while relying upon the judgment of Hon’ble the Apex
Court, mentioned above, held :-
” We are of the opinion that a Panch belonging to
the Scheduled Caste is eligible to contest the election
of the office of Sarpanch, which is reserved for
Scheduled Caste by producing a Scheduled Caste
Certificate. He cannot be prevented to contest the
election only on the ground that he was elected as
Panch against the seat reserved for General
Category.6. A bare reading of Sub Section (1) of Section
12 of the Panchayati Raj Act, 1984 makes it clear that
the number of the offices of Sarpanch of the Gram
Panchayat in the district shall be reserved for
Scheduled Castes proportionately to the population of
the Scheduled Castes in the District. This Section
does not provide that only a Panch, who has been
elected as such against the seat reserved for
Scheduled Caste can only contest the election of the
office of Sarpanch, which is reserved for the category
of Scheduled Caste.”Section 55 of the Act reads as under :-
“55. Eligibility of members of Scheduled
Castes to hold seats not reserved for those
castes.- For the avoidance of doubt, it is hereby
declared that a member of the Scheduled Castes
shall not be disqualified to hold a seat not
reserved for members of those castes, if he is
otherwise qualified to hold such seat under the
Constitution of India and this Act.”
F.A.O No.4806 of 2009 5
On perusal of the above as well as taking into account the law,
laid down by Hon’ble the Supreme Court, there is no bar on a candidate
being a `woman from general category’ to contest the election against the
post of `general category’. There is nothing called reservation for General
Category. Admittedly, it was a post of general category. No distinction as to
whether it was for only male (general category) or female (general
category) was provided. It is apparent that even a candidate belonging to
any other reserved category as also a woman belonging to general
category, if otherwise eligible cannot be disqualified against general
category. The present case is even better because the finding has been
recorded by the Tribunal that Jaswinder Kaur had, in fact, filed her
nomination papers against the post of general category.
In view of the above, the appeal is dismissed being devoid of
merits.
(NIRMALJIT KAUR)
06.10.2009 JUDGE
gurpreet