JUDGMENT
S.S. Nijjar, J.
1. Petitioner, Rajiv Kumar belongs to a Backward Class. He contested the election to the Municipal Committee, Safidon against a seat reserved for candidates belonging to Backward Classes. The elections were held on April 02, 2000 and he was declared elected.
2. A Notification was issued on April 19, 2000 whereby it was notified that the office of the president of the Municipal Committee, Safidon shall be filled up from the women members belonging to the Backward Class. However, by a notification dated 28,12.1994 it was provided that if a woman candidate of the reserved category is not available then the office of the president would be Tilled by a male member of the same reserved category. As no woman candidate belonging to Backward Class was elected on April 02, 2000, the office of the president was occupied by the petitioner. The election of the petitioner as president of the Municipal Committee, Safidon was duly notified by the Govt. vide notification dated July 12, 2000. By virtue of Section 18 of the Haryana Municipal Act, 1973 (hereinafter referred to as “the Act”), the term of the office of president shall be for a period of five years or for the residue period of his office as a member, whichever is less. Section 20 of the Act provides that the President or the Vice President may resign his office. Section 21 of the Act provides that the President or Vice President shall be deemed to have vacated the office, if a motion of no-confidence is passed against him/her. Under Section 22 of the Act, the State Government has the power to remove the President or Vice President on the ground of abuse of his power or habitual failure to perform his duties. The Haryana Municipal Election Rules, 1978 (hereinafter referred to as ‘the Rules’) have been framed under the enabling provisions of the Act. There was no provision in the Act or under the Rules, for replacement of a president by another candidate. As noticed earlier, no female candidate had been elected at the time when election was held on April 02, 2000. Subsequently, however, on bye-election, respondent No. 5 was elected on August 19, 2002. On her being elected, the respondent Govt. of Haryana vide notification dated October 03, 2002 appointed respondent No. 5 as the president of the Municipal Committee, Safidon. This notification resulted in the removal of the petitioner from the office of the president. He was, therefore, constrained to challenge the appointment of respondent No. 5 as president of the Municipal Committee, Safidon, by way of Civil Writ Petition No. 16274 of 2002. A Division Bench of this Court vide judgment dated January 23, 2003 was pleased to declare the Govt. notification dated October 03, 2002 and the action taken by respondent No. 2 in pursuance of the Govt. notification as illegal. The writ petition was allowed and the petitioner was directed to continue as the President of the Municipal Committee, Safidon. In the judgment delivered by the Division Bench, it was observed as follows;-
“Sh. Jaswant Singh, Sr. Deputy Advocate General, Haryana tried to defend the impugned notification and letter by arguing that the appointment of respondent No. 5 was notified with a view to give effect to the mandate of Article 243-T of the constitution of India, but we have not felt impressed. As mentioned above, there is no provision in the Act under which a duly notified President can be removed from his office by way of replacement. If the Legislature intended to replace a duly elected male member of the reserved category from the office of the President on account of subsequent election of a family member of that category, then a provision to that effect would have been incorporated in the year 1994 when the Act/Rules was/were amended keeping in view the provisions of Part IX-B of the Constitution of India. However, the fact of the matter is that no such amendment was made. Therefore, there is no escape from the conclusion that the appointment of respondent No. 5 as President of the Municipal Committee and notification thereof is ultra vires to the provisions of the Act and is liable to be quashed.”
3. It appears that in obedience to the observations made by the Division, the Haryana Govt. set in motion the procedure for making the necessary amendments in the Rules. Before amendment Proviso (4) of Rule 70 provided as under;-
“Provided further that not less than one third of the total number of offices of the president in the municipalities shall be reserved for women including the offices reserved for Scheduled Castes and Backward Classes women. The reservation of offices for women shall rotate to different municipalities which will be determined by draw of lots, by a committee consisting of the Director, Local Bodies and Deputy Commissioners of the districts concerned or their nominee. If women of the reserved category are not avaitable, then the office of the president shall be filled up from the male member of the said reserved category”.
4. Under this provision, the petitioner on being elected, occupied the office of President. This proviso had on provision that on the subsequent election of a woman of a reserved category, the office would be offered to the woman candidate. In view of the aforesaid lacuna which was pointed out by the Division Bench of this Court, the Haryana Govt. amended the aforesaid provision vide notification dated June 19, 2003 which reads as follows;-
2. In the Haryana Municipal Elections Rules, 1978, in Rule 70 in sub Rule (4) on the second proviso, the following words shall be added at the end, namely;-
In case a woman of the reserved category is elected subsequently, then the office of the President shall be deemed to have been vacated and the elected woman shall be elected as president in accordance with the provisions of these rules.”
5. Acting under this notification, the respondent appointed respondent No. 5 as the President of the Municipal Committee. Hence, the present petition.
6. Shri Kapoor learned Senior Advocate has argued that the notification dated June 19, 2003 is contrary to the statutory provisions which provides that the tenure of office of the president shall be five years or the remaining period of the tenure whichever is less. The petitioner having been duly elected for the office of President could not be directed to vacate the office, except under Sections 20, 21 or 22 of the Act. Accordingly to the learned counsel the notification is contrary to the main provisions and, therefore, liable to be quashed.
7. Learned counsel for the State of Haryana Shri R.D. Sharma and Shri Aggarwal, Senior Advocate for respondent No. 5 have submitted that the notification has been issued in obedience to the observations made by this Court in the judgment which was rendered in Civil Writ Petition No. 16274 of 2002 – Rqjiv Kumar v. State of Haryana and Ors. It has also been submitted that the office of president in this particular municipality is reserved for women belonging to Backward Class. The petitioner was permitted to occupy the office of president in default as no woman was elected belonging to this category.
8. We have considered the submissions made by the learned counsel for the parties. We are of the opinion that the notification dated June 19, 2003 (Annexure P-5) does not suffer from any legal infirmity. The notification in fact confirms to the mandate contained in Article 243-T of the Constitution of India. The earlier action of replacing the petitioner by respondent No. 5, was declared illegal as there was no provision in the Act or the Rules to replace the candidate who was occupying the office of president in the absence of a female candidate belonging to the particular category. This lacuna has now been filled by the necessary amendment which has been made by duly following the procedure prescribed under the Act.
9. Under the amended provisions respondent No. 5 is entitled to hold the office of president of the Municipal Committee, Safidon having been subsequently elected in the bye-election. The petitioner had also made allegations of male fide against the respondent-State. In Paragraph 23 of the writ petition, it has been averred that action has been taken against the petitioner because he belongs to Congress Party, whereas the Govt. in Haryana has been formed by Indian National Lok Dal. These allegations have been denied by the respondent. In the written statement filed by respondent No. 5, it has been stated that the petitioner in fact belongs to Ruling Indian National Lok Dal. He is also stated to be very close to the sitting MLA. No replication has been filed to these categoric averments. Therefore, we do not find any substance in the submissions made by Shri Kapoor that the notification Annexure P-5 has been issued in mala fide exercise of power.
10. In view of the above, we find no merit in this writ petition and the same is dismissed with no order as to costs.
Sd/-
S.S. Grewal, J.