IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.11373 of 2008
DATE OF DECISION: SEPTEMBER 10, 2008
Savinder Kaur and others
.....PETITIONERS
Versus
The State of Punjab and others
....RESPONDENTS
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
---
Present: Mr. T.P.Singh, Advocate,
for the petitioners.
Mr.N.S.Virk, Addl.A.G., Punjab,
for the respondents.
..
SATISH KUMAR MITTAL, J.
Six out of seven elected members of Gram Panchayat of
Village Rampura, Block Verka, District Amritsar, have filed this writ
petition under Articles 226/227 of the Constitution of India for issuance of
a writ in the nature of Certiorari for quashing the corrigendum dated
23.6.2008 (published in the Punjab Government Gazette dated 24.6.2008),
issued by the Deputy Commissioner, Amritsar (respondent No.3 herein),
whereby the reservation for the office of Sarpanch of Gram Panchayat of
Village Rampura, Block Verka has been changed from `Women’ to
`Scheduled Caste’, being illegal, arbitrary and mala fide; with a further
prayer for issuing direction to the respondents to hold the election for the
office of Sarpanch of the said Gram Panchayat after restoring the office of
Sarpanch to the category of `Women’, which was so reserved in the
previous Notification dated 8.5.2008 published in the Punjab Government
C.W.P. No.11373 of 2008 -2-
Gazette dated 14.5.2008.
Village Rampura falls in Block Verka (District Amritsar)
which consists of 94 villages, including village Hair. As per notification
issued under Section 10 of the Punjab Panchayati Raj Act (hereinafter
referred to as `the Act’), Gram Panchayat of Village Rampura consists of
seven Members (Panches). Vide notification dated 12.2.2008 issued under
Section 11 of the Act, out of seven seats of Panches, two seats were
reserved for General Category, one seat for Scheduled Caste (Woman),
three seats for Scheduled Castes and one seat for Woman. Vide
notification dated 8.5.2008 issued by the Deputy Commissioner (as
published in the Punjab Government Gazette dated 14.5.2008), the Offices
of Sarpanches of all the 94 villages of Block Verka were reserved for
different categories for block-wise as per the provisions of Section 12 of
the Act read with Rule 3 of the Punjab Reservation for the Offices of
Sarpanches of Gram Panchayats and Chairman and Vice Chairmen of
Panchayat Samitis and Zila Parishads Rules, 1994 (hereinafter referred to
as `the Rules’). As per this notification, the office of Sarpanch of village
Rampura, Block Verka has been reserved for the category of `Women’ and
the office of Sarpanch of village Hair was reserved for the category of
`Scheduled Caste’. Thereafter, the election of the Gram Panchayat of
village Rampura was held on 26.5.2008. The six petitioners along with one
Lat Singh were elected as Panches of the Gram Panchayat.
As per Section 13-A of the Act, after notification of the
election of Panches, the Deputy Commissioner is required to authorize
any officer or official of the State Government for convening the first
meeting of the Gram Panchayat for the election of Sarpanch amongst the
C.W.P. No.11373 of 2008 -3-
Members of the Gram Panchayat as per the reservation notified under
Section 12 of the Act. Suddenly before convening of the first meeting and
the election of the Sarpanch, on 23.6.2008, Deputy Commissioner,
Amritsar (respondent No.3 herein) issued a corrigendum (published in
Punjab Government Gazette dated 24.6.2008) under Section 12 of the Act
read with Rule 3 of the Rules changing the reservation of the office of
village Rampura from the category of `Women’ to `Scheduled Caste’. Vide
this notification, the office of Sarpanch of village Hair has also been
changed from `Scheduled Caste’ to `General Category’. Immediately, on
4.7.2008, the petitioners filed this petition challenging the said action of
the Deputy Commissioner, being illegal, arbitrary and mala fide.
After notice of motion, on 14.7.2008, the following interim
order was passed by this Court:-
“In the meanwhile, the constitution of the Panchayat and the
election of the Sarpanch shall be subject to the final decision
of this petition.”
In the written statement filed on behalf of respondents No.3
and 4, the respondents have not disputed the aforesaid factual position, but
denied that the said corrigendum was issued illegally and arbitrarily or at
the instance of the Minister of the Punjab Government. In para 10 of the
written statement, it has been stated that the impugned corrigendum was
issued by respondent No.3 on the recommendation of the District
Development and Panchayat Officer, Amritsar (respondent No.4 herein),
copy of which has been annexed as Annexure R-1. In Annexure R-1, it has
been stated that the residents of village Hair Hadbast No.347 had made the
request for changing the reservation of the office of Sarpanch from
Scheduled Caste to General on the ground that the population of
C.W.P. No.11373 of 2008 -4-
Scheduled Castes in the village was less. Accepting the said request, the
recommendation was made for changing the reservation of office of
Sarpanch of Village Gram Panchayat Hair from Scheduled Caste to
General. Regarding village Rampura, it has been stated that the office of
Sarpanch of this village was changed from Women to Scheduled Caste as
Scheduled Castes population in the village was more, though nobody from
village Rampura had made any request for change of the office of
Sarpanch.
It is the case of the petitioners that the reservation of the
offices of Sarpanches of the villages falling in Block Verka, vide
notification dated 8.5.2008 was correctly made as per the amended sub-
rule (3) of the Rules and also as per the roster prepared by the Deputy
Commissioner block-wise. He submits that in the year 1998 the office of
Sarpanch in village Rampura was reserved for the category of Scheduled
Caste and in the year 2003, it was reserved for General Category,
therefore, this time the office was rightly reserved for the category of
Women. Learned counsel further submits that a perusal of the notification
dated 8.5.2008 shows that first 26 villages (from serial No.1 to 26) in
block Verka were reserved for Scheduled Castes and thereafter villages
from serial Nos.27 to 39 were reserved for Scheduled Caste (Women) and
villages from serial Nos.40 to 58, except serial No.50, were reserved for
the category of Women. Village Hair is at serial No.13, which was
reserved for Scheduled Caste and village Rampura is at serial No.56,
which was reserved for Women. The said reservation of the offices of
Sarpanches was made block-wise in consonance with Section 12 of the Act
and in view of the amended Rules (as out of 94 villages falling in Block
C.W.P. No.11373 of 2008 -5-
Verka, 31 Offices of Sarpanches have been reserved for Women (including
Scheduled Castes (Women). But, subsequently the Deputy
Commissioner at the behest of a local Minister, has illegally changed the
reservation of the office of the Sarpanch vide impugned corrigendum
which actually has resulted into reduction of seats of reserved categories of
Women from 1/3rd, which is in violation of Section 12(3) of the Act.
Learned counsel submitted that the office of Sarpanch of
village Hair was never reserved for the category of Scheduled Caste except
by notification dated 8.5.2008. Therefore, the same was rightly reserved by
the Deputy Commissioner by rotation for the category of Scheduled
Castes, but vide impugned corrigendum, in order to give undue benefit to
some persons of village Hair, Deputy Commissioner, Amritsar has
changed the category of the office of Sarpanch of the said village from
Scheduled Caste to General without any justification. Learned counsel
further submitted that after the election of Panches was over, the Deputy
Commissioner was having no jurisdiction to change the reservation of the
office of only two villages without there being any mistake in the
reservation notified earlier. Learned counsel submitted that the impugned
action of the respondents is totally illegal, arbitrary, without jurisdiction
and in violation of Section 12(3) of the Act and Article 243D(4) of the
Constitution of India.
Counsel for the respondents, while referring to the reasons
given in the written statement, has tried to justify the impugned
corrigendum being legal and valid and the same being issued as per the
provisions of the Act and the Rules made thereunder.
After hearing the counsel for the parties and perusing the
C.W.P. No.11373 of 2008 -6-
record of the case, we are of the opinion that this writ petition deserves to
be allowed and the impugned corrigendum is liable to be quashed.
Article 243D of the Constitution of India provides that in
every Panchayat the seats shall be reserved for (1) the Scheduled Castes;
and (b) the Scheduled Tribes, 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. Clause
(2) provides that not less than one-third of the total number of seats under
clause (1) shall be reserved for women belonging to the Scheduled Castes
or, as the case may be, the Scheduled Tribes. Clause (3) further provides
that not less than one-third 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.
Clause (4) further provides that the offices of the Chairpersons in the
Panchayats at the village or any other level shall be served for Scheduled
Castes, the Scheduled Tribes and women in such manner as the Legislative
of a State may, by law, provide. Proviso to this clause provides 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 and that the number
of offices reserved under this clause shall be allotted by rotation to
different Panchayats at each level.
In view of the aforesaid provisions, the State of Punjab has
enacted the Punjab Panchayati Raj, Act, 1994. Section 12 of the Act
C.W.P. No.11373 of 2008 -7-
provides for reservation of seats for the the office of Sarpanch, which reads
as under:-
“12. Reservation of seats for the office of Sarpanch.-(1)
Offices of Sarpanch of Gram Panchayats in the district shall
be reserved for Scheduled Castes and the number of such
offices shall bear, as nearly as may, the same proportion to the
total number of offices of Sarpanches in the district as the
population of Scheduled Castes in the district bears to the
total population of the district:
[Provided that not less than one-third of the total number
of offices of Sarpanch of Gram Panchayats in the district shall
be reserved under sub-section (1) shall be reserved for women
belonging to the Scheduled Castes.]
(2) Not less than one-third of the total number of offices of
Sarpanches in the district shall be reserved for women
including such offices, reserved for women belonging to
Scheduled Castes under sub-section (1).
(3) There shall be no reservation in the offices of Sarpanches
for Backward Classes.
(4) The offices reserved under this section shall be allotted by
rotation to the different Gram Panchayats at the time of every
general election in such manner as may be prescribed.
Explanation- For the removal of doubts it is hereby declared
that the principle of rotation for the purpose of reservation of
offices under sections 2 and 12 shall commence from the first
election to be held after the commencement of this Act.”
State of Punjab has also framed the Rules for the reservation of Offices of
Sarpanches in order to implement the reservations contained in Section 12
of the Act. Rule 3 of the Rules which provides for reservation of the seats
of the Offices of Sarpanches, is reproduced hereunder:-
“3. Reservation of seats for the offices of Sarpanches.
(Sections 12 and 107)- (1) The Deputy Commissioner shall,
by notification in the official Gazette, reserve the offices of
C.W.P. No.11373 of 2008 -8-the Sarpanches of Gram Panchayats for the persons belonging
to Scheduled Castes (including one-third women belonging to
Scheduled Castes) in the same proportion as the population of
the Scheduled Castes in the district bears to the total
population of the district. The offices of Sarpanches of Gram
Panchayats shall be reserved as per the roster prepared by the
Deputy Commissioner.
(2) One-third offices of the Sarpanches (including those
reserved for women belonging to Scheduled Castes) shall be
reserved for the women. The reservation shall be operated as
per the roster prepared by the Deputy Commissioner.
(3) The roster referred in sub-rules (1) and (2) shall be
prepared block-wise by the Deputy Commissioner.
A bare perusal of the aforesaid provisions reveals that the
Offices of Sarpanches of the Gram Panchayat in the district shall be
reserved for Scheduled Castes in accordance with the population of the
Scheduled Castes in the district. These provisions further provide that 1/3rd
members of the total members of the offices of Sarpanches in the district
shall be reserved for women, including offices reserved for women
belonging to Scheduled Castes. Sub-section(4) of Section 12 of the Act
provides that the reservation for the offices of Sarpanches shall be allotted
by rotation to different Gram Panchayats in such manner as may be
prescribed. Sub-rule (2) of Rule 3 of the Rules provides that 1/3rd of the
offices of Sarpanches (including those reserved for women belonging to
Scheduled Castes) shall be reserved for women. The reservation shall be
operated as per the roster prepared by the Deputy Commissioner. Sub-rule
(3) provides that the roster referred in sub-rules (1) and (2) shall be
prepared block-wise by the Deputy Commissioner.
According to the aforesaid provisions, the Deputy
C.W.P. No.11373 of 2008 -9-
Commissioner made the reservations for the offices of Sarpanches of the
Gram Panchayat in block Verka which consists of 94 villages. A perusal of
the notification dated 8.5.2008 reveals that out of 94 offices of Gram
Panchayats, 39 offices of the Sarpanches of the Gram Panchayats have
been reserved for Scheduled Castes, including 13 offices for Scheduled
Castes (Women), which is one-third of the total reservation of the
Scheduled Castes. 18 offices of the Sarpanches of the Gram Panchayats of
Block Verka from serial Nos.40 to 58, except serial No.50, have been
reserved for the category of Women. Thus, one-third of the total offices of
the Sarpanches of Gram Panchayats in Block Verka, i.e. 31 have been
reserved for Scheduled Castes (Women) and Women. The remaining 39
offices of the Gram Panchayats have been reserved for General Category.
Thus, the reservation made for 94 villages was perfectly in consonance
with the Act and the Rules.
In the present case, it has not been disputed that in the year
1998, the office of Sarpanch of Village Rampura was reserved for
Scheduled Caste and in the year 2003 it was reserved for General
Category. Therefore, in the present election, keeping in view the principle
of rotation, this office was reserved for Women. It is also not disputed in
the written statement that office of Sarpanch in village Hair was never
reserved either for Scheduled Caste category or for Scheduled Caste
(Woman) or Women. However, this year, as per the roster, the said village
has been reserved for the Scheduled Caste. In view of these facts, we are
of the opinion that the Deputy Commissioner (respondent No.3) was not
justified to issue the impugned corrigendum vide notification dated
23.6.2008 changing the reservation of the office of Sarpanch of village
C.W.P. No.11373 of 2008 -10-
Rampura from Women to Scheduled Caste and the office of Sarpanch of
village Hair from the category of Scheduled Caste to General. In the
written statement, it has been stated that the said change has been made
solely on the basis of the recommendation made by the District
Development and Panchayat Officer, Amritsar, who had requested that the
office of Sarpanch of village Hair should be reserved for General Category
as the population of the Scheduled Castes in the said village is less
whereas office of Sarpanch of village Rampura should be changed from
Women to Scheduled Caste as the population of Scheduled Castes in that
village is more. Neither any provisions of Section 12 of the Act nor Rule 3
of the Rules provide that the office of Sarpanch in a village is to be
reserved for Scheduled Caste or Scheduled Caste (Woman) or Women
where the population of the said category is more. Sub-section(4) of
Section 12 of the Act only provides that the offices reserved under this
section shall be allotted by rotation to different Gram Panchayats at the
time of every general election in such manner as may be prescribed. Sub-
rule(1) of Rule 3 of the Rules provides that the Deputy Commissioner
shall, by notification in the official Gazette, reserve the offices of the
Sarpanches of Gram Panchayats for the persons belonging to Scheduled
Castes (including one-third women belonging to Scheduled Castes) in the
same proportion as the population of the Scheduled Castes in the district
bears to the total population of the district. The offices of Sarpanches of
Gram Panchayats shall be reserved as per the roster prepared by the
Deputy Commissioner. Sub-rule (2) further provides that one-third offices
of the Sarpanches (including those reserved for women belonging to
Scheduled Castes) shall be reserved for the women. The reservation shall
C.W.P. No.11373 of 2008 -11-
be operated as per the roster prepared by the Deputy Commissioner and
sub-rule (3) provides that the roster referred in sub-rules (1) and (2) shall
be prepared block-wise by the Deputy Commissioner. Thus, in the Rules
no where it is provided that an office of Sarpanch of a village Gram
Panchayat is to be reserved for a particular category where the population
of that category is more in the village. Vide earlier notification dated
8.5.2008, 31 offices of the Sarpanches of different Gram Panchayats of
Block Verka have been reserved for Scheduled Castes (Women) and
Women from serial Nos.27 to 58, which is one-third of the total offices of
the Sarpanches of the said Block i.e. 94. Out of this 31 offices of the
Sarpanches include 13 Scheduled Castes (Women) and 18 Women. Thus,
the reservation was made as per the roster prepared by the Deputy
Commissioner. It is not the case of the respondents that in the roster there
was any mistake committed by the Deputy Commissioner. Even if the
reservation of the office of Sarpanch of Gram Panchayat of village Hair
was to be changed from Scheduled Caste to General, then in that situation
the office of Sarpanch of Scheduled Caste should have been given to a
village in which the post of Sarpanch was reserved for General Category.
There was no reason to inter-se change the reservation of office of
Sarpanch of Village Gram Panchayat Rampura to Scheduled Caste, which
was reserved for Women. By the impugned corrigendum, not only the
percentage of reservation of the office of Women has been reduced, but the
percentage of the reservation of the Scheduled Castes has also been
reduced, resulting in change of ratio.
By the impugned corrigendum, one office of the Woman
reserved for Women has been substituted by the category of Scheduled
C.W.P. No.11373 of 2008 -12-
Caste. By this change, the number of reservation of the Women has been
reduced from one-third of the total members, i.e., from 31 to 30. This
change not only violates Section 12 of the Act read with Rule 3 of the
Rules, but also clause(4) of Article 243D of the Constitution of India.
Therefore, the action of respondent No.3 in changing the category from
Women to Scheduled Caste by the impugned corrigendum is not only
illegal and violative but also wholly without jurisdiction. The justification
given by respondent No.3 in this regard is not tenable. In the written
statement, it has been stated that the said corrigendum was issued for
correcting the mistake committed earlier. But, it appears that there was no
mistake, illegality or error in the reservation made in the earlier
notification and the impugned corrigendum has been issued illegally by the
Deputy Commissioner, Amritsar under political pressure and with
intention to give benefit to some persons of village Hair where the
reservation has been changed from the category of Scheduled Caste to
General.
In view of the above, this petition is allowed and the
impugned corrigendum dated 23.6.2008, so far as it relates to Gram
Panchayat of Village Rampura, is quashed and the respondents are directed
to conduct the election in accordance with law of the said Village Gram
Panchayat as per the reservation made vide notification dated 8.5.2008.
(SATISH KUMAR MITTAL)
JUDGE
September 10, 2008 ( JASWANT SINGH )
vkg JUDGE
Refer to Reporter