IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  CIVIL APPEAL NO. 976 OF 2009

(Arising out of SLP(c) No.  19237 of 2008)

Bihari Lal Rada           … Appellant

Versus

Anil Jain (Tinu) & Ors. …Respondents

J U D G M E N T  

B.SUDERSHAN REDDY,J.

Leave granted.  

2. This  appeal  is  preferred  against  the  Judgment

and Order dated 31.07.2008 made in LPA No. 66 of

2007  of  the  High  Court  of  Punjab  and  Haryana  at

Chandigarh  whereby  the  Division  Bench   vide  the

impugned  judgment   set  aside  the  election  of  the

appellant  as  the  President  of  the Municipal  Council,

Hisar.  

3. The facts, in brief, to be noticed for the purpose

of  disposal  of  this  appeal,  are  that  election  to  the

Municipal Council, Hisar was held on 16.4.2005. In all

there  were  31  wards  out  of  which  15  wards  were

reserved  for  the  members  belonging  to  Scheduled

Castes and 2 wards were reserved for Backward Class

category. The respondent/writ petitioner was elected

from ward no. 2 which was general category and not

reserved  in  favour  of  any  one  of  those  categories

mentioned  herein  above.  The  appellant  herein  was

elected  from  ward  no.  18  which  was  reserved  for

Backward  Class  category.   Thereafter  election  was

held to the office of the President, Municipal Council,

Hisar on 29.8.2006. In the election held on 29.8.2006,

in  all  32  Municipal  Councilors  participated.   The

appellant  secured 19 votes whereas the respondent

got  13  votes  and  accordingly  the  appellant  was

declared to have been duly elected as the President of

the Municipal Council, Hisar.  

4. The  respondent  herein  challenged  the  said

election of 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

“has  been  reserved  for  general  category  candidate

and  the  same  shall  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  member

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elected  from  Backward  Class  category.”   The

contention was, once the office of the President of a

Municipality  is  reserved  to  be  filled  in  by  persons

belonging  to  Scheduled  Castes  and  Backward  Class

category, the candidate elected from general category

has no right to be elected as the President. Similarly,

general  category  is  also  a  separate  category,

therefore, only members among the general category

have a right to hold the post of President “which is

reserved  categorically  for  general  category”,

therefore, the member coming from Backward Class

category  cannot  become  the  President  of  the

Municipality which is earmarked for general category.

It was on that ground the respondent herein filed the

writ petition seeking a writ of certiorari to quash the

proceedings whereunder the appellant was declared to

have  been  duly  elected  as  the  President  of  Hisar

Municipality.  

5. The  learned  Single  Judge  after  an  elaborate

consideration of the matter dismissed the writ petition

and  upheld  the  election  of  the  appellant  as  the

President of the Municipal Council, Hisar.  On appeal

preferred  by  the  respondent  herein,  the  Division

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Bench  vide  the  impugned  judgment  set  aside  the

judgment  of  the  learned Single  Judge and  quashed

the election of the appellant herein as the President of

Municipal Council, Hisar. Hence  this appeal.  

PART-I

6. Reference  to  Constitutional  provisions  is

necessary to appreciate and resolve the controversy

involved  in  the  present  case.  The  reservations  in

favour of the Scheduled Castes, Scheduled Tribes and

other  Backward  Classes  are  authorized  by

Constitutional  provisions that  permit  departure  from

formal equality for the purposes of favouring specified

weaker sections of the Society.  

7. Ever since the adoption of the Constitution,

there have been efforts at democratic decentralization

of power.  A reference may be made to Article 40 of

the  Constitution  which  obligates  the  State  to  take

steps  to  re-organise  village  Panchayats  and  endow

them  with  such  powers  and  functions  as  may  be

necessary to enable them to function as units of self-

government.   How  far  the  local  self-government

institutions  at  the  gross  roots  have  attained  the

objectives  of  democratic  decentralization  always

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remained a matter of serious and sustained debate.

It was felt that the monopoly of leadership by certain

groups was deeply disturbing. The poorer and weaker

sections of the Society were prevented from providing

effective  leadership.  Roles  in  implementing  the

community development plans, electoral politics at the

gross  root  level  led  to  patronage.  It  was  perceived

that  dominant  sections  in  both  Panchayati  Raj

Institutions and as well as Nagarpalikas/Municipalities

etc. captured power and used the same for their own

ends.  All this has contributed to a loss of faith in the

gross root democratic institutions.  

8. The Constitution of India specifically provides

for reservation of seats in elective legislative bodies to

the  Scheduled  Castes  and  the  Scheduled  Tribes  in

proportion to their numbers.  Be it  noted that these

reservations do not involve ‘separate electorates’ - i.e.

the representation of a particular group by legislators

chosen by an electorate composed solely of members

of that group. The seats are reserved in the sense that

candidates  who stand for  them must  belong to  the

specified groups, in which the entire electorate of the

Constituency  participates  in  choosing  among  the

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reserved candidates. Such provisions were obviously

made  to  enhance  political  participation  by  the

Scheduled  Castes  and  Scheduled  Tribes.  No  such

provision was made providing for any reservation of

seats in elective bodies at the gross root level either in

Panchayats or in Municipalities.  

9. It  was  realized  that  Local  Bodies  have

become weak and ineffective on account of variety of

reasons, including the failure to hold regular elections,

prolonged supersessions and inadequate devolution of

powers and functions.  It was felt that the Urban Local

Bodies and as well as Panchayati Raj Institutions have

not been able to acquire status and dignity of viable

and responsive bodies. One of the reasons noticed as

to why these gross root institutions were unable to

perform effectively as vibrant democratic units of self-

government  was  on  account  of  inadequate

representation of weaker sections such as Scheduled

Castes, Scheduled tribes and Women etc.  

10. That  so  far  as  the  Municipalities  are

concerned it was proposed to add a new part in the

Constitution relating to Urban Local Bodies to inter alia

provide for reservation of seats in every Municipality

in favour of weaker sections of the Society such as

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Scheduled Castes, Scheduled Tribes in proportion to

their population and   in favour of Backward Class of

citizens  if  so  provided  for  by  the  legislature  of  the

State. Accordingly, Part IXA; came to be inserted by

the  Constitution  (Seventy-Fourth  Amendment)  Act,

1992  w.e.f.  01.06.1993.  It  specifically  provides  for

devolution  by  the  State  Legislature  of  powers  and

responsibilities  upon  Municipalities  with  respect  to

preparation of  plans for  economic  development  and

social  justice,  and  for  the  implementation  of

development schemes as may be required to enable

them to function as institutions of self-government. It

was  felt  that  economic  development  and

implementation  of  schemes  securing  social  justice

may not be possible without providing for adequate

representation to the weaker sections of the Society.

Its  paramount  objective  was  to  empower  the

vulnerable sections of the Society who were hitherto

precluded  from  participating  in  the  local  self-

government institutions for various historical reasons

due to which the Constitutional objective of securing

social justice remained unfulfilled.  

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11. Having  regard  to  the  nature  of  the

controversy involved herein, it would be appropriate

to set out Article 243T of the Constitution of India in

its entirety:

“243T. Reservation of seats.-(1) Seats shall be reserved for the Scheduled Castes and  the  Scheduled  Tribes  in  every Municipality 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 Municipality as the population of the Scheduled Castes in the Municipal area  or of  the Scheduled Tribes in  the Municipal area bears to the total population of that area and such seats may be allotted by rotation  to  different  constituencies  in  a Municipality.  

(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  Municipality  shall  be  reserved  for women and such seats may be allotted by

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rotation  to  different  constituencies  in  a Municipality.  

(4) The  offices  of  Chairpersons  in  the Municipalities  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.  

(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  State  from  making  any provision for  reservation of  seats  in any Municipality or  offices  of  Chairpersons in the  Municipalities  in  favour  of  backward class of citizens.“  

12. A  plain  reading  of  Article  243T  of  the

Constitution  makes  it  clear  that  it  provides  for

reservation  of  seats  for  the  Scheduled  Castes,

Scheduled  Tribes  and  Women  in  every  Municipality

and further enables the Legislature of a State to make

provision for reservation of seats in any Municipality

or offices of the Chairpersons in the Municipalities in

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favour of Backward Class of citizens. It also mandates

that the offices of Chairpersons in the Municipalities

shall be reserved for the Scheduled Castes, Scheduled

Tribes and Women as the Legislature of a State may,

by  law,  provide.   Be  it  noted  that  no  seats  in  the

Municipalities or to the offices of the Chairpersons are

reserved  in  favour  of  persons  belonging  to  general

category.  

PART-II

13.  The  Haryana  Legislative  Assembly  made

several  amendments  to  the  Haryana  Municipal  Act,

1973 (for short “the Act, 1973”) in the light of and to

bring the law relating to Municipalities  in conformity

with  the  purpose,  substance  and  direction  of  the

Constitution (Seventy-Fourth Amendment) Act, 1992.  

14. Section  10  of  the  Act,  1973  provides  for

reservation of seats which reads as under:  

“10.  Reservation  of  seats:  (1) Seats  shall  be  reserved  for  the Scheduled  Castes  in  every Municipality 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

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direct  election  in  a  Municipality  as the  population  of  the  Scheduled Castes in the municipal area bears to the total population of that area and such seats may be allotted to such  ward’s  having  maximum population  of  persons  belonging  to Scheduled Castes.  

(2) Not  less  than  1/3rd of  total number  of  seats  reserved  under sub-section (1) shall be reserved for women belonging to the Scheduled Castes  and  such  seats  may  be allotted  by  rotation  and  by  lots amongst  the wards reserved under sub-section (1).  

(3) Not  less  than  1/3rd (including the  number  of  seats  reserved  for women belonging to the Scheduled Castes) of the total number of seats to  be  filled  by  direct  election  in every Municipality, shall be reserved for women and such seats may be allotted  by  rotation  and  by  lots  to different  constituencies  in  the Municipality  except  those  falling under sub-sections (1), (2) and (4).  

(4)  [Two  seats  in  every Committee] shall be reserved for the persons  belonging  to  Backward Classes  which  shall  be  allotted  in such  territorial  constituencies  as

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having  maximum  population  of persons  belong  to  Backward Classes.  

(5) The offices of Presidents in the Municipalities shall be filled up from amongst the members belonging to the  general  category,  Scheduled Castes,  Backward  Classes  and women by rotation and by lots in the manner prescribed:  

[-]

(6) The reservation of seats under sub-sections  (1)  and  (2)  and  the reservation  of  office  of   the President  other than the reservation for  women  under  sub-section  (4) shall  cease  to  have  effect  on  the expiration  of  the  period  specified under Article 334 of the Constitution of India.  

(7) The reservation of seats under sub-Sections  (1),  (2),  (4)  and  (5) shall  be  reviewed  after  every decennial census.  

(8) The reservation as enumerated in this section shall be given effect to through notification issued at the time of each election. “  

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15. Section  18  deals  with  election  of  the

President  and  the  Vice-president  which  reads  as

under:  

“18.  Election  of  President  and Vice-President:(1) Every Municipal Committee  or  Municipal  Council shall, from time to time, elect one of its members to be President for such period  as  may  be  prescribed,  and the member so elected shall become President of Municipal Committee or Municipal Council:  

Provided  that  the  office  of  the President  in  Municipal  Committee and  Municipal  Council  shall  be reserved for  Scheduled Castes  and women  in  accordance  with  the provisions made in Section 10:  

Provided further that if the office of President  is  vacated  during  his tenure  on  account  of  death, resignation or no confidence motion, a fresh election for the remainder of the  period  shall  be  held  from  the same category.  

(2) Every  Municipal  Committee  or Municipal  Council  shall  also,  from time to time, elect one of its elected members to be Vice-President:  

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Provided  that  if  the  office  of  the Vice-President is vacated during  his tenure  on  account  of  death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held.  

[(3) The  term  of  the  office  of  the President shall be for a period of five years or for the residue period of his office  as  a  member,  which ever  is less.]”

16. Sub-rule  (4)  of  Rule  70  of  the  Haryana

Municipal Elections Rules, 1978 made under the Act,

which is relevant reads as under:  

“  Rule  70  (4):  -  The  offices  of  the Presidents in the municipalities shall be  filled  up  from  amongst  the members  belonging  to  the  general category,  Scheduled  Castes, Backward  Classes  and  Women  by rotation which will be determined in the manner as detailed below:  

Provided that the number of offices of the  President  reserved  for  the Scheduled  Castes  and  Backward Classes in the State shall bear as may be the same proportion to the total number  of  such  offices  of  the municipalities as the population of the Scheduled  Castes  and  Backward

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Classes 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  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  available,  then the office of  the President shall  be filled up from the male  member  of  the  said  reserved category:  

Provided further that the number of offices of the President for Scheduled Castes and Backward Classes shall be determined  on  the  basis  of  their population  and  shall  rotate  to different municipalities firstly, having largest  population  of  Scheduled Castes, secondly, from the remaining municipalities  having  largest population  of  Backward  Classes  and they rotate in the subsequent terms of offices of the municipalities having

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their  next  largest  population and so on.  In case percentage of population of  two  Municipal  Committees  or Municipal  Councils  as  regards Backward  Classes  and  Scheduled Castes  is  the  same  the  reservation will be determined by draw of lots to be  conducted  by  a  committee consisting  of  Director,  Local  Bodies and Deputy Commissioner of district concerned or his nominee.  

Provided further that in case of office of the Municipal Council reserved for the Backward Classes,  the President shall  be  elected  from  amongst  the members belonging to the Backward Classes  and  in  case  of  Municipal Committees,  the  member  of Backward  Class  shall  be  deemed to be  elected  as  President  of  the municipality  reserved  for  the Backward Classes.”

17. The relevant provisions of the Act, 1973 and

Election  Rules  made  thereunder  referred  to  herein

above are to be read and understood in the light of

and  in  conformity  with  Article  243T  of  the

Constitution.  

18. In  the  present  case,  the  Governor  of

Haryana, in exercise of the powers conferred by sub-

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Section (8) of Section 10 of Act, 1973 and all other

powers  enabling  him  in  this  behalf  issued   the

Notification dated 8.4.2005 specifying that the office

of  the  President,  Hisar  shall  be  filled  up  from  the

members belonging to the general category.  

QUESTION

19. The question which arises for our consideration

in this appeal is: Whether the provisions of the Act, 1973

and  the  Rules  framed  thereunder  curtail  and  put  any

embargo on the right of the Municipal Councilors elected

from the reserved wards to contest election for the office

of President Municipality if by virtue of roaster such office

is notified to be filled in by the members belonging to the

general category?

SUBMISSIONS

20. Dr.  A.M.  Singhvi,  learned  senior  counsel

appearing on behalf of the appellant submitted that all

members of the Municipality, irrespective of the fact

that they have been elected from reserved wards, are

eligible  to  contest  to  the  office  of  the

President/Chairperson  when  it  falls  in  the  general

category.   It  was  submitted  that  the  office  of  the

President/Chairperson  once  notified  falling  in  the

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general category simply means that the same is not

reserved  for  any  particular  class  of  persons  or

community.  The contest is open to all classes who

have  been  elected  as  members  of  the  ward

irrespective  of  the  fact  whether  they  have  been

elected  from the  wards  that  were  reserved  for  the

Scheduled Castes and the Backward Classes or from

the wards which remained unreserved.  

21. Shri  P.S.  Patwalia,  learned  senior  counsel

appearing on behalf of the respondent submitted that

the appellant being an elected member from a ward

reserved  for  backward  classes  cannot  contest  the

election  to  the  office  of  the  President  as  the  same

could only be filled in from the candidates belonging to

the  general  category.   The  precise  submission  was

that  the post  of  the President is  meant for  general

category and only a candidate elected from a general

ward is entitled to contest the election for the office of

President/Chairperson.  

22. We  have  carefully  considered  the

submissions.  

PART-III

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23. Dr.  Singhvi  in  support  of  his  submissions

placed reliance on the decision of this court reported

in  Shri  V.V.  Giri  Vs.  Dippala  Suri  Dora  &  Ors.

[1960 (1) SCR 426].  The facts in that case were: In a

double member Parliamentary Constituency one seat

was reserved for the Scheduled Tribes and the other

was general.  Four persons filed their nominations for

the election, G1 and G2 for the general seat and S1

and  S2  for  the  reserved  seat.  In  the  light  of  the

number  of  votes  received by  the  candidates  at  the

polls and in accordance with provisions of Section 54

(4) of the Representation of the People Act, 1951, S1

was declared elected to the reserved seat and S2, who

had received the largest number of votes out of the

remaining candidates, was elected to the general seat.

G1 filed an election petition for a declaration that the

election of S2 was void. One of the contentions was

that upon a proper interpretation of Section 54 (4) a

candidate  who  had  filed  his  nomination  for  the

reserved  seat  could  not  be  declared  elected  to  the

general seat.  The matter was heard by a Constitution

Bench  of  this  Court  which  after  an  elaborate

consideration  of  the  matter  speaking  through

Gajendragadkar J. held:  

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“In our opinion, the true position is that a member  of  a  scheduled  caste  or  tribe does not forego his right to seek election to  the  general  seat  merely  because  he avails himself of the additional concession of  the  reserved  seat  by  making  the prescribed  declaration  for  that  purpose. The  claim  of  eligibility  for  the  reserved seat  does not  exclude the claim for  the general seat; it is an additional claim; and both the claims have to be decided on the basis that there is one election from the double-member constituency.

In this connection we may refer by way of analogy to the provisions made in some educational  institutions  and  universities whereby  in  addition  to  the  prizes  and scholarships  awarded  on  general competition  amongst  all  the  candidates, some prizes and scholarships are reserved for  candidates  belonging  to  backward communities.  In  such cases,  though the backward  candidates  may  try  for  the reserved prizes and scholarships, they are not  precluded from claiming the general prizes  and  scholarships  by  competition with the rest of the candidates.“

24. We may further refer by way of analogy to

the  settled  legal  position interpreting  the  provisions

made  for  reservation  of  appointments  or  posts  in

favour of any backward class of citizens under Article

16  (4)  of  the  Constitution  of  India.   In  R.K.

Sabharwal  Vs.  State  of  Punjab  [(1995)  2  SCC

745], a Constitution Bench of this Court held:

“When a percentage of reservation is fixed in respect of a particular cadre and the roster  indicates the reserve

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points,  it  has  to  be  taken  that  the posts shown at the reserve points are to  be  filled  from  amongst  the members  of  reserve  categories  and the  candidates  belonging  to  the general  category are  not  entitled to be considered for the reserved posts. On  the  other  hand  the  reserve category candidates can compete for the  non-reserve  posts  and  in  the event of their appointment to the said posts their number cannot be added and  taken  into  consideration  for working  out  the  percentage  of reservation.” (Emphasis supplied)

25. The similar view is taken in Union of India

& Ors. Vs. Virpal Singh Chauhan  [ (1995) 6 SCC

684]

26. In  Indra  Sawhney  Vs.  Union  of  India

[1992 Supp (3) SCC 217], this Court held:

“In  this  connection  it  is  well  to remember that the reservations under Article  16(4)  do  not  operate  like  a communal  reservation.  It  may  well happen that some members belonging to, say, Scheduled Castes get selected in  the  open  competition  field  on  the basis of their own merits; they will not be counted against the quota reserved for  Scheduled  Castes;  they  will  be treated  as  open  competition candidates.”

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27.  The  Act,  1973  makes  available  the

minimum number of  seats  to the Scheduled Castes

and  Backward  Classes  by  way  of  reservation  in

proportion to their population. This does not prevent

the Scheduled Castes and Backward Classes in getting

themselves elected from the unreserved seats on their

own  merit.  The  obvious  purpose  of  providing  such

reservation to the Scheduled Castes, Backward Class

and  Women  who  were  unable  to  get  adequate

representation in the Local Bodies in the absence of

reservation.  Reservation  ensures  that  at  least

minimum  number  of  persons  belonging  to  such

classes would get  elected.   Reservation so made in

their favour does not mean that they are not entitled

to contest election from unreserved seats and to the

offices  of  Chairperson  as  the  case  may  be.  The

reservation does not limit number of candidates from

reserved category to be elected.  They are eligible to

contest  from the  unreserved  seats  and  get  elected

resulting  in  increase  of  their  representation  in  the

Local Bodies.  

28. The  Haryana  Municipal  Act,  1973  faithfully

adopted the Constitutional mandate enshrined in Part

IXA; for carrying out the purposes of the Constitution

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(Seventy-Fourth Amendment) Act, 1992.   The Rules

thereunder are made for carrying out the purposes of

the  enactment  and  the  purposes  of  the  Act  is  to

ensure  that  at  least  minimum  number  of  persons

belonging to the specified categories  get elected.   

29. The construction suggested by Shri Patwalia,

that the word ‘belonging to’ governs ‘general category’

is grammatically attractive but suggested construction

not  only  would  defeat  the  main  purposes  of  the

provisions  and  the  scheme  of  the  Act,  which  is  to

make special provisions for those with special needs,

and to the understanding of the Legislature when it

enacted  Section  10  and  18  of  the  Act,  1973.  The

apprehension  that  persons  belonging  to  general

category may loose their chance forever or for a long

time  to  get  themselves  elected  is  totally  untenable

and  unsustainable.  The  whole  idea  is  to  see  that

minimum number of seats as provided for is filled in

by  vulnerable  sections  of  the  Society.   There  can

never be any constitutional or legal objection if more

members from those weaker sections get elected to

the Municipalities on their own merit from the seats

meant for the unreserved category.  

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30. In our view, the question is no more in res

integra but squarely covered by the decision of this

Court  reported  in  Kasambhai  F.  Ghanchi  Vs.

Chandubhai D. Rajput &  Anr. [ 1998 (1) SCC 285].

In  that  case the appellant therein who belonged to

Backward Class but had been elected to the Jambusar

Municipality  from  an  unreserved  seat  stood  for

election for the post of President of the Municipality

which was reserved for a Backward Class candidate.

The only question that had fallen for consideration in

the  said  case  was:  Whether  the  appellant,  who

belongs to a Backward Class but had been elected to

the Jambusar Municipality from an unreserved seat,

could stand for election for the post of President of the

Municipality which was reserved for a Backward Class

candidate or whether the candidate for that post could

only be a person who was elected to the Municipality

from  a  seat  which  was  reserved  for  the  Backward

Class? This court held:

“The idea of providing reservation for the benefit  of  the  weaker  sections  of  the society  is  not  only  to  ensure  their participation in the conduct of the affairs of the municipality but it  is also an effort to improve their lot. The reservation ensures that  the  specified  minimum  number  of

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persons belonging to that category become members of the municipality. If because of their  popularity  a  larger  number  of Scheduled  Castes,  Scheduled  Tribes, Backward Classes or women get elected to the  municipality  than  the  number  of reserved  seats  that  would  be  welcome. When the idea is  to  promote the weaker sections  of  the  society,  and  to  improve their  lot,  it  would  be  a  contradiction  in terms if members belonging to that section are debarred from standing to the office of the President because such a candidate is popular  enough  to  get  elected  from  a general  constituency.  It  is  a  fundamental principle  of  democratic  election  that  a person  who  is  more  popular  is  elected, popularity being measured by the number of  votes  which  the  person  gets.  The language of various legal provisions do not in  any  way  suggest,  expressly  or  by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting  the  election  of  the  President when that  office  is  to  be filled only by a reserved category person.”

It was further observed:  

“The  Act  and  the  Rules  provide  for reservation  for  Scheduled  Castes, Scheduled Tribes,  Backward Classes  and women. No reservation or classification is made ward-wise. To put it  differently all members  of  the  Scheduled  Castes,  for example, will be regarded as belonging to one class irrespective of the fact whether they had been elected to a reserved seat or  to  a  general  seat.  Similar  is  the

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position  with  regard  to  the  Backward Classes,  Scheduled  Tribes  and  women. The law does not contemplate or provide for  any  further  sub-classification  of  the type  which  has  been  suggested  by  the respondents.  Just as all  members of the municipality,  irrespective  of  the  fact whether  they  had  been  elected  to  a reserved  seat  or  not,  are  eligible  for election to the post of the President when it  falls  in the general  category,  similarly when as per the roster the President is to be one who, say, belongs to the category of  Scheduled Caste then all  members of the municipality who are Scheduled Caste, irrespective of the seat to which they had been elected, would be eligible to  stand for election. Neither the Act nor the Rules stipulate  that  it  is  only  such  a  member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the  President  of  the  municipality.” (Emphasis supplied)

31. Shri Patwalia, however, made an attempt to

distinguish the said judgment by submitting that the

Gujarat Municipal Act did not provide for any post of

the  President  to  be  elected  from  the  candidates

belonging to general category, therefore, a Backward

Class  candidate  although  elected  from  a  general

category seat was held to be entitled to contest for

the office of the President since the said office was

reserved only for Backward Class.  It was submitted

that  the  requirement  in  that  case  was  that  the

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candidate must be a backward class candidate and it

did not matter from which category of seat he was

elected.   According  to  him in  the  present  case  the

office of the President is meant for general category

and  only  a  candidate  who  had  contested  and  won

from a general seat alone was entitled to contest for

the office of the President. We find it very difficult to

rationalize much less endorse the argument advanced

by  the  learned  senior  counsel.  In  Kasambhai  F.

Ghanchi  (supra) this Court while examining the true

import and effect of the provisions of Article 243T of

the Constitution of India observed:  

“There  is  no  indication  or  suggestion  in Article 243-T or in the Act that in case the office  of  the  President  is  required  to  be filled  by  a  member  who  is  a  Scheduled Caste, Scheduled Tribe, Backward Class or a  woman,  then  only  a  member  who  has been  elected  from  a  reserved  seat  can stand for election. In other words, for the purpose of election to the post of President the  reservation  which  is  contemplated  by the Act is only to the effect that the person elected  should  belong  to  the  category  of Scheduled  Caste,  Scheduled  Tribe, Backward  Class  or  woman,  as  per  the roster. Conceivably, as in the present case, an elected member may fall within two or more categories and, in this way, may be in a position to seek re-election as envisaged by Section 33 of the Gujarat Municipal Act. If  this  is  not  so,  and  with  the  category changing  every  year,  as  per  the  roster, Section  33  will  become  redundant.  The legislative intent, therefore, clearly is that

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one person, whether elected from reserved or  general  seat,  but  who  belongs  to  the category out of which the President is to be elected, can seek re-election as envisaged by Section 33 of the Act.”

CONCLUSION  

32. Be that as it may, neither Article 243T of the

Constitution  nor  Section  10  (5)  of  the  Haryana

Municipal Act provide for any reservation to the office

of the President in favour of any candidate who does

not  belong  to  Scheduled  Caste  or  Backward  Class.

Obviously  there  cannot  be  any  such  reservation  of

seats in Municipalities nor to the office of Chairperson

in favour of candidates belonging to general category.

There is no separate category like general category.

The  expression  belonging  to  the  general  category

wherever  employed  means  the  seats  or  offices

earmarked  for  persons  belonging  to  all  categories

irrespective  of  their  caste,  class  or  community  or

tribe.  The unreserved seats euphemistically described

as general category seats are open seats available for

all candidates who are otherwise qualified to contest

to that office. The word ‘General’ derived from Latin

word genus.  It  relates  to  the  whole  kind,  class,  or

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order.  Pertaining to or designating the genus or class,

as  distinguished  from  that  which  characterizes  the

species or individual; universal, not particularized, as

opposed to special; principal or central, as opposed to

local; open or available to all, as opposed to select;

obtaining  commonly,  or  recognized  universally,  as

opposed  to  particular;  universal  or  unbounded,  as

opposed  to   limited;  comprehending  the  whole  or

directed to the whole, as distinguished from anything

applying to or designed for a portion only. Extensive

or  common  to  many.  (See  Black’s  Law  Dictionary,

Sixth Edition). 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.  

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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.

34. For the aforesaid reasons we hold that the

High  Court  ought  not  to  have  interfered  with  the

proceedings whereunder the appellant was declared to

have been duly elected as the President of Municipal

Council,  Hisar.  The  impugned  judgment  is,

accordingly, set aside.   

35. The appeal is, accordingly, allowed with no

order as to costs.  

……………………………………J.      (Lokeshwar Singh Panta)

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……………………………………J.      (B. Sudershan Reddy)

New Delhi;  February 13, 2009

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