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PETITIONER: SARASWATI DEVI

       Vs.

RESPONDENT: SMT. SHANTI DEVI & ORS.

DATE OF JUDGMENT:       18/11/1996

BENCH: A.S. ANAND, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.B.Majmudar. J.      Leave granted.      By consent  of learned  advocates of parties the appeal was finally heard and is being disposed of by this judgment. The contesting  parties are  appellant on  the one  hand and Respondent no.1  on the  other.  Both  belong  to  Scheduled Castes. Their claim is centered round the chair of President of the  Municipal Committee,  Loharu in  Haryana State.  The grievance of  the appellant  against the  order of  the High court in favour of respondent no.1 can be better appreciated after looking at the relevant introductory facts.      The appellant  as well as Respondent no.1 are Scheduled Castes  women.  Elections  were  held  to  Loharu  Municipal Committee. For  the purpose  of election  of members  of the Committee, Loharu  Municipal area  is divided into 11 wards. Out of  these 11  wards three  wards, namely, ward nos. 1, 4 and 5  were reserved  for  members  belonging  to  Scheduled Castes. Out of these three wards, ward no.5 was reserved for the Scheduled  Castes women  and ward  no.2 was reserved for backward classes.  Apart from  the  aforesaid  reservations, ward nos.8,  10 and  11 were  reserved  for  General  women. Elections to  Loharu Municipal  Committee were  held on 28th December 1994 under the provisions of Haryana Municipal Act, 1973 (‘the  Act’ for  short).  In  the  said  elections  the appellant was  elected from ward no.5 reserved for Scheduled Castes women while Respondent no.1 was declared elected from ward no.11  which was  reserved for General women. After the said elections  were over  question arose about the election of President of the said Municipal Committee. As per Section 10 sub  section (5)  of the Act the offices of the President in the  municipalities shall  be filled  up from amongst the members belonging  to General  category,  Scheduled  Castes, backward classes  ad women  by rotation  and by  lots in the manner prescribed. Rule 70 sub-rule (4) of Haryana Municipal Election Rules, 1978 (‘Election Rules’ for short) prescribes the manner  in which the election to the office of President of  municipality   could  be   held.  The  local  Government Department of  Haryana  vide  its  notification  dated  20th January 1995 declared in terms of Rule 70(4) of the Election

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Rules that  the  seat  of  President,  Municipal  Committee, Loharu, inter  alia, shall  be filled  up from  amongst  the members belonging  to Scheduled  Castes category.  The  said rule reads as under:      "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   ad   women   by      rotation which  will be  determined      in the manner as detailed below:      Provided that the number of offices      of the  presidents 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      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      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  their  next      largest population  and so  on.  In      case percentage  of  population  of      two   Municipal    committees    or      Municipal   Councils    as   regard      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

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    district concerned or his nominee;      Provided further  that in  case  of      office  of  the  Municipal  Council      reserved for  Backward Classes, the      President  shall  be  elected  from      amongst the  members  belonging  to      the Backward Classes and in case of      Municipal Committee,  the member of      Backward Class  shall be  deemed to      be  elected  as  president  of  the      Municipality   reserved   for   the      Backward Classes."      The Respondent  no.1 contended  that as she was also an elected member belonging to Scheduled Castes women category. She was  entitled to  contest for  the presidentship  of the Municipality. In  view of  this claim of Respondent no.1 the local Government  Department of  Haryana Government vide its order date  11th February  1995 issued  under Section 278 of the Act  clarified that  where there  is a  single member of Scheduled Caste  category (man  or woman)  in a municipality elected from  the Ward  reserved and the Office of President is to  be filled  up from  amongst the  members belonging to Scheduled Caste  Category, such single member (man or woman) belonging to  Scheduled Caste  Category shall  be deemed  to have been  elected as  President of such Municipality in the same manner  as is provided for the members belonging to the Backward Classes  under sub-rule (4) of Rule of the Election Rules. This clarification put Respondent no.1 out of contest for the  presidentship as  she was  elected  member  of  the Municipal Committee  not on a Scheduled Castes seat but on a seat available  to  General  category  women.  Consequently, Respondent no.1  filed a  writ petition in the High Court of Punjab & Haryana for quashing the aforesaid Government Order dated 11th February 1995 and for a direction to admit her as a  candidate   to  contest   for  the  aforesaid  office  of President, Municipal  Committee, Loharu.  Pending this  unit petition,   the   Local   Government   Department,   Haryana Government  vide   its  notification  dated  25th  May  1995 appointed the  appellant as  President, Municipal Committee, Loharu as  according to  the State  Government the  post  of President was  by rotation  reserved for  a member  who  was elected in  the category  of Scheduled  Castes women  and as Respondent no.1  did not  belong to  the said category there was only  solitary  candidate,  namely,  the  appellant  for presidentship and that is how she was appointed as President of Municipal  Committee, Loharu  subject to  the decision of the writ petition of Respondent no.1.      A Division  Bench of  the High  Court allowed  the writ petition of  Respondent no.1 by the impugned order dated 7th May 1996.  According to  the High  Court as  there were  two candidates  in  the  field  belonging  to  the  category  of Scheduled Castes women, election had to be held for the post of President  and till  election is  held the  appellant may continue as  the President of the Municipal Committee. It is the aforesaid  order of the High Court that has been brought in challenge by the appellant in the present appeal. Pending these proceedings  status quo  has continued and that is how the appellant  is functioning  as  the  President  <??>  the Municipal Committee.      The short  question for  out  consideration  is  as  to whether the  Government Order taking the view that appellant is the  sole candidate  for the post of President, Municipal Committee, Loharu  and there  is no  question of any contest between the appellant and Respondent no.1 for the said post, is  justified   in  law   or  not.  The  relevant  statutory

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provisions in  this connection  are required to be noted. By the 73rd  amendment  of  the  Constitution,  the  Parliament declared Municipalities  to be  the  institutions  of  self- Government and  at the same time provided for constitutional reservation in  favor of  Scheduled Castes, Scheduled Tribes and women  vide Article  243T of  the Constitution of India. The said Article provides as under:      "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   woman    belonging   to   the      Scheduled Castes or as the case may      be, the Scheduled Tribes.      (3) ... ... ... ...      (4) The  offices of Chairpersons in      the   Municipalities    shall    be      reserved for  the Scheduled Castes,      the Scheduled  Tribes and  women in      such manners  as the Legislature of      a State may, be law, provide.      (5) ... ... ...      (6) ... ... ..."      As  per   sub-Article  (4)  Article  243T  it  becomes, therefore, clear  that the  offices of  Chairpersons in  the Municipalities shall  be reserved  for the Scheduled States, the Scheduled  Tribes  and  women  in  such  manner  as  the Legislature by  an  enactment  may  provide.  The  aforesaid constitutional  mandate   makes  it  very  clear  that  such chairmanships of  Municipalities would  be made available by rotation as  provided by  the State Legislature to Scheduled Castes, Scheduled  Tribes and women. Therefore, the category of  women   as  contradistinguished  from  the  category  of Scheduled Castes  and Scheduled Tribes would form a separate electoral division for the purpose of elections to the posts of Chairpersons of such Municipalities. By the aforesaid Act the Haryana  State provided  for the statutory procedure for such elections  to the  posts  of  Presidents  of  Municipal Committees.  In  this  connection,  the  relevant  statutory provisions are  found in  sub-rule (4)  of Rule  70  of  the Election Rules  and Sections  10(5) and 18 of the Act. While the relevant  rule being  Rule 70(4)  is  already  extracted earlier, Sections 10(5) and 18 of the Act read as under:      "10(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

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    in the manner prescribed.      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  the   Municipal  Committee   or      Municipal Council;      Provided that  the  office  or  the      President  in  Municipal  Committee      and  Municipal  Councils  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  vice-      president:      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) ... ... ..."      On  a   combined  reading   of  Article   243T  of  the Constitution of  India, Sections 10(5) and 18 of the Act and sub-rule (4)  of Rule 70 of Election Rules, it becomes clear that the  Parliament as well as the Legislature have enacted these provisions  in order  to provide  for  reservation  of office of  the President  for members  of Scheduled  Castes, Scheduled Tribes,  backward classes and women in rotation. A bare reading  of Section 10(5) and Rule 70(4) shows that the offices of  the Presidents  are to  be filled  from  amongst members belonging to different categories by rotation and by lots. It  is not  disputed that  the post  of  President  of Loharu Municipal Committee at the relevant time was reserved for Scheduled  Castes women.  So far  as  the  appellant  is concerned, she  has been  elected from  ward no.5  on a seat reserved for  Scheduled Castes  women.  Therefore,  in  that category she  is the  sole candidate.  So far  as Respondent no.1 is  concerned  even  though  by  coincidence  she  also belongs to  Scheduled Castes  but she  was not  elected on a seat reserved  for Scheduled  Castes women,  but on  a  seat reserved for  General category  women from ward no.11. It is not in dispute that in that ward there were other contesting women, not  belonging to Scheduled Castes category, but also belonging to General category. Therefore, Respondent no.1 is a member  who is  elected on  the seat earmarked for General category women; she cannot be said to be a member elected on a seat  reserved for  Scheduled Castes  women. In  ward no.5 from where  the appellant  contested. General category women could not  have contested,  and only  Scheduled Castes women could have  contested and  in that context appellant emerged

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successful. Therefore,  she must  be held to be belonging to category of  Scheduled Castes  and not belonging to category of women to which Respondent no.1 belongs. Consequently both of them  cannot be  treated to form a part and parcel of the same category of seats on which they have got elected. It is true as contended by learned counsel for Respondent no.1 and which contention  has appealed  to the  High Court that Rule 70(4)  mandates  that  the  offices  of  Presidents  of  the Municipalities shall  be filled  up from amongst the members belonging to the concerned categories mentioned in the Rule. But the  said phraseology  does not  imply that  the members must belong  to a  particular caste  like  Schedule  Castes, Backward Classes  etc. because  the general  words  ‘members belonging to’  are followed  by different  types of  classes like  General   category,  category   of  Scheduled  Castes, category of  Backward  Classes  and  category  of  women  as mentioned in  the said  Rule. It  is  obvious  that  general category has  nothing to  do with castes. Similarly backward classes have  nothing to  do with castes and the category of women is  also separately indicated. That is also not having any nexus  with the  castes. When  the thrust of the Rule is that offices  of the Presidents in Municipalities must go by rotation to  members belonging  to the specified categories, it would  necessarily mean  in the context of parent Article 243T of  the Constitution  of India and Section 10(5) of the Act that  the concerned  elected members  of  the  Municipal Committee must  have got  elected on  the seats available to General category  candidates or  Scheduled  Castes  category candidates  or   Backward  Classes  category  candidates  or General women  category candidates  by  rotation.  The  very concept of  rotation presupposes  that for  the  contest  of Presidentship once  by rotation  a reservation  is made  for members  elected  from  a  particular  category  only  those members can  contest for  Presidentship. As  admittedly  the post of  President.  Loharu  Municipality  is  subjected  to double reservation  of being  available only  to an  elected member who  is a  Scheduled Caste  woman she  must have been elected on  the Scheduled Castes seat from the ward reserved for such  Scheduled Castes  candidates. As  admittedly  only three wards,  namely, 1,  4 and  5 are  reserved for members belonging to  Scheduled Castes  and even  out of three wards only ward  no.5 from  which the  appellant was  elected  was reserved for  Scheduled Castes women and as President’s post is reserved for being filled up by a member belonging to the category of  Scheduled Castes  women who has been elected on such a  seat, the Respondent no.1 who is elected as a member not on any seat reserved for Scheduled Castes women but on a seat reserved  for General category of women from ward no.11 is obviously  out of  the arena  of contest  for the post of Presidentship of  Loharu Municipality, Appellant is the sole candidate elected  on the seat reserved for Scheduled Castes women. With  respect it  is not  possible to  agree with the reasoning  of   the  High  Court  that  the  words  ‘members belonging to’  as employed  in Rule  70(4) of  the  Election Rules would  bring in  all the  elected members belonging to Scheduled Castes into one category to enable them to contest for the post of President. Such a reasoning would cut across the very  scheme of reservation as envisaged by Article 243T of the  Constitution of  India and  Section 10(5)  read with Rule 70(4)  of the  Election  Rules.  The  High  Court  with respect has  not properly  appreciated  the  thrust  of  the provision regarding  the categories of reservation envisaged by the  Rule and  has equated  category with castes which is not  contemplated   by  the  Act  and  the  Election  Rules. Consequently, the decision rendered by the High Court on the

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construction of  the aforesaid relevant provisions cannot be sustained. On the other hand the Government Notification and Clarification dated 11th February 1995 get well sustained on the scheme  of the  Act and  the Election  Rules.  It  must, therefore, be held that as Respondent no.1 and the appellant did not belong to the same category of candidates elected on the seats  reserved for  Scheduled Castes  women even though both were  women and  belonged  to  Scheduled  Castes;  they represented  separate   electoral  wards   indicating   non- competing groups  or categories of membership and as both of them were  not at  part they  could not  contest on an equal footing for  the post  of President. As admittedly appellant was the  sole returned  candidate from the ward reserved for Scheduled Castes women and as the post of President was also by  rotation   reserved  only  for  a  member  belonging  to Scheduled Castes  women category she was the sole contestant for the  said post and was rightly held to be entitled to be the President of Loharu Municipality.      In the  result this appeal succeeds and is allowed. The judgment and  order of  the High  Court are  quashed and set aside. The  writ petition  filed by  Respondent no.1  stands dismissed. The appellant will be entitled to continue as the President of  the Loharu  Municipal Committee  for her  full term of  office. In  the facts and circumstances of the case there will be no order as to costs.