J U D G M E N T / O R D E R The following Judgment of the Court was delivered: Verma, CJI:
The only question which arises for consideration in this appeals is 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.
With a view to provide for setting up of democratic institutions at the grass root level, by virtue of 73rd Amendment to the Constitution, Part-IXA providing for establishment of the municipalities was incorporated in the Constitution. Article 243 Q, inter alia, provides for the setting up of municipalities in urban areas and Article 243T requires all seats in the municipalities to be filled by persons chosen by direct election. For this purpose each municipal area is to be divided into territorial constituencies to be known as wards from where the election takes place. Reservation of seats for Scheduled Castes, Scheduled Tribes and women is required to be provided for by virtue of Article 243 T of the Constitution which reads as follows:
"243-T.- 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 Tribes in the
municipal area bears 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
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 a 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."
The aforesaid article not only provides for reservation of seats for Scheduled Castes and Scheduled Tribes and women in the municipalities but also envisages that such reservation of seats shall be by rotation. In addition to reservation to the municipalities, sub-article (4) also contemplates the state Legislatures providing, by law made in this behalf, reservation for the Scheduled Castes, Scheduled Tribes and women to the post of chairperson in the municipalities. Further to the aforesaid reservation for Scheduled Castes, Scheduled Tribes and women, sub-article (6) of Article 243T empowers the State Legislatures to make provision for reservation of seats, in any municipality or offices of Chairperson in the municipalities, in favour of backward class citizens.
The Gujarat Municipal Act 1963 was amended by Act 17 of 1993 so as to bring it in conformity with the provisions of Part IXA of the Constitution. Section 6 of the Gujarat Municipal Act made provision for reservation of seats for Scheduled Castes, Scheduled Tribes, backward classes and women out of the total number of seats of Councillors in the municipalities. The relevant provisions of Section 6, namely, sub-sections (1), (2) and (3) are as follows:
"Municipality to consist of elected Councillors:
(1) Every municipality shall consist of elected
councillors.
(2) The number of such councillors shall be
(a) 21 in the case of a nagar panchayat
(b) 27, if the population of the municipal borough
exceeds 25,000 but does not exceed 50,000.
(c) 36, if the population of the municipal borough
exceeds 50,000 but does not exceed 1,00,000,
(d) 42, if the population of the municipal borough
exceeds 1,00,000 but does not exceed 2,00,000, and
(e) 51, if the population of the municipal borough
exceeds 2,00,000.
(3) Out of the total number of seats of councillors in
a municipality, there shall be reserved seats for
Scheduled Castes, Scheduled Tribes, backward
classes and women as follows, namely :-
(a) Seats shall be reserved by the State Government for
the scheduled castes and the Scheduled Tribes in
every municipality and the Scheduled Tribes in
every minicipality 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 that
municipal area or of the Scheduled Tribes in that
municipal area bears to the total population of
that area and such seats may be allotted by
rotation to different constituencies in a
municipality in the prescribed manner.
(b) One-third of the total number of seats reserved
under clause (a) shall be reserved for women
belonging to the Scheduled Castes or, as the case
may be, the Scheduled Tribes.
(c) One-tenth of the total number of seats to be filled
by direct election in every municipality shall be
reserved for persons belonging to backward classes
and one-third of the seats so reserved for
backward classes shall be reserved for women
belonging to the backward classes. Such seats may
be allotted by rotation to different
constituencies in the prescribed manner.
(d) One-third (including the number of seats reserved
for women belonging to the Scheduled castes, the
Scheduled Tribes and the backward classes) 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 to different constituencies in a
municipality in the prescribed manner.
(e) The reservation of seats under clauses (a), (b) and
(c) (other than the reservation for women) shall
cease to have effect on the expiration of the
period specified in Article 334 of the
Constitution of India. Explanation :- For the purpose of this section: "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Gujarat under Article 341 of the Constitution of India. "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within such tribe or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution of India, and "Backward Classes" means classes declared as Socially and Educationally Backward Classes by the state Government from time to time."
Chapter 3 of the Gujarat Municipalities Act contains provisions relating to Presidents and Councillors of the municipalities. Section 33 of the Gujarat Municipalities Act provides for the term of office of President and Vice President and reads as follows:
"Term of office of President and
Vice-President:-
(1) (a) The term of office of the
President shall be for a period of
one year.
(b) Subject to the other provisions
of this section, the President
shall be eligible for re-election.
provided that the term of office of
such president or vice-president
shall be deemed to extend to and
expire with the date on which his
successor is elected.
(2) If during his term of office
under sub-section (1), the
president or vice-president ceases
to be a councillor he shall vacate
the office held by him.
(3) The office of the President in
every municipality shall be
reserved by the state Government
for Scheduled Castes, Scheduled
Tribes, backward classes and women
in the prescribed manner. Such
reservation shall be made as nearly
as may be in the same proportion as
is made under sub-section (3) of
section 6 in their favour in the
total number of seats to be filled
in by direct election.
(4) On the expiry of the term of
the office of the councillors of
the Municipality, the current
administrative duties of the office
of the president and of the vice
president of the Municipality shall
be carried on by such officer of
the state Government as it may by
order specify in that behalf, until
such time as a new president, vice-
president shall have been elected
and shall have been elected and
shall have taken over the charge of
their duties."
It is in order to give effect to the provisions of article 243 T that the State Government, in exercise of the rule making powers conferred on it by Section 277 read with aforesaid sub-section (3) of Section 33 of the Gujarat Municipalities Act, 1963, framed the Gujarat Municipalities (Reservation of Scheduled Castes, Scheduled Tribes, Backward Class and women for office of President) Rules, 1994. Rules 2 and 3, which are relevant in the present case, are as follows:
"2 Reservation in favour of
Scheduled Castes, Scheduled Tribes,
Backward Classes and Women:- The
office of the President of a
Municipality shall be reserved in
favour of scheduled castes,
Scheduled Tribes, Backward Classes
and Women in accordance with the
roster shown in Schedule.
3. Reservation to continue for
casual vacancies:- If any election
is be held for filling up a casual
vacancy that has arisen in the
office of the president, the
reservation, if any, applicable for
the office of the previous
President (whose term has not been
completed) shall continue for such
election."
The Schedule to the Rules, envisaged by Rule 5, contains the roster and indicates in what manner the post of the President of the Municipality is to rotate amongst different categories of Councillors, namely, Scheduled Castes, Backward Class, women and general. In respect of Category A municipalities, roster point was worked out on the basis of Schedule Castes-1, Backward Class-1, Women-3 and General-5. On this basis, with regard to the Jambusar Municipality, with which we are concerned in the present case, the office of the President in 1997 was required to be filled by backward class candidates.
The appellant, though belonging to backward class, had been elected to a ward which was in the general category in the general elections held on 28th December, 1994. Respondent No.1 was elected in a by-election held on 25th August, 1995 to one reserved seat for backward class category which had fallen vacant. As per the roster a person belonging to a backward class was to hold to office of the President of the Minicipality for the term beginning in 1997. Anticipating that Councillors belonging to the backward classes, who may have been elected from the seats meant for general category, like the appellant herein, were also likely to contest in the election for President, respondent no.1 filed a writ petition in the Gujarat High Court. The claim of the said respondent no.1 was that those backward class members of the municipalities who had not been elected as members from the seats reserved in favour of backward classes were not entitled to contest the election for the office of President. In other words according to the said respondent it is only those backward class candidates who had been elected from the wards which had been reserved for backward classes who could stand for election for the post of President in the third year when as per the roster the office of President had to be filled by a backward class candidate.
The writ petition filed by the said respondent wad dismissed but then an application for review was filed on the basis that the decision of the single judge was contrary to the judgment of this Court in the case of Saraswati Devi Vs. Shanti Devi (1997) 1 SCC 122 The review petition was allowed, the judgment dismissing the writ petition was recalled and thereafter the writ petition filed by the respondent no.1 was allowed holding that the appellant herein, who is the meantime had been elected as the President pursuant to the election which was held, could not have stood for election because he was not a member of the Municipality from a seat which was reserved in favour of the backward class as he had been elected to a seat falling in the general category. The Letters Patent Appeal filed by the appellant was dismissed. Both the Single Judge as well as the Division Bench decided against the appellant in view of the aforesaid decision of this Court in Saraswati Devi’s case.
Mr. Soli J. Sorabjee, learned senior counsel for the appellant, submitted that the decision in Saraswati Devi’s case requires reconsideration in as much as the said decision runs counter to the provisions of the Constitution and the Gujarat Municipalities Act and the rules framed thereunder. On behalf of the respondent, however, it was submitted that Saraswati Devi’s case correctly interprets the relevant provision and there is no reason why the view taken therein should be departed from.
Before referring to Saraswati Devi’s case, it will be appropriate to examine the provisions of the Constitution as well as the Act the Rules for their true import and effect. As is evident from the provisions quoted earlier the municipalities are required to be represented by members belonging to all sections of the society. Keeping in line with the Constitutional mandate there is now provision for reservation of seats in the municipalities in favour of the Scheduled Castes, Scheduled Tribes, Backward Classes and the women. In addition thereto the post of the President of the Municipality, which has a tenure of only one year, is to be filled by rotation from amongst the persons belonging to different classes. Though, the term of office is only for one year but Section 33 envisages that the Provisions of sub-section (3) which provides for reservation of the office of the President to be filled by different categories by rotation. 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, Schedule 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 Schedule Caste, Schedule 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 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.
The rules framed under the Act also do not contain any provision that only members elected to the reserved seats will be eligible to stand for election of the President when, as per the roster, the office is required to be filled by a person belonging to a particular category.
By providing for the officer of the President to be filled from different categories of persons by rotation the effect is that, as per the roster point, the office of the President is required to be filled from a specified or particular class, e.g. the Scheduled Caste, or Scheduled Tribe or Backward class or woman, then all other members of the municipality who do not fall under that category, are all excluded from contesting the election. The eligibility, and corresponding exclusion,of others is determined on the basis of the candidate answering to the description of the category or caste for whom the post is reserved as per roster and not the nature of constituency from which the person is electe. For example when as per roster the candidate for the President’s post has to be a Scheduled Caste then the Act and the Rules do not provide that it is only that Scheduled Caste candidate who has been elected from Scheduled Caste ward who can stand for election and the other Scheduled Castes candidates are not eligible even though they were popular enough to get elected from unreserved wards.
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 can effort to improve their lot. The reservation ensures that the specified minimum number of 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 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 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 be a reserved category person.
In Saraswati Devi’s case the appellant therein belonged to a Scheduled Caste category and had been elected as a member of the Loharu Municipality Committee from the ward reserved for Scheduled Caste woman while the respondent therein, who was also a Scheduled Caste woman, had been elected as a member of the general category. The office of the President, by virtue of the rotation, was required to be filled from amongst the members belonging to Scheduled Caste woman category. Saraswati Devi being the solitary candidate elected from the ward reserved for Scheduled Caste woman was declared as having been elected unopposed as President. This decision was challenged by Shanti Devi on the ground that she was also a Scheduled Caste woman, though elected to a seat reserved for general category and was entitled to contest the election for the President. The writ petition was allowed by the High Court who held that Shanti Devi was also entitled to contest the election to the post of the President even though she had been elected to a seat reserved for general category. In allowing the appeal filed by Saraswati Devi the court had to construe the provisions of Rule 70(4) of the Haryana Municipal Election Rules 1978 which, inter alia, provided that offices of the President in the minicipalities shall be filled up from amongst the members belonging to the general category. Scheduled Castes, Backward Classes and women by rotation and 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. It also provided that in case the office is required to be filled by woman of a reserved category but such women are not available, then the office of the President shall filled up from the male member of the said reserved category. Section 10(5) of the relevant act provided that the offices of President in the municipalities shall be filled up from amongst the members belonging to general category, Scheduled Castes, Backward Classes and women by rotation and by lots in the manner prescribed. Interpreting these provisions it was observed at page 128 as follows:
"On a combined reading of Article
243 T 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 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
Rules 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 Caste women. So far as
the appellant is concerned, she has
been elected from Ward No.5 on a
seat reserved for Scheduled Caste
women. Therefore, in that category
she is the sole though by
coincidence she also belongs to
Scheduled Caste but she was not
elected on a seat reserved for
Scheduled Caste 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 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 Caste women. In Ward
No.5 from where the appellant
contested, and only Scheduled Caste
women could have contested and ion
that context the appellant emerged
a Scheduled Castes and not
belonging to the 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 of
the Municipalities shall be filled
up from amongst the members
belonging to the categories
concerned mentioned in the Rule.
But the said phraseology does not
imply that the members must belong
to a particular caste like
Scheduled Castes, Backward Classes
etc. because the general words
"members belonging to" are followed
bu different types of classes like
General category, category of
Scheduled Caste, 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
having 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 means in the
context of the parent Article 243 T
of the Constitution of India and
Section 10(5) of the Act that the
elected members concerned 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 General women
category candidates rotation. The
very concept of rotation
presupposes that for the context 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 Caste
seat from the ward reserved for
such Scheduled Caste candidates.
As admittedly only three wards,
namely, 1,4 and 5 are reserved for
members belonging to Scheduled
castes and even out of three wares
only ward No.5 from which the
appellant was elected was reserved
for Scheduled Caste women and as
President’s post is reserved for
being filled up by a member
belonging to the category of
Scheduled Caste women who has been
elected on such a seat, Respondent
1 who is elected as a member not on
any seat reserved for Scheduled
Caste 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."
Neither the provisions of Article 243 T nor of Section 10(5) of the Haryana Act seem to suggest to us that Rule 70(4), which provides that offices of the President of municipalities must go on rotation to members belonging to specified categories, must necessarily mean "that the elected members concerned of the municipal committee must have got elected members concerned of the municipal committee must have got elected to the seats available to general category candidates or Scheduled Castes category candidate or Backward Classes category candidate or general women category candidates by rotation." There seems to be no warrant for such compartmentalisation and nor do the words of the act or the Rules indicate that the concept of rotation presupposes that for the contest of President it is to be from amongst the members elected from a particular category from the seats reserved for that category. This inference which is sought to be drawn does not flow from the plain language of Article 243 T or from the provisions of the Act or the Rules framed thereunder and it also does not promote the object of reservation. The legal provisions provide that office of the President of the municipality should go by rotation to members belonging to specific category and no more. These provisions dot not provide that those members, though falling in the category of Scheduled Castes, Scheduled Tribes, backward Classes or women must be only those who have been elected from the seats reserved for that category of persons. Reservation is with reference to the category/caste to which the person belongs and not the nature of constituency from which he/she was elected.
The Act and the Rules provide for reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and women. No reservation or clarifications 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 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.
In our opinion, therefore, the conclusion which was arrived at in Saraswati Devi’s case did not flow from the language of the relevant provisions and, it is not consistent with the concept of reservation. With respect, it does not lay down the correct law.
From the aforesaid discussion it follows that the appellant who belongs to the Backward Class was eligible to stand for the office of President even though he had been elected as a member of the municipality not from a reserved seat but from a general seat. As per the roster it is a Backward Class member who in the year 1997 is to be the President of the Jambusar Municipality. The appellant, who admittedly belongs to a Backward Class could not be regarded as being ineligible merely because he had not been elected to a seat which had been reserved for a Backward Class candidate.
Consequently his election as the President, on this ground, could not have been set aside. For the aforesaid reasons the judgment of the High Court under appeal is set aside as the election of the appellant cannot, on this ground, be held to be invalid. Consequently, the writ petition filed by respondent no.1 stands dismissed. No order as to costs.