Back
IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
Dr. B.P. Saraf, A.Y. Sakhare and A.B. Palkar, JJ.
Ashok Kondiba Yenpure another ..... Petitioners.
Versus
The State Election Commission others .... Respondents.
Writ Petition No. 1375 of 1997, decided on 5-3-1998.
Advocates appeared :
S.M. Gorwadkar, for the petitioner.
R.V. More, for the respondent No. 1.
R.G. Ketkar, for respondent Nos. 2 3.
V.A. Thorat with Smt. Revati Mohite-Dere, for respondent Nos. 5 and 6.
V.M. Parshuram with S.B. Shetye, Addl.Govt. Pleader, for the respondent No. 4.
.
Rule 4-Issuance of notification, dated 20.10.1986 by Govt. of Maharashtra-Meaning of unreserved -Not proper to say unreserved a type of reservation for persons other than those for whom reservation has been made.- There is no category like "general category". This is an expression often used to describe "no-reserved" seats or offices. It is not that all seats or offices are reserved for one category or the other and that "unreserved" seats or offices are also reserved or earmarked for persons who do not fall in any of the categories for which reservation has been made. In the absence of reservation, all persons otherwise qualified are eligible to contest for the seats of Councillor or offices of Mayor irrespective of their caste, community or tribe. Reservation of the office of Mayor is intended only to ensure that specified minimum number of persons belonging to reserved category become Mayor of the Municipal Corporation. Such reservation cannot be construed to mean reservation of the unreserved seats for persons other than those for whom reservation is made. The unreserved seats are unreserved for all and anybody who is otherwise qualified to hold that office can seek election for that office and hold the same. In other words, all Councillors of the Municipalities irrespective of the fact whether they have been elected on " reserved seat or unreserved seat or whether they belong to reserved category or unreserved category are eligible to seek election for the office of Mayor when it is unreserved or, fails under the general category, whereas, when the office is reserved as per the roster for a person belonging to a particular category or caste, it is only a person belonging to that category or caste who can seek election for that office. This position is now well-settled by the decision of Supreme Court in Kasambhai F. Ghanchis case.
2.The petitioner, Ashok Kondiba Yenpure, is a Councillor of the Pune Municipal Corporation. He was elected to that post from a ward which was unreserved/open category ward. In the year 1997, the office of Mayor of the Pune Municipal Corporation was unreserved. The petitioner submitted his nomination paper for election to the said office of Mayor of Pune for the year 1997. The respondent No. 5 Mrs. Vandana Chavan, who was elected as a Councillor from a ward reserved for woman candidates, also filed her nomination for election to the office of Mayor of Pune. The nomination of the petitioner as well as respondent No. 5 were accepted by the Municipal Secretary, Pune Municipal Corporation, who was the Returning Officer for the election. The petitioner was aggrieved by the acceptance of the nomination of the respondent No. 5 by the Returning Officer. He, therefore, filed this writ petition challenging the acceptance of her nomination by the Returning Officer on the ground that having elected to the post of Councillor from a ward reserved for woman candidate she was not eligible to contest the election for the office of Mayor which was unreserved in the meantime, on 15th March, 1997, the election took place in which respondent No. 5 was elected as the Mayor of Pune. The petitioner amended his writ petition accordingly. The case of the petitioner is that a Councillor elected from a general category is only entitled to contest the election for the office of Mayor in the year in which the said office is not reserved for a specific category and is meant for a general category.
3.When the matter came up for hearing before the Division Bench, it was submitted by the learned Counsel for the petitioner that the above controversy stood concluded in favour of the petitioner by the decisions of this Court in Writ Petition No. 3110 of 1997 (Momin Adbul Rashid v. Vilas Raghunath)1, decided on 23rd September 1997 reported in 1998(2) Bom.C.R. 618, (Abdul Rashid v. State of Maharashtra)2, reported in 1998(1) Bom.C.R. 41(A.B.) Writ Petition No. 2909 of 1997 (Smt. Kusum Pandurang Khilare v. Smt. Sushilabai Mahadeo Swami)3, decided on 9th July 1997 reported in 1998(1) Bom.C.R. 271 and the decision of Supreme Court in (Saraswati Devi v. Shanti Devi)4, 1997(1) S.C.C. 122. The learned Counsel for the respondents, however, pointed out that the decision of the Supreme Court in Saraswati Devi (supra), which has also been relied upon and followed by this Court in the decisions referred to above, had been referred to larger Bench and the hearing of the same was also over. We were told that the decision of the larger Bench in the matter was awaited. In view of the above, learned Counsel for the parties agreed that the hearing of this writ petition should be deferred. When the matter came up for hearing on 19-12-1997, the learned Counsel for the respondents informed that the controversy stood concluded against the petitioner by the latest decision of the Supreme Court in (Kasambhai F. Ghanchi v. Chandubhai D. Rajput)5, 1998(1) Bom.C.R. 679(S.C.) by which the earlier decision of the Supreme Court in Saraswati Devi's case (supra) was reserved. The learned Counsel for the petitioner, however, did not agree with the above submission. According to him, despite the decision of the Supreme Court in Saraswati Devi's (supra) case having been held not to be a good law by the Supreme Court in Kasambhai F. Ghanchi (supra), the decision of this Court where it has been held that onl
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
