2006 Supreme(Pat) 482

PATNA HIGH COURT
R.N.Prasad, Barin Ghosh and S.N.Hussain JJ.
Vijay Kumar Singh
Versus
State Of Bihar And Ors.And Union Of India (Uoi)
Civil Writ Jurisdiction Case No. 1095 of 2006 ; 1118 of 2006 ; 1246 of 2006 ; 1408 of 2006 ; 1413 of 2006 ; 1416 of 2006 ; 1422 of 2006 ; 1433 of 2006 ; 1445 of 2006 ; 1446 of 2006 ; 1658 of 2006 ; 1661 of 2006 ; 1701 of 2006 ; 1705 of 2006 ; 1706 of 2006 ; 1716 of 2006 ; 1717 of 2006 ; 1724 of 2006 ; 1750 of 2006 ; 1755 of 2006 ; 1762 of 2006 ; 1768 of 2006 ; 1770 of 2006 ; 1799 of 2006 ; 1801 of 2006 ; 1802 of 2006 ; 1808 of 2006 ; 1842 of 2006 ; 1865 of 2006 ; 1866 of 2006 ; 1867 of 2006 ; 1868 of 2006 ; 1881 of 2006 ; 1914 of 2006 ; 1916 of 2006 ; 1923 of 2006 ; 1933 of 2006 ; 1944 of 2006 ; 1947 of 2006 ; 1950 of 2006 ; 1952 of 2006 ; 1987 of 2006 ; 1990 of 2006 ; 1995 of 2006 ; 1999 of 2006 ; 2025 of 2006 ; 2027 of 2006 ; 2029 of 2006 ; 2034 of 2006 ; 2042 of 2006 ; 2051 of 2006 ; 2062 of 2006 ; 2081 of 2006 ; 2121 of 2006 ; 2136 of 2006 ; 2140 of 2006 ; 2141 of 2006 ; 2151 of 2006 ; 2155 of 2006 ; 2157 of 2006 ; 2159 of 2006 ; 2160 of 2006 ; 2165 of 2006 ; 2180 of 2006 ; 2181 of 2006 ; 2183 of 2006 ; 2184 of 2006 ; 2185 of 2006 ; 2209 of 2006 ; 2213 of 2006 ; 2221 of 2006 ; 2222 of 2006 ; 2224 of 2006 ; 2249 of 2006 ; 2271 of 2006 ; 2291 of 2006 ; 2307 of 2006 ; 2327 of 2006 ; 2328 of 2006 ; 2331 of 2006 ; 2347 of 2006 ; 2359 of 2006 ; 2360 of 2006 ; 2381 of 2006 ; 2388 of 2006 ; 2394 of 2006 ; 2396 of 2006 ; 2398 of 2006 ; 2412 of 2006 ; 2415 of 2006 ; 2416 of 2006 ; 2465 of 2006 ; 1447 of 2006 ; 2449 of 2006 ; 2450 of 2006 ; 1166 of 2006 ; 1519 of 2006 ; 2504 of 2006 ; 2571 of 2006 ; 2582 of 2006 ; 2593 of 2006 ; 2650 of 2006 ; 2719 of 2006 ; 2720 of 2006 ; 2723 of 2006 ; 2774 of 2006 ; 2935 of 2006 ; 2503 of 2006 ; 2538 of 2006 ; 2561 of 2006 ; 2597 of 2006 ; 2608 of 2006 ; 2648 of 2006 ; 2718 of 2006 ; 2721 of 2006 ; 2722 of 2006 ; 2724 of 2006 ; 2734 of 2006 ; 2803 of 2006 ; 2823 of 2006 ; 2830 of 2006 ; 2843 of 2006 ; 2857 of 2006 ; 2872 of 2006 ; 2884 of 2006 ; 2897 of 2006 ; 2908 of 2006 ; 2912 of 2006 ; 2934 of 2006 ; 2961 of 2006 ; 2985 of 2006 ; 2990 of 2006 ; 3022 of 2006 ; 3057 of 2006 ; 3059 of 2006 ; 3075 of 2006 ; 3301 of 2006 ; 3367 of 2006 ; 3440 of 2006 ; 3459 of 2006 ; 3468 of 2006 ; 3586 of 2006 ; 3694 of 2006 ; 3696 of 2006 ; 3822 of 2006 ; 3836 of 2006 ; 3840 of 2006 ; 3881 of 2006 ; 3911 of 2006 ; 3923 of 2006 ; 3954 of 2006 ; 3896 of 2006 ; 4142 of 2006 ; 4344 of 2006 ; 4847 of 2006 ;
Decided On : MAY 19, 2006

Headnote:Bihar Panchayat Raj Ordinance 2006-Validity of-The term of existing Panchayat expires in June 2006 and Legislative Assembly was to convene in February 2006-In order to constitute a Panchayat through election many steps are required to be taken-In much a situation making of the Ordinance to provide for election in accordance with the mandate of the constitution can not be said to be hasty step by the Governor-Situation justified taking of steps to promulgate the Ordinance as quickly as possible not only to take steps to hold election in terms of the constitutional mandate but also to apprise the people that they have been given what they are entitled to in terms of the direction of the constitution. (Paras 19 & 41)

       Bihar Panchayat Raj Act, 2006-Gram cutchery-No qualifications for Sarpanch, Up Sarpanch, Panch prescribed in the Act-In Krishna Kumar Mishra case also this point was not discussed except the observation of Supreme Court-The 1947 Act also did not prescribe any qualification for them-Gram cutchery functioning properly since the last 45 years-Lacuna sought to be removed in 2006 Act providing training of Sarpanch, Up Sarpanch and Panch also assistance of a lawyer to each Gram Cutchery whether that is sufficient or insufficient is another question. (Paras 27 & 54)

       Bihar Panchayat Raj Ordinance, 2006-Reservation in favour of women being horizontal in nature meaning within the class or communities to which they belong-It can not under any circumstances be considered as virtical reservation-Article 243D providing for reservation for women for not less than 1/3rd-The same has been increased to 50% in the Ordinance as well as in 2006 Act-That being permissible-No interference is required.

       (Paras 19, 34, 43 & 44)

       Bihar Panchayat Raj Act, 2006-Reservation to backward class-In view of 18% reservation for backward classes under Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1992 20% reservation in election can not be said to be improper-acthough the object of the 1992 Act was completely different but it is not in dispute that before specifying such percentage an attempt was made to justify the same-The one and only reason could be that the member of that class require that percentage of protection. (Paras 35 and 52)

       Bihar Panchayat Raj Act, 2006-Validity of challenge on the ground that where single posts of Mukhia cannot be reserved attained finality by High Court decision-The same could not be provided in Act 2006-Article 243D specifically directs much reservation in relation to scheduled caste and scheduled Tribe communities and enables such reservation in favour of Backward class citizens that being the constitutional mandate having not been challenged and on the contrary the earlier Division Bench having held the validity of Article 243D-It would not be proper to pronounce that Single Post can not be reserved-Reservation in single posts for scheduled cast and scheduled. Tribe communities is mandatory and so far as Backward Class citizens are concerned the same is permissible-Article 243D having been inserted after Full Bench decision it is no longer a good law-Division Bench not taking Article 243D into consideration declared per incuriam-As the constitution is a living organ so is the legislature-After Article 243D the State legislature could not deny the people what has been given to them by constitution merely because a judgment which stands in the way-Such reservation can not be said to be unauthorised. (Paras 36, 37 and 50)

       1987 PLJR 875-No longer good law

       1996(1) PLJR 481, 2005(4) JCR 1, 2005 (4) JLJR-Referred to.

       Constitution of India-Article 213Article 213 only ensures that after lapse of the period mentioned thereunder nothing can be done in exercise of power granted by the Ordinance-The Ordinance lapsed on 9th April 2006 and the Act 2006 came into force from 10th April-No one could exercise any power under the .Ordinance on and from 10th April-Contention of the petitioners that whatever was done under the Ordinance should be deemed to be redundant can not be accepted. (Para 42)

       Constitution of India-Article 243D-When the constitution provides that the offices of the chairpersons in Panchayats shall be reserved despite the posts of chairpersons in Panchayats as that of Mukhias. Pramukh and Adhyakash being single posts those are to be reserved for Scheduled caste and Scheduled Tribes communities and when the constitution enables such posts to be reserved also for Backward Class Citizens there is no impediment in reserving those posts for them-In as much as the Constitution does not direct establishment of committees of Panchayats and in as much as the Ordinance as well as the 2006 Act provides for constitution of various committees of Panchayats-It can not be said that reservations of posts of chairpersons of those committees can be reserved.

       (Paras 4, 5)

       1987 PLJR 875-Referred to.

       Constitution of India-Article 243D-Rotation of reservation-Available up to 26th January 2010-The first reservation was made in 2001 when no reservation was made for Backward class citizens-There would be no impediment in rotating the reservation already made and to provide for reservation for the first time for backward class citizens-Constitution of Panchayats before the expiry of 20th January 2010 requires reservation and the term of such Panchayat despite reservation coming to an end on 26th January 2010 will be for five years. (Paras 48 & 49)

       Judicial Discipline-In terms of judicial hierarchy larger Bench is not bound by a decision of a smaller Bench while it is bound by a decision rendered by a coordinate Bench-A law declared by a larger Bench should not be declared to be an incorrect declaration of law by a Smaller Bench even if the basis of declarations of law by the larger Bench has been altered when much a situation crops up-Judicial discipline requires that the smaller Bench shall refer the matter to the larger bench so that the larger bench after noting the change effected can suitably alter the declaration made by it earlier. (Para 24)

       Judicial Discipline-Full Bench held that Single post of Mukhia can not be reserved as per the constitutional scheme-Division Bench acted within four corners of judicial discipline by following the Full Bench-Full Bench decision no longer a good law on account of subsequent insertion of Article 243D-Division Bench not taking note of constitutional amendment declared per incuriam. (Paras 25, 36 & 39)

       1987 PLJR 875-No longer good law

       1996(1) PLJR 481-Per in curium.

       Election Laws-Reservation-The constitution has provided for equality and at the same time has granted power to make unequals as equals-In the matter of reservation for scheduled caste and scheduled tribe communities the constitution has to make a specific provision there for so as to ensure such reservation-That suggests that the power to make unequals as equals as well as power to make laws pertaining to elections do not incompass power to monopolize in favour of any class or community a right to be elected to the exclusion of others-At the best reservation can be made up to 49%-State directed to apply its mind in future and ensure that not exceeding 49% of the Seats are reserved-Because of inclusion of Kurmi (Mahto) in the schedule who may not be present in Bihar-An attempt to benefit other genuine Backward Class Citizens can not be scuttled.

       (Paras 32 and 53)

       AIR 1993 SC 447-Referred to.

       Administration of Justice-If a new law is made any conclusion on the basis of a law previously made though for the same purpose can not be binding though a vested right founded on an existing right can not be denied thus. (Para 38)

       Constitution of India-Article 243C(5)-Plea that Article 243C (5) empowers election of chairperson at the village level either directly or indirectly but mandates election of chair persons at other levels indirectly and as much when it is decided to elect chairpersons at the Village level directly no reservation can be made-In order to accept this plea courts have to include the words "elected indirectly" after the words "at the village" and before the words "on any other level" in Article 243D(4) which the court can not do and even by applying the concept of either ezusdem generis or reading down the same can be achieved. (Para 46)

       Constitution of India-Article 16(4)-Article is also applicable when the mode of appointment is by election and not by selection but not to rule but to administer-A post of Munsif which can be reserved is a single post for the cases which will come before him will not go to another Munsif-There is no reason why a post of Sarpanch or Up Sarpanch or Panch cannot be reserved. (Para 51)