2022 Supreme(Pat) 789

IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, CJ and S. KUMAR, J.
CWJC Nos. 12514, 13513, 14193, 14206, 14207, 14219, 14234, 14240, 14241, 14242, 14245, 14246, 14247, 14249, 14303 of 2022
(4.10.2022)
Sunil Kumar (in 12514)
Surendra Kumar Agrawal (in 13513)
Harsh Vardhan Narayan (in 14193)
Nitish Kumar (in 14206)
Suresh Prasad (in 14207)
Sanjay Kumar Kejriwal (in 14219)
Firoj Alam (in 14234)
Ujjawal Kumar (in 14240)
Gautam Kumar (in 14241)
Narayan Singh (in 14242)
Sanjeet Kumar Singh (in 14245)
Om Prakash Singh (in 14246)
Gulfisana Daughter of Mohammad
Ezahar (in 14247)
Bhekhari Sah (in 14249)
Mahanand Sahni (in 14303)
vs.
State of Bihar & Ors. ... Respondents
(in all)
Mr. Mrigank Mauli, Sr. Adv., Rajeev Ranjan, Dayanand Singh, Nagdeo Choubey, Dhananjay Kashyap, Pallavi Trivedi, Amit Shrivastava, Sr. Adv., (Amicus Curiae) (in 12514); M/s S.B.K. Mangalam, Awnish Kumar, Kumar Gaurav, Amit Shrivastava, Sr. Adv., (Amicus Curiae) (in 13513); M/s Siddhartha Prasad, Shashi Shekhar Kumar Prasad, Prashant Kumar Sinha, Sunit Kumar (in 14193); M/s Sunil Kumar Yadav, Rajesh Kumar, Jaishree Kumar (in 14206); M/s Ajay Prasad, Kaushal Kumar (in 14207); M/s S.B.K. Mangalam, Awnish Kumar (in 14219, 14234); M/s Sumeet Kumar Singh, Alka Singh, Satyendra Prasad Singh (in 14240); M/s S.B.K. Mangalam, Awnish Kumar, Kumar Gaurav, Anita Kumari (in 14241); S.B.K. Mangalam, Krishna Chandra, Awnish Kumar (in 14242); M/s Mrigank Mauli, Sr. Adv., Avinash Kumar, Krishna Chandra (in 14245); Ms. Meenakshi Arora, Sr. Adv., Y. V. Giri, Sr. Adv., Rahul Shyam Bhandari, Dayanand Singh, Dhananjay Kashyap, Pallavi Trivedi, Nagdeo Choubey (in 14246); M/s Manohar Prasad Singh, Samir Kumar Sinha, Prem Prakash Poddar (in 14247); M/s Ravi Ranjan, Raja Kumar, Suruchi Priya (in 14249); M/s Rajeev Kumar Singh, Prabhojot Singh, Gyanendra Kumar Diwakar, Pranab Kumar (in 14303).
Ms Vikash Singh, Sr. Adv., Lalit Kishore, Pawan Kumar, Anmol Chandan, Deepika Kaha, Kumar Shanu (in 12514); Mr. Kinkar Kumar(in 14193); Mr. Subhash Prasad Singh (in 14207, 14240); M/s Lalit Kishore, Subhash Prasad Singh (in 14247).

Headnote:

Constitution of India – Article 243-D of Part-IX and Article 243-T of Part IX-A – Bihar Municipal Act, 2007 – Sections 12 and 29 – Municipal election – Reservation – Compliance with triple test condition["(i). Having a dedicated commission to conduct an empirical inquiry into nature and implication of backwardness in relation to local bodies; (ii) Specification of proportion of reservation required in light of recommendations of Commission; and (iii) Observance of limit of 50% on reservations."] – If triple test condition is not complied with, seats reserved for OBC/EBC Category shall be declared as open category seats and elections to said seats will be carried out in that effect – Articles 243-D and 243-T form a distinct and independent constitutional basis for reservations in local self-government institutions – Nature and purpose are different and distinct from reservation policies designed to improve access to higher education and public employment as contemplated under Articles 15(4) and 16(4) – Concept of EBC, as carved out by Bihar, at best is only a "sub-set" and not an "off-set" of OBC – Primary reservation source, be it for OBC or EBC, flows through Article 243(6) alone, whereby for "OBC" category, States are enabled to provide reservations through a statutory mechanism – This is unlike category of SC and ST, for whom, as Constitution provides, reservation necessarily has to be based on population, regardless of their political backwardness. (Paras 20 and 42)

Bihar State Commission for Backward Classes Act, 1993 – Section 9 – Bihar Municipal Act, 2007 – Sections 12 and 29 – Municipal election – Reservation – Compliance with first test principle of having a dedicated commission to conduct an empirical inquiry into nature and implication of backwardness in relation to local bodies – It is not pleaded case of State that Government had ever entrusted any work to State Commission for Most Backward Class, undertaking task of conducting empirical inquiry into nature and implication of political backwardness of EBC, much less of OBC category for the purpose of reservation to election of municipalities – Scope of Commission is specific and confined to EBC and not OBC as a whole, for former is only a subset of latter – Commission's primary objective is to prepare a report after examining reasons for social, educational and economic backwardness – Impugned actions suffers from vice of lack of jurisdictional error since imperativeness of need to establish a dedicated Commission or empowering existing bodies to undertake task of empirical data collection and study thereof have not been carried out – First prong of three-fold test not complied by Government. (Paras 74, 75, 76 and 77)

Bihar Municipal Election Rules, 2007 – Rules 29 and 30 (Forms 7, 8 and 90 – Municipal election – Reservation – Compliance with second test principle of Specification of proportion of reservation required in light of recommendations of Commission – Onus is on executive to conduct a rigorous investigation into patterns of backwardness that act as barriers to political participation – On record, save and except for list notified on 11th September 2015 (Page 456), whereby amendment in list of Act No. 3 of 1992/Reservation Act about EBC and OBC was brought about, there is no other latest list – Notification does not specify list to have been amended based on recommendations made either by Backward Classes Commission or Extremely Backward Classes Commission – There is total non-compliance of mandate of Constitution Bench Judgments – Forms 7, 8 and 9 only indicate total population of ward and population of SC/ST in the ward – They do not indicate data of population for providing reservation, be it for SC, ST or OBC Category – Procedure and pattern adopted by Government/Election Commission in reserving seats for OBC category in all Municipalities, be it Municipal Corporation, Municipality or Nagar Parishad, is identical – Reservation across the board is provided without evaluating any parameters, except population and also judging its overbreadth – No point of reference to Backward Class Commission or Extremely Backward Class Commission for ascertaining political backwardness is placed on record – It is also not the pleaded case that list notified in year 2015 was prepared with such intent and endeavour – Identification is an ongoing process – It cannot be static – Between preparation of last list, one full term of an elected body is over – Exercise undertaken by Kalekar and Mungerilal Commissions was not from point of political backwardness but instead identifying socially and economic backwards castes – Providing reservations without setting out essential parameters or ensuring compliance only perpetuates inequality – Having acquired benefits of reservation in service, a person of means may still be backward in political field – There is no statistical data on Population of EBC(s) within Local Bodies, nor is there any data relating to proportional representation of EBC in Local Self Government, particularly in Municipalities, meeting requirement of triple test – Government, without collecting empirical data or conducting a study, also about political backwardness, carried out exercise of reserving seats purely based on population, and that too, perhaps for EBC category – Same cannot be solitary basis for providing reservations – Government has failed to establish compliance of Second Test Principle. (Paras 79, 81, 82, 94, 95, 97, 103, 104 and 107)

Bihar Municipal Act, 2007 – Sections 12 and 29 – Municipal election – Reservation – Compliance with third test principle limit of reservation of 20% for the OBC category – No material indicates impugned action of providing reservation through various notifications/ circulars/orders to be in excess of combined upper limit of 50 per cent for all categories/classes/persons – Government and Election Commission were aware of their duties – They failed, but opportunity to take remedial measures is yet not extinguished – No plausible explanation is forthcoming from Election Commission for initiating election process by providing reservation to OBC category – Election Commission is definitely not subservient to Government – It did not revise its opinion – It did not seek any legal opinion before acting on Government's dicta – Also, it did not seek recourse to any legal remedy – Secretary, State Election Commission, directed to carry out elections only by immediately re-notifying seats reserved for OBC Category treating them as general category seats. (Paras 108, 112, 121, 123, 134 and 135)

Bihar Municipal Act, 2007 – Section 12/13 read with Section 2(100) – Statutory reservation of seats for the post of Deputy Mayor/Deputy Councillor or similar posts is permissible in law – Challenge to reservation of posts of Deputy Mayor/Deputy Councillor/ other similar posts is not illegal and/or unsustainable – Section 2(100) of Bihar Municipal Act, 2007 cannot be said to be ultra vires – Entries in Schedule cannot be basis for reservation to category of OBC for the purpose of Section 12/13 of Municipal Act – Deputy Chief Councillor and Deputy Mayor have limited role to play – Only if main post falls vacant or incumbent is enable to exercise powers, be it for whatever reason and period, next in line would take over – Till such time, regular incumbent to main post joins or is elected. (Paras 128, 131 and 134)