Biplab Kumar Sharma, J.

1. The petitioners numbering 7 are the elected members of No. 7 Barkhetri Anchalik Panchayat. They are aggrieved by appointment of the respondent No. 9 as the President of the said Anchalik Panchayat providing reservation as SC (Woman). According to the petitioners, the post ought to have been provided to a General category member instead of reserving the same for SC (Woman) candidate. In this connection, referring to the provisions of the Assam Panchayat Act, 1994 and the Assam Panchayat (Constitution) Rules, 1995, the petitioners have shown the population pattern of Schedule Caste in descending orders of the jurisdictional Anchalik Panchayat in the District of Nalbari in the following manner:--

Sl. No. Name of the Anchalik Panchayat General Schedule Caste Percentage

1. No.5 Tihu A.P. 70,160 13,486 19.22%

2. No.3 Paschim Nalbari A.P. 1,13,088 11,886 10.51%

3. No.6 Barbhag A.P. 58,613 4,039 6.89%

4. No.1 Pub Nalbari A.P. 1,12,955 5,301 4.69%

5. No.7 Barkhetri A.P. 1,64,815 7,073 4.29%

6. No.2 Barigog Banbhag A.P. 97,415 3,331 3.42%

7. No.4 Madhupur A.P. 45968 834 1.81%

2. The aforesaid population pattern is on the basis of 2001 census. Referring to the percentage of Schedule Caste population in reference to General population, it is the plea of the petitioners that by operation of the provisions of the Act and the Rules, it is the No. 6 Barbhag, which ought to have been provided with the reservation for the post of President instead of providing the same to No. 7 Barkhetri Anchalik Panchayat. Be it stated here that if the said plea of the petitioner is to be accepted, it is the No. 3 Paschim Nalbari Anchalik Panchayat, which is to get the Schedule Caste reservation, but it is on record that the particular candidate belonging to the said Anchalik Panchayat declined to accept the Presidentship as a reserved category candidate (SC-Woman).

3. I have heard Mr. B.C. Das, learned senior counsel assisted by Mr. I.H. Saikia, learned counsel for the petitioners. I have also heard Mr. N. Upadhyay, learned State counsel and so also Mr. M.I. Hussain, learned counsel representing the Election Commission. Mr. S.S. Dey, learned counsel has entered appearance on behalf of the respondent No. 9, who is the beneficiary of the reservation and has been functioning as President of No. 7 Barkhetri Anchalik Panchayat. Learned counsel for the parties have exclusively referred to the facts involved in this case and also the provisions of the aforesaid Act and the Rules. While Mr. Das, learned counsel for the petitioners has emphasised on the percentage of reservation to calculate the Schedule Caste population, Mr. Dey, learned counsel representing the respondent No. 9 has emphasised on the total Schedule Caste population in the respective Anchalik Panchayats.

4. To appreciate the aforesaid submissions, let me now refer to the relevant provisions of the Assam Panchayat Act, 1994 and the Assam Panchayat (Constitution) Rules, 1995. Section 38 of the Act deals with reservation for the Offices of the President and Vice President of Anchalik Panchayat. For a ready reference, the section is quoted below:--

38. Reservation for the offices of the President and Vice- President of Anchalik Panchayat.-

(1) There shall be reserved by the Government in the prescribed manner-

(a) such number of offices of the President of Anchalik Panchayat in the district for the person belonging to the Scheduled Castes and Scheduled Tribes and the number of such offices bearing as nearly as may be the same proportion to the total number of offices in the District as the population of the Scheduled Castes in the District or of the Scheduled Tribes in the district bears to the total population of the District;

(b) not less than one-third of the total number of offices of President and Vice-President of the Anchalik Panchayats in the District for each of the categories reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and those which are non-rese