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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
MS. SABINA, SATYEN VAIDYA, JJ.
Ms. Reeta Devi, D/o Sh. Mohan Lal – Appellant
Versus
State Of Himachal Pradesh – Respondent
Civil Writ Petition No. 3490 of 2022
Decided on : 04-08-2022
Himachal Pradesh Panchayati Raj (Election) Rules 1994 - Rule 28 (8) - Constitution of India, 1950 – Article 243(o) and 342D (6) - Bar to interference by courts in electoral matters - Notification - Reservation to office of President, Gram Panchayat Sainj - Election process - Whether data allegedly collected by H.P. Commission for Backward Classes with respect to population of backward classes after completion of election process for all other GPs in State except GP Sainj, could be looked into or made relevant - respondent No.6 herein assailed reservation of Gram Panchayat Sainj for aforesaid purpose before this court by way of CWP on ground that there was not even a single person belonging to backward class in entire Panchayat - Notification issued by respondent No.4 cannot be sustained for reasons firstly that it has been issued in a mechanical manner, without due application of mind and secondly that same is in violation of instructions issued by Secretary Panchayati Raj, Government of Himachal Pradesh and lastly violates right of proportionate representation available to persons belonging to backward classes under Section 125(3) of Act and Article 342D(6) of Constitution. (Para 25)
Finding of the court: The population for purposes of Act relates back to the previous Census and hence any data collected thereafter cannot be considered. Section 2(29) of the Act defines ‘population’ - Admittedly, an anomalous situation arises in case such subsequent data is taken into consideration. The de-reservation of Gram Panchayat, Sainj amounts to violation of the instructions, whereby three seats of President Gram Panchayat are required to be reserved in favour of persons belonging to Backward Classes in development block Theog - The nature of the controversy raised in present petition is not covered by any of situations provided under Article 243-O. Under said Article embargo is with respect to the proceedings in which validity of any law relating to delimitation of constituencies or allotment of seats to such constituencies, made or purported to be made under Article 243-K, has been challenged. Further, prohibition prescribed by Article 243-O (b) relates to proceedings, which are substitute to election petition permissible under law - notification issued by respondent No.4 and consequent initiation of election process by Respondent-3 to office of President Gram Panchayat Sainj quashed and set aside.
Result: Writ petition disposed of
ORDER :
1. Facts necessary for adjudication of the petition are as under: -
(ii) The dispute herein relates to the reservation to the office of President, Gram Panchayat Sainj.
(iii) In the first instance respondent No.6 herein assailed reservation of Gram Panchayat Sainj for aforesaid purpose before this court by way of CWP No. 6352 of 2020 on the ground that there was not even a single person belonging to backward class in entire Panchayat. During the pendency of the said petition, a corrigendum dated 12.11.2021 was issued by Department SJ &E inter-alia notifying the population of persons belonging to backward classes in GP Sainj as Nil. Resultantly, respondent No.4 vide notification dated 30.4.2022, dereserved the office of the President GP Sainj. This development led to the culmination of proceedings in CWP No. 6352 of 2020, as infructuous vide order dated 4.5.2022.
(iv) Before the final disposal of CWP No. 6352 of 2020, petitioner therein had moved an application for impleadment of Smt. Indira Devi, Smt. Manju Kumari and Smt. Rita Devi as party respondents on the premise that they would be necessary and proper parties, as they had filed their nominations to contest the office of President, GP Sainj as candidates belonging to backward classes
(v) The instant petition, now has been filed by two of the three above mentioned proposed respondents in CWP No. 6352 of 2020, namely Smt. Rita Devi and Smt. Indira Devi. Their grievance is against de-reservation of office of President GP Sainj. Petitioners claim themselves to be the members of backward classes. Certificates issued by Tehsildar, Theog certifying the petitioners to be the members of backward classes have been placed on record.
vi) Petitioners herein contend that notification dated 30.4.2022, issued by respondent No.4, declaring office of GP Sainj available to general category is in violation of instructions dated 24.9.2020, issued by Secretary Panchayati Raj. As per these instructions, for the purposes of reservation roster the Development Block is taken as one unit. No reservation to the office of President of GP is available for backward classes in those development blocks which have less than 5% of their total population belonging to such classes. Where the population of backward classes in a development block is 5% or more of its total population, reservation for backward classes for the office of Presidents GP becomes available in same proportion to total number of seats of Presidents GP in the entire block as is the ratio of population of backward classes to the total population in entire block. The reservation for backward classes cannot be more than 15%. According to petitioners the de-reservation of GP Sainj for above said purpose shall leave only two seats of the office of Presidents GP reserved for backward classes as against required three as per above mentioned instructions.
(vii) Respondents No.1, 2 and 4 have submitted their joint reply. These official respondents have also relied upon the instructions dated 24.9.2020, issued by Secretary, Panchayati Raj in respect of reservation to the posts of Presidents of Gram Pa
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