Point of Law: All women belonging to all categories, irrespective of their religion, race, caste, sex or place of birth, are entitled to contest election for seats meant for all as well as women belonging to Open or General Category.

JUDGMENT :

Vivek Singh Thakur, J.

In instant petition, petitioner has assailed action of respondents-State, allowing respondent No.5 to contest and thereafter elect her as President of Municipal Council Dehra, District Kangra against the seat reserved for Women (General), on the ground that respondent No.5 Sunita Kumari, for belonging to a Scheduled Caste category, was not eligible to contest and seek election as President/Chairperson, which was reserved for Women belonging to General Category.

2. I have heard Mr. Ajay Sharma, learned Senior Advocate, on behalf of petitioner; Mr. Kapil Dev Sood, Senior Advocate, appearing for respondent No.5 and Mr. Hemant Vaid, learned Additional Advocate General, for respondent-State, and have also gone through the material placed before me.

3. Undisputed facts, in present case, are that for conducting elections for Members/Office-bearers of Municipal Councils and Nagar Panchayats in District Kangra, Deputy Commissioner Kangra issued Order dated 4.9.2020, announcing category-wise reservation of the Wards, whereby Ward No.3 Hanuman Mandir was allocated to General Category, whereas Ward No.6 Shiv Mandir was reserved for women.

4. On 17.12.2020, Government of Himachal Pradesh issued Notification, notifying reservation to the Offices of the Chairpersons in Municipalities in District Kangra, wherein office of Chairperson of Municipal Council Dehra was reserved for Women (General) Category.

5. Petitioner and respondent No.5 are elected Members of Municipal Council Dehra. Petitioner contested election from Ward No.6 Shiv Mandir against a seat reserved for Women (General Category), whereas respondent No.5 contested election from Ward No.3 Hanuman Mandir allocated for General Category. It is also undisputed that respondent No.5 belongs to Scheduled Caste category.

6. Elections for electing Members of Municipal Council Dehra were conducted from on 10.1.2021 onwards and petitioner and respondent No.5 were declared elected as Ward Members from their respective Wards from which they contested the election. Thereafter, election for Office of President/Chairperson of Municipal Council Dehra, which was reserved for Women belonging to General Category, was fixed on 18.1.2021.

7. Vide communication dated 15.1.2021, Returning Oficer-cum-SDO(C), Dehra, sought clarification from Deputy Commissioner, Kangra, regarding reservation of post of President in Municipal Council Dehra, on the following points:

“1. Whether a women of any category is eligible for the post of president?

2. If a women has not taken benefit of her SC category and has fought election in open ward, whether she is eligible for president post?

3. The women candidate has not attached any caste certificate with her nomination paper

4. In case the candidate of President seat under general category has no majority, what procedure we should adopt?”

8. District Election Officer-cum-Deputy Commissioner, Una, had also sought clarification with respect to reservation of seats of Chairpersons and Members of Urban Local Bodies (ULB). In response thereto, vide communication dated 16.1.2021, Secretary (UD) to the Government of Himachal Pradesh had conveyed to the District Election Officer-cum-Deputy Commissioner, Una, as under:

“I am directed to refer to your letter No.60/ADC/ LFA dated 12/01/2021 on the subject cited above and to say that similar matter was referred to Law Department by the Panchayat Raj Department and the opinion of the Law Department is as under:-

“The Hon’ble apex Court vide Judgment dated 10-02-2009 passed in Civil Appeal No.976 of 2009 titled as Bihari Lal Rada Vs Anil Jain (Tinu) and others on the basis of the Law laid down by the Hon’ble Apex Court in other cases has held that there is nothing in law that a person belonging to backward class and got himself elected from a ward reserved for that class is debarred from contesting the election in the office of President/Chairperson when that office is not reserved and meant to be filled in from the mem