Vaibhav Pandey vs State of U. P. - 2022 Supreme(All) 1583

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1583

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD BENCH AT LUCKNOW
DEVENDRA KUMAR UPADHYAYA, SAURABH LAVANIA, JJ.
Vaibhav Pandey – Appellant
Versus
State ofUttar Pradesh and another - Respondents
Civil Misc. Writ Petition Nos. 8904, 8928, 8937, 8945, 8957, 8958, 8961, 8969, 8975, 8981, 8985, 8987, 9001, 9002, 9009, 9014, 9016, 9017, 9018, 9026, 9037, 9044, 9046, 9053, 9056, 9068, 9072, 9075, 9079, 9092, 9171, 9175, 9187, 9188, 9191, 9194, 9234, 9261, 9277, 9286, 9289, 9291, 9292, 9302, 9306, 9308, 9316, 9321, 9322, 9323, 9324, 9325, 9332, 9335, 9352, 9356, 9365, 9367, 9371, 9372, 9375, 9380, 9393, 9394, 9408, 9418, 9421, 9426, 9456, 9472, 9476, 9487, 9510, 9513, 9515, 9524, 9652 of 2022, Public Interest Litigation No. 887, 880, 907, 914, 920, 922, 925, 931, 936, 939, 940, 943, 946, 950 and 959 of 2022
Decided on : 27-12-2022

Advocates:
Advocate Appeared:
Sharad Pathak, Piyush Pathak, Amrendra Singh, Ashutosh Bajpai, Vijay Shankar Singh, Rajeiu Kumar Tripathi, Rama Kant Dixit, Kshemendra Shukla, Shobhit Mohan Shukla, Anand Mani Tripathi, Atul Benjamin Solomon, Ganesh Nath Mishra, Ashutosh Shahi, Chandra Prakash, Ashok Kumar, Akhilesh Kumar Kalra, Lakshmi Kant Tripathi, Alok Singh Chauhan, Rahul Srivastava, Jai Prakash Yadav, Hari Shanker Tewari, Sharad Nandan Ojha, Akhand Pratap Singh, Eshan Garg, Somdutta Singh, Ranjana Srivastava, Bal Keshwar Srivastava, Shraddha Tripathi, Dhirendra Kumar Mishra, Rajeev Narayan Pandey, Niteesh Kumar, J.B. Singh, R.K.S. Chauhan, Jagdambika Prasad Tripathi, Jagdish Prasad Maurya, Sandeep Kumar, Dr. Ravi Kumar Mishra, Akash Mishra, Pawan Kumar Upadhyay, Rakesh Devi Prasad Kumar, Smt. Pramila D. Misra, Sushil Kumar Pathak, Prashant Kumar Singh, Ashutosh Srivastava, Devesh Chandra Pathak, Mohammad Asmar Ansari, Gibran Akhtar Khan, Mohd. Jafar Alam, Harish Chandra Yadav, Anand Dubey, Anil Kumar Nishad, Jagroopan Nishad, Ramesh Kumar, Raj Kumar Singh, O.P. Tiwari, Mohd. Ateeq Khan, Akash Deep Dubey, Anupam Shukla, Virendra Kumar Dubey, Abhinav Singh, Shashank Singh, Vinod Kumar, Dev Mani Mishra, Virendra Mishra, Manish Misra, Gaurav Upadhyay, Anuj Kumar Garg, Ram Mohan Mishra, Tushar Mittal, Gaurav Mehrotra, Anurag Shukla, Neeraj Kumar Mishra, Rajesh Kumar Shukla, Preeti Shukla (Tiwari), Satya Prakash Mishra, Babu Ram Shukla, Sarfraz Ahmad, Raj Kumar Upadhyaya (R.K.Upadhyaya), Kanchan Kumar Pandey, Kuldeep Kumar Srivastava, Prashant Kumar Srivastava, Kalika Prasad Pandey, Subhash Chandra Ojha, Udai Bhanu Singh, Virendra Singh, Nitin Kumar Mishra, Lavlesh Kumar, Brijesh Kumar Kuldeep, Ravi Kumar Verma, Rachit Gupta, Sushil Yadav, Manuvendra Singh, Sachin Pratap Singh, Ravindra Kumar Singh, Sudhir Kumar Dhangar, Om Prakash Mishra, Pankaj Kumar Tiwari, Sarvesh Kumar Misra, Arvind Kumar, Gayatri Abhyasi, Pankaj Kumar Sahu, Jaikaran, Raghvendra Pratap Singh, Kirti Veer Singh, Pankaj Prasoon, Ravi Shanker Singh, Prabhu Ranjan Tripathi, Akram Azad, Ausaf Ahmad Khan, Abhishek Singh, Akhand Kumar Pandey, Rajeev Kr. Chauhan, Sachida Nand Singh, Dharmendra Kumar Singh, Azad Khan, Ankush Pandey, Amrendra Nath Tripathi, Vivek Kumar Singh, Pranav Pandey, Kamlesh Kumar Singh, Nitin Kumar Mishra, Rajendra Prasad Lodhi for the Petitioner; C.S.C., Anurag Kumar Singh, Rohit Tripathi, Atul Kumar Dubey, Namit Sharma, Shailendra Singh Chauhan, Shantanu Gupta, Satish Chandra Kashish, Rakesh Kumar Chaudhary, Akash Sinha, Dharmendra Gupta, Aakash Singh, Ram Kumar Singh, Hemant Kumar Mishra, Pankaj Gupta, Banwari Lal Maurya

Headnote:
Constitution of India, 1950 – Article 144, 243-T (6), 243-T, 15(4), 16(4), 15(5) – U.P. Municipal Corporation Act, 1959 – Section 2(51-A) – Uttar Pradesh State Commission of Backward Classes Act, 1996 – Section 2(a) – U.P. State Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Back-ward Classes) Act, 1994 – Section 2(b) – Municipalities Act, 1916 – Section 7 – Municipal Corporations Act, 1959 – Section 9-A, 7 – Reservation – Local bodies for OBC Candidates – Whether in facts as pleaded by State, requirement of triple test/conditions as mandated by Hon'ble Supreme Court in stand fulfilled – Held, Court has also observed that after Constitution Bench decision it was imperative for States to have set up dedicated Commission to conduct contemporaneous rigorous empirical inquiry into nature and implications of backwardness and on basis of recommendations of that Commission, to take follow up steps including amending existing statutory dispensation – Accordingly, State of Uttar Pradesh was also obligated by mandate of Hon'ble Supreme Court to have a re-look at its policy regarding reservations to be made available to Backward Class of citizens in context of elections to urban local bodies, including amendment in existing statutory provisions - Petition Allowed.

JUDGMENT :

Devendra Kumar Upadhyaya, J.

Prologue

1.1 It is inclusion not exclusion, equality not inequality and democracy not executive fiat that runs as a common thread throughout our Constitution. In a society as diverse as ours it has been the endeavour of our Constitutional Courts to further strengthen this thread.

With this percept in mind, we proceed to consider the issues posed before us in this batch of petitions which raise similar questions of fact and law and hence are being decided by this common judgment which follows:

1.2 Some of these petitions have been filed as Public Interest Litigation and some of them raise the alleged personal grievance arising out of a notification dated 5.12.2022 issued by the State Government in the Department of Urban Development which is a draft order in terms of Section 9-A (5)(3) of Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as 'Municipalities Act') inviting objections to the proposed determination of number of offices of the Chairpersons of different Municipal Bodies to be reserved for the Scheduled Castes, the Scheduled Tribes, Backward Classes and Women. Challenge, however, is confined to the proposed determination for providing reservation to the Backward Class of citizens in respect of seats and offices of Chairpersons of these bodies.

1.3 Challenge has also been made to the Government Order dated 12.12.2022 whereby it has been provided that on expiry of the term of various local bodies, the District Magistrates of the respective districts shall authorize operation of bank accounts of such local bodies under the joint signatures of the Executive Officer and the Senior most officer of Uttar Pradesh Nagar Palika Centralized Services (Accounts Cadre). As per the said Government Order, current term of the local bodies is coming to an end on different dates falling between 12.12.2022 and January 31, 2023.

1.4 In one of the petitions, a prayer has been made to direct the State Government to include transgenders in the Backward Class of citizens and to provide them reservation within the reservation which may be available to backward class of citizens in the matter of election to the urban local bodies. The said prayer has been made in the light of the judgment of Hon'ble Supreme Court in the case of National Legal Services Authority v. Union of India and others, rendered on 15.4.2014 in Writ Petition (Civil) No. 400 of 2012.

1.5 Preliminary objection as to the maintainability of the writ petitions raised by the State on the ground that the impugned notification dated 5.12.2022 is only a draft order and hence the petitioners will have opportunity to raise their objections before the authority concerned, as such, the petitions are premature, has already been repelled by us vide our order dated 12.12.2022 and for the reasons given therein we have already held the petitions to be maintainable.

2. Facts

2.1 The Parliament by enacting the Constitution (Seventy-fourth) Amendment Act 1992 inserted Part IXA in the Constitution of India w.e.f. 1.6.1993 with the object of incorporating the provisions relating to urban local bodies in the Constitution for empowering such bodies so that these bodies are able to perform effectively as vibrant democratic units of self-Government. The Statement of Objects and Reasons for the 74th Constitutional Amendment is as follows:

''STATEMENT OF OBJECTS AND REASONS

1. In many States local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged supersession and inadequate devolution of powers and functions. As a result, Urban Local Bodies are not able to perform effectively as vibrant democratic units of self-Government.

2. Having regard to these inadequacies, it is considered necessary that provisions relating to Urban Local Bodies are incorporated in the Constitution particularly for-

(i) putting on a firmer footing the relationship between the State Government and the Urban