IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4974 of 2011 MAMTA DEVI . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioner: Mr. Yogesh Chandra Verma,Sr. Advocate Mr. P.P.N.Shahi, Advocate For the State : Mr. Alok Kumar, AC to AAG 12 For the Commission: Mr. R.S.Pradhan, Sr. Advocate Mr. Sanjeev Nikesh, Advocate -------- 3. 13.04.2011 Heard learned Counsel for the petitioner, the State and the State Election Commission. The petitioner is aggrieved by the order dated 6.3.2011 passed by the Block Development Officer, Roh cancelling her caste certificate. Further challenge is to the order dated 7.3.2011 passed by the Returning Officer rejecting her nomination for the post of Mukhiya of Roh Gram Panchayat. It is submitted that the petitioner originally professed allegiance to the Muslim faith and belonged to “Sheikh” which is a general category. She married Sri Sanjay Kumar Malakar in 1991. The latter belonged to the “Mali” caste, a notified backward caste. Social acceptance was granted to her by the caste of her husband. Three daughters and two sons have been born out of the wedlock. In the year 2001 the post of Mukhiya in Roh Gram Panchayat was unreserved. The petitioner successfully contested the elections. At that time also she had been issued a backward caste certificate, a status acquired through the marriage. In 2006 she again contested for the post as a reserved category candidate successfully. In 2011 Panchayat Elections she was again issued a caste certificate on 25.2.2011 that she belonged to the “Mali” caste as the seat was in the reserved category. This has been engineered to be cancelled at the behest of political rivals writ large in the actions by the cancellation order having been issued on 6.3.2011, a Sunday. The order was 2 additionally in complete violation of the principles of natural justice, a fact unequivocally admitted by the Block Development Officer in Para 21 of his counter affidavit. As a sequel to the same, her nomination has been rejected the next day. The contention therefore is that the order of cancellation dated 6.3.2011 being bad on the very face of it, the petitioner is entitled to acceptance of her nomination. Counsel for the State from the counter affidavit contended that since the petitioner belonged to a general category, she could not acquire the benefit of a backward caste by marriage to a person belonging to the latter. The backward caste certificate has been cancelled after calling for a show caused from the Panchayat Secretary. The enquiry had revealed that the petitioner had obtained the certificate by playing fraud. No prejudice had been caused to the petitioner by denial of any opportunity of hearing before cancellation, as she had been given a full hearing by the Returning Officer. The Block Development Officer having joined recently had passed the caste certificate cancellation order bonafide and confident under the belief that it had been obtained by fraud. Strong reliance has been placed on the judgments of the Supreme Court reported in (2005) 2 SCC 244 (Sobha Hymavathi Devi Vs Setti Gangadhara Swamy & others) and (2005) 2 SCC 731 (Sandhya Thakur Vs Vimla Devi Kushwah & others) as also a judgment of the Allahabad High Court in Writ Case No. 38423 of 2005 (Smt. Sushma Singh Vs State of U.P.& others). Counsel for the Commission contended that the order of the Returning Officer was based on the directive of the Commission that the caste of a candidate had to be adjudged on basis of her father’s caste and not that of her spouse. 3 The counter affidavit of the State takes it beyond the pale of any controversy that the petitioner had married Sri Sanjay Kumar Malakar in 1991.She was given a backward caste certificate in 2001 reiterated in 2006 and re-reiterated in 2011. It was a consistent course of conduct on part of the respondents. If respondents were of the opinion that this caste certificate was required to be revisited, that was their jurisdiction. But, power was to be exercised strictly in accordance with the principles of natural justice before depriving the petitioner of the benefit already accrued to her. The Block Development Officer admits that he has acted in breach of principles of natural justice but offers no justifiable explanation for his conduct. He talks of an enquiry through the Sarpanch. The communication to the Sarpanch dated 5.3.2011 is more of a conclusive opinion of the Block Development Officer rather than seeking clarification from the Sarpanch. The Sarpanch in his reply of the same date stated that he has only acted in pursuance of the past caste certificate issued to the petitioner in issuing the fresh certificate. The Block Development Officer in his counter affidavit seeks to cast serious aspersions on the petitioner of having obtained a caste certificate in the year 2001, 2006 and 2011 based on fraud. What was the fraud practised is not disclosed. Even if it was a fraud, the petitioner was entitled to be given a show cause notice of having obtained the certificate on basis of fraud. She had not concealed her marriage to Sri Sanjay Kumar Malakar. It was not a fraud that Sri Sanjay Kumar Malakar belonged to the backward caste. The allegation of fraud is a defence difficult to appreciate. The counter affidavit speaks of an enquiry. What enquiry was held and in what manner and on what materials is left vague and unanswered in the counter 4 affidavit. It is not supported by any documentary evidence on any enquiry held with participatory opportunity to the petitioner. The defence of the Block Development Officer that he had recently joined the post has only to be stated to be rejected. The contention that even if the order of cancellation was in violation of principles of natural justice, no prejudice had been caused to the petitioner as she has been given full opportunity of hearing by the Returning Officer, is simply answered by the legal position that if the original order is invalid, any subsequent hearing is of no consequence. The initial illegality cannot be cured by validation, ratification etc. In the aforesaid background the haste with which the Block Development Officer has acted surprises the Court. Was it engineered? Was the popularity of the petitioner a thorn in someone’s neck? Was the present modus operandi the best method to defeat a rival candidate at the hustings? Were the actions based on collusion? The Court leaves these questions open for an appropriate enquiry by the administrative authorities. The very fact that the caste certificate was cancelled in extreme haste on Sunday i.e. 6.3.2011 and that too in violation of a show cause notice is an act which speaks volumes of the conduct of the Block Development Officer. Nothing extraordinary has been indicated in the counter affidavit to justify that the cancellation of the caste certificate was such an emergent issue that it could not wait for commencement of office hours on 7.3.2011. If not malafide on facts, malafide in law surely surfaces. The order dated 6.3.2011 issued by the Block Development Officer cancelling the backward caste certificate of the petitioner dated 5 25.2.2011 is therefore completely unsustainable in law. It is accordingly set aside. The District Magistrate, Nawadah is directed to hold an enquiry through a senior officer of the district with due opportunity to the Block Development Officer and the petitioner along with others concerned and arrive at a determinative finding of the circumstances under which the caste certificate came to be cancelled in extreme haste on a Sunday in gross violation of the principles of natural justice one day prior to the scrutiny of nominations. If satisfied, the District Magistrate shall then proceed to fix administrative accountability/proceedings up0on the Block Development Officer in light of the present discussion. The Court shall deal with the judgments relied upon by the State and the directives of the Election Commission together on a common platform in so far as the issue of law is concerned. In the case of Sobha Hymavathi Devi (Supra) while considering the issue of a claim by forward caste women on a marriage to a man from the scheduled tribe and consequent rights to an elected post, the Supreme Court by a Bench of three judges held as follows in the relevant extract from Para 10:- “10 …… Even then, this Court categorically laid down that the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the Constitution for the reason that she is a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We se no reason why the principle relating to reservation under Articles 15(4) and 16(4) laid down by this Court would not be extended to the constitutional reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are also constitutional reservations intending to benefit the 6 really underprivileged and not those who come to the class by way of marriage …………….” This principle of law has been reiterated in the case of Sandhya Thakur ( Supra). The Court has no hesitation in holding that the directive of the Commission sought to be relied upon by the Returning Officer was nothing but an extension of this principle. While that may have been good law. the authoritative pronouncement of a Constitution Bench decision reported in (2010) 7 SCC 202 (K. Krishna Murthy (Dr.) & others Vs Union of India & another) fundamentally alters the legal position discussed in Para 51 to 57 as follows:- “51. Before addressing the contentious issues, it is necessary to examine the overarching considerations behind the provisions for reservations in elected local bodies. At the outset, we are in agreement with Shri Rajeev Dhavan’s suggestion that the principles that have been evolved for conferring the reservation benefits contemplated by Articles 15(4) and 16(4) cannot be mechanically applied in the context of reservations enabled by Articles 243-D and 243-T. In this respect, we endorse the proposition that Articles 243-D and 243-T form a distinct and independent constitutional basis for reservations in local self-government institutions, the nature and purpose of which is different from the reservation policies designed to improve access to higher education and public employment, as contemplated under Articles 15(4) and 16(4) respectively. 52. Specifically with regard to the unviability of the analogy between Article 16(4) and Article 243-D, we are in agreement with a decision of the Bombay High Court, reported as Vinayakrao Gangaramji Deshmukh v. P.C. Agrawal. That case involved a fact situation where the chairperson position in a panchayat was reserved in favour of a Scheduled Caste woman. In the course of upholding this reservation, it was held as follows: (AIR p. 143, para 4) “4. … Now, after the seventy-third and seventy-fourth constitutional amendments, the constitution of local bodies has been granted a constitutional protection and Article 243-D mandates that a seat be reserved for the Scheduled Caste and Scheduled Tribe in every panchayat and clause (4) of the said Article 243-D also directs that the offices of the chairpersons in the panchayats at the village or any other level shall be 7 reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may, by law, provide. Therefore, the reservation in the local bodies like the village panchayat is not governed by Article 16(4), which speaks about the reservation in the public employment, but a separate constitutional power which directs the reservation in such local bodies.” We are of course aware of the fact that some decisions in the past have examined the validity of reservations in local self- government by applying the principles evolved in relation to education and employment. 53. In this respect, we are in partial agreement with one of the submissions made by Shri M. Rama Jois that the nature of disadvantages which restrict access to education and employment cannot be readily equated with disadvantages in the realm of political representation. To be sure, backwardness in the social and economic sense does not necessarily imply political backwardness. However, the petitioner’s emphasis on the distinction between “selection” (in case of education and employment) and “election” (in case of political representation) does not adequately reflect the complexities involved. It is of course undeniable that in determining who can get access to education and employment, due regard must be given to considerations of merit and efficiency which can be measured in an objective manner. Hence, admissions to educational institutions and the recruitment to government jobs is ordinarily done through methods such as examinations, interviews or assessment of past performance. Since it is felt that the applicants belonging to the SC/ST/OBC categories among others are at a disadvantage when they compete through these methods, a level playing field is sought to be created by way of conferring reservation benefits. 54. In the domain of political participation, there can be no objective parameters to determine who is more likely to get elected to representative institutions at any level. The choices of voters are not guided by an objective assessment of a candidate’s merit and efficiency. Instead, they are shaped by subjective factors such as the candidate’s ability to canvass support, past service record, professed ideology and affiliations to organised groups among others. In this context, it is quite possible that candidates belonging to the SC/ST/OBC categories could demonstrate these subjective qualities and win elections against candidates from the relatively better-off groups. However, such a scenario cannot be presumed in all circumstances. It is quite conceivable that in some localised settings, backwardness in the social and economic sense can also act as a barrier to effective political participation and representation. When it comes to creating a level playing field for the purpose of elections to local bodies, backwardness in the social and economic sense can indeed be one of the criteria for conferring reservation benefits. 55. It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue from 8 access to education and employment on one hand and political representation at the grassroots level on the other hand. While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local self-government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to. 56. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local self- government are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the “creamy layer” in the context of political representation. There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the “creamy layer” may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government. 57. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of weaker sections. Hence, it would be counter-intuitive to exclude the relatively better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities. We can now attempt to provide answers to the contentious issues.” In conclusion Para 82(i) of the judgement relevant for the prevent controversy is as follows:- “82. In view of the above, our conclusions are: (i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Article 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self-government. Even when made, they need not be for a period corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter.” 9 It appears that this judgment was not placed before the Returning Officer by the petitioner and neither have the election authorities applied their mind to the aspect of law as discussed herein with regard to the applicability of principles under Articles 16(4) and 15(4) to elected posts. The Court refrains from any further discussion on this aspect of law so as not to prejudice the case of either party while directing fresh consideration. The order of the Returning Officer dated 7.3.2011 is set aside. In view of the peculiar facts and circumstances of this case where the relevant law applicable was not addressed to by either of the parties, the Court considers the present a fit case for a fresh decision by the State Election Commission in exercise of powers under Rule 116 of the Bihar Panchayat Election Rules, 2006. Let such decision be taken by the State Election Commission with due expeditiousness upon presentation of a copy of this order so that the petitioner is not non-suited and left remediless only because of delay on part of the Commission from testing her standing at the hustings. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)