HI6H COURT OF CHHATTIS6ARH AT BILASPUR WRIT^ETITION (0 N0.6433/2009 PETITION^R Vs RESPONOENTS Naresh Sinha, S/oShri Palturam Sinha, aged about 37 years, R/o Village Shuklabhatha, Tahsil- Magarlod, &istrict Dhamtari (C.G.) 1. State of Chhattisgarh through the Secretary, Panchayat Department, D.K.S. Bhawan, Raipur (C.6.) 2. The Chief Secretary Panchayat Department, D.K.S. Bhawan, Raipur (C.G) 3. The Collector, Dhamtari, District Dhamtari (C6) 4. Zila Panchayat, Dhamtari, Through the Chief Executive Officer, District- Dhamtari (C6) 5. Janpad Panchayat Magarlod, through Chief Executive Officer, &istrict-Dhamtari (c.e.) 6. Sram Panchayat Suklabhatha, through the Secretary, Tahsil Magarlod, District Dhamtari (CG) O R & E R (Passed on ^December, 2009) Dhjrendra Mishra. J. 1. The petitioner by the instant petition has pray6d for quashing of the circular/order dated 30.9.2009 (Annexure P-1) issued by the Pan^chayat <& Rural Development Department, Government ^ \. i Present: Mr. Prateek Sharma, Advocate. For the pefitioner. Mr._Alok Bakshi, 6ovt. Advocate ^h For the State. ^' of Chhattisgarh, whereby guidelines for allotment and reservation of different postsin Panchayat Elections, 2009 by lot has been circulated. The petitioner has also impugned the notification dated 20.10.2009 (Annexure P-2) issued in the exercise of powers under Section 13/129 (e) of the C.6. Panchayat Raj Adhiniyam, 1993 (for brevity 'Adhiniyam; 1993') read with Rule 4 of the C.6. Panchayat ElectionsRules, 1995 (for brevity 'Rules, 1995') whereby reservation of different Wards of Gram Panchayats Suklabhata & Aamachani of Jqnpad Panchayat Magarlod has beennotified. 2. The Adhiniyam, 1993 was amended vide notification dated 23.5.2008 whereby Section 13 (5) <& (6), Section 17 (3), Section 23 (4) <& (5), Section 25 (2) (b), Section 30 (4) (5) <& Section 32 (2) (b) of the Adhiniyam, 1993 were amended and in place of the word 'one-third', the word 'half' has been substituted in all the aboveprovisions of the Adhiniyam, 1993. 3. The above-referred provisionsrelateto reservation for women for the postof Panchas in Sram Panchayat, Sarpanch within the block, President and Members of Janpad Panchayat, President and AAembersof Zila Panchayat in the State. By the aforesaid amendment the extentof reservation forwomen has been prescribed as 'not less than half number of Seats of the totalnumber of seats' inplace of one-thirdof the total number of seats, which was earlier reservation for women in each category. 4.^.rievance of the petitioner is that eircular of Annexure P-1 has been issued by wrohgly interpreting the amended provisions of the Adhiniyam, 1993. The Collectors of the State have been instrueted that they shouldensure that while making reservation for women in each of the cqtegories, the seat reserved for women is not less than 50%. There is specTfic instruction that where thesea'ts are in odd numbers, y ''N., 1111. for example, where only three seats are thereof any category, in that case twoseatsshould be reserved for women category. Aforesaid interpretationof the provisions for reservation for women ip the Adhiniyam, 1993 is resulting in a situation where more thdn 507oof seats of Panchas, Sarpanch, President and Members of the GramPahchayat, Janpad Panchayat and Zila Panchayat are reserved fdr women, which is not permissible as per binding judgment of the Hon'ble Supreme Court. The Collector Dhamtari vide notification of Annexure P-2 has reserved nine wards out of sixteen wards of 6ram Panchayats Suklabhata <& Aamacheeni for women. There are only five unreserved wards in ©ramPanchayatSuklabhata ahd outof these fivewards, three wards have been reserved for women category. 5. Mr. Sharma, learned counsel for the petitioner submits that the circular of Annexure P-1 has been issued on the basis of wrong interpretation of the amended provisions of reservation for women. The policy of reservation ought to havebeen implemented in such a manner that total reser'vation for women does notexceed 50%, as any reservation beyond 507o woyld be inviolation of the law laid down bythe Hon'bleSupremeCourt. Reliance is placed on the judgments of the Hon'ble Supreme Court in the mattersof M.R. Balaji Vs. State of Mysore. Indira Sawhney etc. Vs. Union of India and others, 6ovt. of Andhra Pradesh Vs. P.B. Vijaykumar and another . 6. 'On the other hand, Mr. Bakshi, learned Sovernment Advocate appearing for the State argued that the circular of Annexure P-1 has been issued inconsonance with theamendment made in the Adhiniyam, 1993 which clearly provicles that in every tire of Panchayat and each category reservation for w.omen is to be ' AIR 1963 SC 649 2 AIR 1993 5C 477 3AIR 1995 SC 1648 n' ^ provided for not less than half df the total number of seats. A bare reading of Section 13 (3), (4) <S (5)read with Rule4 (5) makes it clear that the reservation has to be made first of all for the different categories i.e. ScheduledCastes, Scheduled Tribes, Other Backward Classes and Unreserved categories, and only thereafter reservation for women has to.be made in each category. It was further argued thqt language of the amended provisions is amply clear which provides that in no uncertain terms not less than half of the total number of seats will be reserved for women; There is no bar that the number of women seats cannot exceed 50%. Reliance is placedon the judgments in the matters of Dr. Satish Menon Vs. State of M.P. and Government of Andhra Pradesh Vs. P.B. Vijaykumar and another . 7. I have heard learned counsel for the parties. 8. Chapter-3 of the Adhiniyqm, 1993 deats ivith the establishment of Panchayats. Section 13 deals with the constitution of Sram Panchayat. Section 13 (4) provides that seats shall be reserved in every Gram Panchayat for the Scheduled Castes and Scheduled Tribes. It further provides that number of seats for every twocategories shall bedr the same proportion to the total number ofseats in the 6ram Panchayat as the population of the Scheduled Castes and Scheduled Tribes.in that Gram Panchayat area bears to the total population of t.hat area.It further provides that where in any &ram Panchayat 50% or less thtw 507o seats have been reserved for Scheduled Castes and Scheduled Tribes, 257o Seats of the total numberof seats shall bereserved for Other Backward Classes. Section 13 (5) & (6) provide that not less than half of the total number of seats reserved under sub-section (4) shall be reserved for women belohging to that category. Similar provisions are made for women reservation for the post of Sarpanch of &ram. Bsaa vssa 's?S Panchayat, Membersof Janpad Panchayat, President of Janpad Panchayat, Members of Zila Panchayat and President of Zila Panchayat in each category. 9. From the scheme of the Adhiniyam, 1993 and the Rules, 1995 it is clear that first vertical reservation is to be made for Scheduled Castes and Scheduled Tribes categories in the ratio of their population in the Gram Panchayat, Block and District. Thereafter, vertical reservation for Other Backward Classes category is to be provided. Only after the provision of vertical reservation is made, horizontal reservation for women in each category is to be provided. The language used by the Legislature for reservation for women is unambiguous. It mandates that not less than half of the total numberof seats reserved under any category shall be reserved for women belonging to that reserved Category. 10.1n the matter of Balaji1 the Constitution Bench of the Hon'ble Supreme Court rejected the argument that in absence of a limitation contained under Article 15 (4), no limitation can be prescribed by the Court on the extent of reservation. It observed that a provisionunder Article 15 (4) being a "special provision" must be within reasonable 'limits. Interpreting Articles 15 (4) and 16 (4)0f the Constitution, it was observed that a special provision contemplatedby Article 15 (4) like reservation for posts and appointments contemplated by Article 16 (4) must be within reasonable limits. The interests ^pf weaker sections of society which are a firstcHarge on the State and the Centre have to be adjusted with the interests of the communityas a whole. The adjustment of these competing ckims is undoubtedly a difficult matter, but if under the guise of making a special provision.a Stdte reserves practically all theseatsavailable in all the colleges, that clearly would be subvgrting the objectof Art. 15 (4). It was further observed that speaki-ng generally and in a brogd way a special provision ^ 15 16 17 Government for the purposes of implementing the amended provisions of the reservation for women in the Panchayat institutions. The language of thestatute is unambiguous and clear and it mandates that reservation for women in each category at every stage shall not be less than half of the total number of reserved seats under each cate.gjBry. By the circular of AnnexureP-1 the State has issued guidelines to itsofficers for implementing reservation for women as per amended provisions of the Adhiniyam, 1993. Therefore, in my considered opinion, issuance of circular (Annexure P-1) is strictlyin consonance with the intentionof the Legislature, as reflected from the provisions, and the same cannot be impugned without questioning the constitutional validity of the provisions itself, as from bare reading of the statute, it is manifestlyclear that there is no limit of 507o for reservation for women jh the Panchaydt ihstitutions. In the result, the petition has no substance, the same deserves to be dismissed and'accordingly, it is hereby dismissed. No order as to costs. -—— Sd/- DhuendraMishra —"°" Judge ^h •^^^^•==H^ES^^S^s^^^3E^; ^.^.,^-. ^s^ss^sRBwas^sesws^^^ffiassaeswiK •fa '..^^^s