1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 6507 OF 2010 1 Minatai w/o Balasaheb Kadam, age 40 years, occ. Sarpanch, r/o Shevdi Jahangir, Tq. Manwat, Dist. Parbhani. ...Petitioner VERSUS 1 The State of Maharashtra, through Secretary, Rural and Irrigation Department, Mantralaya, Mumbai – 400 032, 2 State Election Commissioner, having office at Administrative Building, Opp. Mantralaya, Mumbai – 400 032, 3 The Collector, District Parbhani, Parbhani, 4 The Tehsildar Manvat, Tehsil Office Manvat, District Parbhani. ...Respondents ..... Shri S.G.Dodya, advocate h/f Shri R.R.Chandak, advocate for the petitioner Shri S.K.Tambe, A.G.P. for respondent nos. 1, 3 and 4 Shri S.T.Shelke, advocate for respondent no.2. ..... 2 CORAM : R.S.MOHITE AND SHRIHARI P. DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 25.8.2010 DATE OF PRONOUNCING THE JUDGMENT : 01.9.2010 J U D G M E N T : (Per Shrihari P. Davare, J.) 1 Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing at the stage of admission. 2 By the present petition, filed under Articles 226 of the Constitution of India, the petitioner herein, prayed for issuance of appropriate writ for quashing and setting aside the order dated 10.5.2010, passed by respondent no.4 in respect of reservation of the post of Sarpanch of Manvat Tehsil for the years 2010-2015, thereby reserving the post of Sarpanch of Shevdi Jahangir for the person belonging to Backward Class category; and also prayed for issuance of writ of mandamus directing respondent nos. 3 and 4 to declare the office of Sarpanch of village Shevdi Jahangir, Taluka Manvat, District Parbhani as allotted for General Open category; as 3 well as prayed for issuance of direction to respondent nos. 3 and 4 to allot the reservation of the post of Sarpanch for Manvat Taluka afresh. 3 The petitioner claims to be permanent resident of village Shevdi Jahangir and contends that she is presently holding the post of Sarpanch of village Shevdi Jahangir, Taluka Manvat, District Parbhani, from general category for the years 2005-2010 and her tenure is upto August, 2010. Respondent no.1 is the State of Maharashtra, represented through the Secretary, Rural and Irrigation Department, Mantralaya, Mumbai, and respondent no. 2 is the Maharashtra State Election Commissioner, under whose supervision, the elections of Panchayat Samiti are conducted. Respondent no.3 is the Collector of Parbhani District, under whose orders and supervision, the reservation of Manvat Tehsil has been declared by respondent no.4, who is the Tahsildar of Manvat Tehsil. Respondent no.2 - the State Election Commissioner has declared the reservation of the office of Sarpanch in Panchayat Samiti for the years 2010-2015. 4 It is the contention of the petitioner that as per 73 rd Constitutional amendment, the reservations for the Scheduled Caste, Scheduled Tribe and Backward Class of citizens and for Women 4 were incorporated for Panchayat Samiti elections. Hence, since 1995, respondent nos. 1 and 2 have been reserving the post of Sarpanch in Panchayat elections for the said Caste and Class in the Maharshtra State as per rotation on census and lots basis. 5 The petitioner submits that the post of Sarpanch of village Shevdi Jahangir was reserved for women from General category for the years 1995-2000. However, in the next elections for the years 2000-2005, the said post of Sarpanch was reserved for Scheduled Tribe; whereas for current tenure i.e. for the years 2005-2010, the said post falls under Open category. However, it is the contention of the petitioner that although the post of Sarpanch was reserved for Scheduled Tribe category for the years 2000-2005, no elected member belonging to the said category was available, and hence, the said post for the said tenure was allotted to Backward class of citizens by way of lots amongst the Scheduled Caste and Backward class of citizens. Accordingly, the said post for the years 2000-2005 was reserved for Backward class of citizens, and for that purpose, only one nomination paper was filed by one Sheshrao Bhaguji Korde, who was elected as Sarpanch of village Shevdi Jahangir for the said tenure. 6 On the afore said background, the petitioner contends that 5 respondent no.3 – the Collector, District Parbhani, vide its amended order dated 5.5.2010 declared the reservation chart for Manvat Taluka for the years 2010-2015, and accordingly, on 10.5.2010 at about 11.30 a.m. the reservation for the post of Sarpanch for the tenure 2010-2015 was allotted by respondent no.4 at Tehsil office, Manvat by way of draw of losts. In the process, respondent no.3 reserved 5 posts of Sarpanch for Scheduled Caste as per census; whereas out of 49 Gram Panchayats of Manvat Taluka, respondent no.3 reserved 13 Gram Panchayats for the post of Sarpanch from Backward class of people. 7 It is the contention of the petitioner that respondent no.4, while allotting the reservation for said 13 posts, on rotation basis, had considered the posts reserved for said category for the years 1995, 2000 and 2005, and accordingly, excluded the posts of Sarpanch reserved for the respective years, and after excluding the posts reserved for Scheduled Caste for the current years i.e. 2010-2015, respondent no.3 allegedly excluded 41 Gram Panchayats from allotment to Backward class people; whereas surprisingly, while doing so, he has not added the posts reserved for the years 2000-2005 for Backward class of people. 8 Hence, the grievance of the petitioner is that respondent 6 no.3 reserved the post of Sarpanch of Shevdi Jahangir for Backward class of people illegally, although the said post was reserved in the years 2000-2005 for the said class. Hence, after deriving the knowledge of said illegality committed by respondent no.4, the petitioner filed her grievance immediately before respondent no.4 by application dated 18.5.2010, but still no action has been taken by respondent no.3 on the said application. 9 Being aggrieved by the said reservation of post of Sarpanch for Manvat Tehsil allotted by respondent no.3 by it's order dated 10.5.2010, thereby reserving the post of Sarpanch for village Shevdi Jahangir for Backward class of people, although it was reserved for earlier tenure, the petitioner has approached this court by way of present petition for the prayers as set out herein above. 10 Respondent no.4 has filed affidavit in reply, sworn in by Shri Nagnath s/o Kishanrao Tirwad, presently working as the Naib Tahsildar, Manvat Tehsil, District Parbhani, and thereby denied the averments made and contentions raised by the petitioner in the present petition, unless admitted specifically. 11 Respondent no. 4 submits that the reservation for the post of Sarpanch for Backward class of citizens is contemplated under 7 Section 30 (4) (b) of the Bombay Village Panchayats Act, 1958, which provides that the office of Sarpanch to be reserved for persons belonging to category of Backward class of citizens shall be 27% of the total number of offices for Panchayats. It is also the contention of respondent no.4 that Rule 2-A of the Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964 authorizes the Tahsildar to reserve office of Sarpanch for the person belonging to category of Backward class of citizens by drawing lots, according to the instructions given by the State Government from time to time amongst Panchayats in the Tehsil. Accordingly, it is the contention of respondent no. 4 that a meeting was held on 10.5.2010, and out of 49 Village Panchayats from Manvat Taluka, 13 offices of Sarpanch of Village Panchayat therefrom were reserved for Backward class of citizens for the years 2010-2015. 12 It is submitted that before determining the said reservation for Backward class of citizens, the Village Panchayats those which were reserved for Backward class of citizens for the years 1995-2000 and 2000-2005 were excluded and after excluding said offices of Village Panchayat, there remained 9 Village Panchayats, which were not reserved for earlier point of time for Backward class of citizens. Accordingly, in all 13 Village Panchayat offices were reserved for Backward class of citizens, and hence, in order to attain 8 the figure of 13 Village Panchayats, 4 more Village Panchayats were necessary for reservation of Backward class of citizens. Hence, the Village Panchayat offices, those were reserved for Backward class of citizens in the years 1995-2000, were considered for the years 2010-2015. Thus, in the year 1995, total 15 Village Panchayats were reserved for Backward class of citizens, and out of them, 3 Villages were reserved for the years 2010-2015 for Scheduled Caste, and as such, 12 remaining Village Panchayats were considered for drawing lots for selecting said remaining 4 Village Panchayats for Backward class of citizens. 13 As regards village Shevdi Jahangir is concerned, it is canvassed that it was reserved for the year 1995-2000 from General category and for the year 2000-2005 the said Village Panchayat was reserved for Scheduled Tribe category. However, as no candidate from Scheduled Tribe category was elected in general elections for the years 2000-2005, it seems, that the Presiding Officer himself drew the lots amongst Scheduled Caste and Other Backward Class category and the seat was allotted for the years 2000-2005 for Backward class of citizens. In the said context, it is also submitted that in the present case, although the Presiding Officer had no authority to declare or to reallocate the reservation for the office of Sarpanch to any other category without any order from the 9 competent authority, the act of the Presiding Officer allotting the said seat for Backward class of citizens, though it was reserved for the Scheduled Tribe category, is illegal. Hence, respondent no.4 contended that the Presiding Officer has illegally declared the office of Sarpanch in the meeting dated 28.8.2000. Accordingly, as per the record, the said post of Sarpanch of village Shevdi Jahangir for the years 2000-2005 was reserved for the Scheduled Tribe category. 14 It is also canvassed by learned counsel for respondent no.4 that under Sub-rule 4-A of Rule 2-A of the Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964, a procedure has been prescribed that in the contingency when the office is reserved for Scheduled Tribe category and no elected member to such category is available, then such office for the same tenure shall be allotted by draw of lots to any of the categories for which the office of Sarpanch may reserved under Section 30 of the Bombay Village Panchayats Act, 1958. Hence, it is the contention of respondent no.4 that in the present case, although the office was reserved for the Scheduled Tribe category in the years 2000-2005, the then Presiding Officer, without any authority, allotted the said seat for the Other Backward Class category. 15 In the circumstances, respondent no.4 submits that 10 considering the fact that village Shevdi Jahangir was reserved for Open category for the years 2005-2010, and that at no point of time the said village was reserved for Backward class of citizens earlier, therefore, in the meeting held on 10.5.2010, by drawing the lots as per the provisions of the Bombay Village Panchayats Act, 1958 and the Rules, 1964, and as per the instructions of the Government issued from time to time, the office of Sarpanch for the years 2010-2015 was reserved for Backward class of citizens. Besides that, it is the contention of respondent no.4 that as the general election for village Shevdi Jahangir Panchayat is over and the result of the said election has also been declared on 10.8.2010, the present petition deserves to be dismissed and it be dismissed. 16 We have perused the contents of present petition filed by the petitioner as well as the contents of affidavit in reply filed by respondent no.4 and annextures thereof, as well as we have considered the submissions advanced by the learned counsel for the parties anxiously. 17 Learned counsel for the respondents invited our attention to the aspect that the post of Sarpanch of village Shevdi Jahangir was reserved for the years 1995-2000 from General category and for the years 2000-2005 the said Village Panchayat was reserved for 11 Scheduled Tribe category. However, no candidate from Scheduled Tribe category was elected in general elections for the years 2000-2005. Hence, the Presiding Officer himself allotted the seat for the years 2000-2005 for Backward class of citizens by drawing lots between Scheduled Caste and Other Backward Class categories. In fact, as per the provisions of the Bombay Village Panchayats Act and the Rules, the post of Sarpanch should be reserved by the competent authority i.e. the Collector, but in the present case, though the Presiding Officer had no authority to declare or to reallocate the reservation for the office of Sarpanch to any other category without any order from the competent authority, the act of the Presiding Officer allotting the said seat for Backward class of citizens, though it was reserved for the Scheduled Tribe category, was illegal. Accordingly, it is pointed out by learned counsel for the respondents that the office of Sarpanch was illegally declared by the Presiding Officer in the meeting dated 28.8.2000. As per the record, the said post of Sarpanch of village Shevdi Jahangir for the years 2000-2005 was reserved for the Scheduled Tribe category, and the copy of the abstract showing the said post for the years 2000-2005 reserved for the Scheduled Tribe category is annexed at Exh. R-1 to the affidavit in reply filed by respondent no.4. 18 Learned counsel for respondent no.4 also invited our 12 attention to Sub-rule 4-A of Rule 2-A of the Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964. The procedure prescribed under the said Rule is that in the contingency when the office is reserved for Scheduled Tribe category and no elected member to such category is available, then such office for the same tenure shall be allotted by draw of lots to any of the categories for which the office of Sarpanch may reserved under Section 30 of the Bombay Village Panchayats Act, 1958. In the present case, although the office was reserved for the Scheduled Tribe category in the years 2000-2005, the then Presiding Officer, without any authority, allotted the said seat for the Other Backward Class category, and copy thereof is annexed at R-2 with the affidavit in reply. 19 Learned counsel for respondent no.4 further invited our attention to the fact that the post of Sarpanch for village Shevdi Jahangir was reserved for Open category for the years 2005-2010, and therefore, meeting was held on 10.5.2010, and considering that at no point of time the said village was reserved for Backward class of citizens earlier, by drawing the lots as per the provisions of the Bombay Village Panchayats Act, 1958 and the Rules, 1964 as afore said, and as per the instructions of the Government issued from time to time, the office of Sarpanch was reserved for Backward 13 class of citizens for the years 2010-2015, and therefore, no illegality is found therein, and hence, no interference is called for in the present petition. 20 Besides that, it is pointed out that the general elections for village Shevdi Jahangir Panchayat are over and the result of the said election is also declared on 10.8.2010, and therefore, there is no substance in the present petition and same is devoid of any merits and hence, the same deserves to be dismissed. 21 In the result, we are of the considered view that this is not a fit case to invoke the extra-ordinary writ jurisdiction, and therefore, present petition stands dismissed. Rule stands discharged accordingly. However, in the circumstances of the case, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) (R.S.MOHITE, J.) dbm/wp6507.10