IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN SATURDAY, THE 25TH SEPTEMBER 2010 / 3RD ASWINA 1932 WP(C).No. 27264 of 2010(G) ---------------------------------------- PETITIONER(S): ------------------------ SHAMNAD.S, AGED 27 YEARS, S/O.M.SALIM, “SHAMNAD MANZIL”, KALANKAVU, PEPPARA PO, THIRUVANANTHAPURAM. BY ADVS. SRI.RAM MOHAN.G., SRI.SHINOD G.P. RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTION COMMISSION, REPRESENTED BY THE KERALA STATE ELECTION COMMISSIONER, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM. 2. THE KERALA STATE ELECTION COMMISSIONER, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. *ADDL.R4 IMPLEADED: R4. VITHURA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VITHURA, THIRUVANANTHAPURAM. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 7/09/2010 IN I.A.NO.12365/2010) R1 & R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN. R3 BY GOVERNMENT PLEADER SMT. K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2010 ALONG WITH WPC.NO.27280 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27264/2010 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT ALONG WITH THE RELEVANT EXTRACT OF SCHEDULE RESERVING THE POSTS OF PRESIDENTS OF VARIOUS GRAMA PANCHAYATS IN THE STATE. RESPONDENT'S ANNEXURES: ANNEX.A: COPY OF THE GUIDELINES ISSUED BY THE STATE ELECTION COMMISSION FOR RESERVATION OF OFFICE OF PRESIDENT OF GRAMA PANCHAYATS/BLOCK PANCHAYATS/DISTRICT PANCHAYATS. ANNEX.B: COPY OF THE RELEVANT PAGES OF THE NOTIFICATION NO. 212/2010/SEC DTD. 26/08/2010 ISSUED BY THE STATE ELECTION COMMISSION. /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------- W.P.(C) Nos. 27264, 27280, 27940 & 28088 of 2010 ------------------------------- Dated this the 25th day of September, 2010 J U D G M E N T A common question arises in these writ petitions. They were, therefore, heard together and are being disposed of by this common judgment. W.P.(C) No.27280 of 2010:- 2. The petitioner in this writ petition is a resident of Peringamala Grama Panchayat in Thiruvananthapuram District. He belongs to the Kani tribe which is recognised as a scheduled tribe in the State of Kerala. Article 243-D of the Constitution of India and the provisions of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as 'the Act' for short, provide for the reservation of seats in various levels of Panchayats and office of President of Panchayats at various levels in favour of candidates belonging to the scheduled castes, the scheduled tribes and also women. Section 153 (3)(a) of the Kerala Panchayat Raj Act, 1994, stipulates that the offices of President of Village Panchayats, Block Panchayats and District Panchayats in the State shall be reserved by the Government for the scheduled castes and the scheduled tribes and the number of the W.P.(C) No.27264/2010 etc. 2 offices of President reserved for the scheduled castes and the scheduled tribes in the Panchayats at each level in the State shall bear, as nearly as may be, the same proportion to the total number of offices of President at each level as the population of the scheduled castes in the State or of the scheduled tribes in the State bears to the total population of the State. Clause (b) of sub-section (3) of section 153 provides that 50% each of the total number of offices of President of Village Panchayats, Block Panchayats and District Panchayats in the State reserved under clause (a) and 50% each of the total number of offices of President of Village Panchayats, Block Panchayats and District Panchayats in the State, not so reserved, shall be reserved by the Government for women. Clause (a) of sub- section (4) of section 153 of the Act stipulates that the offices of the President reserved under sub-section (3) shall be allotted to every level of Panchayat in the different districts by the State Election Commission by notification in the Gazette. Clause (b) of sub-section (4) of section 153 of the Act stipulates that in the case of Block Panchayats and Village Panchayats, the office of President reserved for the scheduled castes and the scheduled tribes shall be allotted W.P.(C) No.27264/2010 etc. 3 proportionate to their population in the respective districts. Clause (c) of sub-section (4) of section 153 stipulates that in the case of Village Panchayats, the reserved seats in each district shall be distributed among the Village Panchayats within the area of the various Block Panchayats in the district. Clause (d) of sub-section (4) of section 153 stipulates that before issuing the notification for General Election, the State Election Commission shall allot by rotation the reserved seats under clause (a), (b) and (c) and the rotation shall start from the Panchayat in which the scheduled castes, or the scheduled tribes or women have the largest percentage of population and then passed on to the next Panchayat having their largest percentage of population and so on. 3. In the elections to the local bodies held for the first time after the Kerala Panchayat Raj Act, 1994, was enacted, the office of President of Vithura Grama Panchayat in Vellanad Block Panchayat of Thiruvananthapuram District was reserved for the scheduled tribes. In the elections held during the year 2000, there was no reservation of the office of President of Grama Panchayat in favour of the scheduled tribes in the whole of Thiruvananthapuram W.P.(C) No.27264/2010 etc. 4 District. In the next elections, viz., during 2005, the office of President of Tholicode Grama Panchayat in Vellanad Block Panchayat (the very same Block Panchayat of which Vithura Grama Panchayat is also a part) was reserved in favour of the scheduled tribes. The grievance voiced by the petitioner in this writ petition is that in the ensuing elections, viz., elections scheduled to be held in October 2010, the office of President of Vithura Grama Panchayat has again been reserved for the scheduled tribes by Ext.P1 notification dated 26.8.2010 published in the Kerala Gazette (Extra ordinary) dated 26.8.2010. It is contended that the State Election Commission ought to have reserved the office of President applying clause (d) of sub-section (4) of Section 154 of the Act by rotation among the various Grama Panchayats in Thiruvananthapuram District and that instead they have confined the reservation only to Panchayats in Vellanad Block Panchayat. The petitioner contends that the decision taken by the State Election Commission to reserve the office of President of Vithura Grama Panchayat for the scheduled tribes is arbitrary and illegal and is liable to be set aside. It is contended that applying the rule of rotation stipulated in section 153(4)(d) of the Act, W.P.(C) No.27264/2010 etc. 5 the office of the President of Peringamala Grama Panchayat in Vamanapuram Block Panchayat should have been reserved in favour of the scheduled tribes. W.P.(C) No.27264 of 2010 4. The petitioner herein is a resident of Vithura Grama Panchayat. In this writ petition wherein contentions similar to those in W.P.(C) No.27280 of 2010 are raised, the petitioner contends that the reservation of the office of President of Vithura Grama Panchayat in favour of the scheduled tribes is arbitrary and illegal. The factual details are as set out in W.P.(C) No.27280 of 2010 and are therefore, not set out separately. W.P.(C) No.27940 of 2010 5. The petitioner herein is a resident of Chithra Grama Panchayat in Kollam District. Chithra Grama Panchayat is one among the eight Grama Panchayats in Chadayamangalam Block. During the elections held in the year 1995, the office of President of Chithra Grama Panchayat was not reserved in favour of either women candidates or the scheduled castes or the scheduled tribes. However, in the next elections, viz., the elections held in the year W.P.(C) No.27264/2010 etc. 6 2000, the office of President of Chithra Grama Panchayat was reserved in favour of the scheduled castes. In the next elections, viz., the elections held during 2005, the office of President was reserved in favour of women candidates. In the ensuing elections, the office of President of Chithra Grama Panchayat is reserved for the scheduled castes. The notification issued by the State Election Commission in that regard and published in the Kerala Gazette (Extra ordinary) dated 26.8.2010 is under challenge in this writ petition. The petitioner contends that the percentage of population of the scheduled castes in Chithra Grama Panchayat is 13.70 and that as the office of President of Chithra Grama Panchayat was reserved during the year 2000 in favour of the scheduled castes and during the year 2005 in favour of women candidates, in the ensuing elections, the office of President of Elamad Grama Panchayat, the additional third respondent in the writ petition, should have been reserved for the scheduled castes. The petitioner contends that the rotation contemplated in section 153(4)(d) of the Act is among the various Panchayats in Malappuram Districts and that the State Election Commission has not applied the rotation correctly. On this ground, the W.P.(C) No.27264/2010 etc. 7 petitioner challenges the reservation of the office of President of Chithra Grama Panchayat in favour of the scheduled castes. W.P.(C) No.28088 of 2010 6. The petitioner herein is a resident of Mankada Grama Panchayat in Malappuram District. It is stated that in the elections held in the year 2000, the office of President of Mankada Grama Panchayat was reserved in favour of the scheduled castes, in the elections held in the year 2005, the office of President was reserved in favour of women candidates and that in the ensuing elections, the office of President of Mankada Grama Panchayat has again been reserved in favour of the scheduled castes. The petitioner contends that the State Election Commission erred in successively reserving the office of President of Mankada Grama Panchayat in favour of the scheduled castes, and therefore, the notification issued by the State Election Commission in that regard is liable to be set aside. It is contended that the office of President of Koottilangadi Grama Panchayat or Makkaraparamba Grama Panchayat ought to have been reserved applying the rule of rotation contemplated in clause (d) of sub-section (4) of section 153 of the Act. W.P.(C) No.27264/2010 etc. 8 7. In all these cases, the State Election Commission has filed separate statements. As regards the Vithura Grama Panchayat, it is stated that the Government had reserved one office of President of Grama Panchayat in the whole of Thiruvananthapuram District in favour of the scheduled tribes as per G.O.(MS) No.155/10/LSGD dated 22.7.2010; that the total number of offices of President thus reserved in Thiruvananthapuram district in favour of various categories including the scheduled castes, the scheduled tribes and women candidates was 14; that out of the 11 Block Panchayats in Thiruvananthapuram, Vellanad Block Panchayat consisting of 8 Grama Panchayats is having the highest percentage of scheduled tribe population and therefore, for the purpose of reserving the office of President of Grama Panchayat in Thiruvananthapuram District in favour of the scheduled tribes, Vellanad Block Panchayat was chosen. It is further stated that since Vithura Grama Panchayat has the highest percentage of scheduled tribe population in that Block Panchayat and the office of President of Vithura Grama Panchayat had not been reserved for the scheduled tribes during the elections held in the year 2005 a decision was taken by the State Election W.P.(C) No.27264/2010 etc. 9 Commission to reserve the office of President of Vithura Grama Panchayat for the scheduled tribes in the ensuing elections. With reference to Mankada Grama Panchayat in Malappuram District and Chithra Grama Panchayat in Kollam District, similar contentions are raised. In other words, from a reading of the statements filed by the State Election Commission, it is evident that the State Election Commission has not identified the Grama Panchayat in which office of President has to be reserved either in favour of scheduled castes or the scheduled tribes having regard to the population of the scheduled castes or the scheduled tribes, as the case may be, in the various Grama Panchayats of the revenue district. 8. I heard Sri.G.Ram Mohan, Sri.M.R.Rajesh, Sri.T.R.Harikumar and Sri.K.Abdul Jawad, the learned counsel appearing for the petitioners in the respective writ petitions, Smt.K.R.Deepa, learned Government Pleader appearing for the State of Kerala, Sri.Murali Purushothaman, learned Standing Counsel appearing for the Kerala State Election Commission, Sri.V.Rajendran (Perumbavoor), learned counsel appearing for the Vithura Grama Panchayat and Sri.M.Dinesh, the learned counsel appearing for the W.P.(C) No.27264/2010 etc. 10 Peringamala Grama Panchayat. I have also considered the pleadings and the materials on record. The learned counsel for the petitioners contended that as the Election Commission has admittedly not followed the stipulations in clauses (b) and (c) of sub-section (4) of Section 153 of the Act while identifying the Grama Panchayat, the office of President of which is to be reserved either in favour of the scheduled castes or the scheduled tribes, the decision taken by the Commission is liable to be set aside as it is one made in violation of the statutory provisions. Relying on the decision of the Apex Court in Comptroller and Auditor General of India, Gian Prakash, New Delhi and Another v. K.S.Jagannathan and Another (1986 (2) SCC 679), Sri.M.R.Rajesh, the learned counsel for the petitioner in W.P.(C) No.27280 of 2010 contended that where a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such W.P.(C) No.27264/2010 etc. 11 discretion has been conferred, this Court exercising jursidcition under Article 226 of the Constitution of India can in a fit and proper case compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, this Court can itself pass an order or give directions which the Government or the public authority should have passed. He submitted that if that be so, in an area where the Election Commission has no discretion, the Commission cannot take shelter under the plea that its decision should not be interfered with as it will result in unsettling the election schedule. 9. Per contra, Sri.Murali Purushothaman, the learned standing counsel appearing for the State Election Commission contended, relying on the decision of a learned single Judge of this Court in Viswanath B. v. The State of Kerala and others (ILR 2002 (1) Kerala 42) that in the absence of any allegation of favouritism or malafides, as the State Election Commission has followed a uniform procedure through the State, the decision of the Election Commission should not be interfered with. The learned W.P.(C) No.27264/2010 etc. 12 counsel for the State Election Commission also contended that the reservation in the instant cases does not amount to successive reservation to the same category of candidates. 10. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The short question that arises for consideration in these cases is whether the procedure adopted by the State Election Commission for identifying the Grama Panchayats in which the office of President is to be reserved is illegal. Sub-sections (3) and (4) of section 153 of the Kerala Panchayat Raj Act, 1994 which are relevant for the purpose of these cases are extracted below for easy reference. “Section 153. Election of President and Vice-President:- (1)--------------- (2)--------------- (3)(a) The offices of President of Village Panchayats, Block Panchayats and District Panchayats in the State shall be reserved by the Government for the Scheduled castesand the Schedued tribes and the number of the offices of President reserved for Scheduled castesand the Scheduled tribes in the Panchayats at each level in the State shall bear, as nearly as may be, the same proportion to the total number of offices of President at each level as the population of the Scheduled castesin the State or of the Scheduled tribes in the State bears to W.P.(C) No.27264/2010 etc. 13 the total population of the State: (b)(i) [Fifty percent (in the case of fraction it shall be fixed to the next higher integer)] each of the total number of offices of President of Village Panchayats, Block Panchayats and District Pachayats in the State reserved under clause (a); and (ii)[Fifty percent (in the case of fraction it shall be fixed to the next higher integer)] each of the total number of offices of President of Village Panchayats, Block Panchayats and District Panchayats in the State, not so reserved, shall be reserved by the Government, for women. (4)(a) The offices of the President reserved under sub-section (3) shall be allotted to every level of the Panchayat in the different districts by the State Election Commission by notification in the Gazette. (b) In the case of Block Panchayats and Village Panchayats the reserved seats for the Scheduled castesand Scheduled tribes shall be allotted proportionate to their population in the respective districts. (c) In the case of Village Panchayat, the reserved seats in each district shall be distributed among the Village Panchayats within the area of the various Block Panchayats in the district. (d) Before issuing notification for General election, the State Election Commission shall allot by rotation the reserved seats under clause (a), (b) and (c) and the rotation shall start from the Panchayat in which the scheduled castes, or the scheduled tribes or women have the largest percentage of population and then passed on to the next Panchayat having their largest percentage of W.P.(C) No.27264/2010 etc. 14 population and so on: (e) In the case of an election to the office of the President reserved for Scheduled castesor Scheduled tribes, a member, if he is not a person elected from a seat reserved for Scheduled castesor Scheduled tribes as the case may be, shall not be eligible for Election to the office of the President, unless he produces before the Returning Officer a community certificate issued by a competent officer stating that he is a member of the Scheduled casteor Scheduled tribe; (f) A member elected to the office of the President reserved for Scheduled castesor Scheduled tribes who has been proved under the Kerala ( Scheduled castesand Scheduled tribes) Regulation of Issue of Community Certificate Act, 1996 (11 of 1996) or under any other law for the time being in force, that he does not belong to Scheduled casteor Scheduled tribe, as the case may be, and declared as such he shall not be entitled to continue in office of the President from the date of such declaration and his membership shall stand forfeited and the State Election Commission shall declare the offices of the President and the member to be vacant.] Provided that where the Panchayat the office of President of which is to be reserved for women and the Scheduled castesand Scheduled tribes is one and the same; in so reserving the Office of President, preference shall be given to the Scheduled castesor Scheduled tribes and in lieu, the office of the President in the Panchayat next having their largest percentage population of women shall be reserved for women: Provided further that in Panchayats the W.P.(C) No.27264/2010 etc. 15 office of President of which is reserved for the Scheduled casteor Scheduled tribes, those in which the women have the more percentage of population of women shall be reserved for women belonging to them: Provided also that the office of President of any Panchayat shall be reserved for the scheduled castesor scheduled tribes or women belonging to them only if at least one constituency of that Panchayat is reserved for that category. 11. There is no dispute that applying sub-section(3) of section 153 of the Act, the Government have decided to reserve one office of President of Grama Panchayat in the whole of Thiruvananthapuram District in favour of the scheduled tribes. Likewise, there is no dispute regarding the number of the offices of President of Grama Panchayat reserved by the Government in favour of the scheduled castes in Malappuram and Kollam Districts. Sub- section (4) of section 153 of the Act sets out the manner in which the office of President reserved by the Government under sub-section (3) of section 153 of the Act has to be allotted to every level of Panchayat in the different districts by the State Election Commission. Clause (b) of sub-section (4) of Section 153 states that in the case of Block Panchayats and in the case of Village Panchayats, the offices reserved W.P.(C) No.27264/2010 etc. 16 for the scheduled castes and the scheduled tribes shall be allotted proportionate to their population in the respective districts. Clause (c) of sub-section (4) of section 153 states that in the case of Village Panchayats, the reserved seats in each district shall be distributed among the Village Panchayats within the area of various Block Panchayats in the district. From a reading of clauses (b) and (c) of sub-section (4) of section 153, it is evident that in the case of Village Panchayats, when the Government have reserved a particular number of offices of President of Village Panchayat either in favour of the scheduled castes or the scheduled tribes, the State Election Commission is bound to allot the seats having regard to the population of the scheduled castes or the scheduled tribes, as the case may be, in the respective districts. Clause (c) clarifies the position by reiterating that the reserved offices in each district shall be distributed among the Village Panchayats within the area of various Block Panchayats. In my opinion, the effect of clauses (b) and (c) of sub-section (4) of section 153 of the Act is that the offices of President of Grama Panchayats reserved for the scheduled castes and the scheduled tribes shall be distributed among the various Grama W.P.(C) No.27264/2010 etc. 17 Panchayats within the revenue district. The first proviso to sub- section (4) of section 153 stipulates that where the Panchayat the office of President of which is to be reserved for women and the scheduled castes and scheduled tribes is one and the same; in so reserving the Office of President, preference shall be given to the scheduled castes or scheduled tribes and in lieu, the office of the President in the Panchayat next having their largest percentage population of women shall be reserved for women. The second proviso stipulates that in Panchayats, the office of President of which is reserved for the scheduled caste or scheduled tribes, those in which the women have the more percentage of population shall be reserved for scheduled caste women or scheduled tribe women, as the case may be. The third proviso stipulates that such reservation in favour of the scheduled castes or scheduled tribes or women belonging to the scheduled castes or scheduled tribes shall be made only if at least one constituency of that Panchayat is reserved for that category. The State Election Commission was therefore, in my opinion, bound to allot the offices of President of Grama Panchayat reserved for the scheduled castes and the scheduled tribes having regard to the W.P.(C) No.27264/2010 etc. 18 percentage of population of the scheduled castes and the scheduled tribes in the various Grama Panchayats in the revenue district, guided by the three privosos to sub-section (4) of Section 153 of the Act. 12. In the instant case, it is evident from Annexure-E worksheet produced in W.P.(C) No.27280 of 2010 that the Grama Panchayat having the highest percentage of population of scheduled tribes is Vithura Grama Panchayat (12.31%). The next highest percentage of population of scheduled tribes is in Peringamala Grama Panchayt (12.22%). The Peringamala Grama Panchayat is impleaded as the additional third respondent in W.P.(C) No.27280 of 2010 and the Vithura Grama Panchayat is impleaded as the additional fourth respondent in W.P.(C) No.27264 of 2010. The State Election Commission has, in my opinion, by reserving the office of President of Vithura Grama Panchayat for the scheduled tribes acted in violation of the stipulations contained in clause (d) of sub-section 4 of section