F.A.O No.4806 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O No.4806 of 2009 Date of Decision: 06.10.2009 Harkesh Chand ....Appellant Versus Jaswinder Kaur and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Arvind Kashyap, Advocate for the appellant. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is an appeal filed against the impugned Order dated 29-07-2009 passed by the Election Tribunal under Punjab State Election Commission Act, 1994, vide which, the election petition filed by respondent No.1 was accepted and the election of the present appellant was set aside. The facts, in short, are that the respondent and the appellant contested elections on 26-05-2008 for the post of Panch (General Category) from Gram Panchayat, Village Channo. The respondent, herein, polled 118 votes and the present appellant was polled only 37 votes. The F.A.O No.4806 of 2009 2 present appellant was, thereafter, wrongly declared elected. Jaswinder Kaur challenged the said election. Learned counsel for the appellant does not dispute that respondent No.1-Jaswinder Kaur was polled 118 votes while the appellant was polled only 37 votes. The only ground on which the order setting aside the election of appellant has been challenged is that the respondent- Jaswinder Kaur, did not comply with Section 77 of the Punjab State Election Commission Act, 1994 (here-in-after referred to as `the Act') and did not implead all the contesting candidates, which was mandatory as per Section 77 of the Act. It was further argued that the nomination papers of Jaswinder Kaur, was filed for the post of Panch General Category (Woman), therefore, she could not have been declared elected against the post of Panch General Category. Learned counsel for the appellant has been heard. Learned counsel for the appellant does not dispute that there was no other candidate who had more votes than the appellant except respondent No.1. In view of this admitted position, the only affected person is the appellant, who was duly impleaded as party. Learned counsel for the appellant has not brought to the notice any case law suggesting that Section 77 of the Act is mandatory, even when no relief is sought against the other candidates and are not affected as in the facts of the present case. The second argument of learned counsel for the appellant that Jaswinder Kaur having filed the nomination papers for the post of Panch General Category (Woman) could not have been declared elected against the post of Panch General Category, cannot be accepted, in view of the settled legal proposition of law. The Apex Court, in the judgment, rendered in the case of Bihari Lal Rada v. Anil Jain (Tinu) & Ors. JT 2009(2) SC 455, is one such case. The respondent, therein, challenged the said election of F.A.O No.4806 of 2009 3 the appellant mainly on the ground that as per the Notification issued by the Competent Authority, the office of the President of Municipal Council, Hisar, had been reserved for general category candidate and the same was to be filled in from amongst the members belonging to general category. Meaning thereby, for the office of the President of Municipal Council, Hisar only the members elected from the general category had a right and not the members elected from Backward Class category. In the facts of that case, it was held as follows :- “ There is nothing in the provisions of the Act, 1973 suggesting that in case the office of the President of a Municipality is required to be filled in from the members belonging to the general category then only a member who has been elected as such from an unreserved ward alone can stand for election. There is nothing in law that a person belonging to Backward Class and got himself elected from a ward reserved for that class is debarred from contesting the election to the office of President/Chairperson when that office is not reserved and meant to be filled in from the members belonging to the general category. 33. In our view, wherever the office of the President of a Municipality is required to be filled in by a member belonging to Scheduled Caste, Scheduled Tribe or Backward Class as the case may be, it would be enough if one belongs to one of those categories irrespective of the fact whether they have been elected from a general ward or a reserved ward. Likewise, the office of the President of a Municipality if not reserved or meant for general category, all the candidates irrespective of their caste, class or community and irrespective of the fact whether they have been elected from a reserved ward or a general ward are entitled to seek election and contest to the office of the President of the Municipality.” F.A.O No.4806 of 2009 4 Similar view has also been expressed by a Division Bench of this Court in the case of Sampuran Singh (supra). In that case, the controversy was, whether a Panch, who was elected as such against the seat reserved for General Category, is eligible to contest the election of the office of Sarpanch, which is reserved for the category of Scheduled Caste. The Division Bench, while relying upon the judgment of Hon'ble the Apex Court, mentioned above, held :- “ We are of the opinion that a Panch belonging to the Scheduled Caste is eligible to contest the election of the office of Sarpanch, which is reserved for Scheduled Caste by producing a Scheduled Caste Certificate. He cannot be prevented to contest the election only on the ground that he was elected as Panch against the seat reserved for General Category. 6. A bare reading of Sub Section (1) of Section 12 of the Panchayati Raj Act, 1984 makes it clear that the number of the offices of Sarpanch of the Gram Panchayat in the district shall be reserved for Scheduled Castes proportionately to the population of the Scheduled Castes in the District. This Section does not provide that only a Panch, who has been elected as such against the seat reserved for Scheduled Caste can only contest the election of the office of Sarpanch, which is reserved for the category of Scheduled Caste.” Section 55 of the Act reads as under :- “55. Eligibility of members of Scheduled Castes to hold seats not reserved for those castes.- For the avoidance of doubt, it is hereby declared that a member of the Scheduled Castes shall not be disqualified to hold a seat not reserved for members of those castes, if he is otherwise qualified to hold such seat under the Constitution of India and this Act.” F.A.O No.4806 of 2009 5 On perusal of the above as well as taking into account the law, laid down by Hon'ble the Supreme Court, there is no bar on a candidate being a `woman from general category' to contest the election against the post of `general category'. There is nothing called reservation for General Category. Admittedly, it was a post of general category. No distinction as to whether it was for only male (general category) or female (general category) was provided. It is apparent that even a candidate belonging to any other reserved category as also a woman belonging to general category, if otherwise eligible cannot be disqualified against general category. The present case is even better because the finding has been recorded by the Tribunal that Jaswinder Kaur had, in fact, filed her nomination papers against the post of general category. In view of the above, the appeal is dismissed being devoid of merits. (NIRMALJIT KAUR) 06.10.2009 JUDGE gurpreet