CWP No.11204 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11204 of 2010 DATE OF DECISION: DECEMBER 13, 2010 Rameshwar Saini .....PETITIONER Versus State of Haryana and others ....RESPONDENTS CCORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.Pritam Saini, Advocate, for the petitioner. Mr. G.S. Chahal, Addl.A.G., Haryana, for respondents No.1 to 5. Mr. Vikram Singh, Advocate, for respondent No.6. .. SATISH KUMAR MITTAL, J. The petitioner, who was elected as Municipal Councillor of Municipal Committee, Safidon from Ward No.6 against the seat reserved for Backward Class (Male), has filed the instant petition challenging the election of respondent No.6 (Smt. Hem Lata) as President of Municipal Committee, Safidon on the ground that she was not eligible to contest the election of President, Municipal Committee, Safidon, which was reserved for a candidate belonging to Backward Class (Woman). It is the case of the petitioner that in Municipal Committee, Safidon, there are 15 seats of Municipal Councillors, out of which, four CWP No.11204 of 2010 -2- seats were reserved for General Women, two for Backward Class (Male), one for Scheduled Caste (Woman), one for Scheduled Caste (Male) and seven seats were kept for General Category. Respondent No.6, though admittedly a Backward Class Woman, but she was elected as Municipal Councillor from Ward No.2 against the general seat. Therefore, according to the petitioner, respondent No.6 was not eligible to contest the election of President of Municipal Committee, Safidon, which was undisputedly reserved for Woman belonging to Backward Class category. Therefore, her election as such is illegal and void. According to the petitioner, in view of the Rule 70(4) of the Haryana Municipal Election Rules, 1978 (hereinafter referred to as `the 1978 Rules'), if no candidate from Backward Class (Woman) category is elected, then the office of President shall be filled up from the male member of the said reserved category. Thus, according to the petitioner, he is the only eligible candidate for the office of President because he was elected as Municipal Councillor from the seat reserved for the category of Backward Class (Male). In pursuance of the notice issued, a written statement has been placed on record on behalf of respondents No.1 to 5. We have heard the learned counsel for the parties. In our opinion, the contention raised by the petitioner is not tenable. Undisputedly, vide Notification dated 27.5.2010 (copy Annexure P1) issued in terms of sub-section (5) of Section 10 of the Haryana Municipal Act, 1973 (hereinafter referred to as `the Municipal Act') and sub-rule (4) of Rule 70 of the 1978 Rules, the offices of the Presidents of various Municipalities in Haryana were reserved, which were to be filled up from amongst the members of Women belonging to General Category, CWP No.11204 of 2010 -3- Scheduled Caste, Backward Classes, as mentioned in Schedule-I, II and III. As per Schedule-II, the office of President of Municipal Committee, Safidon was to be filled up from the member belonging to Backward Classes (Woman). Further, it is also admitted position that respondent No.6 (Smt. Hem Lata) belongs to Backward Class, though she was elected as Municipal Councillor from Ward No.2 against the seat meant for General Category. In our opinion, merely because respondent No.6, though a Backward Class Woman, was elected as member from a general seat, she could not be held to be ineligible to contest the election of President of Municipal Committee, Safidon, which undisputedly is reserved for Backward Class (Woman). This issue is no more in res integra. In Kasambhai F Ghanchi v. Chandubhai D. Rajput and others, 1998(1) SCC 285, a question came up for consideration before the Supreme Court whether a candidate belonging to Backward Class, who was elected as Municipal Councillor from the General seat, was eligible to contest the election of the office of President of the Municipal Council, which was reserved for Backward Class. It was held that such candidate was eligible to contest the election of President of the Municipality, which was reserved for Backward Class category, in spite of the fact he was elected as Municipal Councillor from a general seat, while making the following observations:- “The Act and the Rules provide for reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and women. No reservation or classification is made ward-wise. To put it differently all members of the Scheduled Castes, for example, will be regarded as belonging to one class irrespective of the fact whether they had been elected to a reserved seat or to a general seat. Similar is the position with regard to the Backward Classes, Scheduled Tribes and women. The law does CWP No.11204 of 2010 -4- not contemplate or provide for any further sub-classification of the type which has been suggested by the respondents. Just as all members of the municipality, irrespective of the fact whether they had been elected to a reserved seat or not, are eligible for election to the post of the President when it falls in the general category, similarly when as per the roster the President is to be one who, say, belongs to the category of Scheduled Caste, irrespective of the seat to which they had been elected, would be eligible to stand for election. Neither the Act nor the rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the President of the municipality.” Similar view was taken by a Division Bench of this Court in Manoj and another v. State of Haryana and others, 2009(2) RCR (Civil) 230 while interpreting the same provisions of the Municipal Act and the 1978 Rules. In that case, the petitioners sought setting aside the election of the President of the Municipal Council on the ground that she was not eligible to contest the election of the office of President of the Municipal Council, which was reserved for General category, as she was elected as a Municipal Councillor from the seat reserved for the category of `Women'. This Court while referring to various provisions of the Municipal Act and the 1978 Rules, and relying upon the judgments of this Court and the Supreme Court, has held as under:- “Undisputedly, every women is eligible to contest the election of a seat of Municipal Council, which is reserved for General category. It is also not disputed that a woman Municipal Councilor can contest the election of the office of President which is reserved for General category. The contention of the learned counsel for the petitioners is that since respondent No.3 CWP No.11204 of 2010 -5- was elected as Municipal Councilor from the seat reserved for the category of women, therefore, she cannot be permitted to contest the election of the office of President, which is reserved for General category. In our opinion, a woman Councilor cannot be prohibited from contesting the election of the office of President, merely on the ground that she was elected as Councilor from the seat reserved for the category of women, as such prohibition would be violative of Article 15 of the Constitution of India, which prohibits discrimination on the ground of sex.” Recently, in Bihari Lal Rada v. Anil Jain (Tinu) & Ors. 2009 (4) SCC 1, this issue again came up for consideration. In that case, the question for consideration before the Hon'ble Supreme Court was whether a member belonging to Scheduled Caste or Backward Class and was elected from wards reserved for the said category can contest the election of the office of President, Municipal Council, which was reserved for General Category. While setting aside the Division Bench judgment of this Court, which had taken a contrary view, the Hon'ble Supreme Court while interpreting the provisions of the Municipal Act and the 1978 Rules, has held that 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. In our opinion, a man or a woman, whether belonging to the General category, Scheduled Caste category or Backward Class category, is eligible to contest the election of the Municipal Councillor, which is meant for General Category. Merely because respondent No.6, who got herself CWP No.11204 of 2010 -6- elected as a Member of the Municipal Committee, for a seat meant for General Category, though belonging to a Backward Class community, can not be prohibited from contesting the election of the office of President of the Municipal Committee merely on the ground that she was elected as Municipal Councillor from the seat reserved for General Category and not from the seat reserved for Backward Class (Woman). As long as she belongs to Backward Class, she is fully eligible to contest the election for the office of President of the Municipal Committee, which is reserved for Backward Class (Woman). In view of the above, in our opinion, the election of respondent No.6 as President of Municipal Committee, Safidon, which is reserved for Backward Class (Woman), does not suffer from any illegality. Dismissed. (SATISH KUMAR MITTAL) JUDGE December 13, 2010 ( JORA SINGH ) vkg JUDGE Refer to Reporter