F.A.O No.1044 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O. No.1044 of 2009 Date of Decision: 01.09.2009 Pritam Kaur ....Appellant Versus Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Amritsar and others. ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. M.S. Bedi, Advocate for the appellant. Mr. Vinod Gupta, Advocate for respondent No.3. ***** 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 against the order dated 05-02-2009 passed by Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Amritsar, vide which the election of the appellant as Sarpanch of Gram Panchayat Veeram, Block Majitha, District Amritsar, has been set aside. The facts, in brief, are that the appellant-Pritam Kaur was elected as Panch of the Gram Panchayat Veeram on 26-05-2008 on the seat of Scheduled Castes Women category. The office of the Sarpanch of Gram Panchayat Veeram was reserved for `General-Women' and the appellant was elected as Sarpanch being supported by majority of panches F.A.O No.1044 of 2009(O&M) 2 in the meeting held on 19-07-2008. Respondent no.3-Sukhbir Kaur-panch was served for the said meeting but she did not attend the meeting. The said election was set aside on the ground that as per the notification dated 09-05-2008, the seat of Sarpanch of Gram Panchayat Veeram has been reserved for General Women and as the appellant was elected as panch from the seat of Scheduled Castes Women category, therefore, she was not competent to contest the election to the office of Sarpanch reserved for General Women. Learned counsel for the appellant, while challenging the said order, submitted that the order of the Tribunal, is against the judgments, laid down by Hon'ble the Supreme Court, in the case, titled as Bihari Lal Rada v. Anil Jain (Tinu) & Ors. JT 2009(2) SC 455, as well as, by this Court, in the cases, titled as Sampuran Singh vs. State of Punjab and others 2009(3) RCR (Civil) and Paramjit Singh vs. State of Punjab and others 2009(2) RCR (Civil) 594 as also in violation of Section 55 of the Punjab State Election Commission Act, 1994. Learned counsel for the respondents, on the other hand, however, submitted that they were never served and no notice to attend the meeting for election of the Sarpanch, fixed by the Presiding Officer, was issued. Hence, they could not participate in the said election. It was further stated that the Secretary-cum-Director Rural Development, Punjab, Chandigarh had issued instructions vide its memo letter no.DPE- 1/2008/19068-84 dated 06-06-2008 to tackle the problems arising out of the election of Sarpanches of the Gram Panchayats from the reserved category of Scheduled Caste and Women category. Learned counsel for the respondents also submitted that according to the amendment made vide notification dated 11-11-2008 issued under Section 45 of the Punjab State Election Commission Act, 1994, “even if one candidate is available on the seat of Sarpanch from reserved category, then also he/she would F.A.O No.1044 of 2009(O&M) 3 be elected as Sarpanch.” As such, the election of the Sarpanch was required to be conducted from the General Women category. Learned counsel for the parties have been heard. Reliance was placed by the respondents, on the notification dated 11-11-2008. Rule 8 of the said notification reads as follow :- “ The election of the Sarpanch shall be made from the category for which it is reserved. If there is only one candidate available for the office of Sarpanch of that particular reserved category, then he/she shall be deemed to have been elected unopposed for the office of Sarpanch. The copy of the result of the election of Sarpanch so held, shall immediately be, sent by the officer, conducting the election to the District Electoral officer, the Election Commission and the State Government, and a copy of the same may also be given to the elected candidate.” The above Rule will not come in the way of the present case, in view of Section 55 of the Punjab State Election Commission Act, 1994, as reproduced below and also, on account of the fact that the present petitioner, herein, is also a woman. The provisions of the Constitution of India and the provisions of Section 55 of the Punjab State Election Commission Act, 1994, are 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.” A perusal of the same leaves no doubt that a candidate, who F.A.O No.1044 of 2009(O&M) 4 was a member of Scheduled Caste and elected on the post of Panch as a member of Scheduled Caste, cannot be disqualified for a seat reserved for General Category. Learned counsel for the respondents, however, tried to dispute the same on the ground that the same was not simply for `General Category' but for the `General Women category'. However, the argument of the learned counsel for the respondents will have to be rejected, in view of the settled law. The Apex Court, in the judgment, rendered in the case of Bihari Lal Rada (supra) is one such case. This was a case, where the election to the Municipal Council, Hisar was held on 16-04-2005. In all, there were 31 wards out of which 15 wards were reserved for the members belonging to Scheduled Castes and 2 wards were reserved for Backward Class category. The respondent/writ petitioner was elected from ward no.2 which was general category and not reserved in favour of any one of those categories mentioned therein. The appellant, therein, was elected from ward no.18, which was reserved for Backward Class category. Thereafter election was held to the office of the President, Municipal Council, Hisar on 29-08-2006. In the election held on 29-08-2006, in all 32 Municipal Councilors participated. The appellant secured 19 votes, whereas, the respondent got 13 votes and accordingly, the appellant was declared to have been duly elected as the President of the Municipal Council, Hisar. The respondent, therein, challenged the said election of 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 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 F.A.O No.1044 of 2009(O&M) 5 follows :- “ There is nothing in the provisions of the Act, 1973suggesting 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.” 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 :- F.A.O No.1044 of 2009(O&M) 6 “ 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.” In the present case, the office of Sarpanch was shown to have been reserved for General Women category. In view of the law, laid down by Hon'ble the Supreme Court, there is no bar on a candidate belonging to another category contesting for the post for general category. The difference, herein, as pointed out, is with respect to the same being reserved for “Women of General Category.” Even then, the fact remains that the present petitioner is a woman. There is nothing called reservation for General Category. Reservation herein is to be therefore interpreted as Reserved for Women. As per the ratio of the judgment referred to above and the same principle, being applicable in the present case, the petitioner, who is a `woman' but belongs to a Scheduled Caste category, cannot be debarred from contesting the election to the post of Sarpanch, `reserved for a woman' belonging to the General Category. The only requirement is that the candidate should be a woman. F.A.O No.1044 of 2009(O&M) 7 At the most, the election for the post of Sarpanch has to be kept limited between the women candidates only. All the women, elected as Panch and qualified to hold the seat, are eligible to contest the election for the post of Sarpanch. However, taking up the submission of learned counsel for the respondents that respondent No.3-Sukhbir Kaur did not attend the meeting for election of the Sarpanch, fixed by the Presiding Officer, as no notice was issued to her, has merit. It is evident from the order of the Tribunal that no issue, as to whether Sukhbir Kaur-panch was served for the said meeting dated 19-07-2008 or not, was framed. Accordingly, respondent No.3 could not lead evidence to prove that she was not served and was not aware of the meeting, to be held on 19-07-2008. The failure or in other words, the absence of respondent No.3 from the meeting, left no other candidate except the appellant-Pritam Kaur, in the field. As such, she was elected un-opposed. Thus, no opportunity to contest the election was granted to respondent No.3-Sukhbir Kaur, which is totally unfair. In view of the above discussion, the order dated 05-02-2009 passed by Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Amritsar, is set aside to the extent vide which, it is held that the appellant cannot contest the election against the seat reserved for `General Women category' as she has been elected as panch from the category of Scheduled Caste. The matter is, accordingly, remanded back to the Deputy Commissioner-cum-Presiding Officer, Election Tribunal, Amritsar, to frame the issue as to whether the notice of the meeting dated 19-07-2008 was served upon respondent No.3-Sukhbir Kaur or not. In case, the said issue is decided in favour of respondent No.3 and it is held that respondent No.3 was not served, then fresh election of Sarpanch of Gram Panchayat Veeram, Block Majitha, District Amritsar be got conducted immediately. However, the said election will be restricted F.A.O No.1044 of 2009(O&M) 8 between the women candidates, already elected to the post of panch for Gram Panchayat Veeram, Block Majitha, District Amritsar. In case, the issue is decided in favour of the appellant i.e. Pritam Kaur and it is held that due notice was received by respondent No.3 and she did not appear in the meeting inspite of the same, the appellant shall be declared elected without going through the process of fresh election as there being no other woman candidate in the field. The appeal is, accordingly, disposed of in the above terms. - (NIRMALJIT KAUR) 01.09.2009 JUDGE gurpreet