FAO No. 4770 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 4770 of 2009 Date of decision: September 24, 2009 Pooja Rani ........ Appellant Versus Presiding Officer, Election Tribunal Barnala etc. .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Satinder Khanna, Advocate for the appellant -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is an appeal against the order dated 21.08.2009 passed by the Presiding Officer, Election Tribunal (Deputy Commissioner) Barnala, vide which the election petition filed by Kulwant Kaur, respondent No. 2, under Sections 76 and 89 of the Punjab State Election Act, 1994, for setting aside the election proceedings dated 28.08.2008 whereby Pooja Rani, appellant, was elected as Sarpanch of Village Kirpal Singh Wala, Tehsil and District Barnala, has been accepted and the election of the appellant was set aside and a direction was also issued to hold fresh election to the post of Sarpanch, in accordance with law. Facts in short are that the appellant is a lady from general FAO No. 4770 of 2009 2 category, who contested election of the post of Member Panchayat of Village Kirpal Singh Wala, District Barnala. The Panchayat consists of seven members. The appellant was the only lady in general category to be elected as a member of the Panchayat. Kulwant Kaur member Panchayat was elected as a lady in Scheduled Caste category. As per the notification issued by the Government of Punjab, the post of Sarpanch of this Village was kept reserved for General (Women) Category and the appellant having contested the election from General Category and being a lady was declared elected without going through the process of election to the post of Sarpanch. The election of the appellant was challenged on the ground that the said post was reserved for women and Kulwant Kaur, being a woman, was also entitled to participate in the election for the post of Sarpanch. Further, the name of the appellant was supported/proposed by only one Panch and there was no one even to second her name for the said post and the District Welfare officer Barnala had illegally declared elected the appellant, Pooja Rani, as Sarpanch of the village without going through the election process. Her election was, accordingly, set aside by holding that the election for the said post should have been held by way of a secret ballot. While challenging the impugned order, the learned counsel for the appellant submitted that the appellant, being the only lady in the general category, no election was called for, as the only other lady candidate, namely Kulwant Kaur, belongs to the scheduled caste category and, as such, she could not claim the reservation meant for the General Category (Women). Reliance was placed on the notification dated 11.11.2008. Learned counsel for the appellant has been heard. The arguments raised by the learned counsel for the appellant will FAO No. 4770 of 2009 3 have to be rejected, in view of the settled proposition of law laid down by the Apex Court, in one such case 'Bihari Lal Rada v Anil Jain (Tinu) and others JT 2009(2) SC 455. 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 wrongly 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 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. Like wise, the office of the President of a Municipality if not reserved or meant for general category, all the FAO No. 4770 of 2009 4 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 v. State of Punjab and others,' 2009 (3) RCR (Civil). 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 judgement of the Hon'ble the Apex Court, aforesaid, held that :- “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 schedule caste can only contest the election of the office of Sarpanch, which is reserved for the category of scheduled caste.” The provisions of the Constitution of India and the provisions of Section 55 of the Punjab Sta6te Election Commission Act, 1994, reads as under:- FAO No. 4770 of 2009 5 “ 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 above provisions leave no manner of doubt that a candidate, who 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 not reserved for members of those castes or against General Category. In some what similar circumstances, this Court while relying upon the decision rendered by the Apex Court, aforementioned, in FAO No. 1044 of 2009 titled as 'Pritam Kaur V. Deputy Commissioner-cum-Presiding officer, Election Tribunal, Amritsar and others', decided on 01.09.2009, observed as under:- “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 judgement referred to above, and the same FAO No. 4770 of 2009 6 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. 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.” The legal position of the case in hand is already dealt with in the judgement rendered by this Court in the case of Pritam Kaur (supra). In view of the above, the appeal is dismissed being devoid of merits. (Nirmaljit Kaur) Judge September 24, 2009 mohan