IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 11484 of 2008 DATE OF DECISION : 03.10.2008 Om Parkash and others .... PETITIONERS Versus State of Punjab and another ..... RESPONDENTS C.W.P. No. 10447 of 2008 DATE OF DECISION : 03.10.2008 Prem Parkash .... PETITIONER Versus The State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.P. Jain, Senior Advocate, with Mr. Dheeraj Jain, Advocate, for the petitioners (in CWP No. 11484 of 2008) Mr. Nirbhay Garg, Advocate, for the petitioner (in CWP No. 10447 of 2008) Mr. Amol Rattan Singh, Addl. A.G., Punjab, for respondent No.1. Mr. Sanjiv Gupta, Advocate, for respondent No.2 (in CWP No. 11484 of 2008). * * * CWP No. 11484 of 2008 -2- SATISH KUMAR MITTAL , J. This order shall dispose of two petitions i.e. CWP No. 11484 of 2008 and CWP No. 10447 of 2008, as the common questions of law are involved in these petitions. In both these petitions, the petitioners have prayed for quashing Rule 5 of the Determination of the Number of Elected Members and Reservation of Offices of Presidents of Municipalities Rules, 1994 (hereinafter referred to as `the Rules of 1994') and Schedules III, IV, V & VI of these Rules, being illegal, arbitrary, unjust, discriminatory and unconstitutional, with a further direction to the State Government to draw a fresh single Roster of Reservation by arranging the Municipalities in the State of Punjab in alphabetical order on the basis of Punjabi (Gurmukhi script) and then hold the forthcoming remaining elections to the post of Presidents of the Municipalities in State of Punjab. Petitioners No.1 to 9 in CWP No. 11484 of 2008 are the elected members from different Wards of the Municipal Council, Gobindgarh and petitioner No.10 is the Member of Legislative Assembly from Amloh constituency and is Ex-officio Member of the Municipal Council, Gobindgarh. The petitioner in CWP No. 10447 of 2008 is a resident of Gobindgarh. The elections of Municipal Council, Gobindgarh were held on 30.6.2008. The office of President of the Municipal Council, Gobindgarh has been reserved for Scheduled Caste category. The election to the office of President of this Municipal Council is yet to be held. The case of the CWP No. 11484 of 2008 -3- petitioners is that respondent No.1 has illegally reserved the office of the President of Municipal Council, Gobindgarh for the Scheduled Caste category, whereas it should have been reserved for General category. In order to establish their case, the petitioners have challenged the legality and constitutionality of Rule 5 of the Rules of 1994, Schedules III, IV, V and VI of these Rules and have prayed that the State Government should draw a fresh single Roster of Reservation by arranging the Municipalities in the State of Punjab in alphabetical order on the basis of Punjabi (Gurmukhi script) and thereafter hold the forthcoming elections to the offices of Presidents of various Municipalities, including the Municipal Council, Gobindgarh. Vide Seventy-Fourth amendment of the Constitution of India, Article 243-T was incorporated in the Constitution, which provides for reservation of seats of the Municipalities for Scheduled Castes & Scheduled Tribes, Women and Backward Classes. It also provides for reservation of the offices of the Chairpersons of the Municipalities for Scheduled Castes & Scheduled Tribes, Women and Backward Classes. The relevant provisions of Article 243-T of the Constitution of India are being re-produced below for ready reference : “243-T. Reservation of seats – (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the CWP No. 11484 of 2008 -4- population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. XXX XXX XXX (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and Women in such manner as the Legislature of a State may, by law, provide. XXX XXX XXX (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of Backward Class of citizens.” With a view to give effect to the above said amendment of the Constitution, the Punjab State Legislature incorporated Section 8-A in the Punjab Municipal Act, 1911 (hereinafter referred to as `the Municipal Act'), providing reservation for the Offices of Presidents of Municipalities i.e. 5% for Scheduled Castes, 5% for Women and 2% for Backward Classes, by rotation. Section 8-A of the Municipal Act is being re-produced below for ready reference : “8-A. Reservation of offices of Presidents – Offices of Presidents of the Municipalities in the State shall be reserved by rotation in the prescribed manner in the following ratio, namely :- (a) five per cent for the Scheduled Castes; (b) five per cent for women including women belonging to the Scheduled Castes; and CWP No. 11484 of 2008 -5- (c) two per cent for the Backward Classes.” In order to give effect to the aforesaid reservation, the State of Punjab, in exercise of the powers conferred under Section 240 of the Municipal Act, framed the Rules of 1994. Rule 3 provides that the Municipal Council or the Nagar Panchayat constituted under sub-section (2) of Section 4 of the Municipal Act shall consist of such number of elected members as may be determined from time to time by the State Government by an order in writing on the basis of the population and the criteria specified in Schedule I. Rule 4 provides for reservation of seats of the members of the Municipalities for Schedule Castes, women and Backward Classes and further provides that these reserved seats shall be allotted by rotation to different constituencies, to be known as Wards, in each Municipality, as may be specified by the State Government from time to time. Rule 5 provides for reservation of offices of Presidents of the Municipalities in the State as laid down in Section 8-A of the Municipal Act. Rules 4 and 5 are being re-produced below for ready reference : “4. Reservation of Seats – (1) In every Municipality, out of the total number of elected members determined under rule 3, the State Government shall by notification, reserve such number of seats for the Scheduled Castes as may be determined by it, subject to the conditions laid down in clause (a) of sub- section (1) of section 8 of the Act. (2) One seat shall be reserved for the Backward classes as laid down in clause (b) of sub-section (1) of section 8 of the Act. (3) Not less than one third of the total number of seats reserved CWP No. 11484 of 2008 -6- under sub-rule (1), shall be reserved for women belonging to the Scheduled Castes. (4) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes) of the total number of seats, to be filled by direct election in every Municipality, shall be reserved for women and such seats may be allotted by rotation to different constituencies to be known as wards in the Municipality as specified in Schedule II : Provided that every third ward of the total number of seats allotted to a Municipality, shall be allotted to the women : Provided further that while allotting every third ward of the total number of seats to women, the wards reserved for Scheduled Castes and Backward Classes, as provided in sub- rule (1) and (2) shall not be counted. (5) The seats reserved for women belonging to Scheduled Castes as provided in sub-rule (3), shall be allotted by rotation from amongst the seats reserved for Scheduled Castes under sub-rule (1) keeping in view the provisions of sub-rule (4) : Provided that the principle of rotation, shall not be applicable where Delimitation of Wards of a Municipality has been done under the provisions of clause (ii) of rule 4 of the Delimitation of Wards of Municipality Rules, 1972.” “5. Reservation of offices of Presidents – (1) The reservation in the offices of the Presidents of the Municipalities in the State as laid down in section 8-A of the Act, shall be effected by rotation in alphabetical order as indicated in Schedules III, IV, V and VI. (2) In the Municipalities specified in Schedule [III] (sic), offices of Presidents at serial Number 1, shall be reserved for the Scheduled Castes. Offices of the Presidents at serial CWP No. 11484 of 2008 -7- Number 2 shall be reserved for women including women belonging to Scheduled Castes and offices of Presidents at serial Number 3 shall be reserved for Backward Classes. (3) In the Municipalities specified in Schedule IV, V and VI, Offices of Presidents at serial No.1 and 2 shall be reserved for the Scheduled Castes. Offices of Presidents at serial numbers 3 and 4, shall be reserved for women including women belonging to the Scheduled Castes and Offices of President at serial No.5 shall be reserved for the Backward Classes. (4) In the second election the reservation of Offices of Presidents referred to in sub-rule (2), shall be given in the Municipalities specified in Schedule III at serial numbers 4 to 6. In the Municipalities specified in Schedule IV, referred to in sub-rule (3), the reservation of Offices of Presidents shall be given at serial numbers 6 to 10. In the Municipalities specified in Schedules V and VI referred to in sub-rule (3), the reservation of Offices of Presidents at serial number 4 and 5 shall be reserved for the Scheduled Castes. The Offices of Presidents at serial number 6 and 7 shall be reserved for women including the women belonging to the Scheduled Castes and the Office of President at serial number 8 shall be reserved for the Backward Classes. (5) The process of giving reservation specified in sub-rules (2), (3) and (4) shall continue for all further elections to the last serial number of the Municipalities specified in Schedules III to VI. Thereafter, the rotation of reservation of offices of Presidents specified in sub-rules (2)m (3) and (4) shall start afresh in the same order as provided in the preceding sub-rules. Explanation :- The expression `second election' for the purpose of sub-rule (4) shall mean the general election held after the CWP No. 11484 of 2008 -8- completion of normal duration of five years of a municipality. As per Rule 5, the State Government has divided the total Municipalities of the State into the categories of Class I, Class II, Class III Municipalities and Nagar Panchayats as per Schedule III, Schedule IV, Schedule V and Schedule VI of the Rules of 1994, respectively. At present, there are 134 Municipalities (including 5 Municipal Corporations) in the State of Punjab. The State Government has divided 129 Municipalities of the State into the categories of Class I, Class II, Class III Municipalities and Nagar Panchayats for Schedule III, Schedule IV, Schedule V and Schedule VI of the Rules of 1994, respectively, the details of which are as under : Schedule -III 25 (Class-I Municipalities) Schedule – IV 40 (Class-II Municipalities) Schedule – V 32 (Class-III Municipalities) Schedule – VI 31 (Nagar Panchayats) Total 128 (One Nagar Panchayat, namely Naya Goon, is not shown in the Schedule). The 5 Municipal Corporations have been kept separate, as there are separate rules relating to reservation of the posts of Mayors of the Municipal Corporations, namely the Reservation for the Offices of Mayors of Corporations Rules, 1995. The name of Municipal Council, Gobindgarh exists at serial No.7 in Class-I Municipalities as per Schedule III. It is made CWP No. 11484 of 2008 -9- clear that as per the Rules of 1994, reservations for the offices of Presidents in the Municipalities in the State has been effected by rotation in the English alphabetical order, as indicated in Schedules III, IV, V and VI. The petitioners have impugned Rule 5 as well as Schedules III, IV, V and VI of the Rules of 1994, being illegal, arbitrary, unjust, discriminatory, inter-alia on the following grounds : (i) That Rule 5 and Schedules III, IV, V and VI of the Rules of 1994 are in total contravention of the provisions of Article 243-T of the Constitution of India and Section 8-A of the Municipal Act. Neither the provision of Article 243-T of the Constitution of India nor Section 8-A of the Municipal Act empowers the State Government to further classify the Municipalities into categories of any type i.e. Classes I, II and III Municipal Committees and Nagar Panchayats etc., for the purpose of reservation for the offices of Presidents of the Municipalities. The State Government has classified the Municipalities of Punjab into the aforesaid Classes on the basis of their income and population, as is clear from the notification dated 16.7.1999 (Annexure P-3). No provision of the Constitution permits the differentiation between the Municipalities on the basis of income and population or any other criteria for classifying the Municipalities. All the Municipalities should be treated equally at par with each other and the provision of Rule 5 read with Schedules III, IV, V and VI of the Rules of 1994, which classify all the Municipalities in 4 categories, has resulted into gross discrimination, therefore, the Scheme of Classification adopted by the CWP No. 11484 of 2008 -10- State Government is violative of the Constitution, hence deserves to be set aside. (ii) By Classifying the Municipalities into different Classes and giving every Class of Municipalities separate reservation i.e. 5% for Scheduled Castes, 5% for Women and 2% for Backward Classes, the entire reservation process has become impractical and the whole object of reservation has been defeated. (iii) Due to the different number of Municipalities falling under different categories, there would be different duration of the rotation cycles for the Municipalities falling in different categories; and there would be situations where, on the one hand, certain Municipalities will never be reserved even once, on the other hand, there would be certain other Municipalities which would have already been reserved twice. Thus, the Classification is highly discriminatory and arbitrary. (iv) That the official language of the State of Punjab is Punjabi. The nomination papers, ballot papers as well as all other documents pertaining to the elections are in Punjabi. However, names of the Municipalities in Schedules III, IV, V and VI have been arranged serial wise in alphabetical order in English script, instead of Punjabi (Gurmukhi) script. Therefore, these Schedules are illegal and against the provisions of the Municipal Act and the same deserve to be set aside. Shri S.P. Jain, Senior Advocate, assisted by Shri Dheeraj Jain, Advocate, learned counsel for the petitioners, submitted that the impugned CWP No. 11484 of 2008 -11- Rule 5 as well as Schedules III, IV, V and VI of the Rules of 1994 are totally illegal, arbitrary, discriminatory and are unworkable and the same are contrary to the spirit of the provision of Article 243-T of the Constitution of India and Section 8-A of the Municipal Act. Learned counsel submitted that the Classification of all the Municipalities in 4 different categories and thereafter applying the procedure of reservation separately for each Class totally defeats the very purpose and object of the reservation and it has resulted in gross discrimination and arbitrariness. Learned counsel, while referring to Schedule III, which contains a list of 25 Municipalities, submitted that in this category, one seat of President has been reserved for Scheduled Caste and one for woman, whereas as per 5% reservation, the number comes to 1.25. Similarly, learned counsel submitted that in Schedule V, which depicts 32 Class III Municipalities, if 5% are calculated, then it comes to 1.60, whereas as per Rule 5 of the Rules of 1994, two offices of Presidents each have been reserved for Scheduled Castes and women in the said category. In this way, more reservation has been provided to Scheduled Castes and Women in class III Municipalities. Similarly, learned counsel submitted that out of 134 Municipalities, 2% seats are to be reserved for Backward Classes and on calculation, it comes to 2.68, whereas as per Rule 5 and Schedules III, IV, V and VI of the Rules of 1994, the total number of seats being reserved for Backward Classes in every election is actually 4. Therefore, the State Government is continuously granting much more reservation to Backward Classes than CWP No. 11484 of 2008 -12- envisaged in the Constitution of India and Section 8-A of the Municipal Act. Hence, these provisions are illegal and violation of Article 243-T of the Constitution of India and Rule 8-A of the Municipal Act. Learned counsel further submitted that for giving effective implementation to the mandate of the Constitution of India and the Municipal Act and in order to avoid the confusion, the State Government is to maintain a single roster on the analogy of the roster being maintained for the purpose of reservation in the civil services, which is the only way, by which the purpose of 5% reservation for Scheduled Castes, 5% for women and 2% for Backward Classes can be fulfilled. Learned counsel further submitted that a careful perusal of sub rules (3) and (4) of Rule 5 of the Rules of 1994 further reveals that the Schedules provides for double reservation, which according to learned counsel is bad in law. Learned counsel for the petitioners further contended that as per Section 3 of the Punjab Official Languages Act, 1967 (hereinafter referred to as `the Languages Act'), the official language of the State of Punjab is Punjabi. As per the definition of Punjabi, “Punjabi” means Punjabi in Gurmukhi script. Learned counsel submitted that Section 4 of the Languages Act provides that the State Government may, from time to time, by notification, direct that Punjabi shall be used for such official purposes of the State and from such date as may be notified in the notification. While referring to Notification dated 9.2.1968, issued under Section 4 of the Languages Act, learned counsel submitted that with effect from 13.4.1968, CWP No. 11484 of 2008 -13- Punjabi (in Gurmukhi script) has to be used in administration at the State level in Punjab. Learned counsel submitted that in view of the said Notification, all the nomination papers, ballot papers as well as all other documents pertaining to the elections in Punjab are in Punjabi (Gurmukhi script), whereas the Schedules III, IV, V and VI prepared under Rule 5 of the Rules of 1994 are in English script and in those Schedules, names of the Municipalities have been arranged serial wise in alphabetical order in English script and not in Punjabi (Gurmukhi script). If names of the Municipalities are arranged in Punjabi (Gurmukhi script), then the roster point of the Municipal Council, Gobindgarh for the reservation of the office of President will change. [It is to mention here that as per Annexure R-3, in Schedule III, which has been prepared in accordance with Punjabi (Gurmukhi script), Municipal Council, Gobindgarh falls at Sr. No. 8]. In support of his contention, learned counsel for the petitioners relied upon a judgment of the Supreme court in Pothula Rama Rao v. Pendyala Venakata Krishna Rao & Ors., 2007 (4) Recent Civil Reports 5, wherein while interpreting Section 38 (1) of the Representation of the People Act, 1951, which provides for preparation of list of candidates by Returning Officer, it was held that names of the candidates are required to be arranged in three categories i.e. (i) candidates of recognized national and state political parties; (ii) candidates of registered unrecognized political parties; and (iii) independents. The arrangements of names in each category should be in alphabetical order in the official language of the State. The arranging CWP No. 11484 of 2008 -14- of the names of the candidates in each category in alphabetical order in English language were declared illegal and contrary to the provisions of the Representation of the People Act, 1951. Shri Amol Rattan Singh, Additional Advocate General, Punjab and Shri Sanjiv Gupta, Advocate, for respondent No.2, submitted that Article 243-ZG of the Constitution of India prohibits the interference of the Courts in the matter relating to the delimitation of constituencies, the allotment of seats to such constituencies. Therefore, they submitted that the present writ petitions, filed by the petitioners, are not maintainable. Learned counsel further submitted that Schedules III, IV, V and VI as well as Rule 5 of the Rules of 1994 are perfectly legal and valid. These Rules neither result in arbitrariness or discrimination nor they are unworkable. Learned counsel submitted that the State Government has made classification of the Municipalities in different categories for better and smooth functioning of the administration of the Municipalities in the State. Thus, such Classification of different Municipalities on the basis of income and population are fully justified. Classification of the Municipalities in 4 categories and thereafter giving reservation to each category as per the percentage fixed under Rule 5 of the Rules of 1994 does not result into excess or less reservation, and the calculation made by learned counsel for the petitioners in this regard is totally imaginary. Learned counsel submitted that in Schedule III, there are 25 Municipalities. In this Schedule, one seat is reserved for Scheduled Caste, one for women and one for Backward Class. CWP No. 11484 of 2008 -15- 5% of the total seats of the Municipalities in this Schedule comes to 1.25 and 2% provided for Backward Class category comes to 0.50. Therefore, in this year of elections, only one seat for Scheduled Caste and one for women has been reserved. As far as Backward Class category is concerned, no seat has been reserved in this election. Learned counsel submitted that in the earlier 2 elections, when the total number of the Municipalities in Schedule III was 27, one seat each for Scheduled Caste, women and Backward Class was reserved for the office of President. He further submitted that when the percentage remains 0.50 or less than 0.50, then no seat has been reserved. Learned counsel submitted that as per Rule 5 of the Rules of 1994, in the first elections held in the year 1998, in Schedule III, offices of President for the Municipal Councils in Schedule III at Sr. No. 1, 2 and 3 were reserved for Scheduled Caste, women and Backward Class, respectively. Similarly, in the second election held in the year 2003, as per sub rule (4) of Rule 5, the offices of President of the Municipalities in Schedule III at Sr. No. 4, 5 and 6 were reserved for Scheduled Caste, women and Backward Class, respectively. In this year, as per the said sub rule, the offices of President in Schedule III for the Municipalities at Sr. No. 7 and 8 have been reserved for Scheduled Caste and women, respectively. Since in the earlier 2 elections, 2% reservation for Backward Class was out of 27 Municipalities and in this year, this reservation has been made out of 25 Municipalities, therefore, no reservation to the Backward Class category has been given. Learned counsel submitted that similar reservation for the office of President has been made CWP No. 11484 of 2008 -16- for the Municipalities shown in Schedules IV, V and VI. Thus, the reservation of the office of President in the Municipalities in each category has been made totally in accordance with law. Therefore, no excessive or double reservation has been given to any Municipality. Once the office of President of a Municipality has been reserved in the earlier 2 elections for a particular category, this time, the office of President for the same