IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2393 of 2009(O&M) Date of decision:01.12.2009 Sukhdev Singh and others ....Petitioners versus State of Punjab and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Sonia G. Singh, Advocate, for the petitioner. Ms. Monica Chhibbar Sharma, Deputy Advocate General, Punjab. Ms. Archana Sharma, Advocate, for respondent No.4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) C.M. No.19398 of 2009 C.M. is allowed. The notification which was directed to be produced by this Court's order dated 20.11.2009, has been produced by the applicant. Civil Writ Petition No.2393 of 2009 1. The writ petitioners are holders of the posts of Panches, having been elected in the general election to Gram Panchayat, Panchayat Samiti and Zila Parishad held pursuant to a notification issued by the State Election Commission, Punjab on 08.05.2008. All the petitioners contested for the election to Village Jodhpur, Block Shaina, Civil Writ Petition No.2393 of 2009 (O&M) - 2 - Barnala constituency. The contention of the petitioners was that, as per the Punjab Reservation for the Offices of Sarpanches of Gram Panchayats and Chairmen and Vice-Chairmen of Panchayat Samitis and Zila Parishads Rules, 1994 (hereinafter called 'the Rules') the Deputy Commissioner was competent to issue notification in the official gazette reserving the villages where the Sarpanches of Gram Panchayats shall be persons belonging to Scheduled Castes. The offices of Sarpanches were required under Rule 3 to be reserved as per the roster prepared by the Deputy Commissioner. By the notification issued on 12.03.2008, it appears that Jodhpur was shown in general category for election to the office of Sarpanch, however, there appears to have been a fresh delimitation made at the instance of the Deputy Commissioner when the Government had decided that the delimitation must be done block-wise and not district-wise as originally done and on the basis of which, the 12th March, 2008 notification was made. Consequently on 10th April, 2008, 1994 Rules were amended and clause (3) had been added to Rule 3 which read “The roster referred to in sub-rules (1) and (2) shall be prepared block-wise by the Deputy Commissioner.” 2. In view of the changed Rules, it appears that the Government of Punjab had drawn up a different delimitation scheme as regards the villages which were reserved for Sarpanches for scheduled caste categories and villages which were put under general category. By the notification dated 08.05.2008, the Government had purported to have issued a notification changing the category of Jodhpur, Shaina Block, as falling within the category of scheduled caste (female) for election to the Civil Writ Petition No.2393 of 2009 (O&M) -3 - post of Sarpanch, which was previously in the general category. 3. The grievance of the petitioners was that the election schedule had been announced as per the notification of the State Election Commission, Punjab on 13.05.2008 and the last date for filing of nominations was 16.05.2008. The scrutiny of nominations was to be made before 17.05.2008, the last date for withdrawal of candidature were on 19.05.2008, 26.05.2008 was fixed to be the date when the poll was to be conducted and the electoral process was to be completed on 30.05.2008 when the results were to be published. The petitioners’ contention was that, at the time when the nomination had been filed for election as Panches, they were under the impression that Jodhpur continued to be in the general category for the choice of Sarpanch. As per Section 45-A of the Punjab Panchayat Election Rules, 1994, the election of the Sarpanch of Gram Panchayat was to be made in a meeting where 2/3rd total number of Panches was to constitute a quorum and if there was no quorum, the meeting will be adjourned and at the adjourned meeting, no quorum is necessary. The sub-clause (8) of Section 45-A states that the election of the Sarpanch shall be made from the category for which it was reserved. If there is only one candidate available for the office of Sarpanch of the particular reserved category, that person shall be deemed to have been elected unopposed for the office of the Sarpanch. On the election of Sarpanch held at the second meeting on 04.08.2008, it appears that by virtue of the changed notification making Jodhpur village as falling within reserved constituency for the post of selection of Sarpanch, the only candidate who amongst the Panches Civil Writ Petition No.2393 of 2009 (O&M) - 4 - belonged to scheduled caste (female) declared as elected unopposed. 4. The objection by the petitioners to the ultimate election of the Sarpanch from the scheduled caste (female category) was after the election was notified on the basis of the original notification dated 12th March, 2008 when Jodhpur was only in the general category, the subsequent notification changing the delimitation as regards the category of persons who could be elected as Sarpanch was ineffective. According to the learned counsel, the subsequent delimitation through a notification dated 08.05.2008 was published in the Punjab Government only on 16.05.2008 and therefore, it must be taken as a notification that was effected subsequent to the starting to the electoral process. The prejudice, which the petitioners claimed that had been caused by this process, was that in the choice of candidates for Panches from amongst whom the Sarpanch was to have been elected was principally made in their group only from general category with no conscious thought for fielding any candidate from scheduled caste. The contention therefore was when the elections’ results were announced for the post of Panches, their group consisted of only candidates of general category and they were handicapped from placing any candidate to contest for the post of the Sarpanch. It turned out therefore that the person, who was selected was the solitary scheduled caste female candidate. 5. The contention on behalf of the State was that when Rules, 1994 were amended to provide for the delimitation for reservation to the post of Sarpanches from amongst villages was to be made on block basis, soon thereafter it became imperative to make the amended notification Civil Writ Petition No.2393 of 2009 (O&M) - 5 - and when it was made on 08.05.2008, it was also immediately sent to all the election offices and had also been published in the munadi. It must be pointed out such a contention as regards the nature of publication has not been pleaded anywhere but the attempt was to show that all the persons including the petitioners, who are contesting, knew that Jodhpur village came within the reserved category. Admittedly, the gazette notification itself was not made on the same date on 08.05.2008 and it came in the official gazette only subsequent to the notification made by the State Election Commission fixing the schedule for election. The submission on behalf of the State again was that delimitation itself had a bearing only for the choice of election of Sarpanches and none of the petitioners could ever claim to be aggrieved parties for they contested in the election and they were also declared elected. 6. Rule 3 which stood amended in 2008 provides for the notification to be made in official gazette. It should be therefore understood that it is the publication in the official gazette that makes it effective and it shall be the date as found there which shall be taken into note when any person could be imputed with the knowledge of such a notification. The delimitation which was purported to have done through notification on 08.05.2008 would therefore, in my view, be effective only from the date when it was published in the gazette on 16.05.2008. Although the notification was purported to have been done on 08.05.2008, I find myself unable to concede to a plea made on behalf of the State that the notification had been informed to all the villagers by communication to the election offices and the publication munadi. Civil Writ Petition No.2393 of 2009 (O&M) - 6 - However, in my view, it will still make no difference for the last date as prescribed in the election schedule for making of nominations were on 16.05.2008 and on that date, the gazette notification had been made. The learned counsel for the petitioner would submit that it would make a difference because the election schedule had been made on 13.05.2008 and the notification through publication must have been done prior to the said date and any notification made subsequent to the starting of the electoral process shall not be valid. Though the argument seems to be attractive, I cannot accept the same in view of a serious harm that would ensue if such a contention is accepted. It was not merely the village of Jodhpur that came to be modified in relation to the category for the choice of Sarpanch. I am informed that there were 164 villages which were affected by the delimitation as regards the reserved category for election to the posts of Sarpanches. It may be that persons from all other villages have not complained. This must be seen again in the context of how any specific prejudice could be attributed to this process. None of these petitioners belongs to the scheduled caste category. I am not informed of pendency of any other writ petition that a person belonging to a scheduled caste in Jodhpur village has complained that he would have been made his nomination if he had known that his place was reserved as a scheduled caste category for selection to the post of Sarpanch. The only prejudice that is made out is that if they had known earlier, they would have opted for choice of more candidates from SC category for the post of Panches with a prospect to put up a candidate for election as a Sarpanch later. Another view would be again possible, Civil Writ Petition No.2393 of 2009 (O&M) - 7 - if the election schedule itself had concluded by the time when the gazette notification had been made. In this case, as I have already noted the last date for making the nomination fell on 16.05.2008 and on the same date, the gazette notification had also been made. It should have been therefore possible for persons who belonged to SC category to file their nominations in Jodhpur for election to the posts of Panches, with further prospects of the election to the post of the Sarpanch. Any judicial intervention in an electoral process or a decision that will have a wide ramification relating to elections to several such posts in several other villages, with objections emanating from several other villages have to be noticed as distinct possibilities. Unless serious prejudice is shown, it shall mean needlessly upsetting a democratic process of election that has already been gone through. I am informed that the Sarpanch has taken charge of his office on 04.08.2008 and more than a year has passed. I do not mean by such an observation that the petitioner has caused any deliberate delay but for a 5 years tenure post with one year having already elapsed, the petitioners’ attempt through an intervention in the writ petition does not appear just. The challenge contained in the writ petition against the election to the post of the Sarpanch ought to therefore fail for essentially three reasons: (i) the publication in the Government gazette relating to the notification dated 08.05.2008 was made on 16.05.2008 when as per election schedule, the nominations could have been still filed on the same date; (ii) the petitioners themselves are not persons belonging to the scheduled castes category and they can be said to be aggrieved parties; and (iii) no person Civil Writ Petition No.2393 of 2009 (O&M) - 8 - belonging to village belonging to scheduled caste category had challenged the election. The writ petition is, therefore, dismissed. There shall be no direction as to costs. (K.KANNAN) JUDGE 01.12.2009 sanjeev