FAO No. 4769 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 4769 of 2009 Date of decision: September 24, 2009 Attar Singh and others ........ Appellants Versus Kulwant Kaur and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Gursewak Singh Singhpuria, Advocate for the appellants Mr. Madan Sandhu, Advocate for the caveator/respondent -.- 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 27.08.2009 passed by the Tribunal-cum-Deputy Commissioner, Mansa, vide which, the election petition filed by respondent No. 1, Kulwant Kaur, under Section 76 of the Punjab State Election Commission Act, 1994, has been accepted and while the elections of the appellants, namely, Attar Singh, Satpal Singh and Buta Singh has been set aside, Harbhajan Kaur, Charanjit Kaur, Kulwant Kaur and Jind Kaur, have been declared as winner candidates in the General Category. Facts in short, are that there are total seven seats of Panches. Out FAO No. 4769 of 2009 2 of which, four were reserved for General Category, one seat was reserved for General (Lady), one seat reserved for Scheduled Caste (Male) and one seat was reserved for Scheduled Caste (Lady). There were four women candidates, who were contesting the election for the reserved seat of General (Lady). All the contesting candidates secured the following votes as mentioned against each:- “1. Attar Singh - 31 2. Satpal Singh - 41 3. Sukhwinder Singh - 02 4. Suraj Singh - -- 5. Harbhajan Kaur - 158 6. Kulwant Kaur - 184 7. Gulab Singh - 56 8. Charanjit Kaur - 207 9. Jind Kaur - 69 10. Buta Singh - 31 Instead of declaring the candidate, who got the maximum votes as elected, the respondent declared the appellants as elected in the General Category. Accordingly, the election petition filed by Kulwant Kaur, respondent No.1 was accepted and Harbhajan Kaur, Charanjit Kaur, Kulwant Kaur and Jind Kaur were declared as winner in the General Category having received the maximum number of votes. While challenging the impugned order, it was vehemently argued by the learned counsel for the appellants that that respondent No. 1, Kulwant Kaur, had filed her nomination papers for seat meant for the reserved General FAO No. 4769 of 2009 3 (Women) category, along with other women, but the Tribunal declared them as elected in the General Category, which is against the provisions as provided under Section 90 of the Punjab State Election Act and relied on the judgement rendered by this Hon'ble Court in 1998 (1) PLJ 227 (Full Bench) and Civil Writ Petition No. 11633 of 1998 titled as 'Asha Rani v. State of Punjab' (decided on 16.07.2001). Learned counsel for the appellants has been heard. The arguments raised by learned counsel for the appellants that respondent No. 1 having contested the election in the General Category being reserved for General (Women) Category, she could not be elected against the seat meant for the General Category, will have to be rejected, in view of the settled proposition of law. The Apex Court, in the judgement, rendered in the case of Bihari lal Rada v Anil Jain (Tinu) and others JT 2009(2) SC 455 is one such case. This was a case, where the election to the Municipal Council, Hisar was held on 16.04.2005. 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 to be 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 FAO No. 4769 of 2009 4 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 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 FAO No. 4769 of 2009 5 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 State Election Commission Act, 1994, reads 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 above provision leaves no 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 a post for General Category. It is apparent that there is nothing called reservation for general category. Accordingly, the Tribunal has rightly held the respondents, who are women belonging to General Category having secured maximum number of FAO No. 4769 of 2009 6 votes, as elected candidates against the posts meant for General Category. In view of the above, the appeal is dismissed being devoid of merits. (Nirmaljit Kaur) Judge September 24, 2009 mohan