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ARTI DEVI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Arti Devi v. State Of U.P. And Others - WRIT - A No. 3276 of 2007 [2007] RD-AH 1582 (1 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                  Court No. 38

Civil Misc. Writ Petition No.3276 of 2007

Arti Devi.

Versus

State of U.P. and others.

Hon'ble V.K. Shukla,J.

Brief background of the case is that proceedings were undertaken for making selection and appointment as Panchayat Mitra under National Rural Employment Guarantee Scheme (Rastriya Gramin Rojgar Guarantee Yojana). On 6.8.2006 Gram Panchayat Nahwaiya, Block Hathgam, District Fatehpur invited applications for selection of Panchayat Mitra.  In pursuance of the same, five candidates applied for consideration of their candidature. Petitioner has contended that her name was finalized and she was selected as Panchayat Mitra. Petitioner has contended that thereafter, she was appointed on 1.12.2006 and thereafter on 19. 12.2006 information has been sent that petitioner has been wrongly selected and her selection be treated as cancelled. In place of petitioner, Chandra Prakash Maurya has been selected, at this juncture present writ petition has been filed.

Counter affidavit has been filed by Chandra Prakash Maurya, wherein it has been contended that incorrect merit list was prepared and District Committee on scrutinizing the record found petitioner to be not ellegible, as such appointment of petitioner was cancelled and there is no infirmity whatsoever in the aforementioned proceedings.  It has also been contended that there is no reservation meant for female category candidates. It has also been contended that merit position of contesting respondent was higher qua merit position of petitioner. It has also been sought to be contended that petitioner had never been issued appointment letter. It has also been sought to be contended that contesting respondents has not been convicted in any criminal case.

Rejoinder affidavit has been filed and therein statement  of fact mentioned in the counter affidavit has been disputed and it has been contended that Government Order dated 3.7.2006 is in consonance with the Rule 4 of  U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules 1994 and reservation for women is implicit  in it.  It has also been sought to be contended that District Committee has rightly selected and appointed  her and District Panchayat Raj Officer, Fatehpur has  arbitrarily exercised power, as such writ petition deserves to be allowed.

After pleadings mentioned above, have been exchanged, present petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Shyam Sunder  Mishra, Advocate, learned counsel for petitioner contended with vehemence  that  Gram Panchayat  Nahwaiya, Block Hathgam, District Fatehpur is reserved for general female category class wherein Smt. Anita Devi is the  Pradhan, as such in all eventuality it was the petitioner, who was entitled to be offered appointment and had been offered appointment, as such by no stretch of imagination candidature of petitioner could have been cancelled and specially when criminal case is on going against the respondent no.5, as such entire proceedings are illegal and without jurisdiction.

Sri V.S. Kushwaha, Advocate on the other hand contended that Government Order, which covers the field of selection and appointment of Panchayat Mitra is clear and categorical that there is no reservation meant for  female category candidates, and reservation is confined only to Scheduled Caste, Schedule Tribes and OBC category candidates and nothing beyond the same and contesting respondent being higher in merit, has rightly been offered appointment, as such there is no infirmity in the selection of the contesting respondents  and further contesting respondents has not at all  been convicted in any criminal case, as such  he is not at all disqualified, as such writ petition as it has been framed and drawn is liable to be dismissed.

In order to appreciate respective arguments, the relevant Government Order dated 3.7.2006 which covers the field of appointment of Panchayat Mitra, is being quoted below:-

iapk;rh jkt vuqHkkx&1      y[kum        fnukad& 03 tqykbZ] 2006

fo"k; %& jk"Vzh; xzkeh.k jkstxkj xku.Vh ;kstuk ds vUrxZr xzke iapk;r }kjk iapk;r fe= dks lafonk ij j[kk tkuk A

egksn;]

mi;ZqDr fo"k; dh vksj vkidk /;ku vkd`"V djkrs gq, voxr djkuk gS fd Hkkjr ljdkj }kjk jk"Vzh; xzkeh.k jkstxkj xkj.Vh ;kstuk ds vUrxZr p;fur tuinksa dh izR;sd xzke iapk;r esa xzke iapk;r }kjk ,d dehZ dh O;oLFkk djus ds vis{kk dh x;h gS tks bl ;kstuk ds fdz;kUo;u esa iz'kklfud lgk;d dk dk;Z djsxk A bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd jk"Vzh; xzkeh.k jkstxkj xkj.Vh ;kstuk ds vUrxZr p;fur tuinksa dh izR;sd xzke iapk;r }kjk viuh vf/kdkfjrk {ks= esa fuEufyf[kr izfrcU/kksa@'krksZ ds v/khu ,d dehZ dh lafonk ij lsok,sa yh tk,xh ftls iapk;r fe= dgk tk,xk %&

1& vgZrk;sa

1& iapk;r fe= ds fy;s U;wure {kSf{kd ;ksX;rk mRrj izns'k ek/;fed f'k{kk ifj"kn }kjk b.VjehfM,V ijh{kk mRrh.kZ ;k jkT; ljdkj }kjk blds led{k ekU;rk izkIr dksbZ vU; vgZrk gksxh A

2& iapk;r e= ds fy, U;wure vk;q p;u o"kZ 01 tqykbZ dks 18 o"kZ rFkk vf/kdre vk;q 35 o"kZ gksxh A vuqlwfpr tkfr] vuqlwfpr tutkfr] fiNMk oxZ rFkk HkwriwoZ lSfudksa ds fy, vf/kdre vk;q lhek esa 5 o"kZ dh NwV nh tk;sxh A

3& iapk;r fe= ds fy, mEehnokj mlh xzke iapk;r dk fuoklh gksxk A ;fn xzke iapk;r esa dksbZ Hkh ik= mEehnokj ugha gS rks fudVre nwljh xzke iapk;r ls mEehnokj dk p;u fd;k tk;sxk A

2& p;u dh izfdz;k

1& iapk;r fe= dh fu;qfDr ds fy;s vkosnu i= vkeaf=r djus dh lwpuk xzke iapk;r ds iz/kku }kjk tkjh dh tk;sxh rFkk ;g lwpuk xzke iapk;r dk;Zky; ds lwpuk iVy ij izdkf'kr dh tk;sxh rFkk lwpuk ds izlkj.k gsrq nqXxh fiVokdj equknh Hkh xzke iapk;r esa djk;h tk;sxh A

2& lwpuk ds izdk'ku dh frfFk ls 15 fnu rd vkosnu i= xzke iapk;r vFkok lEcfU/kr fodkl [k.M dk;Zky; vFkok ftyk iapk;rjkt vf/kdkjh dk;Zky; esa tek fd;s tk ldsaxs A ftyk iapk;rjkt vf/kdkjh dk;Zky; vFkok fodkl [k.M dk;Zky; esa ladfyr vkosnu i=] vkosnu i= izkIr djus dh vafre frfFk ls 7 fnu ds vUnj lEcfU/kr xzke iapk;r dks miyC/k djk;s tk;saxs A

3& vkosnu i= lkns dkxt ij 'kSf{kd vgZrk] vk;q ,oa tkfr laca/kh izek.k i= ds lkFk izLrqr fd;s tk;saxs A

4& leLr vkosnu i= xzke iapk;r dh iz'kklfud lfefr ds le{k fopkjkFkZ izLrqr fd;s tk;saxs A

5& xzke iapk;r dh iz'kklfud lfefr gkbZLdwy rFkk b.VjehfM,V ds izkIrkadksa ds izfr'kr ds vkSlr vadksa ds vk/kkj ij iapk;r fe= ds p;u gsrq ik=rk lwph rS;kj djsxh rFkk lwph esa lcls vf/kd vad izkIr djus okys vH;FkhZ dk uke igys izdze ij vkSj mlls de vad okys vH;fFkZ;ksa dks vojksgh dze esa lwphc) fd;k tk;sxk iz'klfud lfefr lwph esa lcls vf/kd vad izkIr djus okys vH;FkhZ dk p;u djsxh rFkk xzke iapk;r ls mldk vuqeksnu izkIr djsxh A ;fn loZkf/kd vad izkIr djus okyk mEehnokj bPNqd ugha gS] rks  ;ksX;rk dze esa vxys mEehnokj dk p;u fd;k tk;sxk A

6& p;fur vH;FkhZ dk iw.kZ fooj.k ftykf/kdkjh dh v/;{krk esa xfBr lfefr dks izsf"kr fd;k tk;sxk ftlds vU; lnL; eq[; fodkl vf/kdkjh ,oa ftyk iapk;r jkt vf/kdkjh lnL;@lfpo gksaxs A ftykf/kdkjh dh v/;{krk esa xfBr lfefr dks ek= ;g vf/kdkj gksxk fd og xzke iapk;r }kjk p;fur vH;FkhZ dh ik=rk@vgZrk dk ijh{k.k djsa rFkk ;fn vH;FkhZ fu/kZkfjr ik=rk@vgZrk dks iwjk djrk gS rks lfefr }kjk xzke iapk;r dks fu;fDr gsrq laLrqfr dj nh tk;sxh A mDr lfefr dks viuh rjQ ls fdlh vU; vH;FkhZ ds uke dh laLrqfr djus dk vf/kdkj ugha gksxk A ;fn xzke iapk;r }kjk p;fur vH;FkhZ fu/kZkfjr ;ksX;rk dks iwjk ugha djrk gS rksa lfefr }kjk vU; xzke iapk;r ls iqu% vU; vH;FkhZ dk p;u fd;k tk;sxk A fo/khf{kr izk:i esa vuqcU/k&i=] izfrfyfi layXu] ij gLrk{kj fd;s tk;saxs A gLrk{kfjr vuqcU/k i= dh izfr ftyk iapk;r jkt vf/kdkjh dks fjdkMZ gsrq Hksth tk;sxh A ,d o"kZ dh vof/k dh lafonk lekIr gksus ij u;k p;u mDr izfdz;k ds vuqlkj fd;k tk;sxk A lkFk gh ;fn ,d o"kZ rd dk;Z djus okys iapk;r dehZ dh lsok;sa larks"ktud ik;h tkrh gS rks xzke lHkk dh [kqyh cSBd esa fopkj djds ikfjr izLrko ds vk/kkj ij iqu% mldh lafonk dk o"kkZuqo"kZ uohuhdj.k vf/kdre 2 o"kZ ds fy;s fd;k tk ldsxk A

3&vkj{k.k  

vkj{k.k dh O;oLFkk bl izdkj gksxh fd la;qDr izkUr iapk;r jkt vf/kfu;e esa nh x;h O;oLFkk ds vuqlkj tks iapk;rsa ftl Js.kh ds fy, vkjf{kr gSa] mu iapk;rksa esa mlh vkjf{kr Js.kh ds iapk;r fe= dk p;u fd;k tk;sxk vFkZkr ftu iapk;rksa ds iz/kku vuqlwfpr tkfr ds gSa] muesa vuqlwfpr tkfr dk] iapk;rksa ds iz/kku vuqlwfpr tutkfr ds gSa] ogWk vuqlwfpr tutrkfr dk rFkk ftu iapk;rksa ds iz/kku fiNMh tkfr ds gSa] ogWk fiNMh tkfr dk iapk;r fe+ fu;qDr fd;k tk;sxk A efgykvksa ds fy, i`Fkd ls dksbZ vkj{k.k ugha gksxk A

4&ekuns;]  

lafonk ij lsok;sa xzke iapk;r dks miyC/k djkus okys iapk;r fe= dks xzke iapk;r }kjk mldh lsokvksa ds cnys esa :0 2000@& izfrekg dk Hkqxrku fd;k tk;sxk A mDr /kujkf'k dk Hkqxrku xzke iapk;r }kjk ;kstukUrxZr iz'kklfud O;; gsrq vuqeU; /kujkf'k ls fd;k tk ldsxk A

5&izf'k{k.k]  

jkT; ljdkj }kjk vk;ksftr fd;s tkus okys izf'k{k.k esa iapk;r fe= dks izf'k{k.k ysuk vfuok;Z gksxk A

6&iapk;r fe= ds fo:) dk;Zokgh  

iapk;r fe= ij iz'kkldh; fu;a=.k iw.kZr% lacaf/kr xzke iapk;r dk gksxk A iapk;r fe= dk dk;Z o vkpj.k larks"ktud u gksus dh n'kk esa mlds fo:) dk;Zokgh dk vf/kdkj xzke iapk;r esa fufgr gksxk A  iapk;r fe= dks dkj.k crkvks lwpuk fn;s tkus rFkk ;fn dksbZ mRrj mlds }kjk fn;k x;k gks rks ml ij fopkj djus ds mijkUr xzke iapk;r dqy lnL;ksa dh la[;k ds nksa frgkbZ cgqer ls mlds lkFk dh x;h lafonk dks ,d ekg dh uksfVl vFkok mlds Lfkku ij ,d ekg dk ekuns; nsdj fujLr dj ldsxh A bl laca/k esa xzke iapk;r dk fu.Z; vfUre gksxk vkSj bl izdkj gVk;s x;s iapk;r fe= dks iqu% bl :i esa dk;Z djus dk volj ugha fn;k tk;sxk A

7&drZO;  iapk;r fe= }kjk lfpo xzke iapk;r ds lkekU; funsZ'ku esa dk;Z fd;k tk;sxk A iapk;r fe= }kjk le; le; ij xzke iapk;r ls mls lkSais x;s vU; dk;:Z

Hkh lEikfnr fd;s tk;saxs A

8&lEcfU/k;ksa ds iapk;r fe= ds :i esa j[kus ij jksd  

dksbZ Hkh O;fDr] tks lacaf/kr xzke iapk;r ds iz/kku] mi iz/kku] lnL; vFkok lfpo] xzke iapk;r dk laca/kh gS] iapk;r fe= ds :i esa ugha j[kk tk ldsxk A lacaf/k;ksa dk rkRi;Z firk] nknk] 'olqj] fir` vFkok ekr` laca/kh iq=] ikS=] nkekn] iq= o/kw] HkkbZ] cgu] ifr] iRuh] iq=h eka ls gS A

9&izfrca/k  

iapk;r fe= ds :i esa fdlh ,sls O;fDr dh lsok;sa izkIr ugha dh tk;sxh ftls dsUnzh; ljdkj vFkok jkT; ljdkj vFkok fdlh LFkkuh; izkf/kdkjh vFkok fdlh 'kSf{kd laLFkku] tks fd jkT; ljdkj ls ekU;rk izkIr ,oa lgk;frr gS] dh lsok ls i`Fkd fd;k x;k gks vFkok tsy dk ltk vFkok tks fdlh vuSfrd dk;ksZ esa fyIr gksus ds dkj.k tsy dh ltk dkV pqdk gks A

vr% d`i;k mDr ekxZ funsZ'kksa ds vk/kkj ij rRdky dk;Zokgh djkuk lqfuf'pr djsa rFkk d`r dk;Zokgh ls 'kklu dks Hkh voxr djk;sa A

layXud& vuqcU/k i= dk izk:i

Hkonh;

vt; dqekj tks'kh

izeq[k lfpo

Perusal of aforementioned scheme would go to show that under National Rural Employment Guarantee Scheme, Gram Pradhan has been empowered to make appointment of Panchayat Mirtra on contractual basis in every Gram Panchayat, which has been identified in the District. Paragraph No.1 of the aforementioned Government Order deals with requisite qualification, which Panchayat Mitra, has to  possess. Paragraph no.2 gives full fledged procedure, which is to be followed for making selection and appointment. Paragraph 3 is relevant for the present purposes, as same deals with reservation. In the said paragraph, it has been provided for that  policy of reservation, shall be such as  is provided under U.P. Panchayat Raj Act, i.e. Panchayat, which is reserved for particular category, in the said Panchayat, Panchayat Mitra would be selected from aforementioned category i.e. in Panchayat where Pradhan is from Schedule Caste Category Schedule Caste Category candidate, where Pradhan is from Schedule Tribe Category from Schedule Tribe Category candidate and where Pradhan is from O.B.C. Category, from O.B.C. Category candidate.  It has also been provided for that for women candidates  no separate reservation would be provided for. Paragraph 4 deals with honorarium. Paragraph 5 deals with training. Paragraph 6 deals with action, in the event of work not being discharged  satisfactorily.  Paragraph 7 deals with duties to be discharged by Panchayat Mitra. Paragraph 8 deals with rider for making selection and appointment of relatives and paragraph 9 deals  with  restriction in making appointment of incumbent whose services have been dispensed with  and who were serving in any establishment or educational institution of Central Government or State Government or  who have been convicted on account of complicity in any illegal activities.

Under  U.P. Panchayat Raj Act, 1947, Chapter-3 deals  with Gram Panchayat, Section 11-A and 12  deals with Pradhan and Up-Pradhan and Gram Panchayat respectively, relevant provisions qua the same are being quoted below.

11-A. Pradhan and Up-Pradhan of Gram Panchayat-

(1)  There shall be a Pradhan and a Up-Pradhan of the Gram Panchayat, who shall respectively be the Chairperson and Vice-Chairperson thereof.

       

(2) The State Government shall, by order, reserve offices of Pradhans and the Scheduled Castes, the Scheduled Tribes and the Backward Classes:

 Provided that the number of offices of Pradhan reserved for the Scheduled Tribes  and the backward classes in the State shall bear, as nearly as may be, the same proportion to the total number of such offices as the population of the Scheduled Castes in the State or of  the Scheduled Tribes in the State or the Backward Classes in the State bears to the total population of the State.

  Provided further that the reservation for the Backward Classes shall not exceed twenty-seven per cent of the total number of offices of Pradhans:

  Provided also that if the figures of population of the Backward Classes are not available, their population may be determined by carrying out a survey in the prescribed manner.

(3) Not less than one-third of the total number of Pradhans reserved under sub-section (2) shall be reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the backward Classes.

(4) Not less than one-third of the total number of offices of Pradhans, including the number of offices of Pradhan reserved under sub-section (3), shall be reserved for women.

(5) The offices of the Pradhans reserved under this section shall be allotted by rotation to different Gram Panchayats in such order as may be prescribed.

(6) The reservation of the offices of Pradhans for the Scheduled Castes and the Schedules Tribes under this section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.

    Explanation_ It is clarified that nothing in this section shall prevent persons belonging to the Scheduled Castes, The Scheduled Tribes, the Backward Classes and the women from contesting election to unreserved seats)

       12. Gram Panchayat(1)

(a) There shall be (constituted) from every Panchayat area, a Gram Panchayat bearing the name of the Panchayat area.

       (b) Every Gram Panchayat shall be a body corporate.

      (c )  A Gram Panchayat shall consist of a Pradhan and, in the  case of a Panchayat area having a population of-

(i) (upto one thousand) nine members;

(ii) more than one thousand but not more than two thousand eleven members;

(iii) more than two thousand but not more than three thousand thirteen members, or

(iv) more than three thousand, fifteen members;

(d) For the purpose of election of members of Gram Panchayat every Panchayat area shall be divided into territorial constituencies  in such manner that the ratio between the population of each constituency and the member of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.

(e) Each territorial constituency of a Gram Panchayat shall be represented by one member in the Gram Panchayat.

(f) The territorial constituencies of a Gram Panchayat may be delimited in the prescribed manner and, if necessary, rules in this regard may be made with retrospective effect from a date not earlier than the date of commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994)

3. (a) A gram Panchayat shall, unless sooner dissolved under Clause (f) of sub-section (1) of Section 95, continue for five years from the date appointed for its first meeting and no longer.

(b) An election to constitute a Gram Panchayat shall be completed.

(i) before the expiry of its duration specified in Clause (a);

(ii) before the expiration of a period of six months from the date of its dissolution.

   Provided that where the reminder of the period of which the dissolved Gram Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this sub-section for constituting the Gram Panchayat.

(c ) A Gram Panchayat constituted upon the dissolution of a Gram Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Gram Panchayat would have continued under Clause (a) had it not been so dissolved.

(d) The constitution of a Gram Panchayat shall be notified in such manner as may be prescribed and thereupon the Gram Panchayat shall be deemed to have been duly constituted, any vacancy therein not withstanding.

      Provided that the constitution of a Gram Panchayat shall not be so notified till the Pradhan and at least two-thirds of the members of the Gram Panchayat have been elected.

(3-A) Notwithstanding anything contained in any other provisions of this Act, where due to unavoidable circumstances or in public interest, it is not practicable to hold  an election to constitute  a Gram Panchayat before the expiry of its duration, the State Government or an officer authorised by it in this behalf may, by order, appoint an Administrative Committee consisting of such number of persons qualified to be elected as members of the G5ram Panchayat, as it may consider proper or an Administrator and the members of the Administrative Committee or the Administrator shall hold office for such period not exceeding six months as may be specified in the said order and all powers, functions and duties of the Gram Panchayat, its Pradhan and Committees shall vest in and be exercised, performed and discharged by such Administrative Committee or the Administrator, as the case may be.

(4) The term of a member of Gram Panchayat shall, unless otherwise determined under the provisions of this Act, expire with the term of the Gram Panchayat.

(5) (a) In every Gram Panchayat, seats shall be reserved for the Scheduled Castes, the Scheduled Tribes and the Backward Classes and the number of seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats in the Gram Panchayat, as the population of the Scheduled Castes in the Panchayat area or of the Scheduled Tribes in the Panchayat area of  the Scheduled Tribes in the Panchayat area or of the backward Classes in the Panchayat area bears to the total population of such area and such seats may be allotted by rotation to different territorial constituencies in a Gram Panchayat in such order as may be prescribed.

   Provided that the reservation for the backward classes shall not exceed twenty-seven per cent of the total number of seats in the Gram Panchayat.

     Provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.

     (b) Not less than one-third of the seats reserved under Clause (a)  shall be reserved for the women belonging respectively to the Scheduled Castes, the Scheduled Tribes and the Backward Classes.

      (c ) Not less than one-third of the total number of seats in the Gram Panchayat, Including the number of seats reserved for women under Clause (b), shall be reserved for women and such seats may be allotted by rotation to different territorial constituencies in a Gram Panchayat in such order as may be prescribed.

(d)The reservation of seats for the Scheduled Castes and the Scheduled Tribes shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.

Explanation_. It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes and the women from contesting election to unreserved seats.

(6)The Pradhan shall be deemed a member of the Gram Panchayat.

In exercise of power vested under Section 110 of U.P. Panchayat Raj Act 1947 read with sub-section (5) of Section 11-A , and clause (a) and Clause (c) of sub-section (5) of Section 12, Governor has made Rules, known as U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994. Relevant Rules, 3,4,5, are being quoted below.

(3) Number of seats and offices to be reserved:-  In computing the number of seats or offices of Pradhans to be reserved for the Scheduled Tribes, the Scheduled Castes or the Backward Classes in accordance with the provisions of sub-section (5) of Section 12 or sub-section (2) and (4) of Section 11-A of the Act, if the remainder is not less than half of the divisor, the quotient shall be  increased by one, and if the remainder i less than half of the divisor, it shall be ignored and the number so arrived at shall be the number of seats or offices of Pradhans to be reserved for the Scheduled Tribes or the Scheduled Castes or the Backward Classes, as the case may be.

   Provided that the number of seats or offices of Pradhans reserved for the backward classes shall not exceed twenty-seven percent of the total number of seats or offices of Pradhans, as the case may be.

(4) Allotment of Seats by rotation:- (1) Subject to the provisions of other sub-rules, the seats reserved in a Gram Panchayat shall be allotted to different territorial constituencies in the Gram Panchayat in the following order:-

(a) Women belonging to the Scheduled Tribes'

(b) the Scheduled Tribes;

(c) women belonging to the Scheduled Castes;

(d) the Scheduled Castes;

(e) women belonging to the backward Classes;

(f) the backward classes; and

(g) women

(2) If on the basis of population of the Scheduled Tribes or of the Scheduled Castes or of the Backward Classes in a Panchayat area, only one seat can be reserved for the Scheduled Tribes or for the Scheduled Castes or for the Backward Classes, as the case my be, such seat shall go to a women belonging to the  Scheduled Tribes or to the Scheduled Castes or the Backward Classes, as the case may be.

(3) If on the basis of population in a Panchayat area, a seat can not be reserved for the Scheduled Tribes or for Scheduled Castes or for the Backward Classes, the order mentioned in sub-rule(1) shall be so adhered to as if there was no reference in it to the Scheduled Tribes or to the Scheduled Castes or to the Backward Classes, as the case may be.

(4) The number of seats as provided in Rule 3 shall be allotted to different Territorial Constituencies on the basis of population in the descending order, that is, from amongst the territorial constituencies in a Gram Panchayat, the territorial constituency having the largest population of the Scheduled Tribes shall be allotted to them, and the territorial constituency having the largest population of the  Scheduled Castes shall be allotted to them,k and the territorial constituency having the larges t population of the Backward Class shall be allotted to them, and in the subsequent election the allotment shall be done in the aforesaid manner so  however that as far as may be, the territorial constituency allotted in the previous election to the Scheduled Tribes shall not be allotted to the Scheduled Tribes, and the territorial constituency allotted to the Scheduled Castes shall not be allotted to the Scheduled Castes and the territorial constituency allotted to the backward Classes shall not be allotted to the Backward Classes;

(5) Not less than one-third of the territorial constituencies allotted to the Scheduled Tribes, the Scheduled Castes or the Backward Classes under Sub-rule (4) shall be allotted to the woken belonging to the Scheduled Tribes, the Scheduled Castes or the Backward Classes, as the case may be.

(6) Not less than one -third of the territorial constituencies remaining after allotment under Sub-rule(4) shall bee allotted to woken, so however that the territorial constituencies having the largest population excluding the population of the Scheduled Tribes, the Scheduled Castes and the Backward Classes shall be allotted to them and in the subsequent election the allotment shall be made in the aforesaid manner so however that the territorial constituencies allotted to woken in the previous election shall not be allotted to woken.

5. Allotment of offices by rotation:-(1) the number of offices of Pradhans as provided in Rule 3 for the scheduled Tribes, the Scheduled Castes and the Backward Classes shall be distributed Khand-wise for being allotted to the constituent Gram Panchayat, so however, that the number of office of Pradhan for the Scheduled Tribes, the Scheduled Castes, and the backward Classes for the constituent Gram Panchayats shall bear, las nearly as may be, the same proportion to the number of offices of Pradhans as provided in Ruled 3 as the population of the Scheduled Tribes in the Khand or of the Scheduled Castes in the Khand or of  the Backward Classes in the khand bears to the total population of the Scheduled Tribes in the State, or to the total population of the Scheduled Castes in the State  or to the total population of the backward Classes in the State, as the case may be.

(2) The number of offices of Pradhan for the Scheduled Tribes, the Scheduled Castes and the Backward Classes as determined  under sub-rule (1) shall be allotted to different Gram Panchayats in the Khand on the basis of the ratio of  their population in the Panchayat area to the total population of the Panchayat area, in the descending order, that is, from amongst the Gram Panchayats in the  Khand. The Gram Panchayat in whose territorial area the ratio of population of the Scheduled Tribes is highest shall be allotted to them, and the Gram Panchayat in whose territorial area the ratio of population of the Scheduled Castes is highest shall be allotted to them, and the Gram Panchayat in whose territorial area the  ratio of population of the Backward Classes is highest shall be allotted to them and in the subsequent election the allotment shall be made in the aforesaid manner, so, however, that as far as may be, the Gram Panchayat allotted in the previous election to the Scheduled Tribes, shall not be allotted to the Scheduled Tribes, and the Gram Panchayat allotted to the Scheduled Castes shall not be allotted to the Scheduled Castes and the Gram Panchayat allotted to the Backward Classes shall not be allotted to the Backward Classes;

    Provided that if the population of the Scheduled Tribes or the Scheduled Castes or Backward Classes in the Panchayat area is less than two, the office of Pradhan of the Gram Panchayat for such Panchayat area shall not be allotted to the Scheduled Tribes, the Scheduled Castes or the Backward Classes, as the case may be.

(3) Not less than one-third of the Gram Panchayats allotted to the scheduled Tribes, the Scheduled Castes or the Backward Classes under sub-rule (2) shall be allotted to the women belonging  to the Scheduled Tribes, the Scheduled Castes or the backward Classes, as the case may be.

(4) Not less than one-third of the Gram Panchayats remaining after allotment under sub-rule (2) shall be allotted to women so however that the territorial area of the Gram Panchayats allotted to them have the largest population, excluding the population of the Scheduled Tribes, the Scheduled Castes and the backward Classes, and the subsequent election of the allotment shall be done in the aforesaid manner so however that the Gram Panchayt allotted to woken in the previous election shall not be allowed to woken.

(5) The provisions of subn-rules (1),(2) and (3) of Rule 4 shall mutatis mutandis apply to the allotments of offices of Pradhan and this rule.

Perusal of provision of Section 11-A quoted above, would go to show that State Government  has been mandated to provide for  reservation for the Scheduled Castes, Scheduled Tribes and  the Backward Classes qua the offices of Pradhan. It has also been provided  for that not less than one third of the total number of Pradhans reserved under sub- section (2)  of Section 11-A shall be reserved for women belonging to the Scheduled Castes, Scheduled Tribes and  the Backward Classes. It has also been provided for that not less than one third of the total number of offices of Pradhans, including the number of offices of Pradhan reserved under sub-section (3), shall be reserved for women. In Gram Panchayats also, on the same pattern, as per Clause (a) of sub-section 5 of Section 12, reservation has to be provided for Scheduled Castes, Scheduled Tribes and the Backward Classes, and as per clause (b) not less than one-third of seats reserved under clause (a) has to be reserved for woken belonging respectively to the  Scheduled Castes, Scheduled Tribes and the Backward Classes, and further as per clause (c) not less than one-third of the total number of seats in Gram Panchayat, including the number of seats  reserved for woman under clause (b) has to be reserved for woman, and such seats may be allotted to different territorial constituencies in Gram Panchayat in such order as may be prescribed. Under U.P. Panchayat Raj (Reservation and  Allotment of Seats and Offices) Rules, 1994, which has been framed   by the Governor in exercise of powers  vested under Section 110 of the United Provinces Panchayat Raj Act, 1947 read with sub-section (5) of Section 11-A and clause (a) and Clause(c) of sub-section (5) of Section 12 of the said Act. Rule 3 deals with number of seats and offices to be reserved, Rule 4 deals with and provides the order in which seats reserved has to be allotted to different territorial constituencies, sub-rule (5) of Rule 4 and sub-rule (6) of Rule 4 provides that  not less than one third of the territorial constituencies allotted to the  Scheduled Castes, Scheduled Tribes  or  the Backward Classes under sub-rule (4) shall be allotted to the women belonging to the Scheduled Castes, Scheduled Tribes  or  the Backward Classes, as the case may be and further not less than, one -third of territorial constituencies , remaining after allotment under sub-rule (4) has to be allotted to women.

Thus under the Acts and Rules, not less than one third of the total number of the offices of the Pradhan and members of Gram Panchayat has to be mandatorily  reserved for women. Government Order dated 3.7.2006 provides that policy of reservation shall be  such as provided for under U.P. Panchayat Raj Act 1947 and Panchayat Mitra shall be appointed from the same category from which Pradhan belongs i.e. where Pradhan is from Schedule Caste category, then from Schedule caste category candidates; where Pradhan is from Schedule Tribe Category  then from Schedule Tribe category candidate, and where Pradhan is from Backward Class, then from Backward Class category candidate. For women no separate reservation has been provided for.  Paragraph 3 only talks of providing reservation to   Scheduled Castes, Scheduled Tribes  or  the Backward Classes and further reservation of providing one-third  reservation  to women has not at all  been adopted. Reservation provided for under sub-section (2) of Section 11-A has been adopted and rest of reservation has not at all  been adopted, as it has been categorically mentioned that for women category, there is no separate reservation. Paragraph 3 is clear and categorical that there  is no separate reservation for female category candidates.  In providing key to the meaning of any word or expression, the context in which it is said has significance. Colour and content emanating from context may permit sense being preferred to mere meaning depending on what is sought to be achieved and what is sought to be prevented by the scheme surrounding the expression. Reservation in paragraph 3, in context of U.P. Panchayat Raj Act 1947 is confined only to candidates from  Scheduled Castes, Scheduled Tribes  or  the Backward Classes. Once Government Order, which is the source of appointment is clear and categorical, nothing more can be read in the same. Thus in the fact of the present case on th plain reading of the language of aforementioned paragraph 3 in context of reservation under U.P. Panchayat Raj Act, 1947, it is clear that for female category candidate, no separate reservation has been provided for and the reservation is referable only qua  Scheduled Castes, Scheduled Tribes  or  the Backward Classes category candidate, as same has been categorically sought to be explained. Once there is no reservation for female category candidate, then petitioner could not  have claimed any benefit of the same, and merely because Pradhan of the village happens to be the female category candidate, it will not be presumed that post in question was reserved for female category candidate.  In terms of paragraph 3 of aforementioned Government Order, inevitable conclusion is that said post was meant  for General category candidate and nothing beyond the same, and as merit of contesting Respondent has been higher as is apparent  from details set out in paragraph 4 of the writ petition, he has been favoured.

Next it has been contended that contesting respondents is an accused in criminal case and charge sheet has been filed against him. In this connection paragraph no. 9 of aforementioned Government Order  has been perused. Paragraph 9 of Government Order clearly mentions that no services shall be taken from an incumbent whose services has been dispensed with from the institution, which was managed and founded by the Central Government or State Government or who has been  under imprisonment on account of illegal activities. None of the disqualification mentioned in para no. 9 of the aforementioned Government, are attracted in the present case qua contesting Respondent.

Consequently, in the present case ,as undisputed position is that merit of the contesting respondents is higher qua merit of  petitioner and once on this score in accordance with guidelines provided for, rightful decision has been taken, then no interference is warranted.

Consequently, writ petition is devoid of substance and same is dismissed.

Dt.1.2.2007

T.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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