Judgment:
HON'BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.31639 of 2011 and Batch (W.P. Nos.31639, 16560, 16473 and 31964 of 2011 and WRIT PETITION No.11036 of 2006, PIL Nos.149 and 150 OF 2012.04-09-2012 Nimmaka Jaya Raj The Government of Andhra Pradesh, Represented by its Principal Secretary, General Administration Department, Secretariat, Hyderabad and others. Counsel for the petitioner : Sri.B. Sesibushan Rao Counsel for the respondent No.1:G.P. for General Administration Department Counsel for the respondent Nos 2 and 6: G.P. for Panchayat Raj Counsel for the respondent Nos.3& 4: B. Sudhakar Reddy Counsel for respondent No.5: V.V. Prabhakar Rao : CITATIONS:
1. (2006) 8 SCC 35.2 (2010) 7 SCC 20.3 1987 (1) ALT 66.(FB) 4 AIR 197.SC 49.5 (2001) 1 ALT 13.(D.B) COMMON ORDER: (per the Hon'ble the Acting Chief Justice) In these petitions, the challenge is to certain provisions of the Andhra Pradesh Panchayat Raj Act, 1994, relating to appointment of special officers to Panchayats and reservation to the offices of Mandal Praja Parishads and Zilla Praja Parishads. However, in PIL Nos.149 and 150 of 2012, the petitioner has challenged the definition of "Backward Classes" under the Andhra Pradesh Municipalities Act, 1965 and the Andhra Pradesh Municipal Corporations Act, 1994. Hence, all these petitions are clubbed together and are being disposed of by this common order. Writ Petition No.31639 o”
2. In this writ petition filed as public interest litigation, the petitioner prays for a writ of mandamus declaring sub-sections (3) and (4) of Section 143 of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') as illegal and unconstitutional for being in violation of the Constitution (Seventy-third Amendment) Act, 1992 with particular reference to Articles 243E and 243K of the Constitution of India, and for a direction to the respondents to conduct elections to the Gram Panchayats.
3. It is the case of the petitioner that according to Article 243E of the Constitution of India, elections have to be held for Panchayats and Municipalities within six months of dissolution and they cannot remain superseded for long.
4. The Government of Andhra Pradesh, by an amendment, inserted sub-sections (3) and (4) to Section 143 of the Act. Sub-sections (3) and (4) of Section 143 reads as follows: "(3) The Government, or as the case may be, an officer authorized by the Government, shall appoint a special officer or a person-in-charge or a committee of persons-in-charge to a gram panchayat, if for any reason, the process of election to such gram panchayat is not completed. (4) The special officer or person-in-charge or the Committee of persons- in-charge, appointed under sub-section (3) shall exercise the powers and perform the functions of the Gram Panchayat and its Sarpanch and executive authority until the members and Sarpanch elected thereof assume office." The above provisions provide for appointment of a Special Officer or person-in-charge or a committee of persons-in-charge to a gram panchayat, if for any reason, the process of election is not completed. The Special Officer or person-in-charge shall perform the functions of the Gram Panchayat and its Sarpanch and executive authority until the members and Sarpanch elected assume office.
5. The petitioner avers that elections to the Panchayats, Mandal Parishal Territorial Constituencies and Zilla Parishad Territorial Constituencies were last held in 2006 and their term expired in August, 2011 by efflux of time, and according to Article 243E, an election to constitute a panchayat shall be completed before expiry of its duration.
6. The Government of Andhra Pradesh amended the Andhra Pradesh Panchayat Raj (Reservation of Seats and Offices of Gram Panchayats, Mandal Paraishads and Zilla Parishads) Rules, 2006 (for short 'the Reservation Rules') and enhanced the reservation of seats in Panchayats for Scheduled Castes, Scheduled Tribes and Backward Classes and the same is under challenge before this Court.
7. By another order i.e. G.O.Ms.No.269, Panchayat Raj & Rural Development (Elecs. & Rules) Department, dated 22.8.2011, the Government authorized the District Collectors to appoint Special Officers for Gram Panchayats till the date of assumption of office of the members and Sarpanchas of Gram Panchayats.
8. The petitioner has relied upon a decision of the Supreme Court in Kishansing Tomar v. Municipal Corpn., Ahmedabad1 and submitted that the power of the Government under Section 143(3) and (4) of the Act to appoint Special Officers is unconstitutional as it violates Article 243E of the Constitution of India. It is further submitted that the Government has no legal right to continue the Special Officers without conducting elections to the panchayats even after expiry of the term.
9. Respondent No.2 has filed a counter affidavit denying the allegations made by the petitioner. It is stated that discretion is vested in the State Government for providing reservation to Backward Classes in every panchayat under Article 243D(6) of the Constitution. Under Article 243D(1) and (2), it is mandatory to provide same percentage of reservation for Scheduled Castes and Scheduled Tribes as far as possible in proportion to their population. In accordance with the provisions of Article 243D(6) and in exercise of powers conferred by sub-section (1) of Section 268 of the Act, the Government have adopted vertical reservation policy vide G.O.Ms.No.220, Panchayat Raj & Rural Development Department, dated 25.5.2006, which had been implemented during the ordinary elections conducted in 2006 to the panchayat institutions. As per the 2001 census, Scheduled Castes were provided reservation at 18.30%; Scheduled Tribes at 8.25%, and Backward Classes at 34.00%, taking into account the State percentage of Backward Classes at 39.39%, thus making the total reservation at 60.55%.
10. It is further submitted that 2011 census has not yet been published. As such, orders had been issued by the Government in G.O.Ms.No.128, dated 8.6.2011 amending G.O.Ms.No.220, dated 25.5.2006 and providing reservation to Scheduled Castes, Scheduled Tribes and Backward Classes based on 2001 census. However, G.O.Ms.No.128, dated 8.6.2011 had been challenged before this Court by filing Writ Petition Nos.16473 and 16560 of 2011, and this Court granted interim stay of operation of the said G.O. and also the elections to the local bodies. As it is not possible to complete the process of elections before the expiry of term of the elected members in view of the pendency of the writ petitions, the Government had promulgated Ordinance No.5 of 2011 enabling appointment of Special Officers for Mandal Praja Parishads and Zilla Praja Parishads. Accordingly, orders have been issued for appointment of Special Officers for a period of six months and they had already taken charge.
11. It is submitted that Ordinance No.5 of 2011 was promulgated only to fill the vacuum in extraneous circumstances as the Act did not provide for the said contingency. All necessary steps had been taken for conducting elections to the Panchayat Raj institutions within time, but in view of the interim stay granted by this Court, further steps could not be taken for holding elections.
12. It is further contended that the petitioner has no locus standi to file the writ petition. Writ Petition No.16560 o”
13. This writ petition has been filed seeking a writ of mandamus declaring Sections 9, 15, 152(1A), 153(2A), 180(1A) and 181(2)(b) of the Act and the Reservation Rules issued vide G.O.Ms.No.220, Panchayat Raj and Rural Development (Elec. & Rules) Department, dated 25.5.2006 and G.O.Ms.No.128, Panchayat Raj and Rural Development (Elec. & Rules) Department, dated 8.6.2011 as ultra vires and violative of Article 14 of the Constitution of India and contrary to the judgment of the Supreme Court in K. Krishna Murthy v. Union of India2 and to direct the first respondent to fix reservations by fixing upper ceiling limit of 50% for the elections to the local bodies.
14. The petitioner is a native of Ootlapally Village, Miryalaguda Mandal, Nalgonda District and he was elected as Mandal Parishad Territorial Constituency Member in 2006. He intends to contest for the post of Zilla Parishad Territorial Constituency Member in the ensuing elections but the same is reserved for Backward Class. In the elections conducted in 2006 for the local bodies, the Government provided 60.55% reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes and thus violated the statutory and constitutional provisions. According to the petitioner, Sections 9, 15, 152(1A), 153(2A), 180(1A) and 181 (2B) are contrary to the judgment of the Supreme Court in Krishna Murthy. The petitioner contends that excessive reservations are only a colourable exercise of power and the Government is indulging in vote bank politics by preferring one group over another. Since the reservation of 60.5% is being followed from 1994, there is adequate representation from the Scheduled Castes, Scheduled Tribes and Backward Classes and, therefore, the reservation should not exceed 50%.
15. The petitioner submits that conduct of elections to the local bodies in accordance with the Reservation Rules would defeat the purpose of Articles 14, 15 and 16 of the Constitution, and time has come to consider whether reservations of any kind to political offices is necessary. The State Government has not conducted any survey nor has any empirical data for fixation of political reservation at 60.5%. In the absence of any empirical data, fixation of 34% reservation for Backward Classes is arbitrary and illegal.
16. This Court by order dated 16.6.2011, while admitting the writ petition, granted interim stay of G.O.Ms.No.128, dated 8.6.2011 and all consequential proceedings thereof including elections.
17. Andhra Pradesh Most Backward Classes Committee and one U. Sambasiva Rao, claiming to be a social activist, got impleaded as respondent Nos.5 and 6 by order dated 31.10.2011 and filed WVMP.No.4310 of 2011 seeking vacation of the above interim order dated 16.6.2011. They have also filed a counter affidavit. It is stated in the counter affidavit that reservation to Backward Classes is in accordance with the provisions of the Constitution and it cannot be termed as illegal.
18. B.C. United Front Party, claiming to be a registered political party, which got impleaded as respondent No.7, also filed a counter affidavit. It is stated that empirical data for backwardness is available and the percentage is 43.16% and still the reservation is limited to 34% proportionately. The reservation in the Panchayats at various levels is made in pursuance of the constitutional provisions and as long as there is no challenge to the constitutional provisions with regard to reservation in favour of Backward Classes, the only challenge to the provisions of the Act does not survive.
19. Dalit Samakhya, Ranga Reddy District, was also impleaded as respondent No.8 to the writ petition. In the affidavit filed in support of the implead petition, it is stated that the respondent State has not conducted any survey nor has got empirical data for fixation of political reservation at 60.5% including 34% for Backward Classes and the same cannot be sustained in the light of the judgment of the Supreme Court in Krishna Murthy.
20. The State Election Commission, respondent No.4, has also filed a counter affidavit inter alia stating that the policy of reservation is within the domain of the Government and the Election Commission is under a constitutional obligation to conduct elections before expiry of duration of the Panchayats. Writ Petition No.16473 o”
21. The contentions in this case are similar to the contentions in Writ Petition No.16560 of 2011.
22. A common counter affidavit is filed by respondent No.1 in Writ Petition Nos.16473 and 16560 of 2011. It is stated that the census population of 2011 is not yet published and the reservation for Backward Classes is limited to 34% as per the Act. The Government has decided to adopt the vertical reservation for the 4th ordinary elections to the Panchayat Raj bodies at 60.55% and accordingly orders have been issued in G.O.Ms.No.128, dated 8.6.2011. In tune with the provisions of Article 243D(6) of the Constitution, in exercise of the powers conferred under Section 268(1) read with Sections 9, 15, 152, 153, 180 and 181 of the Act and Article 243D of the Constitution, the Government adopted the vertical reservation policy during the elections conducted in 2006 with 2001 census. As the census population of 2011 is not yet published, and as the Act limits reservation for Backward Classes at 34%, the impugned G.O. has been issued and the said G.O. has been stayed by this Court, and hence it would not be possible to conduct elections before the expiry of the term of the elected members. Therefore, the Government has promulgated Ordinance No.5/2011 enabling appointment of Special Officers to Mandal Praja Parishads and Zilla Praja Parishads. The Special Officers have been appointed and they have taken charge on 22.7.2011 and 23.7.2011. There is no illegality or irregularity in issuing G.O.Ms.No.128, dated 8.6.2011 and the writ petitions are misconceived; hence, respondent No.1 prayed for dismissal of the writ petitions.
23. In this writ petition also, Andhra Pradesh Most Backward Classes Committee and one U. Sambasiva Rao, claiming to be a social activist, and B.C. United Front Party, got impleaded as respondent Nos.3 to 5 by order dated 31.10.2011. They have filed affidavits on the same lines as in Writ Petition No.16560 of 2011. Writ Petition No.31964 o”
24. The petitioner herein is a practicing lawyer. He has filed this writ petition by way of public interest litigation challenging Ordinance No.5/2011 dated 21.7.2011 and the consequential G.O.Ms.Nos.187 and 189, dated 21.7.2011 and G.O.Ms.No.453, dated 28.9.2011.
25. This Court, by order dated 16.6.2011 in Writ Petition No.16560 of 2011, ordered stay of G.O.Ms.No.128, dated 8.6.2011. Therefore, on 21.7.2011, the Government promulgated Ordinance No.5/2011 making transitional arrangements for the administration of the local bodies till ordinary elections are held. G.O.Ms.Nos.187 and 189 have been issued for appointment of Special Officers to Mandal Praja Parishads and Zilla Praja Parishads and G.O.Ms.No.453, dated 28.9.2011 has been issued for extension of the term of Special Officers to the Municipal Councils and Municipal Corporations.
26. The petitioner states that under Article 243E of the Constitution, holding of elections to Panchayat Raj bodies before the expiry of their term is mandatory; however, if there are genuine supervening difficulties like floods, cyclones, earthquakes and such other unforeseen natural calamities which prevent the State from holding elections, the elections may be postponed. Since the term of the Panchayat Raj bodies in the State expired, the State Election Commission is obliged to hold elections to these bodies. Article 243E of the Constitution is mandatory and neither the State Government nor the State Election Commission has power to tinker with the provisions of Article 243E.
27. The petitioner further states that funds under Backward Region Grants, a Central Government sponsored scheme, have not been granted since the local bodies are not functioning. These funds are granted to meet the critical gaps in the infrastructure like construction of buildings for Gram Panchayats, Anganwadis, health sub-centres, roads, drainages, drinking water etc.
28. Respondent No.2 has filed a counter affidavit on the same lines as the counter affidavit filed in Writ Petition No.31639 of 2011. As such, it is not necessary to repeat the same. Writ Petition No.11036 o”
29. The petitioners have filed this writ petition with the following prayer: "...............it is prayed that this Hon'ble Court may be pleased to issue an appropriate writ or order or direction, one in the nature of writ of mandamus, i) declaring Sections 15(2), 153(2A), 181 (2)(b), 9(1-A), 152(1-A), 180(1-A) of the A.P. Panchayat Raj Act, 1994 in fixing 34% reservation to BCs for the offices of Panchayats at each level as arbitrary, illegal, void and violative of Art.14 and 15(4) of the Constitution of India; ii) declaring the action of respondents in relying on unpublished population statistics for the purpose of reservation to BCs as contemplated u/s 202-A of Act 13/1994 as arbitrary and illegal; iii) a direction may be issued to the respondents not to allow the creamy layer in the BCs as notified in G.O.Ms.No.3, dated 4.4.2006 to contest in the elections to the offices of panchayat at each level under BC category.
30. The petitioner states that provision of 34% reservation to Backward Classes in the elections to be held for the local bodies is illegal, as the total reservations will be 60.55% exceeding the permissible limit of 50%. Apart from the above reservation, 33.33% of offices of Panchayats at each level are reserved for women. Thus, after excluding the offices reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and Women, only 26% is left for unreserved candidates, and all the categories i.e. SC, ST, BC, Women can contest against the unreserved seats.
31. The petitioners have relied on the judgments of the Supreme Court and this Court and submitted that reservation cannot exceed 50%. It is stated that under Section 202-A of the Act, it is provided that population figures of Backward Classes gathered in the socio-economic survey conducted by the A.P. Backward Classes Co-operative Finance Corporation Ltd., Hyderabad, shall be taken as the basis for elections to the Panchayats at each level. However, respondent No.1 has not conducted any detailed survey or made any enumeration of the population of Backward Classes in the State and respondent No.1 is relying upon the population figures of socio-economic survey which was conducted for the purpose of the said Corporation and not for the purpose of Article 15(4) of the Constitution. In the absence of population figures of Backward Classes, the authorities are arbitrarily fixing the reservation in various districts. The State has to prepare the population of Backward Classes on the basis of 2001 census after excluding the creamy layer, but such exercise has not been made by the respondents.
32. A counter affidavit has been filed on behalf of respondent Nos.1 and 3 denying the allegations made in the writ affidavit. PIL Nos.149 and 150 o”
33. In these petitions, the petitioner is aggrieved by the inaction of the respondents in identifying and deleting the politically advanced Backward Classes from the list of Backward Classes adopted for the ensuing Municipal elections. The petitioner also challenged the constitutional validity of Section 2(2-a) of the Andhra Pradesh Municipalities Act, 1965 and explanation (ii) of Section 6 of the Andhra Pradesh Municipal Corporations Act, 1994, which define "Backward Classes".
34. The petitioner states that the list of socially and economically backward classes identified for the purpose of Articles 15(4) and 16(4) of the Constitution of India has been used as the basis for political reservations under Article 243T of the Constitution in the elections held for different municipalities and municipal corporations in the State. According to the petitioner, this definition of "Backward Classes" is illegal and contrary to the judgment of the Supreme Court in Krishna Murthy. In the said judgment, the Supreme Court has specifically held that identification of Backward Classes under Articles 243D and 243T of the Constitution should be distinct from the identification of socially and educationally backward classes for the purpose of Article 15(4) and Backward Classes for the purpose of Article 16(4). According to the petitioner, as per the above judgment, politically advanced backward communities should not be given any reservation in the elections. Though the respondents had knowledge of the judgment, they have not conducted any exercise for identification and elimination of the politically advanced backward classes from the Backward Classes list.
35. The petitioner submits that according to the study conducted by him, the castes of Kalinga - BC(A), Srisaina - BC(B), Polanati Velama - BC (D), Turupu Kapu - BC (D), Koppula Velama - BC(D) and Gavara - BC (D) of the Srikakulam, Vizianagaram and Visakhapatnam Districts are politically advanced backward castes, and these castes are depriving the more politically backward classes of the benefits of reservation under Articles 243D and 243T of the Constitution. It is submitted that in these three districts, about 80% of the Chairpersons and 60% of the Ward Members of the Municipalities belong to these politically advanced backward castes and they cannot be considered as politically backward castes requiring reservation. The respondents have to forthwith initiate steps to delete these and similar other politically advanced backward castes from the list of backward castes adopted for the purpose of elections to the municipalities and municipal corporations. The petitioner submits that no action has been taken on his representation dated 23.1.2002. Therefore, he filed these petitions.
36. Respondent Nos.1 and 2 have filed a counter affidavit in PIL No.150 of 2012. It is stated that as per the data of the social-economic survey conducted by the Andhra Pradesh Backward Classes Finance Corporation, the percentage of Backward Classes in the State is 39% as projected by the Directorate of Economics and Statistics as on 1.3.2011. It is further stated that certain castes may be politically advanced in a particular region and the very same caste may not be politically advanced in other regions. Therefore, it will not be correct to declare a particular caste as politically advanced caste for denying reservation in political posts under the Act. The petitions are misconceived and hence prayed for dismissal.
37. Learned Senior Counsel, Sri K. Ramakrishna Reddy, appearing for the petitioners in Writ Petition No.11036 of 2006 submitted that reservation of 34% is provided by the State in favour of Backward Classes on the basis of unpublished data of population figures collected in the socio economic survey by the Andhra Pradesh Backward Classes Co-op. Finance Corporation Ltd. The socio economic survey was conducted for the purpose of the said Corporation and not for the purpose of Article 15(4). The said survey has no statutory basis and authority of law. However, the Government conducted elections in 2006 on the basis of the said survey. In the absence of population figures of Backward Classes, the authorities are arbitrarily fixing the reservation in various districts. He submitted that the population figures of Backward Classes collected by the said Corporation shall not be used unless they are published and copies of the same are made available for scrutiny and objections heard and final figures are published. The State has to prepare the population figures of Backward Classes on the basis of the latest census after excluding creamy layer and fix the reservation. He placed reliance on the judgment of a Full Bench of this Court in Satyanarayana Reddy v. State of A.P.3 38. The learned Senior Counsel submitted that Clause (6) of Article 243D and Article 15(4) of the Constitution enable the State to provide for reservation to Backward Classes if they are not adequately represented and it is only a discretionary power. Under these provisions, it is not mandatory to provide reservation to Backward Classes as in the case of Scheduled Castes and Scheduled Tribes. The total reservation including Scheduled Castes, Scheduled Tribes and Backward Classes comes to 60.55% and this exceeded the permissible limit of 50%, therefore, unconstitutional and in violation of the provisions of Articles 14 and 15(4) of the Constitution.
39. Learned Senior Counsel, Sri L. Ravichander appearing for the petitioners in Writ Petition Nos.16473 and 16560of 2011 submitted that reservation to the extent of 60.55% for elections to the local bodies is violative of the statutory and constitutional provisions. The learned counsel submitted that providing excessive reservation is only a colourable exercise of power and since the reservation of 60.5% is being followed since 1994, there is ample and adequate representation from the Scheduled Castes, Scheduled Tribes and Backward Classes in the political system and there is no basis for conferring reservation. In the absence of any cogent study, there is a presumption in favour of their progress. Placing reliance on the judgment of the Supreme Court in Krishna Murthy, it is submitted that the State Government should be directed to fix the reservation to the local bodies to the extent of 50%. The learned counsel submitted that the respondent State has not conducted any survey nor has any empirical data for fixation of reservation at 60.5%. The State has also not collected any data for fixing the reservation at 34% for Backward Classes. In the absence of any empirical data, fixation of reservation for Backward Classes at 34% is arbitrary, illegal and violative of Article 14 of the Constitution of India and the judgment in Krishna Murthy. In the said judgment, the Supreme Court categorically stated that any reservation over and above 50% should be brought down and a cap should be fixed at 50%, and directed the State Government to make appropriate legislation to fix the reservation at 50%. In those circumstances, Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1A) and 181(2B) of the Act and the Reservation Rules issued in G.O.Ms.No.128, dated 8.6.2001 are arbitrary, illegal and violative of Article 14 of the Constitution of India.
40. Sri B. Sesi Bhushan Rao, learned counsel appearing for the petitioner in Writ Petition No.31639 of 2011 submitted that the Panchayats and Municipalities cannot remain superceded for long and fresh elections have to be held within six months of their dissolution. They have a fixed term of five years. The Government brought an amendment to the Act in 1996 making a specific provision for appointment of Special Officers if for any reason the process of election is not completed. He submitted that the term of the members and Sarpanchas of Gram Panchayats and members of Mandal Parishad Territorial Constituencies and Chairmen of Zilla Parishads expired in August, 2011, and an election to constitute the same shall be completed before its expiry of duration under Article 243E of the Constitution. However, the Government issued G.O.Ms.No269, Panchayat Raj and Rural Development (Elec. & Rules) Department, dated 22.8.2011 authorising the respective District Collectors to appoint Special Officers to the Gram Panchayats till the date of assumption of office of the elected members and Sarpanchas of Gram Panchayats. He submitted that according to Article 243E and Article 243K of the Constitution, it is mandatory upon the State Government and the State Election Commission to conduct elections for Panchayats. The power of the Government under Section 143(3) and (4) of the Act to appoint Special Officers is unconstitutional as it violates Article 243E of the Constitution. The Government has no legal right to continue the Panchayats by appointing Special Officers without conducting elections. He has, therefore, prayed for declaring Section 143(3) and (4) of the Act as illegal and unconstitutional.
41. Sri R. Chandrasekhar Reddy, petitioner in Writ Petition No.31964 of 2011, who has appeared as party-in-person, submitted that the Government issued G.O.Ms.No.128, dated 8.6.2011 only to postpone the elections and the said G.O. is against the judgment of the Supreme Court in Krishna Murthy. After this Court suspended the operation of the said G.O. in Writ Petition No.16560 of 2011, the Government promulgated Ordinance No.5 of 2011 on 21.7.2011 making transitional arrangements for administration of the local bodies till the ordinary elections are held. He placed reliance on the judgment of the Supreme Court in Kishansing Tomar and submitted that the elections should be completed before the expiration of the five years term of the local bodies unless there are genuine supervening difficulties such as floods, cyclones, unforeseen natural calamities etc. He submitted that the provisions of Article 243E of the Constitution are mandatory and neither the State Government nor the State Election Commission has power to tinker with the same by legislative or executive measure and it would be a fraud on the Constitution. By appointing Special Officers to the local bodies, the Government postponed the elections for an indefinite period and the same is against the constitutional scheme. He submitted that the object of introducing Part IXA in the Constitution is defeated as elections are not being held and the nominated bodies are continuing for long periods. Therefore, Ordinance No.5 of 2011 and the consequential Government Orders are ultra vires the Constitution.
42. Learned counsel appearing for the petitioners in PIL Nos.149 and 150 of 2012 has not made any specific submissions. The challenge in these petitions is to the definition of "backward classes" provided in Andhra Pradesh Municipalities Act, 1965 and Andhra Pradesh Municipal Corporations Act, 1994. According to the petitioners, in spite of the judgment of the Supreme Court in Krishna Murthy, the respondents have not conducted any exercise for identification and elimination of politically advanced backward classes from the Backward Classes list. The petitioners state that about 80% of the Chairpersons and 60% of the Ward Members belong to Kalinga, Srisaina, P. Velama, T. Kapu, K. Velama and Gavara communities and the respondents have to initiate steps forthwith to delete these six castes from the list.
43. Sri B. Tarakam, learned Senior Counsel appearing for B.C. United Front Party, submitted that the writ petition aims at interfering with the political process in the State. The Constitution provides equal opportunities to all sections of people who are deprived of their legitimate participation and reservation is one such mechanism. After the 73rd and 74th constitutional amendments, the Government of Andhra Pradesh brought in the Andhra Pradesh Panchayat Raj Act, 1994 in accord with the objects of these provisions and reserved certain seats to backward classes to an extent of 34%, and this is being continued from 1994 onwards. In the last election held in 2006 also, 34% reservation was provided to backward classes. Even though the percentage of backward classes has increased and certain new communities including a section of Muslims were added to the list of backward classes, but the reservation has not increased proportionately. He submitted that reservation in the fields of education and employment is different from reservation to the local bodies. Therefore, the maximum limit fixed for the purpose of Articles 15(4) and 16(4) cannot be made applicable to the reservation under Articles 243 and 330 of the Constitution because the reservation has to be provided on the basis of proportionate population. He submitted that in the States of Tamil Nadu and Karnataka, 68% and 67% reservation is provided to backward classes basing on their proportionate representation in the population. Referring to the judgment of the Supreme Court in Krishna Murthy, the learned Senior Counsel submitted that since there is no empirical data available in the State of Karnataka relating to backwardness, the Supreme Court adopted the upper limit of 50% and directed the States to enumerate the backwardness so as to provide proportionate reservation. He submitted that the said judgment was dealing with a situation where there was no empirical data and, therefore, it has no application to the facts of the case. The learned Senior Counsel submitted that empirical data for the backwardness is available in the State of Andhra Pradesh and the percentage of backwardness is 43.16%, but still the reservation is limited to 34%. As regards challenge to certain provisions of the Act, the learned Senior Counsel submitted that these provisions are in consonance with Article 243D(6) and there is no challenge to this constitutional provision.
44. Sri A. Ramalingeswara Rao, learned counsel appearing for the impleaded respondent Nos.5 and 6, submitted that the State provided reservation of 34% in favour of backward classes in accordance with the provisions of Article 243D(6) and the same cannot be termed as illegal. He submitted that the judgment of the Supreme Court in Krishna Murthy cannot be read as a statute. He submitted that 34% reservation in favour of backward classes has been in vogue since the enactment of the Panchayat Raj Act and this was also upheld by the Court. The petitioner is trying to rake up old issues already decided by the Court in order to postpone the elections.
45. On behalf of the State, the learned Advocate General submitted that the percentage of backward classes in the State is 39.39% according to the data collected in the socio-economic survey conducted by the Andhra Pradesh Backward Classes Finance Corporation Ltd. The Government decided to adopt the vertical reservation policy for the elections to be conducted to the Panchayat Raj bodies at 60.55% which had been done during the third ordinary elections held in the year 2006. Accordingly, orders have been issued in G.O.Ms.No.128, dated 8.6.2001 in exercise of the power conferred under Section 268(1) read with Sections 9, 15, 152, 153, 180 and 181 of the Act and Article 243D(6) of the Constitution. He submitted that the reservation of 34% in favour of backward classes is in tune with the provisions of Article 243D(6) of the Constitution. As the 2011 Census has not been published and as the Act limits the reservation for backward classes at 34%, the impugned G.O. has been issued. He submitted that since the operation of the impugned G.O. has been stayed by this Court, it would not be possible to conduct elections before the expiry of the term of the elected members, therefore, the Government promulgated Ordinance No.5 of 2011 enabling appointment of Special Officers to run the administration of the local bodies.
46. The learned Advocate General further submitted that reservation under Article 243D(6) is altogher different from that of reservation under Articles 15(4) and 16(4) of the Constitution. The limit of 50% prescribed by the apex Court is not applicable to the reservation under Article 243D as there is a fundamental and basic difference in the very nature of reservations. Therefore, it is not open for the petitioners to contend that the ceiling prescribed by the apex Court is equally applicable to the reservations under Article 243D(6). Placing reiance on the judgment of the Supreme Court in State of Kerala v. N.M. Thomas4, the learned Advocate General submitted that suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down so as to be adhered to in all cases. He submitted that the reservation of 34% in favour of backward classes is being followed since 1994 in all the general elections and when the same is adopted for a considerable time, it can be termed good in law as well particularly when it is not violative of the Constitution.
47. Consequent upon the 73rd and 74th Constitutional amendments, the State of Andhra Pradesh enacted the Andhra Pradesh Panchayat Raj Act, 1994 which provides, inter alia, territorial constituencies for each tier and election of members thereto directly from territorial constituencies, reservation of seats and offices for Scheduled Castes, Scheduled Tribes, Backward Classes and Women, duration of Panchayats etc. Under Article 243K of the Constitution, the State Election Commission shall conduct elections to the Panchayats.
48. Clause (6) of Article 243D of the Constitution is relevant for the purpose of deciding whether Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1A) and 181(2b) of the Act are ultra vires the Constitution and the same reads thus: "Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens." 49. The above clause authorizes the Legislature of a State for making a provision for reservation of seats in any Panahayat or offices of Chairpersons in the Panahayats at any level in favor of backward class of citizens. In accord with the same, the State inserted Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1A) and 181(2b) in the Act providing reservation of seats in favour of backward classes in the Gram Panchayats, Mandal Parishads and Zilla Parishads. Thus, these provisions are not opposed to the constitutional scheme envisaged in Part IX with particular reference to Article 243D(6) of the Constitution (See Prakasam District Sarpanchas Association v. Govt. of A.P.5).
50. As to the quantum of reservation, as can be seen from Article 243D(6) of the Constitution, there is no requirement to reserve a particular percentage of seats in favour of backward classes unlike Scheduled Castes and Scheduled Tribes for whom the Constitution mandated that reservation as nearly as may be in proportion to their population be provided.
51. It is the case of the petitioners that reservation of 34% provided in favour of backward classes is excessive and it is only a colourable exercise of power. On the other hand, according to the unofficial respondents, reservation should be provided on the basis of proportionate population of backward classes. This argument appears to be in tune with the judgment in Krishna Murthy. In the said judgment, it was observed in paragraph 64: "In the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self-government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical reservations in favour of SCs/STs/OBCs should not be breached....................." 52. The Supreme Court, while fixing upper ceiling of 50% reservation, observed that the rule of thumb is that of proportionate reservation in the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self-government. In the said judgment, while observing that reservations in excess of 50% do exist in some exceptional cases, the Supreme Court held that such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. The following passage from the judgment is relevant to be noticed: "67. In the recent decision reported as Union of India v. Rakesh Kumar [(2010) 4 SCC 50.this Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in panchayats located in the Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs." In view of the above, we cannot accept the contention urged by Sri B. Tarakam, learned Senior Counsel that the judgment in Krishna Murthy was delivered in a different context. The Supreme Court also observed that some of the States may have to modify their legislations so as to reduce the quantum of existing quotas in favour of OBCs.
54. In the cases on hand, admittedly, no investigation has been conducted and data collected for the purpose of providing reservations as permissible under Article 243D(6) of the Constitution. The present reservation of 34% has been provided on the basis of 2001 Census as the population figures of 2011 have not yet been published. Section 202A of the Act provides that the population figures of backward classes gathered in the socio-economic survey conducted by the Andhra Pradesh Backward Classes Co-operative Finance Corporation Ltd. shall be taken as the basis for the purpose of reserving the offices of Sarpanch, President, Chairperson of the Gram Panchayats etc. The validity of this provision has been upheld by a Division Bench of this Court in Prakasam District Sarpanchas Association. However, the figures collected by the said Corporation relate to the year 2001. Basing on the same, the State fixed the reservation at 34%. Assuming however that the said figures are correct, the question involved is whether aggregate reservation exceeding 50% is permissible. As per the ratio in Krishna Murthy, the answer is in negative.
55. The nature and purpose of reservations in local bodies is different from the reservation policies designed to improve the access to higher education and public employment. Backwardness in social and economic sense does not necessarily imply political backwardness. In the domain of political participation, there can be no objective parameters to determine who is more likely to get elected. Social and economic backwardness does not necessarily coincide with political backwardness. The State is required to review the reservation policies from time to time so as to check over-inclusion and under- inclusion.
56. As per the impugned G.O., 18.30% seats are reserved in favour of Scheduled Castes, 8.25% for Scheduled Tribes and 34% for backward classes, thus making total reservation of 60.55%. As far as reservation in respect of Scheduled Castes and Scheduled Tribes is concerned, there cannot be any deviation as they are to be provided reservation in the same proportion of their population according to Article 243D of the Constitution. In the case of backward classes, there is no constitutional requirement for providing a particular percentage of reservation. As guided by the Supreme Court in Krishna Murthy, the only course is to provide proportionate reservation.
57. As regards exclusion of creamy layer, while repelling the contention that the same degree of backwardness cannot be assumed for the entire group of backward class, the Supreme Court observed that the reservations enabled by Article 243-D(6) and Article 243-T(6) do not contemplate the exclusion of the "creamy layer" in the manner that has been prescribed for reservations in the context of higher education and public employment respectively. In this context, it is relevant to notice the following paragraphs from Krishna Murthy: "56. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local self-government are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the "creamy layer" in the context of political representation. There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the "creamy layer" may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government.
57. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of weaker sections. Hence, it would be counter-intuitive to exclude the relatively better- off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities..................." In view of the above, we are not inclined to accept the contention urged on behalf of some of the petitioners that creamy layer among backward classes should be excluded while providing reservation in political posts.
57. It is argued on behalf of the State that the reservation of 34% is being followed since 1994 and even during the elections held in the year 2006, the same percentage of reservation was adopted, therefore, it is acceptable. But, we are not inclined to accept this submission on behalf of the State for the reason that in the State there is no empirical data and the reservation is based on unpublished data. The State Government is required to conduct a detailed investigation with regard to backwardness of the population, collect data, invite objections from the general public, analyse the same and then fix the reservation in accordance with the constitutional scheme. Further, limit of reservation, as ruled by the Supreme Court in Krishna Murthy, was not available in 2006.
58. On the issue of conducting elections before the expiry of term of the local bodies, it is incumbent upon the State Election Commission and the concerned authorities to carry out the mandate of the Constitution and to see that new bodies are constituted in time and elections are conducted before the expiry of their duration of five years as specified in Article 243E of the Constitution. It is true that there may be certain exceptional circumstances like natural calamities which could distract the authorities from holding elections, but the Election Commission is not justified in delaying the process of election. We are of the firm opinion that Article 243E of the Constitution is mandatory and the said provision was inserted to see that there should not be any delay in the constitution of new Panchayats.
59. As noticed above, this Court, while admitting Writ Petition Nos.16560 and 16473 of 2011, granted interim stay of G.O.Ms.No.128, dated 8.6.2011 including elections. Thereafter, the Government promulgated Ordinance No.5 of 2011 on 21.7.2011 making transitional arrangements for administration of local bodies till the ordinary elections are held. Consequent to the promulgation of the Ordinance, the Government issued orders appointing Special Officers to the local bodies. It is the case of the State that the said Ordinance was promulgated only to fill the vacuum in extraneous circumstances as the Act did not provide for the said contingency and all necessary steps had been taken for conducting elections to the Panchayat Raj institutions within time, but in view of the interim stay granted by this Court, further steps could not be taken for holding elections. In view of this, it cannot be said that the appointment of Special Officers is illegal.
60. In view of the above discussion, the writ petitions and the public interest litigation petitions are disposed of with the following directions: i) For the purpose present elections, the State shall fix the reservation in favour of Backward Classes at such percentage so that it comes within 50% when the aggregate reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes put together; ii) The State shall conduct a detailed investigation with regard to backwardness of the population, collect data, invite objections from the general public, analyse the same and then fix the reservation in favour of Backward Classes in accordance with the constitutional scheme. It shall also review the reservation from time to time; iii) The State Election Commission shall commence the process of elections to the local bodies in the State of Andhra Pradesh immediately and shall complete the elections within a period of three months from the date of finalisation of the reservation percentage by the State. iv) All the writ petitions challenging the validity of amending Acts, providing for appointment of Special Officers for local bodies shall stand dismissed. v) No costs. ___________________________ PINAKI CHANDRA GHOSE, ACJ ________________________ VILAS V. AFZULPURKAR, J.
4th September, 2012.