1 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE15h DAY OF SEPTEMBER2014BEFORE THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA WRIT PETITION NO.81979/2013 AND WRIT PETITION Nos.82002-82006/2013(LB-ELE) BETWEEN:
1. T. VENKATESH, 50 YEARS, S/O KOTHLAMMA, WARD5 KUDLIGI583135, BELLARY DIST.
2. NOOR AHMED, 30 YEARS, S/O N.M. NABI, WARD13 KUDLIGI583135, BELLARY DISTRICT.
3. CHOWDAPPA, 43 YEARS, S/O KADAPPA, WARD9 KK HATTI, KUDLIGI583135, BELLARY DISTRICT.
4. N. NAGARAJ, 38 YEARS, S/O NEELAKANTAPPA WARD18 ADIGUDDA, KUDLIGI583135 BELLARY DISTRICT.
5. SOVINAHALLI, KOTHLAPPA, 65 YEARS, S/O BHEEMAPPA WARD13 KUDLIGI583135, BELLARY DISTRICT.
6. SANNA KOTLAPPA, 42 YEARS, S/O H. SANNA KOTLAPPA, WARD3KUDLIGI583135, BELLARY DISTRICT. (BY SRI. HARSH DESAI, ADV.) .. PETITIONERS2AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY TO URBAN DEVELOPMENT DEPARTMENT M.S. BUILDING DR. AMBEDKAR VEEDHI, BANGALORE5600001 2. THE DEPUTY COMMISSIONER, BELLARY, DIST. BELLARY583101 3. TOWN MUNICIPAL COUNCIL, KUDLIGI583135, KUDLIGI TALUK DIST. BELLARY, BY ITS CHIEF OFFICER. (BY SMT. VIDYAVATHI K., AGA FOR RESPONDENTS1AND2 SRI. M.B. HIREMATH, ADV. FOR R3.) .. RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED2308/2013 ISSUED BY RESPONDENT NO.1 AS PER ANNEXURE-C INSOFAR AS KUDLIGI(SL.NO.36) IS CONCERNED AND ETC. THESE WRIT PETITIONS COMING ON FOR ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Petitioners have assailed notification dated 23/08/2013 issued by respondent No.1(Annexure “C”) insofar as Town Panchayat, Kudligi, is concerned, which is at Sl.No.36 in the said notification. 3 2. According to the petitioners, they are elected members of the 3rd respondent Town Panchayat. Elections were held on 02/03/2013 and the results were declared on 8/03/2013. The Council comprises of 20 members out of which 13 are men and 7 are women. That pursuant to the Article 243-R of the Constitution, second respondent has issued notification dated 05/02/2013 which is at Annexure “A” stating elections could be held to the local bodies. Thereafter, notification dated 23/08/2013 was issued allotting the offices of the President and Vice-President to various bodies for the Seventh term pursuant to the election held to the local bodies by rotation. According to the petitioners as per the impugned notification, insofar as reservation to the post of President to the respondent- Town Panchayat is concerned, it is reserved for woman. The grievance of the petitioners is two fold. It is firstly stated that continuously for last two years, it is only a woman who has been elected as President of the Town Panchayat in view of the reservation made and secondly, insofar as the respondent-Town Panchayat, is concerned, 4 both posts of President as well as Vice-President are reserved for woman in the present term. As far as the post of President is concerned, it is reserved for backward caste woman and insofar as post of Vice-President is concerned, it is reserved for General woman and that both the posts are simultaneously reserved for women. Under these circumstances petitioners contend that there is unequal representation and that the male members of the Town Municipal Council are unable to contest for the post of President and Vice-President in the present term is concerned. Therefore, they have assailed Annexure “C” notification reserving the post of President for BCA woman and the post of Vice-President for General woman as far as respondent-Town Panchayat is concerned.
3. These writ petitions were listed on several dates and I have heard the learned counsel for the petitioners and learned Additional Government Advocate for respondents 1 and 2. 5 4. During the course of submission, it was brought to my notice by learned Addl. Government Advocate, that a provision similar to Sub-Rule (5) of Rule 13 of the Karnataka Municipalities (President and Vice- President) Election Rule 1965 (hereinafter referred to as the ‘Rules’ for short) has been struck down by this Court by order dated 14/02/2011 passed in Writ Petition No.5873/2001 and connected matters in the case of Taluk Panchayat and Zilla Panchayat and that in this case the impugned notification would have to be upheld. That Rule, which prohibits simultaneous reservation of both posts for woman wherein reservation to the posts of Adyaksha and Upadakshaya made under the provisions of the Karnataka Panchayat Raj (Reservation of Offices of Adyaksha and Upadakshya, Zilla Panchayat) Rules, 2005 under the Karnataka Panchayat Raj Act, 1993 has been struck down. Therefore, there is no prohibition for two women to contest election for the post of President and Vice-President of a Municipal body. It was also submitted that despite there being a prohibition in the proviso to that effect, in the 6 instant case, reservation has been made keeping in mind equality of representation for all categories of persons and in view of striking down of the proviso under the aforesaid Rules made under the Karnataka Panchayat Raj Act 1993, by order dated 14/02/2011, a similar order could be passed in these writ petitions by upholding impugned notification.
5. Before delineating on the relevant provisions, it is noted that the State has taken a decision to reserve posts of Adhyaksha and Upadhakshya or President and Vice-President of the local bodies. There are rules made in respect of each type of local body. Reservation is also coupled with representation to the posts. Reservation and representation to the posts are done on statewide basis and not on district wise or Talukwise basis. Keeping in mind the various parameters that are provided under the Rules, it could be that some times consecutively it would be only a woman who would occupy the post of President or Vice-President on two or more occasions. The same 7 position can also obtain insofar as men are concerned. But what is important under the reservation is to give representation to particular category and of course to a woman. When a separate and independent proviso has been made giving reservation to women, then such a provision has to be complied with, particularly having regard to clause (3) of Article 15 of the Constitution. In that view of the matter while giving the authorities concerned a free play in the joints while making reservations in terms of the Rules, repeated reservation given to a man or woman would not matter. Therefore, the contention that for the last two to three terms, it is only a woman who has been holding post of President or Vice-President of respondent-Town Municipal Council as the case may be, cannot be a legally acceptable argument. In these writ petitions, another grievance is with regard to both the offices of President and Vice-President, being reserved for women, which is assailed.
6. Rules 13 and 13-A of the Rules read as under:
8. “Rule 13. Reservation of Offices of President and Vice-President.- (1) Reservation of offices of President and Vice-President of the City Municipal Council, town Municipal Councils and Town Panchyats for different categories in accordance with sub-section (2-A) of Section 42 read with Section 353 shall be specified as in the tables below.- Reservation of offices in the City Municipals TABLE1Councils Category President Vice- president 4 2 0 1 7 3 2 1 7 13 40 4 2 0 1 7 3 2 1 7 13 40 Sl. No.1.
2.
3.
4.
5.
6. 7.
8. 9. Scheduled caste Scheduled caste-woman Scheduled Tribe Scheduled tribe-woman Backward Class- Category A Backward class Category A-woman Backward class category B Backward class category B-woman General-Woman 10. General(Non-reserved) Total Reservation of Offices in Town Municipal Councils TABLE2Sl. No.1.
2.
3.
4.
5.
6. 7.
8. 9. Scheduled caste Scheduled caste-woman Scheduled Tribe Scheduled tribe-woman class Backward class- Category A Backward Category A-woman Backward class category B Backward class category B-woman General-Woman 9 4 1 1 9 4 1 1 14 14 7 4 2 13 26 81 7 4 2 13 26 81 9 Category President Vice- president 10. General(Non-reserved) Total Reservation of Offices in Town Panchayats TABLE3Sl. No.1.
2.
3.
4.
5.
6. Category Scheduled caste Scheduled caste-women Scheduled Tribe Scheduled tribe-woman Backward class- Category A Backward Category A – woman Class President 10 5 2 1 15 8 Vice- president 10 5 2 1 15 8 10 7.
8. 9. Backward class category B Backward class category B-woman General-Woman 10. General(Non-reserved) Total 4 2 14 28 89 4 2 14 28 89 (2) The offices of President reserved for Scheduled Tribes shall be allotted by the Government to the Municipal Councils, or as the case may be, Town Panchayats having the highest percentage of population belonging to the Scheduled Tribes with reference to the total population of the municipal area. The same procedure shall be followed by the Government for allotting to the Municipal Councils, or as the case may be, Town Panchayats the same number of offices of Vice-President for members belonging to the Scheduled Tribes but excluding the Municipal Councils, or as the case may be, Town Panchayats in which the office of President have been already allotted to them. (3) The offices of President and Vice- President of Municipal Councils or as the case may be, Town Panchayats in the State shall be 11 allotted by the Government for members belonging to the Scheduled Castes in the same manner as specified in sub-rule (1): Provided that both the offices of President and Vice-President in any Municipal Council, or as the case may be, Town Panchayats shall not be allotted in favour of the category of Scheduled Castes and Scheduled Tribes only: Provided further that if the reservation worked out to any category is less than 0.5% no offices of President and Vice-President be reserved to such category. (4) The offices of President and Vice- President of the Municipal Councils, or as the case may be, Town Panchayats, reserved for Backward Classes and those of unreserved category, shall be allotted by the Government taking into consideration such factors as the Government may deem fit. (5) The offices of President and Vice- President reserved for women in each category referred in sub-rule (1) shall be allotted by the Government to the Municipal Councils, or as 12 the case may be, Town Panchayats taking into consideration such factors as the Government may deem fit: Provided that both the offices of the President and Vice-President of the Municipal Council, or as the case may be, Town Panchayats shall not be reserved for women. (6) The offices of President and Vice- President of Municipal Councils and Town Panchayats of the State to Scheduled Caste/ Scheduled Tribes/ Women and Backward Classes for the subsequent terms be determined by the Government from time to time by taking into consideration such factors as deem fit. Rule 13-A. Rotation of offices.- (1) Subject to sub-rule (1) of Rule 13, the offices of President and Vice-President of the City Municipal Councils, Town Municipal Councils and Town Panchayats in the State shall be rotated to the different categories from term to term. 13 Explanation.- For the purpose of reservation of offices by rotation the cycle of rotation shall commence from first term after first ordinary election held after First day of June, 1994 and completed when all the categories are represented in all City Municipal Councils, Town Municipal Councils and Town Panchayats as the case may be. Thereafter a fresh cycle of rotation shall commence. (2) The office of the President and Vice- President of City Municipal Councils, Town Municipal Councils and Town Panchayats reserved for Scheduled Caste, Scheduled Caste-Woman, Scheduled Tribe, Scheduled Tribe- Woman, Backward Class-Category A, Backward Class Category A-Woman, Backward Class - Category B, Backward Class Category B-Woman, General-Woman in the previous terms shall as far as possible be not allotted to the same category in the succeeding term until the cycle of rotation is completed in respect of such category. (3) Both the office of the President and Vice-President of the City Municipal Councils, Town Municipal Councils or Town Panchayats, 14 as the case may be, shall not be allotted in favour of the same category of Scheduled Caste, Scheduled Tribe, Backward Class and Woman. (4) The Offices reserved for persons belonging to Scheduled Castes and Scheduled Tribes shall be allotted by rotation to the City Municipal Council, Town Municipal Council and Town Panchayat having the next higher percentage of population in which the offices have not been allotted to them in the previous terms. (5) The Government shall prepare and maintain separate registers of offices of president and vice-president of City Municipal Councils, Town Municipal Councils and Town Panchayats allotted to different categories in Form A. (6) The Government shall prepare and maintain separate registers of offices of President and Vice-President allotted by reservation for each category in different City Municipal Councils, Town Municipal Councils and Town Panchayats in Form B.” 15 Rule 13 deals with reservation of offices of President and Vice-President of the City Municipal Councils and Town Municipal Councils and Town Panchayats for different categories, which is as per sub-section (2-A) of Section 42 read with Section 353 of the Act. Proviso to sub-rule (5) of Rule 13 states that the offices of President and Vice- President reserved for women in each category referred in sub-rule(1) shall be allotted by the Government to the Municipal Councils or the Town Panchayats as the case may be, taking into consideration such factors as it deems fit. The proviso states that both the offices of the President and Vice-President of the Municipal Council or the Town Panchayat as the case may be shall not be reserved for women. It is based on this proviso that the petitioners have contended that in the instant case, the reservation could not have been made in respect of both the posts, for women. Similarly, sub-rule (3) of Rule 13-A states that both the office of President and Vice-President of the City Municipal Council, Town Municipal Council or 16 the Town Panchayat as the case may be, shall not be allotted in favour of the same category of Scheduled Caste, Scheduled Tribe, Backward Classes or woman. By these provisions, what is implied is that, at a time or simultaneously, the President and the Vice-President of the Municipal Council or Town Panchayat, as the case may be, cannot be reserved for women. Such a bar however, is not applicable when it comes to reservation to be made in the male category. The bar referred to above as against women is in fact, contrary to clause 3 of Article 15 of the Constitution, which enables special provisions to be made for women and also contrary to Articles 14 and 15 of the Constitution.
7. In that view of the matter, proviso to sub-Rule (5) of Rule 13 and sub-rule (3) of Rule 13-A insofar as it places a restriction on women are quashed as being violative of Articles 14 and 15 of the Constitution by placing reliance on order dated 14/02/2011 referred to above. The relevant portion of which reads as under:
17. “38. The contention raised by the counsel for the petitioners with regard to reservation made for women shall now be considered. In fact under Clause 3 of Article 15 of the Constitution, a specific provision is made for women and children which is an exception to the rule against discrimination provided under Clause (1) and (2). Therefore, there can be specific provision in the form of reservation and there can be no limit as to the extent of reservation. As already noted, the State of Karnataka has advanced the concept of political empowerment for women by making an amendment to Section 123 and also Section 138 of the Act by stating that “not less than 50%” of the total number of members of the Taluk Panchayat in the State from each of the categories reserved for persons belonging to the Schedule Caste, Schedule Tribe and Backward Classes and those in the non-reserved category shall be reserved for women. The same principle also applies in respect of reservation of posts of chair persons. Having said so, clause(b) to Rule 5 which states that reservation of women category has to be made on the availability of the categories can no longer be sustained. If at the initial stage of 18 membership of the Taluk Panchayat and at the stage of considering the reservations of the Chairpersons of the Taluk Panchayats there are already available 50% of women candidates in both the reserved and unreserved category, the question of making reservation of seats for women depending upon the availability of candidates would have no meaning since the reservation of seats for women have to be not less than 50%, both in the reserved category and also in the general category or unreserved seats. If the said reservation is maintained in the membership of the Taluk Panchayat, then automatically there would be available 50% of women candidates for the purpose of reserving the seats for the office of the Chairpersons. There cannot be half-hearted policy of reservation of seats for women. Hence, Clause(d) of Rule 5 making reservation of seats for women dependent up on the availability of women candidates is meaningless and hence, clause d of Rule 5 is struck down.
39. Then, proviso to Clause d states that the post of Adhyaksha and Upadhyaksha cannot be reserved for women at the same time and proviso to Clause 3 states that the post of Adhyaksha and 19 Upadhyaksha if reserved for a woman in a particular category, it cannot be once again reserved for a woman belonging to another category consecutively. These two provisos in my considered view are also against the principles of political empowerment of women. If the intention of the legislation is that 50% of the seats in taluk Panchayat must be reserved for women candidates and 50% of the post for Chairpersons must also be reserved for women candidates, then, the restrictions that two women cannot hold the post of Chairpersons in a Taluk Panchayat simultaneously and two women cannot hold the post of Chairperson consecutively irrespective of the category to which they belong are unreasonable restrictions and antithetical to empowerment of women in a democracy and particularly in the context of local self- government. Therefore, these two provisos proviso to clause d and e which restrict the mandate reservations that is provided with regard to for women, the post of Chairpersons are struck down as being unreasonable arbitrary and thus contrary to Article 14 and 15 of the Constitution of India. Hence, the contention of the counsel for the petitioners that the reservations for the posts of 20 women is not in accordance with law is answered as aforesaid.” Further in that order, following the earlier orders passed by this court, a direction was issued to the State to ensure that reservations are made to the posts of President and Vice-President of the Town Municipal Council prior to holding of the elections to the said Council or local bodies. In fact this Court in the case of SMT.REKHA PARASHURAM KATTIMANI V/S. STATE OF KARNATAKA (ILR2009KAR. 3656) has held as under: “35. Before parting, it must be emphasized that the practice of the State in issuing Notifications providing reservation by way of rotation, on the eve of elections to the office of Adhyaksha and Upadhyaksha of the Zilla Panchayat must be deprecated. The State ought to ensure issue of the Notification well in advance, in the least, six months prior to the closing of the term of office of Adhyaksha and Upadhyaksha, so as to enable persons aggrieved to have their say in the matter.” 21 It is noted that Rules, 1965 are applicable to the respondent Town Panchayat. Relying on the aforesaid dictum, at paragraph 45 of the order dated 14/02/2011, it is stated as under” “ 45. In view of the amendments made to the Act as well as to the Rules and in view of striking down of some of the provisos of the Rules, the State Government is directed to make the reservation well in advance since the availability of candidates belonging to various categories is no longer a problem as the same criteria of reservation also applies to membership of Taluk Panchayat when the same is made by the election Commissioner of the State. Any reservation to be made to the post of Chairpersons cannot be linked to or related to the success of particular candidates to the Taluk Panchayat."
8. In the circumstances, the State is directed to ensure that reservation to the post of President and Vice- President of the Town Municipality Councils is made well in advance so that persons who have objections to the same 22 could ventilate their grievances and they may be ironed out before the issuance of calendar of events. In the result, writ petitions stand dismissed. All Interim orders passed in these Writ Petitions stand vacated. Kmv Sd/- JUDGE