Pratap Narayan Vs. State of U.P. and Others - Court Judgment

Excerpt:
election - reservation for 8 scheduled castes - section 296 read with section 9a of u.p. municipalities act, 1916 and rule 4(1) of u.p. municipalities (reservation and allotment of seats and offices) rules, 1994 - total seats of 29 - reserved seats coming to 3.90 - applying rule 4, four seats should be reserved not three. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. ordershyamal kumar sen, c. j. and g. p. mathur, j.1. this writ petition, under article 226 of the constitution, has been filed praying that the notification issued by the state government on 27.9.2000 providing for reservation of wards in nagar palika parishad, farrukhabad, be quashed.2. it is averred in the writ petition that nagar palika parishad. farrukhabad, has been divided into 29 wards. in the election held in the year 1995, the wards were reserved on the basis of the population as ascertained in the census held in the year 1991. accordingly, 17 wards were reserved for general candidates, 8 wards were reserved for backward classes and 4 wards were reserved for scheduled caste candidates. in the notification issued by the state government on 27.9.2000, the number of wards reserved for scheduled castes candidates have been reduced from 4 to 3.3. mrs. poonam srivastava, learned counsel for the petitioner has contended that after 1991, no fresh census has been held and, therefore, for the purpose of election scheduled to take place in november, 2000 the figure published in the 1991 census have to be accepted in view of article 243p(b) of the constitution and also section 2 (16) of the u. p. municipalities act, 1916. according to the learned counsel, if the number of wards to be reserved for scheduled castes is calculated on the basis of the formula provided in the relevant rules by taking into account the aforesaid population, the same could not be reduced from 4 to 3.4. the state government in exercise of the powers conferred by section 296 of the u. p. municipalities act read with section 9a of the said act has made the u. p. municipalities (reservation and allotment of seals and offices) rules. 1994, rule 4 (1) provides the method for determination of seats to be reserved for scheduled castes and scheduled tribes. this rule was amended on april 20, 1995 and after the amendment, it reads as follows :'4. (1) the number of seats to be reserved in a municipality for the scheduled castes for the scheduled tribes. or the backward classes under subsection (1) of section 9a of the act shall be so determined that it shall bear, as nearly as may be, the same proportion to the total number of seats in a municipality as the population of the scheduled castes in the municipal area or the scheduled tribes in the municipal area or the backward classes in the municipal area bears to the total population of such area and if in determining such number of seats, there comes a remainder then if it is half or less than half of the divisor, it shall be ignored and if it is more than half of the divisor, the quotient shall be increased by one and the number so arrived at shall be the number of seats to be reserved for the scheduled castes or the scheduled tribes or the backward classes as the case may be.provided that number of seats to be reserved in a municipality for the backward classes under sub-section (1) of section 9a of the act. shall not be more than twenty seven per cent of the total number of seats in a municipality.'5. according to the aforesaid rule, the number of wards to be reserved for scheduled castes has to be calculated on the basis of following formula :number of wards x scheduled caste population of nagar palika parishad6. it is averred in the writ petition that according to the sankhya adhikari, the population of scheduled castes in the nagar palika parishad is 26, 283 and according to the nagar palika parishad, it is 24,511. if the number of wards to be reserved for scheduled castes is calculated on the basis of the above figures. it will exceed 3.90 in either case. since, the fraction is more than 50, it has to be taken as one. therefore, the number of wards to be reserved for scheduled castes come to 4. sri ashok mehta, learned chief standing counsel, has fairly admitted that the number of wards to be reserved for scheduled castes in the present case in view of the provisions of u. p. municipalities (reservation of allotment of seats and offices) rules. 1944, as amended from time to time will come to 4 and the impugned notification whereby only 3 wards have been reserved is not correct.7. the impugned notification dated 27.9.2000 by which only 3 wards have been reserved for scheduled caste candidates in nagar palika parishad, farrukhabad is, therefore, not correct and their number should be 4.8. the writ petition is,accordingly, disposed of with thedirection to the concerned authorityof the state government to reconsiderthe objection filed by the petitionerand modify the notification dated27.9.2000 by taking a fresh decision for the reservation of wards in favourof scheduled caste candidates in thelight of the discussions made aboveand in accordance with law.

Judgment:
ORDER

Shyamal Kumar Sen, C. J. and G. P. Mathur, J.

1. This writ petition, under Article 226 of the Constitution, has been filed praying that the notification issued by the State Government on 27.9.2000 providing for reservation of wards in Nagar Palika Parishad, Farrukhabad, be quashed.

2. It is averred in the writ petition that Nagar Palika Parishad. Farrukhabad, has been divided into 29 wards. In the election held in the year 1995, the wards were reserved on the basis of the population as ascertained in the census held in the year 1991. Accordingly, 17 wards were reserved for General Candidates, 8 wards were reserved for Backward Classes and 4 wards were reserved for Scheduled Caste candidates. In the notification issued by the State Government on 27.9.2000, the number of wards reserved for Scheduled Castes candidates have been reduced from 4 to 3.

3. Mrs. Poonam Srivastava, learned counsel for the petitioner has contended that after 1991, no fresh census has been held and, therefore, for the purpose of election scheduled to take place in November, 2000 the figure published in the 1991 census have to be accepted in view of Article 243P(b) of the Constitution and also Section 2 (16) of the U. P. Municipalities Act, 1916. According to the learned counsel, if the number of wards to be reserved for Scheduled Castes is calculated on the basis of the formula provided in the relevant rules by taking into account the aforesaid population, the same could not be reduced from 4 to 3.

4. The State Government in exercise of the powers conferred by Section 296 of the U. P. Municipalities Act read with Section 9A of the said Act has made the U. P. Municipalities (Reservation and Allotment of Seals and Offices) Rules. 1994, Rule 4 (1) provides the method for determination of seats to be reserved for Scheduled Castes and Scheduled Tribes. This Rule was amended on April 20, 1995 and after the amendment, it reads as follows :

'4. (1) The number of seats to be reserved in a municipality for the Scheduled Castes for the Scheduled Tribes. or the Backward Classes under subsection (1) of Section 9A of the Act shall be so determined that it shall bear, as nearly as may be, the same proportion to the total number of seats in a municipality as the population of the Scheduled Castes in the municipal area or the Scheduled Tribes in the municipal area or the backward classes in the municipal area bears to the total population of such area and if in determining such number of seats, there comes a remainder then If it is half or less than half of the divisor, it shall be ignored and if it is more than half of the divisor, the quotient shall be Increased by one and the number so arrived at shall be the number of seats to be reserved for the Scheduled Castes or the Scheduled Tribes or the Backward Classes as the case may be.

Provided that number of seats to be reserved in a municipality for the Backward Classes under sub-section (1) of Section 9A of the Act. shall not be more than twenty seven per cent of the total number of seats in a municipality.'

5. According to the aforesaid Rule, the number of wards to be reserved for Scheduled Castes has to be calculated on the basis of following formula :

Number of wards x Scheduled Caste population of Nagar Palika Parishad

6. It is averred in the writ petition that according to the Sankhya Adhikari, the population of Scheduled Castes in the Nagar Palika Parishad is 26, 283 and according to the Nagar Palika Parishad, it is 24,511. If the number of wards to be reserved for Scheduled Castes is calculated on the basis of the above figures. It will exceed 3.90 in either case. Since, the fraction is more than 50, it has to be taken as one. Therefore, the number of wards to be reserved for Scheduled Castes come to 4. Sri Ashok Mehta, learned chief standing counsel, has fairly admitted that the number of wards to be reserved for Scheduled Castes in the present case in view of the provisions of U. P. Municipalities (Reservation of Allotment of Seats and Offices) Rules. 1944, as amended from time to time will come to 4 and the impugned notification whereby only 3 wards have been reserved is not correct.

7. The impugned notification dated 27.9.2000 by which only 3 wards have been reserved for Scheduled Caste candidates in Nagar Palika Parishad, Farrukhabad is, therefore, not correct and their number should be 4.

8. The writ petition is,accordingly, disposed of with thedirection to the concerned authorityof the State Government to reconsiderthe objection filed by the petitionerand modify the notification dated27.9.2000 by taking a fresh decision for the reservation of wards in favourof Scheduled Caste candidates in thelight of the discussions made aboveand in accordance with law.