Patna High Court: In a case relating to the reservation to the backward class category for the post of Councillors in Municipalities, the division bench of Sanjay Karol, CJ. and S. Kumar, J. has held that the reservation of seats for Other Backward Classes (OBC) and Extremely Backward Classes (EBC) in urban local body elections was illegal and directed the State Election Commission to re-notify seats reserved for the OBC in the local polls as general category. In this case, the petitioner wanted the elections to the Municipal Body, to be conducted without providing reservation to the Backward Class Category, for it be in breach of the three-fold test and in the absence of reservation, the seats would be left open for General Category. However, pending adjudication the Election Commission issued a notification fixing the schedule for elections in October, 2022, while the posts of Deputy Chief Councillor of Municipalities are reserved for specified categories.

The Court considered the following question whether the following three-fold test, as elucidated by a bench headed by D.Y. Chandrachud vide order dated 19.09.2022 passed in Sunil Kumar v. State of Bihar Special Leave to Appeal (C) No(s). 16081/2022 stands followed and complied with in the conduct of election to the numerous “Municipalities” in the State of Bihar or not?

The Court referred to the decision in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 K. and in Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73; wherein it was held that “the triple test/conditions required to be complied with by the State before reserving seats in the local bodies for OBCs are: (1) to set up a dedicated Commission to conduct an empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required in light of recommendations of the Commission; and (3) reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.

The Court observed that the decision in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 will not apply to States which had provided reservations in the local bodies only for the OBC category “as a whole”. Further, the concept of EBC, is only a “sub-set” and not an “off-set” of OBC. The primary reservation source, be it for OBC or EBC, flows through Article 243(6) alone, whereby for the “OBC” category, States are enabled to provide reservations through a statutory mechanism, unlike the category of SC and ST, for whom, as the Constitution provides, reservation necessarily must be based on population, regardless of their political backwardness.

Further, while examining whether the three test principles is complied with by the State or not, it has been observed that the Bihar Reservation of Vacancies in Posts and Services (for SC, ST and OBC) Act, 1991 (‘Reservation Act’) was updated to necessarily provide reservation to Economically Backward Class; Backward Class, Women of Backward Classes, including Women from SC; ST and EBC. Further, under the Bihar State Commission for Backward Classes Act, 1993, the State constituted a specific Commission for Backward Classes other than Scheduled Castes and Scheduled Tribes, still further, by virtue of a resolution issued by the Personnel and Administrative Reforms Department, “State Commission for the Most Backward Class” was also constituted. It was further viewed that on examination of the provisions of the Reservation Act, the object and purpose was to only provide reservation in services and the criteria for delineating backwardness is “economic backwardness” and not “political backwardness”.

Further, it was viewed that the scope of inquiry under the Bihar State Commission for Backward Classes Act, 1993 (‘the Commission Act) does not ascertain the political backwardness of persons belonging to the reserved category of OBC, including the EBC for the purpose of representation to the Municipal Bodies, and the scope of Commission is specific and confined to EBC and not OBC as a whole, for the former is only a subset of the latter. Also, the Commission’s primary objective is to prepare a report after examining the reasons for social, educational and economic backwardness Thus, the Court viewed that the need to establish a dedicated Commission or empowering the existing bodies to undertake the task of empirical data collection have not been carried out and the Court cannot suggest the Government to comply with the first prong of the three-fold test.

The Court, while concerning the second prong of the three-fold test, has observed that there is total non-compliance of the mandate of the Constitution Bench Judgment in K. Krishna Murthy (supra) and subsequent judgments in Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73; Suresh Mahajan v. State of M.P., 2022 SCC OnLine SC 589 Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 687.

It was also observed that in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 and Pattali Makkal Katchi v. A. Mayilerumperumal, 2022 SCC OnLine SC 386, the concept of subclassification within socially and educationally backward classes, though in the context of Article 16(4), was accepted. Further, in State of Punjab v. Davinder Singh, (2020) 8 SCC 1, it was held that “when the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making subclassification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided.” Moreover, the concept of carving out a subset out of a set is also accepted in Vijay Kumar Singh v. State of Bihar, 2006 SCC OnLine Pat 925.

The Court observed that the procedure and pattern adopted by the Government/Election Commission in reserving the seats for the OBC category in all the Municipalities, be it Municipal Corporation, Municipality or Nagar Parishad, is identical. In other words, reservations across the board is provided without evaluating any parameters, except population and judging its overbreadth. Further, the Election Commission issued guidelines for effecting reservation in favour of Backward Class category in various local bodies across the State, based on population alone, without enquiring into the nature and implications of at least political backwardness, also it does not clarify the distinction between OBC and EBC category.

Moreover, the Court viewed that there is no statistical data on the population of EBC category within the Local Bodies, nor is there any data relating to proportional representation of EBC in Local Self Government, particularly in the Municipalities, meeting the requirement of the triple test. Further, the Government, without collecting empirical data or conducting a study about the political backwardness, carried out the exercise of reserving seats purely based on population, and that to for EBC category, and the same cannot be the solitary basis for providing reservations. Thus, the Government has failed to establish compliance of the Second Test Principle of “Specification of the proportion of reservation required in light of the recommendations of the Commission”.

The Court further observed that the third test principle i.e. the statutory limit of reservation of 20% for the OBC category has not been breached, as no material indicates the impugned action of providing reservation through various notifications/circulars/orders to be in excess of the combined upper limit of 50 per cent for all categories/classes/persons.

The Court observed that:

  • The commissions formed under the Backward Classes Act and the Commission for Extremely Backward Classes both were formed for independent and distinct purposes from ascertaining political backwardness.

  • The Lists/Annexures/Schedule/Entries in the Schedule to the Bihar Reservation of Vacancies in Posts and Services (for SC, ST and OBC) Act, 1991, are prepared for the purposes of conferring benefit under Article 15(4) and 16(4) and not Article 243-T of the Constitution of India.

  • The State of Bihar has not undertaken any exercise by which the criteria adopted for providing reservations under socio-economic/ educational/ services have been adopted for the purposes of ensuring electoral representation of OBC, including EBC.

Thus, the Court held that the action of the Government and the Election Commission in reserving the seats for the OBC/EBC category for election to all the municipal bodies in the State of Bihar, governed under the Bihar Municipal Act, 2007 do not comply with the dictum laid down in the above cited judgments; thus illegal. Hence, it directed the State Election Commission to carry out the elections only by immediately re-notifying the seats reserved for the OBC Category treating them as general category seats. Further, it viewed that the State may consider enacting a comprehensive legislation pertaining to reservations in elections to local bodies, urban or rural.

[Sunil Kumar v. State of Bihar, 2022 SCC OnLine Pat 3005, decided on 04.10.2022]

Advocates who appeared in this case :

For the Petitioners: Senior Advocate Mrigank Mauli, Advocate Rajeev Ranjan, Advocate Dayanand Singh, Advocate Nagdeo Choubey, Advocate Dhananjay Kashyap, Advocate Pallavi Trivedi, Senior Advocate Amit Shrivastava (Amicus Curiae), Advocate Awnish Kumar, Advocate Kumar Gaurav, Senior Advocate Amit Shrivastava, Advocate Siddhartha Prasad, Advocate Shashi Shekhar Kumar Prasad, Advocate Prashant Kumar Sinha, Advocate Sunit Kumar, Advocate Sunil Kumar Yadav, Advocate Rajesh Kumar, Advocate Jaishree Kumar, Mr. S.B.K. Mangalam, Advocate Awnish Kumar, Advocate S.B.K. Mangalam, Advocate Sumeet Kumar Singh, Advocate Alka Singh, Advocate Satyendra Prasad Singh, Advocat Anita Kumari, Advocate Krishna Chandra, Advocate Mrigank Mouli, Senior Advocate Avinash Kumar, Advocate Meenakshi Arora, Senior Advocate Y.V. Giri, Senior Advocate Rahul Shyam Bhandari, Advocate Dayanand Singh, Advocate Dhananjay Kashyap, Advocate Pallavi Trivedi, Advocate Nagdeo Choubey, Manohar Prasad Singh, Advocate Samir Kumar Sinha, Advocate Prem Prakash Poddar, Advocate Ravi Ranjan, Advocate Raja Kumar, Advocate Suruchi Priya, Advocate Prabhojot Singh, Advocate Gyanendra Kumar Diwakar, Advocate Pranab Kumar.

For the Respondents: Senior Advocate Vikash Singh, Advocate General Lalit Kishore, Advocate Pawan Kumar, Advocate Anmol Chandan, Advocate Deepika Kaha, Advocate Kumar Shanu, Advocate Ravindra Kumar Priyadarshi, Senior Advocate Rajendra Narain, Advocate Sanjeev Nikesh, Advocate Girish Pandey, Advocate Kinkar Kumar, Advocate Sanjeev Nikesh, Senior Advocate Rajendra Narain, Advocate Sanjeev Nikesh, Advocate Girish Pandey, Additional Advocate General Yogendra Pd. Sinha, Advocate Kinkar Kumar, Advocate Sanjeev Nikesh, Advocate Subhash Pd. Singh, Senior Advocate Rajendra Narain, Advocate Sanjeev Nikesh, Advocate Girish Pandey, Senior Advocate Vikash Singh, Advocate Genral Lalit Kishore, Advocate Subhash Pd. Singh, Advocate Rabindra Kumar Priyadarshi.

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