Allahabad High Court: In 78 writ petitions and 15 public interest litigations filed against a notification dated 05-12-2022 issued by the State Government regarding the reservations of seats/offices of the Chairpersons of different Municipal Bodies to be reserved for the Scheduled Castes (‘SC’), the Scheduled Tribes (‘ST’), backward classes and women, the division bench of Devendra Kumar Upadhyaya* and Saurabh Lavania, JJ. quashed the said notification, and the Government order dated 12-12-2022 and directed that until the triple test is completed in all respects by the State Government, no reservation for other backward class of citizens shall be provided in Urban Local Body elections. Further, it directed the State Government/State Election Commission to notify the elections immediately and said that while notifying the elections, the seats of Chairpersons, except those to be reserved for SC and ST, shall be notified as for general/open category.
1) Whether the requirement of triple test as mandated by Supreme Court in the cases of ‘K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 and Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73 stand fulfilled?
The Court said that the reservation of seats in a Municipality for the SC, ST and women is constitutionally mandated, however, so far as reservation to “backward class of citizens” is concerned, sub clause (6) of Article 243-T only contains an enabling provision according to which the Legislature of a State can make a provision for reservation of seats in a Municipality or offices of Chairpersons, in their favour. However, the nature and quantum of reservation to be provided for backward class of citizens has been left to the wisdom of Legislature of a State.
The Court noted that the Constitutional validity of some aspects of reservation policy prescribed in the Constitution in respect of local self-government institutions, both for rural and urban areas, became subject matter of challenge in the above two cases. Further, keeping in view the law laid down in K. Krishna Murthy (supra), the Court in Vikas Kishanrao Gawali (supra) enunciated that triple test is required to be complied with by the State before reserving the seats in local bodies for backward class of citizens.
(A) to set up a dedicated Commission to conduct contemporaneous rigorous empirical enquiry into the nature and implications of backwardness qua local bodies, within the State,
(B) to specify the proportion of reservation required to be provisioned local body-wise in the light of the recommendations of the Commission so as not to face foul over breadth, and
(C) in any case such reservation shall not exceed aggregate of 50% of total seats reserved in favour of the SC/ST/backward classes of citizens taken together.
The Court said that any inquiry into the nature and implications of the backwardness qua local bodies necessarily involves ascertainment of representation in the local bodies from amongst the traditionally disadvantageous class. Such exercise cannot be confined to counting heads alone as is being done by the State in terms of the Government order dated 07-04-2017. This exercise misses a very crucial factor for determination of backwardness or disadvantageous situation concerning a class of citizens who are inadequately represented in the Municipal Bodies in the State, as the Government order does not provide for inquiry into the political representation of backward class in the Municipal Bodies.
Further, it said that, by treating the castes enumerated in Schedule-I of the Reservation Act, 1994 as backward class of citizens for providing reservation in the elections of the local bodies, the State is treating the nature of backwardness requisite for providing reservation in admission to educational institutions and public employment as the requisite backwardness for providing reservation to seats and offices of the Chairpersons in the Municipal Bodies.
Thus, the Court said that this exercise conducted under the Government order does not fulfill the triple test criteria, as only the population of other backward class of citizens in terms of Schedule-I appended to 1994 Reservation Act which is being determined, however, so far as the representation of the backward class of citizens in the Municipal Bodies is concerned, the said Government order does not make any such provision for determination of inadequacy/adequacy of representation in the Municipal Bodies.
The Court held that the requirement of triple test/conditions as mandated in K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra) does not stand fulfilled and consequently, any exercise conducted by the State for reserving the seats and offices of Chairpersons of Municipal Bodies in U.P. including issuance of the impugned notification dated 05-1-.2022 is vitiated, not sustainable, and hence, is liable to be struck down.
As the term of Municipalities has either ended or shall be coming to an end by 31-01-2023 and the process of completion of triple test is arduous, and will take considerable time, the Court directed that the State Government/State Election Commission shall notify the elections immediately, and while doing so, the seats and offices of Chairpersons, except those to be reserved for SC and ST, shall be notified as for general/open category. Further, the notification to be issued for elections shall include the reservation for women in terms of the constitutional provision.
The Court also said that, in case, term of municipal body comes to an end, till the formation of the elected body, the affairs of such municipal body shall be conducted by a three-member Committee headed by the District Magistrate(‘DM’).
2) Whether in absence of challenge to the relevant statutory prescriptions in the State enactments which provide for reservation to the backward class of citizens in terms of Article 243-T (6), the petitioners are entitled to the reliefs which have been prayed for?
The State argued that in absence of challenge to sections 2(1) and 9-A of the Municipalities Act and also to section 2(51-A) and section 7 of Municipal Corporations Act which provide for quantum of reservation to backward class of citizens and that such reservation will be available to castes included in Scheduled -1 appended to U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Back-ward Classes) Act, 1994, the petitioners are not entitled to any relief.
The Court observed that the provisions akin to these provisions are available in Uttar Pradesh Panchayat Raj Act and Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 which contain similar provisions for providing reservation to backward class in the context of elections or rural local bodies. Further, it relied on K. Krishna Murthy (supra), wherein it was observed that identification of backward classes for the purposes of reservation is an executive function and for that a dedicated Commission needs to be constituted to conduct a rigorous empirical enquiry into the nature and implications of backwardness.
Thus, it said that, accordingly, the State was also obligated by the mandate of Supreme Court to have a re-look at its policy regarding reservations to be made available to backward class in the context of elections to urban local bodies, including amendment in the existing statutory provisions.
Further, as the State had not set up the dedicated Commission for conducting the empirical study into the nature and implications of backwardness for the purposes of providing reservation to backward class in the local self-government and thereafter made necessary changes in the statutory prescriptions. Thus, it held that the State has completely failed to comply with the dictum and directions of Supreme Court in the judgments of K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra).
The Court said that the State cannot be permitted to take a plea that State enactments have not been challenged to deny the reliefs claimed in these petitions because in Vikas Kishanrao Gawali (supra) it was reiterated that States ought to take a re-look at its policies including the Legislative policies with regard to reservation in local self-government bodies.
The Court thus held that, in absence of challenge to the statutory prescriptions in the State enactments, which provide for reservation to backward class of citizens in the context of elections of local urban bodies, does not dis-entitle the petitioners to seek reliefs prayed in these petitions.
3) Whether the Government order dated 12-12-2022 is legally valid?
The Court said that, as regards the validity of the Government order dated 12-12-2022, wherein all the DM’s have been directed to authorize operation of the bank accounts of the municipalities by the joint signatures of the executive officers and the senior most member of the U.P. Palika Centralized Services, the State has utterly failed to satisfy the Court that it is referable to any provision either in the Municipalities Act or in the Municipal Corporations Act.
The Court noted that the said order was based on the judgment in Sandeep Mehrotra v. State of U.P. delivered on 05.12.2011 (Writ Petition No. 11226 of 2011), wherein, the Court struck down Section 10(A) of Municipalities Act, which provided that where the election is not held for any unavoidable circumstance, then all powers, functions and duties of such Municipality shall be exercised by the DM or by a Gazetted officer.
Thus, the interim arrangement made in the above case lost its efficacy on the constitution of the municipalities. Hence, the same could not have been taken aid of by the State to issue the Government order dated 12-12-2022.
Thus, the Court quashed the said Government order and directed that, until the triple test mandated by K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra) is completed in all respects by the State Government, no reservation for backward class of citizens shall be provided.
4) Whether any direction can be issued to include the transgenders amongst the backward class of citizens, and accordingly, to provide reservation to them in the context of elections to constitute Urban Local Bodies?
The Court directed that once the dedicated Commission is constituted for undertaking the exercise of conducting empirical study as to the nature and implications of backwardness, for the purposes of providing reservation to backward class of citizens, in the context of elections to the urban local bodies, the claim of transgenders for their inclusion amongst Backward Class of citizens shall also be considered.
[Vaibhav Pandey v. State of UP, 2022 SCC OnLine All 913, decided on 27-12-2022]
Advocates who appeared in this case :
Counsel for Petitioner:- Advocate Sharad Pathak, Advocate Piyush Pathak;
Counsel for Respondent:- Advocate Anurag Kumar Sing.
*Apoorva Goel, Editorial Assistant has reported this brief.