Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao v. BR Gavai*, JJ has set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.

Facts

  • The respondent No.1 though belongs to the Scheduled Caste category, was elected as a Councillor to the Dhule Municipal Corporation from the General category. By the Notification dated 27th November 2019, the Office of Mayor in the said Corporation was earmarked for Backward Class of Citizens for the next term of two and half years commencing from June, 2021.
  • Respondent number 1 challenged the aforementioned Notification on the ground that from the year 2003 onwards, the Office of Mayor in the said Corporation was reserved for Backward Class category on various occasions, but was not reserved for Scheduled Caste category.
  • Bombay High Court held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term even without any reservation for Scheduled Caste category.
  • The said judgment was challenged on the ground that the import of Clauses (d) and (e) of sub­rule (2) of Rule 3 of the Maharashtra Municipal Corporations (Reservation of Offices of Mayors) Rules, 2006 was not considered by the High Court while deciding the matter.

Analysis

Interpreting a Statute

Explaining the rules for interpreting a Statute, the Court said,

“… the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment.”

It is the duty of the Court to construe the Statute as a whole and that one provision of the Act has to be construed with reference to other provisions so as to make a consistent enactment of the whole Statute.

“It is the duty of the Court to avoid a head-on clash between two sections and construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them.”

Further, while interpreting a particular statutory provision, it should not result into making the other provision a “useless lumber” or a “dead letter”. While construing the provisions, the Court will have to ascertain the intention of the law¬making authority in the backdrop of dominant purpose and   the underlying intendment of the Statute

The Legislative Intent behind the Rules in question

The impugned Rules are mechanism for giving effect to the constitutional mandate under Article 243T of the Constitution of providing reservation for Scheduled Castes and Scheduled Tribes and the   enabling provision for providing reservation for Backward Class of Citizens in proportion to their population.

The intent and the dominant purpose of Rule 3 of the said Rules is to provide reservation to Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women and further to ensure that there is no  repetition  of reservation  of  a particular category  in a particular Corporation.

The intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation.

The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation.  However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated.

True import of the Rules in question

The Court took note of the dominant purpose and the legislative intent of the said Rules which is to provide reservation in proportion of the population of such categories in the Municipal areas and also to ensure that while all the eligible Corporations get reservation at some point of time for the different categories, at the same time there would be no repetition of reservation until the rotation   is complete. However, while doing so, the number of seats reserved for a particular category also cannot be ignored.

“… the total number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of citizens, they are 7. Sub-rule (2) of Rule 3 of the said Rules prescribes the manner in which the seats are to be allotted to be reserved for various categories including women. Clause (a) thereof provides that it shall be done by notification in the Official Gazette by allotment of draw of lots. Clause (d) thereof provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) thereof provides that the offices of Mayors to be reserved shall be rotated in   the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.”

Applying the rules of interpretation, the Court noticed that at the first blush, an isolated reading of clause (e) is capable of being interpreted in a manner that until reservation is provided for each category by rotation, the said office cannot be reserved for a category for which it was already reserved. However, if the Rules along with Article 243T of the Constitution and Section 19(1A)[1] of the Maharashtra Municipal Corporations Act, 1949 are read as a whole, then the dominant purpose behind the said Rules appears to be that the reservation as mandated in the Constitution, should be provided for offices of Mayors in the Corporations.

“While doing so, the reservation has to be provided by a draw of lots. It has to be ensured that at any given point of time, the number of offices of Mayors reserved for such categories should not be less than the number determined in accordance with the provisions of sub-rule (1) of Rule 3 of the said Rules.”

Clause (d) of sub-rule (2) of Rule 3 of the said Rules also provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years, shall be excluded from the draw of lots for those categories. The purpose appears to ensure that the reservation is not thrust upon a particular Corporation again and again and all the Corporations, at some point of time, will have the office of Mayor reserved for particular category in accordance with the said Rules.

The Court explained,

“The office of Mayor can be reserved for Scheduled Tribes in only 9 Corporations whereas all the Corporations are eligible for reservation for Scheduled Castes and Backward Class of Citizens.  However, taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice,  it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes.”

The Court noticed that a harmonious construction of the said Rules would not lead to a conclusion that the procedure as followed by the State Government in allotting the reservation by draw of lots, would be said to be inconsistent with the scheme of the said Rules.

The Court then took note of the following facts,

  • After excluding 12 Corporations which are already reserved for Scheduled Castes in the earlier years and the one which was reserved for Scheduled Tribes in the first draw of lots, there were 14 Corporations available including the Dhule Municipal Corporation.
  • The said Corporation was also included in the draw of lots for Scheduled Castes. However, in the draw of lots, it could not be reserved for Scheduled Castes.
  • However, insofar as Backward Class is concerned, out of 27 Corporations, 26 Corporations excluding newly created Panvel Corporation were already reserved for Backward Class in the earlier years.
  • As such, the State excluded the 7 Corporations which were immediately reserved for the Backward Class and also excluded the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes in the present draw of lots.
  • Coincidentally, in the draw of lots, Dhule Municipal Corporation was one of the 7 Corporations which got to be reserved for the Backward Class.

The Court, hence, held that such a situation is bound to occur in view of the difference in number of seats, reserved for Scheduled Castes and Backward Class of Citizens.

“If the interpretation as placed is to be accepted then unless the post of Mayor is reserved for Scheduled Tribes in all the Corporations to complete the rotation, it will not be possible to provide reservation for the categories which were already reserved earlier.  However, it could be seen that as per the Rules, only 9 Corporations could be reserved for Scheduled Tribes.”

[Sanjay Ramdas Patil v. Sanjay, 2021 SCC OnLine SC 650, decided on 01.09.2021]


[1] “19. Mayor and Deputy Mayor

(1) …

(1A) There shall be reservation for the office of the Mayor   in   the   Corporation,   by   rotation,   for   the Scheduled   Castes,   the   Scheduled   Tribes,   women and   the   Backward   Class   of   citizens,   in   the prescribed manner.”


Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearances before the Court:

For appellants: Senior Advocate Meenakshi Arora and Advocate Braj Kishore Mishra

For the State of Maharashtra: Advocate Sachin Patil

For Respondent: Advocate Nishant Ramakantrao Katneshwarkar

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has held that such persons whose place of origin/domicile on or before the appointed day i.e. 15th November, 2000 was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Bihar Reorganisation Act, 2000 can claim the benefit of reservation for participation in public employment in either of the successor State of Bihar or State of Jharkhand. Reservation can, however, not be claimed in both the States simultaneously.

What was the case about?

  • The Court was dealing with the case wherein the appellant’s father originally belonged to District Patna in the State of Bihar but as alleged, the appellant was born on 27th November, 1974 in Hazaribagh where his father was residing which earlier was part of the unified State of Bihar but after the Bihar Reorganisation Act, 2000 came into force from the appointed day, i.e. 15th November 2000, District Hazaribagh became part of the successor State of Jharkhand.
  • It was his case that he was born & brought up and took his education within the territory which is now in the State of Jharkhand.
  • He belongs to Scheduled Caste category and a certificate was issued by the competent authority in the State of Jharkhand.
  • He was appointed on the post of Assistant Teacher on 21st December, 1999 and posted in a school in Ranchi, the capital of Jharkhand against the post reserved for SC category and pursuant to the cadre revision on bifurcation of the States, he opted the State of Jharkhand.
  • He then appeared as a member of SC category in the third Combined Civil Services examination, 2008 and cleared the preliminary, as well as main examination followed with an interview and the final result was published in the year 2010 and his name appeared at Sl. No. 5 against 17 vacancies reserved for Scheduled Caste category.
  • However, his appointment order was withheld on the ground that he is permanent resident of District Patna in the State of Bihar and hence, is to be treated as migrant to the State of Jharkhand.
  • In consequence, he was not eligible for appointment in Scheduled Caste category pursuant to his participation in the selection process held in the Combined Civil Services Examination, 2008.

It was argued by the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State.

The Court found this argument unsustainable in law and in contravention to the scheme of the Act 2000. The Court said,

“The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the 43 same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the emploees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.”

Holding that the appellant would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment, the Court said,

“It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.”

Key takeaways

  • Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.
  • A person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.

[Pankaj Kumar v. State of Jharkhand, 2021 SCC OnLine SC 616, decided on 19.08.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

The verdict came in the petition challenging the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said provision was inserted by Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 in order to nullify the effect of the Supreme court’s 2018 ruling in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243 which laid down the following guidelines:

 “(ii) there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

(iii) arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

(iv) to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

(v) any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.”

The said verdict was, however, was partially set aside by the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ in Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, wherein it was held that some portions of the Dr Subhash Kashinath verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.

Taking into account the 2019 verdict that reviewed the 2018 verdict, Justice Mishra, in his judgment, held that the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath verdict which no more prevails.

The Court, further, said that provisions of section 438 Cr.PC shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A(i) shall not apply. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters.

Justice Bhat, in his separate opinion, agreed with the views expressed by Justice Arun Mishra but added a caveat to it and said,

“while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law.”

He also said that it is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread social prejudices against members of these oppressed classes. He said that atrocities like forcing the eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of such communities and several other forms of humiliation, which members of such scheduled caste communities are subjected to, far outweigh the petitioners’ concern that innocent individuals would be subjected to what are described as arbitrary processes of investigation and legal proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available to those accused of committing offences under the Act; they remain unchanged by the enactment of the amendment.

He concluded his judgment with a poignant question that

“can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the “otherness” of each one’s identity.”

[Prathvi Raj Chauhan v. Union of India, 2020 SCC OnLine SC 159, decided on 10.02.2020]


Also read: 

Hot Off The PressNews

Supreme Court: A bench headed by Justice Dr, AK Sikri refused to stay the proposed amendments to the SC & ST (Prevention of Atrocities) Act, 1989 which restored the no anticipatory bail provision for the accused.

It said that the pending review petition filed by the Centre against the apex court’s March 20, 2018 verdict and the pleas challenging the new amendments made in the SC & ST verdict will be taken up together and referred the matter to the Chief Justice for reconstitution of a bench which Justice UU Lalit was a part of.

On March 20, 2018, the bench of AK Goel and UU Lalit, JJ acknowledged the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and said:

“the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties.”

The bench had held that an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. 

(With inputs from PTI)

Case BriefsHigh Courts

Madras High Court: The Single Judge Bench of S.S.Sundar, J. quashed the criminal complaint against BSNL employees who had put smiling emoji with tears in response to a video footage posted by the second respondent on the official WhatsApp group.

The second respondent (the applicant) posted a video footage of three customers expressing their grievance about the BSNL coverage on the official WhatsApp group which was intended to be used by the members for sharing of any innovative works or ideas for improving the quality of service of BSNL. The conversation was taken as an act to degrade the indoor staff by the petitioners who then along with few others have posted an emoji, namely, a smiling face with tears. They requested the members of SNEA by sending similar emojis in the ‘WhatsApp’ group to be shared by other members of the group. Annoyed by this, the second respondent filed the complaint under various provisions.

The Court said that when it is accepted that an emoji is sent to express one’s feeling about something, it cannot be treated as an overt act on others. It is a comment that may be intended to ridicule or to show one’s disapproval in a given context. Such emojis would not hit Section 67 of IT Act as its object is concerned with publication revealing an overt sexual interest or desire or encouraging an excessive interest in sexual matters. Further, the Court found that the act under consideration may offend the second respondent but it does not attract Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. As it was also not the case in the complaint that the smiley was intended to humiliate the second respondent for her being a member of SC/ST, the complaint under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 was not sustained. Court concluded that everyone has a right to express their feelings and share their idea. Every person has got indefeasible right to express what he feels. However, on Court’s insistence, the petitioners through an affidavit expressed their regret over posing of such smileys. After that Court decided that the matter should rest here and it will be neither in the interest of justice to permit such complaints to stay. [I. Linga Bhaskar v. The State through the Inspector of Police, CRL.O.P.(MD) No. 3110 of 2017 and Crl.M.P. (MD) Nos. 2366 and 6773 of 2017, order dated 05.06.2018]

Case BriefsSupreme Court

Supreme Court: The Vacation Bench comprising of Adarsh Kumar Goel and Ashok Bhushan JJ., allowed the Centre to go ahead with the reservation in promotion for employees belonging to the cadre of SC/ST in accordance to law.

Centre had stated various submissions for explaining their concern on the whole process of promotion being “standstill” due to the various orders passed by the High Courts and apex court.  The government also cited the cases on the issue of quota in promotion in government jobs by placing the apex court’s decision in M Nagaraj v. Union of India, (2006) 8 SCC 212  would be applicable, as in reference to the said case, creamy layer concept cannot be applied to the ST/SC for promotions as decided in the verdict of Indra Sawhney v. Union of India; 1992 Supp (3) SCC 210 and E.V Chinnaiah v. State of A.P; (2005) 1 SCC 394.

ASG Mahinder Singh also referred to an order passed on May 17th in which it was said that “pendency of petition before it shall not stand in the way of the Centre taking steps for the promotion”. He also mentioned Article 16 (4A) of the Constitution, which enabled the state to provide reservation in matters of promotion to SC/ST which in its view was not effectively represented for services.

By a decision of the Supreme Court in M Nagaraj v. Union of India (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4A) and (4B) was upheld.
Subsequent to the pronouncement of law in M Nagaraj, there were decisions by the Supreme Court stating that the government could not blindly provide for reservation in promotions, in favour of SCs and STs unless, prior thereto, the requisite exercise, to acquire quantifiable data regarding lack of representation of SCs and STs in public services was undertaken.

On noting the Delhi High Court verdict of August 23, 2017, in which the government was restrained from granting any reservation, in promotion to SC/ST, in exercise of the power conferred by Article 16 (4A) of the Constitution, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, the instant petition was filed and till any further decision of the Constitution bench, as per law permission has been granted in regard to the promotions. [State of Maharashtra v. Vijay Ghogre, 2018 SCC OnLine SC 589, order dated 05-06-2018]