Gopal Prasad Gupta vs State Of U.P. And 3 Others

Petitioner in person states that he has disengaged his counsel and seeks leave to address in person.

Leave granted.

Claiming himself to be a social worker employed in social work, though it is a different matter that he has not disclosed the nature of social work in which he is engaged. Be that as it may. The grievance raised by the petitioner is against reservation of 39 seats of Pradhan and one seat of Block Pramukh in favour of Scheduled Tribes in District Kushinagar, despite there being no population of Scheduled Tribes. In that event it is urged that the seats are to be de-reserved.

Petitioner has relied on the Communication by the District Magistrate, Kushinagar addressed to the Principal Secretary, Panchayat Raj State of Uttar Pradesh. The said Communication as evident therefrom, is in context to State Government Letter No.1189/ पंचायत -7/ निर्वाचन /2015-16/dated 27.08.2015 as to reservation of seats in favour of Scheduled Tribes in Three Tier Panchayat General Election 2015. However, the Communication which is relied by the petitioner, does not disclose the date and endorsement number which creates a doubt as to whether the said communication was ever entered into.

Be that as it may. The reservation in favour of the Scheduled Tribes in Panchayats is by virtue of Article 243-D of the Constitution, which mandates that there shall be seats reserved for Scheduled Tribes in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Tribes in that Panchayat area bears to the total population of that area. Further more, clause (4) of Article 243-D further mandates that "the offices of the Chairpersons in the Panchayats at the Village or any other level shall be reserved for the Scheduled Tribes in such manner as the Legislature of a State may, by law, provide." The first proviso to Clause (4) of Article 243-D provides for that the number of offices of Chairpersons reserved in Panchayat at each level shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Tribes in the State bears to the total population of the State.

In consonance with the Constitutional mandate, the State of Uttar Pradesh besides inserting Chapter III-A substituted Section 11-A by U.P. Act No.9 of 1994 in the U.P. Panchayat Raj Act, 1947. That while sub-section (1) of Section 11-A provides for that there shall be a Pradhan of Gram Panchayat, who shall be the Chairperson thereof; sub-section (2) provides for that the State Government shall, by order, reserve offices of Pradhan for the Scheduled Castes, Scheduled Tribes and the Backward Classes. First proviso whereof mandates that, the number of offices of Pradhans reserved for the Scheduled Tribes in the State shall bear, as nearly as may be, the same proportion to the total number of such offices as the population of the Scheduled Tribes in the State bears to the total population of the State. Significantly, the proportion of reservation shall, as nearly as may be, the same as the population in the States bears to the total population of Scheduled Tribes in the State.

That the State of U.P. in exercise of the power under Section 110 of the United Provinces Panchayat Raj Act, 1947 read with sub-section (5) of Section 11-A and Clause (a) and Clause (c) of sub-section (5) of Section 12 of the said Act framed Rules, viz, Uttar Pradesh Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994; making provisions for number of seats and offices to be reserved, allotment of seats and offices by rotation.

That Rule 3 of the Rules, 1994 mandates that in computing the number of seats or offices of Pradhans to be reserved for the Scheduled Tribes, the Scheduled Castes or the Backward Classes in accordance with the provisions of sub-section (5) of Section 12 or sub-sections (2) and (4) of Section 11-A of the Act, if the remainder is not less than half of the divisor, the quotient shall be increased by one, and if the remainder is less than half of the divisor, it shall be ignored, and the number so arrived at shall be the number of seats or offices of Pradhans to be reserved for the Scheduled Tribes or the Scheduled Castes or the backward classes, as the case may be.

A fair reading of provision contained in Article 243-D of the Constitution of India and Section 11-A (2) and Rules 3, 4 & 5 of the Rules, 1994 categorically provides for that the number of offices of Pradhans reserved for Scheduled Castes shall bear, as nearly as may be, the same proportion to the total number of such offices as the population of Scheduled Tribes in the State bears to the total population of State.

The expression "as nearly as may be" as it appear in Article 316 (1) of the Constitution came up for consideration before the Supreme Court in Jai Shankar Prasad Vs. State of Bihar and Others, (1993) 2 SCC 597. Dwelling on the scope thereof their Lordship observed that:

"9.......the expression "as nearly as may be" itself suggest that the proportion of 50% of the service members is not exact but approximate and is meant not to be mandatory but directory. The said proviso does not, in terms, say that in no case and at no point of time, the said proportion should either go above, or fall below 50%. In the very nature of things, a strict adherence to the said direction is not practicable at any particular point of time............At any given point of time, therefore, it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution........."

In the case at hand it is borne out from records that there are 14 Development Blocks in District Kushinagar with 1003 Gram Panchayats. In these Gram Panchayats the distribution/reservation of seats in favour of Gram Pradhan belonging to Scheduled Tribes categories is as under:

'पंचायती राज निदेशालय, उत्तर प्रदेश ग्राम पंचायत सामान्य निवार्चन 2021-विकास खण्डवार प्रधान पद का आरक्षण जनपद की क्र.सं जनपद विकास खण्ड का नाम ग्राम पंचायत की संख्या आरक्षित पदों की संख्या अनुसूचित जनजाति स्त्री अनुसूचित जनजाति योग कुशीनगर पडरौना दुदही सेवरही तमकुही फाजिलनगर कसया हाटा सुकरौली मोतीचक कप्तानगंज रामकेला नेबुआनौरंगिया खडडा विशुनपुरा that seats shall be reserved for the Scheduled Castes and t1 योग These seats in favour of the Scheduled Tribes were reserved prior to the 2015 Election as per the statutory provisions. It is borne out from the communication relied on by the petitioner that the reservation of seats is based on the population of Scheduled Tribes in District Kushinagar as per Census 2011 being 76963. The petitioner though has relied on the undated communication stating that there is no population of Scheduled Tribes in District Kushinagar. However, careful reading of the communication reveals that the District Magistrate has based his observation on the reports from respective Sub Divisional Magistrate which in turn is based on the issuance of caste certificate. Referring to the Government Order No.111 भ0स0/26.3.2003-3(7)/2003 लखनऊ दिनांक 3.7.2003 and Government Order No.330- सी0एम0ण्/26.3.2006-3-28/73 दिनांक 03 जनवरी, 2007 whereby as per the District Magistrate only 13 Districts find mentioned where there exist Scheduled Tribes population and the caste certificate is issued. The District Magistrate further observed that as the District Kushinagar does not find mention therein; therefore, he expressed the difficulty for reservation in favour of Scheduled Tribes in three tier Panchayat General Election. Evidently, the letter is in context to the Three Tier Panchayat General Election 2015-16. It is however not clear whether the said letter was ever communicated because the letter is undated and there is no endorsement thereon. The petitioner has not disclosed in the petition as to the source from where he obtained the said letter. Be that as it may; it appears that the Three Tier Panchayat General Election 2015-16 were held with reservation in favour of Scheduled Tribes and the same is adopted for Gram Panchayat General Election 2021. In absence of cogent material document to belie the contents of Census 2011 the presumption drawn by the District Magistrate Kushinagar on the basis of Government Order adverted supra, merely because the District Kushinagar is not mentioned therein, cannot be accepted. In view whereof no direction can be given to respondent to de-reserve 39 seats of Gram Pradhan for Scheduled Tribes in Gram Panchayat General Election 2021.

Consequently petition fails and is dismissed.

However, before parting with the matter we direct the District Magistrate, Kushinagar to cause an enquiry as whether the letter reliance whereof is placed by the petitioner was ever communicated. And if not, then take an action in accordance with law. Let the same be done within 30 days of the communication of this order and file the same. For reporting compliance list on 20th April, 2021.

Let the copy of this order be sent via E-mail to Collector Kushinagar forthwith.