Vishwanath vs The State of Karnataka and Others

Ashok B. Hinchigeri, J.—1. The petitioner who is one of the elected members of the Town Municipal Council, Jewargi, has the grievance over reserving the post of President of the said Urban Local Body (''ULB'' for short) for BCB-Woman. In that regard, he has challenged the notification, dated 24.02.2016 (Annexure-C).

Sri Ameet Kumar Deshpande, the learned counsel for the petitioner has raised a solitary but formidable contention that as per the proviso to Rule 13(5) of the Karnataka Municipalities (President and Vice-President) Election Rules, 1965 (for short the ''said Rules''), both the Offices of the President and Vice President cannot be reserved for women.

Sri R.V. Nadagouda, the learned Additional Advocate General appearing for the respondent Nos. 1 and 3 submits that reserving the Offices of both the President and the Vice President for women is impermissible going by the proviso to Rule 13(5) of the said Rules. He submits that the said proviso runs contrary to Article 14 of the Constitution of India.

Sri Veeranagouda, the learned counsel for the respondent No. 2 submits that in view of the commencement of the election process, this Court''s interference is not warranted.

The respondent No. 4 Town Municipal Council, Jewargi is served but has remained unrepresented.

Sri Ganesh Naik, the learned counsel for the impleading applicants in I.A. No. 2/2016 submits that all the three impleading applicants are women belonging to BCB. He submits that they are desirous of taking part in the election to the Office of the President based on the impugned notification. He submits that the ground now assiduously raised by the petitioner is not taken in the memorandum of the writ petition. He submits that throughout the State the elections have already taken place to the Offices of the President. Only in Jewargi the election is not conducted.

Sri R.S. Siddapurker, the learned counsel for the impleading applicant in I.A. No. 4/2016 submits that the impleading applicant is already elected as the Vice President of the ULB in question on 14.03.2016. Therefore, any change in reservation has to be only in respect of the Office of the President.

The impleading applicants in I.ANo.2/2016 are all the elected councilors of the ULB in question. It is also not in dispute that they are all women belonging to BCB for which category the Office of the President is reserved. If the impugned reservation is quashed, it cannot be said that it would not affect their interest adversely. They are thus proper and necessary parties for the adjudication of the issues falling for consideration in this case. I therefore allow I.A. No. 2/2016 directing the petitioner to arraign the impleading applicants as the respondent Nos. 5, 6 and 7 respectively. Similarly, the impleading applicant in I.A. No. 4/2016 is also permitted to be joined as one of the respondents. If this Court has to direct the Government to reserve one of the two posts for woman and if eventually the Government reserves the post of the Office of the President and de-reserves the Office of the Vice President or throws the Office of the Vice President to any other category, the interest of the impleading applicant would be effected. I therefore allow I.A. No. 4/2016. The impleading applicant in I.A. No. 4/2016 is to be arraigned as respondent No. 8.

Now I proceed to examine whether the Office of the President can be reserved for a woman, when the Office of the Vice President is also reserved for a woman (and based on the said reservation, a woman-councilor is already elected as the Vice President). Rule 13(5) of the said Rules reads as follows:

"(5) The offices of President and Vice-President reserved for women in each category referred in sub-rule (1) shall be allotted by the Government to the Municipal Councils, or as the case may be, Town Panchayats taking into consideration such factors as the Government may deem fit:

Provided that both the offices of President and Vice-President of the Municipal Council, or as the case may be, Town Panchayats shall not be reserved for women."

The perusal of the proviso to sub-rule (5) of Rule 13 of the said Rules makes it limpid that both the Offices of the President and Vice President of any ULB cannot be reserved for women. Because of the said legal prohibition, the reservation of both the Offices for women is not upholdable. On the short ground of violation of the proviso to Rule 13(5) of the Rules, I am quashing the impugned notification in so far as it pertains to the Office of the President of Jewargi Town Municipal Council. I would have considered directing the Government to take a decision in the matter as to whether the Office of the President or the Office of the Vice President is to be reserved for woman. However, in view of the holding of the election to the Office of the Vice President and the respondent No. 8 (impleading applicant in I.A. No. 4/2016) being elected as the Vice President, I do not propose to put the clock back by undoing her election. Now the Government is left with deciding as to for which category the post of the President has to be reserved or whether it has to be thrown open to the general category.

The reservation for the Offices of the President and Vice President is both horizontal and vertical. The said Offices are reserved for different categories like Scheduled Caste, Scheduled Tribes, BCA, BCB and in the said reservation, the prescribed reservation is given for women. This being the position, I do not see any justification for the retention of proviso to sub-rule (5) of Rule 13 of the Rules extracted hereinabove.

The controversy can be examined from another angle too. Women constitute 50% of the total population. There is no reason why both the Offices of President and Vice President should not be reserved for them. In my considered view, the legal prohibition in question is causing prejudice to women and causing gender injustice. The gender equality guaranteed under Article 14 of the Constitution of India does not appear to have weighed with the rule-makers. But then this Court scrupulously restrains itself from declaring the provision in question as unconstitutional, as no challenge is raised to the said proviso. Nor can this Court issue any direction to the Government to take the proviso off the rule-book. The legislating and rules-making fall within the province of the Government. It is for the Government to take a call on deleting the said proviso from the Rules.

I also feel it necessary to observe that the Government may take a decision in the matter as expeditiously as possible and if it laudably deletes the proviso, it can confirm the reservation of the Office of the President for woman and thereafter hold the election. If the Government is not in a position to take decision in the matter immediately, then the only alternative course open to the Government is to consider the representations of the concerned persons and decide whether the Office of the President has to be thrown open to the general category or to be reserved for a particular category.

Just because the calendar of events is issued, the impugned reservation cannot be acted upon, as it is per se illegal. Further, the writ petition is filed on 29.02.2016 possibly before the issuance of the calendar of events. The calendar of events is also issued on the same day. Though both the events have happened on the same day, the filing of the writ petition appears to be earlier in point of time, because the memo was moved at 10.30 itself for taking the matter at the end of the list on the same day.

Needless to observe that the petitioner and the private respondents are at liberty to file the representations to the State Government in that regard within three days from today.