(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this writ-petition, the writ-petitioners, two in number, one being a Sarpanch against whom a notice of 'no confidence' has been issued and the other, a citizen of India, who is a member of scheduled caste, have challenged the provisions of section 56 of the Gujarat Panchayat Act, 1993 ['the Act', hereinafter] as ultra vires the Constitution of India. The challenge is limited only to the case of a Sarpanch under the scheduled caste category elected in the reserved office of Sarpanch.
The case made out by the writ-petitioners may be summed up thus:
2.1 A notification for constitution of Kob Gram Panchayat was issued on December 10, 2011. Election notification and the programme for Gram Panchayat election were also issued on December 10, 2011. The petitioner No.1 contested the election for the office of Sarpanch of village Kob reserved for scheduled caste and he was declared duly elected.
2.2 For completing the constitution of Kob Gram Panchayat, a meeting of the Gram Panchayat was convened under the notice dated January 10, 2012. The petitioner No.1 being the Sarpanch, presided over the meeting, which was held on January 17, 2012, and one Bhimabhai Mensibhai Bambhaniya, the respondent No.1 herein, was elected as Up-Sarpanch. Thus, the procedure for the constitution of Kob Gram Panchayat was completed on January 17, 2012.
2.3 On January 18, 2012, the respondents No. 1 to 9 issued a notice of moving a motion of 'no confidence' under section 56(1) of the Act against the petitioner No.1 notwithstanding the fact that till then the petitioner No.1 had not performed any of the duties of the office of the Sarpanch. The said notice of 'no confidence' was issued just because the petitioner No.1 belonged to the scheduled caste and he was elected by the voters of village Kob as Sarpanch.
2.4 In such circumstances, the petitioners are compelled to challenge the validity of the provisions of section 56 of the Act and also the notice of motion of 'no confidence'. According to the petitioners, the said section, insofar as it applies to the case of reserved office of Sarpanch for scheduled caste, is inconsistent with and in derogation of the fundamental rights of the petitioners enshrined and guaranteed under Article 15(4) and also the provisions of Article 238D(4) of the Constitution of India.
Mr.
Parmar, the learned advocate appearing on behalf of the petitioners, laboriously contended before us that the provisions of section 56(1) of the Act, to the extent it dislodges the person belonging to the scheduled caste elected on a reserved seat as Sarpanch from the said office, is invalid being inconsistent and in derogation of the fundamental rights guaranteed under Article 15(4) of the Constitution of India.
3.1 Mr. Parmar further contended that Article 243D of the Constitution provides for reservation of seats and in consonance with such provisions, the office of Sarpanch of Kob Gram Panchayat was reserved. According to him, the Sarpanch having merely performed his mandatory duty of presiding over the first meeting called on January 17, 2012 for election of Up-Sarpanch, the issue of notice of 'no confidence' on the very next day by the respondents No.1 to 9 is violative of Article 243D of the Constitution of India.
3.2 Mr. Parmar further contends that the aforesaid provision of the Act defeats the constitutional scheme of reservation, and in support of such contention, Mr. Parmar relied upon the decision of the Supreme Court in the case of MADHAV RAO SCINDIA BAHADUR, ETC. vs. UNION OF INDIA reported in 1971(1)SCC
85. 3.3 Mr. Parmar further contends that the aforesaid provision is also violative of Article 21 of the Constitution of India.
Mr.
Jani, the learned Government Pleader appearing on behalf of the respondent-State, however, has opposed the aforesaid contentions of Mr.Parmar and contended that the aforesaid submissions of Mr. Parmar are not tenable in the eye of law. Mr. Jani points out that out of the twelve members elected, three belonged to scheduled caste and one of such persons of that category has also signed the notice of 'no confidence' against the petitioner No.1. Mr. Jani contends that the provisions of section 56(1) of the Act in no way contravenes any of the provisions of the Constitution, not to speak of Articles 15, 21 and 243D of the Constitution. Mr. Jani, therefore, prays for dismissal of the writ-application.
Therefore, the only question that arises for determination in this writ-application is whether the provisions contained in section 56(1) of the Act is violative of any of the provisions of the Constitution.
In order to appreciate the aforesaid question, it will be profitable to refer to section 56 of the Act, Article 15, 21 and 243D of the Constitution.
Section 56 of the Act reads as under:
"56.
Motion of no-confidence:--
Any member who intends to move a motion of no confidence against the Sarpanch or the Upa-Sarpanch may give notice thereof in the prescribed form to the panchayat concerned. If the notice is supported by one-half of the total number of members of the panchayat concerned, the motion may be moved.
Where in the case of Sarpanch, or as the case may be, the Upa-Sarpanch the motion is carried by a majority of not less than two-thirds of the total number of the members of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch, shall cease to hold office after a period of three days from the date on which the motion is carried unless he has resigned and the resignation has become effective earlier, and thereupon the office held by him shall be deemed to have become vacant.
Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch, or as the case may be, an Upa-Sarpanch, shall not preside over a meeting in which a motion of no confidence is discussed against him; but he shall have a right to speak or otherwise to take part in the proceedings of such a meeting (including the right to vote).
When the offices of both Sarpanch and Upa-Sarpanch become vacant simultaneously, such officer as the Taluka Development Officer may authorise in this behalf shall, pending the election of the Sarpanch, exercise all the powers and perform all the functions and duties of Sarpanch but he shall not have the right to vote in any meetings of the panchayat.
(5)(a) Nothwithstanding anything contained in section 91 or 95 a meeting of the panchayat for dealing with a motion of no confidence under this section shall be called within a period of fifteen days from the date on which the notice of such motion is received by the panchayat;
(b) If the Sarpanch fails to call such meeting, the Secretary of the panchayat shall forthwith make a report thereof to the competent authority and thereupon the competent authority shall call a meeting of the Panchayat within a period of fifteen days from the date of receipt of the report."
Article 15 of the Constitution reads as under:
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.--
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to--
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."
Article 21 of the Constitution provides thus:
"21.
Protection of life and personal liberty.--
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 243D of the Constitution reads as under:
243D.
Reservation of seats.--
Seats shall be reserved for--
(a) the Scheduled Castes; and
(b) the 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 Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State 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 Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.
After hearing the learned counsel for the parties and after going through the materials on record, we find that Section 56 of the Act gives power to the members of the Panchayat to bring notice of "no confidence" provided the conditions mentioned therein are satisfied. In the past, the aforesaid provision was challenged as ultra vires articles 14 and 19 of the Constitution before this court in the case of Thakore Gandaji chudaji and ors. Vs. Secretary, Indrad Gram Panchayat and others reported in 2002(2) GLR 959= 2000 (2) GLH 758 but this court held that the said provision does not violate those articles.
In the case before us, the contention of Mr. Parmar is restricted only to the question of right of the Sarpanch belonging to the Scheduled Caste Community on the ground that the said provision so far as it seeks to remove a Sarpanch belonging to the Scheduled caste community elected in a reserved seat is concerned, the same violates articles 15 and 243 D of the Constitution.
On perusal of those provisions, we do not find any force in the contention of Mr. Parmar. Those provisions do not confer any right to a Sarpanch elected in a reserved seat as a member of scheduled caste to remain in the post notwithstanding "no confidence" of the members as prescribed by law. In the case before us, there are other elected members of the community of the scheduled caste and one of them has signed the motion of "no confidence". Thus, if a Sarpanch, belonging to the Scheduled Caste community and elected in a reserved post, faces a motion of "no confidence" and the motion is ultimately proved to be successful, another person of that community would replace him. But either article 15 or article 243 D in no way protect a person belonging to scheduled caste community by giving immunity from facing the rigour of a motion of "no confidence". The Constitution has provided reservation of scheduled caste but has not given any immunity to a person elected from the said category from removal from the post even on the ground of "no confidence".
We now propose to deal with the decisions cited by Mr. Parmar in this connection.
Mr.
Parmar first relied upon the following observations of the Supreme Court in the case of H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and others etc., Petitioners v. Union of India reported in (1971) 1 SCC 85 at paragraph 117:
"There are many analogous provisions in the Constitution which confer upon the president a power coupled with a duty. We may refer to two such provisions. The President has under Articles 341 and 342 to specify Scheduled Castes and Scheduled Tribes; and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits, e. g.., reservation of seats in the House of the People, and in the State Legislative Assemblies by Arts. 330 and 332, and of the numerous provisions made in Schedules V and VI. It may be noticed that expressions 'Scheduled Castes' and 'Scheduled Tribes' are specially defined for the purposes of the Constitution by Articles 366 (24) and (25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration, the President will be destroying the constitutional scheme. The power to specify may carry with it the power to withdraw specification, but it is coupled with a duty to specify in a manner which makes the constitutional provisions operative."
In the case before us, we are not concerned with any case of power of withdrawal of any benefit conferred under the constitution, as was the case in the above matter before the Supreme Court. Thus, the said observations are of no avail to the petitioners in the case before us.
10.2 Mr. Parmar next relied upon the following observations of the Supreme Court at paragraph 43 in the case of Ashoke Kumar Gupta and another vs. State of U.P. and others reported in (1977) 5 SCC 201:
"It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or a class of posts depends upon the operation of the conditions of service. Article 16(4-A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as fundamental right where they do not have adequate representation consistently with the efficiency in administration. The Mandal case has prospectively overruled the ratio in Rangachari case i.e., directed the decision to be operative after 5 years from the date of the judgment; however, before expiry thereof, Article 16(4-A) has come into force from 17-6-1995. Therefore, the right to promotion continues as a constitutionally guaranteed fundamental right. In adjusting the competing rights of the Dalits and Tribes on the one hand and the employees belonging to the general category on the other, the balance is required to be struck by applying the egalitarian protective discrimination in favour of the Dalits and Tribes to give effect to the constitutional goals, policy and objectives referred to hereinbefore."
By relying upon the above observations, Mr. Parmar tried to convince us that the provisions contained in Section 56 is to be read in such a way that it strikes a balance in adjusting the rights of the scheduled caste by applying the egalitarian protective discrimination in favour of the scheduled caste to give effect to the constitutional goals. According to Mr. Parmar, by applying such principle, we should hold that by taking aid of section 56 of the Act, no Sarpanch elected in a reserved seat belonging to scheduled caste should be removed.
In our opinion, it will be preposterous to suggest that the object of the provisions contained in Articles 15 and 243 D is also to give immunity from facing the motion of "no confidence" to a Sarpanch belonging to the scheduled caste elected in the reserved post. We have already pointed out that in the event the motion succeeds, another elected member belonging to the scheduled caste community will replace the petitioner no. 1. We further find that article 21 of the Constitution is in no way involved.
We, therefore, find that those decisions do not come in aid of the petitioners in any way.
On consideration of the entire materials on record, we thus find no merit in this application and the same is dismissed. No costs.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.] FURTHER ORDER:
After this order is pronounced, Mr. Parmar, the learned advocate appearing for the petitioners prays for grant of leave to appeal to Supreme Court.
In view of what we have stated above, we find no reason to grant such leave. The prayer is refused.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.] Top