Hon'ble Kashi Nath Pandey, J.
1. The question in this case turns on, 'whether the persons shifted from the list of notified Scheduled Castes to the notified list of Scheduled Tribes, under the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 2002 (Act No. 10/2003), under Article 342 of the Constitution of India, can be deprived of their constitutional rights under Article 243-D, of proportional representation in Panchayat elections, on the ground, that their numbers for giving them representation for reservation in the seats of Chairpersons of village panchayats is not available with the State Government, from the Census 2001 figures; and whether any other empirical data can be relied upon to fulfil the constitutional mandate.'
2. We have heard Shri L.P. Singh; Shri P.K. Kashyap and Shri Vivek Saran for the petitioners. Shri Satish Chaturvedi, Additional Advocate General assisted by Shri Y.S. Bohra and Dr. Y.S. Srivastava for the respondents.
3. 'Pradeshiya Jan Jati Vikas Manch' a social service organization through its president Shri Munshi Prasad Gond, and 'Adiwasi Vikas Samiti' through its Secretary Shri Shrawan Kumar Gond, have filed these writ petitions in public interest for giving the ten castes and seven sub castes excluded from the Scheduled Castes, and included in the Scheduled Tribe by Act No. 10/2003, for which necessary Government Order was issued on 3.7.2003, the proportional representation due to them under Article 243D of the Constitution of India. They have also prayed for quashing the order dated 3.6.2010 passed by the Chief Secretary, Government of U.P. on the representation made by them in pursuance to the directions issued by this Court on 21.4.2010 in Writ Petition No. 20380/2010 to provide reservation in the panchayat elections at 2%, instead 0.06% in respect of the 13 districts as per population shown in Census 2001; for directions to the State Government to rely upon the empirical data collected by the Directorate of Scheduled Castes and Scheduled Tribes, New Delhi (if such data is not available in the Census 2001), and also for a writ of mandamus to provide reservation to the Scheduled Tribes on the basis of the Census 2001.
4. Shri Amartya Sen, in his celebrated work 'The Idea of Justice' Part IV 'Public Reasoning and Democracy': 16. 'The Practice of Democracy' p.348, writes:-
'Furthermore, we have to go beyond economic growth to understand the fuller demands of development and of the pursuit of social welfare. Attention must be paid to the extensive evidence that democracy and political and civil rights tend to enhance freedoms of other kinds (such as human security) through giving a voice, at least in many circumstances, to the deprived and the vulnerable. That is an important issue, and closely linked with democracy's role in public reasoning and in fostering 'government by discussion'.
5. The writ petitioners have claimed their constitutional right of representation to enhance their freedoms guaranteed to them by the Constitution of India, by the 73rd Amendment.
6. Brief facts giving rise to this writ petition are that after the bifurcation of the State of Uttar Pradesh by U.P. State Reorganization Act, 1999, the majority of Scheduled Tribes residing in the State of Uttranchal, were separated, reducing the number of their castes in the State of UP to five, and their population in the State of UP, according to Census 2001, at 0.06%. Their population in the State of Uttranchal (now Uttrakhand) increased from 2%, in the undivided State, to 3%.
7. Article 342 of the Constitution of India provides for Scheduled Tribes. The President may in respect of any State or Union territory after consultation with the Governor by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State. The Scheduled Castes and Scheduled Tribes Order (Presidential Order), included five castes as Scheduled Tribes in the State of Uttar Pradesh. Their population in Census 2001, and in the Government order dated 6.6.2005, issued for providing reservation to Scheduled Castes and Scheduled Tribes in Gram Panchayats, Kshetra Panchayats and Zila Panchayats was calculated at 107963 (0.06%) for the posts of Chairpersons (Pradhan) of Gram Panchayats. The Government Order dated 6.6.2005 for reservations in Panchayat elections 2005, identified 52006 seats for Pradhans, out of which the number of seats allocated for Scheduled Castes at 21.15% population was worked out at 10999. For Scheduled Tribes at 0.06% population on the basis of the five castes, included in the Presidential Order, the number of seats of Pradhans were worked out at 34. One-third of these, according to Article 243D, were reserved for the women, in the same proportion.
8. The Parliament passed Scheduled Castes and Scheduled Tribes (Amendment) Act, 2002 (Act No. 10/2003), taking out ten castes from the list of 66 Scheduled Castes, and added them in the list of Scheduled Tribes. The State Government issued a consequential Government Order dated 3.7.2003, including these ten castes, which were earlier included in the list of Scheduled Castes in the list of Scheduled Tribes relating to particular districts in the State of U.P. A list of these castes given in the Government order dated 3.7.2003 is as follows:-
"¼1½ xksaM] /kwfj;k] uk;d] vks>k] iBkjh] jktxksaM ¼egjktxat] fl)kFkZuxj] cLrh] xksj[kiqj] nsofj;k] eÅ] vktex<+] tkSuiqj] cfy;k] xkthiqj] okjk.klh] fetkZiqj ,oa lksuHknz tuinksa esa½ ¼2½ [kjokj] [kSjokj ¼nsofj;k] cfy;k] xkthiqj] okjk.klh ,oa lksuHknz tuinksa esa½ ¼3½ lgfj;k ¼yfyriqj ftys esa½ ¼4½ ijfg;k ¼lksuHknz ftys esa½ ¼5½ oSxk ¼lksuHknz tuin esa½ ¼6½ ia[kk] ifudk ¼lksuHknz ,oa fetkZiqj tuin esa½ ¼7½ vxfj;k ¼lksuHknz tuin esa½ ¼8½ iVkjh ¼lksuHknz tuin esa½ ¼9½ psjh ¼lksuHknz ,oa okjk.klh tuin esa½ ¼10½ Hkqb;k] Hkwfu;k ¼lksuHknz tuin esa½^^
9. It is important to note here that these castes were notified in respect of specified districts only, as their population is concentrated on the basis of the empirical data, which must have been collected, only in these districts.
10. Part IX and IXA were inserted in the Constitution of India providing for the Panchayats and Municipalities, by Constitution (Seventy-third Amendment) Act, 1992 to give effect to one of the directive principles of the State policy namely Article 40 of the Constitution to confer certain powers of local self government. It promises the duration of five years, for free and fair elections with representation of Scheduled Castes and Scheduled Tribes in the administration of institutions of local self government without any interference of other organs of the State. The historical 73rd Amendment brought into force on 24.4.1993, provided representation of the people in local governance at the gross root level, to empower them. The idea was to allow the people to participate in their welfare and development. Article 243-D provides and enables for the reservation of seats for Scheduled Castes and Scheduled Tribes, and mandates that in every panchayat 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 and by 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.
11. Article 243 (f) of the Constitution of India defines population as follows:-
"243(f) 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published'.
Article 243D provides:-
243D. Reservation of seats.--(1) 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.
12. Section 11-A, and 11-B, of the U.P. Panchayat Raj Act, 1947, were consequently amended by UP Act No. 9 of 1994.
13. One third of these seats are to be reserved for the women and that the duration of every panchayat is five years under Article 243-E. In case of Other Backward Classes, clause (6) of Article 243-D provides that nothing will prevent the Legislature of a State from making a provision for reservation of seats in any Panchayats or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.
14. The Census 2001 provided empirical data of the number of persons belonging to Scheduled Castes and Scheduled Tribes. There was no data available for Backward Classes and thus the State Government made the U.P. Backward (Determination and Publication of Number of Persons belonging to the Backward Classes) Rules, 1994, and collected data by rapid survey for giving reservation to such classes. In Census 2001, the data was collected and was available for the population of Scheduled Castes and Scheduled Tribes. Based upon the number of castes notified prior to Act No. 10/2003 the data of the number of persons of Scheduled Tribes was available at village, district and State level of the five castes included in the Scheduled Tribes by that time. The next census operations have begun but that the census figures of 2011, have not been complied, and published so far.
15. The Adiwasi Giriwasi Samiti Duddhi, District Sonbhadra and five others filed a Writ Petition No. 42996 of 2005 challenging clause 3.2 of the Government Order dated 4.5.2005 issued by Chief Secretary, Government of UP providing for reservation for Scheduled Castes/Scheduled Tribes in Panchayat elections of 2005. They had prayed for a rapid survey on the basis of shifting of ten castes from Scheduled Castes to Scheduled Tribes by Act No. 10/2003 and to provide them representation in the panchayat elections of the year 2005 under Article 243-D of the Constitution of India. A Division Bench of this Court dismissed the writ petition on July 25, 2005 on the grounds that there are no rules made by the State Government for such rapid survey. The data available in the last preceding Census in 2001 has to be taken into account for providing such proportional representation. The census did not provide the figures of castes or tribes, which were declared as Scheduled Castes, and Scheduled Tribes subsequently. The figures available were as a whole of all the castes races or tribes falling in the list of Scheduled Caste/Scheduled Tribe category. In other words the population figures of each caste or tribe falling in the respective schedule are not available in the Census 2001.
16. The Court further held that on count of changes in the population of Scheduled Tribes for the purposes of providing correct and adequate reservation under Article 243-D, the population figures as published by the Directorate of Tribal Development UP cannot be taken into account, nor any rapid survey be directed in the absence of rules such as in the case of backward classes and since no rules are framed for such rapid survey the Court would not issue a writ of mandamus. It was held that this Court in exercise of powers under Article 226 of Constitution cannot direct the state to make rules for rapid survey and determine the population of Scheduled Caste and Scheduled Tribe under the constitutional mandate contained in Article 243-E of the Constitution of India. The election process cannot be stalled on account of any such inaction. The Court also held that the right to be effected is a statutory right and that once notifications have been issued; in accordance with the N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency, (1952) SCR 218; Jagannath vs. Jaswant Singh and others, 1954 SCR 892, and Jyoti Basu and others vs. Debi Ghosal and others (1982) (1) SCC 691, the Court could not interfere in the matter.
17. A Special Leave Petition No. 17001-17003 of 2005 was filed against the judgment which is still pending in the Supreme Court. The Apex Court on 13.3.2007 declined to grant interim order in the SLP's and Writ Petition No. 363 of 2006, Vijay Singh Gond vs. Union of India, challenging the Act No. 10 of 2003, to allow the persons included in the ten castes and seven sub castes shifted as Scheduled Tribe to contest elections as Scheduled Caste candidate on variety of grounds namely that such persons are already getting benefit of Scheduled Tribes in appointment in public services and that allowing them to contest elections as Scheduled Castes will cause serious anomalies. The matter has not been heard so far.
18. The next panchayat elections in the State of UP are due in October, 2010. The petitioners have collected the data on the basis of the figures made available by Directorate of Scheduled Tribes, New Delhi and the Directorate of Scheduled Tribes, UP, and found that the inclusion of the ten casts by shifting them from Scheduled Caste to Scheduled Tribe by Act No. 10/2003 has added a population of 537623 to the already existing population of 107963 of Scheduled Tribes based on Census of 2001 of the five castes. The population of the Scheduled Tribes in the ratio of the total population of State has thus increased from 0.06% to 0.38%, according to which the reservation for Chairpersons in the panchayat elections has to increase correspondingly from 34 seats to 197 seats. The petitioners made representations to the State Government prior to the publication of the notification of reservation of seats in panchayat elections for Scheduled Castes and Scheduled Tribes. The representation dated 9.2.2010 was not decided on which the Pradeshiya Jan Jati Vikas Manch, UP and others filed the Writ Petition No. 20380/2010. The writ petition was disposed of on 21.4.2010 directing the State of UP through Chief Secretary (respondent no.1) to decide the representation by a reasoned and speaking order, within one month.
19. By the impugned order dated 3.6.2010 the Chief Secretary, Government of UP has decided and rejected the representation on the ground that in the Writ Petition No. 42996/2005 decided on 25.7.2005 the reservation for panchayat elections 2005 was upheld. The last count of population means the last census and accordingly the reservation has been provided in the Government Order dated 9.7.2010.
20. In substance it was held that the empirical data for giving reservation to the increased population of Scheduled Tribes after shifting ten castes from Scheduled Castes to Scheduled Tribes is not available. The reservation for 2% for Scheduled Tribes in the UP Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 is not appropriate reference for providing reservation to Scheduled Tribes in the panchayat elections.
21. In this background, we do not find that the petitioners were sleeping over their rights. The preliminary objection of laches, taken by Shri Satish Chaturvedi, Additional Advocate General that the petitioners have approached the High Court just before the elections, and after issuance of the Government Order dated 9.7.2010, providing for reservation for panchayat elections in the same ratio and number on which the reservations were provided in 2005, on the basis of Census 2001.
22. We have been called upon to decide whether the State Government can continue to ignore the social and political aspirations of the members of the ten castes, and seven sub castes which have been shifted from Scheduled Castes to Scheduled Tribes, and deny proportional representation to them in panchayat elections 2010. These persons are not being counted as Scheduled Castes, and though they have been given representation in the public service as members of Scheduled Tribe, they are deprived of the proportional representation in the panchayat elections. In fact they are not being counted and are treated as persona non-grata for the purposes of panchayat elections. Correspondingly the number of seats of Pradhans of Scheduled Caste have been increased by 197. It is submitted that the ruling party serving the interest of members of Scheduled Caste only, is not concerned and did not make any efforts in last five years to collect data of the number of persons of the ten castes included in the list of Scheduled Tribes in the year 2003. The Government is happy with the increase of 197 seats of Pradhan for the members of Scheduled Castes, disturbing the right of proportional representation.
23. Article 243 (f) defines 'population' for the purposes of Part IX to mean the population as ascertained at the last preceding census of which the relevant figures have been published. The definition needs to be interpreted to fulfill the rights and aspirations of 5,37,623 persons to be represented by 197 seats of village Pradhans, out of 51916, and the constitutional rights given to them by Article 243D.
24. In Ratanlal Nath vs. State of Tripura and others AIR 1997 SC 1075 the Supreme Court held in para-9 as follows:-
9. Let us first deal with the Delimitation Rules. The contention of the writ petitioner is that the provisions contained in proviso (ii) to sub-rule (3) of Rule 3 are inconsistent with the definition of the expression "population" in Clause (32) of Section 2 of the Panchayat Act as well as the definition of the said expression in Clause (f) of Article 243 of the Constitution and, therefore, incompetent. The reasoning which has appealed to the High Court is that inasmuch as the definition of "population" contained in the Constitution as well as in the Act means "the population as ascertained at the last preceding census of which the relevant figures have been published," the second proviso to sub-rule (3) of Rule 3 which provides for looking into some other records in the absence of census figures is outside the purview of the Act and the Constitution. We are unable to agree. Clause (f) of Article 243 of the Constitution defines the expression "Population" in the following words : "(f) Population means the population as ascertained at the last preceding census of which the relevant figures have been published." (Clause (32) of Section 2 of the Tripura Panchayat Act faithfully re-produces the said definition.) All that the first and second provisos to sub-rule (3) of Rule 3 of the Delimitation Rules provide is that where census figures are available that shall be the primary basis - indeed, it shall be the only basis - for determining the total population of a Panchayat, or for that matter, the population of the Scheduled Tribes and Scheduled Castes, as the case may be, but where the census figures are not available, the population figures shall be ascertained from the other relevant authenticated record. Similar provisions are contained in Rule 6 and Rule 8 relating to Panchayat Samities and Zilla Parishads respectively. The provisos do not say that even where the census figures are available, the authorities should go to other record. The provisos really provide for a situation where census figures are not available. The Rules are inspired by the objective that elections have to be held and it is with this objective that they have made the said provision. We are unable to see how the said provisos can be held to travel outside the purview of the Act. The Rules are made for carrying out the purpose of the enactment (Section 228(1) of the Act) and the purpose of the Act is to ensure the conduct of the elections. Indeed, Part-IX of the Constitution was amended in 1973 to ensure periodic and regular elections to Panchayats, which were not being held regularly in many States. Not only the said provisos are not inconsistent with the provisions of the Act and the Constitution, but they in fact further and advance the object underlying the Act and Part-IX of the Constitution. We must say that we find no proper or acceptable reasoning in the impugned judgment for striking down the said Rules.
25. In Dr. K. Krishna Murthy and others v. Union of India and anr JT 2010 (5) SC 601 a Constitution Bench, before proceeding to decide the questions with regard to the nature, and purpose of reservation under Article 243D, and its relation with Article 15(4) and Article 16(4), and whether the 50% rule will apply to the post of chairperson, gave the overarching scheme of Article 243-D and 243-T as follows:-
5. The overarching scheme of Article 243-D and 243-T is to ensure the fair representation of social diversity in the composition of elected local bodies so as to contribute to the empowerment of the traditionally weaker sections in society. The preferred means for pursuing this policy is the reservation of seats and chairperson positions in favour of Scheduled Castes (SC), Scheduled Tribes (ST), women and backward class candidates.
Article 243-D(1) and Article 243-T(1) are analogous since they lay down that the reservation of seats in favour of SC and ST candidates should be based on the proportion between the population belonging to these categories and the total population of the area in question. Needless to say, the State Governments are empowered to determine the extent of such reservations on the basis of empirical data such as population surveys among other methods, thereby being guided by the principle of `proportionate representation'.
Article 243-D(2) and Article 243-T(2) further provide that from among the pool of seats reserved for SC and ST candidates, at least one-third of such seats should be reserved for women belonging to those categories. Hence, there is an intersection between the reservations in favour of women on one hand and those in favour of SC/STs on the other hand.
With respect to reservations in favour of women, Article 243- D(3) and Article 243-T(3) lay down that at least one-third of the total number of seats in the local bodies should be reserved for women. On the face of it, this is an embodiment of the principle of `adequate representation'. This idea comes into play when it is found that a particular section is inadequately represented in a certain domain and a specific threshold is provided to ensure that this section of the population comes to be adequately represented with the passage of time.
With regard to chairperson positions, Article 243-D(4) and Article 243-T(4) enable State legislatures to reserve these offices in favour of SC, ST and women candidates. In the case of panchayats, the first proviso to Article 243-D(4) states that the aggregate number of chairperson positions reserved in favour of SC and ST candidates in an entire state should be based on the proportion between the population belonging to these categories and the total population. With all the chairperson positions at each level of the panchayats in an entire State as the frame of reference, the second proviso to Article 243-D(4) states that one-third of these offices should be reserved for women. The third proviso to Article 243-D(4) lays down that the number of chairperson positions reserved under the said clause would be allotted by rotation to different panchayats in each tier. This rotational policy is a safeguard against the possibility of a particular office being reserved in perpetuity. It is pertinent to note that unlike the reservation policy for panchayats, there are no comparable provisos to Article 243-T(4) for guiding the reservation of chairperson positions in Municipalities. This is a notable distinction between the otherwise analogous schemes prescribed in Article 243-D and Article 243-T.
It is also pertinent to take note of Article 243-D(5) and Article 243-T(5), both of which provide that the reservation of seats and chairperson positions in favour of SC and ST categories would operate for the period contemplated under Article 334. It must be stressed here that there is no such time-limit for the reservations made in favour of women, implying that they will operate in perpetuity.
Article 243-D(6) and Article 243-T(6) contemplate the power of State Legislatures to reserve seats as well as chairperson positions in favour of a `backward class of citizens'. Unlike the fore-mentioned provisions that deal with reservations in favour of SC, ST and women candidates, Article 243-D(6) and Article 243-T(6) do not explicitly provide guidance on the quantum of reservations. In the absence of any explicit criteria or limits, it can be assumed that reservation policies contemplated under Article 243-D(6) will ordinarily be guided by the standard of proportionate representation.
6. In light of the submissions that have been paraphrased in the subsequent paragraphs, the contentious issues in this case can be framed in the following manner:
(i). Whether Article 243-D(6) and Article 243-T(6) are constitutionally valid since they enable reservations in favour of backward classes for the purpose of occupying seats and chairperson positions in Panchayats and Municipalities respectively?
(ii). Whether Article 243-D(4) and Article 243-T(4) are constitutionally valid since they enable the reservation of chairperson positions in Panchayats and Municipalities respectively?
In para 33 the Supreme Court said:-
"33. It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level on the other hand. While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local-self government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society.............."
26. The Supreme Court thereafter answered and concluded as follows:-
48. In view of the above, our conclusions are:-
(i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Articles 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self-government. Even when made, they need not be for a period corresponding to the period of reservation for purposes of Articles 15(4) and 16(4), but can be much shorter.
(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the State Legislations.
(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State Legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of `backward classes' under Art. 243- D(6) and Art. 243-T(6) should be distinct from the identification of SEBCs for the purpose of Art. 15(4) and that of backward classes for the purpose of Art. 16(4).
(iv) The upper ceiling of 50% vertical reservations in favour of SC/ST/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.
(v) The reservation of chairperson posts in the manner contemplated by Article 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment.
49. With these observations, the present set of writ petitions stands disposed of."
27. The census is defined in Webster's New Collegiate Dictionary as follows:-
"census 1: a count of the population and a property evaluation in early Rome. 2: a complete enumeration of a population: specify: a periodic governmental enumeration of population 3"
28. The Concise Law Dictionary by P. Ramanatha Aiyer defines 'census' as an official enumeration of the inhabitant of the State or country with details of sex, age, family, occupation, possession etc. It is the official numbering of the people of a country or district.
29. The Supreme Court in Ratanlal Nath's case(supra) and Dr. K. Krishna Murthy's case (supra) has clearly held that where the census figures are not available, the State can rely upon other empirical data; if Rules have been made to that effect, inspired by the objectives; that the elections must be held and that proportional representation should be provided. The data so collected can be relied upon to provide representation.
30. Shri Satish Chaturvedi, Additional Advocate General submits that the word 'census' in Article 243 (f) means the census as carried out by the Central Government every ten years under the Census Act 1948, and no other data can substitute the official figures published in the census. He would submit that this Court has already interpreted census to mean the census carried out by the Central Government and that this Court should not readily accept any other interpretation. The Assistant Director, Directorate of Census Operations, Uttar Pradesh, Government of India, Ministry of Home Affairs, Lucknow has informed the Director of Panchayati Raj Lucknow, on 24th August 2010, that castewise figures of SC/ST have been published and made available on C.D., at State, and District level. The village wise figures of castes of SC/ST are not available. He would also submit that in the year 2005 this Court had repelled the same challenge in Writ Petition No. 42996/2005 decided on 25.7.2005. A Special Leave Petition against the judgment is pending in which there is no interim order. Shri Chaturvedi submits that by Government Order dated 9.7.2010 the programme for identifying the number of seats for the Pradhans block-wise by preparing charts were notified. The exercise started on the notified dates from 16th July, 2010 to 26th July, 2010. The proposal was prepared from 1st August, 2010 to 9th August, 2010 and the lists were published from 10th August, 2010 to 12th August, 2010. The objections were invited and were required to be considered by a Committee under the Chairmanship of the District Magistrates from 19th August 2010 to 20th August, 2010 and the final list has been published in the last week of August, 2010 upto 23.8.2010 of which the information has been made available to the Directorate of Panchayati Raj, and District Election Officers (Panchayats) by 22nd August, 2010. Any interference by the Court at this stage will cause chaos and will amount to interference in the elections.
31. The census is carried out every ten years by the Central Government under the Census Act, 1944 to count the population for its proper evaluation. The collection of empirical data in census is taken into account for various purposes. One of the purpose to collect such data is to give proportional representation to the people of the country in the elections at various levels. The non-availability of the accurate data of each caste cannot, however, be a ground to either delay elections or deny the constitutional rights of proportional representation to the citizen of the country.
32. The persons belonging to Scheduled Tribes have not yet come out of the levels of poverty, and are still vulnerable. Even after 63 years of independence and economic development, they are still fighting for their rights. We find it extremely unjust and harsh for the State Government to further deprive them of their civil and political rights, on flimsy ground such as the non-availability of the caste wise data on which they should be given proportional representation in the panchayat elections. No such defence was taken for backward classes in 1994, when the State Government made rules for determination of their numbers, and to count the heads of 27% of the total population of the State; seven years ahead of census 2001.
33. In the year 2005 the members of the Scheduled Tribes, who have moved from the list of Scheduled Castes to Scheduled Tribes, had prayed for rapid survey and to give them proportional representation in the elections. The Court did not accept the prayers on the ground that there were no rules to support the directions and that they had approached the court just before the elections defeating their claim. It is difficult to accept the same plea taken by the State again after five years. The State was fully aware that the panchayat elections will be due after five years in 2010. The State machinery kept quite and did not take any steps to collect the empirical data which could easily be made available as the Scheduled Tribes, claiming their rights, are concentrated only in a few districts. It is difficult for us to believe that the State Government collecting grants from the Central Government, and providing for social welfare measures for the Scheduled Tribes in the State is not in possession of any authentic data of the population for which the grants are received. The Directorate of Tribal Development, New Delhi and the Directorate of Tribal Development at Lucknow are looking after the welfare of the Scheduled Tribes. They must have the data available for distributing the benefits under the welfare schemes and for which crores of rupees are spent from out of the grants allocated every year.
34. The petitioners have obtained the details of the data collected in Census 2001 under (The) Right to Information Act, 2005. The data demonstrates that in Census 2001 caste-wise population figures were collected. The figures of each caste of Scheduled Castes and Scheduled Tribes were collected and are available with the State Government, district-wise. A perusal of these figures would show that in the Census 2001, the figures related to each caste including those castes, which have been shifted from the list of Scheduled Castes to Scheduled Tribes was collected. The State wise and District wise data could not have been compiled unless the census provided for data both village wise and block wise. For example the population of 'Gond' in State was given Code-09, District Code-00, Caste Code-036 for Uttar Pradesh. For 'Gond' caste, which is now included in the Scheduled Tribes, the figures were collected and are available in Census 2001, block-wise and district-wise. The submission of Additional Advocate General that these figures are not available village-wise to give proportional representation in the panchayat area in the proportion that it bears to the total population of that area, is factually incorrect.
35. We find it difficult to believe that the constitutional right of proportional representation in panchayat elections can be defeated on the ground that the empirical data of population, though available, caste-wise both for Scheduled Castes and Scheduled Tribes for every block and district, cannot be used for determining the seats for the ten castes included in Scheduled Tribes. The State Government by its inaction has deprived 537623 persons the right of representation at the grassroots level.
36. The right of proportional representation of a particular number of persons belonging to the castes included in the Scheduled Tribe is different than the right to contest the elections. Whereas the right of proportional representation is a constitutional right, right to contest election is a statutory right to be exercised in the manner in which it is provided for in the Statute. In the present case, the petitioners are demanding the right of proportional representation, which is a constitutional right, and which cannot be defeated on the ground of non-compilation of the available empirical data.
37. The difficulty posed by Shri Satish Chaturvedi, Additional Advocate General in giving proportional representation at this stage when the number of seats for the pradhans have been finalised, need not stand in the way of the fulfillment of the constitutional rights of the petitioners. It was for the State to frame appropriate Rules, and to make efforts to give the representation to the persons representing these ten castes.
38. The Writ Petitions are allowed. A writ of mandamus is issued to the respondents to provide proportional representation to the members of the Scheduled Tribes, who were shifted from the list of Scheduled Castes to Scheduled Tribes, by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 2002 (Act No. 10/2003), with consequential Government Order dated 3.7.2003, under Article 243-D, of the Constitution of India. The State government is directed to revise or modify the final list of reservation of the seats of Chairpersons (Pradhans) of the village panchayats in the districts in which the members of these Scheduled Tribes are concentrated. The State Government will correspondingly reduce the number of seats of the Chairpersons (Pradhans) allocated to the notified Scheduled Castes.
39. The petitioners will be entitled to the costs of the writ petitions from the respondents.
Dt.16.9.2010 RKP/