Scheduled caste reservation for the post of Mayor in a Municipal Corporation cannot be in violation of the rotation principle: Bombay High Court
Repeating the reservation criteria for backward classes for the post of Mayor in a Municipal Corporation is a violation of the rotation principle. A division bench comprising of Justice Ujjwal Bhuyan and Justice MG Sewlikar while adjudicating the matter in Shri Sanjay v. State of Maharashtra [WRIT PETITION NO.14440 OF 2019]; dealt with the issue of eligibility criteria in a Municipal Corporation. Petitioner belongs to the scheduled caste category and his caste certificate was validated by the caste scrutiny committee. He is a social worker as well as a political activist having been elected as Councillor of Dhule Municipal Corporation for several terms. Though the petitioner belonged to the scheduled caste, he contested the election from the general category and got elected as a candidate belonging to the Bhartiya Janata Party. Petitioner has stated that he is an aspirant for the office of Mayor of Dhule Municipal Corporation. In the latest notification that was issued by Government of Maharashtra, it was stated that the office of Mayor in the Dhule Municipal Corporation for the term commencing from about June, 2021 as per impugned notification, should have been earmarked for the scheduled caste category and could not have been earmarked for backward class category because already the office of Mayor in the Dhule Municipal Corporation was earmarked for the backward class category in 2006 and in 2014. Till date, there has been no reservation for the scheduled caste category. The petitioner sought quashing of such a notification issued by the Maharashtra Government and further sought a direction to the respondents to reserve the office of Mayor in the Dhule Municipal Corporation for scheduled caste category.
 on 10 05 2021 on 22 03 1907 WP 14440 19.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO.14440 OF 2019Shri. Sanjay S o Sudhakar JadhavAge: 43 years Occu: Agriculture R o: Siddharth Nagar Chitod Road Dhule District Dhule.… PetitionerVersus1. State of Maharashtra Through its Principal Secretary Urban Development Department Mantralaya Mumbai 32.2. Joint Secretary to the Government Urban Development Department Mantralaya Mumbai 32.3. Additional Secretary Urban Development Department Mantralaya Mumbai 32.4. Collector Dhule District Dhule.5. State Election Commission Maharashtra State Mumbai.6. Commissioner Dhule Municipal Corporation Dhule District Dhule. … Respondents…Mr. P. R. Katneshwarkar h f Mr. Yogesh B. Bolkar and Vishnu B. MadanPatil Advocate for Petitioner.Mrs. M. A. Deshpande AGP for Respondent Nos.1 to 4Mr. Ajit B. Kadethankar Advocate for Respondent No.5 Mr. Amol S. Sawant Advocate for Respondent No.6 … CORAM : UJJAL BHUYAN & M. G. SEWLIKAR JJ. DATE : 7th May 2021 on 10 05 2021 on 22 03 2907 WP 14440 19.odtJUDGMENT: 1.Heard Mr. Katneshwarkar learned counsel for the petitioner Mrs. M. A. Deshpande learned Additional Government Pleader forrespondent Nos.1 to 4 Mr. A. B. Kadethankar learned counsel forrespondent No.5 and Mr. Amol Sawant learned counsel for respondentNo.6.2.This matter was heard on 05.05.2021 and today is fied fordelivery of judgment.3.By fling this petition under Articles 226 and 227 of theConstitution of India petitioner seeks quashing of notifcation dated27.11.2019 issued by the Government of Maharashtra in the UrbanDevelopment Department in respect of Dhule Municipal Corporation at Sr.No.22 of the schedule thereto and further seeks a direction to therespondents to reserve the ofce of Mayor in the Dhule MunicipalCorporation for scheduled caste category.4.Facts are not in dispute and lies within a narrow compass.However for a proper adjudication of the lis those are briefy narratedhereunder.5.Petitioner belongs to the scheduled caste category and hiscaste certifcate was validated by the caste scrutiny committee. He is asocial worker as well as a political activist having been elected asCouncillor of Dhule Municipal Corporation for several terms. on 10 05 2021 on 22 03 3907 WP 14440 19.odt6.Elections to the Dhule Municipal Corporation were held on09.10.2018. Dhule Municipal Corporation comprises of 74 Councillors.The category wise breakup of the 74 seats are as under : 5 seats to be elected from scheduled caste category scheduledcaste women category. 7 seats to be elected from scheduled tribe category scheduled tribe women category. 20 seats to be elected from backward class category backward class women category. 42 seats to be elected from general category general women category.7.Though belonging to the scheduled caste petitionercontested the election from ward No.15 C which was earmarked for thegeneral category and got elected as a candidate belonging to theBharatiya Janata Party. Petitioner has stated that he is an aspirant for theofce of Mayor of Dhule Municipal Corporation.8.Presently the incumbent in the ofce of Mayor has beenelected from the general category. By the impugned notifcation dated27.11.2019 the ofce of Mayor of Dhule Municipal Corporation for theneit term of 2.5 years has been earmarked for backward class of citizens.According to the petitioner the ofce of Mayor in the Dhule MunicipalCorporation for the neit term commencing from about June 2021 shouldhave been earmarked for the scheduled caste category. It is stated thatin the year 2003 the ofce of Mayor in Dhule Municipal Corporation waskept as an open category. By the government notifcation dated on 10 05 2021 on 22 03 4907 WP 14440 19.odt23.06.2006 for the neit term the ofce of Mayor of the said Corporationwas earmarked for the backward class category. By the neit governmentnotifcation dated 07.05.2008 the said ofce was again kept as an opencategory. Thereafter by the notifcation dated 24.11.2009 the ofce ofMayor was earmarked for the scheduled tribe category. For the neitterm State Government issued notifcation dated 26.4.2012 keeping theofce of Mayor in the said Corporation for the open category. In thenotifcation published on 26.08.2014 the ofce of Mayor for DhuleMunicipal Corporation for the neit term was earmarked for backwardclasscategory. Finally by the notifcation dated 27.03.2017 theofce of Mayor in Dhule Municipal Corporation was earmarked for opencategory. It is in that background a contention has been raised that theofce of Mayor in the Dhule Municipal Corporation for the termcommencing from about June 2021 as per impugned notifcation dated27.11.2019 should have been earmarked for the scheduled castecategory and could not have been earmarked for backward classcategory because already the ofce of Mayor in the Dhule MunicipalCorporation was earmarked for the backward class category in 2006 andin 2014. Till date there has been no reservation for the scheduled castecategory. 9.Hence the present challenge. 10.Respondent no.1 has fled an afdavit in reply justifyingearmarking of the ofce of Mayor in Dhule Municipal Corporation for thebackward class category as per notifcation dated 27.11.2019. on 10 05 2021 on 22 03 5907 WP 14440 19.odt11.While learned counsel for the petitioner has elaboratelyreferred to the provisions of article 243 T of the Constitution of India section 19(1A) of the Bombay Provincial Municipal Corporation Act 1949(since renamed as Maharashtra Municipal Corporations Act) Rule 3 ofthe Maharashtra Municipal CorporationsRules 1994 as well as Rule 3 of the Maharashtra MunicipalCorporationsRules 2006 andcontends therefrom that as per rotation this time the ofce of Mayor in theDhule Municipal Corporation should have been earmarked for thescheduled caste category. In the course of his arguments he alsosubmitted that the ofce of Mayor should have been earmarked either forthe scheduled caste category or should have been kept in the opencategory.12.Insofar as earmarking of the ofce for open category isconcerned we do not fnd any such prayer in the writ petition.13.Learned counsel for the petitioner has placed reliance on thefollowing decisions in support of his contention:Division Bench judgment of the Bombay High Court in Writ PetitionNo.53806 Uday Khanderao Pawar Vs. State ElectionCommission decided on 03.10.2006Division Bench judgment of the Bombay High Court in Writ PetitionNo.63806 Prashant Bansilal Bamb Vs. State of Maharashtra decided on 09.02.2007 and on 10 05 2021 on 22 03 6907 WP 14440 19.odt(3) Single Bench judgement of the Karnataka High Court in Writ PetitionNo.382513 M Abdul Azeez Vs. State of Karnataka decided on06.01.2014.14.Mrs. Deshpande learned Additional Government Pleaderappearing for respondent nos.1 to 4 has supported the impugnednotifcation. She submits that present reservation in respect of ofce ofMayor in Dhule Municipal Corporation has been carried out in terms of theMaharashtra Municipal CorporationsRules 1994. In support ofher submissions she has referred to the averments made in the replyafdavit of respondent no.1 which we shall advert to in the course of thejudgment.15.Learned counsel for respondent nos. 5 and 6 submit thatthough the said respondents have no role to play in so far reservation inthe ofce of Mayor in the Dhule Municipal Corporation is concerned theywould like to support the stand taken by respondent nos. 1 to 4. Moreparticularly they would contend that while giving efect to the provisions ofMaharashtra Municipal CorporationsAct 1992 with efect from 01.06.1993. It on 10 05 2021 on 22 03 8907 WP 14440 19.odtdeals with the municipalities. As per Article 243Q there shall beconstituted municipalities in every State in accordance with the provisionsof Part IXA. In terms of Article 243Qthere shall be constituted inevery State a Municipal Corporation for a larger urban area in accordancewith Part IXA. Article 243T deals with reservation of seats. This articlebeing relevant the same is eitracted hereunder:“243T. Reservation of seats. Seats shall be reserved forthe Scheduled Castes and the Scheduled Tribes in everyMunicipality and the number of seats so reserved shall bear as nearly as may be the same proportion to the total numberof seats to be flled by direct election in that Municipality as thepopulation of the Scheduled Castes in the Municipal area or ofthe Scheduled Tribes in the Municipal area bears to the totalpopulation of that area and such seats may be allotted byrotation to diferent constituencies in a Municipality.(2) Not less than one third of the total number of seatsreserved under Clauseshall be reserved for womenbelonging to the Scheduled Castes or as the case may be the Scheduled Tribes.(3) Not less than one thirdof the total number of seats to be flledby direct election in every Municipality shall be reserved forwomen and such seats may be allotted by rotation to diferentconstituencies in a Municipality.(4) The ofces of Chairpersons in the Municipalities shall bereserved for the Scheduled Castes the Scheduled Tribes andwomen in such manner as the Legislature of a State may bylaw provide.(5) The reservation of seats under Clausesandand thereservation of ofces of Chairpersonsunder Clauseshall cease to haveefect on the eppiration of the period specifed in article 334. on 10 05 2021 on 22 03 9907 WP 14440 19.odt(6) Nothing in this Part shall prevent the Legislature of a Statefrom making any provision for reservation of seats in anyMunicipality or ofces of Chairpersons in the Municipalities infavour of backward class of citizens.”19.From the above it is evident that while clause 1 says thatseats shall be reserved for the scheduled castes and the scheduled tribesin every municipality as per their proportion to the total population whichseats may be allotted by rotation to diferent constituencies in amunicipality on the other hand clause 4 states that ofces ofChairpersons in the municipalities shall be reserved for scheduled castes the scheduled tribes and women in such manner as the Legislature of aState may by law provide. As per clause 6 nothing in Part IXA shallprevent the Legislature of a State from making any provision forreservation of seats in any municipality or ofce of Chairpersons in themunicipalities in favour of backward class of citizens.20.The erstwhile Bombay Provincial Municipal CorporationsAct 1949 has since been renamed as the Maharashtra MunicipalCorporations Act. As per the preamble it is an act to provide forestablishment of municipal corporations for all larger urban areas eiceptthat of greater Mumbai in the State of Maharshtra with a view to ensurebetter municipal governance. Section 19 of the Maharashtra MunicipalCorporations Act provides for election of Mayors and Deputy Mayors fromamongst the Councillors in the corporation. As per sub sectionthere shall be reservation for the ofce of Mayor in the corporation by on 10 05 2021 on 22 03 10907 WP 14440 19.odtrotation for scheduled caste scheduled tribes women and backwardclass of citizens in the prescribed manner. This subsection was insertedin the parent Act with efect from 31.05.1994. Sub sectionof section19 reads as under:“(1A) There shall be reservation for the ofce of the Mayor inthe Corporation by rotation for the Scheduled Castes theScheduled Tribes Women and the Backward class of citizens in the prescribed manner.”21.In the eiercise of the powers conferred by sub sectionRules 1994.Rule 3 dealt with reservation of ofces for the election of Mayor. Whilesub rule 1 laid down the principles whereby the ofce of Mayors in themunicipal corporations in the State of Maharashtra to be reserved forscheduled castes scheduled tribes backward class and women were tobe carried out. Sub rule 2 provided that the State Government bynotifcation in the ofcial gazette should allot by draw of lots the ofces ofMayors to be reserved for scheduled castes scheduled tribes backwardclass and women on the principles specifed in sub rule 1. As per thethird proviso clause c the ofces of Mayor to be so reserved should berotated in such a manner that no reservation made in previous terms isrepeated.22.It may be mentioned that by notifcation dated 14.11.2006 on 10 05 2021 on 22 03 11907 WP 14440 19.odtissued by the Government of Maharashtra in the Urban DevelopmentDepartment in eiercise of the powers conferred by sub sectionofsection 19 of the Maharashtra Municipal Corporations Act and such otherpowers and in supersession of the eiisting rules Government ofMaharashtra has made the Maharashtra Municipal Corporations(Reservation of Ofces of Mayors) Rules 2006TheState Government shall by notifcation in the Ofcial Gazette specify the number of ofces of Mayors in the MunicipalCorporations in the State to be reserved for the ScheduledCastes Scheduled Tribes the category of Backward Class ofCitizens and Womenon the followingprinciples:The number of ofces of Mayors to be so reserved for theScheduled Castes and Scheduled Tribes shall bear as nearlyas may be the same proportion to the number of such ofcesin the Corporations in the State as the population of theScheduled Castes and the Scheduled Tribes in the MunicipalCorporation areas bears to the total population of all MunicipalCorporation areas: Provided that such ofce of Mayor may not be so reserved if the number of Councillors to be elected at ward electionsfrom the category of the Scheduled Castes or ScheduledTribes is less than three: Provided further that while specifying such reservation one third of the total number of seats so reserved shall be reservedfor the women belonging to the Scheduled Castes or as thecase may be the Scheduled Tribes: Provided also that in a Municipal Corporation where only on 10 05 2021 on 22 03 12907 WP 14440 19.odtone ofce of the Councillor is reserved for the ScheduledCaste or as the case may be the Scheduled Tribes then itshall not be necessary to reserve the ofce for womenbelonging to the Scheduled Castes or as the case may be the Scheduled TribesAs nearly as may be twenty seven per cent of the totalnumber of ofces of Mayors in the State shall be reserved forthe category of Backward Class of Citizens: Provided that one third of the ofces so reserved shall bereserved for Women belonging to the category of BackwardClass of CitizensOne third of the total number of ofces of Mayors in theStateshall be reserved for women.(2) The State Government shall By notifcation in the Ofcial Gazette allot by draw oflots the ofces of the Mayors to be reserved for the ScheduledCastes the Scheduled Tribes the category of Backward Classof Citizens and Women on the principles specifed in sub rule(1). Ensure that at any given point of time the number ofofces of Mayors reserved for the Scheduled Castes theScheduled Tribes the category of Backward Class of Citizensand Women shall not be less than the number determined inaccordance with the provisions of sub ruleThe lots in respect of women belonging to a particularcategory shall be drawn only among the ofces of Mayorsreserved for such category. While drawing lots the ofce of Mayors reserved forsuch category in the earlier years shall be epcluded from thedraw of lots for those categories The ofces of Mayors to be reserved shall be rotatedin the subsequent terms of ofce of Mayor to such Corporation in which no reservation has been made in the previous termsuntil such reservations are given by rotation to each category.” on 10 05 2021 on 22 03 13907 WP 14440 19.odt22.1.From a perusal of the above we fnd that as per sub rule 1 the State Government is required to specify the number of ofces ofMayors in the municipal corporations in the State to be reserved forscheduled castes scheduled tribes backward class and women byfollowing the principles mentioned therein. As per clause a the numberof ofces of mayor to be so reserved for scheduled castes and scheduledtribes shall bear as nearly as may be the same proportion to the numberof such ofces in the corporations in the State as the population ofscheduled castes and the scheduled tribes in the municipal corporationareas bears to the total population of all municipal corporation areas. Asper the frst proviso such ofce of Mayor may not be so reserved if thenumber of Councillors to be elected from the category of scheduledcastes or scheduled tribe is less than three. As per sub rule 2 the StateGovernment shall by notifcation in the ofcial gazette allot by draw of lotsofces of Mayors to be reserved for the scheduled castes scheduledtribes backward class and women following the principles specifed insub rule 1. Clause d of sub rule 2 clarifes that while drawing of lots theofce of Mayor reserved for such category in the earlier years shall beeicluded from the draw of lots for those categories. Clause e says thatthe ofce of Mayor to be reserved shall be rotated in the subsequentterms of ofce of Mayor in which no reservation has been made in theprevious term until such reservations are given by rotation to eachcategory. on 10 05 2021 on 22 03 14907 WP 14440 19.odt23.Having noticed the above and the relevant legal provisions we may revert back to the reservations efected in the ofce of Mayor inDhule Municipal Corporation till date. Petitioner has mentioned the sameby way of a statement in paragraph 19 which has not been controvertedor disputed by the respondents. The statement reads as under:Sr.Nos.PeriodReservation1.05 08 2003General Category2.23 06 2006Backward Class Category3.07 05 2008General Category4.24 11 2009Scheduled Tribe5.26 04 2012General Categoryin the 2006 Rules were followed. In so far reservationfor scheduled castes is concerned three ofces of Mayor were required tobe so reserved out of which two are for women. It is stated that forscheduled castes three ofces of Mayor are required to be mandatorilyreserved. Out of 27 corporations ofces of Mayor in 12 corporationswere reserved for scheduled castes in previous years. These 12corporations along with Vasi Virar Corporation were eicluded from theconsideration of scheduled caste reservation. The remaining 14corporations were considered which included the Dhule MunicipalCorporation. Through draw of lots three corporations out of 14 i.e. Mira Bhayender Ahmednagar and Parbhani have got reservation forscheduled castes. In so far reservation for backward class in DhuleMunicipal Corporation is concerned respondent no.1 has eiplained thesituation in the following manner:“(c) For Backward Class of Citizens 7 posts of Mayor needs tobe mandatorily reserved and it is clearly mentioned that out of27 Corporations 26 Corporations epcluding newly createdPanvel Corporation were reserved for Backward Class ofCitizens in earlier years. As 26 Corporations were reserved forBackward Class of Citizens in earlier years for the draw of lotsdated 13.11.2019 even the minimum required 7 Corporationswere not available which were not previously reserved forBackward Class of Citizens. And considering this fact and theprovisions in the Act and Rules the 7 Corporations which werereserved for Backward Class of Citizens in the earlier years i.e. immediately preceding term were epcluded in the draw oflots dated 13.11.2019.By following the laid procedure the 4 Corporations on 10 05 2021 on 22 03 16907 WP 14440 19.odtwhich are reserved in the 1st and 2nd draws for ScheduledTribesand Scheduled Castes[UJJAL BHUYAN J.]Mujaheed 