Allahabad High Court directs Uttar Pradesh government to hold municipal elections without OBC reservation
The Allahabad High Court, while observing that Uttar Pradesh was yet to fulfill the Triple Test Formality, as laid down by the Supreme Court, directed the state government to conduct the Municipal Elections without OBC reservation.
The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Saurabh Lavania passed this Judgement on the bunch of Petitions raising alleged grievance arising out of a notification dated 05.12.2022 issued by the State Government in the Department of Urban Development which is a draft order in terms of section 9-A (5)(3) of Uttar Pradesh Municipalities Act, 1916, inviting objections to the proposed determination of number of offices of the Chairpersons of different Municipal Bodies to be reserved for the Scheduled Castes, the Scheduled Tribes, Backward Classes and Women.
Challenge, however, is confined to the proposed determination for providing reservation to the Backward Class of citizens in respect of seats and offices of Chairpersons of these bodies.
Challenge has also been made to the Government Order dated 12.12.2022 whereby it has been provided that on expiry of the term of various local bodies, the District Magistrates of the respective districts shall authorize operation of bank accounts of such local bodies under the joint signatures of the Executive Officer and the Senior most officer of Uttar Pradesh Nagar Palika Centralized Services (Accounts Cadre).
As per the said Government Order, current term of the local bodies is coming to an end on different dates falling between 12.12.2022 and January 31, 2023.
In one of the petitions, a prayer has been made to direct the State Government to include transgenders in the Backward Class of citizens and to provide them reservation within the reservation, which may be available to backward class of citizens in the matter of election to the urban local bodies.
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The said prayer has been made in light of the Supreme Court judgment in the case of National Legal Services Authority vs Union of India and others, rendered on 15.04.2014 in Writ Petition (Civil) No.400 of 2012.
Preliminary objection as to the maintainability of the petitions raised by the State on the ground that the impugned notification dated 05.12.2022 is only a draft order and hence, the petitioners will have opportunity to raise their objections before the authority concerned, as such, the petitions are premature, has already been repelled by us vide our order dated 12.12.2022 and for the reasons given therein we have already held the petitions to be maintainable.
The Constitution Bench in the case of K. Krishna Murthy (supra) in Vikas Kishanrao Gawali (supra) the Apex Court enunciated that triple test/conditions are required to be complied with by the State before reserving the seats in local bodies for Backward Class of citizens.
This triple test/conditions as outlined by Supreme Court in the case of Vikas Kishanrao Gawali (supra) are:
(A) to set up a dedicated Commission to conduct contemporaneous rigorous empirical enquiry into the nature and implications of backwardness qua local bodies, within the State,
(B) to specify the proportion of reservation required to be provisioned local body-wise in the light of the recommendations of the Commission so as not to face foul of over breadth,
(C) in any case such reservation shall not exceed agreegate of 50% of total seats reserved in favour of the Scheduled Castes/Scheduled Tribes/Backward Classes of citizens taken together.
The HIigh Court observed that the State of Uttar Pradesh was under an obligation to re-frame its policy including by way of having a fresh look at its Legislative prescriptions in tune with the law declared by the Constitution Bench of Supreme Court in the case of K. Krishna Murthi (supra) and also in the case of Vikas Kishanrao Gawai (supra).
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The State has, however, failed to re-frame its policies according to the mandate of the Supreme Court even after a lapse of a period of 12 years hence the plea that the petitioners are not entitled to the relief as claimed in these writ petitions as there is no challenge to the State enactments, is not tenable.
The High Court allowed the petitions in terms of the following directions:
‘(A) Notification dated 05.12.2022, issued by the Government of Uttar Pradesh, in the Department of Urban Development, under section 9-A (5)(3) is hereby quashed.
(B) The Government Order dated 12.12.2022, issued by the State Government which provides for operation of bank accounts of Municipalities under joint signatures of Executive Officers and the Senior Most Officer in Uttar Pradesh Palika Centralized Service (Accounts Cadre) is also hereby quashed.
(C) It is further directed that until the triple test/conditions as mandated by Hon’ble Supreme Court in K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra) is completed in all respects by the State Government, no reservation for Backward Class of citizens shall be provided and since the term of Municipalities has either ended or shall be coming to an end by 31.01.2023 and the process of completion of triple test/conditions being arduous, is likely to take considerable time, it is directed that the State Government/State Election Commission shall notify the elections immediately. While notifying the elections the seats and offices of Chairpersons, except those to be reserved for Scheduled Castes and Scheduled Tribes, shall be notified as for general/open category.
The notification to be issued for elections shall include the reservation for women in terms of the constitutional provisions.
(D) In case, term of Municipal Body comes to an end, till the formation of the elected Body the affairs of such Municipal Body shall be conducted by a three-member Committee headed by the District Magistrate concerned, of which the Executive Officer/Chief Executive Officer/Municipal Commissioner shall be a member. The third member shall be a District Level Officer to be nominated by the District Magistrate.
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However, the said Committee shall discharge only day-to-day functions of the Municipal Body concerned and shall not take any major policy decision .
The Bench have issued the direction to immediately notify the elections being guided by the provisions of Article 243-U of the Constitution of India which mandates that election to constitute a Municipality shall be completed before expiry of its duration.
‘We understand that collection and collation of materials by the dedicated Commission is a humongous and time taking task, however, formation of elected Municipal Bodies by election cannot be delayed for the reason of constitutional mandate contained in Article 243-U of the Constitution of India. Thus to fortify the democratic character of governance of society, it is essential that the elections are held at the earliest which cannot wait. ‘
The Court also directed that once the dedicated Commission is constituted for undertaking the exercise of conducting empirical study as to the nature and implications of Backwardness for the purposes of providing reservation to Backward Class of citizens in the context of elections to the urban local bodies, the claim of transgenders for their inclusion amongst Backward Class of citizens shall also be considered.