C. Velayudhan v. The Kerala State Election Commission, Thiruvananthapuram and Chittur-Tathamangalam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932** **WP(C).No. 24760 of 2010(T)** **---------------------------------------** **PETITIONER(S):** **------------------------** **C.VELAYUDHAN, S/O.CHAMY, V.J.HOUSE, NEAR GOVT. HOSPITAL, PALAKKAD-678 101.** **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENT(S):** **---------------------------** **1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **2. CHITTUR-TATTAMANGALAM MUNICIPALITY, CHITTUR, PALAKKAD DISTRICT, REPRESENTED BY THE SECRETARY.** **R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN. R2 BY ADV. SRI. A. SREERAMAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON 30/08/2010 DELIVERED THE FOLLOWING:** **Kss** ## **“C.R”** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 24760 of 2010-T** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 30th day of August, 2010.** ## **JUDGMENT** The petitioner challenges the decision of the Election Commission in reserving the Office of Chairperson of Chittur-Tathamangalam Municipality to Scheduled Caste (women). 2. The petitioner is the Councillor of ward No.11 of the Municipality. It is pointed out that there are three categories of reservation, viz. Scheduled Caste, Scheduled Caste (Women) and Women (General), The principle of selection by rotation has been provided in the various sub sections of Section 10 of the Kerala Municipality Act. 3. The point raised by the petitioner is that reservation of office of Chairperson in favour of Scheduled Caste, Scheduled Caste (women) and Women (General) must be taken as one unit vis-a-vis general quota. Once there is reservation for any of these categories, then in the next election it will be allotted to general quota. When the principle of rotation is adopted, then the same will be complete only if it is followed through the three different categories, viz. Scheduled Caste, Scheduled Caste (women) and wpc 24760/2010 2 Women (General). In Chittur - Tathamangalam Municipality in 2000-2005 the Office of Chairperson was reserved for Scheduled Caste (women), 2005 - 2010 it was general and now again in 2010 - 2015 it is reserved as Scheduled Caste (Women). It is pointed out that it should have been excluded for reservation as Scheduled Caste (women) this time. The petitioner is a Scheduled Caste and therefore there was a fair chance of getting a reservation for Scheduled Caste (General). Various contentions have been detailed in the grounds of the writ petition also. 4. On behalf of the first respondent, a statement has been filed. It is explained that out of the 60 Municipalities two seats of Chair Person have been reserved for Scheduled Caste (women) and two for Scheduled Caste and 28 for women. The allotment of seats to the Offices of Chairperson/Mayor so reserved is made by the State Election Commission to Scheduled Caste (women), Scheduled Caste and Women, after excluding the Municipalities/Corporations which were reserved for the said classes during the previous election and based on the percentage of population of Scheduled Caste (women), Scheduled Caste and Women, as the case may be. 5. It is mentioned that after excluding 21 Municipalities, the offices of Chairperson which were reserved during 2005, from the 39 3 wpc 24760/2010 Municipalities, the reserved offices of Chairpersons were found out based on the percentage of population of each class. Thus, the office of Chairperson of Chittur - Thathamangalam Municipality (having the highest percentage of scheduled caste women population among the Municipalities, i.e. 6.39%) and that of Paravoor Municipality (having the next highest percentage of scheduled caste women population, i.e. 6.27%) are reserved for Scheduled Caste (Women) for the ensuing election. It is further pointed out that the system of allotment by rotation by selection of lots is not followed for reservation of offices of Chairperson/Mayor of Municipalities/Municipal Corporation or President/Vice-president of Panchayats. Reliance is placed on the decision of a Division Bench of this Court in **Muhammed v. State of Kerala** (2006 (1) KLT 440) holding the view that successive reservation to different categories is not violative of the provisions of the Constitution and the Statute. Various proceedings issued by the State Election Commission are produced as Annexures A to D. Reliance is also placed on the recent decision of the Apex Court in **Union of India and others v. Rakesh Kumar and others [(2010) 4 SCC 50].** wpc 24760/2010 4 6. The Scheme for reservation is provided under Section 10 of the Kerala Municipality Act. Section 10(4) and 10(5) of the Act have been amended and now, instead of the words “not less than one-third”, the words “fifty per cent” have been substituted. Shri George Poonthottam, learned counsel for the petitioner submitted that when the principle of rotation is adopted, then one cycle should have been completed and herein, in 2000 - 2005 it was reserved for Scheduled Caste (women) and during 2005 - 2010 it was general and therefore, to complete the cycle it should have been treated as for Scheduled Caste this time. Merely because the same was treated as general during 2005 - 2010 again it should not be reserved back to Scheduled Caste (women) which goes against the principle of rotation. It is therefore pointed out that other reserved categories like Women (General) or Scheduled Caste (General) may never get a chance to contest for the post of Chairperson under the reservation quota. Therefore, it is important to consider whether, once the procedure for fixing the office of Chairperson is considered, one cycle of rotation should have been completed. The contention is that the reservation categories, viz. Scheduled Caste, Scheduled Cast (women) and Women (General) have to be taken as one unit vis-a-vis general quota. Therefore, whenever it is considered for reservation for every alternate election, the petitioner's Municipality has to wpc 24760/2010 5 be excluded for reservation for Scheduled Caste (Women), as the rotation started from that category in 2000 election. It is submitted that Women (General) and Scheduled Caste (General) will not be considered at all, if the present process is accepted as valid. 7. The question is whether the action taken by the respondents is against the Scheme of Section 10 of the Act. Going by sub-section (2) of Section 10, the number of offices of Chairmen of Town Panchayats, Chairmen of Municipal Councils and Mayor of Municipal corporations shall be reserved for the Scheduled Castes, or, as the case may be, the Scheduled Tribes by the Government and they will have to be allotted by rotation to different Town panchayats, Municipal Councils or as the case may be, the Municipal Corporations as the State Election commission may, by notification in the Gazette, determine for each general election. Subsection (4) also will`` show that not less than 50% of offices reserved under Sub-Sec.(2) with regard to the offices of the Chairpersons in the Town Panchayats, Municipal Councils and Municipal Corporations, shall be for Scheduled Caste (Women) and it will have to be done for each general election and the allotment by State Election Commission to different Town Panchayats or Municipal Councils or Municipal Corporations shall be by rotation. Sub-section (6) and its provisos are as follows: wpc 24760/2010 6 “(6) Procedure of rotation under sub-section (2) and sub-section (5) shall begin from the Municipality having the highest percentage of population of the Scheduled Castes or Scheduled Tribes or women as the case may be, and thereafter to the Municipality having the next higher percentage of population and shall be so continued in like manner; Provided that if the Municipality, the office of Chairperson of which is eligible for reservation for women is the same as the Municipality the office of Chairperson of which is to be reserved for the Scheduled Castes or Scheduled Tribes, then, in reserving the office of chairperson priority shall be given to persons belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes and _in lieu_ , the office of the Chairperson of the Municipality, having the next higher percentage of women population in turn shall be reserved for women. Provided further that in Municipalities where the office of the Chairperson is to be reserved for women belonging to Scheduled Castes or Scheduled Tribes and in Municipalities the highest percentage of population is women, the office of the Chair person shall be reserved for women belonging to Scheduled Castes or Scheduled Tribes by rotation.” The above provision is the only one which concerns the procedure for rotation and it shall begin from the Municipality having the highest percentage of population of the Scheduled Castes or Scheduled Tribes or women as the case may be, and thereafter to the Municipality having the wpc 24760/2010 7 next higher percentage of population and shall so continued in like manner. The provisos concern different aspects. 8. In **Muhammed's case** (2006 (1)KLT 440), a Division Bench of this Court considered the question whether successive reservation for different categories is violative of the fundamental rights. Therein, in the previous election the Office of the President of the Panchayat was reserved for Scheduled Caste and in the subsequent election it was reserved for women. It was held thus in para 5: “Clause 3(b)(ii) of S.153 states that one third each of the total number of offices of President of Village Panchayats, Block Panchayats and District Panchayats in the State, not so reserved, shall be reserved by the Government for women. Government order dated 5.8.2005 has reserved 296 offices of the President of Panchayats for women (general), 33 for scheduled caste women, 4 for scheduled tribe women and 65 for scheduled caste, 7 scheduled tribe, totalling the reservation for women is thus 333. Under S.153 (4)(d) the allotment of reserved seats by rotation has to be made by the State Election Commission. On the basis of the government order referred to above, Commission has reserved 333 offices of President of Panchayats for women. The Commission therefore exempted the Panchayats, the office of the President whereof were reserved for women in the years 1995 and 2000. The other Panchayats which were not so reserved for women in the year 1995 wpc 24760/2010 8 and 2000 were reserved for women this year. The Commission noticed that those Panchayats not so reserved in the year 1995 and 2000 were not sufficient since 333 offices of President of Panchayats have to be reserved for women as per Art.243-D(4) and S.153 of the Kerala Panchayat Raj Act. **Therefore, on the basis of the percentage of population of women in the Panchayats which came under reservation for different category have been reserved for women in the year 2005.** Further it is also noticed that since Panchayats, the office of President whereof were not reserved for women during the previous election were not sufficient to carry out the constitutional mandate of 33% reservation for women, the office of President of Pulpatta Grama Panchayat was reserved for women on the basis of the percentage of population of women in the Panchayat as per the 2001 census.” 9. Herein, going by Section 10, it can be seen that the exercise by way of rotation has to be done by the State Election Commission for each general election. The Commission has explained that the total number of Municipalities is 60 and 21 of them have been excluded wherein the Offices of Chairperson were reserved last time. Not less than 50% have to be reserved for women which includes Scheduled Caste (Women). The Commission will have to adopt the procedure of rotation under Sub-Sec.(6). The allotment of office of Chairperson will therefore, have to go by the Municipality having the highest percentage of of population of Scheduled wpc 24760/2010 9 Caste, Scheduled Tribe or women, as the case may be, going by sub-section (6) of Section 10. It is not a case where, as the petitioner contends, that the rotation should be in respect of each categories, viz. Scheduled Caste, Scheduled Caste (Women) or Women (General) also, by taking them as one unit, vis-a-vis general quota. The method suggested by the petitioner to treat them as one unit and apply it in respect of alternate election is not one recognised by Section 10 of the Act. The first step will be to exclude the Municipalities covered by the reservation in the last election, herein being 21. When the statute prescribes a particular mode of doing things the said method alone has to be adopted and none else. There is no need to have a rotation between these three categories, going by Sections 10(2), 10(4), 10 (5) and 10(6) of the Act to form a cycle of rotation. A combined reading of the said sections show that in respect of each general election, the matter will have to be considered by the Election Commission separately. 10. Going by the above, herein, during the last election, viz. 2005, the office of Chairperson was treated as general. There is no illegality in treating it as Scheduled Caste (Women) this time, going by the highest percentage of population, which alone is the criteria as per sub-section (6) of Section 10. There is no system of allotment by rotation by drawing lots with regard to the office of Chairperson/Mayor of Municipality/Municipal wpc 24760/2010 10 Corporation. That method also could not have been adopted by the Commission. Herein, the Municipalities having the highest percentage of Scheduled Caste women population, viz. Chittur-Thathalamangalam and Paravoor are reserved for Scheduled Caste (women)for the 2010 election. The same cannot be said to be illegal or arbitrary or in violation of the statutory provisions. Therefore, the writ petition is dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**