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Synopsis

The Allahabad High Court at Lucknow Bench today directed the State Election Commission to notify the Urban Local Body (ULB) elections immediately. 

A division bench comprising Justice DK Upadhyaya and Justice Saurabh Lavania further held that until the triple test/conditions as mandated by Supreme Court in K. Krishna Murthy and Vikas Kishanrao Gawali cases is completed in all respects by the State Government, no reservation for the Backward Class of citizens shall be provided in the elections to urban self-government bodies.

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 bench, therefore, ordered.

The bench reasoned that since the term of the existing Municipalities is about to end and the process of completion of triple test/conditions being arduous, is likely to take considerable time, therefore, the elections should be notified at the earliest without the OBC quota.

Moreover, the bench ordered that the notification to be issued for elections shall include the reservation for women in terms of the constitutional provisions.

The order was passed in a batch of petitions challenging the proposed determination in the notification issued by the State Government on December 5, 2022 for providing reservations to the Backward Class of citizens in respect of seats and offices of Chairpersons of State's Municipal Bodies.

The petitioners' main argument was that the State Government cannot provide reservations to the OBCs under Article 243-T(6) of the Constitution unless it is preceded by an investigation into the existence of backwardness.

The petitioners argued that the phrase “backward class of citizens” occurring in Article 243-T does not convey the same meaning as the phrase “socially and economically backward class” occurring in Article Article 15(4) and Article 15(5) or the phrase “backward class of citizens” occurring in Article 16(4) of the Constitution.

On the other hand, the State government submitted that the proposed reservation was done per the provisions of Section 2(a) and Section 2(51-A) of the U.P. Municipalities Act, 1916, and U.P. Municipal Corporation Act, 1959.

The Additional Chief Standing Counsel for the Staet argued that Section 2(1) of the U.P. Municipalities Act, 1916 defines backward class to mean backward class of citizens as specified in Schedule-I of the Reservation Act, 1994. 

He further stated that similarly Section 2(51-A) of the U.P. Municipal Corporation Act, 1959 also defines backward class of citizens as specified in Schedule-I of the Reservation Act, 1994.

Therefore, he contended that until and unless Section 2(a) and Section 2(51-A) of the U.P. Municipalities Act, 1916 and U.P. Municipal Corporation Act, 1959 respectively are also challenged and struck down, reservation to OBCs is to be provided in the elections of the Municipal Bodies as per these two State Legislations.

Though court agreed with the submission of the State, which was also supported by the SEC, that reservation to OBCs in the Municipal Bodies elections is to be provided as per the above-mentioned two State Legislations, it observed that the government did not comply with the triple test/conditions as mandated by the Top Court. 

Court noted that although the State had conducted a rapid survey for determining the population of the OBCs according to which seats were reserved in proportion in the Constituency/Ward concerned, it was not an exercise conducted by a dedicated Commission as mandated by the Supreme Court. 

Court opined that the said survey missed a very crucial factor for determination of backwardness or disadvantageous situation concerning a class or group of citizens who are inadequately represented in the Municipal Bodies in the State. 

"State is treating the nature of backwardness requisite for providing reservation in admission to educational institutions and public employment as the requisite backwardness for providing reservation to seats and offices of the Chairpersons in the Municipal Bodie," court held. 

Court stressed that as per the mandate of the Top Court, the triple test exercise includes - (1) constitution of a dedicated Commission to conduct an empirical inquiry into the nature and implications of backwardness in relation to local bodies; (2) providing the proportion of the reservation required in the light of recommendation of such Commission, and (3) ceiling of 50% reservation.

Court noted that in the present matter, the state observed only one condition i.e. the condition regarding observance of ceiling of 50% of reservation.

Therefore, court quashed the notification dated December 5 and another government order issued by the State Government which provides for the 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).

Court also emphasised 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.

Case Title: Batch of Petitions