# Ajay Kumar v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 568
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-15
- **Case number:** P.I.L. Civil No. 6929 of 2021
- **Bench:** Ritu Raj Awasthi, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-ors-46919
- **Pages:** 7

## Headnote

A. Constitution of India, 1950-Article 226
&
Uttar
Pradesh
Panchayat
Raj(Reservation and Allotment of Seats
and
Offices)
Rules,
1994
and
Uttar
Pradesh Kshetra Panchayats and Zila
Panchayats(Reservation and allotment of
seats and offices) Rules,1994-challenge
to-base
year
for
reservation-opposite
parties were ignoring the government
order dated 16.09.2015 for the purpose of
allotment of seats-they are proceeding to
reserve the seats in terms of Rule 4 of
1994 by taking 1995 as the base year
instead of 2015-Even, previous election
were held in accordance with the G.O.
16.09.2015-In view of the Census 2001
3 All. Ajay Kumar Vs. State of U.P. & Ors.
569
and 2011, it is no longer conducive to
have 1995 as the base year for the
purpose of applying reservation as per
Rule 4 of Rules 1994-due to changed
demographic situation base year must be
taken as 2015-the quantum of reservation
for OBCs ought to be local body specific
and be so provisioned to ensure that it
does
not
exceed
the
quantitative
limitation
of
50
percent
of
vertical
reservation of seats for SCs/STs/OBCs
taken together.(Para 1 to 15)

The petition is allowed. (E-5)

List of Cases cited: -

## Text

568 INDIAN LAW REPORTS ALLAHABAD SERIES
Court who has been identified by Sri Ajay
Pandey, learned counsel.

3. Learned A.G.A.-I, on the basis of
enquiry made from the petitioner no. 1,
submits that she has stated that she is
presently living with some of her relatives on
account of a matrimonial discord. On a
specific query, she has submitted that she is
staying with her relatives on her own sweet
will and without there being any threat or
coercion. She has also stated that she does not
wish to go back to her husband, i.e. petitioner
no. 2, and that she desires to go back to her
relatives from where she has come.

4. The writ of habeas corpus is a
prerogative writ and an extraordinary remedy.
It is writ of right and not a writ of course and
may be granted only on reasonable ground or
probable cause being shown, as held in
Mohammad Ikram Hussain vs. State of U.P.
and others1 and Kanu Sanyal vs. District
Magistrate Darjeeling2.

5. The necessary jurisdictional fact to
be established for the exercise of the
extraordinary jurisdiction for issuance of a
writ of habeas corpus would be dependent on
the applicant establishing a prima facie case
that the detention is unlawful.

6. In a recent decision of this Court in
Soniya and another vs. State of U.P. and
others3, this Court has held that the remedy
of a writ of habeas corpus at the instance of a
person seeking to obtain possession of
someone whom he claims to be his wife
would not be available as a matter of course
and the power in this regard may be exercised
only when a clear case is made out.

7. Having regard to the aforesaid, rule
nisi issued earlier is not required to be
made absolute. It is accordingly discharged.

8. The writ petition stands accordingly
dismissed.

9. The petitioner no. 1 would be at
liberty to go back to the place from where
she has come or wherever she desires.

10. The amount deposited pursuant to
the earlier order may be released to the
petitioner no. 1 upon due verification.
----------
(2021)03ILR A568
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE MANISH MATHUR, J.

P.I.L. Civil No. 6929 of 2021

Ajay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Altaf Mansoor, Nitin Kapoor, Tanay
Chaudhary

Counsel for the Respondents:
C.S.C., Anurag Kumar Singh

A. Constitution of India, 1950-Article 226
&
Uttar
Pradesh
Panchayat
Raj(Reservation and Allotment of Seats
and
Offices)
Rules,
1994
and
Uttar
Pradesh Kshetra Panchayats and Zila
Panchayats(Reservation and allotment of
seats and offices) Rules,1994-challenge
to-base
year
for
reservation-opposite
parties were ignoring the government
order dated 16.09.2015 for the purpose of
allotment of seats-they are proceeding to
reserve the seats in terms of Rule 4 of
1994 by taking 1995 as the base year
instead of 2015-Even, previous election
were held in accordance with the G.O.
16.09.2015-In view of the Census 2001
3 All. Ajay Kumar Vs. State of U.P. & Ors.
569
and 2011, it is no longer conducive to
have 1995 as the base year for the
purpose of applying reservation as per
Rule 4 of Rules 1994-due to changed
demographic situation base year must be
taken as 2015-the quantum of reservation
for OBCs ought to be local body specific
and be so provisioned to ensure that it
does
not
exceed
the
quantitative
limitation
of
50
percent
of
vertical
reservation of seats for SCs/STs/OBCs
taken together.(Para 1 to 15)

The petition is allowed. (E-5)

List of Cases cited: -

1. Vikas Kishanrao Gawali Vs St. of Mah. &
ors.(2021) SCC OnLine SC 170

2. K. Krishna Murthy (Dr.) Vs U.O.I., (2010) 7
SCC 202

3. Vinod Upadhyay Vs St. of U.P. & anr. (Writ C
No. 23377 of 2020)

(Delivered by Hon'ble Ritu Raj Awasthi, J.
& Hon'ble Manish Mathur, J.)

1. Heard Mr. Mohd. Altaf Mansoor,
learned counsel for petitioner as well as
learned Advocate General assisted by Mr.
H.P. Srivastava, learned Additional Chief
Standing Counsel on behalf of opposite
parties no. 1 and 2 and Mr. Anurag Singh,
learned counsel for opposite party no.3.

2. In this Public Interest Litigation,
the petitioner has come before this Court
seeking following reliefs:

"a) Issue a writ, order or direction in
the nature of certiorari quashing the
impugned
government
order
dated
11.02.2021 (contained in Annexure No. 1).

b) Issue a writ, order or direction in
the nature of mandamus directing the
respondents to issue fresh guidelines in
accordance with the procedure provided
under the Uttar Pradesh Panchayat Raj
(Reservation and Allotment of Seats and
Offices) Rules, 1994 and the Uttar Pradesh
Kshetra Panchayats and Zila Panchayats
(Reservation and allotment of seats and
offices) Rules, 1994.

c) Issue a writ order or direction in the
nature
of
mandamus
directing
the
respondents not to proceed and finalize the
reservation
of
seats
of
the
gram
panchayats, Kshetra Panchayats or Zila
Panchayat in pursuance to the impugned
government order dated 11.02.2021.

d) Award costs in favour of the
petitioner against the opposite parties.

e) Pass such further or other orders as
may be considered expedient in the interest
of justice."

3. Learned counsel for petitioner
submits that provisions for reservations in
the aforesaid elections are to be determined
as per the Uttar Pradesh Panchayat Raj
(Reservation and Allotment of Seats and
Offices) Rules, 1994 [hereinafter referred
to as Rules of 1994] with Rule 4 providing
allotment of seats for reservation on
rotational basis. It has been submitted that
pursuant to amendment in Article 243D of
Constitution of India, the aforesaid Rules
were notified and for the purposes of
allotment of seats as per reservation under
Rule 4 of Rules of 1994, the base year was
taken as 1995. It is submitted that
subsequent elections in 1995, 2000, 2005
and 2010 were held in accordance with the
aforesaid Rules of 1994.

4. Learned counsel has thereafter
drawn attention to the Government Order
dated 16.09.2015 in which it has been
indicated
that
due
to
substantial
demographic changes in the Districts of the
State in the Gram Panchayat and Khetra
Panchayat territories in view of the census
570 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2001 and 2011, it is no longer conducive
to have 1995 as the base year for purposes
of applying reservation as per Rule 4 of
Rules of 1994. As such, the base year in
view of the changed demographic situation
was required to be taken as 2015.

5. It is submitted that vide impugned
order and ignoring the Government Order
dated 16.09.2015, the opposite parties are
proceeding to reserve the seats in terms of
Rule 4 of Rules of 1994 by taking 1995 as
the base year instead of 2015. It is further
submitted that Government Order dated
16.09.2015 is still in existence and the
previous elections held in the year 2015
were also in accordance with the aforesaid
Government Order.

6. It is further submitted that even
otherwise
in
view
of
the
changed
demographic situation as noticed by the
State Government itself in the Government
Order dated 16.09.2015, it does not stand to
reason that the base year for purposes of
reserving seats in terms of Rule 4 of Rules
of 1994 should be taken as 1995.

7. It has also been submitted by
learned counsel for petitioner that even
otherwise the provisions for reservation as
contemplated
by
the
impugned
Government Order would result in more
than 60 per cent seats in a district being
reserved, which would be violative of
various judgments of Hon'ble the Supreme
Court and that it would also violate the
maximum cap fixed with respect to
reservation of Backward Class of 27 per
cent.

8. With regard to aforesaid, learned
counsel for petitioner has submitted that
similarly worded provisions in Clause
12(2)(c) of the Maharashtra Zilla Parishads
and Panchyat Samitis Act, 1961 was held to
be non est by a recent judgment of Hon'ble
the Supreme Court in the case of Vikas
Kishanrao
Gawali
vs.
State
of
Maharashtra and others; 2021 SCC
OnLine SC 170. It is submitted that
Hon'ble the Supreme Court while following
the Constitution Bench judgment in the
case of K. Krishna Murthy (Dr.) vs. Union
of India; (2010) 7 SCC 202 has held that
the quantum of reservation ought to be
local bodies specific and be so provisioned
to ensure that it does not exceed the
quantitative limit of 50 per cent (aggregate)
of
vertical
reservation
of
seats
for
SCs/STs/OBCs
taken
together.
The
offending provision of the Act of 1961 was
quashed
to
the
extent
it
provided
reservation of seats for OBC. Relevant
paragraphs of the said judgment are as
follows:

"8. On a fair reading of the exposition
in the reported decision, what follows is
that the reservation for OBCs is only a
"statutory" dispensation to be provided by
the
State
legislations
unlike
the
"constitutional"
reservation
regarding
SCs/STs which is linked to the proportion of
population.
As
regards
the
State
legislations providing for reservation of
seats in respect of OBCs, it must ensure
that in no case the aggregate vertical
reservation in respect of SCs/STs/OBCs
taken together should exceed 50 per cent of
the seats in the concerned local bodies. In
case, constitutional reservation provided
for SCs and STs were to consume the entire
50 per cent of seats in the concerned local
bodies and in some cases in scheduled area
even beyond 50 per cent, in respect of such
local bodies, the question of providing
further reservation to OBCs would not
arise at all. To put it differently, the
quantum of reservation for OBCs ought to
3 All. Ajay Kumar Vs. State of U.P. & Ors.
571
be
local
body
specific
and
be
so
provisioned to ensure that it does not
exceed the quantitative limitation of 50 per
cent (aggregate) of vertical reservation of
seats for SCs/STs/OBCs taken together.

9. Besides this inviolable quantitative
limitation, the State Authorities are obliged
to
fulfil
other
pre-conditions
before
reserving seats for OBCs in the local
bodies. The foremost requirement is to
collate adequate materials or documents
that
could
help
in
identification
of
backward classes for the purpose of
reservation
by
conducting
a
contemporaneous
rigorous
empirical
inquiry into the nature and implications of
backwardness in the concerned local
bodies through an independent dedicated
Commission established for that purpose.
Thus, the State legislations cannot simply
provide uniform and rigid quantum of
reservation of seats for OBCs in the local
bodies across the State that too without a
proper enquiry into the nature and
implications
of
backwardness
by
an
independent
Commission
about
the
imperativeness
of
such
reservation.
Further, it cannot be a static arrangement.
It must be reviewed from time to time so as
not to violate the principle of overbreadth
of such reservation (which in itself is a
relative concept and is dynamic). Besides,
it must be confined only to the extent it is
proportionate and within the quantitative
limitation
as
is
predicated
by
the
Constitution Bench of this Court.

12. As a matter of fact, no material is
forthcoming as to on what basis the
quantum of reservation for OBCs was fixed
at 27 per cent, when it was inserted by way
of amendment in 1994. Indeed, when the
amendment was effected in 1994, there was
no guideline in existence regarding the
modality of fixing the limits of reserved
seats for OBCs as noted in the decision of
the Constitution Bench in K. Krishna
Murthy
(supra).
After
that
decision,
however, it was imperative for the State to
set up a dedicated Commission to conduct
contemporaneous
rigorous
empirical
inquiry into the nature and implications of
backwardness
and
on
the
basis
of
recommendations of that Commission take
follow up steps including to amend the
existing statutory dispensation, such as to
amend Section 12(2)(c) of the 1961 Act.
There is nothing on record that such a
dedicated Commission had been set up
until now. On the other hand, the stand
taken by the State Government on affidavit,
before this Court, would reveal that
requisite information for undertaking such
empirical inquiry has not been made
available to it by the Union of India. In
light of that stand of the State Government,
it
is
unfathomable
as
to
how
the
Respondents can justify the notifications
issued by the State Election Commission to
reserve seats for OBCs in the concerned
local bodies in respect of which elections
have been held in the year December
2019/January 2020, which notifications
have been challenged by way of present
writ petitions. This Court had allowed the
elections to proceed subject to the outcome
of the present writ petitions.

13. Be that as it may, it is indisputable
that the triple test/conditions required to be
complied by the State before reserving seats
in the local bodies for OBCs has not been
done so far. To wit, (1) to set up a dedicated
Commission to conduct contemporaneous
rigorous empirical inquiry into the nature
and implications of the backwardness qua
local bodies, within the State; (2) to specify
the proportion of reservation required to be
provisioned local body wise in light of
recommendations of the Commission, so as
not to fall foul of overbreadth; and (3) in
any case such reservation shall not exceed
572 INDIAN LAW REPORTS ALLAHABAD SERIES
aggregate of 50 per cent of the total seats
reserved in favour of SCs/STs/OBCs taken
together. In a given local body, the space
for providing such reservation in favour of
OBCs may be available at the time of
issuing election programme (notifications).
However, that could be notified only upon
fulfilling
the
aforementioned
preconditions. Admittedly, the first step of
establishing
dedicated
Commission
to
undertake rigorous empirical inquiry itself
remains a mirage. To put it differently, it
will not be open to Respondents to justify
the reservation for OBCs without fulfilling
the triple test, referred to above.

14. As regards Section 12(2)(c) of the
1961 Act inserted in 1994, the plain
language does give an impression that
uniform and rigid quantum of 27 per cent
of the total seats across the State need to be
set apart by way of reservation in favour of
OBCs. In light of the dictum of the
Constitution Bench, such a rigid provision
cannot be sustained much less having
uniform application to all the local bodies
within the State. Instead, contemporaneous
empirical inquiry must be undertaken to
identify the quantum qua local body or
local body specific.

26. The State Election Commission had
invited our attention to the fact that, provision
similar to Section 12(2)(c) of the 1961 Act
regarding reservation for OBCs finds place in
other State enactments concerning the
establishment
of
Village
Panchayat,
Municipal
Council,
Nagar
Panchayat,
Corporation, etc. Needless to observe that the
view taken in this judgment would apply with
full force to the interpretation and application
of the provisions of the stated Act(s) and the
State Authorities must immediately move into
action to take corrective and follow up
measures in right earnest including to ensure
that future elections to the concerned local
bodies are conducted strictly in conformity
with the exposition of this Court in K.
Krishna Murthy (supra), for providing
reservation in favour of OBCs.

27. In conclusion, we hold that Section
12(2)(c) of the 1961 Act is an enabling
provision and needs to be read down to mean
that it may be invoked only upon complying
with the triple conditions (mentioned in
paragraph 12 above) as specified by the
Constitution Bench of this Court, before
notifying the seats as reserved for OBC
category in the concerned local bodies.
Further, we quash and set aside the impugned
notifications to the extent they provide for
reservation of seats for OBCs being void and
non est in law including the follow up actions
taken on that basis. In other words, election
results of OBC candidates which had been
made subject to the outcome of these writ
petitions including so notified in the
concerned election programme issued by the
State Election Commission, are declared as
non est in law and the vacancy of seat(s)
caused on account of this declaration be
forthwith filled up by the State Election
Commission with general/open candidate(s)
for the remainder term of the concerned local
bodies, by issuing notification in that regard.

28.
As
a
consequence
of
this
declaration and direction, all acts done and
decisions taken by the concerned local
bodies due to participation of members
(OBC candidates) who have vacated seats
in terms of this decision, shall not be
affected in any manner. For, they be
deemed to have vacated their seat upon
pronouncement
of
this
judgment,
prospectively. This direction is being issued
in exercise of plenary power Under Article
142 of the Constitution of India to do
complete justice.

29. It was urged that this Court ought
not to exercise plenary power Under
Article 142 and abjure from disturbing the
completed elections. However, we are not
3 All. Ajay Kumar Vs. State of U.P. & Ors.
573
impressed with this contention because
participation in the elections conducted
since December 2019 to the concerned
local
bodies
across
the
State
of
Maharashtra was on clear understanding
that the results of the reserved seats for
OBCs would be subject to the outcome of
these writ petitions. That was clearly
notified by the State Election Commission
in the election programme published by it
at the relevant time, in consonance with the
directions given by this Court vide interim
orders. Therefore, the reliefs as claimed
and being granted in terms of this
judgment, are in consonance with liberty
given by this Court.

30. Accordingly, these writ petitions
must partly succeed. The challenge to the
validity of Section 12(2)(c) of the 1961 Act is
negatived. Instead, that provision is being
read down to mean that reservation in favour
of OBCs in the concerned local bodies can be
notified to the extent that it does not exceed
aggregate 50 per cent of the total seats
reserved in favour of SCs/STs/OBCs taken
together. In other words, the expression "shall
be" preceding 27 per cent occurring in
Section 12(2)(c), be construed as "may be"
including to mean that reservation for OBCs
may be up to 27 per cent but subject to the
outer limit of 50 per cent aggregate in favour
of
SCs/STs/OBCs
taken
together,
as
enunciated by the Constitution Bench of this
Court.
However,
the
impugned
notifications/orders dated 27.7.2018 and
14.2.2020 and all other similar notifications
issued by the State Election Commission
during the pendency of these writ petitions
mentioning
that
the
elections
to
the
concerned local bodies were being held
subject to the outcome of these writ petitions,
are quashed and set aside to the extent of
providing reservation of seats in the
concerned local bodies for OBCs. As a
consequence, follow up steps taken on the
basis of such notifications including the
declaration of results of the candidates
against the reserved OBC seats in the
concerned local bodies, are declared non est
in law; and the seats are deemed to have
been vacated forthwith prospectively by the
concerned candidate(s) in terms of this
judgment. The State Election Commission
shall take immediate steps to announce
elections in respect of such vacated seats, of
the concerned local bodies, not later than two
weeks from today, to be filled by general/open
category candidates for the remainder term
of
the
Panchayat/Samitis.
Ordered
accordingly."

9. Upon applicability of the judgment
rendered by Hon'ble the Supreme Court in
the case of Vikas Kishanrao Gawali vs.
State of Maharashtra and others (supra),
it is clear that the provisions of the
impugned
Government
Order
dated
11.02.2021 would have the effect of
exceeding the prescribed vertical limit of
reservation of 50 per cent, which cannot be
permitted.

10. The Court vide order dated
12.3.2021 had granted time to opposite
parties to seek instructions with regard to
aforesaid submissions.

11.
Learned Advocate
General
appearing for the opposite parties no. 1 and
2, on the basis of written instructions, copy
of which has been placed before the Court
and the same is taken on record, submits
that the State Government has no objection
to implement the reservation and allotment
of seats of constituencies in Panchayats
elections taking 2015 as the base year as
first round of reservation and allotments for
determining the reservations as per decision
taken
vide
Government
Order
dated
16.9.2015.
574 INDIAN LAW REPORTS ALLAHABAD SERIES

12. We are conscious of the fact that
this Court vide order dated 4.2.2021 passed in
Writ-C No. 23377 of 2020; Vinod Upadhyay
vs. State of U.P. and another has issued
directions to the opposite parties to complete
the reservation of constituencies latest by
17.3.2021 and thereupon complete the
elections of all the Panchayats by 30th April,
2021 and indirection elections to be
completed thereafter within fifteen days i.e.,
by 15th May, 2021.

13. It is submitted by the learned
Advocate General that the entire exercise for
providing reservation in the Panchayat
Elections has to be done a fresh taking 2015
as the base year, as such, it would not be
possible that the reservation of constituencies
to be finalized by 17.3.2021. It is stated that
they will complete the entire exercise in this
regard by 27.3.2021 and hold the elections by
10.5.2021.
Indirect
election
would
be
completed by 25.5.2021.

14. We have passed this order
considering the changed circumstances, with
the consent of parties' counsel and without
calling for counter affidavit as well as taking
note of the fact that Writ-C No. 23377 of
2020; Vinod Upadhyay vs. State of U.P. and
another has been disposed of vide order
dated 4.2.2021.

15. Considering the submissions of
learned Advocate General, the impugned
order dated 11.2.2021 is hereby quashed.
The writ petition is allowed.
----------
(2021)03ILR A574
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Matter Under Article 227 No. 58596 of 2017

Pradeep Kumar Dwivedi ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondent:
A.S.G.I., Sri Ajeet Kumar Singh, Sri Jayant
Prakash Singh, Sri Neeraj Tripathi, Sri Vinod
Kumar Shukla

A. Constitution of India, 1950-Article
226-Petitioner
challenged
the
appointment-earlier he came to the
court in PIL -petitioner did not seek
any liberty to file a fresh writ petition
but made a statement that he may be
allowed to pursue appropriate remedy
for
redressal
of
his
grievanceappropriate
remedy
in
respect
of
decision of University is by invoking
jurisdiction of the Chancellor u/s 10 of
University of Allahabad Act, 2005Since,
earlier
petition
was
not
dismissed as withdrawn with liberty to
file second writ petition, this writ
petition for the same cause of action is
not maintainable.(Para 1 to 6)

The Petition is dismissed. (E-5)

List of Cases cited: -

1. Sarguja Transport Service Vs S.T.A.T., (1987)
1 SCC 5

2. Mahendra & Ors. Vs St. of U.K. & anr. (2007)
10 SCC 158

3. Manubhai J. Patel Vs B.O.B., (2000) 10 SCC
253

4. U.O.I. Vs Ranbir Singh Rathaur,(2006) 11
SCC 696

5. Ishwar Dutt Vs Land Acquisition Collector,
(2005) AIR SC 3165