# Vaibhav Pandey v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 875
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-27
- **Case number:** Public Interest Litigation No. 878 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaibhav-pandey-v-state-of-u-p-anr-49167
- **Pages:** 38

## Headnote

(A) Civil Law - U. P. Municipalities
Act,1916 - Sections 2(1), 7, 9(a) &
9(a)(5)(3), - U.P. Municipal Corps Act,
1959
-
Section
-
2(51-A),
7
-
Constitution of India,1950 - Articles
141,
144,
15(4),
16(4),
243(d),
243(d)(6),
243(t),
243(t)(1),
243(t)(2), 243(t)(6) & 243(u), - U. P.
St. Public Services Reservation for
Scheduled Castes, Scheduled Tribes
and Other Back-ward Classes Act,
1994 - Section 2(b): - Petitions in
Public interest - Nature and Purpose of
Reservation in Local Bodies - challenging
the notification issued by St. Govt. -
inviting objections - to the proposed
determination of numbers/seats of officers
of the Chairpersons of different Municipals
Bodies specially confined to providing
reservation to the Backward Class of
Citizens - St. raised takes plea that
petitions are premature at this stage -
provisions contained in different articles
of constitution of India, enabling St. to
make a provision for reservation of seats in
local bodies for SC, ST, women or OBC are
almost in pari material - court held that,
the
requirement
of
triple/conditions,
regarding (i) observation of ceiling of 50%
reservation provided to SC/ST/OBC & (ii)
constitution of a dedicated Commission to
conduct an empirical inquiry into the
nature and implications of backwardness in
relation to Local Bodies (iii) providing the
proportion of the reservation required in
the light of recommendation of such
commission, as directed and contemplated
by the Hon'ble Apex Court in case of K.
Krishna Murthy & Vikas Kishanrao Gawali,
are not full fill in this case - hence, the
impugned notification dated 05.12.2022 is
hereby
quashed
-
directions
issued,
accordingly
for
notify
the
elections
immediately and notification to be issued
for elections shall include the reservation
in terms of constitutional provision . (Para
- 8.33, 8.52-A, C)

(B) Civil Law - U. P. Municipalities Act,
1916 - Section 2(1), 7, 9(a) & 9(a)(5)(3),
- U.P. Municipal Corps Act, 1959 - Sections
- 2(51-A) & 7 - Constitution of India, 1950
- Articles 141, 144, 15(4), 16(4), 243(d),
243(d)(6), 243(t), 243(t)(1), 243(t)(2),
243(t)(6) & 243(u), - U. P. St. Public
Services
Reservation
for
Scheduled
Castes, Scheduled Tribes and Other Backward Classes Act,1994 - Section - 2(b): -
Petitions in Public interest - Nature and Purpose
of Reservation in Local Bodies - challenging the
Government Order - whereby on expiry of the
term of various local bodies, the respective
District Magistrate of districts shall authorize
operation of bank accounts of such Local Bodies
under the joint signature of the Executive
Officer - in the light of directions & interim
arrangement made by the Division Bench of this
Court vide its judgment in case of Sandeep @
Sandeep Mehrotra's - the impugned Gov. order
dated 12.12.2022 is hereby quashed - directions
issued, accordingly that till the formation of
elected Body the affairs of such Municipal Body
shall
be
conducted
by
a
three-member
Committee headed by the DM concern, of which
the
Executive
Officer/Chief
Executive
officer/Municipal
Commissioner
shall
be
a
member. (Para - 8.51, 8.52-B, D)
876 INDIAN LAW REPORTS ALLAHABAD SERIES
(C) Civil Law - U. P. Municipalities
Act,1916 - Sections 2(1), 7, 9(a) &
9(a)(5)(3),
-
U.P.
Municipal
Corps
Act,1959 - Section - 2(51-A) & 7, -
Constitution of India,1950 - Articles 141,
144, 15(4), 16(4), 243(d), 243(d)(6),
243(t), 243(t)(1), 243(t)(2), 243(t)(6) &
243(u)
-
U.
P.
St.
Public
Services
Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Back-ward
Classes Act, 1994 - Section 2(b): -
Petitions in Public interest - seeking direction to
the St. Govt. to include the transgender in the
Backward Class of Citizens in the matter of
election to the Urban Local bodies - in the light
of judgment rendered by Hon'ble Apex Court in
case of National Legal Services Authority's,
same may be wisdom of the St. govt. once the
dedicated
Commission
conducts
contemporaneous rigorous empirical inquiry into
th

## Text

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1 All. Vaibhav Pandey Vs. State of U.P. & Anr.
875
----------
(2023) 1 ILRA 875
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH LAVANIA, J.

Public Interest Litigation No. 878 of 2022
Connected with
Writ C No. 8904 of 2022 and other cases

Vaibhav Pandey ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Piyush Pathak

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

(A) Civil Law - U. P. Municipalities
Act,1916 - Sections 2(1), 7, 9(a) &
9(a)(5)(3), - U.P. Municipal Corps Act,
1959
-
Section
-
2(51-A),
7
-
Constitution of India,1950 - Articles
141,
144,
15(4),
16(4),
243(d),
243(d)(6),
243(t),
243(t)(1),
243(t)(2), 243(t)(6) & 243(u), - U. P.
St. Public Services Reservation for
Scheduled Castes, Scheduled Tribes
and Other Back-ward Classes Act,
1994 - Section 2(b): - Petitions in
Public interest - Nature and Purpose of
Reservation in Local Bodies - challenging
the notification issued by St. Govt. -
inviting objections - to the proposed
determination of numbers/seats of officers
of the Chairpersons of different Municipals
Bodies specially confined to providing
reservation to the Backward Class of
Citizens - St. raised takes plea that
petitions are premature at this stage -
provisions contained in different articles
of constitution of India, enabling St. to
make a provision for reservation of seats in
local bodies for SC, ST, women or OBC are
almost in pari material - court held that,
the
requirement
of
triple/conditions,
regarding (i) observation of ceiling of 50%
reservation provided to SC/ST/OBC & (ii)
constitution of a dedicated Commission to
conduct an empirical inquiry into the
nature and implications of backwardness in
relation to Local Bodies (iii) providing the
proportion of the reservation required in
the light of recommendation of such
commission, as directed and contemplated
by the Hon'ble Apex Court in case of K.
Krishna Murthy & Vikas Kishanrao Gawali,
are not full fill in this case - hence, the
impugned notification dated 05.12.2022 is
hereby
quashed
-
directions
issued,
accordingly
for
notify
the
elections
immediately and notification to be issued
for elections shall include the reservation
in terms of constitutional provision . (Para
- 8.33, 8.52-A, C)

(B) Civil Law - U. P. Municipalities Act,
1916 - Section 2(1), 7, 9(a) & 9(a)(5)(3),
- U.P. Municipal Corps Act, 1959 - Sections
- 2(51-A) & 7 - Constitution of India, 1950
- Articles 141, 144, 15(4), 16(4), 243(d),
243(d)(6), 243(t), 243(t)(1), 243(t)(2),
243(t)(6) & 243(u), - U. P. St. Public
Services
Reservation
for
Scheduled
Castes, Scheduled Tribes and Other Backward Classes Act,1994 - Section - 2(b): -
Petitions in Public interest - Nature and Purpose
of Reservation in Local Bodies - challenging the
Government Order - whereby on expiry of the
term of various local bodies, the respective
District Magistrate of districts shall authorize
operation of bank accounts of such Local Bodies
under the joint signature of the Executive
Officer - in the light of directions & interim
arrangement made by the Division Bench of this
Court vide its judgment in case of Sandeep @
Sandeep Mehrotra's - the impugned Gov. order
dated 12.12.2022 is hereby quashed - directions
issued, accordingly that till the formation of
elected Body the affairs of such Municipal Body
shall
be
conducted
by
a
three-member
Committee headed by the DM concern, of which
the
Executive
Officer/Chief
Executive
officer/Municipal
Commissioner
shall
be
a
member. (Para - 8.51, 8.52-B, D)
876 INDIAN LAW REPORTS ALLAHABAD SERIES
(C) Civil Law - U. P. Municipalities
Act,1916 - Sections 2(1), 7, 9(a) &
9(a)(5)(3),
-
U.P.
Municipal
Corps
Act,1959 - Section - 2(51-A) & 7, -
Constitution of India,1950 - Articles 141,
144, 15(4), 16(4), 243(d), 243(d)(6),
243(t), 243(t)(1), 243(t)(2), 243(t)(6) &
243(u)
-
U.
P.
St.
Public
Services
Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Back-ward
Classes Act, 1994 - Section 2(b): -
Petitions in Public interest - seeking direction to
the St. Govt. to include the transgender in the
Backward Class of Citizens in the matter of
election to the Urban Local bodies - in the light
of judgment rendered by Hon'ble Apex Court in
case of National Legal Services Authority's,
same may be wisdom of the St. govt. once the
dedicated
Commission
conducts
contemporaneous rigorous empirical inquiry into
the nature and implications of Backwardness in
the local bodies - the claim of transgender for
their inclusion amongst Backward Class of
citizens shall also be considered - directions
accordingly. (Para - 8.52, 8.52-D)

Civil Law - U. P. Municipalities Act,1916 -
Sections - 2(1), 7, 9(a) & 9(a)(5)(3), - U.P.
Municipal Corps Act,1959 - Sections 2(51A) & 7- - Constitution of India, 1950 -
Articles 141, 144, 15(4), 16(4), 243(d),
243(d)(6), 243(t), 243(t)(1), 243(t)(2),
243(t)(6) & 243(u), - U. P. St. Public
Services
Reservation
for
Scheduled
Castes, Scheduled Tribes and Other Backward Classes Act, 1994 - Section 2(b): -
Petitions in Public interest - nature and propose
of reservation in Local Bodies - Legal Maxim -
nullus commodum capere potest de injuria sua
propria - in the light of observation expressed
by Hon'ble Apex Court in case of Devendra
Kumar's - Court cannot permit the St. to reap
the fruits of its own wrong - A person having
done a wrong cannot take advantage of its own
wrong . (Para - 8.47)

Writ Petitions Disposed of. (E-11)

List of Cases cited:

1. National Legal Services Authority Vs U.O.I.
(decided on 15.04.2014 - W P (Civil) No. 400 of
2012),
2. K. Krishna Murthy Vs U.O.I., (2010) 7 SCC
202 : (2010) 2 SCC 202,

3. Vikas Kishanrao Gawali Vs St. of Mah. & ors.
(2021) 6 SCC 73,

4. Suresh Mahajan Vs St. of M. P. & anr., 2022
SCC Online SC 589,

5. Sandeep @ Sandeep Mehrotra & ors. Vs St.
of U.P. & ors. (delivered on 05.12.2011 - WP
No.11226/2011),

6. Indira Sawhney Vs U.O.I., reported in 1992
Supp3 SCC 217,

7. Sunil Kumar Vs St. of Bihar & ors. (decided on
04.10.2022 WP (Civil) No. 13513/2022),

8. Devendra Kumar Vs St. of Uttaranchal & ors.,
2013 9 SCC 363,

9. Kusheshwar Prasad Singh Vs St. of Bihar &
ors., reported in (2007) 11 SCC 447,

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Prologue

1.1 It is inclusion not exclusion,
equality not inequality and democracy not
executive fiat that runs as a common thread
throughout our Constitution. In a society as
diverse as ours it has been the endeavour of
our
Constitutional
Courts
to
further
strengthen this thread.

With this percept in mind, we
proceed to consider the issues posed before
us in this batch of petitions which raise
similar questions of fact and law and hence
are being decided by this common
judgment which follows:

1.2 Some of these petitions have been
filed as Public Interest Litigation and some of
them raise the alleged personal grievance
1 All. Vaibhav Pandey Vs. State of U.P. & Anr.
877
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
(hereinafter referred to as 'Municipalities
Act') 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.

1.3 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.

1.4 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.
The said prayer has been made in the light of
the judgment of Hon'ble Supreme Court 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.

1.5 Preliminary objection as to the
maintainability of the writ 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.

2. Facts

2.1 The Parliament by enacting the
Constitution (Seventy-fourth) Amendment
Act 1992 inserted Part IXA in the
Constitution of India w.e.f. 01.06.1993
with the object of incorporating the
provisions relating to urban local bodies in
the Constitution for empowering such
bodies so that these bodies are able to
perform effectively as vibrant democratic
units of self-government. The Statement of
Objects
and
Reasons
for
the
74th
Constitutional Amendment is as follows:

"STATEMENT OF OBJECTS AND
REASONS

1. In many States local bodies
have become weak and ineffective on
account of a variety of reasons, including
the failure to hold regular elections,
prolonged supersession and inadequate
devolution of powers and functions. As a
result, Urban Local Bodies are not able to
perform effectively as vibrant democratic
units of self-government.

2.
Having
regard
to
these
inadequacies, it is considered necessary
that provisions relating to Urban Local
Bodies
are
incorporated
in
the
Constitution particularly for-
878 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) putting on a firmer footing
the
relationship
between
the
State
Government and the Urban Local Bodies
with respect to-

(a) the functions and taxation
powers; and

(b) arrangements for revenue
sharing;

(ii) Ensuring regular conduct of
elections;

(iii) ensuring timely elections in
the case of supersession; and

(iv)
providing
adequate
representation for the weaker sections like
Scheduled Castes, Scheduled Tribes and
women.

3. Accordingly, it is proposed to
add a new part relating to the Urban
Local Bodies in the Constitution to
provide for-

(a) constitution of three types of
Municipalities:

(i) Nagar Panchayats for areas
in transition from a rural area to urban
area;

(ii)
Municipal
Councils
for
smaller urban areas;

(iii) Municipal Corporations for
larger urban areas. The broad criteria for
specifying the said areas is being provided
in the proposed article 243-0;

(b)
composition
of
Municipalities, which will be decided by
the Legislature of a State, having the
following features:

(i) persons to be chosen by direct
election;

(ii)
representation
of
Chairpersons of Committees, if any, at
ward or other levels in the Municipalities;

(iii) representation of persons
having special knowledge or experience of
Municipal
Administration
in
Municipalities (without voting rights);

(c) election of Chairpersons of a
Municipality in the manner specified in
the State law;

(d) constitution of Committees at
ward level or other level or levels within
the territorial area of a Municipality as
may be provided in the State law;

(e) reservation of seats in every
Municipality-

(i) for Scheduled Castes and
Scheduled Tribes in proportion to their
population of which not be less than onethird shall be for women;

(ii) for women which shall not be
less than one-third of the total number of
seats;

(iii) in favour of backward class
of citizens if so provided by the Legislature
of the State;

(iv)
for
Scheduled
Castes,
Scheduled Tribes and women in the office
of Chairpersons as may be specified in the
State law;

(f) fixed tenure of 5 years for the
Municipality and re-election within six
months of end of tenure. If a Municipality
is dissolved before expiration of its
duration, elections to be held within a
period of six months of its dissolution;

(g) devolution by the State
Legislature of powers and responsibilities
upon the Municipalities with respect to
preparation
of
plans
for
economic
development and social justice, and for the
implementation of development schemes
as may be required to enable them to
function
as
institutions
of
selfgovernment;

(h) levy of taxes and duties by
Municipalities, assigning of such taxes
and duties to Municipalities by State
Governments and for making grants-inaid by the State to the Municipalities as
may be provided in the State law;
1 All. Vaibhav Pandey Vs. State of U.P. & Anr.
879

(i) a Finance Commission to
review the finances of the Municipalities
and to recommend principles for-

(1) determining the taxes which
may be assigned to the Municipalities;

(2) Sharing of taxes between the
State and Municipalities

(3)
grants-in-aid
to
the
Municipalities from the Consolidated
Fund of the State;

(j) audit of accounts of the
Municipal
Corporations
by
the
Comptroller and Auditor-General of India
and
laying
of
reports
before
the
Legislature of the State and the Municipal
Corporation concerned;

(k) making of law by a State
Legislature with respect to elections to the
Municipalities to be conducted under the
superintendence, direction and control of
the chief electoral officer of the State;

(l) application of the provisions
of the Bill to any Union territory or part
thereof with such modifications as may be
specified by the President;

(m) exempting Scheduled areas
referred to in clause (1), and tribal areas
referred to in clause (2), of article 244,
from the application of the provisions of
the Bill. Extension of provisions of the
Bill to such areas may be done by
Parliament by law;

(n)
disqualifications
for
membership of a Municipality

(o) bar of jurisdiction of Courts
in matters relating to elections to the
Municipalities.

2.2 Article 243-T inserted in the
Constitution
vide
74th
Amendment
provides that in every Municipality seats
shall be reserved for the Scheduled Castes
and the Scheduled Tribes and number of
seats to be reserved for these category of
citizens shall bear the same proportion to
the total number of seats to be filled by
direct election, as nearly as may be, as the
population of these classes in the Municipal
area bears to the total population of that
area. This provision also states that
allotment of such seats may be done by
rotation of different constituencies in a
Municipality. Sub clause 2 of Article 243-T
makes a provision for reserving not less
than one-third of the total number of seats
for women belonging to the Scheduled
Castes or the Scheduled Tribes. Sub clause
3 provides that not less than one-third of
the total number of seats to be filled in in
every Municipality shall be reserved for
women and allotment thereof shall be made
by rotation, including the number of seats
reserved for women belonging to the
Scheduled Castes and the Scheduled
Tribes. Apart from making a provision for
reservation against the seats in the manner
provided in Article 243-T (1)(2) & (3), sub
clause (4) provides that the offices of
Chairpersons shall also be reserved for the
the Scheduled Castes, the Scheduled Tribes
and women in such manner as may be
provided by the Legislature of a State.

2.3 Thus, so far as the reservation of
seats in a Municipality for the Scheduled
Castes, the Scheduled Tribes and women is
concerned, it is constitutionally mandated,
however, so far as reservation to "backward
class of citizens" is concerned, sub clause
(6) of Article 243-T only contains an
enabling provision according to which the
Legislature of a State can make a provision
for reservation of seats in a Municipality or
offices of Chairpersons, in their favour.

2.4

Since
various
provisions
contained in Part IX-A of the Constitution
of India required corresponding changes to
be made by the State Legislatures in the
respective municipal laws, by enacting U.P.
880 INDIAN LAW REPORTS ALLAHABAD SERIES
Act no.12 of 1994, the Municipalities Act
in the State of Uttar Pradesh was
exhaustively amended. Similarly, by the
same amending Act, namely, U.P. Act No.
12 of 1994, Uttar Pradesh Municipal
Corporations
Act,
1959
was
also
exhaustively amended.

2.5 For giving effect to Article 243-T
of the Constitution of India, section 9-A
and section 7 were inserted in the
Municipalities Act, 1916 and the Municipal
Corporations Act, 1959 respectively. These
provisions provide for reservation of seats
and for offices of Chairpersons in the
Municipalities
and
in
the
Municipal
Corporations.

2.6 We may note that almost
simultaneous with insertion of Part IX-A in
the Constitution of India, Part IX which is
in relation to Panchayats, which are local
self-government bodies working in the
rural areas was inserted by enacting the
Constitution (Seventy-third) Amendment
Act, 1992 which came into force w.e.f.
24.04.1993. As it was the purpose of Part
IX to strengthen the rural local selfgovernment bodies, provisions almost akin
to the provisions contained in Article 243-T
which falls in Part IX-A was inserted in
Part IX as well in the form of Article 243-D
which
also
provides
constitutionally
mandated reservation in seats and offices of
the Chairpersons of the Panchayats to the
members belonging to the Scheduled
Castes and Scheduled Tribes and also to
women. Clause (6) of Article 243-D
enables the Legislature of a State to make
provisions for reservations of seats or
offices of Chairpersons in Panchayats in
favour of backward class of citizens. Thus
the provisions relating to reservation of the
Scheduled Castes, the Scheduled Tribes,
women and backward class of citizens as
available in the Constitution for Rural
Local Bodies are almost in pari materia
with such provisions available in the
Constitution for Urban Local Bodies.

2.7 Constitutional validity of some
aspects of reservation policy prescribed in
the Constitution in respect of local selfgovernment institutions, both for rural and
urban areas, became subject matter of
challenge before Hon'ble Supreme Court in
the case of K. Krishna Murthy and
others vs. Union of India and another,
reported in (2010) 7 SCC 202. The
provisions in the Constitution which enable
reservation in favour of Backward Classes
in the seats and also in the offices of
Chairpersons of these bodies was also
challenged which was considered by the
Constitution Bench of Hon'ble Supreme
Court and nothing foul was found with
Articles
243-D
and
243-T
of
the
Constitution of India. We may also hasten
to add that in the case of K. Krishna
Murthy (supra) the provisions providing
reservation in the seats and in the office of
Chairpersons of Panchayats available in
Uttar Pradesh Panchayat Raj Act and Uttar
Pradesh (Kshettra Panchayats and Zila
Panchayats) Adhiniyam, 1961, which are
akin to section 9-A and section 7 of
Municipalities
Act
and
Municipal
Corporations
Act
were
also
under
challenge, however, the Constitution Bench
of Hon'ble Supreme Court did not examine
the said challenge for the reasons stated in
the judgments itself.

2.8 The Constitution Bench of
Hon'ble Supreme Court in the case of K.
Krishna Murthy (supra) arrived at five
conclusions and inter alia held that nature
and purpose of reservation in relation to
local bodies is considerably different from
that in relation to higher education and
1 All. Vaibhav Pandey Vs. State of U.P. & Anr.
881
public employment and that Article 243-D
and Article 243-T form a distinct and
independent
Constitutional
basis
for
affirmative action and further that the
principles evolved in relation to reservation
enabled by Articles 15(4) and 16(4) cannot
be applied in the context of local bodies.
Hon'ble Supreme Court also found itself
not in a position to examine the issue
relating to over breadth of quantum of
reservation provided for backward classes
of citizens under the State of Legislations
(which included the Legislations relating to
Panchayats in the State of Uttar Pradesh as
well) for the reason that there was no
contemporaneous empirical data available.
In this fact situation, the Constitution
Bench also observed that onus is on the
Executive
to
conduct
a
rigorous
investigation
into
the
patterns
of
backwardness that act as barriers to
political participation which, in the opinion
of the Constitution Bench of Hon'ble
Supreme Court, are quite different from
patterns of disadvantages in the matter of
access to education and employment.

2.9 The Constitution Bench of Hon'ble
Supreme Court in the case of K. Krishna
Murthy (supra) expressed a view that
identification of "Backward Classes" under
Article 243-D(6) and Article 243-T(6) has to
be distinct from identification of "socially and
educationally backward Classes" for the
purposes of Article 15(4) and that of
"Backward Classes" for the purposes of
Article 16(4).

2.10 After the judgment by the
Constitution Bench of Hon'ble Supreme
Court in the case of K. Krishna Murthy
(supra) the matter relating to reservation of
backward classes of citizens in terms of
Article 243-T again engaged attention of
Hon'ble Supreme Court in a case which
emanated from State of Maharashtra, namely,
Vikas Kishanrao Gawali vs. State of
Maharashtra and others, decided on
04.03.2021, reported in (2021) 6 SCC 73. In
this judgment Hon'ble Supreme Court clearly
expressed its opinion that reservation for
backward classes of citizens is only statutory
in nature to be provided by the State
Legislatures
unlike
the
constitutional
reservation regarding Scheduled Castes and
Scheduled Tribes which is linked to the
proportion of population. The apex Court in
the case of Vikas Kishanrao Gawali (supra)
also observed that State-authorities are under
obligation to fulfill certain pre-conditions
before reserving seats for Backward Class of
citizens in the local bodies and outlined that
foremost requirement is to collate adequate
materials and documents that would help in
identification of backward classes for the
purposes of reservation by conducting a
contemporaneous rigorous empirical enquiry
into
the
nature
and
implications
of
backwardness
through
an
independent
dedicated Commission.

2.11 Keeping in view the law laid down
by 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 Hon'ble
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
882 INDIAN LAW REPORTS ALLAHABAD SERIES
body-wise
in
the
light
of
the
recommendations of the Commission so as
not to face foul of over breadth, and

(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.

2.12 These petitions have, thus, been
filed with the primary allegation that the
State Government by issuing the impugned
notification dated 05.12.2022 is acting not
only against the constitutional mandate
contained in Article 243-T but is also not
following the principles as mandated by
Hon'ble Supreme Court in the aforesaid
two judgments in the case of K. Krishna
Murthy (supra) and Vikas Kishanrao
Gawali (supra).

3.

Relevant
Constitutional
Provisions

3.1 In the course of arguments various
constitutional provisions have been referred
to by the learned counsel representing the
respective parties and we will also be
taking into account such provisions in our
discussion in this judgment. The relevant
constitutional provisions are:

(i) Article 243-D. Reservation of
seats.-(1) Seats shall be reserved for-

(a) the Scheduled Castes; and

(b) the Scheduled Tribes,

in every Panchayat and the
number of seats so reserved shall bear, as
nearly as may be, the same proportion to
the total number of seats to be filled by
direct election in that Panchayat as the
population of the Scheduled Castes in that
Panchayat area or of the Scheduled Tribes
in that Panchayat area bears to the total
population of that area and such seats may
be
allotted
by
rotation
to
different
constituencies in a Panchayat.

(2) Not less than one-third of the
total number of seats reserved under clause
(1) shall be reserved for women belonging
to the Scheduled Castes or, as the case may
be, the Scheduled Tribes.

(3) Not less than one-third
(including the number of seats reserved for
women belonging to the Scheduled Castes
and the Scheduled Tribes) of the total
number of seats to be filled by direct
election in every Panchayat shall be
reserved for women and such seats may be
allotted
by
rotation
to
different
constituencies in a Panchayat.

(4)
The
offices
of
the
Chairpersons in the Panchayats at the
village or any other level shall be reserved
for the Scheduled Castes, the Scheduled
Tribes and women in such manner as the
Legislature of a State may, by law, provide:

Provided that the number of
offices of Chairpersons reserved for the
Scheduled Castes and the Scheduled Tribes
in the Panchayats at each level in any State
shall bear, as nearly as may be, the same
proportion to the total number of such
offices in the Panchayats at each level as
the population of the Scheduled Castes in
the State or of the Scheduled Tribes in the
State bears to the total population of the
State:

Provided further that not less
than one-third of the total number of offices
of Chairpersons in the 97 Panchayats at
each level shall be reserved for women:

Provided also that the number of
offices reserved under this clause shall be
allotted by rotation to different Panchayats
at each level.

(5) The reservation of seats under
clauses (1) and (2) and the reservation of
offices of Chairpersons (other than the
reservation for women) under clause (4)
1 All. Vaibhav Pandey Vs. State of U.P. & Anr.
883
shall cease to have effect on the expiration
of the period specified in article 334.

(6) Nothing in this Part shall
prevent the Legislature of a State from
making any provision for reservation of
seats in any Panchayat or offices of
Chairpersons in the Panchayats at any
level in favour of backward class of
citizens.

(ii) Article 243-T. Reservation
of seats.--(1) Seats shall be reserved for the
Scheduled Castes and the Scheduled Tribes
in every Municipality and the number of
seats so reserved shall bear, as nearly as
may be, the same proportion to the total
number of seats to be filled by direct
election in that Municipality as the
population of the Scheduled Castes in the
Municipal area or of the Scheduled Tribes
in the Municipal area bears to the total
population of that area and such seats may
be
allotted
by
rotation
to
different
constituencies in a Municipality.

(2) Not less than one-third of
the total number of seats reserved under
clause (1) shall be reserved for women
belonging to the Scheduled Castes or, as
the case may be, the Scheduled Tribes.

(3) Not less than one-third
(including the number of seats reserved
for women belonging to the Scheduled
Castes and the Scheduled Tribes) of the
total number of seats to be filled by direct
election in every Municipality shall be
reserved for women and such seats may
be allotted by rotation to different
constituencies in a Municipality.

(4) The offices of Chairpersons
in the Municipalities shall be reserved for
the Scheduled Castes, the Scheduled
Tribes and women in such manner as the
Legislature of a State may, by law,
provide.

(5) The reservation of seats
under clauses (1) and (2) and the
reservation of offices of Chairpersons
(other than the reservation for women)
under clause (4) shall cease to have effect
on the expiration of the period specified
in Article 334.

(6) Nothing in this Part shall
prevent the Legislature of a State from
making any provision for reservation of
seats in any Municipality or offices of
Chairpersons in the Municipalities in
favour of backward class of citizens.

(iii) Article 243-U. Duration of
Municipalities,
etc.--(1)
Every
Municipality, unless sooner dissolved
under any law for the time being in force,
shall continue for five years from the date
appointed for its first meeting and no
longer:

Provided that a Municipality
shall be given a reasonable opportunity
of being heard before its dissolution.

(2) No amendment of any law
for the time being in force shall have the
effect
of
causing
dissolution
of
a
Municipality at any level, which is
functioning
immediately
before
such
amendment, till the expiration of its
duration specified in clause (1).

(3) An election to constitute a
Municipality shall be completed,--

(a) before the expiry of its
duration specified in clause (1);

(b) before the expiration of a
period of six months from the date of its
dissolution:

Provided
that
where
the
remainder of the period for which the
dissolved
Municipality
would
have
continued is less than six months, it shall
not be necessary to hold any election
under this clause for constituting the
Municipality for such period.

(4) A Municipality constituted
upon the dissolution of a Municipality
before the expiration of its duration shall
884 INDIAN LAW REPORTS ALLAHABAD SERIES
continue only for the remainder of the
period for which the dissolved Municipality
would have continued under clause (1) had
it not been so dissolved.

(iv) Article 340. Appointment of
a
Commission
to
investigate
the
conditions of backward classes.--(1) The
President
may
by
order
appoint
a
Commission consisting of such persons as
he thinks fit to investigate the conditions of
socially
and
educationally
backward
classes within the territory of India and the
difficulties under which they labour and to
make recommendations as to the steps that
should be taken by the Union or any State
to remove such difficulties and to improve
their condition and as to the grants that
should be made for the purpose by the
Union or any State and the conditions
subject to which such grants should be
made, and the order appointing such
Commission shall define the procedure to
be followed by the Commission.

(2) A Commission so appointed
shall investigate the matters referred to
them and present to the President a report
setting out the facts as found by them and
making such recommendations as they
think proper.

(3) The President shall cause a
copy of the report so presented together
with a memorandum explaining the action
taken thereon to be laid before each House
of Parliament.

(v) Article 15(4). Nothing in this
article or in clause (2) of Article 29 shall
prevent the State from making any special
provision for the advancement of any
socially
and
educationally
backward
classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.

(vi) Article 15(5). Nothing in this
article or in sub-clause (g) of clause (1) of
Article 19 shall prevent the State from
making any special provision, by law, for
the advancement of any socially and
educationally backward classes of citizens
or for the Scheduled Castes or the
Scheduled Tribes in so far as such special
provisions relate to their admission to
educational institutions including private
educational institutions, whether aided or
unaided by the State, other than the
minority educational institutions referred to
in clause (1) of Article 30.

(vii) Article 16(4). Nothing in
this article shall prevent the State from
making any provision for the reservation of
appointments or posts in favour of any
backward class of citizens which, in the
opinion of the State, is not adequately
represented in the services under the State.

4.

The
provisions
in
State
enactments

The relevant provisions of the State
enactments which are to be referred to and
considered are :

4.1 Section 9-A of U.P. Municipalities
Act, 1916 which is as under:

"Section 9-A Reservation of
seats. - (1) In every municipality seats shall
be reserved for the [Scheduled Castes, the
Scheduled
Tribes
and
the
Backward
Classes] and the number of seats so
reserved shall bear, as nearly as may be,
the same proportion to the total number of
seats to be filled by direct election in that
municipality as the population of the
Scheduled Castes in the Municipal area or
of the Scheduled Tribes in the Municipal
area [or of the Backward Classes in the
Municipal area]
bears
to
the
total
population of such area and such seats may
be allotted by rotation to different wards in
a municipality in such order as may be
prescribed by rules:[Provided that the
1 All. Vaibhav Pandey Vs. State of U.P. & Anr.
885
reservation for the backward classes shall
not exceed twenty seven per cent of the
total number of seats in the municipality.

Provided further that if the
figures of population of the backward
classes are not available, their population
may be determined by carrying out a
survey in the manner prescribed by rules.]

(2) [* * *]

(3) Not less than one-third of the
total number of seats reserved under [subsection (1)] shall be reserved for the
women belonging to the Scheduled Castes,
the Scheduled Tribes or the Backward
Classes, as the case may be.

(4) Not less than one-third of the
total number of seats in a municipality
including the number of seats reserved
under sub-section (3) shall be reserved for
women and such seats may be allotted by
rotation to different wards in a municipality
in such order as may be prescribed by
rules.

[(5) The offices of President and[
* * *] of the Municipal Councils and
Nagar Panchayat shall be reserved and
allotted for the Scheduled Castes, the
Scheduled
Tribes
and
the
Backward
Classes and Women, in the manner given
below :-

(1) Reservation and allotment of
offices of the President. - (a) The
reservation and allotment of offices of the
President under this sub-section, shall be
done separately for the Municipal Councils
and Nagar Panchayats in the manner
hereinafter provided.

(b) The number of offices to be
reserved -

(i) for the Scheduled Castes or for
the Scheduled Tribes or for the backward
classes shall be determined in the manner
that it shall bear, as nearly as may be, the
same proportion to the total number of
offices in the State as the population of the
Scheduled Castes in the urban area of the
State, or of the Scheduled Tribes in the
urban area of the State, or of the backward
classes in the urban area of the State bears
to the total population of such area in the
State and if in determining such number of
offices, there comes a remainder then, if it
is half or less than half of the divisor, it
shall be ignored and if it is more than half
of the divisor, the quotient shall be
increased by one and the number so arrived
at shall be the number of offices to be
reserved for the Scheduled Castes or the
Scheduled Tribes or the backward classes,
as the case may be :

Provided that the number of
offices to be reserved for the backward
classes under this clause shall not be more
than twenty-seven per cent of the total
number of offices in the State;

(ii) for the women belonging to
the Scheduled Castes, the Scheduled Tribes
and the backward classes, as the case may
be, under sub-section (3) shall not be less
than one-third of the number of offices for
the Scheduled Castes, Scheduled Tribes
and for the backward classes and if in
determining such number of offices there
comes a remainder then the quotient shall
be increased by one and the number so
arrived at shall, as the case may be, the
number of offices be reserved for women
belonging
to
the
Scheduled
Castes,
Scheduled Tribes and backward classes :

Provided that the number of
offices to be reserved for the backward
classes under this clause shall not be more
than twenty-seven per cent of the total
number of offices in the State;

(iii) for the women belonging to
the Scheduled Castes, the Scheduled Tribes
and the backward classes, as the case may
be, under sub section (3) shall not be less
than one-third of the number of offices for
the Scheduled Castes, Scheduled Tribes
886 INDIAN LAW REPORTS ALLAHABAD SERIES
and for the backward classes and if in
determining such number of offices there
comes a remainder then the quotient shall
be increased by one and the number so
arrived at shall, as the case may be, the
number of offices be reserved for women
belonging
to
the
Scheduled
Castes,
Scheduled Tribes and backward classes.

(c) All Municipal Councils and
Nagar Panchayats of the State shall be
arranged in such serial order that the
Municipal Councils or Nagar Panchayats
having largest percentage of population of
Scheduled Castes in the State, shall be
placed at Serial Number 1 and Municipal
Councils or Nagar Panchayats having
lesser population of the Scheduled Castes
than those shall be placed at number 2 and
the
rest
shall
likewise
be
placed
respectively at succeeding numbers.

(d) Subject to item (ii) of subclause (b) the number of offices of the
Presidents determined under sub-clause (b)
for Municipal Councils or the Nagar
Panchayats of the State shall be allotted to
different Municipal Councils or Nagar
Panchayats in the State, as the case may
be, in the manner that -

(i)
the
number
of
offices
determined under item (i) of sub-clause (b)
for the offices of Scheduled Castes
including the number of offices determined
under item (ii) of the said sub-clause for
the women belonging to the Scheduled
Castes, shall be allotted to Scheduled
Castes next to the Municipal Council or
Nagar Panchayat placed at Serial No. 1
under sub-clause (c) :

Provided that such Municipal
Council or Nagar Panchayats shall be
first allotted to the
 women belonging to the Scheduled
Castes:

(ii)
the
number
of
offices
determined under item (i) of sub-clause
(b) for the offices of Scheduled Tribes
including
the
number
of
offices
determined under item (ii) of the said
sub-clause for the women belonging to
the Scheduled Tribes be allotted to
Scheduled Tribes serial-wise next to the
last serial allotted under item (i) :

Provided that such Municipal
Council or Nagar Panchayat shall be
first allotted to the women belonging to
the Scheduled Tribes.

(iii) the number of offices
determined under item (i) of sub-clause
(b), for the offices of backward classes
including
the
number
of
offices
determined under item (ii) of the said
sub-clause for the women belonging to
the backward classes shall be allotted to
backward classes serial-wise next to the
last serial number allotted under item (ii)
:

Provided that such Municipal
Council or Nagar Panchayat shall be
first allotted to the women belonging to
the backward classes.