"State Doesn't Fulfill Triple Test Formality": Allahabad HC Directs SEC To Notify ULB Polls Without OBC Quota, Include Women Quota

In a significant decision, the Allahabad High Court has directed the State Election Commission to immediately notify the Urban Local Body Polls without OBC reservation. The court ordered thus as it held that the state government doesn't fulfill the Triple Test Formality as laid down by the Apex Court.

The bench of Justice Devendra Kumar Upadhyaya and Justice Saurabh Lavania also ordered that Polls notification shall include the reservation for women in terms of the constitutional provisions.

"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," the Court direcetd.

Significantly, the state has also been directed to consider the claim of transgenders for their inclusion among the Backward Class of citizens once a dedicated Commission is constituted for undertaking the exercise of conducting the empirical study as to the nature and implications of Backwardness for the purposes of providing reservation to the Backward Class of citizens in the context of elections to the urban local bodies.

With this, the bench quashed the draft notification issued by the Uttar Pradesh government on December 5 expressing its intent to conduct Urban Local Body Elections after reserving 4 mayor seats in the state for Other Backward Classes (OBCs) despite not fulfilling the 'triple test' formalities as prescribed in the case of Vikas Kishanrao Gawali v. State of Maharashtra & Ors. LL 2021 SC 13 by the Top Court, to determine the political backwardness of OBCs.

It may be noted that the court's decision comes in a bunch of pleas challenging the Government's draft notification to provide for OBC quota in the elections without filling the triple test formality.

For context, in the Vikas Kishanrao Gawali case, the Apex Court had noted that a triple test is to be followed before provisioning reservation for the OBC category. The said triple test involves

The Allahabad High Court noted that the UP Government didn't constitute any dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies and without such data being available, providing quota for OBC was not valid.

"8.43 It is not a case where the State has set up the dedicated Commission for conducting the empirical study into the nature and implications of backwardness for the purposes of providing Page No.82 reservation to Backward Class of citizens in the local selfgovernment institutions and thereafter made necessary changes in the statutory prescriptions. Thus, the State has completely failed to comply with the dictum and directions of Hon'ble Supreme Court in the judgments contained in K. Krishna Murthy (supra) and Vikas Kishanrao Gawali (supra)," the Court remarked (emphasis supplied)

The Court also stressed that the State cannot be permitted to flout the dictum of the Supreme Court mandating the governments to take a relook at its policies including the Legislative policies with regard to reservation in local self-government bodies.

"Accordingly, 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 Hon'ble Supreme Court in the case of K. Krishna Murthi (supra) and also in the case of Vikas Kishanrao Gawai (supra). The State has, however, failed to re-frame its policies according to the mandate of Hon'ble 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 Court ruled.

Consequently, in its order, the Court issued 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 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.

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, the 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. However, the said Committee shall discharge only day-to-day functions of the Municipal Body concerned and shall not take any major policy decision. We 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. We also direct 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 - Vaibhav Pandey vs. State Of U.P. Thru. Prin. Secy. Deptt. Urban along with connected matters

Case Citation: 2022 LiveLaw (AB) 541

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