ULB Polls: Allahabad HC Stays Announcement Of Dates, Asks UP Govt Whether 'Triple Test' Procedure For OBC Quota Completed
The Allahabad High Court on Monday restrained the State Election Commission from announcing Urban Local Body Elections notification till today. The State Government has also been restrained from making a final order reserving wards based on the draft order issued on December 5.The bench of Justice Devendra Kumar Upadhyaya and Justice Saurabh Srivastava ordered thus while hearing a Public...
The Allahabad High Court on Monday restrained the State Election Commission from announcing Urban Local Body Elections notification till today. The State Government has also been restrained from making a final order reserving wards based on the draft order issued on December 5.
The bench of Justice Devendra Kumar Upadhyaya and Justice Saurabh Srivastava ordered thus while hearing a Public Interest Litigation (PIL) plea moved by Vaibhav Pandey and other petitioners challenging the State government's notification whereby it sought objections to fixing of quota.
The Court has also asked the state as to whether the "triple test" mandate to institute OBC quotas in local polls had not been carried out by it or not. The triple test mandate has been explained later in this news piece.
The case in brief
Essentially, on December 5, the UP Government issued a draft notification announcing the reservation for the seats of mayor in municipal corporations and chairpersons of Nagar Palika Parishad and Nagar Panchayats.
In the notification issued under Section 9-A(5)(3)(b) of the Municipalities Act 1916, read with Rule 7 of the U.P. Municipalities (Reservation and Allotment of Seats and Offices) Rules 1994, it was inter alia stated that four mayor seats have been reserved for Other Backward Classes (OBCs). Further, it invited objections to the quota allotment from the public within 7 days.
Aggrieved with the same, the Petitioners moved the High Court with the instant PIL plea challenging the draft notification arguing that though the State Government is in the process of conducting the elections for municipalities at various levels in the State of U.P., however for providing the reservation, the mandate of the Supreme Court in the case of Suresh Mahajan vs. State of Madhya Pradesh & Another, 2022 LiveLaw (SC) 463 is not being followed as till date the triple test formality has not been completed.
On the other hand, the State argued that the state till now, has only issued a draft order and has invited objections, and thus, anyone who is aggrieved by the said draft order can file their objections, and for this purpose, a PIL plea was premature. It was also argued that if any exercise for a 'triple test' would be undertaken, it will only delay the process of election, which will be against the very concept of the democratic setup of the municipalities.
Our readers may note that in Suresh Mahajan Case, the Supreme Court had held that no reservation for Other Backward Classes can be provided for the purpose of the Urban Body Elections, unless and until the state concerned completes the triple test formalities as prescribed in the case of Vikas Kishanrao Gawali v. State of Maharashtra & Ors. LL 2021 SC 13 to determine the groups' political backwardness.
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
(1) setting up a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;
(2) specifying 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) not exceeding an aggregate of 50 percent of the total seats reserved in favour of SCs/STs/OBCs taken together.
It is essential to note that the Supreme Court has further directed that in case such exercise cannot be completed before issuing the election program by the State Election Commission, seats (except reserved for scheduled castes and scheduled tribes) must be notified as for the general category.
High Court's order
Having taken into account the arguments of the counsels, the Court, at the outset, opined that it was essential for the Court to ascertain whether in the process of reserving the seats for the purpose of elections of the Urban Local Bodies, the State Government is following the mandate in the case of Suresh Mahajan (supra) or not.
Therefore, entertaining the petition, the Court issued the following directions:
- the State counsel to seek complete instructions by December 13 (today) and till then, no final order would be made by the state based on the draft order issued vide notification under challenge.
- The State Election Commission will not issue the election notification by December 13.
- The petitioners and other persons aggrieved by the impugned notification dated 05.12.2022 can file their objections through E-mail as well at acsud.goup@gmail.com.
With this, the matter has now been listed for further hearing today (13.12.2022) as fresh.
Case title - Vaibhav Pandey vs. State Of U.P. Thru. Prin. Secy. Deptt. Urban Development, Civil Secrt. Lko. And Another [PUBLIC INTEREST LITIGATION (PIL) No. - 878 of 2022]
Click Here To Read/Download Order