Supreme Court Directs Maharashtra State Election Commission To Conduct General Election For Panchayat Samiti, Shrirampur Following 'Triple Test' For OBC Reservation

The Supreme Court today directed the State Election Commission, Maharashtra to ensure that the General Election to constitute Panchayat Samiti, Shrirampur is conducted in "right earnest" and strictly in accordance with the triple test laid down in Vikas Kishanrao Gavali v State of Maharashtra for ensuring that the newly elected body takes over at the same time on the expiry of the incumbent Samiti's term on February 23, 2022.

While disposing of the  SLP assailing Bombay High Court's order of upholding State of Maharashtra's decision of reserving the post of Chairperson of Panchayat Samiti, Shrirampur for Other Backward Class category ("impugned decision"), the bench of Justices AM Khanwilkar and Dinesh Maheshwari also asked the incumbent Chairperson, elected as OBC candidate to not participate in taking any policy decision in connection with the Panchayat Samiti.

"However while disposing this petition we direct continuance of the interim order to the effect that the respondent number 7 who has been elected as Chairperson of the Panchayat Samiti, Shrirampur shall not take any policy decision in connection with Panchayat Samiti until the general body election of the said Samiti is conducted & newly constituted samiti takes over.

As aforesaid, although we are not approving action of the collector we do not wish to pass any directions owing to the short tenure left for the conduct of the General Election for the constitution of Panchayat Samiti. We direct the State Election Commission to ensure that the General Election to constitute panchayat samiti is conducted in right earnest to ensure that the newly elected body takes over at the same time when the term of the incumbent Samiti expires on February 23, 2022. Needless to observe that general election shall be strictly conducted as per the decision of this court in Vikas Gavali v. State of Maharashtra & Ors on 4th March 2021," the bench in its order said.

The Top Court on December 13, 2021, while issuing notice in the SLP had also issued notice to the Collector, Ahmednagar as to why no action should be taken against him for his act of inviting election process to fill in the vacancy of OBC seats for the post of Chairperson of Shrirampur Panchayat Samiti and proceeding with the nomination.

Noting that the Collector in the mistaken belief had proceeded with the election by resetting the post of OBC category, the bench said that since the Samiti's term was only up to February 23, 2022 it did not wish to precipitate the matter further.

"The Samiti was constituted after the General Election held on Feb 16, 2017 which did not provide for restrictions which is now spelt out in the decision of this court. Under such mistaken belief the collector proceeded the election by resetting the post of OBC category. As the term of Panchayat smarti is only upto 23 Feb, 2022. In view of this we do not wish to precipitate the matter further & accept the collector's explanation," bench said in its order passed on January 20, 2022.

Advocate K Parameshwar appearing for the petitioner (Deepak Shivram Pathare) had submitted that the impugned decision was in teeth of the Top Court's order in Vikas Gavali v State of Maharashtra.

Advocate Rahul Chitnis appeared for the State of Maharashtra, Advocate Ajit B. Kadethankar for Maharashtra State Election Commission and Advocate Anand Dilip Landge for the incumbent chairperson.

Case Before Bombay High Court

Deepak Shivram Pathare had approached the Supreme Court by filing a writ petition assailing the decision of the respondents reserving the post of the President of Panchayat Samiti, Shrirampur for Other Backward Class category.

The petitioner had contended that if the President of Panchayat Samiti, Shrirampur was to be elected from O.B.C. category, the same would exceed 27% reservation. Relying on Vikas Kishanrao Gawali Vs. The State of Maharashtra and Others reported in LL 2021 SC 13, the petitioner contended that O.B.C. reservation could not exceed beyond 27% under any circumstances.

While refusing to entertain the writ petition, the bench of Justices R. N. Laddha and S. V. Gangapurwala had said,

"The said elections are held pursuant to the Notification of December 2019 under which the post of all Presidents of Panchayat Samities in Ahmednagar district were filled in including that of the President of Panchayat Samiti, Shrirampur. Now only for the remaining three months, the petitioner is assailing the Notification of the year 2019. It would be too late in the day now to consider the challenge to the Notification of December 2019 for the remaining period of three months only. The bye- election is to be held for the remainder of three months. The petitioner has participated in the election process for the election to the post of President pursuant to the same Notification of December 2019 without raising objection to the reservations made pursuant to the said Notification and now for the first time challenging the 2019 Notification at the time of bye-election for remainder period of three months."

Case Title: Deepak Shivram Pathare v. The State Of Maharashtra And Ors.| SLP(C) No. 20160/2021

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