w w w . L a w y e r S e r v i c e s . i n



Birru Prathap Reddy & Others v/s The State of Andhra Pradesh Rep. by its Principal Secretary, Department of Panchayat Raj & Rural Development, Secretariat & Others


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    W.P. (PIL) Nos. 2 of 2020, 18183 of 2019, 515, 599, 604, 606, 643, 739 & 1143 of 2020

    Decided On, 02 March 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE CHIEF JUSTICE MR. J.K. MAHESHWARI & THE HONOURABLE MR. JUSTICE NINALA JAYASURYA

    For the Petitioner: S. Pranathi, Anup Koushik Karavadi, M/s. K.M. Krishna Reddy, Marella Radha, M/s. Kiran Tirumalasetti, P.Narahari Babu, M/s. P.S.P. Suresh Kumar, Advocates. For the Respondents: S. Sri Ram, Advocate General, G.V.S. Kishore Kumar & Co., Y. Koteswara Rao, Y. Balaji, Prakash Buddharapu, Advocates.



Judgment Text


(The present Writ Petition is filed seeking issuance of writ of mandamus to declare the Sections 9, 15, 152, 153, 180 and 181 of the Andhra Pradesh Panchayat Raj Act, 1994 as illegal and unconstitutional and the action of the respondents in issuing G.O.Ms.No.176 Panchayat Raj & Rural Development (E&R) Department dated 28.12.2019 and issuing Gazette No.34 dated 03.01.2020 as illegal, arbitrary, violative and consequently strike down Sections 9, 15, 152, 153, 180 and 181 of the Andhra Pradesh Panchayat Raj Act, 1994 and setaside the G.O.Ms.No.176 Panchayat Raj & Rural Development (E&R) Department dated 28.12.2019 and Gazette No.34 dated 03.01.2020 and to conduct elections to the local bodies only after completing the process of fixing the reservation and pass such other orders as it deems fit and proper.)

Common Order: (J.K. Maheshwari, C.J.)

1. This common order shall govern the disposal of W.P.(PIL)No.2 of 2020 and other connected cases in W.P.No.18183 of 2019, W.P.Nos.515, 599, 604, 606, 643, 739 and 1143 of 2020, in which the percentage of the reservation as envisaged under Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter referred to as “APPRA”), fixing the minimum percentage of reservation to the Backward Classes, not less than 34% have been assailed; and as per the said provisions in the ensuing panchayat elections, the seats and offices are reserved in the State of Andhra Pradesh, which exceeds 50% in aggregate. However, looking to the question involved in the present batch of Writ Petitions, facts, circumstances and the relief prayed, all are being heard analogously and decided by this common order.

2. In the batch of the writ petitions, the facts are referred from the W.P.(PIL) No.2 of 2020. The petitioner by filing Writ Petition under Article 226 of the Constitution of India sought relief to quash Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA as they are illegal and unconstitutional; the G.O.Ms. No.176, Panchayat Raj and Rural Development (E&R) Department dated 28.12.2019 issued in furtherance to the said provisions fixing the aggregate reservation for Scheduled Castes (for short “SCs”) and Scheduled Tribes (for short “STs”) and Backward Classes (for short “BCs”) as 59.85% for conducting the ensuing Panchayat elections in the State be set-aside. A prayer has also been made to declare the publication of reservation district-wise vide State Gazette No.34 dated 03.01.2020 relying upon G.O.Ms.No.176 dated 28.12.2019 be held illegal, arbitrary and against the law laid down by Hon’ble the Apex Court in the case of K.Krishna Murthy vs. Union of India (2010)7 SCC 202) and contrary to Articles 14, 15(4) read with 243-D of the Constitution of India. Further direction has been sought for to the effect that the percentage of the reservation including SCs, STs and BCs may be fixed, not exceeding 50% in aggregate as envisaged by the Scheme of the Constitution and interpreted by the Law laid down by Hon’ble the Supreme Court.

3. The facts in brief are that Article 243-D of the Constitution of India in Part IX of the Constitution provides for reservation of seats for SCs and STs in panchayats. Clause (6) of Article 243-D enables the State Legislature to make any provision for reservation of seats in Panchayats or offices of Chairpersons in the Panchayats at any level in favour of the Backward Class of citizens. In furtherance to it, the State Legislature in APPRA substituted relevant provisions by Act No.5 of 1995 introducing reservation for BCs not less than 34% in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA. It is urged, fixing of the said percentage of reservation to BCs is contrary to the judgment of the Supreme Court in the case of K.Krishna Murthy (supra). Therefore, the power so exercised by the State Legislature granting reservation in excess to 50% is arbitrary and contrary to the spirit of the Constitution. In view of the foregoing, it is urged that fixing of the minimum percentage of reservation, not less than 34% to BCs applying the theory of proportionality at par to the SCs and STs, due to which the aggregate percentage of the reservation exceed from 50%. This is only due to fixing the minimum percentage for reservation to BCs @ 34% which is constitutionally invalid, and may be struck down. The G.O.Ms.No.176 PR & RD (E&R) Department dated 28.12.2019 issued by the State Government in reference to the aforesaid provisions be also declared illegal, arbitrary and unconstitutional and direction to reserve the seats and offices at all levels by way of a fresh notification may be issued.

4. The respondent by filing its reply submits that in exercise of the power as conferred under Clause(6) of Article 243-D of the Constitution, the provisions as enumerated in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA prescribing the minimum percentage of the reservation to BCs, has rightly specified in the said statute. It is said that perusal of the projected datas floated by the A.P. Backward Classes Finance Corporation Limited as per the statistics on 01.03.2011, the proportionate percentage of BCs is 37.63% for the percentage of population, 48.13% in the State; in view of the said projected proportionate population of the BCs, if minimum percentage of reservation has been fixed by the Statute not less than 34%, it cannot be said to be constitutionally invalid. It is further contended that the aforesaid data for BCs have been taken note as per the Census of 2011 relying upon the electoral rolls prepared and published for the purpose of Assembly Elections identifying the SCs, STs and BC voters; which are inserted in the Gram Panchayat electoral rolls. Therefore, applying the ratio of proportionality to BCs unlike to SCs and STs borrowed from Article 243-D(1) of the Constitution, the percentage of the reservation specified for the BCs is rational and not arbitrary. It is further urged that statute do not violate the Constitutional provisions or the ratio of the judgment of K.Krishna Murthy (supra). It is said in furtherance to the provisions as enumerated in the APPRA, G.O.Ms.No.176 PR&RD (E&R) dated 28.12.2019 has been issued by the Government, providing reservation at all levels of the Panchayats however it cannot be said to be illegal or arbitrary. In view of the same the relief as prayed in Writ Petition may be rejected. Reliance has been placed on the judgment of Prakasam District Sarpanchas Association vs. Government of Andhra Pradesh and others (2001(1)ALD 143) whereby the same issue has been answered by the Division Bench of this Court, upholding the minimum percentage BCs as valid.

5. After hearing the learned counsel appearing on behalf of both the parties as well as the counsel appearing for implead petitioners and to advert the submissions as advanced, first of all, the provision of Section 9 of the APPRA is required to be referred.

9. Reservation of seats of members of Gram Panchayats:-

(1) In every Gram Panchayat, out of the total strength of elected members determined under section 7, the Commissioner shall, subject to such rules as may be prescribed, by notification, reserve –

(a) such number of seats to the Scheduled Castes and Scheduled Tribes as may be determined by him, subject to the condition that 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 to the Gram Panchayat, as the population of the Scheduled Castes, or as the case may be, Scheduled Tribes in that village bears to the total population of that village, and such seats may be allotted by rotation to different wards in a Gram Panchayat;

b [omitted]

(c) not less than one-third of the total number of seats reserved under clause (a) and sub-section (1 A) for women belonging to the Scheduled Castes, Scheduled Tribes or as the case may be the Backward Classes;

(d) not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes) of the total number of seats to be filled by direct election to every Gram Panchayat shall be reserved for women and such seats may be allotted by rotation to different wards in a Gram Panchayat.

(1A) In addition to the reservation of seats under sub-section (1), there shall be reserved for the Backward Classes such a number of seats as may be allocated to them in each Gram Panchayat in the manner prescribed; so however that the number of offices of members of Gram Panchayats in the State reserved for Backward Classes shall not be less than thirty-four per cent of the total number of offices of the members of Gram Panchayats in the State. The number of seats allocated to each Gram Panchayat shall be allotted by rotation to different wards in the Gram Panchayat: Provided that it shall be competent for the Government to make special provision with regard to the manner and quantum of seats to be reserved for Backward Classes in the Gram Panchayats situated in the Scheduled areas by rules made in this behalf."

(2) Nothing in sub-sections (1) and [(1A) shall be deemed to prevent women and members of the Scheduled Castes, Scheduled Tribes or Backward Classes from standing for election to the non-reserved seats in the Gram Panchayat.

6. On perusal of the aforesaid, it is apparent that for the purpose of Members of the Gram Panchayat, such number of seats of SCs and STs in proportion to the ratio of population of the respective categories may be reserved. After determination of the percentage of reservation for SCs and STs in the respective categories, 1/3rd of total seats shall be reserved for women and the said reservation of seats may be by way of rotation to different wards of the Gram Panchayats. Sub-section (1A) provides reservation for BCs to such a number of seats as may be allotted to them in each Gram Panchayat in the manner so prescribed, thereby the number of offices of the members of the Gram Panchayat in the State reservation for BCs shall not be less than 34% of the total number of offices of the members of the Gram Panchayats in the State.

7. Altogether by using similar language, the same percentage of reservation has been specified in Section 15(2) which applies for the Office of the Sarpanch. In the case of Mandal Parishad, by use of same words, similar provisions of reservation has been specified by Section 152 (1A) and 153 (2A) and for Zilla Parishad in Section 180 (1A) to the members and 181(2)(b) for the Chairpersons and Vice-Chairpersons. As the percentage of reservations to BCs, not less than 34% has been specified in those sections is under challenge, by use of same words and similar language, however to save repetition, it is not being reproduced.

8. In exercise of the powers conferred by sub-section (1) of Section 268 with Sections 9, 15, 152, 180, 181 and 242D of the APPRA and to carryout the provisions of reservation, the State Government has made certain Rules which are known as ‘Andhra Pradesh Panchayat Raj (Reservation of Seats and Offices of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads) Rules, 2006 (hereinafter it be called as ‘the Rules of 2006’). In the Rules of 2006, formulae have been carved out in Rules 4, 7, 8, 10, 13 and 16. The formulae so carved out is to arrive the proportionate percentage of reservation for BCs to the Members of Grampanchayat, Sarpanch of the Grampanchayat, Members and the President of the Mandal Praja Parishads, Members of the Zilla Praja Parishads. Wherein, the percentage of BCs has been referred not less than 34% commensurate to the provisions of the Act, which is under challenge. However, those Rules may also have the consequential effect to the challenge of the percentage of reservation to BCs, therefore it is relevant to refer here.

9. To know the constitution of the Panchayats, it is not out of reference that Article 243 at Part IX of the Constitution was introduced by 73rd amendment in the year 1992 contemplating the powers, composition and functions of local self-Government Institutions. Article 243-D specifies the genesis of reservation of seats. The said provision is relevant to the context, therefore, it is extracted as thus.

“243D. 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 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) 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 favor of backward class of citizens.”

10. On perusal, it can safely be observed that for SCs and STs in every Panchayat, the number of seats may be reserved as nearly as may be the proportion to the total number of the seats to be filled by direct election commensurate to the population of the SCs and STs in that area and those seats may be allotted by rotation in different constituencies in the Panchayats. Not less than 1/3rd of the total number of seats shall be reserved for women belonging to SCs and STs and similar ratio would be applicable to the direct election in every Panchayat by way of rotation to different constituencies of the Panchayat. The said ratio would be applicable in cases of Chairpersons to the number of offices. Thus, it is clear that under the Constitution the proportionate ratio of the population for reservation of seats is made applicable only with respect to the two categories i.e., SCs and STs as specified in Article 243-D(1). However, for the purpose of Backward Classes, the Constitution enables the Legislation of the State to make the provision regarding reservation of the seats in Panchayats or Offices of Chairpersons in the Panchayat at any level in favour of Backward Class of citizens that includes Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads.

11. Thus as per the power conferred under Article 243- D(6) of the Constitution, in the APPRA the reservation for BCs has been brought under Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b), bringing amendment by Act No.5 of 1995. As per the said statutory provision, proportionate to the population of SCs and STs Categories, the percentage of the reservation is specified and the State Government vide G.O.Ms.No.176 Panchayat Raj and Rural Development (E&R) Department dated 28.12.2019 fixed 6.77% to SCs, for STs category 19.08%. In our view, the said percentage of reservation to the Scheduled categories is commensurate to the provision of Article 243-D(1) of the Constitution and as per spirit of the Constitution.

12. As per APPRA, it is to be noted here that Section 9(1) deals with Reservation of Seats of Members of the Gram Panchayat regarding SCs and STs while Section 9(1A) reservation of seats for the Backward Classes. Section 15(1) deals with the reservation of the Offices of the Sarpanch for SCs and STs and Section 15(2) deals with the reservation for the Offices of the Sarpanch for the Backward Classes. Section 152(1) deals with reservation of the seats of Members of Mandal Praja Parishads for SCs and STs while Section 152(1A) deals the reservation of the seats of Members in Mandal Praja Parishads to the Backward Classes. Section 153 deals with reservation and terms of office of the President, Vice President of Mandal Praja Parishads for SCs, STs while Section 153(2A) deals with reservation of the Offices of the President for the Backward Classes. Section 180 deals with reservation of the seats of Members of the Zilla Praja Parishads to SCs and STs while Section 180(1A) with reservation of the seats to Backward Classes. Section 181 deals election of the Chairperson and Vice-Chairman of Zilla Praja Parishads to SCs and STs while Section 181(2b) for the Backward Classes.

13. In view of the provisions of Sections 9, 15, 152, 153, 180 and 181 of the Act, it is the duty of the Commissioner that subject to such rule, as may be prescribed, by way of notification, reserve seats of Members or the office of the Sarpanch in Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads for SCs, STs and Backward Classes. In Rule 4 of the Rules of 2006, for the purpose of reservation of the Members of the Gram Panchayat, a formula has been prescribed for the reservation of the office of Sarpanch of Gram Panchayat and similarly in Rules 7 and 8. For the purpose of the Mandal Praja Parishad members, a formula has been specified in Rule 10 and for President of Mandal Praja Parishad in Rule 13. Similarly for the members of Zilla Praja Parishad, a formula has been prescribed in Rule 16 and for the Chairperson of Zilla Praja Parishad, no formula has been prescribed. However, the reservation and its percentage to the BCs is as per the above provisions of APPRA based on formulae prescribed in the Rules of 2006. As per the formulae of the Rules of 2006, the percentage of the minimum reservation so prescribed has been divided by the State percentage of the BCs multiplied by the percentage of Mandal BCs and regarding other categories different analogies have been specified. However, it is to be seen how far this formula may work-out when minimum percentage of BCs @ 34% has been taken into account, which may exceed the aggregate of 50%, in view of the discussion so made hereinabove.

14. Thus, as per enabling provision, the APPRA has been brought by the State Legislature. For SCs and STs the Constitution of India has given specification how their percentage of reservation may be made, and for BCs the percentage of reservation is left on State legislature. It is seen, the State Legislature in APPRA made the provisions for reservation to the BCs using the phrase “reservation for the Backward Classes”. In the said provisions, the reservation specified to BCs is by using the words “shall not be less than 34%” created a cause to assail the percentage of the reservation which is exceeding 50% in aggregate, asserted by G.O.Ms.No.176 PR & RD Department dated 28.12.2019 prescribing percentage of SCs, STs and BCs in aggregate 59.85%. The challenge is made in this petition in the light of the judgment of K.Krishna Murthy (supra), however, it is to be considered and decided, whether the amendment brought in APPRA specifying minimum 34% of reservation for Backward Classes is in conformity to the law laid down by the said case or it is in violation of the same. The said aspect has to be looked into in the light of the various judgments of the Supreme Court.

15. In the context of exceeding the percentage of reservation and how it has been interpreted by Hon’ble the Supreme Court, the guidance may be taken from precedents. In the case of M.R.Balaji vs. State of Mysore (1963 SC 649), Hon’ble the Supreme Court fixed the upper limit of reservation to the extent of 50% referring Article 15(4) of the Constitution, explaining the legislative intent, for advancement of the help of the weaker sections of the society, so also that the Government has to take generous steps with reasonableness to help those persons for advancement of the community at large and for this purpose a formula to strikeout a reasonable balance was directed to evolve. The said judgment has been considered in case of Indra Sawhney vs. Union of India (1992(3) SCC 217) by the Bench of Nine Hon’ble Judges of the Apex Court, in which the ratio of the percentage of reservation as specified in M.R.Balaji’s case (supra) to the extent of 50% has been upheld, observing that the State has to ensure that the percentage of reservation should not exceed 50%. The relevant paragraph however, is reproduced as thus:-

“809.From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

16. Thus as per the said judgment, the exception carved out, to exceed the percentage of reservation of 50%, is that in case of farflung and remote areas, where the population of those areas are being put out of the mainstream of national life and in view of conditions peculiar and characterstical to them, need to be treated in a different way providing some relaxation in the strict rule of 50%, otherwise it would be imperative on them not to increase the percentage of reservation exceeding limit of 50%.

17. In a case of Union of India vs. Rakesh Kumar and others (2010)1 SCALE 281), the percentage of the reservation fixed in the panchayats of the Scheduled areas exceeded from the upper ceiling 50% came for consideration before the Apex Court. In the said judgment, the Court has considered the judgment of Indra Sawhney (supra) wherein the upper limit of reservation 50% has been recognised, however the Court found that proportionate population of STs as specified in Article 243-D(1) and 15(4) of the Constitution permit to exceed the upper ceiling of 50% in the exceptional circumstances. However, looking to the population ratio of STs, even on having reservations more than upper ceiling, the Court declined to interfere with the observation as made in para 34 as thus;

“34. We believe that the case of Panchayats in Scheduled Areas is a fit case that warrants exceptional treatment with regard to reservations…………..”

18. Thereafter, in the case of K.Krishna Murthy (supra), the issue was whether Article 243-D(6) and Article 243-T(6) are constitutionally valid, since they enable reservation in favour of Backward Classes in local bodies for the seats of Chairpersons. In the said case, the judgment of Indra Sawhney (supra) and various other judgments have been considered. Hon’ble the Apex Court while dealing with the argument of the counsel, have taken into consideration the judgment of Indra Sawhney, emphasizing the importance of reservation in the domain of political participation. The relevant paragraphs from K.Krishna Murthy (supra) are reproduced as thus:-

“53. In this respect, we are in partial agreement with one of the submissions made by Shri M. Rama Jois that the nature of disadvantages which restrict access to education and employment cannot be readily equated with disadvantages in the realm of political representation. To be sure, backwardness in the social and economic sense does not necessarily imply political backwardness. However, the petitioner's emphasis on the distinction between `selection' (in case of education and employment) and `election' (in case of political representation) does not adequately reflect the complexities involved. It is of course undeniable that in determining who can get access to education and employment, due regard must be given to considerations of merit and efficiency which can be measured in an objective manner. Hence, admissions to educational institutions and the recruitment to government jobs is ordinarily done through methods such as examinations, interviews or assessment of past performance. Since it is felt that applicants belonging to the SC/ST/OBC categories among others are at a disadvantage when they compete through these methods, a level-playing field is sought to be created by way of conferring reservation benefits.

54. In the domain of political participation, there can be no objective parameters to determine who is more likely to get elected to representative institutions at any level. The choices of voters are not guided by an objective assessment of a candidate's merit and efficiency. Instead, they are shaped by subjective factors such as the candidate's ability to canvass support, past service record, professed ideology and affiliations to organised groups among others. In this context, it is quite possible that candidates belonging to the SC/ST/OBC categories could demonstrate these subjective qualities and win elections against candidates from the relatively better-off groups. However, such a scenario cannot be presumed in all circumstances. It is quite conceivable that in some localized settings, backwardness in the social and economic sense can also act as a barrier to effective political participation and representation. When it comes to creating a level-playing field for the purpose of elections to local bodies, backwardness in the social and economic sense can indeed be one of the criteria for conferring reservation benefits.

55. It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level on the other hand. While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local-self government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to.

56. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local selfgovernment are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the `creamy layer' in the context of political representation. There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the `creamy layer' may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government.

57. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of weaker sections. Hence, it would be counter-intuitive to exclude the relatively better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities. We can now attempt to provide answers to the contentious issues.”

19. Thereafter, dealing with the issue of quantum of reservation including SCs, STs and OBCs in aggregate, the Court in paras 63, 64 and finally in para 82 of Krishna Murthy’s case (supra) held as thus:-

“63. As noted earlier, social and economic backwardness does not necessarily coincide with political backwardness. In this respect, the State Governments are well advised to reconfigure their reservation policies, wherein the beneficiaries under Art.243-D(6) and 243-T(6) need not necessarily be coterminus with the Socially and Educationally Backward Classes (SEBCs) [for the purpose of Art.15(4) or even the Backward classes that are under-represented in government jobs [for the purpose of Art.16(4). It would be safe to say that not all of the groups which have been given reservation benefits in the domain of education and employment need reservations in the sphere of local self-government. This is because the barriers to political participation are not of the same character as barriers that limit access to education and employment. This calls for some fresh thinking and policy-making with regard to reservations in local self-government.

64. In the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self-government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical reservations in favour of SC/ST/OBCs should not be breached. On the question of breaching this upper ceiling, the arguments made by the petitioners were a little misconceived since they had accounted for vertical reservations in favour of SC/ST/OBCs as well as horizontal reservations in favour of women to assert that the 50% ceiling had been breached in some of the States. This was clearly a misunderstanding of the position since the horizontal reservations in favour of women are meant to intersect with the vertical reservations in favour of SC/ST/OBC, since onethird of the seats reserved for the latter categories are to be reserved for women belonging to the same. This means that seats earmarked for women belonging to the general category are not accounted for if one has to gauge whether the upper ceiling of 50% has been breached.

82. In view of the above, our conclusions are:-

(i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Articles 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local selfgovernment. Even when made, they need not be for a period corresponding to the period of reservation for purposes of Articles 15(4) and 16(4), but can be much shorter.

(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the State Legislations.

(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State Legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of `backward classes' under Art. 243- D(6) and Art. 243-T(6) should be distinct from the identification of SEBCs for the purpose of Art. 15(4) and that of backward classes for the purpose of Art. 16(4).

(iv) The upper ceiling of 50% vertical reservations in favour of SC/ST/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.

(v) The reservation of chairperson posts in the manner contemplated by Article 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment.”

20. In view of the foregoing, as per the ratio of K.Krishna Murthy (supra), it is clear that the upper ceiling of reservation is 50% to SCs, STs and BCs and should not be breached in the context of local self-Government, referring the exceptions carved out by the judgment of Indra Sawhney (supra) and Rakesh Kumar (supra) to the Scheduled Tribes in the Scheduled areas, where the population has been kept out of the mainstream of National life looking to the conditions peculiar to and characteristical to them which needs different way to provide relaxation to the strict rule of 50%.

21. At this stage, it is necessary to refer the judgment relied by the respondent in Prakasam District Sarpanchas Association vs. Government of Andhra Pradesh and others (supra). In the said case, the judgment of Indra Sawhney (supra) with respect to upper limit of fixation of the reservation has not been taken into consideration by the Division Bench. Simultaneously, the judgment of Krishna Murthy (supra) of the Hon’ble Supreme Court which is subsequent to it was considered. In addition, the judgment of Prakasam District Sarpanchas Association (supra) has again been tested in the case of Nimmaka Jaya Raj v. Government of A.P. (2012(6) ALD 329 (DB). In the said case, a batch of Writ Petitions were decided out of the said batch, in W.P.No.16560 of 2011 and 16473 of 2011, the G.O.Ms.No.220 dated 25.05.2006 and G.O.Ms.No.128 dated 08.06.2011 fixing the percentage of reservation at 60.55% assailed, relying upon the judgment of K.Krishna Murthy (supra), questioning the more than 50% aggregate reservation to SCs, STs and BCs. In the said judgment, the Division Bench held as under:

“54. In the cases on hand, admittedly, no investigation has been conducted and data collected for the purpose of providing reservations as permissible under Article 243D(6) of the Constitution. The present reservation of 34% has been provided on the basis of 2001 Census as the population figures of 2011 have not yet been published. Section 202A of the Act provides that the population figures of backward classes gathered in the socioeconomic survey conducted by the Andhra Pradesh Backward Classes Co-operative Finance Corporation Ltd. shall be taken as the basis for the purpose of reserving the offices of Sarpanch, President, Chairperson of the Gram Panchayats etc. The validity of this provision has been upheld by a Division Bench of this Court in Prakasam District Sarpanchas Association. However, the figures collected by the said Corporation relate to the year 2001. Basing on the same, the State fixed the reservation at 34%. Assuming however that the said figures are correct, the question involved is whether aggregate reservation exceeding 50% is permissible. As per the ratio in Krishna Murthy, the answer is in negative.

57. As regards exclusion of creamy layer, while repelling the contention that the same degree of backwardness cannot be assumed for the entire group of backward class, the Supreme Court observed that the reservations enabled by Article 243-D(6) and Article 243-T(6) do not contemplate the exclusion of the "creamy layer" in the manner that has been prescribed for reservations in the context of higher education and public employment respectively. In this context, it is relevant to notice the following paragraphs from Krishna Murthy:

"56. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local selfgovernment are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the "creamy layer" in the context of political representation. There are bound to be disparities in the socio-economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the "creamy layer" may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government.

57. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of weaker sections. Hence, it would be counter-intuitive to exclude the relatively better- off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities..................."

In view of the above, we are not inclined to accept the contention urged on behalf of some of the petitioners that creamy layer among backward classes should be excluded while providing reservation in political posts.

60. In view of the above discussion, the writ petitions and the public interest litigation petitions are disposed of with the following directions:

i) For the purpose present elections, the State shall fix the reservation in favour of Backward Classes at such percentage so that it comes within 50% when the aggregate reservation in favour of Scheduled Castes, Scheduled Tribes and Backward Classes put together;

ii) The State shall conduct a detailed investigation with regard to backwardness of the population, collect data, invite objections from the general public, analyse the same and then fix the reservation in favour of Backward Classes in accordance with the constitutional scheme. It shall also review the reservation from time to time;

iii) The State Election Commission shall commence the process of elections to the local bodies in the State of Andhra Pradesh immediately and shall complete the elections within a period of three months from the date of finalisation of the reservation percentage by the State.

iv) All the writ petitions challenging the validity of amending Acts, providing for appointment of Special Officers for local bodies shall stand dismissed.

v) No costs.”

22. Therefore, we have no hesitation to observe that the judgment of the Prakasam District Sarpanchas Association (supra) relied by the respondents on the point of percentage of reservation is no more a good law, in view of the judgment of K.Krishna Murthy (supra), which was rightly considered by the ratio of the Division Bench in the case of Nimmaka Jaya Raj (supra).

23. At this stage, it is not out of place to refer the judgment of the Hon’ble Apex Court in the case of Brahmo Samaj Education Society and others vs. State of West Bengal and others (2004)6 SCC 224) whereby in para 9, the Court relied upon the judgment of T.M.A. Pai Foundation vs. State of Karnataka (2002)8 SCC 481) at para 10 and held as under:-

“10. When a larger Bench consisting of eleven Judges of this Court in T.M.A.Pai has declared what the law on the matter is, we do not want to dilute the effect of the same by analysing various statements made therein or indulge in any dissection of the principles underlying it. We would rather state that the State Government shall take note of the declarations of law made by this Court in this regard and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out therein.”

and in para 11, the validity of the Rules which were not in conformity to the directions of the Supreme Court have been ignored directing the authorities to frame the Rules in terms of the orders passed by the Supreme Court. Therefore, by any State Legislation, if any percentage of reservation exceeds by the same, contrary to the judgment of the Supreme Court, it may be ignored relying the judgment of the Supreme Court.

24. Thus, it can safely be crystallized that as per the judgment of M.R.Balaji, Indra Sawhney (supra) the upper limit of the reservation is 50% unless, it falls within the purview of the exceptions carved out, for the Scheduled areas as specified by the Constitution and considered in the case of Rakesh Kumar (supra). In the case of election for the local bodies, the constitutional bench of the Supreme Court in the case of K.Krishna Murthy (supra) in para 82(4) made clear that the upper ceiling of reservation is of 50% to the SC, ST, OBC, and it cannot be breached in the context of local self-government.

25. In view of the discussion made herein above, it can safely be observed that Article 243-D(1) provides the reservation of seats of Panchayats and the Offices of the Chairperson applies to SCs and STs specifying the proportionate reservation to them commensurate to the population in that Panchayat area. It does not include the Backward Classes applying proportionate formula of population in that area to the Backward Classes. The reservation of the Backward Classes was introduced and mandated by the Constitution under Article 243-D(6) enabling the State Legislature to make provisions for reservation to them relating to the seats and offices of the Gram Panchayats. Therefore, the constitutional intent under Article 243-D as well as Article 15(4) is that the ratio of proportionate population to reserve the seats to the SCs and STs; and for the Backward Classes it is by virtue of enabling provisions in Article 243-D(6) by the legislation of the State Government.

26. It is not explicitly specified in the Constitution that what may be the basis of reservation to the BCs, although for SCs and STs, it is expressly provided that their reservation would be commensurate to their population. In the said context, in the judgment of K.Krishna Murthy (supra) the Court observed that quantum of the reservation to the BCs may also be proportionate to population, but it should not exceed the upper ceiling of 50% to the vertical reservation in favour of SCs, STs and BCs in aggregate. Thus, by harmonious reading of the constitutional provisions and the enabling provisions under the APPRA and the law laid down in the case of K.Krishna Murthy (supra), it can safely be observed that for BCs the reservation may be commensurate to their population, but it should not breach the aggregate percentage of 50% to the SCs, STs and BCs and the exception is available to the Scheduled Tribes of the Scheduled areas and not to the Backward Classes.

27. At this stage, the stand taken by the State Government in reference to Section 202-A of the APPRA to specify reservation for BCs as per the projected survey of A.P.Backward Classes Cooperative Finance Corporation Limited is also required to be dealt with. In this regard, it is seen that Section 202-A is in Chapter-I of Part-V. The said Part deals with Constitution of A.P.Election Commission for local bodies. Chapter-I deals with Conduct of Election and Election Officers. The said Chapter starts from Section 200 and concludes by Section 210. Section 200(1) specifies for Constitution of State Election Commission for the superintendence, direction and control of the preparation of the electoral rolls for and to conduct the elections of all the Panchayat Raj institutions governed by the APPRA. The power so specified in Section 200 flows from Article 243-K of the Constitution whereby such power has been conferred to the Election Commission through Election Commissioner and shall be appointed by the Hon’ble Governor. Under the said Article what may be the power and function of the State Election Commission has not been specified, therefore in the said context, the power has been given under Section 200(1) of the APPRA that all elections of the Panchayat Raj institutions shall be held under the supervision and control of the State Election Commission. The Commission for this purpose shall have power to give such direction as may be necessary to the Commissioner, District Collector or any Officer or servant of the Government. For the purpose, the word “Commissioner” is defined in Section 2(8) of the Act, which makes it clear that any of the Officer authorized by the Government to exercise any of the power or discharge any of the duties of the Commissioner under the APPRA. It is further clarified in the Rules of 2006, whereby “Commissioner” means “the Commissioner of the Panchayat Raj and includes the Collector of a District”. Thus, for the purpose of reservation, the State Election Commission can issue directions as may deem necessary, to the Commissioner or District Collector. Therefore, in Chapter-I of Part-V of the APPRA for the purpose of Section 202-A while supervising the election of the local body (Panchayat), the State Election Commission is having a power to supervise the percentage of reservation of the Backward Classes. At that time, they may rely upon the socioeconomic survey conducted by the A.P.Backward Classes Cooperative Finance Corporation Limited, Hyderabad (hereinafter it be called as ‘APBCCF Corporation’). Therefore, the stand taken by the State Government in reference to Section 202(A) of the APPRA in the return does not seem available to them, in fact it is for the Election Commission. Thus, it can safely be explained that 202(A) gives power to the Election Commission, which may at the time of supervising the percentage of reservation of the Backward Classes may look into the data of APBCCF Corporation, but it cannot be a basis for the State Government to take advantage thereto.

28. In the facts of the present case, so far as the survey made by the A.P. Backward Classes Cooperative Finance Corporation Limited is concerned as per the judgment of C.Satyanarayana Reddy (supra) it reveals that in the erstwhile State of Andhra Pradesh when the Taluks were abolished, 1080 Mandals were formed and their elections were held in the Mandal Praja Parishads and Zilla Praja Parishads in March, 1987. For this purpose, the Andhra Pradesh Mandal Praja Parishads, Zilla Praja Parishads and Zilla Pranalika Abhivruddhi Mandals Act, 1986 was brought. In the said context, the issue regarding reservation was discussed as per the provisions of Sections 5(1) and 4(4) of the said Act. By the said judgment, it can be gathered that the APBCCF Corporation came into existence by virtue of G.O.Ms.No.359 dated 01.06.1974 and it was actually registered as Cooperative Society in September, 1974. The said Society was conferred with the task of counting the Backward Classes in the erstwhile State of Andhra Pradesh. As per reference made in the said judgment, the said task was done upto 1986 to provide reservation in the Backward Classes. Relying upon the said survey, the argument so advanced before the Court was accepted for a limited purpose because after reservation, the elections have already been held with a word of caution regarding the survey made by the APBCCF Corporation, the Court observed as under:-

“145. If however, this survey is sought to be made the basis for any other election hereafter, it shall not be so used unless it is published first, copies of the Backward Classes figures village-wise are made available for scrutiny and, if necessary, for purchase, and objections heard, and final figures are once again published and made available for scrutiny and, if necessary, for purchase. Further, I should be also not understood as either affirming the truth of the said backward classes figures compiled by the Corporation or the validity of the survey.”

29. In view of the said observation, it is clear that in the judgment of C.Satyanarayana Reddy (supra) the Court was not satisfied with the survey of the Corporation which took place from 1981 to 1986, therefore, said that for any other election hereinafter it would not be used, unless published first specifying the figures of the population of the Backward Classes village-wise inviting objections, then only the final figures may be published.

30. It is not out of place to mention here that APBCCF Corporation had made the survey in the year 1986 as referred in the judgment of C.Satyanarayana Reddy (supra). Thereafter, the erstwhile State of Andhra Pradesh has been bifurcated as per the provisions of the Andhra Pradesh Reorganization Act, 2014 and the existing State of Andhra Pradesh has been notified with effect from 2nd June, 2014. Nothing has been brought on record that after bifurcation and formation of the existing State of Andhra Pradesh and the State of Telangana, any fresh survey has been made by the said Corporation in the State of Andhra Pradesh. In the changed situation and looking to the observations made in C.Satyanarayana Reddy (supra), taking a stand showing projected percentage of the BCs relying upon the said survey in the counter-affidavit before this Court cannot be accepted. Therefore, the stand as taken in the counter-affidavit and the arguments so advanced by the State relying upon the said projected data showing percentage of the BCs population is not acceptable.

31. Reverting to the provisions of the Article 15(4) of the Constitution, it is clear that the State Government may make a special provision for advancement of any socially and educationally Backward Classes of citizens. Therefore, the special provision for reservation if any be made by the State Government in exercise of power under clause (6) of Article 243-D bringing the State legislation for reservation in the Panchayats by an enactment known as the Andhra Pradesh Panchayat Raj Act, 1994 for the socially and educationally Backward Classes is within its competence. “Socially and educationally Backward Classes” has been defined in Article 366 clause 26(c), which means such Backward Classes as are so deemed under Article 342-A for the purpose of the Constitution.

32. As per Article 342-A, it is clear that the President with respect to any State or Union Territory after consultation with the Governor thereof by a public notification specify the socially and educationally Backward Classes, which shall for the purpose of this Constitution be deemed to be a Socially and Educationally Backward Classes in relation to that State or Union Territory as the case may be. During the course of hearing, learned Advocate General has admitted that for the purpose of the State of Andhra Pradesh after consultation with the Governor, the President of India has not notified by way of a public notification any list of socially and educationally Backward Classes. In view of the above, the stand taken by the State Government relying upon the projected percentage of the BCs as on 01.03.2011 based on a survey to justify not less than 34% of the reservation to the BCs in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of APPRA is fallacious, hence rejected.

33. At this stage, the argument advanced by counsel for implead petitioners that as per the Article 243-D(6) is in Part-IX, in which the Panchayats have been constituted does not prevent the legislature of the State for making any provision for reservation of the seats in the panchayat or of the office of the Chairperson, at any level in favouar of the Backward Classes of the citizens. The word “any provision” includes the percentage of the reservation. However, if any percentage of reservation has been specified in the Act, which is within the competence of the State legislature derived from the Constitution. Therefore, the percentage of the reservation i.e., 34% specified in the Act based on the survey of A.P. Backward Classes Cooperative Finance Corporation Limited, Hyderabad, ought not be struck down.

34. In view of the discussion made herein above, the said argument is of no force, when the provisions of the State legislation i.e., APPRA, exceeding aggregate percentage of reservation of SCs, STs and BC 50%. The power, if any, exercised by the State legislature to the extent of delegation is permissible in view of the Judgment of the Apex Court in K.Krishna Murthy (supra) and may be held good, otherwise, merely referring provision to make reservation would not confer power which is contrary to the law of land.

35. At this stage, the argument advanced by the learned counsel for the petitioners Sri K.S.Murthy, relying upon the provision of Article 340 of the Constitution is also required to be dealt with. It is stated by him that under Article 340 of the Constitution, Commission of Backward Classes may be appointed by an order of the President. The first Backward Class Commission was set-up by the Presidential Order dated 29.01.1953, which had submitted its report on 30.03.1955. The said report was based on “Kaka Kalekar Commission”, thereafter the Mandal Commission was established in the yer 1978 consisting of six members. Later, as per the judgment of Indra Sawhney (supra), directions were issued both to the Centre and State Governments to appoint a permanent body for investigation into the status of Backward Classes, which will decide whether to include them in the list of BCs for the benefit of reservation or not. In furtherance to the said direction, the Ministry of Law, Justice and Legal Affairs made an Act, which is known as National Commission for Backward Classes Act, 1993. Under Section 3 of the said Act, the National Commission for the Backward Classes was set-up, which is known in short as “NCBC”. However, there is no report available regarding the said Commission; therefore the projected data given by the State Government cannot be relied upon. Learned Advocate General in rebuttal said that the said Commission is having nothing to do with the present case, therefore the argument as advanced by learned counsel for the petitioner is of no relevance.

36. After hearing learned counsel for both the parties on the said issue and looking to the provision of Article 340, it is clear that if the President 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 State to remove such difficulties and to improve their conditions and as to the grants that should be made for the purpose by the appropriate Government may be made by the President. The present case relates to the reservation for the BCs under the enabling power of the State Government by way of making a statute and further it relates to minimum percentage to the BCs. However, the Commission constituted under Article 340 of the Constitution is having nothing to do to the issue before this Court. The said Commission is to investigate the conditions of socially and educationally Backward Classes or to make recommendation for removing the difficulties. Therefore, the provision of Article 340 does not attract to the facts of the present case. However, the said issue is not required to be dealt with in detail and left it open for consideration in appropriate case.

37. In view of the foregoing legal position, providing reservation to Backward Classes by using the word “not less than 34%” in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA which exceeds the ceiling of 50% reservation by virtue of such provision in the legislation may not be valid. In this regard, for the clarity of the fact the ensuing elections of the local self-Government (Panchayats) relying upon the said provisions, G.O.Ms.No.176 PR & RD Department issued by the State Government on 28.12.2019 has been issued. As per the said G.O., 6.77% reservation is made for SCs and 19.08% reservation is made for STs, commensurate to their population in the area. Simultaneously relying upon the provisions of Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA, where not less than 34% reservation is made for the BCs, thereby the total reservation comes to 59.85%. However, it is exceeding the upper limit of reservation of 50%. The said percentage of reservation is calculated relying upon the formulae prescribed

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in the Rules of 2006, applying the proportionate percentage of population for BCs. If we accept the percentage so specified in APPRA Act as minimum 34%, then aggregate percentage of reservation is beyond the ceiling of 50%, which is not valid in terms of the judgment of K.Krishna Murthy (supra). Thus, the provision specifying reservation not less than 34% exceeds the limits of 50%, therefore it cannot be said valid. It is also clear that the theory of proportionate percentage of the population for the Backward Classes commensurate to SCs, STs would not be applicable in stricto sensu to the BCs, in case the aggregate percentage of vertical reservation exceeds. 38. Therefore, under the provisions of Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA the words “not less than 34% reservation” to the Backward Classes so specified is invalid because it exceeds reservation 50% in aggregate, therefore it is hereby struck-down. The State legislation is at liberty to amend the said provisions commensurate to the judgment of K.Krishna Murthy(supra) and make the provisions of reservation for the BCs, thereby the aggregate percentage may not exceed the upper ceiling of reservation in aggregate to SCs, STs and BCs i.e., 50%. It is relevant to observe here that the provisions so made in the Rules is only to carryout the purpose of the reservation specified in the Act. However, if the percentage of the reservation not less than 34% in the Act is not found as per the ratio of the judgment of the Supreme Court, the formulae, if any, carved out referring the said percentage of the reservation in the Rules of 2006 is also held not commensurate to the spirit of the Act in view of the above observation. Therefore, the State legislature is at liberty to make due amendment of the Rules to that effect. 39. As per the discussion made herein above, as we strike down the percentage of reservation to BCs not less than 34% as specified in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA and the formulae so made referring the said percentage of reservation in the Rules 4, 7, 8, 10, 13 and 16 of the Rules, 2006. In consequence to striking down the said provisions, G.O.Ms.No.176 PR & RD Department, Dated 28.12.2019 issued by the State Government fixing reservation of 6.77% for SCs, 19.08% for STs and 34% for BCs, making aggregate percentage of reservation as 59.85% is also set-aside. It is further directed that in furtherance to the said provisions of the Act, Rules and the G.O., the reservation made by the District Collectors at lower level, if any, shall also be inoperative subject to the fresh exercise undertaken if any by the State Government. 40. As per the discussion made herein above, in our view, the inescapable conclusion which can be arrived at is that the vertical reservation for SCs, STs and BCs in aggregate cannot exceed 50% except in exceptional circumstances so carved out in the judgment of Indra Sawhney (supra) considered in Rakesh Kumar (supra) for the Scheduled Areas, relied and followed in the judgment of K.Krishna Murthy (supra). In view of the aforesaid legal position envisaged by the Judgment of K.Krishna Murthy (supra) prescribing not less than 34% of reservation to BCs in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA, by which the aggregate vertical percentage of reservation of SCs, STs and BCs exceed 50% and comes to 59.85% is not valid. Thus, the reservation for Backward Classes “not less than 34%” used in Sections 9(1-A), 15(2), 152(1A), 153(2A), 180(1-A) and 181(2)(b) of the APPRA is held ultra vires. Accordingly, the Rules 4, 7, 8, 10, 13 and 16 of Rules of 2006 shall prescribe the provision in consonance to the Act if amended, or as directed by this Court. In consequence to the same, the G.O.Ms.No.176 PR & RD Department issued by the State Government on 28.12.2019 of the State Government prescribing minimum 34% reservation for BCs, also stands setaside. Further, consequential reservation, if any, made by the Commissioner or the Collector either at Gram Panchayat, Mandal Praja Parishad, Zilla Praja Parishad, be declared illegal and unconstitutional. 41. Accordingly, the said batch of Writ Petitions succeeds and are hereby allowed. In view of the discussion made herein above, it is directed that the State Government shall rearticulate the percentage of reservation of the Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads to the Backward Classes, thereby the vertical reservation to the SCs, STs and BCs should not exceed 50% in aggregate, in the light of the judgment of K.Krishna Murthy (supra). The G.O.Ms.No.176 PR & RD dated 28.12.2019 issued by the State Government providing 59.85% aggregate reservation is hereby set-aside and further consequential action regarding reservation also stands set-aside. The Government is at liberty to make provisions of reservation to the BCs in view of the discussion made herein above within a period of one month. 42. It is not out of place to mention here that the period for conducting election of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads has already been over and the election is due from 01.08.2018 i.e., more than 1 year. In W.P.(PIL) Nos.141 and 153 of 2019, the issue regarding not conducting the elections despite elapse of the statutory period is pending for consideration before this Court. In the said Writ Petitions, detailed directions were issued on 07.11.2019 and 14.11.2019, thereafter, an affidavit of the Chief Secretary was filed for conduction of the elections within a period of 6 to 8 weeks. However, on 21.11.2019 the case was directed to be listed on 03.01.2020, wherein the process of reservation which is questioned in these petitions was not completed, however, 3 days further time was granted and the case was listed on 08.01.2020. On 08.01.2020, as declared by the Chief Secretary that process of reservation is completed, however, the Election Commission has undertaken to complete the election by 03.03.2020. As the question of reservation is now been decided, therefore, we are of the considered opinion that the percentage of the reservations to the BCs shall be re-determined by the State Government not later than the time so specified as above. In the facts, the parties are directed to bear their own costs. 43. As a sequel, all the miscellaneous pending applications shall stand closed.
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