As per case facts, a no-confidence motion was moved against the appellant. In a special meeting, out of nine members, only eight were present. Six voted in favor and two ...
No Acts & Articles mentioned in this case
1
CORRECTED
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11916 Of 2018
GANESH SUKHDEO GURULE ...APPELLANT(S)
VERSUS
TAHSILDAR SINNAR & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed against the judgment
dated 22.11.2018 of the High Court of Bombay dismissing
the writ petition filed by the appellant.
2.We have heard learned counsel for the appellant as
well as the counsel for the respondent No.4 who has
appeared on caveat. The interest of respondent No.4 and
other private respondents being common we have not
2
issued notice to other respondents.
3.The brief facts of the case necessary for deciding
the appeal are:
On 07.09.2018, respondents moved a noconfidence
motion against the appellant. Tahsildar issued notice
dated 07.09.2018 convening special meeting of Gram
Panchayat for consideration of noconfidence motion on
14.09.2018. On 14.09.2018 out of nine members of the
Gram Panchayat only eight members were present in the
meeting. Six members voted in favour of the motion and
two members were opposed to it. One of the members who
voted in favour of noconfidence motion was not
qualified to vote, namely, Smt. Sushila Prakash Darade
who had not filed her caste certificate after election,
hence, she was disqualified to continue to be a member
or to vote in any meeting. A Dispute Application under
35(3B) of the Maharashtra Gram Panchayat Rules, 1958
challenging the noconfidence motion passed was filed.
The Addl. Collector, Nasik passed an order dated
16.10.2018 approving the special meeting dated
3
14.09.2018 holding that noconfidence motion was
validly passed. Against the order passed by the Addl.
Collector, a writ petition was filed by the appellant
which has been dismissed by the High Court by the
impugned judgment. Aggrieved by the judgment of the
High Court this appeal has been filed.
4.Learned counsel for the appellant submits that
total members of Gram Panchayat being nine and one
member being disqualified to vote the twothird
majority has to be computed on the basis of eight
members which comes to 5.33 and there being only five
valid votes in favour of noconfidence motion, motion
cannot be held to be passed. One of the members who
voted in favour of noconfidence motion i.e. Smt.
Sushila Prakash Darade being disqualified to sit and
vote cannot be counted in favour of noconfidence
motion, twothird majority being 5.33, at least six
votes were required for passing the noconfidence
motion. It is submitted that caste certificate being
not submitted by Smt. Sushila Prakash Darade within six
months as required by law she automatically became
4
disqualified to sit or vote in the meeting of Gram
Panchayat.
5.The submissions made by the counsel of the
appellant were refuted by the counsel for the
respondent. It is submitted that there being only eight
members present and one being disqualified, twothird
majority shall be computed from seven and five votes
caste in favour of the noconfidence motion, the motion
shall be treated to be validly passed. It is contended
that provision of Section 35(3) of the Maharashtra
Village Panchayats Act, 1959 has to be read to mean
that majority of not less than twothird of total
number of members present and voting, thus, there being
only 8 members present, majority is to be computed from
7 excluding one disqualified member. He submits that
motion of noconfidence was validly passed against the
appellant and rightly upheld by the High Court.
6.Learned counsel for the parties relied on few
judgments which shall be referred to while considering
5
the submissions.
7.Section 35 of the Maharashtra Village Panchayats
Act deals with motion of noconfidence. Section 35(1)
and Section 35(3) which are relevant for the present
case are as follows:
“35. Motion of no confidence. (1) A
motion of no confidence may be moved by not
less than [one third] of the total number of
the members who are for the time being
entitled to sit and vote at any meeting of
the panchayat against the Sarpanchor the Upa
Sarpanch after giving such notice thereof to
the Tahsildar as may be prescribed. [Such
notice once given shall not be withdrawn.
Xxx xxx xxx
(3) If the motion is carried by a majority of
not less than twothird of the total number of
the members who are for the time being
entitled to sit and vote at any meeting of
the panchayat or the UpaSarpanch, as the case
may be, [shall forthwith stop exercising all
the powers and perform all the functions and
duties of the office and thereupon such
powers, functions and duties shall vest in
the UpaSarpanch in case the motion is carried
out against the Sarpanch; and in case the
motion is carried out against both
the Sarpanch and UpaSarpanch, in such
officer, not below the rank of Extension
Officer, as may be authorised by the Block
Development Officer, till the dispute, if any,
referred to under subsection (3B) is
decided:”
6
8.The main issue which arises for consideration is
that what shall be twothird majority for holding the
noconfidence motion to be passed in the Panchayat in
the facts of the present case. Admittedly there are
nine members in the Village Panchayat. Out of nine
members in the meeting held on 14.09.2018, eight
members were present. Out of eight members present, one
member was disqualified to sit and vote by virtue of
she having not submitted her caste certificate after
the election. She was one out of six members who have
voted in favour of noconfidence motion. There are
five valid votes in favour of noconfidence motion as
two against it. The statute provides for special
majority for passing a motion. The Shackleton on the
“Law and Practice of Meetings ” in paragraph 7.32 while
dealing with special majority states:
"In cases where special majorities are
prescribed, the provisions of the relevant
statute or rules or rules must be carefully
observed. Thus, where under an old Act a
motion was to be “determined by a majority
consisting of twothirds of the votes of the
ratepayers present” at a meeting, and 37 were
7
present, the votes of 20 ratepayers in favour
of the motion (the remainder abstaining) were
deemed to be insufficient to comply with the
statute.”
9.In the present case statute, Section 35(3) refers
to majority as “a majority of not not less than two
third of the total number of the members who are for
the time being entitled to sit and vote at any meeting
of the Panchayat”. The above expression clearly
indicates the majority of not less than twothird of
the “total number of the members who are for the time
being entitled to sit and vote”. The key words in the
expression are members who are for the time being
entitled to sit and vote at a meeting in the Panchayat.
The computation of majority thus refers to “entitlement
to sit and vote at any meeting”. Thus, the number of
members who are entitled to sit and vote in a meeting
have to be taken into consideration for computing the
majority. Total number of members being nine and one
member being disqualified to sit and vote, the
computation of majority has to be on the basis of
number eight, twothird of the number eight will be
8
5.33. The Submission of the respondent is that the
twothird majority has to be computed out of the
members present and voting i.e. seven excluding one
member who was unqualified to vote and five is more
than twothird of seven, the majority has been rightly
passed. The interpretation put by the learned counsel
for the respondent cannot be accepted in view of the
clear language of statute. The crucial words in the
statute are members “who are for the time being
entitled to sit and vote ”. This, expression cannot be
treated to be expression members present and voting .
The submission of the respondent that for computation
of majority number of seven members should be treated,
cannot be accepted.
10.The next submission pressed by the respondent is
that for applying the principle of rounding off 5.33
votes have to be rounded as to five. Thus, five votes
are sufficient to accept majority for the purpose of
passing noconfidence motion. Whether 5.33 votes can be
rounded up into 5 votes or requirement is at lest six
votes is the real issue. When there are clear words in
9
the statute i.e. “not less twothird of the total
number of members” applying the principle of rounding
off, 5.33 vote cannot be treated as 5. Vote of a person
cannot be expressed in fraction. When computation of a
majority comes with fraction of a vote that fraction
has to be treated as one vote, because votes cannot be
expressed in fraction. The principle that figure less
than .5 is to be ignored and figure more than .5 shall
be treated as one, is not applicable in the statutory
scheme as delineated by Section 35. Provision of
Section 35(1) which provides for requirement for moving
motion of noconfidence by not less than onethird of
the total number of the members who are for the time
being entitled to sit and vote at any meeting of the
Panchayat, is the same expression as used in sub
section (3). Obviously, requirement of not less than
onethird number for moving motion has to be computed
from total number of the members who are entitled to
sit and vote. Thus, the same expression having been
used in subsection (3) of Section 35 both the
expressions have to be given the same meaning. Thus,
10
onethird of total number of members who are entitled
to sit and vote have to be determined on the strength
of members entitled to vote at a particular time. The
same meaning has also to be applied while computing
twothird majority.
11.Learned counsel for the appellant has placed
reliance on two judgments, one, of this Court in State
of U.P. and another vs. Pawan Kumar Tiwari and others,
(2005) 2 SCC 10. In the above case, this Court was
considering applicability of percentage of reservation
in the context of U.P. Public Services (Reservation for
Scheduled Casts, Scheduled Tribes and Other Backward
Classes) Act, 1994. The percentage prescribed for the
reservation category in the State of U.P. noticed in
paragraph 2 of the judgment. Respondent belonging to
general category was at the top of the waiting list. He
filed a writ petition directing the State to issue a
letter of appointment to the respondent. The High Court
held that 50 % of general category which was 46.50
ought to have been treated as 47. The High Court had
11
allowed the writ petition and held the respondent
entitled for appointment as 47th general category
candidate. The appeal filed by the State was dismissed
by this Court. Paragraph 2,6 and 7 of the judgment are
as follows:
“2. The percentages of reservation, as
applicable and as was actually applied, are
set out in the following table:
Category Percentage
(prescribed)
Percentage
worked out
to
Number
of posts
reserved
General 50% 46.50 46
Scheduled
Castes
21% 19.53 20
Other
Backward
Classes
27% 25.11 26
Scheduled
Tribes
2% 1.86 1
6. The High Court has found mainly two
faults with the process adopted by the State
Government. First, the figure of 46.50 should
have been rounded off to 47 and not to 46; and
secondly, in the category of freedom fighters
and exservicemen, total 3 posts have been
earmarked as horizontally reserved by
inserting such reservation into general quota
of 46 posts which had the effect of pushing
out of selection zone three candidates from
merit list of general category.
7. We do not find fault with any of the two
reasonings adopted by the High Court. The rule
12
of rounding off based on logic and common
sense is: if part is onehalf or more, its
value shall be increased to one and if part is
less than half then its value shall be
ignored. 46.50 should have been rounded off to
47 and not to 46 as has been done. If 47
candidates would have been considered for
selection in general category, the respondent
was sure to find a place in the list of
selected meritorious candidates and hence
entitled to appointment. ”
12.The judgment of this Court in the above case was on
rounding off the vacancies. The reserved post being 50%
of the total number of posts reservation in no manner
can exceed 50%. In the facts of aforesaid case, there
were total 93 posts, 47 was treated more than 50%.
Hence, the post for general category which was 46.50
was rounded off to 47 by the High Court which was
approved by this Court. The said case related to
computation of vacancies for particular category as per
1994 Act which principle cannot be applied in
computation of a special majority as required by the
statute in question.
13.Another judgment is a Full Bench judgment in Jayram
13
vs. Secretary, U.D.D. Mumbai, 2010 (3) MH. LJ 465,
which is relied by learned counsel for the respondent,
by referring to the judgment of this Court in Pawan
Kumar Tiwari (supra) the Full Bench of Bombay High
Court held that there is no justification that
fraction below 0.5 be ignored in allotting the seats to
registered or recognised parties on the basis of groups
as per statutory scheme delineated by Bombay Provincial
Municipal Corporations Act, 1949. Referring to the
judgment of this Court in Pawan Kumar Tiwari (supra) in
paragraph 31, the Full Bench of Bombay High Court has
rightly held that rounding off was not the ratio or
principle on which Pawan Kumar Tiwari case was decided.
Paragraph 31 of the judgment is quoted below:
"31.Mr. Anturkar, learned Counsel
vehementaly contended that rule of rounding
off is now well recognised and is based upon
the logic and common sense. For this he relied
upon State of U.P. vs. Pawan Kumar Tiwari,
(2005) 2 SCC 10. In that case, 93 posts of
Civil Judges, J.D. were advertised and 50% of
the posts were reserved for different
categories and 50% were for the general or
open category. In view of this percentage
46.50 seats would be available for reserved
category and 46.50 for general category. The
State Government rounded off the number of
14
posts available for general category at 46 and
for the reserved category at 47. The High
Court found fault with the process and held
that the number of posts available for general
category could not be rounded off at 46, but
should have been rounded off at 47. The
Supreme Court dismissed the appeal of the
State Government and held that if the seats
for reserved category are fixed at 47, it
would cross the limit of 50% and therefore it
could not be upheld and as such number of
posts available for reserved category could be
fixed at 46 and that for general category
should have been fixed at 47. Their Lordships
observed as follows in para 9:
“9. There is yet another reason why the
judgment of the High Court has to be
maintained. The total number of vacancies
was 93. Consequent upon the allocation of
reservation and calculation done by the
appellants, the number of reserved seats
would be 47, leaving only 46 available for
general category candidates. Meaning
thereby, the reservation would exceed 50%
which would be unconstitutional. The total
number of reserved seats could not have
been more than 46 out of 93. ”
In fact, in this case, both the groups
had 46.5 and if the same formula would be
applied, then in each case .50 could have been
rounded off to 1 and each of the group would
be entitled to 47 seats. In that case, the
total number would become 94, while the total
vacancies available were only 93. Thus,
rounding off is not the ratio or principle on
which that case was decided. It was decided
mainly on the question as to whether reserved
categories may get seats more than 50% quota.
Therefore the authority in Pawan Kumar
15
Tiwari's case could not be used in support of
the view taken in Vasant Gite.”
14.Further, in paragraph 34 Full Bench of Bombay High
Court itself held that there is no justification to
ignore fraction below 0.5 in the context of allocation
of registered or recognised parties or groups who are
entitled to number of seats. The above judgment of the
Bombay High Court in no manner supports the case of
respondent rather supports the appellant's contention.
15.Learned counsel for the appellant in so far as
disqualification of one of the members who had not
filed her caste certificate relied on Anant vs. Chief
Election Commissioner, 2017 (1) Mh.L.J. 431, before the
Full Bench the issue was raised as to whether on non
submission of caste certificate within six months
period disqualification is automatic. Answering the
reference Full Bench held that the provision for
requiring submission of caste certificate within a
period of six months for election is mandatory and
disqualification would be automatic. In paragraph 100
16
of the judgment the Full Bench held the following :
“100. In the result, we hold that the
time limit of six months prescribed in the two
provisos to Section 9A of the said Act, within
which an elected person is required to produce
the Validity Certificate from the Scrutiny
Committee is mandatory.
Further, in terms of second proviso to
Section 9A if a person fails to produce
Validity Certificate within a period of six
months from the date on which he is elected,
his election shall be deemed to have been
terminated retrospectively and he shall be
disqualified for being a Councillor.
Such retrospective termination of his
election and disqualification for being a
Councillor would be automatic and validation
of his caste claim after the stipulated period
would not result in restoration of his
election.
The questions raised, stand answered
accordingly. ”
16.It is further relevant to note that this Court in
Special Leave Petition (C)Nos. 2987429875 of 2016
(Shankar s/o Raghunath Devre (Patil) vs. State of
Maharashtra & Ors.) has approved the view taken by the
Full Bench vide its judgment dated 23.08.2018 by
holding that the requirement of submitting caste
17
certificate is mandatory.
17.Thus, in so far as vote of one member, Smt. Sushila
Prakash Darade, the same can neither be computed for
the noconfidence motion nor is relevant for computing
twothird majority as per the statutory scheme. The
words 'not less than' used in Section 35(3) of the Act
has to be given meaning and purpose. When majority
comes to 5.33 votes “not less than 5.33 votes” have to
be given meaning, hence, 5.33 can never be rounded off
to 5, fraction has to be treated as one because votes
cannot be treated as fraction. Hence, 5.33 votes to be
read as 6 votes for passing of the motion as mandated
by Section 35(3).
18. We are, thus, of the view that noconfidence motion
was not validly passed and the order of the Addl.
Collector as well as of the High Court are erroneous.
It is held that motion of noconfidence was not passed
against the appellant since it was not passed by two
third of the total number of the members who were for
18
the time being entitled to sit and vote. The
proceedings dated 14.09.2018, order of the Addl.
Collector approving the proceedings as well as the
judgment of the High Court dismissing the writ petition
are set aside. The appeal is allowed accordingly.
.........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
..........................J.
NEW DELHI, ( S. ABDUL NAZEER )
December 10, 2018.
19
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11916 Of 2018
GANESH SUKHDEO GURULE ...APPELLANT(S)
VERSUS
TAHSILDAR SINNAR & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed against the judgment
dated 22.11.2018 of the High Court of Bombay dismissing
the writ petition filed by the appellant.
2.We have heard learned counsel for the appellant as
well as the counsel for the respondent No.4 who has
appeared on caveat. The interest of respondent No.4 and
other private respondents being common we have not
issued notice to other respondents.
20
3.The brief facts of the case necessary for deciding
the appeal are:
On 07.09.2018, respondents moved a noconfidence
motion against the appellant. Tahsildar issued notice
dated 07.09.2018 convening special meeting of Gram
Panchayat for consideration of noconfidence motion on
14.09.2018. On 14.09.2018 out of nine members of the
Gram Panchayat only eight members were present in the
meeting. Six members voted in favour of the motion and
two members were opposed to it. One of the members who
voted in favour of noconfidence motion was not
qualified to vote, namely, Smt. Sushila Prakash Darade
who had not filed her caste certificate after election,
hence, she was disqualified to continue to be a member
or to vote in any meeting. A Dispute Application under
35(3B) of the Maharashtra Gram Panchayat Rules, 1958
challenging the noconfidence motion passed was filed.
The Addl. Collector, Nasik passed an order dated
16.10.2018 approving the special meeting dated
14.09.2018 holding that noconfidence motion was
21
validly passed. Against the order passed by the Addl.
Collector, a writ petition was filed by the appellant
which has been dismissed by the High Court by the
impugned judgment. Aggrieved by the judgment of the
High Court this appeal has been filed.
4.Learned counsel for the appellant submits that
total members of Gram Panchayat being nine and one
member being disqualified to vote the twothird
majority has to be computed on the basis of eight
members which comes to 5.33 and there being only five
valid votes in favour of noconfidence motion, motion
cannot be held to be passed. One of the members who
voted in favour of noconfidence motion i.e. Smt.
Sushila Prakash Darade being disqualified to sit and
vote cannot be counted in favour of noconfidence
motion, twothird majority being 5.33, at least six
votes were required for passing the noconfidence
motion. It is submitted that caste certificate being
not submitted by Smt. Sushila Prakash Darade within six
months as required by law she automatically became
disqualified to sit or vote in the meeting of Gram
22
Panchayat.
5.The submissions made by the counsel of the
appellant were refuted by the counsel for the
respondent. It is submitted that there being only eight
members present and one being disqualified, twothird
majority shall be computed from seven and five votes
caste in favour of the noconfidence motion, the motion
shall be treated to be validly passed. It is contended
that provision of Section 35(3) of the Maharashtra
Village Panchayats Act, 1959 has to be read to mean
that majority of not less than twothird of total
number of members present and voting, thus, there being
only 8 members present, majority is to be computed from
7 excluding one disqualified member. He submits that
motion of noconfidence was validly passed against the
appellant and rightly upheld by the High Court.
6.Learned counsel for the parties relied on few
judgments which shall be referred to while considering
the submissions.
23
7.Section 35 of the Maharashtra Village Panchayats
Act deals with motion of noconfidence. Section 35(1)
and Section 35(3) which are relevant for the present
case are as follows:
“35. Motion of no confidence. (1) A
motion of no confidence may be moved by not
less than [one third] of the total number of
the members who are for the time being
entitled to sit and vote at any meeting of
the panchayat against the Sarpanchor the Upa
Sarpanch after giving such notice thereof to
the Tahsildar as may be prescribed. [Such
notice once given shall not be withdrawn.
Xxx xxx xxx
(3) If the motion is carried by a majority of
not less than twothird of the total number of
the members who are for the time being
entitled to sit and vote at any meeting of
the panchayat or the UpaSarpanch, as the case
may be, [shall forthwith stop exercising all
the powers and perform all the functions and
duties of the office and thereupon such
powers, functions and duties shall vest in
the UpaSarpanch in case the motion is carried
out against the Sarpanch; and in case the
motion is carried out against both
the Sarpanch and UpaSarpanch, in such
officer, not below the rank of Extension
Officer, as may be authorised by the Block
Development Officer, till the dispute, if any,
referred to under subsection (3B) is
decided:”
24
8.The main issue which arises for consideration is
that what shall be twothird majority for holding the
noconfidence motion to be passed in the Panchayat in
the facts of the present case. Admittedly there are
nine members in the Village Panchayat. Out of nine
members in the meeting held on 14.09.2018, eight
members were present. Out of eight members present, one
member was disqualified to sit and vote by virtue of
she having not submitted her caste certificate after
the election. She was one out of six members who have
voted in favour of noconfidence motion. There are
five valid votes in favour of noconfidence motion as
two against it. The statute provides for special
majority for passing a motion. The Shackleton on the
“Law and Practice of Meetings ” in paragraph 7.32 while
dealing with special majority states:
"In cases where special majorities are
prescribed, the provisions of the relevant
statute or rules or rules must be carefully
observed. Thus, where under an old Act a
motion was to be “determined by a majority
consisting of twothirds of the votes of the
ratepayers present” at a meeting, and 37 were
present, the votes of 20 ratepayers in favour
of the motion (the remainder abstaining) were
25
deemed to be insufficient to comply with the
statute.”
9.In the present case statute, Section 35(3) refers
to majority as “a majority of not not less than two
third of the total number of the members who are for
the time being entitled to sit and vote at any meeting
of the Panchayat”. The above expression clearly
indicates the majority of not less than twothird of
the “total number of the members who are for the time
being entitled to sit and vote”. The key words in the
expression are members who are for the time being
entitled to sit and vote at a meeting in the Panchayat.
The computation of majority thus refers to “entitlement
to sit and vote at any meeting”. Thus, the number of
members who are entitled to sit and vote in a meeting
have to be taken into consideration for computing the
majority. Total number of members being nine and one
member being disqualified to sit and vote, the
computation of majority has to be on the basis of
number eight, twothird of the number eight will be
5.33. The Submission of the respondent is that the
26
twothird majority has to be computed out of the
members present and voting i.e. seven excluding one
member who was unqualified to vote and five is more
than twothird of seven, the majority has been rightly
passed. The interpretation put by the learned counsel
for the respondent cannot be accepted in view of the
clear language of statute. The crucial words in the
statute are members “who are for the time being
entitled to sit and vote ”. This, expression cannot be
treated to be expression members present and voting .
The submission of the respondent that for computation
of majority number of seven members should be treated,
cannot be accepted.
10.The next submission pressed by the respondent is
that for applying the principle of rounding off 5.33
votes have to be rounded as to five. Thus, five votes
are sufficient to accept majority for the purpose of
passing noconfidence motion. Whether 5.33 votes can be
rounded up into 5 votes or requirement is at lest six
votes is the real issue. When there are clear words in
the statute i.e. “not less twothird of the total
27
number of members” applying the principle of rounding
off, 5.33 vote cannot be treated as 5. Vote of a person
cannot be expressed in fraction. When computation of a
majority comes with fraction of a vote that fraction
has to be treated as one vote, because votes cannot be
expressed in fraction. The principle that figure less
than .5 is to be ignored and figure more than .5 shall
be treated as one, is not applicable in the statutory
scheme as delineated by Section 35. Provision of
Section 35(1) which provides for requirement for moving
motion of noconfidence by not less than onethird of
the total number of the members who are for the time
being entitled to sit and vote at any meeting of the
Panchayat, is the same expression as used in sub
section (3). Obviously, requirement of not less than
onethird number for moving motion has to be computed
from total number of the members who are entitled to
sit and vote. Thus, the same expression having been
used in subsection (3) of Section 35 both the
expressions have to be given the same meaning. Thus,
onethird of total number of members who are entitled
28
to sit and vote have to be determined on the strength
of members entitled to vote at a particular time. The
same meaning has also to be applied while computing
twothird majority.
11.Learned counsel for the appellant has placed
reliance on two judgments, one, of this Court in State
of U.P. and another vs. Pawan Kumar Tiwari and others,
(2005) 2 SCC 10. In the above case, this Court was
considering applicability of percentage of reservation
in the context of U.P. Public Services (Reservation for
Scheduled Casts, Scheduled Tribes and Other Backward
Classes) Act, 1994. The percentage prescribed for the
reservation category in the State of U.P. noticed in
paragraph 2 of the judgment. Respondent belonging to
general category was at the top of the waiting list. He
filed a writ petition directing the State to issue a
letter of appointment to the respondent. The High Court
held that 50 % of general category which was 46.50
ought to have been treated as 47. The High Court had
allowed the writ petition and held the respondent
29
entitled for appointment as 47th general category
candidate. The appeal filed by the State was dismissed
by this Court. Paragraph 2,6 and 7 of the judgment are
as follows:
“2. The percentages of reservation, as
applicable and as was actually applied, are
set out in the following table:
Category Percentage
(prescribed)
Percentage
worked out
to
Number
of posts
reserved
General 50% 46.50 46
Scheduled
Castes
21% 19.53 20
Other
Backward
Classes
27% 25.11 26
Scheduled
Tribes
2% 1.86 1
6. The High Court has found mainly two
faults with the process adopted by the State
Government. First, the figure of 46.50 should
have been rounded off to 47 and not to 46; and
secondly, in the category of freedom fighters
and exservicemen, total 3 posts have been
earmarked as horizontally reserved by
inserting such reservation into general quota
of 46 posts which had the effect of pushing
out of selection zone three candidates from
merit list of general category.
7. We do not find fault with any of the two
reasonings adopted by the High Court. The rule
of rounding off based on logic and common
sense is: if part is onehalf or more, its
30
value shall be increased to one and if part is
less than half then its value shall be
ignored. 46.50 should have been rounded off to
47 and not to 46 as has been done. If 47
candidates would have been considered for
selection in general category, the respondent
was sure to find a place in the list of
selected meritorious candidates and hence
entitled to appointment. ”
12.The judgment of this Court in the above case was on
rounding off the vacancies. The reserved post being 50%
of the total number of posts reservation in no manner
can exceed 50%. In the facts of aforesaid case, there
were total 93 posts, 47 was treated more than 50%.
Hence, the post for general category which was 46.50
was rounded off to 47 by the High Court which was
approved by this Court. The said case related to
computation of vacancies for particular category as per
1994 Act which principle cannot be applied in
computation of a special majority as required by the
statute in question.
13.Another judgment is a Full Bench judgment in Jayram
vs. Secretary, U.D.D. Mumbai, 2010 (3) MH. LJ 465,
31
which is relied by learned counsel for the respondent,
by referring to the judgment of this Court in Pawan
Kumar Tiwari (supra) the Full Bench of Bombay High
Court held that there is no justification that
fraction below 0.5 be ignored in allotting the seats to
registered or recognised parties on the basis of groups
as per statutory scheme delineated by Bombay Provincial
Municipal Corporations Act, 1949. Referring to the
judgment of this Court in Pawan Kumar Tiwari (supra) in
paragraph 31, the Full Bench of Bombay High Court has
rightly held that rounding off was not the ratio or
principle on which Pawan Kumar Tiwari case was decided.
Paragraph 31 of the judgment is quoted below:
"31.Mr. Anturkar, learned Counsel
vehementaly contended that rule of rounding
off is now well recognised and is based upon
the logic and common sense. For this he relied
upon State of U.P. vs. Pawan Kumar Tiwari,
(2005) 2 SCC 10. In that case, 93 posts of
Civil Judges, J.D. were advertised and 50% of
the posts were reserved for different
categories and 50% were for the general or
open category. In view of this percentage
46.50 seats would be available for reserved
category and 46.50 for general category. The
State Government rounded off the number of
posts available for general category at 46 and
for the reserved category at 47. The High
32
Court found fault with the process and held
that the number of posts available for general
category could not be rounded off at 46, but
should have been rounded off at 47. The
Supreme Court dismissed the appeal of the
State Government and held that if the seats
for reserved category are fixed at 47, it
would cross the limit of 50% and therefore it
could not be upheld and as such number of
posts available for reserved category could be
fixed at 46 and that for general category
should have been fixed at 47. Their Lordships
observed as follows in para 9:
“9. There is yet another reason why the
judgment of the High Court has to be
maintained. The total number of vacancies
was 93. Consequent upon the allocation of
reservation and calculation done by the
appellants, the number of reserved seats
would be 47, leaving only 46 available for
general category candidates. Meaning
thereby, the reservation would exceed 50%
which would be unconstitutional. The total
number of reserved seats could not have
been more than 46 out of 93. ”
In fact, in this case, both the groups
had 46.5 and if the same formula would be
applied, then in each case .50 could have been
rounded off to 1 and each of the group would
be entitled to 47 seats. In that case, the
total number would become 94, while the total
vacancies available were only 93. Thus,
rounding off is not the ratio or principle on
which that case was decided. It was decided
mainly on the question as to whether reserved
categories may get seats more than 50% quota.
Therefore the authority in Pawan Kumar
Tiwari's case could not be used in support of
the view taken in Vasant Gite.”
33
14.Further, in paragraph 34 Full Bench of Bombay High
Court itself held that there is no justification to
ignore fraction below 0.5 in the context of allocation
of registered or recognised parties or groups who are
entitled to number of seats. The above judgment of the
Bombay High Court in no manner supports the case of
respondent rather supports the appellant's contention.
15.Learned counsel for the appellant in so far as
disqualification of one of the members who had not
filed her caste certificate relied on Anant vs. Chief
Election Commissioner, 2017 (1) Mh.L.J. 431, before the
Full Bench the issue was raised as to whether on non
submission of caste certificate within six months
period disqualification is automatic. Answering the
reference Full Bench held that the provision for
requiring submission of caste certificate within a
period of six months for election is mandatory and
disqualification would be automatic. In paragraph 100
of the judgment the Full Bench held the following :
34
“100. In the result, we hold that the
time limit of six months prescribed in the two
provisos to Section 9A of the said Act, within
which an elected person is required to produce
the Validity Certificate from the Scrutiny
Committee is mandatory.
Further, in terms of second proviso to
Section 9A if a person fails to produce
Validity Certificate within a period of six
months from the date on which he is elected,
his election shall be deemed to have been
terminated retrospectively and he shall be
disqualified for being a Councillor.
Such retrospective termination of his
election and disqualification for being a
Councillor would be automatic and validation
of his caste claim after the stipulated period
would not result in restoration of his
election.
The questions raised, stand answered
accordingly. ”
16.It is further relevant to note that this Court in
Special Leave Petition (C)Nos. 2987429875 of 2016
(Shankar s/o Raghunath Devre (Patil) vs. State of
Maharashtra & Ors.) has approved the view taken by the
Full Bench vide its judgment dated 23.08.2018 by
holding that the requirement of submitting caste
certificate is mandatory.
35
17.Thus, in so far as vote of one member, Smt. Sushila
Prakash Darade, the same can neither be computed for
the noconfidence motion nor is relevant for computing
twothird majority as per the statutory scheme. The
words 'not less than' used in Section 35(3) of the Act
has to be given meaning and purpose. When majority
comes to 5.33 votes “not less than 5.33 votes” have to
be given meaning, hence, 5.33 can never be rounded off
to 5, fraction has to be treated as one because votes
cannot be treated as fraction. Hence, 5.33 votes to be
read as 6 votes for passing of the motion as mandated
by Section 35(3).
18. We are, thus, of the view that noconfidence motion
was not validly passed and the order of the Addl.
Collector as well as of the High Court are erroneous.
It is held that motion of noconfidence was not passed
against the appellant since it was not passed by less
than twothird of the total number of the members who
were for the time being entitled to sit and vote. The
36
proceedings dated 14.09.2018, order of the Addl.
Collector approving the proceedings as well as the
judgment of the High Court dismissing the writ petition
are set aside. The appeal is allowed accordingly.
.........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
..........................J.
NEW DELHI, ( S. ABDUL NAZEER )
December 10, 2018.
Legal Notes
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