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Rajasthan High Court
Rekha Sharma vs State (Panchyati Raj Dep )Anr on 15 March, 2013
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH

[1]  S.B. Civil Writ Petition No.11119/2012
Laxmi Kanwar & Anr. Vs. State & Ors.

[2]  S.B. Civil Writ Petition No.13635/2012
Mani Kumari Vs. State & Ors.

[3]  S.B. Civil Writ Petition No.13666/2012
Ram Janki Mehra Vs. State & Ors.

		    [4]  S.B. Civil Writ Petition No.14321/2012
Usha Sharma Vs. State & Ors.

[5]  S.B. Civil Writ Petition No.14387/2012
Preeti Rani Garg Vs. State & Ors.

[6]  S.B. Civil Writ Petition No.14667/2012
Sonal Chauhan Vs. State & Ors.

[7]  S.B. Civil Writ Petition No.14772/2012
Deepika Sharma Vs. State & Ors.

[8]  S.B. Civil Writ Petition No.14921/2012
Seema Jain Vs. State & Ors.

[9]  S.B. Civil Writ Petition No.14943/2012
Suchitra Sharma Vs. State & Ors.

[10]  S.B. Civil Writ Petition No.14944/2012
Kimal Kanwar Vs. State & Ors.

[11]  S.B. Civil Writ Petition No.14945/2012
Ribona Khan Vs. State & Ors.

[12]  S.B. Civil Writ Petition No.14946/2012
Pushpa Pathak Vs. State & Ors.

[13]  S.B. Civil Writ Petition No.15070/2012
Mukta Mani Gupta Vs. State & Ors.

[14]  S.B. Civil Writ Petition No.15109/2012
Pooja Vs. State & Ors.

[15]  S.B. Civil Writ Petition No.15142/2012
Rekha Tiwari Vs. State & Ors.

[16]  S.B. Civil Writ Petition No.15144/2012
Pramila Gautam Vs. State & Ors.

[17]  S.B. Civil Writ Petition No.15145/2012
Suman Vs. State & Ors.

[18]  S.B. Civil Writ Petition No.15146/2012
Brijlata Sharma Vs. State & Ors.

[19]  S.B. Civil Writ Petition No.15147/2012
Alka Shukla Vs. State & Ors.
[20]  S.B. Civil Writ Petition No.15148/2012
Pramila Sharma Vs. State & Ors.

[21]  S.B. Civil Writ Petition No.15158/2012
Sunaina Srivastava Vs. State & Ors.

[22]  S.B. Civil Writ Petition No.15221/2012
Kabul Vs. RPSC & Ors.

[23]  S.B. Civil Writ Petition No.15224/2012
Archana Sharma Vs. State & Ors.

[24]  S.B. Civil Writ Petition No.15227/2012
Sunita Sharma Vs. RPSC & Ors.

[25]  S.B. Civil Writ Petition No.15450/2012
Lalita Pareek Vs. State & Ors.

[26]  S.B. Civil Writ Petition No.15493/2012
Pooja Sharma Vs. State & Ors.

[27]  S.B. Civil Writ Petition No.15507/2012
Anita Sharma Vs. State & Ors.

[28]  S.B. Civil Writ Petition No.15510/2012
Pooja Sharma Vs. State & Ors.

[29]  S.B. Civil Writ Petition No.15544/2012
Ekta Jain Vs. State & Ors.

[30]  S.B. Civil Writ Petition No.15651/2012
Renuka Sharma Vs. State & Ors.

[31]  S.B. Civil Writ Petition No.15723/2012
Indu Arrawatia Vs. Principal Secy. Deptt. & Anr.

[32]  S.B. Civil Writ Petition No.15983/2012
Sushmita Pareek Vs. State & Ors.

[33]  S.B. Civil Writ Petition No.16039/2012
Sarita & Ors. Vs. State & Ors.

[34]  S.B. Civil Writ Petition No.16057/2012
Pooja Sharma Vs. State & Ors.

[35]  S.B. Civil Writ Petition No.16123/2012
Shyam Kanwar Rathore Vs. State & Ors.

[36]  S.B. Civil Writ Petition No.16128/2012
Vineeta Sharma Vs. State & Ors.

[37]  S.B. Civil Writ Petition No.16142/2012
Priyanka Sharma & Ors. Vs. State & Ors.

[38]  S.B. Civil Writ Petition No.16143/2012
Shweta Mudgal Vs. State & Ors.

[39]  S.B. Civil Writ Petition No.16148/2012
Priyanka Lawania Vs. State & Ors.
[40]  S.B. Civil Writ Petition No.16149/2012
Trupti Khandelwal Vs. State & Ors.

[41]  S.B. Civil Writ Petition No.16150/2012
Pushpa Sharma Vs. State & Ors.

[42]  S.B. Civil Writ Petition No.16153/2012
Meera Chouhan Vs. State & Ors.

[43]  S.B. Civil Writ Petition No.16263/2012
Gunjan Bhargava Vs. State & Ors.

[44]  S.B. Civil Writ Petition No.16264/2012
Usha Sharma Vs. State & Ors.

[45]  S.B. Civil Writ Petition No.16353/2012
Chandralata Sharma Vs. State & Ors.

[46]  S.B. Civil Writ Petition No.16368/2012
Santosh Shekhawat Vs. State & Ors.

[47]  S.B. Civil Writ Petition No.16385/2012
Sunita Sharma Vs. State & Ors.

[48]  S.B. Civil Writ Petition No.16386/2012
Nimisha Khandelwal Vs. State & Ors.

[49]  S.B. Civil Writ Petition No.16387/2012
Priyanka Agarwal Vs. State & Ors.

[50]  S.B. Civil Writ Petition No.16402/2012
Rashimi Sharma Vs. State & Ors.

[51]  S.B. Civil Writ Petition No.16435/2012
Kiran Sharma & Anr. Vs. State & Ors.

[52]  S.B. Civil Writ Petition No.16566/2012
Vidhya Sharma Vs. State & Ors.

[53]  S.B. Civil Writ Petition No.16930/2012
Nidhi Parashar Vs. State & Ors.

[54]  S.B. Civil Writ Petition No.17051/2012
Pallavi Sharma Vs. Principal Secy. Deptt. & Ors.

[55]  S.B. Civil Writ Petition No.17245/2012
Manju Sharma Vs. State & Ors.

[56]  S.B. Civil Writ Petition No.17348/2012
Sweety & Anr. Vs. RPSC & Ors.

[57]  S.B. Civil Writ Petition No.17359/2012
Manisha Sharma Vs. State & Ors.

[58]  S.B. Civil Writ Petition No.17361/2012
Anu Radha Sharma Vs. State & Ors.

[59]  S.B. Civil Writ Petition No.17421/2012
Sangeeta Kumar JoshiVs. State & Ors.
[60]  S.B. Civil Writ Petition No.17494/2012
Sampati Sharma Vs. RPSC & Ors.

[61]  S.B. Civil Writ Petition No.17505/2012
Tripti Shrimali Vs. State & Ors.

[62]  S.B. Civil Writ Petition No.17628/2012
Preeti Parmar Vs. State & Ors.

[63]  S.B. Civil Writ Petition No.17717/2012
Smt. Kanya Gupta Vs. State & Ors.

[64]  S.B. Civil Writ Petition No.17744/2012
Krishna Sharma Vs. State & Ors.

[65]  S.B. Civil Writ Petition No.17860/2012
Vipan Shekhawat Vs. State & Ors.

[66]  S.B. Civil Writ Petition No.18068/2012
Rinni Rathpal & Anr. Vs. State & Ors.

[67]  S.B. Civil Writ Petition No.18258/2012
Mehnaj Akhatar Vs. State & Ors.

[68]  S.B. Civil Writ Petition No.18280/2012
Pushpa Sharma Vs. State & Ors.

[69]  S.B. Civil Writ Petition No.16389/2012
Sudarshana Sharma Vs. State & Ors.

[70]  S.B. Civil Writ Petition No.18319/2012
Gayatri Devi Vs. State & Ors.

[71]  S.B. Civil Writ Petition No.18807/2012
Suman Sharma & Anr. Vs. RPSC & Ors.

[72]  S.B. Civil Writ Petition No.13818/2012
Soniya Sharma Vs. State & Ors.

[73]  S.B. Civil Writ Petition No.15553/2012
Rupal Tripathi Vs. State & Ors.

[74]  S.B. Civil Writ Petition No.14571/2012
Suman Pareek Vs. State & Ors.

[75]  S.B. Civil Writ Petition No.11116/2012
Aradhana Agarwal Vs. State & Ors.

[76]  S.B. Civil Writ Petition No.15456/2012
Urvashi Gupta Vs. State & Ors.

[77]  S.B. Civil Writ Petition No.15634/2012
Sunita Mittal Vs. State & Ors.

[78]  S.B. Civil Writ Petition No.16529/2012
Rajeshwari Vs. State & Ors.

[79]  S.B. Civil Writ Petition No.16734/2012
Mamta Sharma Vs. State & Anr.
[80]  S.B. Civil Writ Petition No.16745/2012
Leelawati Vs. State & Ors.

[81]  S.B. Civil Writ Petition No.18566/2012
Priyanka Vs. State & Ors.

[82]  S.B. Civil Writ Petition No.17309/2012
Nisha Jain Vs. State & Ors.

[83]  S.B. Civil Writ Petition No.17362/2012
Anita Sharma Vs. State & Ors.

[84]  S.B. Civil Writ Petition No.14541/2012
Aarti & Anr. Vs. State & Ors.

[85]  S.B. Civil Writ Petition No.14619/2012
Smt. Tarannum Bano Vs. State & Anr.

[86]  S.B. Civil Writ Petition No.15094/2012
Menka Sharma Vs. State & Ors.

[87]  S.B. Civil Writ Petition No.15742/2012
Seema Gupta Vs. Principal Secy. Deptt. & Anr.

[88]  S.B. Civil Writ Petition No.15457/2012
Archana Singhal Vs. State of Raj. & Ors.

[89]  S.B. Civil Writ Petition No.16060/2012
Anju Kumar Sharma Vs. Principal Secy. Deptt. & Anr.

[90]  S.B. Civil Writ Petition No.14935/2012
Neha Sharma Vs. State & Anr.

[91]  S.B. Civil Writ Petition No.14090/2012
Rekha Sharma Vs. State & Ors.

[92]  S.B. Civil Writ Petition No.14637/2012
Usha Kanwar Vs. State & Ors.

[93]  S.B. Civil Writ Petition No.16036/2012
Ankita Sharma Vs. State & Anr.

[94]  S.B. Civil Writ Petition No.14919/2012
Rashmi Sharma Vs. State & Anr.

[95]  S.B. Civil Writ Petition No.18497/2012
Suman Yadav Vs. State & Anr. 

[96]  S.B. Civil Writ Petition No.19304/2012
Rekha Rani Vs. State & Ors.

[97]  S.B. Civil Writ Petition No.19342/2012
Rashmi Lakhotia Vs. RPSC & Ors.

[98]  S.B. Civil Writ Petition No.18667/2012
Man Kanwar Vs. State & Anr.

[99]  S.B. Civil Writ Petition No.15781/2012
Pooja Ojha Vs. RUHS & Ors. 

[100]  S.B. Civil Writ Petition No.10790/2012
Anamika Yadav Vs. RUHS & Ors.

[101]  S.B. Civil Writ Petition No.18834/2012
Riketa Puryani Vs. State & Anr. 

[102]  S.B. Civil Writ Petition No.19354/2012
Sarita Gupta Vs. State & Anr. 

[103]  S.B. Civil Writ Petition No.19761/2012
Nirmala Sharma Vs. State & Ors.

[104]  S.B. Civil Writ Petition No.19415/2012
Ravika Vs. State & Ors.

[105]  S.B. Civil Writ Petition No.19867/2012
Sulochna Vs. State & Ors.

[106]  S.B. Civil Writ Petition No.20235/2012
Kalpana Sharma Vs. State & Ors. 

[107]  S.B. Civil Writ Petition No.14593/2012
Priyanka Gupta Vs. State & Ors. 

[108]  S.B. Civil Writ Petition No.20327/2012
Indu Chaudhary Vs. State & Anr.

[109]  S.B. Civil Writ Petition No.20614/2012
Kamla Devi Jat Vs. State & Ors.

[110]  S.B. Civil Writ Petition No.20522/2012
Ms. Rekha Upadhaya Vs. State & Ors.

[111]  S.B. Civil Writ Petition No.14565/2012
Shikha Jain Vs. State & Ors.

[112]  S.B. Civil Writ Petition No.10340/2012
Deepika Maheshwari Vs. State & Ors.

[113]  S.B. Civil Writ Petition No.14320/2012
Raj Kumari Jain Vs. State & Ors.

[114]  S.B. Civil Writ Petition No.2599/2012
Smt. Chitra Vs. State & Ors.

[115]  S.B. Civil Writ Petition No.2179/2013
Santosh Kumari Sharma Vs. State & Ors.

[116]  S.B. Civil Writ Petition No.2204/2013
Parul Jain Vs. State & Anr.

[117]  S.B. Civil Writ Petition No.2262/2013
Rekha Sharma Vs. State & Anr.

[118]  S.B. Civil Writ Petition No.17944/2012
Mamta Saraswat Vs. State & Ors.   


[119]  S.B. Civil Writ Petition No.18684/2012
Anita Kumari Vs. State of Raj. & Anr.

[120]  S.B. Civil Writ Petition No.11111/2011
Archana Sharma Vs. State & Ors.   

DATE OF ORDER      :      15/03/2013
HON'BLE MR. JUSTICE M.N. BHANDARI

Mr. Vigyan Shah, Mr. Karanpal Singh, Mr. Ram Pratap Saini, Mr.Jeetendra Kumar Sharma, Mr. Raj Kamal Gaur, Mr. Hari Krishan Sharma, Mr. Sunil Kumar Jain, Mr. Lokesh Sharma, Mr. G.P. Sharma, Mr. A.K. Sharma, Mr. Sunil Kumar Singodiya, Mr. Timan Singh, Mr. Tarun Jain, Mr. D.K. Bhardwaj, Mr. Nikhlesh Katara, Mr.Rajvir Sharma, Mr. Brijesh Bhardwaj, Mr. Umashanker Pandey, for PETITIONERS	
Mr. S.N. Kumawat, AAG, for respondents
REPORTABLE
 *** 

The legal question involved in these writ petitions is as to whether horizontal reservation permits inter transferability/migration of candidates from one category to another?

To address the aforesaid issue and for convenience, the facts of S.B. Civil Writ Petition No.11119/2012 (Laxmi Kanwar & Anr. Vs. State of Rajasthan & Ors), are taken.

The respondents issued an advertisement calling for applications for appointment on the post of Teacher Gr.III (Level I & II). In response to the advertisement, applications were submitted by the petitioners followed by selection test. The result of the selection was thereafter declared in the month of June, 2012. The respondents migrated reserve category women to general category based on their higher marks though many reserve category woman candidates availed relaxation/concession in selection thus not liable to be migrated to general category. It is apart from the fact that horizontal reservation does not permit migration from one category to another like vertical reservation. Prayer is accordingly to restrain the respondents to migrate reserve category woman candidates to general/open category women quota of 30%. Other writ petitions are for different posts but common question of law is involved.

Learned Counsel submit that equality in public employment is envisaged under Article 16 of the Constitution of India. The discrimination in public employment is prohibited only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Article 16(4) however carves out an exception to provide reservation in favour of any backward class of citizens not adequately represented in the services under the State. In view of Article 16 of the Constitution of India, a fundamental right exists in favour of every citizen to claim equal opportunity in public employment. The aforesaid Article does not permit discrimination on the ground of sex. Article 16(4) provides for reservation to backward class, but it is subject to Article 16(2) i.e. no discrimination on the ground mentioned therein. The reservation to the women is thus in violation of Article 16(2) of the Constitution of India because by providing reservation, male and female do not stand on same pedestal rather discrimination is caused amongst them.

To over come from the aforesaid problem and prohibition under Article 16(2), reservation to the women is taken under Article 15(3) of the Constitution though even Article 15(1) prohibits discrimination against citizen only on the grounds of religion, race, caste, sex, place of birth or any of them. Thus, Article 15(1) also reiterates what has been provided under Article 16(2) of the Constitution of India. Article 15(3) however permits State to make special provision for women and children. The aforesaid provision has been taken to save reservation in favour of women in ignorance of the fact that Article 15(3) does not speak about reservation but special provisions for women and children. If intention of framers of the Constitution would have been to provide reservation to women and children, then word reservation should have been used, instead special provision. Article 15(3) provides special provision for women and children thus reservation in favour of women becomes illegal and unconstitutional as discrimination on the ground of sex is prohibited under Article 15(1) and 16(2) of the Constitution of India.

It is only one part of the argument. If Article 15(3) allows State Government to make special provision for women and children, then question would be as to whether it can be reservation in public employment in ignorance of the prohibition under Article 16(2) of the Constitution of India where discrimination is prohibited on the ground of sex. The interpretation of Article 16(2) and Article 15(3) cannot be given in such a manner to keep conflict between two provisions of the Constitution. The subject of public employment is under Article 16 and is not subjected to overriding effect by any other Article like Article 15 which operates in different fields. In view of the above, what State Government can at the best do for women and children pursuant to Article 15(3) of the Constitution is to provide special provision as was done by Andhra Pradesh State Government when they provided preference in favour of woman candidates to the extent of 30% seats. The word preference was given interpretation by Hon’ble Apex Court in the case of Govt. of Andhra Pradesh Vs. P.B. Vijaykumar & Anr., reported in (1995) 4 SCC 520. The preference is given when all things between male and female are equal. In ignorance of the aforesaid, the State Government has provided reservation for women.

If special provision can be provided in favour of women under Article 15(3) of the Constitution of India then it cannot be reservation because reservation in public employment can be under Article 16(4) of the Constitution of India but without discrimination on the ground of sex. If certain posts are kept for women by special provision under Article 15(3) of the Constitution of India then it should be without applying principle of reservation and in that eventuality, practice of migration of reserve category candidate to general category for the purpose of reservation is not to be made applicable. If certain percentage of posts are kept for women in view of Article 15(3) of the Constitution, it has to be filled strictly from the category of women to which it is notified. The rule notified by the Government also speaks about category-wise reservation and it has been clarified in the circular dated 24.06.2008. The issue therein has been dealt with in reference to vertical and horizontal reservation. The circular mandates for preparation of merit list category-wise. Contrary to the aforesaid, the respondents are migrating reserve caste women candidates on the post meant for general/open category women candidates by applying same principle as are provided for reservation. The use of words reservation for women quota is unconstitutional as it offends Article 16(2) of the Constitution of India thus wherever any provision or legislation exists to indicate reservation in favour of women, it should be treated as nullity or alternatively, it should be treated as special provision for female so as to make it in consonance to Article 15(3) of the Constitution and to avoid bar of Article 16(2). In the eventuality aforesaid, posts kept for women by special provision, migration of reserve category female candidates to general/open category would not be permissible.

Learned Counsel have given reference of judgment in the case of Anil Kumar Gupta Vs. State of U.P., reported in (1995) 5 SCC 173. In the aforesaid judgment, inter changeability of category in horizontal reservation is not allowed. A further reference of judgment of Hon’ble Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission, reported in (2007) 8 SCC 785 has been given wherein also migration of woman candidates from one category to another is not permitted.

Learned Counsel for petitioners have further given reference of judgments in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht and Ors., reported in (2010)12 SCC 204 and Naresh Kumar Vs. State of Rajasthan, reported in 2012 (1) WLC (Raj.) 538. It is accordingly prayed that migration of reserve caste woman candidates should not be permitted on the post meant for general/open category women rather these posts should be filled from general caste women being vulnerable in their own category.

The second issue is that quota meant for widow and divorcee to the extent of 8% and 2% respectively is to be on the posts meant for woman candidates and not on the total posts. The respondents are providing reservation in favour of widow and divorcee to the extent of 8% & 2% respectively on overall posts instead of 30% post meant for female. It is contrary to the notification providing reservation for widow and divorcee. The second issue is limited to the writ petitions pertaining to the posts of Teacher and not to other writ petitions thus direction in that regard would apply to the writ petitions pertaining to the appointment on the post of Teacher.

Learned Counsel for petitioners have not pressed any other issue.

Learned Additional Advocate General Shri S.N. Kumawat, opposing prayers of the petitioners, submits that counsel for petitioners have unnecessarily confused the issue in reference to Article 16(2) and Article 15(3) of the Constitution of India. The reservation in favour of women has already been held to be constitutional thus principle of horizontal reservation has rightly been applied to provide reservation to the woman candidates. Learned AAG submits that there exist broadly four categories whose merit list is prepared at the first instance namely; Open, OBC, SC & ST category. The further bifurcation is towards special reservation for woman, disabled person, etc. So far as open/general category is concerned, it consists of all categories. The merit list therein cannot be prepared from and amongst general caste candidates only, but has to be of all the categories and castes strictly as per merit. The Hon’ble Apex Court has already defined the words general/open category to include all the castes and categories subject to merit. Applying the aforesaid principle, quota meant for open/general category female has to be filled. It cannot be kept reserved only for general caste woman candidates. Applying the aforesaid, migration of reserve category woman candidates is allowed to general/open category, if they have secured higher marks in comparison to general caste woman candidates.

It is further submitted that none of the judgments cited by learned counsel for petitioners address the issue raised in these petitions, rather issue has been raised for the first time as to whether migration of reserve caste woman candidates would be permissible to open/general women category quota based on higher marks. The learned AAG has referred various judgments of Hon’ble Apex Court to support his arguments. First judgment referred is in the case of Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., reported in 1992 Supp (3) SCC 217. In the aforesaid judgment, difference was indicated between social reservation and special reservation. First reservation is vertical and other to be horizontal. Further reference of following judgments has been given in the case of Govt. of Andhra Pradesh Vs. P.B. Vijaykumar and another, reported in 1995 (4) SCC 520, Anil Kumar Gupta and Ors. Vs. State of U.P. and Ors., reported in 1995 (5) SCC 173, Union of India (UOI) and Anr. Vs. Satya Prakash and Ors., reported in 2006 (4) SCC 550, Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Ors., reported in 2007 (8) SCC 785, Union of India Vs. Ramesh Ram & others, reported in 2010 (7) SCC 234, Public Service Commission, Uttaranchal Vs. Mamta Bisht and Ors., reported in 2010 (12) SCC 204 and Sheikh Mohd. Afzal & Anr. Vs. The State of Rajasthan & Anr., reported in 2008 (1) WLC (Raj.) 186.

Learned AAG submits that judgments referred to above clarify that not only reservation in favour of female candidates is permissible but general principle of reservation would allow migration from one category to another. In that regard, much emphasis has been made on the judgment of Hon’ble Apex Court in the case of P.B. Vijaykumar (supra). Therein, issue in reference to women reservation was decided and in that regard a further reference of the judgment in the case of Vijay Lakshmi Vs. Punjab University and Ors., reported in 2003 (8) SCC 440 has been given. Referring to the judgment aforesaid, it is submitted that women can be provided reservation in reference to Article 15(3) of the Constitution of India and in doing so, Article 16(2) is not offended. If reservation in favour of women is permissible then principle of migration as applicable for reservation would obviously apply. It is moreso when open/general category does not indicate a reservation for general caste candidate, but a category open for all candidates whether general caste or reserve caste. The placement in the open/general category is strictly as per merit position obtained by the candidate. Accordingly, if a woman of reserve category has obtained higher marks to that of a general caste woman then she cannot be denied benefit of migration from reserve category to general/open category. In view of the above, first issue raised by learned counsel for petitioners may be answered against them.

Coming to the second issue, it is submitted that 8% and 2% reservation for widow and divorcee respectively is on the total posts meant for female and not on overall posts. Learned AAG has supported the arguments of the learned counsel for petitioners. It is clarified that 8% meant for widow and 2% for divorcee would be on the 30% seats meant for women and not on the total posts. If any Zila Parishad had acted and provided reservation to widow and divorcee on total posts and not on the posts meant for women, then necessary correction would be made. With the aforesaid prayer is made that while accepting second ground, first issue raised by petitioners may be rejected.

I have considered rival submissions of the parties and scanned the matter carefully.

To address the issue of vital importance, it would be necessary to refer certain provisions of Constitution of India. Article 16 of the Constitution of India gives right of equality in public employment, whereas Article 15 of Constitution of India prohibits discrimination on the ground of religion, race, caste, sex or place of birth. Learned counsel for the parties have referred both the provisions thus it would be gainful to quote both the provisions for ready reference:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

16. Equality of opportunity in matters of public employment.-(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Perusal of Article 15 prohibits discrimination against any citizen on the ground of religion, race, caste, sex or place of birth. In view of the above, no discrimination on the ground of sex can be made amongst citizens. Article 15(3) however gives liberty to the State for making any special provision for women and children. A careful reading of the aforesaid provision does not show a liberty to the State to provide reservation in favour of women and children, but permits special provision for women and children. It seems to be nothing but a deliberate deviation from the provision which otherwise exists under Article 16(4) of the Constitution of India. It is further necessary to refer that so far as public employment is concerned, it is governed by Article 16 of the Constitution of India. It is special provision for public employment thus question would be as to whether any other provision of the Constitution can nullify or deviate from Article 16 pertaining to public employment? If Article 16(2) is looked into, discrimination in public employment on the ground of sex is prohibited. In view of specific prohibition of Article 16(2) of the Constitution of India, a citizen cannot be discriminated on the ground of religion, race, sex, caste, etc. in public employment. It was clarified by Hon’ble Apex Court in Indra Sawhney etc. etc Vs. Union of India (supra). Para 514 is quoted hereunder for ready reference:

514. It is necessary to add here a word about reservations for women. Clause (2) of Article 16 bars reservation in services on the ground of sex. Article 15(3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Further, women come from both backward and forward classes. If reservations are kept for women as a class under Article 16(1), the same inequitous phenomenon will emerge. The women from the advanced classes will secure all the posts, leaving those from the backward classes without any. It will amount to indirectly providing statutory reservations for the advanced classes as such, which is impermissible under any of the provisions of Article 16. However, there is no doubt that women are a vulnerable section of the society, whatever the strata to which they belong. They are more disadvantaged than men in their own social class. Hence reservations for them on that ground would be fully justified, if they are kept in the quota of the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such and whatever the percentage-limit on the reservations under Article 16, need not be exceeded.

The perusal of Constitutional Bench judgment reveals that Article 15(3) cannot save the situation as all the reservations are under Article 16. It however permitted quota for women if it is kept in respective class as women are vulnerable section of the society, whatever the strata to which they belong. They are more disadvantaged than men in their own social class. If reservation is provided in the respective class, it would be permissible. It should not be for advanced class only.

The question would still be as to whether there exists conflict between Article 16(2) and Article 15(3) of the Constitution of India if reservation to vulnerable class is provided? It is for the reason that Article 15(3) provides special provision for women and children and not reservation, whereas Article 16(2) prohibits discrimination in public employment on the ground of sex. It would be necessary to give harmonious interpretation to both the provisions so as to avoid conflict and mis-interpretation. It is required to find out as to whether women can be allowed reservation or be treated by special provision. In Para 514 quoted above, reservation for women is not saved by Article 15(3) and is barred by Article 16(2) but the last portion of the para aforesaid allows post for women in their respective class. The issue aforesaid is relevant to answer the question raised in these writ petitions.

To give harmonious interpretation of Article 15(3) and Article 16(2) of the Constitution of India, it can conveniently be held that Article 16(2) prohibits discrimination amongst citizens on the ground of race, sex, caste, etc. for public employment and reservation is permissible under Article 16(4) of the Constitution of India, but it is only for backward class of citizens without discrimination on the ground of sex, caste, etc. In view of the above, what can be meant for women is the special provision under Article 15(3) but not the reservation as it would offend Article 16(2). The aforesaid has been clarified by Hon’ble Apex Court in the case of Indra Sawhney (supra) holding that women reservation cannot be under Article 15(3). It was however observed that women are vulnerable class thus be given reservation category-wise. The word reservation has been used in para 514 of the said judgment for women however in the earlier part of the said para, it is not saved by Art.15(3) and held to be barred by Article 16(2). There is no provision for reservation of women. To avoid conflict, whenever posts are kept for women, it should be considered to be a special provision instead of reservation. In that situation, posts meant for women would be filled category-wise without applying principle of reservation which permits migration.

It would be relevant to refer the judgment cited by the parties in the case of P.B. Vijaykumar (supra). In the case aforesaid, the issue was raised in reference to Rule 22A(2) of Andhra Pradesh State and Subordinate Service Rules. The rule aforesaid was providing preference to the women to the extent of 30%. Relevant Paras 4, 5, 6, 7, 8, 9 & 10 are quoted hereunder for ready reference:

4. Article16(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. The ambit of Article 16(2) is more limited in scope than Article 15(1) because it is confined to employment or office under the State. Article 15(1), on the other hand, covers the entire range of State activities. At the same time, the prohibited grounds of discrimination under Article16(2) are somewhat wider than those under Article15(2) because Article 16(2) prohibits discrimination on the additional grounds of descent and residence apart from religion, race, caste, sex and place of birth. For our purposes, however, both Articles 15(1) and 16(2) contain prohibition of discrimination on the ground of sex.

5. The respondent before us has submitted that if Article 16(2) is read with Article 16(4) it is clear that reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State is expressly permitted. But there is no such express provision in relation to reservation of appointments or posts in favour of women under Article 16. Therefore, the respondent contends that the State cannot make any reservation in favour of women in relation to appointments or posts under the State. According to the respondent this would amount to discrimination on the ground of sex in public employment to posts under the State and would violate Article 16(2).

6. This argument ignores Article 15(3). The inter-relation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles15(1) and15(3) go together. In addition to Article 15(1) Article 16(1), however, places certain additional prohibitions in respect of a specific area of state activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by clauses (3), (4) and (5) of Article 16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 – the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article15(3) is wide enough to cover the entire range of State activity including employment under the State.

7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16.

8. What then is meant by “any special provision for women” in Article 15(3)? This “special provision”, which the State may make to improve women’s participation in all activities under the supervision and control of the State can be in the form of either affirmative action or reservation. It is interesting to note that the same phraseology finds a place in Article 15(4) which deals with any special provision for the advancement of any socially or educationally backward class of citizens or Scheduled Castes or Scheduled Tribes. Article 15 as originally enacted did not contain Article 15(4). It was inserted by the Constitution First Amendment Act, 1951 as a result of the decision in the case of The State of Madras v. Champakam Dorairajan AIR 1951 SC 226 setting aside reservation of seats in educational institutions on the basis of caste and community. This Court observed that the Government’s order was violative of Article 15 or Article 29(2). It said: –

Seeing however, that clause (4) was inserted in Article 16, the omission of such an express provision from Article 29 cannot but be regarded as significant.

9. In the light of these constitutional provisions, if we look at Rule 22-A(2) it is apparent that the Rule does make certain special provisions for women as contemplated under Article 15(3). Rule 22-A(2) provides for preference being given to women to the extent of 30% of the posts, other things being equal. This is clearly not a reservation for women in the normal sense of the term. Reservation normally implies a separate quota which is reserved for a special category of persons. Within that category appointments to the reserved posts may be made in the order of merit. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter se merit and not as compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competition from the open category candidates. In the case of Indra Sawhney while dealing with reservations, this Court has observed (at paragraph 836) :-

It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed.

These remarks are qualified by observing that efficiency, competence and merit are not synonymous and that it is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes. What is required is an opportunity to prove it. It is precisely a lack of opportunity which has led to social backwardness, not merely amongst what are commonly considered as the backward classes, but also amongst women. Reservation, therefore, is one of the constitutionally recognised methods of overcoming this type of backwardness. Such reservation is permissible under Article 15(3).

10. Rule 22-A(2), however, does not provide for this kind of reservation for women. It is a Rule for a very limited affirmative action. It operates, first of all, in respect of direct recruitment to posts for which men and women are equally suited. Secondly, it operates only when both men and women candidates are equally meritorious. This is an express condition of Rule 22-A (2), thus limiting its application. In other words, it contemplates a situation where, in the selection test – whether it is written or oral or both, a certain number of men and women candidates have got an equal number of marks. If the number of posts to which these equally situated men and women can be appointed are limited, and all of them cannot be appointed, then preference to the extent of 30% is required to be given to women. This is clearly an affirmative action of preference to the extent of 30% for women. To give an illustration, supposing there are in the merit list, at a certain point in the order of merit, 20 candidates – men and women, who have secured equal marks. There are only ten posts which have to be distributed amongst these 20 candidates. In such a situation, 3 out of these 10 posts will be given to women while the remaining 7 posts will have to be allotted among the remaining 17 candidates. In such a situation if there are any departmental rules for giving preference they will operate. For example such rules at times provide that a person who is older in age will be preferred, all other thing being equal. This kind of preference may have nothing to do with merit. It may be merely an administrative guideline to select from amongst those who are equally meritorious. Sometimes educational qualifications are looked at to find out the marks obtained by the candidates in the examination. It could be that the examination taken by different candidates is of different institutions or universities and is taken at different times. Nevertheless, these marks are looked at to select some candidates out of a group of equally meritorious persons. These norms for selection out of equally meritorious persons, do not come into play under Rule 22-A(2) for giving preference to women. The phrase “other things being equal” does not refer to these other norms for choosing from out of equally meritorious persons. For example, it would be somewhat starting to find men and women who have not merely got the same number of marks in the selection test but are also born on the same day in the same year. It is not the intention of Rule 22-A(2) that it would apply only if all the candidates have not merely the same number of marks in the selection test but are also born on the same date, or have identical marks in the qualifying diploma or degree examination. The preference contemplated under Rule 22-A(2) will come into operation at the initial stage when in the selection test for the post in question, candidates obtain the same number of marks or are found to be equally meritorious. Rule 22-A(2) prescribes a minimum preference of 30% for women, clearly contemplating that for the remaining posts also, if women candidates are available and can be selected on the basis of other criteria of selection among equals which are applied to the remaining candidates, they can also be selected. The 30% rule is also not inflexible. In a situation where sufficient number of women are not available, preference that may be given to them could be less than 30%.

Perusal of paras quoted above reveals that Article 15(3) of the Constitution of India provides for affirmative action even in public employment. It may be even reservation in favour of women. The fact however cannot be ignored that Article 16(2) prohibits discrimination amongst citizens in public employment on the ground of sex and Article 16(4) does not provide reservation in favour of women. The Constitutional Bench judgment in the case of Indra Sawhney (supra) has not approved reservation for women under Article 15(3) rather it is barred under Article 16(2). I have no hesitation to observe that when specific provision exists in the Constitution to provide fundamental right to citizen in public employment, it cannot be subjected to other provision of the Constitution governing different field otherwise there would be conflict in two fundamental rights. The aforesaid view is supported by para 514 of Indra Sawhney’s judgment (supra) where reservation for women is not saved by Article 15(3). It seems that relevant para of Constitutional Bench judgment was not brought to the notice of the Court in the case of P.B. Vijaykumar (supra). In any case, this court is to follow larger Bench judgment in case of conflict in two judgments.

In my opinion, judgment of the Hon’ble Apex Court in the case of P.B. Vijaykumar (supra) has to be read in reference to Rule 22A of the Rules referred therein. It was not to provide reservation to women, but preference to the extent of 30% posts. It was held that every thing being equal, preference can be given to the women. In that event, it would not violate Article 16(2) of the Constitution of India, rather saved by Article 15(3) of the Constitution of India. It can be thus safely held that so far as earmarking certain posts for women are concerned, it can be saved by Article 15(3), if considered special provision for women and not by reservation. In the instant case, 30% posts have been reserved for women, but to simplify the issue, it can be construed to be a special provision for women to earmark 30% posts for them. By giving aforesaid interpretation, obvious violation of Article 16(2) would be avoided to save provision for keeping 30% posts for women under Article 15(3) of the Constitution of India without holding it to be reservation. Keeping 30% posts for women may result and be loudly construed to be reservation, but argument aforesaid can be nullified by holding that for 30% posts for women by special provision, principle as applicable to the reservation would not be applicable. The posts meant for women would be filled from the category it is meant, without inter changeability as women are vulnerable in each category as held in para 514 in the case of Indra Sawhney (supra). There keeping posts for women category-wise is made permissible. The obvious deviation from the general principle of reservation is regarding inter changeability. In reservation, open/general category means every category but if it is construed to be special provision, it would not be required to be dealt with the same principle of inter changeability as applicable in reservation and while doing so, difference between reservation and special provision would come out and is required to be made otherwise there would be no difference in reservation and special provision. The special provision would provide post to each class separately as women are vulnerable in each category, whether general, SC, ST and OBC.

Learned AAG has cited several judgments, but I find those judgments either on an issue different than raised herein or if judgment is in reference of women reservation then it was not on interchangeability of woman candidates from one category to another. If the reservation in favour of women is saved under Article 15(3) then it would be in conflict with the judgment of Constitutional Bench in the case of Indra Sawhney (supra). What will prevail is the judgment of Constitutional Bench thus I am not required to discuss all the judgments referred by counsel for either of the parties other than relevant and referred in the earlier paras and judgments in conflict to Constitutional Bench judgment.

Coming to the facts of this case, it would be necessary to refer the relevant rule. It was brought by way of amendment. The relevant rule is quoted hereunder for ready reference. The rule was amended further to provide quota for widow and divorcee.

7B. Reservation of vacancies for woman candidates.- Reservation of vacancies for woman candidates shall be 30% categorywise, in direct recruitment. In the event of non-availability of eligible and suitable woman candidates in a particular year, the vacancies so reserved for them shall be filled up by male candidates and such vacancies shall not be carried forward to the subsequent year and reservation shall be treated as horizontal reservation i.e. the reservation of woman candidates shall be adjusted proportionately in the respective category to which the woman candidates belong.

The rule aforesaid is applicable to all the services listed in the amendment. As per rule, posts meant for women should be filled from the category to which she belongs. The rule however used the word reservation in favour of women though it is not permissible under Article 16(2) of the Constitution of India and not saved by Article 15(3) in view of Constitutional Bench judgment in the case of Indra Sawhney (supra). The posts meant for female candidates can be saved only when it is termed to be special provision instead of reservation. The detailed discussion has already been made on the aforesaid issue. Thus, applying the principle laid down in this judgment and difference made between reservation and special provision, migration of reserve category to open category, as is permissible in reservation, cannot apply. Interpretation of the rule has to be made in such a manner which may save the posts meant for female and at the same time, it remains in consonance to the constitutional mandate and ratio propounded by Hon’ble Apex Court in the case of Indra Sawhney (supra). Para 514 of the said judgment quoted earlier reveals that while reservation in favour of women is not saved under Article 15(3) yet looking to the vulnerable condition of female in each category, special provision can be made for general, SC/ST and OBC women. In the background aforesaid, posts kept for women are looking to their vulnerable condition in their own category irrespective of caste and class. Hence, posts meant for each category are to be filled from an amongst said category alone and not by way of migration. If migration is permitted then virtually posts meant for women will turn out to be reservation not permissible under Article 16(2) of the Constitution of India. In the background aforesaid, even the definition of general/open category as applicable in reservation would not apply herein otherwise there would be no difference between reservation and special provision. It is however necessary to clarify that keeping posts for women (general) without migration would not be a reservation in favour of general caste, but is an outcome of special provision in favour of women in all categories looking to their vulnerable condition. The upliftment of women is required in all the categories, whether general, SC, ST or OBC etc. In view of above discussion, the first question is answered in favour of the petitioners. The merit list of the respective posts may be prepared accordingly.

The time has now come to consider the pattern of reservation exists in the country. It should not be for the purpose to divide citizens on the basis of caste and at the same time to see that a downtrodden citizen of any caste is given benefit of reservation so as to give true meaning to backward class used under Article 16(4) of the Constitution of India.

The question now comes regarding 8% and 2% posts meant for widow and divorcee. The issue aforesaid needs no discussion as it has been agreed by learned Additional Advocate General that calculation of 8% and 2% posts meant for widow and divorcee would be maintained on the posts earmarked for women and not on the total posts advertised for any category. The issue aforesaid is concluded by the aforesaid.

With the discussion made above, all the writ petitions are disposed of. This disposes of stay applications also.

[M.N. BHANDARI],J.

FRBOHRA/11119CWP2012.doc

Certificate:

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

FATEH RAJ BOHRA, P.A.


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