Reservation For Women In Public Employment Can Only Be Horizontal, Not Vertical: Madras High Court To TNPSC

In those cases where appointments are yet to be made, the arrangement given by us would be applied and if the respondents find it to be offending Section 26 of the Act of 2016, then the same is declared ultra vires the Constitution, because the Constitution and the judgments of the Apex Court do not provide setting apart of the posts for female candidates to be arranged vertically.

The petitioners were challenging the arrangement made for reservation of women pursuant to Section 26 and 27 of the Tamil Nadu Government Servants (Conditions of Service) Act 2016. The provisions stipulate that a minimum 30% of all the vacancies to be filled through direct recruitment shall be set apart for women candidates, irrespective of the fact whether the rule of reservation of appointment applies to the posts or not, and in respect of the posts to which the rule of reservation applies, 30% of vacancies shall be set apart for female candidates following the reservation for Scheduled Castes and Scheduled Tribes, Backward Class Muslims, Backward Classes, Most Backward Classes or Denotified communities and General Turn. The women candidates shall also be entitled to compete for the remaining 70% of vacancies along with male candidates.

The petitioners contended that the provision offends Article 16(2) of the Constitution and the precedent laid down by the Apex Court in Indra Sawhney v. Union of India.

Advocate General R Shunmugasundaram, contended that the Sections do not offend any of the constitutional provisions, rather it is in consonance with it. It is submitted that while Article 16(4) of the Constitution of India talks about the reservation for backward class of citizens, Article 15(3) of the Constitution provides a special provision for women and, accordingly, Section 26 of the Act of 2016 is in consonance with Article 15(3) of the Constitution of India.

The court considered this issue at length and after going through Articles 15 and 16 stressed that while Article 15 is a "special provision", reservation in public employment is dealt only under Article 16.

It must be for the obvious reason that when public employment is governed by Article 16 of the Constitution, it cannot be ruled by Article 15 of the Constitution, which is of general application to the field not occupied by other Articles guaranteeing fundamental rights, otherwise there would be conflict between Articles 15 and 16 of the Constitution of India.

Laying emphasis on the judgment in Indra Sawhney, the court observed as under:

The aforesaid judgment of the Apex Court clarifies that reservation for women in public employment cannot be under Article 15(3) of the Constitution and Article 16(2) of the Constitution bars reservation on the ground of sex and all the reservations can be under Article 16 of the Constitution. However, a finding was recorded that women are vulnerable section and, therefore, reservation can be provided in the quota of respective class.

The court thus noted that it was upon the Parliament to provide reservation for the vulnerable class of candidates as Article 16(4) only deals with reservation for the backward class of citizens.

The court reiterated that in Indra Sawhney, the court had specifically held that women en bloc cannot be brought under the category of backward class of citizen and that they were separately categorized as a vulnerable class for which no reservation is provided in the Constitution.

The court thus suggested that the reservation in public employment is to be made following the decision in RajeshKumar Daria v. Rajasthan Public Service Commission and others, (2007) 8 SCC 785 wherein the court observed as under:

The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied—in case it is an overall horizontal reservation—no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom.

The court observed that if Section 26 of the Act was to be interpreted as if to en bloc reserve 30% of the posts for female candidates at first stance and thereafter to proceed further, such interpretation was not constitutional and deserved to be struck down. The provision has to be interpreted in accordance with the law laid down by the Apex Court. The court emphasized that vertical reservation was only applied in case of social reservation and in case of special reservation, it had to be made horizontally.

As the appointments were already made, the court did not find it fit to nullify the appointments but at the same time the court did not find it fit to deny the right of appointment to those who were entitled to it on merit. Thus, the court directed the respondents to rearrange the entire list and if any of the petitioners found place on merit based on the arrangement, they were to be given appointment.

Case Title: M Satheesh v. Secretary, Revenue Department and others

Case Title: W.P.Nos.6201 of 2013

Citation: 2022 LiveLaw (Mad) 393

Counsel for the Petitioner: Mrs.Dakshayani Reddy

Counsel for the Respondents: Mr.P.Muthukumar State Government Pleader, Mr.R.Shunmugasundaram Advocate-General assisted by Mr.Alagu Goutham Ms.A.G.Shakeenaa Mr.B.Thiyagarajan Government Advocates and Mr.V.Govardhanan Standing Counsel for TNPSC, Mr.N.Umapathi for respondent No.4