100% Reservation For Women Unconstitutional: Chhattisgarh High Court Quashes Advertisement For Nursery Demonstrator, Asst Prof Recruitment

While declaring the above scheme as unconstitutional, a Division Bench of Chief Justice Arup Kumar Goswami and Justice Narendra Kumar Vyas observed,

“…the Rules are not saved by Article 15(3) of the Constitution of India which suffers from arbitrariness and are violative of Articles 14, 15 and 16 of the Constitution of India, and therefore, on the touchstone of equality before law, equality of opportunity in matters of public employment, the same can very well be quashed.”

Factual Background

An advertisement was published by the Chhattisgarh Public Service Commission on 08.12.2021 for filling up various posts of Assistant Professor (Nursing) and Demonstrator for different subjects. As per Clause-5 of the advertisement, only female candidates were eligible for recruitment and appointment to the post of Assistant Professor (Nursing) and Demonstrator.

The petitioners who were having the requisite educational qualifications prescribed for the post of Demonstrator, were not allowed to submit their applications in view of Note-2, mentioned in the Rules as well as Clause-5 of the advertisement. As such, they filed the present writ petitions challenging the same.

Contentions of Petitioners

The petitioners contended that as per the Rules, 50% posts of Demonstrator and 75% posts of Assistant Professor for Nursing colleges were to be filled up by direct recruitment and the rest of vacancies were to be filled up by promotion. Thus, it was argued that the reservation for female candidates has been granted to the extent of 100% for direct recruitment which is derogatory to constitutional provisions.

It was further submitted that the posts of Demonstrator and Assistant Professors for Nursing Colleges which have to be filled up by promotion, in which also as per Chhattisgarh Civil Services (Special Provision for Appointment of Women) Rule, 1997 (for short the Rules of 1997"), 30% seats on the basis of horizontal reservation have to be filled up and as such, the reservation for women will be more than 100%.

They also submitted that the restriction imposed by the respondents against male candidates suffers from arbitrariness and without any foundation as teaching in nursing course can be imparted by male and female, as such, there is no justification for keeping all the posts for teaching reserved for women.

It was also argued that by virtue of above stated Rules and advertisement, the right of the petitioners to get employment was violated and thus, Note-2 of the Rules and advertisement are violative of Articles 14,15 and 16 of the Constitution.

Contentions of the State

However, it was contended on behalf of the State that the services of the male nurses are utilized mainly in the Government Hospitals for Orthopaedics wards, Psychiatry wards and Medico Legal cases and except for those hard nature of cases, service of female nurses are utilized in the Government Hospitals.

Thus, majority of the nursing work in the hospital is carried out by female nurse only, which clearly reflects that in the hospitals, taking care of patients is a women dominated field. Therefore, keeping this in mind, the Chhattisgarh Nursing Entrance Rules, 2019 had also provided all the seats of Government Nursing Colleges to women candidates.

It was further underlined that the Constitution itself provides for special provisions in case of women and children as per Article 15(3) of the Constitution of India. Articles 15(1) and 16(1) also provide certain prohibition in respect of employment under the State.

Accordingly, it was argued that classification between male and female for certain posts are permissible and such classification cannot be said to be arbitrary or unjustified. Also, as it is a policy decision of the State and as the Rules have been framed for the said purpose, those cannot be said to be arbitrary or unjustified.

Court’s Observations

The Court noted that Article 16(2) of the Constitution provides for equality of opportunity in matters of public employment and governs the specialised subject of public employment. The provision also prohibits discrimination on the grounds of religion, race, caste, sex, descent, place of birth, etc.

“The word “sex” used in Article 16(2) of the Constitution is required to be noted because discrimination on the ground of sex cannot be made as per Article 16(2) of the Constitution. Article 16(4) of the Constitution provides for reservation to the backward class of citizens and it is to be read along with Article 16(2) of the Constitution of India and thereby no discrimination on the ground of “sex” can be made,” the Court opined.

The Court relied on Indra Sawhney v. Union of India & Ors. to hold that reservation for women in public employment cannot be facilitated under Article 15(3) of the Constitution and Article 16(2) of the Constitution bars reservation on the ground of sex.

“However, a finding was recorded that women are vulnerable section and, therefore, reservation can be provided in the quota of respective classes. The issue thus remains open for the Parliament to provide reservation for the vulnerable class of candidates, because it is not so provided under Article 16(4) of the Constitution of India. The reservation therein is only to backward class of citizens and the Apex Court, in the case of Indra Sawhney (supra), observed that women en bloc cannot be brought under the category of backward class of citizens and, therefore, they are separately categorized as vulnerable class for which there exists no provision in the Constitution to provide reservation,” the Court added.

The Court also said that Article 16(2) prohibits discrimination in public employment on the ground of ‘sex’ and in contrast, if it is held that Article 15(3) of the Constitution allows reservation for women and, accordingly, it can be provided in public employment, such an interpretation would nullify the main provision of public employment under Article 16(2).

It also rejected the argument made on behalf of the State that as the Rules have been framed by exercising power under Article 309(2) by the competent authority, it cannot be questioned. The Court was of the view that the Rules are not saved by Article 15(3) as those suffer from the vice of arbitrariness and are violative of Articles 14, 15 and 16.

Resultantly, the Court reached the conclusion that 100% reservation for female candidates for appointment to the posts of Demonstrator and Assistant Professor is unconstitutional and violative of Articles 14 and 16 of the Constitution. Therefore, Note-2 in the Schedule-III of the Rules as well as Clause-5 of the advertisement were quashed.

Case Title: Abhay Kumar Kispotta & Ors. v. State of Chhattisgarh & Ors.

Case No.: WPS No. 7183 of 2021

Citation: 2023 LiveLaw (Chh) 10

Judgment Dated: March 09, 2023

Counsel for the Petitioners: Mr. Ghanshyam Kashyap, Advocate

Counsel for the Respondents: Mr. Gagan Tiwari, Dy. Govt. Advocate, Mr. Anand Mohan Tiwari, Advocate