The Principal Bench of the Central Administrative Tribunal at Delhi has upheld 80% reservation for women in nursing officer posts.
A Bench of Pradeep Kumar, Member (A) and RN Singh, Member (J) on Thursday dismissed two pleas against 'gender-based reservation' and said,
"The reservation of 80% posts of Nursing Officer for female, as notified, is considered to be a special provision for women candidate under Article 15 (3) of the Constitution as a separate classification and is held to be valid."
The primary contention of the Applicants, aspirants for the post of Nursing Officer, was that the provision granting 80% reservation to females was against the mandate of Indra Sawhney vs. Union of India, 1992 Supp. 3 SCC 217, whereby 50% upper limit was set on reservations.
It was also argued that the Central Institute Body (CIB), which had prescribed such reservation, is not a competent body.
Addressing the first issue raised by the Applicants, the Tribunal said,
"This Tribunal is of the considered view that Article 15 (3) provides for special provision for women. The Hon'ble Apex Court have held in many judgments, including in P.B. Vijay Kumar that scope of Article 15 (3) is much wider as compared to that of Article 16 (4) under which 50% ceiling was fixed in Indra Sawhney."
"scope of Article 15 (3) is much wider, as compared to that of Article 16 (4), which is limited to only to community-based reservation in public employment for candidates belonging to SC/ST/OBC."
While ruling so, the Tribunal was in agreement with the decisions rendered by CAT, Patna and the Patna High Court whereby gender-based reservation in recruitment of Nursing Officers for AIIMS Patna was upheld.
"The CAT Patna while deciding OA No.54/2020 and Hon'ble Patna High Court while deciding Writ Petition No.7524/2020 have both relied upon P.B. Vijay Kumar, which in turn has also discussed Indra Sawhney. Many other judgments were also relied upon. It was thereafter that 80% reservation for female for the post of Nursing Officer was upheld in these judgments. There is no reason to believe that the entire judgment in P.B. Vijay Kumar was not taken into account by these two judicial forums. This Tribunal is in respectful agreement with the decision rendered by CAT Patna and Hon'ble High Court of Patna."
So far as the competency of the CIB to prescribe reservations to the posts in AIIMS is concerned, the Tribunal said,
"The CIB is functioning under the Chairmanship of Hon'ble Minister of Health and Family Welfare and is represented by other experts from diverse walks of life out of whom majority are from the medical field. The statutory power are drawn from the relevant Act (AIIMS Act, 1956) read with subsequent amendments and the OMs issued on 12.1.2018 and 28.06.2018. Paras-3 and 9 specify that Empowered Committee which was redesignated as CIB, can take a policy decision in respect of the issues pertaining to Human Resources (HR), establishment and personal matters, namely, recruitment issue etc. Therefore, the contention of the applicants that CIB was not empowered is not acceptable."
It further noted that CIB is a body set up in the Ministry of Health and Family Welfare to oversee the setting up of 21 new AIIMS by drawing upon the experience and expertise gained by the older AIIMS, New Delhi.
Other arguments raised during the hearing are summarized below:
- AIIMS Regulations 1999 do not contemplate gender-based reservation.
- The CIB decision to reserve 80% posts for female is in contradiction with the Central Government policy in respect of reservation which are for SC, ST and OBC communities only in a gender-neutral context.
- Article 15 (3) of the Constitution cannot be invoked to provide for 80% reservation for female in public employment. Articles 14, 15 & 16 are to be read harmoniously.
- No study has been done to arrive at the conclusion that female are better able to provide for patient care and comfort as compared to male and in absence of such a study it is not permissible to provide for 80% reservation in public employment.
- There is nothing unjust about 80% reservation being made for female for the post in question.
- Such reservation is not debarred by Indra Sawhney and caste based reservation as per Article 16 (4) shall apply within this quota of 80%.
- 50% limit applies to community-based reservation under Article 16 (4) only. 80% reservation for female under Artcile 15 (3) and shall act as a horizontal reservation and cuts across 50% reservation under Article 16 (4) of the Constitution which was for SC/ST and OBC.
Case Title: Ranveer Singh & Anr. v. Union of India & Ors.