Rajasthan High Court - Jaipur
Anupama Choudhary W/O Shri Rajendra ... vs The State Of Rajasthan on 19 September, 2018
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 19483/2018
Anupama Choudhary W/o Shri Rajendra Choudhary, Aged About
28 Years, R/o Village Nangal Siras, Post Nindar Benar, Tehsil
Amer, District Jaipur (Raj.)
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
Department Of Energy, Government Secretariat, Jaipur
(Raj.)
2. The Chief Personnel Officer, Jaipur Vidyut Vitran Nigam
Ltd., Department Of Personnel, Vidhyut Bhawan, Janpath,
Jaipur (Raj.)
----Respondents
For Petitioner(s) : Mr. Jai Singh Rathore on behalf of
Mr. Syed Saadat Ali
For Respondent(s) : Mr. Shailesh Prakash Sharma
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
19/09/2018
This writ petition has been filed by the petitioner with the
following prayer:-
" It is, therefore, most humbly prayed
that your Lordships may graciously be
pleased to accept and allow this writ
petition and further call for the entire
record of the case and examine the same
and;
I. By way of an appropriate writ, order or
direction in the nature thereof, thereby,
the respondents may kindly be directed
that at the time of final result of the
technical helper under above
Advertisement 2018-19, the benefit of
30% horizontal women reservation be
provided to the petitioner.
ii. Any other appropriate order or
direction which this Hon'ble Court deems
fit and proper in favour of the Petitioner
may kindly be passed."
(2 of 9) [CW-19483/2018]
Counsel for the petitioner submits that the advertisement
was issued by the respondents for filling up the post of Technical
Helpers but not provided benefit of 30% reservation to the women
candidates.
Counsel for the respondents submits that against the same
advertisement other candidate Gunesh Kumari filed S.B. Civil Writ
Petition No. 14344/2018 which was dismissed by the coordinate
bench of this court vide order dated 26.07.2018, which reads as
under:-
"30% horizontal reservation to women
candidates has been excluded in the
recruitment process involved herein, initiated
vide advertisement No.
JVVNL/Karmik/Rectt/01/2018-19; while
inviting on-line applications from the eligible
candidates; is the cause for institution of the
instant writ application.
Briefly, the essential skeletal material
facts are; that the candidature of the
petitioner has been declined by the
respondent-Jaipur Vidyut Vitran Nigam
Limited, Jaipur (for short, 'JVVNL'), in
response to advertisement No.
JVVNL/Karmik/Rectt/01/2018-19, wherein
on-line applications from eligible candidates
were invited for appointment to the post of
"Technical Helper" w.e.f. 2 nd July, 2018, to
23rd July, 2018. Last date was later on
extended 31st July, 2018. It is pleaded case
of the petitioner that the respondents have
committed gross-illegality and violated
fundamental rights of the petitioner
(woman), for not providing 30% horizontal
reservation in the respective vacancies
including the post of "Technical Helper".
Learned counsel for the petitioner
asserted that the action of the respondents, is in flagrant violation of notification dated 31st May, 1999, incorporating provision for 30% reservation for women candidates in Rajasthan Subordinate Offices Ministerial Service Rules, 1999. Moreover, the respondents have also made provision for 30% horizontal reservation under the Regulations of 2017, providing for reservation to women candidates.
(3 of 9) [CW-19483/2018]
The respondents have failed to
incorporate horizontal reservation for women candidates in the respective category in the advertisement involved herein; depriving the petitioner and other similarly situated women candidates; hence, the omission is ex facie illegal, arbitrary, and contrary to the Law and Policy of reservation of the State- respondents so also militates against constitutional mandate.
In response to the notice of writ application, respondent No.2, has filed its counter affidavit raising preliminary objections as to the very maintainability of the writ application. According to respondent No.2, the writ application suffers with the vice of non joinder of proper and necessary party i.e. JVVNL; therefore, merits rejection of that count alone.
Learned counsel for respondent No.2, while supporting the action of the respondents in not providing for horizontal reservation to the extent 30% for women category candidates relied, upon opinion of a Division Bench of this Court in the case of Deep Mala Gautam & Anr. Vs. The State of Rajasthan & Ors.: DBCWP No. 12949/2015, decided on 2nd May, 2018, relying upon law declared by the Apex Court of the land in the case of Indira Sawhney & Ors. Vs. Union of India: AIR 1993 SC
477. A reference has also been made to opinion of this Court in the case of Suresh Kumar Vs. State of Rajasthan & Ors.:
SBCWP No. 8084/2007, decided on 24th February, 2018, wherein such a claim staked by a candidate relying upon Section 32 of the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; for no reservation was provided to differently abled persons, while making recruitment to the posts of Subordinate Technical Cadre, was declined; keeping in view, the nature of work and duties attached to the post.
I have heard learned counsel for the petitioner and with his assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
Indisupteably, the petitioner a woman candidate, is agrieved of denial of horizontal reservation to the extent of 30%. It is also not disputed that while such reservation has been provided by the respondents in other (4 of 9) [CW-19483/2018] cadres; but for Subordinate Technical Cadre, which includeds the post of "Technical Helper".
The claim staked by the petitioner for 30% horizontal reservation to women candidates, in the recruitment process involved herein, for the post of "Technical Helper"; may not detain, this Court for long, in view of law declared by the Apex Court of the land in the case of Indira Sawhney (supra), wherein the Apex Court of the land declined such a claim observing that, if reservations are kept for women as a class under Article 16(1), an inequitous phenomenon will emerge for women category would include from both backward and forward calss.
It is further clarified that clause (2) of Article 16, bars reservation in services on the ground of Sex. Moreover, Article 15(3) would not save the situation since of reservations in the services under the State can only be made under Article 16. At this juncture, it will be profitable to take note of the text of para 514 in the case of Indira Sawhney (supra), which reads thus:
"445....... 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 (5 of 9) [CW-19483/2018] reservations under Article 16, need not be exceeded."
In the case of Deepmala Gautam & Anr. Vs. State of Rajashtna & Ors.:
DBCWP No. 12949/2015, a division bench of this Court while dealing with somewhat indentical controversy, wherein such a claim was made, with reference to advertisement dated 28th April, 2015, for the post of "Technical Helper"; the Division Bench having considered the claim of the petitioners therein (Deepmala & Anr.), in the backdrop of mandate of Article 15 and 16 of the Constitution of India and its interpretation by the Apex Court of the land in the case of Indira Sawhney (supra), dismissed the writ application observing thus:
"In view of the above, claim of reservation in favour of women is even hit by Article 16(2) and (4) of the Constitution of India. The reservation to women would cause discrimination in the public employment on the ground of sex. It is not permissible. At this stage, reference of Article 15 of the Constitution of India would be relevant which provides prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. Article 15(3) of the Constitution of India provides that the State Government would not be prevented to make any special provision for women and children. The argument can be raised that pursuant to Article 15(3) of the Constitution of India, the State can come out with the Policy to provide reservation in favour of women. The argument aforesaid would be in ignorance of Article 16 of the Constitution of India governing public employment thus cannot be governed by any other Article in conflict to it. Article 16(2) of the Constitution of India bars discrimination on the ground of sex thus Article 15(3) of the Constitution of India cannot be read in conflict to it. In the light of the aforesaid, we cannot give direction to provide reservation in favour of woman candidates and, for that, to set aside the order dated 29th March, 2012. Learned counsel for petitioners has made reference of the judgment of the Constitution Bench of Apex Court in the case of Indira Sawhney & Ors. (supra) to support his argument. Relevant Para 118 of the said judgment has been referred and is quoted hereunder for ready reference:
(6 of 9) [CW-19483/2018] "118. 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 finding of the Apex Court in the para quoted above shows that Article 16(2) of the Constitution of India bars reservation in service on the ground of sex. The finding has further been recorded that Article 15(3) of the Constitution of India cannot save the situation since all the reservations in service under the State can be made only under Article 16, thereby, application of Article 15 of the Constitution of India in public employment has not been accepted. Further observation in reference to Article 16(1) of the Constitution of India has also been made. If the finding therein is taken in consonance to the Constitution of India, reservation for women would infringe Article 16(2). The Apex Court, however, made observation that women are vulnerable sections of the society. They are more disadvantaged than men in their own social class. The reservation on the aforesaid ground would be fully justified.
The question for our consideration is as to whether reservation can be provided (7 of 9) [CW-19483/2018] based on observation aforesaid. In our opinion, it can be by amending the Constitution to carve out a new category of vulnerable class for reservation and, for that, to even amend Article 16(2) of the Constitution of India. In absence of it, reservation to women would be in violation of Article 16(2) of the Constitution of India and, for which, finding has been recorded by the Apex Court in specific terms thus cannot be ignored. In view of the above, unless Constitution of India is amended as per the observation of the Apex Court in the para quoted above, claim or even reservation in favour of women is hit by Article 16(2) of the Constitution of India. The Apex Court has not covered it by Article 16(4) of the Constitution of India as there exists advantageous and disadvantageous class of women thus it would be opposed to Article 16 of the Constitution of India. In view of the above, prayer made in the writ petition cannot be accepted.
We are, however, not in agreement to the respondents that women cannot work on the post in question thus reasoning aforesaid is not acceptable as women can also undertake technical work but in view of the discussion made above, we are unable to accept the prayer made by the petitioners.
Accordingly, writ petition is dismissed with no order as to costs."
In the face of the fact that the nature of work and duties to be discharged by the incumbent appointed on the post of "Technical Helper", are of the nature which require physical endurance and involves activity arduous and mulitfarious in nature including climbing on electric polls, digging of earth/pitfalls, working with electric wires including work with different types equipments involving high voltage power supply etc.; the respondents have omitted even to increase the age of the candidates from "35 years" or "37 years", "40 years", while such a provision has been included by amending Various Serive Rules, vide notification dated 6th March, 2018. This Court while dealing with the issue of relaxatoin in maximum age limit for direct recruitment to the post of "Technical Helper" for direct recruitment in Suordinate Technical Cadre in the case of Kumud Gauttam Vs. Jaipur Vidyut Vitran Nigam Limited: SBCWP No. (8 of 9) [CW-19483/2018] 14563/2018, decided along with analogous matters on even date held thus:
"22. The amendment vide Notification dated 6th March, 2018, made in various Service Rules, substituting the existing expression "35 years" or "37 years" by expression "40 years", has been incorporated in Engineers Service Regulations, 2016, Officers Service Regulations, 2017, Ministerial Staff Service Regulations, 2017 and Scheduled Areas, Ministerial and Class IV Service (Recruitment and other Service Conditions) Regulations, 2017. However, the respondents have consciously omitted such an amendment in the Regulations of 1975, with reference to the eligibility age criteria for direct recruitment of Technical Subordinate Cadre i.e. 'Technical Helper'. The reasons for not incorporating the amendment by substitution of expression of age "40 years", are not far to seek in view of the physical work, the incumbent holding the post of 'Technical Helper' has to undertake in the course of discharge of his duties i.e. installation of Electric Poles, digging of sand/pit falls and working on Electric Wires along with different types of equipments pertaining to power supply, climbing the electric poles etc. Hence, conscious omission not to include the amendment while substituting the expression "35 years" or "37 years" by expression "40 years" as the case may be; has nexus with the object sought to be achieved."
Thus, the Competent Authority having regard to the nature of duties involving physical arduous endurance has decided even not to incorporate the age relaxation clause; hence, the claim of the petitioner for 30% horizontal reservation for women candidates is absolutely devoid of any substance.
For the reasons and discussions aforesaid so also in view of the sattled legal position declared by the Apex Court of the land; claim of the petitioner cannot be sustained.
In the result, the writ application fails and is hereby dismissed.
No costs."
In view of the judgment passed by the coordinate bench of this court in the matter of Gunesh Kumari (supra), the present (9 of 9) [CW-19483/2018] writ petition stands dismissed. The stay application also stands dismissed.
(INDERJEET SINGH),J Jatin/41 Powered by TCPDF (www.tcpdf.org)