Rajasthan High Court - Jaipur
Anita Sharma D/O Shri Dhan Raj Sharma vs State Of Rajasthan on 4 August, 2020
Bench: Sangeet Lodha, Goverdhan Bardhar, Mahendar Kumar Goyal
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Reference No. 6/2020
In
D.B. Civil Writ Petition No.16344/2018
1. Anita Sharma D/o Shri Dhan Raj Sharma, Aged About 26
Years, R/o Ward No. 10, Sujatnagar, Jaipur 303107
2. Aman Lamba D/o Shri Sumender Singh Lamba, Aged
About 27 Years, R/o House No. 152, Sec-9, Bhadurgarh
(Haryana) 124507
3. Mamta Yadav D/o Shri Ganesh Narayan Yadav, Aged
About 26 Years, R/o Jaipuriyon Ka Bad, Ward No.12, Sirsi,
Jaipur (Raj)
4. Manju Devi D/o Shri Rameshwar Lal W/o Sanjeet
Mehariya, Aged About 28 Years, R/o 15, Dhani Mehraiyon
Ki, Neemkathan, Nursingh Puri, Sikar (Raj) 332706
5. Ritu Khichar D/o Shri Mohar Singh Khichar, Aged About
31 Years, R/o 4C-345, Jamunapuri, Murlipura Scheme,
Jaipur (Raj) 302039
6. Mahendra Pal Sain S/o Shri Manohar Lal Sain, Aged About
34 Years, R/o Naiyon Ka Mohalla, Near Ganesh Mandir
Jasol, Distt. Barmer (Raj) 344024
7. Pravindra Kumar S/o Shri Nathu Mal, Aged About 36
Years, R/o 7/B/3A, Shiv Shakti Nagar, Inside Third Pole
Mahamandir, Jodhpur (Raj).
----Petitioners
Versus
1. State of Rajasthan, through Principal Secretary, Medical &
Health Services, Govt. Secretariat, Jaipur
2. The Director, Medical & Health Services, Swasthya
Bhawan, Tilak Marg, C-Scheme, Jaipur
3. Neeti Sharma D/o Shri Ramavatar Sharma, Aged About
34 Years, Resident of F-1/281, Chitrakoot, Vaishali Nagar,
Jaipur
----Respondents
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For Petitioner(s) : Shri Tanveer Ahmed
For Respondent(s) : Dr. Vibhuti Bhushan Sharma, AAG
with Shri Prakhar Gupta; Shri Rakesh
Kumar with Ms. Priyanka Chauhan
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
JUDGEMENT
Judgement Reserved on :: 11/02/2020
Judgement Pronounced on :: 04/08/2020
(PER HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL),J.
1. This Larger Bench has been constituted on a reference made
in pursuance of the order dated 09.01.2020 passed by a Division
Bench of this Court in D.B. Civil Writ Petition No.16344/2018,
Anita Sharma & Ors. vs. State & Ors. and two connected matters
viz. D.B. Civil Writ Petition No.18286/2018, Yogendra Malviya vs.
State & Anr. and D.B. Civil Writ Petition No.27508/2018, Seema
Gupta vs. State & Anr.
2. The aforesaid Writ Petitions came to be filed challenging inter
alia, the validity of the Notification dated 22.12.2015 issued by
the Government of Rajasthan in Department of Personnel
whereby, the existing Rule as mentioned in column no.3 against
each of the Service Rules as mentioned in column no.2 of the
schedule appended thereto, has been substituted by the
Rajasthan Various Service (II Amendment) Rules, 2015 in exercise
of the powers conferred by the proviso to Article 309 of the
Constitution of India. The Notification reads as under:
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"2. Substitution of Rule - The existing Rule as
mentioned in column number 3 against each of the Service
Rules as mentioned in column number 2 of the schedule
appended hereto, shall be substituted by the following,
namely:-
"Reservation of vacancies for women.-
Reservation of vacancies for women candidates shall be
30% category wise in the direct recruitment, out of
which one third shall be for widows and divorced
women candidates in the ratio of 80:20. In the event of
non availability of eligible and suitable candidates,
either in widow or in divorcee, in a particular year, the
vacancies may first be filled by interchange, i.e.
vacancies reserved for widows to the divorcees or vice
versa. In the event of non availability of sufficient
widow and divorcee candidates, the unfilled vacancies,
shall be filled by other women of the same category
and in the event of non availability of eligible and
suitable women candidates, the vacancies so reserved
for them shall be filled up by male candidates of the
category for which vacancy is reserved. The vacancy so
reserved for women candidates shall not be carried
forward to the subsequent year. The reservation for
women including widows and divorcee women shall be
treated as horizontal reservation, within the category,
i.e. even the women selected in general merit of the
category shall first be adjusted against the women
quota.
Explanation: In the case of widow, she will have to
furnish a certificate of death of her husband from the
Competent Authority and in case of divorcee she will
have to furnish the proof of divorce."
3. The Division Bench of this Court has, vide its order dated
09.01.2020, observed as under:
"In the earlier case decided by Division Bench of this
Court vide order dated 2.11.2015, the inter-changeability of
reservation of the widow and divorcee category candidates
was held to be justified and thereafter, the Notification-in-
question was issued by the State. We are of the opinion that
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question involved in the present case requires to be dealt by
a Larger Bench."
4. As a matter of fact, we find that the validity of the
Notification dated 22.12.2015 was not under challenge before the
earlier Division Bench in D.B. Special Appeal No.1498/2012; which
has, vide its order dated 02.11.2015, held as under:
"During pendency of the special appeal, this Court passed a
detailed order dt.13.2.2015 holding that the State
Government in exercise of powers conferred by proviso to
Art.309 of the Constitution of India, made an omnibus
amendment vide its Notification dt.24.01.2011 introducing
reservation of vacancies for Women candidates in direct
recruitment of 30% category-wise out of which further
reservation is provided of 8% for widows and 2% for
divorced women candidates with further stipulation that in
the event of non-availability of eligible and suitable widows
and divorced women candidates may be filled in a particular
year, the vacancies so reserved for widows and divorced
women candidates may be filled by other women candidates.
The amendment introduced by the State Government vide
Notification dt.24.01.2011 relevant for the present purpose
reads ad infra-
"Reservation of vacancies for women- Reservation of
vacancies for women candidates shall be 30% category
wise in direct recruitment out of which 8% shall be for
widows and 2% for divorced women candidates. In the
event of non-availability of eligible and suitable widows
and divorced women candidates in a particular year,
the vacancies so reserved for widow and divorced
women candidates shall be filled by other women
candidates and in the event of non availability of
eligible and suitable women candidates, the vacancies
so reserved for them shall be filled up by male
candidates and such vacancies shall not be carried
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forward to the subsequent year and the reservation
shall be treated as horizontal reservation i.e. the
reservation of women candidates shall be adjusted
proportionately in the respective category to which the
women candidates belong".
In compliance of order of this Court dt.13.2.2015, the
State Government also examined the case and proposed that
reservation of 8% in widow category and 2% in divorcee
category out of 30% reservation meant for women category
if remain unfilled in the event of non-availability of eligible or
suitable widows or divorced women candidates in a particular
year, the same be filled vice versa within two categories and
if no suitable candidate is available in both these categories,
such vacancy shall be transferred & be filled by open women
candidates. The proposal of the State Government reads ad
infra-
^^eku- U;k;ky; }kjk Mh-ch- flfoy fjV ;kfpdk la[;k
1498/2012 esa fn;s x;s fu.kZ; fnukad 13-02-15 ¼ifjf'k"V v½
dh ikyukFkZ] fu;eksa esa fofgr izko/kku ds LFkku ij efgykvksa ds
fy, 30 izfr'kr miyC/k vkj{k.k esa 8 izfr'kr fo/kok efgykvksa
ds 2 izfr'kr rFkk fookg fofPNé efgykvksa ds fy, miyC/k
vH;ka'k esa fjDr jgs inksa dks bUgha esa ls varjk ifjorZu
(interchange) }kjk foijhr Øe (vice versa) ls Hkjus ds
izLrko dks mfpr le>k x;k mDr gS fu.kZ;A vr dh ikyuk
gsrq fof/kd lsok fu;eksa esa ;g izko/kku djuk vko';d gks x;k
gS fd ;fn fdlh o"kZ fo'ks"k esa ik= rFkk mi;qDr fo/kok ,oa
fookg fofPNé efgykvksa ds miyC/k u gksus dh n'kk esa ,slh
vkjf{kr fjfDr;ka varjk izFker ifjorZu (interchange) }kjk
Hkjh tkosaxh vFkkZr fo/kok efgykvksa ds fy, vkjf{kr fjfDr;ksa
dks fookg fofPNé efgykvksa ls ;k blds foijhr (vice versa)
Øe ls Hkjh tkosaxh vkSj fdlh o"kZ fo'ks"k esa ik= rFkk mi;qDr
fo/kok ,oa fookg fofPNé efgykvksa ds miyC/k u gksus dh n'kk
esa ,slh vkjf{kr fjfDr;ka lacaf/kr oxZ dh vU; efgyk vH;fFkZ;ksa
ls Hkjh tkosaxh vkSj ik= rFkk mi;qDr efgyk vH;FkhZ miyC/k
u gksus dh n'kk esa muds fy, bl izdkj vkjf{kr fjfDr;ka mlh
oxZ ds iq:"k vH;fFkZ;ksa ls Hkjh tkossx
a hA blds lkFk gh fu;eksa esa
,d ijUrqd ds :i esa ;g izko/kku Hkh tksM+uk vko';d gks
x;k gS fd ftu lsok fu;eksa esa efgykvksa dk 30 izfr'kr
vkj{k.k ls Hkh vf/kd gS muesa Hkh fo/kok vkSj fookg fofPNé
efgyk vH;fFkZ;ksa gsrq izoxkZuqlkj vkj{k.k dqy fjfDr;ka% 8
izfr'kr Øe'k% vkSj 2 izfr'kr ls vf/kd ugha gksxkA ;g
vkj{k.k {kSfrt vkj{k.k gksxkA**
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We do find justification in the proposal of the State
Government that the Reservation of vacancies for women
candidates is 30% category wise in direct recruitment, 8% to
be filled by widows and 2% by divorced women candidates
and if it remain unfilled in the event of non-availability of
eligible or suitable widows and divorced women candidates
in a particular year, it has to be first offered inter-se to the
widow/divorcee women candidates and vice versa and if no
suitable candidate is available in both these categories, such
vacancy shall be filled by other women candidates."
Therefore, from the aforesaid, it is apparent that proposal
of the State Government was found to be justified by the Division
Bench and, as a matter of fact, the Notification which was yet to
be issued, was never the subject matter of challenge before it.
5. The Division Bench has, in its order dated 9.1.2020, also
taken note of dismissal of the review petition filed in the aforesaid
matter. In the review petition no.183/2018, the Division Bench,
vide its order dated 4.12.2018, held as under:
"This petition has been filed seeking review of order
dated 13.02.2015 and judgment dated 02.11.2015 passed
by Coordinate Division Bench in D.B. Special Appeal (Writ)
No.1498/2012 filed by one Ms. Mona Sharma, who claimed
that she was eligible for appointment on the post of Teacher
Grade-III, Level-II (Hindi Subject). She participated in the
process of selection pursuant to advertisement dated
25.02.2012. She was entitled to be considered against the
vacancies which were meant for divorced/widow women
category. According to the Notification dated 24.01.2011
issued by the respondents and the circular dated
05.06.2013, if member of either category was not available
against the total number of vacancies, the vacancy would
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revert to general category of women based on their vertical
reservation but there was no provision of inter changeability
of widow being 8% and divorced being 2%, which is why the
appellant Ms. Mona Sharma was not getting appointment in
the quota of divorced even though vacancies were available
in the widow quota.
A perusal of the judgment of this Court dated
02.11.2015 reveals that this Court did not pass any specific
orders but simply observe that since the amendment
Notification dated 24.01.2011 and circular dated 05.06.2013
need consideration at the end of the Government, therefore,
the Government should examine the issue and take
appropriate decision in this regard.
It is informed by Mr. S. K. Gupta, learned Additional
Advocate General that the Government has now amended
the Rules and provided for exchange of the vacancies
between divorced and the widow and that if the vacancies in
the quota of divorcees remain unfilled they can be offered to
widow and vice-versa and would not revert to the open
category.
Mr. Tanveer Ahmed, learned counsel for the review
petitioner submits that this Court in the judgment sought to
be reviewed failed to appreciate that reservation under
women category is horizontal reservation and therefore inter
changeability of reservation to widow and divorced category
under the reservation quota of woman category would
tantamount to reservation within the reservation, which is
not permissible in law. It is argued that new Notification
dated 22.12.2015 cannot be applied to the advertisement
issued prior thereto as there was no amendment in the
Rajasthan Panchayati Raj Rules, 1996.
Even if that be so, this cannot be considered as an
error apparent on the face of the record. All that this Court
has done in the judgment of which review is sought is that it
left the matter to the state authorities to consider the
question of inter changeability of vacancies between the
divorced and the widow category. This does not make out a
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case for review. This Court cannot in the scope of review
comment on the correctness of the Notification issued
subsequently."
Thus, we find that the validity of the Notification dated
22.12.2015 has never been subject matter of judicial scrutiny on
earlier occasion either in the D.B. Special Appeal (Writ)
No.1498/2012 or in the review petition. Moreover, the Division
Bench has not referred any specific question for consideration of
this Larger Bench; however, in larger public interest, we think it fit
to examine the constitutional validity of the Notification dated
22.12.2015.
6. The question which may be formulated for consideration by
this Larger Bench would be "whether the Notification dated
22.10.2015 providing for interchangeability of reservation
between widow and divorcee women categorywise in the event of
non-availability of eligible/suitable widow/divorcee women
candidate in a particular year is ultra vires of the provisions of the
Constitution of India?"
7. Assailing validity of the Notification dated 22.12.2015, the
learned counsel for the petitioners submitted that since the Rule
provides the reservation for women to be compartmentalized
horizontal, interchangeability or migration of divorcee candidate to
widow category or vice versa is impermissible and is against the
constitutional mandate of Articles 15 and 16. He further submitted
that if such interchangeability is permitted, the less meritorious
divorcee/widow category women would march over more
meritorious women candidates of their respective category.
8. Learned counsel for the petitioners further contended that
while widowhood is an unfortunate status conferred upon a
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woman without human intervention, there are instances where
only to get benefit of reservation, divorces are being contrived,
i.e., obtained artificially in a sham manner and if such
interchangeability is permitted, it would be an impetus to such
dishonest practice. He, therefore, prayed that the Rule inserted
vide Notification dated 22.12.2015 be declared ultra vires to the
Constitution of India.
9. Per contra, learned counsel appearing for the respondent-
State supporting the validity of the Notification dated 22.12.2015
submitted that the petitioners have failed to point out violation of
any constitutional provision. He submitted that although `women'
as a whole constitute an under-privileged class, the divorcee and
widow category women constitute a more deprived class in
themselves and the State Government has, in its legislative
competence, enacted the Rule beneficial to such less
advantageous group of women as a policy decision to ameliorate
them from their vulnerable situation in which no fault can be
found with.
10. Heard the learned counsels for the parties.
11. Articles 15 (3) of the Constitution of India is the enabling
provision providing for special measures for women which may be
in the shape of reservation too. The Constitution Bench of Hon'ble
Apex Court has, in the case of Indra Sawhney etc. vs. Union of
India & Ors.-(1992) Suppl. (3) SCC 217, held as under:
"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
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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."
12. It was further held in para 812 as under:
"812. We are also of the opinion that this Rule of 50%
applied only to reservations in favour of backward classes
made under Article 16(4). A little clarification is in order at
this juncture; all reservations are not of the same nature.
There are two types of reservations, which may, for the sake
of convenience, be referred to as 'vertical reservations' and
'horizontal reservations'. The reservations in favour of
Scheduled Casts, Scheduled Tribes and other backward
classes (under Articles 16(4) may be called vertical
reservations whereas reservations in favour of physically
handicapped (under clause (1) of Article 16) can be referred
to as horizontal reservations. Horizontal reservations cut
across the vertical reservations-what is called interlocking
reservations. To be more precise, suppose 3% of the
vacancies are reserved in favour of physically handicapped
persons; this would be a reservation relatable to clause (1)
of Article 16. The persons selected against this quota will be
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placed in the appropriate category; if he belongs to SC
category he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition
(OC) category, he will be placed in that providing for these
horizontal reservations, the percentage of reservations in
favour of backward class of citizens remains -and should
remain - the same. This is how these reservations are
worked out in several States and there is no reason not to
continue that procedure."
13. The Hon'ble Apex Court in the case of Anil Kumar Gupta &
Ors. vs. State of U.P. & Ors.-(1995) 5 SCC 173 held as under:
"17. Against every vertical reservation, a similar provision
was made, which meant that the said horizontal reservation
in favour of ladies was to be a "compartmentalised horizontal
reservation". we are of the opinion that in the interest of
avoiding any complications and intractable problems, it
would be better that in future the horizontal reservations are
compartmentalised in the sense explained above. In other
words, the Notification inviting applications should itself state
not only the percentage of horizontal reservation(s) but
should also specify the number of seats reserved for them in
each of the social reservation categories, viz., S.T., S.C.,
O.B.C. and O.C. If this is not done there is always a
possibility of one or the other vertical reservation category
suffering prejudice as has happened in this case. As pointed
out herein-above, 110 seats out of 112 seats meant for
special reservations have been taken away from the O.C.
category alone and none from the O.B.C. or for that matter,
from S.C. or S.T. It can well happen the other way also in a
given year.
18. Now, coming to the correctness of the procedure
prescribed by the revised Notification for filling up the seats,
it was wrong to direct the fifteen percent special reservation
seats to be filled up first and then take up the O.C.(merit)
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quota (followed by filling of O.B.C., S.C. and S.T. Quotas).
The proper and correct course is to first fill up the O.C. quota
(50%) on the basis of merit; then fill up each of the social
reservation quotas, i.e., S.C., S.T. and B.C; 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, (If, however,
it is a case of compartmentalised horizontal reservation, then
the process of verification and adjustment/accommodation
as stated above should be applied separately to each of the
vertical reservations. In such a case, the reservation of
fifteen percent in favour of special categories, overall, may
be satisfied or may not be satisfied.)
Because the revised Notification provided for a different
method of filling the seats, it has contributed partly to the
unfortunate situation where the entire special reservation
quota has been allocated and adjusted almost exclusively
against the O.C. quota.
19. In this connection, we must reiterate what this Court has
said in Indra Sawhney-1992 Supp (3) SCC 217. While
holding that what may be called "horizontal reservation" can
be provided under Clause (1) of Article 16, the majority
judgment administered the following caution in para 744;
"(B)ut at the same time, one thing is clear. It is in very
exceptional situation and not for all and sundry reasons
that any further reservations of whatever kind, should
be provided under Clause (1). In such cases, the State
has to satisfy, if called upon, that making such a
provision was necessary (in public interest) to redress
the specific situation. The very presence of Clause (4)
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should act as a damper upon the propensity to create
further classes deserving special treatment. The reason
for saying so is very simple. If reservations are made
both under Clause (4) as well as under (1), the
vacancies available for free competition as well as
reserved categories would be correspondingly whittled
down and that is not a reasonable thing to do".
Though the said observations were made with reference to
Clauses (1) and (4) of Article 16, the same apply with equal
force to Clauses (1) and (4) of Article 15 as well. In this
case, the reservation of fifteen percent of seats for special
categories was on very high side. As pointed out above, two
categories out of them representing six percent out of fifteen
percent are really reservations under Article 15(4), wrongly
treated as reservations under Article 15(1). Even otherwise,
the special reservation would be nine percent. The
respondents would be well advised to keep in mind the
admonition administered by this Court and ensure that the
special reservations (horizontal reservations) are kept at the
minimum."
14. A perusal of the Notification dated 22.12.2015 reveals that
it, in no uncertain terms, provides for reservation in favour of
women categorywise, i.e., compartmentalized horizontal
reservation. Thus, it is watertight reservation in each vertical
reservation class. The question for our consideration is whether
interchangeability of reservation for widow/divorcee within their
respective women category is violative of the constitutional
scheme of reservation for women?
15. In Indra Sawhney (supra), the Hon'ble Apex Court has held
as under:
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"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..."
16. In Anil Kumar Gupta's case (supra), the distinction
between overall horizontal reservation and compartmentalised
horizontal reservation has been explained by way of following
illustration:
"Where the seats reserved for horizontal reservations are
proportionately divided among the vertical (social)
reservations and are not inter-transferable, it would be a
case of compartmentalised reservations. We may illustrate
what we say: Take this very case; out of the total 746 seats,
112 seats (representing fifteen percent) should be filled by
special reservation candidates; at the same time, the social
reservation in favour of Other Backward Classes is 27%
which means 201 seats for O.B.Cs.; if the 112 special
reservation seats are also divided proportionately as
between O.C., O.B.C., S.C. and S.T., 30 seats would be
allocated to the O.B.C. category; in other words, thirty
special category students can be accommodated in the
O.B.C. category; but say only ten special reservation
candidates belonging to O.B.C. are available, then these ten
candidates will, of course, be allocated among O.B.C. quota
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but the remaining twenty seats cannot be transferred to O.C.
category (they will be available for O.B.C. candidates only)
or for that matter, to any other category; this would be so
whether requisite number of special reservation candidates
(56 out of 373) are available in O.C. category or not; the
special reservation would be a watertight compartment in
each of the vertical reservation classes (O.C.,O.B.C.,S.C. and
S.T.). As against this, what happens in the over-all
reservation is that while allocating the special reservation
students to their respective social reservation category, the
over-all reservation in favour of special reservation
categories has yet to be honoured. This means that in the
above illustration, the twenty remaining seats would be
transferred to O.C. category which means that the number
of special reservation candidates in O.C. category would be
56+20=76. Further, if no special reservation candidate
belonging to S.C. and S.T. is available then the proportionate
number of seats meant for special reservation candidates in
S.C. and S.T. also get transferred to O.C. category. The
result would be that 102 special reservation candidates have
to be accommodated in the O.C. category to complete their
quota of 112. The converse may also happen, which will
prejudice the candidates in the reserved categories. It is, of
course, obvious that the inter se quota between O.C., O.B.C.,
S.C. and S.T. will not be altered.".
17. Taking cognizance of the repercussion of the overall
horizontal reservation, the Hon'ble Apex Court has held as under:
"We are of the opinion that in the interest of avoiding any
complications and intractable problems, it would be better
that in future the horizontal reservations are
compartmentalised in the sense explained above. In other
words, the Notification inviting applications should itself state
not only the percentage of horizontal reservation(s) but
should also specify the number of seats reserved for them in
each of the social reservation categories, viz., ST., S.C.,
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O.B.C. and O.C. If this is not done there is always a
possibility of one or the other vertical reservation category
suffering prejudice as has happened in this case. As pointed
out hereinabove, 110 seats out of 112 seats meant for
special reservations have been taken away from the O.C.
category alone - and none from the O.B.C. or for that matter,
from S.C. or S.T. It can well happen the other way also in a
given year."
From the aforesaid, it is apparent that the interchangeability is
impermissible within compartmentalized horizontal reservation.
The impermissiblity of migration amongst horizontal reservation
has loud object as such migration inter-se may prejudice the
vertical reservation; but, no such mischief can be said to be
obtaining if interchangeability in between widow and divorcee i.e.
two sub classes under the women reservation as a class is
permitted categorywise. If such interchangeability between the
widow and divorcee is permitted, it will adversely affect neither
the vertical reservation nor the horizontal reservation for the
women of the category other than the category to which the
widow/divorcee belongs.
18. So far as the aforesaid aspect as well as contention of the
learned counsel for the petitioners that such migration may result
in marching over of some less meritorious widow/divorcee women
candidates over more meritorious women candidate in their
respective category, suffice is to say that the whole object behind
the reservation is to protect the weaker/vulnerable section of the
society against competition from open category candidates. The
Hon'ble Apex Court has, in the case of Indra Sawhney (supra)
has observed as under:
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"836.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
It cannot also be ignored that the very idea of reservation
implies selection of a less meritorious person. At the same
time, we recognize that this much cost has to be paid, if the
constitutional promise of social justice is to be redeemed...."
There is another angle of the Rule in question which provides
for 1/3rd reservation in favour of widows and divorced women in
the ratio of 80:20 categorywise out of 30% reservation for women
candidates. We find that while the State Government has earlier,
vide notification dated 24.1.2011, provided for 8% reservation for
widows and 2% reservation for divorced women candidates out of
30% reservation for women candidates, vide the Notification
impugned herein, the reservation for the widow and divorced
category candidates has been provided as 1/3rd out of total 30%
reservation for women candidates, i.e., as a homogeneous sub-
class in the ratio as stated herein-above. The extent of reservation
for widow and divorced candidates is not the subject matter of
challenge. It is undeniable that the women category as a whole
constitutes an underprivileged class; but, it is also true that the
widow and divorced women constitute even more vulnerable and
deprived sub-class amongst women as a whole and the
respondents were well within their competence to devise a
mechanism for the upliftment and betterment of these more
deprived and weaker sub classes.
We may, here, gainfully refer Section 36 of the Persons with
Disability (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 which provides as under:
"36. Vacancies not filled up to be carried
forward:-Where in any recruitment year any vacancy under
section 33 cannot be filled up due to non-availability of a
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suitable person with disability or, for any other sufficient
reason, such vacancy shall be carried forward in the
succeeding recruitment year and if in the succeeding
recruitment year also suitable person with disability is
not available, it may first be filled by interchange
among the three categories and only when there is no
person with disability available for the post in that year, the
employer shall fill up the vacancy by appointment of a
person, other than a person with disability.
Provided that if the nature of vacancies in an establishment
is such that a given category of person cannot be employed,
the vacancies may be interchanged among the three
categories with the prior approval of the appropriate
Government."
Thus, interchangeability amongst horizontal reservations which
does not adversely affect vertical reservation, already exists under
the scheme of the Rules providing for horizontal reservation. The
petitioners have not disputed the legislative competence of the
respondents in enacting the Rule in question issued vide
Notification dated 22.12.2015. We find no constitutional
impediment in making the reservation for widow and divorced
women interchangeable i.e. filling up of unfilled vacancies of one
sub-class from another sub-class; categorywise.
19. Although, contention of the learned counsel for the petitioner
that the course of divorce can be resorted to obtain it contrively in order to have benefit of reservation, at first blush appears lucrative; but, in absence of any material/data on record to substantiate the contention, it has no legs to stand on and deserves to be rejected.
20. It is trite law that there is always a presumption in favour of the constitutionality of an enactment. The Hon'ble Apex Court has, (Downloaded on 04/08/2020 at 09:21:30 PM) (19 of 19) [CREF-6/2020] in case of State of Bombay vs. F.N. Balsara-AIR 1951 SC 318 held as under:
"(1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds.
(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class."
The petitioners have miserably failed to rebut the aforesaid presumption.
21. The upshot of the aforesaid analysis is that the Rule permitting interchangeability of reservation between widow and divorcee women is held to be constitutionally valid and we find no merit in the challenge to the Notification dated 22.12.2015 permitting inter-se transfer of unfilled vacancies between widow and divorcee women categorywise.
22. The reference is answered accordingly and registry is directed to list the writ petitions before the appropriate Bench having roster for decision on merit.
(MAHENDAR KUMAR GOYAL),J. (GOVERDHAN BARDHAR),J. (SANGEET LODHA),J. RAVI SHARMA /1 (Downloaded on 04/08/2020 at 09:21:30 PM) Powered by TCPDF (www.tcpdf.org)