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

The Chhattisgarh High Court on Thursday nullified Note-2 under Schedule-III of the Chhattisgarh Medical Education (Gazetted) Service Recruitment Rules, 2013 (‘the Rules’) and the consequent advertisement made for direct recruitment to the posts of Assistant Professor (Nursing) and Demonstrator, wherein 100% of the seats were reserved for women.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 BackgroundAn 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 PetitionersThe 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 StateHowever, 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 ObservationsThe 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...

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

Jyoti Prakash Dutta

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