2 Sep 2020 2:03 PM GMT
"All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category", the Gujarat High Court has ruled. Chief Justice Vikram Nath and Justice J. B. Pardiwala observed that there is no reservation for posts in the General Category, and horizontal reservation in favour of women...
"All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category", the Gujarat High Court has ruled.
Chief Justice Vikram Nath and Justice J. B. Pardiwala observed that there is no reservation for posts in the General Category, and horizontal reservation in favour of women in the General Category is available to be filled up from amongst all women irrespective of their caste status.
"The posts, reserved in favour of General Category (Women), are available for all women from the State of Gujarat, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not", held the division bench. The bench further reflected that holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation has been frowned upon by the Supreme Court in Dorairajan's case.
The Court required that the State as well as the Public Service Commission, for all times to come, bear in mind that the effect of horizontal reservation, being provided under each category, is that it is only women, who belong to the Other Backward Classes, who can compete for the posts reserved for Other Backward Classes (Women) and not women who belong to the Scheduled Castes, the Scheduled Tribes and the unreserved category. Likewise, it is only women belonging to the Scheduled Castes and the Scheduled Tribes who can compete for the posts horizontally reserved in favour of Scheduled Castes (Women) and Scheduled Tribes (Women). A woman, not belonging to the reserved category (OBC, SC and ST), is not entitled to compete for posts reserved in favour of Other Backward Classes (Women), Scheduled Castes (Women) and Scheduled Tribes (Women). "The converse, however, is not true", said the bench
The Gujarat Public Service Commission came up with a public advertisement dated 15th July, 2017 for the recruitment to the 115 posts of the Police Inspector (Unarmed). The bench noted that the State Government has framed rules called the Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997 providing for reservation for women in the public services and posts in connection with the affairs of the State. Further, the State Government, by the Gujarat Civil Services (Reservation of Posts for Women) (Amendment) Rules, 2012, amended the Rules, 1997 by inserting Rule 3 therein. The newly added Rule 3 provides for the method of the application of the reservation for women- that if women belonging to any of the reserved categories, on their own merit, get selected to the open competition vacancies, they would be counted or considered as the open competition candidates (General Candidates) even for the purpose of Horizontal (Special Reservation).
The bench also noted that the General Administration Department (GAD) of the Government of Gujarat issued the Government Resolution dated 01.08.2018, clarifying certain issues/doubts that arose in the matter of application of Special (Horizontal) Reservation for women in public service and posts in connection with the affairs of the State. Clause 12 of the GR provides that if a woman candidate belonging to SC/ST/SEBC gets selected in general quota, in roster numbers, she shall be considered as a General candidate, and in the register for women's reservation, she should be considered as a woman candidate of the relevant category. Clause 13 stipulated that the woman selected on merit shall be treated as a woman of the relevant category (SC/ST/SEBC) but the post of the relevant category (SC/ST/SEBC) shall be treated as vacant.
The above referred two clauses Nos.12 and 13 were the root cause for this litigation, in connection with the GPSC publishing its final result of the competitive examination for the posts of Police Inspector (Unarmed), Class-II on 18.09.2018. The dispute arose during the recruitment for the post of police inspector, where the inclusion of 6 Socially and Economically Backward Class female candidates and 1 SC category female candidate was made in the general category. This was challenged and a single-judge bench, substantially relying on Clauses 12 and 13 quashed and set aside the select list dated 18.09.2018 with a further direction to the Commission to prepare the select list in consonance with the Rules, 2012 and the Government Resolution dated 01.08.2018. The division bench was hearing the appeal against this 29.11.2019 judgment.
OBSERVATIONS OF THE BENCH
The bench reiterated that Social reservations in favour of SC, ST and OBC under Art. 16(4) are 'vertical reservations.' Special reservations in favour of physically handicapped, women etc., under Art. 16(1) or 15(3) are 'horizontal reservations.' Where a vertical reservation is made in favour of a backward class under Art.16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category.
The bench further explained that, however, the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women.' If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation.
The bench further expounded this in context of the facts of the instant case- there are 115 posts of Police Inspector (unarmed), out of which 55 posts are reserved for the SC, ST and SEBC and remaining 60 posts for open/general category. Out of the said posts, 33% are reserved for women under each category, meaning thereby, out of 60 posts in the open category, 20 posts are reserved for women. Thus, the first step would be that of preparing the entire list on the basis of merit and out of the same, selecting first 60 candidates, irrespective of their caste and sex, in open category. The second step would be then of evaluating as to whether 20 women, irrespective of their caste, are there within those 60 candidates, so as to meet with the requirement of horizontal reservation. If 20 women are already there, then there is no need to select any more woman in that category, but if not, then in the third step, the remaining number of women have to be included on the basis of the merit from the aforesaid list, irrespective of their caste, while deleting the corresponding number of male candidates from the bottom of the list of first 60 candidates. Thereafter, identical exercise is required to be undertaken for implementing vertical reservation, followed by horizontal reservation, with respect to the posts belonging to the SEBC, SC and ST categories.
The bench explained that the posts reserved for women in the open category would be over and above the posts reserved for women in SC, ST and SEBC quota. Thus, all the meritorious candidates, whether belonging to the reserved category or unreserved category, will be covered by the Open category, irrespective of their caste, community or tribe where merit alone will be taken into account, while implementing vertical reservation as well as horizontal reservation within the same.
Accordingly, the bench arrived at the conclusion that the said GR of the GAD deserves to be quashed and set aside.
"PROPER AND CORRECT METHOD OF IMPLEMENTING HORIZONTAL RESERVATION FOR WOMEN"
For the future guidance of the State Government, the bench proceeded to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner:
Step 1: Draw up a list of at least 100 candidates (usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates don't join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories.
Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.
Step 3: Do a check for horizontal reservation in OC quota. In the Step 2 List of OC category, if there are 17 women (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go down the Step 1 List after item no. 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC category is to be locked. Step 2 List list becomes final.
Step 4: Move over to SCs. From the Step 1 List, after item no. 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women.
Step 5: Do a check for horizontal reservation in the Step 4 List of SCs. If there are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after item no. 51, and pick the first 2 SC women. As soon as 2 such SC women in Step 1 List are found, they are to be brought up and added to the Step 4 List of SCs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of SCs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC.
Step 6: Repeat steps 4 and 5 for preparing list of STs.
Step 7 Repeat steps 4 and 5 for preparing list of SEBCs.
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