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; category wise.
The Rajasthan High Court has upheld the constitutional validity of a Notification issued by the Government of Rajasthan substituting a rule pertaining to reservation of vacancies for women in its Service Rules to allow interchangeability between divorcee and widow candidates vacancies on the quota of seats reserved for these category in case of non-availability of sufficient candidates in either of the two categories.
The matter was referred to the larger bench of the Court on a reference made by the Division Bench for determination of the constitutional validity of the Notification dated 22.12.2015.
The Rule was substituted by the Rajasthan Various Service (II Amendment) Rules, 2015 in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and reads as
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 earlier rule allowed other women to fill the vacancies on seats reserved for widows and divorcees without offering an interchangeability of vacancies for divorcees and widows. The Rule read as
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.
The Court stated that a perusal of the Notification reveals that it provides a category-wise reservation in favour of women candidates or as is known as it's a compartmentalized horizontal reservation. Relying on the decision of the Supreme Court in Anil Kumar Gupta & Ors. vs. State of U.P. & Ors (1995) and Indra Sawhney etc. vs. Union of India & Ors (1992), the Court held that interchangeability is permissible within compartmentalized horizontal reservation. It stated that its only when migration of candidates due to interchangeability prejudices vertical reservation that such interchangeability is objected to. Further, the Court said
"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 category wise. 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."
The Court also referred to Section 36 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to conclude that interchangeability amongst horizontal reservations which does not adversely affect vertical reservation already exists under the scheme of the Rules providing for horizontal reservation.
The Court noted that the petitioners have not disputed the legislative competence of the respondents in enacting the Rule in question issued vide Notification dated 22.12.2015 nor is the extent of reservation for divorcee and widow candidates a subject matter of challenge and stated that
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.
In response to the contention of the petitioner that divorces are contrived in order to avail the benefit of the reservation, the Court said that although the contention appears lucrative at first blush, in absence of any material/data on record to substantiate the contention, it has no legs to stand on and deserves to be rejected.
The Court also reiterated the ruling of the Supreme Court in Indra Sawhney to reject the contention of the petitioner that the said rule would result in marching over of some less meritorious widow/divorcee women candidates over more meritorious women candidate in their respective category.
"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."
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