TN Public Service Commission can provide only horizontal reservation for women in public employment: Madras High Court

The Madras High Court recently reiterated that women can only be provided horizontal reservation, since the Constitution prohibits discrimination in public employment on the basis of gender. [M Satheesh Kumar v. State of Tamil Nadu].A Bench of Chief Justice MN Bhandari and Justice N Mala held that the policy of the Tamil Nadu Public Service Commission (TNPSC) to provide 30 per cent reservation for women across all quotas in public employment will have be struck off as unconstitutional if the authorities do not amend the process.The Court cited a number of Supreme Court judgments which have made it clear that reservation for women is to be arranged horizontally, cutting across the vertical reservation."It is unfortunate that the TNPSC and the State Government have not applied the proposition of law laid down by the Apex Court in all the cases clarifying the vertical and horizontal reservations. It is despite a clear illustration given by the Apex Court for arrangement of the merit list for filling up the posts by applying vertical and horizontal reservations in the case of Anil Kumar Gupta, supra.".The Bench also said that the 30 per cent reservation provided to women in public employment under Section 26 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 will have to be implemented only through horizontal reservation in the future..The Court was hearing a batch of writ petitions filed between 2013 and 2022 challenging the “wrong” methodology adopted by TNPSC for providing reservation to women.The petitioners had challenged Sections 26 and 27 of the 2016 Act which provide that a minimum 30 per cent of all the vacancies to be filled through direct recruitment in public employment shall be set apart for women candidates, irrespective of whether the rule of reservation of appointment applies to the posts or not.The Act also permits women to compete through the remaining open category seats..Counsel for the petitioner argued that the State had erred in effectively providing for vertical reservation for women akin to that provided for Scheduled Castes, Scheduled Tribes and Other Backward Classes.On the other hand, the State argued that the provisions of the Act were in in consonance with Constitutional principles..The Court found that the State's practice of reserving 30 per cent vacancies for women "en bloc at first, and then providing for social reservation," was leading to excess number of women getting appointed, much to the disadvantage of meritorious male candidates."The practice is also virtually leading to a kind of vertical reservation being implemented for women," the Bench noted..Also discussed were provisions of the Constitution on reservation in public posts and discrimination. Taking note of Articles 15 and 16 of the Constitution, the Court said,"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 for 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."Referring to the Supreme Court's landmark Constitution Bench decision in Indra Sawhney v. Union of India, the Court noted,"The aforesaid judgment of the Apex Court (Indra Sawhney) clarifies that reservation for women in public employment cannot be under Article 15(3) of the Constitution and Article 16(2) of the Constitution bars reservation on the ground of sex and all the reservations can be under Article 16 of the Constitution...Apex Court in the case of Indra Sawhney, supra, was cautious about the fact that women en bloc cannot be brought under the category of backward class of citizens and, therefore, they are separately categorized as vulnerable class, for which there exists no provision in the Constitution to provide reservation."This, however, did not mean that reservation for women was nullified, the Court clarified..Even as it stated that the actions of the TNPSC and the State government were opposed to the judgments of the apex court and even the constitutional framework, the Court said that it would not be appropriate to nullify the appointments already made.It instead directed the State and TNPSC to re-arrange the entire list as per the illustration given by the apex court in the case of Anil Kumar Gupta. In that judgment, the Court had held,"The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis...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...".Advocate Dakshayani Reddy appeared for the petitioner. Advocate General R Shunmugasundaram, assisted by Advocates Alagu Goutham, AG Shakeenaa, B Thiyagarajan and V Govardhanan, represented the State government. Advocate P Muthukumar appeared for the Revenue Department, while Advocate N Umapathi appeared for one of the candidates..[Read judgment]