Reservation for women in public service not protected under Article 15(3) of Constitution: Chhattisgarh High Court

The Chhattisgarh High Court on Thursday quashed a State government decision which granted 100 per cent reservation to women for the post of demonstrators and assistant professors in nursing colleges [Abhay Kumar Kispotta v. State of Chhattisgarh]..A Division Bench of Chief Justice Arup Kumar Goswami and Narendra Kumar Vyas said that such a reservation cannot be protected under Article 15 (3) of the Constitution of India, which empowers the State to make 'special reservations' for women and children."Submission of learned counsel for the State that the reservation to female candidate is saved by Article 15(3) of the Constitution of India cannot be accepted as Article 15(3) of the Constitution, at the outset, does not refer to reservation in public employment, rather the words used are “special provision” for women," the judgment stated..The Court referred to Article 16(2) of the Constitution, which provides for equality of opportunity in matters of public employment and governs the specialised subject of public employment. This provision prohibits discrimination on the grounds of religion, race, caste, sex, descent, place of birth, etc, the bench noted."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 bench held..Referring to the Supreme Court judgment in the Indra Sawhney case, the Court said 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 the reservations can be under Article 16 of the Constitution. "However, a finding was recorded that women are vulnerable section and, therefore, reservation can be provided in the quota of respective classes. The issue thus remains open for the Parliament to provide reservation for the vulnerable class of candidates, because it is not so provided under Article 16(4) of the Constitution of India," the Court observed.It added 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 for reservation in the Constitution."It must be for the obvious reason that when public employment is governed by Article 16 of the Constitution, it cannot be ruled by Article 15 of the Constitution, which is of general application to the field not occupied by other Articles guaranteeing fundamental rights, otherwise there would be conflict between Articles 15 and 16 of the Constitution of India.".The Court disposed of a batch of petitions challenging the government decision to grant 100 per cent reservation for women candidates aspiring to become professors in nursing institutions. To drive home its point, the State argued that its decisions are saved by Article 15(3), which does not prevent the State from making any special provisions for women and children. By virtue of the power conferred on the State, the Rules neither suffer from arbitrariness or illegality nor was it beyond the competency of the State to frame such Rules, the government argued.Rejecting the argument, the Bench said that since the State's decision is 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. Therefore, on the touchstone of equality before law and equality of opportunity in matters of public employment, the Rules can very well be quashed."...if we hold that Article 15(3) of the Constitution allows reservation for women and, accordingly, it can be provided in public employment, such an interpretation of Article 15(3) would be nothing but to nullify the main provision of public employment under Article 16(2) of the Constitution prohibiting discrimination on the basis of sex," it was held.With these observations, the bench disposed of the petitions..Advocate Ghanshyam Kashyap appeared for the petitioners.Deputy Government Advocate Gagan Tiwari and Advocate Anand Mohan Tiwari represented the State..[Read Judgment]