Reservation For Women In Public Employment Can’t Be Under Article 15(3): Chhattisgarh High Court

The Chhattisgarh High Court recently observed that “if it is held that Article 15(3) of the Constitution allows reservation for women and, accordingly it can be provided in public employment, then such an interpretation of Article 15(3) of the Constitution 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”.

The bench comprising Chief Justice Arup Kumar Goswami and Narendra Kumar Vyas said that Article 15(3) of the Constitution, at the outset, does not refer to the reservation in public employment, rather the words used are “special provision” for women.

While considering the question that when there is a specific Article under the Constitution to govern public employment, whether it can be ruled by any other constitutional provision in conflict or otherwise, the court referred to the Apex Court’s judgment in Indra Sawhney vs. Union of India.

Court stated that “The aforesaid judgment of the Apex Court 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 the reservation can be under Article 16 of the Constitution”.

However, the bench stated that the court noted that a finding was recorded, where women are vulnerable sections 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.”

Further, the court added that “the reservation under Article 16(4) is only to the backward class of citizens and the Apex Court, in the case of Indra Sawhney, observed that women en bloc cannot be brought under the category of backward class of citizens and, therefore, they are separately categorized as a vulnerable class for which there exists no provision in the Constitution to provide reservation”.

The court noted while dealing with a plea that had been filed assailing legality and constitutional validity of impugned Note-2 prescribed in Scheduled-III of the Chhattisgarh Medical Education (Gazetted) Service Recruitment Rules, 2013 (Rules of 2013) by which only female candidates were made eligible for direct recruitment to the posts of Demonstrator and Assistant Professor in Nursing Colleges.

The petitioners also challenged Clause-5 of the advertisement dated December 8, 2021, issued by the Public Service Commission for direct recruitment in the service by which only female candidates were made eligible.

The petitioners have the requisite educational qualifications prescribed in the advertisement for the post of Demonstrator Nursing but were not allowed to submit their forms in view of Note-2, mentioned in the Rules of 2013 as well as Clause-5 of the advertisement.

Therefore, they moved the high court challenging the State government decision which granted 100 percent reservation to women for the said posts.

The counsel for petitioner argued that by the virtue of above stated Rules of 2013 and advertisement, the right of the petitioners to get employment was being violated and thus Note-2 of Rules of 2013 and advertisement were violative of Articles 14,15, and 16 of the Constitution of India.

He asserted that even in the promoted posts, in view of the Rules of 1997, 30% reservation had to be granted for women, and as such, they were getting reservations beyond the permissible limit.

Further, counsel for the State submitted that the services of male nurses are utilized in the Government Hospitals for Orthopedics wards, Psychiatry wards, and Medico-Legal cases and except for those hard nature of cases, the service of female nurses are utilized in Government Hospitals.

He submitted that the majority of the nursing work in the hospital is carried out with the assistance of female nurses only, which clearly reflects that in the hospitals, taking care of patients is a women-dominated field.

Therefore he asserted that keeping this aspect of the matter, as per Clause-5.5 of Chhattisgarh Nursing Entrance Rules, 2019, all the seats of Government Nursing Colleges were meant only for women, and only women candidates were admitted to the course.

Therefore, he placed reliance on Article 15(3) of the Constitution of India. The Constitution itself provides for special provisions in the case of women and children as per Article 15(3) of the Constitution of India, he said.

He further submitted that Articles 15(1) and 16(1) of the Constitution of India also provide certain prohibitions in respect of a specific area of the State activities i.e. employment under the State and classification between male and female persons for certain posts are permissible and such classification can’t be said to be arbitrary or unjustified.

However, the court ruled in favor of the petitioner and quashed the impugned Note-2 in the Schedule-III of the Rules of 2013 as well as Clause-5 of the advertisement.