P.B. Vijayakumar v. Government Of A.P.

Jeeven Reddy, J.:-

(1) W. A. No. 276 / 1985 : rule 22 - a of the a p state and subordinate, service rules, made under the proviso to article 309 of the constitution of india provides for giving preference to women in the matter of direct recruitment to posts under the state. The rule was introduced by goms. No. 691, general administration ( ser. D) department, dated 22 - 11 - 1984, with effect from 2 - 1 - 1984. It reads as follows :

" 22 - a : notwithstanding anything contained in these rules or special or ad hoc rules - (1) in the matter of direct recruitment to posts for which women are better suited than men. Preference shall be given to women ; (g o ms. No. 472, g a dated 11 - 10 - 1985) : provided that such absolute preference to women shall not result in total exclusion of men in any category of posts. (2) in the matter of direct recruitment to posts for which women and men, are equally suited, other things being equal preference shall be given to women and they shall be selected to an extent of at least 30% of the posts in each category of o. C. , b c. , s. C. , and s t quota. (3) in the matter of direct recruitment to posts which are reserved exclusively for being filled by women they shall be filled by women only."

The rule was introduced in pursuance of a policy decision taken by the state government, stated in g. O. Ms. No. 2 dated 2 - 1 - 1984. The g. O. Recited :

" the question whether any preference can be provided for women in public services, and if so, to what extent it can be done, has been engaging the attention of government for sometime. After careful consideration it has been decided to provide preference to women in public services to a specified extent and in pursuance thereof the following orders are issued. ( then follows the rule proposed to be made)"

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Rub 22 - a correctly reflects and reproduces the policy decision taken in g. O. Ms. No. 2. It is, therefore, sufficient to look to the rule. Validity of the rule was assailed by the appellant in w p no. 3081 / 1984 - from which this writ appeal arises but upheld by a learned single judge of this court. The petitioner, a graduate in commerce, who has since passed law and enrolled himself as an advocate of this court, submitted that the rule of preference provided by the impugned rule is violative of clause (2) of art. 16 of the constitution. The learned single judge rejected the contention holding that clause (3) of art. 15; which enables the state to make special provision for women and children, can be read into art. 16 and the impugned rule sustained as a special provision for women. Correctness of the said view is questioned in this writ appeal.

(2) Let us first notice what does the rule say. Though the rule is called a rule providing for preference in favour of women, it provides not merely for preference in favour of women but also a certain reservation in their favour. The three sub - rules in the rule provide for three different situations. Sub rule (1) speaks of posts for which women are better suited than men. Sub - rule (2) speaks of posts for which both men and women are equally suited, while sub - rule (3) speaks of posts which are reserved exclusively for women. In the case of posts for which women are better suited than men, the rule says, preference shall be given to women, provided that such preference shall not result in total exclusion of men in any category of posts; (vide sub - rule (1). In the case of posts for which both men and women are equally suited, - the rule says that other things being equal, preference shall be given to women and they shall be selected to an extent of at bast 30% of the posts. This reservation cuts across the reservations provided under clause (4) of art 16. For the sake of convenience and facility of expression we shall describe the reservation of posts in favour of scheduled - tribes, scheduled - castes, and backward - classes as vertical reservations, while describing the reservation of the present kind as horizontal reservation. The 30% reservation in favour of women applies to each of the categories, namely, scheduled castes, scheduled tribes, backward - classes, and open competition this is provided by sub - rule (2). Sub - rule (3) contemplates posts which are reserved exclusively for being filled by women, and says that those posts shall be filled by women only. Sub - rule (3) by itself does not provide for, or reserve, any posts to be filled exclusively by women. In a sense, sub - rule (3) merely states the obvious. It is probably for this reason that the validity of sub rule (3) is not questioned before us. We shall, therefore, not deal with it. Our discussion shall be confined to sub - rules (1) and (2).

(3) Sub - rules (1) and (2) contemplate two types of posts, which we may call two classes of posts, namely, (i) posts for which women are better suited than men, and (ii) posts for which both men and women are equally suited. The first question that arises is : who should determine which posts are to be placed in sub - rule (1) and which posts in sub - rule (2) 1 indeed, that also brings in the question : who should determine the posts as meant exclusively for being filled by women for the purpose of sub rule (3) ? there is nothing in the rule which provides for this situation. It does not specify the authority who should specify these posts, nor does it provide the criteria or the basis which has to be followed or applied in the matter of classification. Surely, this power of classification cannot be left to the discretion and judgment of each of the appointing authorities, of whom there are several in the state. When we put this question to the learned advocate - general, he submitted that this matter has been left for the decision of each department, and that as and when a department identifies a particular post or posts for the purpose of one or the other sub - rule of rule 22 - a, a statutory rule is issued by the governor amending the relevant special rules. He placed before us a large number of g. Os. , issued by the various departments of the government. They are so large in number that we shall refer only to the g. Os. Containing rules issued by the governor with respect to education department (except those relating to public libraries and state archives). They are the following :

Education department : reference of the g. O. Posts identified as falling under (for the purpose of rule 22 - a) : (1) (2) (3) g o ms no. 40 dt. 23 - 1 - 1986 : supervisors in the department of adult education. Sub - rule (2) g. O. Ms no. 41 dt. 23 - 1 - 1986 : asst. Project officers in the department of adult education. Sub rule (2) g. O. Ms no. 42 dt. 23 - 1 - 1986 : statistical assistants in the department of adult education. Sub - rule (2) g. O. Ms no. 183 dt. 7 - 4 - 1986 : 1) sewing instructresses; sub - rule (1) 2) drawing and sewing mistresses in a. P. Subordinate civil service. G. O. Ms no. 183 dt. 7 - 4 - 1986 : all other posts in a. P. Educational subordinate service other than those mentioned above. Sub - rule (2) g o ms no. 198 dt. 29 - 4 - 1986 : deputy educational officers (women) (category - i, class - iii of a. P. Education service) ; sub - rule (1) g o ms no. 198 dt. 29 - 4 - 1986 : 1) deputy educational officers ; 2) lecturers in govt. Colleges of education; sub - rule (2) 3) asst. Lecturers in govt. Teachers' training institutes. G o ms no. 246 dt, 2 - 6 - 1986 : all posts in a. P. Educational subordinate service, part - ii. Sub rule (2) (1) (2) (3) g. O. Ms no. 164 dt. 27 - 6 - 1987 : deputy educational officers, headmasters, head - mistresses, gazetted assistants, and leeturers. Sub - rule (2) g. O. Ms no. 165 dt. 27 - 6 - 1987 : asst. Lecturers in teachers training institutes. Sub - rule (2) g. O. Ms no. 167 dt. 29 - 6 - 1987 : special teachers and special language pandits. Sub - rule (2) g. O. Ms no. 181 dt. 21 - 5 - 1987 : (in modification of g. O. Ms no. 183 dt. 7 - 4 - 1986) : sewing instructresses and drawing and sewingmistresses. sub - rule (1) g. O. Ms no. 257 dt. 11 - 6 - 1986 : lecturers, physical - directors librarians in degree colleges, and junior lecturers, physical directors and librarians in junior colleges. Sub - rule (2) (it is not known whether posts not specified in the above g os. Should be understood as posts for which men are better suited than women. This doubt is arising because of the nature of classification contained in rule 22 - a).

(4) In such a situation it would not be possible, or practicable, for us, in this writ pstition, to examine the correctness of identification of a particular post or posts as falling under sub - rule (1) , or sub - rule (2) of rule 22 - a, made under several g. Os. We shall confine ourselves to the question whether rules 22 - a, or any part thereof, is violative of art. 16 (2) of the constitution?

(5) Coming back to the question - what does the rule say? - we shall first take up for consideration sub - rule (2) of rule 22 - a. According to it, (i) in the matter of direct recruitment to posts for which women and men are equally suited, (ii) other things being equal, (iii) preference shall be given to women and they shall be selected to an extent of at least 30% of the posts. Now, we are not clear as to what does this rule mean in actual practice? it is neither a straight forward rule of reservation, nor a straight; forward rule of preference. The words "other things being equal" are causing a good amount of confusion. What does the rule mean when it says that other things being equal, preference shall be given to women and they shall be selected to an extent of 30% of the posts? now take a case where 100 posts are available and are notified. They are classified as posts for which women and men are equally suited. Selection is to be made exclusively on the basis of marks obtained by the candidates in the written test held for the purpose. 500 candidates - both men and women - appear. According to the merit list, i. E. , the list prepared according to the marks obtained, all the first hundred ranks are occupied by men. Evidently, in such a case, the sub - rule is not attracted because, though the post is one which is classified as a post for which both men and women are equally suited, the other condition of sub - rule, i. E. , ''other things being equal" would not be satisfied in this case. In the above illustration, no woman can be selected; only the men in the first hundred ranks have to be selected. Same would be the position if the merit list is prepared observing the rule of reservation in favour of backward - classes, scheduled - castes, and scheduled - tribes. Same would also be the situation if the merit list is prepared not merely on the basis of the written test but also on the basis of the marks obtained at an interview. The sub - rule would be attracted only when the men and women secure identical marks in the above illustration. In other words, only in a situation where 100 men and 100 women obtain equal marks, that women have to be appointed at least to the extent of 30% of the posts. Now take a slightly different situation in the context of the same illustration. According to the merit list prepared, the first 85 ranks are occupied by men. And the last 15 ranks by women. In such a case, women can be appointed only to the extent of 15%, according to the sub - rule, and not to the extent of 30%. In other words, whether the post is one or more than one, preference and the reservation provided by this sub - rule can only come into play when men and women are equally situated in all respects. Only where there is nothing else to prefer one over the other, would this rule of preference come into play. But, as matter of fact, the rules generally provide for such situations too. Where two candidates obtain equal marks, the rules provide how to prefer one over the other. The preference is provided either on the basis of age, academic qualification, or the marks obtained in the qualifying examination, as the case may be. If there is such a provision, then again sub - rule (2) of rule 22 - a would not be attracted the preference provided by sub - rule (2) of rule 22 - a should come into operation only where, after applying the relevant rules, men and women stand an an equal footing. In this sense, perhaps, sub - rule (2) would be attracted only in a few cases. Even in cases where selections are made on oral interview alone and/or where the method of grading is followed instead of method of awarding marks, the sub - rule would be attracted only where a man and a woman are found on equal par in all respects.

(6) Now coming to sub - rule (1) of rule 22 - a, it may be a case of stating the obvious. It says, in the case of posts for which women are better suited than men, preference shall be given to women. Once the identification of a post for the purpose of this sub - rule is made, the preference is implied and in - built. The more relevant question may be, whether the identification of a post or posts as falling under this sub - rule is justified, or not? but, that is an aspect which we cannot go into in this writ petition/writ appeal. That must be left to be adjudicated upon as and when an individual identification is questioned in a properly constituted writ petition. Once we understand the sub - rule in this sense, the proviso also becomes harmless, because it only says that the preference provided by this sub - rule shall not result in total exclusion of men in any category of posts, though the expression "absolute preference" used in the proviso appears to be out of context and not really called for.

(7) Having ascertained the meaning of the sub - rules in question, we shall now deal with the attack upon their constitutionality. The validity of sub - rule (2) is assailed on the following ground : once the post is one for which men and women are equally suited, the provision of preference and reservation to an extent of 30% is opposed to art. 16 (2). sub - rule (1) is attacked on the ground that it vests an unguided and uncanalized power in the appointing authorities to select men to such extent as each of them subjectively decides, which is bound to result in unequal and discriminatory consequences.

(8) clause (i) of article 16 guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the state, while clause (2) declares that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect of any employment or office under the state. Clause (. 4) , however, clarifies that nothing in the article shall prevent the state from making any provision for reservation of appointment or post in favour of any backward class of citizens which, in the opinion of the state, is "not adequately represented in services under the state.

(9) Article 16 as well as article 15 are undoubtedly facets of the rule of equality enshrined in art. 14. But this does not mean that clause (3) of art - 15 can be read into art. 16. The language of clause (3) of art. 15 shows that it is confined only to art. 15, for, it says

"nothing in this article shall prevent the state from making any special provision for women and children."

. It is in the nature of an exception to clauses (1) and (2) of art. 15 and cannot be read into art. 16, which has its own set of exceptions viz. , clauses (3) and (5) of art. 16. This is the view taken by v. Ramaswami, j. , in prabhakaran vs. Union of india (1) ilr 1980 - 1 (madras) , 214. And by h l. Anand, j. In w a. Baid vs. Union of india (2) air 1976, delhi, 302. This is also the view expressed by g n. Ray, j. In naba kv. Ray and others vs. Union of india (3) 1979, all india service law journal, 709 at p. 717 and r. S. Narula, j. , (minority opinion) in a full bench decision of the punjab and haryana high court in shamsher singh vs. State (4) air 1970, p and h. , 372. The contrary opinion expressed by the majority in the said full bench decision (r s. Sarkaria and s c. Mittal, jj.) , in our respectful opinion, does not represent the correct law. The exception or exceptions in one article cannot be read into another. For the same reason, we are equally unable to agree with the reasoning in charan singh and others vs. Union of india (5) 1979, all india service law journal, p. 27 (delhi) ; the fact that women have been treated unjustly over the centuries - an indisputable proposition - cannot be a ground for departing from the well - established rules of interpretation.

(10) Since the decision of the supreme court in state of kerala vs. Thomas (6) air 1976, s c. 490. It is well settled that clause (1) of art. 16 permits reasonable classification just as it is permitted by art. 14. But, any classification made under art. 16 (1) should not fall foul of the prohibition contained in clause (2) of art. 16. (classification on the basis of scheduled castes was saved from the injunction of art. 16 (2) holding that scheduled - castes are not 'castes' but an amalgam of castes, races and tribes, as defined in clause (24) of art. 366; (sec para 107 (mathew, j.) , para 160 (iyer, j.) , and para 217 (fazl ali, j.). No citizen can be discriminated against on any of the grounds (including sex) mentioned in clause (2). The prohibition contained in clause (2) , however, is against discrimination only on any of the grounds mentioned therein. If a classification is made on the basis of sex coupled with another relevant and permissible factor, the prohibition in clause (2) would not apply. In other words, if the state says that a particular post, for example the post of warden in a girls' hostel, or the posts of nurses and attendants in a maternity hospital, should be filled only by women because women alone are suitable for the said posts, it cannot be said that there is a violation of clause (2) of art. 16. Classification on the basis of sex, coupled with suitability, has been upheld by courts; (see the decision of a division bench of punjab and haryana high court in raghubans vs. , state (7) air 1972, punjab and haryana, p. 117. Though it has been held by the supreme - court that for the purpose of art. 16 (4) a classification solely based on caste, community, race, religion, sex, descent, place of birth, or residence is not permissible; (see : triloki nath vs. State of jandk. , (8) air 1969, s c. Page 1. From this point of view, it must be held that classifying certain posts as posts for which women are more suitable than men, or as posts which must be filled exclusively by women only, "is not impermissible in law, so long as the classification is based not merely upon sex but is based upon the nature of the post, the requirements and duties attached thereto, and the suitability of women therefor. The three - fold classification contained in rule 22 - a must, therefore, be held to be permissible though as stated hereinbefore, the identification of each post and placing it in one or the other category is a matter which is outside the purview of this writ petition.

(11) sub - rule (2) of rule 22 - a, in our opinion, suffers from an inherent contradiction. The words "other things being equal" and the words "and they shall be selected to an extent of at least 30% of the posts in each category of o. C. , b c. , s c. , and s t. Quota" represent mutually contradictory concepts. The very idea of reservation of a particular percentage of vacancies or posts proceeds on the assumption that the class for which reservation is being provided is not equally situated with the other class, reservation is a means to bring about equality. If both the classes are equal and sitrated alike, no question of reservation in favour of one can arise. The sub - rule opens with, and is premised upon two suppositions, namely, (i) it is a post for which men and women are equally suited, and (ii) both the contending men and women are equally situated ("other things being equal". It is un - under standable how a reservation to the extent of 30% of the vacancies can yet be provided in favour of women. Though the sub - rule does not use the expression 'reservation' or 'reserved', it cannot but mean a reservation to the extent of 30%. Preference to the extent of at least 30% vacancies is nothing but another name for reservation to the extent of 30%. Such a reservation based exclusively on sex - note that sub - rule deals with posts for which both men and women are declared to be equally suitable - is clearly opposed to the injunction in article 16 (2). It is also likely to cause confusion and lead to unequal consequences. So far as the sub - rule provides a general preference in favour of women when they are equally situated with men in all relevant aspects, the possibility of such a situation arising is so remote that we do not think it necessary to express an opinion its validity in this writ petition. But, the rule in so far as it provides that they shall be selected at least to an extent of 30%, even in the case of posts for which both men and women are equally suited, is certainly bad. Accordingly, the words "and they shall be selected to an extent of at least 30% of the posts in each category of o c. , b c. , s c. , and s t. Quota" are declared to be void and inoperative. The rest of the sub - rule is unobjectionable.

(12) The validity of clause (1) of rule 22 - a is challenged on a different ground altogether, viz. , violation of art. 14. The rule provides that in matters of direct recruitment to posts for which women are better suited than men, preference shall be given to women. The proviso says that such "absolute preference" to women shall not result in total exclusion of men in any category of posts. The proviso does not indicate to what extent, or in what percentage, should the men be recruited. The contention of the petitioner is the post is not one for which women alone are suited; that category is dealt with by sub - rule (3) ; this sub - rule deals with posts for which men are also suited, though women are found to be better suited than men; the rule leaves it to the discretion of the appointing authorities to appoint men in such percentage as they think appropriate; this is likely to result in unequal consequences. One appointing authority may think it sufficient to appointmen to an extent of 50%, while another appointing authority may appoint men to an extent of 40%; the rule is thus vague besides conferring an unguided and uncanalized discretion upon the appointing authorities. We are not convinced. Once it is agreed that the posts covered by this sub - rule are those for which women are better suited than men, naturally preference would be given to women. The proviso merely ensures that such preference shall not result in total exclusion of men, and cannot be faulted on any account. It is true that the proviso does not specify to what extent men should be recruited, but that must be left to the appointing autboriy to decide having regard to the nature of post, number of contenders both among men and women, their qualifications and merit. All this must guide his discretion. It cannot, therefore, be said that an arbitrary or unguided power is conferred upon the appointing authority, or that such a provision is inherently discriminatory. An arbitrary exercise of discretion in a given case can always be questioned, but that does not affect the validity of the sub - rule.

(13) Though it may not be strictly relevant, we may as well refer to the recommendations made by the committee "on the status of women in india". The report of the committee is published by the government of india, ministry of education and social welfare (december 1974) , under the heading ''towards equality", in chapter v, dealing with "roles, rights and opportunites for economic participation" the committee discussed the problems women face in obtaining employment. The petitioner (appellant) brings to our notice that while reviewing this situation the committee made several recommendations in paragraphs 5. 323 to 5. 326 at pages 231 to 233; but none of these recommends reservation in favour of women in public employment. Even while dealing with the question of reservation of seats for women in legislative bodies, the committee reported :

"the minority argument cannot be applied to women. Women are not a community, they are a category. Though they have some real problems of their own, they share with men the problems of their groups, locality and community. Women are not concentrated in certain areas confined to particular fields of activity. Under these circumstances, there can be no rational basis for reservation for women"

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(see paragraph 7. 113 (g) at p. 334) it is also brought to our notice that among general recommendations made by the committee at pages 364 to 375, reservation in favour of women in the matter of employment, whether in public sector or private sector, is not recommended, though extensive recommendations covering all aspects of women's life and problems have been made.

(14) For the above reasons, we hold : (i) sub - rule (1) of rule 22 - a of the andhra pradesh state and subordinate service rules, is valid and unobjectionable; (ii) sub - rule (2) of rule 22 - a is also valid and enforceable, except the words

"and they shall be selected to an extent of atleast 30% of the posts in each category of o c, bc, s c, and st. Quota"

. The said words are declared to be null and void, as being opposed to art. 16 (2) of the constitution. (iii) we need express no opinion on the validity of sub - rule (3) of rule 22 - a, inasmuch as it has not been canvassed before us.

(15) Writ appeal is disposed of with the above directions. There shall be no order as to costs.

(16) Before parting with this case we think it appropriate to say that the identification of posts for purposes of one or the other sub - rule in rule 22 - a should have been made under one proceeding. Now that it has been done under innumerable orders issued by the government from time to time it is but necessary that they should all be published together, by the government, in a book form, for information of the public. Indeed, until the government produced the various orders issued by the government and various departments, even the counsel appearing for the government was not clearly aware that there are such a large number of orders. Mere publication in the gazette from time to time is hardly sufficient to put the public in general, and employment - seekers in particular, on notice about the said orders. Legally it may be sufficient; but in fact, it may not be.

(17) W p no. 16915/1986 : in view of our decision in writ appeal no. 276/85 no particular directions are called for in this writ petition. There is no reason to doubt that the government having made the said rule will not implement it. In fact, the learned advocate - general told us that the impugned rule represents one of the major decisions of the telugu desam government in the field of women's welfare. The rule, in so far as it has been found to be valid, will, of course, have to be implemented by the government, so long as it is in force. The writ petition is disposed of with these observations. No costs.