HC: Women seats for open merit can’t be filled from SC/ST quota

Bhanu Pratap Singh, TNN | Mar 21, 2013, 06.15 AM IST

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JAIPUR: In a judgment that would affect all recruitments in the state government, the Rajasthan high court has ruled that posts reserved for women in the open/general category cannot be filled with women from reserved categories even if the latter are placed higher on the merit list. 

A single bench that passed the judgment while deciding a bunch of 120 petitions on the subject last week, has even observed that the time has arrived to reconsider the country's existing reservation system to include "downtrodden citizen of any caste". 

Women candidates who contested for different posts in at least three government departments, including the panchayati raj, education and medical, last year had challenged the government move to allow "migration" of reserved category women to fill the open category seats. The posts applied for included that of teachers Grade-II and III, school lecturers, headmasters and pharmacists. 

Women in Rajasthan enjoy 30% vertical quota in their respective categories of SC, ST, OBC and open/general in government jobs. As per the single bench's judgment passed on March 15, a woman candidate who has applied for her respective reserved category quota will not be considered for the women seats "saved" in the open category. 

On the basis of earlier judgments by the Supreme Court, Justice M N Bhandari has laid stress on clarifying that the 30% vacancies kept aside for women in each category is "not reservation" but a "special provision". Referring to the Constitution, the bench pointed out that reservation in public services is allowed only under Article 16. However, Article 16(2) prohibits discrimination in public employment on the ground of sex. A certain percentage of seats for the women are, therefore, "saved" invoking Article 15(3), which permits the state to make "special provision" for women and children. 

"It can be, thus, safely held that so far as earmarking certain posts for women are concerned, it can be saved by Article 15(3), if considered special provision for women and not by reservation. ....Thus, applying the principle laid down in this judgment (Indra Sawhney versus Union of India) and difference made between 'reservation' and 'special provision', migration of reserved category to open category, as is permissible in reservation, cannot apply," Justice Bhandari ruled. Taking an overall view on the reservation system, the bench observed, "The time has now come to consider the pattern of reservation exists in the country. It should not be for the purpose to divide citizens on the basis of caste and at the same time to see that a downtrodden citizen of any caste is given benefit of reservation so as to give true meaning to "backward class" used under Article 16(4) of the Constitution of India."