The Constitution does not expressly permit reservation for women in public employment. On the contrary, Article 16(2) prohibits discrimination in public employment on the ground of sex. Therefore, women can, at best, be provided only horizontal and not vertical reservation on the basis of the Supreme Court’s pronouncement in the famous Indra Sawhney’s case (1992), the Madras High Court has ruled.
Chief Justice Munishwar Nath Bhandari and Justice N. Mala held that the 30% reservation provided to women in public employment under Section 26 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 would stand declared unconstitutional if the State government and the Tamil Nadu Public Service Commission (TNPSC) wanted to continue the practice of following the vertical methodology.
The judges made it clear that the legal provision could be saved only if the government was willing to implement it horizontally in future appointments. They advised the government to amend the provision accordingly. The verdict was delivered while disposing of a batch of writ petitions filed in 2013, 2021 and 2022 challenging the “wrong” methodology adopted by the TNPSC for providing the reservation to women.
The Bench agreed with the writ petitioners’ counsel that the TNPSC should not reserve 30% vacancies for women en bloc at first and then decide social reservation because such a practice had been leading to excess number of women getting appointed, much to the disadvantage of meritorious male candidates. The practice also virtually led to a kind of vertical reservation being implemented for women, it added.
The court said that the petitioners had brought to its notice that in a process for recruitment of 1,141 veterinary assistant surgeons, only 342 amounted to the 30% quota. Even if overall merit is taken into consideration, 424 women could have been selected. However, due to the "wrong" methodology, as many as 544 women got selected.
The court said women who had scored as low as 279.25 marks were selected while men with 337 marks could not make it because of the wrong methodology.
Hence, the court ordered that the commission should first draw the list of meritorious candidates by following the vertical reservation under General Turn, Backward Class, Scheduled Caste and Scheduled Tribe categories.
Thereafter, it must find out the number of the horizontal reservation beneficiaries such as the physically challenged and women who had got selected on merits under each social category. If less number of women/physically challenged had got selected in a particular social category as against the percentage of horizontal reservation earmarked for them, additional beneficiaries must be included in that category after pulling out names from the bottom of the list. However, if more number of women/physically challenged had got selected in any category, they need not be disturbed because women were entitled to compete in the rest of 70% vacancies too, the judges said.
The Bench held that their verdict would not apply to appointments that had already been made. However, in cases where appointments were yet to be made, including the selection processes which were under challenge in the present batch of writ petitions, the TNPSC must follow the correct methodology highlighted by the High Court, failing which the entire reservation for women would stand declared ultra vires to the Constitution.