This writ petition has been filed by the petitioner with the following prayer:-
“ It is, therefore, most humbly prayed that your Lordships may graciously be pleased to accept and allow this writ petition and further call for the
entire record of the case and examine the same and;
I. By way of an appropriate writ, order or direction in the nature thereof, thereby, the respondents may kindly be directed that at the time of final result
of the technical helper under above
Advertisement 2018-19, the benefit of 30% horizontal women reservation be provided to the petitioner.
ii. Any other appropriate order or direction which this Hon’ble Court deems fit and proper in favour of the Petitioner may kindly be passed.â€
Counsel for the petitioner submits that the advertisement was issued by the respondents for filling up the post of Technical Helpers but not provided
benefit of 30% reservation to the women candidates.
Counsel for the respondents submits that against the same advertisement other candidate Gunesh Kumari filed S.B. Civil Writ Petition No. 14344/2018
which was dismissed by the coordinate bench of this court vide order dated 26.07.2018, which reads as under:-
“30% horizontal reservation to women candidates has been excluded in the recruitment process involved herein, initiated vide advertisement No.
JVVNL/Karmik/Rectt/01/2018-19;Â Â while inviting on-line applications from the eligible candidates; is the cause for institution of the instant writ
application.
Briefly, the essential skeletal material facts are; that the candidature of the petitioner has been declined by the respondent-Jaipur Vidyut Vitran Nigam
Limited, Jaipur (for short, ‘JVVNL’), in response to advertisement No. JVVNL/Karmik/Rectt/01/2018-19, wherein on-line applications from
eligible candidates were invited for appointment to the post of “Technical Helper†w.e.f. 2nd July, 2018, to 23rd July, 2018. Last date was later on
extended 31st July, 2018. It is pleaded case of the petitioner that the respondents have committed gross-illegality and violated fundamental rights of the
petitioner (woman), for not providing 30% horizontal reservation in the respective vacancies including the post of “Technical Helperâ€.
Learned counsel for the petitioner asserted that the action of the respondents, is in flagrant violation of notification dated 31st May, 1999, incorporating
provision for 30% reservation for women candidates in  Rajasthan  Subordinate  Offices Ministerial Service Rules, 1999. Moreover, the
respondents have also made provision for 30% horizontal reservation under the Regulations of 2017, providing for reservation to women candidates.
The respondents have failed to incorporate horizontal reservation for women candidates in the respective category in the advertisement involved
herein; depriving the petitioner and other similarly situated women candidates; hence, the omission is ex facie illegal, arbitrary, and contrary to the Law
and Policy of reservation of the Staterespondents so also militates against constitutional mandate.
In response to the notice of writ application, respondent No.2, has filed its counter affidavit raising preliminary objections as to the very maintainability
of the writ application. According to respondent No.2, the writ application suffers with the vice of non joinder of proper and necessary party i.e.
JVVNL; therefore, merits rejection of that count alone.
Learned counsel for respondent No.2, while supporting the action of the respondents in not providing for horizontal reservation to the extent 30% for
women category candidates relied, upon opinion of a Division Bench of this Court in the case of Deep Mala Gautam & Anr. Vs. The State of
Rajasthan & Ors.: DBCWP No. 12949/2015, decided on 2nd May, 2018, relying upon law declared by the Apex Court of the land in the case of Indira
Sawhney & Ors. Vs. Union of India: AIR 1993 SC 477. A reference has also been made to opinion of this Court in the case of Suresh Kumar Vs.
State of Rajasthan & Ors.: SBCWP No. 8084/2007, decided on 24th February, 2018, wherein such a claim staked by a candidate relying upon Section
32 of the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; for no reservation was provided to differently abled
persons, while making recruitment to the posts of Subordinate Technical Cadre, was declined; keeping in view, the nature of work and duties attached
to the post.
I have heard learned counsel for the petitioner and with his assistance perused the relevant materials available on record as well as gave my
thoughtful consideration to the rival submissions at Bar.
Indisupteably, the petitioner a woman candidate, is agrieved of denial of horizontal reservation to the extent of 30%. It is also not disputed that while
such reservation has been provided by the respondents in other cadres; but for Subordinate Technical Cadre, which includeds the post of ""Technical
Helper"".
The claim staked by the petitioner for 30% horizontal reservation to women candidates, in the recruitment process involved herein, for the post of
Technical Helper""; may not detain, this Court for long, in view of law declared by the Apex Court of the land in the case of Indira Sawhney (supra),
wherein the Apex Court of the land declined such a claim observing that, if reservations are kept for women as a class under Article 16(1), an
inequitous phenomenon will emerge for women category would include from both backward and forward calss.
It is further clarified that clause (2) of Article 16, bars reservation in services on the ground of Sex. Moreover, Article 15(3) would not save the
situation since of reservations in the services under the State can only be made under Article 16. At this juncture, it will be profitable to take note of
the text of para 514 in the case of Indira Sawhney (supra), which reads thus:
445....... It is necessary to add here a word about reservations for women. Clause (2) of Article 16 bars reservation in services on the ground of sex.
Article 15(3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Further, women come
from both backward and forward classes. If reservations are kept for women as a class under Article 16(1), the same inequitous phenomenon will
emerge. The women from the advanced classes will secure all the posts, leaving those from the backward classes without any. It will amount to
indirectly providing statutory reservations for the advanced classes as such, which is impermissible under any of the provisions of Article 16.
However, there is no doubt that women are a vulnerable section of the society, whatever the strata to which they belong. They are more
disadvantaged than men in their own social class. Hence reservations for them on that ground would be fully justified, if they are kept in the quota of
the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such
and whatever the percentage-limit on the reservations under Article 16, need not be exceeded.
In the case of Deepmala Gautam & Anr. Vs. State of Rajashtna & Ors.: DBCWP No. 12949/2015, a division bench of this Court while dealing with
somewhat indentical controversy, wherein such a claim was made, with reference to advertisement dated 28th April, 2015, for the post of ""Technical
Helper""; the Division Bench having considered the claim of the petitioners therein (Deepmala & Anr.), in the backdrop of mandate of Article 15 and
16 of the Constitution of India and its interpretation by the Apex Court of the land in the case of Indira Sawhney (supra), dismissed the writ application
observing thus:
In view of the above, claim of reservation in favour of women is even hit by Article 16(2) and (4) of the Constitution of India. The reservation to
women would cause discrimination in the public employment on the ground of sex. It is not permissible. At this stage, reference of Article 15 of the
Constitution of India would be relevant which provides prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. Article
15(3) of the Constitution of India provides that the State Government would not be prevented to make any special provision for women and children.
The argument can be raised that pursuant to Article 15(3) of the Constitution of India, the State can come out with the Policy to provide reservation in
favour of women. The argument aforesaid would be in ignorance of Article 16 of the Constitution of India governing public employment thus cannot
be governed by any other Article in conflict to it. Article 16(2) of the Constitution of India bars discrimination on the ground of sex thus Article 15(3)
of the Constitution of India cannot be read in conflict to it. In the light of the aforesaid, we cannot give direction to provide reservation in favour of
woman candidates and, for that, to set aside the order dated 29th March, 2012. Learned counsel for petitioners has made reference of the judgment of
the Constitution Bench of Apex Court in the case of Indira Sawhney & Ors. (supra) to support his argument. Relevant Para 118 of the said judgment
has been referred and is quoted hereunder for ready reference:
 “118. It is necessary to add here a word about reservations for women. Clause (2) of Article 16 bars reservation in services on the ground of
sex. Article 15 (3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Further, women
come from both Backward and forward classes. If reservations are kept for women as a class under Article 16 (1), the same inequitous phenomenon
will emerge the women from the advanced classes will secure all the posts, leaving those from the backward classes without any. It will amount to
indirectly providing statutory reservations for the advanced classes as such, which is impermissible under any of the provisions of Article 16.
However, there is no doubt that women are a vulnerable section of the society, whatever the strata to which they belong. They are more
disadvantaged than men in their own social class. Hence reservations for them on that ground would be fully justified, if they are kept in the quota of
the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such
and whatever the percentage-limit on the reservations under Article 16, need not be exceeded.â€
The perusal of finding of the Apex Court in the para quoted above shows that Article 16(2) of the Constitution of India bars reservation in service on
the ground of sex. The finding has further been recorded that Article 15(3) of the Constitution of India cannot save the situation since all the
reservations in service under the State can be made only under Article 16, thereby, application of Article 15 of the Constitution of India in public
employment has not been accepted. Further observation in reference to Article 16(1) of the Constitution of India has also been made. If the finding
therein is taken in consonance to the Constitution of India, reservation for women would infringe Article 16(2). The Apex Court, however, made
observation that women are vulnerable sections of the society. They are more disadvantaged than men in their own social class. The reservation on
the aforesaid ground would be fully justified.
The question for our consideration is as to whether reservation can be provided based on observation aforesaid. In our opinion, it can be by amending
the
Constitution to carve out a new category of vulnerable class for reservation and, for that, to even amend Article 16(2) of the Constitution of India. In
absence of it, reservation to women would be in violation of Article 16(2) of the Constitution of India and, for which, finding has been recorded by the
Apex Court in specific terms thus cannot be ignored. In view of the above, unless Constitution of India is amended as per the observation of the Apex
Court in the para quoted above, claim or even reservation in favour of women is hit by Article 16(2) of the Constitution of India. The Apex Court has
not covered it by Article 16(4) of the Constitution of India as there exists advantageous and disadvantageous class of women thus it would be opposed
to Article 16 of the Constitution of India. In view of the above, prayer made in the writ petition cannot be accepted.
We are, however, not in agreement to the respondents that women cannot work on the post in question thus reasoning aforesaid is not acceptable as
women can also undertake technical work but in view of the discussion made above, we are unable to accept the prayer made by the petitioners.
Accordingly, writ petition is dismissed with no order as to costs.
In the face of the fact that the nature of work and duties to be discharged by the incumbent appointed on the post of ""Technical Helper"", are of the
nature which require physical endurance and involves activity arduous and mulitfarious in nature including climbing on electric polls, digging of
earth/pitfalls, working with electric wires including work with different types equipments involving high voltage power supply etc.; the respondents
have omitted even to increase the age of the candidates from ""35 years"" or ""37 years"", ""40 years"", while such a provision has been included by
amending Various Serive Rules, vide notification dated 6th March, 2018. This Court while dealing with the issue of relaxatoin in maximum age limit for
direct recruitment to the post of ""Technical Helper"" for direct recruitment in Suordinate Technical Cadre in the case of Kumud Gauttam Vs. Jaipur
Vidyut Vitran Nigam Limited: SBCWP No. 14563/2018, decided along with analogous matters on even date held thus:
“22. The amendment vide Notification dated 6th March, 2018, made in various Service Rules, substituting the existing expression “35 years†or
“37 years†by expression “40 yearsâ€, has been incorporated in Engineers Service Regulations, 2016, Officers Service Regulations, 2017,
Ministerial Staff Service Regulations, 2017 and Scheduled Areas, Ministerial and Class IV Service (Recruitment and other Service Conditions)
Regulations, 2017. However, the respondents have consciously omitted such an amendment in the Regulations of 1975, with reference to the eligibility
age criteria for direct recruitment of Technical Subordinate Cadre i.e. ‘Technical Helper’. The reasons for not incorporating the amendment by
substitution of expression of age “40 yearsâ€, are not far to seek in view of the physical work, the incumbent holding the post of ‘Technical
Helper’ has to undertake in the course of discharge of his duties i.e. installation of Electric Poles, digging of sand/pit falls and working on Electric
Wires along with different types of equipments pertaining to power supply, climbing the electric poles etc. Hence, conscious omission not to include
the amendment while substituting the expression “35 years†or “37 years†by expression “40 years†as the case may be; has nexus with
the object sought to be achieved.â€
Thus, the Competent Authority having regard to the nature of duties involving physical arduous endurance has decided even not to incorporate the age
relaxation clause; hence, the claim of the petitioner for 30% horizontal reservation for women candidates is absolutely devoid of any substance.
For the reasons and discussions aforesaid so also in view of the sattled legal position declared by the Apex Court of the land; claim of the petitioner
cannot be sustained.
In the result, the writ application fails and is hereby dismissed. No costs.
In view of the judgment passed by the coordinate bench of this court in the matter of Gunesh Kumari (supra), the present writ petition stands
dismissed. The stay application also stands dismissed.
