1. This Larger Bench has been constituted on a reference made in pursuance of the order dated 09.01.2020 passed by a Division Bench of this Court
in D.B. Civil Writ Petition No.16344/2018, Anita Sharma & Ors. vs. State & Ors. and two connected matters viz. D.B. Civil Writ Petition
No.18286/2018, Yogendra Malviya vs. State & Anr. and D.B. Civil Writ Petition No.27508/2018, Seema Gupta vs. State & Anr.
2. The aforesaid Writ Petitions came to be filed challenging inter alia, the validity of the Notification dated 22.12.2015 issued by the Government of
Rajasthan in Department of Personnel whereby, the existing Rule as mentioned in column no.3 against each of the Service Rules as mentioned in
column no.2 of the schedule appended thereto, has been substituted by the Rajasthan Various Service (II Amendment) Rules, 2015 in exercise of the
powers conferred by the proviso to Article 309 of the Constitution of India. The Notification reads as under:
2. Substitution of Rule - The existing Rule as mentioned in column number 3 against each of the Service Rules as mentioned in column number 2 of
the schedule appended hereto, shall be substituted by the following, namely:-
Reservation of vacancies for women.-
Reservation of vacancies for women candidates shall be 30% category wise in the direct recruitment, out of which one third shall be for widows and
divorced women candidates in the ratio of 80:20. In the event of non availability of eligible and suitable candidates, either in widow or in divorcee, in a
particular year, the vacancies may first be filled by interchange, i.e. vacancies reserved for widows to the divorcees or vice versa. In the event of non
availability of sufficient widow and divorcee candidates, the unfilled vacancies, shall be filled by other women of the same category and in the event of
non availability of eligible and suitable women candidates, the vacancies so reserved for them shall be filled up by male candidates of the category for
which vacancy is reserved. The vacancy so reserved for women candidates shall not be carried forward to the subsequent year. The reservation for
women including widows and divorcee women shall be treated as horizontal reservation, within the category, i.e. even the women selected in general
merit of the category shall first be adjusted against the women quota.
Explanation: In the case of widow, she will have to furnish a certificate of death of her husband from the Competent Authority and in case of divorcee
she will have to furnish the proof of divorce.
3. The Division Bench of this Court has, vide its order dated 09.01.2020, observed as under:
In the earlier case decided by Division Bench of this Court vide order dated 2.11.2015, the inter-changeability of reservation of the widow and
divorcee category candidates was held to be justified and thereafter, the Notification-in- question was issued by the State. We are of the opinion that
question involved in the present case requires to be dealt by a Larger Bench.
4. As a matter of fact, we find that the validity of the Notification dated 22.12.2015 was not under challenge before the earlier Division Bench in D.B.
Special Appeal No.1498/2012; which has, vide its order dated 02.11.2015, held as under:
During pendency of the special appeal, this Court passed a detailed order dt.13.2.2015 holding that the State Government in exercise of powers
conferred by proviso to Art.309 of the Constitution of India, made an omnibus amendment vide its Notification dt.24.01.2011 introducing reservation of
vacancies for Women candidates in direct recruitment of 30% category-wise out of which further reservation is provided of 8% for widows and 2%
for divorced women candidates with further stipulation that in the event of non-availability of eligible and suitable widows and divorced women
candidates may be filled in a particular year, the vacancies so reserved for widows and divorced women candidates may be filled by other women
candidates. The amendment introduced by the State Government vide Notification dt.24.01.2011 relevant for the present purpose reads ad infra-
Reservation of vacancies for women- Reservation of vacancies for women candidates shall be 30% category wise in direct recruitment out of which
8% shall be for widows and 2% for divorced women candidates. In the event of non-availability of eligible and suitable widows and divorced women
candidates in a particular year, the vacancies so reserved for widow and divorced women candidates shall be filled by other women candidates and in
the event of non availability of eligible and suitable women candidates, the vacancies so reserved for them shall be filled up by male candidates and
such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e. the reservation of
women candidates shall be adjusted proportionately in the respective category to which the women candidates belong"".
In compliance of order of this Court dt.13.2.2015, the State Government also examined the case and proposed that reservation of 8% in widow
category and 2% in divorcee category out of 30% reservation meant for women category if remain unfilled in the event of non-availability of eligible
or suitable widows or divorced women candidates in a particular year, the same be filled vice versa within two categories and if no suitable candidate
is available in both these categories, such vacancy shall be transferred & be filled by open women candidates. The proposal of the State Government
reads ad infra-
‘‘. .. 1498/2012 13.02.15 (
) , 30 8
2
(interchange) ;
(interchange)
;
◌
30
8
2
We do find justification in the proposal of the State Government that the Reservation of vacancies for women candidates is 30% category wise in
direct recruitment, 8% to be filled by widows and 2% by divorced women candidates and if it remain unfilled in the event of non-availability of eligible
or suitable widows and divorced women candidates in a particular year, it has to be first offered inter-se to the widow/divorcee women candidates and
vice versa and if no suitable candidate is available in both these categories, such vacancy shall be filled by other women candidates.
Therefore, from the aforesaid, it is apparent that proposal of the State Government was found to be justified by the Division Bench and, as a matter of
fact, the Notification which was yet to be issued, was never the subject matter of challenge before it.
5. The Division Bench has, in its order dated 9.1.2020, also taken note of dismissal of the review petition filed in the aforesaid matter. In the review
petition no.183/2018, the Division Bench, vide its order dated 4.12.2018, held as under:
This petition has been filed seeking review of order dated 13.02.2015 and judgment dated 02.11.2015 passed by Coordinate Division Bench in D.B.
Special Appeal (Writ) No.1498/2012 filed by one Ms. Mona Sharma, who claimed that she was eligible for appointment on the post of Teacher
Grade-III, Level-II (Hindi Subject). She participated in the process of selection pursuant to advertisement dated 25.02.2012. She was entitled to be
considered against the vacancies which were meant for divorced/widow women category. According to the Notification dated 24.01.2011 issued by
the respondents and the circular dated 05.06.2013, if member of either category was not available against the total number of vacancies, the vacancy
would revert to general category of women based on their vertical reservation but there was no provision of inter changeability of widow being 8%
and divorced being 2%, which is why the appellant Ms. Mona Sharma was not getting appointment in the quota of divorced even though vacancies
were available in the widow quota.
A perusal of the judgment of this Court dated 02.11.2015 reveals that this Court did not pass any specific orders but simply observe that since the
amendment Notification dated 24.01.2011 and circular dated 05.06.2013 need consideration at the end of the Government, therefore, the Government
should examine the issue and take appropriate decision in this regard.
It is informed by Mr. S. K. Gupta, learned Additional Advocate General that the Government has now amended the Rules and provided for exchange
of the vacancies between divorced and the widow and that if the vacancies in the quota of divorcees remain unfilled they can be offered to widow
and vice-versa and would not revert to the open category.
Mr. Tanveer Ahmed, learned counsel for the review petitioner submits that this Court in the judgment sought to be reviewed failed to appreciate that
reservation under women category is horizontal reservation and therefore inter changeability of reservation to widow and divorced category under the
reservation quota of woman category would tantamount to reservation within the reservation, which is not permissible in law. It is argued that new
Notification dated 22.12.2015 cannot be applied to the advertisement issued prior thereto as there was no amendment in the Rajasthan Panchayati Raj
Rules, 1996.
Even if that be so, this cannot be considered as an error apparent on the face of the record. All that this Court has done in the judgment of which
review is sought is that it left the matter to the state authorities to consider the question of inter changeability of vacancies between the divorced and
the widow category. This does not make out a case for review. This Court cannot in the scope of review comment on the correctness of the
Notification issued subsequently.
Thus, we find that the validity of the Notification dated 22.12.2015 has never been subject matter of judicial scrutiny on earlier occasion either in the
D.B. Special Appeal (Writ) No.1498/2012 or in the review petition. Moreover, the Division Bench has not referred any specific question for
consideration of this Larger Bench; however, in larger public interest, we think it fit to examine the constitutional validity of the Notification dated
22.12.2015.
6. The question which may be formulated for consideration by this Larger Bench would be ""whether the Notification dated 22.10.2015 providing for
interchangeability of reservation between widow and divorcee women categorywise in the event of non-availability of eligible/suitable widow/divorcee
women candidate in a particular year is ultra vires of the provisions of the Constitution of India?
7. Assailing validity of the Notification dated 22.12.2015, the learned counsel for the petitioners submitted that since the Rule provides the reservation
for women to be compartmentalized horizontal, interchangeability or migration of divorcee candidate to widow category or vice versa is impermissible
and is against the constitutional mandate of Articles 15 and 16. He further submitted that if such interchangeability is permitted, the less meritorious
divorcee/widow category women would march over more meritorious women candidates of their respective category.
8. Learned counsel for the petitioners further contended that while widowhood is an unfortunate status conferred upon a woman without human
intervention, there are instances where only to get benefit of reservation, divorces are being contrived, i.e., obtained artificially in a sham manner and if
such interchangeability is permitted, it would be an impetus to such dishonest practice. He, therefore, prayed that the Rule inserted vide Notification
dated 22.12.2015 be declared ultra vires to the Constitution of India.
9. Per contra, learned counsel appearing for the respondent- State supporting the validity of the Notification dated 22.12.2015 submitted that the
petitioners have failed to point out violation of any constitutional provision. He submitted that although `women' as a whole constitute an under-
privileged class, the divorcee and widow category women constitute a more deprived class in themselves and the State Government has, in its
legislative competence, enacted the Rule beneficial to such less advantageous group of women as a policy decision to ameliorate them from their
vulnerable situation in which no fault can be found with.
10. Heard the learned counsels for the parties.
11. Articles 15 (3) of the Constitution of India is the enabling provision providing for special measures for women which may be in the shape of
reservation too. The Constitution Bench of Hon'ble Apex Court has, in the case ofI ndra Sawhney etc. vs. Union of India & Ors.-(1992) Suppl. (3)
SCC 217, held as under:
514. 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.
12. It was further held in para 812 as under:
812. We are also of the opinion that this Rule of 50% applied only to reservations in favour of backward classes made under Article 16(4). A little
clarification is in order at this juncture; all reservations are not of the same nature. There are two types of reservations, which may, for the sake of
convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Casts, Scheduled Tribes
and other backward classes (under Articles 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under
clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations-what is called
interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a
reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC
category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed
in that providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains -and should remain -
the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
13. The Hon'ble Apex Court in the case of Anil Kumar Gupta & Ors. vs. State of U.P. & Ors.-(1995) 5 SCC 173 held as under:
17. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a
compartmentalised horizontal reservation"". we are of the opinion that in the interest of avoiding any complications and intractable problems, it would
be better that in future the horizontal reservations are compartmentalised in the sense explained above. In other words, the Notification inviting
applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in
each of the social reservation categories, viz., S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical
reservation category suffering prejudice as has happened in this case. As pointed out herein-above, 110 seats out of 112 seats meant for special
reservations have been taken away from the O.C. category alone and none from the O.B.C. or for that matter, from S.C. or S.T. It can well happen
the other way also in a given year.
18. Now, coming to the correctness of the procedure prescribed by the revised Notification for filling up the seats, it was wrong to direct the fifteen
percent special reservation seats to be filled up first and then take up the O.C.(merit) quota (followed by filling of O.B.C., S.C. and S.T. Quotas). The
proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T.
and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the
quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so
satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social
reservation categories by deleting the corresponding number of candidates therefrom, (If, however, it is a case of compartmentalised horizontal
reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical
reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)
Because the revised Notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the
entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota.
19. In this connection, we must reiterate what this Court has said in Indra Sawhney-1992 Supp (3) SCC 217. While holding that what may be called
horizontal reservation"" can be provided under Clause (1) of Article 16, the majority judgment administered the following caution in para 744;
(B)ut at the same time, one thing is clear. It is in very exceptional situation and not for all and sundry reasons that any further reservations of
whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary
(in public interest) to redress the specific situation. The very presence of Clause (4) should act as a damper upon the propensity to create further
classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under Clause (4) as well as under (1), the
vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to
do"".
Though the said observations were made with reference to Clauses (1) and (4) of Article 16, the same apply with equal force to Clauses (1) and (4)
of Article 15 as well. In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two
categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4), wrongly treated as reservations
under Article 15(1). Even otherwise, the special reservation would be nine percent. The respondents would be well advised to keep in mind the
admonition administered by this Court and ensure that the special reservations (horizontal reservations) are kept at the minimum.
14. A perusal of the Notification dated 22.12.2015 reveals that it, in no uncertain terms, provides for reservation in favour of women categorywise,
i.e., compartmentalized horizontal reservation. Thus, it is watertight reservation in each vertical reservation class. The question for our consideration is
whether interchangeability of reservation for widow/divorcee within their respective women category is violative of the constitutional scheme of
reservation for women?
15. In Indra Sawhney (supra), the Hon'ble Apex Court has held as under:
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...
16. In Anil Kumar Gupta's case (supra), the distinction between overall horizontal reservation and compartmentalised horizontal reservation has been
explained by way of following illustration:
Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-
transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112
seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other
Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,
O.B.C., S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in
the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be
allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates
only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are
available in O.C. category or not; the special reservation would be a watertight compartment in each of the vertical reservation classes
(O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their
respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in
the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation
candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the
proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be
that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen,
which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T.
will not be altered."".
17. Taking cognizance of the repercussion of the overall horizontal reservation, the Hon'ble Apex Court has held as under:
We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal
reservations are compartmentalised in the sense explained above. In other words, the Notification inviting applications should itself state not only the
percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz.,
ST., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has
happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C.
category alone - and none from the O.B.C. or for that matter, from S.C. or S.T. It can well happen the other way also in a given year.
From the aforesaid, it is apparent that the interchangeability is impermissible within compartmentalized horizontal reservation. The impermissiblity of
migration amongst horizontal reservation has loud object as such migration inter-se may prejudice the vertical reservation; but, no such mischief can be
said to be obtaining if interchangeability in between widow and divorcee i.e. two sub classes under the women reservation as a class is permitted
categorywise. If such interchangeability between the widow and divorcee is permitted, it will adversely affect neither the vertical reservation nor the
horizontal reservation for the women of the category other than the category to which the widow/divorcee belongs.
18. So far as the aforesaid aspect as well as contention of the learned counsel for the petitioners that such migration may result in marching over of
some less meritorious widow/divorcee women candidates over more meritorious women candidate in their respective category, suffice is to say that
the whole object behind the reservation is to protect the weaker/vulnerable section of the society against competition from open category candidates.
The Hon'ble Apex Court has, in the case of Indra Sawhney (supra) has observed as under:
836.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It cannot also be ignored that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognize that this much cost has to be paid, if the constitutional promise of social justice is to be
redeemed...."" There is another angle of the Rule in question which provides for 1/3rd reservation in favour of widows and divorced women in the ratio
of 80:20 categorywise out of 30% reservation for women candidates. We find that while the State Government has earlier, vide notification dated
24.1.2011, provided for 8% reservation for widows and 2% reservation for divorced women candidates out of 30% reservation for women candidates,
vide the Notification impugned herein, the reservation for the widow and divorced category candidates has been provided as 1/3rd out of total 30%
reservation for women candidates, i.e., as a homogeneous sub- class in the ratio as stated herein-above. The extent of reservation for widow and
divorced candidates is not the subject matter of challenge. It is undeniable that the women category as a whole constitutes an underprivileged class;
but, it is also true that the widow and divorced women constitute even more vulnerable and deprived sub-class amongst women as a whole and the
respondents were well within their competence to devise a mechanism for the upliftment and betterment of these more deprived and weaker sub
classes.
We may, here, gainfully refer Section 36 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
which provides as under:
36. Vacancies not filled up to be carried forward:-Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-
availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment
year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three
categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a
person, other than a person with disability. Provided that if the nature of vacancies in an establishment is such that a given category of person cannot
be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.
Thus, interchangeability amongst horizontal reservations which does not adversely affect vertical reservation, already exists under the scheme of the
Rules providing for horizontal reservation. The petitioners have not disputed the legislative competence of the respondents in enacting the Rule in
question issued vide Notification dated 22.12.2015. We find no constitutional impediment in making the reservation for widow and divorced women
interchangeable i.e. filling up of unfilled vacancies of one sub-class from another sub-class; categorywise.
19. Although, contention of the learned counsel for the petitioner that the course of divorce can be resorted to obtain it contrively in order to have
benefit of reservation, at first blush appears lucrative; but, in absence of any material/data on record to substantiate the contention, it has no legs to
stand on and deserves to be rejected.
20. It is trite law that there is always a presumption in favour of the constitutionality of an enactment. The Hon'ble Apex Court has, in case of State of
Bombay vs. F.N. Balsara-AIR 1951 SC 318 held as under:
(1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and
correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discrimination are based
on adequate grounds.
(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference
peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
The petitioners have miserably failed to rebut the aforesaid presumption.
21. The upshot of the aforesaid analysis is that the Rule permitting interchangeability of reservation between widow and divorcee women is held to be
constitutionally valid and we find no merit in the challenge to the Notification dated 22.12.2015 permitting inter-se transfer of unfilled vacancies
between widow and divorcee women categorywise.
22. The reference is answered accordingly and registry is directed to list the writ petitions before the appropriate Bench having roster for decision on
merit.
