Andhra Pradesh High Court - Amravati

Jaithu. Ravindranath vs The State Of Andhra Pradesh, on 3 January, 2024

Author: R. Raghunandan Rao

Bench: R. Raghunandan Rao

    IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

 HON'BLE MR.JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
                                 &
         HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO

                WRIT PETITION No.13848 of 2023

Jaithu Ravindranath, S/o Sankuramayya,
Aged about 40 years, Occ: Public Health Nurse (T),
O/o Govt. College of Nursing, K.G.H. Campus,
Visakhapatnam.
Permanent Address R/o Kinnerla Village,
Vangasara Post, Chintapalli Mandal,
Alluri Seetha Ramaraju District.

                                                       ... Petitioner
                               Versus

The State of Andhra Pradesh,
Rep. by its Special Chief Secretary, Health
And Family Welfare Department,
Secretariat Building, Velagapudi,
Amaravathi and five others.

                                                     ...Respondents

Ms. Marella Radha, Counsel for the petitioner.

Government Pleader for Services-IV, for respondent No.1.

Government Pleader for Medical, Health & Family Welfare, for respondent Nos.2 to 5.

Mr. Jupudi V. K. Yagna Dutt, Central Government Counsel for respondent No.6.

DATE : 03.01.2024

PER DHIRAJ SINGH THAKUR, CJ:

The petitioner is working as a Public Health Nurse (Teaching)

and claims to have all the qualifications for being promoted to the HCJ & RRR, J

post of Lecturer of Nursing from the feeder cadre of Public Health

Nursing (Teaching). According to Rule 3 of the Andhra Pradesh

Colleges of Nursing Service Rules, 1996, issued vide G.O.Ms.No.101,

dated 04.04.1997, the post of Lecturer can be filled up from any of

the following:

(i) By appointment by transfer from the category of Nursing Tutor Grade-I from A.P. Subordinate Nursing Services.

(ii) If no qualified Nursing Tutor Gr-II is available then by promotion from the category of Public Health Nurse from A.P. Subordinate Nursing Services.

(iii) If no qualified Nursing Tutor Gr-II is available then by promotion from the Category of A.P. Subordinate Nursing Services.

(iv) If no qualified P.H.N. is available then by promotion from the category of staff Nurse of A.P. Subordinate Nursing Services.

Notwithstanding the above, the petitioner claims that he is

not being considered for promotion in view of Rule 4 of the

aforesaid Rules which envisaged as under:

"4. RESERVATION OF APPOINTMENT:

Only women shall be eligible for appointment to any of the

posts in the service."

In the aforementioned backdrop, the petitioner challenges

G.O.Ms.No.101, dated 04.04.1997, and in particular Rule 4, as

being ultra vires the Constitution and in particular, Articles 14 and HCJ & RRR, J

16 thereof. Reliance has been placed by the learned counsel for the

petitioner on the Apex Court judgment rendered in Indra Sawhney

v. Union of India1.

2. The stand of the respondents on the other hand is that

G.O.Ms.No.101, dated 04.04.1997, was issued based upon the

recommendations made by the One Man Commission appointed by

the Government, who comprehensively examined, reviewed and

updated the existing rules for various posts under the State

Government. It is stated that it was based upon the report of the

One Man Commission and the subsequent deliberations held based

thereupon that G.O.Ms.No.101 came to be issued prescribing 100%

reservation in favour of women for appointment to the posts inter

alia for the posts of Principal & Professor of Nursing, Professor of

Nursing, Assistant Professors and Lecturers. It is stated that the

reservation was prescribed considering the fact that taking care of

patients was a women dominated field and that services of male

nurses were utilized only in Government Hospitals for orthopaedic

wards, psychiatry wards and medico legal cases, which were

considered to be hard cases to handle. It is further the case of the

respondents that other than the above, the services of female

1992 Supp (3) SCC 217 HCJ & RRR, J

nurses are more suitable and thus utilized accordingly in the

Government Hospitals.

3. It is further stated that the impugned rules, notified vide

G.O.Ms.No.101, have been framed as a result of a policy decision

taken by the State and are saved in terms of Article 15(3) of the

Constitution of India and in that regard, learned counsel for the

respondents would submit that the impugned G.O. does not in any

manner run contrary to Articles 14 or 16 of the Constitution of

India.

4. The issue as to whether 100% reservation in favour of female

candidates is violative of Articles 14 and 16 of the Constitution of

India or is otherwise not saved by Article 15(3) of the Constitution

is no longer res integra. However, before we refer to the judgment

on the point, it would be apt to briefly refer to Articles 15 and 16 of

the Constitution. Article 15(1) envisages that the State shall not

discriminate against any citizens on grounds of religion, race, caste,

sex, place of birth or any of them. Article 15(3) however envisages

that nothing in this Article shall prevent the State from making any

special provision for women and children.

Article 16 reads as under:

"16. Equality of opportunity in matters of public employment.--

HCJ & RRR, J

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) 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.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

[(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.] HCJ & RRR, J

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

[(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.]"

5. The Apex Court in the case of Indra Sawhney(supra) clearly

held that the principle in Articles 14 and 16 was equality and

equality of opportunity and clause (4) of Article 16 was a means of

achieving the very same objective and that the provisions of Article

16(4), which was conceived in the interest of certain sections of the

society, should be balanced against the guarantee of equality

enshrined in clause (1) of Article 16, being a guarantee held out to

every citizen and the entire society. It was also held that

reservations contemplated in clause (4) of Article 16 should not

exceed 50% except in certain extraordinary situations where some

relaxation to this percentage was envisaged considering the

extraordinary situations which may warrant such a relaxation in

the backdrop of the diversity of this country and its people.

It was nevertheless held that in exceeding the percentage of

50%, extreme caution has to be exercised and a special case must HCJ & RRR, J

be made out. In paragraph 514 of the judgment, the Apex Court

further 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."

6. In the light of the above, it can be held that while there cannot

be 100% vertical reservation for women as a class, reservation for

women may be permissible in the quota of the respective classes for

which reservation is otherwise prescribed in terms of Article 16 of

the Constitution.

7. Be that as it may, we accordingly hold that Rule 4 of the

Andhra Pradesh Colleges of Nursing Service Rules, 1996, to the HCJ & RRR, J

extent it provides 100% reservation for female candidates for

appointment inter alia to the post of Lecturers in nursing is

violative of Articles 14 and 16 of the Constitution and therefore,

held to be bad and illegal and is accordingly quashed. The petitioner

is held entitled for consideration against the post of Lecturer