Women'S Education Society ... vs The Nagpur University, Through ...
2007 Latest Caselaw 790 Bom

JUDGMENT

B.P. Dharmadhikari, J.

Page 1565

1. This Petition under Article 226 of the Constitution of India, is filed by the Public Trust duly registered as such under the provisions of Bombay Public Trust Act as Petitioner No. 1 and Petitioner No. 2 - a duly recognised College run by it. The College is affiliated to Nagpur University i.e. Respondent No. 1 and challenge in the Writ Petition is to communication dated 23.04.2003, by which the Assistant Registrar of the Respondent No. 1 Nagpur University has communicated to the Petitioner No. 2 that its advertisement providing for reservation of all posts for lady candidates is not valid and therefore, the College can at the most stipulate that preference would be given to lady candidates. The Assistant Registrar has communicated that the College therefore should issue fresh advertisement or appropriate corrigendum. The communication states that it is issued as directed by the Vice Chancellor of Nagpur University. It is not in dispute that affairs of Petitioner No. 2 College and of Respondent No. 1 are governed by the Maharashtra Universities Act, 1994; hereinafter referred to as Universities Act.

2. It is not in dispute that the Petitioner No. 1 is a society registered under the Societies Registration Act and a Public Trust under the Bombay Public Trust Act established for the purpose of fostering higher education for women in State of Maharashtra by maintaining Colleges. The Petitioner No. 2 College is affiliated to the Respondent No. 1 Nagpur University and it is getting grants from the Government for payment of salary to its teaching and non teaching staff. The Petitioner No. 2 College imparts education only to female students and is only a women College. It is the stand of the Petitioners that initially some male candidates were appointed for teaching purposes when female candidates were either not found suitable or not duly qualified for certain subjects. The Petitioners state that for last more than one decade they have not appointed a single male candidate in teaching Page 1566 department. It is stated that though rarely and in exceptional circumstances male candidates were appointed, the Petitioners realized that it was not feasible and proper to appoint male candidates in teaching department when the College was imparting education only to girls and women. It is stated that looking to the object of Petitioners to educate women and to make them self-sufficient, the Petitioners felt it appropriate to appoint female candidates only for teaching as also non teaching purposes and this has become possible because women have by now specialised in all most all the fields and subjects.

3. The Petitioners state that on 1.3.1999 interviews were held for post of Lecturer in department of Architecture, for which 3 candidates had applied. Two candidates were female while one was male, and the Education committee unanimously selected a lady by name Mrs. Vaishali R. Pedram for V.J./N.T. Category. For S.C. Category post, another lady i.e. Ms. A. Meshram was unanimously selected. However, the unanimous selection was by nominee of Chairman, Local Managing Committee, Principal of College and Head of Department. The subject expert and nominee of Vice Chancellor sent by Respondent No. 1 gave their dissenting note and recorded that even male candidates were made to apply and male candidate Shri Shambharkar was more suitable.

4. It is in this background, the Petitioners state that because of such attitude, though the advertisement specified that preference would be given to female candidates, it became difficult for the nominee of the Chairman of Local Managing Committee, Principal of College and Head of the Department to select a lady candidate for imparting education in the College. The University nominees were always desirous to select male candidate on the post, observing that they were more suitable and they always ignored the fact that the College was imparting education only to women. There are about 4500 girls students taking education in the Petitioner No. 2 College and the Petitioners state that as it was becoming difficult to appoint lady candidates only, on 27.08.1999 the Council of Management of Petitioner No. 1 Society resolved to recruit only women candidates while effecting regular appointments to teaching post as well as post of Principal. On 29.03.2003 the Petitioners published advertisement for full time posts of lecturer in different subjects in Senior College in local newspapers and invited application only from women candidates. As Vice Chancellor's nominee and Subject expert, approved by the Vice Chancellor form part of selection committee, the Petitioner No. 2 College through its Principal wrote to the Respondent No. 1 University on 27.03.2003 for sending their names. The Respondent No. 1 did not pay any heed to the said request and by communication informed the Petitioners that certain complaints were received against the College because of the said advertisement. Dr. Babasaheb Ambedkar Students Association and Dr. Babasaheb Ambedkar Teachers Association were stated to have raised objections and on 07.04.2003 explanation of Petitioner No. 2 was called. On 10.04.2003, the Petitioner No. 2 College through its Principal submitted its explanation and justified its action and requested the Respondent No. 1 University to nominate subject expert and nominee of Vice Chancellor, as the meeting of selection committee Page 1567 for holding interviews needed to be held before closing of academic session 2002-03 i.e. before 10.05.2003. But as there was no response, the Petitioner No. 2 College forwarded reminder on 19.04.2003 and thereafter instead of forwarding these nominees, the Respondent No. 1 sent a communication dated 23.04.2003 as already mentioned above.

5. Vide the impugned communication, the action of management in reserving all posts only for lady candidates was found to be contrary to government directives and the communication also mentioned that the State Government prescribed horizontal reservation of 30% maximum for women and though the Petitioner No. 2 College is Women'sCollege, reservation of all posts exclusively for lady candidate was not legal. The Petitioners were therefore asked to mention in the advertisement only preference to lady candidates and they were called upon to issue either fresh advertisement or necessary corrigendum on these lines. The Petitioners state that after receipt of this communication on 24.04.2003, they made their best efforts to persuade the Respondent No. 1 University to change its stand and they also pointed out that there was also a direction issued by the Respondent nos. 1 and 3 to fill up posts reserved for backward classes before 30.06.2003 with warning that in default grant-in-aid payable to the Petitioner No. 2 College would not be released. It is in this background, the Petitioners have approached this Court.

6. We have accordingly heard Advocate Shri Sunil Manohar, for Petitioners, Advocate Shri B.G. Kulkarni, for Respondent No. 1 and learned A.G.P. Mrs. Wandile, for Respondent nos. 2 and 3. Respondent No. 1 University has filed preliminary submissions on record.

7. Advocate Shri Manohar, has contended that the approach of Respondent No. 1 Nagpur University is contrary to the scheme of the Constitution of India and there is no violation of Articles 14, 15 & 16 of the Constitution in the matter. He states that Article 15[3] permits recruitment only through women in above circumstances. However, he states that Petitioner is not State within the meaning of Article 12 of the Constitution of India and therefore mandate of Articles 15, 16 and 14 will not be applicable to it. He states that in such circumstances, reasonableness of the decision of the Management will have to be tested only by applying Wednesbury's Principle and there cannot be any judicial review of the said decision, if some fundamental right is not being violated. He contends that Section 7[1] of the Universities Act recognizes Colleges exclusively for women and also employment in such Colleges for women. According to him in these circumstances, when the management has prescribed a condition of aspirant being women only, it becomes a condition of eligibility and therefore, there is no question of applying any roaster or reservation in such facts. He states that Article 15[3] does not prohibit reservation in excess of 30%. He urges that the communication impugned in the writ Petition does not have any statutory sanction and the Respondent No. 1 University could not have issued it at all. He invites attention to the provisions of Section 14[8] read with Section 81 of the Universities Act to contend that it is only in absence of Statute or Ordinance or Regulations that a direction can be issued by the Vice Chancellor. He states that the impugned communication is not a Page 1568 direction at all, and he further points out from the provisions of Section 51 as also Section 14[8] that if it is presumed to be a direction, further procedure in that respect as contemplated by the Universities Act has not been followed. He argues that in the judgment reported at (Union of India v. K.P. Prabhakaran), 100% reservation for women by Railway Department of Union of India has not been found to be violative of Article 15 and it is found to be supported by Article 15[3]. He further relies upon the judgment reported at (Vijaylakshmi v. Punjab University and Ors.), to contend that such reservation by Petitioners is supported by the said ruling. He further points out that constitution bench of Hon'ble Apex Court in -E. V. Chinnaiah v. State of Andhra Pradesh-has quoted this judgment in the case of Vijaylakshmi v. Punjab University (supra), with approval. He has also advanced further arguments in the light of these judgments, but we find it appropriate to refer to those arguments while considering these rulings.

8. Advocate Shri Kulkarni for Respondent No. 1 and learned A.G.P. Mrs. Wandile , for Respondent nos. 2 and 3 have both contended that the provisions of the Constitution of India as also the Universities Act, do not permit Petitioners to provide 100% reservation for women. They state that male candidates as also female candidates are competent and qualified as per the Constitution and in such circumstances, teaching as also non-teaching posts must be filled in from open category i.e. from male as also female candidates and there cannot be any eligibility condition, as has been sought to be termed or placed by Petitioners. Advocate Shri Kulkarni, states that when the Constitution has made provision of 30% horizontal reservation for women, the act of Petitioners is indirectly resulting in denial of entry to male candidates only on account of their sex and this is violative of Article 15 and 16 of the Constitution of India. He argues that there cannot be any rationale in reserving of such posts only for women and classification on the basis of sex does not have any nexus with the object sought to be achieved thereby and hence, it is also violative of Article 14 of the Constitution of India.

9. Learned A.G.P. Mrs. Wandile, has invited attention to the government resolutions dated 08.12.1995 and 01.08.1997 (produced before us by the Nagpur University at stage of arguments) by which the reservation of 30% for women has been made available by the State Government for any Nonagricultural Universities and Colleges affiliated thereto. Both the learned Counsel for Respondents states that this position is not in dispute and the character of Petitioner No. 2 College as an institution admitting only girls students or women students has been preserved by Page 1569 permitting the Petitioners to make provision for preference to lady candidates. According to them, if male and female aspirants are situated equally, the lady candidates may be preferred and in that event there cannot be any breach of any constitutional or legal provision. Attention has been invited to provisions of Section 81 of the Universities Act to point out that such a reservation cannot be permitted in view of the provisions of Section 7 and the communication issued by the Respondent No. 1 upon orders from Vice Chancellor is binding upon the Petitioners. Attention is also invited to the provisions of Section 14[8] of the Universities Act read with Section 28[4] to point out that said communication is only asking the Petitioners to abide by government directions, which are binding upon them as Petitioners are receiving grant-in-aid from State Government. Advocate Shri Kulkarni, argues that the Vice Chancellor is Chief Executive Officer and in that capacity he has taken cognizance of grievance placed before him and passed appropriate orders under Section 14[1] of the Universities Act. He also points out that the Hon'ble Apex Court has in judgment reported at --S. Renuka and Ors. v. State of A.P. and Anr.-held that such reservation only in favour of women is unconstitutional. He further states that judgment of Hon'ble Apex Court in Vijaylakshmi v. Punjab University [supra], is delivered in totally different facts and circumstances, and therefore the same is not binding on this Court, in the present facts.

10. The Government Resolutions dated 8.12.1995 and 01.08.1997 produced before us during arguments by the Respondent No. 1. Nagpur University have not been disputed in any way by the Petitioners. The government has in resolution dated 08.12.1995 pointed out that on 17.02.1995 it had declared policy of reservation of 30% posts for women in Nonagricultural Universities like the Respondent No. 1 and Colleges affiliated to those universities. On 15.09.1995, the Government has pointed out that reservation for women has been made applicable from 01.04.1994 and has also provided 200 point roaster for the same. On 1.8.1997 the Government has stated that it was considering framing of a comprehensive scheme regulating 30% reservation for women and after consideration, after superseding all its earlier decisions it has declared that 30% reservation should be provided in Government, Semi- Government establishments as also in Institutions receiving grant-in-aid from State Government. The Petitioners have contended that they are following all these directions while effecting recruitment or promotion and are following roaster by reserving posts for Scheduled Caste, Scheduled Tribes and other Reserved categories. Their argument is that the above decision prescribes only minimum reservation which has to be provided for women and if reservation in excess of 30% Page 1570 is made available, then it is not violative of these policy decisions. It is further contended that infact as the Petitioners are providing education only to women/girls, the management has found it essential to restrict the employment with it only to women and as such this is not the case in which the issue of reservation is involved. It is contended that indirectly the job eligibility itself is in dispute. The provisions of Section 7 of Maharashtra Universities Act, 1994 reads as under:

7. University open to all irrespective of sex, creed, class, caste, place of birth, religion or opinion.

(1) No citizen of India shall be excluded from any office of the University or from membership of any of its authorities, bodies or committees, or from appointment to any post, or from admission to any degree, diploma, certificate or other academic distinction or course of study on the ground only on sex, race, creed, class, caste, place of birth, religious belief or profession, or political or other opinion; Provided that, the university may maintain, accredit or recognise any College or institution exclusively for women, or reserved for women.

(2) The university shall adopt government policy and orders issued, from time to time, in regard to the reservation for Scheduled Castes, Scheduled Tribes, {Denotified Tribes (Vimukta Jatis), Nomadic Tribes] and Other Backward Classes for appointment to different posts of teachers and non-teaching officers and employees and for the purpose of admission of students in the affiliated or conducted Colleges, university departments, university institutions or recognized institutions.

(3) The university shall adopt the general policy of the State Government in regard to the welfare of various categories of weaker sections of the society and minorities as directed by the State Government from time to time.

11. The parties have debated about scope of proviso to Sub-section [1] of Section 7. According to Respondents, the said proviso contemplates College or Institution only for teaching girls students and it does not permit appointment only of women teaching or non-teaching staff. According to the Petitioners the proviso carves out exception to Section 7[1] and hence it covers cases of appointments also to any post. Perusal of substantive part i.e. Section 7[1], clearly shows that it speaks not only of admissions but of appointment to any post also. The said sub-section also mandates that University shall not exclude any citizen from its office or from membership of any its authorities, bodies, committees or from appointment to any post etc. only on the ground of sex. Thus aspect of admission to any course conducted by University or College dealt therein is applicable to students while issue of appointment is in relation to employment with these bodies for discharging teaching & non teaching jobs. Said Subsection further through its proviso states that the university can maintain, accredit or recognize any College or institution exclusively for women or reserved for women. In this background when Sub-section [2] is looked into, the government policy and orders in relation to reservation for Scheduled Caste, Page 1571 Scheduled Tribes etc., for appointment to different post of teachers and non-teaching officers and for admission in affiliated or conducted Colleges are required to be adopted by the University. Sub-section [3] permits University to adopt general policy of State Government, which is in relation to welfare of weaker section of society and minorities. Thus policy of reservation for women can be adopted by university because of Section 7[3], as women are legally treated as weaker section of the society. Sub-section [2] prescribing reservation on the basis of caste/tribe is not applicable in the facts of the present case. In this light, when Section 7[1] & its proviso is looked into it is indisputable that it applies to recruitment to various teaching & non-teaching posts in Colleges and the bar on exclusion on the basis of sex stipulated therein is definitely in relation to Colleges not exclusively for women or reserved for women. The provision for exclusion of other sex in any College or institution exclusively for women or reserved for women is contemplated and accepted by the proviso to Sub-section [1]. The proviso is to entire sub-section [1] and hence, it qualifies not only admissions but also appointment to any post in such College or institution. The argument that it speaks of only admission of students is totally misconceived. The phrase. College or institution exclusively for women or reserved for women permits management to have women/ladies College i.e. College only with ladies staff and for women or girls students.

12. It is to be pointed out that no resolution or other instructions of University adopting the Government Policy and orders under Section 7[2] or Section 7[3] has been pointed out either by the Respondent No. 1 University or the Respondent No. 2 State of Maharashtra. Section 81[1] to which our attention has been invited occurs in Chapter. X, which deals with permission, affiliation and recognition. Section 81 itself prescribes condition for affiliation and recognition. Section 81[1][a] requires the management applying for affiliation or recognition or College which has been granted affiliation or recognition to submit undertaking that the provisions of University Act, Statute, Ordinance and Regulations thereunder, and the Standing Orders and direction of University shall be observed. Sub-clause [f] states that strength and qualification of teaching and non-teaching staff, their emoluments and terms and conditions of services have to be as prescribed by the University. Sub-clause [h] requires the Petitioner No. 2 to abide by the directions and orders issued by the Chancellor or Vice Chancellor and other Officers of the University, in exercise of powers conferred on them under the provision of University Act, Statute, Ordinance and Regulations. Section 91[1] of the Act contemplates withdrawal of affiliation or recognition, if such College fails to comply with the conditions of affiliation or recognition. The communication dated 23.04.2003 impugned in the present Writ Petition is admittedly not for breach of the provisions of University Act, or any Statute, Ordinance and Regulation framed thereunder, or of Standing Orders and Directions. Section 14 deals with powers and duties of Vice Chancellor as Principal Academic and Executive Officer of the University. Section 14[8], expressly states that where any matter required to be regulated by the Statute, Ordinance or Regulation, is not so regulated, as no Statute, Ordinance or Regulations are made in that behalf, the Vice Chancellor can for the time being regulate such matters by issuing such directions as he thinks proper. However, then Page 1572 at the earliest opportunity the Vice Chancellor has to place them before the Management Council or other Authority or Body concerned for approval. It also enables the Vice Chancellor to place before such Authority or Body the draft of the Statute, Ordinance or Regulation as the case may be required to be made in that behalf.

13. Chapter V deals with Statutes, Ordinances and Regulations and Section 51 deals with the Statutes. Section 51[8] prescribed for qualification, recruitment, workload, code of conduct, conditions of service etc., of teaching and nonteaching staff. While Sub-section [13] prescribes for provisions of reservation for Scheduled Caste/Scheduled Tribes and Other backward classes, in accordance with the policy of the State Government. Section 51 states that these aspects are to be regulated by the Statute. Section 28 which deals with the powers and duties of Management Council, states vide its Clause [u] that Management Council may prescribe Statute providing for procedure to be followed for appointment of teachers, offices and other employees in the Colleges affiliated to university, terms and conditions of their services. No such statute is pointed out to us by the Respondent No. 1. As already observed above, the Respondents are only relying upon the government resolutions dated 08.12.1995,15.09.1995 and 01.08.1997, by which the Government has prescribed 30% reservation for women in a institution receiving grant-in-aid from State Government. However, it is to be noted that the State Government has not taken any action against the Petitioners in the matter and impugned communication is issued only by Respondent No. 1. Faced with this situation, the learned Counsel appearing for the Respondent No. 1 has tried to contend that as Principal Executive Officer of University, Vice Chancellor has tried to implement the provisions of various government resolution in this respect. But when Section 7[2] and 7[3] itself requires University to adopt said government policy, it is apparent that the same has not been adopted. In any case the proviso to Section 7[1] enables the University to accredit or recognize any College or institution, exclusively for women or reserved for women. The Petitioner No. 2 College is affiliated to and recognised by Respondent No. 1 as exclusively for women or reserved for women. In such circumstances, when Section 7[1] itself permits the University to maintain accredit and recognise Petitioner No. 2 College, one fails to understand how in the matter of appointment to any post in it, university can insist for compliance with substantive part of Section 7[1] which does not bar such maintained or accredited or recognised affiliated College from excluding any candidate from appointment on the ground only of sex. It is apparent that in view of the proviso to Section 7[1], there is no scope for said bar being invoked against the Petitioners by the University.

14. It is to be noted that in the impugned communication, the Assistant Registrar of the Nagpur University has only mentioned the government decision which prescribes maximum 30% of reservation for women. The next sentence thereafter is, reservation of all posts exclusively for lady candidate is not legal, even if the College is women's College. It is apparent that above provisions of Section 7 are lost sight of by the Respondent No. 1 while issuing this communication. It is to be noted that during arguments, the propriety or reasonableness of the decision of Petitioners to grant Page 1573 employment only to women has not been questioned by the Respondents. As Petitioners are established only to encourage woman education and admissions to all courses with it are only to female students, employing only female teaching or non teaching staff with it can neither be questioned as erroneous or arbitrary. Even if the impugned communication is held to a direction, further action upon it as contemplated by Section 14[8] has not been taken though matter is pending in court. In the circumstances, we find that said communication dated 23.04.2003 is contrary to the provisions of Universities Act and in any case its issuance is not contemplated by any provision of Universities Act.

15. The Petitioners have relied upon the judgment in the case of Vijaylakshmi v. Punjab University (supra). In the said judgment, the Hon'ble Apex Court has considered the validity of Rule 5,8, and 10 of Punjab University Calendar Volume-III. As per Rule 5, principal of a women College has to be a lady and the Rule further states that it would not apply to women's College whose man or women principal has already been approved. It states that after their retirement, a qualified lady principal must be appointed. Rule 8, states that as far as possible, lady candidate shall be appointed as teachers and in case a qualified lady teacher in particular subject is not available, the management may appoint male teacher with prior approval of the Vice Chancellor. It further puts a condition that such male teacher shall not be confirmed by the Management in his post, and he shall be replaced as soon as the suitable and qualified lady teacher becomes available. Rule 10 then prescribes that hostel of such College shall be under the charge of whole time women superintendent and there shall also be a part time or whole time women medical officer. These provisions were held to be violative of Articles 15 and 16, by the Hon'ble Punjab and Haryana High Court, and the said judgment was challenged before the Hon'ble Apex Court.

16. Perusal of this judgment of Hon'ble Apex Court shows that in paragraph No. 4, while mentioning the established propositions of law interpreting Articles 14 to 16, the Hon'ble Apex Court has observed that sex is a sound basis for classification and Article 15[3] categorically empowers the State Government to make special provision for women and children. It is further observed that Articles 14, 15 and 16 are to be read together. In paragraph No. 5 the Hon'ble Apex Court has made the following observations, which are important:

5. In the light of the aforesaid principles, on the concept of equality enshrined in the Constitution, it can be stated that there could be classification between male and female for certain posts. Such classification cannot be said to be arbitrary or unjustified. If separate colleges or schools for girls are justifiable, rules providing appointment of lady principal or teacher would also be justified. The object sought to be achieved is a precautionary, preventive and protective measure based on public morals and particularly in view of the young age of the girl students to be taught. One may believe in absolute freedom, Page 1574 one may not believe in such freedom but in such case when a policy decision is taken by the State and rules are framed accordingly, it cannot be termed to be arbitrary or unjustified. Hence, it would be difficult to hold that rules empowering the authority to appoint only a lady Principal or a lady teacher or a lady doctor or a woman superintendent are violative of Articles 14 or 16 of the Constitution.

17. In paragraph No. 10, the Hon'ble Apex Court has also stated that there can be no discrimination in general on the ground of sex and Constitution itself has provided for special provision in the case of women and children. The Hon'ble Apex Court has reproduced the observations of this High Court in the case of Dattatraya Motiram More v. State of Bombay , to hold that Article 15[1] and Article 15[3] are to be read jointly and the State can discriminate in favour of women and against men and it may not discriminate in favour of men and against women. The judgment of Gujarat High Court in the case of B.R. Acharaya and Anr. v. State of Gujarat 1988 Lab. I.C. 1465, which considered the issue of appointment of lady superintendent for institution where destitute women, unmarried mothers were kept are also reproduced in its judgment by Hon.ble Apex Court. The learned Single Judge of Gujarat High Court in judgment observed that Government cannot be compelled to appoint male officers to head such institution, if it does not consider it advisable. The judgment of Hon'ble Apex Court in the case of Union of India v. K.P. Prabhakaran is also considered. In the said judgment, the Railway Administration reserved post of enquiry-cum-reservation clerks at Madras, Bombay, Calcutta and Delhi to be manned only by women. Madras High Court quashed the said decision holding it to be violative of Article 14 and 16[1] and [2] of the Constitution. The argument of Railways, that its decision was protected by Article 15[3] was rejected by the High Court, holding that it cannot be read as proviso or exception from Articles 16[1] and [2]. In this judgment after referring to its earlier judgment in paragraph No. 2, the Hon'ble Apex Court has held that Articles 15[1] and 15[3] go together and protection of Article 15[3] would be applicable to employment in a State falling under Articles 16[1] and [2]. Therefore the decision of the Madras High Court was set aside. Hence in Vijaylakshmi's Case (supra), after noticing all these judgments, the Hon'ble Apex Court has found that under Article 15[3] job opportunities for women can be created and said powers is not whittled down by Article 16. The earlier judgment of Hon'ble Apex Court in the case of Government of Andhra Pradesh v. P.B. Vijaykumar ; and in the case of Toguru Sudhakar Reddy and Ors. v. Government of Andhra Pradesh and Ors. 1993 Supp. 4 SCC 439 are quoted with Page 1575 approval. The Hon'ble Apex Court therefore, allowed the appeal filed by Vijaylakshmi by holding that Rules 5 and 8 of Punjab University Calendar Volume III, are not violative of Articles 15 and 16. The judgment of Punjab and Haryana High Court striking down Rules 5, 8 and 10 as violative of Articles 14 and 16, has been set aside.

18. This judgment in case of Vijaylakshmi (supra), is cited with approval by the Constitutional Bench in the case of E. V. Chinnaiah v. State of Andhra Pradesh (supra), in paragraph No. 110 while considering issue whether (1) the State Legislature had no competence to make any law in regard to bifurcation of the Presidential List of Scheduled Castes prepared under Article 341(1) of the Constitution, therefore the impugned legislation i.e. Andhra Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000 (A.P. Act 20 of 2000) being one solely meant for sub-dividing or sub-grouping the castes enumerated in the Presidential List, the same suffered from lack of legislative competence and (2) once the castes are put in the Presidential List, the said castes become one homogeneous class for all purposes under the Constitution so that there could be no further division of the said castes in the Scheduled List by any Act of the State Legislature.

19. In the case of S. Renuka and Ors. v. State of A.P. and Anr. (supra), the Hon'ble Apex Court has considered the propriety of reserving of 10 vacancies in the cadre of District and Sessions Judge, Grade. II for women. The provisions of relevant Rules i.e. A.P. State and Subordinate Services Rules, did not permit such reservation but the Full Court of High Court reserved 10 posts for women because the incumbents were to work as Judges of Family Courts and Mahila Courts. The observations of Hon'ble Apex Court in paragraph nos. 6 and 8 show that the Hon'ble Apex Court has considered the fact that these 10 posts were not to be ex-cadre posts, but the posts in cadre of District and Sessions Judge, Grade-II and Rules governing the same did not allow 100% reservation for women. The vacancies were for judges of Family Courts and Mahila Courts which could be manned by District and Sessions Judge, Grade II. The State Govt. had thus created 10 posts of District and Sessions Judge, Grade II. The advertisement was also for appointment to the posts of District and Sessions Judge, Grade II. The appointments were not to any ex-cadre posts but to posts in the cadre of District and Sessions Judge, Grade II. It is, in these facts also observed by Hon.ble Apex Court that these were not separate posts for judges of Family Courts and Mahila Courts, and such reservation would tantamount to creation of ex-cadre post which was not sanctioned by the Government. The government had sanctioned 10 posts of District and Sessions Judge, Grade-II in addition to the existing cadre strength, exclusively for women candidates to be recruited by direct recruitment. It is Page 1576 therefore clear that the posts were sanctioned under a particular cadre and therefore, were subject to rules applicable to main cadre. It is also clear that had the 10 posts in question there been created as ex-cadre posts, the answer may have been different.

20. In view of the discussion, we find that the eligibility condition of being women imposed by the petitioners for employees being recruited in Petitioner No. 2 College cannot be held to be violative of Article 14 or Article 16 of the Constitution of India. Such a decision which has got nexus with the object with which the Petitioner No. 2 College is established, cannot be and has not been labeled as arbitrary. It also cannot be forgotten that the Petitioner No. 1 is a public trust and Petitioner No. 2 is College being run by it, and hence are private entities. Though they receive grant-in-aid from State Government, the Petitioners are entitled to manage their own affairs as per law and disputed decision is conducive to attaining their object. In the circumstances, we are not in a position to uphold the impugned communication dated 23.04.2003. The same is accordingly quashed and set aside.

21. Writ Petition is accordingly allowed. Rule is made absolute in the aforesaid terms. However, in the circumstances of the case, there shall be no order as to costs.