Gujarat High Court
Manisha Bhaskarbhai Trivedi vs State Of Gujarat on 11 January, 2021
Bench: Sangeeta K. Vishen
C/SCA/19090/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19090 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 19090 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 3020 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 3020 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20253 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 20253 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 20693 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MANISHA BHASKARBHAI TRIVEDI & 4 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1,2,3,4,5
MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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C/SCA/19090/2017 JUDGMENT
CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 11/01/2021
ORAL JUDGMENT
1. The issues involved in all these petitions are similar. They are
heard together and are being disposed of by this common judgment.
The facts as is discernible from the record of Special Civil Application
No.19090 of 2017 are as under.
2. The petitioners have been serving as Unarmed Constable, Head
Constable or Assistant Sub-Inspector and all of them have rendered
more than 15 years of service. The petitioners have challenged the
action of the respondent authorities in not providing women reservation
in the recruitment to the post of Police Sub-Inspector (Unarmed) Class-
III and thereby denying legitimate right of the petitioners for being
appointed against such posts. The petitioners in one of the petitions
have also challenged the action of the respondent authorities of not
providing separate category-wise qualifying standard for women
candidates despite there being different criteria provided for male and
female candidates for such recruitment. The petitioners have, inter alia,
prayed for following reliefs:
"6. The petitioner respectfully pray that, on the basis of the facts
and circumstances as mentioned hereinabove and which may be
urged at the time of hearing, the Hon'ble Court may be pleased to
issue a writ of mandamus or any other appropriate writ, order or
direction to the respondent authorities and may be pleased to:-
(A) declare and hold that, the action of the respondent authorities
of not providing women reservation in the recruitment to the post of
Police Sub-Inspector (Unarmed), Class-III, pursuant to advertisement
No.61/2015-16 is illegal, arbitrary, discriminatory, unconstitutional and
violative of rules thereof, and
(B) declare and hold that the present petitioners are eligible and
entitled to be considered for appointment to the post of Police Sub-
Inspector (Unarmed), Class-III and further be pleased to direct the
respondent authorities to consider the present petitioners for
appointment to the post of Police Sub-Inspector (Unarmed), Class-III,
and
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... ... ..."
3. Tersely stated are the facts.
3.1 An Advertisement No.61/2015-16 came to be published on
3.12.2015 inviting applications from the eligible candidates, serving as
Assistant Sub-Inspector (Unarmed) or Head Constable (Unarmed) or
Police Constable (Unarmed) and have rendered total 15 years of
service, for appointment by way of a Special Competitive Examination
to the post of Police Sub-Inspector (Unarmed), Class-III. By said
advertisement, total 260 posts were advertised and out of which 202
seats were reserved for general / open category, 22 for scheduled
castes and 34 for scheduled tribes. According to the petitioners,
subsequently, modified advertisement was published by the respondent
No.3 - Gujarat Subordinate Services Selection Board (hereinafter
referred to as 'the Selection Board') on 7.12.2016 whereby total 403
posts were advertised, in view of the judgment of this Court. On both
the occasions, no separate category-wise reservation was provided for
women.
3.2 As per the recruitment rules and advertisement, Special
Competitive Examination was to be conducted in three stages viz. (i)
physical test; (ii) objective type written test; and (iii) subjective type
written test. Candidates participating in this examination were required
to obtain minimum qualifying marks in each stage for male and female
candidates and separate physical standard was provided for being
eligible for participation. Since all the present petitioners were fulfilling
the eligibility criteria prescribed in the rules and the advertisement, they
applied and had participated in the selection process. The grievance
raised is that though there is a policy for providing 33% women
reservation in employment, the same is not provided in the present
advertisement. In absence of the provision for women reservation, the
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petitioners and other similarly situated female candidates approached
the respondent Nos.1 and 2 authorities requesting them to provide
reservation for women as per the Rules, however, the request was not
acceded to by the authorities except oral assurance that it will be taken
care of. The petitioners accepting the words of the respondent
authorities thought it fit to wait and participated in the selection process.
The petitioners participated in the selection process unaware of the fact
that no separate qualifying standard for women candidate was provided.
3.3 Prior to the current examination, advertisement was published in
the year 2008-09 for the purpose of recruitment by mode-2, i.e. Special
Competitive Examination where category-wise posts were mentioned
and out of which, certain seats were reserved for women candidates.
Pursuant to the said advertisement, examination was conducted and
the women candidates who had participated in the selection process
were appointed against such reserved post meant for women.
However, in the current recruitment, the respondent authorities have not
provided for women reservation.
3.4 On 6.10.2017, select list was published by the Selection Board,
whereby 376 candidates were included in the select list as against 403
posts advertised. One more list was published on the same day of such
candidates, who were qualified, but not included in the select list. The
names of the present petitioners were reflected in the list of candidates
who were qualified, but not selected, probably, on the ground that such
candidates were unable to secure minimum qualifying marks prescribed
by the Selection Board.
3.5 While referring to the Rules governing the recruitment and
examination, it is stated that the State Government for the purpose of
recruitment to the post of Police Sub-Inspector (Unarmed), Class-III has
framed the Police Sub-Inspector (Unarmed), Class-III Recruitment
C/SCA/19090/2017 JUDGMENT
Rules of 2008 (hereinafter referred to as 'the Recruitment Rules of
2008') as amended from time to time. The Recruitment Rules of 2008
provides for three modes of appointment to the post of Police Sub-
Inspector (Unarmed), Class-III viz. (i) by promotion; (ii) by Special
Competitive Examination; and (iii) by direct selection. For the purpose
of mode-2, i.e. recruitment by Special Competitive Examination, the
State Government, in its Home Department, has framed the rules called
The Gujarat Police Sub-Inspector (Unarmed Branch) Special
Competitive Examination Rules, 2004 and amended vide notification
dated 10.9.2014 (hereinafter referred to as 'the Competitive
Examination Rules of 2004').
3.6 So far as women reservation is concerned, the State Government
has framed the Gujarat Civil Services (Reservation of Post for Women)
Rules, 1997 (hereinafter referred to as 'the Reservation of Post for
Women Rules, 1997'), reserving 20% of total post for recruitment in
favour of women which now is raised to 33%. In view of this rules, it is
stated that while holding the Special Competitive Examination, it was
and is obligatory on the part of the respondent authorities to keep post
reserved for women candidates, however, the respondent authorities
have not adhered to the said statutory obligation.
3.7 During the pendency of the writ petitions, an advertisement
No.151/2018-19 came to be published for the post of Police Sub-
Inspector (Unarmed), Class-III which led to the filing of the civil
applications in all the captioned writ petitions, inter alia, praying for the
direction to the respondent authorities to keep certain posts vacant,
subject to the outcome of the writ petitions. In the civil applications, the
prayer for taking up the main writ petitions for final disposal is also
sought for.
3.8 The petitioners, being aggrieved by the non-prescription of
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women reservation in the recruitment process, have preferred the
captioned writ petitions with the aforementioned prayers.
4. As against this, respondent No.2 has filed his counter, inter alia,
stating and gist whereof is as under.
4.1 That the criteria of prescribing women reservation is only and
solely in connection with mode-3, i.e. for recruitment by direct selection
for the post of Police Sub-Inspector (Unarmed), Class-III and the
reservation of women does not apply to mode-1 and mode-2 selection /
appointment which is by way of promotion of a person on proved merits
and efficiency amongst others and by promotion of a person on the
basis of merit rank obtained in the Special Competitive Examination,
respectively. Therefore, no separate reservation for women is
prescribed.
4.2 That in connection with the ambiguity prevailing as regards
prescription and non-prescription of women reservation with respect to
mode-2, at one point of time, the competent authority vide
communication dated 27.5.2013, has sought for the guidance of the
State Government and the Home Department, in turn, vide its
communication dated 29.7.2013, clarified that the selection by virtue of
mode-2, i.e. by promotion of a person on the basis of merit rank
obtained in the Special Competitive Examination, is a special promotion
and cannot be construed to be a direct selection. Mode-2 promotion is
to be regarded as a special promotion and is not akin to direct selection.
That the communication dated 29.7.2013 specifically provides that the
selection through mode-2 cannot be termed as a direct selection and
the same is promotion by departmental examination and thus, there
cannot be any prescription for women reservation.
4.3 That the advertisement was issued and if the petitioners had any
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grievance, the petitioners ought to have approached the authorities with
such grievance at that point of time, however, the petitioners did not
raise any grievance. Having not raised any grievance at the relevant
point of time, such grievance is belated one and does not deserve to be
entertained. The petitioners appeared in the examination without raising
any grievance and having not been selected cannot now be permitted to
turn around and challenge the recruitment in view of the settled
proposition of law laid down by the Apex Court. The petitioners have no
locus standi to prefer the present petition at this juncture inasmuch as, it
is only after the petitioners could not secure the place in the selection
list, that the petitions have been filed and the same is nothing but an
afterthought attempt. On this ground alone, the petitions deserve to be
dismissed.
4.4 That the petitions suffer from the vice of non-joinder of necessary
parties considering the fact that if the petitions were to be allowed, the
outcome will directly affect the rights and interest of the candidates who
have been appointed to the post of Police Sub-Inspector (Unarmed),
Class-III. On this count also, the petitions deserve to be dismissed.
5. The petitioners in response to the reply have filed the respective
rejoinders, inter alia, stating that the respondent authorities have taken
care of the rights and interest of women by exercising powers available
under Article 15(3) of the Constitution of India and which was so taken
care of in the year 2008 and it is only in the recruitment of 2015-16, the
same has not been done. It is stated that as per the stand of respondent
No.2, if mode-2 and 3 are modes of promotion, then roster point is
required to be maintained and no reservation with certain relaxation in
favour of reserved category candidates could have been provided.
Thus, the action of the respondent authorities of not providing women
reservation in mode-2 selection process, is illegal, arbitrary,
discriminatory and violative of Article 15(3) of the Constitution of India.
C/SCA/19090/2017 JUDGMENT
Thus, it is urged that considering the totallity of the facts and
circumstances of the case, reply filed by the respondents may not be
accepted and the petitions be allowed.
6. Mr.Gautam Joshi, learned senior advocate appearing with
Ms.Harshal Pandya, learned advocate for the petitioners, while inviting
the attention of this Court to the advertisement No.61/2015-16 as well
as the amended advertisement No.61/2015-16/B dated 7.12.2016,
submitted that the advertisements do not provide for horizontal
reservation, i.e. reservation for women. Rule 2 of the Recruitment Rules
of 2008 provides for three modes of recruitment viz. (i) by promotion of
a person of proved merit and efficiency; (ii) by promotion of a person on
the basis of merit rank obtained in the Special Competitive Examination;
and (iii) by direct selection. Sub-rule (2) of Rule 2 of Recruitment Rules
of 2008 provides for mode of recruitment by taking a Special
Competitive Examination and the same cannot be construed as
recruitment by promotion but a direct recruitment and therefore, there
ought to have been reservation for women candidates.
6.1 Adverting to the communication dated 29.7.2013 addressed by
Section Officer, Home Department, responding to the letter dated
27.5.2013, it is submitted that it is clarified that considering the
provisions of the Recruitment Rules of 2008, the competitive
examination through mode-2 is a special promotion and is not a
recruitment by direct selection. It also states of treating the mode-2
examination as a special promotion and that as per the Government
Resolution dated 22.4.1983 of the General Administration Department,
roster may be certified, earmarking the reserved post and taking steps
for filling up the post. It is contended that the term reservation used by
the section officer would include horizontal reservation as well except if
the respondents are in a position to justify that there is sufficient
representation of the women in the post of Police Sub-Inspector
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(Unarmed).
6.2 While inviting the attention to the Government Resolution dated
17.5.1997 of the General Administration Department of the State
Government, issued pursuant to the directions of the Apex Court in the
case of R.K. Sabharwal vs. State of Punjab, reported in (1995) 2 SCC
745, it is submitted that the resolution makes the provision for
reservation and once they accept that the reservation is provided, it
shall include the horizontal reservation as well. Further, Government
Resolution dated 22.4.1983 is a composite resolution for reservation
with respect to all the categories viz. scheduled caste, scheduled tribes,
socially and educationally backward class and physically handicapped
candidates. In other words, it applies to both the categories of
reservation, i.e. vertical and horizontal. Considering the effect of all the
three Government Resolutions, i.e. one issued in the year 1983 and two
resolutions dated 17.5.1997 and 9.4.1997, clearly suggests that the
reservation would also include the horizontal reservation.
6.3 While referring to paragraphs 9 and 10 of the affidavit-in-reply
filed by In-charge Director General of Police, Gujarat State, it is
submitted that it is a specific case of the respondent that women
reservation is solely attributed to direct selection for the post of Police
Sub-Inspector (Unarmed), Class-III and the same does not apply to the
selection by way of promotion of a person of proved merit and efficiency
from amongst the persons and by promotion of a person on the basis of
merit rank obtained in the Special Competitive Examination. If it is a
specific stand of the respondent that the direct selection cannot be
equated with the promotion by other two modes, then there was no
need of seeking clarification of the department vide communication
dated 27.5.2013. If so was the position, then what could have been the
reason available with the respondent authorities of providing women
reservation in the advertisement No.25/2008 for mode-2 and the said
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prescription, has remained unanswered. It is submitted that, in the
recruitment which had been undertaken in 2008-09, there was a
provision for women reservation, however, for the reasons best known
to the authorities, the horizontal reservation is missing in the current
recruitment. Mr. Joshi, learned senior advocate submitted that the
petitioners are not demanding reservation but it is a case of the
petitioners that the reservation is already provided and the petitioners
are seeking only the implementation of the policy.
6.4 It is next contended that the State Government has accepted the
fact about application of reservation in the matter of promotion if that be
so, there has to be a reservation of 33% for women in each category.
While referring to the communication dated 29.7.2013, it is submitted
that in the first place, the section officer of the home department had no
authority to express any opinion, however, if he has expressed the
opinion, the last two lines of the communication suggest that reservation
has been applied. In the first blush, it appears that it provides for vertical
reservation and not horizontal reservation but, in effect, it provides for
horizontal reservation as well. Thus, it is urged that the present petitions
deserve to be allowed.
7. On the other hand, Mr. Utkarsh Sharma, learned Assistant
Government Pleader appearing on behalf of the respondents
vehemently submitted that the petitions do not deserve to be
entertained on the ground that the petitioners consciously appeared in
the examination without raising any objection and now it is not
permissible to them to turn around and challenge the same since the
petitioners could not get selected. It is also submitted that the petitions
suffer from vice of non-joinder of necessary parties because, the
successful candidates have not been joined and if this Court were to
allow the petitions, the candidates who have been appointed to the post
of Police Sub-Inspector (Unarmed) Class-III and are serving since then,
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will be seriously affected. Thus, the petitions deserve to be dismissed
on this count, as non-joinder of necessary party is fatal to the
entertainment of the writ petitions.
7.1 Adverting to the merits of the petitions, it is submitted that sub-
rule (2) of Rule 2 of the Recruitment Rules of 2008 provides for one of
the modes of promotion by a Special Competitive Examination and the
same is strictly confined to in-service candidates. Sub-rule (2) of Rule 2
of the Rules of 2008 is strictly by way of promotion and cannot be read
to mean the direct recruitment. The State Government in its General
Administration Department has issued a Resolution dated 8.3.1999
providing for the post based reservation and roster as enunciated by the
Apex Court in the case of R.K. Sabharwal vs. State of Punjab (supra).
By virtue of the Government Resolution dated 8.3.1999, the
Government Resolution dated 17.5.1997 has been cancelled. While
inviting attention of this Court to sub-clause (2) of clause 4 of the
Government Resolution dated 8.3.1999, it is submitted that for SEBC
category, reservation is not available in promotions and accordingly, it is
stated that separate roster shall be maintained for direct recruitments
and for promotions.
7.2 Reliance has been placed on the judgment of the Apex Court in
the case of Mukesh Kumar and anr vs. State of Uttarakhand, reported in
2020 SCC OnLine SC 148. It is submitted that the Apex Court was
considering the provisions of the Uttar Pradesh Public Services
(Reservation for Scheduled Castes and Scheduled Tribes and Other
Backward Classes) Act, 1994 and one of the issues was as to whether
the State Government is bound to make reservation in public posts. It is
submitted that it has been held that the State Government is not bound
to make reservation and there is no fundamental right which inheres in
an individual to claim reservation in promotion and no mandamus can
be issued by the court directing the State Government to provide
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reservation. The direction given by the High Court to the State
Government to collect the data regarding adequacy or inadequacy of
the representation of the scheduled castes and scheduled tribes in the
government service and the direction to take a decision whether or not
to provide reservation in promotion, was held to be contrary to the
settled position of law and was accordingly set aside.
7.3 Learned Assistant Government Pleader further submitted that
when mandamus is sought for, it has to be supported by a strong basis
inasmuch as, there has to be a conscious decision of the State
Government and that such decision has not been acted upon or
implemented in its true spirit or that the State Government has acted
contrary to the said decision and it is only under such circumstances
that mandamus can be sought for and can be issued. So far as the
instant case is concerned, there is neither any provision nor rules
providing for women reservation while giving promotion to the next
higher post.
7.4 It is submitted that clearly, the Reservation of Post for Women
Rules, 1997 are framed in exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India, which provides for
reservation with respect to the direct recruitment only and not the
promotion. The Rules do not give any right in favour of the petitioners
so as to seek mandamus and in absence of any provisions for
reservation for women in connection with the promotion, the prayer for
grant of reservation in promotion cannot be accepted. Reference to
Articles 15(3) and 16(4A) has been made to contend that both the
provisions are enabling provisions and they do not mandate or obligate
the State Government for making any provisions for reservation in the
matters of promotion. Article 15(3) being enabling provision, the same
does not give any right in favour of the petitioners to seek mandamus
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for implementing or for making the provisions for reservation. It is
submitted that Article 15(3) being an enabling provision; discretion lies
with the State Government for making available special provisions for
women and children and hence, it cannot be claimed, as a matter of
right, that there has to be a women reservation. While reiterating, it is
submitted that so far as the reservation for women is concerned, the
same is with respect to direct recruitment and that there is no policy of
the State Government providing reservation by way of promotion in
favour of women.
7.5 It is next submitted that if any reservation is provided generally,
that by itself, will not give any right in favour of the petitioners. It is
submitted that even if the provisions of the Government Resolution
dated 22.4.1983 are made applicable, the note below the tabular form,
of item 3 titled 'roster system', excludes the two categories viz. SEBC
and physically handicapped.
7.6 It is further submitted that the Recruitment Rules of 2008 provides
for three modes, viz. by promotion of a person of proved merit and
efficiency; by promotion of a person on the basis of merit rank obtained
in the Special Competitive Examination conducted in accordance with
the rules and by direct selection. If at all the petitioners are desirous of
availing reservation, they can very well apply for recruitment in the third
mode, i.e. direct recruitment, where the reservation for women is
specifically provided. The direct recruitment is available to any one or
every one who wants to participate and the Reservation of Post for
Women Rules, 1997 provides for 33% reservation, which takes care of
such women reservation.
7.7 It is further submitted that sub-rule (2) of Rule 2 of the
Recruitment Rules, 2008 covers within its sweep the categories of
Assistant Sub-Inspector, Head Constable and Constable who has
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rendered 15 years of service. Said Mode-2 has been provided with a
view to ensuring that there is no stagnation and therefore, women
reservation is not required to be applied in mode-2 it being an avenue of
promotion. If the State Government thinks it fit, it may take conscious
decision for providing or not providing reservation in the matter of
promotion and in the present case, the State Government has not
provided for any women reservation in promotion and therefore, the
petitions are bereft of any merit and deserve to be dismissed.
8. In the rejoinder, Mr. Gautam Joshi, learned senior advocate
submitted that the judgment in the case of Mukesh Kumar and anr
(supra), does not have any application to the facts of the present case
because, in the issue before the Apex Court, it was a specific stand of
the State Government, taking a conscious decision that there shall not
be reservation in promotions. On the other hand, in the present case,
there is no such decision pointed out except the communication dated
29.7.2013 to demonstrate that there is no reservation; however, the said
communication does not say so. The contents of the communication
dated 29.7.2013 are to be read in connection with the letter dated
27.5.2013 which is the most relevant document and the response vide
communication dated 29.7.2013 is very much dependent upon the
query raised by the department. The individual interpretation is correct
or not will also be dependent upon the communication dated 27.5.2013;
copy whereof has not been provided to the petitioners.
8.1 It is submitted that the promotion is available only to Assistant
Sub-Inspector, whereas no promotion is available from the post of Head
Constable to the post of Police Sub-Inspector. Promotion necessarily
means consideration of service record when merit is determined on the
basis of services rendered and in some cases seniority. In the present
case, as is discernible from the language contained in sub-rule (2) of
Rule 2, it provides for equal participation. Once Assistant Sub
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Inspectors and Head Constables are put in one pool, service record is
not relevant and therefore, the basic ingredients for undertaking
promotional exercise, are conspicuously absent.
8.2 It is next submitted that the Government Resolution dated
17.5.1997, Rules of 1997 provide for reservation along with vertical
reservation and when there is vertical reservation, there has to be a
horizontal reservation. Further, all throughout i.e. since the year 1983 to
1997, the State Government has provided the reservation to scheduled
castes and scheduled tribes. Besides, the decision which was taken
while issuing the advertisement in the year 2008 providing for women
reservation was a correct decision and in absence of any explanation,
the State Government ought to have prescribed reservation in the
advertisement in question.
8.3 It is submitted that the Government Resolution dated 22.4.1983 is
a policy decision and which refers to scheduled caste and scheduled
tribes, subsequent documents viz. Government Resolutions dated
17.5.1997 and 8.3.1999 specifically refer to providing reservation in the
matter of promotion. If there is a reservation in the matter of promotion,
the provision of women reservation has to be made, more particularly in
view of para 4 of the Government Resolution dated 8.3.1999. It is next
submitted that the State Government is estopped for, in the year 2008-
09, the reservation was provided and nothing is pointed out to the
contrary and therefore, the prayer of providing women reservation is
required to be accepted.
8.4 It is further submitted that so far as the contention of non-joinder
of necessary parties is concerned, the petitioners are not challenging
the appointments of anybody and therefore, no one is going to be
affected which would necessitate joining of those candidates in the
present proceedings. So far as the contention that the petitioners have
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acquiesced as they have participated without any protest is concerned,
it is submitted that had it been a case of requirement of qualification,
experience, method of selection, the petitioners would have been
estopped, however, the instant is the case of non-implementation of the
policy of reservation and therefore, it is incorrect to raise an objection
that the petitioners having participated in the process without any
protest, now cannot turn around and challenge the same. While
concluding, it is urged that the petitions deserve to be allowed.
8.5 Mr. Utkarsh Sharma, in brief sur-rejoinder, submitted that the
source of right available to the petitioners is flowing from the rules
framed in exercise of Article 309. Reading of Reservation of Post for
Women Rules of 1997 by the petitioner is not in a proper perspective
because, the same is applicable to the direct recruitment. Further, there
is no source for any right except the contents of the letter dated
27.5.2013, and isolated reading is impermissible as the same has to be
read in its totality. It is submitted that the contention that the State
Government is estopped, such estoppel cannot overreach the law and
in the present case, there is nothing available to the petitioners to claim
as a matter of right the direction to State Government to provide the
reservation. Therefore, it is urged that the petitions be dismissed without
grant of any relief.
9. Heard Mr. Gautam Joshi, learned senior advocate assisted by
Ms.Harshal Pandya, learned advocate for the petitioners and
Mr.Utkarsh Sharma, learned Assistant Government Pleader for the
respondents.
10. Pertinently, clause (1) of Article 15 provides that the State
Government shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them. Further,
clause (3) of Article 15 provides that nothing in the said article shall
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prevent the State from making any special provision for women and
children. Similarly, Article 16(1) of the Constitution of India provides that
there shall be equality of opportunity for the citizens in the matter
relating to employment or appointment to any office under the State. It
is well settled proposition of law that Articles 15 (3) and 16 of the
Constitution of India are merely enabling provisions. Article 15 (3) being
enabling provision, it will be purely a discretion of the State Government
to formulate a policy providing for special measures for women. It is
also well settled that there is no fundamental right in an individual to
claim reservation in the matter of promotions. In the aforesaid
background, the issue which arises for consideration of this Court is as
to whether there is any policy in place, formulated by the State
Government and if yes, as to whether the said policy provides for
reservation in the matter of promotion.
11. Heavy reliance is placed on the policies of the State Government
providing reservation albeit, the same are not forming part of the
captioned proceedings and the copies of such resolutions and circulars
have been tendered during the course of hearing. Since the policies are
the edifice, on which, the petitions have been filed with the
aforementioned prayers, it is worthwhile to refer to the policies; which
are in the form of Government Resolutions and circulars.
12. The State Government, in its General Administration Department
has by virtue of powers flowing from Article 16 read with Article 335 of
the Constitution of India, formulated a comprehensive policy providing
for reservation vide Government Resolution dated 22.4.1983. The policy
prescribes percentage of reservation for certain categories viz.
scheduled castes, scheduled tribes, socially & educationally backward
class and physically handicapped persons. Clause 3 titled 'roster
system' provides for the dates for implementing roster system for the
aforesaid categories except socially & educationally backward class as
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well as physically handicapped category. The said comprehensive
policy is for the purpose of providing percentage of reservation and
implementing the reservation through roster system. The said aspect is
clear from clause 4, in vernacular, free english translation whereof
reads "who should maintain the roster register". Under the said
heading, it is stated that the appointing authority who sends the
requisition to the Commission, such authority / department should
maintain the roster register and oversee, that the percentage of
reservation is maintained with respect to scheduled castes and
scheduled tribes posts, till the same is exhausted. Therefore, it is clear
that the Government Resolution dated 22.4.1983 is exclusively for
providing percentage of reservation with respect to the categories viz.
scheduled castes, scheduled tribes, socially & educationally backward
class and physically handicapped categories, however, the said
Government Resolution nowhere provides for women reservation.
Thus, the contention raised on behalf of the petitioners that the term
reservation used by the section officer in the communication dated
29.7.2013 would include horizontal reservation, i.e. women reservation
as well, is misconceived and without any basis.
13. Further reliance has been placed on the Government Resolution
dated 17.5.1997 issued by the State Government in its General
Administration Department, which appears to have been issued
pursuant to the judgment of the Apex Court in the case of R.K.
Sabharwal (supra). The said resolution was for providing reservation /
implementing roster system for the direct selection and promotion.
Pertinently, the said Government Resolution dated 17.5.1997 has been
cancelled by the Government Resolution dated 8.3.1999 issued
subsequently. Therefore, reliance placed on the said resolution is
misplaced. So far as the Government Resolution dated 8.3.1999 is
concerned, the same is for the purpose of providing post based
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reservation and implementation of a roster. The provisions whereof
cover two issues firstly that when the reserved category candidate
competes for non-reserved post and in the event of their appointment to
the said posts, their number cannot be added and taken into
consideration for working out the percentage of reservation and
secondly that the cadre strength is always measured by the number of
posts comprising the cadre. Consequently, the percentage of
reservation has to be worked out in relation to number of posts which
forms the cadre-strength and that the concept of vacancy has no
relevance in operating the reservation. Para 3 of the said Government
Resolution provides for the mechanism of prescription of percentage of
reservation, so also the implementation of the roster system. Similarly,
para 4 provides for the mode and manner of preparing the roster
register on the basis of post as indicated in the Schedule 1 to the said
resolution. One more aspect which has been provided in the
Government Resolution is to the effect that the roster is to be
implemented till the percentage of reservation gets exhausted and
thereafter the roster is not to be implemented. Rest of the paragraphs
have no relevance to the issue raised in the present petitions. The
aforesaid two issues are the focus point; however, prescription of
women reservation is not provided in the said Government Resolution
as well.
14. Then comes the Government Resolution dated 9.4.1997, i.e.
Reservation of Post for Women Rules, 1997 which has been framed by
the State Government in exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India. Clearly, it provides for
reservation for women to apply, for filling up the post by direct
recruitment. Meaning thereby the Reservation of Post for Women
Rules, 1997 exclusively makes the provision for filling up of the post by
direct recruitment.
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15. Now, therefore, adverting to the Rules of 2008, it is required to be
noted that Rule 2 of the Rules of 2008 provides for manner of
appointment to the post of Police Sub-Inspector (Unarmed), Class-III in
the Gujarat State Police Service. Sub-rule (1), popularly known as
mode-1 is an avenue provided to the candidate for appointment to the
post of Police Sub-Inspector by promotion of a person of proved merit
and efficiency. The said mode is simpliciter a mode of promotion. So far
as Sub-rule (2) popularly known as mode-2 is concerned, the same is
an avenue provided to the candidate concerned to get promotion to the
post of Police Sub-Inspector, on the basis of merit rank obtained in the
Special Competitive Examination conducted in accordance with the
rules prescribed by the State Government. The State Government in
exercise of the powers conferred by clause (b) of section 5 of the
Gujarat Police Act, 1951 has prescribed the rules of 2004. The rules of
2004 as amended from time to time, provide for a separate source of
promotion to the in-service employee to get the accelerated promotion.
As can be culled out from the affidavit and have not been dislodged by
the petitioners, the said avenue is provided to the employee concerned
with a view to removing the stagnation. Besides the examinations are
governed by different set of rules with separate qualifications to be
fulfilled for being eligible to get promotion to the post of Police Sub-
Inspector.
16. On the other hand, so far as sub-rule (3), i.e. third mode is
concerned, i.e. the appointment by direct selection, separate
qualifications and separate set of rules governing examinations are
there. Apparently, mode-2 vis-a-vis mode-3 are two independent and
distinct avenues provided for being promoted and appointed,
respectively to the post of Police Sub-Inspector. The Reservation of
Post for Women Rules, 1997 clearly applies to the post to be filled in by
direct recruitment. Hence, it can be safely concluded that there is no
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policy in place formulated by the State Government providing
reservation, for the purpose of promotion through mode-2, i.e. sub-rule
(2) of Rule 2 of the Recruitment Rules, 2008. Therefore, in absence of
any policy of the State Government providing for reservation of post for
women in promotion, the prayers prayed for in the present writ petitions
do not deserve to be granted.
17. Pertinently, there is no quarrel to the proposition that the State
Government is not bound to make reservation inasmuch as, Article 15 is
an enabling provision and discretion for providing reservation purely lies
with the State Government. In absence of any policy having been
pointed out and considering the fact that there is no fundamental right in
favour of an individual to claim reservation in promotion, no direction
can be issued by the court directing the State Government to provide for
reservation. Issuance of the direction to the State Government for
providing reservation would amount to direction to formulate the policy,
which is clearly impermissible for the courts to venture upon. The
judgment cited by the learned Assistant Government Pleader in the
case of Mukesh Kumar vs. State of Uttarakhand (supra) which is in the
context of the Uttar Pradesh Public Services (Reservation for
Scheduled Castes and Other Backward Classes) Act, 1994, is very
much apt to the facts of the present case. In the context of Article 16(4)
and 16(4-A), the Apex Court in paras 16 and 17 has observed thus:
"16. The direction that was issued to the State Government to collect
quantifiable data pertaining to the adequacy or inadequacy of
representation of persons belonging to Scheduled Castes and
Scheduled Tribes in Government services is the subject matter of
challenge in some appeals before us. In view of the law laid down by
this Court, there is no doubt that the State Government is not bound
to make reservations. There is no fundamental right which inheres in
an individual to claim reservation in promotions. No mandamus can
be issued by the Court directing the State Government to provide
reservations. It is abundantly clear from the judgments of this Court in
Indra Sawhney, Ajit Singh (II), M. Nagaraj and Jarnail Singh (supra)
tha Article 16(4) and 16 (4-A) are enabling provisions and the
collection of quantifiable data showing inadequacy of representation
of Scheduled Castes and Scheduled Tribes in public service is a sine
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qua non for providing reservations in promotions. The data to be
collected by the State Government is only to justify reservation to be
made in the matter of appointment or promotion to public posts,
according toArticle 16(4) and 16 (4-A) of the Constitution. As such,
collection of data regarding the inadequate representation of
members of the Scheduled Castes and Schedules Tribes, as noted
above, is a pre requisite for providing reservations, and is not required
when the State Government decided not to provide reservations. Not
being bound to provide reservations in promotions, the State is not
required to justify its decision on the basis of quantifiable data,
showing that there is adequate representation of members of the
Scheduled Castes and Schedules Tribes in State services. Even if the
under- representation of Scheduled Castes and Schedules Tribes in
public services is brought to the notice of this Court, no mandamus
can be issued by this Court to the State Government to provide
reservation in light of the law laid down by this Court in C.A.
Rajendran (supra) and Suresh Chand Gautam (supra). Therefore, the
direction given by the High Court that the State Government should
first collect data regarding the adequacy or inadequacy of
representation of Scheduled Castes and Scheduled Tribes in
Government services on the basis of which the State Government
should take a decision whether or not to provide reservation in
promotion is contrary to the law laid down by this Court and is
accordingly set aside. Yet another direction given by the High Court in
its judgment dated 15.07.2019, directing that all future vacancies that
are to be filled up by promotion in the posts of Assistant Engineer,
should only be from the members of Scheduled Castes and
Scheduled Tribes, is wholly unjustifiable and is hence set aside.
17. The submission made on behalf of the reserved category
candidates that the judgment of this Court in Suresh Chand Gautam
(supra) needs reconsideration is without substance in view of the
findings recorded above. We are in agreement with the decision of
this Court in Suresh Chand Gautam (supra) in which it was held that
no mandamus can be issued by the Court to the State to collect
quantifiable data relating to adequacy of representation of the
Scheduled Castes and Scheduled Tribes in public services."
17.1 The Apex Court, has held that the said provisions are enabling
provisions. The Apex Court while quashing and setting aside the
judgment of the High Court directing the State Government to collect
the quantifiable data pertaining to adequacy or inadequacy of
representation of persons belonging to scheduled castes and scheduled
tribes in government services, held that such direction by the High Court
to the State Government to take a decision to provide reservation in
promotion was contrary to the law laid down by the Apex Court. The
Apex Court has held that there is no fundamental right which inheres in
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an individual to claim reservation in promotion and no mandamus can
be issued by the Court directing the State Government to provide
reservation.
18. In the instant case, as is discernible from the prayers, the
petitioners are praying for direction to the State Government that the
action of the respondent authorities of not providing women reservation
in the recruitment to the post of Police Sub-Inspector (Unarmed), Class-
III pursuant to the advertisement No.61/2015-16 is illegal, arbitrary,
discriminatory, unconstitutional and violative of rules thereof. However,
the petitioners have failed to substantiate the said prayer by pointing out
any obligation making it incumbent upon the State Government to
provide for reservation for mode-2 promotion. As discussed herein
above, reliance placed on the Government Resolutions dated
22.4.1983, so also 8.3.1999 do not carry the case of the petitioners any
further inasmuch as, both the government resolutions are conspicuously
silent as regards providing reservation for women in the matter of
promotion by mode-2. Similarly, the Reservation of Post for Women
Rules, 1997 provides for reservation for filling up of the post by direct
recruitment. So is the position as regards the communication dated
29.7.2013. Hence, the petitioners have not been able to point out any
Rules much less any Government Resolutions, framed by the State
Government providing for reservation in the matter of promotion by
mode-2. Under the circumstances and in absence of any rules / policy
in this behalf, the present petitions are devoid of any merit and deserves
to be dismissed.
19. While concluding, the ancillary contentions raised are also
required to be dealt with in crisp. It has been contended by the learned
Assistant Government Pleader on behalf of the respondent State that
the petitioners having appeared in the examinations and having not
been selected cannot turn around and challenge the action of the
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respondent authority. In this behalf, the contention of the petitioners that
it is only when the challenge is to the aspects viz. qualification,
experience, method of selection that the candidate concerned having
participated would be estopped, is without any basis and cannot be
accepted. There is no quarrel to the proposition that if the candidate
appears in the examination without any protest and files the petition
only after realising that he/she would not succeed in the examination, it
would be impermissible to the candidate concerned to turn around and
challenge the same. In the petitions, except the vague statement that
the petitioners have represented the case and the petitioners acted on
oral assurance, nothing has been averred or produced to substantiate
the same. It is nothing but a faint attempt on the part of the petitioners
to cover up the lapse. Pertinently, in the first advertisement, there was
no reservation provided so also in the modified advertisement and
therefore, there was sufficient time available to the petitioners to have
raised the objection but the petitioners did not do so. The petitioners
appeared in the examination without any protest and when the
petitioners have found that they are not selected, the petitioners have
preferred the present writ petitions. Under the circumstances, it would
be impermissible to the petitioners to challenge the action of the
authorities and the petitions deserve to be dismissed on this count as
well.
20. So far as the objection as regards non-joinder of necessary
parties raised by the learned Assistant Government Pleader, is
concerned, the same also deserves acceptance. Perceptibly, the
respondent State Government has raised the objection in the counter,
however, the petitioners did not try to remove the said defect on the
ground that the petitioners are not challenging the appointment of any
candidates. The petitioners have lost sight of the fact that, ultimately
what is to be seen is, as to whether the outcome of the writ petitions
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likely to affect the candidates, who have been appointed and are
serving since then. Answer is in affirmative. Therefore, the present
petitions suffer from the defect of non-joinder of necessary parties
inasmuch as, if this Court were to accept the say of the petitioners, the
outcome would definitely affect the candidates who have been
appointed. Resultantly, the non-joinder of necessary parties is fatal to
the writ petitions. The said ground is also a valid ground raised for
dismissal of the writ petitions and therefore, the petitions do not deserve
to be entertained on the ground of non-joinder of necessary parties as
well.
21. Accordingly, the present petitions are dismissed. Rule is
discharged. No order as to costs.
22. In view of the dismissal of the writ petitions, all the civil
applications stand disposed of.
(SANGEETA K. VISHEN,J)
BINOY B PILLAI
