Gujarat High Court Quashes Controversial General Resolution on Women's Reservation

By: WE STAFF | Wednesday, 2 September 2020

Looking at a significant decision related to women’s reservation in Gujarat, the Gujarat High Court (HC) has quashed and set aside a controversial general resolution (GR) on the subject, issued by the General Administration Department (GAD) of the Gujarat government.

The court held that women from reserved category can compete in the open competition category within the 33 percent of women’s reservation in the government recruitment. As per the GR dated 1^st August 2018, women from the reserved categories were barred from open competition category of women in government recruitment. A division bench of Chief Justice Vikram Nath and Justice JB Pardiwala passed the judgment while acting on a group of petitions related to government recruitment for 115 posts of police inspector (unarmed). The judgment dated 5^th August was made public on Monday. Quashing the GR, the court also held that social reservations, vertical reservations such as for Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), Socially and Educationally Backward Classes (SEBC) shall take precedence over horizontal reservations such as special reservations applicable for women, physically challenged, and others, when it came to filling of vacancies. The court held that all women, whether belonging to a reserved category or not, can compete for open competition category posts, while a woman, not belonging to the reserved categories, such as OBC, SC or ST, are not entitled to compete for posts reserved in favor of OBC (women), SC (women) and ST (women).

“The posts, reserved in favor of General Category (women), are available for all women from the State of Gujarat, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not. Holding otherwise, would result in surreptitious introduction of reservation in favor of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation has been frowned upon by the Supreme Court,” stated the judgment. Relying on Supreme Court judgments, the HC bench reasoned that say, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled and the entire reservation quota will be intact and available in addition to those selected under Open Competition category. For horizontal reservation, say for women, within vertical reservation categories of OBC, SC, ST, the HC laid down that the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of Scheduled Castes-Women.

The court also held that if the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. The division bench’s verdict came in an appeal filed by three women candidates of SEBC (or OBC) category, challenging an earlier order by a single judge bench of the HC that had upheld the GR and ruled that their selection by the Gujarat Public Service Commission (GPSC) for police inspector (unarmed) posts under the open competition category, be changed and excluded. The petitioners represented by senior advocate Shalin Mehta, had submitted that a candidate belonging to the SC, ST or SEBC, if selected in the open competition (OC), he or she has to be adjusted against the open competition category only for the purpose of horizontal reservation. Shalin’s arguments were also supported by the Advocate General, Kamal Trivedi on behalf of the Gujarat government, admitting that the August 2018 GR ‘runs diametrically opposite to the well settled legal position’.

In view of the bench’s latest decision, six candidates – five SEBC female and one SC category male – whose selection was declared in a list dated 18^th September 2019, was restored. The court, after submission by Advocate General Kamal Trivedi, also directed the state government to create seven supernumerary posts as a special case for accommodating the seven women candidates from non-reserved communities who will be affected by the judgment. The GR dated 1^st August 2018 had become a major socio-political problem for the ruling BJP during December 2019 - January 2020 as around 30 women from different communities sat on a protest in Gandhinagar for nearly 70 days. The women were candidates for the recruitment of Lok Rakshak Dal (LRD) in Gujarat police. Leaders from across party lines, including ruling BJP, had voiced their support for the agitating women. The issue became more complex when some women of non-reserved communities also started agitation in support of the controversial GR. It was resolved in February this year, when Gujarat government announced over 2000 supernumerary LRD vacancies for women, while keeping the cut off mark at 62.5 marks. Now male candidates for the same LRD recruitment are demanding similar supernumerary LRD posts for them to maintain the ratio of 67 percent males and 33 percent females in any government recruitment.