CHENNAI: Holding en bloc reservation of 30% of posts for women and then proceeding with social reservation in appointments to government services as unconstitutional, the Madras High Court has ordered the Tamil Nadu Public Service Commission (TNPSC) to revise the merit list by preparing 31% open category list followed by social reservation.
The first bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala passed the order on Wednesday while disposing of a batch of petitions filed by aggrieved candidates who had appeared for selection to various government posts by TNPSC.
“The action of the TNPSC and the State to first arrange the list of female candidates to the extent of 30% of the posts in compliance of Section 26 of the Act of 2016 (women’s reservation act) and then to proceed further to arrange social reservation is opposed to the judgments of the Apex Court and even the constitutional framework.
It is despite a clear illustration given by the Apex Court in Anil Kumar Gupta case,” the bench said. It added, “If the interpretation of Section 26 of the Act of 2016 is to en bloc reserve 30% of posts for female candidates at the first stance and thereafter to proceed further then the said provision is not constitutionally valid and thus needs to be struck down.”
The bench further said the 30% reservation for women can be saved only if it is done in the manner required and explained by the Apex Court. The respondents, while making appointment to various posts rather, have virtually arranged reservation for women vertically which is not permissible under law, the court said.
Provide social reservation in second list: HC
“The petitioners had shown 120 excess appointments to women candidates,” the bench pointed out. Since appointments have already been made it would not be appropriate for us to nullify the appointments already made but, at the same time, it would not be appropriate to deny the appointment to those who were entitled to such appointment in the order of merit.
“Therefore the respondents are directed to re-arrange the entire list.... The respondents would first arrange the candidates in the Open Category strictly in the order of merit, which would be 31% of the total vacancies, irrespective of the caste or the category.
After preparing the first list of Open Category, the respondents would come out with the second list to provide social reservation to the reserved category vertically, the judges said. After arranging the second list for giving social reservation, the respondents would then provide horizontal reservation, which may be to female candidates and disabled persons etc.
The exercise aforesaid would be undertaken in reference to all the selections under challenge and if any of the petitioners find place on the merit based on the said arrangement, then they would be given appointment in service to the post concerned.
In those cases where appointments are yet to be made, the arrangement given by us would be applied and if the respondents find it to be offending Section 26 of the Act of 2016, then the same is declared ultra vires the Constitution, because the constitution and the judgments of the apex court do not provide setting apart of the posts for female candidates to be arranged vertically, the judges said. They advised to amend the provisions appropriately so that in future selections there remains no misconception in drawing the lists in the manner postulated by the SC.
‘Re-arrange list’
Court said the respondents would first arrange the candidates in the Open Category strictly in the order
of merit, which would be 31% of the total vacancies.