In a very significant Judgment, Hon’ble Mr Justice Ashwani Kumar Mishra of Allahabad High Court has examined the constitutionality of requirement of domicile for woman reservation in the light of Article 14 and 16 of the Constitution of India.
The Facts of the Case- Vipin Kumar Maurya and 4 Others vs State of U.P. and 3 Others (Writ A No.11039 of 2018) are as follows:
U.P. Subordinate Service Selection Commission issued Advertisement No. 14 of 2015, initiating a recruitment for 1,377 posts of Junior Engineer and other technical posts for various State Departments. Clause 11 of the advertisement specified that reservation would be admissible to Scheduled Castes, Scheduled Tribes and Other Backward category candidates in accordance with the provisions of the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994
Similarly, the horizontal reservation was also provided for specified categories in accordance with the provisions of The U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 Horizontal reservation for women, with which we are concerned herein, stands specified at 20% in the respective vertical category. Such horizontal reservation has been provided pursuant to a Government Order dated 26.2.1999 as modified vide subsequent Government Orders dated 30.8.1999 and 9.1.2007.
Clause 14(3) and (4) of the advertisement provided that candidates, who are not the original residents of the State of UP, will not be entitled to vertical and horizontal reservations including Woman Reservation. The Commission proceeded with making recruitment to the advertised posts, and ultimately, a select list was published on 25.05.2016. Orders of appointment were also issued to the selected candidates by the Irrigation Department of the State of U.P. on 19.08.2016, and the selected candidates were allowed to join as Junior Engineers in different regions/circles/offices.
The Commission received certain complaints regarding inaccurate compliance of horizontal reservation in the recruitment in question. When nothing was done, a Writ Petition was filed before the High Court at Lucknow, in which it was directed that Commission will look into the complaints so made.
Commission proceeded to modify the result previously published on 25.05.2016, whereby 107 candidates, who had been earlier selected, were removed from the select list and 107 new candidates figured in the select list published on 28.04.2018.
The modified, select list along with clause (v) of the Government Order dated 09.01.2007, which restricts benefit of horizontal reservation to only those women candidates who are original residents of the State of Uttar Pradesh was challenged before the Allahabad High Court on following grounds:
- No notice or opportunity has been offered to the affected persons.
- None of the selected candidates was made a party to the litigation before the Lucknow Bench.
- Petitioners have not indulged in any misrepresentation or fraud, and therefore appointments already offered to them could not be revoked.
- Article 16(2) of the Constitution of India, prohibits denial of public appointments on the ground of place of birth and residence, or any of them.
- Any law, relating to grant of reservation on account of residence could be made only by the Parliament under Article 16(3) of the Constitution of India and that Clause (4) of the Govt. Order dated 9.1.2007 is wholly without jurisdiction.
Commission and State Government Opposed the Writ Petition on following grounds:
- Due to inadvertent error, the requisite posts meant for female candidates under the horizontal reservation quota were left unfilled and erroneously filled with the appointment of male candidates.
- Requirement of the original resident of State is akin to the concept of domicile, which is separate and distinct from the concept of the place of birth, residence or any of them, occurring in Article 16 of the Constitution of India.
- The Apex Court has affirmed the concept of domicile of a particular State as being essential for grant of reservation in educational institutions in D. P. Joshi vs State of Madhya Bharat, AIR 1955 SC 334 and reiterated by the Constitution Bench in Saurabh Chaudri and others vs Union of India, AIR 2004 SC 361.
- Women residing within the State of Uttar Pradesh constitute a homogeneous class, and providing reservation to them would serve the purpose of ameliorating condition of women in the State.
Issues Framed by Court:
- Whether clause (4) of the Government Order dated, 9.1.2007 is ultra vires Articles 16(2) & (3) of the Constitution of India?
- Whether women candidates selected under horizontal reservation for women from other States, having applied under the advertisement, which specifies the requirement of women candidate to be the original residents of State of Uttar Pradesh for grant of benefit of horizontal reservation, could now be permitted to assail the policy contained in Government Order dated 09.01.2007 as well as the conditions contained in the
- Whether the Commission could issue a revised select list, excluding previously selected candidates, after the expiry of nearly two years, mainly when there is no allegation of misrepresentation or fraud attributed to them?
The Court, after referring to various decisions of Supreme Court and Allahabad High Court held that:
- ‘Domicile’ is not included within the expression’ place of birth’, occurring in Article 15 of the Constitution of India, but the same would not be the case in Article 16(2) where a different expression is used, i.e. ‘place of birth, residence or any of them’.
- The constitutional scheme requirement with regard to the residence could be prescribed, but such prescription must come from the Parliament and by making law in that regard.
- Policy of State to restrict horizontal reservation for women to those, who are the original residents of the State, cannot be sustained, as it is not a reasonable classification of women.
- There is no empirical data or material placed on record before the Court to justify the decision of State to restrict women reservation for original residents of State alone.
- It may also be interesting to note that some of the selected women candidates belong to the newly carved out State of Uttarakhand from erstwhile State of Uttar Pradesh. These aspects, however, do not appear to have been examined by the State.
- In our constitutional scheme women of this country are otherwise a homogeneous lot, and they cannot be differentiated unless reasons and materials exist for their further classification.
- Classification based only on residence would otherwise be permitted only by law made by the Parliament, which is not the case here.
- It is held that Clause (4) of the Government Order dated 9.1.2007 restricting grant of horizontal reservation only to the women who are original residents of Uttar Pradesh as also specific stipulations in that regard, contained in Advertisement is Unconstitutional, being contrary to Articles 16(2) and 16(3) of the Constitution of India.
- Considering that there was no fault or misrepresentation or fraud on the part of Petitioners and the Court protected the Appointment of Petitioners. However, it was provided that candidates selected in the revised list will be placed over and above the Petitioners in the Seniority List of Department.
This is also to be noted here that a Special Appeal (D) No. 475 of 2019 is pending against the Judgment mentioned above, in which as of today (20.09.2020), there is no Stay Order.