P B VIJAYAKUMAR Vs. GOVERNMENT OF A P

JUDGEMENT

(1.) W. A. No. 276 / 1985 : Rule 22-A of the A P State and Subordinate, Service Rules, made under the proviso to Article 309 of the Constitution of India provides for giving preference to women in the matter of direct recruitment to posts under the State. The Rule was introduced by GOMs. No. 691, General Administration ( Ser. D ) Department, dated 22-11-1984, with effect from 2-1-1984. It reads as follows :

(2.) Let us first notice what does the Rule say. Though the Rule is called a Rule providing for preference in favour of women, it provides not merely for preference in favour of women but also a certain reservation in their favour. The three sub-rules in the Rule provide for three different situations. Sub Rule (1) speaks of posts for which women are better suited than men. Sub-Rule (2) speaks of posts for which both men and women are equally suited, while sub-rule (3) speaks of posts which are reserved exclusively for women. In the case of posts for which women are better suited than men, the Rule says, preference shall be given to women, provided that such preference shall not result in total exclusion of men in any category of posts; (vide sub-rule (1). In the case of posts for which both men and women are equally suited, -the Rule says that other things being equal, preference shall be given to women and they shall be selected to an extent of at bast 30% of the posts. This reservation cuts across the reservations provided under clause (4) of Art 16. For the sake of convenience and facility of expression we shall describe the reservation of posts in favour of Scheduled- Tribes, Scheduled-Castes, and Backward- Classes as vertical reservations, while describing the reservation of the present kind as horizontal reservation. The 30% reservation in favour of women applies to each of the categories, namely, Scheduled Castes, Scheduled Tribes, Backward - Classes, and open competition This is provided by sub-rule (2). Sub-Rule (3) contemplates posts which are reserved exclusively for being filled by women, and says that those posts shall be filled by women only. Sub-Rule (3) by itself does not provide for, or reserve, any posts to be filled exclusively by women. In a sense, sub-rule (3) merely states the obvious. It is probably for this reason that the validity of sub rule (3) is not questioned before us. We shall, therefore, not deal with it. Our discussion shall be confined to sub-rules (1) and (2).

(3.) Sub-Rules (1) and (2) contemplate two types of posts, which we may call two classes of posts, namely, (i) posts for which women are better suited than men, and (ii) posts for which both men and women are equally suited. The first question that arises is : who should determine which posts are to be placed in sub-rule(1) and which posts in sub-rule (2)1 Indeed, that also brings in the question : who should determine the posts as meant exclusively for being filled by women for the purpose of sub rule (3)? There is nothing in the Rule which provides for this situation. It does not specify the authority who should specify these posts, nor does it provide the criteria or the basis which has to be followed or applied in the matter of classification. Surely, this power of classification cannot be left to the discretion and judgment of each of the appointing authorities, of whom there are several in the State. When we put this question to the learned Advocate-General, he submitted that this matter has been left for the decision of each department, and that as and when a department identifies a particular post or posts for the purpose of one or the other sub-rule of Rule 22-A, a statutory Rule is issued by the Governor amending the relevant Special Rules. He placed before us a large number of G.Os., issued by the various departments of the Government. They are so large in number that we shall refer only to the G.Os. containing Rules issued by the Governor with respect to Education Department (except those relating to Public Libraries and State Archives). They are the following :