of Andhra Pradesh Vs. P.B. Vijayakumar & Anr  INSC 288 (12 May 1995)
Sujata V. (J) Manohar Sujata V. (J) Sahai, R.M. (J) Mrs.Sujata V. Manohar, J.
1995 AIR 1648 1995 SCC (4) 520 JT 1995 (7) 489 1995 SCALE (3)613
12TH DAY OF MAY, 1995 Present:
Mr.Justice R.M.Sahai Hon'ble Mrs.Justice Sujata V. Manohar Mr. K. Lakshmi Narasimha,
S.C. for Andhra Pradesh, Mr. G. Prabhakar, Adv. for the Appellant In-person for
following Judgment of the Court was delivered:
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NOS.2532-33 OF 1989 Government of Andhra Pradesh ..... Appellant VS. P.B.Vijayakumar
& Anr. ..... Respondents
Government of Andhra Pradesh in the year 1984 decided that women were not
getting their due share of public employment. It decided to take certain
remedial measures. On 2.1.1984 it issued G.O.Ms. No.2, General Administration
(Services-A) Department stating policy decisions taken by the State Government
in respect of reservations for women in public services, to a specified extent.
Pursuant to this policy decision, Rule 22-A was introduced in the Andhra Pradesh State and Subordinate Service Rules under
the proviso to Article 309 of the Constitution of India. It reads as follows:-
"22-A: Notwithstanding anything contained in these Rules or Special or
the matter of direct recruitment to posts for which women are better suited
than men, preference shall be given to women; (G.O..Ms.MNo.472, G.A. dated
that such absolute preference to women shall not result in total exclusion of
men in any category of posts.
the matter of direct recruitment to posts for which women and men are equally
suited, other things being equal, preference shall be given to women and they
shall be selected to an extent of at least 30% of the posts in each category of
O.C., B.C., S.C., and S.T. quota.
the matter of direct recruitment to posts which are reserved exclusively for
being filled by women they shall be filled by women only."
(2) of this Rule is the subject matter of challenge before us. The challenge is
by the respondent No.1 who, at the time of filing of the petition before the
High Court, was a law student in Andhra University, Waltair. We are informed that he
is now a practising lawyer. At the material time, however, he had registered
his name in the District Employment Exchange, Visakhapatnam. He filed a write petition before the Andhra Pradesh High
Court challenging the above Rule on the ground that it was violative of
Articles 14 and 16(4) of the Constitution and had seriously affected all male
unemployed persons in the State of Andhra Pradesh. A single Judge of the Andhra Pradesh High Court upheld the
validity of Rule 22-A. In appeal before the High Court, however, a Division
Bench has struck down a portion of Rule 22-A(2) as unconstitutional while
upholding sub-rules (1) and (3) of Rule 22-A. The portion of sub-rule (2) which
is struck down is the last portion of that sub-rule containing the words
"and they shall be selected to an extent of at least 30% of the posts in
each category of O.C., B.C., S.C., and S.T. quota".
sub-rule (2) of Rule 22-A violate Articles 14 or 16(4)? Article 14 which
provides that the State shall not deny to any person equality before the law,
has been the subject matter of interpretation in a number of cases before this
Court as well as the High Courts. Application of this principle of equality has
often proved more difficult in practice than was anticipted. It has, however,
been commonly accepted that the equality clause requires that only persons who
are in like circumstances should be treated equally.
persons or groups of persons are not situated equally, to treat them as equals
would itself be violative of Article
a necessary fall out of this principle, classification among different groups
of persons and differentiation between such classes is permissible provided (1)
the classification is founded on intelligible differential between the groups
and (2) such differentia have a rational nexus with the objects sought to be
achieved by the statute. Article 15, however, prohibits differentiation between
classes on certain grounds. It prohibits the State from discriminating against
any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them. Clause (3) of Article 15 provides that nothing in this Article
shall prevent the State from making any special provision for women and children.
In other words, while Article 15(1) would prevent a State from making any
discriminatory law (inter alia) on the ground of sex alone, the State, by
virtue of Article 15(3), is permitted, despite Article 15(1), to make special
provisions for women, thus clearly carving out a permissible departure from the
rigours of Article 15(1).
16(2) provides that no citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under the State.
The ambit of Article 16(2) is more limited in scope than Article 15(1) because
it is confined to employment or office under the State. Article 15(1), on the
other hand, covers the entire range of State activities.
same time, the prohibited grounds of discrimination under Article 16(2) are
somewhat wider than those under Article 15(2) because Article 16(2) prohibits
discrimination on the additional grounds of descent and residence apart from
religion, race, caste, sex and place of birth. For our purposes, however, both
Articles 15(1) and 16(2) contain prohibition of discrimination on the ground of
respondent before us has submitted that if Article 16(2) is read with Article
16(4) it is clear that reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State is expressly permitted.
But there is no such express provision in relation to reservation of
appointments or posts in favour of women under Article 16. Therefore, the
respondent contends that the State cannot make any reservation in favour of
women in relation to appointments or posts under the State. According to the
respondent this would amount to discrimination on the ground of sex in public
employment or appointment to posts under the State and would violate Article
argument ignores Article 15(3). The interrelation between Articles 14, 15 and
16 has been considered in a number of cases by this Court. Article 15 deals
with every kind of State action in relation to the citizens of this country.
Every sphere of activity of the State is controlled by Article 15(1). There is,
therefore, no reason to exclude from the ambit of Article 15(1) employment
under the State.
same time Article 15(3) permits special provisions for women. Both Articles
15(1) and 15(3) go together. In addition to Article 15(1) Article 16(1),
however, places certain additional prohibitions in respect of a specific area
of state activity viz. employment under the State.
are in addition to the grounds of prohibition enumerated under Article 15(1)
which are also included under Article 16(2). There are, however, certain
specific provisions in connection with employment under the State under Article
16. Article 16(3) permits the State to prescribe a requirement of residence
within the State or Union Territory by parliamentary legislation; while Article 16(4) permits
reservation of posts in favour of backward classes. Article 16(5) permits a law
which may require a person to profess a particular religion or may require him
to belong to a particular religious denomination, if he is the incumbent of an
office in connection with the affairs of the religious or denominational
institution. Threrfore, the prohibition against discrimination on the grounds
set out in Article 16(2) in respect of any employment or office under the State
is qualified by clauses 3, 4 and 5 of Article 16.
in dealing with employment under the State, it has to bear in mind both
Articles 15 and 16 - the former being a more general provision and the latter,
a more specific provision. Since Article 16 does not touch upon any special
provision for women being made by the State, it cannot in any manner derogate
from the power conferred upon the State in this connection under Article 15(3).
This power conferred by Article 15(3) is wide enough to cover the entire range
of State activity including employment under the State.
insertion of clause (3) of Article 15 in relation to women is a recognition of
the fact that for centuries, women of this country have been socially and
economically handicapped. As a result, they are unable to participate in the
socio-economic activities of the nation on a footing of equality. It is in
order to eliminate this socio-economic backwardness of women and to empower
them in a manner that would bring about effective equality between men and
women that Article 15(3) is placed in Article 15. Its object is to strengthen
and improve the status of women. An important limb of this concept of gender
equality is creating job opportunities for women. To say that under Article
15(3), job opportunities for women cannot be created would be to out at the
very root of the underlying inspiration behind this Article. Making special
provisions for women in respect of employment or posts under the State is an
integral part of Article 15(3). This power conferred under Article 15(3), is not
whittled down in any manner by Article 16.
then is meant by "any special provision for women" in Article 15(3)?
This "special provision", which the State may make to improve women's
participation in all activities under the supervision and control of the State
can be in the form of either affirmative action or reservation. It is
interesting to note that the same phraseology finds a place in Article 15(4)
which deals with any special provision for the advancement of any socially or
educationally backward class of citizens or Scheduled Castes or Scheduled
15 as originally enacted did not contain Article 15(4). It was inserted by the
Constitution First Amendment Act, 1951 as a result of the decision in the Case
of The State of Madras v. Champakam Dorairajan (1951 SCR 525) setting aside
reservation of seats in educational institutions on the basis of caste and
community. This Court observed that the Government's order was violative of
Article 15 or Article 29(2). It said:- "Seeing, however, that clause (4)
was inserted in Article 16, the omission of such an express provision from
Article 29 cannot but be regarded as significant." The object of the First
Amendment was to bring Articles 15 and 29 in line with Article 16(4). After the
introduction of Article 15(4), reservation of seats in educational institutions
has been upheld in the case of M.R.Balaji & Ors. v. State of Mysore (1963 Supp. (1) SCR 439) and a
number of other cases which need not be referred to here.
Article 15(4) orders reserving seats for Scheduled Castes, Scheduled Tribes and
Backward Classes in Engineering, Medical and other Technical colleges, have
been upheld. Under Article 15(4), therefore reservations are permissible for
the advancement of any backward class of citizens or of Scheduled Castes or
Scheduled Tribes. Since Article 15(3) contains an identical special provision
for women, Article 15(3) would also include the power to make reservations for woemn.
In fact, in the case of Indra Sawhney & Ors. v. Union of India & Ors. (1992 Supp. (3) SCC 217) this
Court (in paragraph 846) rejected the contention that Article 15(4) which deals
with a special provision, envisages programmes of positive action while Article
16(4) is a provision warranting programmes of positive discrimination. This
Court observed:- "We are afraid we may not be able to fit these provisions
into this kind of compartmentalisation in the context and scheme of our
constitutional provisions. By now, it is well settled that reservations in
educational institutions and other walks of life can be provided under Article
15(4) just as reservations can be provided in services under Article 16(4). If
so, it would not be correct to confine Article 15(4) to programmes of positive
action alone. Article 15(4) is wider than Article 16(4) in as much as several
kinds of positive action programmes can also be evolved and implemented thereunder
(in addition to reservations) to improve the conditions of SEBCs, Scheduled
Castes and Scheduled Tribes, whereas Article 16(4) speaks only of one type of
remedial measure, namely, reservation of appointments/posts." This Court
has, therefore, clearly considered the scope of Article 15(4) as wider than
Article 16(4) covering within it several kinds of positive action programmes in
addition to reservations. It has, however, added a word of caution by
reiterating M.R.Balaji (supra) to the effect that a special provision
contemplated by Article 15(4) like reservation of posts and appointments
contemplated by Article 16(4), must be within reasonable limits. These limits
of reservation have been broadly fixed at 50% at the maximum. The same
reasoning would apply to Article 15(3) which is worded similarly.
light of these constitutional provisions, if we look at Rule 22-A(2) it is
apparent that the Rule does make certain special provisions for women as
contemplated under Article 15(3). Rule 22-A(2) provides for preference being
given to women to the extent of 30% of the posts, other things being equal.
This is clearly not a reservation for women in the normal sense of the term.
Reservation normally implies a separate quota which is reserved for a special
category of persons. Within that category appointments to the reserved posts
may be made in the order of the merit.
the category for whose benefit a reservation is provided, is not required to
compete on equal terms with the open category. Their selection and appointment
to reserved posts is independently on their inter se merit and not as compared
with the merit of candidates in the open category. The very purpose of
reservation is to protect this weak category against competition from the open
category candidates. In the case of Indra Sawhney (supra) while dealing with
reservations, this Court has observed (at paragraph 836):- "It cannot also
be ignored that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognise that this much cost has to
be paid, if the constitutional promise of social justice is to be
redeemed." These remarks are qualified by observing that efficiency,
competence and merit are not synonymous and that it is undeniable that nature
has endowed merit upon members of backward classes as much as it has endowed
upon members of other classes. What is required is an opportunity to prove it.
It is precisely a lack of opportunity which has led to social backwardness, not
merely amongst what are commonly considered as the backward classes, but also
therefore, is one of the constitutionally recognised methods of overcoming this
type of backwardness.
reservation is permissible under Article 15(3).
22-A(2), however, does not provide for this kind of reservation for women. It
is a Rule for a very limited affirmative action. It operates, first of all, in
respect of direct recruitment to posts for which men and women are equally
suited. Secondly, it operates only when both men and women candidates are
equally meritorious. This is an express condition of Rule 22-A(2), thus limiting
its application. In other words, it contemplates a situation where, in the
selection test - whether it is written or oral or both, a certain number of men
and women candidates have got an equal number of marks. If the number of posts
to which these equally situated men and women can be appointed are limited, and
all of them cannot be appointed, then preference to the extent of 30% is
required to be given to women. This is clearly an affirmative action of
preference to the extent of 30% for women. To give an illustration, supposing
there are in the merit list, at a certain point in the order of merit, 20
candidates - men and women, who have secured equal marks.
are only ten posts which have to be distributed amongst these 20 candidates. In
such a situation, 3 out of these 10 posts will be given to women while the
remaining 7 posts will have to be allotted among the remaining 17 candidates.
In such a situation if there are any departmental rules for giving preference
they will operate.
example such rules at times provide that a person who is older in age will be
preferred, all other thing being equal.
kind of preference may have nothing to do with merit.
be merely an administrative guideline to select from amongst those who are
equally meritorious. Sometimes educational qualifications are looked at to find
out the marks obtained by the candidates in the examination. It could be that
the examination taken by different candidates is of different times.
Nevertheless, these marks are looked at to select some candidates out of a
group of equally meritorious persons. These norms for selection out of equally
meritorious persons, do not come into play under Rule 22-A(2) for giving
preference to women. The phrase "other things being equal" does not
refer to these other norms for choosing from out of equally meritorious
example, it would be somewhat startling to find men and women who have not
merely got the same number of marks in the selection test but are also born on
the same day in the same year. It is not the intention of Rule 22-A(2) that it
would apply only if all the candidates have not merely the same number of marks
in the selection test but are also born on the same date, or have identical
marks in the qualifying diploma or degree examination. The preference
contemplated under Rule 22-A(2) will come into operation at the initial stage
when in the selection test for the post in question, candidates obtain the same
number of marks or are found to be equally meritorious. Rule 22-A(2) prescribes
a minimum preference of 30% for women, clearly contemplating that for the
remaining posts also, if women candidates are available and can be selected on
the basis of other criteria of selection among equals which are applied to the
remaining candidates, they can also be selected. The 30% rule is also not
inflexible. In a situation where sufficient number of women are not available,
preference that may be given to them could be less than 30%.
not, however, find any reason to hold that this rule is not within the ambit of
Article 15(3), nor do we find it in any manner violative of Article 16(2) or
16(4) which have to be read harmoniously with Articles 15(1) and 15(3). Both
reservation and affirmative action are permissible under Article 15(3) in
connection with employment or posts under the State. Both Articles 15 and 16
are designed for the same purpose of creating an egalitarian society. As
Thommen, J. has observed in Indra Sawhney's case (supra) (although his judgment
is a minority judgment), "Equality is one of the magnificient cornerstones
of Indian democracy". We have, however, yet to turn that corner. For that
purpose it is necessary that Article 15(3) be read harmoniously with Article 16
to achieve the purpose for which these Articles have been framed.
premises, the judgment of the High Court in so far as it strikes down the
second part of Rule 22-A(2) is set aside and Rule 22-A(2) is upheld as valid.
The appeals are accordingly allowed. In the circumstances, there will be no
order as to costs.