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Tuesday, 1 September 2020

BIG NEWS: Gujarat High Court's major judgment in women's reservation case, repeals these provisions of the government

 BIG NEWS: Gujarat High Court's major judgment in women's reservation case, repeals these provisions of the government

CILPA 1910/2019 JUDGMENT MR . KAMAL TRIVEDI , LD . ADVOCATE GENERAL for the Respondent ( s ) No. 4 MR SHIVANG J SHUKLA ( 2515 ) for the Respondent ( s ) No. 5 NOTICE SERVED BY DS ( 5 ) for the Respondent ( s ) No. 4,6,7,8 MR . GAUTAM JOSHI , LD . SR . COUNSEL with MR . VYOM H SHAH ( 9387 ) for the Respondent ( s ) No. 1,2,3 CORAM : HONOURABLE THE CHIEF JUSTICE MR . VIKRAM NATH and HONOURABLE MR . JUSTICE J.B.PARDIWALA Date : 05/08/2020 COMMON ORAL JUDGMENT ( PER : HONOURABLE MR . JUSTICE J.B.PARDIWALA ) 1 . As the issues raised in both the captioned appeals are the same and the challenge is also to the selfsame judgment and order passed by the learned Single Judge , those were heard analogously and are being disposed of by this common judgment and order . 2 . For the sake of convenience , the Letters Patent Appeal No. 1910 of 2019 is treated as the lead matter . 3 . This appeal under Clause 15 of the Letters Patent is at the instance of the original Respondents Nos.3.4 . and 5 respectively of a writ application and is directed against the judgment and order passed by a learned Single Judge of this court dated 29.11.2019 in the Special Civil Application No. 18654 of 2018 and allied petitions , by which , the learned Single Judge allowed the writ applications and issued directions to the Gujarat Public Service Commission . 4 .


 The facts , giving rise to this litigation , may be summarized as under : Page 2 of 48 CILPA / 1910 / 2015 JUDGMENT 4.1 The respondent No.5 herein - Gujarat Public Service Commission came up with a public advertisement dated 15th July 2017 for the recruitment to the 115 posts of the Police Inspector ( Unarmed ) . It appears that the State Government has framed rules called the Gujarat Civil Services ( Reservation of Posts for Women ) Rules , 1997 ( for short " the Rules , 1997 " ) .

posts in connection with the affairs of the State . The relevant Rule 2 provides as under : " RULE 2 : Reservation of posts for women - Notwithstanding anything contained in any rules relating to recruitment to public services and connection with the affairs of the State or orders posts in ( a ) there shall be reserved in favour of women belonging to the Scheduled Castes thirty percent of the posts reserved in favour of such Castes ; ( b ) there shall be reserved in favour of women belonging to the Scheduled Tribes thirty percent of the posts reserved in such Tribes 4/48 ( c ) there shall be reserved in favour of women belonging to the Socially and Educationally Backward Classes thirty percent of the posts reserved in favour of such Classes ( d ) there shall be reserved in favour of women thirty percent of the posts not being posts reserved in favour of the Scheduled Castes Scheduled Tribes and Socially and Educationally Backward Classes . Explanation , the purposes of these rules . ( a ) " Scheduled Castes " means such castes , races or tribes or parts of groups within such castes , races or tribes as are deemed to be Page 3 of 48 CALPA 1910/2019 JUDGMENT Scheduled Castes , in relation to the State of Gujarat under Article 341 of the Constitution of India ( b ) " Scheduled Tribes " means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution ( C ) " Socially and Educationally Backward Class " means such castes , classes or groups as are determined by the State Government Socially and Backward Clas : under Government Resolution , Labour , Social Welfare and Tribal Development Department No. BCR 10734H , dated the 1st April , 1978 , as amended from time to time . " 4.2 The materials on record further indicates that the State Government , by the Gujarat Civil Services ( Reservation of Posts for Women ) ( Amendment ) Rules , 2012. amended the Rules , 1997 by inserting Rule 3 therein . The newly added Rule 3 provides for the method of the application of the reservation for women . The newly added Rule 3 reads as under : " 3. Manner of applying reservation of posts for women : Tha chall 1 horiental

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Page 4 of 48 CLPA / 1910 / 2019 JUEGMENT ( 10 ) Vertical reservation means reservation in favour of Scheduled Castes . Scheduled Tribes and Other Backward Classes under clause ( 4 ) of article 16 of the Constitution of India . ( 2 ) The reservation of posts for women mentioned in rule 2 shall be applied ( 0 By first filling up the quota of the categories mentioned in clauses ( a ) to ( d ) of rule 2 in order of merit : and then Finding out the nunber of candidates among them who belong to the respective reservation category and if the number of candidates in such lists is equal to or more than the number of special reservation quota of women , then it shall not be necessary for further selection towards the reseruation quota of women Only If there is any shortfall of the women candidates in any such category , the requisite number of women belonging to such category shall have be taken by deleting the corresponding number of candidates from the bottom of the list relating to such category . " 4.3 It appears on plain reading of the newly added Rule 3 , referred to above , that if women belonging to any of the reserved categories on their own merit , get selected to the open competition vacancies , they would be counted or considered as the open competition candidates ( General Candidates ) even for the purpose of Horizontal ( Special Reservation ) . The General Administration Department ( GAD ) of the Government of Gujarat issued the Government Resolution dated 01.08.2018 , clarifying certain issues / doubts that arose in the matter of application of Special ( Horizontal ) Reservation for women in public service and posts in connection with the affairs of the State . Page 5 of 48 CLPA / 1910 / 2019 JUDGMENT 4.4 For ready reference , the two Clauses Nos . 12 and 13 of the Government Resolution dated 01.08.2018 are reproduced hereunder ; a woman 12. If candidate If a woman candidate belonging to SC / ST / SEBC gets belonging to SC / ST / SEBC


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