Sudhir Agarwal - (1.) -Heard Sri Radha Kant Ojha, learned counsel for the petitioner and learned standing counsel for the respondents.
(2.) THE petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the advertisement No. 177/47/ Recruitment/ Peon/Date/Meerut dated 20.2.2002 issued by Deputy Excise Commissioner, Meerut Region, Meerut, notifying 12 vacancies of chaprasi/ chowkidar on the ground that in the aforesaid advertisement 20% reservation admissible for women pursuant to the Government order No. 18/1/99/Ka-2/99 dated 26.2.1999 (hereinafter referred to as "G.O. dated 26.2.1999") has not been applied and therefore, the aforesaid recruitment is illegal. THE petitioner has further sought a writ of mandamus commanding the respondents to make recruitment and appointment on the aforesaid post of chaprasi/chowkidar by providing reservation for women as admissible in law. The facts not much in dispute between the parties are that the State Government has issued a G.O. dated 26.2.1999, providing 20% reservation for women in public services and post against the vacancies liable to be filled in by direct recruitment. The said reservation is not applicable to the posts which are to be filled in by promotion. The G.O. further provides that the reservation for women shall be horizontal in nature and if any women candidate is selected on merit she will also be counted against the reserved vacancy meant for women. Further the vacancies for women reserved under the G.O. dated 26.2.1999 shall not be carried forward and in case of non-availability of suitable female candidate, the vacancy may be filled in by male candidate. However, for recruitment the eligibility and other qualification shall be same as provided under the Rules and there shall be no alteration. The respondent No. 3 published an advertisement on 28.2.2002 for recruitment on 12 vacancies of Class IV on the post of chaprasi/chowkidar out of which six are for general candidates, three reserved for other backward caste and three for Scheduled Caste. The eligibility condition provided that the candidate must be between the age of 18 to 35 years as on 1.7.2002, and for the candidates belonging to other Backward Caste and Scheduled Caste the maximum age is relaxable by five years. The educational qualification is 5th class pass having knowledge of cycling and certain relaxation in respect to ex-serviceman, dependents of freedom fighters etc. as provided under the rules are also admissible. The petitioner claims to have applied pursuant to the aforesaid advertisement but has not been selected since there was no reservation provided for women candidates in the said advertisement, hence this writ petition. The respondents have filed a counter-affidavit wherein it is not disputed that by G.O. dated 26.2.1999, 20% reservation has been prescribed for women candidates, but it is said that in the present recruitment the said reservation has not been applied for the reason that the incumbents sought to be recruited are to be posted on check posts situated on the borders of the State and involves security risk. It is also said that the selection has been finalized and appointments have also been made. Further it is said that non-providing reservation to women candidates on the check posts situated at remote places is neither violative of Articles 14 and 16 of the Constitution nor is otherwise arbitrary. In other words, the said check posts in Meerut Region lie at the places like Kairana, Bidona, Sarswan and Gauripur which are at remote areas dominated by criminal activities and even in day light women are not safe in those areas. Therefore, on account of security reasons reservation for women candidates has not been provided in the post in question which is neither illegal nor arbitrary. A supplementary-counter-affidavit has also been filed by the respondents stating that the Government took a policy decision not to provide reservation for women candidates as communicated by letter dated 3.6.2003 filed as Annexure-11 to the writ petition, therefore, there is no illegality in not providing reservation for women candidates. However, it is stated that since a similar issue was raised in Writ Petition No. 55340 of 2002, pursuant to interim order passed therein, the appointment letters have been issued to the selected candidates mentioning that the same is subject to the decision of the Writ Petition No. 55340 of 2002.
(3.) THE learned counsel for the petitioner contended that there is no exception providing in the G.O. dated 26.2.1999, enabling the respondents to exclude any public post or service from applying women reservation and therefore, non-providing the said is illegal and arbitrary and violative of G.O. dated 26.2.1999 read with Article 15 (3) of the Constitution. Learned counsel for the petitioner also submitted that the G.O. dated 26.2.1999 amounts to legislation making special provisions for women referable to Article 15 (3) of the Constitution of India and therefore, cannot be ignored in recruitment by the respondents unless by suitable legislation such power is conferred upon the respondents. Since, there is no such exception or relaxation provided in the G.O. dated 26.2.1999, the respondents have no authority or power or jurisdiction to decide on their own as to whether a particular post or service should be reserved for women candidates or not and therefore, the advertisement published by the respondents by not providing 20% reservation for women is illegal. Learned standing counsel on the contrary vehemently opposed the writ petition and advanced his submission reiterating his stand taken in the counter-affidavit.;