Hon'ble BHANDARI, J.—The legal question involved in these writ petitions is as to whether horizontal reservation permits inter transferability/ migration of candidates from one category to another?

2. To address the aforesaid issue and for convenience, the facts of S.B. Civil Writ Petition No.11119/2012 (Laxmi Kanwar & Anr. vs. State of Rajasthan & Ors), are taken.

3. The respondents issued an advertisement calling for applications for appointment on the post of Teacher Gr.III (Level I & II). In response to the advertisement, applications were submitted by the petitioners followed by selection test. The result of the selection was thereafter declared in the month of June, 2012. The respondents migrated reserve category women to general category based on their higher marks though many reserve category woman candidates availed relaxation/concession in selection thus not liable to be migrated to general category. It is apart from the fact that horizontal reservation does not permit migration from one category to another like vertical reservation. Prayer is accordingly to restrain the respondents to migrate reserve category woman candidates to general/open category women quota of 30%. Other writ petitions are for different posts but common question of law is involved.

4. Learned Counsel submit that equality in public employment is envisaged under Article 16 of the Constitution of India. The discrimination in public employment is prohibited only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Article 16(4) however carves out an exception to provide reservation in favour of any backward class of citizens not adequately represented in the services under the State. In view of Article 16 of the Constitution of India, a fundamental right exists in favour of every citizen to claim equal opportunity in public employment. The aforesaid Article does not permit discrimination on the ground of sex. Article 16(4) provides for reservation to backward class, but it is subject to Article 16(2) i.e. no discrimination on the ground mentioned therein. The reservation to the women is thus in violation of Article 16(2) of the Constitution of India because by providing reservation, male and female do not stand on same pedestal rather discrimination is caused amongst them.

5. To over come from the aforesaid problem and prohibition under Article 16(2), reservation to the women is taken under Article 15(3) of the Constitution though even Article 15(1) prohibits discrimination against citizen only on the grounds of religion, race, caste, sex, place of birth or any of them. Thus, Article 15(1) also reiterates what has been provided under Article 16(2) of the Constitution of India. Article 15(3) however permits State to make special provision for women and children. The aforesaid provision has been taken to save reservation in favour of women in ignorance of the fact that Article 15(3) does not speak about reservation but special provisions for women and children. If intention of framers of the Constitution would have been to provide reservation to women and children, then word “reservation” should have been used, instead special provision. Article 15(3) provides special provision for women and children thus reservation in favour of women becomes illegal and unconstitutional as discrimination on the ground of sex is prohibited under Article 15(1) and 16(2) of the Constitution of India.

6. It is only one part of the argument. If Article 15(3) allows State Government to make special provision for women and children, then question would be as to whether it can be reservation in public employment in ignorance of the prohibition under Article 16(2) of the Constitution of India where discrimination is prohibited on the ground of sex. The interpretation of Article 16(2) and Article 15(3) cannot be given in such a manner to keep conflict between two provisions of the Constitution. The subject of public employment is under A

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