Ratios:
a. Reservation is one of the methods constitutionally recognized to overcome backwardness among any section of the people
b. State can take positive measures to remove backwardness of any category of people including women.

H.L. Gokhale, J.

This writ petition raises the question as to whether the reservation of 30% of posts provided for the women under the Tamil Nadu State and Subordinate Services Rules is a constitutionally valid reservation.

2. The facts leading to this writ petition are as follows:

The petitioner has the degree in Law and he desired to enter the government service as a Group - I officer in the State of Tamil Nadu. At the time of filing the writ petition in April 2008 he was 32 years of age. He claims to belong to a community, which has been classified amongst the Most Backward Communities. On first August, 2007 Advertisement No.120 was published by the 2nd respondent - Tamil Nadu Public Service Commission in Tamil News Paper ‘Dina Thanthi’ for various posts. The notification provided 30% reservation for women for various posts by laying down 30% reservation horizontally amongst all the communities. The petitioner wrote the preliminary examination and secured 213 marks. As far as the main examination is concerned the cut off marks were published on the website of the 2nd respondent for various categories and for the Most Backward Communities the cut off marks for men were fixed as 196.5 and for women 180. The petitioner, therefore, submits that women with lesser marks can get selected thereby denying the posts for male candidates with higher marks. In paragraph - 3 of his supporting affidavit he states that reservation for the women candidates denies the fundamental right of the male candidates to be considered for the vacancies reserved for women. He contends that this reservation of 30% vacancies for women as per Rule 21 of the Tamil Nadu State and Subordinate Service Rules is illegal and unconstitutional as Article 16(2) of the Constitution of India prohibits discrimination exclusively based on sex. He, therefore, submits that the reservation in favour of women in public employment is in violation of Article 16(2) of the Constitution of India. He seeks a declaration that Rule 21 of the Tamil Nadu State and Subordinate Service Rules, and the notification published by the second respondent on 1st August, 2007, insofar as it provides 30% reservation for women is illegal, unconstitutional and void. He also seeks a direction to the 2nd respondent to select the candidates by direct recruitment for public service without reserving any vacancy.

3. The writ petition has been opposed by the respondents at the admission stage itself by arguments across the Bar.

4. To understand the submissions of the petitioner we may first refer to the relevant advertisement, which is Advertisement No.120 calling for the applications for direct recruitment to the various posts in Group - I services, such as Deputy Collector, Deputy Superintendent of Police, etc. The notification was issued on the 1st August, 2007. The last date for receipt of applications was 31st August, 2007, and the date of preliminary examination was 18th December, 2007. In Clause - 4 of the notification the distribution of vacancies has been given, wherein it is stated that the vacancies will be filled in according to Rule of Reservation for appointments. In that clause the vacancies for General Category, Backward Class, Most Backward Class, Scheduled Caste and Scheduled Tribe are separately categorized and in each particular category reservation has been provided for women. This reservation is justified on the basis of Rule 21 of the Tamil Nadu State and Subordinate Services Rules.

5. Rule 21 is divided into sub Clauses (a), (b), (c) and (d). We are concerned with Clause (b). Clauses (a) and (b), which are relevant for our consideration, are therefore quoted herein below, and they read as follows:

“(a). Women alone shall be appointed to post in any institution or establishment specially provided for them.

Provided that men may be appointed, if suitable and qualified women are not available for such appointment.

(b) A minimum of 30 per cent of all vacancies whic