(Prayer: THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 26.8.2010 PASSED IN APPLICATION NO.3353/2009 ANNEXURE A BY THE HONOURABLE KARNATAKA ADMINISTRATIVE TRIBUNAL.)
N. KUMAR J.
1. All these petitions are taken up for consideration together as the questions of law involved are one and the same. For the purpose of convenience, the parties in these petitions would be referred to as they are arrayed in the applications before the Karnataka Administrative Tribunal.
2. All the petitioners are diploma holders in Health Inspector course conducted by Para Medical Board, Directorate of Medical Education. They are qualified and eligible to be appointed to the post of Junior Health Assistant (Male) in the department of Health and Family Welfare Services. The second respondent - Directorate of Karnataka, Health and Family Welfare Department, issued a notification calling for posts of Junior Health Assistants (Male) and Junior Health Assistants (Female). The pay-scale for both these posts is Rs.6250 -12,000.
3. The petitioners applied to the post of Junior Health Assistants (Male). Their applications were duly received by respondent No.2 and they also issued acknowledgement. These petitioners were not called for the interview. Only male candidates received the interview letters. The final selection list of 972 male candidates was published. Aggrieved by the same, the petitioners preferred applications before the Karnataka Administrative Tribunal for declaration that the act of the respondents in depriving the applicants from taking the interview pursuant to the notification dated 27.2.2009 is unconstitutional; for a direction to the respondents to call them for interview and to consider their case on merits for appointment to the post of Junior Health Assistants (male). It was contended that the action of the respondents is violative of Articles 14, 15 and 16 of the Constitution. It also violates Rule 9(1-B) of the Karnataka Civil Services (General Recruitment) Rules 1977 (for short hereinafter referred to as ‘the Rules’), which provides for 30% of vacancies being reserved to be filled-up from among the women candidates.
4. After service of notice the respondents entered appearance, filed statement of objections contending that Rule 9(1-B) is not an absolute one, but on the other hand, the same is subject to any general instructions regarding the method for appointment. Reserving 30% of posts for women candidates is exempted in certain situations. The very nomenclature of the cadre i.e. the Junior Health Assistants (Male) itself implies that there can be no reservation for women candidates to the said cadre. In the impugned notification, posts of Junior Health Assistants (female) is notified for inviting applications from eligible candidates. In other words, in the Directorate of Health and Family Welfare Services there are two different and distinct cadres i.e. Junior Health Assistants (Male) and Junior Health Assistants (Female). Consequently no male candidate is eligible for being considered for the post of Junior Health Assistants (Female) vis-a-vis no female candidate is eligible for being considered for appointment to the post of Junior Health Assistants (Male). Therefore, 30% reservation for women for the post of Junior Health Assistants (Male) is not permissible. These Junior Health Assistants, both male and female, are recruited to be appointed to the sub-centres. The Ministry of Health and Family Welfare, Union of India has introduced certain welfare measures. One such scheme is multipurpose works scheme. Under the said scheme, one Health Worker (female) and one Health Worker (male) is required to be posted to each sub-centre. The Government of Karnataka has opened sub-centres for areas of 5,000 population and 3,000 population in hilly area. These sub-centres are under the control of Primary Health Centres which is a portion of an area which comprised population of 50,000. For the implementation of various national programmes i.e health services it is necessary that every sub centre shall have Junior Health Assistants (Male) and Junior Health Assistants (Female). Keeping this in mind, under the C andR Rules two different and distinct cadres of Junior Health Assistants (Male) and Junior Health Assistants (Female) have been created. The Ministry of Health, Government of India has prescribed job responsibilities to the staff in the Primary Health Centres. In the process, they have prescribed job responsibilities of Health Worker Male and Female. A comparison of these job responsibilities of the said two cadres reveals that in respect of certain matters they were common and in respect of certain matters work is distinct and different. Though medical termination of pregnancy is shown as responsibility of both male and female, it is to be noted that the responsibilities of Male Health Assistants relating to medical termination of pregnancy is only to identify the women requiring help and to inform the same to the Junior Male Assistants (Female) and to educate the community on the availability of services for medical termination of pregnancy. The responsibility of Junior Health Assistants (Male) relating to medical termination of pregnancy is not only to identify women requiring help for medical termination of pregnancy, but also refer them to the nearest approved institution and inform the health worker (female) and also mainly to educate the community on the availability of services for medical termination of pregnancy. Though the medical termination of pregnancy looks similar, the nature of job involved is different and distinct. The job responsibilities relating to communicable diseases also look similar. The grievance is when the nomenclature of both the posts is one and the same and the pay-scale attached to both the posts is one and the same, the respondents cannot prescribe different qualification for these posts and therefore, is unsustainable and not correct. The settled legal position of law is that the prescription of qualification, creation of cadre etc., are all in the domain of an employer. Therefore, the applicants are not entitled to contend that the prescription of different qualifications for these posts as arbitrary and without any substance. Similarly, they have pointed out the syllabus for the courses which are required for the qualification of these posts, the nature of work they are expected to perform in the post, also the difference in the nature of work between these two posts and contended that their action is not arbitrary and therefore, they sought for dismissal of the writ petition.
5. The Tribunal as is clear from the facts set out in the first para of the order dated 26.8.2010 was of the view that the main ground of attack is 30% reservation to women is not provided to the post of Junior Health Assistants (Male) and therefore, the applicants want a declaration that they are also entitled to apply for the said post. It appears that arguments were also addressed accordingly. However, insofar as the application No.1688/10 is concerned, the prayer was to quash the rule relating to recruitment of Junior Health Assistants (Male) and Junior Health Assistants (Female). The points that were raised for consideration is at para 7 which reads as under:-
1) Whether it can be said that by not providing 30% of the post for the women for recruitment to the posts of Junior Health Workers (Male), there is contravention of Rule 9(1-B)of the Karnataka Civil Services (General Recruitment) Rule 1977 r/w Article 15(3) of the Constitution of India;
2) Whether there is discrimination against women by not prescribing the qualification of diploma in Health Inspector conducted by Para Medical Board for the posts of Junior Health Workers (Female) though that qualification has been prescribed for Junior Health Workers (Male).
6. While answering point No.1 after referring to the constitutional provisions and the judgment of the Apex Court on the point, it held the job responsibilities are different. The very purpose of dividing the cadre of Junior Health Assistants (Male) into Junior Health Assistants (Female) was done taking into consideration discharge of responsibilities of certain jobs like family planning wherein it would not be prudent or admissible to depute a female junior health worker to educate male villagers regarding family planning and to depute male health worker in family planning and maternity matters to female villagers. They were of the view that for effective education on family planning in rural areas the difference in qualification of male Junior Health workers going to educate male population of villagers and female Junior health workers going to educate the female villagers is quite reasonable and the classification is justifiable. Those posts are created to achieve a job. Such posts are not created to meet the requirements of candidates, but the candidates have to meet the requirements of the posts. Therefore, they held that the argument that women have been discriminated by not being provided 30% of the reservations for the posts of Junior health worker (Male) is baseless. In answering point No.2 it held taking into consideration the requirements of each category of jobs, the Government has felt it proper to prescribe different qualifications. It is not demonstrated how the qualifications are unreasonable. May be the applicant did not possess the qualification prescribed for Junior Health Assistants (Female) and they possessed the qualification prescribed for Junior Health Assistants (Male). That does not make the qualifications prescribed for Junior Health Assistants (Female) unreasonable. Government is empowered to fix the equivalent qualification. Courts cannot interfere with such decisions of the Government except where prescription of qualification is unreasonable. They did not find that different qualifications prescribed for these categories of post amounts to discrimination among women candidates. Therefore, their applications were dismissed. Following the said judgment, they also dismissed another batch of applications. Both the orders passed by the Tribunal are challenged before us in these group of writ petitions.
RIVAL CONTENTIONS
7. Prof. Ravivarma Kumar, learned Senior Counsel appearing for these applicants assailing the impugned order contended the Tribunal has not properly appreciated the ground of attack. The contention urged is, Article 15(1) of the Constitution prohibits any discrimination on the ground of sex. However, Article 15(3) of the Constitution empowers the State to make special provisions for women even though they are discriminatory in nature. Dealing with equality of opportunity in matters of public employment, Article 16 (2) of the Constitution again prohibits discrimination on the ground of sex. Therefore, for the post of Junior Health Assistants (Male) when applications are called for from eligible candidates to fill up 1286 posts, the authorities have prescribed certain qualifications. All persons who possessed the qualification irrespective of the sex are eligible to apply. It is a fundamental right guaranteed to those applicants to insist on consideration of their claim for being appointed to the said post. Merely by prescribing the word 'male', women who possesses the requisite qualification are not considered for the said appointment. Therefore, the action of the respondents is contrary to Article 15(1) and 16(2) of the Constitution of India and it violates their fundamental right. Rule 9(1- B) of the Rules 1977 provide for 30% reservation for women. That does not prevent meritorious women possessing the aforesaid qualification for being appointed to the said post in excess of 30%. The second proviso makes the legal position very clear. In spite of these constitutional and statutory provisions, the Tribunal has proceeded in a tangent manner missing the real point and has passed the impugned order which is exfacie illegal and requires to be set aside. The learned counsel for the other petitioners supported the said argument. Several judgments are also relied on in support of their contention.
8. Per contra, the learned Government Pleader Smt. Revathy Adinath Narde, supporting the impugned order contended there is a justification for exclusion of women from being considered to the post of Junior Health Assistants (Male). Firstly two distinct cadres depending on their job responsibility has been formulated. The nomenclature issued is for recruiting 1286 Junior Health Assistants (Male) and 1032 Junior Health Assistants (Female). The qualification prescribed for these two posts are different. The nature of work to be performed by them are different. In fact, under the National Health Scheme, to each sub-centre one female and one male Junior Health Assistant is to be appointed. It is under those circumstances this differentiation is made and women are not entitled to be considered for the post of Junior Health Assistants (Male). There is no discrimination. There is no denial of opportunity in employment as 1032 posts are exclusively meant for women i.e. Junior Health Assistants (Female). The pay-scale is one and the same and therefore, she submits there is no merit in these writ petitions. She also contended that before framing these rules, a draft rule was published calling for objections. These applicants did not file any objections. After finalising the Rules it is not open to them to challenge the said Rules on the aforesaid grounds. Therefore, she submits that when male are not entitled to apply to the 1032 post of Junior Health Assistants (Female), women are also not entitled to apply to the 1286 posts of Junior Health Assistants (Male). Insofar as Rule 9(1-B) is concerned, 30% is the reservation prescribed for women. If both the posts are clubbed together, they have been given posts nearing to 50%. Therefore, they cannot have any grievance on that score. Therefore, there is no case made out for interference with the impugned order.
POINT FOR CONSIDERATION
9. In the light of the aforesaid facts and the rival contentions the point that arise for our consideration is as follows:-
'Whether the action of the respondents in not considering the claim of the applicants, who are all "women" to the post of Junior Health Assistants (Male), when admittedly they possessed the qualification prescribed under the Rules for the said post, is discriminatory and hit by Article 15(1) and 16(2) of the Constitution of India?
10. In exercise of power conferred by sub-section (1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978, the Government has made the Karnataka Health and Family Welfare Department Services (Recruitment to Certain Posts) (Special) Rules, 2009. Rule 4 provides for qualification for direct recruitment to the vacancies under the rules as specified in column (4) of the Schedule as well as the maximum age. Rule 5 provides for application for recruitment. It provides that Special Recruitment Committee shall advertise category of posts and the number of vacancies in the Official Gazette specifying the conditions of eligibility, the nature of selection, the classification of posts in accordance with the reservations of posts provided by or under any law and invite applications from the eligible intending candidates. Abstract of such advertisement shall also be published in the newspapers having wide circulation in the State, of which one shall be in Kannada. Rule 6 provides for mode of recruitment and list of selected candidates. The Special Recruitment Committee shall from among the candidates who have applied in pursuance to the advertisements under Rule 5, prepare a list of candidates eligible for appointment under these rules in respect of each category of post in the order of merit determined on the basis of the marks obtained in the qualifying examination as specified in column (4) of the Schedule. The number of candidates to be selected under sub-rule (1) shall be equal to the number of vacancies notified. It is thereafter the candidates whose names are included in the list sent by the Special Recruitment Committee shall be appointed by the Appointing Authority. Rule 8 specifies that the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957, the Karnataka Civil Services (Conduct) Rules, 1966 and Karnataka Civil Services (Prohibition) Rules, 1977 and all other Rules for the time being in force regulating the recruitment and conditions of service of Government Servants made or deemed to have been made under the Karnataka State Civil Services Act, 1978, in so far as such rules are not inconsistent with the provisions of these rules, shall be applicable to the selection made and to the persons appointed under these rules.
11. SI.No.8 of the Schedule to the said Rules deals with Junior Health Assistant (Male). The pay scale is Rs.6250-12000. 1286 vacancies are to be filled up. The minimum qualification prescribed for the said post is as under:
"(1) Pass in SSLC or equivalent qualification and Multipurpose Basic Health Worker Training.
OR
(2)Pass in SSLC or equivalent qualification and two years Diploma in Health Inspectors training in Karnataka Vocational Board.
OR
(3) Pass in SSLC or equivalent qualification and three years Diploma conducted by Para-Medical Board, Karnataka.
OR
(4) Pass in PUC with Science subjects and two years Diploma in Health Inspectors Course conducted by Para-Medical Board, Karnataka"
12. The said Schedule also provides at Sl.No.13for Junior Health Assistant (Female). The pay scale being equal to that the Junior Health Assistant, i.e., Rs.6250-12000. The number of vacancies to be filled up is 1032 and the minimum qualification is as under:
"(1) Pass in SSLC or equivalent qualification
OR
(2) Must have passed Junior Health Assistant (Female) training course from any of the Government Training Institutes in the State of Karnataka or any Institute recognized by the Govt, of Karnataka."
13. A comparison of the minimum qualification prescribed for both these posts makes it clear that the person possessing minimum qualification prescribed for Junior Health Assistant (Male), is not eligible to apply for Junior Health Assistant (Female). Similarly, the minimum qualification prescribed for the post of Junior Health Assistant (Female) is not eligible to apply for Junior Health Assistant (Male). Though the pay scale is one and the same, the qualification prescribed are totally different. At this stage, it is also relevant to note that the minimum qualification prescribed for Junior Health Assistant (Female) is, pass in SSLC or equivalent qualification and must have passed Junior Health Assistant (Female) Training Course from any of the Government Training Institutes in the State of Karnataka or any Institute recognized by the Government of Karnataka. Therefore it is clear that this Junior Health Assistant Training Course is meant only for women. That training is not available to men. In view of the minimum qualification prescribed which is exclusively meant for females, the question of any male applying to the post of Junior Health Assistant (Female) would not arise.
14. The Rural Health Division, Ministry of Health and Family Welfare, Government of India, New Delhi has published a booklet showing the job responsibilities of the staff of the Primary Health Centre.
15. Clause (6) sets out the job responsibility of Health Worker Male, which reads as under:
“1. Malaria
2. Communicable Diseases
3. Leprosy
4. Tuberculosis
5. Environmental Sanitation
6. Expanded Programme on Immunisation
7. Family Planning
8. Medical Termination of Pregnancy
9. Health Education
10.Nutrition
11. Vital Events."
Clause (7) prescribes job responsibility of Health Worker Female, reads as under:
“1. Maternal and Child Health
2. Family Planning
3. Medical Termination of Pregnancy
4. Nutrition
5. Expanded Programme on Immunisation
6. Dia Training
7. Communicable Diseases
8. Vital Events
9. Record Keeping
10. Primary Medical Care
11. Team Activities.”
16. The Directorate of Karnataka Family and Health Department issued a notification dated 27.02.2009 inviting applications in the prescribed form from eligible candidates for several posts in the Health Department including the post of Junior Health Assistant (Male) and Junior Health Assistant (Female), setting out the number of vacancies available and reservations to various categories. In the note instructions for candidates they have clearly set out the requirements which the candidates have to fulfill. In those instructions it is not mentioned that for the post of Junior Health Assistant (Male), women who possess the minimum qualification prescribed are not eligible to apply. All that the schedule provides is what is the minimum qualification a candidate should possess to be eligible to apply to the said post. The petitioners herein applied to the said post as all of them possessed the prescribed qualification as set out in the schedule. No written examination is prescribed for the said post. Rule 6 makes it clear that, among the candidates who have applied in pursuance of the advertisement under Rule 5, the said Recruitment Committee shall prepare list of candidates eligible for appointment in the order of merit determined on the basis of marks obtained in the qualifying examination as specified in column No.4 of the schedule. Therefore, whoever is more meritorious they are eligible for appointment. However, the petitioners were not selected for the said post in spite of they possessing requisite qualification on the ground that they are women and the said post is meant for male. Therefore, the petitioners are before this Court complaining that the actions of the respondents is violative of Articles 14, 15 and 16 of the Constitution of India and they have been discriminated on the basis of sex which is contrary to the constitutional scheme which provides for how the appointment is to be made to a public post. The Tribunal proceeded on the assumption that these petitioners are invoking Rule 9(1-B) of the Rules and are claiming 30% reservation among the notified vacancies. Therefore, it was of the view that, if 1,286-male and 1,032-female Junior Health Assistants posts notified to be fill up, if both of them are clubbed together, the women get more than 30% which is the limit prescribed under the law. Therefore, they did not find any arbitrariness and the application came to be rejected. The question is, not whether the provision of reservation is complied with or not. The question is, whether the women being held to be not eligible to the post of Junior Assistant (Male), violates the fundamental right of the petitioners.
17. In this regard the learned counsel for the petitioners relied on several judgments.
JUDGMENTS
18. The Apex Court in the case of Miss C.B.MUTHAMMA versus UNION OF INDIA AND OTHERS [AIR 1979 SC 1868] dealing with the provisions in Service Rules requiring a female employee to obtain the permission of the Government in writing before her marriage is solemnised and denying right to be appointed on ground that the candidate is a married woman, held as under: -
“6. At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the book and Law in action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.
7. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern…” 19. The Apex Court in the case of AIR INDIA versus NARGESH MEERZA AND OTHERS [AIR 1981 SC 1829] held as under: -
"66. Even otherwise, what Articles 15 (1) and 16 (2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations. On this point, the matter is no longer res integra but is covered by several authorities of this Court. In Yusuf Abdul Aziz versusThe State of Bombay and Husseinbhoy Laljee, 1954 SCR 930 : (AIR 1954 SC 321), sex was held to be a permissible classification. While dealing with this aspect of the matter this Court observed thus (at p. 322 of AIR).
"Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in section 497 of the Indian Penal Code."
20. The Apex Court in the case of GOVERNMENT OF ANDHRA PRADESH versus P.B. VIJAYKUMAR AND ANOTHER [AIR 1995 SC 1648] dealing with the reservation of post for women under Article 15(3) of the Constitution held as under:-
"4. Article 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. At the 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 sex.
5. The 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 16(2).
6. This 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. At the 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. These 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. Therefore, 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. Therefore, 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.
7. The 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 socioÂeconomic activities of the nation on a footing of equality. It is in order to eliminate this socioÂeconomic 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 cut 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.
8. What 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 Tribes. Article 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 versusChampakam 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 (at P.228 para 9 of AIR):-
"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 and Others versusState of Mysore (1963 Supp. (1) SCR 439) and a number of other cases which need not be referred to here. Under 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 women. In fact, in the case of lndra Sawhney and Others versusUnion of India and Others (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."
21. The Apex Court in the case of UNION OF INDIA versus K.P. PRABHAKARAN [(1997) 11 SCC 638] held asunder: -
“2…….It has been held that Article 15 deals with every kind of State action in relation to the citizens of this country and that every sphere of activity of the State is controlled by Article 15(1) and, therefore, there was no reason to exclude from the ambit of Article 15(1) employment under the State. Since Articles 15(1) and 15(3) go together, the protection of Article 15(3) would be applicable to employment under the State falling under Articles 16(1) and (2) of the Constitution. In view of the above referred judgment of this Court in Govt. of A.P. versusP.B. Vijayakumar [(1995) 4 SCC 520], the impugned judgment of the High Court holding that Article 15(3) has no application in matters relating to employment under the State falling under Articles 16(1) and (2) cannot be upheld and has to be set aside."
22. In the case of ANUJ GARG AND OTHERS versus HOTEL ASSOCIATION OF INDIA AND OTHERS [(2008) 3 SCC 1]dealing with Section 30 of the Punjab Excise Act, 1914 which prohibited employment of "any man under the age of 25 years" or "any woman" in any part of such premises in which liquor or intoxicating drug is consumed by the public, the Apex Court after reviewing the entire case law on the point and also noticing the law in various countries across the globe held has under :-
"50. The test to review such a protective discrimination statute would entail a two-pronged scrutiny:
(a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle,
(b) the same should be proportionate in measure.
51. The Court's task is to determine whether the measures furthered by the State in the form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line in this behalf would a functioning modem democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis. In fine, there should be a reasonable relationship of proportionality between the means used and the aim pursued."
23. A Division Bench of the Kerala High Court in the case of A.N.RAJAMMA versusSTATE OF KERALA AND OTHERS [1983 LAB I.C.1388] where despite their high ranks in select list, they were not appointed, apparently because they were women, held as under : -
"20. There is much to be said in favour of the contention of the petitioners that the prescription of cycling qualification in the case of women for appointment to the posts of peons is not justified. Evidently the post of peon covers a large area of the posts in the Last Grade Service. Exclusion of women from the post of peon would operate as a substantial exclusion of women from the posts in the Last Grade Service particularly when males who are also so excluded for want of cycling qualification nevertheless get appointments to the Last Grade Service in the other categories to which women are considered unsuitable for appointment 'on account of ardulous duties' of such posts. This seems to be highly unfair. It is not that every post of peon requires cycling. There may be posts where cycling could be dispensed with. There is no positive averment in this case that duties on the peons are such that for all the posts of peons, without cycling, it will be impossible to conceive of a person holding the post effectively. In fact there cannot be such a case, for, ever since 1966 when the special rules came into force till 1978 cycling was only a 'desirable qualification' which meant that males and females could be appointed as persons even if they did not know cycling. After 19-3-1981 the position is the same. In fact it is better, since, cycling qualification was not necessary at all in regard to peons in the case of females.
34. Remembering what the practical consequence of the attitude of the Government has been, namely that for one reason or other not a single woman has been advised to any one of the 260 posts we find that this is a clear case of discrimination, a discrimination which falls not within Article 14 of the Constitution only, but also within the specific prohibition in Article 15(1) of the Constitution. The mandate to the State that it shall not discriminate against any citizen on grounds only of sex is one of the most important fundamental rules that calls for strict observance. In the framing of any statute of law or the making of subordinate legislation by a delegated legislative authority this is a fundamental rule which, under no circumstances, would bear violation. Unlike the freedoms in Art. 19 of the Constitution there is no scope for restricting the absolute scope of the rights under Article 15 (1) of the Constitution. There would be no scope whatever to justify differentiating between the male and female sexes in the matter of appointment. The right of women should not be denied on fanciful assumptions of what work the woman could do and could not do.
Whether the work is of an arduous nature and therefore unsuitable for women must be decided from the point of view of how women feel about it and how they would assess it. If the work of say, a Duffadar, a Cleaner-cum-Conductor, Court Keeper, Chairman, Housekeeper or a Field Worker does not suit a woman or she would feel humiliated by such work it is for her to decide whether she should apply for the concerned job and not for the male dominated legislature or the male dominated) bureaucratic machinery which may be functioning as a delegated legislative body to decide whether women should be permitted to do such work or not. Incidentally in the 29 categories of excluded posts mentioned in Ext. R.1(b) letter of Government we find some such as that of Housekeeper which, we would have thought, is traditionally the preserve of women, but from these few posts too women seem to have been excluded. It is regrettable that decisions of material consequence said to be in the so-called interests of women purporting to protect the position of women are generally taken not after any consultation with representative bodies of women, but unilaterally by the administrators, most of whom carry with them the hang over of the past, the past of male domination in our social set up.
35. Judged in the background of our traditional attitudes and conventional sentiments it may perhaps appear that women whose, role has all along been understood to be domestic dominance cannot expose and adjust herself to some of the occupations which have been the sole preserve of men hitherto and that might perhaps explain the inaccessibility of several posts to women envisaged in the impugned Note to the rule. Just as the Civil Rights Movement of the 1950s and 1960s in the United States aroused a new national sensibility to sex discrimination, situations may arise in this country too compelling women to seek enforcement of what is due to them. Women is no longer content merely to sit at home expecting the man to earn the bread for the family. Both are quite often equal partners in sharing the financial burden of running the home. This social change must necessarily have its impact upon traditional perspectives concerning women's role and that must call for change in our laws, particularly so in the light of the constitutional mandate of equality. Rules should not operate as a deterrent to such change, but promote it. A time must necessarily come when all posts excepting those which due to physical reasons women cannot take up must be available to them. The attempt should not be to perpetuate discrimination but to obliterate it. We are sorry to see that the list of excluded categories started with a small number, namely 12 but is growing rapidly in size as newer and newer categories of posts are added to the excluded categories in the Last Grade Service.
36. In these circumstances we have no hesitation to hold that the denial of appointment to women to posts in the Last Grade Service on the sole ground that they are women is opposed to Articles 14 and 15 (1) of the Constitution of India and consequently Note to R.5(b) of the Special Rules for the Kerala Last Grade Service, as it stands has to be struck down as unconstitutional. This does not preclude new but rational approach being made to the whole question by the Government.
39. Even so, independent of the ultimate result of the case it is only appropriate that we consider the plea of the Kerala Public Service Commission, that of access to this Court by a person who does not come by way of a formal petition paying court-fee and drafting the petition in the traditional manner. Rules of procedure are not incapable of waiver and must necessarily be waived in appropriate circumstances in the interest of justice by a Court sitting under Article 226 of the Constitution of India, for the ultimate object of the exercise of jurisdiction is to mete out justice in matters which fall within its jurisdiction. While a Court should be extremely careful not to trespass upon a field which is not its and should take extreme care to confine its operation to matters which are entirely within its competence for decision, once the question falls within its jurisdiction and competence and the matter before it requires and deserves attention by the court the prime emphasis is to be given to the justice of the case. A court should not be rigid or inflexible in its approach to the case and should not throw out a case merely because a person has not come to the court in the manner in which the rules envisage he should come to this Court. Otherwise this Court will be inaccessible to a large section of the people who, by reason of impecuniousness and want of technical know how as how to approach a court, are unable to get the benefit of jurisdiction by this Court in an issue of importance, in an issue in which, had they been able to approach this Court by engaging a counsel, which they were unable to do, they would have obtained appropriate relief.
We must always remember that the directive principles of State policy in our Constitution of equal justice and free legal aid envisaged in Art. 39A is not an empty declaration and the State is under an obligation, a constitutional obligation though not enforceable, to make suitable legislation or frame suitable schemes to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. In our State where no such schemes has been framed for enabling access to a citizen so situated economically as not to be able to afford legal aid on his own for resort to this Court strict enforcement of procedural rules in force even prior to the Constitution (Forty Second Amendment) Act 1976 by which Amendment Art. 39A of the Constitution was incorporated would be destructive of social justice and the procedural rules should be so read down as not to nullify a citizen's rights. In other words until the State discharges its obligation under Art.39A by extending its helping hand by providing legal aid to those who, for economic or for other reasons, deserve its aid the court should not deny justice merely on the ground that a person has not come to this Court in the manner contemplated by the rules, but has chosen to resort to this Court as an un-informed person, unÂinformed of the procedure of this Court or as a person who cannot afford to engage a lawyer. Whether a given case deserves this special treatment is entirely a matter for the Court to decide."
LEGAL POSITION
24. Article 14 of the Constitution forbids the State to deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the territory of India irrespective of differences of circumstances. It only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another as regards the subject-matter of the legislation and their position is substantially the same. By the process of classification, the State has the power to determine who should be regarded as a class for the purposes of legislation and in relation to a law enacted on a particular subject. The classification to be valid, however, must not be arbitrary, but must be rational. It must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, but those qualities or characteristics must have a reasonable nexus or relation to the object of the legislation. In order to pass the test, two conditions have to be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation. Article 15 (1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth. It is an extension of Article 14, which expresses a particular application of the general principle of equality. However, Article 15(3) is an exception to this general rule. Nothing in Article 15 shall prevent the State from making any special provision for women and children. Therefore, no citizen shall, on grounds only of religion, race, caste, sex or place of birth or any of them be subjected to any disability, liability, restriction or condition. The said provision has no application when it comes to the State making any special provision for women and children. Article 16 which takes its root again from Article 14, ensures equality of opportunity in matters of employment under the State. It guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. Clauses (1) and (2) of Article 16 really give effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Clause (1) of Article 15 with specific reference to the services under the State. Article 14 is an injunction to both the legislative and executive organs of the State and other subordinate authorities not to deny any person equality before law or the equal protection of the laws. Article 16 is only an instance of the general rule of equality laid down in Article 14. The equality envisaged in the Indian Constitution outlaws discrimination in a general way and guarantees equality before law to all persons. The guarantee of equality in matters relating to employment under the State, given under Articles 14 and 16 of the Constitution, does not prohibit the state from making a reasonable classification of its services and to prescribe reasonable rules relating to recruitment and conditions of service. The fundamental right of equality means that persons in like situations, under like circumstances, are entitled to be treated alike. Article 14 of the Constitution ensures equality among equals and its aim is to protect persons similarly placed against discriminatory treatment. The equality before law guaranteed under Articles 14, 15 and 16 being a constitutional injunction against both the legislature and the executive organ of the State, neither legislature nor the rule-making authority can make a law or rule which is violative of these articles.
25. It is in this background if we look at the State action in the Rules framed for recruiting the Junior Health Assistant (Male) nowhere it is mentioned that the said posts are meant only for men. The schedule to the Rule expressly states what is the minimum qualification which a candidate should possess to be eligible for being considered for appointment to the said post. The said qualification may be acquired both by male and female. The criteria is that the candidate should possess the said qualification. Once a candidate possess the said qualification, sex should not come in the way of denying the candidate from considering his or her case for appointment to the said post. On the pretext that the said post is meant only for male, women candidates who possess the aforesaid qualification are not considered for being appointed to the said post. The discrimination is patent. The said discrimination runs counter to Articles 14, 15 and 16 of the Constitution. Merely because in the brackets the word "male" is mentioned it does not follow that only candidates who belong to the male sex and who possess the qualification are eligible for the said post. The criteria is that the candidate should possess that minimum qualification irrespective of the sex to which they belong. If on the ground of sex the women are sought to be excluded it violates their fundamental right of being considered for public employment which is conferred on them under Article 16 of the Constitution. It violates Articles 15(1) and (2) of the Constitution as it forbids discrimination on the basis of sex.
26. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. 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. At the 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) places certain additional prohibitions in respect of a specific area of state activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2).
27. Therefore, 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.
28. The 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