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CASE NO.:

Appeal (civil) 13393 of 1996

PETITIONER:

Vijay Lakshmi

RESPONDENT:

Punjab University and Others

DATE OF JUDGMENT: 23/09/2003

BENCH:

M.B. SHAH & Dr. AR. LAKSHMANAN.

JUDGMENT:

J U D G M E N T

Shah, J.

Preference given to a woman for being appointed as a Principal

of the Government College for Girls is held to be violative of Articles

14, 15 and 16 of the Constitution of India. â\200\224 On the face of it, it

appears that such reservation in favour of a Woman for being

appointed as Principal of exclusive Girls College cannot be held to be

violative of right to equality.

However, this question is required to be decided in view of the

judgment rendered by the High Court of Punjab and Haryana in Writ

Petition No.11694 of 1994 holding that Rules providing reservation /

preference in favour of a woman is violative of Articles 15 and 16 of

the Constitution. That judgment is challenged by filing this appeal.

For this purpose, the High Court interpreted Rules 5, 8 and 10 of

the Punjab University Calendar Volume â\200\223 III, which are as under:â\200\224

"Rule 5. The Principal of a women's college shall be

lady who shall possess at least Master's Degree in 1st or

2nd Class or an equivalent degree with experience of

teaching in a college. This rule shall not apply to

Women's colleges whose men or women Principals have

already been approved. Provided that on their retirement,

a qualified lady Principal shall be appointed.

Rule 8. As far as possible, ladies shall be appointed as

teachers. In case a qualified lady teacher in a particular

subject is not available, the college authorities may

appoint a man teacher with the prior approval of the Vice

Chancellor. A man teacher so appointed shall not be

confirmed by the management in his post and he shall be

replaced as soon as a suitable qualified lady teacher is

available.

Rule 10. The College shall have a hostel in or near the

premises of the college. It shall be under the charge of a

whole time Woman Superintendent. There shall a part

time or whole time women Medical Officer."

For deciding the issue, we would refer to established

propositions of law interpreting Articles 14 to 16, which are:â\200\224

? Article 14 does not bar rational classification;

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? Reasonable discrimination between female and male for

an object sought to be achieved is permissible;

? Question of unequal treatment does not arise if there are

different sets of circumstances;

? Equality of opportunity for unequals can only mean

aggravation of inequality;

? Equality of opportunity admits discrimination, with

reasons and prohibits discrimination without reason. â\200\224

Discrimination with reasons means rational classification

for differential treatment having nexus with

constitutionally permissible objects. â\200\224 It is now an

accepted jurisprudence and practice that the concept of

equality before the law and the prohibition of certain

kinds of discrimination do not require identical treatment.

The equality means the relative equality, namely the

principle to treat equally what are equal and unequally

what are unequal. To treat unequals differently

according to their inequality is not only permitted but

required. {Re: St. Stephen's College Vs. University of

Delhi [(1992)1 SCC 559]}.

? Sex is a sound basis for classification.

? Article 15 (3) categorically empowers the State to make

special provision for women and children;

? Articles 14, 15 and 16 are to be read conjointly.

In the light of the aforesaid principles, on the concept of

equality enshrined in the Constitution, it can be stated that there could

be classification between male and female for certain posts. Such

classification cannot be said to be arbitrary or unjustified. If separate

colleges or schools for girls are justifiable, rules providing

appointment of lady principal or teacher would also be justified. The

object sought to be achieved is a precautionary, preventive and

protective measure based on public morals and particularly in view of

the young age of the girl students to be taught. One may believe in

absolute freedom, one may not believe in such freedom but in such

case when a policy decision is taken by the State and rules are framed

accordingly, it cannot be termed to be arbitrary or unjustified. Hence,

it would be difficult to hold that rules empowering the authority to

appoint only a lady Principal or a lady teacher or a lady doctor or a

woman Superintendent are violative of Articles 14 or 16 of the

Constitution.

Secondly, such reservation by the State is permissible in

exercise of powers conferred under Article 15(3), which provides

thus:â\200\224

"15. Prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth.â\200\224(3) Nothing

in this article shall prevent the State from making any

special provision for women and children."

POLICY DECISION OF RESERVATION FOR FEMALES AND

RIGHT TO EQUALITY:

In the judgment per majority, the High Court after considering

the duties which are required to be performed by the Principal of

School observed thus:â\200\224

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"Keeping in view the nature of the duties which

are required to be performed by the Principal in relation

to the girl students it cannot be deduced that such

students could be subjected to any sort of exploitation.

For dealing with the students, the Head of the

Department has equal and similar powers as are

conferred upon the Principal, which if misused may

result in disastrous consequences."

It is difficult to agree to the aforesaid reasoning because as

stated above, it is not for the Court to sit in appeal against the policy

decision taken by the State Government. It is for the State to decide

whether such rule is a preventive or precautionary measure so that

young fallible students may not be subjected to any sort of

exploitation.

a) For the policy decision of classification, we would straightway

refer to the decision rendered by this Court in State of Jammu &

Kashmir v. Triloki Nath Khosa [(1974) 1 SCC 19], wherein the Court

[Chandrachud, J. (as he then was)] (in para 20) succinctly held

thus:â\200\224

"â\200¦The challenge, at best, reflects the respondent's

opinion on promotional opportunities in public services

and one may assume that if the roles were reversed,

respondents would be interested in implementing their

point of view. But we cannot sit in appeal over the

legislative judgment with a view to finding out whether

on a comparative evaluation of rival theories touching the

question of promotion, the theory advocated by the

respondents is not to be preferred. Classification is

primarily for the legislature or for the statutory authority

charged with the duty of framing the terms and

conditions of service; and if, looked at from the

standpoint of the authority making it, the classification is

found to rest on a reasonable basis, it has to be upheld."

It was also observed that discrimination is the essence of

classification and does violence to the constitutional guarantee of

equality only if it rests on an unreasonable basis and it was for the

respondents to establish that classification was unreasonable and bears

no rational nexus with its purported object. Further, dealing with the

right to equality, the Court (in paras 29 & 30) held thus:â\200\224

"But the concept of equality has an inherent

limitation arising from the very nature of the

constitutional guarantee. Equality is for equals. That

is to say that those who are similarly circumstanced

are entitled to an equal treatment.

Since the constitutional code of equality and

equal opportunity is a charter for equals, equality of

opportunity in matters of promotion means an equal

promotional opportunity for persons who fall,

substantially, within the same class."

b) Now, we would next refer to the decision in Air India v.

Nergesh Meerza and others [(1981) 4 SCC 335], which propounds

the right of equality under Article 14 after considering various

decisions. In that case, constitutional validity of Regulation 46(i)(c)

of Air India Employees' Service Regulations was challenged,

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which provides for retiring age of an Air-Hostess. The Court (in

paragraph 39) summarized thus:â\200\224

"Thus, from a detailed analysis and close

examination of the cases of this Court starting from 1952

till today, the following propositions emerge:

(1) In considering the fundamental right of equality of

opportunity a technical, pedantic or doctrinaire

approach should not be made and the doctrine

should not be invoked even if different scales of

pay, service terms, leave, etc., are introduced in

different or dissimilar posts.

Thus, where the class or categories of service are

essential different in purport and spirit, Article 14 cannot

be attracted.

(2) Article 14 forbids, hostile discrimination but not

reasonable classification. Thus, where persons

belonging to a particular class in view of their

special attributes, qualities, mode of recruitment

and the like, are differently treated in public

interest to advance and boost members belonging

to backward classes, such a classification would

not amount to discrimination having a close nexus

with the objects sought to be achieved so that in

such cases Article 14 will be completely out of the

way.

(3) Article 14 certainly applies where equals are

treated differently without any reasonable basis.

(4) Where equals and unequals are treated differently,

Article 14 would have no application.

(5) Even if there be one class of service having several

categories with different attributes and incidents,

such a category becomes a separate class by itself

and no different or discrimination between such

category and the general members of the other

class would amount to any discrimination or to

denial of equality of opportunity.

(6) In order to judge whether a separate category has

been carved out of a class of service, the following

circumstances have generally to be examined:

(a) the nature, the mode and the manner of

recruitment of a particular category from the

very start,

(b) the classifications of the particular category,

(c) the terms and conditions of service of the

members of the category,

(d) the nature and character of the posts and

promotional avenues,

(e) the special attributes that the particular

category possess which are not be found in

other classes, and the like."

Apart from various other decisions, the Court referred to

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Western U.P. Electric Power & Supply Co. Ltd. v. State of U.P.

[(1969) 1 SCC 817] wherein this Court held thus:â\200\224

"Article 14 of the Constitution ensures equality

among equals : its aim is to protect persons similarly

placed against discrimination treatment. It does not

however operate against rational classification. A person

setting up a grievance of denial of equal treatment by law

must establish that between persons similarly

circumstanced, some were treated to their prejudice and

the differential treatment had no reasonable relation to

the object sought to be achieved by the law."

DECISIONS DEALING WITH SIMILAR SPECIAL PROVISIONS

FOR WOMEN.

a) Under Section 497 of the Indian Penal Code, the offence of

adultery can only be committed by a man and wife/woman is not

punishable as abettor. It was contended that the said Section was

violative of Articles 14 and 15 of the Constitution. This Court

negatived the said contention in Yusuf Abdul Aziz v. The State of

Bombay and Husseinbhoy Laljee [1954 SCR 930] and referred to

Article 15(3) which provides that nothing in the Article shall prevent

the State from making special provisions for women and held thus:â\200\224

"It was argued that clause (3) should be confined

to provisions which are beneficial to women and cannot

be used to give them a licence to commit and abet

crimes. We are unable to read any such restriction into

the clause; nor are we able to agree that a provision

which prohibits punishment is tantamount to a licence to

commit the offence of which punishment has been

prohibited.

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."

b) In Dattatraya Motiram More v. State of Bombay [AIR 1953

Bombay 311] provisions of the Bombay Municipal Boroughs Act,

1925 which reserved seats for women in the election were challenged

on the ground that they offended Articles 14, 15 and 16 of the

Constitution. That contention was negatived by the Court and

explaining the scope of Article 15, the Court [Chagla, C.J.] observed

that it must always be borne in mind that the discrimination which is

not permissible under Art. 15(1) is a discrimination which is only on

one of the grounds mentioned in Art. 15(1). If there is a

discrimination in favour of a particular sex, that discrimination would

be permissible provided it is not only on the ground of sex, or, in

other words, the classification on the ground of sex is permissible

provided that classification is the result of other considerations

besides the fact that the persons belonging to that class are of a

particular sex. The Court further held thus:â\200\224

"â\200¦ Article 15(3) is obviously a proviso to

Article 15(1) and proper effect must be given to the

proviso. It is true that in construing a proviso one must

not nullify the section itself. A proviso merely carves out

something from the section itself, but it does not and

cannot destroy the whole section. The proper way to

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construe Article 15(3), in our opinion, is that whereas

under Article 15(1) discrimination in favour of men only

on the ground of sex is not permissible, by reason of

Article 15(3) discrimination in favour of women is

permissible, and when the State does discriminate in

favour of women, it does not offend against Article

15(1). Therefore, as a result of the joint operation of Art.

15(1) and Art. 15(3) the State may discriminate in favour

of women against men, but it may not discriminate in

favour of men against womenâ\200¦"

c) Dealing with the similar contentions, in B.R. Acharya &

Another v. State of Gujarat & Another [1988 Lab. I.C. 1465], the

learned Single Judge of the Gujarat High Court [R.C. Mankad, J.]

observed thus:â\200\224

"It is clear from the affidavit in reply filed on

behalf of the respondent State that there are certain posts

which are meant only for lady officers. The institutions,

where destitute women, unmarried mothers, etc. are kept,

are headed by lady superintendent. Since the post is of

lady superintendent, only lady officers are considered

eligible for such posts. The petitioners, however,

contend that they should not be discriminated only on the

ground of sex. They should also be considered eligible

for promotion to such post. This claim made by the

petitioners cannot be accepted.

The institutions which are headed by Lady

Superintendents are exclusively for women, and it is for

the Government to decide as a matter of policy whether

or not such institutions should be headed by only lady

officers. Merely because at some stage there is a

common cadre in which the officers of both the sexes are

appointed, does not mean that all posts in the higher

cadre must also be filled in by persons belonging to both

the sexes. Having regard to the nature of duties to be

performed, it is open to the State Government to decide

that the institutions which are exclusively meant for

women should be headed by only women or lady

officers. The Government cannot be compelled to

appoint male officers to head such institutions, if it does

not consider it advisable to do so. If a special provision

is made for women, the petitioners cannot made

grievance that they have been discriminated against.

Incidentally it may be pointed out that Article 15 of the

Constitution of India prohibits discrimination on grounds

of religion, race, caste, sex or place of birth. Clause (3) of

the said Article however, provides "Nothing in this

article shall prevent the State from making any special

provision for women and children." I, therefore, do not

find any substance in the petitioners' contention that they

should be considered to be eligible for promotion to the

post of Lady Superintendent."

d) In Union of India v. K.P. Prabhakaran [(1997) 11 SCC 638],

this Court held that the circular providing appointment on the post of

Inquiry-cum-Reservation Clerks in four metropolitan cities of Madras,

Bombay, Calcutta and Delhi to be manned only by women was not

violative of Articles 14 or 16 of the Constitution.

e) Further, in Government of A.P. v. P.B. Vijaykumar [(1995) 4

SCC 520] the Court dealt with the similar question regarding validity

of Rule 22(a) of the Andhra Pradesh State and Subordinate Service

Rules providing reservation to the extent of 30% for women in the

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matter of direct recruitment to the post governed by the said Rules.

The Andhra Pradesh High Court declared the said Rules to be invalid.

This Court while reversing the decision of the High Court held

thus:â\200\224

"â\200¦ Article 15 deals with every kind of State

action in relation to the citizen of this country and every

sphere of the 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.

At the same time Article 15(3) permits special provisions

for women. Both Articles 15(1) and 15(3) go together.

â\200¦.. This power conferred by Article 15(3) is wide

enough to cover the entire range of State activity

including employment under the State.

This Court further held thus:â\200\224

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."

f) Further, this Court in Toguru Sudhakar Reddy and another v.

Government of A.P. and others [1993 Supp. (4) SCC 439] approved

the reasoning of the High Court of Andhra Pradesh wherein it was

held that reservation beyond 50% for the women was permissible

under Article 15(3) of the Constitution and that ratio in M.R. Balaji. v.

State of Mysore [1963 Supp. (1) SCR 439] was only confined to the

reservation under Articles 15 (4) and 16(4) of the Constitution of

India.

RESULT:

In view of the aforesaid established law interpreting Articles 14

to 16, Rules 5 and 8 of Punjab University Calendar Volume â\200\223 III

providing for appointment of lady principal in Women's College or a

lady teacher therein cannot be held to be violative either of Article 14

or Article 16 of the Constitution, because classification is reasonable

and it has a nexus with the object sought to be achieved. In addition,

the State Government is empowered to make such special provisions

under Article 15 (3) of the Constitution. This power is not restricted

in any manner by Article 16.

In the result, appeal is allowed. The impugned judgment

rendered by the majority striking down the Rules 5, 8 & 10 of the

Punjab University Calendar Volumeâ\200\223III as violative of Articles 14 or

16 is set aside. Minority view holding that the said Rules are not

violative of Articles 14 or 16 is upheld. There shall be no order as to

costs.