Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
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;
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
? 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
"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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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.