G K Pushpa vs The State Of Karnataka

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 14

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 15

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-à-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 16

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 & R 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 17

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 18

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 19

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 20

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 21

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.

22

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 23

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). 24

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 25

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?

26 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 27

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.

28

11. Sl.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" 29

12. The said Schedule also provides at Sl.No.13 for

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 30

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.

31

15. Clause (6) sets out the job responsibility of Health

Worker Male, which reads as under:

"1. Malaria 7. Family Planning

2. Communicable Diseases 8. Medical Termination of Pregnanacy

3. Leprosy 9. Health Education

4. Tuberculosis 10.Nutrition

5. Environmental Sanitation 11. Vital Events."

6. Expanded Programme on Immunisation

Clause (7) prescribes job responsibility of Health Worker

Female, reads as under:

"1. Maternal and Child 7. Communicable Diseases Health

2. Family Planning 8. Vital Events

3. Medical Termination of 9. Record Keeping Pregnancy

4. Nutrition 10.Primary Medical Care

5. Expanded Programme on 11.Team Activities."

Immunisation

6. Dia Training 32

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 33

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 34

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 vs 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 35

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 36

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 vs

NARGESH MEERZA AND OTHERS [AIR 1981 SC 1829] held

as under: -

"66. Even otherwise, what Articles 15 (l) 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 v. The State of Bombay and Husseinbhoy Laljee, 1954 SCR 930 : (AIR 1954 SC 321), sex was held to be a permissible classification. While 37

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 vs 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 38

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 39

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.

40 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.

41 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 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 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.

42 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 v. Champakam 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."

43 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 & Ors. v. State 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 Indra Sawhney & Ors. v. Union of India & Ors. (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:- 44

"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 45

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 vs

K.P.PRABHAKARAN [(1997) 11 SCC 638] held as under: -

"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. v. P.B. Vijayakumar [(1995) 4 SCC 520], the impugned judgment of the High Court holding that Article 15(3) has no application in matters relating 46

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 vs

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, 47

(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 modern 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 vs STATE 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 : -

48

"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 49

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 50

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 51

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 52

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 53

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 54

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 55

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, un- informed 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 56

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 57

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 58

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 59

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 60

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. 61

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 62

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 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 63

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. What Articles 15 (l) 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. 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.

Both Articles 15(1) and 16(2) contain prohibition of

discrimination on the ground of sex.

29. The mandate to the State is that it shall not

discriminate against any citizen on the ground of sex alone. It

is one of the most important fundamental rules that calls for

strict observance. In the framing of any statute or law or the 64

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

Article 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 a particular work 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. It is 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.Women is no longer content merely to sit at home 65

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.

ON FACTS

30. Two reasons are assigned by the Government to

deny the employment to women to the post of Junior Assistant

(Male). The first reason is found in the statement of objections

before the Tribunal. i.e., the medical termination of pregnancy

is shown as the responsibility for both male and female. The

responsibility of a Male Health Assistant relating to medical 66

termination of pregnancy is only to identify the women

requiring the help and to inform the same to the Junior Health

Assistant Female and to educate the community on the

availability of services for medical termination of pregnancy.

Whereas the responsibility of Junior Health Assistant (Female)

relating to medical termination of pregnancy is not only to

identify the 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. Thus, it is clear that

though the medical termination of pregnancy looks similar the

nature of job involved is different and distinct. Besides, though

the job responsibilities relating to communicable diseases also

looks similar, in fact the same varies as per particulars

contained at Annexures-R1 and R2. For the said reasons no

reservation for women can be provided to the Junior Health

Assistant (Male).

67

31. We do not see any justification for the said

reasoning. The job chart clearly demonstrates this medical

termination of pregnancy is one of the functions to be

performed by the Male Health Worker. All other functions to be

performed by them could be performed by women Health

Worker also. Even in respect of this medical termination of

pregnancy it is the Male Health Worker who has to identify the

pregnant women, then bring her to the Primary Health Centre.

It is only thereafter probably at the time of termination of

pregnancy he is not allowed inside and it is the Woman Health

Worker who undertakes the said job. This is only one of the

functions to be performed. The material on record shows each

Primary Health Centre will have one Male Health Worker and

Female Health Worker. It is compulsory. Therefore, this

termination of pregnancy inside the Centre is normally done by

the female Health Worker for which a separate cadre is created,

separate qualification is prescribed and recruitment is done.

The qualification prescribed for Health Worker (Female) is

possessed only by a female, as it is not available to a male. 68

But, the qualification prescribed for a Health Worker (Male)

could be acquired both by the male and female. A female

woman Health Worker can certainly perform all the functions

which a male Health Worker can perform. Therefore, there is

no rationale behind excluding women from applying to the post

of Junior Health Assistant (Male). Though the Rules do not

provide for such exclusion, the notification does provide for

such exclusion. By only mentioning as "male" in the schedule,

an attempt is made to exclude the women from being eligible to

apply and to be appointed to the said post. It has no authority

of law. It is not the intention of the legislature. It is opposed to

Articles 14, 15, and 16 of the Constitution of India. It is

void ab-initio.

32. The second contention of the Government is 100%

posts are reserved for Junior Health Assistant (Female).

Further, in the post of Senior Health Assistant (Female) 100%

promotion is provided to the women, similarly in Senior Staff

Nurse 100% promotion is made for women and even in the 69

direct recruitment of Staff Nurse 100% is prescribed for

women. Therefore, female constitute 90% of the incumbents in

the above cadres and therefore they justify the exclusion of

women from being eligible to the post of Junior Health

Assistant (Male) on the ground that Rule 9(1)(B) of the General

Recruitment Rules, 1977 which only provides for 30%

reservation is not violated.

33. As set out above, if there is a protective

discrimination in favour of women, it falls under Article 15(3) of

the Constitution. It is permissible. That ground is not a

justification to exclude women from posts to which they

possess the requisite qualification and they are eligible to be

appointed. Such an action of the Government is contrary to

Article 15(2) read with Article 16(3) of the Constitution. As set

out above, the question of men applying to the post of Junior

Health Assistant (Female) would not arise because the

minimum qualification prescribed for the said post shows

training is imparted only to the female and no male is eligible 70

even to undergo the training. The male is not eligible to apply

against the said post not because he is male, but because he

does not possess the requisite qualification. There is no

discrimination on the ground of sex. Therefore, we do not see

any substance in the said contention.

34. It was also contended that when the Cadre and

Recruitment Rules were published inviting objections, these

petitioners did not file any objections. As they have not filed

any objections they are not entitled to challenge the validity of

the Rules. It is settled law that, a fundamental right

guaranteed to a citizen of this country will not be lost by non-

filing of the objections to a draft statement. It cannot be barted

away. When such a right is denied, it could be enforced under

Article 226 and 30(2) of the Constitution and such a challenge

cannot be negatived on the ground of non-filing of objections to

the draft statement. Therefore, we do not find any substance

in the said contention.

71

THINKING OF THE GOVERNMENT

35. However, the aforesaid stand of the Government do

not really represent their thinking. It appears to be only a

defence routinely put forth in defending a case before the

Court. The thinking of the Government in this regard is

ascertainable from the proceedings where this problem was

addressed in a reasonable and constructive manner keeping in

mind the constitutional scheme and the goal. In a meeting held

on 26.5.2008 which is presided over by the Secretary, Health

and Family Planning it was resolved to bring in amendments to

certain cadres in the department. Thereafter, on 11.6.2008 a

proposal was sent to the Government. In the statement

showing the existing/proposed C & R Rules at Serial No.39

dealing with designation-Junior Health Assistant (Male) it was

proposed to redesignate this post as Health Promoter. The

reasons for the change is as under: -

"Prior to 1960 the post was called Basic Health Worker. Due to the implementation of multipurpose Health Service Programme, the post 72

was re-designated as Health Worker (Male) and later as Junior Health Assistant (M). Though the job responsibilities for Male and Female workers were issued separately in the form of manuals of Health Workers (Male) and (Female) it always remained that the females can discharge most of the duties assigned for male workers whereas males cannot discharge some of the important duties (like conducting deliveries) assigned for Female workers. A no. of female candidates have undergone the Health Inspector Training Course conducted by Para-Medical Board. Hence, it is felt necessary to provide an opportunity to female candidates also. So it is proposed to redesignate the said posts as Health Promoter."

36. The Principal Secretary and Chief Administrative

Health and Family Welfare Services addressed a letter on

18.3.2010 as per Annexure-D to the Secretary to the

Government, Health and Family Services Department, Vikasa

Soudha, Bangalore, to consider female candidates for the post 73

of Junior Assistant (Male). After referring to the history he

recommended as under:-

"In Special Recruitment Notification No.DRC/78/07-08 dated 27-2-2009, as per

Recruitment Rules, there is no provision to appoint women for the post of Junior Health Assistant (Male). But women are also considered for Health Inspector Diploma Training and trained them. Therefore, for considering the said female candidates on the basis of their educational qualification and training, in Cadre & Recruitment Rules (C & R Rules) if instead of 'Junior Health Assistant (Male)' if the designation is changed to 'Health Promoter', opportunity can be given to female candidates also. Proposal is already submitted vide Ref.(1) for revising the Cadre & Recruitment Rules. Said copy is submitted for your kind perusal. If this amendment is made, when applications are invited to fill the vacant posts in future, it will enable female candidates also to submit their applications for these posts.

In this regard, submitting the proposal for making amendment to C & R Rules."

74

37. Therefore, it is clear from the aforesaid

correspondence that there is a thinking in the Government also

regarding promoting women to apply to the post of Junior

Health Assistant (Male).

38. As said in the aforesaid judgments, in the framing

of any statue or law or the making of subordinate legislation by

a delegated legislative authority this is a fundamental rule

which, under no circumstances, would bear violation. 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. Though the legislature and

the Government has not denied the equal opportunity to the

women it appears persons who are working in the

establishment by a wrong interpretation of the said schedule

have prevented the women from participating in the selection

process which cannot be countenanced by the Courts. The 75

denial of appointment to women to Junior Health Assistant

(male) on the sole ground that they are women is opposed to

Articles 14 and 15 (1) of the Constitution of India and

consequently the word (male), as it stands has to be struck

down as unconstitutional.

39. For the aforesaid reasons, we are satisfied that the

action of the respondents in preventing the women who

possess the requisite qualification to be appointed to the post

of Junior Health Assistant (Male) is violative of Articles 14 and

16 of the Constitution and they are entitled to a declaration

that they are eligible to apply to the said post and if found

suitable for appointment also.

40. For the reasons aforesaid, we pass the following

order:-

76

(a) All the Writ Petitions are allowed.

(b) Both the impugned orders passed by the Tribunal

are hereby set aside.

(c) It is declared that women who possess the

minimum qualification prescribed in the schedule at

item No.8 for the post of Junior Health Assistant

(Male) are eligible to be considered for appointment

to the said post.

(d) In view of the declaration made above, the word

"Male" in the brackets is hereby quashed.

(e) As 31 posts are kept vacant in pursuance of the

interim order passed by this Court, the Selection

Committee shall consider the claim of these

petitioners on its merit and if they are found eligible

and meritorious then they shall be given

appointment.

77 (f) This exercise shall be done within 3 months from

the date of receipt of this order.

Parties to bear their own costs.

Sd/-

JUDGE

Sd/-

JUDGE

rs/ksp/ckl/-