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PETITIONER: C. B. MUTHAMMA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT17/09/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SHINGAL, P.N.

CITATION:  1979 AIR 1868            1980 SCR  (1) 668  1979 SCC  (4) 260  CITATOR INFO :  R          1981 SC1829  (67)

ACT:      Constitution of India-Articles 14 & 16-Scope of.

HEADNOTE:      The petitioner is a senior member of the Indian Foreign Service and  complains that she had been denied promotion to Grade I  of the  Indian Foreign  Service on the grounds that (i)  there   is  a   long  standing   practice  of   hostile discrimination against women (ii) had to give an undertaking at the  time of joining the foreign service that if she were to get  married, she would resign from the service (iii) had to face  the consequences of being a woman and thus suffered discrimination and  (iv)  the  members  of  the  appointment committee of  the Union  cabinet and  respondent No.  2  are basically  prejudiced   against  women   as  a   group.  The petitioner has further challenged two rules namely rule 8(2) of Indian  Foreign Service  (Conduct and  Discipline)  Rules 1961  and   Rule  18(4)   of  the   Indian  Foreign  Service (Recruitment, Cadre  Seniority and  Promotion)  Rules  1961, which in  short states  that a  woman member  of the service shall obtain  permission in writing of the Government before marriage and  the woman member may be required to resign any time after  marriage if the Government is satisfied that her family and  domestic commitments will hamper her duties as a member of  the service  and under the second rule no married woman shall  be entitled  as of right to be appointed to the service. The petitioner’s remaining grievance is that during the interval of some months between her first evaluation and the second, some officers junior to her, have gone above her and her career would be affected.      Dismissing the petition, ^      HELD :  That sex prejudice against the Indian womenhood pervades the  service rules  even a third of a century after Freedom. There  is some  basis for the charge of bias in the rules  and  this  makes  the  ominous  indifference  of  the executive to bring about the banishment of discrimination in the heritage  of service rules. If high officials lose hopes of equal  justice under  the rules,  the legal  lot  of  the little Indian,  already priced out of the expensive judicial

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market, is  best left  to  guess.  This  disturbing  thought induces the  making of  a few  observations  about  the  two impugned rules  which  appear  prima  facie,  discriminatory against the female of the species in public service and have surprisingly survived  so long, presumably, because servants of Government  are afraid to challenge unconstitutional rule making by the Administration. [669 E-H]      Discrimination against women, is found in Rule 8(2). If a woman  member shall  obtain the  permission of  Government before the marriage, the same risk is run by Government if a male member contracts a marriage. If the family and domestic commitments of  a woman  member of  the service is likely to come in  the way of efficient discharge of duties, a similar situation may  well arise  in the  case of a male member. In these days  of nuclear  families, intercontinental marriages and unconventional behaviour, one fails to under- 669 stand, the  naked bias  against the  gentler of the species. Rule 18(4)  is in  defiance of Art. 16. If a married man has a right,  a married  woman, other things being equal, stands on no  worse footing. Freedom is indivisible, so is justice. That our  founding faith  enshrined in Art. 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 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. As  Rule 18(4)  has been  deleted  in November, 1973,  and rule  8(2) is on its way to oblivion as its  deletion  is  being  gazetted,  there  is  no  need  to scrutinize or  strike down  these rules. The petitioner has, after the  institution of this proceeding, been promoted and where justice  has been  done, further probe is otiose. [671 B-D, E-G, 672 C]      The  Court   directed  the  respondent  to  review  the petitioner’s case  with particular focus on seniority vis-a- vis those  junior to  her who  have  been  promoted  in  the interval of  some months.  It was further impressed upon the respondent the  need to overhaul all service rules to remove the stains of sex discrimination, without waiting for ad-hoc inspiration from Writ Petitions or gender charity. [672 G-H]

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 743 of 1979.      (Under Article 32 of the Constitution.)      D.  P.   Singh,  L.  R.  Singh  and  S.  Sahu  for  the Petitioner.      Soli  J.   Sorabjee,  Solicitor  General  and  Miss  A. Subhashini for the Respondent.      The Judgment of the Court was delivered by      KRISHNA IYER,J.  This writ petition by Miss Muthamma, a senior member  of the  Indian Foreign  Service,  bespeaks  a story which  makes one  wonder whether  Articles 14  and  16 belong to myth or reality. The credibility of constitutional mandates shall  not be  shaken  by  governmental  action  or inaction but  it is  the effect  of the  grievance  of  Miss Muthamma  that   sex  prejudice   against  Indian  womanhood pervades the  service rules  even a third of a century after Freedom. There  is some  basis for the charge of bias in the rules  and  this  makes  the  ominous  indifference  of  the executive to bring about the banishment of discrimination in

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the heritage  of service rules. If high officials lose hopes of equal  justice under  the rules,  the legal  lot  of  the little Indian,  already priced out of the expensive judicial market, is  best left  to  guess.  This  disturbing  thought induces us to make a few observations about the two impugned rules which  appear prima  facie, discriminatory against the female  of   the  species   in  public   service  and   have surprisingly survived  so long, presumably, because servants of governments are afraid to challenge unconstitutional rule making by the Administration. 670      Miss Muthamma,  the petitioner  complains that  she had been denied  promotion to  Grade I  of  the  Indian  Foreign Service illegally and unconstitutionally. She bewailed that, to quote her own words;           "....one  of  the  reasons  for  the  petitioner’s      supersession is  the long  standing practice of hostile      discrimination  against   women.  Even   at  the   very      threshold when  the petitioner  qualified for the Union      Public Services  at the  time  of  her  interview,  the      Chairman of  the U.P.S.C.  tried to persuade (dissuade)      the petitioner  from joining  the Foreign  Service.  On      subsequent  occasion   he   personally   informed   the      Petitioner that  he had  used his influence as Chairman      to give minimum marks in the viva. As the time of entry      into the  Foreign Service,  the petitioner  had also to      give an undertaking that if she were to get married she      would resign from the service.           That on  numerous occasions  the petitioner had to      face  the  consequences  of  being  a  woman  and  thus      suffered   discrimination   though   the   Constitution      specifically under  Article 15 prohibits discrimination      on grounds  of religion,  race, caste,  sex or place of      birth and  Article 14  of the Constitution provides the      principles of equality before law........           That members  of the Appointments Committee of the      Union Cabinet  and the  respondent No.  2 are basically      prejudiced against women as a group. The Prime Minister      of India  has been  reported in  the  Press  as  having      stated-it will  not be  irrelevant here to mention that      most of  the women  who are  in the  service at  senior      levels are being very systematically selected for posts      which have  traditionally  been  assigned  a  very  low      priority by the Ministry."      If  a   fragment  of   these  assertions   were   true, unconstitutionality is  writ  large  in  the  administrative psyche and  masculine hubris  which is the anathema for part III haunts  the echelons in the concerned Ministry. If there be such  gender injustice  in action, it deserves scrupulous attention from the summit so as to obliterate such tendency.      What is  more manifest  as misogynist  in  the  Foreign Service is  the persistence  of two  rules which  have  been extracted in  the petition.  Rule 8(2) of the Indian Foreign Service (Conduct  & Discipline)  Rules,  1961,  unblushingly reads:           "Rule 8(2)  : In cases where sub-rule (1) does not      apply, a  woman member  of the service shall obtain the      per- 671      mission  of   the  Government  in  writing  before  her      marriage is solemnized. At any time after the marriage,      a woman member of the Service may be required to resign      from service,  if the  Government is satisfied that her      family and  domestic commitments  are likely to come in      the way  of the  due and  efficient  discharge  of  her

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    duties as a member of the service."      Discrimination    against     women,    in    traumatic transparency, is found in this rule. If a woman member shall obtain the  permission of government before she marries, the same risk  is run by government if a male member contracts a marriage. If  the family and domestic commitments of a woman member of  the Service  is likely  to come  in  the  way  of efficient discharge  of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families,  inter-continental  marriages  and  unconventional behaviour, one  fails to  understand the  naked bias against the gentler  of the  species. Rule  18 of the Indian Foreign Service (Recruitment  Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial strain:      "(1)............      (2).............      (3).............      (4)   No married woman shall be entitled as of right to           be appointed to the service."      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 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.      We do  not mean  to universalise  or dogmatise that men and women  are equal  in all  occupations and all situations and  do  not  exclude  the  need  to  pragmatise  where  the requirements of  particular employment, the sensitivities of sex or the peculiarities of societal sectors or the 672 handicaps of  either sex  may compel  selectivity. But  save where the  differentiation  is  demonstrable,  the  rule  of equality must  govern. This creed of our Constitution has at last told  on our  governmental  mentation,  perhaps  partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier)  has  been  deleted  on  November  12,  1973.  And, likewise, the Central Government’s affidavit avers that Rule 8(2) is  on its  way to oblivion since its deletion is being gazetted. Better  late than  never.  At  any  rate,  we  are relieved of  the need  to scrutinise  or strike  down  these rules.      The petitioner  has,  after  the  institution  of  this proceeding, been  promoted. Is  it a  case of  post hoc ergo propter hoc  ? Where justice has been done, further probe is otiose. The  Central Government  states  that  although  the petitioner was  not found  meritorious enough  for promotion some months ago, she has been found to be good now, has been upgraded and  appointed as Ambassador of India to the Hague, for what  it is  worth. Her surviving grievance is only one. During  the  interval  of  some  months  between  her  first evaluation and  the second, some officers junior to her have gone above  her. In  the rat  race of  Indian official life, seniority appears  to be  acquiring a  religious  reverence.

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Since the  career  ahead  of  the  petitioner  may  well  be affected by  the factum  of prior  birth into Grade I of the Service,  her  grievance  turning  on  seniority  cannot  be brushed aside. Her case, with particular focus on seniority, deserves review  vis-a-vis those junior to her who have been promoted in  the interval  of  some  months.  The  sense  of injustice rankles  and should  be obliterated  so that every servant in  strategic position  gives of  his or her best to the country.  We have  had the  advantage of the presence of the learned  Solicitor-General, appearing  for the  Union of India. With  characteristic fairness  he has  persuaded  his client to  agree to  what we regard as a just gesture, viz., that the  Respondent-Union of  India will shortly review the seniority  of   the  petitioner,   her  merit   having  been discovered and  her seniority  to Grade II being recognised. We direct accordingly.      Subject to  what we have said above, we do not think it necessary to examine the averments of mala fides made in the petition. What  we do wish to impress upon Government is the need to  overhaul all  Service Rules  to remove the stain of sex discrimination,  without waiting  for ad hoc inspiration from writ petitions or gender charity.      We dismiss the petition but not the problem. N.K.A.                                   Petition dismissed. 673