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CASE NO.: Appeal (civil)  13393 of 1996

PETITIONER: Vijay Lakshmi                                            

RESPONDENT: Punjab University and Others                             

DATE OF JUDGMENT: 23/09/2003

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

JUDGMENT: J U D G M E N T  

Shah, J.

                Preference given to a woman for being appointed as a Principal  of the Government College for Girls is held to be violative of Articles  14, 15 and 16 of the Constitution of India. â\200\224 On the face of it, it  appears that such reservation in favour of a Woman for being  appointed as Principal of exclusive Girls College cannot be held to be  violative of right to equality.

However, this question is required to be decided in view of the  judgment rendered by the High Court of Punjab and Haryana in Writ  Petition No.11694 of 1994 holding that Rules providing reservation /  preference in favour of a woman is violative of Articles 15 and 16 of  the Constitution. That judgment is challenged by filing this appeal.          For this purpose, the High Court interpreted Rules 5, 8 and 10 of  the Punjab University Calendar Volume â\200\223 III, which are as under:â\200\224 "Rule 5. The Principal of a women’s college shall be  lady who shall possess at least Master’s Degree in 1st or  2nd Class or an equivalent degree with experience of  teaching in a college. This rule shall not apply to  Women’s colleges whose men or women Principals have  already been approved.  Provided that on their retirement,  a qualified lady Principal shall be appointed.

Rule 8. As far as possible, ladies shall be appointed as  teachers.  In case a qualified lady teacher in a particular  subject is not available, the college authorities may  appoint a man teacher with the prior approval of the Vice  Chancellor.  A man teacher so appointed shall not be  confirmed by the management in his post and he shall be  replaced as soon as a suitable qualified lady teacher is  available.

Rule 10. The College shall have a hostel in or near the  premises of the college.  It shall be under the charge of a  whole time Woman Superintendent.  There shall a part  time or whole time women Medical Officer."          For deciding the issue, we would refer to established  propositions of law interpreting Articles 14 to 16, which are:â\200\224 ?       Article 14 does not bar rational classification;

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?       Reasonable discrimination between female and male for  an object sought to be achieved is permissible;

?       Question of unequal treatment does not arise if there are  different sets of circumstances;

?       Equality of opportunity for unequals can only mean  aggravation of inequality;  

?       Equality of opportunity admits discrimination, with  reasons and prohibits discrimination without reason. â\200\224  Discrimination with reasons means rational classification  for differential treatment having nexus with  constitutionally permissible objects. â\200\224 It is now an  accepted jurisprudence and practice that the concept of  equality before the law and the prohibition of certain  kinds of discrimination do not require identical treatment.   The equality means the relative equality, namely the  principle to treat equally what are equal and unequally  what are unequal.  To treat unequals differently  according to their inequality is not only permitted but  required. {Re:  St. Stephen’s College Vs. University of  Delhi [(1992)1 SCC 559]}.

?       Sex is a sound basis for classification.

?       Article 15 (3) categorically empowers the State to make  special provision for women and children;

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

       In the light of the aforesaid principles, on the concept of  equality enshrined in the Constitution, it can be stated that there could  be classification between male and female for certain posts.  Such  classification cannot be said to be arbitrary or unjustified.  If separate  colleges or schools for girls are justifiable, rules providing  appointment of lady principal or teacher would also be justified.  The  object sought to be achieved is a precautionary, preventive and  protective measure based on public morals and particularly in view of  the young age of the girl students to be taught.  One may believe in  absolute freedom, one may not believe in such freedom but in such  case when a policy decision is taken by the State and rules are framed  accordingly, it cannot be termed to be arbitrary or unjustified.  Hence,  it would be difficult to hold that rules empowering the authority to  appoint only a lady Principal or a lady teacher or a lady doctor or a  woman Superintendent are violative of Articles 14 or 16 of the  Constitution.   

       Secondly, such reservation by the State is permissible in  exercise of powers conferred under Article 15(3), which provides  thus:â\200\224  "15.    Prohibition of discrimination on grounds of  religion, race, caste, sex or place of birth.â\200\224(3) Nothing  in this article shall prevent the State from making any  special provision for women and children."

POLICY DECISION OF RESERVATION FOR FEMALES AND  RIGHT TO EQUALITY:

In the judgment per majority, the High Court after considering  the duties which are required to be performed by the Principal of  School observed thus:â\200\224

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"Keeping in view the nature of the duties which  are required to be performed by the Principal in relation  to the girl students it cannot be deduced that such  students could be subjected to any sort of exploitation.   For dealing with the students, the Head of the  Department has equal and similar powers as are  conferred upon the Principal, which if misused may  result in disastrous consequences."      

It is difficult to agree to the aforesaid reasoning because as  stated above, it is not for the Court to sit in appeal against the policy  decision taken by the State Government.  It is for the State to decide  whether such rule is a preventive or precautionary measure so that  young fallible students may not be subjected to any sort of  exploitation.

a)      For the policy decision of classification, we would straightway  refer to the decision rendered by this Court in State of Jammu &  Kashmir v. Triloki Nath Khosa [(1974) 1 SCC 19], wherein the Court  [Chandrachud, J. (as he then was)] (in para 20) succinctly held  thus:â\200\224 "â\200¦The challenge, at best, reflects the respondent’s  opinion on promotional opportunities in public services  and one may assume that if the roles were reversed,  respondents would be interested in implementing their  point of view.  But we cannot sit in appeal over the  legislative judgment with a view to finding out whether  on a comparative evaluation of rival theories touching the  question of promotion, the theory advocated by the  respondents is not to be preferred. Classification is  primarily for the legislature or for the statutory authority  charged with the duty of framing the terms and  conditions of service; and if, looked at from the  standpoint of the authority making it, the classification is  found to rest on a reasonable basis, it has to be upheld."

It was also observed that discrimination is the essence of  classification and does violence to the constitutional guarantee of  equality only if it rests on an unreasonable basis and it was for the  respondents to establish that classification was unreasonable and bears  no rational nexus with its purported object.  Further, dealing with the  right to equality, the Court  (in paras 29 & 30) held thus:â\200\224  "But the concept of equality has an inherent  limitation arising from the very nature of the  constitutional guarantee.  Equality is for equals.  That  is to say that those who are similarly circumstanced  are entitled to an equal treatment.

Since the constitutional code of equality and  equal opportunity is a charter for equals, equality of  opportunity in matters of promotion means an equal  promotional opportunity for persons who fall,  substantially, within the same class."

b)      Now, we would next refer to the decision in Air India v.  Nergesh Meerza and others [(1981) 4 SCC 335], which propounds  the right of equality under Article 14 after considering various  decisions.  In that case, constitutional validity of Regulation 46(i)(c)  of Air India Employees’ Service Regulations was challenged,

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which provides for retiring age of an Air-Hostess.  The Court (in  paragraph 39) summarized thus:â\200\224  "Thus, from a detailed analysis and close  examination of the cases of this Court starting from 1952  till today, the following propositions emerge:

(1)     In considering the fundamental right of equality of  opportunity a technical, pedantic or doctrinaire  approach should not be made and the doctrine  should not be invoked even if different scales of  pay, service terms, leave, etc., are introduced in  different or dissimilar posts.

Thus, where the class or categories of service are  essential different in purport and spirit, Article 14 cannot  be attracted.

(2)     Article 14 forbids, hostile discrimination but not  reasonable classification. Thus, where persons  belonging to a particular class in view of their  special attributes, qualities, mode of recruitment  and the like, are differently treated in public  interest to advance and boost members belonging  to backward classes, such a classification would  not amount to discrimination having a close nexus  with the objects sought to be achieved so that in  such cases Article 14 will be completely out of the  way.

(3)     Article 14 certainly applies where equals are  treated differently without any reasonable basis.

(4)     Where equals and unequals are treated differently,  Article 14 would have no application.

(5)     Even if there be one class of service having several  categories with different attributes and incidents,  such a category becomes a separate class by itself  and no different or discrimination between such  category and the general members of the other  class would amount to any discrimination or to  denial of equality of opportunity.

(6)     In order to judge whether a separate category has  been carved out of a class of service, the following  circumstances have generally to be examined:

(a)     the nature, the mode and the manner of  recruitment of a particular category from the  very start,

(b)     the classifications of the particular category,

(c)     the terms and conditions of service of the  members of the category,

(d)     the nature and character of the posts and  promotional avenues,

(e)     the special attributes that the particular  category possess which are not be found in  other classes, and the like."

Apart from various other decisions, the Court referred to

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Western U.P. Electric Power & Supply Co. Ltd. v. State of U.P.  [(1969) 1 SCC 817] wherein this Court held thus:â\200\224 "Article 14 of the Constitution ensures equality  among equals : its aim is to protect persons similarly  placed against discrimination treatment.  It does not  however operate against rational classification.  A person  setting up a grievance of denial of equal treatment by law  must establish that between persons similarly  circumstanced, some were treated to their prejudice and  the differential treatment had no reasonable relation to  the object sought to be achieved by the law."

DECISIONS DEALING WITH SIMILAR SPECIAL PROVISIONS  FOR WOMEN.  

a)      Under Section 497 of the Indian Penal Code, the offence of  adultery can only be committed by a man and wife/woman is not  punishable as abettor.  It was contended that the said Section was  violative of Articles 14 and 15 of the Constitution. This Court  negatived the said contention in Yusuf Abdul Aziz v. The State of  Bombay and Husseinbhoy Laljee [1954 SCR 930] and referred to  Article 15(3) which provides that nothing in the Article shall prevent  the State from making special provisions for women and held thus:â\200\224  

       "It was argued that clause (3) should be confined  to provisions which are beneficial to women and cannot  be used to give them a licence to commit and abet  crimes.  We are unable to read any such restriction into  the clause; nor are we able to agree that a provision  which prohibits punishment is tantamount to a licence to  commit the offence of which punishment has been  prohibited.

Article 14 is general and must be read with the  other provisions, which set out the ambit of fundamental  rights.  Sex is a sound classification and although there  can be no discrimination in general on that ground, the  Constitution itself provides for special provisions in the  case of women and children. The two articles read  together validate the impugned clause in section 497 of  the Indian Penal Code."

b)      In Dattatraya Motiram More v. State of Bombay [AIR 1953  Bombay 311] provisions of the Bombay Municipal Boroughs Act,  1925 which reserved seats for women in the election were challenged  on the ground that they offended Articles 14, 15 and 16 of the  Constitution.  That contention was negatived by the Court and  explaining the scope of Article 15, the Court [Chagla, C.J.] observed  that it must always be borne in mind that the discrimination which is  not permissible under Art. 15(1) is a discrimination which is only on  one of the grounds mentioned in Art. 15(1).  If there is a  discrimination in favour of a particular sex, that discrimination would  be permissible provided it is not only on the ground of sex, or, in  other words, the classification on the ground of sex is permissible  provided that classification is the result of other considerations  besides the fact that the persons belonging to that class are of a  particular sex.  The Court further held thus:â\200\224 "â\200¦ Article 15(3) is obviously a proviso to  Article 15(1) and proper effect must be given to the  proviso.  It is true that in construing a proviso one must  not nullify the section itself.  A proviso merely carves out  something from the section itself, but it does not and  cannot destroy the whole section.  The proper way to

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construe Article 15(3), in our opinion, is that whereas  under Article 15(1) discrimination in favour of men only  on the ground of sex is not permissible, by reason of  Article 15(3) discrimination in favour of women is  permissible, and when the State does discriminate in  favour of women, it does not offend against Article  15(1).  Therefore, as a result of the joint operation of Art.  15(1) and Art. 15(3) the State may discriminate in favour  of women against men, but it may not discriminate in  favour of men against womenâ\200¦"

c)      Dealing with the similar contentions, in B.R. Acharya &  Another v. State of Gujarat & Another [1988 Lab. I.C. 1465], the  learned Single Judge of the Gujarat High Court [R.C. Mankad, J.]  observed thus:â\200\224         "It is clear from the affidavit in reply filed on  behalf of the respondent State that there are certain posts  which are meant only for lady officers.  The institutions,  where destitute women, unmarried mothers, etc. are kept,  are headed by lady superintendent.  Since the post is of  lady superintendent, only lady officers are considered  eligible for such posts.  The petitioners, however,  contend that they should not be discriminated only on the  ground of sex.  They should also be considered eligible  for promotion to such post.  This claim made by the  petitioners cannot be accepted.

The institutions which are headed by Lady  Superintendents are exclusively for women, and it is for  the Government to decide as a matter of policy whether  or not such institutions should be headed by only lady  officers.  Merely because at some stage there is a  common cadre in which the officers of both the sexes are  appointed, does not mean that all posts in the higher  cadre must also be filled in by persons belonging to both  the sexes.  Having regard to the nature of duties to be  performed, it is open to the State Government to decide  that the institutions which are exclusively meant for  women should be headed by only women or lady  officers. The Government cannot be compelled to  appoint male officers to head such institutions, if it does  not consider it advisable to do so.  If a special provision  is made for women, the petitioners cannot made  grievance that they have been discriminated against.   Incidentally it may be pointed out that Article 15 of the  Constitution of India prohibits discrimination on grounds  of religion, race, caste, sex or place of birth. Clause (3) of  the said Article however, provides "Nothing in this  article shall prevent the State from making any special  provision for women and children."  I, therefore, do not  find any substance in the petitioners’ contention that they  should be considered to be eligible for promotion to the  post of Lady Superintendent."

d)      In Union of India v. K.P. Prabhakaran [(1997) 11 SCC 638],  this Court held that the circular providing appointment on the post of  Inquiry-cum-Reservation Clerks in four metropolitan cities of Madras,  Bombay, Calcutta and Delhi to be manned only by women was not  violative of Articles 14 or 16 of the Constitution.  

e)      Further, in Government of A.P. v. P.B. Vijaykumar [(1995) 4  SCC 520] the Court dealt with the similar question regarding validity  of Rule 22(a) of the Andhra Pradesh State and Subordinate Service  Rules providing reservation to the extent of 30% for women in the

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matter of direct recruitment to the post governed by the said Rules.   The Andhra Pradesh High Court declared the said Rules to be invalid.   This Court while reversing the decision of the High Court held  thus:â\200\224  "â\200¦ Article 15 deals with every kind of State  action in relation to the citizen of this country and every  sphere of the activity of the State is controlled by Article  15(1) and, therefore, there was no reason to exclude from  the ambit of Article 15(1) employment under the State.   At the same time Article 15(3) permits special provisions  for women.  Both Articles 15(1) and 15(3) go together.  â\200¦.. This power conferred by Article 15(3) is wide  enough to cover the entire range of State activity  including employment under the State.  

This Court further held thus:â\200\224  

An important limb of this concept of gender  equality is creating job opportunities for women.  To say  that under Article 15(3), job opportunities for women  cannot be created would be to cut at the very root of the  underlying inspiration behind this article.  Making  special provisions for women in respect of employment  or posts under the State is an integral part of Article  15(3).  This power conferred under Article 15(3), is not  whittled down in any manner by Article 16."          

f)      Further, this Court in Toguru Sudhakar Reddy and another v.  Government of A.P. and others [1993 Supp. (4) SCC 439] approved  the reasoning of the High Court of Andhra Pradesh wherein it was  held that reservation beyond 50% for the women was permissible  under Article 15(3) of the Constitution and that ratio in M.R. Balaji. v.  State of Mysore [1963 Supp. (1) SCR 439] was only confined to the  reservation under Articles 15 (4) and 16(4) of the Constitution of  India.

RESULT:

In view of the aforesaid established law interpreting Articles 14  to 16, Rules 5 and 8 of Punjab University Calendar Volume â\200\223 III  providing for appointment of lady principal in Women’s College or a  lady teacher therein cannot be held to be violative either of Article 14  or Article 16 of the Constitution, because classification is reasonable  and it has a nexus with the object sought to be achieved.  In addition,  the State Government is empowered to make such special provisions  under Article 15 (3) of the Constitution.  This power is not restricted  in any manner by Article 16.  

       In the result, appeal is allowed. The impugned judgment  rendered by the majority striking down the Rules 5, 8 & 10 of the  Punjab University Calendar Volumeâ\200\223III as violative of Articles 14 or  16 is set aside.  Minority view holding that the said Rules are not  violative of Articles 14 or 16 is upheld.  There shall be no order as to  costs.