Allahabad High Court
Shaukeen Ahmad And 2 Ors. vs State Of U.P. Thru Prin.Secy.Deptt.Of ... on 13 March, 2018
Equivalent citations: AIRONLINE 2018 ALL 5461, (2018) 3 ESC 1499 (2018) 4 ADJ 745 (ALL), (2018) 4 ADJ 745 (ALL)
Bench: Vikram Nath, Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Case :- MISC. BENCH No. - 7026 of 2018 Petitioner :- Shaukeen Ahmad And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Basic Edu.Lko. & Ors. Counsel for Petitioner :- Alok Kr. Misra Counsel for Respondent :- C.S.C.,Ghaus Beg Hon'ble Vikram Nath,J.
Hon'ble Abdul Moin,J.
(Per Hon'ble Abdul Moin, J.)
1. Heard learned counsel for the petitioners and Sri Siddharth Dhaon, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of this petition under Article 226 of the Constitution of India, the petitioners have prayed for a declaration of Rule 8(2)(d) of the Uttar Pradesh Basic Education (Teachers Posting) Rules, 2008 (hereinafter referred to as the 2008 Rules) as ultra vires to the extent it excludes the male teachers from the benefits provided under the said provisions.
3. At the outset, we may indicate that the petitioners have prayed for a writ of certiorari to be issued for quashing Rule 8(2)(d) of the 2008 Rules. It is settled proposition of law as laid down by the Hon'ble Supreme Court in the case of Prabodh Verma vs. State of U.P. and others reported in 1984(4) SCC 251 that a writ of certiorari cannot be issued for declaring an Act or Ordinance as unconstitutional or void and a writ of certiorari can only be issued by the High Court under Article 226 of the Constitution to direct the inferior courts, tribunals or authorities to transmit to the Court the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. Where petitioner's contention is that an Act or Ordinance is unconstitutional or void, the proper relief for the petitioner is to ask a declaration to that effect or to ask for a consequential relief and accordingly the present petition deserves to be dismissed on this ground alone. However, as the same would be dismissal of the writ petition on technicality, we refrain ourselves from dismissing the petition on the said technicality.
4. Rule 8(2)(d) of the 2008 Rules reads as under:-
"8. Posting. - (1)(a) .......
(2) (a) .............
(b) .............
(c) .............
(d) In normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district.
.........."
5. Rule 8(2)(d) of the 2008 Rules provides that in normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting, but under special circumstances, the applications for inter-district transfers in respect of female teachers would be entertained either to the place of residence of their husband or in law's district. Thus a special dispensation has been given to female teachers but not for male teachers. This special dispensation, in our considered opinion, would be in terms of Article 15(3) of the Constitution of India which clearly provides that nothing in the said Article shall prevent the State from making any special provision for women and children. Even otherwise, the said dispensation, in our considered opinion, would be a special dispensation available only to the women or female teachers taking into consideration that a female teacher, living alone outside the district, would find it difficult being away from her family.
6. Whether such a special dispensation can be given to the women is thus the crux of the issue.
7. In this regard, we may refer to the judgment of the Hon'ble Supreme Court in the case of Government of Andhra Pradesh vs. P.B. Vijayakumar and another reported in 1995(4) SCC 520 which pertains to a case wherein the Andhra Pradesh Government took a decision that as the women were not getting their due share in public employment, a policy decision was taken on 2.1.1984 with respect to reservation for women in public services to a specified extent. In pursuance to the said policy decision, Rule 22A was introduced in the Andhra Pradesh State and Subordinate Service Rules under proviso to Article 309 of the Constitution giving preference to women in direct recruitment to posts for which women were better suited than men. It was also provided that in the matter of direct recruitment to posts to which women and men were equally suited, preference shall be given to women. The said rule came to be challenged on the ground of it being allegedly violative of Articles 14 and 16(4) of the Constitution. The Hon'ble Supreme Court, after considering Article 15(3) of the Constitution of India, held as under:-
"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. 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.
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 out 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."
8. After recording the aforesaid, the Hon'ble Supreme Court held that both reservation and affirmative action for women are permissible under Articles 15(3) of the Constitution in connection with employment or posts under the State and that both Articles 15 and 16 of the Constitution are designed for the same purpose of creating an egalitarian society.
8. Similarly, the Hon'ble Supreme Court in the case of Yusuf Abdul Aziz vs. the State of Bombay reported in 1954 SCR 930 repelled the challenge to Section 497 of the Indian Penal Code which provides that offence of adultery can only be committed by a man and wife/woman is not punishable as abettor. The Hon'ble Supreme Court while rejecting the challenge to the said section based upon it being violative of Articles 14 and 16 of the Constitution and after referring to Article 15(3) of the Constitution, held as under:-
"5. 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.
6. 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."
9. Similarly the Hon'ble Supreme Court in the case of Union of India vs. K.P. Prabhakaran reported in (1997)11 SCC 638 held that the circular of the Indian Railways 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.
10. Likewise, the Hon'ble Supreme Court in the case of Toguru Sudhakar Reddy and another vs. Government of A.P. and others reported in 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 of India.
11. Fairly recently, the Hon'ble Supreme Court in the case of Vijay Lakshmi vs. Punjab University and others reported in A.I.R. 2003 SC 3331, in a challenge being raised to the judgment of the Punjab and Haryana High Court, which held that the preference being given to women for being appointed as a Principal of the Government College for girls was violative of Articles 14, 15 and 16 of the Constitution of India, was pleased to hold, while setting aside the said judgment, that the said preference for appointment of lady Principal or lady teacher cannot be held to be violative of either Article 14 or Article 16 of the Constitution of India because the said classification is reasonable and it has a nexus with the object sought to be achieved. The Hon'ble Supreme Court further held that the State Government is empowered to make such special provisions under Article 15(3) of the Constitution and that the said power is not restricted in any manner by Article 16 of the Constitution.
12. After considering the aforesaid judgments rendered by the Hon'ble Supreme Court what we find is that Rule 8(2)(d) of the 2008 Rules, in fact, is a special dispensation for female teachers and the same cannot be held to be violative of either Article 14 or Article 16 of the Constitution of India because the classification is reasonable and has a nexus with the object sought to be achieved i.e. of entertaining the requests of female teachers for inter-district transfers within five years of their posting either to the place of residence of their husband or in-law's district. Consequently, keeping this in view, Rule 8(2)(d) of the 2008 Rules cannot be said to be ultra vires.
13. So far as the reliance placed by learned counsel for the petitioner on the judgment passed by learned Single Judge of this Court in Writ-A No.30801 of 2017 inre: Vinay Kumar Pandey and others vs. State of U.P. and others is concerned, the learned Single Judge of this Court only directed for consideration of the representation of the employee concerned on the ground of couple posting and it thus cannot be said to have laid down any law in this regard.
14. Keeping in view the aforesaid discussions, the writ petition is patently misconceived and is accordingly dismissed.
Order Date :- 13.3.2018
Rakesh
(Abdul Moin) (Vikram Nath)