Supreme Court - Daily Orders
Uoi vs Insp.Gd (Mahila) Bilju A.T. And Ors.Etc on 16 October, 2014
Bench: Sudhansu Jyoti Mukhopadhaya, S.A. Bobde
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9840-9841 OF 2014
(Arising out of SLP (C) Nos.6547-6548 of 2014)
UNION OF INDIA AND ORS. ...APPELLANTS
VERSUS
INSP.GD (MAHILA) BILJU A.T.
& ORS.ETC. ...RESPONDENTS
O R D E R
Leave granted.
These appeals have been preferred by the Union of India and others against the common judgment dated 24th May, 2013 passed by the High Court of Delhi at New Delhi in W.P.(C) No. 8744/2011 and W.P.(C) No.1368/2012. By the impugned judgment, the Division Bench of the High Court, declared Rule 5(A) (1)(d) of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as ‘CRPF Rules, 1955') unconstitutional for being violative of Articles 14,16 and 21 of the Constitution of India and held the action of the respondents (appellants herein) in drawing up a separate seniority list of Mahila employees and consequential actions affecting the writ petitioners (respondents herein) to be unconstitutional.
The factual matrix of the case is as follows: Signature Not Verified Digitally signed by Rajni Mukhi Date: 2015.01.08 15:48:25 IST
The respondents are females (hereinafter referred to as Reason: ‘Mahila’) and after due selection they were appointed in 1 Central Reserve Police Force (CRPF) as Sub-Inspector General Duty (SI/GD) alongwith their Male counterparts. Some of them were later promoted to the higher post of Inspector. On 1 st May, 2006, the appellants notified a separate gradation list consisting of 145 female (SI/GDs).
Being aggrieved some of the Mahila-Sub-Inspectors submitted representation for maintenance of a combined gradation list which was rejected by Director-General of CRPF by letter dated 26 th February, 2007. The Director General placed reliance on Rule 5A(1)
(d) of CRPF Rules, 1955, stating that the said rule mandates that there shall be a separate cadre upto the rank of Inspector for Mahila. It was informed that for this reason, they were being promoted separately upto the rank of Inspector as per vacancies arising in Mahila ranks and are not to be considered together with their male-counterparts for promotion and maintenance of seniority. Being aggrieved, the respondents filed writ petitions challenging the validity of Amended Rule 5(A)(1)(d) of CRPF Rules, 1995 for being violative of Articles 14, 16 and 21 of the Constitution of India.
In the impugned judgment, the Division Bench of the High Court while declaring 5(A)(1)(d) ultra vires, directed the appellants to draw up a common seniority list of Sub-Inspectors/GDs irrespective of their gender based on their entry point seniority.
The appellants challenge the impugned judgment mainly on the ground that the Legislature of the State/Union has jurisdiction to 2 create separate cadre for male and female which cannot be alleged to be violative of Articles 14, 16 or Article 21 of the Constitution of India.
According to counsel for the appellants creation of two separate cadres has nexus with the object sought to be achieved as the Mahila personnel cannot be posted to field units in the operational belt where men personnel can be posted.
On the other hand, according to learned counsel for the respondents, the respondents having borne in the common cadre with other male counter parts cannot be forced to be members of another cadre.
We have noticed the rival contentions, the relevant Rules and Notifications and have perused the record.
The Acts, Rules and Notification issued from time to time which are relevant for determination of the issue are as follows:
In exercise of the powers conferred by Section 18 of the Central Reserve Police Force Act, 1949 (For short `CRPF Act, 1949’), the Central Government framed CRPF Rules, 1955. Chapter III of the said rules, deals with composition of the Force. While under Rule 4A, CRPF is constituted as (a) CRPF (Regular) and (b) CRPF (Auxiliary), Rule 5A deals with composition of the force of the battalion other than signal battalion.
The Central Government subsequently made amendment to CRPF Rules, 1955, and in Rule 5(A), in sub rule (1) after Clause (c) the following Clause was inserted as Clause(d): 3
“(d) There shall be a separate cadre up to the rank of Inspector for Mahila Battalion under the existing rules and regulations.” After the amendment, Rule 5A reads as follows :
“5A. Battalion other than Signals Battalion.
(1) The Force shall be constituted as follows:-
(a) Superior Officers:-
Commandant }
Assistant Commandant }
(Second-in-Command) }
Assistant Commandant } one for each
(Adjutant) } Battalion.
Quarter Master one for each
Battalian.
Company Commander one per service
(Officer) Company plus one
leave and training
reserve for each
Bn.
(b) Rank and file for a Battalion of four
Companies.
Subedar(Inspector): : 6
Sub Inspcetor (including
one motor Mechanic) : 21
Head Constables (including
two Radio Mechanics & One
Radio Fitter) : 66
Naiks: 72
Lance Naiks: 62
Constables 638
Note: The Commandant may make the following appointments within the above establishment:
(i) Head Constables:-
Battalion Havildar Major.
Company Havildar Major.
Company Quarter Master Havildars.
Pay Naiks.
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(ii) Constables:-
Kote Lance Naiks.
Lance Naiks
Buglars.
(c) Enrolled Followers:
(i)The following shall be the enrolled followers, namely:Cooks 18 Bhisties 10 safai Karamcharies 20 Barbers 6 Dhobies 6 Cart Drivers 6
Distribution of Followers:
Cooks Bhisties Sweepers Barbers Dhobies Cart Drivers 4 ser.Coys 12 8 12 4 4 -
(3x4) (2x4) (3x4) (1x4) (1x4)
HQ Company 6 2 8 2 2 6
6 Ser. Coys. 18 12 18 6 6 -
(3x6)(2x6) (3x6) (1x6) (lx6)
HQ. Coys 6 2 10 3 3 -
Signal Bn. 4 4 4 2 3 -
(ii) The enrolled followers mentioned above are enrolled for general service with the force and are liable at all time to be sent on duty with detachments.
(d) There shall be a separate cadre upto the rank of Inspector for Mahila battalion under the existing rules and regulations.
(2) Subject to the provisions contained in Section 4, the Central Government may make such changes in the Composition of the Force as it thinks fit.
(3) (a) There shall be a Central Training College with a Principal and an Asstt. Principal as its superior officers.
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(b) The Principal and the Assistant Principal shall be equal in rank and status to, and shall exercise the administrative disciplinary, Financial and other powers of the Commandant and the Company Commanders respectively.
B. Signal Battalion (4) (a) There shall be one or more Signal Battalion in the Force.
(b) The Composition of any such Signal Battalion shall be as follows: -
(i) Superior Officers Commandant 1 Assistant Commandant 1 Company Commandant 1 (Deputy Superintendent of Police)
(ii) Rank and file Subedar 1 Subedar Technical 1 Sub-Inspector Operators 19 Sub-inspcctor Technical 2 Sub-Inspector Quarter Master Technical 2 Head Constables Quarter Master Wireless 1 Head Constable Quarter Master 1 Head Constable Radio Operators 35 Head Constable Radio Mechanic 4 Grade I Head Constable Radio Mcchanic 25 Grade II Head Constable Fitters 21 Head Constable Instrs. 2 Head Constable Draftsman 1 Naik Operators 821 Naik instructors 2 Naik- Quarter master 2 Pay Naiks 4 Constable Store Keepers 2 Constable Tradesmen 6 Constables Orderlies 32 Followers 17 6
(c) The Commandant, Assistant Commandant and Company Commander (Deputy Superintendant of Police) referred to in Sub-clause (i) of clause
(b) shall be equal in rank and Status to, and shall exercise the same administrative, disciplinary and financial powers as are conferred respectively on, the Commandant, Assistant Commandant and Coy Commanders (Deputy Superintendents of Police) of a battalion other than the Signals Battalion.” Initially, there was no separate Mahila Battalion. First Mahila Battalion (i.e. 88 Mahila Bn) was raised during 1986 in pursuance of the Government of India, Ministry of Home Affair's letter No.12013/X/85-RG.IV dated 22.05.1985. Second Mahila Battalion (i.e. 135 Mahila Bn) was raised during 1995 in pursuance of Government of India, Ministry of Home Affair's letter No. III-11039/11/91-G&Q/PF-II dated 08.09.1994, Third Mahila Battalion (i.e. 213 Mahila Bn) was raised during 2010 in pursuance of Government of India, Ministry of Home Affair's letter No. II-27012/36/2007-PF-II dated 01.09.2009 and fourth Mahila Battalion (i.e. 232 Mahila Bn) was raised on 1.4.2014 in pursuance of Government of India, Ministry of Home Affair's letter No. II-27012/36/2007-PF-II dated 01.09.2009.
The respondents/writ petitioners were appointed as sub Inspectors (General Duty) in CRPF pursuant to the advertisement dated 5th November, 2000 published in “Employment News”. They were posted in the Mahila Battalion. Some of them were promoted to the higher posts of Inspector, CRPF (General duty). Others were working as Sub-Inspectors.
7 The Competent Authority issued two separate seniority lists, one for male inspectors and other for female inspectors. According to respondents/writ petitioners as all the inspectors of CRPF irrespective of males or females, were appointed in common cadre (General Duty), separate seniority list for male and female were not permissible as it was in violation of Articles 14 and 16 of the Constitution of India. The respondents/writ petitioners were of the view that the Competent Authority, in view of amended Rule 5 (A) (1)(d) had created two separate seniority lists for male and female Inspectors, and, therefore they preferred the writ petitions with following prayers:
“A. Issue a writ of certiorari, quashing the Rule 5A (1)(d) of CRPF Rules, 1955; and B. Issue a writ of Mandamus directing the Respondents to maintain a common Seniority List for SI/GD male and (Mahila) and to grant promotion to the petitioner to the rank of Assistant Commandant at par with her male counterparts who have been enrolled as SI/GD pursuant to the same selection process conducted by the Staff Selection Commission alongwith all consequential benefits.” The Division Bench of the High Court while declared the Rule 5(A)(1)(d) unconstitutional for the reason of being violative of Articles 14, 16 and 21 of the Constitution of India and issued following directions:
“57. A writ of mandamus is issued directing the respondents to draw a common seniority list of SI/GDs irrespective of their gender, based on their entry point seniority.“ The Central Government in supersession of the CRPF Group `C' and `D' (General Duty/Tech/Tradesmen Cadre(non-Gazetted) 8 (male/female) and Group `D' (Enrolled followers) (male/female) of Recruitment Rules 2001 by notification dated 22nd July, 2010 made Rules regulating the method of recruitment to the posts of Group ‘C’ and ‘D’ (General Duty/Tech/Tradesmen Cadre (male/female).
Total number of posts were shown as 1,53,420 out of which 1,50,470 posts were shown for male and 2,950 posts for female in Group C posts subject to variation depending upon the work load.
Late, during the pendency of the writ petition, the Central Government by Notification dated 20th December, 2011, framed CRPF Assistant Sub-Inspector (General Duty Cadre) (Non-Gazetted) (Male & Female) Group C post Rules regulating the method of recruitment to Assistant Sub-Inspector male and female Group `C' posts. The Schedule annexed to the rules showed the number of posts for Assistant Sub Inspector (General Duty Cadre) to be 13490 out of which 13277 posts for male and 213 posts for female were shown subject to variation depending upon the work load.
Subsequently in supersession of the CRPF Group B,C and D (General Duty/Tech/Tradesmen Cadre) (Non-Gazetted) (male/female) and Group `D' (Enrolled Followers) (Male/Female) Recruitment Rules, 2000, by the notification dated 5th February, 2014 Central Government notified General Duty Cadre of sub-inspector CRPF Group B posts (General Duty) Technical and Tradesman Cadre) Recruitment Rules, 2014. The Schedule to the said rules shows the number of posts to be 7,792, out of which 7624 posts were shown for male and 168 posts were shown for female subject to variation depending upon the work load. Similarly, in respect of posts of Inspector 9 in General Duty Cadre total number of posts was mentioned as 3109 i.e. 3042 posts for male and 67 posts for female subject to variation as may be depending upon the work load.
From the Rules framed by the Central Government and the Notifications by which Mahila Battalion were created the following facts emerge:
i) Composition of the force includes all Battalions other than Signals Battalion.
ii) The force is constituted of (a) superior officers and
(b) rank and file for a Battalion of four companies. The superior officers are divided in different cadres/sub cadres such as Line Commandant, Assistant Commandant, Quarter Master, one for each battalion but all battalions have a common cadre/sub cadre.
iii) Pursuant to CRPF Amendment Rules, Rule (5), Sub-Rule (1) Clause (d) was inserted vide GSR-776(E) dated 23.8.1989 which states as follows:
“there shall be a separate cadre upto the rank of Inspector Mahila Battalion under the existing rules and regulations.” Therefore, separate cadre upto the rank of inspector for Mahila Battalion under the existing Rules and Regulations was ordered to be created by Notification dated 26th May, 1988.
iv) However, strength of separate cadre upto the rank of inspector of Mahila Battalion was not notified by the Central Government by carving out different posts or creating separate posts for the separate cadre upto the rank of inspector of Mahila Battalion.
v) Those who had already been appointed prior to the amendment of Rules remained in the common cadre of Sub-Inspector (General Duty), Inspector (General Duty) etc.
vi) No individual member of Common Cadre of Sub-Inspector or Inspector (General Duty), by name was allocated separate cadre of female or male by any Notifications.10
Vii) For the first time by Notification dated 22nd July, 2010, i.e. during the pendency of the writ petition, the Central Government notified the strength of the Group ‘C’ and ‘D’ posts of male and female. Though 1,53,420 posts were shown as strength of the cadre, it was made clear that out of them 1,50,470 shall be male and 2,950 shall be female. Similarly, by Notification dated 20th December, 2011 the strength of Assistant Sub-Inspector (General Duty) (Common Cadre) was shown 13,490, out of them, 13,277 posts were shown for males and 213 for females. By another notification the strength of Sub-Inspector and Inspector (General Duty) (Common Cadre) was notified showing total strength of 7792 out of which males were 7624 and females 168 and the total number of posts of Inspector (General Duty) (Common Cadre) was shown to be 3109 out of which 3042 for males and 67 for females.
From the aforesaid facts, it is clear that upto the year 2010, no separate strength of Mahila was notified. It was notified for the first time by notification dated 22nd July, 2010 but joint strength of cadre i.e. 1,53,420 posts were notified, including the number of posts of male and female. For Group ‘B’ posts for the first time it was notified on 5th February,2014 showing strength of male and female personnel but within the joint strength of common cadre. Similarly, by notification issued in the year 2014, in respect of Sub-Inspector and Inspector, for the first time strength of male and female were shown but within the joint cadre of male and female.
The competent authority has inherent powers to frame Rules regulating Recruitment and Conditions of Service including creation of service and cadre. As per article 309 of Constitution, which relates to services under the Union and States, the appropriate Legislature may regulate the recruitment and conditions of service by framing Acts. Under the proviso to 11 Article 309 the President in connection with officers of the Union of India and the Governor in connection with the affairs of the State may make Rules for regulating the services of persons appointed for the services of the Union or/State until provision in that behalf is made by or under an Act.
The Central Reserve Police Force Act was enacted by Parliament, and was notified in official gazette on 30 th December, 1949. The Central Government was empowered under Section 18(2)(a) of the Act to frame rules for carrying out the purposes of the said Act for regulating the classes and grades of pay, pension and other remuneration of members of the Force and their conditions of service. In exercise of power under sub-section 1 of Section 18 of the CRPF Act, Central Government inserted Clause (d) in sub-rule (1) of Rule 5A creating separate cadre up to the rank of Inspector for Mahila battalion under the existing rules and regulations but strength of cadres and its members were not notified. The said rule cannot be held to be violative of Article 14 or 16 or 21 of the Constitution of India till it affects the Fundamental Right of a person.
Mahila Battalion consists of both male and female CRPF personnel of different ranks. Certain posts upto the rank of Inspector are marked for male CRPF personnel and certain for CRPF female personnel. The word “Mahila Battalion” used for the Battalion does not mean that the battalion consists of only female CRPF personnel.
From the affidavit of the appellants it is clear that the 12 posts of the rank of Constable, Head Constable, Assistant Sub-Inspector of Cadre (General Duty) in the Mahila Battalion are filled up mostly by Mahila personnel but as a welfare measure, few of above posts of Mahila personnel were exchanged with the male personnel. That means that Mahila Battalion consists of both female and male personnel. The word “Mahila” used before the battalion does not mean that the battalion is meant for female only.
From the facts as noticed above, it is clear that both male and female since its inception belong to the same cadre though certain posts have been earmarked for male and other for the female. In absence of any challenge to the creation of the Mahila Battalion or Notification constituting Mahila Battalion showing strength of male and female personnel, it is not open for any Court to interfere with the General Rule constituting separate cadre for female and male till it affects Fundamental or Constitutional Right of any individual.
The notifications by which the strength of the cadre has been shown, may include male personnel and female personnel, but their common cadre remains the same. If the posts are marked for male and female, then in absence of any challenge to such notification, a male cannot be posted against a higher post which is carved out for female and similarly a female cannot be posted to a post which is specifically carved out for male though they may be member of the common cadre.
In the present case, we are not going to determine the 13 validity of notifications showing strength of male and female personnel in the common cadre. As the notifications dated 22 nd July, 2010, 20th December, 2011 and dated 5th February, 2014 were not challenged before the High Court and the question of validity of the aforesaid notifications was rightly not noticed nor discussed by the High Court.
In the aforesaid circumstances, in absence of placement of any person in the separate Sub-Cadre of male or female, it was not open for the High Court to presume that by creating separate cadre for male and female, right of any individual under Article 14 and 16 was violated. The question of violation of Article 21 of the Constitution of India in any case, does not arise. Articles 14 and 16 can be alleged to have been violated if seniority list is prepared against the statutory rules.
We have noticed that till today, the strength of male and female Cadres has not been notified. In common cadre, in respect of Sub-Inspector (General Duty) and Inspector (General Duty) notification only shows strength for male and female personnel who can be member of the common Cadre. In absence of creation of separate Cadre for male and female personnel, it was not open to the appellants to prepare separate seniority lists for male and female. In that view of the matter, if the separate seniority lists are declared to be illegal, we find no merit to interfere with such part of the order passed by the High Court.
So far as directions are concerned, we are of the view that the High Court was not justified in giving detailed direction as 14 to what the competent authority is required to do or perform once the seniority list is set aside. If the writ petitioners/respondents are entitled for consequential benefit to which they are entitled on the basis of Common Seniority List, they may claim the same separately. In absence of any prayer made in the writ petition and in view of our finding, we set aside the Paragraphs 57 to 67 of the impugned judment passed by the High Court wherein the High Court directed the appellant to pass orders and issue notifications with regard to one or other petitioners – respondents herein.
In effect we uphold Rule 5A(1) (d) of CRPF Rules, 1955 enabling the competent authority to create separate cadre for male and female and set aside such part of the judgment passed by the High Court declaring the said rule unconstitutional. Having upheld the part of High Court’s judgment, in so far as it relates to seniority list of male and female Sub-Inspectors, we are of the view that the appellants and the competent authority are now free to issue seniority list in accordance with the rules till separate cadres are created.
In so far as the members belonging to the cadre of Sub-Inspector (General Duty) and Inspector (General Duty) are concerned, they will be guided by this judgment. The rest of the cadres will also be guided by this Judgment from prospective date. If any order has already been issued in respect of other lower cadre such as Constable, Head Constable and Assistant Sub-Inspector prior to this order, they will not be affected in 15 absence of any challenge, before any Court of law.
The impugned judgment and order dated 24th May, 2013 passed by the High Court of Delhi at New Delhi in W.P.(C) No.8744/2011 and W.P. (C) No.1368/2012 is modified to the extent above.
The appeals stand disposed of.
.….........................J. [SUDHANSU JYOTI MUKHOPADHAYA] ...........................J. [S.A.BOBDE] NEW DELHI;
OCTOBER 16, 2014
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ITEM NO.1 COURT NO.4 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petitions for Special Leave to Appeal (C) Nos. 6547-6548/2014 (Arising out of impugned final judgment and order dated 24/05/2013 in WP No. 8744/2011,24/05/2013 in WP No. 1368/2012 passed by the High Court of Delhi at N. Delhi) UOI AND ORS. Petitioner(s) VERSUS INSP.GD (MAHILA) BILJU A.T. AND ORS.ETC Respondent(s) Date : 16/10/2014 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE S.A. BOBDE For Petitioner(s) Mr. P.S. Patwalia, ASG Mrs. V. Mohana, Adv.
Mr. A.K. Srivastava, Adv.
Mr. B. Krishna Prasad,Adv.
Ms. Sushma Suri, Adv.
For Respondent(s) Mrs. Rekha Palli,Adv.
Mr. A.V. Palli Adv.
Mrs. Punam Singh, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals stand disposed of in terms of the Signed Order.
(Rajni Mukhi) (Usha Sharma)
Sr. P.A. Court Master
(Signed Order is placed on the file)
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