Kerala High Court
Mariamma vs Hindustan Latex Ltd. on 6 April, 1993
Equivalent citations: (1994)ILLJ488KER
JUDGMENT Balakrishnan, J.
1. Petitioner was appointed as a Lady Security Guard in the respondent Company and she joined on March 3, 1984. Petitioner is a member of the Scheduled Caste. The majority of the Guards working in the company are Ex-service men. Petitioner's brother was in Military Service and he died on May 29, 1964 while in service. Thereafter, the petitioner sent various applications to get employment. At last the petitioner's application was recommended by the Rajya Sainik Board and on that basis the petitioner was appointed by the respondent. Petitioner has passed S.S.L.C. and later also obtained National Physical Efficiency Test Certificate. She was promoted to the post of Head Guard on August 23, 1991 and this promotion was on the basis of seniority. The next promotion to the post available to the petitioner is that of Assistant Security Inspector (ASI). There are 4 Assistant Security Inspectors working in the company and, out of these, one C. Thankappan Chettiar retired from service on September 1, 1992. That vacancy should have been filled up by a Scheduled Caste candidate and the petitioner requested the respondent to give her promotion to the above vacancy. Her request was turned down and one Ayyappan, a general candidate, was appointed. Petitioner contends that the promotion to the post of Assistant Security Inspector is also based on seniority. Another vacancy arose on November 30, 1992 on the retirement of one P. Andrews and the petitioner filed representation seeking promotion to this post. The petitioner further contends that the respondent is taking steps to fill up this vacancy by a general candidate ignoring the claim of the petitioner. Hence, this Original Petition praying for writ of mandamus to direct the respondent to promote the petitioner to the post of Assistant Security Inspector.
2. A counter-affidavit has been filed by the respondent. The Kerala State Productivity Council ('the Council' for short) has conducted a work study in the respondent company to assess the manpower requirements and to classify the posts. The Council recommended that in order to check woman employees there should be one post of Lady Security Guard and it was further stated in the counter that this Guard may be posted during 11.00 A.M. to 2.00 P.M. so that the women employees going after the duty at 2,00 P.M., 5.00 P.M. and 6.00 P.M. could be checked. The report of the Council was accepted by the Board of Directors and pursuant to that the respondent had sent a requisition to the Employment Exchange to sponsor candidates. 13 candidates were sponsored and they were interviewed by a Committee. The Committee found the petitioner suitable for the post of Lady Security Guard. It is alleged that the duties of Lady Security Guard is different from duties of Male Security Guard. Only Ex-servicemen with requisite qualifications are appointed as Security Guards. Originally the qualification was pass in VIIIth standard which has now been changed as S.S.L.C. All these Security Guards now working in the company are ex-servicemen and they are trained and experienced in the duties specified for security guards. The post of Lady Security Guard was created for a specific purpose and it is separate and distinct post in the Security Department of the company. However, the petitioner was given monetary benefits of the post of Head Guard and Assistant Security Inspector. As the petitioner was appointed specifically as Lady Security Guard, she is not entitled to get promotion and she had even given monetary benefits and therefore she cannot have any grievance, It is admitted that the vacancy that arose on September 1, 1992 is reserved for Scheduled Caste candidate. There was no suitable S.C. candidate in the feeder category for promotion. The claim of the petitioner for promotion to the said vacancy is unsustainable and hence denied. The petitioner was appointed as Lady Security Guard for which post no promotional avenues were provided. Feeder category in the post of Asst. Security Inspector is Head Guard, and the petitioner was not granted the benefit of higher post as she had not worked as Head Guard and she was only discharging the duties of a security guard and not Head Guard. The Productivity Council pointed out that various duties are to be performed by the Head Guard. It is further stated that the petitioner cannot claim promotion to the post of Asst. Security Inspector on the basis of seniority. It is also contended that there is no violation of the Fundamental Rights under Articles 14, 15 and 16 of the Constitution.
3. I heard the petitioner's counsel and also the counsel for the respondent The main contention urged by the petitioner's counsel is that the petitioner was appointed as Lady Security Guard just as any other security guard of the respondent company. The petitioner got appointment as security guard being the dependent of a Jawan who died in service. Usually, the post of security guard is filled up by appointing ex-servicemen. It was not specified at the time of appointment that the petitioner would be appointed as a special case and she will not be entitled to get any promotion. Subsequently, the petitioner was given all the benefits of a Head Guard when her turn of promotion came. Now, the petitioner contends that she is entitled to be promoted as Asst. Security Inspector. The main contention urged by the respondent's counsel is that the petitioner has not worked as Head Guard. This does not appear to be a tenable contention. The petitioner was given all the financial benefits that are due to a Head Guard and the promotion to the post of Head Guard was denied on unreasonable grounds. Even according to the respondent the main duties that are to be done by an ordinary security guard is to keep constant vigilance on the main gate, factory surroundings and safeguard the property of the factory from damage, theft, pilferage etc. and also to identify trespassers/foreign elements inside the factory to check them and inform higher authorities. The duties that are to be assigned to the Head Guard are also similar in nature. In para 6 of the counter affidavit at page 7, the various duties that are to be performed by the Head Guard are mentioned. The respondent has no case that a Lady Head Guard would not be in a position to perform these duties. The only objection that was raised is that the respondent would find it difficult to post the Lady Head Guard for night duty. So, the promotion to the post of Head Guard also was denied to the petitioner without any valid ground.
4. Even though the petitioner was not promoted to the post of Head Guard, she was given all the benefits in that category. Once she was given all the financial benefits that are due to Head Guard it cannot be said that she was still a security guard. Further promotion to the post of Asst. Security Inspector was denied to the petitioner on the ground that petitioner is a lady. The respondent company admits that on September 1, 1992 a vacancy arose and the same was earmarked for Scheduled Caste candidate. That post was filled up by a general candidate. Again a post of Asst. Security Inspector arose on November 30, 1992 on the retirement of one Andrews. The respondent is bound to fill up this vacancy by following the principles of reservation. Respondent admits that if the principles of reservation are followed this post is to be filled up by a Scheduled Caste candidate but the petitioner is not being considered on the ground that she is a lady. This contention cannot be accepted as it would amount to violation of the Fundamental Rights enshrined under Article 16(1)&(2) of the Constitution, which reads as follows:
"Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) 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 Slate".
It is clear that the petitioner is being denied the promotion purely on the ground that she is a female employee.
5. It may be noticed that in C.B. Muthamma v. Union of India (AIR 1979 SC 1868) the Supreme Court struck down the service condition requiring a female employee to obtain the permission of the Government in writing before her marriage is solemnized and denying right to be appointed on ground that the candidate is a married woman are discriminatory. The Supreme Court observed:
"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 handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern".
6. In England, the House of Lords in Fostar and Ors. v. British Gas PLC (1991 (2) WLR 1075) set aside the decision of Court of Appeal and directed Industrial Tribunal to assess compensation payable to the applicants for the discrimination which obliged them to retire at an earlier age than their male colleague. House of Lords pointed out that respondent Corporation had been created pursuant to Gas Act 1972, as a body under State control responsible for the exclusive provision of the gas supply and Article 5(1) of the Council Directive could be enforced. Council Directive Article 5(1) reads:
"Application of the principle of equal treatment with regard to working condition, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on ground of sex".
In England, there is also a statute prohibiting discrimination on the ground of sex viz. Sex Discrimination Act 1975. I have pointed out the above facts only to show that it has been now accepted as universal principle that there shall not be any discrimination on the ground of sex.
7. As the respondent has no case that the petitioner being a female employee will not be in a position to perform the duties as Assistant Security Inspector, the denial of promotion to the petitioner is clear violation of Article 16(2) of the Constitution. The respondent is directed to consider the case of promotion of the petitioner and pass appropriate orders.
8. Original Petition is allowed to the extent indicated above.