Punjab-Haryana High Court
Lakhwindwerjeet Kaur vs State Of Punjab And Others on 28 April, 2009
IN THE HIGH COURT FOR THE STATES OF PUNJUAB AND
HARYANA AT CHANDIGARH
C.W.P. No.444 of 2008
DATE OF ORDER: 28.4.2009
Lakhwindwerjeet Kaur ....Petitioner
Versus
State of Punjab and others ....Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE H.S. BHALLA
Present: Mr. Surmukh Singh, Advocate for the petitioner.
Ms. Sudeepti Sharma, D.A.G. Punjab.
M.M. KUMAR,J.
The petitioner has approached this Court under Article 226 of the Constitution of India with a prayer for quashing the Rule Serial No.3 (IV) Appendix B designation of post (Agricultural Master) of the Punjab State Education Class-III (School Cadre) Service Rules, 1978 (Annexure P-
4). The basic challenge is that the expression Agricultural Master used in Appendix B prescribing qualification B.Sc. Agriculture has been incorporated and confined to Male Master by excluding the category of Mistress. The petitioner has further prayed for issuance of direction to respondent No.2 to consider her case for the promotion/appointment for the post of Agricultural Mistress by treating her equal to the Male ETT teachers.
Brief facts of the case are that the petitioner has been working as a female E.T.T. Teacher in District Ferozepur. She acquired qualification of B.Sc. Agriculture from Punjabi University, Patiala in the year 1995 (Annexure P-1). She also passed B.Ed. from the Panjab University, Chandigarh in the year 1999 (Annexure P-2). She was selected and appointed as ETT teacher vide order dated 21.12.2001 and she joined her duty as such on 24.12.2001 (Annexure P-3). For further promotion from C.W.P. No.444 of 2008 -2- the post of ETT teacher, rules have been framed which are known as "The Punjab State Education Class III (School cadre) Service Rules, 1978 (as amended in 1995) (for brevity 1978 Rules). Rule 3 provides for promotion has of an ETT teacher to the post of Master/Mistress. Accordingly, the case for promotion in the Master/Mistress cadre were called by respondent No.2 on 21.2.2005 (Annexure P-6). The petitioner being fully eligible for the post of Agriculture Mistress submitted her case for the promotion in the office of the Block Education Officer, Ferozepur, (Annexure P-7). It was accordingly forwarded to the DPI/respondent No.2 on 15.3.2005 much before the last date which was 31.3.2005. However, only male ETT teachers were promoted, who were appointed as ETT teacher much later than the petitioner. It is undisputed that no female ETT teacher was promoted. A copy of the order dated 24.8.2007 has been placed on record as Annexure P-8. In view of the aforesaid, action of the respondents has been made subject matter of challenge.
In response to the notice of motion respondents No.1 and 2 have filed their written statement. In para No.2 of the preliminary submissions, the categorical stand taken by the respondents is that there is no provision in the 1978 Rules for the appointment of female candidate against the post of Agriculture Master. It has been claimed in a bald manner that there is no violation of the constitution as the nature of duties of Agriculture Masters requires some agricultural operations in practical work which cannot be performed by the female mistress. The further stand of the respondents is that the practical work is the dominant aspect of teaching of agriculture in schools and has been allocated for 60% marks in examination and theoretical portion covers only 40% marks. It is further stated that it is C.W.P. No.444 of 2008 -3- in harmony with the policy of the Government to employ only female teachers in certain faculties of teaching such as in the subject of Home Science where male teachers are neither employed nor promoted.
Respondent-State has also taken the stand that there is no discrimination resulting in violation of Article 15(3) or Article 14 and 16 of the constitution of India. With regard to the claim of the petitioner that the post of Agriculture Lecturer has been made available to female and they are recruited by way of direct recruitment, the respondent has stated as under:
"It is further submitted that lecturer in agriculture is required to teach the students by lecture method only. No physical or practical work is assigned to him/her so male as well as female can be appointed against the post of agriculture lecturer. But an agriculture master is required to do practical work so female candidate being tender may not be assigned such work which is according to natural justice even. Moreover position has already been explained in para-13."
Mr. Surmukh Singh, learned counsel for the petitioner has vehemently argued that Sub-clause (iv) of Clause 3 of Appendix B has omitted the expression 'Mistress' which has otherwise been used in preceding and exceeding in sub clause (iii) and (vi) which provides for promotion as Science Master or Mistress and physical Training Master or Mistresses. He has also contended that excluding the female candidate from consideration for the post of Agriculture Mistress is wholly arbitrary and violative of article 15(3) of the Constitution. He has further submitted that the petitioner was appointed to the post of ETT teacher much earlier than her male counterpart, who have been promoted and therefore the provisions C.W.P. No.444 of 2008 -4- of Article 14 and 16 of the Constitution are also violated.
Ms. Sudeepti Sharma, learned State counsel has, however, argued that in certain areas female candidates are not considered on account of nature of duties and keeping in view the reasons the expression 'Mistress' was deliberately used in Sub Clause (iv) of Clause 3 of Scheduled 'B' and female candidate was not made eligible. She has illustrated her argument by citing the example that in the subject of Home Science male ETT teacher are not considered and only female teachers are accommodated. Therefore, according to her, there is no question of discrimination and some time female ETT teachers gain in subject like Home Science and some time male gains in the subject like Agriculture. According to the learned counsel, the aforesaid view is based on the policy of the Government.
In order to determine as to whether the rule has been correctly interpreted by the respondents, it would be necessary for us to extract the Appendix 'B' read with Rule 5 which read thus:
" 5. (1) No 'person' shall be appointed to any post in the Service, unless he possesses necessary qualifications and experience as laid down in column 3 of the Appendix 'B' to these rules.
(2) No person shall be recruited to any post in the Service by direct appointment unless he possesses knowledge of Punjabi language of matriculation or equivalent standard or passes the test of Punjabi language of Matriculation Standard to be held by the Commission, Board or such authority as may be specified by the Government in this behalf from time to time:
Provided that the persons who are in service on the date of commencement of these rules, shall be governed by C.W.P. No.444 of 2008 -5- such instructions regarding possession of qualifications in Punjabi as were applicable at the time of their appointment".
APPENDIX 'B' (See Rule 5) Method of recruitment Serial Designation of posts Minimum qualifications and ______________________ No. teaching experience Direct Promotion Appointment 1 2 3 4 5 3 Master of Mistress or Degree of a recognised university 75% 25% from B.E.O. with B.T./B.Ed. B.Sc. and trained S.S.T.C. or B.T. or B.Ed., Senior Graduates Basic Trained with any two of the J.E.T.s four subjects in B.Sc., namely Physics, Chemistry, Potany and Zoology OR B.A with Mathematics A course and Physics of Physics and Geography with S.S.T.C., B.T. B.Ed. Or Senior Basic Trained.
(ii) Mathematics Master B.A (Math A & B course) with
or Mistress S.S.T.C., B.T., B.Ed. or Senior
Basic Trained
OR
B.A. with Physics and Mathematics
A course with S.S.T.C., B.T.,
B.Ed. Or Senior Basic Trained
(iii) Social Studies Masters B.A. with Subject combination
or Mistresses as approved by Government from
time to time with SIS.T.C.B.T.,
B.Ed. Or Senior Basic Trained.
(includes service of D.P.Ed. And
B.P.Ed. As masters and Mistresses
with atleast three years actual
teaching experience)
(iv) Agriculture 'Master' B.Sc. (Agriculture)
(v) Commerce Master B.Com.
(vi) Physical Training Graduate with training in advanced
Master or Mistresses physical training Course Degree
(DPE) or Diploma
A perusal of the aforesaid Rule shows that no person could be appointed to any post of the Master/Mistress unless he possesses necessary qualifications and experience as per the requirement of Sub Clause (iv) of C.W.P. No.444 of 2008 -6- the Appendix 'B'. The requirement of Sub Clause (iv) Appendix 'B' is that one has to be B.Sc. Agriculture. However, against the qualification B.Sc. Agriculture, the expression Agriculture 'Master' has been incorporated. In the rules, there is no express bar to exclude the female candidate from consideration for the post of agriculture Master. It is only on the basis of the preceding and succeeding Sub Clause (iii) and (vi) of the appendix which also prescribe qualification, the expression Master/Mistress for example has been used. In those clauses with the post of physical training Master expression 'Mistress' has also been employed. Therefore,the question for consideration is whether the intent of legislature in such circumstances is to exclude the female from consideration for appointment to the post of Agriculture Master merely by omission of expression 'Mistress'.
We find that Rule 5(1) of the 1978 rules which is substantive rule provides for qualifications for promotion for the post in the 'service' which include Master/Mistress. The aforesaid rule does not exclude the Female ETT teachers from consideration for promotion which provides that no 'person' could be appointed to any post in service including that of Agriculture Master/Mistress. The expression 'person' used in Rule 5(1) is a common gender and by no stretch of imagination it could be confined only to Male candidates. It is further evident that for the purposes of qualification and experience, it refers to column 3 of Appendix 'B' attached to 1978 Rules. The entries in Appendix 'B' cannot be construed independently of the main rule 5(1). Therefore, sub clause (iv) of clause 3 of schedule B necessarily has to be construed in the light of rule 5(1). Accordingly, it has to be read down to mean that qualification for the post of C.W.P. No.444 of 2008 -7- Agriculture Master is B.Sc. (Agriculture). The expression 'Mistress' must be implied because rule 5(1) of 1978 rules uses the expression 'person' which is a common gender. The aforesaid interpretation is a necessary corollary which follow on account of the intention of the rule making authority reflected in Rule 5(1) of the 1978 rules. If the clauses in appendix 'B' are interpreted otherwise then it may result in violation of constitutional mandate of Articles 14 and 15 (1) (2) of the Constitution as has been held by two Division Bench judgements of the Kerala High Court in the cases of Omana Oemen v. FACT Ltd. 1990(1) KLT 614 and Mariamma v. Hindustan Latex Ltd. 1993(1) KLT 899 and a Single Bench Judgement of the same Court in the case of Sheeba Kuttiatan v. State of Kerala and others 2006(4) RSJ 753. In order to avoid a declaration of unconstitutionality the aforesaid interpretation has to be preferred by implying the age old cannons of construction of reading down. It is well settled that when two constructions are reasonably possible then the Court would lean towards the construction which uphold the validity of the Act rather than the one which affects its validity. In that regard reliance may be placed on a Constitution Bench of the Hon'ble Supreme Court in the case of Tklkayat Shri Govindlaji Maharaj v. State of Rajasthan, AIR 1963 SC 1638.. Similar view has been taken by their Lordships of the Supreme Court in Karnataka Bank Ltd. v. State of Andhra Pradesh (2008) 2 SCC 254. Moreover, if the petitioner is held ineligible for promotion to the post of Mistress in Agriculture then thereafter further promotion to the post of lecturer would also be adversely effected. She would not be able to advance her career which may be restricted only to ETT teachers and such a course would attract the violation of Articles 14 and 16 (1) of the Constitution. C.W.P. No.444 of 2008 -8- Accordingly, we are of the view that merely on the basis of column 3 Appendix B which prescribes qualification, it cannot be construed that the female candidates are excluded from consideration for promotion to the post of agriculture Master/Mistress.
In the present era when women are entering in every field of professional activities it cannot be claimed by the respondent State that agriculture operations are beyond their reach. The degree of B.Sc. (Agriculture) includes various extension courses which involves practical and operations in the field of agriculture. In the aforesaid context it would be profitable to advert to the observations of Hon'ble the Supreme Court made in the case of Anuj Garg and others vs. Hotel Association of India and others, (2008) 3 SCC 1 wherein it has been observed as under:
" When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grassroot democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, pilots, et.al. Women can be seen to be occupying Class IV posts to the post of a Chief Executive Officer of a multinational company. They are now widely accepted both in police as also army services". C.W.P. No.444 of 2008 -9-
It is thus evident that women of today is entirely different than what they were 30 years ago. The Hon'ble Supreme Court has observed in the aforesaid para that women in India have gained entry in all spheres of public life. They are now being employed as drivers of heavy transport vehicles, conductors of service carriages, pilots etc. Accordingly, we cannot think that women would not be equally capable of discharging their duties in any agriculture operations required under the rules. There is no provision in the constitution to conclude that post can be reserved for male candidate whereas protective discrimination in favour of female could always be made. Therefore, the right of the petitioner under Article 14 and 16 of the Constitution cannot be violated by adopting an interpretation which is wholly unacceptable.
The stand of the respondent-State that in the subject of Home Science only female are considered, would also not be acceptable because protective discrimination in favour of the women could always be made by virtue of Article 15 (3) of the Constitution. According to Article 15(3) of the constitution the State is not prevented from making any special provision for women and children. At the same when when special provision is made for male depending upon the facts and circumstances of each case which may attract successful challenge on the envil of Articles 14, 15 (1&2) and 16 of the Constitution.
As a sequel to the above discussion, we hold that the petitioner is eligible to be considered for promotion to the post of Master/Mistress cadre in the trade of Agriculture. Accordingly, we direct that her case be considered with effect from the date candidates belonging to male category have been promoted. If she is found suitable then promotion be given to C.W.P. No.444 of 2008 -10- her on the post of Agriculture Mistress w.e.f. the date when her male counter parts have been promoted vide Annexure P-8 dated 24.8.2007. Let the needful be done within one month from the date of receipt of copy of this order.
(M.M. KUMAR ) JUDGE ( H.S. BHALLA ) JUDGE 28.4.2009 rajeev