Himachal Pradesh High Court
Jyoti Kumari & Ors vs The Secretary Education & Anr on 18 May, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 2958 of 2009.
Reserved on: 15.5.2015.
.
Decided on: 18.5.2015.
Jyoti Kumari & ors. ......Petitioners.
Versus
The Secretary Education & anr. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1
For the petitioners: Mr. Nitin Thakur, Advocate, vice Mr. J.R.Thakur, Advocate.
For the respondents: Mr. Parmod Thakur, Addl. AG with Mr. Neeraj Sharma, Dy. AG.
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Justice Rajiv Sharma, J.
The petitioners are wards of ex-servicemen. Their names were sponsored by the District Employment Officer, Hamirpur, for interview to the post of TGT (Med.) under the quota reserved for wards of ex-
servicemen. They were issued call letters for batch-wise interview for the post of TGT (Med.), vide Annexure P-1. The petitioners were to be interviewed w.e.f. 31.7.2009 to 1.8.2009. However, the date was later on shifted to 5.8.2009. The fact of the matter is that the petitioners were not interviewed on the basis of the note appended to Annexure P-1 to the effect that married daughters were not eligible to get the benefit under the ward of ex-servicemen. There is reference to Annexure R-1 dated 22.2.2003, whereby the married daughters cannot be considered as dependent on ex-
servicemen for employment against quota reserved for ex-servicemen.
2. The action of the respondents of not considering the petitioners as wards of ex-servicemen, is wholly unreasonable and 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:12:21 :::HCHP 2arbitrary. There is discrimination on the basis of sex. The son of ex-
serviceman is eligible to be considered for the quota under the category .
"wards of ex-servicemen" even though married, but not the married daughters. It is violative of Articles 14, 15 and 16 of the Constitution of India. There is no nexus with the object sought to be achieved by incorporating the note appended to Annexure P-1 read with Annexure R-1 dated 22.2.2003. The primary object to provide employment to wards of ex-servicemen is to recognize the outstanding services rendered by the ex-
servicemen to the Nation and also to ensure that the children who suffers due to long absence of his/her father are given benefit towards employment by making reservation to them under the category of "wards of ex-servicemen". The daughter, even if married, would be eligible for public employment under the category "wards of ex-servicemen". She would be considered by legal fiction dependent upon her father, if she gets married.
3. In a similar situation, their Lordships of Hon'ble Supreme Court in Savita Samvedi (Ms) and another versus Union of India and others, (1996) 2 SCC 380 have held as under (paras 5 to 10):-
"5. As is obvious from the plain reading of the Circular, the married daughter of a retiring official is eligible to obtain regularization if her retiring father has no son. She thus has a foothold, not to be dubbed as an outcaste outright. In case he has a son, she shall not be in a position to do so, unless he is unable to maintain the parents, e.g. like a minor son, but then she should be the only person who is prepared to maintain her parents. It is thus plain that a married daughter is not altogether debarred from obtaining regularization of a railway quarter, but her right is dependent on contingencies. The ::: Downloaded on - 15/04/2017 18:12:21 :::HCHP 3 authorities concerned as also the Central Administrative Tribunal seemed to have overlooked the important and predominant factor that a married daughter would be entitled .
to regularization only if she is a railway employee as otherwise, she by mere relationship with the retiring official, is not entitled to regularization. Logically it would lead to the conclusion that the presence of a son or sons, able or unable to maintain the parents, would again have to be railway employees before they can oust the claim of the married daughter. We are not for the moment holding that they would be capable of doing so just because of being males in gender. Only on literal interpretation of the Circular, does such a result follow, undesirable though.
6. A common saying is worth pressing into service to blunt somewhat the Circular. It is "A son is a son untill he gets a wife. A daughter is a r daughter throughout her life."
7. The retiring official's expectations in old age for care and attention and its measure from one of his children cannot he faulted, or his hopes dampened, by limiting his choice. That would be unfair and unreasonable. If he was only one married daughter, who is a railway employee, and none of his other children are, then his choice is and has to be limited to that railway employee married daughter. He should be in an unfettered position to nominate that daughter for regularization of railway accommodation. It is only in the case of more than one children in Railway service that he may have to exercise a choice and we see no reason why the choice be not left with the retiring official's judgment on the point and be not respected by the railways authorities irrespective of the gender of the child. There is no occasion for the railways to be regulating or bludgeoning the choice in favour of the son when existing and able to maintain his parents. The railway Ministry's Circular in that regard appears thus to us to be wholly unfair, gender biased and unreasonable, liable to be struck down under Article of the Constitution. The eligibility of a married daughter must be placed at par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the Circular, referred to in its first paragraph, above-quoted.
::: Downloaded on - 15/04/2017 18:12:21 :::HCHP 48. The Tribunal took the view that when the Circular dated 11.8.1992 had itself not specifically been impugned before it and ex-facie the conditions contained in the said Circular had .
not been satisfied in the present case, no relief need be given to the appellants. The Tribunal viewed that when there were two major sons of the second appellant, gainfully employed, the fact that they were not railway employees, not residing in Delhi, did not alter the situation that the terms of the Circular dated 11.8.1992 had not been satisfied, under which alone regularization was permissible. As brought about before, the Tribunal overlooked this aspect that the Circular was meant only to enlist the eligibles, who could claim regularization, but the important condition of one being a railway employee had to be satisfied before claim could be laid. In the instant case, the first appellant, on that basis, alone was eligible (subject to gender disqualification going). So the second appellant could exercise his choice/option in her favour to retain the accommodation, obligating the railway authorities to regularise the quarter in her favour, subject of course to the fulfillment of other conditions prescribed. The error being manifest is hereby corrected, holding the first appellant in the facts and circumstances to be the sole eligible for regularization of the quarter.
9. It was also pointed out before us that the Central Administrative Tribunal, Bombay Bench in one of its decisions in OA 314 of 1990 decided on 12.2.1992 (Ann. P-8) relying upon its own decision in Ms. Ambika R. Nair and another vs. Union of India and others (T.A. No. 467 of 1986) in which the earlier Circular of the railway board dated 27.12.1982 had been questioned, held that the same to be unconstitutional per se as it suffered from the twin vices of gender discrimination and discrimination inter se among women on account of marriage. We have also come to the same view that the instant case is of gender discrimination and therefore should be and is hereby brought in accord with Article 14 of the Constitution. The Circular shall be taken to have been read down the deemed to have been read in this manner from its initiation in favour of the married daughter as one of the eligibles, subject, amongst others, to the twin conditions that she is (i) a railway employee; and (ii) the retiring official has exercised the choice in her favour for regularization. It is so ordered.
10. For the reasons stated above, this appeal is allowed and direction is issued to the respondents to grant regularization of ::: Downloaded on - 15/04/2017 18:12:21 :::HCHP 5 the quarter in favour of the first appellant with effect from the date of retirement of the second appellant and regulate/re- adjust the charges on account of house rent accordingly. There .
shall be no order as to costs."
4. Their Lordships of Hon'ble Supreme Court in Miss C.B. Muthamma, I.F.S. versus Union of India and others, (1979) 4 SCC 260 have held that sex-discrimination in service Rules would be unconstitutional unless justified by the peculiarities and nature of the employment. Their Lordships have held as under (paras 4 to 7):-
"What is more manifest as misogynist in the Foreign Service is the persistence of two rules which have been extracted in the petition. Rule 8(2) of the Indian Foreign Service (Conduct & Discipline) Rules, 1961, unblushingly reads:
"Rule 8(2) : In cases where sub-rule (1) does not apply, a woman member of the service shall obtain the per- 671 mission of the Government in writing before her marriage is solemnized. At any time after the marriage, a woman member of the Service may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service."
Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-::: Downloaded on - 15/04/2017 18:12:21 :::HCHP 6
continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the .
species. Rule 18 of the Indian Foreign Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial strain:
(1)............
(2).............
(3).............
(4) No married woman shall be entitled as of right to be appointed to the service."
At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.
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 672 handicaps of either sex may compel selectivity. But save where the differentiation ::: Downloaded on - 15/04/2017 18:12:21 :::HCHP 7 is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental .
mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Government's affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules."
5. Accordingly, the writ petition is allowed. Note appended to Annexure P-1 on the basis of Annexure R-1 dated 22.2.2003, is quashed and set aside. The respondents are directed to interview the petitioners for the post of TGT(Med.), against their respective batch and to issue appointment letters to them with all consequential benefits within six weeks. Pending application(s), if any shall stand disposed of.
May 18, 2015, ( Rajiv Sharma ),
(karan) Judge.
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