Orissa High Court
State Of Orissa vs Sankar Jena And Ors. [Alongwith O.J.C. ... on 4 April, 2006
Equivalent citations: 2006(I)OLR657
Author: B.P. Das
Bench: B.P. Das, N. Prusty
JUDGMENT B.P. Das, J.
1. The question as to whether special provision for women in respect of employment can be made by the State in order to cater to the needs of adolescent girls and lactated women has arisen to be judicially decided in the present writ applications. The occasion has arisen as the Orissa Administrative Tribunal (hereinafter 'the Tribunal') has stuck down Rules 6(1) (b) and 7(2) (a) of the Orissa Children's and Women's Welfare Service Rules, 1989 (in short 'the 1989 Rules') framed by the State Government, which provided for an all women cadre for Child Development Project Officers under the Orissa Children's and Women's Welfare Service holding the same to be violative of the provisions of Article 16(2) of the Constitution of India. Therefore, in effect, as per the State, the Tribunal has set at naught the Policy of the State Government to create the aforesaid cadre for women purported to be in the interest of women and children.
2. O.J.G. Nos. 6689/99 and 671 3/99 have been filed by the State against the common order dated 14.10.1998 passed by the Tribunal in O.A. Nos. 2241/96 and 2814/96 respectively. Certain Supervisors under the Integrated Child Development Service Project alleging to have been affected by the impugned order passed in O.A. Nos. 2241/ 96 and 2814/96, have filed W.P.(C) Nos. 11562/2003 and 11563/2003 after rejection of their prayer for intervention by the order dated 27.4.2001 passed in O.J.C. No.6713/99 on the ground that they were not parties to the aforesaid O.As. before the Tribunal.
All these cases being inter-linked were heard together and are being disposed of by this common judgment.
3. Opposite party Nos. 1 to 14 in O.J.C. No.6689/99, who were working as Statistical Assistants in the Integrated Child Development Services Projects under the Women and Child Development Department (WCD Department) filed O.A. No.2241/96 whereas opposite party Nos. 1 to 3 in O.J.C. No.6713/99, who were working as Social Education Organisers in the same Department, filed O.A. No.2814/96 before the Tribunal. In O.A. No.2241/96, the opposite parties/applicants prayed for (i) an appropriate direction declaring the Policy under the 1989 Rules as illegal to the extent it contravened Articles 15 and 16 of the Constitution; (ii) a direction that the applicants and other similarly situated employees are entitled to be promoted to the rank of Child Development Project Officer (C.D.P.O.); and (iii) a declaration that the Government should bring about necessary amendment/enactment to amend the 1989 Rules so as to bring up fresh Rules providing for promotional benefits to the applicants and alternatively a direction that the VLWs (Village Level Workers), who are at present working as Progress Assistants, SEOs (Social Education Organisers) and Statistical Assistants, should be brought into common consideration along with VLWs, who were promoted as Statistical Assistants for promotional facility so that the Statistical Assistants do not suffer stagnation. These 14 applicants were promoted from the rank of VLWs in the erstwhile C.D. & P.R. Department, renamed as P.R. Department, have been transferred to the newly formed Women & Child Development Department.
In O.A. No.2814/96, the applicants prayed for a direction to the respondent-State to consider their case for promotion to the posts of C.D.P.O. as per Rule 13 of the 1989 Rules along with service benefits.
4. The Tribunal heard both the Original Applications together and by common order dated 14.10.1998 declared that the provisions contained in Rules 6(1)(b) and 7(2)(a) of the 1989 Rules were not in conformity with the equality provisions as embodied in Articles 15 and 16 of the Constitution of India and thus could not be allowed to remain in the rule book and accordingly struck down the said rules. The Tribunal further directed the State to bring suitable amendment to the aforesaid 1989 Rules providing for promotion/appointment of both men and women to the posts of Supervisors, i.e., the feeder cadre for promotion to the rank of C.D.P.O.
5. The case of the opposite parties/applicants before the Tribunal was that in the erstwhile C.D. & R. R. Department (now Panchayati Raj Department), a large number of V.L.Ws. including Lady Village Level Workers (L.V.L.Ws.) were appointed for execution of community development works under the Community Development Blocks. There being no prospects of their promotion in service career, there was a lot of resentments among them, which led the Government to come out with the Resolution dated 17.10.1989 providing the following promotional avenues to the V.L.Ws.:
1. 30% of the vacancies in each of the cadres of Social Education Organisers and Gram Panchayat Extension Officers which may occur in a financial year, hitherto available as per C.D. & R. R. Department G.O. No.5409 dated 14.5.87 shall continue to be available for promotion of Village Level Workers who have passed Matriculation/H.S.C. Examination or equivalent examination and have to their credit a minimum service of 15 years as on the 1st day of April of the year of recruitment.
2. The promotional prospect as in (1) above shall be available to non-Matric V.L.Ws. also who have to their credit 20 years of service as on the 1st day of April of the recruitment year.
3. A Graduate V.L.W. shall be eligible to compete along with direct candidates for appointment as Progress Assistants and there will be no age limit for them since they are in Government service as communicated in C.D. & R.R. Department G.O. No.13858/CD dated 18.8.1987. Besides 10% of the vacancies in the cadre of Progress Assistants occurring in a financial year shall be available for promotion of V.L.Ws. who are graduates and to have their credit 5 years service as on the first day of April of the year of recruitment, i.e., financial year.
4. All the posts of Statistical Assistants in I.C.D.S. Projects that may occur in future shall be filled up by way of promotion of V.L.Ws. who are graduates and have statistical training to their credit.
6. In the same year, prior to issuance of the aforesaid Resolution, the Government in the C.D. & R.R. Department framed a set of rules, i.e., the 1989 Rules, under the proviso to Article 309 of the Constitution of India for regulating the method of recruitment and conditions of service of persons appointed to the Orissa Children's and Women's Welfare Service (in short, 'the Service'). Rule 3 of the said Rules deals with the constitution of the service with two grades, namely, the Junior Grade and the Senior Grade. The Junior Grade comprises of the posts of Supervisor and such other posts in such time scales of pay as the Government may from time to time determine, and the Senior Grade consists of the posts of C.D.P.O. and such other posts in such time scales of pay as the Government may, from time to time determine. Rules 4, 6 to 9 and 13 of the 1989 Rules lay down in the method of recruitment to the Service by both direct recruitment and promotion. It was urged before the Tribunal that the said 1989 Rules created discrimination between men and women on the ground of sex and violated Article 15 of the Constitution because the same provided that only women would get promotion to the post of C.D.P.O., which was the only post available under the rules for promotion of Statistical Assistants. The applicants before the Tribunal were V.L.Ws., who were promoted to Social Educational Organisers (S.E.Os) and Statistical Assistants. It was argued before the Tribunal that as the 1989 Rules provided for 100% reservation for women, the same was contrary to the dictum of maximum 50% reservation as laid down by the apex Court and by not providing promotional avenues for the Statistical Assistants, the 1989 Rules created a situation of stagnation for them. According to the applicants before the Tribunal, the provisions of Rules, 3, 3(2)(a), 7, 7(2)(a) and 13 of the 1989 Rules, combinedly meant for making available the posts of C.D.P.O. only to women thereby closing the promotional avenues for the Statistical Assistants.
7. Several questions were raised before the Tribunal by the State including the locus standi of the applicants to challenge the 1989 Rules before the Tribunal in the year 1996, after lapse of seven years, and that too, there being no cause of action as there was no order affecting the applicants by way of denial of their right to consideration for their promotion to the rank of C.D.P.Os. It was further argued by the State that the Original Applications were not maintainable as there was no cause of action nor was there any order passed affecting the applicants as required under Section 19 of the Administrative Tribunals Act, 1985 ('the Act' hereinafter).
8. The Tribunal after hearing the parties thought it proper to dispose of the Original Applications on merit instead of disposing of the same on the ground of delay, laches and maintainability.
While deciding the issues, the Tribunal first proceeded on the question of stagnation for Statistical Assistants, S.E.Os. and Lady Social Education Organisers (L.S.E.Os.) and recorded a finding, so far as it related to Statistical Assistants, that their promotional avenues from the level of V.L.W. were opened only in 1989 by Resolution dated 17.10.1989 and promotion was given to them in April, 1990, by which time they had worked only for six years four months and eleven days as Statistical Assistants. According to the Tribunal, it could not be said that stagnation had set in by the time of filing of the Original Application. As regards the S.E.Os./L.S.E.Os., the finding of the Tribunal was that they still had opportunities for promotion to the rank of Sub-Divisional Social Welfare Officers (S.S.W.Os.)/Assistant District Social Welfare Officers (A.D.S.W.Os). So according to the Tribunal, there was no stagnation in the case of S.E.Os./L.S.E.Os.
9. While deciding the question of discrimination by virtue of the 1989 Rules on the ground of sex, the Tribunal held that Rules 6(1)(b) and 7(2)(a) of the 1989 Rules providing for appointment/promotion of only women to the posts of Supervisor, the feeder cadre for appointment to the posts of C.D.P.O., were discriminatory against men and thus while striking down the same directed the respondent-State to bring suitable amendment to the 1989 Rules providing for promotion/appointment of both men and women to the posts of Supervisors, the feeder cadre for promotion to the rank of C.D.P.O. Thereafter, the Tribunal further directed that the Junior Grade of the Service be expanded by including Statistical Assistants and S.E.Os./L.S.E.Os., who draw pay in the same scale as the Supervisors, by issuing a notification for which enabling provision was available in Rule 3(2j(a) of the 1989 Rules. The Tribunal while declaring the aforesaid Rules to be discriminatory heavily relied upon the decision (Dr. M.C. Sharma V. The Punjab University, Chandigarh), in which a Full Bench of the Punjab and Haryana High Court struck down a regulation as the same was held to be unconstitutional and ultra vires the provisions of the Constitution of India by making discrimination against appointment of a female candidate to the post of Principal. The High Court observed that there was no basis for depriving a male to become a Principal while allowing him to discharge the duties of the Head of Department in a Women's Institution. The Tribunal also took aid of the decision of the apex Court rendered in the case of C.B. Muthamma V. Union of India reported in AIR 1979 SC 1868, wherein Justice V.R. Krishna Iyer came to a similar conclusion.
10. Now in O.J.C. Nos. 6689/99 and 6713/99, the State challenges the order of the Tribunal on various grounds and most important of them are: firstly, the opposite parties, i.e., the applicants before the Tribunal, had no cause of action nor were they in any manner aggrieved by any order to approach the Tribunal, which was the statutory requirement of Section 19 of the Act and secondly, the order of the Tribunal striking down the provisions of Rules 6(1)(b) and 7(2)(a) of the 1989 Rules as unconstitutional is absolutely not correct as the same is not in conformity with the settled position of law.
11. According to Mr. B.K. Mahanti, learned Advocate General for the State, the Punjab and Haryana High Court judgment in Dr. M.C. Sharma's case (supra) heavily relied upon by the Tribunal, is no more a good law because the Apex Court in the case of Vijaya Lakshmi v. Punjab University held that the said decision of Punjab and Haryana High Court was not a correct decision and the apex Court while setting aside the judgment of the Punjab and Haryana High Court held that the appointment of a woman Superintendent in exclusive Girls' College was not violative of Articles 14 and 16 of the Constitution of India and was not discriminatory. According to the learned Advocate General, there is absolutely no discrimination as this is a policy decision of the State and the posts require certain functions, which relate to women, for which such conscious decision was taken by the State to appoint women incumbents in those posts. It was further argued by the learned Advocate General that the opposite parties, who were the applicants before the Tribunal, had accepted the impugned 1989 Rules and once they had taken the benefit of promotion on the basis of the said 1989 Rules, their challenge to the very said Rules at a belated stage is not permissible.
According to him, the State is justified in creating the all women cadre as Article 15(3) of the Constitution begins with a non obstante Clause, which provides that nothing in this Article prevents the State Government from making any special provisions for women and children. According to him, the State Government thought it proper and took a conscious decision in reserving the entire cadre in respect of C.D.P.Os. since the I.C.D.S. deals with women and children and female C.D.P.Os. can manage the duties attached to such posts better than their male counterparts. According to him, the Tribunal is silent about the functions of the C.D.P.O. and overlooked the fact that the efforts of the State were to remedy the past discrimination against the disadvantaged of the society. The Rules under challenge were framed under Article 309 of the Constitution with the objectives of making an all female cadre for better management of the posts that involve interaction with Anganwadi Workers and the clients, the pregnant and lactated mothers and adolescent girls, and the State thought it proper that the objectives could be better achieved by reserving the posts of C.D.P.O. for only women. So the main plank of challenge of the State to the impugned judgment passed by the Tribunal is that the applicants before the Tribunal had no cause of action and that the Tribunal was not correct in holding the provisions of the 1989 Rules to be violative of Article 15 of the Constitution of India.
12. In order to fortify his contention, learned Advocate General drew our attention to the following observations made by the apex Court in the case of Government of Andhra Pradesh V.P. Bijay Kumar :
3. ...It prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of Article 15 provides that nothing in this Article shall prevent the State from making any special provisions for women and children. In other words, while Article 15(1) would prevent a State from making any discriminatory law (inter alia) on the ground of sex alone, the State, by virtue of Article 15(3), is permitted, despite Article 15(1), to make special provisions for women, thus clearly carving out a permissible departure from the rigours of Article 15(1).
Relying upon the above judgment and the judgment rendered by the apex Court in the case of Vijaya Lakshmi (supra), the learned Advocate General tried to justify the action of the State in creating the aforesaid all women cadre and submitted that the order of the Tribunal was wrong and against the settled position of law.
13. On the other hand, Mr. R.K. Rath, learned Counsel for the opposite parties/applicants, submitted that there is no reason or basis for not providing shares within the posts of C.D.P.O. to the Statistical Assistants as they are also working in the same I.C.D.S. along with the C.D.P.Os. and discharging the same nature of duties. In Annexure-F to the counter affidavit filed in O.J.C. No.6689/99, the opposite parties have elaborately given the job responsibilities of C.D.P.Os., Supervisors and Anganwadi Workers in the I.C.D.S. Project. The same indicates, inter alia, that the C.D.P.Os. will act as Co-ordinators of the I.C.D.S. at the block level and guide the Anganwadi Workers in carrying out the sample census of the Project villages so as to enumerate and identify the children, pregnant women and nursing mothers. On the basis of the census report of the Anganwadi Workers supplemented by his own collection of information, the C.D.P.O. will prepare a project report containing all necessary and relevant information. Basing upon said Annexure-F., Mr. Rath argued that the duties and responsibilities of the Statistical Assistants are also identical to that of C.D.P.Os. and he relied upon an affidavit of the opposite parties dated 2.2.2005 giving a comparative job chart of both, i.e. the C.D.P.Os. and Statistical Assistants, and the duties and responsibilities of the posts of C.D.P.O., according to him, can be very well taken up by the Statistical Assistants, as the same are not totally female oriented.
The work of the Statistical Assistants as per the affidavit is to assist the C.D.P.Os. in reviewing different I.C.D.S. Programmes, evaluate I.C.D.S. Programmes, prepare all reports/returns, maintain all the Registers/Records, remain as custodian of the food stuff, monitor diversion of food stuff, payment of transportation charges, attending monthly meeting and other meetings, assist the C.D.P.Os. in conducting all the meetings at project level, etc. Mr. Rath further argued that though the Government of Orissa used the term 'She' in respect of Anganwadi Workers and Supervisors, it has used the term 'He' for CDPO in the duty chart as indicated in Annexure-F. Annexures-G, H, and I are the documents of different States including Andhra Pradesh, which show that several male-Officers have been appointed along with female Officers as C.D.P.Os.
14. The sum and substance of argument of Mr. R.K. Rath, learned Counsel for the opposite parties, is that the duties of the CDPOs are not to be confused with the duties of Anganwadi Workers or Supervisors. While the Anganwadi Workers and Supervisors have to deal with the women community (pregnant women and lactated mothers), no such duty has been assigned to the C.D.P.Os. So the Statistical Assistants, who are part of the ICDS, are not be lost sight of and the Tribunal relying upon different materials, mainly Annexure-F, found that the duties and responsibilities of C.D.P.Os. can be performed by both men and women, for which the order of the Tribunal is valid.
He further tried to make out a case that in medical service today most of the doctors appointed in Gynaecology Department are male members and there is no reservation only for women and that too, according to him, there cannot be 100% reservation in any service as has been done in the present case and the reservation of any kind must be up to or about 50%. In order to fortify his argument that there cannot be any reservation merely on the ground of sex, Mr. Rath referred to the decision of the apex Court in C.B. Muthamma (supra). Apart from the said decision, he drew our attention to the decision in Air India v. Nergesh Meerza, . Mr. R.K. Rath also brought to our attention the decision in P.B. Vijaykumar (supra). Relying upon the decision in State of Tripura v. K. K. Roy AIR 2004 S.C. 1249, he submitted that the State is constitutionally obliged to create promotional avenues and cannot avoid it merely because an employee has accepted the terms and conditions of offer of appointment knowing fully well that there was no promotional avenue. Taking all these decisions into consideration, he further submitted that the order of the Tribunal holding the Rules in question to be violative of Articles 15(1) and 16(2) of the Constitution of India is legal and correct.
15. The questions that fall for consideration before this Court are: (1) whether the opposite parties, who were the applicants before the Tribunal, had any locus standi or any cause of action to approach the Tribunal; and (2) whether the Tribunal is correct in holding that the provisions of Rules 6(1)(b) and 7(2)(a) of the 1989 Rules for appointment/promotion of only women to the posts of Supervisor, the feeder cadre for promotion to the posts of C.D.P.O., were discriminatory against men and whether the Tribunal is correct in striking down the aforesaid provisions being unconstitutional.
16. Before delving into the rival contentions of the parties and going into the merit of the case, it is profitable to quote below Rule 6(1)(b) and 7(2)(a) of the 1989 Rules struck down by the Tribunal.
6. (1) The posts in the Junior Grade of the Service shall be filled up in the following manner, namely;
(a) ....
(b) By promotion from amongst the Lady Village Level Workers, in the district in accordance with Rule 8 to the extent of thirty per cent of the total number of posts in the cadre.
7(2)- In order to be eligible for consideration for direct recruitment, a candidate must satisfy the following conditions, namely;
(a) The candidate must be a woman of not less than twenty-one years and not more than twenty-eight years of age on the first day of April of the recruitment year.
Provided that....
17. Let us now take up the question as to whether the Tribunal is correct in striking down the aforesaid provisions of Rules 6(1)(b) and 7(2)(a) of the 1989 Rules being discriminatory.
The word 'Discrimination' means difference in treatment and in the case of Kathi Raning Rawat v. State of Saurashtra , it was held as follows:
7. ...The expression "discriminate against' is used in Article 15(1) and Article 16(2), and it means, according to the Oxford Dictionary, "to make an adverse distinction with regard to; to distinguish unfavourably from others'. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisions to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies. XXX.
Article 15 of the Constitution prohibits discrimination on specific grounds, i.e., religion, race, caste, sex or place of birth. This Article governs all citizens in all matters including right to employment or office under the State. Article 16 guarantees equality of opportunity for all citizens relating to employment under the State. Article 16(2) prohibits discrimination on certain grounds relating to employment. Article 15 is more general than Article 16 Article 16 refers to the matter relating to employment or appointment to any office under the State. The Constitution as per Article 15(3) empowers the State to make special provision in the case of women and children and says that "nothing in this Article shall prevent the State from making any special provision for women and children".
18. Now, the question arises; whether the power conferred under Article 15(3) of the Constitution can in any manner be whittled down by Article 16. The answer is given in the decision of the apex Court in the case of Vijaya Kumar (supra). In the words of Justice Mrs. Sujata V. Manohar:
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 cut 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.
19. The decision, as relied upon by Mr. R.K. Rath, learned Counsel for the opposite parties, in the case of Air India (supra) more supports the case of the petitioners than the opposite parties. The relevant portions of the judgment are quoted hereunder:
37. Thus from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge:
(1) In considering the fundamental right of equality of opportunity a technical, pendantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts.
Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted.
(2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Article 14 will be completely out of the way.
XXX XXX XXX In paragraph-66, it was held thus:
Even otherwise, what Articles 15(1) and 16(2) prohibit is the discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations. On this point, the matter is no longer res Integra but is covered by several authorities of this Court.
20. From the aforesaid judicial pronouncements, it is clear that Article 15(3) empowers the State to make any special provision for women and children notwithstanding the prohibition of discrimination against any citizen on the ground of sex. It includes every sphere of State activity and not confined to reservation only, which has been taken care of under Article 16. But the power conferred by Article 15(3) is wide enough to cover every range of State activity including employment under the State. In the present case, I.C.D.S. Scheme is a special scheme, which addresses to the welfare of the women and children. This end is sought to be achieved by various means including creation of an all women task force under Rule 6(1)(b) and 7(2)(a) of 1989 Rules. The means of having an all women cadre in the hierarchy under the I.C.D.S. is only an incidental fall-out for achieving the end of the welfare of the target group, i.e., women and children. In other words, the decision of the State to have an all women cadre is with the object of having a close nexus with the object, i.e, the welfare of women and children. Though Article 15(3) takes care of both the means as well as the end, the end is the objective and the means is the instrument to achieve it. While creating the all women cadre, it is the interest of the target group of I.C.D.S., who have been kept in mind. Creation of such cadre was more in the nature of an affirmative action than that of reservation. The scope of special provision under Article 15(3) is wider than the provision of reservation under Article 16 covering within its several Programmes in addition to the reservation.
21. The apex Court in case of Vijaya Lakshmi (supra) while negativing the view taken by the Punjab and Haryana High Court, held that the institutions which are headed by Lady Superintendents are exclusively for women, and it is for the Government to decide as a matter of policy whether or not such institutions should be headed by only lady officers. Merely because at some stage there is a common cadre in which the officers of both the sexes are appointed, that does not mean that all posts in the higher cadre must also be filled in by persons belonging to both the sexes. Having regard to the nature of duties to be performed, it is open to the State Government to decide that the institutions which are exclusively meant for women should be headed by only women or lady officers.
The apex Court approved its earlier decision in the case of Union of India v. K.P. Prabhakaran , wherein it was held that appointment of only women to man the posts of Inquiry-cum-Reservation Clerks in four metropolitan cities of Madras, Bombay, Calcutta and Delhi was not violative of Article 14 or 16 of the Constitution of India.
The apex Court also approved its earlier decision in the case Toguru Sudhakar Reddy v. Government of Andhra Pradesh reported in 1993 Supp (4) SCC 439, wherein it was held that reservation beyond 50% for the women was permissible under Article 15(3) of the Constitution of India. Similarly, in case of Rajesh Kumar Gupta v. State of U.P. 2005 AIR SCW 2731, the apex Court agreeing with the views of the Division Bench of Allahabad High Court observed as follows:
14. The Division Bench took the view that Articles 15(3) of the Constitution enables the State Government to make special provision for women and children notwithstanding the prohibition contained in Article 15(1). Particularly viewed in the Background of the fact that a large number of young girls below the age of 10 years were taught in the primary school and recognizing that it would be preferable that such young girls are taught by women, the reservation of 50% of the posts in favour of the female candidates was held to be justified. The classification made was justified and cannot be styled as arbitrary or liable to be hit by the Article 14.
22. Thus in the case at hand, the State's objective for taking care of pre and post-natal health among the women can be achieved more effectively through females being appointed in the post of C.D.P.O. The job chart filed by the contesting opposite parties even though indicates no material difference, is of no consequence. The name of the post itself being Child Development Project Officer, it relates to children and adolescent girls as rightly contended by the learned Advocate General.
The apprehension of purported stagnation cannot be a ground to declare a piece of legislation ultra vires if it does not hit the provision of the Constitution of India.
23. Considering the rival contentions of the learned Counsel for the parties and looking into the judicial pronouncements and in view of the discussions made in the foregoing paragraphs, we are of the considered opinion that the order of the Tribunal striking down Rules 6(1)(b) and 7(2)(a) is not legally tenable as the said Rules are not hit by the provisions of the Constitution of India and are not discriminatory.
24. After dealing with question No.2 first, it would be appropriate to deal with the question of locus standi of the opposite parties/applicants to file the Original Applications before the Orissa Administrative Tribunal.
At the outset it is profitable to quote the statutory provisions of the Act, i.e., the Administrative Tribunals Act, 1985.
The Act was enacted with the objective:
...to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation or Society owned or controlled by the Government in pursuance of Article 323-A of the Constitution and for matters connected therewith or incidental thereto.
Section 3(q) defines "Service matters" as follows:
...in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or as the case may be, of any Corporation or society owned or controlled by the Government, as respects-
(i) remuneration including allowances, pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement an; superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever, Section 15 of the Act provides as follows:
15. Jurisdiction, powers and authority of State Administrative Tribunals- (1) Save as otherwise expressly provided in this Act, the Adminrstrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;
(b) all service matters concerning a person not being a person referred to in Clause (c) of this Sub-section or a member, person or civilian referred to in Clause (b) of Sub-section (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any Corporation or society owned or controlled by the State Government;
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in Clause (b), being a person whose services have been placed by any such local or other authority or Corporation or society or other body as is controlled or owned by the State Government at the disposal of the State Government for such appointment.
(2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of Sub-section (3) to local or other authorities and Corporations or societies controlled or owned by the State Government:
Provided the if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this Sub-section in respect of different classes of, or different categories under any class of, local or other authorities or Corporations or societies from which the provisions of this Sub-section apply to any local or other authority or corporation or society all the jurisdiction, powers and authority exercisable immediately before that date by all Courts except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation or society; and
(b) all service matters concerning a person other than a person referred to in Clause (b) of Sub-section (1) of this Section or a member, person or civilian referred to in Clause (b) of Sub-section (1) of Section 14 appointed to any service or post in connection with the affairs of such local or other authority or corporation or society and pertaining to the service of such person in connection with such affairs.
(4) For the removal of doubts, it is hereby declared that the jurisdiction, owners and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.
Section 19(1) of the Act is as follows:
19. Applications to Tribunals-(1) Subject to the other provisions of this Act a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.
Explanation- For the purpose of this Sub-section, 'order' means an order made-
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation or society owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation or society referred to in Clause (a).
(2) Every application under Sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government.
(3) On receipt of an application under Sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.
(4) Where an application has been admitted by a Tribunal under Sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.
(Emphasis supplied) Section 20 of the Act is as follows:
20. Applications not to be admitted unless other remedies exhausted.- (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purpose of Sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purpose of Sub-sections (1) and (2), and remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
25. A conjoint reading of the definition of "Service matters" in Section 3(q) and the provisions in Section 19(1) of the Act reveals that only a person aggrieved by any order can make an application to the Tribunal for redressal of his grievance relating to the conditions of his service as enumerated under Clauses (i) to (v) of Sub-section (q) of Section 3 of the Act. The word 'order' has been defined in the Explanation to Sub-section (1) of Section 19 to mean any order made by the authorities, as indicated in the Explanation. So, only a person aggrieved by any order passed by the Govt. or authorities as detailed in the said Explanation can file an application before the Tribunal under Section 19(1) of the Act. Section 20 of the Act provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules.
Let us now examine what is the meaning of the expression "person aggrieved". This question has not come for interpretation for the first time. Various Courts at different points of time had the occasion to interpret the expression "person aggrieved". It was stated in Ex parte Sidebotham, In re, Sidebotham, (1880) 14 Chancery Division 458 at P.465, that" 'a person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." In Santosh Kumar Agarwalla v. State of Orissa , it was held that the words "Person aggrieved" do include a person who has genuine grievance because an order has been made which prejudicially affects his interest. The words "a person aggrieved" were defined in Ex parte Official Receiver, In re Reed, Rowen and Co., (1887) 19 QBB 174 - "a 'person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully reused him something which he had a right to defend."
26. On a plain reading of the statutory provisions and the judicial exposition of words, as indicated above, the irresistible conclusion is that only a person aggrieved by any order can approach the Tribunal under Section 19(1) of the Act after exhausting all remedies under the relevant service rules as to redressal of his grievance and the State Tribunal shall exercise its jurisdiction under Section 15 of the said Act.
Next we have to see whether the opposite parties/applicants were aggrieved by any order and had filed the Original Applications after exhausting the remedies available under the relevant service rules. Column-3 of the Original Application required the applicant to furnish "Particulars of the order against which the application is made". On perusal of the application in the record of the Tribunal, we find that sub-columns (i) to (iii) of the said column were left blank and against sub-column (iv) "Subject in brief", it was stated thus:
That the present application involves declaratory relief to the effect that the applicants and other similarly situated officers in the same Department are entitled to get avenues of promotion, as they are suffering stagnation and accordingly, the present application being one for declaration and direction, particular of any order cannot be given."
(Emphasis supplied) This being the factual position, there was in fact no order passed by any authority against which the opposite parties/applicants could have filed the O.As. and mere apprehension of purported stagnation, in the absence of an order actually affecting the applicants adversely, did not entitle them to seek the remedy provided in Section 19(1) of the Act as persons aggrieved. The opposite parties/applicants had, therefore, no locus standi to approach the Tribunal.
Moreover, the action of the State Government in consciously creating all women cadre by framing the impugned Rules, as we have already held, is in pursuance of the avowed policy for protection and welfare of the women and children. Law is well settled in this regard in the case of State of Orissa v. Gopinath Dash 2005 AIR SCW 6536, wherein it was held thus:
7. The policy-decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy-decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.
27. For the reasons indicated above, we quash the impugned order dated 14.10.1989 passed by the Orissa Administrative Tribunal in O.A. Nos. 2241/96 and 2814/96.
O.J.C. Nos. 6689 & 6713 of 1999 are thus allowed and in view of such, W.P.(C) Nos. 11562 & 11563 of 2003 are disposed of.
N. Prusty, J.
I agree, with my learned brother Justice Das, in this matter so far as it relates to quashing of the order-dated 14.10.1989 passed by the Orissa Administrative Tribunal in O.A. No.2241 and 2814 of 1996.
28. However, it would not be proper on my part, if I will not express my opinion with regard to locus standi of the applicants in the O.A. for approaching the Tribunal for redressal of their grievances as well as the practical difficulties, which may occur in execution of the programme of the I.C.D.S. Projects throughout the State including K.B.K. districts and hilly areas of Mayurbhanj, Keonjhar and Sundargarh districts etc., if there shall be an all women cadre of C.D.P.O.
29. Statistical Assistants who are working in the same Department, were having one promotional avenue- i.e. C.D.P.O. An employee once appointed has an ambition to be considered for promotion, which is an incidence of service and as such it cannot be said that it is not a condition of service. Consideration for promotion is a right of an employee, but the promotion may not be a matter of right. When the valuable right of an employee is taken away on the plea of a policy decision, definitely such an employee has a right to highlight his grievance before an appropriate Court of law, which may be accepted or may not be accepted. But no Court can refuse to entertain the same taking shelter of locus standi, since the petitioners were persons aggrieved by the Government decision and comes within the purview of Section 19(1) of the Administrative Tribunal Act, may be it is a policy decision, where the Courts shall seldom interfere in such matters with certain conditions. As such it can never be said that the petitioners/applicants in the O.As had no cause of action nor it can be said that they did not have the locus standi to approach the Tribunal for redressal of their grievances in those Original Applications.
30. Striking down the provision of Rules 6(1)(b) and 7(2)(a) of 1989 Rules as unconstitutional, may not be correct as the same may not be termed as violative of Articles 14 and 16 of the Constitution, keeping in view the decisions of the Apex Court, but it can never be said that the petitioners/applicants in the O.A. had no cause of action to approach the Court for redressal of their grievances and they did not have any locus standi for filing the Original Applications.
31. The decision to have an all women cadre of C.D.P.O. may not be termed as a hostile discrimination since it is a policy decision of the Government. It may be required for the C.D.P.Os. to perform certain functions which relates to women, but it can never be said that only women incumbents can be appointed to the post to handle the intricate problems of women and children. Male persons also, if employed as C.D.P.O., shall be able to handle all those affairs more effectively than their female counterparts as, is being done by Doctors/ specialized doctors in the field, more particularly in the Department of obstetric and gynaecology. Reasonable discrimination between male and female, for an object sought to be achieved, is permissible under law keeping in view the duties and responsibilities of the post. But such discrimination/classification should be on the basis of the nature of work and field of operation, taking into consideration as to whether the person concerned can discharge his/her duties properly in their concerned areas of operation.
32. In Orissa, particularly in the tribal districts like Kalahandi, Koraput, Bolangir, Ganjam, Keonjhar, Mayurbhanj, Sundargarh etc. most of the areas are hilly areas with only hill tracks and full of forests, where also women and children live without getting any attention and they need the help/services of the C.D.P.Os. more, particularly for their upliftment and better living. It may not be possible at all for woman C.D.P.Os. to go to those remote areas, where their services are much more required than that of the coastal/plain areas and that shall be practicable only on the part of the male officers/C.D.P.Os.
33. If it is so required, an all women cadre can be created, for a particular post, but simultaneously the working condition/atmosphere has also to be kept in mind whenever such a cadre is being created. Only making policy decision, which may not be workable, shall not be proper for functioning of a Project like I.C.D.S., where there shall be necessity of male workers/officers/C.D.P.Os., otherwise the very purpose of I.C.D.S. Projects shall only be a failure as it has failed in the case of health and education. In remote areas of backward districts, most of the time the doctors and teachers do not go to those places and if at all they go there, they remain absent with some plea or other and the public of the area in general suffer for that.
34. Definitely it may be good in having an objective of making an all female cadre for better management of posts that involve inter action with Anganwadi workers and the clients, the pregnant and lactated mothers and adolescent girls and that may not be termed as hostile discrimination i.e. to have an all women cadres of C.D.P.Os. But it has to be looked into by the Government simultaneously as to whether it can be made functional, keeping in view the condition/atmosphere and place of work and as to whether it would be practicable for them to handle all I.C.D.S. projects located in all the districts including the tribal districts/hilly areas of the State by a cadre of all women appointed/promoted as C.D.P.Os.
35. The nature/requirement of the job and comparative job chart also clearly indicate that both male and female officers can handle the I.C.D.S. Projects more effectively, if they are appointed/ promoted as C.D.P.Os.
36. Keeping in view all the facts and circumstances of the case as narrated above and that the I.C.D.S. Projects shall have to function throughout the State including the Tribal Areas/K.B.K. Districts and other similarly situated districts, it would be appropriate for the State Government to re-think/re-consider the matter and if it is so required by amending the rules in this regard, they may promote/ recruit women and male members in the cadre, fixing certain percentage for promotion of both proportionally, which shall have to be determined on the basis of the job requirement. Of course it is for the Government to take their Policy Decision in the mater finally, even though we have not interfered with such policy decision of the Government.