Vs. Punjab University & Ors  Insc 466 (23 September 2003)
Shah & Dr. Ar. Lakshmanan. Shah, J.
given to a woman for being appointed as a Principal of the Government College for Girls is held to be violative of Articles 14, 15 and 16
of the Constitution of India. On the face of it, it appears that such
reservation in favour of a Woman for being appointed as Principal of exclusive Girls College cannot be held to be violative of right to equality.
this question is required to be decided in view of the judgment rendered by the
High Court of Punjab and Haryana in Writ Petition No.11694 of 1994 holding that
Rules providing reservation / preference in favour of a woman is violative of
Articles 15 and 16 of the Constitution. That judgment is challenged by filing
this purpose, the High Court interpreted Rules 5, 8 and 10 of the Punjab
University Calendar Volume III, which are as under: "Rule 5. The
Principal of a women's college shall be lady who shall possess at least
Master's Degree in 1st or 2nd Class or an equivalent degree with experience of
teaching in a college. This rule shall not apply to Women's colleges whose men
or women Principals have already been approved. Provided that on their retirement,
a qualified lady Principal shall be appointed.
8. As far as possible, ladies shall be appointed as teachers. In case a
qualified lady teacher in a particular subject is not available, the college
authorities may appoint a man teacher with the prior approval of the Vice
Chancellor. A man teacher so appointed shall not be confirmed by the management
in his post and he shall be replaced as soon as a suitable qualified lady
teacher is available.
10. The College shall have a hostel in or near the premises of the college. It
shall be under the charge of a whole time Woman Superintendent. There shall a
part time or whole time women Medical Officer." For deciding the issue, we
would refer to established propositions of law interpreting Articles 14 to 16,
Article 14 does not bar rational classification;
Reasonable discrimination between female and male for an object sought to be
achieved is permissible;
Question of unequal treatment does not arise if there are different sets of circumstances;
Equality of opportunity for unequals can only mean aggravation of inequality;
Equality of opportunity admits discrimination, with reasons and prohibits
discrimination without reason. Discrimination with reasons means rational
classification for differential treatment having nexus with constitutionally
permissible objects. It is now an accepted jurisprudence and practice that
the concept of equality before the law and the prohibition of certain kinds of
discrimination do not require identical treatment.
equality means the relative equality, namely the principle to treat equally
what are equal and unequally what are unequal. To treat unequals differently
according to their inequality is not only permitted but Delhi [(1992)1 SCC 559]}.
is a sound basis for classification.
Article 15 (3) categorically empowers the State to make special provision for
women and children;
Articles 14, 15 and 16 are to be read conjointly.
light of the aforesaid principles, on the concept of equality enshrined in the
Constitution, it can be stated that there could be classification between male
and female for certain posts. Such classification cannot be said to be
arbitrary or unjustified. If separate colleges or schools for girls are justifiable,
rules providing appointment of lady principal or teacher would also be
justified. The object sought to be achieved is a precautionary, preventive and
protective measure based on public morals and particularly in view of the young
age of the girl students to be taught. One may believe in absolute freedom, one
may not believe in such freedom but in such case when a policy decision is
taken by the State and rules are framed accordingly, it cannot be termed to be
arbitrary or unjustified. Hence, it would be difficult to hold that rules
empowering the authority to appoint only a lady Principal or a lady teacher or
a lady doctor or a woman Superintendent are violative of Articles 14 or 16 of
such reservation by the State is permissible in exercise of powers conferred
under Article 15(3), which provides thus: "15. Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.(3)
Nothing in this article shall prevent the State from making any special
provision for women and children."
DECISION OF RESERVATION FOR FEMALES AND RIGHT TO EQUALITY:
judgment per majority, the High Court after considering the duties which are
required to be performed by the Principal of School observed thus:
"Keeping in view the nature of the duties which are required to be
performed by the Principal in relation to the girl students it cannot be
deduced that such students could be subjected to any sort of exploitation.
dealing with the students, the Head of the Department has equal and similar
powers as are conferred upon the Principal, which if misused may result in
disastrous consequences." It is difficult to agree to the aforesaid
reasoning because as stated above, it is not for the Court to sit in appeal
against the policy decision taken by the State Government. It is for the State
to decide whether such rule is a preventive or precautionary measure so that
young fallible students may not be subjected to any sort of exploitation.
the policy decision of classification, we would straightway refer to the
decision rendered by this Court in State of Jammu & Kashmir v. Triloki Nath
Khosa [(1974) 1 SCC 19], wherein the Court [Chandrachud, J. (as he then was)]
(in para 20) succinctly held thus: "
The challenge, at best, reflects the
respondent's opinion on promotional opportunities in public services and one
may assume that if the roles were reversed, respondents would be interested in
implementing their point of view. But we cannot sit in appeal over the
legislative judgment with a view to finding out whether on a comparative
evaluation of rival theories touching the question of promotion, the theory
advocated by the respondents is not to be preferred. Classification is
primarily for the legislature or for the statutory authority charged with the
duty of framing the terms and conditions of service; and if, looked at from the
standpoint of the authority making it, the classification is found to rest on a
reasonable basis, it has to be upheld." It was also observed that
discrimination is the essence of classification and does violence to the
constitutional guarantee of equality only if it rests on an unreasonable basis
and it was for the respondents to establish that classification was
unreasonable and bears no rational nexus with its purported object. Further,
dealing with the right to equality, the Court (in paras 29 & 30) held thus:
"But the concept of equality has an inherent limitation arising from the
very nature of the constitutional guarantee. Equality is for equals. That is to
say that those who are similarly circumstanced are entitled to an equal
the constitutional code of equality and equal opportunity is a charter for
equals, equality of opportunity in matters of promotion means an equal
promotional opportunity for persons who fall, substantially, within the same
Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [(1981) 4 SCC 335], which
propounds the right of equality under Article 14 after considering various
decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air
India Employees' Service Regulations was challenged, which provides for
retiring age of an Air-Hostess. The Court (in paragraph 39) summarized thus:
"Thus, from a detailed analysis and close examination of the cases of this
Court starting from 1952 till today, the following propositions emerge:
considering the fundamental right of equality of opportunity a technical,
pedantic 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.
where the class or categories of service are essential different in purport and
spirit, Article 14 cannot be attracted.
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.
Article 14 certainly applies where equals are treated differently without any
Where equals and unequals are treated differently, Article 14 would have no
Even if there be one class of service having several categories with different
attributes and incidents, such a category becomes a separate class by itself
and no different or discrimination between such category and the general
members of the other class would amount to any discrimination or to denial of
equality of opportunity.
order to judge whether a separate category has been carved out of a class of
service, the following circumstances have generally to be examined:
nature, the mode and the manner of recruitment of a particular category from
the very start,
classifications of the particular category,
terms and conditions of service of the members of the category,
nature and character of the posts and promotional avenues,
special attributes that the particular category possess which are not be found
in other classes, and the like." Apart from various other decisions, the
Court referred to Western U.P. Electric Power & Supply Co. Ltd. v. State of
U.P. [(1969) 1 SCC 817] wherein this Court held thus: "Article 14 of the
Constitution ensures equality among equals : its aim is to protect persons
similarly placed against discrimination treatment. It does not however operate
against rational classification. A person setting up a grievance of denial of
equal treatment by law must establish that between persons similarly
circumstanced, some were treated to their prejudice and the differential
treatment had no reasonable relation to the object sought to be achieved by the
DEALING WITH SIMILAR SPECIAL PROVISIONS FOR WOMEN.
Under Section 497 of the Indian Penal Code, the offence of adultery can only be
committed by a man and wife/woman is not punishable as abettor. It was
contended that the said Section was violative of Articles 14 and 15 of the
Constitution. This Court negatived the said contention in Yusuf Abdul Aziz v.
The State of Bombay and Husseinbhoy Laljee [1954 SCR 930] and referred to
Article 15(3) which provides that nothing in the Article shall prevent the
State from making special provisions for women and held thus: "It was
argued that clause (3) should be confined to provisions which are beneficial to
women and cannot be used to give them a licence to commit and abet crimes. We are
unable to read any such restriction into the clause; nor are we able to agree
that a provision which prohibits punishment is tantamount to a licence to
commit the offence of which punishment has been prohibited.
14 is general and must be read with the other provisions, which set out the
ambit of fundamental rights. Sex is a sound classification and although there
can be no discrimination in general on that ground, the Constitution itself
provides for special provisions in the case of women and children. The two articles
read together validate the impugned clause in section 497 of the Indian Penal
b) In Dattatraya
Motiram More v. State of Bombay [AIR 1953 Bombay 311] provisions of the Bombay Municipal Boroughs Act, 1925 which
reserved seats for women in the election were challenged on the ground that
they offended Articles 14, 15 and 16 of the Constitution. That contention was negatived
by the Court and explaining the scope of Article 15, the Court [Chagla, C.J.]
observed that it must always be borne in mind that the discrimination which is
not permissible under Art. 15(1) is a discrimination which is only on one of
the grounds mentioned in Art. 15(1). If there is a discrimination in favour of
a particular sex, that discrimination would be permissible provided it is not
only on the ground of sex, or, in other words, the classification on the ground
of sex is permissible provided that classification is the result of other
considerations besides the fact that the persons belonging to that class are of
a particular sex. The Court further held thus: "
Article 15(3) is
obviously a proviso to Article 15(1) and proper effect must be given to the
proviso. It is true that in construing a proviso one must not nullify the
section itself. A proviso merely carves out something from the section itself,
but it does not and cannot destroy the whole section. The proper way to
construe Article 15(3), in our opinion, is that whereas under Article 15(1)
discrimination in favour of men only on the ground of sex is not permissible, by
reason of Article 15(3) discrimination in favour of women is permissible, and
when the State does discriminate in favour of women, it does not offend against
Article 15(1). Therefore, as a result of the joint operation of Art. 15(1) and
Art. 15(3) the State may discriminate in favour of women against men, but it
may not discriminate in favour of men against women
Dealing with the similar contentions, in B.R. Acharya & Another v. State of
Gujarat & Another [1988 Lab. I.C. 1465], the learned Single Judge of the
Gujarat High Court [R.C. Mankad, J.] observed thus: "It is clear from the
affidavit in reply filed on behalf of the respondent State that there are
certain posts which are meant only for lady officers. The institutions, where
destitute women, unmarried mothers, etc. are kept, are headed by lady
superintendent. Since the post is of lady superintendent, only lady officers
are considered eligible for such posts. The petitioners, however, contend that
they should not be discriminated only on the ground of sex. They should also be
considered eligible for promotion to such post. This claim made by the
petitioners cannot be accepted.
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, 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 Government cannot be compelled to appoint male
officers to head such institutions, if it does not consider it advisable to do
so. If a special provision is made for women, the petitioners cannot made
grievance that they have been discriminated against.
it may be pointed out that Article 15 of the Constitution of India prohibits
discrimination on grounds of religion, race, caste, sex or place of birth.
Clause (3) of the said Article however, provides "Nothing in this article
shall prevent the State from making any special provision for women and
children." I, therefore, do not find any substance in the petitioners'
contention that they should be considered to be eligible for promotion to the
post of Lady Superintendent."
Union of India v. K.P. Prabhakaran [(1997) 11 SCC 638], this Court held that
the circular providing appointment on the post of Inquiry-cum-Reservation
Clerks in four metropolitan cities of Madras, Bombay, Calcutta and Delhi to be
manned only by women was not violative of Articles 14 or 16 of the
Further, in Government of A.P. v. P.B. Vijaykumar [(1995) 4 SCC 520] the Court
dealt with the similar question regarding validity of Rule 22(a) of the Andhra
Pradesh State and Subordinate Service Rules providing reservation to the extent
of 30% for women in the matter of direct recruitment to the post governed by
the said Rules.
Andhra Pradesh High Court declared the said Rules to be invalid.
Court while reversing the decision of the High Court held thus: "
Article 15 deals with every kind of State action in relation to the citizen of
this country and every sphere of the activity of the State is controlled by
Article 15(1) and, therefore, there was no reason to exclude from the ambit of
Article 15(1) employment under the State.
same time Article 15(3) permits special provisions for women. Both Articles
15(1) and 15(3) go together.
This power conferred by Article 15(3) is wide enough to cover the entire range
of State activity including employment under the State.
Court further held thus: 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."
Further, this Court in Toguru Sudhakar Reddy and another v. Government of A.P.
and others [1993 Supp. (4) SCC 439] approved the reasoning of the High Court of
Andhra Pradesh wherein it was held that reservation beyond 50% for the women
was permissible under Article 15(3) of the Constitution and that ratio in M.R. Balaji.
v. State of Mysore [1963 Supp. (1) SCR 439] was only
confined to the reservation under Articles 15 (4) and 16(4) of the Constitution
view of the aforesaid established law interpreting Articles 14 to 16, Rules 5
and 8 of Punjab University Calendar Volume III providing for appointment of
lady principal in Women's College or a lady teacher therein cannot be held to
be violative either of Article 14 or Article 16 of the Constitution, because
classification is reasonable and it has a nexus with the object sought to be
achieved. In addition, the State Government is empowered to make such special
provisions under Article 15 (3) of the Constitution. This power is not
restricted in any manner by Article 16.
result, appeal is allowed. The impugned judgment rendered by the majority
striking down the Rules 5, 8 & 10 of the Punjab University Calendar
VolumeIII as violative of Articles 14 or 16 is set aside. Minority view
holding that the said Rules are not violative of Articles 14 or 16 is upheld.
There shall be no order as to costs.