IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 3051 of 2008 Date of decision: 27.10.2010 _________________________________________________________________ Kanta Devi. .....Petitioner. Versus The State of H.P and others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. _________________________________________________________________ For the petitioner: Mr. Romesh Verma, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General, for respondents No. 1 and 2. Ms. Slochna Kaundal, Advocate, for respondent No. 3. V.K. Sharma, J (Oral). In terms of orders dated 01.10.2010 and 19.10.2010, passed by this Court, the learned learned Deputy Advocate General, appearing on behalf of the official respondents No. 1 & 2 has filed a communication dated 11th September, 2010 addressed to the Advocate General, Himachal Pradesh, Shimla by the Director Ayurveda, Himachal Pradesh, which is to the following effect: “There will be following difficulty in accommodating Smt. Kanta Devi, petitioner, 2. The interview for filling up 6 vacant posts of Sweeper for Distt. Shimla was held on 16th December, 1995 against which 40 candidates were interviewed. 6 candidates excluding the petitioner have secured marks equal to the 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... petitioner. 3 candidates out of these 6 are elder to the petitioner in age. Two candidates have secured more marks than the petitioner. In case the petitioner is to be accommodated 5 candidates have to be accommodated first. 3. There is general ban in making recruitment of any kind.” 2. The petition has been field for grant of the following substantive reliefs vide para 7(i) and (ii) of the petition: “7(i) That the total record of the interview,k as held by the respondents No. 1 & 2, may be called for, for the perusal and scrutiny by this Hon'ble Court. (ii) That the appointment of respondent No. 3 as a sweeper may be ordered to be set aside and quashed and necessary orders may be passed for appointment of applicant as a sweeper at Chopal.” 3. In the reply, the following stand has been taken by the official respondents No. 1 and 2 vide para 6(iv): “6(iv) In reply to this para, it is submitted that all other candidates appeared for the said interview had also furnished all the required certificates. Merely production of certificates does not constitute a guaranty for the selection of past. However, the marks for non-employment etc. have been considered by the selection committee but there are certain other factors which the selection committee had to consider for the appointment. In fact, these posts were meant for the hospitals, and in hospitals the sweeper has to work round the clock. They are usually put on multifarious night duty to perform various duties for smooth running of hospital which normally a female can not afford to do, so the respondent department can not take such work from the female sweeper. Moreover the applicant belongs to Tehsil Chopal and being a widow and having three children, the posting would have not suited to her. Hence, the male candidates have been preferred by the selection committee. The respondent No. 3 has been put on night duty and is also performing the duty of chowkidar besides his normal duties ...3... which the applicant can not effectively per from. Hence, the contention of the applicant is wrong.” 4. On a plain reading of the averments set up on behalf of the official respondents No. 1 and 2 in the aforesaid para of the reply, it is manifest that the petitioner was denied appointment as sweeper solely on the ground that she is a widow having three children besides that she belongs to Tehsil Chopal and a posting in Shimla may not suit her. Thus, it is apparent that the petitioner, who is a woman has been discriminated against solely on that ground which amounts to gender discrimination prohibited under the Constitution. Instead preference has been given to a male candidate, i.e., private respondent No. 3, in whose case one of the pre- conditions for appointment as sweeper viz. that only a person from whose family no member was in employment in government or semi-government sector, was even violated, as his mother was already serving as a sweeper in Public Works Department. 5. The only ground pressed into service as an impediment in not offering appointment to the petitioner is that five other candidates, who were either elder in age to her or had scored more marks in the interview, may also have to be accommodated first, cannot be made a ground to defeat the right of the petitioner simply for the reason that none of them has come forward to vindicate any such right even after lapse of the intervening period of 15 years when the selection process for the post was initiated and completed. 6. In view of the above, there would be a direction to respondents No. 1 & 2 to offer appointment to the petitioner as sweeper in accordance with the existing recruitment policy, i.e., may ...4... be on contract basis within a period of three months. It is made clear that the petitioner shall not be entitled for any other consequential benefits in terms of this judgment. Needless to say that operation of this judgment would not be detrimental to private respondent No. 3, in any manner, whatsoever. 7. The petition stands disposed of. (V.K. Sharma) Judge 27th October, 2010 (virender)