IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WA.No. 1041 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12605/2004 Dated 21/12/2006 .................... APPELLANTS/RESPONDENTS 1 & 2 -------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATHANAMTHITTA. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC RESPONDENTS/PETITIONER & 3RD RESPONDENT ------------------------ 1. MANJUSHA.V., D/O.N.SUBRAMONIAN, MANOJ BHAVAN, ELANGAMANGALAM, ENATHU P.O., PATHANAMTHITTA. 2. R.MANOJ KUMAR, S/O.RAJAPPAN, K.M.G.VILASOM, CHOORAKODE, ADOOR, PATHANAMTHITTA DISTRICT. ADDL.R3: THE STATE OF KERALA REP.BY THE CHIEF SECRETARY, GOVT.OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. (IMPLEADED AS ADDL.R3 AS PER ORDER DT.26.2.2008 IN I.A.No.190/2008) ADV. SRI.K.B.PRADEEP FOR R1 SRI.S.SANAL KUMAR FOR R2 SMT.BHAVANA VELAYUDHAN GOVERNMENT PLEADER SMT.R.BINDU FOR ADDL.R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, ALONG WITH WA NO. 316 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. -------------------------------- W.A.Nos. 1041 & 316 OF 2007 --------------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.A.No. 1041/2007 The point that arises for decision in this appeal is whether a woman can be denied appointment as Night Watchman, for the reason that she is a woman. 2. The brief facts of the case are the following: The 1st respondent herein was the writ petitioner. She was included in the rank list published by the Public Service Commission (for short 'PSC'), for appointment to the post of Last Grade Servants in various departments in Pathanamthitta District. The rank list was published on 29.4.1999 and the validity of the list expired on 28.10.2003. She was Rank No.887 in the 'OBC' category. After the expiry of the rank list, she came to know that the 3rd respondent, who was Rank No.904 and W.A.Nos.1041 & 316/2007 2 belonging to 'OBC', was advised and appointed to the post of Night Watchman in the Regional Artificial Insemination Project Centre, Pathanamthitta. On coming to know of this, immediately, the 1st respondent filed the Writ Petition praying to cancel the advice of the 3rd respondent and to appoint her in his place. She also prayed for quashing the order appointing the 3rd respondent. According to her, she was discriminated only on the ground that she was a woman. The conduct of the respondents 1 and 2, therefore, offends her fundamental rights under Articles 14, 19 and 21 of the Constitution of India, it is submitted. 3. The Kerala Public Service Commission has filed a counter affidavit supporting the impugned order. They submitted that, as per the relevant Special Rules, women are ineligible to be considered for appointment to the post of Night Watchman. The learned Single Judge, after hearing both sides, upheld the contentions of the petitioner and allowed the Writ Petition relying on the decision of the Division Bench of this Court in Rajamma v. State of Kerala [1983 KLT 457] and of the Single Bench in Sheeba Kuttiyattan v. State of Kerala W.A.Nos.1041 & 316/2007 3 [2006(3)KLT 69]. The learned Single Judge ordered the P.S.C. to cancel the advice of the 3rd respondent and to advise the 1st respondent /writ petitioner in his place. Feeling aggrieved by the said direction, the P.S.C. has chosen to file this appeal. 4. The learned Standing Counsel for the PSC, Sri.Alexander Thomas, submitted that in Rajamma's case (supra), the Division Bench granted liberty to the Government to have a fresh rational approach to the question of employment of women in certain posts and after a detailed study, the Government have issued an order in 1986 restricting the number of categories to 9 in which lady candidates could not be appointed. The post of Night Watchman was one of them. The notification published by the PSC contained such a restriction. With open eyes, she applied for the job and when she is denied advice for the post of Night Watchman, she cannot turn around and complain about it. In the Writ Petition, the order of the Government issued in 1986, which includes the post of Night Watchman among the posts in which women cannot be appointed, was not challenged. The learned counsel also relied W.A.Nos.1041 & 316/2007 4 on the decision of the Division Bench of this Court in W.A.No.1173/2006, wherein the exclusion of a woman candidate to the post of Night Watchman was upheld. Reliance was also placed on the decision of the Division Bench of this Court in K.S.E.B. v. Siniya Mol [2008(1) KLT 30], wherein it was held that exclusion of a woman candidate for appointment to the post of Mazdoor in the Kerala State Electricity Board is legal and valid. 5. The Government also supported the stand of the P.S.C. It filed a counter affidavit in this Writ Appeal, in which it is submitted that, the Special Rules for Last Grade Service was amended as per S.R.O. No.1608/86 published in Kerala Gazette No.42 dated 20.10.1986. The said amendment was introduced after a detailed study regarding the posts unsuitable for women as permitted by the Division Bench in Rajamma's case. After reviewing the list of posts, to which women could not be appointed, it was decided that posts requiring performance of duties of remaining alone during night time or without female companion, posts involving higher risk and daring or great W.A.Nos.1041 & 316/2007 5 physical strength and posts patently unsuitable for woman should be excluded. Based on the study conducted, the Special Rules were amended as per Notification published in Gazette dated 20.10.1986. Having regard to the very nature of the job requirement of a Night Watchman, it is manifest that a woman candidate cannot be appointed, it is submitted. 6. The learned counsel for the 1st respondent/writ petitioner supported the judgment of the learned Single Judge. The learned counsel took us through the decision in Rajamma's case (supra) and special reference was made to Paragraphs 34 and 35 thereof. The learned counsel submitted that the discrimination in the matter of appointment to the post of Night Watchman offends her fundamental rights under Article 16(2) of the Constitution of India which prohibits discrimination, interalia, only on the ground of sex. The present discrimination is founded only on the ground that the writ petitioner is a woman. The learned counsel distinguished the decision of the Division Bench in W.A.No.1173/2006 pointing out that, in that case there was no challenge to the amendment introduced in 1986 to the Special W.A.Nos.1041 & 316/2007 6 Rules. In this case, though at the appellate stage, the writ petition has been amended incorporating the challenge against the said amendment also. The learned counsel further pointed out that the decision of the Division Bench in K.S.E.B. v. Siniya Mol (supra) has been rendered on the special facts of the case that a woman cannot, normally, discharge the arduous function of an Electricity Mazdoor. So, the learned counsel prayed for dismissal of the appeal. We also had the benefit of hearing Sri.Sanal Kumar, learned counsel for the 2nd appellant, who appeared in the connected Writ Appeal No. 316/2007, which was an appeal filed by the 2nd respondent herein. 7. We considered the rival submissions made at the Bar and went through the decisions cited. The Note under Rule 5(b) of the Special Rules for the Kerala Last Grade Service including the table thereunder, reads as follows: Note:- In view of the arduous and special nature of the duties and responsibilities attached to the posts specified in the Table below, only male candidates shall be eligible for appointment under this rule to the said W.A.Nos.1041 & 316/2007 7 posts. TABLE 1. Watchman of all categories, Watcher and Chowkidar 2. Cleaner-cum-Conductor 3. Cleaner (Boat Cleaner, Tractor, Cleaner, Van Cleaner, Ambulance Cleaner, Lorry Cleaner) 4. Fisherman 5. Fisherman-cum-Watchman 6. Boatman 7. Lascar 8. Bull Attendant 9. Bull Keeper Item No.1 in the table includes watchman of all categories. When the PSC issued notification, it was specifically stated that, the vacancies in the post included in the table will not be filled up by advising women candidates. The learned Standing Counsel for the P.S.C. raised a contention that the 1st respondent/writ petitioner should be taken as having accepted that condition, while she submitted her application. But, we think that the 1st respondent cannot be non-suited on the said W.A.Nos.1041 & 316/2007 8 technical ground. There can be no waiver of the writ petitioner's fundamental rights. Only when the relevant Rule actually hurts her, she need challenge it. It so happened that before the expiry of the list, when her turn arose, the vacancy reported was of Night Watchman. Only at that stage it can be said that, she was aggrieved by the stipulation in the Rule. Then only, she gets the real cause of action to challenge the said Rule. Therefore, we are of the view that, the submission of application by her will not disable her from challenging the relevant clause in the Rule on the ground that it offends her fundamental rights under Article 16 of the Constitution of India. 8. The Division Bench of this Court in Rajamma's case held as follows: “34. Remembering what the practical consequence of the attitude of the Government has been, namely that for one reason or other not a single woman has been advised to any one of the 260 posts we find that this is a clear case of discrimination, a discrimination which falls not within Article 14 of the Constitution only, but also within the W.A.Nos.1041 & 316/2007 9 specific prohibition in Article 15(1) of the Constitution. The mandate to the State that it shall not discriminate against any citizen on grounds only of sex is one of the most important fundamental rules that calls for strict observance. In the framing of any statute or law or the making of subordinate legislation by a delegated legislative authority this is a fundamental rule which, under no circumstances, would bear violation. Unlike the freedoms in Article 19 of the Constitution there is no scope for restricting the absolute scope of the rights under Article 15(1) of the Constitution. There would be no scope whatever to justify differentiating between the male and female sexes in the matter of appointment. The right of women should not be denied on fanciful assumptions of what work the woman could do and could not do. Whether the work is of an arduous nature and therefore unsuitable for women must be decided from the point of view of how women feel about it and how they would assess it. If the work of say, a Duffadar, a Cleaner-cum- Conductor, Court Keeper, Chainman, Housekeeper or a Field Worker does not suit a woman or she would feel humiliated by such work it is for her to decide whether she should apply for the concerned job and not for the male dominated legislature or the male dominated bureaucratic machinery which may be functioning as a delegated legislative body to decide whether women should be permitted W.A.Nos.1041 & 316/2007 10 to do such work or not. Incidentally in the 29 categories of excluded posts mentioned in Ext.R1(b) letter of Government we find some such as that of Housekeeper which, we would have thought, is traditionally the preserve of women, but from these few posts too women seem to have been excluded. It is regrettable that decisions of material consequence said to be in the so called interests of women purporting to protect the position of women are generally taken not after any consultation with representative bodies of women, but unilaterally by the administrators, most of whom carry with them the hang over the past, the past of male domination in our social set up. 35. Judged in the background of our traditional attitudes and conventional sentiments it may perhaps appear that women, whose role has all along been understood to be domestic dominance cannot expose and adjust herself to some of the occupations which have been the sole preserve of men hitherto and that might perhaps explain the inaccessibility of several posts to women envisaged in the impugned Note to the rule. Just as the Civil Rights Movement of the 1950's and 1960's in the United States aroused a new national sensibility to sex discrimination, situations may arise in this country too compelling women to seek enforcement of what is due to them. Woman is no longer content merely to sit at W.A.Nos.1041 & 316/2007 11 home expecting the man to earn the bread for the family. Both are quite often equal partners in sharing the financial burden of running the home. This social change must necessarily have its impact upon traditional perspectives concerning women's role and that must call for change in our laws, particularly so in the light of the constitutional mandate of equality. Rules should not operate as a deterrent to such change, but promote it. A time must necessarily come when all posts excepting those which due to physical reasons a woman cannot take up must be available to them. The attempt should not be to perpetuate discrimination but to obliterate it. We are sorry to see that the list of excluded categories started with a small number, namely 12 but is growing rapidly in size as newer and newer categories of posts are added to the excluded categories in the Last Grade Service. “ But, in paragraph 36, after striking down the Note to Rule 5(b) it was observed as follows: “This does not preclude new but rational approach being made to the whole question by the Government.” W.A.Nos.1041 & 316/2007 12 9. Later, the Government examined the matter in detail and taking into account all relevant considerations, published the present table to the Note to Rule 5(b). The point to be considered is whether the inclusion of Night Watchman among the posts could again be condemned, relying on the principles laid down by the Division Bench in Rajamma's case (supra). In this context, it is apposite to consider the decisions relied on by the appellant. In W.A.No.1173/2006, the Division Bench held as follows: “When Government had, considering the dictum laid down in Rajamma's case (supra) remoulded the table attached to the Rule, on a rational approach made to the whole question regarding the posting of candidates to a few Last Grade Posts, which involves arduous nature of work, including Watchman, posting of a male candidate overlooking her rank, cannot be said to be discriminatory to offend Articles 14 and 15(1) of the Constitution of India.” Another Division Bench in K.S.E.B. v. Siniya Mol (supra), after noticing the decision in Rajamma's case and also taking into W.A.Nos.1041 & 316/2007 13 account the job requirements of a Mazdoor in the Electricity Board, held that the exclusion of women candidates for appointment to the post of Mazdoor is legal and valid. The explanatory Note to the Government Order, introducing the amendment to the Special Rules, reads as follows: “According to the note to Sub Rule (b) of Rule 5 of the Special Rules for the Kerala Last Grade Service, women candidates were barred from being appointed against 30 posts in the service in view of the arduous and special nature of the duties and responsibilities attached tot he posts. The Division Bench of the Kerala High Court by their judgment dated 29.3.1983 struck down as unconstitutional the note referred to above and alerted Government the need for a rational approach to the whole question by Government. Accordingly Government have carefully reviewed the list of posts mentioned in the table under the note to sub-Rule (b) of Rule 5 of the Special Rules. It was decided that the posts mentioned in the notification may be treated as unsuitable for women to hold as the posts require either (i) performance of duties remaining alone during night time or without female companion (ii) involve high risk and daring and /or great physical strength or (iii) the posts are patently unsuitable for women to W.A.Nos.1041 & 316/2007 14 hold. The Special Rules for the Kerala Last Grade Service have to be amended suitably to implement the above decision. This notification is intended to achieve the above object.” 10. Posts with duties involving remaining alone during night time or without woman companion have been excluded as per the amendment. The post of Night Watchman will come under the said category. The Rule can be challenged if it offends Article 16(2) of the Constitution of the India, as alleged by the writ petitioner. But, we feel that the discrimination cannot be said to be solely based on her sex. The nature of duties attached to the post cannot be efficiently discharged by a woman candidate. We are not oblivious of the fact that women have functioned as Prime Ministers, Astronauts etc. But, the hard fact remains that by the very nature of duties attached to certain posts, they are unsuitable for women candidates. We are of the view that the post of Night Watchman is one such post and therefore, the denial of appointment to a woman candidate to that post cannot be described as a discrimination solely based on sex, as contended by the 1st respondent/writ petitioner. So, we W.A.Nos.1041 & 316/2007 15 are not inclined to accept the said challenge against the Rule. We feel that the principles laid down by this Court in K.S.E.B. v. Siniya Mol (supra) will more appropriately apply to the facts of this case. So, the overlooking of the appellant's claim in the matter of appointment to the post of Night Watchman and the advice of the 2nd respondent, cannot be said to be illegal or unconstitutional. In the result, the Writ Appeal is allowed, the judgment under appeal is reversed and the Writ Petition is dismissed. W.A.No.316/2007 In view of the judgment in W.A.No.1041/2007, this appeal is also allowed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps