mGH COCRT OF JUDICATURE ATBILASPIJR, CHHATTISGARH Division BsncK WRIT PETITION NQ2-42-4-QF PETITIONER: Bailadila Berozgar Sangh Through its : President Sheikh Aziz, S/o M.D. Gouse Pasha, Aged about 36 years, R/o Near Bus Stand, Kirandol, District Dantewada (South Bastar) (Chhattisgarh). Versus "L. RESPONDENTS: .^ ^y ./w ./^ y .^^y ^""" ^~ National Mineral Development C^pOs'atJonLisuted, Tteough its ^ Ghamnan-Gum- MSsa^gBlireetm,Masa'b''SSank, Hyderabad(AndliraPradesh). General Manager, Bailadila froa Ore Project, National MinCTal Development Cprporation Linuted, KiraiKipl, Dist. Dantewada (South Bastar) (Chhattisgarh). WRIT PETITION tNDER ARTICLE 226/227 OFTHE CONSTITUTIONOFINDl^ 1. PARTICULABS OF' THE PETITIONEB; As shown in the cause title. PARTICULARS OFTECE RESPONDENTS: As sfaown in the cause title. .i:I.E ftf^ ^t- HIGH CQURT OF JUDICATURE CHHATTISGARH AT BILASPUR fDiViSiONBENCHi CORAM : Hon'bte Shri A.K. Patnaik, C.J. a Kon'bis Shri Saiish K. Agnihotri, j WR!T PETIT!ON N0.2424 QF 2005 BaHadiia Berozgar Sangh Vsrsus National Minera'Development CorporatioR Lim'ted Preseni Mr. B.D. Guru, learnedcounse! for the pstitioner. Mr. P.S. Koshy, tearned counsel for the respondents. QRDER !BS&! ^I SB<»' ith sed on 11'"August, 2005) The foHowng ora! order of ths Court was passed by A.K. Patna.'k, C.J:- The petitioner is an association of unemptoyed youth of Baiiadila and has filed this writ petition as a Pub!ic Interest Lit'gation (PIL). The petitiQner has stated in the writ petition that the National Mineral Dsyetopment Corporation (hereinafter referred to as 'C-orporation") / respondent No.1 is a Corporation owned by the GQ'.'emment of India and comes with'n the definition of "State" 'n Articte 12 ofthe Constitution of !ndia. The Corporation has an !ron Ore project in Bailad'la ahd for the said project ths Corporat'on has sent a requisition to the Dirsictorate of Emp!oyme"t & Training, Chhattisgarh for recruitment to the post of Maintenance Assistants fTrainee) and pursuantto ths said notification the Directorats of Employment & Tra'ning, Chhattisgarh has |issued ,a !illl ^ij^SdiHSaSSiSI p- taniu niriR'y ^ notificatio" of vacancies i" the post ofMaintenance Assistants 0'ra'nes) under the CorpQration. In the said notificatio" of vacancies, the maximum age limit of candidates for the recruitment is mentioned as 30 years wsth a provision for reiaxation up to 5 years 'n case of SG/ST candidates and 3 yeare i" case of OBC- candidates. !n the sa'd not'fication it is also stated that women candidates are ineligib'e for the post. Aggrie'/ed, the petitsoner has filed this writ petition under Articte 226 of the Constitution praying for quashing the said notification and for directing the CorpQrat'o" to fix the maximum age limit for the candidates as 35/40 years and to provide rese"/ation for SC-/ST and otherOBC candidatss and to a!low women candidates to submit their appiications for recruitment to the vacanciss. (2) Mr. B.D. Guru, tearned counsel for the petitioner submittsd that the CQrporation has notmade any recruitmentof the workmen for the last ten years and most ofthe !ocal unemptoyed youth have grown beyond the maximum age of 30 years stipulated in the notification and for this reason the stipulat'on in the notificationthat the maximum age iimitof 30 years for recruitment to the post of Maintenancs Assistents CTrainee) should be struck down and a direction be givsn to the Corporation to increasethe maxifrium age limit ofthe candidates to 35/4Qyears. He next submitted that there is no provision rsgarding rsservatio" for SC/ST and OBC candidatss and such a provision fQrreser'/ation forSC/STand OBC candidates shouldhave been made under Article 16(4) ofthe Gonstitution. He finally submitted that the not'fication in so far as it prohibits a!together a woman candidate to apply for the post of MaintSnance|Assistants (Trainee) is discriminatory and is yio'ative of Articles 14 and 16 ofthe Hi ^ Constitution and the same shouid be struck down and the Corporation be directed to altow women candidates as we!l to apply for the said post. (3) Mr. P.S. Koshy, tearned counsel for the respondents, on the other hand, submitted relying on the averments in the reply filsd on behaif of respondents that the maximum age !imit for recruitment to Group 'C' and Group 'D' posts in fhe Corporation has already bsen increased from 25 years to 30 years for the genera! category candidates and ths respondsnts after taking into consideration all relevant aspects have determined the maximum age limit for recruitment for genera! candidates as 30 years as a matter of policy. He further submitted that the notification made by the Directorate of Employment & Training, ChhatHsgarh pursuant to the requisition would itself show that out of 30 vacant posts of Maintenance Assistants <Jr3'mee} for which recruitment is to be made, 4 posts havs been reservsd for SC, 6 posts have been reseroed forST and 3 posts have been reserved for OBC candidates and the remajning 17 posts are for the general candidates. Regarding women candidates, Mr. Koshy submitted.relying on the averments made in the reply of the respondents, that under Section 46 of the Mines Act, 1952 thers is a prohibition for engaging women workers in any part ofttie mines below the ground and in any part of the mines above the ground excspt befrween 6 A.M. to 7 P.M. He submitted that in view ofthe said provision in Section 46 ofths Mines Act, 1952 the respondents had in the requisitiQn sent to the Empioyment Exchange for recruitment of | Maintenance Assistants fTrainee) specified that women c^ndidates are not eligible. He further submitted that it is not as if the Corporation has a discriminatory policy towards women candidatesand as a matter offact there are about 150women employtees in the Baiiadila comptex ofthe Corporation. He 4 \ -ff (P. submitted that the Supreme Court has in P.U. Joshi & Qthers vs. Accountant Genera!, Ahmedabad & Others reported in (2003) 2 SCC 632 he!d that questions reiating to the constitution, pattern, nomenclature of poste, cadres, catsgories, their creation and abolition, prescription of qualifications and othsr conditions of servtee pertain to the field of pQ'fey and are with'n the exclusive discretion and jurisdiction of the State and in such matters the CQuris have Simited powers of the judicia! re'/iew. He a!so cited the decision ofthe Supreme Court in Dhan Singh & Others vs. State of Haryana & Qthers reported '"1991 (2) SCC 190 for ths propQsitiQn that mere differentiation or inequality of protection does not per se amount to discriminatiQn within the inhib'tion of equa! protection c!auss under Artide 14 of the C-onstitution and to attraet the attention of the c!ause, it is necessary to show that the selectioR. or differentiaiion is unreasonable or arbitrary and that itdoes not rest on any rational basis having regard to the object which the legislature has in view. He submitted that in the present case there was a just'ficatiQn for not altowing women candidates to apply for recruitment to the vacancies of Maintenance Assistents fTrainee) inasmuch as there was prohibition under Section 46 ofthe Mines Act, 1952 to employ women in mines below thegroundand also in mines abQvetheground bsyond certain hours of the day. Mr. Koshy also cited the decision of the Supreme Court !R ^r fndia ys. Nergesh Meerza & Others and other connected cases reportecl in (1931} 4 SCC 335 in which the Supreme Court has held that Articles 15(1) and 16(2) ofthe Constitution prohibit discrimir.ation on the ground of sex only and not on grounds of sex coupled wift other considerations and upheld the differences in conditiQns of serotee, altowances and other types of remuneration for women and men 1 emp'oyed underthe Airlndia. ^ 1 -ff mu (4) ^4r. Koshy is right in hissubmission that recruitment and the eligibtlity criteria for recruitment to any post is a matter within the domain of the State and ttiat Courts wi!! not nom')a!!y interfere in exercise of their powers of judicial review with the decisionsof the State in such matters regardins eligibility for recruitment. But the power ofthe State even with regard to recru'tment and eligibility for recnitment is to be exercised subject to the limitations of the lawand the Constitution including the provisions relating to fundamental rights enshrined in Part lli the Constitution. In P.U. Joshi & Others vs. Accountant Seneral, Ahmedabad & Ofliers (supra) on whteh Mr. Koshy has placed a reiiance, the Supreme Court has clarified that the discretion and jurisdiction of the State in such matters is of course subject to the limitations or restrictions enwsaged in the Constitution. Hence, even though recruitment and e!igib!lity criteria for recruitment are matters of policy for the State to determine, the Courts can always interfere with the decisions of the State in such matters of po!icy if Constitutional and Statutorylimitations are '."o'atsd by the State. (5) As to what should be the, maximum age limit of a candidate for the post of Maintenance Assistants (Trainee) under the Corporation is purely a matter of poiicy for the Corporation to decide. No provision of the C-onstitufen and no pro'/ision of any law has been brought te our notice by Mr. Guru, tearned counsel for the petitioner to show that the Corporation was obliged to fix the maximum age limit of th^ candidate for ttie post of Maintenance Assistants 0'rainee) at 35/40 years. Theonly ground indicated by the petitioner in thn writ petition is that for severa! years there Tias been no recruitment and for this reason the Corporation sHould have fixsd the msximum age limit for recruitmsnt to the post of Mdintsnance <f.r Asssstants (Trainee) at 35/40 years. !t was for the Corporation to take a!i relevant facts into account and decide as to what would be maximum age limit for candidatss for the post of Maintenance Assistants CTrainse) and it appears that the CQrporation has already considersd the relevant facts and taken a decision to snhance the age limit for the candidatss for recruitment to different Group 'C' and Group 'D' posts including the post of Maintenance Asssstants CTrai"00) from25 ysars to 30 years. We do notthinkwe can.inexercise ofpowers ofjudicia! review, 'nterfere with this decision of the Corporation in a pureiy policy mattsr with regard to recnjitment. (6) Regarding reservation for SC/ST and OBC canciidates, we find on a bare perusal ofthe notification of "acancies made by the Dirsctorate of Employment & Training, Chhattisgarfr pursuant tothe requisition of the Corporation that out of the 30 vacancies in the post of Maintenance Assistants (Traines) notified, 4 posts have bee" reserved for SC candidates, 6 posts have been reserved for ST candidates, 3 posts ha'/e been reserved for OBC and 17 poste are meant forgeneral candidates. Hence, the ground taken in thewrit petition that there is no resen/ation made for the SC/ST and OBC candidatss is factualiy misconceived. (7) Coming now to the challenge to discrimination on the ground of sex, Article 14 of the C-onstitution prov'des that the State shatl not deny to any pereon equality before the !aw or the equal protection of the !aws within the territory of tndia. Articte 16 (1) of the Constitution provides that there shal! be equality of opportunity for al! Gitizens in mattere relating to emptoyment or appointment toany ofRce under theState and Articte 16(2) of the Constitution further provides that no citizsn shall on grounds onfy of ^ \.- *•--• .^ ;/&• religion, racs, caste, sex, descent, p'ace of b'rth, residence or any ofthem bs ineligib!0 for, or discriminated against in respect of any employment or QfHce under the State. A reading of the aforssaid prQVisions of Articles 14and 16 of the Constitution wou!d show that in matters of recruitment to employment, the State wi!l not discriminate between menand women and that a citizen will not be ineligibte for employment or office under the State on the ground of sex only. !t is not disputed that the C-Qrporation is an instrumentelity of the State andcomes within the definition of the State under Articte 12 of the Constrtution and that the equafity provisions in Artictes 14 and 16 of the Constitution appiy to employment under the CorpQration. Therefore, a woman citizen cannot be made iReiigibte for any employment under the Corporation on the ground of sex only but could be exduded from a particularemp'oyment urfder the Corporation if there are othsr compelling grounds for doing so. (8) The notification of vacancies issusd by the Directorate of Employment & Training, Chhattisgarh, howsyer, states that women candidates are ineligibte to apply for the post of Maintenance Assistants 0'rainee). Ths justification given for excluding women candidates from applying for the post of Maintenanc^ Assistants (Trainee) in the repiy of the respondente is that under Section 46 of ths Minss Act, 1952 there are some restrictions with regard to emptoymentof WQmen in mines. Section 46ofthe Mines Act, 1952 jsquoted herein below: "46. Emptoyment ofwomen.- (1) No woman shall, notwithstanding anything contained in any other law, be employed- (a) in any part of mine which is below groynd; (b) in any mlne above ground except between the hoursofS. a.m. and7p.m. S.11 ir' lp. r* (2) Eve"/ woman employed in a mine aboye ground shal! be allowect an intenral of not tess than eleven hours between the termination of employment on any one day and thecommencement ofthe next period of employment. (3) Notwithstanding anything contained in sub- section (1), the Central Government may, by notification in the Officia! Gazette, vary the hours of emp'oyment above ground of women in respeot of any mine or class or desoription of mine, so howevertliat no employment of any woman between the hours of 10 p.m. and 5 a.m. is permittedtherefciy," It wil! be ctear from Section 46 quoted abo'/e that the said Section does not altogether prohibitemployment of women in the mines above the ground though itprohibits employment ofwomen in any part ofthemine below the ground. The Section however putsa restriction on emptoyment of women above the ground saying that they can be empioyed only between 6 a.m. and 7p.m. Sub-section (3) ofSection 46 quoted above, however, states that the Central Go'/emment may, by not'fication 'n the OfRcial Gazette, "ary the hours of employment above the ground of '".'omen in respect ofany m'ne or class or description of mine, so howe'.'er, that no emptoyment of any women between the ours of 10 p.m. and 5 a.m. is permitted thereby. This provisiOR putting restrictions on the employment of women abo'/e the ground is a specia! proyision made for womeh. Such a provision, in our considered opinion, cannot be relied on by the Corporation to prohibit recruitment of women altogether for the post of Maintenance Assistants (Trainee) in the CorpQrationto the disadvantage ofthewomen. ' (9) In Dhan Singh & Others vs. Stats of Haryana & Others (supra) cited by Mr.Koshy, the Supreme Court hasheld thatto attract the mandateof Articte 14 of the Constitution, it is necessary to show that the 9 "-<- ^ selection or differentiation's unreasonable or arbitrary and that itdoes not rest on any rationa! basis having regard to the objectwhich the legislature has in view. !t is not statedin the notification "or in the reply fi'ed by the respondents that a!l ths 30 Maintenance Assistants fTrainee) for which the notification has been issued are to be emptoyed exclusive.'y in mines betow ttss ground. Ssction 46 ofthe Mines Act, 1952 permits emp!oyment of womsn in the mines above the ground during 6 a.m. to 7 p.m. and sub- Ssct'on (3) of Section 46 further provides that the Central Goyemment may, by nQtification in the Offieial Gazette, permit such empioyment of women sven beyond the hours fromS a.m. to 7 p.m., but not between 10 p.m. and 5 a.m. To dsny women the opportunity to app!y for and to be considered for employment as Maintenance Assistants fTrainee) under the Corporation on ths ground that Section 46 of the !V!inesAct,-1952 imposed some restrictions wou!d be discriminatory towards ".'omen on the ground ofsex and '/io!at!ve ofthe provisionsofArticlss 14,16 (1) and 18 (2) ofthe Constitution. The stipulation inthe notification denying women a'tQgether frQm appiying for the post of Maintenance Assistants (Jrames) under ths Corporation wouid be unreasonab'e and arbitrary and does not rest on any rational basis. (10) !n Air India vs. Nergesh Meerza & Qthers and other connected cases (supra), the Supreme Court has held that in matters of aHowances, conditions of service and other remuneratie" of women and menemp!oyees under theAir India, no discrimination is made on the ground of sex only. But the Supreme Court has also teken note of the views of Mr. Krishna lyer, J. in Miss C.B. Muthamma vs. Union of India, (1979) 4 SC-C260 to theeffect that untess sensitivities of sex or the 'pecuiiarities of socia! sectors or the handicaps Qf either sexmay compe! 10 selectivity and a case for differentiation is demonstrably made out, the rule of equality must govsrn. In the language of Mr. Krishna lyer, J. "We do not mean to universalize or dogmatise that men and women are equal in all owupations and-all situations and do not exdude the need to pragmatise where the requirements of partioular employment, the sensith/ities of sex or the peouliarities of sooietal seotors or the handicaps of either sex may oompel seleotivity. But save where the differentiation is demonstrable, the rule of equa!lty must govem." In the present case, the respondents have not been able to show demonstrably in their pleadingsthat the handicaps or other sensitivities of sex or the peculiarities of social sectors had compelted the Corporation to prQhibit the women a'together from apptying forthe post of Maintenance Assistants CTrainee). On the other hand, as we have indicated above, they have justified the denial of opportunity to womeh from appiying for emptoyment under the Corporation as Maintenance Assistants (Trainee) only on the basis ofprovisions in Section 46 ofthe Mines Act, 1952, which we bave seen, do not altogether exclude the employment of women in mines above the ground. (11) For the aforesaid reasons, ,while we decline to interfere wth the provisiQns regarding maximum ags for candidates for the post of Maintenance Assistants (Trainee) under the Corporation, we declare the provision in the notification prohibiting women candidates altogether to appiy for the said post of Maintenance Assistants CTrainee) as ulfra vires Artictes 14 and 16 of the Constitution and djrect.the Corporation| to allow women candidates a!so to appiy for the said posts. The recruitment process to the posts of Maintenanee Assistants CTrainee) wi!! new bs irtitiated afresh after inviting fresh appiications fromintending candidates. 11 ^<' The writ petition is dispossd of with ths aforesaid directiQp.s, but cohsidering the facts and circumstances, theparties shall beartheir own costs. Sarma ;^~;^ Sd/- /r Satish K-Agniliotri Judge 'i ii il