THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.1.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.24856 of 2008 1. R.S.Kavitha 2. M.Revathi .. Petitioners Vs. 1. The State of Tamilnadu rep. by its Secretary to Government Transport Department Secretariat, Chennai-9. 2. The General Manager Tamilnadu State Transport Corporation (Salem) Limited 12, Ramakrishna Road, Salem-7. 3. The Managing Director Tamilnadu State Transport Corporation (Salem) Limited 12, Ramakrishna Road, Salem-7. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the respondents to select and give appointment to the petitioners for the post of conductors in the existing or future vacancies on the ground of gender equality by considering G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989. For Petitioners : Mr.N.Manokaran For Respondents : Mr.T.Seenivasan Additional Government Pleader for 1st respondent Mr.C.Kanagaraj for respondents 2 and 3 https://hcservices.ecourts.gov.in/hcservices/ ORDER The issue involved in this case relates to the concept of gender equality in relation to the appointment of conductors in the respondents/ Transport Corporation. 2.1. The petitioners, who are unemployed women, have completed B.Com. Degree and also obtained conductor licence. The Government by lifting the ban on recruitment by G.O.Ms.No.57, dated 21.7.2005 has decided to fill up 4000 driver posts and 1500 conductor posts in its transport corporations. The petitioners have registered their names in the employment exchange in the year 1999. It is stated that the second respondent has called for the list of eligible candidates from the employment exchange and the names of the petitioners were forwarded and the petitioners attended interview on 16.5.2007 in the office of the third respondent. There were 930 vacancies for the post of conductors in the second respondent/Corporation, out of which 925 posts were allotted to male candidates and only 4 posts were allotted to ladies. 2.2. It is the case of the petitioners that they have produced all the records relating to the educational qualifications and physical fitness for the post and even after 1½ years there was no reply. Thereafter the petitioners were informed that only 19 ladies have attended the interview and learnt that the selection was not done as per G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989. As per the said Government Order, 30% of the vacancies in the Government Departments or Government Owned Undertakings, Corporations and also in local bodies shall be set apart for women candidates and in spite of the said Government Order no adequate representation has been given to women and it is violative of Articles 14, 15 and 16 of the Constitution of India and the conduct of the respondents/Corporation would amount to hostile discrimination and denial of employment to women and therefore, the present writ petition is filed for a direction against the respondents to select and appoint the petitioners to the post of conductors in the existing or future vacancies on the ground of gender equality and on the basis of G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989. 3.1. In the counter affidavit filed by the third respondent, it is stated that the respondents/Corporation has notified 80 vacancies for the post of Daily Paid Conductors on 31.1.2007 prescribing age limit and the District Employment Office, Salem was requested to sponsor candidates based on reservation, including making a reference to G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989. The petitioners were among 1403 candidates sponsored by the District Employment Office, Salem and interview call letters https://hcservices.ecourts.gov.in/hcservices/ dated 30.4.2007 were sent to the petitioners calling them to attend the interview on 16.5.2007 and the petitioners have attended the interview . 3.2. It is stated that as per Rule 59(b), Appendix III of Service Rules, the qualification required for appointment of conductors is as follows: "i) Must have passed the SSLC examination or the X Standard Public Examination (under the revised Scheme of 1979) with eligibility for admission to the Higher Secondary Course, from a recognized School in Tamil Nadu. ii) Must possess a valid Conductor's Licence, First Aid Certificate and Public Service Badge. iii) Must have the following minimum physical standards: a) Height .. 160 Cms. b) Weight .. 45 Kgs. iv) Must be free from any physical deformity." 3.3. It is stated that the first petitioner was found to be ineligible due to lack of physical standard. As per the Rules, a candidate must have height of 160 cms, whereas the first petitioner was only having height of 157 cms and since the mandatory requirement was not complied with, the second respondent has not selected the first petitioner. 3.4. As far as the second petitioner is concerned, it is stated that though she was having the prescribed qualification and physical standards, she has not produced valid First Aid Certificate at the time of interview. It is also stated that she has secured only 40 marks in the interview and there were sufficient persons who secured 50 marks. It is stated that the recruitment process has been completed. 3.5. The allegation that G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989 is not followed is denied. The petitioners were not selected for want of minimum physical standards and merit and therefore, it is denied that there is violation of Articles 14, 15 and 16 of the Constitution of India. 4.1. Mr.C.Kanagaraj, learned counsel appearing for respondents 2 and 3 would submit that as far as the second petitioner, M.Revathi is concerned, she, no doubt, confirms to the requirement as per Rule 59 (b), Appendix III of Service Rules, elicited above, but she has not produced the valid First Aid Certificate at the time of interview. In such circumstances, he would submit that if the second petitioner produces the required certificate, her case would be considered subject to the availability of vacancy. 4.2. As far as the first petitioner, R.S.Kavitha is concerned, according to the learned counsel appearing for respondents 2 and 3, https://hcservices.ecourts.gov.in/hcservices/ the height of 160 cms is a mandatory requirement and the first petitioner is lacking the required physical standard and therefore, the Corporation is well within its right to reject the claim of the first petitioner and a person who has not qualified cannot be compelled to be appointed even on the basis of gender equality and G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989. 5. On the other hand, it is the contention of Mr.N.Manokaran, learned counsel appearing for the petitioners that even assuming otherwise, when it is admitted that the first petitioner is having height of 157 cms and only 3 cms is short, it is the duty of the respondents/ Corporation to explain as to how the shortage of 3 cms would be a disqualification of physical standard. He would rely upon the decision in Air India Cabin Crew Association v. Yeshaswinee Merchant, [2003] 6 SCC 277 to contend that the denial of employment is in violation of Article 15(3) of the Constitution of India. He would also refer to another order of this Court dated 19.8.2008 made in W.P.No.426 of 2008, where the learned Judge of this Court has considered a similar issue. 6. Before going into the merits of the matter, in the light of the facts which are not in dispute, particularly as stated in the counter affidavit regarding the qualification, it is seen as per the relevant Rules, the qualification for conductors is as follows: "(1) Must have passed the SSLC examination or the X Standard Public Examination (under the revised Scheme of 1979) with eligibility for admission to the Higher Secondary Course, from a recognized School in Tamil Nadu. (2) Must possess a valid Conductor's Licence, First Aid Certificate and Public Service Badge. (3) Must have the following minimum physical standards: a) Height .. 160 Cms. b) Weight .. 45 Kgs. (4) Must be free from any physical deformity. (5) Must have completed twenty (20) years of age as on the 1st day of July of the year in which the appointment is made. (6) Must furnish a Security deposit of Rs.500/- (Rupees Five hundred) at the time of appointment, in cash." 7. Of all the qualifications stipulated above, the first petitioner is not able to confirm only in respect of height of 160 cms which is required, as her height is 157 cms. As far as the second petitioner is concerned, she does not actually lack any qualification. The only requirement is production of a First Aid Certificate and it is not known as to how the respondents have not considered the case of the second petitioner on the technical ground of not producing the valid First Aid Certificate, which can never be said to be a condition precedent or mandatory requirement for https://hcservices.ecourts.gov.in/hcservices/ completion of selection process and such certificate can always be directed to be produced at the time of joining. In any event, the learned counsel for the respondents would fairly submit that the case of the second petitioner would be considered on production of the said certificate. In such view of the matter, as far as the second petitioner is concerned the writ petition stands ordered with a direction to the second petitioner to produce the First Aid Certificate to the third respondent within a period of one week from the date of receipt of a copy of this order and on receipt of which, respondents 2 and 3 are directed to pass appropriate orders of selection of the second petitioner as conductor, taking note of the fact that she has the requisite qualification. 8. The narrow question which we have to decide in this case is about the first petitioner who is lacking 3 cms height. It is true that when once the relevant rules prescribe a qualification it is not for this court to give its opinion about the merit of the said qualification except in cases where such qualifications are imposed for extraneous consideration or with malafide intention or with an intention of discriminating people. But it is equally true that the Rules which were framed have not distinguished at least in respect of physical standards between male and female candidates. 9. It is no doubt true that there is no discrimination played against the first petitioner only on the basis of sex which is prohibited under Article 15(1) of the Constitution of India which is as follows: "Article:15(1) The State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them." The disqualification shown is only regarding lack of height contemplated under the Rules. 10. While considering the said concept of "but-for-sex", the Supreme Court in Air India Cabin Crew Association v. Yeshaswinee Merchant, [2003] 6 SCC 277 has explained the constitutional aspect in this regard as follows: "39. Article 14 of the Constitution mandates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Clauses (1) and (2) of Article 15 prohibit the State from discriminating any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 which contains the fundamental right of equality of opportunity in matters of public employment, by sub-clause (2) thereof guarantees that: https://hcservices.ecourts.gov.in/hcservices/ “16. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” (emphasis supplied) 40. Article 16(2) prohibits discrimination only on sex but clause (3) of Article 15 enables the State to make “any special provision for women and children”. Articles 15 and 16 read together prohibit direct discrimination between members of different sexes if they would have received the same treatment as comparable to members of the opposite gender. The two Articles do not prohibit special treatment of women. The constitutional mandate is infringed only where the females would have received same treatment with males but for their sex. 41. In English law “but-for-sex” test has been developed to mean that no less favourable treatment is to be given to women on gender-based criterion which would favour the opposite sex and women will not be deliberately selected for less favourable treatment because of their sex. It is on this “but-for-sex” test, it appears in Nergesh Meerza case, [1995] 6 SCC 359 the three-Judge Bench of this Court did not find the lower retirement age from flying duties of air hostesses as discrimination only based on sex. It found that the male and female members of crew are distinct cadres with different conditions of service. The service regulation based on the agreements and settlement fixing lower retirement age of air hostesses was not struck down." However, while deciding about the condition of retirement fixing it as 50 years for flight duties in respect of women candidates and grounding them thereafter up to 58 years, it was held to be not discriminatory based on sex alone in the following operative portion: "73. We have already dealt with the challenge made to the retirement of the air hostesses from flight duties at the age of 50 years and grounding them thereafter up to the age of 58 years. We have held that the conditions of retirement are not a discrimination based only on sex. The directives issued by the Central Government, therefore, also cannot be held to be in any manner in https://hcservices.ecourts.gov.in/hcservices/ violation of Articles 14, 15 and 16 of the Constitution or the provisions of the Equal Remuneration Act, 1976." 11. By the Government Order which has been relied upon by the petitioner, viz., G.O.No.89, Personnel and Administrative Reforms Department, dated 17.2.1989, the Government has no doubt made it mandatory for reservation of 30% of the vacancies for women candidates based on the reservation policy. The Government Order is as follows: "The Government direct that a minimum of 30% of all future vacancies in Government Departments/Government Owned Undertakings/ Corporations/Societies and also in Local Bodies, which are to be filled through direct recruitment shall be set apart for women candidates irrespective of the fact whether the rule of reservation applies to the posts or not. In respect of the posts to which the rule of reservation applies, the 30% of the vacancies shall be set apart for women candidates following the existing reservation for Scheduled Castes and Scheduled Tribes, Backward Classes and Open Competition. 1. Women candidates will also be entitled to compete for the remaining 70% vacancies along with men candidates. 2. The order of rotation to be followed shall be as specified in the annexure to this order. 3. If a qualified and suitable woman candidate belonging to Scheduled Castes/Scheduled Tribes or Backward Classes or Open Competition is not available for selection for appointment in the turn allotted for them in the cycle, the turn so allotted shall go to the male candidate within the respective category. In respect of the posts to which the rule of reservation does not apply the turn so allotted shall go to the next male candidate. 4. This order shall take immediate effect. 5. Formal amendment to the Tamil Nadu State and Subordinate Services Rules shall be issued separately." 12. Considering the implication of the said Government Order, in a similar circumstance, when a writ petition was filed by a candidate https://hcservices.ecourts.gov.in/hcservices/ for the post of conductor in the respondent/Corporation on the basis of gender equality, in the case of a destitute widow, wherein the Corporation took a stand that when the personal interview was conducted she was considered to be below average and that the reservation of one-third vacancies to women candidates is not applicable to the post of conductor, which involves physical skill/fitness, technical parameters, etc., N.Paul Vasanthakumar,J. in B.Kali Jothi v. Metropolitan Transport Corporation (Chennai) Ltd., Chennai and others (W.P.No.426 of 2008, order dated 19.8.2008), referred to the judgment of the Supreme Court in K.Manjusree v. State of Andhra Pradesh, AIR 2008 SC 1470, wherein on the basis of non obtaining of minimum mark prescribed for interview the claim of the lady candidate was rejected when that was not prescribed in the Rule of selection, the Supreme Court has disapproved the minimum marks in oral interview, and also referred to the the decision of the Madurai Bench of the Madras High Court in P.Mahavishnu v. The General Manager, Tamil Nadu State Government Transport Corporation (Madurai) Ltd., Tirunelveli (W.A.(MD) No.317 of 2008, dated 22.7.2008) and extracted paragraphs 6 to 13 of the said judgment, which are relevant to the facts of the present case also, as follows: "6. We are of the view that, in this matter, the manner in which discretion has been exercised by the learned Judge does not have our approval. 7. It is also not in dispute that the petitioner has submitted a Medical Certificate issued by the Orthopaedic Surgeon, Government Medical College, Thoothukudi to the effect that the aforesaid alleged deformity does not prevent the petitioner from walking around and working as a Conductor. 8. It is common knowledge that as a result of the deformity, which is alleged against the petitioner, his gait, if at all, may become a little inartistic. The petitioner is not appointed as a dance trainer but only as a Conductor in a bus and he satisfies all other requirements. 9. It cannot be disputed that in the present day grim situation of unemployment, a person's opportunity to be employed has been equated by the Apex Court as his right to life under Article 21 of the Constitution of India. So, by denying employment to the petitioner, virtually, his fundamental right to life is sought to be taken away solely on the aforesaid technical consideration. https://hcservices.ecourts.gov.in/hcservices/ 10. The Apex Court has repeatedly emphasised that when a person is denied his fundamental rights, such denial has to be based on a procedure which is just, reasonable and fair. There is no fixed standard of fairness. Fairness has to be judged in the facts and circumstances of each case and in judging the fairness of a procedure, the Court must have due consideration of the entire facts and circumstances of the case, including the societal condition in which the parties are placed. The case of a person, who is trying to eke out his living by accepting the job of a bus conductor must be judged with a standard of a fairness which is obviously a little different from the cases of business barons or those of corporate magnets. In the cases of persons who are lowly placed the courts have a duty to stretch the law as far as possible, without violating it, to give relief to those persons. 11. Going by the aforesaid consideration, this Court finds that the decision of the respondent in the instant case in refusing the employment to the petitioner on the grounds mentioned above does not meet the standards of fairness of any person of ordinary prudence. Unfortunately, the learned Judge did not approach the issues involved in this case from this angle. 12. It is left to this Court to interpret and apply the rule in the light of Human Rights jurisprudence incorporated by the Apex Court in our laws and as a result of which the right to life has received a very liberal interpretation. So, we are constrained to take a different view from the one which has been taken by the learned Judge. 13. In these facts and circumstances of the case, we direct the respondent to give appointment to the petitioner/appellant to the post of Conductor since the candidature of the petitioner is free from any other defect except the one pointed out in the order under the appeal. Such appointment should be offered to the petitioner/appellant within a period of four weeks from this date." That was in fact a case where a male candidate was found to be having physical deformity and in those circumstances, the Division Bench has given such direction. By applying the formula laid down by the Division Bench, the learned Single Judge in that case has directed the respondent/Corporation to select and appoint the petitioner therein as conductor in the following words: https://hcservices.ecourts.gov.in/hcservices/ "17. Applying the principle laid down by the Division Bench cited supra to the facts of this case i.e., petitioner being a destitute widow; a women candidate appeared for interview for which 75 conductor post are reserved for women candidates, however only three candidates were appointed' and the petitioner is denied appointment only on the ground that she has not secured minimum of five marks in the interview; and having regard to the fact that no minimum mark is prescribed under any rule for selection to the post of conductor, the non-selection of the petitioner to the post of conductor is to be treated as illegal. 18. In view of the above findings, a direction is issued to the second respondent to select and appoint the petitioner as Conductor and necessary order to that effect is directed to be passed by the second respondent within a period of two weeks from the date of receipt of copy of this order." 13. As stated above, even in respect of a male candidate with physical deformity it was found in the changing scenario of unemployment and exploitation that the rule must be reasonable and in conformity with the required nature of job to be done by a person to be appointed. It is no doubt true that there cannot be differential treatment when once a particular height is prescribed for the candidates. But it is not known as to how the requirement of 160 cms would be violated by shortage of only 3 cms and as to its relevancy to the job of the conductor in a bus. The prescription of height and weight are no doubt minimum physical standards required, but it does not mean that the respondents/Corporation should close its eyes in all cases where even a fraction of height in centimeters is missing and reject the claim, especially when admittedly the number of women candidates who appeared for the interview was negligible. 14. As held in the Division Bench judgment extracted by the learned Judge, supra, in these days of right to life enshrined under Article 21 of the Constitution of India which is with decency and dignity and when unemployment poses great problem resulting in serious consequences in the society and when women are to be treated equally with men in all matters as per Article 14 of the Constitution, there is nothing wrong in the respondents/Corporation considering the case of the first petitioner who is lacking height only to a fraction, which is not predominant in making her unfit for the post of conductor at all. 15. Law being a living object which changes as per the change of culture, has to be construed under the changing pattern of the society and mere technicality which in effect is not going to make inroad into the basic concept cannot certainly stand in the way of such liberal attitude at least in respect of treating women equal https://hcservices.ecourts.gov.in/hcservices/ with men by showing permissible concessions. Therefore, I am of the considered view that even though technically the respondents/Corporation may be correct on the strict interpretation of the Rules insofar as it relates to the first petitioner, I am not satisfied with the reason adduced that lacking of 3 cms height than the required height of 160 cms will be detrimental to a lady conductor to perform her function efficiently. The case on hand is not that of physical deformity and is a case of an unemployed woman eager to work by coming out of the traditional bond of homemaker which has to be necessarily supported, strengthened, encouraged and appreciated by the Government and other constitutional authorities. Therefore, the stand of the respondents in the counter affidavit, in my considered view, should be only taken to mean that by certain evasive reply the respondents/Corporation is attempting to wriggle