IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 O.P.No. 28219 of 2000(H) ----------------------- PETITIONER: ------------------ HASEENA MANSOOR, AGED 37 YEARS, W/O. LATE MANSOOR, VI/802-A, THRIKKAKARA, B.M.C. P.O. BY ADV. SMT. DAISY THAMPI RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE CHAIRMAN, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER SMT.T.B.REMANI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP28219/2000 - 2 - ORDER ON C.MP.47492/2000 IN O.P.28219/2000 DISMISSED. 18.5.2010. SD/-THOTTATHIL B.RADHAKRISHNAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - A TRUE COPY OF THE ORDER NO.PA/VI/PPO-23950 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT.8.2.2000. EXT.P2 - A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN O.P.NO.31488/99 DT.5.6.2000. EXT.P3 - A TRUE COPY OF THE JUDGMENT DT.28.7.2000 IN O.P.NO.31488/99. EXT.P4 - A TRUE COPY OF THE LETTER NO.EB8/2000-01/1212 DT.4.8.2000. RESPONDENTS' EXHIBITS: - NIL. TRUE COPY P.S.TO JUDGE. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = = O.P.28219 of 2000-H = = = = == = = = = = = = = = = = = = = = = = = = Dated this the 18th day of May, 2010. JUDGMENT “CR” 1. Note I(1)(a) under Rule 118 in Part III of Kerala Service Rules, for short, the “KSR”, provides that the share of DCRG due to minor children should be paid to the surviving parent except when the surviving parent happens to be a Muslim lady and that where there is no surviving parent or if the surviving parent is a Muslim lady, the payment be made to the person producing the guardianship certificate. The petitioner challenges this provision. Consequential directions are also sought for. 2. T.K.Mansoor, an employee of Kerala State Electricity Board, died leaving behind his wife and their two minor children. KSR applies to KSEB employees. Relying on the impugned rule, the share of Death cum Retirement Gratuity due to Mansoor’s minor children was not paid to their surviving parent, the petitioner, only on the ground that she happens to be a Muslim OP28219/00 2 lady. Hence, this writ petition. 3. Mansoor’s children, having since attained majority, have been paid their due. However, it is insisted that the issue may be decided as it affects, as a class, Muslim widows of government servants dying intestate, leaving also behind, minor children. It is contended that such women and children form a challenged class, entitled to declaratory remedy in this writ petition raising fundamental issues of equality and equal treatment. It is pointed out that relief no. ii, as sought for, is a declaration in favour of Muslim mothers and not confined to the petitioner and that the delay in the matter was essentially because counter-affidavits were not filed for more than six years and this court had to impose an order of costs on that account, that too, to be paid personally by officers. Petitioner's contentions: 4. The petitioner contends that the provision “except when the surviving parent happens to be a Muslim lady” in Note I(1) (a) under Rule 118 of Part III KSR, is unconstitutional, being in violation of Articles 14 and 15(1) of the Constitution and that the said provision is in violation of the public policy and constitutional mandate under Articles 38, 39, 46, 15 and 14 to accord social and economic democracy to women as assured in OP28219/00 3 the Preamble to the Constitution, which constitutional provisions form the core foundation for economic empowerment and social justice to women for economic stability and political democracy. It is contended that those constitutional provisions frown upon gender discrimination and aim at elimination of obstacles. The petitioner further pleads that the impugned provision is in clear violation of the obligations of the State in terms of the international instruments to which India is a party, including the Convention on Elimination of all forms of Discrimination against Women, 1979 (CEDAW) and the Beijing Declaration made in the Fourth Conference on Women in Beijing in September, 2005, hereinafter referred to as the “Beijing Declaration”, which requires all State parties to take up appropriate measures to prevent discrimination of all forms against women. The petitioner pleads that India having accepted and ratified CEDAW in June, 1993, the terms of the declarations of that international convention have to be given effect to, in construing the domestic laws and the constitutional provisions which are in consonance with those international declarations. It is pleaded that those norms are effectively contradicted by the impugned provision. It is further pleaded that on the face of Article 13(2), the impugned provision is an abridgment of the rights conferred under Part III of the Constitution and therefore, the said provision amounts to hostile OP28219/00 4 discrimination against Muslim mothers of minor children of Government servants dying intestate, while or after serving the State of Kerala. The petitioner also points out by pleadings that even in terms of the Mohammedan Law, the provision is to take recourse to the Guardian and Wards Act, 1890 in relation to appointment of guardian, which again is a clear indication that the ultimate consideration has to be the interest of the child. Accordingly, in her pleadings, the petitioner relies on the decision of the Apex Court in Gita Hariharan vs. Reserve Bank of India, (1999) 2 SCC 228, to point out that mothers are entitled to act as natural guardian even during the lifetime of father in the circumstances stated therein. Stand of the State of Kerala: 5. In response, the first respondent State of Kerala has filed a counter affidavit contending that in terms of Mohammedan Law, the legal guardian of a Muslim minor is firstly its father, then the executor appointed by its father in his Will and then, the father's father and the executor appointed by the Will of such person. Reference is made to Syed Shah Gulam Ghouse Mohinddin vs. Syed Shah Kamisul Oadei, AIR 1971 SC 2184, to state that in default of legal guardians, a duty to appoint guardian for the protection and preservation of the minor's property is that of the court, on proper application. The State OP28219/00 5 contends that the impugned provision in KSR is in terms of the Mohammedan Law. Reference is also made to the provisions of the Guardian and Wards Act, 1890 and it is contended that the law laid in Gita Hariharan (supra) has no application to the situation in hand. 6. The employer KSEB, the second respondent, does not take any particular stand and has not placed pleadings. Arguments on behalf of the petitioner: 7. The learned counsel appearing for the petitioner argued that Article 13(2) of the Constitution obliges the State to refrain from making any law which abridges the fundamental rights in Part III and further provides that any law made in contravention of that clause, shall to the extent of the contravention, be void. The impugned provision is criticized as violative of the equality principle enshrined in Article 14 of the Constitution and contradictory to the mandate of Article 15(1) that the State shall not discriminate against any citizen on grounds only of religion. CEDAW was particularly referred to, to argue that in terms of the provisions thereof, the State is obliged to eliminate all forms of discrimination against women. It was pointed out that the Beijing Declaration clearly obliges the State to ensure that there is no form of discrimination against women and the State has to OP28219/00 6 strive to promote women’s economic independence. The learned counsel for the petitioner, making reference to the judgment of the Full Bench (five judges) of this Court in Mathew Varghese vs. Rosamma Varghese, 2003 (3) KLT 6, argued that the provisions relating to care of child and related matters, including the role of the State to regulate such matters are secular in content, in terms of the Constitution. The concepts of 'family', 'parent' etc. as elaborately considered in that judgment were also referred to. Relying on Gita Hariharan (supra), it was argued that the courts are obliged to give due regard to international conventions and norms, including those in CEDAW and Beijing Declaration, while construing the domestic laws. The decision of the Apex Court in John Vallamattom v. Union of India, (2003) 6 SCC 611 and that of this Court in Preman v. Union of India, 1998(2) KLT 1004 holding Section 118 of the Indian Succession Act, 1925 as violative of Articles 14 and 15, were relied on to state that when a classification is made on the ground of religion alone, the same necessarily fails. The decision of the Full Bench of this Court in Mary Sonia v. Union of India, 1995(1) KLT 644 holding as unconstitutional, the apparent classification in Section 10 of the Divorce Act, 1869, effectively classifying the Christians as a lot, on the ground of religion, was also referred to. OP28219/00 7 Submissions on behalf of the State: 8. Reiterating the stand in its counter-affidavit, it was argued on behalf of the State, that the intention behind the impugned rule is no discrimination, but only a classification in terms of the personal laws in relation to guardianship and custody of minors. Consideration by Court: 9. Recruitment to serve the Union or a State and the prescription of conditions of service of persons in the services are authorised by Article 309 of the Constitution which provides that subject to the provisions of the Constitution, the Acts of appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Therefore, the regulation of the recruitment and conditions of service of persons serving a State is to be made by Acts of the State Legislature, subject to the provisions of the Constitution. The Kerala Public Services Act, 1968 is the Act made by the State of Kerala to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Kerala. The Kerala Service Rules are made, amended and published by the OP28219/00 8 Government of Kerala from time to time in exercise of the powers conferred by sub-section 1 of Section 2 of the Kerala Public Services Act, 1968. Part III of those rules deals with the provisions relating to pension and other retirement benefits. Various executive orders, circulars etc. are also issued from time to time, to govern the field unoccupied by the KSR. Such laws do not, and cannot, admit of any classification on ground only of religion in view of Articles 16(2) and 15(1) of the Constitution. 10. India is a secular Republic. Secularism is a system of utilitarian ethics, seeking to maximise human happiness or welfare quite independently of what may be either religious or the occult. – See Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17. The word "secular" is commonly understood in contradistinction to the word "religious". But the meaning of the words "secular State" in its political context can, and has assumed different meanings in different countries, depending broadly on historical and social circumstances, the political philosophy and the health needs of a particular country. In T.M.A.Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, the Apex Court stated that India is not a theocratic State and in India, the State is secular in that there is no official religion and the content of the Constitution, in its ultimate analysis, remains secular in that it strives to OP28219/00 9 respect all religions equally; the equality being understood in its substantive sense. It is noted that though the concept of secularism may have been borrowed to the Indian Constitution from the West, this Nation has adopted its unique brand of secularism based on its particular history and exigencies. Therefore, as stated in Aruna Roy v. Union of India, (2002) 7 SCC 368, secularism has to be necessarily understood on the basis of more than 50 years' experience of the working of the Constitution. "Secularism" has a positive meaning; that is, developing an understanding and maintaining respect and tolerance towards different religions. The Indian Constitution contemplates and provides for the State, its different limbs, including the Government, to maintain complete neutrality towards religion. Therefore, as stated by the Apex Court in M. Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360, the concept of secularism is the constitutional scheme whereby equality in the matter of religion is guaranteed to all individuals and groups, irrespective of their faith, emphasising that there is no religion of the State itself. 11. The Constitution, through its Preamble, Fundamental Rights and Directive Principles of State Policy, declares the creation of a secular State based on the principle of equality and non- discrimination, striking a balance between the rights of the OP28219/00 10 individuals and the duty and commitment of the State to establish an egalitarian social order. In a secular socialist democratic republic, every citizen has equality of status and of opportunity, to promote among the people, dignity of the individual and unity and integrity of the Nation, transcending them from caste, sectional, religious barriers, by fostering fraternity among them. The emphasis, therefore, is on a citizen to improve to excellence and equal status and dignity of the person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on the basis of equal footing, secularism has been held to be one of the basic features of the Constitution. – See Valsamma Paul v. Cochin University, (1996) 3 SCC 545. 12.In the constitutional perspective as noted above, the secular State and its Government, while making a primary legislation or subordinate rules relating to the management of the State institutions including the Government and its servants, are constitutionally bound to ensure that those laws are purely secular and do not make the distinction on the basis, solely, of religion, though however this constitutional inhibition may not disable the State and the Government from carrying out its constitutional responsibilities to protect the interests of the OP28219/00 11 challenged classes of the community, particularly those constitutionally eligible to protection by way of reservation or otherwise. Therefore, the laws governing prescriptions of conditions of service of government servants are wholly secular, bereft of which, they would not stand scrutiny on the touchstones embedded in Part III of the Constitution. In the constitutional backdrop, laws governing government service cannot but be secular in content and would not be applied otherwise. 13.Now, reverting to the impugned rule, it relates to payment of Death-cum-Retirement Gratuity (DCRG). Though etymologically, the word "gratuity" means a gift, especially for services rendered, or conferred for favours received, the evolution of the concept of gratuity in labour and service laws, going by the precedents as laid down by Apex Court and the different High Courts, has led to the recognition of “gratuity” as a legitimate claim which the employee may make. The object of providing a scheme for payment of gratuity is to ensure a parting financial benefit to the employee demitting after rendering long and unblemished service to the employer. It is no more a mere gift or a boon made by the employer to the employee, in terms of the sweet will of the employer. The metamorphosis of the OP28219/00 12 concept of "gratuity" has led to it being treated as a retiral benefit, which is more than a mere bounty and something that would form part of the legitimate expectations of an employee who makes orderly and efficient contribution to the establishment over a period of time. 14.The payment of salary and other entitlements due to a government servant, including the ultimate release of the DCRG, is made from the secular funds of the State. No distinction or classification on the basis only of religion, caste, creed or sex could sustain regarding the entitlement for the release of such funds. It is also impermissible to classify government servants on the basis only of religion or sex, for prescribing any modality for the release of such funds. As a necessary corollary, there can also be no reference to religion, caste, creed or sex of the person entitled to release of the DCRG as the dependent, heir or legal representative of a government servant who unfortunately dies in harness or dies after retirement, leaving behind a minor. There is no reasonable yardstick identifiable in terms of Part III of the Constitution, to provide legitimacy for any such classification as one based on an intelligible differentia, to term such classification as reasonable and permissible. OP28219/00 13 15.A more fundamental issue relating to the release of the DCRG is that the State or the Government could never be constitutionally conferred with the eligibility to conceive the classification of those entitled to be paid DCRG into different categories on the basis of religion, caste, creed or sex class of the person entitled to DCRG amount. This is because any such classification would be totally against the seminal equality doctrine enshrined in the Constitution, particularly in Article 14 thereof. If the government servant entitled to DCRG dies in harness, the identity of the person entitled to receive the DCRG due to the deceased employee has to be considered on the basis of heir- ship, representation of the estate and other relevant conditions, if any prescribed. Eligibility for payment of dependency related pension and such other reliefs would be on the basis of prescribed eligibility criteria, which would be nothing but only secular and materialistic matters, without reference to the religion only, of the person entitled to payment. Insofar as it concerns the entitlement of the heirs or legal representatives of the deceased government servants to DCRG amount, payment of such funds also forms part of the right to life and therefore, tends to fall within the pale of the guarantee under Article 21 of the Constitution. Can there be any classification relatable to such right? If at all, could there be such classification, on the basis only of religion, sex etc? The irrefutable answers to these OP28219/00 14 queries are in the negative. That there can be no classification solely on the ground of religion or sex, among those entitled to DCRG and other benefits referable to a deceased government servant, is therefore, irresistible a conclusion. 16. In Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, the Apex Court quoted United States v. Virginia, 518 US 515 (1996), stating that sex classifications may be used to compensate women for particular economic disabilities they have suffered; to promote equal employment opportunity; to advance for development of the talent and capacities of our nation's people, but that, such classification may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women. 17. The Apex Court reminded in Vikaram Deo Singh Tomar v. State of Bihar, 1988 Supp SCC 734, that: “2. India is a welfare State governed by a Constitution which holds the pride of place in the hearts of its citizens. It lays special emphasis on the protection and well being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions. It shows a particular regard for woman and children, and notwithstanding the pervasive ethos of the doctrine of equality it contemplates special OP28219/00 15 provision being made for them by law. This is only to be expected when an enlightened constitutional system takes charge of the political and socio-economic governance of a society, which has for centuries witnessed the relegation of women to a place far below their due. We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen.” 18. The world has witnessed a sea change. The right of equality of women vis-a-vis their male counter parts is accepted worldwide. It will be immoral to discriminate a woman on the ground only of sex, since it is forbidden both in the domestic laws, as also international law. – See John Vallamattom (supra). 19. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity. To become a mother is the most natural phenomenon in the life of a woman. – See Municipal Corpn. of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224. 20.Now, Article 15(1) of the Constitution provides that the State shall not discriminate against any citizen on grounds only of OP28219/00 16 religion, race, caste, sex and place of birth or any of them. The operational sphere of Article 15(3) excludes a challenge against any special provision being made for women and children as violative of Article 15(1). The cue to be gathered from this, is that even if the State may make any special provision for women, it shall be in their favour; to promote their entitlement to equality of status and of opportunity and in ensuring them social, economic and political justice and assuring the dignity of women as individuals. Such a provision could only be in furtherance of the constitutional goal of social, economic and political justice; equality of status and of opportunity as envisaged even in the Preamble to the Constitution. It cannot be to the contrary. In terms of Article 38(1), the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The requirement emphasised in Article 38(2) is that the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities etc. among individuals and groups and provide the focus for State action to obtain the situation, among other, of gender equality. The constitutional vision in that regard is to ensure the onward march of the Nation, by equalising wherever there are situations of deficiencies on OP28219/00 17 account only of belonging to a particular class to be identified so, either on account of sex, religion, race, place of birth or age or any of them. It can never be to be discriminated against, on the ground only that the said citizen is a woman. Still further, the insulation from discrimination on the ground only of religion or race operates even if a permissible classification could be founded on the ground of sex, for any purpose. Therefore, though a compatible application of clauses 3, 4 and 5 of Article 15 may authorise the making of a special provision in favour of a class, say, of women or children for the purpose of extending to them the benefits which are required to satiate the constitutional objects sought to be achieved by those clauses of Article 15, there cannot be any classification among women solely on the ground of religion. Nor could there be any classification among children solely on the ground of religion. 21. The fundamental duties of every citizen under Article 51A in Part IVA of the Constitution include the duty to renounce practices derogative to the dignity of women. While Directive Principles of State Policy are guiding beacons, Fundamental Duties are enumerated in Article 51A by stating that “it shall be the duty of every citizen of