IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02..3..2010 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN Writ Petition No. 3203 of 2006 and W.P.M.P. No. 3354 of 2006 G. Gunavathy ... Petitioner Vs. 1. The State of Tamil Nadu Rep. by Secretary to Government Energy Department Govt. of Tamil Nadu Chennai – 9 2. The Chairman Tamil Nadu Electricity Board N.P.K.R.R. Maaligai Electricity Avenue 800 Anna Salai, Chennai 3. The Chief Engineer (Personnel) Tamil Nadu Electricity Board 8th Floor, N.P.K.R.R. Maaligai 800 Anna Salai, Chennai 4. The Superintending Engineer Salem Electricity Distribution Circle Salem ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of mandamus directing the respondents Tamil Nadu Electricity Board to include the petitioner and other woman candidates who have been possessing Industrial Training Institute Electrician Trade Certificate Holders in the entire State of Tamil Nadu in the present recruitment drive for the posts of Helpers in the above Tamil Nadu Electricity Board. For Petitioner : Mr. T.M. Ramalingam For R1 : Mr. T. Seenivasan, AGP For RR 2 to 4 : No appearance https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by ELIPE DHARMA RAO, J.) The facts giving rise to filing of the present writ petition is as follows:- The petitioner, an Electrician Trade holder from Industrial Training Institute, Salem, has filed this writ petition in public interest. The petitioner after completing her course in Electrician trade, registered the same in the District Employment Office, Salem in 1998 which was subsequently renewed from time to time. According to her, in the Tamil Nadu Electricity Board (hereinafter referred to as "the Board"), due to non-filling of the post of Helpers / Electricians for the past 20 years, huge vacancies had arisen approximately to the extent of 22,815. It is the specific grievance of the petitioner that the Board, to recruit 2500 Helpers / Electricians, has chosen to call for from the category of "male" holding ITI Electrician Certificate, particularly who have registered in the concerned District Employment Office on or after 1989 thereby totally neglecting the female eligible candidates. This action on the part of the Board, according to the petitioner, is in violation of the reservation policy adopted by the Government. Since several women contract Helpers are working in the establishment in various circles all over the State, the action of the Board in rejecting the women on the ground of unsuitability would cause prejudice to the rights and interests of the womanhood in the general public. Pointing out the aforesaid aspects, the petitioner had made a representation to the fourth respondent, namely, the Superintending Engineer, in person, on 05.01.2006, but the same was not considered. Since the Chief Engineer in his letter dated 16.12.2005 has indicated that the suitability of the women candidates for the Helper post is not ensured and women candidates need not be requisitioned from the Employment Exchange and the 30% reservation provided for Women also need not be implemented, the petitioner has come forward with the present writ petition praying for issuance of Mandamus directing the Board to include the petitioner and other women candidates possessing requisite qualification to the post of Helpers in the present recruitment drive. 2. Though the writ petition is of the year 2006, no counter is filed by the respondents and, today, when the matter came up for hearing, there is no representation on behalf of the Tamil Nadu Electricity Board. 3. The writ petition is filed against the letter of the Chief Engineer (Personnel) addressed to the Chief Engineer (Distribution), Coimbatore Region dated 16.12.2005 with regard to the recruitment of Helpers, which is in continuation of the D.O. Letter dated 14.12.2005, under which instructions were given for the process of Direct Recruitment to the post of Helper category. In the https://hcservices.ecourts.gov.in/hcservices/ instructions issued, the petitioner, who is female candidate, is aggrieved by clause (iv), which reads as follows :- "iv) The suitability of the Women candidates for the Helper post is not ensured. Therefore, in the proposed recruitment Women candidates need not be requisitioned from the Employment Exchange and the 30% reservation provided for Women also need not be implemented, in view of the arduous nature of work." 4. After coming to know the aforesaid instructions, the petitioner has made a representation on 05.01.2006 to consider and appoint the female candidates for the post of Helper on the ground that female candidates were appointed earlier on contract basis. When no reply was given, the petitioner was constrained to approach this Court with the present writ petition. 5. Heard the learned counsel for the petitioner as well as the Addl. Government Pleader representing the State and perused the documents on record. 6. The case on hand is a clear example of gender discrimination perpetrated by the respondents, State organs, in denying equal opportunity to the women folk while filling up the huge number of vacancies of Helper posts in the Board.. 7. The battle for gender justice has been a long-drawn struggle. Gender-based discrimination reveals ugly face of the society which is prohibited under the Constitution of India. 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: “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.” 8. Article 16(2) prohibits discrimination only on sex. The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by the Honourable Apex Court. Article 15 deals with every kind of State action in relation to the citizens of this https://hcservices.ecourts.gov.in/hcservices/ country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles 15 (1) and 15(3) go together. In addition to Article 15(1), Article 16 (1), however, places certain additional prohibitions in respect of a specific area of State activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by clauses (3), (4) and (5) of Article 16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 — the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State. 9. The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15 (3). This power conferred under Article 15(3), is not whittled down in any manner by Article 16. Thus, 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 https://hcservices.ecourts.gov.in/hcservices/ of the opposite gender. But, 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. 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. 10. At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court in C.MASILAMANI MUDALIAR vs. IDOL OF SRI SWAMINATHASWAMI SWAMINATHASWAMI THIRUKOIL [(1996) 8 SCC 525], wherein a Three Judge Bench of the Honourable Apex Court has held: "Article 21 of the Constitution of India reinforces "right to life". Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that give meaning to a person's life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights." "... It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14 and 15of the Constitution of India...." 11. Under the Constitution, the State is mandated to eliminate gender discrimination. But, in the case on hand, the respondents have attempted to perpetrate the act of gender discrimination, by restricting the women candidates to apply for the post of Helper. No https://hcservices.ecourts.gov.in/hcservices/ reason whatsoever has been offered on the part of the respondents to arrive at the conclusion that the suitability of the women candidates for the helper post is not ensured and therefore to hold that the 30% reservation provided for women need not be implemented in view of the arduous nature. But, the only reason appears to be the arduous nature of work. When the contention of the petitioner that several women contract Helpers are working in the establishment in various circles all over the State, restraining their claim for appointment to the permanent post of Helper on the ground that it involves arduous nature of work, cannot at all be appreciated since the same work is already being performed by women workers on contract basis. This action of the respondents definitely amounts to gender discrimination, and cannot be called as a reasonable restriction. 12. The main reason for the petitioner to come to this Court is the letter addressed by the Chief Engineer/Personnel of the Tamil Nadu Electricity Board to the Chief Engineer/Distribution, Coimbatore, dated 16.12.2005, which was issued for recruitment of candidates for the year 2005. Unfortunately, in the present writ petition, the said order is not under challenge. Moreover, from the submissions made, it is obvious that the recruitment called for in the 2005 is over. 13. The First Bench of this Court, by order dated 14.3.2006 passed the following order:- "At the request of the learned counsel for the Electricity Board, the matter is adjourned by two weeks. In the meantime, the selection process may go on, but the orders of appointment shall not be issued." 14. From the aforesaid order, it is apparent that the selection would not have been made on the basis of the letter of the Chief Engineer and the appointment orders are yet to be issued. The rights of women as individuals rest beyond doubt in this age. In the present days, in order to survive and to feed their families, women work as Auto Drivers, Rickshaw-Pullers and even as wiremen on contract basis. Therefore, in order to eliminate the evil of gender discrimination, attempted to be perpetrated by the respondents in their impugned action, we consider it appropriate to direct the respondents to consider the representation of the petitioner dated 05.01.2006, in the light of our above observations, for considering the female candidates for selection to the post of Helper as it was done earlier by following the contract method and to consider not only the case of the petitioner but also all the women candidates with ITI Certificate, who are otherwise qualified, to be appointed on par with the male members. https://hcservices.ecourts.gov.in/hcservices/ With the above observations, the writ petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1. The Secretary to Government State of Tamil Nadu Energy Department Govt. of Tamil Nadu Chennai – 9 2. The Chairman Tamil Nadu Electricity Board N.P.K.R.R. Maaligai Electricity Avenue 800 Anna Salai Chennai 3. The Chief Engineer (Personnel) Tamil Nadu Electricity Board 8th Floor, N.P.K.R.R. Maaligai 800 Anna Salai Chennai 4. The Superintending Engineer Salem Electricity Distribution Circle Salem +1 CC to The Government Pleader Sr.14567 +1 CC to Mr.T.M.Ramalingam Advocate Sr.14199 W. P. No. 3203 of 2006 RJ (CO0 BMD 31/03/2010 https://hcservices.ecourts.gov.in/hcservices/