IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16112 of 2005 Date of Decision: 06.12.2010 Ms. Navjot Sohal and another ........Petitioners Versus State of Punjab and others .......Respondents CORAM:- HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE RANJAN GOGOI 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Sarwan Singh, Senior Advocate with Mr. N.S.Rapri, Advocate for the petitioners. Mr. Rajesh Bhardwaj, Additional Advocate General, Punjab. ****** MUKUL MUDGAL, C.J. (ORAL) Primarily this writ petition was filed for seeking direction to the respondents to grant 75 liters of petrol per month on uniform basis with salary to the Judicial Officers in lieu of the pool Cars provided at the district level and to other Judicial Officers posted at Sub Divisional level with effect from April 1, 2002 and (ii) to grant Leave Travel Concession to the husband of the petitioners permissible under instructions dated 06.10.2000 and also to grant all other necessary and reasonable benefits admissible in exigency of service and to allow the just and fair demands of the petitioners and other subordinate judicial officers. However, at the time of admission of the writ petition, learned counsel appearing for the petitioners stated that all other reliefs sought by the petitioners in the writ petition other than the Leave Travel Concession had been released to them, therefore, the issue of grant of Leave Travel Concession only remained pending which issue has been taken up today. Civil Writ Petition No.16112 of 2005 -2- The case set up for grant of Leave Travel Concession is that the said allowance is being granted to all government employees and their families as per Notification dated 06.10.2000 on the pattern of Government of India. The definition of the family has been given in that notification as under:- “1. According to it, wife or husband of the Government employee as the case may be and unmarried living children or fully dependent/adopted children of the Govt. employee, as to whether they are living with the Govt. employee or not included in the family. 2. Married daughters, those who are divorced, deserted or separated from their husbands and are living with the Govt. employees and fully dependent on the Govt. employee. 3. Father and mother and step mother who are living with the Govt. employee and fully dependent on him. 4. Unmarried minor brothers and unmarried divorced/deserted, separated from their husband and widow sisters those who are living with the Govt. employee and fully dependent on him and provided their parents are not alive or they are not themselves Govt. employees. Explanation: Condition of two children or adopted children for the facility of LTC is not applicable in the following cases:- 1.(i)Those employees who have more than two children before imposing of this condition i.e. 20.10.97. (ii) Children born within a year from the imposing of this condition. (iii)Where the number of children is more as a result of pregnancy. 2. For the purpose of these rules, condition of family does not include more than one wife. Even two legal wives of the Govt. employee provided the second marriage was solemnized with the special permission of the Govt. only then second wife is included in the definition of 'family'. 3. Even though wife/husband and children are not Civil Writ Petition No.16112 of 2005 -3- required to be residing with the Govt. employee for their entitlement for LTC but their LTC in fact will be limited for the distance upto the headquarter/place of posting and going to the home town which ever is less. 4. Divorcee, deserted wife, children of the sisters who are separated from their husband or widowed sister are not included in the definition of the family. 5. Any member of the family whose income from all sources inclusive of pension, temporary increase without dearness allowance, stipend etc. should not be more than Rs.1500/- per month, then he is considered to be dependent upon the Govt. employee. 6. These instructions will be applicable with effect from 1st October, 1998. 7. These instructions be brought into the notice of all the employees. 8. These instructions have been issued with the concurrence of Finance Department vide their Endst. No.F.P.No.6/25/14-2 with Finance Personal (4) dated 1/ 6.12.99.” Along with the reply filed by respondent No.1, a copy of letter dated 18.05.2006 has been appended wherein it is stated that the State Government has already sanctioned the Leave Travel Concession/Home Travel Concession to the Judicial Officers. In the reply, no averment has been made whether the Leave Travel Concession has been granted to the spouses of female Judicial Officers also and in case not what are the reasons for not allowing the same to them. On 07.10.2010, learned counsel for the State had sought time to seek instructions about the applicability of the Rules to all the serving officers of the Punjab including Civil Services Officers. Today, learned counsel appearing for the State prayed for further time to seek instructions. We are not inclined to grant the time because the issue raised in the writ petition only pertains to discrimination on the basis of Civil Writ Petition No.16112 of 2005 -4- gender, as this issue has already been settled by the Hon'ble Supreme Court and the various High Courts. Learned Senior counsel Mr. Sarwan Singh, Advocate appearing for the respondents contended that as per instructions dated 06.10.2000, the facility of L.T.C., which has also been extended to the Judicial Officers, all the government employees, whose spouses are not serving in any other department or government institutions, whereas the female Judicial Officers, this facility is not being extended in the case of their husband/spouses, who are not working in any government department. Learned counsel for the petitioners further contended that L.T.C. ought to have been granted to the female Judicial Officers at par with the male Judicial Officers who are entitled to get that concession for their spouses and no gender based discrimination should be allowed. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the law within the territory of India whereas Article 16(2) of the Constitution of India provides that 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. The question of gender based discrimination was dealt with by the Hon'ble Supreme Court in the case of M/s. Mackinnon Machenzie and Co. Ltd. v. Audrey D'Costa and another, AIR 1987 Supreme Court 1281 and held as under:- “It, however, ought not to make any difference for purposes of the application of the Act when once it is established that the lady Stenographers were doing practically the same kind of work which the male Stenographers were discharging. The employer is bound Civil Writ Petition No.16112 of 2005 -5- to pay the same remuneration to both of them irrespective of the place where they were working unless it is shown that the women are not fit to do the work of the male Stenographers.” Thereafter, this question was again considered by the Hon'ble Supreme Court in Madhu Kishwar and others v. State of Bihar and others: AIR 1996 Supreme Court 1864 where while dealing with Hindu Succession Act, it was held as under:- “When women are discriminated only on the ground of sex in the matter of intestate succession to the estate of the parent or husband, the basic question is whether it is founded on intelligible differentia and bears reasonable or rational relation or whether the discrimination is just and fair. It can be answered as no and emphatically no.” Following the dictum of Hon'ble Supreme Court in above referred two cases, the gender based discrimination was dealt with in detail by the Delhi High Court in Hotel Association of India and Ors. Versus Union of India (UOI) and Ors., 2006(86) DRJ 668. In that case, while deprecating the discrimination on the basis of sex, the Delhi High Court recorded the following findings. “x x x x x x x x Learned counsel appearing for the petitioners has relied upon the following judgments:- “(i) Air India v. Nargesh Mirza and Ors.: (1981)IILLJ314SC, wherein it was held that fixing of a lower retirement age for the air hostess, in comparison with their male counterparts is vocative of the principle of equality of employment enshrined in Article 16(1) of the Indian Constitution. (ii) Randhir Singh v. Union of India and Ors.: (1982) ILLJ344SC , wherein it was held that 'Equal Pay for Equal Work' is not a mere demagogic slogan but a constitutional goal capable of attainment through constitutional remedies by the enforcement of constitutional rights. (iii) D.S. Nakara and Ors. v. Union of India : (1983) ILLJ104SC , wherein it was held that Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women. Civil Writ Petition No.16112 of 2005 -6- (iv) Makinnon Machenzie and Co. Ltd. v. Audrey D'Costa: (1987)ILLJ536SC , wherein the Court adopted the principles incorporated in the Equal Remuneration Convention, 1951 to which India is a party, to hold that the act of paying lower emoluments to the lady stenographers than their male counterparts was vocative of the Equal Remuneration Act, 1976. (v) Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr.: (2000)ILLJ846SC , wherein the Hon'ble Supreme Court observed as under: Not long ago, the place of a woman in rural areas has been traditionally her home, but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. (vi) Madhu Kishwar v. State of Bihar: AIR1996SC1864 , wherein the Supreme Court has held that the women have the right to equality and elimination of discrimination based on gender. (vii) Suresh v. State of Kerala W.A. No. 1714 of 2003, wherein the Kerala High Court upheld the provisions of the Kerala Panchayat Raj Act on the ground that the impugned provisions were in furtherance of the Constitutional objective of ameliorating the plight of women and ensuring their equal representation in elected bodies.” The Convention on the Elimination of All Forms of Discrimination Against Women to which India is a party, read as under:- Article 5 .... (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women Article 11.... (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment. The National Policy for Empowerment of Women, 2001 Civil Writ Petition No.16112 of 2005 -7- (hereinafter referred to as the National Policy) also inter alias lays down the following principles: i) Create an environment through positive economic and social policies for full development of women to enable them to realize their full potential. ii) The de jure and de facto enjoyment of all human rights and fundamental freedoms by women on equal basis with men in all spheres. iii) Strengthening of legal systems aimed at elimination of all forms of discrimination against women. iv) Changing societal attitudes and community practices by active participation and involvement of both men and women. x x x x x x x x Article 39(a) of the Constitution reads as under:- 39. Certain principles of policy to be followed by the State.-- The State shall, in particular, direct its policy towards securing-- (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; x x x x x x x x In Madhu Kishwar v. State of Bihar (supra) the Hon'ble Supreme Court has held that the women have the right to equality and elimination of discrimination based on gender. Further, the 1st World Conference on women, held in Mexico, in the year 1975 identified three objectives which would become the basis for the work of the U.N. On behalf of women. These three objectives were : Full gender equality & elimination of gender discrimination. x x x x x x x x Para 12 of the 3rd World Conference on Women, held in Nairobi, in the year 1985 and with paras 8 and 12 of the Beijing Declaration, at the 4th World Conference on Women, held in Beijing, in 1995. Para 12 of the 3rd World Conference on Women, 1985 reads as follows:- The role of women in development is directly relating to the goal of comprehensive social and economic Civil Writ Petition No.16112 of 2005 -8- development and is fundamental to the development of all societies, Development means total development, including development in political, economic, social cultural and other dimensions of human life, as well as development of economic and other material resources and the physical, moral, intellectual and cultural growth of human beings. x x x x x x x x Paras 8 and 12 of the Beijing Declaration read as follows:- 8. The equal rights and inherent human dignity of women and men and other purposes and principles enshrined in the Charter of the United Nations to the Universal Declaration of Human Rights and other international human rights instruments, in particular the Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the child, as well as the Declaration on the Elimination of Violence against Women and the Declaration on the Right to Development; 12. The empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual needs of women and men individually or in community with others and thereby guaranteeing them the possibility of realizing their full potential in society and shaping their lives in accordance with their own aspirations. x x x x x x x x Article 15 of the Constitution of India reads as follows: 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.--(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to-- (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. Civil Writ Petition No.16112 of 2005 -9- (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The provisions of Article 15(1) of the Constitution are also violated as discrimination on grounds of sex is forbidden by Article 15(1). Article 15(3) of the Constitution permits the State to make a special provision for women and children and the respondents have sought to justify the impugned Section 30 as a special provision under Article 15(3). However, we are of the view that any special provision made under Article 15(3) must satisfy the stand of constitutionality. Article 15(3) is merely a constitutionally enabling provision which permits the State to make special provisions for women and children which special provision must nevertheless be constitutionally permissible. In our view, Article 15(3) of the Constitution is an enabling provision and the mere enactment of a law under Article 15(3) does not render it immune from the challenge of unconstitutionality. In fact we find that Section 30 purporting to be a special provision, has today become a hindrance and impediment to women's careers in hospitality industry. Thus Section 30 violates Article 15(1) also and is not saved by Article 15(3) as we have found the provision to be vocative of Article 19(1)(g) and Article 14, 22. In so far as the Constitutional validity is concerned, there cannot be any estoppel as contended by the respondent that having accepted the L-1 license to trade in liquor, the petitioners were estopped from challenging the conditions imposed for the exercise of such right. Firstly there can be no estoppel in respect of constitutional rights.” We reiterate the above view of the Delhi High Court. In this case also, the respondent No.1 has failed to establish on record why the female Judicial Officers who are performing the same functions as are being performed by the male Judicial Officers, who are getting Leave Travel Concession for their non-working spouses, are being denied the said concession. It is not in dispute in this case that female Judicial Officers do not constitute any class apart Civil Writ Petition No.16112 of 2005 -10- than the male Judicial Officers. The differentia created is without any nexus to be achieved and does not contain reasonable classification. Therefore, it is not sustainable in the eye of law. Following the law laid down by Hon'ble Supreme Court in Madhu Kishwar and others and M/s. Mackinnon Machenzie and Co. Ltd. (supra) and Delhi High Court in case Hotel Association of India and Ors. (supra) which judgment was incidentally upheld in the Hon'ble Supreme Court in a judgment reported as Anuj Garg and othersV/S Hotel Association of India and others,2008(3)SCC 1, the female Judicial Officers cannot be held dis-entitled to avail of Leave Travel Concession on the basis of gender based discrimination and, therefore, we need to restore parity in regard to Leave Travel Concession between the male and female Officers serving as Judicial Officers viz-a-viz other Civil Services Officers in the State of Punjab. Accordingly, we allow the writ petition and issue a writ of mandamus to the respondents-State of Punjab directing them to ensure parity in the benefit of Leave Traveling Concession between the male officers and the female officers. The needful shall be done by the State of Punjab not later than four weeks from today. The writ petition is allowed in the above terms and stands disposed of accordingly. (MUKUL MUDGAL) CHIEF JUSTICE (RANJAN GOGOI) JUDGE December 06, 2010 Gagan