HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 4176/1998

Ashish Arora S/o Late Shri Brij Ballabh Arora, aged about 20

years, R/o M-28, Ram Nagar, Sodala, Jaipur.

----Petitioner

Versus

Rajasthan State Electricity Board, through its Chairman, Vidyut

Bhawan, Jyoti Nagar, Jaipur.

----Respondent

Connected With

S.B. Civil Writ Petition No. 3349/2004

Dipendra Singh Mehta S/o Late Shri Bhupal Singh, R/o Plot

No.81, Moti Nagar, Jaipur.

----Petitioner

Versus

The Chairman, Jaipur Vidyut Vitaran Nigam Limited, Vidyut

Bhawan, Jyoti Nagar, Jaipur.

----Respondent

For Petitioner(s) : Mr. Punit Singhvi

For Respondent(s) : Mr. Aveesh Mourya for

Mr. H.C. Mourya

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Reserved on : 04/4/2023

Pronounced on : 26/04/2023

Reportable

Judgment

(1) Both these petitions involve common question of law

and facts, hence with the consent of all the parties, arguments

have been heard together to decide these petitions by this

common order.

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(2) The issue involved in these petitions is “whether the

respondent can make gender discrimination on the basis of being

male or female?”.

(3) By way of filing these petitions, the petitioners are

challenging validity of the order dated 17.10.1996 issued by

Rajasthan State Electricity Board (for short “RSEB”), which reads

as under:-

“According to the provisions of order

No.RSEB/AS/Rectt./F.407/D.823 dated 23.8.95 the

persons possessing qualification of high school or above

are being appointed on preferential basis to the post of

LDC or any other equivalent post. Looking to the large

number of persons already working in clerical side, the

matter was reconsidered by the M.I.M’s in their meeting

held on 19.8.96 and it was decided that :-

a) The persons (Male) possessing qualification of high

school and above but below graduation be appointed as

Helper-I and posted at 33 KV Sub-Station and line works

etc. Only Graduate persons (Male) be appointed as

C.C.C. (Consumer Complaint Clerk).

b) The persons (Female) possessing qualification of

high school and above will continue to be appointed as

LDC.”

(4) Counsel for the petitioners submitted that petitioner

Ashish Arora was appointed on compassionate ground, on account

of his father’s death while in service, and petitioner Dipendra

Singh Mehta was appointed in place of his mother, who quit job

under the “Golden Hand-shake Scheme”. Counsel submitted that

the petitioners were having the requisite qualification (i.e.

Secondary School Examination pass) for getting appointment on

the post of Lower Division Clerk (for short “LDC”) as per Rule

10.1(A)(2) of the Rajasthan State Electricity Board Ministerial

Staff Regulations, 1962 (for short “Regulations 1962”), but even

then, they were given appointment on the post of Helper Gr.I on

the basis of the order dated 17.10.1996, while similarly situated

female candidates were given appointment on the post of LDC.

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Counsel submitted that reason of causing discrimination was the

large number of male candidates in comparison to female

candidates. Counsel submitted that no discrimination can be done

on the basis of sex, and such action of the respondent has

violated the fundamental rights of the petitioners contained under

Article 14 of the Constitution of India. Counsel submitted that

during pendency of these petitions, the petitioners were given

appointment on the post of LDC in the year 2006 through regular

selection process, hence the respondent be directed to provide the

benefits of the post of LDC to the petitioners with effect from their

initial date of appointment.

(5) Per contra, the counsel for respondent opposed the

arguments raised by the counsel for petitioners and submitted

that looking to large number of male candidates, appointment was

given to them on the post of Helper Gr.I and looking to less

number of female candidates, appointment was given to them on

the post of LDC. He further submitted that these petitions have

become infructuous because appointment has already been given

to the petitioners on the post of LDC during pendency of these

petitions, hence interference of this court is not warranted.

(6) Heard and considered the submissions made at the Bar.

(7) This fact is not in dispute that Regulation 10 of the

Regulations 1962 deals with Academic Qualification for the post of

LDC and the same is read as under :-

“2. A candidate for direct recruitment to the Lower

Division Clerks post must have passed Secondary

Examination of the Rajasthan University or Education

Board or a corresponding Examination of the same or any

other University or any other examination recognized as

equivalent by the Board for the purpose of these

Regulations and must possess a working knowledge of

Hindi written in Devnagri Script.

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That he must know Hindi or English Type-writing having a

speed of 30 w.p.m. in Hindi or 40 w.p.m. in English,

respectively.

Note:-”The type test speed limit for LDCs or equivalent

appointed on compassionate grounds shall be 20 words

per minute in Hindi and 25 words per minute in English at

par with the type limits fixed by the Language

Department, GoR.”

(8) Perusal of Regulation 10.2 indicates that a candidate for

direct recruitment to the post of LDC must have passed Secondary

School Examination. This Regulation/Rule nowhere makes a

discrimination between male and female candidates.

(9) Article 14 of the Constitution of India prohibits the

State from denying any person equality before the law or equal

protection of the laws. Article 16 is of application as a general

Rule of equality as laid down in Article 14, with special reference

to opportunity for appointment and employment under the State.

Article 15(1) prohibits discrimination on the ground of religion,

race, caste, sex or place of birth. It is an extension of Article 14,

which expresses application of principle of equality. Therefore, no

citizen shall be discriminated on the grounds of religion, race,

caste, sex or place of birth. Article 16 takes its root from Article

14 and ensures equality of opportunity in the matters of

employment under the State. Therefore, the fundamental right to

equality means that persons in like situations, under like

circumstances, should be treated alike.

(10) Article 14 of the Constitution of India ensures equality

and its main object is to protect persons similarly placed against

discriminatory treatment. The equality before law guaranteed

under Articles 14, 15 and 16 of the Constitution of India is a

constitutional admonition against both the legislative and

executive organs of the State. Therefore, neither the legislature

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nor the Rule making Authority can make a law or a Rule, issue any

guidelines/circulars/administrative instructions, which would be in

violation of Articles 14 and 15 of the Constitution of India.

(11) The issue in the case at hand does not concern a

statute, but a guideline in the form of a policy; a policy in the form

of a guideline, it is therefore, on a lower pedestal than that of a

statute. If statutes are held to be violative of the tenets of Article

14 of the Constitution of India by the Constitutional Courts for the

reason that it depicts discrimination resulting in gender bias, a

guideline in the form of policy would pale into insignificance, if it

portrays such discrimination, even to its remotest sense.

(12) The afore-analyzed factual expose and the legal

exposition would lead to an unmistakable conclusion that the

guideline portrays discrimination on the basis of gender and

cannot be permitted to remain as a guideline. Therefore, the

guidelines will fly on the face of the tenets of Articles 14, 15 and

16 of the Constitution of India. If any Rule/Policy/Guideline, which

would be in violation of the Rule of equality, such

Rule/Policy/Guideline can be obliterated, as being unconstitutional.

(13) In Air India Cabin Crew Assn. v. Yeshaswinee Merchant

(2003) 6 SCC 277, the Hon’ble Supreme Court has held that

discrimination only on the basis of sex is not permissible subject

to one exception and observed as under:-

“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 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

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regulation based on the agreements and settlement fixing

lower retirement age of air hostesses was not struck

down. The constitutional prohibition to the State not to

discriminate citizens only on sex, however, does not

prohibit a special treatment to the women in employment

on their own demand..............”

(14) Further, the Hon’ble Supreme Court, in the case

of Charu Khurana v. Union of India (2015) 1 SCC 192, while

considering the question of gender justice, at paragraphs

33 and 41 observed as under:

“33. ... On a condign understanding of clause (e),

it is clear as a cloudless sky that all practices

derogatory to the dignity of women are to be

renounced. Be it stated, dignity is the

quintessential quality of a personality and a

human frame always desires to live in the mansion

of dignity, for it is a highly cherished value. Clause

(j) has to be understood in the backdrop that India

is a welfare State and, therefore, it is the duty of

the State to promote justice, to provide equal

opportunity to all citizens and see that they are not

deprived of by reasons of economic

disparity. It is also the duty of the State to frame

policies so that men and women have the right to

adequate means of livelihood. It is also the duty of

the citizen to strive towards excellence in all

spheres of individual and collective activity so that

the nation constantly rises to higher levels of

endeavour and achievement.

xxx xxx xxx

41. The aforesaid pronouncement clearly spells out

that there cannot be any discrimination solely on

the ground of gender. It is apt to note here that

reservation of seats for women in panchayats and

municipalities have been provided under Articles

243(d) and 243(t) of the Constitution of India. The

purpose of the constitutional amendment is that

the women in India are required to participate

more in a democratic set-up especially at the

grass root level. This is an affirmative step in the

realm of women empowerment. The 73rd and 74th

Amendments of the Constitution which deal with

the reservation of women has the avowed purpose,

that is, the women should become parties in the

decision-making process in a democracy that is

governed by the rule of law. Their

active participation in the decision-making process

has been accentuated upon and the secondary role

which was historically given to women has been

sought to be metamorphosed to the primary one.

The sustenance of gender justice is the cultivated

achievement of intrinsic human rights. Equality

cannot be achieved unless there are equal

opportunities and if a woman is debarred at the

threshold to enter into the sphere of profession for

which she is eligible and qualified, it is well-nigh

impossible to conceive of equality. It also clips her

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capacity to earn her livelihood which affects her

individual dignity.”

(15) In the matter of National Legal Services

Authority v. Union of India (2014) 5 SCC 438, the Supreme

Court recognized that gender identity is an integral part of

sex within the meaning of Articles 15 and 16 of the

Constitution of India and no citizen can be discriminated on

the ground of gender. The Supreme Court observed as

follows:

“We, therefore, conclude that discrimination on the

basis of sexual orientation or gender identity

includes any discrimination, exclusion, restriction

or preference, which has the effect of nullifying or

transposing equality by the law or the equal

protection of laws guaranteed under our

Constitution, and hence we are inclined to give

various directions to safeguard the constitutional

rights of the members of the TG community.”

(16) The aforesaid pronouncement clearly spells out that

there cannot be any discrimination solely on the ground of gender.

Article 14 of the Constitution provides that the State shall not

deny to any person equality before law or equal protection of law.

Article 16(1) of the Constitution provides that there shall be

equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State and

Article 16(2) of the Constitution further provides that no citizen

shall on the 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. A reading of the aforesaid provisions of Articles

14 and 16 of the Constitution would show that in matters of

recruitment to employment, the State will not discriminate

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between men and women and that a citizen will not be ineligible

for employment or office under the State on the ground of sex

only.

(17) In the light of aforesaid decisions and constitutional

provisions, exclusion of Male candidates for getting compassionate

appointment on the post of LDC is based solely on gender

discrimination and the same is also in violation of Clause 10.2 of

the Regulations 1962. In other words, the classification is not

based on any rational interga having reasonable nexus with the

object sought to be achieved. The respondents cannot

discriminate the petitioners to get appointment on the post of LDC

merely because similar Female candidates were less in number in

comparison to Male candidates.

(18) Thus, in view of the authoritative judgments of the

Hon’ble Apex Court, the impugned order dated 17.10.1996 is held

to be violative of Articles 14 and 16 of the Constitution of India

and accordingly the same is hereby quashed and set aside.

(19) The writ petitions stand allowed. The respondent is

directed to count the services of petitioners on the post of LDC

with effect from their initial appointment on the post of Helper Gr.I

and grant them all consequential benefits within a period of three

weeks from the date of receipt of a certified copy of this

judgment.

(20) Before parting with this judgment, it is directed that on

account of quashing of the impugned order dated 17.10.1996, it

would not provide a cause of action to any candidate in future and

would apply to the cases which are pending before this court on

the date of this judgment only.

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(21) Stay application and other application(s), pending if

any, also stands disposed of.

(ANOOP KUMAR DHAND), J.

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