Discrimination based solely on sex is unconstitutional and violates fundamental rights guaranteed by the Constitution of India.

1. According to the petitioner, but for Ext. P4 Government Order dated 1-1-1974 she was entitled to. be promoted in the Police Department in she was working as Upper Division Typist till she was relieved from there pursuant to Ext Po order dated 1-11-1974 as Stenographer Grade II. This submission on her behalf by her learned counsel is sought to be substantiated by referring me to Ext. P5 seniority list of Typists in the Police Department who were qualified and willing for appointment as Stenographers, a list dated 30-10-1973. It is pointed out by the learned-counsel for the petitioner that Number 1 mentioned therein is the petitioner. Therefore the petitioner impugns Ext. P4 aforementioned as also Ext. P7 order dated 20-11-1974 whereby respondents 4 onwards along with one Sri. Jacob (he is admittedly senior to the petitioner in the cadre of U. D. Typists) were promoted as Stenographers Grade II in the Police Department. The contention is that Ext. P4 Government Order and the promotions given to respondents 4 onwards on the basis of Ext. P4 Government Order are violative of Art.14, 15 and 16 (1) and (2) of the Constitution of India.

2. It is not disputed before me on behalf of the respondents that but for Ext. P4 Government Order the petitioner was entitled to be promoted as submitted on her behalf and would have been promoted so. The submission on behalf of the respondents is that as stated in Ext. P4 order the vacancies in the Police Department in the cadre of Stenographers could not be filled up by promoting women typists "on public grounds". This basis of classification has been elaborated in Para.10 of the counter affidavit filed on behalf of the first respondent as follows:

"Moreover due to the peculiar nature of the work of the Stenographers of the department (touring along with the officers and working at odd hours) it was decided not to appoint ladies as Stenographers in the Police Department"

This is the only ground, according to the respondents, for the classification. The question to be considered is whether the classification as aforesaid for the purpose of promotion of U. D. Typists to the cadre of Stenographers can be sustained. Art.15 (1) of the Constitution directs that "the State shall not discriminate against any citizen on grounds only of religion race, caste, sex, place of birth or any of them". Clauses (1) and (2) of Art.16 reads as follows.

"16, (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,

(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."

The question therefore that arises for consideration is whether Ext. P4 Government Order is bad for the reason that there is discrimination against women only on the ground of sex so far as their being employed by promotion as Stenographers.

3. In Radha Charan Patnaik v State of Orissa and another (AIR. 1969 Orissa 237) the question arose as regards as provision to the effect that "no married woman shall be entitled as of right to be appointed to the Service and where a woman appointed to the service subsequently marries, the State Government may, if the maintenance of the efficiency of the service so requires, call upon her to resign" and the court examined the argument to the effect that the classification is not solely on the basis of sex but on the basis of sex coupled with the factum of marriage. Considering the contention as aforesaid that court said:

"The above reasoning, however, overlooks the aspect that in substance the disqualification of married women from being eligible for appointment amounts, in substance, to a disqualification on the ground of sex only and as such is violative of Art.14 of the Constitution. Marriage does not operate as a disqualification for appointment as a District Judg