Prohibition of employment based on gender is violative of Articles 14 and 15 of the Constitution of India.

1. The petitioners in these writ petitions are challenging the constitutional validity of Clause No.37 of Rule 7 contained in Chapter VI of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as 'the Rules') and the Licence Condition No. 36 of the Foreign Liquor Rules. It is stated that the petitioners are persons, who had participated in the selection and had been included in the ranked list for appointment to the post of peon/helper in the Kerala State Beverages (Manufacturing & Marketing) Corporation Ltd. (hereinafter referred to as 'the Corporation'). By virtue of the condition contained in Rules and Government Orders to the effect that no women shall be employed in any capacity in a toddy or foreign liquor-1 shop, the petitioners were not given appointment in their turn in the vacancies which arose in the shops under the Corporation. In W.P.(C).No.12956 of 2014, there is an additional challenge against the condition contained in the notification issued by the Kerala Public Service Commission to the effect that women will not be entitled to appointment in shop vacancies.

2. Heard learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel appearing for the Corporation as well as the Kerala Public Service Commission.

3. The learned counsel for the petitioners would place reliance on the decisions of the Apex Court reported in Anuj Garg and others v. Hotel Association of India and others [(2008) 3 SCC 1], Government of A.P. v. P.B. Vijayakumar and another [(1995) 4 SCC 520] and Charu Khurana and others v. Union of India and others [(2015) 1 SCC 192], and of this Court in Rajamma v. State of Kerala [1983 KLT 457] and Dhanyamol v. State of Kerala [2015 (4) KHC 791] to contend that the condition contained in the Rules making a hostile discrimination against women candidates is bad in law. After considering the constitutional and statutory provisions as well as the case law on the point, the Apex Court came to the conclusion that restrictions based on sex cannot stand the scrutiny of law and that such prescriptions stating that women cannot be employed in the premises in which liquor or intoxicating drugs are consumed by the public are violative of the mandate of Articles 14 and 15 of the Constitution of India. Taking a similar view, similar provisions of law have been struck down by this Court as well.

4. The learned Government Pleader would submit that Rule 7 (37) of general conditions in the Rules pertains to both toddy shops as well as foreign liquor-1 shops. Rule 2(c) of the said Rules defines a toddy shop as distinct from a foreign liquor shop or outlet which is separately defined in Rule 2(k). The petitioners in these writ petitions are concerned only with appointments in foreign liquor shops run by the respondent Corporation and they are unconcerned with the restrictions on employment of women in toddy shops. It is therefore submitted that the question of legal validity of the rule regarding appointment of women in toddy shops does not arise for consideration in these writ petitions and therefore the validity of the Rule to the extent it applies to toddy shops should not be considered in these writ petitions.

5. The learned counsel for the respondent Corporation would submit that all male candidates in the main list have been appointed from the ranked list. It is submitted that without such candidates, who have already been appointed being on the party array, an order directing the appointment of all female candidates from the ranked list cannot be issued, since such a direction may result in some of the advised candidates being thrown out of service.

6. I have considered the contentions advanced on all sides. In W.P.(C).No.8958 of 2015, the prayer is against the provisions contained in the Kerala Abkari Shops Disposal Rules, 2002, the Foreign Liquor Rules and Exhibit P2 Government Order to the extent they prohibit the engagement of women in foreign liquor s