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1970 Supreme(P&H) 39
PUNJAB & HARYANA HIGH COURT
R.S.Narula, R.S.Sarkaria and S.C.Mital JJ.
Shamsher Singh Hukam Singh
Versus
State Of Punjab
Civil Writ No. 1890 of 1966,
Decided On : FEBRUARY 19, 1970
Article 15(3) of the Constitution can be invoked to construe and determine the scope of Article 16(2), but only to the extent that the special provisions for women are reasonable and do not render illusory the constitutional guarantee against discrimination solely on the ground of sex.
Headnote:
CONSTITUTIONAL LAW - RIGHT TO EQUALITY - DISCRIMINATION ON GROUND OF SEX - ARTICLE 15(3) AND ARTICLE 16(2) - SCOPE AND APPLICABILITY - WHETHER ARTICLE 15(3) CAN BE INVOKED TO CONSTRUE AND DETERMINE THE SCOPE OF ARTICLE 16(2) - EXTENT AND KIND OF CASES WHERE ARTICLE 15(3) CAN BE INVOKED - REASONABLENESS OF SPECIAL PROVISIONS FOR WOMEN UNDER ARTICLE 15(3) - INTERPRETATION OF CONSTITUTIONAL PROVISIONS - PRINCIPLE OF HARMONIOUS CONSTRUCTION.
Fact of the Case:
The petitioner, a male Block Education Officer, challenged the grant of special pay to women Block Education Officers as discriminatory on the ground of sex and violative of Article 16(2) of the Constitution. The respondents contended that the special pay was granted on administrative grounds and did not amount to discrimination solely on the ground of sex, and that even if it did, it could be justified under Article 15(3) of the Constitution.
Finding of the Court:
The Court held that Article 15(3) can be invoked to construe and determine the scope of Article 16(2) of the Constitution, and that if a particular provision squarely falls within the ambit of Article 15(3), it cannot be struck down merely because it may also amount to discrimination solely on the ground of sex. However, only such special provisions in favor of women can be made under Article 15(3) which are reasonable and do not altogether obliterate or render illusory the constitutional guarantee enshrined in Article 16(2).
Issues: 1. Whether Article 15(3) can be invoked to construe and determine the scope of Article 16(2) of the Constitution? 2. If so, to what extent and in what kind of cases can Article 15(3) be invoked? 3. What is the scope and content of the exception in Clause (3) of Article 15? 4. Whether the special pay granted to women Block Education Officers was reasonable and justified under Article 15(3)?
Ratio Decidendi: 1. The Court held that Articles 14, 15, and 16 of the Constitution form a single code of constitutional guarantees, supplementing each other. Therefore, Clause (3) of Article 15 can be invoked to construe and determine the scope of Article 16(2). 2. The Court held that the scope and content of the exception in Clause (3) of Article 15 extend to the entire field of State discrimination, including that of public employment. Thus, Clause (3) of Article 15 is to be deemed as a special provision in the nature of a proviso qualifying the general guarantees contained in Articles 14, 15(1), 15(2), 16(1), and 16(2). 3. The Court held that special provisions for women under Article 15(3) should not give unreasonable benefit or protection, at the cost of men to women, which will make the constitutional guarantee against discrimination solely on the ground of sex enshrined in Article 16 nugatory.
Final Decision: The Court answered the question referred to it as follows: "Articles 14, 15 and 16, being the constituents of a single code of constitutional guarantees, supplementing each other, Clause (3) of Article 15 can be invoked for construing and determining the scope of Article 16(2). And, if a particular provision squarely falls within the ambit of Article 15(3), it cannot be struck down merely because it may also amount to discrimination solely on the ground of sex. Only such special provisions in favour of women can be made under Art 15(3), which are reasonable and do not altogether obliterate or render illusory the constitutional guarantee enshrined in Art 16(2)."
Sarkaria, J.
1. The question referred to this Full Bench is:
"whether the provisions of clause (3) of Article 15 can be invoked for construing and determining the scope of clause (2) of Article 16 of the Constitution, and if so, to what extent and in what kind of cases"?
2. Some material facts giving rise to this reference may first be noted:
Prior to the 12th of May, 1963, in the united State of Punjab, there were two branches of the Punjab Education Service, Non-gazetted (Class III) School Cadre, in the grade of Rs. 110-8-190/10-250. One was exclusively manned by men and the other by women. The members of both the Branches were either employed on teaching work or on inspection work. By a Memorandum No. 1965-ED-III (2E)-61/8123, dated 21st/27th March, 1961, the Government of Punjab granted special pay equivalent to 25 per cent of basic pay but not exceeding Rs. 50/- per month, to the Womens Branch, who were posted as Assistant District Inspectresses of Schools. Subsequently, (per Memorandum No. 1/49-63-Imp-Cell, dated 9th/10th April. 19G3) the Education Department in the field of School-cum-Inspection was reorganised. The Assistant District Inspectors and the Assistant District Inspectresses were designated as Block Education Officers and a unified cadre came into existence with effect from May 12, 1963, After the above reorganisation, the Block Education Officers, both males and females,. have to perform identical duties. Their scales and responsibilities are the same. The posts as between male and female Block Education Officers are interchangeable.
3. Shamsher Singh petitioner, a male Block Education Officer, has moved this Court by a petition under Article 226 of the Constitution, alleging that this amounts to discrimination solely on the ground of sex and, as such, is violative of Article 16(2) of the Constitution.
4. The stand taken by Respondents I and 2 in the written statement is that the women members of the service having been granted more pay on administrative grounds, such a grant does not amount to discrimination only on the ground of sex within the contemplation of Article 16(2); that even if it does, such a special provision could be justifiably made for women officers in view of clause (3) of Article 15 of the Constitution.
5. The Articles of the Constitution relevant for this discussion are 14, 15 and 16. They, along with Articles 17 and 18 (which deal with abolition of untouchability and titles, respectively) have been grouped together under the common caption "Right to Equality". They read as follows:-
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"Article 14, The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
Article 15. (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 only 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 the general public.
(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.
Article 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 respe
