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1966 Supreme(P&H) 129
PUNJAB & HARYANA HIGH COURT
Mehar Singh and A.N.Grover JJ.
H.M.Dhillon
Versus
State Of Punjab
Civil Writ No. 2439 of 1965,
Decided On : MAY 12, 1966
Transfer of an employee from one cadre to another solely on the ground of sex is discriminatory and violative of Article 16 of the Constitution.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 16 - EQUALITY OF OPPORTUNITY IN MATTERS OF EMPLOYMENT - DISCRIMINATION ON GROUND OF SEX - TRANSFER OF PETITIONER FROM MEN'S CADRE TO WOMEN'S CADRE - VIOLATION OF ARTICLE 16 - ORDER HELD VOID AND INEFFECTIVE.
Fact of the Case:
The petitioner, a member of P.E.S. Class I, challenged the order of the erstwhile Pepsu Government transferring her from the Men's cadre to the Women's cadre, alleging discrimination on the ground of sex in violation of Article 16 of the Constitution.
Finding of the Court:
The court held that the petitioner's transfer to the Women's cadre was solely based on her sex and was, therefore, violative of Article 16(2) of the Constitution. The court further held that the petitioner was entitled to be treated as belonging to the Men's cadre and to be given all the benefits and promotions that would have accrued to her had she not been transferred to the Women's cadre.
Issues: Whether the petitioner's transfer from the Men's cadre to the Women's cadre was discriminatory on the ground of sex and violative of Article 16 of the Constitution.
Ratio Decidendi: The court relied on the decision of the Supreme Court in General Manager Southern Railway v. Rangachari, wherein it was held that matters relating to employment include not only the initial act of employment but also all terms and conditions associated with and incidental to it, including promotion to a selection post. The court held that the petitioner's transfer to the Women's cadre adversely affected her chances of promotion to the selection grade and was, therefore, discriminatory.
Final Decision: The court allowed the petition and quashed the order transferring the petitioner from the Men's cadre to the Women's cadre. The court directed the respondents to treat the petitioner as belonging to the Men's cadre and to give her all the benefits and promotions that would have accrued to her had she not been transferred.
Grover, J.
1. The main point for determination in this petition under Articles 226 and 227 of the Constitution is whether the petitioner, who is a member of P.E.S. Class I, has been accorded discriminatory treatment only on the ground of sex in violation of the provisions of Article 16 of the Constitution.
2. The petitioner, who passed the M.Sc. examination in Botany of the Punjab University with distinction in 1941 and who was appointed a part-time Demonstrator in Botany Department of the Government College, Lahore in the same year, was appointed as a Lecturer in Biology in Brijindra College Faridkot, by means of an order dated 31st December, 1943 (Annexure A). After the formation of the erstwhile Pepsu State, a provisional seniority list was issued by the Pepsu Government on 24th May, 1949. This list was issued separately with regard to gazetted officer of the Education Department (Mens Branch) and (Womens Branch). The petitioners name appeared in the womens list at No. 1. She was transferred as Professor of Biology to Mahendra College, Patiala, in 1949 and was the only woman Professor on the staff of the College. According to the petitioner, she made a representation to the Pepsu Government against her having been placed in the Womens cadre which was accepted and the Director of Public Instruction, Pepsu, published a list of postings and nomination of gazetted officers of the Education Department (Annexure B). In this she appeared at No. 8 among the Heads of Departments in Colleges carrying a grade of 350-750. There was another lady Miss B. Kaku Singh who appeared in the same list at No. 9. A provisional seniority list of all the officers intergrated in Patiala and East Punjab States Union Education Service (PUES) Class I and Class II was issued by means of a memorandum dated 11th March, 1954 vide Annexures C and D. In this seniority list the name of the petitioner appeared under the head "Professors and Heads of Departments of the Colleges PUES Class I and this list apparently was of the cadre assigned to men because there was a separate cadre of women as is clear from page 4 of Annexure D. According to Annexure C, if any officer had an objection to the position assigned in the list to him or her, that could be submitted within a specified period. In the Extraordinary Gazette dated 25th September, 1954 the resolution relating to the final integration of the Education Service dated 23rd September, 1954 was published and it was stated that after a careful consideration of the appeals of the incumbents His Highness the Rajpramukh was pleased to resolve as follows :-
"(a) the scales of pay of different kinds of posts in the Patiala Union Education Service together with the sanctioned strength shall be as specified in Annexure I to this Resolution.
(b) Annexure II shows the list of officers integrated in different classes of the service with effect from Ist September, 1948 and their order of seniority".
It was further resolved that the orders regarding reconstruction of the cadre were to take with effect from 1st September, 1954. In Annexure II which was headed "Men" the petitioner was shown at No. 3 under Professors. The womens cadre was different and the name of the petitioner did not appear in that cadre. A notification was actually issued in the Extraordinary Gazette of 27th September, 1954 (Annexure F) showing the reconstruction and reorganisation of the P.U.E.S. Service and there also the name of the petitioner appeared at No. 2 in the list pertaining to the Mens Branch whereas the names under the Womens Branch were of ladies other than the petitioner.
3. According to the petitioner, in the erstwhile Pepsu State the Education Department had bifurcated the cadres of the Education Service - one being of men and the other of women - and that she had been placed in the cadre of men because she was always posted to and worked at mens college or institution. By means of a resolution dated 5th February, 1956 (Annexure "G
