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Gauhati High Court · body

2005 DIGILAW 261 (GAU)

Bahnisikha Chakma v. State of Tripura

2005-03-24

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. The petitioner is a woman Police Sub-Inspector since 18.8.1981 without a single promotion though she completed qualifying service of 8 years and passed the departmental examination which are essential pre-condition for becoming eligible to be considered for promotion to the post of Inspector of Police. Her grievance is that her junior male Sub-Inspector of Police like Ravi Charan Debbarma was promoted to the post of Inspector of Police on 16.3.1996 ignoring her case. She submitted representation on 25.11.1995 but she was informed by the respondent No. 2 that as there was no vacancy in the rank of Inspector of Police (Women) her representation could not be considered. She felt humiliated when she was placed under the junior officer who held higher post superseding her and this was a discrimination on the ground of sex violating the provision of the Constitution. Though the Recruitment Rules for Sub-Inspectors (Unarmed) notified on 18.2.1981 which are only feeder posts for Inspectors (Unarmed), do not contemplate any discrimination on the basis of gender, the doors to that wing have been closed by providing a discriminatory height requirement. The impugned notification dated 10.2.1984 (Annexure-R/5) provided that only Sub-Inspectors of Police (Unarmed Branch) and Sub-Inspectors of Women Police who have completed at least 8 years service in the grade and have passed pre-promotion examination shall be eligible for promotion as Inspectors in the respective wing. The words respective wing appearing in the impugned notification debar the women Police Sub-Inspectors from getting promotion to the posts of Inspector (Unarmed) though there exists no provision in the Recruitment Rules for Inspectors (Unarmed) that the posts were meant for male Sub-Inspectors only. Her prayer is to declare the impugned notification dated 10.2.1984 to the extent it restricts the promotion to the post of Inspector (Unarmed) from Sub-Inspector (Unarmed) only as invalid, unconstitutional and void. Her other prayer is to direct the respondent Nos. 1 and 2 to consider her promotion to the post of Inspector of Police and other higher posts. 2. The State respondents contested the case stating that a separate wing in the Police organization for women police only is a special provision for women which are quite consistent with the constitutional goal. Recruitment rules for several wings exist, i.e. Recruitment Rules for Sub-Inspectors of Police (women), for Sub-Inspectors of Police (Unarmed) and for Sub-Inspectors of Police (Armour) have been separately framed. Recruitment rules for several wings exist, i.e. Recruitment Rules for Sub-Inspectors of Police (women), for Sub-Inspectors of Police (Unarmed) and for Sub-Inspectors of Police (Armour) have been separately framed. Similar provisions for the posts of Inspectors in the respective rules have also been framed without any inter-mingling in the promotional procedure. The Sub-Inspectors of Police (Women) are the only feeder posts for Inspector of Police (Women). Similarly Sub-Inspectors of Police (Unarmed) are the feeder posts of Inspector of Police (Unarmed) and so on. The petitioner has not challenged those Recruitment rules, but has only assailed the notification dated 10.2.1984 by which the Governor promulgated the pre-promotion examination regulations for implementation of the requirements of the Recruitment rules for the posts of Inspectors which provide that 8 years service in the Sub-Inspector grade and passing of pre-promotion examination shall be the eligibility condition for promotion. These provisions in the impugned notification are consistent with the. Recruitment rules for the posts of Inspectors in Women wing and Unarmed wing which provide that promotion shall be only from the Sub-Inspectors of Police with 8 years service in the grade and passing of pre-promotion examination. Thus, the impugned notification having been not inconsistent with the recruitment rules, the same cannot be said to be unconstitutional. As regards her claim for promotion, the contention of the respondents is that there exists one post of Inspector which has been held by her senior and till any vacancy arises, she cannot be considered for promotion. The allegation that her juniors were promoted superseding her has been denied on the ground that none of the Sub-Inspectors (women) who is junior to her has superseded her and that the Sub-Inspectors in the Unarmed Branch which constitute a separate cadre cannot be equated or compared to her or other women Sub-Inspectors for the purpose of seniority or promotion. 3. I have heard Mr. S. Talapatra, learned senior Counsel for the petitioner and Mr. U.B. Saha, learned senior G.A. assisted by Mr. T.D. Majumder, learned advocate for the respondents. 4. Mr. 3. I have heard Mr. S. Talapatra, learned senior Counsel for the petitioner and Mr. U.B. Saha, learned senior G.A. assisted by Mr. T.D. Majumder, learned advocate for the respondents. 4. Mr. Talapatra advanced his argument that in the name of making special provisions for the women under Article 15(3) of the Constitution by way of framing separate Recruitment rules for the posts of Sub-Inspectors (Women) and Inspectors (Women), the doors to entry into the Sub-Inspectors (Unarmed) and Inspectors (Unarmed) have been practically closed for women creating thereby a hostile discrimination on grounds of sex. As per recruitment rules for Sub-Inspectors (Women) and Inspector (Women) there are only 3 posts of Sub-Inspectors and one post of Inspector which obviously restrict the promotion prospects to total absurdity. Though the Recruitment rules for the posts of Sub-Inspectors (Unarmed) do not show that the posts are meant for men only the fact remains that not a single woman Sub-Inspector has found place in this cadre, the reason being a subtle provision that only the height the candidate must be 167.64 cms which is relaxable upto 162.56 cms for ST candidates only, no relaxation has been provided for women candidates who are generally shorter in height than their male counterparts. By providing such a requirement of height for direct recruitment, the women have been virtually disqualified and as a result not a single woman could be appointed as Sub-Inspector (Unarmed). For the post of Sub-Inspector (Women) the required height is 1.606 mts. as provided in the relevant recruitment rules and that should have been provided in the recruitment rules for Sub-Inspector (Unarmed) as a relaxation provision for women. It would appear that there were 246 posts of Sub-Inspectors and 45 posts of Inspectors in the Unarmed Branch as per recruitment rules published in 17.9.1991 and there are only 3 posts of Sub-Inspectors (Women) and one post of Inspector (women). This resulted in quick promotions of the Sub-Inspectors (Unarmed) leaving their counterparts in the women cadre to rot in the same post for almost entire service career. According to Mr. Talapatra this subtle provision closing the doors for the women to the cadre of unarmed Branch is unconstitutional and liable to be struck down. 5. Mr. This resulted in quick promotions of the Sub-Inspectors (Unarmed) leaving their counterparts in the women cadre to rot in the same post for almost entire service career. According to Mr. Talapatra this subtle provision closing the doors for the women to the cadre of unarmed Branch is unconstitutional and liable to be struck down. 5. Mr. U.B. Saha, learned senior G.A. on the other hand, canvassed the recruitment scenario giving emphasis on the stand that the Unarmed Branch is open for both men and women and that Women Branch is a special provision for women as enjoined by Article 15(3) of the Constitution. As the petitioner chose women cadre and did not try for Unarmed Branch, it is not now open to her to express any grievance for not getting promotion at the time when her counterparts in the Unarmed Branch were promoted. The recruitment rules for the post of women Sub-Inspector and women Inspector are intended to achieve the goal of having more women Police officers by way of making special provisions under Article 15(3) of the Constitution. 6. I have taken into consideration the rival submissions and examined them in the light of the provisions made in the respective Recruitment rules. It is a settled law that Article 15(1) of the Constitution does not permit discrimination on the ground of sex. It reads: 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. Article 16(2) further provides- 16(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. These two provisions make it amply clear that the State cannot discriminate in favour of men against women though it may discriminate in favour of women against men. In support of this view, Mr. Talapatra refers to the decision of the Supreme Court in Vijay Lakshmi v. Punjab University and other reported in AIR 2003 SCW 4731. At para 10, page 4737, the observation made by the Apex Court is quoted below: Article 15(3) is obviously a proviso to Article 15(1) and proper effect must be given to the proviso. It is true that in construing a proviso one must not nullify the section itself. At para 10, page 4737, the observation made by the Apex Court is quoted below: Article 15(3) is obviously a proviso to Article 15(1) and proper effect must be given to the proviso. It is true that in construing a proviso one must not nullify the section itself. A proviso merely carves out something from the section itself, hut it does not and cannot destroy the whole section. The proper way to construe Article 15(3), in our opinion, is that whereas under Article 15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of Article 15(3) discrimination in favour of women is permissible, and when the State does discriminate in favour of women, it does not offend against Article 15(1). Therefore, as a result of the joint operation of Article 15(1) and Article 15(3) the State may discriminate in favour of women against men, but it may not discriminate in favour of men against women. It is, thus, clear that the discrimination in favour of men only on the ground of sex is not permissible. 7. The law thus settled by the Apex Court, I may now examine the validity of the prayer of the petitioner. Mr. Saha submits that her prayer was limited to declaring invalid the relevant part of the Regulation dated 10.2.1984 which provides eligibility criteria for promotion to the post of Inspector in the respective wing. As has been pointed out, the Regulations are consistent with the Recruitment rules for the post of Inspector (Women) which provide that the feeder posts shall be Sub-Inspectors (Women) and Sub-Inspectors (Unarmed Branch) respectively. As this recruitment rule has not been under challenge, the regulations which are consistent with them cannot be said to be unconstitutional and invalid. Mr. Talapatra submits that the writ petition has been amended wherein he has also impugned the recruitment rules. I have carefully perused the amended writ petition where I find no such specific prayer assailing the recruitment rules for the posts of Sub-Inspector and Inspector (Unarmed). 8. In view of this position, I am not inclined to accept the proposition that the impugned regulations are invalid or unconstitutional as these are only intended to supplement the respective recruitment rules providing eligibility criteria. 9. 8. In view of this position, I am not inclined to accept the proposition that the impugned regulations are invalid or unconstitutional as these are only intended to supplement the respective recruitment rules providing eligibility criteria. 9. This takes me to advert to the next question whether considering the totality of her grievances as canvassed in her pleadings it can be said that the petitioner and other women similarly situated are the victims of discrimination in favour of men against women. This important question should not be left unanswered having been brought to the notice during the course of argument. As discussed above, the recruitment rules for the posts of Sub-Inspectors (Unarmed) have apparently nothing to show that the posts are meant for men only. Mr. Saha also emphatically submits that women are at liberty to apply for the posts in the Unarmed Branch, but it is the petitioner who chose to tread the other path and entering into the similar cadre of women Police. If this is the stand of the State respondents then the submission of Mr. Talapatra undoubtedly creates consternation inasmuch as the requirement of height for Sub-Inspectors (Unarmed) are bound to exclude the women from entering into this realm and exactly it has happened. It has been admitted at the bar that not a single woman Sub-Inspector has ever been appointed in the Unarmed wing. This is enough to establish the fear that hostile discrimination in favour of men on grounds of sex has been created by the recruitment rules for the posts of Sub-Inspectors (Unarmed) by providing same height for both men and women with relaxation for S.T. candidates only. There is nothing wrong in the recruitment rules for the posts of Inspector (Unarmed) providing that the feeder posts shall be Sub-Inspectors (Unarmed). But the recruitment rules for Sub-Inspector (Unarmed) is found to be discriminatory as no relaxation provision for lesser height has been provided for women candidates closing thereby the doors of this wing for women completely. Such a provision is undoubtedly discriminatory and unconstitutional. 10. In view of the above 7 discussions, the prayer of the petitioner to declare the impugned Regulation as invalid has no merit and is hereby rejected. Such a provision is undoubtedly discriminatory and unconstitutional. 10. In view of the above 7 discussions, the prayer of the petitioner to declare the impugned Regulation as invalid has no merit and is hereby rejected. Her claim for promotion to the post of Inspector (Women) cannot also be allowed for the reason that there is only one post of Inspector (women) held by her senior and that the recruitment rules for Inspector (Unarmed) as they stand now do not provide for filling up the posts from Sub-Inspectors of Police (women). 11. The writ petition, therefore, stands disposed of dismissing the prayer of the petitioner but declaring the recruitment rules for the posts of Sub-Inspectors (Unarmed) as unconstitutional and invalid as it creates discrimination in favour of men and against women. The State respondents are directed to modify the rules providing for suitable relaxation for women candidates with regard to the height. The same provision regarding height as provided in the recruitment rules for Sub-Inspectors (Women) may be provided, for the Sub-Inspectors (Unarmed) for women candidates. Accepting the stand of the State respondents as adverted by Mr. Saha, learned senior Govt. advocate that Unarmed wing is open for both men and women, the respondents are further directed that suitable modification should be done in the recruitment rules for the posts of Inspector (Unarmed) opening a window for women Police Sub-Inspectors for their induction by promotion as Inspectors (Unarmed) to certain limited posts proportionate to their strength and that of Sub-Inspectors (Unarmed) till the Recruitment rules for Sub-Inspectors (Unarmed) are amended and given effect to as per above direction. This exercise shall be completed within a period of six months. No cost.