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Mariamma v. Hindustan Latex, Ltd.

Kerala High Court

Apr 6, 1993

Judgment

Subsequent
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Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

The petitioner, a member of the scheduled caste, was appointed as a lady security guard by the respondent-company and joined on 3 March 1984. She was appointed after recommendation by the Rajya Sainik Board as she was the dependant of a brother who died while in military service on 29 May 1964. The petitioner holds an S.S.L.C. and later obtained a National Physical Efficiency Test Certificate.

The petitioner was promoted to the post of head guard on 23 August 1991 on the basis of seniority. The next promotional grade available to her was Assistant Security Inspector (ASI). On 1 September 1992 one ASI (C. Thankappan Chettiar) retired; that vacancy, the petitioner contends, should have been filled by a scheduled caste candidate and she sought promotion but was not promoted — a general candidate, Ayyappan, was appointed. Another ASI vacancy arose on 30 November 1992 on the retirement of P. Andrews; the petitioner represented for promotion to that vacancy as well and alleges the respondent is proceeding to fill it by a general candidate, ignoring her claim.

The petitioner filed an original petition seeking a writ of mandamus directing the respondent to promote her to the post of Assistant Security Inspector.

In response, the respondent filed a counter-affidavit explaining that the Kerala State Productivity Council conducted a work study, recommended creation of a specific post of lady security guard (to be posted during particular hours to check women employees), and the Board accepted that recommendation. The respondent asserts the post of lady security guard is a distinct post with duties different from male security guards, that security guards are normally ex-servicemen, and that the petitioner was appointed specifically to the lady-security-guard post and therefore is not entitled to promotion. The respondent also states the petitioner was given monetary benefits of head guard and ASI and contends there was no suitable scheduled caste feeder candidate for at least one of the vacancies.

Legal Issues Presented

Whether the petitioner, appointed as a lady security guard, is entitled to promotion to the post of Assistant Security Inspector (ASI).
Whether denial of promotion to the petitioner constitutes discrimination on the ground of sex and thus violates Articles 16(1) and 16(2) of the Constitution.
Whether the respondent may deny the petitioner promotional avenues by treating the post of lady security guard as a distinct post with no promotion, notwithstanding that she received monetary benefits of the higher post.
Whether the respondent was obliged to follow principles of reservation for the ASI vacancies and whether failure to consider the petitioner on that basis is impermissible.

Arguments of the Parties

Petitioner's Arguments

The petitioner contends she was appointed as a security guard in the same manner as other security guards (i.e., not as a one-off, non-promotional special case) and obtained the appointment as a dependent of a Jawan who died in service.
It was not communicated at the time of appointment that she would be ineligible for promotions as a special case.
She was given the benefits of the post of head guard when her turn of promotion came, which supports her entitlement to subsequent promotion to ASI on seniority grounds.
She claims the promotion to ASI is based on seniority and that she has been wrongly excluded from consideration for vacancies filled by general candidates despite her claim as a scheduled caste candidate and her seniority/benefits.

Respondent's Arguments

The respondent relied on the Kerala State Productivity Council's work study which recommended creation of a distinct post of lady security guard to perform specific duties (notably during specified daytime hours) and the Board accepted that recommendation.
It is alleged the duties of lady security guard differ from male security guard duties and that security guards are ordinarily ex-servicemen with particular training and experience.
The petitioner was appointed specifically to the lady security guard post, for which, the respondent contends, no promotional avenues were provided; thus, she is not entitled to promotion to ASI.
The respondent asserts the petitioner had not worked as head guard (the feeder grade for ASI) and that there was no suitable scheduled caste candidate in the feeder category for promotion to at least one vacancy; therefore the petitioner's claim is unsustainable.
The respondent denied any violation of Articles 14, 15 and 16 of the Constitution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
C.B. Muthamma v. Union of India [1979 - II L.L.N 586]	Invalidation of service conditions that discriminate against women; principle that differentiation by sex must be demonstrable and that equality governs otherwise.	The court cited the decision to support the proposition that discrimination on grounds of sex in service conditions is impermissible unless differentiation is demonstrably justified; the citation underpins the view that denying the petitioner promotion because she is female is discriminatory.
Fostar v. British Gas PLC (1991 (2) W.L.R 1075) [House of Lords]	Recognition of the universal principle against sex discrimination in employment and application of equal treatment (reference made to Council Directive Art. 5(1) and domestic statutes such as the Sex Discrimination Act, 1975).	The court referred to this decision and its discussion of equal treatment to illustrate that international/domestic authorities recognise that discrimination on the ground of sex in employment conditions is unacceptable; the citation was used to show the universality of the anti-discrimination principle.

Court's Reasoning and Analysis

The court examined factual assertions and submissions from both sides and set out its analysis in stages:

On the nature of duties: The court compared the duties ascribed to an ordinary security guard and to a head guard as described in the respondent's counter-affidavit and found that the duties are similar in nature. The respondent did not demonstrate that a woman could not perform the duties of a head guard except by raising a practical difficulty about night duty postings.
On the petitioner having received benefits of the higher post: Although the respondent contended the petitioner had not "worked as head guard," the court observed that the petitioner had been given all the financial benefits due to a head guard. The court reasoned that once the financial benefits of the higher category were conferred, the respondent's claim that she remained only a security guard was not tenable.
On discrimination and constitutional provisions: The court considered the respondent's admitted position concerning reservation for scheduled caste candidates for particular vacancies and noted the respondent's simultaneous reliance on the petitioner's sex to deny consideration. The court held that denying the petitioner promotion "purely on the ground that she is a female employee" constitutes discrimination contrary to Article 16(1) and (2) of the Constitution. The court quoted Articles 16(1) and 16(2) to show the constitutional guarantee of equality of opportunity in public employment and the proscription of discrimination on grounds including sex and caste.
On precedential support: The court referenced C.B. Muthamma v. Union of India to show the Supreme Court's position that service conditions discriminating against women are impermissible unless differentiation is demonstrably justified. The court also cited an English House of Lords decision (Fostar v. British Gas PLC) and related materials to demonstrate the accepted universal principle against sex discrimination in employment.
On reservation principles and duty to consider: The court noted the respondent's admission that certain vacancies should be filled by scheduled caste candidates under reservation principles and observed that the respondent could not legitimately refuse to consider the petitioner (a scheduled caste woman) for promotion on the sole ground of her sex where no demonstrable incapacity was shown.
Conclusion of reasoning: Because the respondent failed to show a valid, demonstrable reason why the petitioner, who had received the financial benefits of the higher grade and whose duties did not appear to be functionally incompatible with those of the higher post, could not be promoted, the court concluded the denial amounted to a violation of Article 16(2).

Holding and Implications

Holding: The court held that the denial of promotion to the petitioner on the ground that she is a female employee amounted to discrimination in violation of Article 16(2) of the Constitution and directed the respondent to consider the petitioner's case for promotion and pass appropriate orders.

Implications:

The direct effect is that the respondent-company is ordered to consider the petitioner's claim for promotion to Assistant Security Inspector and to pass appropriate orders in accordance with the court's reasoning (including adherence to reservation principles where applicable).
The court's decision rests on application of constitutional equality guarantees and existing authorities; the opinion does not state that it is laying down a novel precedent beyond applying established anti-discrimination principles (i.e., it enforces those principles in the specific factual matrix before it).

Show all summary ...

1. Petitioner was appointed as a lady security guard in the respondent-company and she joined on 3 March, 1984. Petitioner is a member of the scheduled caste. The majority of the guards working in the company are ex-service men. Petitioner's brother was in military service and he died on 29 May, 1964, while in service. Thereafter, the petitioner sent various applications to get employment. At last the petitioner's application was recommended by the Rajya Sainik Board and on that basis the petitioner was appointed by the respondent. Petitioner has passed S.S.L.C and later also obtained National Physical Efficiency Test Certificate. She was promoted to the post of head guard on 23 August, 1991, and this promotion was on the basis of seniority. The next promotion to the post available to the petitioner is that of Assistant Security Inspector (ASI). There are 4 Assistant Security Inspectors working in the company and, out of these, one C. Thankappan Chettiar retired from service on 1 September, 1992. That vacancy should have been filled up by a scheduled caste candidate and the petitioner requested the respondent to give her promotion to the above vacancy. Her request was turned down and one Ayyappan, a general candidate, was appointed. Petitioner contends that the promotion to the post of Assistant Security Inspector is also based on seniority. Another vacancy arose on 30 November, 1992, on the retirement of one P. Andrews and the petitioner field representation seeking promotion to this post. The petitioner further contends that the respondent is taking steps to fill up this vacancy by a general candidate ignoring the claim of the petitioner. Hence, this orginal petition praying for writ of mandamus to direct the respondent to promote the petitioner to the post of Assistant Security Inspector.

2. A counter-affidavit has been filed by the respondent. The Kerala State Productivity Council (‘the Council’ for short) has conducted a work study in the respondent-company to assess the manpower requirements and to classify the posts. The council recommended that in order to check women employees there should be one post of lady security guard and it was further stated in the counter that this guard may be posted during 11.00 A.M to 2.00 P.M so that the women employees going after the duty at 2.00 P.M, 5.00 P.M and 6.00 P.M could be checked. The report of the council was accepted by the Board of Directors and pursuant to that the respondent had sent a requisition to the Employment Exchange of sponsor candidate. 13 candidates were sponsored and they were interviewed by a committee. The committee found the petitioner suitable for the post of lady security guard. It is alleged that the duties of lady security guard is different from duties of male security guard. Only ex-servicemen with requisite qualifications are appointed as security guards. Originally the qualification was pass in Eighth standard which has now been changed as S.S.L.C All these security guards now working in the company are ex-servicemen and they are trained and experienced in the duties specified for security guards. The post of lady security guard was created for a specific purpose and it is separate and distinct post in the security department of the company. However, the petitioner was given monetary benefits of the post of head guard and Assistant Security Inspector. As the petitioner was appointed specifically as lady security guard, she is not entitled to get promotion and she had even been given monetary benefits and, therefore, she cannot have any grievance. It is admitted that the vacancy that arose on 1 September, 3992, is reserved for scheduled caste candidate. There was no suitable schedule caste candidate in the feeder category for promotion. The claim of the petitioner for promotion to the said vacancy is unsustainable and hence denied. The petitioner was appointed as lady security guard for which post no promotional avenues were provided. Feeder category in the post of Assistant Security Inspector is head guard, and the petitioner was not granted the benefit of higher post and that she had not worked as head guard and she was only discharging the duties of a security guard and not head guard. The Productivity Council pointed out that various duties are to be performed by the head guard. It is further stated that the petitioner cannot claim promotion to the post of Assistant Security Inspector on the basis of seniority. It is also contended that there is no violation of the fundamental rights under Arts. 14, 15 and 16 of and Constitution.

3. I heard the petitioner's counsel and also the counsel for the respondent. The main contention urged by the petitioner's counsel is that the petitioner was appointed as lady security guard just as ally other security guard of the respondent-company. The petitioner got appointment as security guard being the dependant of a Jawan who died in service. Usually, the post of security guard is filled up by appointing ex-servicemen. It was not specified at the time of appointment that the petitioner would be appointed as a special case and she will not be entitled to get any promotion. Subsequently, the petitioner was given all the benefits of a head guard when her turn of promotion came. Now, the petitioner contents that she is entitled to be promoted as Assistant Security Inspector. The main contention urged by the respondent's counsel is that the petitioner has not worked as head guard. This does not appear to be a tenable contention. The petitioner was given all the financial benefits that are due to a head guard and the promotion to the post of head guard was denied on unreasonable grounds. Even according to the respondent the main duties, that arc to be done by an ordinary security guard is to keep constant vigilance on the main gate, factory surroundings and safeguard the property of the factory from damage, theft, pilferage etc. and also to identify trespassers/foreign elements inside the factory to check them and inform higher authorities. The duties that are to be assigned to the head guard are also similar in nature. In Para. 6 of the counter affidavit at page 7, the various duties that arc to be performed by the head guard are mentioned. The respondent has no case that a lady head guard would not be in a position to perform these duties. The only objection that was raised is that the respondent would find it difficult to post the lady head guard for night duty. So, the promotion to the post of head guard also was denied to the petitioner without any valied ground.

4. Even though the petitioner was not promoted to the post of head guard, she was given all the benefits in that category. Once she was given all the financial benefits that are due to head guard it cannot be said that she was still a security guard. Further promotion to the post of Assistant Security Inspector was denied to the petitioner on the ground that petitioner is a lady. The respondent-company admits that on 1 September, 1993, a vacancy arose and the same was earmarked for scheduled caste candidate. That post was filled-up by a general candidate. Again a post Assistant Security Inspector arose on 30 November, 1992, on the retirement of one Andrews. The respondent is bound to fill up this vacancy by following the principles of reservation. Respondent admits that if the principles of reservation are followed this post is to be filled up by a scheduled caste candidate but the petitioner is not being considered on the ground that she is a lady. This contention cannot be accepted as it would amount to violation of the fundamental rights enshrined under Art. 16(1) and (2) of the Constitution, which reads as follows:

“Equality of opportunity in matters of public employment.— (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.”

It is clear that the petitioner is being denied the promotion purely on the ground that she is a female employee.

5. It may be noticed that in C.B Muthamma v. Union of India [1979 - II L.L.N 586], the Supreme Court struck down the service condition requiring a female employee to obtain the permission of the Government in writing before her marriage is solemnized and denying right to the appointed on ground that the candidate is a married woman as discriminatory. The Supreme Court observed in Para. 7 at page 588:

“We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern”.

6. In England, the House of Lords in Fostar v. British Gas PLC (1991 (2) W.L.R 1075) set aside the decision of Court of Appeal and directed Industrial Tribunal to assess compensation payable to the applicants for the discrimination which obliged them to retire at an earlier age than their male colleague. House of Lords point out that respondent corporation had been created pursuant to Gas Act, 1972, as a body under State control responsible for the exclusive provision of the gas supply and Art. 5(1) of the Council Directive could be enforced. Council Directive Art. 5(1) reads:

“Application of the principle of equal treatment with regard to working condition, including the conditions governing dismissal means that men and women shall be guaranteed the same conditions without discrimination on ground of sex.”

In England, there is also a statute prohibiting discrimination on the ground of sex viz., Sex Discrimination Act, 1975. I have pointed out the above facts only to show that it has been now accepted as universal principle that there shall not be any discrimination on the ground of sex.

7. As the respondent has no case that the petitioner being a female employee will not be in a position to perform the duties as Assistant Security Inspector. So the denial of promotion to the petitioner is clear violation of Art. 16(2) of the Constitution. The respondent is directed to consider the case of promotion of the petitioner and pass appropriate orders.