The Judgment of the Court was delivered by

Mohammed, J.:— The main question that arises for decision in this writ appeal is whether the denial of promotion to the respondent, Smt. V. Maniamma, to the post of Assistant Security Inspector amounted to sex discrimination interdicted under Art. 16(2) of the Constitution.

2. This writ appeal is against the judgment of the learned single Judge in O.P No. 15626 of 1992 directing the appellant to consider the case of the respondent for promotion to the post of Assistant Security Inspector. The appellant is a public limited company, M/s. Hindustan Latex Limited, the sole respondent in the writ petition. The respondent was appointed as Lady Security Guard in the appellant-company with effect from 3-3-1984. She is a member of the scheduled caste. She had later obtained the National Physical Efficiency Test Certificate. Subsequently she was promoted to the post of Head Guard on 21-8-1991 on the strength of her seniority in service. The next, promotion post available to the respondent is that of the Assistant Security Inspector (A.S.I). A vacancy arose for this post with effect from 1-9-1992 consequent on the retirement of C. Thankappan Chettiar, who was working as A.S.I It is the admitted case that this vacancy should have been filled up by a candidate belonging to Scheduled Caste but the respondent was not appointed to the said vacancy even though a request was made by her in that behalf. However, one Ayyappan a general candidate was appointed. Subsequently another vacancy to the post of A.S.I, arose on 30-11-1992 consequent on the retirement of one P. Andrews. The respondent made a representation to the appellant-company requesting to appoint her to that post. However, no steps were taken by it to promote the respondent to that post. It was in that background the present writ petition was filed by the respondent.

3. The case of the appellant-company is that the respondent was appointed as a Lady Security Guard which post does not carry promotional avenues and that she was discharging the duties of a Security Guard and not Head Guard, which is the feeder category for the post of Assistant Security Inspector. The further case is that post of Lady Security Guard was created for a specific purpose and it is a separate and distinct post in the security department of the appellant-company. In other words, the contention before the learned single Judge was that the respondent was not entitled to promotion as Assistant Security Inspector as she was appointed specifically as Lady Security Guard. The learned single Judge, after considering the rival contentions, ultimately found that the denial of promotion to the respondent is a clear violation of Art. 16(2) of the Constitution. Therefore the learned single Judge directed the appellant-company to consider the claim of respondent for promotion. The said finding of the learned single Judge is challenged in this writ appeal.

4. Let us have a glimpse of the scope of Art. 16(2) of the Constitution to the extent applicable here, in order to resolve the dispute involved in the present writ appeal. Article 16(2) reads thus:

“No citizen shall, on grounds 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.”

5. This article shall be read with Arts. 15(1) and 15(3) for the purpose of this case. Clause (1) of Art. 15 mandates that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, residence, or any of them. However, clause (3) of the said Article provides that nothing in Art. 15 shall prevent the State from making any ‘special provision’ for women and children. It is impossible to argue that the special provision for women provided in Art. 15(3) authorises a discrimination against women. What is intended is discrimination in favour of women. A provision discriminating in favour of women must necessarily discriminate against men. Art. 15(3) thus constitutes an exception to the prohibition of discrimination on the ground of sex contained in Art. 15(1). What is meant by the ‘special provision for women’ provided in C1.(3) is only ‘special provision in favour of women’ as interpreted in Anjali Roy v. State of West Bengal (AIR 1952 Cal. 825). It cannot be said, Art. 15(3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crime. (See Yusuf Abdul Aziz v. State of Bombay (AIR 1954 SC 321). As far as the interplay of Arts. 14, 15(3) and 16(2), Sarkaria, J. (as he then was) speaking on behalf of the Full Bench of the Punjab and Haryana High Court in Shamsher Singh v. Punjab State (AIR 1970 Punj. & Haryana 372) observed thus:

“Arts. 14, 15 and 16, being the constituents of a single code of constitutional guarantees, supplementing each other, Clause (3) of Art. 15 can be invoked for construing and determining the scope of Art. 16(2). And, if a particular provision squarely falls within the ambit of Art. 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).”

6. We respectfully agree with the above observation in regard to the operational ambit of the provisions of Arts. 14, 15(3) and 16(2). Our conclusion, therefore, is the validity of a law apparently offending Art. 14 can be upheld if it falls within the ambit of Cl. (3) of Art. 15.

7. The next question is, who can make such ‘special provision’ in favour of women under Art. 15(3) either by the legislative wing or by executive or any other authority. It is pointed out that the word ‘provision’ contained in Art. 15(3) includes within its meaning a legislative enactments rule, a regulation and a general order. While considering the scope of ‘provision’ contained in Art. 16(4) the Supreme Court in Indra Sawhney v. Union of India (1992 Supp (3) SCC 217 : AIR 1993 SC 477) held:

“Accordingly, we hold agreeing with Balaji, that the ‘provisions’ contemplated by Art. 16(4) can also be made by the executive wing of the Union or of the State as the case may be, as has been done in the present case.”

8. The apex court further observed in para. 55 of the decision supra:

“The use of the expression ‘provision’ in clause (4) of Art. 16 appears to us to be not without design. According to the definition of ‘State’ in Art. 12, it includes not merely the Government and Parliament of India and Government and Parliament of each of the States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Art. 12. The expression ‘Local Authority’ is defined in S. 3(31) of the General Clauses Act. It takes in all Municipalities, Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government”. (Italics supplied)

9. We feel the width of the term ‘provision’ contained in Art. 16(4) as laid down by the Supreme Court in Indra Sawhney's case supra will equally apply in the case of Art. 15(3),

10. In the present case the appellant company did not plead that there is ‘provision’ as contemplated in Art. 15(3) to make sex discrimination. No doubt, the burden is on the appellant-Company to prove that there are non-discriminatory reasons when the respondent brings forth prima facie case of discriminatory treatment. In an employment discrimination suit, Powell, J. of the United States Supreme Court in Texas Department of Community Affairs v. Joyce Ann Burdine (450 US 248) held that when the plaintiff has proved prima facie case of discriminatory treatment the burden is on the defendant to explain clearly the non-discriminatory reasons for its actions. That was a case where a female employee of the Texas Department of Community Affairs brought an action against the Department alleging that the Department failed to promote her and its subsequent decision to terminate her employment had been predicated on gender discrimination.

11. It is worthwhile to examine here the background in which the respondent was initially appointed as Security Guard in the appellant-company. The Kerala State Productivity Council had conducted a work study to assess the manpower requirement in the appellant-company and to classify the posts. The Council in its report submitted in May, 1976 had recommended one post of Lady Security Guard in order to check women employees in the appellant company during day time. This recommendation was accepted by the appellant in its meeting held on 12-5-1976. Subsequently, pursuant to the requisition made by the Employment Officer, Tri vandrum eight candidates appeared before the Committee for interview. The Committee found the respondent suitable and she was appointed as Lady Security Guard on 3-3-1984. The argument of the appellant is that the post of Lady Security Guard is a separate post as distinct from Security Guard. It is difficult for us to accept this argument advanced by learned counsel for the appellant-company. As per C1. 10(4) of the Certified Standing Orders of the appellant Company, any workmen or any other person entering or leaving the factory premises shall be subjected to search by the Security Guards. Therefore, the post available in this case is that of a Security Guard. But the above Standing Order further provides that in case of females, search shall be done by female person who is duly authorised in that behalf by the Management. It is because of that reason, the person who conducts search in the case of females is called Lady Security Guard. The work assigned to the respondent is the same as in the case of Security Guard. The pre-fixion. ‘lady’ to the ‘Security Guard’ will not by itself make the post different from Security Guard. The functions assigned to the Security Guard as well as the Lady Security Guard are the same. That being so, the post of Lady Security Guard is one and the same category of Security Guard. In case it is treated as two different posts it will cany the stigma of “sex discrimination” at the work place.

12. “Sex discrimination” which is commonly described as “sexual harassment” in Feminist Jurisprudence in United States is acquiring menancing problem world over. The study brought out by the International Labour Organisation (ILO) in November, 1992 amply testifies this increasing problem faced by various countries. In England this branch of law is governed by Sex Disqualification Act, 1975 whereas in United States this new concept of ‘sexual harassment’ is rested on S. 703 of Title VII of the Civil Rights Act of 1964 which prohibits discrimination in the work place. However, in India this ‘sex equality’ or ‘sex discrimination’ is dealt with under Arts. 14, 15 and 16 of the Constitution. Apart from these constitutional provisions there is no codified Act in India which deals with this subject just as Sex Disqualification Act in England.

13. In Nagle v. Feilden (1966 (1) All. E.R 689) the question arose whether the practice of refusing licence to a woman as a trainer of the racehorses was against public policy. In that case, Lord Denning observed:

“In this case Mrs. Nagle alleges that the Stewards of the Jokey Club makes a practice of refusing any woman trainer who applies for a licence. She is refused because she is a woman, and for no other reason. The practice is so uniform that it amounts to an unwritten rule. The only way she can get round it is to get her head lad to apply. The licence is granted to him, not to her. It seems to me that this unwritten rule may well be said to be arbitrary and capricious. It is not as if the training of horses could be regarded as an unsuitable occupation fora woman, like that of a jockey or speedway-rider. It is an occupation in which women can and do engage most succesfully.”

14. Lord Keith of Kinkel in Webb v. EMO Air Cargo (UK) Ltd. (1992 (4) All. E.R 929) observed:

“There can be no doubt that in general to dismiss a woman because she is pregnant or to refuse to employ a woman of child-bearing age because she may become pregnant is unlawful direct discrimination. Child-bearing and the capacity for child bearing are characteristics of the female sex. Se to apply these characteristics as the criterion for dismissal or refusal to employ is to apply a gender-based criterion, which the majority of this House in James v. Eastleigh BC, (1990) 2 All ER 607, (1990) 2 AC 751) held to constitute unlawful direct discrimination.”

15. The Supreme Court in Air India v. Nergesh Meerza ((1981) 4 SCC 335 : AIR 1981 SC 1829) said: “………what Arts. 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations”. On this point, the matter is no longer res integra but is covered by several authorities of the Supreme Court. Sex was held to be a permissible classification by the Supreme Court in Yusuff Abdul Aziz v. State of Bomhay (AIR 1954 SC 321) where it has been further held that sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. In C.B Muthamma v. Union of India ((1979) 4 SCC 260 : AIR 1979 SC 1868) the Supreme Court observed:

“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.”

16. The duties assigned to the Security Guard are the following, as revealed from para. 3 of the counter affidavit filed by the appellant.

“(a) to keep a constant vigilance on the main gate, factory surroundings and safeguard the property of the factory from damage, theft, pilferage etc.

(b) to identify trespassers/foreign elements inside the factory to check them and inform higher authorities.

(c) to keep accurate records of vehicles coming in, going out and also the outsider's visiting the factory.

(d) to assist in preparation of interruption and other statements.

(e) to assist in informing police in case of theft, strike etc.

(f) to check and sign gate passes for quantity and authority of signature.

(g) to report any defect in fire-fighting arrangements.”

17. We canot see any physical or other disability for women to carry out the above functions. The execution of the functions also pinpoint that the Security Guard has to conduct search of any workman or any other person entering or leaving the factory premises. The only differentiation is that in the case of female workmen or other female entering or leaving the factory premises, the search shall be made by the Lady Security Guard. This may be a reason to avoid ‘sexual harassment’ in the factory premises. When female workmen are subject to search by male Security Guard at the work place it may tend to create ‘sexual harassment’ in some form or other. Physical contact between man and woman during search is a hostile or abusive work-environment. No doubt, women are at a fundamental disadvantage in a male-dominated society. This disadvantage is always visible in all spheres of life. The recommendation for creation of the post of Lady Security Guard by the Kerala State Productivity Council may be for the purpose of avoiding ‘sexualharassment’ at work environment That does not mean the post of Lady Security Guard is altogether a different post as distinct from Security Guard. We hold it as one and the same post carrying with it all promotional avenues.

18. Once it is found that the post of Lady Security Guard is the same as that of Security Guard contemplated in Clause 10(4) of the Standing Order, it automatically enures the service benefits carried with the post of Security Guard. The contention that the respondent has not worked as Security Guard is only to be negatived for the reasons discussed herein before. That being so, all promotional avenues are inherently available to the respondent As per Ext. P4 the respondent was promoted as Head Guard with effect from 21-8-1991. Of course by the office order No. 230/92 dated 7-11-1992 evidenced by Ext. R1(b) the respondent was instructed to ‘continue to do the same duties/jobs which she is now engaged in. By projecting this order the appellant argued that the respondent was performing the duties of Lady Security Guard; Even assuming that the respondent was obediently performing the duties assigned to her as per Ext. R1(b), that by itself do not have the effect of taking away the efficacy of the post in which she was appointed. She continued to be the Head Guard and on the basis of seniority, she was legally entitled to be promoted as Assistant Security Inspector (ASI) with effect from 1-9-1992. The post of Assistant Security Inspector is a promotion post and this is filled up on the basis of seniority in the feeder category of Head Guard. This promotion legitimately due to the respondent was denied on the ground that she was appointed only as a Lady Security Guard. For the reasons set out herein before we have no hesitation to hold that the denial of promotion to the respondent to the post of A.S.I is a clear sex discrimination which is prohibited under Art. 16(2) of the Constitution.

19. Yet another question that distressingly attracts our attention in this case is the refusal to consider the claim of the respondent for promotion as a member of scheduled caste. In the counter affidavit filed by the appellant it is stated “as a matter of fact the vacancy that arose on 1-9-1992 is reserved for scheduled caste candidates”. But it is further stated that “it is relevant to point out here that there was no suitable scheduled caste candidate in the feeder category for promotion to this vacancy”. The vacancy referred to above is to the post of Asst. Security Inspector. There is no dispute in this case that the respondent is a member of the scheduled caste and that she was working as Headguard which is a feeder category for the post of Assistant Security Inspector.

20. Art. 335 of the Constitution reads thus:

“335. Claims of Scheduled Castes and Scheduled Tribes to services and posts — The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”

21. This article is analogous to Arts. 15(4) and 16(4) and for a proper understanding, it is found to be necessary to read all these provisions together. A conjoint reading of these articles would, among other things, reveal that even if there is no reservation of posts by means of any law or executive order in making appointments to the individual post, the State should always bear in mind the claims of scheduled castes and scheduled tribes. Krishnalyer, J. in State of Kerala v. N.M Thomas ((1976) 2 SCC 310 : AIR 1976 SC 490) expressed the view:

“The State has been obligated to promote the economic interests of harijans and like backward classes, Arts. 46 and 335 being a testament and Arts. 14 to 16 being the tool-kit, if one may put it that way. To blink at this panchsheel is to be unjust to the Constitution.”

22. Specifically with respect to Art. 335 the learned Judge further said:

“Indeed, Art. 335 is more specific and cannot be brushed aside or truncated in the operational ambit vis-a-vis Art. 16(1) and (2) without hubrislic aberration.”

23. In fact the respondent has made a request that she may be promoted to the vacancy which arose on 1-9-1992. It is admitted that this vacancy has to be filled up by a member of the scheduled caste. However, it was filled up by appointing a general candidate. The written calim of the respondent in this regard was not considered at all by the appellant This, according to us, is a clear violation of the provisions contained in Art. 335 of the Constitution. The Supreme Court in Indra Sawhney's case (1992 Supp (3) SCC 217 : AIR 1993 SC 477) observed while discussing the claim of the scheduled caste under Art. 335 thus:

“It is obvious that if the claims of even scheduled castes and scheduled tribes are to be taken into consideration consistently with the maintenance of efficiency of administration, the said admonition has to be respected equally while taking into consideration the claims of other backward classes and other weaker sections.”

24. Here the emphasise made on “consistently with the maintenance of efficiency of administration” is necessarily to be noted. It cannot be said that a claim of a member of a scheduled caste cannot be rejected consistent with the maintenance of efficiency of administration. In the present case the claim was not considered not for the reason of maintaining the efficiency of administration. No such plea has been raised by the appellant-company in this case. The claim has not been considered solely on the reason of sex. This is highly objectionable and opposed to Arts. 15(2) and 335 of the Constitution. In view of what is discussed above, we see no reason to interfere with the judgment of the learned single Judge. We confirm the impugned judgment The writ appeal is accordingly dismissed.

25. Dismissed.