HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR
(DIVISION BENCH)
WRIT PETITION NO. 2424 OF 2005
Bailadila Berozgar Sangh
....Petioner
Versus
National Mineral Development Corporation Limited
....Respondent
! Mr. B.D. Guru, learned counsel for the
Present : petitioner.
^ Mr. P.S. Koshy, learned counsel for the
respondents.
CORAM : Hon'ble Shri A.K. Patnaik, C.J.
& Hon'ble Shri Satish K. Agnihotri, J
Dated: 11/08/2005
: ORDER
(Passed on 11th August, 2005)
The following oral order of the Court was
passed by A.K. Patnaik, C.J :-
The petitioner is an association of unemployed
youth of Bailadila and has filed this writ petition as
a Public Interest Litigation (PIL). The petitioner has
stated in the writ petition that the National Mineral
Development Corporation (hereinafter referred to as
“Corporation”) / respondent No.1 is a Corporation owned
by the Government of India and comes within the
definition of “State” in Article 12 of the Constitution
of India. The Corporation has an Iron Ore project in
Bailadila and for the said project the Corporation has
sent a requisition to the Directorate of Employment &
Training, Chhattisgarh for recruitment to the post of
Maintenance Assistants (Trainee) and pursuant to the
said notification the Directorate of Employment &
Training, Chhattisgarh has issued a notification of
vacancies in the post of Maintenance Assistants
(Trainee) under the Corporation. In the said
notification of vacancies, the maximum age limit of
candidates for the recruitment is mentioned at 30 years
with a provision for relaxation up to 5 years in case
of SC/ST candidates and 3 years in case of OBC
candidates. In the said notification it is also stated
that women candidates are ineligible for the post.
Aggrieved, the petitioner has filed this writ petition
under Article 226 of the Constitution praying for
quashing the said notification and for directing the
Corporation to fix the maximum age limit for the
candidates as 35/40 years and to provide reservation
for SC/ST and other OBC candidates and to allow women
candidates to submit their applications for recruitment
to the vacancies.
(2) Mr. B.D. Guru, learned counsel for the
petitioner submitted that the Corporation has not made
any recruitment of the workmen for the last ten years
and most of the local unemployed youth have grown
beyond the maximum age limit 30 years stipulated in
the notification and for this reason the stipulation in
the notification that the maximum age limit of 30 years
for recruitment to the post of Maintenance Assistants
(Trainee) should be struck down and a direction be
given to the Corporation to increase the maximum age
limit of the candidates to 35/40 years. He next
submitted that there is no provision regarding
reservation for SC/ST and OBC candidates and such a
provision for reservation for SC/ST and OBC candidates
should have been made under Article 16(4) of the
Constitution. He finally submitted that the
notification in so far as it prohibits altogether a
woman candidate to apply for the post of Maintenance
Assistants (Trainee) is discriminatory and is violative
of Articles 14 and 16 of the Constitution and the same
should be struck down and the Corporation be directed
to allow women candidates as well to apply for the said
post.
(3) Mr. P.S. Koshy, learned counsel for the
respondents, on the other hand, submitted relying on
the averments in the reply filed on behalf of
respondents that the maximum age limit for recruitment
to Group `C’ and Group `D’ posts in the Corporation has
already been increased from 25 years to 30 years for
the general category candidates and the respondents
after taking into consideration all relevant aspects
have determined the maximum age limit for recruitment
for general candidates as 30 years as a matter of
policy. He further submitted that the notification
made by the Directorate of Employment & Training,
Chhattisgarh pursuant to the requisition would itself
show that out of 30 vacant posts of Maintenance
Assistants (Trainee) for which recruitment is to be
made, 4 posts have been reserved for SC, 6 posts have
been reserved for ST and 3 posts have been reserved for
OBC candidates and the remaining 17 posts are for the
general candidates. Regarding women candidates, Mr.
Koshy submitted, relying on the averments made in the
reply of the respondents, that under Section 46 of the
Mines Act, 1952 there is a prohibition for engaging the
women workers in any part of the mines below the ground
and in any part of the mines above the ground except
between 6 A.M. to 7 P.M. He submitted in view of the
said provision in Section 46 of the Mines Act, 1952 the
respondents had in the requisition sent to the
Employment Exchange for recruitment of Maintenance
Assistants (Trainee) specified that women candidates
are not eligible. He further submitted that it is not
as if the Corporation has a discriminatory policy
towards women candidates and as a matter of fact there
are about 150 women employees in the Bailadila complex
of the Corporation. He submitted that the Supreme
Court has in P.U. Joshi & Others vs. Accountant
General, Ahmedabad & Others reported in (2003) 2 SCC
632 held that questions relating to the constitution,
pattern, nomenclature of posts, cadres, categories,
their creation and abolition, prescription of
qualifications and other conditions of service pertain
to the field of policy and are within the exclusive
discretion and jurisdiction of the State and in such
matters the Courts have limited powers of the judicial
review. He also cited the decision of the Supreme
Court in Dhan Singh & Others vs. State of Haryana &
Others reported in 1991 (2) SCC 190 for the proposition
that mere differentiation or inequality of protection
does not per se amount to discrimination within the
inhibition of equal protection clause under Article 14
of the Constitution and to attract the attention of the
clause, it is necessary to show that the selection or
differentiation is unreasonable or arbitrary and that
it does not rest on any rational basis having regard to
the object which the legislature has in view. He
submitted that in the present case there was a
justification for not allowing women candidates to
apply for recruitment to the vacancies of Maintenance
Assistants (Trainee) inasmuch as there was prohibition
under Section 46 of the Mines Act, 1952 to employ women
in mines below the ground and also in mines above the
ground beyond certain hours of the day. Mr. Koshy also
cited the decision of the Supreme Court in Air India
vs. Nergesh Meerza & Others and other connected cases
reported in (1981) 4 SCC 335 in which the Supreme Court
has held that Articles 15(1) and 16(2) of the
Constitution prohibit discrimination on the ground of
sex only and not on grounds of coupled with other
considerations and upheld the differences in conditions
of service, allowances and other types of remuneration
for women and men employed under the Air India.
(4) Mr. Koshy is right in his submission that
recruitment and the eligibility criteria for
recruitment to any post is a matter within the domain
of the State and that Courts will not normally
interfere in exercise of their powers in judicial
review with the decisions of the State in such matters
regarding eligibility for recruitment. But the power
of the State even with regard to recruitment and
eligibility for recruitment is to be exercised subject
to the limitations of the law and the Constitution
including the provisions relating to fundamental rights
enshrined in Part III the Constitution. In P.U.
Joshi & Others vs. Accountant General, Ahmedabad &
Others (supra) on which Mr. Koshy has placed a
reliance, the Supreme Court has clarified that the
discretion and jurisdiction of the State in such
matters is of course subject to the limitations or
restrictions envisaged in the Constitution. Hence,
even though recruitment and eligibility criteria for
recruitment are matters of policy for the State to
determine, the Courts can always interfere with the
decisions of the State in such matters of policy if
Constitutional and Statutory limitations are violated
by the State.
(5) As to what should be the maximum age limit of
a candidate for the post of Maintenance Assistants
(Trainee) under the Corporation is purely a matter of
policy for the Corporation to decide. No provision of
the Constitution and no provision of any law has been
brought to our notice by Mr. Guru, learned counsel for
the petitioner to show that the Corporation was obliged
to fix the maximum age limit of the candidate for the
post of Maintenance Assistants (Trainee) at 35/40
years. The only ground indicated by the petitioner in
the writ petition is that for several years there has
been no recruitment and for this reason the Corporation
should have fixed the maximum age limit for recruitment
to the post of Maintenance Assistants (Trainee) at
35/40 years. It was for the Corporation to take all
relevant facts into account and decide as to what would
be maximum age limit for candidates for the post of
Maintenance Assistants (Trainee) and it appears that
the Corporation has already considered the relevant
facts and taken a decision to enhance the age limit for
the candidates for recruitment to different Group `C’
and Group `D’ posts including the post of Maintenance
Assistants (Trainee) from 25 years to 30 years. We do
not think we can, in exercise of powers of judicial
review, interfere with this decision of the Corporation
in a purely policy matter with regard to recruitment.
(6) Regarding reservation for SC/ST and OBC
candidates, we find on a bare perusal of the
notification of vacancies made by the Directorate of
Employment & Training, Chhattisgarh pursuant to the
requisition of the Corporation that out of 30 the
vacancies in the post of Maintenance Assistants
(Trainee) notified, 4 posts have been reserved for SC
candidates, 6 posts have been reserved for ST
candidates, 3 posts have been reserved for OBC and 17
posts are meant for general candidates. Hence, the
ground taken in the writ petition that there is no
reservation made for the SC/ST and OBC candidates is
factually misconceived.
(7) The notification of vacancies issued by the
Directorate of Employment & Training, Chhattisgarh,
however, states that women candidates are ineligible to
apply for the post of Maintenance Assistants (Trainee).
The justification given for excluding women candidates
for recruitment for the post of Maintenance Assistants
(Trainee) in the reply of the respondents is that under
Section 46 of the Mines Act, 1952 there are some
restrictions put with regard to employment of women in
mines. Section 46 of the Mines Act, 1952 is quoted
herein below:
“46. Employment of women.- (1) No
woman shall, notwithstanding anything
contained in any other law, be employed-
(a) in any part of mine which is below ground;
(b) in any mine above ground except between the hours
of 6. a.m. and 7 p.m.
(2) Every woman employed in a mine
above ground shall be allowed an
interval of not less than eleven hours
between the termination of employment on
any one day and the commencement of the
next period of employment.
(3) Notwithstanding anything
contained in sub-section (1), the
Central Government may, by notification
in the Official Gazette, vary the hours
of employment above ground of women in
respect of any mine or class or
description of mine, so however that no
employment of any woman between the
hours of 10 p.m. and 5 a.m. is permitted
thereby.”
It be clear from Section 46 quoted above that the said
Section does not altogether prohibit employment of
women in the mines above the ground thought it
prohibits employment of women in any part of the mine
below the ground. The Section however puts a
restriction on employment of women above the ground
saying that they can be employed only between 6 a.m.
and 7 p.m. Sub-section (3) of Section 46 quoted above,
however, states that the Central Government may, by
notification in the Official Gazette, vary the hours of
employment above the ground of women in respect of any
mine or class or description of mine, so however, that
no employment of any women between the ours of 10 p.m.
and 5 a.m. is permitted thereby. This provision
putting restrictions with regard to employment of women
above the ground and putting a total prohibition on
employment of women in mines below the ground is a
special provision made for women. Such a provision, in
our considered opinion, cannot be relied on by the
Corporation to prohibit recruitment of women altogether
for the post of Maintenance Assistants (Trainee) in the
Corporation to the disadvantage of the women.
(8) In Dhan Singh & Others vs. State of Haryana &
Others (supra) cited by Mr. Koshy, the Supreme Court
has held that to attract the mandate of Article 14 of
the Constitution, it is necessary to show that the
selection or differentiation is unreasonable or
arbitrary and that it does not rest on any rational
basis having regard to the object which the legislature
has in view. It is not stated in the notification
nor in the reply filed by the respondents that all the
30 Maintenance Assistants (Trainee) for which the
notification has been issued are to be employed
exclusively in mines below the ground. Section 46 of
the Mines Act, 1952 permits employment of women in the
mines above the ground during 6 a.m. to 7 p.m. and sub-
Section (3) of Section 46 further provides that the
Central Government may, by notification in the Official
Gazette, permit such employment of women even beyond
the hours from 6 a.m. to 7 p.m., but not between 10
p.m. and 5 a.m. To deny women the opportunity to apply
for and to be considered for employment as Maintenance
Assistants (Trainee) under the Corporation on the
ground that Section 46 of the Mines Act, 1952 imposed
some restrictions would be discriminatory towards women
on the ground of sex and violative of the provisions of
Articles 14,16 (1) and 16 (2) of the Constitution. The
justification for exclusion, in the language used by
the Supreme Court in Dhan Singh & Others vs. State of
Haryana & Others would be unreasonable and arbitrary
and does not rest on any rational basis.
(9) In Air India vs. Nergesh Meerza & Others and
other connected cases (supra), the Supreme Court has
held that in matters of allowances, conditions of
service and other remuneration of women and men
employees under the Air India, no discrimination is
made on the ground of sex only. But the Supreme Court
has also taken note of the views of Mr. Krishna Iyer,
J. in Miss C.B. Muthamma vs. Union of India, (1979) 4
SCC 260 to the effect that unless sensitivities of sex
or the peculiarities of social sectors or the handicaps
of either sex may compel selectivity and a case for
differentiation is demonstrably made out, the rule of
equality must govern. In the language of Mr. Krishna
Iyer, J.
“We do not mean to universalize 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.”
In the present case, the respondents have not been able
to show demonstrably in their pleadings that the
handicaps or other sensitivities of sex or the
peculiarities of social sectors had compelled the
Corporation to prohibit the women altogether from
applying for the post of Maintenance Assistants
(Trainee). On the other hand, as we have indicated
above, they have justified the exclusion of women from
employment under the Corporation as Maintenance
Assistants (Trainee) only on the basis of provisions in
Section 46 of the Mines Act, 1952, which we have seen,
do not altogether exclude the employment of women in
mines above the ground.
(10) For the aforesaid reasons, while we decline
to interfere with the provisions regarding maximum age
for candidates for the post of Maintenance Assistants
(Trainee) under the Corporation, we declare the
provision in the notification prohibiting women
candidates altogether to apply for the said post of
Maintenance Assistants (Trainee) as ultra vires
Articles 14 and 16 of the Constitution and direct the
Corporation to allow women candidates also to apply for
the said posts and the recruitment process to the posts
of Maintenance Assistants (Trainee) be initiated
afresh after inviting fresh applications, in accordance
with law. The writ petition is disposed of with the
aforesaid directions, but considering the facts and
circumstances, the parties shall bear their own costs.
Chief Justice Judge