Rajasthan High Court Sets Aside RSEB's Decision To Exclude Male Candidates From Compassionate Appointment On LDC Post

The Rajasthan High Court quashed an order dated October 17, 1996 issued by Rajasthan State Electricity Board which provided for the appointment of only female candidates as Lower Division Clerk (LDC) under a compassionate scheme.

The single judge bench of Justice Anoop Kumar Dhand observed that  exclusion of Male candidates for getting compassionate appointment on the post of LDC is based solely on gender discrimination and the same is also in violation of Clause 10.2 of the Rajasthan State Electricity Board Ministerial Staff Regulations,1962.

“A reading of the aforesaid provisions of Articles 14 and 16 of the Constitution would show that in matters of recruitment to employment, the State will not discriminate between men and women and that a citizen will not be ineligible for employment or office under the State on the ground of sex only.”

It was the case of the petitioners that despite them possessing the eligible qualifications as per Rule 10.1(A)(2) of the Regulations of 1962, they were not appointed as LDC by the Rajasthan State Electricity Board (RSEB).

It was further contended that the petitioners were instead appointed as Helper Grade-I on the basis of the impugned order dated October 17, 1996, while similarly situated female candidates were given appointment on the post of LDC.

The counsel appearing for the petitioners submitted that reason of causing discrimination was the large number of male candidates in comparison to female candidates. It was further submitted that during pendency of the case, the petitioners were given appointment on the post of LDC in 2006 through regular selection process, hence RSEB be directed to provide the benefits of the post of LDC to the petitioners with effect from their initial date of appointment.

On the other hand, the counsel appearing for RSEB submitted that looking to large number of male candidates, appointment was given to them on the post of Helper Gr. I and looking at less number of female candidates, appointment was given to them on the post of LDC.

It was further submitted that the writ petitions have become infructuous because appointment has already been given to the petitioners on the post of LDC during pendency of these petitions.

The court noted that perusal of Regulation 10.2 of Regulations of 1962 indicates that a candidate for direct recruitment to the post of LDC must have passed Secondary School Examination and it nowhere makes a discrimination between male and female candidates.

“The equality before law guaranteed under Articles 14, 15 and 16 of the Constitution of India is a constitutional admonition against both the legislative and executive organs of the State. Therefore, neither the legislature nor the Rule making Authority can make a law or a Rule, issue any guidelines/circulars/administrative instructions, which would be in violation of Articles 14 and 15 of the Constitution of India," said the court

It further observed that the the issue in the case at hand does not concern a statute but a guideline in the form of a policy. A policy in the form of a guideline is on a lower pedestal than that of a statute, said the court.

“If statutes are held to be violative of the tenets of Article 14 of the Constitution of India by the Constitutional Courts for the reason that it depicts discrimination resulting in gender bias, a guideline in the form of policy would pale into insignificance, if it portrays such discrimination, even to its remotest sense,” the court said.

The court remarked that the guideline which portrays discrimination on the basis of gender and cannot be permitted to remain as a guideline.

“Therefore, the guidelines will fly on the face of the tenets of Articles 14, 15 and 16 of the Constitution of India. If any Rule/Policy/Guideline, which would be in violation of the Rule of equality, such Rule/Policy/Guideline can be obliterated, as being unconstitutional,” the court said.

The court relied upon the judgements of the Supreme Court in Air India Cabin Crew Assn. v. Yeshaswinee Merchant (2003) 6 SCC 277; Charu Khurana v. Union of India (2015) 1 SCC 192 and National Legal Services Authority v. Union of India (2014) 5 SCC 438 wherein it was held that gender identity is an integral part of sex within the meaning of Articles 15 and 16 of the Constitution of India and no citizen can be discriminated solely on the ground of gender.

“In the light of aforesaid decisions and constitutional provisions, exclusion of Male candidates for getting compassionate appointment on the post of LDC is based solely on gender discrimination and the same is also in violation of Clause 10.2 of the Regulations 1962. In other words, the classification is not based on any rational interga having reasonable nexus with the object sought to be achieved. The respondents cannot discriminate the petitioners to get appointment on the post of LDC merely because similar Female candidates were less in number in comparison to Male candidates," said the court.

Thus, the court quashed the impugned order dated October 17, 1996 issued by the RSEB for being violative of Articles 14 and 16 of the Constitution of India. It further directed the RSEB to count the services of petitioners on the post of LDC with effect from their initial appointment on the post of Helper Gr. I and grant them all consequential benefits within a period of three weeks.

However, the court clarified that on account of quashing of the impugned order, it would not provide a cause of action to any candidate in future and would apply to the cases which are pending before the court on the date of the present judgment only.

Case Title: Ashish Arora v. Rajasthan State Electricity Board and Other connected matter

Coram: Justice Anoop Kumar Dhand

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