WALTAR ALFRED BAID Vs. UNION OF INDIA

JUDGEMENT

(1.) Whether the provisions in the recruitment rules for the post of senior nursing tutor in the School of Nursing, Irwin Hospital, New Delhi, which make the post a female preserve, are constitutionally valid or not is the only question that this petition under Article 226 raises.

(2.) The petitioner, a qualified 'A' grade male nurse was appointed as "sister tutor" in the School of Nursing, Irwin Hospital New Delhi and was confirmed in the post against a permanent vacancy with effect from July 23, 1953, (Annexure 'A'). At that time, the petitioner was the only sister tutor in the School of Nursing and was, therefore, discharging administrative responsibilities in addition to the duties of a tutor. According to the petitioner, the responsibility and duties of a sister tutor are detailed in Annexure 'B' to the petition. Annexure 'B' purports to set out the responsibility and duties of "the senior nursing tutor". According to Annexure 'B', the senior nursing tutor or if there is only one nursing tutor, the nursing tutor, is responsible not only for teaching but has administrative duties as well. The duties include "periodical visits to student rooms to make sure that they practice personal hygiene." It is admitted that in course of time more sister tutors were appointed in the School of Nursing and that the petitioner has been the senior-most sister tutor. It is further admitted that in course of time the capacity of the School expanded to an extent that it became necessary to appoint a senior tutor in a higher grade. The post of "the senior tutor" was accordingly sanctioned by the Delhi Administration in the scale of Rs. 350-575 plus the usual allowances. The sanction is contained in Annexure 'D' to the petition. According to the petitioner, respondent No. 4, who was junior to the petitioner as sister tutor, was appointed to the newly created post superseding the petitioner. The said respondent No. 4 was eventually appointed Inspector in the School of Nursing and the petitioner was directed to take over from the said respondent as senior tutor with effect from November 15, 1971, vide Annexure 'G' to the petition. According to Annexure 'G', the petitioner who was described as "the seniormost tutor" was asked to "carry on the work of the Senior Tutor until further orders". Pursuant to this order, the petitioner worked as senior tutor for about two years. The petitioner's plea for being considered for promotion to the post of senior tutor was, however, turned down on the ground that in terms of the recruitment rules for the aforesaid post male sister tutors were ineligible for the post. According to the Recruitment Rules for the post of Senior Tutor (Annexure 'H'), the post is designated as "Senior Tutor (female)". It is a selection post and according to the entry in columns 12 and 13 of the Rules, the post has to be filled in "by promotion failing which by direct recruitment" and the eligible category is "Sister Tutor (female)". The petitioner challenges this ineligibility of male candidates as being unconstitutional on the ground that being based on sex alone, it militates against the constitutional prohibition contained in Article 16 (2) of the Constitution of India.

(3.) Shri B. N. Kirpal, learned counsel for the petitioner, contends that the provisions in the Rules with regard to eligibility for promotion to the post of senior tutor is ultra vires Article 16 (2) of the Constitution of India inasmuch as the ineligibility of male candidates is based on consideration of sex alone and, therefore, militates against the guarantee of absolute equality between the two sexes in the matter of employment as incorporated in Article 16 (2) of the Constitution of India.