RAGHUBANS SAUDAGAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) WHETHER the petitioner Mrs. R. S. Singh has been discriminated against on the ground of sex alone, is the solitary question that has been raised for determination in this civil writ petition, which is before us, on a reference.

(2.) THOUGH the facts have been marshalled with lucidity in the referring order of the learned Single Judge, it has however become necessary to restate them with particular relevance to the only issue that has been agitated before us. The petitioner was appointed as the Deputy Superintendent, Women's Jail, Lahore (now in West Pakistan) in the year 1941 and was confirmed in that post with effect from July 12, 1943. On January 1, 1947, she was shown at No. 2 in the order of seniority in the cadre of Deputy Superintendents (Class I ). In the wake of the partition, the petitioner opted for service in East Punjab and on migration to India she was appointed as the Superintendent, Reformatory School, Delhi on March 4, 1948. The said school was later shifted to Hissar. It was on April 12, 1949, that the Governor of East Punjab made the impugned order (Annexure 'f') in exercise of the powers conferred by Section 275 (b) of the Government of India Act, 1935 whereby it was directed that in the Jails Department, women shall be ineligible for appointment to all posts in Men's Jails, except the post of clerks and matrons. The constitutionality of this order after the coming into force of the Constitution on january 26, 1950 is the primary issue in this case. There appears no dispute that in the erstwhile State of Punjab after the partition, there existed no regular jail for women. In order to accommodate the petitioner, therefore, a supernumerary post was created with effect from August 15, 1947 to December 17, 1951 and she was absorbed as Superintendent, Reformatory School. She continued to receive increments and admission to a higher revised grade of salary. Subsequently the two Departments, viz. , the Reclamation of Criminal Tribes, and Jails, were amalgamated. On April 4, 1960, the Inspector General of Prisons addressed a letter to Home Secretary, Government of Punjab, with reference to the orders of the Government dated March 22nd/23rd March 1957, to the effect that the petitioner could not be considered for appointment as a Superintendent of Men's jail by promotion. the Inspector General took the view that as the petitioner had reached the maximum limit of her grade on December 18, 1959, she could not be promoted in the next higher vacancy. It was suggested that she may be considered for promotion to the provincial Services which would compensate her for being debarred from further promotion which may be due to her. By means of a notification dated June 21, 1961, the Governor of Punjab accorded sanction to the creation of the Punjab Prisons Service which was to include the various posts after classifying them into Class I and Class II as mentioned against each. The petitioner was placed at No. 8 in Class II which included the Assistant Inspector general as also the Superintendents of Central Jails and District Jails and other officers. In the Punjab Civil List corrected up to January 1, 1962 and January 1963 (Annexures K-1 and K-2) the name of the petitioner appeared at serial No. 11 and 12 respectively amongst the Superintendents, District Jails. However, in the gradation list as it stood in March, 1966, vide Annexure 'p', her name was not shown amongst the Superintendents of Jails but it appeared under Reclamation department with a note 'not encadred with Superintendents of Jails. ' On March 29, 1963 the Punjab Prisons Service (Class II)Rules, 1963 came into force after having been promulgated by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution. The primary grievance of the petitioner is that by excluding her name from the cadre of Superintendents of Jails, she has been discriminated against on the ground of sex because her future chances of promotion to a superior post stand adversely affected thereby. This it is alleged is violative of Art. 16 of the Constitution and the impugned order (Annexure 'f')dated April 12, 1949, by which she had become ineligible for appointment as superintendent in Men's Jail, has been assailed as violative of the relevant provisions of the Constitution.

(3.) IN the affidavit filed in reply, it has been stated that as the petitioner was appointed as Superintendent, Reformatory School, before the control of that institution was transferred to Punjab Jails Department in September, 1952, she had ceases to have lien on any post in the Jails Department with effect from december 17, 1951. It has been averred that there was no regular Women's Jail in existence in the Punjab during the post-partition period and in fact as a concession to the petitioner and to protect her service interests, the respondent had created supernumerary post of Deputy Superintendent in the scale of Rs. 450-550 from august 15, 1947 to December 17, 1951.