Ira Leo vs SCHOOL EDUCATION DEPARTMENT on 31 December 2024

O R D E R

Per:- Sanjeev Gupta, Judicial Member

The applicants-Ira Leo and Palvi Arora have initially approached the Hon’ble High Court of Jammu and Kashmir by filing OWP No. 560 of 2011 and SWP No. 280 of 2012 respectively. In OWP No. 560 of 2011, the applicant Ira Leo prayed for the following reliefs:- “i) Declare that the petitioner is permanent resident of village Thudl Tehsil and District Rajouri after her marriage with Kulbir Singh. ii) Direct the respondents No. 3 and 4 to allow the petitioner to be interviewed in the on going selection process for the District Cadre post of a teacher for District Rajouri.”

2. In SWP 280 of 2012, the applicant Palvi Arora had prayed for the following relief:- i. To quash the select list for District Poonch to the extent private respondents have been selected. ii. To direct the respondents to select and appoint the applicant as Teacher in terms of the Advertisement dated 12.11.2010. iii. To quash Section 13 (1) of the Act of 2010 being ultra vires to the constitution of India.

3. The Hon’ble High Court of Jammu & Kashmir in SWP No. 280 of 2012 in CMP No. 384 of 2012 vide interim direction dated 10.02.2012 reserved one post of Teacher, District Cadre Poonch out of the posts notified for selection vide notification No. 07 of 2010 dated 12.11.2010. In OWP No. 560 of 2011, the Hon’ble High Court of Jammu & Kashmir vide interim direction dated 28.04.2011 allowed applicant Ira Leo, who was shortlisted at serial No. 202 for the post of

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Teacher in District Rajouri, to appear in the interview/participate in the selection process at her risk and responsibility. The result of the applicant Ira Leo was produced before the Hon’ble High Court in a sealed cover on 24.05.2017, who has secured more merit than the last candidate selected by the SSRB for the post of Teacher. The merit position of the applicant Ira Leo was taken on record.

4. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of OWP No. 560 of 2011 and SWP No. 280 of 2012 was ordered to be transferred by the Hon’ble High Court to this Tribunal on 14.02.2023 and renumbered as Transferred Application No. 104 of 2023 and Transferred Application No. 89 of 2024.

5. Since, the controversy involved in both the Transferred Application (T.As) is same, as such they will be disposed by a common order. For the sake of convenience, the facts of T.A. No. 89 of 2024 – Palvi Arora Vs. State of J&K and others is being taken for reference.

6. Briefly stated, the case of the applicant is that the applicant having responded to the advertisement Notice No. 7 of 2010 dated

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12.11.2010 issued by Respondent No. 2 for filling up the post of Teachers in District Poonch and during the selection process, the applicant appeared for interview, however, in the select list the name of the applicant did not figure, however, names of the private respondents who were inferior in merit than the applicant have been shown selected.

7. It is pleaded that applicant was married to Gagan Gupta in the month of November 2007 and after her marriage, she had shifted to Poonch and became domicile of Poonch besides she also obtained State subject of district Poonch. That the applicant has prior right to selection having secured more merit as compared to the private respondents whose selection is illegal and against the law. The representation filed by the petitioner also did not yield any result. That the applicant came to know that respondents by applying Section of the Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 (in short Act of 2010) has not considered her candidature for selection to the aforesaid post for District Poonch. The relevant rule of the Act envisaged that a person shall be deemed a resident of particular District/Division provided he/she has resided in such District or Division as the case may be for a period not less than 15 years before the date of applying for a particular post and is actually residing in that area.

8. It is further case of the applicant that after her marriage in the year November 2007, she has lost the status of resident of Jammu

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District and the provisions of Act of 2010 renders her unfit to be considered for the post of Teacher from District Poonch, which amounts to violation of her legal and fundamental rights.

9. The grievance of the applicant is that application of Section 13

(1) of the Act of 2010 to the females amounts to gender discrimination whereby respondents have created unequal situation for the applicant which is against Article 14 of the Constitution of India. The provisions of Section 13 (1) of the Act of 2010 are also discriminatory in nature as sub-section (2) and (3) of Section 13 of the Act of 2010 provides safeguards to certain categories of person including Scheduled Caste but no such safeguards have been provided to applicant, who is a woman.

10. On being put to notice, Service Selection Board (in short Board), filed objections and taken a plea that applicant is not eligible for District Cadre post of Teacher, Poonch in terms of Section 13 of the Act of 2010 and condition (b) and (c) of the advertisement notice, has not been put to challenge by the applicant. The applicant being not eligible, as such, there is no question of comparison of her merit with eligible candidate(s) in as much as, conditions of advertisement notice bars a candidate who is not residing in the concerned District continuously for a period of 15 years, at the time of advertisement.

11. Mr. Abhinav Sharma, learned Sr. Counsel appearing for the applicants-Palvi Arora and Ira Leo contended that State cannot invoke

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the doctrine of gender discrimination in the matter of appointment to a public post and in the case in hand, exclusion of applicants by the respondents is not only arbitrary, but is also contrary to the right of equality as guaranteed by Article 14 of Constitution of India. It is further argued by the learned Sr. Counsel that as per terms and condition mentioned in the advertisement notice, the marriage of the applicants with a person of different District will disqualify the applicants for their selection to the post of Teacher in the District in which they are residing after their marriage and, therefore, Section 13(1) of the Act of 2010 is unconstitutional being grossly discriminatory, not based upon valid classification and militates against the very concept of justice in the light of sub-section (2) & (3) of Section 13 which provides safeguards to certain categories of person for their eligibility to the post in question.

12. The learned Sr. Counsel for the applicants further urged that after a period of three years of the Act of 2010, the discrimination provided in Section 13 (1) of the Act of 2010 to the females was removed by the Jammu and Kashmir Civil Services Decentralization and Recruitment (Amendment) Bill, 2013 after the amendment of the Act of 2010 which clearly suggests that there was total non- application of mind at the time of incorporating Section 13 (1) in the Act of 2010. Hence, the same is unconstitutional and ultra vires.

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13. We have heard the learned counsels for the parties and carefully gone through pleadings and material on record.

14. The moot question that arises for consideration of this Tribunal herein is whether the respondents were justified in denying appointment to the applicants for the post of Teachers in terms of advertisement notice No. 07 of 2010 dated 12.11.2010.

15. To recapitulate, the case of the applicants was that as per the abovementioned Advertisement Notice calling for application to the post of Teachers, only the candidates who were actual residents of the respective Districts having resided in such District or Division for a period not less than 15 years, were eligible to apply for the post. Applicant Palvi Arora, before her marriage was a resident of District Jammu and in the month of December 2007, she got married to Shri Gagan Gupta, resident of District Poonch and after her marriage she had shifted to District Poonch and started residing there with her husband. In so far as applicant Ira Leo is concerned, before her marriage she was a resident of District Kathua and after her marriage with Shri Kulveer Singh, resident of Village Tudhi, Tehsil and District Rajouri in the year 2010, she started residing with her husband in District Rajouri.

16. The Board in terms of the aforesaid advertisement notice invited applications for the post of Teachers amongst different Districts which also includes District Rajouri and Poonch as well. Since, the post of

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Teachers in District Poonch and Rajouri were District Cadre posts and, therefore, the candidates who were residents of the above mentioned Districts were only eligible to apply for claiming a right for consideration to the post in question.

17. According to the notification No. 7 of 2010, selection was to be made strictly in terms of the Act of 2010 and the rules thereunder. Section 6 of the Act of 2010 inter alia, envisaged that a person would be eligible for appointment to a District Cadre post only, if he was a resident of the concerned District and possessed the requisite qualification, eligibility and experience prescribed for the post. Section 13 of the Act of 2010 defined ‘Residence’ as under:- “13. Residence:-

A person shall be deemed to be resident of a particular District or Division if he/she has resided in such District Division as the case may be for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area.

Notwithstanding anything contained in sub- section (1), a person shall not be disentitled from claiming the residence in a particular District or the Division only on the ground that his/her father/mother or the person on whom he/she is dependent is living in a place outside the said District or the Division, as the case may be, on account of his/her employment, business profession, vocational reasons or temporary dislocations from his/her original place of residence due to security reasons.

Notwithstanding anything contained in sub- section (1), the candidates applying under Scheduled Caste category for any post in the

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Divisional or District Cadre shall, irrespective of their place of residence in the State, be eligible for selection against the posts reserved for the said category at such selection.”

18. Amendment to Section 13 of the Act of 2010 was incorporated by the Jammu & Kashmir Civil Services Decentralization and Recruitment (Amendment) Act, 2013 and notified on 22.03.2013, which reads as under:- “(2) Amendment of Section 13 Act XVI of 2010 – In Section 13 of the Jammu & Kashmir Civil Services Decentralization Act, 2010, after sub-section (3), the following sub-section shall be inserted, namely:- “(4) Notwithstanding anything contained in sub-section (1), if a woman marries outside her District/Division, the period of residence of 15 years under the said sub-section (1) shall not operate as a bar for applying to a post provided that her husband has resided in that District/Division, as the case may be, for a period not less than 15 years.”

19. The Statement of Objects and Reasons of the Bill of 2013 amending provisions of Section 13 of the Act of 2010 reads as under:- “The Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010, envisages recruitment to the State, Division and the District Cadre posts. A candidate can apply only against the cadre posts of the domicile District or the Division. Such restrictions, however, do not apply to the Scheduled Caste candidates. Section 13 of the Act provides that a person shall be deemed to be resident of a particular District or Division if he/she has resided in such District or Division, as the case may be, for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area. A Public Interest Litigation (PIL) No. 27/2011 titled “Sewa National Services Organisation Vs. State of J&K and Others” was filed before the Hon’ble High Court, challenging the above

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said section on the grounds that the provision relating to minimum 15 years period is discriminatory so far it pertains to the married women. The petitioners contended that the minimum residence of 15 years applies harshly in respect of a female folk who marry outside their District/Division. Further, the impugned provision of the section also violates Articles 14 & 15 of the Constitution of India. The Hon’ble Division Bench disposed of the subject petition on 13-03-2012, with the following order:- The instant petition (PIL) is disposed of with a direction to the respondents to treat it as representation for according consideration, which exercise shall be completed within three months time positively from today.

The Bill seeks to attain this objective.”

20. The applicants in the present TAs were not considered for appointment to the post of Teacher on the ground of being married to persons of different Districts, as per conditions of Advertisement Notice and Section 13 (1) of the Act of 2010.

21. Article 14 of the Constitution Equality before law – The State shall not deny any person equality before law or equal protection of law within the territory of India.

(i) Article 14 guarantees to every person the right of equality. Treatment of equals as unequals or unequals as equals will be violative of Article 14. It prohibits class legislation but does not prohibit reasonable classification. Doctrine of reasonable classification has been evolved by the Apex Court as a judicial formula for determining, whether the State action is arbitrary and denial of equality or not. If the classification is not reasonable, State action

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would be arbitrary and against the guarantee of equality under Article

14.

(ii) Hon’ble Supreme Court in Constitution Bench of Seven Judges in the matter of State of West Bengal –vs- Anwar Ali Sarkar [1952 (1) SCC 1; 1952 SCR 284] has held that Article 14 does not permit class legislation but permits reasonable classification. Hon’ble Supreme Court has further held that the constitutional validity of any legislation has to be tested applying the twin tests laid down by Hon’ble Supreme Court in this case as follows : “85. It is now well established that while Article 14 is designed to prevent: a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an "abstract symmetry" in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short,

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while the article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily select out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the application of Article 14 and consequently has the merit of flexibility.”

(iii) Equality before law or equal protection of law does not mean the same or uniform treatment to everyone. It means equals must be treated equally while unequals must be treated differently. For application of the principle of equality, it must differentiate between those who are equal and those who are different. Right to equality under Article 14 requires legislation for its operation so that equals may be treated equally and unequals may be treated differently. Principle of equality does not mean that law must have universal application to all persons. It means different classes of persons require different treatment.

(iv) When a legislation is challenged on the ground of violation of equality under Article 14, firstly, it is to be ascertained as to the policy underlying the statute in question and the object intending to be achieved by the statute, and then secondly, it is to be ascertained whether classification is rational and founded on an intelligible differentia which distinguished persons that are grouped together from others that are left out of the group and whether the basis of differentia has any rational nexus with the object sought to be

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achieved by the legislation. If the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group and the differentia has a rational relation with the object sought to be achieved by the legislation in question, the classification will be reasonable and valid classification. Any arbitrary classification certainly will be violative of Article 14 of the Constitution. If it is essential to make classification under Article 14, such classification has to be fair, reasonable and intelligible and not fanciful or whimsical. When a constitutionality of a legislation is challenged on the ground of discriminatory and unreasonable classification, it has to be tested applying the well settled two requirements/tests as mentioned above i.e. (1) that classification is founded on intelligible differentia and (2) that differentia has a rational relation with the object sought to be achieved by the legislation.

22. The Jammu & Kashmir Civil Services Decentralization and Recruitment Act, 2010 has been enacted by the State Legislature with objective to provide for equitable opportunities of employment in the Civil Services in the State keeping in view its complex socio- economical and geographical/topographical/linguistic/security concerns and matter connected therewith and incidental thereto.

23. The question of seminal importance that arises before this Tribunal is whether a woman who has been married out of a District,

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where she was born and resided before her marriage, could be discriminated for the post in question only on the ground that she had got married to a person of different District.

24. Holding thus, we may say, would be going against the nature of human beings, as applicants who are females and on account of no fault of theirs had to leave their place of original residence, cannot be expected to remain unmarried only to secure a job in the Districts where they resided before their marriage. In such a situation, to hold that a woman would lose an opportunity to participate in a selection process for the post of Teacher in the District where she after marriage is residing would be discriminatory and bring inequality. Such a situation has arisen only on account of patriarchy that prevails in the human society which is against the concept of equitable opportunities of employment in the civil services.

25. In Zile Singh Vs. State of State of Haryana & Ors (2004) 8 SCC 1, it was held by Hon’ble Supreme Court in para 14 as under:- “14. The presumption against retrospective operation is not applicable to declaratory statute….In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended……An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was

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already implicit. A clarificatory amendment of this nature will have retrospective effect.”

26. In the case of Anuj Garg and others Vs Hotel Association of India and others (2008) 3 SCC 1, the Hon’ble Apex Court while dealing with the concept of employment subject to just exceptions recognized by Article 16 of the Constitution has observed in paragraph no. 24 as under:- “Right of employment itself may not be a fundamental right but in terms of both Articles 14 and 16 of the Constitution of India, each person similarly situated has a fundamental right to be considered therefor. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria.”

27. In a recent judgement delivered by Hon’ble Supreme Court on 14.02.2024 in the case of Union of India and others Vs. Ex. Lt. Selina John in Civil Appeal No. 1990 of 2019, while dealing with the case of Ex. Lt. Selina John, who was a Permanent Commissioned Officer in the Military Nursing Service and was released/discharged from service on the ground that she had got married, the Hon’ble Supreme Court has observed that such rule applicable to only Women Nursing Officers was ex-facie manifestly arbitrary, as terminating employment because the woman has got married is a coarse case of gender discrimination and inequality. It was also observed by the Hon’ble Apex Court that acceptance of such patriarchal rule, undermines human dignity, right to non-discrimination and fair treatment because laws and regulations based on gender-based bias are constitutionally impermissible and rules making marriage of

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women employees and their domestic involvement a ground for disentitlement would be unconstitutional.

28. From the legal position stated above and from the Statement of Object and Reasons of Bill of 2013 through which amendment to Section 13 of 2010 Act was introduced, it is manifest that individual rights of women in the matter of employment shall not be discriminated. Thus, the denial to the post of Teacher by the Jammu & Kashmir Service Selection Board to the applicants despite their merit, on the ground that they had married a person out of the District of their residence is a classic case of gender discrimination and inequality in the eyes of law being violative of Article 14 of Constitution of India. Conclusion and Decision

29. In view of the discussion made above and in the facts and circumstances of the case, both the TAs are allowed:- i. In T.A. No. 89 of 2024, applicant Palvi Arora is held entitled to selection and her appointment as Teacher in District Poonch under General Category, consequently, respondent No. 2 in the said T.A. is directed to recommend the name of the applicant to Respondent No. 1 for her appointment, as one post has already been reserved by the Hon’ble High Court.

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ii. Respondent No. 1 is directed to appoint the applicant as Teacher in District Poonch under General Category, notionally w.e.f. date other selected candidates pursuant to advertisement No. 07 of 2010 were appointed without any monetary benefits, however, the applicant Palvi Arora is entitled for fixation of pay by treating her appointment from retrospective effect i.e. the date when other selected candidates more specifically Respondent No. 3 to 6 were appointed, by fixing her pay. iii. In T.A. No. 105 of 2023, it is directed as under:- a. The applicant Ira Leo is held entitled for selection and consequent appointment as Teacher in District Rajouri under General Category being more meritorious than the last candidate selected; b. Respondent No. 3 is directed to recommend the name of the applicant for appointment as Teacher in District Rajouri under General Category to respondent No. 1 to 2 and respondent No. 1 to 2 are directed to appoint the applicant Ira Leo as Teacher under General category in District Rajouri, by creating a post of Teacher on supernumerary basis, notionally with retrospective effect i.e. w.e.f the date the other selected candidates pursuant to

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advertisement notification No. 07 of 2010 were appointed and the pay of the applicant is required to be fixed by considering her appointment with retrospective effect i.e. w.e.f. the date other selected candidates were appointed.

30. Let the aforesaid exercise be completed within a period of two months from the date of receipt of a certified copy of this order.

(Pragya Sahay Saksena)

(Sanjeev Gupta) Administrative Member

Judicial Member

Arun…