LexC. B. MUTHAMMA versus UNION OF INDIA & ORS.
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I\ B c 0 E F G • I 668 C. B. MUTHAMMA v. UNION OF INDIA &. ORS. September 17, 1979 [V. R. KRISHNA IYER AND P. N. SHINGHAL, JJ.J Consritution of India-'-Articles 14 & 16-Scope of. The petitioner is a senior member of the Indian Foreign Service and com- plains that she had been denied promotion to Grade I of the Indian Foreign Service on the grounds that (i) there is a long standing practice of hC1Stile discrimination against women (ii) bad to give an undertaking at the time of joining the foreign service that if she were to get married, she would resign from the service (iii) had to face the consequences of being a woman and thus suffered discrimination and (iv) the members of the appointment com- mittee, of the Union cabinet and respondent No. 2 are basically prejudiced against women as a group. The petitioner has further challenged two rules namely rule 8(2) of Indian Foreign Service (Conduct and Discipline) Rules 1961 and Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre Senio~ity and Promotion) Rules 1961, which in short .states that a woman member of the service shall' obtain permission in writing of the Goyernment before marriage and the woman member may be required to resign any time after marriage if the Government is satisfied that her family and domestic commitments \Vilt han1per her duties a~ a member of the service and under the second rule no married woman shall be entitled as of right to be appointed to the service. The petitioner's remaining grievance is that during the interval of some months between her first evaluation and the second, some officers junior to her, have gone above her and her career "·ouJd be affected, Disn1issing the petition, HELD : "fhat sex prejudice against the Indian \\'Omenhood pervades the service rules even a third of a century after Freedom. There is Some basis for the charge of bias in the rules and this makes the ominous indifference of the executive to bring about the banishment of discrimination in the heritage· of service rules. If high officials lose hopes of equal justice under the rul~s. the legal lot of the little Indian, already priced' out of the expensive judicial market, is best left to guess. This disturbing thought induces the making of a few observations about the two impugned rules which. appear prima facie, discriminatory against the female of the species in public service and have surprisingly survived so long, presumably, because servants of Government are afraid to challenge unconstitutional rule making by the Administration. [669 E-HJ Discrimination against \Vomen, is found in Rule 8 (2). If a woman member shall obtain the permission of Government before the marriage, the same risk is run by Government if a male meil)ber contracts a marriage. If the family and domestic commitmen~s of a woman member of the service is likely to conie in the way of efficient discharge of duties, a similar situation may \Vcll arise in the case of a male member. In these days of nuclear families, intercontinental marriages and unconventional behaviour, one fails to under- • • \ .. c. B. MUTHAMMA v. UNION (Krishna Iyer, !.) 669 1Stand, the naked bias against the gentler of the species. Rule 18 ( 4) is in defiance of Art. 16. If a married man has a right, a married woman, other things being equal, stands on no \Vorse footing.. Freedom is indivisible, so is justice. That our founding faith enshrined in Art. 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz., our women is a sad reflection on the distance betv.reen Constitution in the book and Law in action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially \vhen high political office, even diplo- matic assignment, has been filled by \\'Omen, the inference of die-hard allergy :to gender parity is inevitable. As Rule 18(4) has been deleted in November, 1973, and rule 8(2) is on its way to oblivion as its deletion is being gazetted, there is no need to scrutinise or strike down these rules. The petitioner ·bas, after the instiftition of this proceeding, been promoted and where justice ihas been done, further probe is otiose. [671 B-D, E-G, 672 CJ The Court directed- the respondent to review the petitioner's case with ·particular focus on seniority vis-a-vis those junior to her \vho have been pro- ·moted in the interval of some months. It was further
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