V.S. Deshpande, C.J.
(1) On the one hand. Articles 14, 15(1), 16(1) and 16(2) of the Constitution declare the right to equality and prohibit the State from practicing discrimination. On the other hand, Articles 46, 15(3), 15(4) and 16(4) firstly impose a duty on the State to promote with special care the educational and economic interests of the weaker sections of the people and enable the State to make any special provision for women and children as also lor the advancement of socially and educationally backward classes of citizens as also for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. The former is the negative and the latter is positive aspect of the fundamental right of equality. Equality is not only proclaimed as an ideal but is sought to be achieved in actuality by asking the State to remove inequality and enabling it to make appropriate provisions. These two classes of provisions should, therefore, not be conflicting but have to be read together to make up the ideal of equality effective and real. It is in this context that we have to consider whether the impugned orders dated 30-6-1978 and 22-7-1978, annexures A and C to 'the writ petition, reserving the posts of Enquiry and Reservation clerks in the four metropolitan cities of Delhi, Bombay, Calcutta and Madras in the Railway for women only are contrary to the former set of provisions, namely. Articles 14, 15(1), 16(1) and 16(2), or whether they are justified by reading Articles 46, 15(3), 15(4) and 16(4) with the above provisions.
(2) The petitioners fall into two classes. Petitioners I to 24 belonged to commercial category of Railway services and aspire for being selected and appointed to the posts of Enquiry and Reservation clerks. They are otherwise eligible for being considered for such appointments. They are now barred from being so considered because the impugned order, dated 30-6-1978 restricts future recruitment to these posts in the four metropolitan cities only to women. The written test which was to be held for selection of candidates for these posts was to be confined to women by the impugned order, dated 22-7-1978. These petitioners complain that the impugned orders have made them ineligible for and have discriminated against them in respect of the posts of Enquiry and Reservation clerks in these four cities on the ground only of the sex of the candidates. They thus contravene Article 16(2) which is as follows:
"NO citizen shall, on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of. any employment or office under the State."
(3) The rest of the petitioners arc already serving in the Enquiry and Reservation office at Delhi. They joined in the petition under the apprehension that they may be moved out of the said office and would not be allowed to continue. This apprehension was misplaced as the impugned orders expressly contemplate that the men who are presently working in the Reservation office arc not to be moved out unless they volunteer to go out.
(4) Petitioners I to 24 pray that the impugned orders be quashed as they infringe their fundamental right of not being ineligible for and not being discriminated against in respect of these posts. Firstly, it is urged that the Government is concerned with the existence of malpractices in the reservation offices and public complaints arising there from arc well known. With a view to reduce the mal-practices it is considered that women instead of men should alone be recruited in future to the posts of Enquiry and Reservation clerks initially. For, in the social conditions obtaining at present in the country women employees are less susceptible to improper influence. The Government considered that a substantial improvement could be effected if women arc employed in the Reservation offices. For instance, in the Reservation office of the Western Railway at Churchgate, Bombay, only women are employed. It is found that there are virtually no complaints about any mal-practices in that office. Further, there is an intelligible differentia between the metropolitan and non-metropolitan cities. To the former there arc long queues of intending passengers waiting for reservation and purchase of tickets unlike in the latter. To deal with such long queues qualities such as courtesy and patience are absolutely essential and these are generally speaking more to be found in women. The greater suitability of women thus underlies this classification which is reasonable in relation to the object sought, to be achied, namely, more satisfactory public service and avoiding causes for complaint I against malpractices.
(5) Secondly, women are barred from applying for many Railway jobs, particularly field jobs. For instance, in the Railway Advertisement issued in the Indian Express of 22nd July, 1978 women are excluded from eligible candidates for 19 out of the 30 posts advertised. To make up for the exclusion of women from a large number of posts as a measure of compensation it is sought to be just that the posts of Enquiry and Reservation clerks should be reserved for women and should not be open to men. Women as a class are backward any they are greatly under-represented in the Railway service. They occupy less then 5 per cent of posts in the Railway. The impugned orders arc steps towards the betterment of the conditions of women in respect of Railway employment. They are justified as special provision for women within the meaning of Article 15(3) and also as reservation in favor of backward classes of citizens who are not adequately represented in the Railway service. If these provisions are read with Articles 14, 15(1), 16(1) and 16(2) it would be found that they arc justified as reasonable classification and arc not contrary to Articles 15, 15(1), 16(1) and 16(2).
(6) Let us consider the second defense only raised by the Railway Administration, For, it is by itself a sufficient answer to the writ petition The Present Condition of Women :
(7) The Report of the Committee on the Status of women in India(1974) gives us the facts of backwardness of women in three fields (a) Economic. Particularly in relation to employment. In paragraph 5.221, the Report says, "Their proportion to total workers, which was more or less constant at 3.3 per cent declined to 2.5 per cent in 1968. In the category of clerical and related workers, the number of women with the only exception of 1962, has gone up from 0.37 lakhs in 1960 to 0.79 lakhs in 1968. For the same period their proportion to total workers in this category has gone up from 4.2 per cent to 7.6 per cent." (b) Regarding Education. "Educational experts now admit that the delay in the achievement of the Constitutional directive (for increasing elementary and secondary education among women) is mainly due to the slow progress of education among girls, scheduled castes and scheduled tribes. The discrepancy in the progress of education between boys and girls may be seen in the marked difference in the percentage of boys and girls of the corresponding age groups enrolled in primary', middle and secondary schools." (para 6.12 of the Report). The Prime Minister, Shri Morarji Desai, rightly observed that the problem if illiteracy in India is practically the problem of rural women because they are the most backward in the matter of education (Hindustan Times, 3rd October, 1978, p. 1). (c) Social backwardness of women is wellknown. The Report says, "Every legal measure designed to translate the constitutional norm of equality or special protection into actual practice has had to face tremendous resistance from the legislative and other elites, ....the revolution in social and political status of women for which constitutional equality was to be only the instrument, still remains a very distant objective......though women do not numerically constitute a minority, they arc beginning to acquire the features of a minority community by the three recognised dimensions of inequality : Inequality of class (economic situation), status (social condition) and political power. If this trend is allowed to continue the large masses of women in India may well emerge as the only surviving minority continuously exposed to injustice....... The chasm between the values of a new social order proclaimed by the constitution and the realities of contemporary Indian society as far as womens rights arc concerned remains as great as at the time of independence.... .the norms and attitudes regarding a women's role in society remains traditional. In this sense, the new rights prove to be only concessional." (The Report: paragraphs 7.96, 7.97, 7.98. 7.99 and
(8) The necessity of taking measures for the amelioration of women in India can hardly be denied. Even in advanced countries women have been complaining of inequality and a whole movement for redress of the inequality is afoot the world over. In India the degree of inequality suffered by women is more pronounced. Equality Versus Liberty:
(9) In constitutional law, as in political science, the objectives of equality and liberty have not been found to be always reconciliable. In interpreting the right to equality guaranteed by Articles 14, 15 and 16 the Supreme Court was at first inclined to emphasise liberty as against the necessity of affirmative action by the state. Hence in State of Madras v. Sm. Champakarn Dorairajan and another, .
denial of admission to educational institutions by communal reservation was struck down as being discrimination based on caste alone contrary to Article 29(2) of the constitution. In the decision in the State of Bombay v. Bombay Education Society and Ors. , also the emphasis was on discouraging A exclusion of students from an English medium school on the ground of language alone contrary to Article 29(2). The emphasis has gradually shifted as the elites and the Government have increasingly realised the wisdom of sacrificing some of the liberties of individual (which in practice mean the better placed persons in society) for the benefit of the down-trodden and the needy. In M. R. Balaji and Ors. v. The State of Mysore and Ors. , the Supreme Court concerned that reservation of
seats to the extent of 50 per cent would be justified under Article 15(4), but stated that Article 15(1) should not be wiped out by allowing reservation of seats under Article 15(4) in excess of 50 per cent. Similarly, the earlier view was that classification based on caste was contrary to the constitution because Article 15(4) and 16(4) referred to class and not caste. It was later realised, however, that a caste also can constitute a class and is in fact a well known basis for social classification. It has now been held in several decisions of the Supreme Court that if the caste as a whole is backward then the reservation of jobs in favor of caste as a whole can be justified under Article 16(4) and is not contrary to Article 16(2) (State of Andhra Pradesh v. U.S.V. Balram, Etc. in which the previous decisions are also considered. Special Provision for Women :
(10) The totality of provisions firstly declaring the right to equality and secondly enabling the State to reduce the present state of inequality ^ by making special provisions for those who are suffering from inequality and correspondingly restricting the equality of opportunity available to the better placed classes have seen set out at the outset of this judge name The reason for enacting Articles 15(3) and 16(4) was that the right to equality declared in Articles 15(1), 16(1) and 16(2) had to be balanced by benign or reverse discrimination made in favor of the disadvantaged classes by Articles 15(3) and 16(4), when it was realised that Articles 15(1) and 29(2) asserting the equality of opportunity to everyone whether fortunately placed or not and would not permit benign or reverse discrimination in favor of the backward classes. The Constitution (First Amendment) Act, 1951 added clause (4) to Article 15 to enable the State to discriminate in favor of the backward classes under Article 15 just as this purpose is served by clause (4) of Article 16 for the purpose of that Article.
(11) The actual inequality of opportunity between men and women has been brought out statistically and authoritatively by the report on the Status of Women in India referred to above. It became the duty of the State thereafter to redress the balance between men and women in employment. This could be done by resort to either Article 16 read 429 2nd (1979) I Delhi Shri Charan Singh & others Vs. Union Of India and Ors. A with Article 16(4) or Article 15(3). The Commissions which were appointed initially by the President under Article 340 and later by the States under Articles 340 and 341 to lay down the criteria of who should be considered to be backward classes and who should be deemed to be scheduled castes and tribes have not specifically dealt with women as " a backward class. But the reports of these commissions are not a condition precedent for the construction of the provisions made in Articles 15(4) and 16(4). In theory women form a class as distinguished from men who form another class. In social, educational and economic spheres women have been far more backward than men. This is evident not only in India but in most parts of the world. The word "backward" expresses essentially a relationship or comparison. It is only in relation to men or in comparison with men that the question of women as a class being backward can arise. In theory, therefore, one can say that women are a backward class as compared to men. Women satisfy the educational, social and economic criteria of backwardness as compared to men. This fact is clouded and has not been brought to the forefront because the search for the criteria of backwardness has been restricted to comparisons being made between different castes, communities or social classes, each of them including men as well as women. But when the condition of women is to be considered, one can approach by treating women as a class and compare the condition of women as against the condition of men. It is only because a classification between men and women based on the backwardness of women was not attempted by the various commissions that the suggestion that women are a backward class may look somewhat novel. But its novelty is no argument against the soundness of such classification.
(12) Fortunately for the respondents, however, it is hardly necessary for them to seek the help of Articles 15(4) and 16(4). For, Article 15(3) pre-supposes that women are a disadvantaged class and special provision regarding them can be validly made by the State with a view to reduce the inequality between women and men. Article 15(3) however, is to be applied in the same way that Articles 15(4) and 16(4) have to be applied in the context of Articles 14, 15 and 16. Formerly, Article 16(4) was regarded as an exception to Article 16(1), while Article 15(4) was to be an exception to Article 15(1). This approach meant that the provisions under Articles 16(4) and 15(4) had to be limited. For instance, reservation in favor of backward classes could comprise not more than 50 per cent of the seats (or posts) because an exception could not be allowed to destroy the rule itself. The decisions in M. R. Balaji and others v. The State of Mysore and others, , and T. Devadasan v. Union of India and another. ,
illustrate this approach.
(13) Rising aspirations of the down-trodden and the disadvantaged classes, however, gradually altered the judicial view as to the relationship between Articles 15(1) and 16(1), on the one hand, and Articles 15(3), 15(4) and 16(4) on the other. The seven-Judge Bench in State of Kerala v. N. M. Thomas and others, , has
considered the development of the case law under Articles 14, 15 and 16 from the very beginning. In the new context of the urgent need to ameliorate the condition of the backward classes as also of the scheduled castes and tribes, the majority of the Bench arrived at the conclusion that Article 16(4) can no longer be regarded as an exception to Article 16(1). Consequently no limitation can be placed on the number of posts that can be reserved under Article 16(4) to cut down the right of equality enjoyed by the better placed classes under Article 16(1). The reason is that whatever is reasonable and necessary ought to be done under Article 16(4). Such action is only an illustration of reasonable classification which is already permitted under Article 16(1). Article 16(4) is, therefore, only an emphatic illustration of Article 16(1) or rather an application of the principle of Article 16(1) to backward classes.
(14) In so far as the decision in Thomas is that Articles 14, 15 and 16 have to be read together to form the totality of provisions dealing with the right to equality, it follows the previous decisions of the Supreme Court. Thomas, however, goes further and gives a wider scope to the power of the State to practise benign or reverse discrimination to help the backward classes or scheduled castes or tribes. The power of the State under Article 16(4) is as wide as its general power of reasonable classification spelt out from Articles 14, 15(1). 16(1) and 16(2). It is not necessary to treat Article 16(4) as an exception to the general rule. Had it been treated as an exception its scope would have been narrower and it would have to be strictly construed. Not being an exception but only an application of the general rule. Article 16(4) can be as widely construed as Article 16(1), which includes reasonable classification.
(15) To some extent the view later expressed in Thomas regarding Article 16(4) was anticipated by a Full Bench of the Punjab & Haryana High Court in Shamsher Singh Hukam Singh v. The Punjab State and others, , while dealing with Article 15(3). Sarkaria J. speaking for the majority pointed out that the Supreme Court in Guzula Dasratha Rama Rao v. State of Andhra Pradesh, . apparently accepted the argument that Article 15 is more general than Article 16. Once it is recognised that reasonable classification or observation in favor of the disadvantaged classes is not restricted to Article 16 but can be justified under Articles 14, and 15 also, the scope of Article 15(3) becomes wide enough to include reservation of posts under the Government. The Full Bench decision of the Punjab & Haryana High Court is an authority for this proposition. The wide ambit of Article 15 is also apparent from the decision of the Supreme Court in Yusuf Abdul Aziz v. State of Bombay, , upholding
the decision of the Bombay High Court in Yusuf Abdul Aziz v. State of Bombay, . The approach of the Full Bench of the Punjab & Haryana High Court to Article 15 is justified by the subsequent approach of the Supreme Court to Article 16 and its holding that Article 16 is not exclusive but. has to be read with Articles 14 and
15. The significance of Thomas, as pointed out by O. Chinnappa Reddy J. for another Full Bench in Jagdish Rai and others v. State of Haryana and others, , is that it has made the previous
approach to Articles 14, 15 and 16 out of date. It is particularly shown that Article 16(4) is not to be restrictively interpreted as an exception and, therefore, no limitation about the reservation of posts can be imposed in construing Article 16(4). Article 16(2) :
(16) It must be recognised that the reservation of the posts of Enquiry and Reservation clerks for women only by the impugned order would have been hit by Article 16(2) as a classification based on sex only, but for the fact that the impugned orders are justified as a special provision for women under Article 15(3). The interpretation of the word "only" in Article 16(2) has to take into account the actual impact on the fundamental right made by the classification based on sex alone. The laudable objects of the classification cannot be taken into consideration (Punjab Province v. Daulat Singh and others, Air 1942 Fc 38(12), Punjab Province v. Daulat Singh and others. , State of Madras v. Sm. Champakarn Dorairajan and another. , and State of Bombay v. Bombay Education Society and others, ). The decision of a Division Bench of the
Punjab & Haryana High Court in Mrs. Raghubans Saudagar Singh v. The State of Punjab and others, . on the construction of Article 16(2) does not seen to give due weight to the above mentioned decisions. On the contrary the decision of Anand J. in Walter Alfred Baid v. Union of India and others. . is in tune with the Federal Court, Privy Council and the Supreme Court in construing Article 16(2).
(17) But Article 16(2) docs not affect the result of the present case. For. the impugned orders are not hit by Article 16(2) as they have been made in pursuance erf Article 15(3) which has been deliberately enacted to enable the State to discriminate in favor of women by way of a reasonable classification which is not hit by Article 15(1) or Article 16(2).
(18) In Mahadeb Jiew and another v. Dr. B. B. Sen, , P. B. Mukharji J. brought out the true scope of Article 15(3) vis-a-vis Article 15(1). It was pointed out that what is prohibited by Article 15(1) [as also by Article 16(2)1 was adverse discrimination. What is allowed by Article 15(3) [as also by Article 16(4)1 is benign, or protective discrimination by which women and backward classes are helped towards equality. Remedial and welfare provisions such as Article 15(3). particularly under the Constitution, have to be widely construed. As P. B. Mukharji J. said, the expression "special provision" in Article 15(3) has to be construed in contradistinction to the expression "discriminate against" in Article 15(1). li is because discrimination in Article 15(1) means discrimination against a person or class that special provision for women means beneficial action in favor of women. Article 15(3) :
(19) Mr. R. L. Tandon, learned counsel for the petitioners, was repeatedly asked by us to suggest any argument which would justify us in reading down the expression "special provision for women" used in Article 15(3). The learned counsel could not do so. We have, therefore, no reason to hold that benign reservation for women brought about by the impugned orders is contrary to Article 15(1) or 16(1) and 16(2). Our decision is facilitated by the decision in Thomas case (supra) in which it has been finally established that Articles 14, 15 and 16 arc to be read together and they together constitute the guaranteed right of equality which requires the State not only to abstain from discrimination but actually bring about equality. The doctrine of affirmative action is now gaining increasing acceptance by the courts in the United States as is seen by the recent decision in Regents of the California University v. Bakkc, decided by the U.S. Supreme Court on 26th June, 1978(17). But it is gratifying to note that our Constitution has directed the State to take affirmative action to bring about equality in place of inequality from the inception of the Constitution as is shown by provisions like Articles 15(3), 16(4), 46 and 335. We, therefore, hold that the impugned orders are justified as reasonable classification required to be made by Article 46 and enabled by Article 15(3) of the Constitution.
(20) The decisions culminating with the decision in Balram's case (supra) holding that classification based on caste is also not contravening Articles 15(1) and 16(2) provided that the caste as a whole is backward so as to be entitled to the benefit of Article 16(4), have an obvious application to our case. On the same analogy a classification based on sex alone is not invalid if Article 15(3) is applicable to it. There is a close analogy between caste and sex. As observed by Elisabeth Mann Borgese in the Great Ideas Today. (1966), page 26. "The division and specialisation according to sex is a caste division". The reason is that both sex and caste are based on the same principle of exclusiveness and lack of social mobility. If classification based on caste is valid according to State of Andhra Pradesh v. U.S. V. Balram (supra) in spite of Articles 15(1) and 16(2) because of Articles 15(4) and 16(4), it necessarily follows that classification based on sex is valid in spite of Articles 15(1) and 16(2) because of Article 15(3). New meaning of article 14 :
(21) The United States Constitution Fourteenth Amendment is analogous to our Article 14. But there are no provisions analogous to Articles 15 and 16. Benign discrimination has, therefore, to be justified in the United States by an appropriate construction of the Fourteenth Amendment. In that direction the view expressed by Chief Justice Earl Warren of the United States Supreme' Court is noteworthy. He has argued that while equality before law requires the slate to refrain from discrimination, the equal protection of the laws goes further. When the Fourteenth Amendment was introduced in the U. S. Constitution, according to Chief Justice Warren, it did more than simply require the states to refrain from affirmative action which discriminated against Negroes. The amendment went further and placed upon the states an obligation to provide to Negroes and whites alike that legal protection which government owes to all men. "Fourteenth Amendment" edited by Bernard Schwartz, (pages 221 and 222). This construction shows that even Article 14 contains both the negative and positive aspects of the right of equality. Reasonable classification:
(22) The impugned orders have been attacked as if they are a wholesale exclusion of men by women. This argument is contrary to facts. The words "reservation" is a relative concept. Its meaning depends on its context. The impugned orders have reserved future recruitment to women only in the four metropolitan cities in the Enquiry and Reservation offices only. The rest of the Reservation offices in the country are open to everyone. Similarly, the other 434 Railway services are also open to all and in fact women are excluded from many of the posts in the Railway as pointed out by the respondents in their pleadings. Compared to the total employment by the Railways or even to the employment in all the Reservation offices of the Railways, the reservation in favor of women is of a microscopic number of posts. It is true that the impugned rule in the Thomas case did not in terms reserve posts for scheduled castes and tribes but enabled them to be promoted without having passed the test and attended time to enable them to pass the test after promotion. But there also the petitioners who did not belong to scheduled castes or tribes could justly contend that to that extent the benefit was reserved to the members of the scheduled castes and tribes and the posts which they occupied by promotion without passing the test were reserved for them for the period of time which was given to them for passing the test It would thus be seen that the mere fact that reservation of some posts is made for women does not mean that there is a complete exclusion of men cither from the Railway service as a whole or even from the Reservation offices in the Railway as a whole.
(23) Mr. R. L. Tandon then tried to make a distinction between "ineligibility" and "discrimination". He argued that Article 16(2) totally prohibited mating any one ineligible for a post on the ground of sex, though it did not totally prohibit discrimination in so far as reasonable classification was legal. We do not think that any distinction can be made between ineligibility and discrimination. To the extent that a person is discriminated against he is made ineligible for the benefit which is denied to him by discrimination. Vice versa to the extent that a person becomes ineligible for appointment to a post he is discriminated against in that respect. If reasonable classification is an answer to the charge of disermination, it is also an answer to the charge of ineligibility. At any rate. Article 15(3) is so widely worded that it can successfully help women and in that process can make men ineligible so long as this is done as a "special provision for women".
(24) Before concluding it may be observed that petitioners 25 to 54, who arc already working in the reservation office in the metropolitan city of Delhi have nothing to fear. Firstly, they are not compelled to go out. Secondly, they would be treated on a footing of equality with women so long as they are working in one office with women. This equality extends to all service benefits including promotions.
(25) For the above reasons the writ petition is dismissed with no order as to costs.