It is significant to note that the appellant did not represent against her transfer to Secunderabad. She did not claim that the transfer to Secunderabad will cause hardship to her. it appears from the aforesaid letter of the third respondent dated June 4, 2001 that he was not in favor of her transfer to Secunderabad because "she was a lady officer with a small child". The letter also shows that the third respondent was of the view that it would be difficult for her to meet the Government Counsel in the evening or early morning frequently to discuss the cases. According to him, "if the lady officer was to be posted to the aforesaid station she was not to be posted as in charge of the Legal Cell but she was to be posted as an additional officer". These aspects were considered by the Judge Advocate General and the Military Secretary and both of them rejected the request for cancellation of the posting. Even otherwise, this attitude of the third respondent was clearly discriminatory. A married lady officer with a child cannot be considered to be a 'lame duck' incapable of discharging her duties efficiently. She can not be considered to be suffering from a handicap. Even without providing an opportunity to the appellant to discharge her duties at Secunderabad, the third respondent was of the view that it will be extremely difficult for her to carry out the tasks. In the absence of any empirical evidence, we fail to understand how such a prognosis could be made by the third respondent. It appears that there is still a lurking doubt about capabilities of lady officers. The letter smacks of discrimination and unequal treatment.
This is a Letters Patent Appeal directed against the order of the learned Single Judge dated August 24, 2001 passed in C.W.P. No. 4205/2001. By that order the learned Single Judge dismissed the writ petition of the appellant holding that there was no infirmity in the action taken by the respondents in transferring the appellant to Pune. Brief facts giving rise to this appeal are as follows :-
The appellant is married to an advocate who practise law at Chandigarh. She has a child of one and a half years. The appellant joined the Indian Army as a short service commissioned officer in the Judge Advocate General's Department on March 8, 1997. During the short span of four and a half years of her service career she is stated to have been transferred three times.
2. On Spetmber 27,1999 the appellant was posted as Staff Captain (Legal) in the judge Advocate General's Department at New Delhi. After working against that post for a period of about less than two years, the appellant was transferred to headquarters Andhra Sub Area, Secunderabad, as Officer in charge, legal Cell, by order of the Military Secretary (MS 14 Branch) dated May 21, 2001. As a consequence of the transfer, the appellant was given a movement order on June 28, 2001. Acting on the transfer order the appellant dispatched her luggage to Secunderabad. On July 6, 2001, the date on which she was to leave for Secunderabad by Rajdhani Express at 8.00 P.M., she received a message from the Military Secretary, MS 14, cancelling her transfer to Headquarters Andhra Sub Area, Secunderabd. Thereafter, on July 9, 2001 the appellant received a fresh order of posting dated July 6, 2001 requiring her to leave for Headquarters Southern Command, Pune. This change, according to the appellant, was brought about at the instance of the third respondent, Brig. P.Rajagopalan, Commander HQ, Andhra Sub Area, Secunderabad, which is evident from his letter to the Judge Advocate General dated June 4, 2001.
3. The appellant being aggrieved by the aforesaid order cancelling her transfer to Headquarters Andhra Sub Area, Secunderabad, and the order transferring her to Pune, filed the writ petition claiming that the impugned action was arbitrary, unjust, unfair and discriminatory. The learned Single Judge, as already noted, dismissed the writ petition. Not being satisfied with the order of the learned Single Judge, the appellant has filed, the instant Letters Patent Appeal.
4. We have heard the learned counsel for the appellant as also the learned Additional Solicitor General appearing for the respondents. In order to appreciate the controversy between the parties it is apposite to refer to the letter of the third respondent dated June 4, 2001 addressed to the Judge Advocate General on the subject of transfer of the appellant to Secunderabad. The letter reads as follows :-
"Brig P Rajagopalan, VSM Headquarters,
Commander Andhra Sub Area,
Secunderabad,
5000010
400008/LC 04 June 2001
Dear General,
1. Please refer to Army HQ Sig No: 392445/MS 14/JAG dated 21^st May 2001.
2. A lady offr Capt Dimple Singla with less than four years of service is being posted as OIC Legal Cell this HQ. There are a total of 176 court cases pending in AP High Court and 66 in Karnataka High Court. The legal Off would be required to attend the courts every day which is approx 22 kms from the HQ. The officer would also per force have to meet Govt. counsels in the evening/early morning frequently to discuss the cases as this is the only time they are available. It may be extremely difficult for a lady officer with a small child to carry out these tasks. There are three court martials schedule to commence immediately besides other sensitive court of inquiries in progress.
3. In the org interest it is requested that another legal offr be posted to this HQ. In case the lady offr is to be posted to the station she may be adjusted as an addl offr. It is requested that a case may please be taken up for posting a suitable offr in place of Major VPS Malik and till then status quo may pleas be maintained. In view of three important court martials schedule to commence shortly it is requested that mov of Major VPS Malik be delayed by 3 months as the offr has been dealing with these cases during the last 2 years.
With regards,
Yours sincerely,
Sd/-
Major General S.K.Sanan, AVSM, VSM,
Judge Advocate General,
Army Headquarters,
DHQ, PO New Delhi 11"
5. The reservations of the third respondent with regard to the transfer of the appellant to Andhra Sub Area, Secunderabad, as Officer in charge, Legal Cell, were sought to be dispelled by the Judge Advocate General through his communication dated June 21, 2001, which reads as follows :-
"B/80094/JAG 21 June 2001
1. Please ref your DO Letter No.; 400008/LC Dated 4 June 2001.
2. We equally share your concern of handling some of the important cases in AP High Court. Capt Dimple Singala who stands posted to your HQ as OIC Legal Cell, has been working at this HQ as Staff Capt (Law) with the litigation section which looks after court cases though out the country. With her experience gained at this HQ, she should be able to carry out the job in her new assignment without difficulty, notwithstanding the distance etc.
3. Lady officer of our department are handling important assignments including OIC Legal Cells elsewhere in the country too and are doing well.
4. Let me actually mention that a case taken up by HQ Southern Command (ATS) for retaining Major VPS Malik in his present appointment for another year is under their active consideration with MS (Br) this Headquarters.
Sd/-
Brig P Rajagopalan, VSM,
Commander,
HQ Andhra Sub Area,
Secunderabad."
6. A letter dated June 18, 2001 with the approval of the Judge Advocate General was sent by the JAG Branch at Delhi to the Military Secretary (MS 14 Branch) with reference to the matter of posting of the appellant. This letter reads as under :-
"B/80094/JAG 18 June 2001
Nyaya Mahadhivakta Vibhag
Judge Advocate General's Department
Postings: JAG Officer
1. Refer to your note number A/68501/Posting/JAG/MS 14 Dated 8th June 2001.
2. Working as a staff Capt (Law) in the litigation section of this office, dealing with the court cases, has given enough exposure to Capt Dimple Singla in such matters. As such, she is quite suitable to be posted as OIC Legal Cell HQ Andhra Sub Area Secunderabad.
3. The posting of our officer are planned in a manner to groom them to take up independent assignments in future. Posting of Capt Dimple Singla as OIC Legal Cell is in conformity with such policy and practice.
4. Posting of JAG's Departmental Exam is not mandatory for lady officer.
5. In view of the above no change in posting of Capt Dimple Singla is recommended.
6. This has the approval of JAG.
(Rajiv Metrotra)
Lt Col
A JAG (Adm & Trg)
MS 14"
7. From the aforesaid two letters it is apparent that in the opinion of the Judge Advocate General, the appellants was capable of carrying out the job assigned to her at Secunderabad. It was also emphasised in the letters that lady officers of Judge Advocate General's Branch were handling important assignments elsewhere in the country and they were acquitting themselves well. Accepting the views of the Judge Advocate General, the order transferring the appellant to Secunderabad was confirmed by the Military Secretary. On June 22, 2001, the Military Secretary agreeing with the Judge Advocate General sent the following letter :-
"(ii) The case has been examined. Capt (Mrs) Dimple Single has received requisite exposure while serving in Army Head Quarters. All lady officers have performed duties of officers in charge legal cell at M & G Area and also MP &BO Area very effectively. Posting (transfer) of Major VPS Malik and Cap (Mrs) Dimple Singla may please be carried out as ordered.
Sd/- xx
Lt. Col. G.S. Mamak,
AMS,
For Military Secretary."
It is only thereafter that the appellant was given the movement order dated June 28, 2001 to Secundrabad.
8. It is significant to note that the appellant did not represent against her transfer to Secunderabad. She did not claim that the transfer to Secunderabad will cause hardship to her. it appears from the aforesaid letter of the third respondent dated June 4, 2001 that he was not in favor of her transfer to Secunderabad because "she was a lady officer with a small child". The letter also shows that the third respondent was of the view that it would be difficult for her to meet the Government Counsel in the evening or early morning frequently to discuss the cases. According to him, "if the lady officer was to be posted to the aforesaid station she was not to be posted as in charge of the Legal Cell but she was to be posted as an additional officer". These aspects were considered by the Judge Advocate General and the Military Secretary and both of them rejected the request for cancellation of the posting. Even otherwise, this attitude of the third respondent was clearly discriminatory. A married lady officer with a child cannot be considered to be a 'lame duck' incapable of discharging her duties efficiently. She can not be considered to be suffering from a handicap. Even without providing an opportunity to the appellant to discharge her duties at Secunderabad, the third respondent was of the view that it will be extremely difficult for her to carry out the tasks. In the absence of any empirical evidence, we fail to understand how such a prognosis could be made by the third respondent. It appears that there is still a lurking doubt about capabilities of lady officers. The letter smacks of discrimination and unequal treatment.
9. Women like men are governed by the Constitution. Articles 14, 15, 19(1)(g) and 21 provide the basis for Realizing equality between man and man, and man and woman. These articles have provided de jure equality to women, but they have not accelerated de facto equality between man and woman to the extent the Constitution intended. unless attitudes change, elimination of discrimination against women can not be achieved. There is still a considerable gap between the constitutional rights and their application in the day-to-day lives of most women. At the same time, it is true that women are working in jobs which were hitherto falling in masculine fields. But there are instances which exhibit lack of confidence in their capability and efficinecy. There is still a long and lingering suspicion regarding their capcaity to meet the challenges of the jobs assigned to them. Such doubts affect the dignity of working women.
10. The right of a woman to serve with dignity flows from Articles 14, 15 and 21 of the Constittution. The Convention on the Elimination of all forms of Discrimination Against Women (for short 'CEDAW'), which was ratified on June 25, 1993 by the Government of India, envisages equal rights for men and women. At this stage, we may examine some of the provisions of the CEDAW as they are of significance in the present context. According to Article 1 of the CEDAW, 'discrimination against women' means any distinction, exclusion, or restriction made on the basis of sex which ahs the effect or purpose of impairing or nullifying the recognition, enjoyment or exericse by women, irrespective of their marital status, on the basis of equality of man and woman of human rights and fundamental freedoms in the political, economic, social, cultural or any other field.
11. Article 2 of the CEDAW records that the State parties condemn discrimination against women in all its forms and agree to pursue by appropriate means and without delay a policy of eliminating discrimination against women by any person, organisation, or enterprise. Article 3 of the CEDAW enjoins on the State parties to adopt measures for ensuring the full development and advancement of women for the purpose of guaranteeing them the exercise of enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 5 of the CEDAW casts a duty on the State parties to take all appropriate measures to modify the social and cultural pattern of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes. Article 11 of the CEDAW inter alia requires the State parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on the basis of equality of men and women, the same rights, including the right to equality of treatment in the evaluation of the quality of work. Article 15 provides that the State parties shall accord to women equality with men before the law.
12. It has been held by the Supreme Court in Vishaka and Ors. v. State of Rajasthan and others, 1997 (5) SCALE 453, that gender equality, inter alia, includes right to work with dignity, which is a universally recognised basic human right and the international conventions and norms are of great significance as guide-lines to achieve the purpose. It was also observed that there is no reason why international conventions and norms cannot be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.
13. Keeping in view Articles 14, 15, 19(1)(g) and 21 of the Constitution and the aforesaid provisions of the CEDAW, if the aforesaid letter of the third respondent is examined, it would appear that the concept of gender equality has been thrown to the winds. Surely, the view of the third respondent, expressed in the words "....It may be extremely difficult for a lady officer with a small child to carry out these tasks....In case the lady officer is to be posted to the station she may be adjusted as an additional officer....a case may please be taken for posting a suitable officer in the place of Maj. VPS Malik...." does not promote the object of the constitutional guarantees and the rights of women recognised in various Articles of the CEDAW, which serve as guide-lines to achieve gender equality. It is clear from the said letter that the third respondent has doubts about the capabilities of the lady officer, mother of a small child, to carry out the duties of office even though she has never worked with him.
14. The cancellation of the appellant's transfer to Secunderabad shows that the third respondent stuck to his views despite the communication of the Judge Advocate General dated June 21, 2001, to the third respondent and communication of the Judge Advocate General's Branch dated June 18, 2001, to the Military Secretary which was issued with the approval of the Judge Advocate General. In the communication dated June 21, 2000, it was pointed out that the appellant, with the experience she had gained at the Headquarters, should be able to carry out the new assignment without difficulty, notwithstanding the distance, etc. It was also pointed out that lady officers of the Judge Advocate General's Branch were handling important assignments including Officers-In-Charge, Legal Cells, elsewhere in the country too and were doing well. In the communication dated June 18, 2001, it was pointed out that the postings of officers are planned in a manner so as to groom them to take up independent assignments in the future and the posting of the appellant as Officer in charge, Legal Cell, was in conformity with such a policy. In the circumstances, no change in the posting of the appellant to Secunderabad was recommended.
15. But the third respondent did not want the appellant to be the Officer in charge, Legal Cell, at Secunderabad, she being a lady officer and, in the opinion of the third respondent, suffering from the disability of being a mother of a small child. It seems to us that the aforesaid views of the Judge Advocate General did not change the third respondent's Secretary (MS 14) had endorsed the views of the Judge Advocate General also did not seem to matter to the third respondent.
16. Quite apart from this, there is nothing on the record to show what transpired between June 28, 2001 when the Military Secretary (MS 14) confirmed the appellant's transfer to Secunderabad and July 6, 2001 when it was arbitrarily cancelled. We were told by the learned Central Government Standing Counsel that during this period, some telephone call was made (presumably by the third respondent) to the Military Secretary and it was suggested that the transfer to Secunderabad was cancelled because of this telephone call. It is true, it is a pity. It is a pity because well considered written orders by two competent authorities can be set aside on a mere telephone call, whose contents are not known to or disclosed to anybody. Moreover, the respondents do not advert to such a telephone call or any other material whatsoever in the counter affidavit which persuaded them to change their mind between June 28 2001 and July 6, 2001.
17. We are faced with a rather extraordinary situation in this case. Normally, an employee objects to a transfer. This is a case where the employee accepts a transfer without a murmur of protest - and despite inconvenience to her. On the other hand, an officer of the employer protests against the transfer. The protest is turned down well in time. Another protest is lodged and this is accepted a couple of hours before the employee is to board the train. By that time the employee had surrendered and vacated the Government accommodation, she had sent her luggage to Secunderabad and then she was told to go to Pune. All this on the specious plea that she is a woman with a small child and, therefore, will not be able to perform her duties. A casual reading of modern Indian history beginning with the days of Rani Lakshmibai of Jhansi will demonstrate the hollowness of such a contention. We have no doubt that the inarticulated major premise for cancelling the appellant's transfer to Secunderabad lies in her gender.
18. The estimation of the third respondent hits the principle of equality of treatment in the evaluation of the quality of work of a woman employee. The subtle, unconscious male prejudice works to the detriment of promoting the principles of equality between men and women in the field of employment.
19. In view of the foregoing discussion, the appeal is allowed and the order of the learned Single Judge dated August 24, 2001 is set aside. Accordingly, the order cancelling the transfer of the appellant to Secunderabad and the order transferring the appellant to Pune, both dated July 6, 2001, are hereby quashed. The appellant is given fifteen days time to join her duties at Secunderabad.
Print Page
Delhi High Court
Dimple Singla vs Union Of India And Ors. on 25 September, 2001
Equivalent citations: 94 (2001) DLT 917, 2002 (63) DRJ 216
Bench: A D Singh, M B Lokur
This is a Letters Patent Appeal directed against the order of the learned Single Judge dated August 24, 2001 passed in C.W.P. No. 4205/2001. By that order the learned Single Judge dismissed the writ petition of the appellant holding that there was no infirmity in the action taken by the respondents in transferring the appellant to Pune. Brief facts giving rise to this appeal are as follows :-
The appellant is married to an advocate who practise law at Chandigarh. She has a child of one and a half years. The appellant joined the Indian Army as a short service commissioned officer in the Judge Advocate General's Department on March 8, 1997. During the short span of four and a half years of her service career she is stated to have been transferred three times.
2. On Spetmber 27,1999 the appellant was posted as Staff Captain (Legal) in the judge Advocate General's Department at New Delhi. After working against that post for a period of about less than two years, the appellant was transferred to headquarters Andhra Sub Area, Secunderabad, as Officer in charge, legal Cell, by order of the Military Secretary (MS 14 Branch) dated May 21, 2001. As a consequence of the transfer, the appellant was given a movement order on June 28, 2001. Acting on the transfer order the appellant dispatched her luggage to Secunderabad. On July 6, 2001, the date on which she was to leave for Secunderabad by Rajdhani Express at 8.00 P.M., she received a message from the Military Secretary, MS 14, cancelling her transfer to Headquarters Andhra Sub Area, Secunderabd. Thereafter, on July 9, 2001 the appellant received a fresh order of posting dated July 6, 2001 requiring her to leave for Headquarters Southern Command, Pune. This change, according to the appellant, was brought about at the instance of the third respondent, Brig. P.Rajagopalan, Commander HQ, Andhra Sub Area, Secunderabad, which is evident from his letter to the Judge Advocate General dated June 4, 2001.
3. The appellant being aggrieved by the aforesaid order cancelling her transfer to Headquarters Andhra Sub Area, Secunderabad, and the order transferring her to Pune, filed the writ petition claiming that the impugned action was arbitrary, unjust, unfair and discriminatory. The learned Single Judge, as already noted, dismissed the writ petition. Not being satisfied with the order of the learned Single Judge, the appellant has filed, the instant Letters Patent Appeal.
4. We have heard the learned counsel for the appellant as also the learned Additional Solicitor General appearing for the respondents. In order to appreciate the controversy between the parties it is apposite to refer to the letter of the third respondent dated June 4, 2001 addressed to the Judge Advocate General on the subject of transfer of the appellant to Secunderabad. The letter reads as follows :-
"Brig P Rajagopalan, VSM Headquarters,
Commander Andhra Sub Area,
Secunderabad,
5000010
400008/LC 04 June 2001
Dear General,
1. Please refer to Army HQ Sig No: 392445/MS 14/JAG dated 21^st May 2001.
2. A lady offr Capt Dimple Singla with less than four years of service is being posted as OIC Legal Cell this HQ. There are a total of 176 court cases pending in AP High Court and 66 in Karnataka High Court. The legal Off would be required to attend the courts every day which is approx 22 kms from the HQ. The officer would also per force have to meet Govt. counsels in the evening/early morning frequently to discuss the cases as this is the only time they are available. It may be extremely difficult for a lady officer with a small child to carry out these tasks. There are three court martials schedule to commence immediately besides other sensitive court of inquiries in progress.
3. In the org interest it is requested that another legal offr be posted to this HQ. In case the lady offr is to be posted to the station she may be adjusted as an addl offr. It is requested that a case may please be taken up for posting a suitable offr in place of Major VPS Malik and till then status quo may pleas be maintained. In view of three important court martials schedule to commence shortly it is requested that mov of Major VPS Malik be delayed by 3 months as the offr has been dealing with these cases during the last 2 years.
With regards,
Yours sincerely,
Sd/-
Major General S.K.Sanan, AVSM, VSM,
Judge Advocate General,
Army Headquarters,
DHQ, PO New Delhi 11"
5. The reservations of the third respondent with regard to the transfer of the appellant to Andhra Sub Area, Secunderabad, as Officer in charge, Legal Cell, were sought to be dispelled by the Judge Advocate General through his communication dated June 21, 2001, which reads as follows :-
"B/80094/JAG 21 June 2001
1. Please ref your DO Letter No.; 400008/LC Dated 4 June 2001.
2. We equally share your concern of handling some of the important cases in AP High Court. Capt Dimple Singala who stands posted to your HQ as OIC Legal Cell, has been working at this HQ as Staff Capt (Law) with the litigation section which looks after court cases though out the country. With her experience gained at this HQ, she should be able to carry out the job in her new assignment without difficulty, notwithstanding the distance etc.
3. Lady officer of our department are handling important assignments including OIC Legal Cells elsewhere in the country too and are doing well.
4. Let me actually mention that a case taken up by HQ Southern Command (ATS) for retaining Major VPS Malik in his present appointment for another year is under their active consideration with MS (Br) this Headquarters.
Sd/-
Brig P Rajagopalan, VSM,
Commander,
HQ Andhra Sub Area,
Secunderabad."
6. A letter dated June 18, 2001 with the approval of the Judge Advocate General was sent by the JAG Branch at Delhi to the Military Secretary (MS 14 Branch) with reference to the matter of posting of the appellant. This letter reads as under :-
"B/80094/JAG 18 June 2001
Nyaya Mahadhivakta Vibhag
Judge Advocate General's Department
Postings: JAG Officer
1. Refer to your note number A/68501/Posting/JAG/MS 14 Dated 8th June 2001.
2. Working as a staff Capt (Law) in the litigation section of this office, dealing with the court cases, has given enough exposure to Capt Dimple Singla in such matters. As such, she is quite suitable to be posted as OIC Legal Cell HQ Andhra Sub Area Secunderabad.
3. The posting of our officer are planned in a manner to groom them to take up independent assignments in future. Posting of Capt Dimple Singla as OIC Legal Cell is in conformity with such policy and practice.
4. Posting of JAG's Departmental Exam is not mandatory for lady officer.
5. In view of the above no change in posting of Capt Dimple Singla is recommended.
6. This has the approval of JAG.
(Rajiv Metrotra)
Lt Col
A JAG (Adm & Trg)
MS 14"
7. From the aforesaid two letters it is apparent that in the opinion of the Judge Advocate General, the appellants was capable of carrying out the job assigned to her at Secunderabad. It was also emphasised in the letters that lady officers of Judge Advocate General's Branch were handling important assignments elsewhere in the country and they were acquitting themselves well. Accepting the views of the Judge Advocate General, the order transferring the appellant to Secunderabad was confirmed by the Military Secretary. On June 22, 2001, the Military Secretary agreeing with the Judge Advocate General sent the following letter :-
"(ii) The case has been examined. Capt (Mrs) Dimple Single has received requisite exposure while serving in Army Head Quarters. All lady officers have performed duties of officers in charge legal cell at M & G Area and also MP &BO Area very effectively. Posting (transfer) of Major VPS Malik and Cap (Mrs) Dimple Singla may please be carried out as ordered.
Sd/- xx
Lt. Col. G.S. Mamak,
AMS,
For Military Secretary."
It is only thereafter that the appellant was given the movement order dated June 28, 2001 to Secundrabad.
8. It is significant to note that the appellant did not represent against her transfer to Secunderabad. She did not claim that the transfer to Secunderabad will cause hardship to her. it appears from the aforesaid letter of the third respondent dated June 4, 2001 that he was not in favor of her transfer to Secunderabad because "she was a lady officer with a small child". The letter also shows that the third respondent was of the view that it would be difficult for her to meet the Government Counsel in the evening or early morning frequently to discuss the cases. According to him, "if the lady officer was to be posted to the aforesaid station she was not to be posted as in charge of the Legal Cell but she was to be posted as an additional officer". These aspects were considered by the Judge Advocate General and the Military Secretary and both of them rejected the request for cancellation of the posting. Even otherwise, this attitude of the third respondent was clearly discriminatory. A married lady officer with a child cannot be considered to be a 'lame duck' incapable of discharging her duties efficiently. She can not be considered to be suffering from a handicap. Even without providing an opportunity to the appellant to discharge her duties at Secunderabad, the third respondent was of the view that it will be extremely difficult for her to carry out the tasks. In the absence of any empirical evidence, we fail to understand how such a prognosis could be made by the third respondent. It appears that there is still a lurking doubt about capabilities of lady officers. The letter smacks of discrimination and unequal treatment.
9. Women like men are governed by the Constitution. Articles 14, 15, 19(1)(g) and 21 provide the basis for Realizing equality between man and man, and man and woman. These articles have provided de jure equality to women, but they have not accelerated de facto equality between man and woman to the extent the Constitution intended. unless attitudes change, elimination of discrimination against women can not be achieved. There is still a considerable gap between the constitutional rights and their application in the day-to-day lives of most women. At the same time, it is true that women are working in jobs which were hitherto falling in masculine fields. But there are instances which exhibit lack of confidence in their capability and efficinecy. There is still a long and lingering suspicion regarding their capcaity to meet the challenges of the jobs assigned to them. Such doubts affect the dignity of working women.
10. The right of a woman to serve with dignity flows from Articles 14, 15 and 21 of the Constittution. The Convention on the Elimination of all forms of Discrimination Against Women (for short 'CEDAW'), which was ratified on June 25, 1993 by the Government of India, envisages equal rights for men and women. At this stage, we may examine some of the provisions of the CEDAW as they are of significance in the present context. According to Article 1 of the CEDAW, 'discrimination against women' means any distinction, exclusion, or restriction made on the basis of sex which ahs the effect or purpose of impairing or nullifying the recognition, enjoyment or exericse by women, irrespective of their marital status, on the basis of equality of man and woman of human rights and fundamental freedoms in the political, economic, social, cultural or any other field.
11. Article 2 of the CEDAW records that the State parties condemn discrimination against women in all its forms and agree to pursue by appropriate means and without delay a policy of eliminating discrimination against women by any person, organisation, or enterprise. Article 3 of the CEDAW enjoins on the State parties to adopt measures for ensuring the full development and advancement of women for the purpose of guaranteeing them the exercise of enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 5 of the CEDAW casts a duty on the State parties to take all appropriate measures to modify the social and cultural pattern of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes. Article 11 of the CEDAW inter alia requires the State parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on the basis of equality of men and women, the same rights, including the right to equality of treatment in the evaluation of the quality of work. Article 15 provides that the State parties shall accord to women equality with men before the law.
12. It has been held by the Supreme Court in Vishaka and Ors. v. State of Rajasthan and others, 1997 (5) SCALE 453, that gender equality, inter alia, includes right to work with dignity, which is a universally recognised basic human right and the international conventions and norms are of great significance as guide-lines to achieve the purpose. It was also observed that there is no reason why international conventions and norms cannot be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.
13. Keeping in view Articles 14, 15, 19(1)(g) and 21 of the Constitution and the aforesaid provisions of the CEDAW, if the aforesaid letter of the third respondent is examined, it would appear that the concept of gender equality has been thrown to the winds. Surely, the view of the third respondent, expressed in the words "....It may be extremely difficult for a lady officer with a small child to carry out these tasks....In case the lady officer is to be posted to the station she may be adjusted as an additional officer....a case may please be taken for posting a suitable officer in the place of Maj. VPS Malik...." does not promote the object of the constitutional guarantees and the rights of women recognised in various Articles of the CEDAW, which serve as guide-lines to achieve gender equality. It is clear from the said letter that the third respondent has doubts about the capabilities of the lady officer, mother of a small child, to carry out the duties of office even though she has never worked with him.
14. The cancellation of the appellant's transfer to Secunderabad shows that the third respondent stuck to his views despite the communication of the Judge Advocate General dated June 21, 2001, to the third respondent and communication of the Judge Advocate General's Branch dated June 18, 2001, to the Military Secretary which was issued with the approval of the Judge Advocate General. In the communication dated June 21, 2000, it was pointed out that the appellant, with the experience she had gained at the Headquarters, should be able to carry out the new assignment without difficulty, notwithstanding the distance, etc. It was also pointed out that lady officers of the Judge Advocate General's Branch were handling important assignments including Officers-In-Charge, Legal Cells, elsewhere in the country too and were doing well. In the communication dated June 18, 2001, it was pointed out that the postings of officers are planned in a manner so as to groom them to take up independent assignments in the future and the posting of the appellant as Officer in charge, Legal Cell, was in conformity with such a policy. In the circumstances, no change in the posting of the appellant to Secunderabad was recommended.
15. But the third respondent did not want the appellant to be the Officer in charge, Legal Cell, at Secunderabad, she being a lady officer and, in the opinion of the third respondent, suffering from the disability of being a mother of a small child. It seems to us that the aforesaid views of the Judge Advocate General did not change the third respondent's Secretary (MS 14) had endorsed the views of the Judge Advocate General also did not seem to matter to the third respondent.
16. Quite apart from this, there is nothing on the record to show what transpired between June 28, 2001 when the Military Secretary (MS 14) confirmed the appellant's transfer to Secunderabad and July 6, 2001 when it was arbitrarily cancelled. We were told by the learned Central Government Standing Counsel that during this period, some telephone call was made (presumably by the third respondent) to the Military Secretary and it was suggested that the transfer to Secunderabad was cancelled because of this telephone call. It is true, it is a pity. It is a pity because well considered written orders by two competent authorities can be set aside on a mere telephone call, whose contents are not known to or disclosed to anybody. Moreover, the respondents do not advert to such a telephone call or any other material whatsoever in the counter affidavit which persuaded them to change their mind between June 28 2001 and July 6, 2001.
17. We are faced with a rather extraordinary situation in this case. Normally, an employee objects to a transfer. This is a case where the employee accepts a transfer without a murmur of protest - and despite inconvenience to her. On the other hand, an officer of the employer protests against the transfer. The protest is turned down well in time. Another protest is lodged and this is accepted a couple of hours before the employee is to board the train. By that time the employee had surrendered and vacated the Government accommodation, she had sent her luggage to Secunderabad and then she was told to go to Pune. All this on the specious plea that she is a woman with a small child and, therefore, will not be able to perform her duties. A casual reading of modern Indian history beginning with the days of Rani Lakshmibai of Jhansi will demonstrate the hollowness of such a contention. We have no doubt that the inarticulated major premise for cancelling the appellant's transfer to Secunderabad lies in her gender.
18. The estimation of the third respondent hits the principle of equality of treatment in the evaluation of the quality of work of a woman employee. The subtle, unconscious male prejudice works to the detriment of promoting the principles of equality between men and women in the field of employment.
19. In view of the foregoing discussion, the appeal is allowed and the order of the learned Single Judge dated August 24, 2001 is set aside. Accordingly, the order cancelling the transfer of the appellant to Secunderabad and the order transferring the appellant to Pune, both dated July 6, 2001, are hereby quashed. The appellant is given fifteen days time to join her duties at Secunderabad.
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