CASE ANALYSIS OF

C. B. MUTHAMMA V. UNION OF INDIA

BY
YASH JAIN
INTERN
2nd YEAR,
NEW LAW COLLEGE, BVP
PUNE
Mob-9414693113
Gmail-yashjain5447@gmail.com
 C. B. MUTHAMMA CASE AND IT’S IMPACT

BACKGROUND OF THE CASE

In 1948, after the independent India was formed Ms. Chonira Belliappa Muthamma was the
1st woman to clear the Union Public Service Commission (U.P.S.C.) Examination to join the
Indian Civil Services. After clearing the entrance exam, she was asked to come for the
interview. Even at the very threshold, the Chairman of the U.P.S.C. tried to force Ms. C.B.
Muthamma not to join the Foreign Services. Sometimes, the Chairman personally informed
her that he had asked the other interviewer to give her the minimum marks in viva, so that she
may not get selected for the Foreign Services. But when the results were out, she was on the
top of the list of candidates who had applied for the Indian Foreign Services that year. Before
joining her job, she was made to sign an undertaking which stated that if she gets married
during her service then she must resign from her job. At that time, she signed the undertaking
and started the job. When she started her job, she was posted at the Indian Embassy in Paris.
During the year 1979,after 30 years of her service when she was denied promotion from
Grade 2 to Grade 1 of the Indian Foreign Service, she decided to go to the Apex Court of our
country against the discriminatory practices followed in our country. In the single PIL filed
by her in the Apex Court came to know as the “C.B. Muthamma v Union of India1”.This
was one of its first PIL in the Supreme Court related to the Indian Foreign Service.

FACTS IN ISSUE

The petition was filed in the Supreme Court of India by the applicant under Article 32 of the
Constitution of India. The petition was filed against the discriminations faced by her since the
joining of her Indian Foreign Service. The petition was also filed against the rules like 8(2)
and 18(4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion)
Rules, 19612 which discriminates against the Article 14, 15(1) and 16(2) of the Constitution
of India which prohibits discrimination against any person regardless of her religion, race,
caste, sex or place of birth. This petition was filed so that she could find out why was not
being promoted and her juniors were promoted more which were men. This was to find

1
C.B. Muthamma v. Union of India, AIR 1979 SC 1868.
2
The Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961
whether the sex of the person was the main reason regarding the promotion or there were
other factors which hindered in a person’s promotion.

PETITIONER’S ARGUMENT

The lawyers representing the petitioner side were D.P. Singh, L.R. Singh and Sukumar Sah.
Adv. They argued the points relating to the promotion in the Foreign Service from Grade 2 to
Grade 1. The lawyers argued on the following points:

a) That the petitioner was asked to sign an undertaking that when she gets married, she has
to resign from her post whatever the post maybe.
b) That the members of the appointment committee were also asked by the chairman to give
her the minimum marks during the interview.
c) That during her job she was not given the promotion as many of her juniors were given
promotion no matter of the seniority in the job and the age as well.
d) That there has been discrimination against the woman as per the laws of the Indian
Foreign Service Rules, 1961.

RESPONDENT’S ARGUMENT

The lawyers representing the respondent side were: Soli J. Sorabjee, Solicitor General and A.
Subhashini, Adv. They argued on the points relating to Indian Foreign Service Rules, 1961.
The lawyers argued on the following points:

a) That the respondent has removed Rule 18(4) of the Indian Foreign Service Rules, 1961
which can be seen from the affidavit submitted which shows the date of deleting the Rule
November 12, 1973.
b) That the respondent is in process to remove the Rule 8(2) of the Indian Foreign Service
Rules, 1961 on the way of the oblivion as it has officially being gazetted.

That the respondent will shortly review the seniority of the petitioner, her merit having been
discovered and seniority to Grade 1 being recognised.
 PRECEDENTS

There have been various judgements given by various High Courts and the Supreme Court of
India regarding to treating the persons equally and against the discrimination between the
persons so that it could be removed from our country.

The Indian Constitution provided that the state shall not discriminate between any person of
the country within its territory even if the person is a non-citizen.
In the case of UP Income Tax Department Contingent Paid Welfare Association v. Union
of India,3 the workers had been working as Contingent paid staff workers but they were not
paid as per the Class IV employees, they were provided with lower wages than the other
employees and were also not given the allowances which had been provided to other workers
working at the same level. When the case came in front of the Apex Court, the court decided
to give its decision in favour of the petitioners as some of the workers had been working for
more than seven years with the old pay scale. And they also asked the respondents to prepare
a scheme on a rational basis for absorbing as far as possible to the contingent workers who
had been working for more than one year as Class IV employees of the Income Tax
Department.
In the case of Union of India and Others v. M.V. Valliappan and others,4 the Supreme
Court held that the Section 171(9) of the Income Tax Act, 1961 and Section 20-A of the
Wealth Tax Act, 1957 as unconstitutional and they were quashed and removed. As these
sections are violative of Article 14 of the Indian Constitution relating to the Hindu United
Family.
The Supreme Court in case of Smt. Sushma Gosain and Ors. v. Union of India and Ors., 5
it was observed earlier the case was filed in Delhi High Curt in which the court dismissed the
case and then the petitioner appealed in the Supreme Court and stated that Smt. Sushma
Gosain was already qualified for the post. The court further directs Director General Border
Road (DGBR) to be appointed in an appropriate place in Delhi itself. The appointment shall
be made within three weeks and the appellant are entitled to their cost which we quantify Rs.
15,000 and it shall be paid within three weeks.

3
UP Income Tax Department Contingent Paid Welfare Association v. Union of India, AIR 1988 SC 517.
4
Union of India and Others v. M.V. Valliappan and others, (1999) 6 SCC 259.
5
Smt. Sushma Gosain and Ors v. Union of India and Ors, (1989) 4 SCC 468.
In the case of Harminder Kaur v Union of India,6 in this the Supreme Court clearly stated
that the Constitution Bench in the Umadevi case,7 in no uncertain terms, based its decision
on the touchstone of the `equality clause' contained in Articles 14 and 16 of the Constitution
of India. Emphasis has been laid at more than one place for making appointments only upon
giving an opportunity to all concerned. Appointment through side-door has been held to be
constitutionally impermissible.
In the case of Rajesh Kumar Gupta v State of U.P., 8the Supreme Court clearly stated that the
Division Bench took the view that Articles 15(3) of the Constitution enables the States
government to make special provision for woman and children notwithstanding the
prohibition contained in Article 15(1). Particularly viewed in the background of the fact that a
large number of young girls below the age of 10 years were taught in the primary school and
recognizing that it would be preferable that such young girls are taught by women, the
reservation of 50% of the posts in favour of female candidates was held to be justified.
We agree with the Division Bench of the High Court that there was no violation of Article 14,
15 and 16 of the Constitution.

COMPARISON WITH THE UNITED STATES

In India, the discrimination on the basis of sex had always been infringement of a
constitutional right as it is given to a person in Part 3 of the Constitution. Article 14 of the
Constitution deals with the equality between the persons, Article 15(1) deals with the
prohibition of discrimination on the basis of sex by the state and Article 16(2) deals with the
equal opportunity in matters of public employment and no one can discriminate on the basis
of sex of any other person.
In the case of Air India v. Nergesh Meerza & Ors.,9 Supreme Court stated that “The result
of our striking down these provisions is that like Air India Air Hostess and Indian Airlines
Corporation Air Hostesses also would be entitled to their period of retirement being extended
upto 45 years until a suitable amendment is made by the Management in the light of the
observations made by us. For the reasons given above, therefore, the writ petitions are
allowed in part as indicated in the judgment and the Transfer case is disposed of
accordingly”.

6
Harminder Kaur v. Union of India, AIR 2009 SC 2875[ 14]{2}.
7
State of Karnataka v. Umadevi, (2006) 4 SCC 1.
8
Rajesh Kumar Gupta v. State of U.P., AIR 2005 SC 2540 [14] ,[15].
9
Air India v. NergeshMeerza&Ors., AIR 1981 SC 1829.
In United States, the 19th Amendment provided the equality between its men and women in
terms of equal voting rights. As the amendment stated that “The right of citizens of the
United States to vote shall not be denied or abridged by the United States or by any State on
account of sex”.
In the case of United Sates v. Virginia, 10the Supreme Court observed in this case that the
Virginia Military Training has to convert its single sex training institute i.e. only for men to
women also. Single sex training school for women can be opened in times when required but
not only for the men.

LEGAL ASPECTS

This case has been a landmark case for the equality of women. This case brought the various
aspects in the eyes of the people as the case went to the Supreme Court. The Court marked a
landmark case for the various questions asked which were

a) No promotion on the basis of seniority of age

b) No gender discrimination
c) Removal of articles which forces a person to resign from his job.

NO PROMOTION ON BASIS OF SENIORITY

There had been instances when a person has been given the promotion due to his
seniority.The age factor come into the picture due to the experience the person gains from the
time of his joining. In Public Service Commission job, there is a minimum and maximum age
limit for a person to apply. The minimum age is 21 years and maximum age is 32 years in
case of UPSC. If a person joins the job at age of 25 and another person joins two years later,
at age of 29, at the time of promotion, the promoter will see not see the age but will see the
person who has more experience and the skills of doing the job. In the case of Sri Devendra
Prasad Sharma v. The State of Mizoram & Others,11the Apex Court stated that the
petitioner was found to be unfit and contesting respondents were found to be fit as per the
proceedings indicated in the judgment of the High Court. As a consequence, the petitioner
could not claim right to promotion at that time on the basis of the assessment made by the
DPC or to seniority over those promoted as per the recommendation of the DPC.In the case
of Maniyara Manickam v. The Managing Director Tamil Nadu State Transport
10
United Sates v. Virginia, 518 U.S. 515 (1996).
11
Sri Devendra Prasad Sharma v. The State Of Mizoram &Ors,(1997) 4 SCC 422 [4].
Corporation,12 the Madras High Court gave an order that the the petition filed is dismissed
without any costs. It also provided some important view point “It is well settled that no
person can be promoted with retrospective effect from a date when he was not borne in the
cadre so as to adversely affect others” 13. “The latecomers to the regular stream cannot steal a
march over the early arrivals in the regular queue”14.

NO GENDER DISCRIMINATION

There were times when people who were uncertain about their genders, were respectively
called as Hijras by other people in the society. They were not treated equally as they had to
forcefully select either Male or Female in the gender column in any form filled. Article 14 of
our Constitutionguarantees Equality before law,the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India and
there is a prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth. They had been discriminated on the basis of their sex. They were treated with no
respect in the society.Then came the decision of National Legal Service Authority v. Union
of India &Ors,15 in which the Supreme Court stated that:

1. Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of
safeguarding their rights under Part III of our Constitution and the laws made by the
Parliament and the State Legislature.
2. Transgender persons’ right to decide their self-identified gender is also upheld and the
Centre and State Governments are directed to grant legal recognition of their gender
identity such as male, female or as third gender.

Other points were also given by the Supreme Court related to the third gender and the
facilities to be provided to them. This provided the people belonging to the third gender with
opportunities to get their desired jobs. It also provided them with the separate washrooms in
the public places and with proper medical facilities from the government hospitals as well as
private hospitals.

12
Maniyara Manickam v. The Managing Director Tamil Nadu State Transport Corporation,2011 SCC OnLine
Mad 2234.
13
State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 [12].
14
Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 [27].
15
National Legal Service Authority v. Union of India &Ors, (2014) 5 SCC 438 [135(1),(2)].
The UNESCO is doing its best to provide equality against the gender discrimination faced by
women in terms of opportunities and other rules and regulations which try to bound their life.
There had been Conventions and Declarations which try to bring upliftment towards a
various section of our society. These conventions are particularly done for the upliftment of
the society. One of the conventions is Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW),16 1979; it is helping in defining Gender Equality
work. The main aim is to protect women from all forms of discrimination faced by them
relating to the work. India is one of the signatories of this convention and has ratified it, while
U.S. has not rectified this convention. Some Articles of this like Article 10 relates to the
education of the women, Article 11 talks about Employment which provide that women
should be provided with the same employment opportunities, Article 15 deals with equality
before law as women have the same legal capacity as men andArticle 16 deals with Marriage
and family life as the women also have the equal right in the property of the husband after
they get married.

In the case of Madhu Kishwar & Ors v. State of Bihar &Ors, 17the Supreme Court stated
that the provisions of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925
though in terms, would not apply to the Scheduled Tribes, the general principles contained
therein being consistent with justice, equity, fairness, justness and good conscience would
apply to them. Accordingly, it held that the Scheduled Tribe women would succeed to the
estate of their parent, brother, husband, as heirs by intestate succession and inherit the
property with equal share with the male heir with absolute rights as per the general principles
of the Hindu Succession Act, 1956, as amended and interpreted by this Court and equally of
the Indian Succession Act to tribal Christians.

ARTICLES ABOLISHED

There are many cases wherein a law is made unconstitutional due to it being violative of
anyone of the articles or more than one of the Constitution like Articles 14, 15, 16 & 21.
These laws play an integral role in protecting a person’s professional as well as personal life.

16
Convention CEDAW, 1979.
17
Madhu Kishwar&Ors v. State of Bihar &Ors, (1996) 5 SCC 125.
In the case of Smt. R. Vasantha v. Union of India (represented by its Secretary to
Government), Ministry of Labour, New Delhi, and others 18, the women workers were not
allowed to work during the night, as provided in Factories Act, 1948 Section 66(1)(b). This
was held to be violative of Articles 14, 15, 16 & 19(1)(g) of the constitution. As a result of
which, even though the petitioners have confined their challenge to Sub-sec. (1) of S. 66,
consequent to this Court striking down S. 66(1)(b), the remaining provision of the said sub-
section namely 66(1)(b) and the proviso of the Factories Act, 1948, not being severable, also
will have to suffer the same consequence. In the result, S. 66(1)(b) is declared
unconstitutional as violative of Arts. 14, 15 and 16 of the Constitution.

Other guidelines were also issued in this case and the Supreme Court provided for the
working of women in the late hours in the offices or the factories. This also provided the
protection of women against the sexual harassment in the public places or the mode of
transport if offered by employer. This case not only abolished a proviso of the factories act
but also made some guidelinesregarding the working of the women in night shift. This case
became the landmark cases in one of its own not only for working limit against the women in
factories and but also for their safety working in those places against any type of harassment.

In case of Navtej Singh Johar v. Union of India,19In view of the aforesaid findings, it is
declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons
above the age of 18 years who are competent to consent) in private, is violative of Articles
14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free
consent, which is completely voluntary in nature, and devoid of any duress or coercion. The
declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-
opening of any concluded prosecutions, but can certainly be relied upon in all pending
matters whether they are at the trial, appellate, or revisional stages. The provisions of Section
377 will continue to govern non-consensual sexual acts against adults, all acts of carnal
intercourse against minors, and acts of bestiality. The judgment in Suresh Kumar
Koushal v Naz Foundation20 is hereby overruled.

18
Smt. R. Vasantha v. Union of India (represented by its Secretary to Government), Ministry of Labour, New
Delhi, and others, 2000 SCC OnLine Mad 856 [103],[105].
19
NavtejSingh Johar v. Union of India, (2018) 10 SCC 1[ 645(1)(2)(3)(4)].
20
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
 JUDGEMENT

The judgement in the case of C. B. Muthamma v. Union of India was heard by a 2- judge
bench constituted of Justice V.R. Krishna Iyer and Justice P.N. Singhal. The judgement was
as follows:

1. The Court finds the rules which are in question in these case which is 8(2) and 18(4) of the
Indian Foreign Service Rules, 1961 in which 18(4) is already being removed and 8(2) is
on its way to the oblivion in the coming days as it is violative of Article 14, 15(1) and
16(2) of the Constitution of India.
2. The Court dismisses the petition but not the issue of this case.

OVERVIEW OF THE JUDGEMENT

The judgement given by the bench is proper according to the situation as it talks about the
equality battle fought against joining of woman in these services no matter what. The women
are provided with equal opportunities and this is not just in theory but practice also.

As soon as this case was filed in the Supreme Court, Ms. C.B. Muthamma was given the
promotion for which she was waiting for a long time which was an injustice against her as the
due promotion was given to her to retract the case against the government. The case was filed
against the rules and regulation of joining the Indian Foreign Service as they were violative
of Article 14, 15(1) and 16(2) of the Indian Constitution which speaks about the equality
among all persons living in our country and is a citizen of India irrespective of their gender.

The Apex Court did not analyse the rules that were harming the dignity of women to continue
working in the chosen field that they had selected for themselves, like in civil services,in
which the progress of women is hampered by an institution named marriage which is firmly
believed in our country. This puts an end to the women’sambitions and goals. This case
became a landmark judgement in the eyes of people as this case brought up the equality
between the people and in the higher level officials of the government.

There is no reservations in some papers like that of Chartered Accountant (CA) or Company
Secretary (CS) which only requires the talent of the person, it no matters what the person may
be of any race, caste, sex, religion or place of birth. If this becomes the criteria for entrance in
our country then there will be no biasness between people and all will get equal chance to get
into a better job or college upon their own talent and no other thing.

SUGGESTIONS

The judgement in this case is fair as the marriage criteria are violative of women’s personnel
freedom and his liberty to live. This criterion after getting abolished will not force a woman
to leave the job once she is married, leaving her to continue doing both things in her life like
men.

REFERENCES

 Air India v.Nergesh Meerza & Ors, AIR 1981 SC 1829.

 Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 [27].
 C.B. Muthamma v. Union of India,AIR 1979 SC 1868.
 Harminder Kaur v. Union of India, AIR 2009 SC 2875 [14] {2}.
 Madhu Kishwar & Ors v. State of Bihar & Ors, (1996) 5 SCC 125.
 Maniyara Manickam v. The Managing Director Tamil Nadu State Transport
Corporation, 2011 SCC OnLine Mad 2234.
 National Legal Service Authority v. Union of India & Ors, (2014) 5 SCC 438 [135(1),
(2)].
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1[ 645(1)(2)(3)(4)].
 Rajesh Kumar Gupta v. State of U.P., AIR 2005 SC 2540 [14] , [15].
 Smt. R. Vasantha v. Union of India (represented by its Secretary to Government),
Ministry of Labour, New Delhi, and others, 2000 SCC OnLine Mad 856 [103],[105].
 Smt. Sushma Gosain and Ors v. Union of India and Ors, (1989) 4 SCC 468.
 Sri Devendra Prasad Sharma v. The State Of Mizoram & Ors, (1997) 4 SCC 422.
 State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 [12].
 State of Karnataka v. Umadevi, (2006) 4 SCC 1.
 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
 Union of India and Others v. M.V. Valliappan and others, (1999) 6 SCC 259.
 United Sates v. Virginia, 518 U.S. 515 (1996).
 UP Income Tax Department Contingent Paid Welfare Association v. Union of India,
AIR 1988 SC 517.
 ABOUT THE AUTHOR

Yash Jain is pursuing B.B.A.LLB (Hons) from Bharati Vidyapeeth New Law College. He is
currently an Intern at ProBono India.He has participated in many moot court competitions.
He has interests in Constitutional Law, Banking Law and Corporate Law. By being part of
Team ProBono, he is trying to apply legal concepts to facts and improve her drafting skills.
To get away from studies, he is interested in various sports like Cricket, Volleyball, Handball
and he is part of the college volleyball and handball team.