Justice P. Gopinath relied on Apex Court decision Anuj Garg and Ors. v. Hotel Association of India and observed that Rule 7(37) of the 2002 Rules is unconstitutional for being violative of Articles 14, 15, 19 and 21 of the Constitution.

“In the facts of this case, it is not possible to hold that the impugned Rule is either justified in principle or is proportionate in nature. As observed by the Supreme Court, instead of prohibiting the employment of women in toddy shops altogether, the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated, and it should also ensure circumstances of safety which inspire confidence in women to work wherever they want and choose any profession they want,” the Court reasoned.

It further added:

“For the sake of reiteration, it may be stated that while the State has an obligation to ensure that women are not subjected to harassment and must have a safe environment to work, such a responsibility on the State machinery cannot be achieved by prohibiting women from working in whatever industry they choose to work, as observed by the Supreme Court in Anuj Garg (supra).”

The petitioner was the wife of a late employee of a toddy shop in Thrissur district. Following her husband's death, the petitioner sought compassionate appointment in the toddy shop but she was denied employment citing Rule 7(37). Aggrieved, she approached the High Court challenging the said Rule as unconstitutional.

The senior counsel appearing for the petitioner referred to Sanuja and Ors. v. Kerala State Beverages Corporation Ltd. and Ors. which struck down the prohibition related to foreign liquor shops, as well as the Apex Court judgment [Anuj Garg and Ors. v. Hotel Association of India] relied therein. He also referred to Dhanyamol v. State of Kerala wherein a similar rule in Foreign Liquor Rules, 1953 was struck down. It was contended that impugned Rule must also be struck down as violative of Articles 14, 15, 16 and 21 of the Constitution.

The State government's stand was that the Rule was brought in to protect women from being exploited and subjected to workplace harassment. It was further stated that toddy shops are often located in remote place and it is the duty of the State to ensure that women are not employed there for their own safety and well-being. It was argued that the Rule only lays down a reasonable classification.

The State relied on the Division Bench decision in Kerala Public Service Commission v. Manjusha (2009) wherein women were excluded from being considered for appointment as Night Watchman. It was contended that it is justified in excluding women from certain employment opportunities taking into consideration the nature and requirements of the job.

The State also relied on a Punjab and Haryana High Court decision wherein the prohibition of employment of women in men's jail was upheld. There is always presumption of constitutionality and Courts must lean in favour of constitutionality, the State added. Moreover, liquor trade is res extra commercium (things outside of commerce) and that no fundamental rights can be claimed.

The counsel appearing for the toddy shop licencee also supported the government's stand. It was pointed out that a toddy shop is structurally different from a foreign liquor shop since the latter does not sell liquor on loose. Also, the problems that may arise in the toddy shop may not arise in a foreign liquor shop.

After hearing the parties, the Court was of the view that the Rule should be struck down. It also distinguished the decisions relied on by the government pleader:

“In those cases, the Court concluded that it would be hazardous for women to be employed as Night Watchmen/Shed Clerks and Shore Mazdoors/in jails and it was legitimate for the State to prohibit women from holding such posts in order to ensure efficiency in public service. Such a situation does not arise in the facts of this case. While it is suggested that the impugned Rule was incorporated keeping in mind the safety of women, there is no material to suggest that the considerations which weighed with the Court while deciding those cases apply to the facts of this case also.”

The Court directed that the petitioner's claim for compassionate appointment be considered without considering the Rule struck down. It added that the any condition imposed while granting licence to the 5^th respondent for the toddy shop based on the said Rule cannot sustain. Thus, it allowed the plea.

Counsel for the petitioner: Ranjith Thampan (Sr.), V.M. Krishnakumar, P.R. Reena

Counsel for the respondents: M.C. John, Chithra P. George – Government Pleader, Renil Anto Kandamkulathy