Delhi High Court
Isha vs Union Of India And Ors. on 25 July, 2024
Author: Rekha Palli
Bench: Rekha Palli
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 25.07.2024
+ W.P.(C) 3732/2019
ISHA
.....Petitioner
Through: Mr. Anil Singhal, Adv.
Versus
UNION OF INDIA AND ORS.
.....Respondents
Through: Ms. Uma Prasuna Bachu, Sr.P.C. for
UOI.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MS. JUSTICE SHALINDER KAUR
REKHA PALLI, J(ORAL)
1. The facts of this case remind us of the famous words of Ban Ki
Moon, the former Secretary General of the United Nations, "Achieving
gender equality requires the engagement of women and men, girls and
boys. It is everyone's responsibility". Despite the timeless wisdom of
these words, the present case reveals that meaningful progress in
achieving gender equality remains limited till date.
2. The petitioner who was an aspirant for joining as a Constable in
the Railway Protection Force/Railway Protection Special Force
[RPF/RPSF], having applied for the said post pursuant to the
employment notice No. 01/2018 issued by the respondents has been
compelled to knock at the doors of this Court as, despite her name
having been placed in the merit list, she was denied appointment
merely because she was unable to appear in the Physical Efficiency
Test and Physical Measurement Test conducted on 20.04.2019 on
account of her pregnancy.
3. Before dealing with the rival submissions of the parties, it may
be apposite to note the brief factual matrix as emerging from the record.
4. Upon the respondents issuing an employment notice bearing
no.01/2018 in June, 2018 inviting applications for the post of Constable
(Male and Female) in the RPF/RPSF, the petitioner submitted an
application for the post of Constable before the last date which was
30.06.2018. The Computer Based Test (CBT) was, as per the
advertisement, required to be held in September/October, 2018, but the
same was finally conducted on 05.02.2019, in which the petitioner
appeared and secured 72.67 marks, which were much higher than the
cutoff marks of 64.16. Pursuant thereto, she was required to appear in
the Physical Efficiency Test (PET), Physical Measurement Test (PMT)
and Document verification on 20.04.2019. Being in the advanced stage
of her pregnancy, the petitioner approached the respondents with a
request to accommodate her by postponing her PET as it included 800
meters run, a long jump and a high jump.
5. Upon being verbally informed by the respondents that her
request could not be acceded to as the recruitment process was required
to be completed in time, the petitioner approached this Court on
09.04.2019 i.e., much before 20.04.2019, the date on which the PET
was scheduled to be conducted. On 12.04.2019 when the writ petition
was taken up for preliminary consideration, learned counsel for the
respondents accepted notice and was granted time to take instructions.
It, however, appears that the matter was thereafter adjourned from time
to time and consequently, the petitioner was unable to appear in the
PET and has, therefore, been deprived of being appointed to the post of
Constable in RPF/RPSF, for which post she was found meritorious in
the CBT conducted way back in February, 2019.
6. In support of the petition, learned counsel for the petitioner
submits that once the respondents were made aware that the petitioner
could not appear in the PET on account of being in the advanced stage
of her pregnancy, they ought to have postponed the PET to a suitable
date, especially when the test included activities such as 800m run, high
jump and long jump, which a pregnant woman could not perform. He
further submits that when the petitioner applied for appointment in the
said recruitment process, she was not aware as to when the PET could
be conducted as even in the past, despite having invited applications for
the post of Constable in 2016, the respondents did not initiate the
selection process for the same till as late as 2019. In support of his plea
that the petitioner being a married woman could not have been
penalized merely because of her pregnancy and that too by ignoring her
high marks in the CBT, he places reliance upon a decision of a
Coordinate Bench in Sharmila Yadav v Union of India & Ors., 2017
SCC OnLine Del 12680. He, therefore, prays that the writ petition be
allowed and the respondents be directed to forthwith appoint the
petitioner with all consequential benefits including retrospective
seniority.
7. Per contra, Ms. Uma Prasuna Bachu, learned counsel for the
respondents seeks dismissal of the writ petition by urging that the
respondents have acted fairly as they were bound by the timelines fixed
for the recruitment process and therefore, could not accede to the
petitioner's request for postponement of PET under any circumstances.
She further contends that now after five years, the petitioner can
otherwise not be appointed as all the vacancies of Constable advertised
in 2016 and 2018 stand filled. Further, a fresh notification inviting
applications for the post of Constable (Male and Female) in the
RPF/RPSF has already been issued on 15.04.2024, though the dates for
holding the selection process are yet to be finalized. She therefore,
prays that the writ petition be dismissed.
8. Having considered the submissions of the learned counsel for the
parties and perused the record, we are constrained to express our
anguish in the manner in which the respondents have treated the
petitioner, a young meritorious lady, only because she happened to be
pregnant at the time when the respondents were conducting the PET.
There was no reason as to why the respondents could not have
postponed the PET for a few months when the petitioner specifically
informed them that she could not, in her advanced stage of pregnancy,
perform high jump, long jump or undertake the 800m run, which were
the essential components of the PET. As a result of the respondent's
adamant stand not to postpone the date for the PET, the petitioner has
been denied appointment for the last five years, even though she had
obtained much higher marks than the cut off. This approach of the
respondents is undoubtedly contrary to the fundamental rights
envisaged under Articles 14, 15, 16 and 21 of the Constitution of India.
9. At a time when the nation is vigorously promoting gender
equality and concerted efforts are being made to ensure the higher
representation of women in all services including the Armed Forces, a
woman cannot be disqualified for appointment only because she, due to
her pregnancy, is not in a position to participate in the PET at that
stage. Pregnancy, in our view, cannot be treated as a disability but is
one of the natural consequences of marriage and therefore every
employer, more so the State, is expected to realize the difficulties which
a woman would face during her pregnancy. We find that on one hand
the parliament has enacted the Maternity Benefit Act to ensure that a
pregnant woman can embrace motherhood honorably and without the
fear of being victimized for her forced absence during the pre or post
natal period, on the other hand the attitude adopted by the authorities
not to accede to genuine requests of pregnant women for deferment of
such tests which require strenuous activities, which they can, for
obvious reasons, not undertake would certainly be counterproductive to
achieving the goal of gender equality.
10. We are of the view that the respondents could not have turned a
blind eye and adopted such an insensitive attitude towards the
challenges faced by women candidates, particularly when appointing
women in the Forces. It needs to be appreciated that it is important to
have adequate representation of women not only in civil employment
but also in the Armed Forces/Police. It appears that the respondents
have treated pregnancy as though it were a sickness or a disability on
account of which women could be ousted from the selection process. In
our view, motherhood should never and can never be the basis for
denying public employment opportunities to women.
11. It is time that all authorities, especially those dealing with public
employment realize that it is essential to support women who are eager
to contribute to the nation, and ensure that they are not denied their
rights due to pregnancy or other such causes which cannot be treated as
a disability or an illness. In our considered view, discrimination based
on pregnancy should never hinder a woman's right to pursue her career
aspirations as maternity should not be seen as a barrier but as a
fundamental human right of every woman. It is crucial that every effort
is made by all employers to create an inclusive environment where
women can fulfill their professional aspirations without facing unjust
obstacles, especially those related to pregnancy.
12. In this regard, we may also refer to the observations made by a
Coordinate Bench in Sharmila Yadav (supra), as contained in
paragraph nos.10 and 15 thereof. The same read as under:
"10. We are of the opinion that the stand of the
respondents is fallacious, unjustified and unacceptable.
In fact, it reeks of discrimination and per se violates
Articles 14, 15, 16 and 21 of the Constitution. Pregnancy
discrimination is abhorrent and cannot be accepted as it
violates the principle of equality and discriminates on the
ground of gender. The petitioner, who has by choice
become a mother, must be given the same opportunity
and chance of promotion as others. Gender
discrimination would include discrimination on ground of
pregnancy and maternity and it is unlawful to treat the
petitioner unfavorably because she has exercised her
right and choice to be a mother. Constitutional mandate
imposes a duty and obligation on the respondents to
ensure that equal opportunity for promotion is provided
to all similarly situated employees including those who
have exercised their right to be a mother. Same
opportunity for career development, promotion etc. must
be ensured. Otherwise, it will amount to gender bias
virtually treating pregnancy as a disability disqualifying
a person for the time being. Indeed, we have had enacted
affirmative enactments in the form of Maternity Benefits
Act, 1961, which may not be directly applicable in the
present factual matrix, albeit promote the constitutional
manifest of equal treatment and non-discrimination on
the ground of gender.
* * * * *
15. In view of the aforesaid discussion, we would allow
the present writ petition and quash the impugned orders
denying seniority to the petitioner based on her rank in
the selection test. The petitioner would be granted
promotion and notional seniority as per her gradation
rank at Sr. No. 780 in the written examination along with
her batch mates for the vacancy year 2011-12. Her
pregnancy, we hold and direct, cannot be treated as a
disability and disqualification as Shape-II medical
category. The present pay of the petitioner would be
notionally fixed as if she was promoted on the same day
as her immediate junior. She will also be entitled to
arrears for a period of 3 years before filing of the present
writ petition on 22nd May, 2017. Arrears would be paid
within three months from the date a copy of this judgment
is received, failing which, the respondents would pay
interest @ 8% from the date of this order and till payment
of the principal amount is made. There would be no order
as to costs."
13. What, thus, emerges is that this Court in its aforesaid decision,
rendered seven years ago, while dealing with a case of a woman Assistant
Sub Inspector of the CRPF who could not undertake a promotional course
due to her pregnancy, categorically held that pregnancy could not be treated
as a disability or a disqualification. This Court emphasized that merely
because a woman employee exercises and chooses her right to be a mother,
she cannot be penalized by treating pregnancy as a disability. The present
case, however, demonstrates that the respondents are still oblivious to the
rights and aspirations of young women and continue to deny them the
opportunity of employment on the ground of pregnancy. We, therefore, have
no hesitation in holding that the decision of the respondents in rejecting the
petitioner's candidature is wholly unsustainable and is required to be
quashed.
14. We may now deal with the respondent's plea that the vacancies of
Constable in 2016 and 2018 already stand filled and therefore, the petitioner
cannot now be appointed. In our view, the respondents having acted in a
most illegal and arbitrary manner in rejecting the petitioner's request for
deferment of PET cannot now be permitted to urge that she cannot be
appointed. Even otherwise, the petitioner is seeking to be appointed only as
a Constable, vacancies whereof are being regularly advertised. In fact, it is
the own case of the respondents that fresh vacancies have been advertised in
April 2024. We, therefore, find no reason as to why the petitioner cannot be
appointed against these available vacancies.
15. In the light of the aforesaid, we allow the writ petition with costs of
Rs. 1,00,000/- by directing the respondents to permit the petitioner to appear
in the PET, PMT and document verification within 6 weeks. In case she is
found successful therein and fulfils all other eligibility criteria, the
respondents will appoint her to post of Constable in the RPF/RPSF along
with retrospective seniority and other consequential benefits. Arrears of
backwages will however, as volunteered by the learned counsel for the
petitioner, restricted to 50%. The costs will be paid to Ms. Arpana, a young
lady who recently suffered injuries due to fall of a portion of the roof on her
in the Delhi High Court premises. The costs will be paid to her within a
period of 2 weeks by remitting the same to her below mentioned bank
account:-
Ms. Arpana, DL7944
D/O Sh. Anand Kumar
A/C No. 0620000101639462
Bank: Punjab National Bank
Aadhar No. 578449872364
16. While allowing the writ petition with the aforesaid directions, we
earnestly hope that all employers, especially the State, will in the future,
ensure that no woman is deprived of an opportunity to seek employment
only on account of her pregnancy. We also hope that all genuine requests
for deferment of physical endurance test and other physically strenuous
activities, by women candidates on account of pregnancy will be considered
favorably.
17. The writ petition is allowed in the aforesaid terms.
(REKHA PALLI)
JUDGE
(SHALINDER KAUR)
JUDGE
JULY 25, 2024/akc/ar/bs
