Kerala High Court
Dr. Asha. K. Sadasivan vs State Of Kerala on 1 August, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT) NO. 158 OF 2025
-:1:-
2025:KER:57748
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 1ST DAY OF AUGUST 2025 / 10TH SRAVANA, 1947
OP(KAT) NO. 158 OF 2025
AGAINST THE ORDER DATED 18.03.2025 IN OA NO.430 OF 2025 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
DR. ASHA. K. SADASIVAN,
AGED 43 YEARS
D/O K SADASIVAN PILLAI, JUNIOR CONSULTANT (ANESTHESIOLOGY),
GOVERNMENT GENERAL HOSPITAL, KOTTAYAM, PIN-686 001, RESIDING
AT: SAKETHAM', HOUSE NO. 1, SKYLINE, PALM MEDOWS VILLA,
MUTTAMBALAM P.O, KOTTAYAM, PIN - 680004
BY ADV SMT.T.N. SREEKALA
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE PRINCIPAL SECRETARY,
DEPARTMENT OF SOCIAL JUSTICE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DIRECTOR,
DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM, PIN - 695035
4 THE DISTRICT MEDICAL OFFICER (HEALTH),
OP(KAT) NO. 158 OF 2025
-:2:-
2025:KER:57748
COLLECTORATE, KOTTAYAM, PIN - 686001
5 THE SUPERINTENDENT,
THE OFFICE OF THE SUPERINTENDENT, GOVERNMENT GENERAL
HOSPITAL, KOTTAYAM, PIN - 686001
6 ADDL R6: DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE PO,
THIRUVANANTHAPURAM-695011 IS SUO MOTU IMPLEADED AS
ADDITIONAL R6 AS PER ORDER DATED 12/06/2025 IN OP(KAT)
158/2025
OTHER PRESENT:
SRI UNNIKRISHNA KAIMAL SR GP SR GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON
28.07.2025, THE COURT ON 01.08.2025 DELIVERED THE FOLLOWING:
OP(KAT) NO. 158 OF 2025
-:3:-
2025:KER:57748
A. MUHAMED MUSTAQUE & JOHNSON JOHN, JJ.
------------------------------------------------------------
O.P. (KAT) No. 158 of 2025
---------------------------------------------------------
Dated this the 1st day of August, 2025
JUDGMENT
A.Muhamed Mustaque, J.
This original petition was filed by a lady doctor currently working
as a Junior Consultant (Anaesthesiology) in General Hospital,
Kottayam. Her claim for exemption from 24-hour call duty has been
declined by the Government. The Tribunal declined to interfere with
the matter.
2. The petitioner has a son who is now 11 years old. He is
suffering from autism spectrum disorder, and his disability is
assessed at 70%. Her husband is also a doctor working as an
Assistant Professor at the Government Medical College, Ernakulam.
OP(KAT) NO. 158 OF 2025
2025:KER:57748
The petitioner also has a daughter aged 7 years. The petitioner has
no problem in attending normal fixed duty hours, as she has made
arrangements at home in the absence of her husband. But her
problem is that if she has to attend the call duty depending upon
exigency, she cannot attend call duty by leaving her autistic son and
daughter alone at home. It appears that she was otherwise engaging
a servant to take care of her son and daughter during the specified
time of her duty. Her peculiar problem is that even on a call at
midnight, she will have to report for duty, leaving her son and
daughter at home alone. In O.A [EKM] No. 1457/2024 filed by her
husband, there was a direction to post him at Kottayam. If her
husband was posted at Kottayam, it would have to a certain extent
solved her problem.
3. This type of litigation is peculiar to the women employees
working in public service. The reason is that there is no system in
place to address the problem faced by such employees in broader
constitutional principles.
4. A Single Bench of this Court (one among us-Justice A.
OP(KAT) NO. 158 OF 2025
2025:KER:57748
Muhamed Mustaque) in Mini K. T v. Senior Divisional Manager,
LIC, Kozhikode and Others [ 2018 (1) KHC 307], after referring
to provisions under the Universal Declaration of Human Rights,
International Covenant on Economic, Social and Cultural Rights
(ICESCR), International Covenant on Civil and Political Rights
(ICCPR), Convention on the Rights of the Child and Convention on
the Elimination of All Forms of Discrimination against Women
(CEDAW) observed as follows:
" 22. As seen from the discussions as above, motherhood is an integral part of
dignity of a woman. Motherhood encompass status, dignity and self respect as
elements. Article 21 protects life and personal liberty. It can be deprived only in
accordance with the procedure established by law. Motherhood is an option. In
this Universe life of everyone is an option of his parents, but that does not mean
that motherhood has to be subjugated to any other interest. Right to procreation
is intrinsically associated with right to live. It is a basic right of man. Thus, choice
of option does not change character of such right as fundamental right. In
general, employer has no legal obligation to have concern over employee's
private affairs. However, this has an exception, if those private affairs are
interest protected as fundamental rights. To understand the nature of
fundamental rights, in fact, in the foregoing paragraph, this court had adverted
to the standards and norms developed through international human rights law.
23. Coming back to the question of dignity, those dignity has to be understood
in the societal background. Indian cultural and traditional practices would go to
OP(KAT) NO. 158 OF 2025
2025:KER:57748
show that motherhood is an essential part of family responsibility. International
Human Rights Law thus protect dignity of woman and also family. The
Constitution thus demand interpretation of its provisions in that background.
Person-hood of a woman as mother is her acclaim of individuality essentially
valued as liberty of her life. This was so designed by culture, tradition and
civilisation. Mother's role in taking care of the child has been considered as an
honour; she enjoyed such status because of her position in respect of the child.
If on any reason she could not attend her workplace due to her duties towards
child (compelling circumstances), the employer has to protect her person-hood
as "mother". If not that, it will be an affront to her status and dignity. No action
is possible against a woman employee for her absence from duty on account of
compelling circumstances for taking care of her child. No service Regulations can
stand in the way of a woman for claiming protection of her fundamental right of
dignity as a mother. Any action by an employer can be only regarded as a
challenge against the dignity of a woman. Motherhood is not an excuse in
employment but motherhood is a right which demands protection in given
circumstances. What employer has to consider is whether her duty attached to
mother prevented her from attending employment or not. As already adverted
above, motherhood is an inherent dignity of woman, which cannot be
compromised.
24. A mother cannot be compelled to choose between her motherhood and
employment. A woman employee is not expected to surrender her self respect
fearing action against her for not being able to attend duty for compelling family
responsibility. John Rawls in the book, "A Theory of Justice", identifies that in a
just Society, self respect is not subject to political bargaining while parties in
original position thrust for justice as fairness. He describes self respect thus:
"67. SELF-RESPECT, EXCELLENCES, AND SHAME ...We may define self-respect
(or self-esteem) as having two aspects. First of all, as we noted earlier, it includes
OP(KAT) NO. 158 OF 2025
2025:KER:57748
a person's sense of his own value, his secure conviction that his conception of
his good, his plan of life, is worth carrying out. And second, self-respect implies
a confidence in one's ability, so far as within one's power, to fulfill one's
intentions. When we feel that our plans are of little value, we cannot pursue
them with pleasure or take delight in their execution. Nor plagued by failure and
self doubt can we continue in our endeavors. It is clear then why self respect is
a primary good. Without it nothing may seem worth doing, or if some things
have value for us, we lack the will to strive for them. All desire and activity
becomes empty and vain, and we sink into apathy and cynicism. Therefore the
parties in the original position would wish to avoid at almost any cost the social
conditions that undermine self-respect. The fact that justice as fairness gives
more support to self-esteem than other principles is a strong reason for them to
adopt it."
5. Similarly, in Balan C. v. Union of India [ 2024 (1) KHC
64 (DB)] this Court referred to provisions in The Rights of Persons
with Disabilities Act 2016, The United Nations Convention on the
Rights of the Child (UNCRC) and The UN Convention on the Rights of
Persons with Disabilities (UNCRPD) and observed as follows:
"12. The balancing factors of administrative interest and individual interest of
an employee vis-a-vis the rights of a child with disability, will have to be primarily
done by the organisation. After adverting to all the circumstances in the matter
including medical reports of the child, the living environment, community life
etc., it is for the organisation to balance their administrative need and the need
of an employee with reference to such a child."
OP(KAT) NO. 158 OF 2025
2025:KER:57748
Therefore, in light of the above judgments, the matter requires
reconsideration by the Government. Accordingly, the order impugned
and the order passed by the Government are set aside. Until the
Government passes fresh orders in this matter, the interim order will
continue.
The original petition is disposed of as above.
Sd/-
A. MUHAMED MUSTAQUE, JUDGE
Sd/-
JOHNSON JOHN, JUDGE
ms
OP(KAT) NO. 158 OF 2025
2025:KER:57748
APPENDIX OF OP(KAT) 158/2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE DISABILITY CERTIFICATE OF
APPLICANT'S SON JAYASANKAR R ISSUED FROM THE
GENERAL HOSPITAL, KOTTAYAM VIDE
NO.KL1061120130161902 DATED 19.08.2023 ALONG WITH
TYPED COPY.
Annexure A2 TRUE COPY OF THE G.O (MS.) NO. 2/2023/SJD, DATED
11.05.2023 ISSUED BY THE 2ND RESPONDENT
Annexure A3 TRUE COPY OF THE PROCEEDINGS OF THE 5TH ·
RESPONDENT VIDE ORDER NO. A.3/8368/2024/ GENERAL
HOSPITAL, KOTTAYAM, DATED 30.11.2024
Annexure A4 TRUE COPY OF THE ANAESTHESIOLOGIST DUTY LIST FOR
THE MONTH OF DECEMBER DATED 30.11.2024
Annexure A5 TRUE COPY OF THE REPRESENTATION DATED 03.12.2024
SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT
Annexure A6 TRUE COPY THE REPRESENTATION DATED 03.12.2024
SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT
Annexure A7 TRUE COPY OF THE REQUEST DATED 03.12.2024
SUBMITTED BY THE APPLICANT TO THE 5TH RESPONDENT
Annexure A8 TRUE COPY OF THE OFFICE NOTE NO. A3/12278/2024,
DATED 20.12.2024 ISSUED BY THE 5TH RESPONDENT
Annexure A9 TRUE COPY OF THE LETTER NO. E.B 2-28515/2024/DHS,
DATED 16.12.2024 ISSUED BY THE 3RD RESPONDENT TO
THE 4TH RESPONDENT
Annexure A10 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE
APPLICANT TO THE 5TH RESPONDENT DATED 23.12.2024
Annexure A11 TRUE COPY OF THE REQUEST DATED 21.12.2024
SUBMITTED BY THE APPLICANT TO THE 5TH RESPONDENT
THROUGH E- MAIL
Annexure A12 TRUE COPY OF THE ORDER DATED 26.12.2024 OF HON'BLE
TRIBUNAL, THIRUVANANTHAPURAM BENCH IN O.A NO. 1982
OF 2024
Annexure A13 TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT
VIDE NO. A3-8368/2024/GENERAL HOSPITAL, KOTTAYAM
DATED 21/02/2025
Annexure A14 TRUE COPY OF THE SCREENSHOT OF E-MAIL
COMMUNICATION OF ANNEXURE AL 2 FROM THE MAIL ID OF
THE APPLICANT TO THE 5TH RESPONDENT
Annexure A15 TRUE COPY OF THE DUTY LIST FOR THE MONTH OF
JANUARY, 2025
Annexure A16 TRUE COPY O}THE DUTY LIST FOR THE MONTH OF FEBRUARY
OP(KAT) NO. 158 OF 2025
2025:KER:57748
Annexure A17 TRUE COPY OF THE LETTER NO.A3-8368/2024 GENERAL
HOSPITAL, KOTTAYAM DATED 27.12.2024 ISSUED BY THE
5TH RESPONDENT TO THE APPLICANT.
Annexure A18 TRUE COPY OF THE G.O.(RT) NO.579/2025/H&FWD, DATED
27.02.2025 ISSUED BY THE FIRST RESPONDENT.
Annexure A19 TRUE COPY OF THE DUTY LIST FOR THE MONTH OF MARCH,
Annexure R5(a) TRUE COPY OF THE WARD DUTY LIST FOR THE MONTH OF
DECEMBER, 2024
Annexure R5(b) TRUE COPY OF THE WARD DUTY LIST FOR THE MONTH OF
JANUARY, 2025
Annexure R5(c) TRUE COPY OF THE WARD DUTY LIST FOR THE MONTH OF
FEBRUARY, 2025
Annexure R5(d) TRUE COPY OF THE WARD DUTY LIST FOR THE MONTH OF
MARCH, 2025
Exhibit P1 A TRUE COPY OF THE ORDER IN OA NO. 430 OF 2025
DATED 18.03.2025, RENDERED BY THE LEARNED KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
Exhibit P2 A TRUE COPY OF THE OA NO. 430 OF 2025 DATED
23.02.2025 FILED BY PETITIONER BEFORE THE KAR,
THIRUVANANTHAPURAM
Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF
OF THE 5TH RESPONDENT DATED 15.03.2025
