Rajasthan High Court - Jodhpur
Principal, Rastra Udai Shikshak ... vs Gayatri on 30 October, 2023
Bench: Nupur Bhati
[2023:RJ-JD:35469]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
(1) S.B. Civil Writ Petition No. 5769/2020
Gayatri D/o Bhani Ram, Aged About 30 Years, R/o Chak 3-5-A
Rd, Village And Post Mahsana, Via Dhirera, Tehsil Loonkaransar,
District Bikaner.
----Petitioner
Versus
1. Maharaja Ganga Singh University, Bikaner, Through Its
Registrar.
2. Comptroller Examination, Maharaja Ganga Singh
University, Bikaner.
3. Rastra Udai Shikshan Prashikshan College, F 2- 3,
Buchwal Industrial Area, Bikaner.
----Respondents
Connected With
(2) S.B. Civil Writ Petition No. 17552/2019
1. Principal, Rastra Udai Shikshak Prashikshan College,
Situated At F 2-3, Beechhwal Area, Bikaner.
2. Manager, Rastra Udai Shikshan Prashikshan College,
Situated At F 2-3, Beechhwal Area, Bikaner Through
Deen Dayal Vyas S/o Late Shri Kanhaiya Lal Vyas, Aged
61 Years, R/o Purani Ginnani, Bikaner.
----Petitioners
Versus
1. Gayatri D/o Shri Bhaniram Jat, W/o Shri Lekhram, B/c
Jat, R/o Chak 351 R.d., Village And Post Mahrana, Post
Dhirera, Tehsil Loonkaransar, District Bikaner.
2. Registrar, Maharaja Gangasingh University, Bikaner.
----Respondents
(3) S.B. Civil Writ Petition No. 642/2020
Maharaja Ganga Singh University, Bikaner, Rajasthan Through
Its Registrar.
----Petitioner
Versus
1. Gayatri D/o Shri Bhaniram Jat W/o Lekhram, By Caste-
Jat, Resident Of Chak- 351 R.d. Village And Post-
Mehrana, Post- Dhirera, Tehsil- Loonkaransar, District-
(Downloaded on 12/11/2023 at 08:12:34 AM)
[2023:RJ-JD:35469] (2 of 23) [CW-5769/2020]
Bikaner (Raj.).
2. Principal, Rastra Udai Shikshak Prashikshan College,
Situated At F-2-3, Beechhwal Area, Bikaner.
3. Manager, Rastra Udai Shikshak Prashikshan College,
Situated At F-2-3, Beechhwal Area, Bikaner. Through
Deen Dayal Vyas S/o Late Shri Kanhaiya Lal Vyas,
Aged - 61 Years, Resident Of Purani Ginnani, Bikaner
(Raj.).
----Respondents
(4) S.B. Civil Writ Petition No. 17551/2019
1. Principal, Rastra Udai Shikshak Prashikshan College,
Situated At F 2-3, Beechhwal Area, Bikaner.
2. Manager, Rastra Udai Shikshan Prashikshan College,
Situated At F 2-3, Beechhwal Area, Bikaner Through
Deen Dayal Vyas S/o Late Shri Kanhaiya Lal Vyas, Aged
61 Years, R/o Purani Ginnani, Bikaner.
----Petitioners
Versus
1. Sudarshna Bishnoi W/o Shri Hetram Bishnoi, B/c
Bishnoi, R/o Ward No. 1, Near Krishi Upaj Mandi Samiti,
Nokha, Bikaner.
2. Registrar, Maharaja Gangasingh University, Bikaner.
----Respondents
For Petitioner(s) : Mr. Vikas Bijarnia
Mr. Bheem Kant Vyas
For Respondent(s) : Mr. D.D. Chitlangi
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reportable
Judgment Reserved on <> 12/10/2023
Date of Pronouncement <> 30/10/2023
[2023:RJ-JD:35469] (3 of 23) [CW-5769/2020]
SBCWP No.5769/2020 :
1. Though the matter has been listed under the 'Orders
Category', however, the matter is being heard today itself with the
consent of counsel for both the parties.
2. The instant writ petition has been preferred under Article 226
of the Constitution of India with the following prayers:-
a) Respondents may kindly be directed to accept
examination form of the petitioner for B.Ed. Second Year
examination and permit her to appear in the B.Ed Second
Year examination.
b) any other appropriate order which is deemed just and
proper in the facts and circumstances of the case may
kindly be also passed; and
c) the petitioner may kindly be allowed the cost of writ
petition.
3. Brief facts of the case are that the petitioner could not join
the B.Ed. Course in time due to her pregnancy by which she was
blessed with a male child on 08.08.2018 and then after one month
of the birth of the child the petitioner joined the course of B.Ed.
and the petitioner was not permitted to pursue her studies thus
the petitioner filed an application before Permanent Lok Adalat.
The Permanent Lok Adalat passed an interim order dated
11.03.2019 in favour of petitioner wherein petitioner was
permitted to pursue her studies of B.Ed. I Year Course and it was
also ordered for relaxation in minimum attendance of 80% on
receiving her examination form. Eventually Permanent Lok Adalat
vide order dated 22.10.2019 (Annexure-1) allowed the application
filed by the petitioner.
[2023:RJ-JD:35469] (4 of 23) [CW-5769/2020]
4. Thereafter the respondents challenged the order dated
22.10.2019 passed by Lok Adalat by filing a writ petition before
this Hon'ble Court i.e. S.B. Civil Writ Petition No. 17752/2019 and
S.B. Civil Writ Petition No. 642/2020.
5. Pursuant to the directions of Lok Adalat the petitioner was
permitted to attend classes and thus she completed her Iyear
B.E.d. Course, thereafter the result of the Iyear (Annexure-2) was
declared on 31.07.2019 and the result of Iyear was produced in a
sealed envelope before the Permanent Lok Adalat by the
respondent No.1 Maharaja Ganga Singh University.
6. After completion of the I year B.Ed Course vide
communication dated 16.12.2019 (Annexure- 4) the petitioner
was directed to attend 16 week internship and the petitioner
thereafter pursued the studies of 2nd year B.Ed Course.
7. As per the Gazette Notification dated 28.11.2014 the
National Council for Teacher Education (NCET) had prescribed the
duration of maximum three years for completion of the B.Ed.
Course of two years. However the petitioner joined the course
belatedly only after a period of about one month and had
successfully completed her 1st year B.Ed. Course. The petitioner
was pursuing the 2nd year B.Ed. Course and was not able to
complete the Course beyond the period prescribed as the
respondent University was not permitting the petitioner to fill up
second year examination form after completing 1st year
examination despite the fact that the petitioner is continuously
studying her 2nd year course and attending regular classes and
[2023:RJ-JD:35469] (5 of 23) [CW-5769/2020]
has also submitted the examination form along with the demand
draft (Annexure-6) thrice before the respondent University.
8. Thus the petitioner being aggrieved with the arbitrary action
of the respondents in not accepting the examination form of the
petitioner for B.Ed. 2nd year the petitioner preferred this writ
petition.
9. Learned counsel of the petitioner submitted that the
petitioner is entitled for taking part in B.Ed. 2nd year examination
and the act of respondents in not accepting the examination form
is illegal arbitrary and unjust and against the provisions of law. He
further submitted that the order dated 22.10.2019 passed by
Permanent Lok Adalat is justified in allowing the application of
petitioner and directing the respondents including the Registrar
Maharaja Ganga Singh University, Bikaner to permit the petitioner
to participate in the examination and declare her result along with
other reliefs. Furthermore the Permanent Lok Adalat vide order
dated 11.03.2019 had passed an interim order and permitted the
petitioner to pursue her studies of B.Ed. with further directions of
internship and relaxation in minimum attendance on receiving her
examination form.
10. Learned counsel for the petitioner also submitted that the
petitioner completed 1st year B.Ed. Course and the result of which
was produced in a sealed envelope before this Court by
respondent No.1 Registrar Maharaja Ganga Singh University,
However, the respondents permitted the petitioner to pursue her
studies of 1st year B.Ed pursuant to the order of Permanent Lok
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Adalat and permission was granted by Maharaja Ganga Singh
University which conducts the examinations of B.Ed. of its
affiliated colleges including the petitioner's college.
11. Learned Counsel for the petitioner further submitted that the
petitioner on account of conceiving was not able to attend the
B.Ed Course classes and thus she should not be deprived of her
right to education on the ground of not attending the classes of
B.Ed I Year Course. In support of his submissions, learned counsel
for the petitioner placed reliance on the judgment passed by the
Hon'ble High Court Of Judicature At Madras in the case of
A.Arulin Ajitha Rani vs State of Tamil Nadu (SBCWP
440/2011); relevant portion of the judgment is reproduced here
as under:-
"26. The fear that the grant of any concession even to girls
who get married before attaining the age of 21 would be
seen as destructive of the policy to encourage marriages
above the age of 21 years, cannot be a factor to deprive the
benefit. In the social context in which we live, marriages
before the age of 21 are a matter of hard reality. When it is
not illegal for a girl above 18 years of age to get married, it
may not be feasible to deprive them of the benefit of
maternity leave on the ground that it is the policy of the
State to encourage people to get married after completion
of 21 years.
27. Therefore, the writ petition is allowed and the impugned
order is set aside. The first respondent is directed to
formulate a policy in general, for all educational institutions
and universities in the State, so as to ensure that girl
students, whose attendance falls short of the prescription,
on account of marriage and pregnancy, are granted the
benefit of condonation of shortage of attendance, so that
the natural biological process does not act as a hindrance to
[2023:RJ-JD:35469] (7 of 23) [CW-5769/2020]
the education and empower of women. There will be no
order as to costs."
12. Per contra learned counsel for the respondent raised a
preliminary objection that the present writ petition is not
maintainable as the Permanent Lok Adalat has passed the
impugned order dated 14.05.2019 without having any power and
authority as the Permanent Lok Adalat does not have the
jurisdiction to take cognizance in the present case as under
Section 22A(b) the present case does not fall in the definition of
"Public Utility Service. Hence, a writ petition was filed by the
respondents on this ground while challenging the impugned order
dated 22.10.2019 (S.B. Civil Writ Petition No.17552/2019 &
642/2020). He further submitted that in the Gazette of India
notified on date 28.11.2014 issued by NCTE (Annexure-R/1) it has
been clearly laid down that attendance in all academic work and
practical work for student-teachers (students who are pursuing
their studies in B.Ed./M.Ed. etc.) 80% attendance is mandatory
and 90% attendance in school based training shall be mandatory.
In the absence of petitioner having mandatory attendance of 80%
and 90% she had rightly been declined to continue the B.Ed
Course.
13. Learned counsel for the respondents further submitted that
the fact stated by the petitioner that the Permanent Lok Adalat
permitted the petitioner to attend the classes is false as the
interim order was passed by the Permanent Lok Adalat on
11.03.2019 whereby the petitioner was allowed to be appear in
the examination only, however the B.Ed. first Year Course had
[2023:RJ-JD:35469] (8 of 23) [CW-5769/2020]
already completed wherein the attendance of the petitioner was
zero and as such she was not entitled to appear in the
examination. The averment regarding having successfully
completed her B.Ed. First Year Course by the petitioner is not
correct as the petitioner was allowed to appear in the B.Ed. First
year examination in pursuance to interim order passed by the
Permanent Lok Adalat and practical examination of the petitioner
is still pending and the petitioner would be responsible if she fails
to complete her entire B.Ed Course within prescribed period.
In support of his submissions, learned counsel for the
respondents placed reliance on the judgment passed by the
hon'ble high court of kerala in the case of Jasmine vs Kannur
University (SB CWP 17993/2016 (Y); The relevant portion of the
judgment is reproduced here as under:-
"6. This Court, with due respect, is unable to accept the
finding of the learned Single Judge that in providing just
and humane conditions of work and for maternity relief and
in making effective provisions for securing the right to work
and to education, a female student could be given
relaxation from attending the requisite classes as stipulated
by the educational agency or the University for participating
in the examination. The requirement, insofar as providing
minimum attendance in lecture classes, is to equip the
students to better perform in the profession they wish to
pursue. Mere bookish knowledge is not the criteria W.P.(C)
No. 17993/2016 of judging a professional, and pass in
examination is not the only standard. The professional
courses in that the student carries it out in a competent
educational agency under a curriculum, structured as
semesters over a period of years. That involves attendance
in lecture classes, participation in seminars, performance in
practicals; herein giving lectures and so on and so forth,
[2023:RJ-JD:35469] (9 of 23) [CW-5769/2020]
which; together with the pass in the final examinations, not
only awards a degree but sends forth a well moulded
professional into society. This ensures that the students,
after the award of the degree, when send out to the
professional world, is equipped to discharge the professional
duties with high standards, commitment and orientation in
the chosen vocation.
7. The petitioner herein is a student of B.Ed., a teacher
training course, and is being trained to work as a teacher,
whose role in nation building cannot, but be W.P.(C) No.
17993/2016 emphasised. It cannot be said that merely for
the reason of her pregnancy a student could be allowed to
sit for the examinations even without satisfying the requisite
attendance, as prescribed by the educational agency. It
cannot also be said that the case of the petitioner is an
exceptional one, since, pregnancy cannot be considered to
be a medical condition visited on the petitioner
unexpectedly. This Court is of the firm view that the
petitioner ought to have definitely adjusted her priorities
when continuing a higher education, especially in a course
which trains her to be a professional teacher. Pregnancy was
an optional choice and that cannot be a reason to permit a
student to deviate from the requirements of a regular
course of study, and the insistence to adhere to the course
regulations cannot be termed to be, a negation of the
preferential treatment to women enshrined under the W.P.
(C) No. 17993/2016 Directive Principles or in derogation of
the values of motherhood. The petitioner has chosen to
expand her family and can only be deemed to have taken a
sabbatical from regular studies; which is definitely
permissible and laudable too. But that cannot be turned to
her advantage for wriggling out of the terms and conditions
of a regular academic course. The award of a degree is not a
private affair concerning the awardee alone; when it also
brings with it the stump of approval of a reputed educational
agency, on which the society acts. Personal preferences and
individual predilection should bow down to the larger public
interest and societal obligations. The petitioner definitely will
[2023:RJ-JD:35469] (10 of 23) [CW-5769/2020]
be entitled to continue the second semester in the next year
and appear for the examination after securing the requisite
attendance. W.P.(C) No. 17993/2016 The writ petition would
stand dismissed. No Costs."
14. Learned counsel for the petitioner in rebuttal submitted that
in the year 2002 an amendment was brought in the Legal Services
Authority Act 1987 wherein under Section 22A(b) the Secondary
education or educational institution has been added in the
definition of "Public Utility Service". He further submitted that the
submission of the learned counsel for the respondents is without
merit that the Permanent Lok Adalat did not have the jurisdiction
to take cognizance in the matter as after inclusion of Secondary
education or Educational Institution in the definition of "Public
Utility Service", the Permanent Lok Adalat shall have jurisdiction to
take cognizance in the matter.
15. Heard Learned Counsel for the parties; perused the material
available on record and the judgments cited at the bar.
16. The petitioner-Gayatri took admission in the B.Ed. Course for
the Session 2018-2020 with the respondents. She was pregnant
and gave birth to a child on 08.08.2018 and thus, was not in a
position to attend the regular classes of the I Year B.Ed Course.
The petitioner after passage of one month from the date of
delivery, presented herself before the respondents for attending
the classes of I Year B.Ed. Course, however, the respondents did
not permit her and on 15.10.2018, the petitioner was informed
verbally by the respondents that her name was struck off from the
roll, as the petitioner was not attending the classes of the said
[2023:RJ-JD:35469] (11 of 23) [CW-5769/2020]
Course, however, no information was ever received by the
petitioner in writing. This Court also observes that the petitioner
submitted her attendance before the respondents on 09.01.2019
by way of an application form, the receipt of which was duly
signed on 11.01.2019 by the respondent. The petitioner continued
with her studies at home as the respondent did not permit her to
attend the I Year B.Ed Classes and she was continuously taking up
the issue of permitting her to attend the classes of B.Ed. I Year
Course, however, no heed was paid to her request and thus, the
petitioner approached the Permanent Lok Adalat, Bikaner, by way
of filing an application before it. Moreover, the Permanent Lok
Adalat, Bikaner granted an interim order dated 11.03.2019 in
favour of the petitioner while directing the respondents to permit
the petitioner to sit in the ongoing session on regular basis and
also to permit the petitioner to take up the internship course and
also directed the respondents to permit the petitioner to appear in
the Main Examination, 2019 for the I Year B.Ed. Course.
17. The petitioner accordingly continued the classes as well as
appeared in the Main Examination, 2019 for B.Ed. I Year Course
and the result of the said examination was placed before the
Permanent Lok Adalat in a sealed envelope and the petitioner was
declared as successful in the said examination. As the petitioner
was not permitted to appear in the subsequent B.Ed. II Year
Examination, the petitioner preferred this present writ petition.
The respondent University and respondent College have also
preferred S.B. Civil Writ Petition No.17552/2019 and 642/2020
[2023:RJ-JD:35469] (12 of 23) [CW-5769/2020]
against the impugned award dated 22.10.2019 passed by the
Permanent Lok Adalat.
18. The respondents had also declared the result of I Year B.Ed.
Main Examination of the petitioner and also permitted her to
attend the regular classes of II Year B.Ed. Course but, on account
of shortage of attendance in the I Year Course, the petitioner was
not permitted to appear in the II Year Main Examination.
19. As per the Gazette Notification dated 28.11.2014 (Annexure-
R/1) and the Bye Laws, 80% attendance in B.Ed./M.Ed., and 90%
attendance in school based training, is mandatory and
undoubtedly, the petitioner could not secure the said mandatory
attendance in the I Year B.Ed. Course on account of her
pregnancy. Furthermore, this Court vide order dated 24.07.2020,
had granted interim order in favour of the petitioner while
permitting the petitioner to fill the examination form for B.Ed. II
Year and consequently, allowing her to appear in the B.Ed. II Year
Main Examination provisionally while directing her result not to be
declared without prior permission of this Court.
20. On 20.04.2021, the respondents placed before this Court the
result of the petitioner for the II Year B.Ed. Course Main
Examination in a sealed envelope and it was found that the
petitioner was declared 'Pass' in the B.Ed. II Year Course Main
Examination, 2020 and the same is taken on record. Moreover, in
the present case, the respondents did not permit the petitioner to
attend the regular classes of I Year Course as well as the Main
Examination of I Year B.Ed. Course and the subsequent II Year
[2023:RJ-JD:35469] (13 of 23) [CW-5769/2020]
Examination thereafter, as her attendance was much below the
required benchmark as laid down in the Gazette Notification dated
28.11.2014 (Annexure-R/1) and the Bye Laws.
21. India has ratified the Convention on the Elimination of all
Forms of Discrimination against Women and as per Article 12(2) of
the Convention on the Elimination of all Forms of Discrimination
against Women, it is necessary to grant maternity leave to
pregnant women and thus, in order to avoid any discrimination,
shortage of attendance is required to be condoned. Relevant
portion of the Article 12(2) of the Convention on the Elimination of
all Forms of Discrimination against Women (hereinafter referred to
as CEDAW for short) is reproduced hereunder:-
"Article 12(2).
Notwithstanding the provisions of paragraph I of
this article, States Parties shall ensure to women
appropriate services in connection with
pregnancy, confinement and the post-natal
period, granting free services where necessary,
as well as adequate nutrition during pregnancy
and lactation."
22. Article 42 of the Constitution of India provide for just and
humane conditions of work and maternity relief and the same is
obligatory upon the state, though, the said provision as laid down
under Part-IV of the Constitution of India, is not enforceable by
any court but, it shall be the duty of the State to apply these
principles while making the laws. Article 42 of the Constitution of
India is reproduced hereinbelow:-
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"Article 42 in The Constitution Of India -
Provision for just and humane conditions of work
and maternity relief The State shall make
provision for securing just and humane
conditions of work and for maternity relief"
23. The Maternity Benefit Act, 1961 has been enacted with an
object to regulate the employment of women in certain
establishment for certain period before and after child birth and to
provide for maternity benefit and certain other benefits. There is
no doubt that the Maternity Benefit Act, 1961 is applicable only
where there is a relationship of an employee and an employer but,
this fact cannot be ignored that in order to extend several benefits
to a pregnant woman in their respective work field and to avoid
any discrimination, such act has been enacted.
24. This Court is conscious of the fact that every educational
institution has its own rules and regulations regarding attendance
of the students in the classes in order to ensure that there is a
regular attendance by the students attending theory or practical
knowledge which can be acquired, but in the present case, on
account of pregnancy and the delivery of a child by the petitioner,
the petitioner was unable to attend the classes of the B.Ed.
Course.
25. This Court finds that in the case of Vandana Kandari Vs.
University of Delhi reported in MANU/DE/1614/2010, the
student whose shortage of attendance on account of advance
stage of pregnancy was not condoned by the University, filed a
writ petition before the Delhi High Court and after referring to the
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decision of Hon'ble High Court of Madras in the case of Nithya Vs.
University of Madras & Ors. reported in AIR 1995 MAD 164
and also the decision of the Delhi High Court in Neera Gupta Vs.
University of Delhi reported in 1996 IVAD Delhi 337 taking
note of Articles 15(3) & 42 of the Constitution of India, the Delhi
High Court held that a female student cannot be deprived of her
right to take examination, when her shortage of attendance is due
to advanced stage of pregnancy and that such students deserve
relaxation under the mandate of the Constitution so that the
natural biological process does not act as a hindrance to the
education and employment of women. Therefore, depriving the
petitioner from sitting in the examination on account of shortage
in the attendance occasioned due to pregnancy cannot be taken to
be in consonance with Article 14 and 21 of the Constitution of
India.
The Hon'ble Apex Court in the case of Air India Limited Vs.
Nergesh Meerza (1981) 4 SCC 335 has held that retiring an Air
Hostess upon attaining age of 35 years or on marriage taking
place within a period of four years of service or on first pregnancy
whichever occurs earlier is discriminatory and is in violation of
Articles 14, 15, 15(1), 16, 16(2) and 19 of the Constitution of
India.
26. Thus, in view of the above discussion, this Court is of the
firm view that a female student like the petitioner cannot be
deprived of undertaking the examinations on account of shortage
in the attendance due to the fact that she could not attend the
[2023:RJ-JD:35469] (16 of 23) [CW-5769/2020]
classes due to advanced pregnancy. The petitioner deserves
relaxation under the mandate of the Constitution and the action of
the respondents in not permitting the petitioner to attend I Year
B.Ed Classes, I Year Main Examination, II Year Classes & II Year
Main Examination is declared illegal, arbitrary, unjust and against
the mandate of the Constitution of India. The petitioner had duly
appeared in the Main Examination of I Year B.Ed Course in
pursuance of the directions of the Permanent Lok Adalat, Bikaner
and the petitioner had been declared pass in the said examination.
This Court vide interim order dated 24.07.2020 directed the
respondent to permit the petitioner to attend the classes of II Year
B.Ed Course and also permit the petitioner to sit in the Main
Examination-2020 of the II Year B.Ed Course. The result of the II
Year B.Ed Main Examination was placed before this Court and the
petitioner has been declared Pass in the said examination. Thus,
this Court deems it appropriate to direct the respondents to
declare the result of the II Year B.Ed Main Examination and also
issue in her favour the necessary certificates forthwith.
27. Consequently, the instant writ petition is allowed in these
terms. Stay application as well as all other pending applications, if
any, stand disposed of accordingly.
28. No order as to costs.
IN SBCWP Nos.17552/2019 and 642/2020:-
1. Both these writ petitions have been filed by the petitioner
under Article 226 & 227 of the Constitution of India challenging
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the award dated 22.10.2019 passed in Application No.51/2019, by
the Permanent Lok Adalat, Bikaner.
2. Since common questions of facts and law are involved in
both these writ petitions, therefore, the same are decided by this
common order.
3. The issue involved in these writ petitions is identical to one in
the writ petition bearing SBCWP No.5769/2020 (Gayatri Vs.
Maharaja Ganga Singh University, Bikaner), whereby, the writ
petition has been allowed by this Court by an order of even date.
As a result the order dated 22.10.2019 passed by the Permanent
Lok Adalat, Bikaner in Application No.51/2019 is upheld to the
extent of granting exemption to the petitioner on medical grounds
in her minimum presence on account of delivery and permitting
her to sit in the examination as per Rules and also permitting her
to undertake Internship in the upcoming session of IInd Year.
4. Consequently, both the writ petitions are partly allowed and
the order dated 22.10.2019 passed by the Permanent Lok Adalat,
Bikaner in Application No.51/2019 is quashed and set aside to
the extent of payment of compensation of Rs.10,000/- towards
mental, physical and financial loss caused to respondent no.1 due
to going through this long legal battle and Rs.5,000/- towards
complaint expenses.
5. Stay applications as well as all other pending applications, if
any, also stands dismissed.
6. A copy of this order be placed in each file.
[2023:RJ-JD:35469] (18 of 23) [CW-5769/2020]
IN SBCWP No.17551/2019 :
1. The instant writ petition has been preferred under Article
226 of the Constitution of India with the following prayer:-
"by an appropriate writ, order or direction the impugned
judgment dated 22.10.2019 may kindly be quashed and
set aside."
2. The respondent no.1, who was student of IInd Year B.Ed
Course in the petitioner College remained absent from
19.7.2018 on account of ill health due to pregnancy. The
respondent no.1 delivered a child on 16.10.2018. The
respondent no.1 after one month appeared before the
respondents for continuing her with the said Course and for
allowing her in the Main Examination for the year 2018-19. On
account of inaction of the petitioner of the petitioner College,
the respondent no.1 preferred an application No.04/2019 before
the Permanent Lok Adalat, Bikaner. After hearing both the
parties, the Permanent Lok Adalat, Bikaner passed judgment
dated 22.10.2019 while allowing the application of the
respondent no.1 with a direction to allow the respondent no.1 to
participate in the examination and thereafter declare the result
as well with a further direction of compensation of Rs.10,000/-
on account of mental and physical harassment.
3. Learned counsel for the petitioner submitted that the
Permanent Lok Adalat failed to consider that the respondent
no.1 chose to expand her family but she cannot take that
advantage for wriggling out of the terms and conditions of the
regular academic Course. Learned counsel for the petitioner also
[2023:RJ-JD:35469] (19 of 23) [CW-5769/2020]
submitted that the respondent no.1 will be entitled to continue
Second Semester in the following year and also would be
permitted to appear in the Main Examination but only after
securing the requisite attendance and, thus, the judgment
passed by the Permanent Lok Adalat is dehors the Rules
whereby it is mandatory for a student to obtain 80% and 90%
attendance in the respective session.
4. None present for the respondent no.1.
5. This Court finds that the Permanent Lok Adalat, Bikaner
had granted interim order in favour of the respondent no.1,
based on which, the petitioner no.1 permitted her to continue
Internship and allowed the respondent no.1 to sit in the Main
Examination of IInd Year B.Ed Course. The respondent no.1 has
successfully passed the IInd Year Main Examination and her
result was directed to be declared by the Permanent Lok Adalat.
The respondent no.1 had duly Passed the Ist Year Main
Examination and it is an admitted fact that the respondent no.1
fulfilled the requisite benchmark of having 80% and 90%
attendance in the Ist Year B.Ed Course and the respondent no.1
could not attend the classes of IInd Year B.Ed Course on account
of her advanced pregnancy.
6. This Court further observes that India has ratified the
Convention on the Elimination of all Forms of Discrimination
against Women and as per Article 12(2) of the Convention on
the Elimination of all Forms of Discrimination against Women, it
is necessary to grant maternity leave to pregnant women and
[2023:RJ-JD:35469] (20 of 23) [CW-5769/2020]
thus, in order to avoid any discrimination, shortage of
attendance is required to be condoned. Relevant portion of the
Article 12(2) of the Convention on the Elimination of all Forms of
Discrimination against Women (hereinafter referred to as
CEDAW for short) is reproduced hereunder:-
"Article 12(2).
Notwithstanding the provisions of paragraph I
of this article, States Parties shall ensure to
women appropriate services in connection with
pregnancy, confinement and the post-natal
period, granting free services where necessary,
as well as adequate nutrition during pregnancy
and lactation."
7. Article 42 of the Constitution of India provide for just and
humane conditions of work and maternity relief and the same is
obligatory upon the state, though, the said provision as laid
down under Part-IV of the Constitution of India, is not
enforceable by any Court but, it shall be the duty of the State to
apply these principles while making the laws. Article 42 of the
Constitution of India is reproduced hereinbelow:-
"Article 42 in The Constitution Of India -
Provision for just and humane conditions of
work and maternity relief The State shall make
provision for securing just and humane
conditions of work and for maternity relief"
8. The Maternity Benefit Act, 1961 has been enacted with an
object to regulate the employment of women in certain
establishment for certain period before and after child birth and
to provide for maternity benefit and certain other benefits.
[2023:RJ-JD:35469] (21 of 23) [CW-5769/2020]
There is no doubt that the Maternity Benefit Act, 1961 is
applicable only where there is a relationship of an employee and
an employer but, this fact cannot be ignored that in order to
extend several benefits to a pregnant woman in their respective
work field and to avoid any discrimination, such act has been
enacted.
9. This Court is conscious of the fact that every educational
institution has its own rules and regulations regarding
attendance of the students in the classes in order to ensure that
there is a regular attendance by the students attending theory
or practical knowledge which can be acquired, but in the present
case, on account of pregnancy and the delivery of a child by the
petitioner, the petitioner was unable to attend the classes of the
B.Ed. Course.
10. This Court finds that in the case of Vandana Kandari
Vs. University of Delhi reported in MANU/DE/1614/2010,
the student whose shortage of attendance on account of
advance stage of pregnancy was not condoned by the
University, filed a writ petition before the Delhi High Court and
after referring to the decision of Hon'ble High Court of Madras in
the case of Nithya Vs. University of Madras & Ors. reported
in AIR 1995 MAD 164 and also the decision of the Delhi High
Court in Neera Gupta Vs. University of Delhi reported in
1996 IVAD Delhi 337 taking note of Articles 15(3) & 42 of the
Constitution of India, the Delhi High Court held that a female
student cannot be deprived of her right to take examination,
[2023:RJ-JD:35469] (22 of 23) [CW-5769/2020]
when her shortage of attendance is due to advanced stage of
pregnancy and that such students deserve relaxation under the
mandate of the Constitution so that the natural biological
process does not act as a hindrance to the education and
employment of women. Therefore, depriving the petitioner from
sitting in the examination on account of shortage in the
attendance occasioned due to pregnancy cannot be taken to be
in consonance with Article 14 and 21 of the Constitution of
India.
The Hon'ble Apex Court in the case of Air India Limited
Vs. Nergesh Meerza (1981) 4 SCC 335 has held that retiring
an Air Hostess upon attaining age of 35 years or on marriage
taking place within a period of four years of service or on first
pregnancy whichever occurs earlier is discriminatory and is in
violation of Articles 14, 15, 15(1), 16, 16(2) and 19 of the
Constitution of India.
11. Thus, in view of the above discussion, this Court is of the
firm view that a female student like the respondent no.1 cannot
be deprived of undertaking examinations on account of shortage
in the attendance due to the fact that she could not attend the
classes due to her advanced pregnancy. The respondent no.1
deserves relaxation under the mandate of the Constitution and
the action of the petitioner in not permitting the respondent
no.1 to attend the IInd Year B.Ed Classes and the IInd Year Main
Examination is declared illegal, arbitrary, unjust and against the
mandate of the Constitution of India.
[2023:RJ-JD:35469] (23 of 23) [CW-5769/2020]
12. Thus, this Court deems it appropriate to uphold judgment
dated 22.10.2019 passed by the Permanent Lok Adalat,
Bikaner partly to the extent of finding the petitioner as entitled
for exemption on medical grounds in her minimum presence on
account of delivery and based on such exemption finding the
respondent no.1 as eligible for sitting in the examination and
declaring result of the said examination. The judgment dated
22.10.2019 passed by the Permanent Lok Adalat, Bikaner in
Application No.04/2019 is quashed and set aside to the extent
of granting compensation of Rs.10,000/- towards mental,
physical and financial loss and Rs.5,000/- towards complaint
expenses in favour of respondent no.1.
13. Consequently, the writ petition is partly allowed.
14. Stay application as well as all other pending applications,
if any, stand dismissed.
(DR. NUPUR BHATI),J
155-158 Sanjay-
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