A married woman is not disqualified for an appointment and the fact that she is pregnant in itself is not a disqualification for participating in the selection process, nor the pregnancy can be treated as a bar for appointment under the scheme. It is to be noted that a pregnant woman cannot be denied an opportunity to have adequate means of livelihood merely on account of the biological reason that was/will unable to appear for the physical efficiency test at a given point of time, and further, a pregnant woman cannot be compelled to undergo the endurance test at a time when it is dangerous to her life, and that of the baby in her womb.
Non Accommodation on part of the Police department to grant an extension of time to such a woman to participate in a physical efficient test would amount to a denial of opportunity to get employment which would enable her to have a decent life.
whilst it should noticed that pregnancy is not a disability but is one of the natural consequences of marriage, and any discrimination, if made on grounds of pregnancy, would be arbitrary and therefore violative of Art. 14 of the Indian Constitution.
Constitution of India under the aegis of Art. 15 (3) makes special provisions for women in respect of employment or posts under the state, further provisions can be made requiring special treatment be made for women who are facing special need at a particular time. Thus, granting of an extension of time for period for PET/PST is protection ought to be granted within meaning of Art 15(3).
While Article 42 of the Indian Constitution provides for just and humane conditions of work and maternity relief, and any action denying maternity benefit has to be examined on the anvil of Art. 42.
Important Paragraphs
“[Para 1] These original petitions are filed by the Public Service Commission invoking Article 227 of the Constitution of India. It challenges different verdicts of the Kerala Administrative Tribunal interfering with the PSC’s decisions refusing to reschedule the physical efficiency test of the woman candidates who were passing through different milestones of pregnancy or maternity when they were called for such test for the purpose of recruitment to the post of Excise Guards or Women Police Constables.
[Para 5] In its net effect, the decision of the Division Bench in K. Jayasree’s case (supra) read with the order on the review petition is that a pregnant woman cannot be denied an opportunity to have adequate means of livelihood merely on account of the biological reason that she was unable to appear for the physical efficiency test at a given point of time and that a pregnant woman cannot be compelled to undergo the endurance test at a time when it was dangerous to her life and that of the baby in her womb. It was held that the effect of refusal on the part of the PSC to grant extension of time for such a woman to participate in the physical efficiency test would amount to denial of opportunity to get employment which would enable her to have a decent life. However, while issuing the order on the review petition, it was observed by this Court that the direction contained in the judgment dated 11-10-2000 in the writ appeal was issued taking into account the fact that the selection list had not been finalised in that case at the time when the motion was made and that the PSC will not be under an obligation to conduct fresh endurance test if motion therefor comes after the finalisation of the selection list.
[Para 6] While we are in agreement with the reasoning in K. Jayasree’s case (supra), making reference to Article 42 of the Constitution of India and varied provisions in the Maternity Protection Conventions of the International Labour Organisation which were adopted in the General Conference of ILO at Geneva on 30-5-2000, we may state that though the said precedent was rendered noting that India had not ratified that convention, we are of the view that sharing responsibility of Government and society to provide protection for pregnancy as enunciated therein has to be applied in India as a seminal doctrine relatable to the right to life under Article 21 of the Constitution and inexcusable as a salutary human right, not only of the pregnant woman and the child in the womb, or the mother and the child, but of the family as a basic unit of society. There is also nothing in Indian law which can be pointed out running contrary to the said content of the Maternity Protection Convention. Therefore, it is within the ambit of the constitutional sanctions that the said document can be relied on from the international domain to decipher and give effect to India’s obligations in the said field.
[Para 7] In the situation in hand, we see that there are three groups of stakeholders and interests. The primary interest is the requirement to have Women Excise Guards and Women Police Constables to discharge duties, responsibilities and functions in such categories in service. This is the prime interest which is the larger public interest and the interest of the institutions of governance. The second group of stakeholders includes all those who are in the field of competition and who have been found eligible to be included in the select list to be advised in due turn. While that may be a larger basket of candidates, a sub category thereof is the third category, namely, woman candidates, who have reached the stage of physical efficiency test in the selection procedure but are at different milestones of pregnancy or maternity. They form a category by themselves and their rights as enunciated by this Court in K. Jayasree’s case (supra) have to be ensured and protected. Now, the question would be as to how the equations and priorities between the aforesaid three groups are to be balanced, bearing in mind the purpose sought to be achieved by providing the aforenoted benefit, in terms of the Constitution and the human right laws, to pregnant women competing in a selection which includes physical endurance test The order on the review petition in K. Jayasree’s case clarified that the declaration made in the judgment in that writ appeal was issued taking into account the fact that the selection list had not been finalised at the time when the motion was made and that PSC will not be under an obligation to conduct fresh endurance test if motion therefor comes after the finalisation of the selection list A reasonable modality has to be effectuated synchronising the fundamental rights of all the candidates as guaranteed under Articles 14, 16, 19 and 21 and having in view the constitutional values and human right values emanating out of Articles 15(3) and 42 of the Constitution of India and the aforenoted materials in the international domain as understood herein above and in K. Jayasree’s case (supra). This has to be done without ignoring the fact that the primary need is to fill up the vacancies without inordinate delay because that is the foremost requirement in public interest. In this backdrop, on the totality of the scheme of things, the competent authority has to frame clear guidelines providing the best possible measures to support the woman candidates who happen to face different situations in relation to pregnancy and maternity during the course of the process of selection which commences with the submission of the applications following PSC’s notification. The PSC has to necessarily frame regulations or guidelines to regulate this in a uniform and standardised manner, also taking note of the time frame which it would treat as a ‘closed period’ for the purpose of finalisation of the select list from the time when preparation of list attains definiteness and until it is vetted and finalised through the process of the PSC’s machinery. We, therefore, direct the PSC to take the aforenoted facts and factors into consideration and issue regulations or guidelines as may be found necessary at the earliest.”
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