HC: Pregnancy not a reason to defer physical test for female candidate during recruitment process

PATNA: The Patna high court, in an important judgment on Friday, ruled that pregnancy of a female candidate could not be reason for holding physical evaluation test (PET) later for her during a recruitment process as right to motherhood and right of public employment were two separate things.

The bench of Chief Justice Amreshwar Pratap Sahi and Justice Anjana Mishra was hearing LPAs filed by Central Selection Board of Constable (CSBC) and Bihar Police Subordinate Service Commission (BPSSC) which were allowed.

CSBC had filed LPA challenging a single bench’s judgment in which it had directed CSBC to hold PET for six women petitioners including Ishika Raj, Naaj Prawin and Gyatri Kumari who were in an advanced stage of pregnancy on date of actual test which took place on January 1, 2017.

Petitioners were among those who had applied against vacancy of 2649 posts of jail wardens advertised by CSBC in July 31, 2015 and after a gap of 13 months, written examinations were held.

The bench of Justice Jyoti Saran on August 3, 2017, had ruled in favour of petitioners directing CSBC to fix date for PET again for them. Till then, they were ready for test again. The bench had observed that at time of publishing advertisement, CSBC had not fixed dates for examination and was insensitive in forcing woman candidates to chose between motherhood and career.

Based on above single bench’s judgement, another coordinate bench of Justice Shivaji Pandey had also ruled in favour of one petitioner Khushbu Sharma on October 8 last year directing Bihar Police Subordinate Service Commission (BPSSC) to hold PET for her.

She was one of the applicants against vacant posts of 1717 sub-inspectors in state police in which there were 38% reservation for women but was pregnant when PET was held on August 25, 2018.

BPSSC had also filed an LPA and it was tagged with another one for hearing. The Friday’s judgement would also have pan-India implication.

In both cases, petitioners had cleared preliminary test as well as mains examination. However, at time of PET, petitioners were pregnant to which they had failed to appear and moved court for seeking relaxation after two bodies rejected requests for rescheduling PET for them.

During hearing on both matters before division bench, advocate generalLalit Kishore, along with CSBC and BPSSC counsels Sanjay Pandey and KunalTiwary respectively, had submitted that since right of public employment is not a fundamental right of candidate and rights of maternity cannot be converted into a right to claim employment even before appointment had arrived. His submissions were accepted by the division bench.

Justice Saran, while giving relief to petitioners, had ruled “Simply because a woman takes upon herself responsibility to keep society going by bearing pain of motherhood for nine long months, she can neither be treated as child rearing machine nor her this important facet can act adverse to her quest for identity.”

“In my opinion once the right of women in public employment stands recognized then it becomes the duty of the State to frame appropriate regulations and guidelines to ensure that no woman candidate is disqualified from a selection process because she has acquired motherhood in the meanwhile,” Justice Saran had ruled.