Promotion cannot be denied due to pregnancy

>>> The purpose of constitutional law is to convert misfortune to be endured into injustice to be remedied.

>>> Pregnancy is a: deeply personal: choice.

Absence due to pregnancy cannot be construed as: Unwillingness.

If Absence due to pregnancy is construed as: Unwillingness, then a woman is put in a position where she has to either forego her promotion, or forego her pregnancy

>>> The State cannot penalize women who exercise their constitutional rights by withholding the benefit of promotion from them.

Personal liberty is violated not only through coercive State action, but also State action that puts persons in a position where they must choose between availing a State benefit, or exercising a constitutional right.

>> The right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times.

This commitment is signified by Article 42: Provision for just and humane conditions of work and maternity relief- The State shall provide conditions for securing just and humane conditions of work and for maternity relief.

Article 4 provides for: Provision for early childhood care and education to children below the age of six years- The State shall endeavour to provide for early childhood care…

>>> The Petitioner’s pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batch mates.

The Court upheld the Petitioner’s claim on two grounds:

First:  the Court held penalizing the Petitioner for her pregnancy violated Article 21 of the Constitution

Second: Court’s use of the Directive Principles of State Policy – in particular, Articles 42 and 45.

>>>  1. The Writ Petitioner invokes this court's jurisdiction under Article 226 of the Constitution, aggrieved by the Respondents order dated 20.02.2014 which omitted to list her name as a promoted candidate, but promoted her juniors to the post of Asst. Commandant.

2. The facts of this Petition shall briefly be summarised. The Petitioner is an (Mahila) Inspector GD in the Central Reserve Police Force (CRPF), governed by the Central Reserve Police Force Act, 1949 (the Act) and Rules framed thereunder. When the Petitioner was a Sub Inspector she had been denied promotion to Inspector on account of non-fulfilment of the Mandatory Field Service criteria i.e. two years' service in a duty battalion (or 'operational post') in the promotion list dated 06.09.2007. Subsequently, on 03.02.2009, a special promotion list was released promoting her to rank of Inspector (GD) without protecting her seniority. Aggrieved at that stage, she filed a Petition being Ravina Malik v. UOI and Ors [W.P. (C) No. 617/2011] before this Court. This Court, by an order on 01.02.2011 directed the CRPF to treat the Petitioner's case as a representation requiring consideration of the decision dated 27.10.2009 in Ashok Kumar v. Union of India [W.P. (C) No. 21900/2005]. Ultimately, by signal No. P.VII-10/2011- Est. dated 11.04.2011, the Petitioner's seniority was restored with consequential benefits w.e.f. 06.09.2007.

3. In the interim, two pre-promotional courses for upward movement to the cadre of Assistant Commandant, (Senior Inspector Cadre Course SL. Nos.83 and 84) were conducted between 03.05.2010 to 10.07.2010 and 19.09.2010 to 27.11.2010 respectively. However, Petitioner could not attend the same because the re-assignment of her seniority occurred only on 11.04.2011- consequent to the directions of this court, in W.P. (C) 617/2011. Subsequently, she was eligible for SICC SL. No. 85 conducted from 04.07.2011 to 13.09.2011. However, she was unable to attend that course owing to her pregnancy at that time and was declared SHAPE-III.

4. The petitioner attempted the next pre-promotional course (now renamed as Assistant Commandant Promotion Course SL. No. 1) conducted from 02.07.2012 to 15.09.2012 and qualified it, fulfilling the eligibility criterion for promotion to Asst. Commandant. However, the promotion list which was released on 20.02.2014, did not include the Petitioner's name and consequently she lost her seniority vis-à-vis her batch mates and juniors. In this respect, she filed a representation on 21.02.2014 requesting restoration of her seniority which was denied through office order dated 07.04.2014, on the ground that she „had shown unwillingness to attend the promotional course SICC SL No.85 to maintain her seniority. The CRPF order also clarified that her seniority was protected for SICC SL Nos. 83 and 84, whereas only her chance was protected with respect to SICC No. 85 and not her seniority.

5. The petitioner urges that her seniority must be reinstated w.e.f. SICC SL No. 83 on compassionate grounds of her pregnancy considering that she had passed the required course subsequently………………It was argued that concededly when the respondents denied the petitioner her chance to participate in the pre-promotional course on the ground of her pregnancy, she could not have been discriminated against. It was argued that her colleagues and batch mates, who were unable to attend Course Nos. 83 and 84 but attended course No. 85 and qualified, were given due seniority, because the CRPF recognized that their deployment for that course was involuntary and for circumstances outside their control………………..

6. The CRPF submits that the present issue stands squarely decided by the Standing Order No. 6/99 dated 19.03.1999. Clause (J) deals with situations where candidates show unwillingness to perform the course. It categorically states that in case unwillingness shown by a candidate is accepted on compassionate grounds, only the chance shall be preserved but seniority shall be forfeited………….

7. The main question which this court has to decide is whether the Petitioner's pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batch mates………………….

8. The facts are not in controversy; the petitioner had to approach this court, on an earlier occasion, along with her colleagues, due to the CRPF's stand that she lacked two years' experience in an operational post…………………………………………….She could not attend the course - not on account of her volition, but for medical reasons (she was declared Shape III as she was pregnant). She ultimately cleared the course in the next batch.

9. To conclude that pregnancy amounts to mere unwillingness - as the respondents did in this case- was an indefensible. The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times. This commitment is signified by Article 42……………………..

10. The International Covenant on Economic, Social and Cultural Rights (ICESCR), which has been ratified by India, spells out in greater detail the various facets of the broad right to health. Article 10 of ICESCR which is relevant………………….

The ruling of the Supreme Court in Suchita Srivastava v Chandigarh Administration, AIR 2010 SC 235 upholds the autonomy of a woman's right to make a choice of parenting……………..

12. It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF's position entails. Pregnancy is a departure from an employee's “normal” condition and to equate both sets of public employees- i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory. Unlike plain unwillingness- on the part of an officer to undertake the course, which can possibly entail loss of seniority- the choice exercised by a female employee to become a parent stands on an entirely different footing……………If the latter is treated as expressing unwillingness, CRPF would clearly violate Article 21.

As between a male official and female official, there is no distinction, in regard to promotional avenues; none was asserted. In fact, there is a common pre-promotional programme which both have to undergo; both belong to a common cadre. In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc. A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.

13. Standing Order dated 19.03.1999, by clause (J), clothes the Director General, CRPF with discretion – through non-obstante and overriding power. This case was eminently suitable for the Director General to exercise his powers on a compassionate basis, enabling the petitioner to catch up on lost opportunity due to her involuntary condition (on account of her exercise of reproductive rights) and regain her seniority with her batch mates who cleared the 85th course. The omission to exercise this power has led to the present dispute. The lack of an express plea of pregnancy based discrimination does not in any way stop this court from doing complete justice, to further the rights of the petitioner under Articles 14, 15 (1), 16 (2) and 21 of the Constitution of India.

14. For the foregoing reasons, this Court hereby directs the Respondents to restore seniority of the Petitioner from 10.07.2010, the completion date of SICC SL. No. 83- as in the case of her other batch mates who completed that course, and consequently promote as well as assign her consequential seniority. Consequential seniority and all pay benefits including fixation of pay and arrears of pay shall also be disbursed to the petitioner within twelve weeks. The writ petition is allowed in the above terms. No costs.

S. RAVINDRA BHAT (JUDGE)
V.K. SHALI (JUDGE)
AUGUST 06, 2015
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06.08.2015
W.P.(C) 4525/2014
INSPECTOR (MAHILA) RAVINA ..... Petitioner
versus
UOI AND ORS. ..... Respondents

 

Kumar Doab 
on 06 December 2016
Published in Labour & Service Law
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