CHAIRMAN Vs. ISHIKA RAJ

JUDGEMENT

(1.) This appeal questions the correctness of the judgment dated 3rd August, 2017 of the learned Single Judge whereby the learned Single Judge has accepted the prayer of the respondentpetitioner for holding of her Physical Evaluation Test as well as that of other similarly situated candidates who on account of their advanced stage of pregnancy at the time of the Physical Endurance Test were unable to undertake the same.

(2.) The appellants have come up questioning the correctness of the said judgment on the ground that right of employment is not a fundamental right and there is no such condition stipulated either under the advertisement or under the Rules, whereby a female candidate who misses her chance to appear in the Physical Endurance Test on account of her own volition, the appellants are bound to extend or postpone the date of such test. It is the appellants' contention that the natural right of the respondents to beget a child is a voluntary act and not an act of compulsion or otherwise in any way a contingency so as to extend them a right to claim postponement. The state of pregnancy and attaining of maternity to beget a child by choice may be a fundamental right of an individual female but such a fundamental right cannot compel the State to keep on hold a process of examination where neither the selection is complete nor a candidate has even entered employment. It is urged that whatever judgments have been cited at the Bar on behalf of the respondent-petitioners including the judgment in the case of Air India Vs. Nargesh Meerza and Others, reported in, 1981 4 SCC 335 and the latest judgment in the case of Devika Biswas Vs. Union of India and Others, reported in, 2016 10 SCC 726, all relate to situations where the right to lead a dignified and meaningful life as enshrined under Article 21 of the Constitution of India was discussed vis-à-vis the health conditions of females and also the application of Articles 14 and 16 of the Constitution of India where a female was in employment. In the case of Air India (supra) the observations made relate to conditions of service upon having entered employment or relating to the individual right of a female to beget a child. These judgments do not lay down that for the purpose of holding of competitive examinations for appointment, a candidate has a right to seek postponement of the examinations on account of having voluntarily acquired pregnancy. It is, therefore, their contention that the learned Single Judge has proceeded to determine an issue relating to a stage of selections of appointment where the candidates do not have any such right to claim benefits which may otherwise be available as a maternity benefit after employment.

(3.) The respondent-petitioners have supported the impugned judgments and Shri Yogesh Chandra Verma, learned senior counsel has urged that the inordinate delay which is evident in finalizing the process of selections itself indicates that there was absence of a time schedule with no declaration of the dates in the advertisement and, therefore, if during these prolonged process where delay was clearly attributable to the appellants, the acquisition of a pregnancy is not a self invited obstacle when the State itself has proceeded in a leisurely manner. The acquisition of pregnancy being a natural act cannot be termed as a disability so as to make a candidate ineligible who has otherwise cleared the written test. It is also submitted by Sri Verma that no prejudice would be caused to the selection process at all as keeping in view the fact that the candidates after delivery of a child were ready to face the Physical Endurance Test. In the circumstances, any denial to them would be discrediting their merit which they otherwise possess to be recorded as Constables.