W.P.(C) 4525/2014 Page 1 $~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06.08.2015 + W.P.(C) 4525/2014
INSPECTOR (MAHILA) RAVINA ..... Petitioner Through : Sh. Manu Aggarwal, Advocate. versus
UOI AND ORS. ..... Respondents
Through : Sh. Anurag Ahluwalia, CGSC with Sh. S.S. Sejwal, Law Officer and Sh. B.K. Rout, Pairvi Officer, CRPF.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE V.K. SHALI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
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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
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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
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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. Counsel on behalf of the Petitioner has brought this Court"s attention to the case of Insp. Navin Kumar Jha as a similar case, wherein he was notionally promoted and seniority was protected w.e.f. from SICC SL No. 83. 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 batchmates, who were unable to attend Course Nos. 83 and 84 but attended course No. 85 and qualified, were given due seniority, because the CRPF recognised that their deployment for that course was involuntary and for circumstances outside their control. Thus, upon her completion of the Assistant Commandant Promotion Course SL. No.1 on 15.09.2012 her seniority should be calculated as if she had completed promotion course SICC SL. No. 83 on 10.07.2010. In this regard, it is argued that the petitioner"s seniority and chance was protected for her appearance in SICC SL. No. 85 in lieu of batch/course Nos. 83 and 84 due to an administrative lapse i.e. fixing her seniority and post as Inspector w.e.f. 06.09.2007. Her unwillingness in this regard with respect to her seniority in light of the Standing Order, would be untenable.
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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. In this regard, learned counsel relied upon letter P.VII-35/2011- Estt-85 dated 21.10.2011, wherein it is noted that the Petitioner was SHAPE-III owing to her pregnancy and that her chance was preserved in accordance to the Standing Order, but not her seniority. Analysis and Conclusions
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 courseand if she is entitled to a relaxation of rules to claim seniority at par with her batchmates.
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. The promotion list dated 06.09.2007 omitted her name. This was set right pursuant to W.P. (C) No. 617/2011 and the CRPF restored the Petitioner"s seniority and consequential benefits w.e.f. 06.09.2007. In the meanwhile, the pre-promotional courses were conducted; the petitioner could not attend those, on account of pendency of dispute. Her colleagues/batchmates got the first opportunity to do so, when Batch No. 85 was sent for the course. 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.
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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 ("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") and Article 45 ("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 Maternity Benefits Act, 1976 protects the expecting mother"s interests in employment. Provisions of the Factories Act, 1948 and the Central Civil Service (Leave) Rules, 1972 provide for post-natal care leave enabling mothers to spend time with infants who need early childhood care.
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, reads as under:
"Article 10
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
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2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits…"
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. The Court held that:
"11. … There is no doubt that a woman's right to make reproductive choices is also a dimension of `personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children…"
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
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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. That is exactly what has happened here: though CRPF asserts that seniority benefit at par with the petitioner"s colleagues and batchmates (who were able to clear course No. 85) cannot be given to her because she did not attend that course, in truth, her "unwillingness" stemmed from her inability due to her pregnancy. In this present situation the course was in Coimbatore. Travelling and living in an alien area without support was not a feasible proposition for an expecting mother; besides, the CRPF had determined that her medical category was SHAPE III. Mercifully, the CRPF does not contend that its regulations imposed any restrictions on a female employee"s pregnancy at the stage of the Petitioner"s career. That the petitioner exercised her right therefore to become a parent should not operate to penalise her, and her „choice" to do so was irrelevant, in the circumstances of the case; the CRPF should have taken the reasons for the unwillingness into account given the admitted fact that she was pregnant.
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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 batchmates who cleared the 85thcourse. 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 batchmates 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
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