14 Dec 2023 5:19 AM GMT
In a significant ruling, the Kerala High Court addressed the disadvantages that women may face due to their biological differences from men, in the context of getting opportunities in public employment. The Court said that the rules relating to public employment must accommodate the concerns of pregnant women and young mothers, so that they don't face discrimination.
The Division Bench comprising Justice A. Muhamed Mustaque and Shoba Annamma Eapen was of the view that, despite standing on equal footing along with men with respect to consideration in the affairs or chances in the public employment, biological differences of women, such as motherhood, may often result in indirect discrimination.
Remarking that law and regulations ought to address the situational reality of women based on maternity while framing rules and regulations pertaining to public employment, the Bench observed:
It added that there may arise situations that may be encountered by women due to maternity, which could not be responded to by allowing them to have fair opportunities on account of the scheme of time frame that need to be given priority.
The Court made these seminal statements while dealing with the pleas by two young lady doctors who embraced motherhood while undergoing postgraduation in MD Radiodiagnosis, due to which their compulsory senior residency programme commenced belatedly, and would be completed only by mid-January 2024.
During this time, the Kerala State Public Service Commission (PSC) invited applications for the post of Assistant Professor in Radiodiagnosis for 9 vacancies, fixing one year of experience as a Senior Resident in Radiodiagnosis in a NMC-recognised Medical College after acquiring post-graduate degree as one of the criteria.
Since the petitioners would complete their program only by January 2024, they were not able to apply for the post notified as they did not have the prescribed qualifications as on the last date of receipt of the application.
On receiving no favourable response from either the Government or the Kerala Administrative Tribunal, the present pleas were filed before the High Court.
The Court had earlier, permitted them to apply for the post before the deadline provisionally through an interim order, pursuant to which they so applied.
Noting that the present case presents a peculiar problem faced by women in the sphere of public employment, the Court was called to answer whether becoming a mother would entail denial of aspirations in public employment and whether women ought to be compelled to choose between career and motherhood.
The Court was of the view that the afore questios would have to be determined on the touchstone of substantive equality which permits the "creation of space, removing barriers that exist in gender attributes and accommodating differences".
It further went on to remark that reproductive rights of a woman, which include motherhood, are part of the right to life under Article 21 of the Constitution, and that motherhood is integral to the dignity of women.
It thus called upon legal regulations to address situational reality of women based on maternity while framing rules and regulations related to public employment, and for balancing the individual rights of women and larger interest of public employment.
In the present case, it thus observed that if the last date for submitting experience of the residency programme was extended to those who had been affected by maternity leave, that hurdle faced by women could have been easily addressed.
The Court clarified that through the above exercise, it was merely attempting to accommodate the claim of such candidates, and not stipulating a time frame for production of such a certificate, as such.
"Balancing public interest by insisting on production of requisite qualifications in the matter of public employment and accommodating individual's need for recognition of fundamental rights is a balancing act to be done by the State or recruiting agencies. Non-consideration of such peculiar disadvantages of women, which have got the recognition of fundamental rights would entail discrimination towards women. In such a situation, constitutional courts will have to interfere," it said.
The Court therefore made its interim order absolute, and set aside the impugned orders of the Tribunal. It however clarified that the petitioners would have to produce the experience certificate within such time as PSC insists upon them.
Citation: 2023 LiveLaw (Ker) 727