punjab & haryana high court - women cannot be permanently barred from joining the army medical corps...

7/25/2019 Punjab & Haryana High Court - Women Cannot Be Permanently Barred From Joining the Army Medical Corps for R

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! !"#$#%& !'()(* +

Neetu Bala Petitioner

Versus

Union of India and others ...Respondents

,& -. , / / /

Present: Mr.Navdeep Singh, dvo!atefor the petitioner.

Mr.Saura"h #oel, dvo!ate

for Union of India.

/ /+

$his petition has "een filed pra%ing for dire!tions to

&uash the letter dated '(.('.'()* +nneure P*- here"% the

petitioner has "een inti/ated that she is unfit to 0oin servi!e.

She has pra%ed for dire!tions that she "e per/itted to 0oin

servi!e "ased on the appoint/ent letter issued to her.

dvertise/ent +nneure P)- as issued inviting

appli!ations for grant of Short Servi!e 1o//ission in the r/%

Medi!al 1orps. $here ere '(( va!an!ies. $he appli!ants

!ould "e either /ale or fe/ale. $he% ere re&uired to have

passed the final %ear M.B.B.S. 2a/ination in the first or se!ond

atte/pt and /ust not have attained the age of *3 %ears on

4).)'.'()4. $he tenure for the fresh !andidates as five %ears

GIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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etenda"le "% another nine %ears in to spells first one of five

%ears and the se!ond one of four %ears, su"0e!t to eligi"ilit%.

$here as no !ondition that the !andidate had to "e un/arried.

$he petitioner ho as MBBS, M5 applied in response to the

advertise/ent. She as !alled for the intervie on )(.(6.'()4

and as inti/ated that she had "een sele!ted for grant of Short

Servi!e 1o//ission +hereinafter referred to as 7SS18- in the

ran9 of 1aptain. $hough, initiall%, de!lared unfit in the /edi!al

ea/ination on )).(6.'()*, she as de!lared /edi!all% fit "%

the ppeal Medi!al Board on )6.(.'()4. She as issued

appoint/ent letter dated )6.().'()* +nneure P'- here"%

she as as9ed to report on )(.('.'()* to the 1o//andant of

Militar% ;ospital, Pathan9ot for !o//en!e/ent of e/plo%/ent.

In the appoint/ent letter it as stated that she had "een found

fit "% the Medi!al Board. But she ould "e re&uired to undergo

/edi!al inspe!tion on reporting to the unit to si/pl% !onfir/ that

there has "een no deterioration in the health status.

$he petitioner reported for dut% on )(.('.'()*. fter

her /edi!al inspe!tion, !ertifi!ate +nneure P4- as issued

that she as /edi!all% fit and is free fro/ !ontagious disease.

;oever a re/ar9 as entered that she as seven /onths

pregnant "ut ith no !o/pli!ations. It as !onve%ed to her that

there are no !lear instru!tions or guidelines or rules as to

hether pregnan!% !an "e !onstrued as deterioration of health.


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!!ordingl%, the petitioner as as9ed to ait pending a

!larifi!ation on this issue fro/ the ;ead&uarters.


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servi!e of offi!ers granted SS1 in the r/% Medi!al 1orps is

governed "% r/% Instru!tions 3>? +as a/ended-. Para 4+d-

thereof la%s don that the appli!ant /ust "e in /edi!al !ategor%

S;P2I for "eing eligi"le for grant of 1o//ission. US# "d>5#5#4

dated ''.)(.'((@ la%s don the standards for assess/ent of

!andidates for !o//issioning. Page 3 of the ppendi to this

letter !learl% la%s don that all fe/ale !andidates ould "e

s!reened for pregnan!% and dete!tion of the sa/e ould render

a !andidate UN


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troops in !lose !o/"at support. $he petitioner "eing seven

/onths pregnant as in no position to underta9e the training

a!tivities or servi!e in field>1I =ps area epe!ted out of a nel%

!o//issioned Medi!al =ffi!er.

It is stated that even in !ase of serving lad% offi!ers

the guidelines for disposal of pregnant lad% offi!ers as laid don

at para 6' of = (@>'())>5#MS +nneure R4- !learl%

delineates that pregnant lad% offi!ers should "e pla!ed in

Medi!al 1ategor% P' if as%/pto/ati! and P4, if s%/pto/ati!

i//ediatel% on the diagnosis of pregnan!%. It further stipulates

that the lad% offi!ers should "e advised to "egin their /aternit%

leave "% the end of the se!ond tri/ester +si /onths of

pregnan!%- or "eginning of the third tri/ester. $he petitioner

ho as ad/ittedl% in the "eginning of the third tri/ester of

pregnan!% as in no position to render servi!es as epe!ted of

a nel% !o//issioned offi!er and as ineligi"le for grant of

!o//ission as su!h.

Dustif%ing the denial of her re&uest to 9eep a post

va!ant for her so as to ena"le her to 0oin after delivering the

!hild, it is stated that as per para 3 of the offer of appoint/ent

no re&uest of !hange of servi!e, pla!e of posting or etension of

date of 0oining !ould "e a!!epted. $he va!an!% hi!h re/ains

unsu"s!ri"ed due to an% reason is passed on the !andidate net

in the /erit list prepared at the ti/e of intervie.


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In the aforesaid fa!ts, the &uestion that arises is

hether the denial of appoint/ent to the petitioner holding her to

"e 7unfit8 solel% on a!!ount of pregnan!% is legal and 0ustifiedE

1onse&uentl%, is Page 3 of the ppendi to 5#5#4

letter No. @*3(>US# "d>5#5#4 dated ''.)(.'((@ to

the etent it la%s don that dete!tion of pregnan!% ould

render a !andidate UN


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dis!ri/inated against in respe!t of, an% e/plo%/ent or offi!e

under the State. $here is thus a spe!ifi! prohi"ition against

gender dis!ri/ination in /atters relating to pu"li! e/plo%/ent.

It is in the light of these 1onstitutional provisions that

the validit% of the i/pugned a!tion has to "e 0udged.

t the outset, it ould "e helpful to refer to to

i/portant de!isions of the ;on8"le Supre/e 1ourt on the issue

of gender dis!ri/ination in the !ontet of /arriage and

pregnan!%.

In ,)577 3 %#% %4#,

, Rule ? +'- of Indian


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as patent in the Rule, that se pre0udi!e against Indian

Ao/anhood as rit large in the Rule and that it as in

violation of rti!le )6 of the 1onstitution.

This writ petition by Miss Muthamma, a senior member of

the Indian Foreign Service, bespeaks a story which makesone wonder whether Articles ! and " belong to myth orreality# The credibility of constitutional mandates shall not be

shaken by governmental action or inaction but it is the effectof the grievances of Miss Muthamma that se$ pre%udiceagainst Indian womanhood pervades the service rules even athird of a century after Freedom# There is some basis for thecharge of bias in the rules and this makes the ominousindifference of the e$ecutive to bring about the banishment ofdiscrimination in the heritage of service rules# If high officialslose hopes of e&ual %ustice under the rules, the legal lot of thelittle Indian, already priced out of the e$pensive %udicialmarket, is best left to guess# This disturbing thought inducesus to make a few observations about the two impugned rules

which appear prima facie, discriminatory against the female ofthe species in public service and have surprisingly survived solong, presumably, because servants of government are afraidto challenge unconstitutional rule making by the

Administration######

'# If a fragment of these assertions were true,unconstitutionality is writ large in the administrative psycheand masculine hubris which is the anathema for (art IIIhaunts the echelons in the concerned Ministry# If there besuch gender in%ustice in action, it deserves scrupulousattention from the summit so as to obliterate such

tendency######)# *iscrimination against women, in traumatic transparency, isfound in this rule# If a woman member shall obtain the

permission of government before she marries, the same riskis run by the +overnment if a male member contracts amarriage# If the family and domestic commitments of a womanmember of the Service are likely to come in the way ofefficient discharge of duties, a similar situation may well arisein the case of a male member# In these days of nuclearfamilies, intercontinental marriages and unconventionalbehaviour, one fails to #understand the naked bias against the

gentler of the species# -ule . of the Indian Foreign Service/-ecruitment, 0adre, Seniority and (romotion1 -ules, 2",runs in the same pre%udicial strain3

/1/'1 4 4 4

/!1 5o married woman shall be entitled as of right to beappointed to the service#6

"# At the first blush this rule is in defiance of Article "# If amarried man has a right, a married woman, other things beinge&ual, stands on no worse footing# This misogynous postureis a hangover of the masculine culture of manacling the

weaker se$ forgetting how our struggle for national freedomGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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was also a battle against woman7s thraldom# Freedom isindivisible, so is 8ustice# That our founding faith enshrined inArticles ! and " should have been tragically ignored visavis half of India7s humanity vi9# our women, is a sad reflectionon the distance between 0onstitution in the book and law inaction# And if the e$ecutive as the surrogate of (arliament,makes rules in the teeth of (art III especially when high

political office, even diplomatic assignment has been filled bywomen, the inference of diehard allergy to gender parity is

inevitable#6

$he net !ase is #( %4# 3 !(;!$5 ,!!( / 001+hi!h is a lo!us !lassi!us on the issue.

In this !ase, !hallenge as to the 1onstitutional

validit% of Regulation *6+)- +! - of the ir India 2/plo%ees

Se(3#"! !;)2#%$+ $ 6!(hi!h, as against the nor/al age

of retire/ent of the e/plo%ees of the ir India 1orporation of 3?

%ears, an ir ;ostess as to "e retired upon attaining the age of

43 %ears or on /arriage if it too9 pla!e ithin four %ears of

servi!e or on first pregnan!%, hi!hever o!!urs earlier. $his

Regulation as !hallenged on the ground of "eing ar"itrar% and

unreasona"le and violative of rti!le )* of the 1onstitution.

$he "ar of pregnan!% and /arriage as sought to "e

0ustified "% the ir India 1orporation as "eing a reasona"le

restri!tion in pu"li! interest. It as argued that if the "ar of

/arriage and pregnan!% as re/oved, it ould lead to a nu/"er

of pra!ti!al diffi!ulties and !ause !onsidera"le epense to the

1orporation as it ould have to /a9e arrange/ents for

su"stitutes for the period of pregnan!% and after.

$he 1ourt held that as /arriage after four %ears as


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not prohi"ited, there as no reason as to h% pregnan!% should

stand in the a% of the ir ;ostesses !ontinuing in servi!e. It

negated the argu/ent that fro/ the ver% "eginning of pregnan!%

o/en /a% "e prone to si!9ness during long flights. It as

o"served that, in an% !ase, the diffi!ult% in dis!harge of duties "%

pregnant ir ;ostesses !ould "e /itigated "% granting the/

/aternit% leave even up to periods of )* to )6 /onths and

/a9ing alternative arrange/ents on te/porar% or ad ho! "asis.

$er/ination of servi!e in su!h !ir!u/stan!es as held to "e

!allous and !ruel. It as ter/ed as an insult to Indian

Ao/anhood and violative of rti!le )* of the 1onstitution.

It as e/phati!all% held that pregnan!% is not a

disa"ilit% "ut one of the natural !onse&uen!es of /arriage. n%

distin!tion /ade on the ground of pregnan!% as held to "e

ar"itrar%.

$he ;on8"le 1ourt o"served as under:

? 0oming now to the second limb of the provisionsaccording to which the services of A:s would standterminated on first pregnancy, we find ourselves in completeagreement with the argument of Mr Setalvad that this is amost unreasonable and arbitrary provision which shocks theconscience of the 0ourt# The -egulation does not prohibitmarriage after four years and if an A: after having fulfilled the

first condition becomes pregnant, there is no reason whypregnancy should stand in the way of her continuing inservice# The 0orporations represented to us that pregnancyleads to a number of complications and to medical disabilitieswhich may stand in the efficient discharge of the duties by theA:s# It was said that even in the early stage of pregnancysome ladies are prone to get sick due to air pressure, nauseain long flights and such other technical factors# This, however,appears to be purely an artificial argument because once amarried woman is allowed to continue in service then underthe provisions of the Maternity ;enefit Act, 2" and the

Maharashtra Maternity -ules, 2") /these apply to both theGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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0orporations as their :ead


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observed thus3The case presented only a &uestion of statutoryconstruction, and the employer7s rule placed the risk ofabsence caused by pregnancy in a class by itself, thusviolating the statute as discriminating on the basis ofse$, since it was the capacity to become pregnantwhich primarily differentiated the female from the male#6

."# In the instant case, if the 0orporation has permitted theA:s to marry after the e$piry of four years then the decision toterminate the services on first pregnancy seems to be whollyinconsistent and incongruous with the concession given to the

A:s by allowing them to marry# Moreover, the provision itselfis so outrageous that it makes a mockery of doing %ustice tothe A:s on the imaginative plea that pregnancy will result in anumber of complications which can easily be avoided aspointed out by us earlier# ######6

So/e other de!isions of the U.S. Supre/e 1ourt

ere referred to, hi!h dealt ith pregnan!% disa"ilit% as "eing

per se dis!ri/inator%. s these !ases illustrate different

situations here su!h a dis!ri/inator% treat/ent prevails and the

1ourt8s response thereto, a referen!e to the/ is instru!tive:

?..# ######### In 0leveland ;oard of ?ducation v# 8o 0arol @aFleur the #S# Supreme 0ourt made the followingobservations3

As long as the teachers are re&uired to give

substantial advance notice of their condition, thechoice of firm dates later in pregnancy would serve theboard7s ob%ectives %ust as well, while imposing a farlesser burden on the women7s e$ercise ofconstitutionally protected freedom#

4 4 4

=hile it might be easier for the school boards toconclusively presume that all pregnant women are unfitto teach past the fourth or fifth month or even the firstmonth, of pregnancy, administrative convenience aloneis insufficient to make valid what otherwise is a

violation of due process of law# The FourteenthAmendment re&uires the school boards to employalternative administrative means, which do not sobroadly infringe upon basic constitutional liberty, insupport of their legitimate goals####

=hile the regulations no doubt represent agoodfaith attempt to achieve a laudable goal, theycannot pass muster under the due process clause ofthe Fourteenth Amendment, because they employirrebuttable presumptions that unduly penali9e afemale teacher for deciding to bear a child#6


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.2# The observations made by the #S# Supreme 0ourtregarding the teachers fully apply to the case of the pregnantA:s# In Sharron A# Frontiero v# ?lliot @# -ichardson thefollowing observations were made3

Moreover, since se$, like race and national origin, isan immutable characteristic determined solely by theaccident of birth, the imposition of special disabilitiesupon the members of a particular se$ because of theirse$ would seem to violate Bthe basic concept of oursystem that legal burdens should bear somerelationship to individual responsibility#6

2C# =hat is said about the fair se$ by the 8udges fully appliesto a pregnant woman because pregnancy also is not adisability but one of the natural conse&uences of marriageand is an immutable characteristic of married life# Anydistinction, therefore, made on the ground of pregnancycannot but be held to be e$tremely arbitrary#

2# In Mary Ann Turner v# *epartment of ?mploymentSecurity the #S# Supreme 0ourt severely criticised thematernity leave rules which re&uired a teacher to &uit her %obseveral months before the e$pected child# In this connectionthe 0ourt observed as follows3

6The 0ourt held that a school board7s mandatorymaternity leave rule which re&uired a teacher to &uither %ob several months before the e$pected birth of herchild and prohibited her return to work until threemonths after childbirth violated the FourteenthAmendment### the 0onstitution re&uired a moreindividualised approach to the &uestion of the teacher7sphysical capacity to continue her employment duringpregnancy and resume her duties after childbirth sinceBthe ability of any particular pregnant woman tocontinue at work past any fi$ed time in her pregnancy

is very much an individual matter,

It cannot be doubted that a substantial numberof women are fully capable of working well into theirlast trimester of pregnancy and resuming employmentshortly after childbirth####

=e conclude that the tah unemploymentcompensation statute7s incorporation of a conclusivepresumption of incapacity during so long a periodbefore and after childbirth is constitutionally invalidunder the principles of the @a Fleur case#6

2D# =e fully endorse the observations made by the #S#Supreme 0ourt which, in our opinion, aptly apply to the factsof the present case# ;y making pregnancy a bar tocontinuance in service of an A: the 0orporation seems tohave made an individualised approach to a woman7s physicalcapacity to continue her employment even after pregnancywhich undoubtedly is a most unreasonable approach#

2'# Similarly, very pregnant observations were made by the#S# Supreme 0ourt in 0ity of @os Angeles, *epartment of

=ater E (ower v# Marie ManhartD!thus3

It is now well recogni9ed that employment decisions


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cannot be predicated on mere Bstereotyped7impressions about the characteristics of males orfemales# Myths and purely habitual assumptions abouta woman7s inability to perform certain kinds of work areno longer acceptable reasons for refusing to employ&ualified individuals, or for paying them less### The&uestion, therefore, is whether the e$istence or none$istence of Bdiscrimination7 is to be determined bycomparison of class characteristics or individualcharacteristics# A Bstereotyped7 answer to that &uestionmay not be the same as the answer that the language

and purpose of the statute command#4 4 4

?ven if the statutory language were less clear, thebasic policy of the statute re&uires that we focus onfairness to individuals rather than fairness to classes#(ractices that classify employees in terms of religion,race, or se$ tend to preserve traditional assumptionsabout groups rather than thoughtful scrutiny ofindividuals#6

2!# These observations also apply to the bar contained in theimpugned regulation against continuance of service after

pregnancy# In ;ombay @abour nion v# InternationalFranchises (vt# @td# this 0ourt while dealing with a rulebarring married women from working in a particular concerne$pressed views almost similar to the views taken by the #S#Supreme 0ourt in the decisions referred to above# In thatcase a particular rule re&uired that unmarried women were togive up service on marriage > a rule which e$isted in the-egulations of the 0orporation also but appears to have beendeleted now# In criticising the validity of this rule this 0ourtobserved as follows3

=e are not impressed by these reasons for retaining a

rule of this kind# 5or do we think that because the workhas to be done as a team it cannot be done by marriedwomen# =e also feel that there is nothing to show thatmarried women would necessarily be more likely to beabsent than unmarried women or widows# If it is thepresence of children which may be said to account forgreater absenteeism among married women, thatwould be so more or less in the case of widows withchildren also# The fact that the work has got to be doneas a team and presence of all those workmen isnecessary, is in our opinion no dis&ualification so far as

married women are concerned# It cannot be disputedthat even unmarried women or widows are entitled tosuch leave as the respondents rules provide and theywould be availing themselves of these leave facilities#6

2)# These observations apply with e&ual force to the bar ofpregnancy contained in the impugned -egulation#

2"# It was suggested by one of the 0orporations that after awoman becomes pregnant and bears children there may belot of difficulties in her resuming service, the reason being thather husband may not permit her to work as an A:# These

reasons, however, do not appeal to us because suchGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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circumstances can also e$ist even without pregnancy in thecase of a married woman and if a married woman leaves the%ob, the 0orporation will have to make arrangements for asubstitute# Moreover, whether the woman after bearingchildren would continue in service or would find it difficult tolook after the children is her personal matter and a problemwhich affects the A: concerned and the 0orporation hasnothing to do with the same# These are circumstances whichhappen in the normal course of business and cannot behelped# Suppose an A: dies or becomes incapacitated, it ismanifest that the 0orporation will have to make alternative

arrangements for her substitute# In these circumstances,therefore, we are satisfied that the reasons given for imposingthe bar are neither logical nor convincing#6

$hus, as per this de!ision, in !ases here a /arried

o/an is not dis&ualified for appoint/ent, the fa!t that she is

pregnant, !annot "e a dis&ualifi!ation for !ontinuing ith

appoint/ent. Nor !an pregnan!%, in su!h !ir!u/stan!es, "e

treated as a "ar to "e appointed. n% ina"ilit% to dis!harge

duties during the /onths, "efore and after !hild "irth, !an "e

ta9en !are of "% granting /aternit% leave for the period re&uired.

part fro/ rti!les )* and )6 hi!h ere the "asis of

the Supre/e 1ourt de!isions, dis!ri/inator% treat/ent of

pregnant o/en ould also fall foul of rti!le *' of the

1onstitution hi!h re&uires the State to /a9e provision for

se!uring 0ust and hu/ane !onditions of or9 and for /aternit%

relief. In ,)%#"#62 (6% !25# 3 !72! (@!($

=,)$!( 22> => 0 / + it has "een held that the

validit% of an ee!utive or ad/inistrative a!tion in den%ing

/aternit% "enefit has to "e ea/ined on the anvil of rti!le *'

hi!h, though not enfor!ea"le at la, is nevertheless availa"le

for deter/ining the legal effi!a!% of the a!tion !o/plained of.GIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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%!(%#%2 %3!%#%$.

Ahile in the earlier de!isions relian!e as onl% on

the provisions of the 1onstitution, an additional di/ension to

1onstitutional ad0udi!ation, of gender dis!ri/ination> gender

0usti!e issues has e/erged in vie of the in!reasing referen!e

"% the ;on8"le Supre/e 1ourt to International 1onventions. It

has de!lared that International 1onventions ould "e

enfor!ea"le hen the% elu!idate and effe!tuate the funda/ental

rights and that the 1ourts are o"liged to appl% the/ hen there

is no in!onsisten!% ith the do/esti! la.

India is a signator% to various international !ovenants

and treaties. $he Universal 5e!laration of ;u/an Rights,

adopted "% the United Nations on )()')@*?, set in /otion the

universal thin9ing that hu/an rights are supre/e and ought to

"e preserved at all !osts. $here have folloed a series of

!onventions, hi!h refle!t the "road international !onsensus on

i/portant issues of glo"al !on!ern.

=f the International 1onventions, to hi!h are ver%

relevant for the present issue are H0onvention on the ?limination

of all Forms of *iscrimination against =omen +125A- and

H Maternity (rotection 0onvention DCCC.

%3!%#% % 5! 2#7#%#% 22 (7$ #$"(#7#%#% ;#%$ 7!% => &

$he United Nations adopted this 1onvention on )?

)')@@. India ratified it on )@6)@@4 and a!!eded to it on ??GIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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)@@4 ith reservation on rti!les 3+e-, )6+)-, )6+'- and '@ of

125A.

$he prea/"le of 125A reiterates that

dis!ri/ination against o/en violates the prin!iples of e&ualit%

of rights and respe!t for hu/an dignit%J is an o"sta!le to the

parti!ipation on e&ual ter/s ith /en in the politi!al, so!ial,

e!ono/i! and !ultural life of their !ountr%J ha/pers the groth of

the personalit% fro/ so!iet% and fa/il% and /a9es /ore diffi!ult

for the full develop/ent of potentialities of o/en in the servi!e

of their !ountries and of hu/anit%. Povert% of o/en is a

handi!ap. 2sta"lish/ent of a ne international e!ono/i! order

"ased on e&ualit% and 0usti!e ill !ontri"ute signifi!antl% toards

the pro/otion of e&ualit% "eteen/en and o/en et!.

rti!le ) defines dis!ri/ination against o/en to

/ean any distinction, e$clusion or restriction made on the basis

of se$ which has the effect or purpose on impairing or nullifying

the recogni9ed en%oyment or e$ercise by women, irrespective of

their marital status, on a basis of e&uality of men and women, all

human rights and fundamental freedoms in the political,

economic, social, cultural, civil or any other field.

rti!le '+b- en0oins the State>parties hile

!onde/ning dis!ri/ination against o/en in all its for/s, to

pursue, "% appropriate /eans, ithout dela%, eli/ination of

dis!ri/ination against o/en "% adopting appropriate


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legislative and other measures including sanctions where

appropriate, prohibiting all discriminations against women6. $o

ta9e all appropriate /easures in!luding legislation, to /odif% or

a"olish eisting las, regulations, !usto/s and pra!ti!es hi!h

!onstitute dis!ri/ination against o/en. 1lause 1 en0oins to

ensure legal prote!tion of the rights of o/en on e&ual "asis

ith /en through !onstituted national tri"unals and other pu"li!

institutions against an% a!t of dis!ri/ination to provide effe!tive

prote!tion to o/en. rti!le 4 en0oins State>parties that it shall

ta9e, in all fields, in parti!ular, in the politi!al, so!ial, e!ono/i!

and !ultural fields, all appropriate /easures in!luding legislation

to ensure full develop/ent and advan!e/ent of o/en for the

purpose of guaranteeing the/ the eer!ise and en0o%/ent of

hu/an rights and funda/ental freedo/s on the "asis of e&ualit%

ith /en.

rti!le )) of this 1onvention hi!h re&uires States>

parties to ta9e all appropriate /easures to eli/inate

dis!ri/ination against o/en in the field of e/plo%/ent is of

parti!ular relevan!e. It is reprodu!ed "elo:

Article 3# Statesparties shall take all appropriate measures toeliminate discrimination against women in the field ofemployment in order to ensure, on a basis of e&uality of menand women, the same rights, in particular3

/a1 the right to work as an inalienable right of all humanbeingsG

/b1 the right to the same employment opportunities,including the application of the same criteria forselection in matters of employmentG

/c1 the right to free choice of profession andGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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:

employment, the right to promotion, %ob security and allbenefits and conditions of service and the right toreceive vocational training and retraining, includingapprenticeships, advanced vocational training andrecurrent trainingG

/d1 the right to e&ual remuneration, including benefits,and to e&ual treatment in respect of work of e&ualvalue, as well as e&uality of treatment in the evaluationof the &uality of workG

/e1 the right to social security, particularly in cases ofretirement, unemployment, sickness, invalidity and old

age and other incapacity to work, as well as the right topaid leaveG

/f1 the right to protection of health and to safety inworking conditions, including the safeguarding of thefunction of reproduction#

D# In order to prevent discrimination against women on thegrounds of marriage or maternity and to ensure their effectiveright to work, Statesparties shall take appropriate measures3

/a1 to prohibit, sub%ect to the imposition of sanctions,dismissal on the grounds of pregnancy or of maternityleave and discrimination in dismissals on the basis ofmarital statusG

/b1 to introduce maternity leave with pay or withcomparable social benefits without loss of formeremployment, seniority or social allowancesG

/c1 to encourage the provision of the necessarysupporting social services to enable parents tocombine family obligations with work responsibilitiesand participation in public life, in particular throughpromoting the establishment and development of anetwork of childcare facilitiesG

/d1 to provide special protection to women duringpregnancy in types of work proved to be harmful tothem#

'# (rotective legislation relating to matters covered in thisarticle shall be reviewed periodically in the light of scientificand technological knowledge and shall be revised, repealedor e$tended as necessary#6

B% its provisions 125A atte/pts to ensure

su"stantive e&ualit% as against /erel% for/al e&ualit%. $oards

this end, it re&uires the State> parties to ta9e all appropriate

/easures to eli/inate dis!ri/ination against o/en in the field

of e/plo%/ent and provide the sa/e e/plo%/ent opportunities,

in!luding the appli!ation of the sa/e !riteria for sele!tion in


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/atters of e/plo%/ent. $o prevent dis!ri/ination against

o/en on the grounds of /arriage or /aternit%, it re&uires

States>parties to ta9e appropriate /easures to prohi"it dis/issal

on the grounds of pregnan!% or of /aternit% leave and

dis!ri/ination in dis/issals on the "asis of /arital status. It

also re&uires the introdu!tion of /aternit% leave ith pa% or ith

!o/para"le so!ial "enefits ithout loss of for/er e/plo%/ent,

seniorit% or so!ial alloan!e.

. &,!(%#* (!"#% %3!%#% :

s noted in the prea/"le to this !onvention, it ta9es

into a!!ount the !ir!u/stan!es of o/en or9ers and the need

to provide prote!tion for pregnan!%, hi!h are the shared

responsi"ilit% of govern/ent and so!iet% and see9s to further

pro/ote e&ualit% of all o/en in the or9for!e and the health

and safet% of the /other and !hild.

$his 1onvention has entered into for!e on th


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/e/"ers to ta9e /easures to ensure that pregnan!% does not

!onstitute a sour!e of dis!ri/ination in e/plo%/ent.

rti!les ? and @ are reprodu!ed "elo:

3

# It shall be unlawful for an employer to terminate theemployment of a woman during her pregnancy or absence onleave referred to in Articles ! or ) or during a period following

her return to work to be prescribed by national laws orregulations, e$cept on grounds unrelated to the pregnancy orbirth of the child and its conse&uences or nursing# The burdenof proving that the reasons for dismissal are unrelated topregnancy or childbirth and its conse&uences or nursing shallrest on the employer#

D# A woman is guaranteed the right to return to the sameposition or an e&uivalent position paid at the same rate at theend of her maternity leave#

3

# ?ach Member shall adopt appropriate measures to ensurethat maternity does not constitute a source of discrimination inemployment, including > notwithstanding Article D, paragraph access to employment#

D# Measures referred to in the preceding paragraph shallinclude a prohibition from re&uiring a test for pregnancy or acertificate of such a test when a woman is applying foremployment, e$cept where re&uired by national laws orregulations in respect of work that is3

/a1 prohibited or restricted for pregnant or nursing women

under national laws or regulationsG or/b1 where there is a recogni9ed or significant risk to the healthof the woman and child#6

125A, in parti!ular, has "een invo9ed "% the

;on8"le Supre/e 1ourt in nu/erous !ases hile de!iding

different issues of gender dis!ri/ination.

% #5 (#5(% 3 !$!(3! %@ %4#

=:::> / 9+ the ;on8"le Supre/e 1ourt as dealing ith

a !hallenge to the !onstitutionalit% of se!tion 6 +a- of the ;indu

Minorit% and #uardianship !t, )@36 and Se!tion )@+"- of the

#uardians and Aards !t, )?@(, as per hi!h, the father is


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treated as natural guardian of a ;indu /inor and onl% after hi/,

is the /other so treated. $he provision as !hallenged as

"eing violative of provisions of rti!le )* and )3 of the

1onstitution. $he 1ourt relied on 125A and interpreted the

provisions in a /anner to save the provision fro/

un!onstitutionalit% and read the ord 7after8 to /ean 7in the

a"sen!e of8, there"%, referring to the father8s a"sen!e fro/ the

!are of the /inor8s propert% in &uestion for an% reason

hatsoever. $he relevant passage is as under:

?!# The message of international instruments > the

0onvention on the ?limination of All Forms of *iscriminationAgainst =omen, 2H2 /0?*A=61 and the ;ei%ing*eclaration, which directs all State parties to take appropriatemeasures to prevent discrimination of all forms againstwomen is &uite clear# India is a signatory to 0?*A= havingaccepted and ratified it in 8une 22'# The interpretation thatwe have placed on Section "/a1 /supra1 gives effect to theprinciples contained in these instruments# The domesticcourts are under an obligation to give due regard tointernational conventions and norms for construing domesticlaws when there is no inconsistency between them# /See with

advantage Apparel ?$port (romotion 0ouncil v# A##0hopra#16

In 66(!2 A6( (7#% )%"#2 3 B

56(, , the ;on8"le Supre/e 1ourt as

!on!erned ith the &uestion as to hether the a!tion of a

superior against a fe/ale e/plo%ee hi!h is against /oral

san!tions and does not ithstand the test of de!en!% and

/odest% ould a/ount to seual harass/ent and hether

ph%si!al !onta!t ith an fe/ale e/plo%ee is an essential

ingredient of su!h a !harge. $he 1ourt referred to 125A and

the Bei0ing 5e!laration hi!h dire!ted all State> Parties to ta9eGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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appropriate /easures to prevent dis!ri/ination of all for/s

against o/en, "esides ta9ing steps to prote!t the honour and

dignit% of o/en and held that the /essage of these

instru/ents is loud and !lear. It as held that these instru/ents

!ast an o"ligation on Indian State to gender sensitiFe its las

and the 1ourts are under an o"ligation to see that the /essage

of international instru/ents is not lost. It as held that in !ases

of violation of hu/an rights the 1ourts should ala%s re/ain

alive to international !onventions and appl% the sa/e hen there

is no in!onsisten!% "eteen the international nor/s and the

do/esti! las o!!up%ing the field.

In ,)%#"#62 (6% !25# 3 !72! (@!($

=,)$!( 22>+ => 0 / hile dealing ith the

&uestion hether fe/ale or9ers +/uster roll- engaged "% the

Muni!ipal 1orporation of 5elhi ere entitled to /aternit% "enefit,

the ;on8"le Supre/e 1ourt held that the prin!iples hi!h are

!ontained in rti!le )), of 125A have to "e read into the

!ontra!t of servi!e "eteen the Muni!ipal 1orporation of 5elhi

and the o/en e/plo%ees +/uster roll-J and so read these

e/plo%ees i//ediatel% "e!o/e entitled to all the "enefits

!on!eived under the Maternit% Benefit !t, )@6). It as dire!ted

that the "enefits under the !t shall "e provided to the o/en

+/uster roll- e/plo%ees of the 1orporation ho have "een

or9ing ith the/ on dail% ages.


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It as o"served that to "e!o/e a /other is the /ost

natural pheno/enon in the life of a o/an. n e/plo%er has to

"e !onsiderate and s%/patheti! toards her and /ust realiFe

the ph%si!al diffi!ulties hi!h a or9ing o/an ould fa!e in

perfor/ing her duties at the or9pla!e hile !arr%ing a "a"% in

the o/" or hile rearing up the !hild after "irth. It as

o"served:

?''# A %ust social order can be achieved only whenine&ualities are obliterated and everyone is provided what islegally due# =omen who constitute almost half of the segmentof our society have to be honoured and treated with dignity atplaces where they work to earn their livelihood# =hatever bethe nature of their duties, their avocation and the place where

they work, they must be provided all the facilities to which theyare entitled# To become a mother is the most naturalphenomenon in the life of a woman# =hatever is needed tofacilitate the birth of child to a woman who is in service, theemployer has to be considerate and sympathetic towards herand must realise the physical difficulties which a workingwoman would face in performing her duties at the workplacewhile carrying a baby in the womb or while rearing up the childafter birth# The Maternity ;enefit Act, 2" aims to provide allthese facilities to a working woman in a dignified manner sothat she may overcome the state of motherhood honourably,

peaceably, undeterred by the fear of being victimised forforced absence during the preor postnatal period#'.# These principles which are contained in Article ,reproduced above, have to be read into the contract of servicebetween the Municipal 0orporation of *elhi and the womenemployees /muster roll1G and so read these employeesimmediately become entitled to all the benefits conceivedunder the Maternity ;enefit Act, 2"# =e conclude ourdiscussion by providing that the direction issued by theIndustrial Tribunal shall be complied with by the Municipal0orporation of *elhi by approaching the State +overnment as

also the 0entral +overnment for issuing necessary notificationunder the proviso to subsection /1 of Section D of theMaternity ;enefit Act, 2", if it has not already been issued#6

%;2#$5 )($ %4 5! )(6!% )( )$#"!

1ertain de!isions of 2nglish 1ourts and the

2uropean 1ourt of Dusti!e herein gender e&ualit% has "een


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re!ogniFed as a 9e% prin!iple of the 1onvention rights and a goal

to "e a!hieved "% /e/"er States of the 1oun!il of 2urope are

also relevant.

In .. /B

/ . / :99 .

:01 a de!ision of the ;ouse of Cords, the appellant, Mrs.

Bron, !o//en!ed e/plo%/ent ith the respondent lo!al

authorit%, as a !are supervisor in a %outh $raining s!he/e. $he

Manpoer Servi!es 1o//ission, ho ere funding the s!he/e,

de!ided to ithdra their finan!ial support. $he% ere hoever

prepared to finan!e a revised s!he/e e/plo%ing feer staff.

!!ordingl%, the lo!al authorit% de!ided to ter/inate the eisting

staff and invited the/ to appl% for an appoint/ent under the ne

revised s!he/e.

Mrs. Bron as one of four staff ho applied for

three posts in the ne revised s!he/e. =f the other three

appli!ants, one had started or9 ith the lo!al authorit% after

Mrs. Bron, the other to had "een e/plo%ed "efore her. s

there as nothing adverse against her earlier !ondu!t on the

prin!iple of last in first out Mrs. Bron legiti/atel% epe!ted to

have "een su!!essful. She as, hoever, pregnant at the ti/e

of her intervie. $he ne revised s!he/e hi!h as to

!o//en!e on )st pril, )@?3 and as to "e of )' /onths8

duration and Mrs. Bron ould have re&uired /aternit% leave for


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a"out si to eight ee9s out of the telve /onth !ontra!t. She

as not offered the post solel% on a!!ount of her pregnan!% as

in the event of her "eing appointed, the lo!al authorit% ould

either have had to e/plo% a te/porar% repla!e/ent or /anage

ith lesser e/plo%ees.

Mrs. Bron !o/plained rel%ing on Se!tion 6( of the

2/plo%/ent Prote!tion +1onsolidation- !t )@? as per hi!h

su"0e!t to !ertain e!eptions, an e/plo%ee shall "e treated as

unfairl% dis/issed if the reason or prin!ipal reason for her

dis/issal is that she is pregnant or is an% other reason

!onne!ted ith her pregnan!%.

;olding her dis/issal to have "een unfair and in

violation of Se!tion 6( it as o"served as under:

Section '! /now section "C1 must be seen as a part of sociallegislation passed for the specific protection of women and toput them on an e&ual footing with men# I have no doubt that it

is often a considerable inconvenience to an employer to haveto make the necessary arrangements to keep a womanJs %obopen for her whilst she is absent from work in order to have ababy, but this is a price that has to be paid as a part of thesocial and legal recognition of the e&ual status of women inthe work place# If an employer dismisses a woman becauseshe is pregnant and he is not prepared to make thearrangements to cover her temporary absence from work heis deemed to have dismissed her unfairly# I can see no reasonwhy the same principle should not apply if in a redundancysituation an employer selects the pregnant woman as the

victim of redundancy in order to avoid the inconvenience ofcovering her absence from work in the new employment he isable to offer others who are threatened with redundancy# Itsurely cannot have been intended that an employer should beentitled to take advantage of a redundancy situation to weedout his pregnant employees#$$ $$ $$ The practical effect of sections )H and "C is that an employerfaced with deciding which of several employees to makeredundant must disregard the inconvenience that inevitablywill result from the fact that one of them is pregnant and will

re&uire maternity leave# If the employer does not do so andGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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makes that absence the factor that determines the pregnantwomanJs dismissal then the dismissal is to be deemed unfair#


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childbearing age because she may become pregnant isunlawful direct discrimination# 0hildbearing and the capacityfor childbearing are characteristics of the female se$# So toapply these characteristics as the criterion for dismissal orrefusal to employ is to apply a genderbased criterion, whichthe ma%ority of this :ouse in 8ames v# ?astleigh ;orough0ouncil K22CL D A#0# H) held to constitute unlawful directdiscrimination#######6

$he ;ouse of Cords referred to !ertain de!isions of

the 2uropean 1ourt of Dusti!e of hi!h 5e99er v. Sti!hting

Vor/ings!entru/ voor Dong Volassenen +VDV1entru/- Plus

+1ase )>??- K)@@'L I.1.R. 4'3. is parti!ularl% relevant to the

issue in this !ase as it also deals ith refusal to e/plo% "e!ause

of pregnan!%, hi!h as held to "e illegal "eing dire!t

dis!ri/ination on grounds of se.

$he de!ision as !on!erned ith the interpretation of

1oun!il 5ire!tive +6>'(>2.2.1.- of the 1oun!il of the 2uropean

1o//unities, arti!le '+)- of hi!h is as follos:

For the purposes of the following provisions, the principle

of e&ual treatment shall mean that there shall be nodiscrimination whatsoever on grounds of se$ either directly orindirectly by reference in particular to marital or family status#6

$he fa!ts ere that one Mrs. 5e99er applied for a 0o"

ith VDV and infor/ed the sele!tion !o//ittee that she as

three /onths pregnant. $he !o//ittee re!o//ended her to the

"oard of VDV as "eing the /ost suita"le !andidate for the 0o",

"ut the "oard de!ided not to e/plo% her. $he reason as that

under the appli!a"le la of the Netherlands, VDV ould have

"een re&uired to pa% Mrs. 5e99er )(( per !ent of her salar%

hile she as a"sent oing to her !onfine/ent, "ut ould not


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have "een in a position to re!over the a/ount so paid fro/ its

insurers "e!ause her pregnan!% ould "e a !ondition 9non to

the e/plo%er "efore her !o//en!ing e/plo%/ent. In that

situation VDV ould not have "een a"le to afford to pa% a

repla!e/ent for Mrs. 5e99er and this /ight have led to a staff

shortage. $he 5ut!h !ourts held that the do/esti! e&ual

treat/ent legislation had "een "rea!hed, "ut that VDV had a

0ustifia"le ground for the "rea!h. $he Supre/e 1ourt of the

Netherlands, referred a nu/"er of &uestions to the 2uropean

1ourt of Dusti!e, the first of hi!h as, at p. 4':

Is an employer directly or indirectly in breach of theprinciple of e&ual treatment laid down in articles D/1 and '/1of the 0ouncil *irective of 2 February 2H" /H"DCH?#?#0#1on the implementation of the principle of e&ual treatment formen and women as regards access to employment if herefuses to enter into a contract of employment with acandidate, found by him to be suitable, because of theadverse conse&uences for him which are to be anticipatedowing to the fact that the candidate was pregnant when sheapplied for the post N6

In relation to this &uestion the relevant passages in

the 0udg/ent of the 2uropean !ourt, hi!h ere &uoted in the

report ere these :

C# 0onsideration must be given to the &uestion whether arefusal of employment in the circumstances to which thenational court has referred may be regarded as direct

discrimination on the grounds of se$ for the purposes of the*irective# The answer depends on whether the fundamentalreason for the refusal of employment is one which applieswithout distinction to workers of either se$ or, conversely,whether it applies e$clusively to one se$# # The reasongiven by the employer for refusing to appoint Mrs# *ekker isbasically that it could not have obtained reimbursement fromthe -isicofonds of the daily benefits which it would have hadto pay her for the duration of her absence due to pregnancy,and yet at the same time it would have been obliged toemploy a replacement# That situation arises because, on the

one hand, the national scheme in &uestion assimilatesGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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pregnancy to sickness and, on the other, theOiekengeldreglement contains no provision e$cludingpregnancy from the cases in which the -isicofonds is entitledto refuse reimbursement of the daily benefits#D# In that regard it should be observed that only women canbe refused employment on the ground of pregnancy and sucha refusal therefore constitutes direct discrimination on theground of se$# A refusal of employment on account of thefinancial conse&uences of absence due to pregnancy must beregarded as based, essentially, on the fact of pregnancy#Such discrimination cannot be %ustified on grounds relating to

the financial loss which an employer who appointed apregnant woman would suffer for the duration of her maternityleave#'# In any event, the fact that pregnancy is assimilated tosickness and that the respective provisions of the Oiektewetand the Oiekengeldreglement governing reimbursement of thedaily benefits payable in connection with pregnancy are notthe same cannot be regarded as evidence of discrimination onthe ground of se$ within the meaning of the *irective# @astly,in so far as as an employerJs refusal of employment based onthe financial conse&uences of absence due to pregnancy

constitutes direct discrimination, it is not necessary to considerwhether national provisions such as those mentioned abovee$ert such pressure on the employer that they prompt him torefuse to appoint a pregnant woman, thereby leading todiscrimination within the meaning of the *irective#!# It follows from the foregoing that the answer to be given tothe first &uestion is that an employer is in direct contraventionof the principle of e&ual treatment embodied in articles D/1and '/1 of 0ouncil *irective /H"DCH?#?#0#1 on theimplementation of the principle of e&ual treatment for men andwomen as regards access to employment, vocational training

and promotion, and working conditions if he refuses to enterinto a contract of employment with a female candidate whomhe considers to be suitable for the %ob where such refusal isbased on the possible adverse conse&uences for him ofemploying a pregnant woman, owing to rules on unfitness forwork adopted by the public authorities which assimilateinability to work on account of pregnancy and confinement toinability to work on account of illness#6

$he effe!t of this !ase, as su//ariFed "% the

;ouse of Cords thus:

####In the *ekker case, the ?uropean 0ourt of 8ustice

held that the fundamental reason for the refusal ofemployment was pregnancy, a reason which did not apply toworkers of either se$ without distinction but which appliede$clusively to the female se$, and that this constituted directdiscrimination on grounds of se$# That the refusal ofemployment was not on grounds of pregnancy as such butwas on account of the adverse financial conse&uences to the

employer of absence of the worker due to pregnancy wasGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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regarded as not material because, in the courtJs view, therefusal was essentially based on the fact of pregnancy#6

In this !ase, the 2uropean 1ourt of Dusti!e laid

don a ver% signifi!ant proposition that as onl% o/en !an

"e!o/e pregnant and as su!h onl% o/en !an "e refused

e/plo%/ent on the ground of pregnan!%, hen!e a refusal for

e/plo%/ent on the ground of pregnan!% !onstitutes dire!t

dis!ri/ination on the ground of se, even though the refusal /a%

"e o!!asioned "% adverse finan!ial !onse&uen!es to the

e/plo%er for finding a repla!e/ent for the duration of the

pregnan!%.

$he &uestion referred in =?;; A((?@@A5T A5*

?M< AI- 0A-+< /##1 /supra1as ansered "% the 2uropean

1ourt of Dusti!e in 3 , =B> .

:: 0 . :.

$he 2uropean 1ourt ansered the &uestion in the

!ontet of the fa!ts hi!h dis!losed that the !ontra!t as for an

indefinite period. $he relevant 1o//unit% 5ire!tive as

5ire!tive +6>'(>2.2.1.-.

!!ording to rti!le )+)-, its purpose as to put into

effe!t in the /e/"er states the prin!iple of e&ual treat/ent for

/en and o/en as regards a!!ess to e/plo%/ent, in!luding

pro/otion, and vo!ational training and as regards or9ing

!onditions.

rti!le '+)- of the 5ire!tive re&uired that


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the principle of e&ual treatment shall mean that there shallbe no discrimination whatsoever on grounds of se$ eitherdirectly or indirectly by reference in particular to marital orfamily status#6

Under arti!le 3+)-:

Application of the principle of e&ual treatment with regardto working conditions, including the conditions governingdismissal, means that men and women shall be guaranteed

the same conditions without discrimination on grounds of se$#6

$he 2uropean 1ourt too9 note of the relevant

0udg/ents and other 5ire!tives, hi!h provided the !ontet for

the anser as under:

2# As the court ruled in paragraph ' of its %udgment in:andels og ontorfunktionaerernes Forbund i *anmark v#*ansk Arbe%dsgiverforening /0ase 0H2..1 K22DL I#0#-#''D, '') and confirmed in paragraph ) of its %udgment in:abermann;eltermann v# Arbeiterwohlfahrt, ;e9irksverband5db#


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from, the prohibition on the dismissal of pregnant womenduring that period, save in e$ceptional cases not connectedwith their condition#6

$he anser of the 2uropean 1ourt as as under:

D!# First, in response to the :ouse of @ordsJ in&uiry, therecan be no &uestion of comparing the situation of a womanwho finds herself incapable, by reason of pregnancydiscovered very shortly after the conclusion of the

employment contract, of performing the task for which shewas recruited with that of a man similarly incapable formedical or other reasons#

D)# As the applicant rightly argues, pregnancy is not in anyway comparable with a pathological condition, and even lessso with unavailability for work on nonmedical grounds, bothof which are situations that may %ustify the dismissal of awoman without discriminating on grounds of se$# Moreover, in:andels og ontorfunktionaerernes Forbund i *anmark v#*ansk Arbe%dsgiverforening /0ase 0H2..1 K22DL I#0#-#''D, the court drew a clear distinction between pregnancy

and illness, even where the illness is attributable to pregnancybut manifests itself after the maternity leave# As the court

pointed out, at paragraph ", there is no reason to distinguishsuch an illness from any other illness#

D"# Furthermore, contrary to the submission of the nitedingdom, dismissal of a pregnant woman recruited for anindefinite period cannot be %ustified on grounds relating to herinability to fulfil a fundamental condition of her employmentcontract# The availability of an employee is necessarily, for theemployer, a precondition for the proper performance of theemployment contract# :owever, the protection afforded by

0ommunity law to a woman during pregnancy and afterchildbirth cannot be dependent on whether her presence atwork during maternity is essential to the proper functioning ofthe undertaking in which she is employed# Any contraryinterpretation would render ineffective the provisions of the*irective#

DH# In circumstances such as those of the applicant,termination of a contract for an indefinite period on grounds ofthe womanJs pregnancy cannot be %ustified by the fact thatshe is prevented, on a purely temporary basis, from

performing the work for which she has been engaged3 see

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/H"DCH?#?#0#1 precludes dismissal of an employee who isrecruited for an unlimited term with a view, initially, toreplacing another employee during the latterJs maternity leaveand who cannot do so because, shortly after recruitment, sheis herself found to be pregnant#6

$he 2uropean 1ourt held that ter/ination of a

!ontra!t for an indefinite period on grounds of the o/an8s

pregnan!% !annot "e 0ustified "% the fa!t that she is prevented,

on a purel% te/porar% "asis, fro/ perfor/ing the or9 for hi!h

she has "een engaged. It negated atte/pts to dra an analog%

"eteen a pregnant o/an "eing unavaila"le for or9 on that

a!!ount ith a /an ho for so/e illness or other /edi!al reason

ould not "e si/ilarl% availa"le, "% ansering that su!h

situations are not !o/para"le. It further held that pregnan!% is

not in an% a% !o/para"le ith a pathologi!al !ondition, and

even less so ith unavaila"ilit% for or9 on non/edi!al grounds

hi!h /a% 0ustif% dis/issal of a o/an ithout dis!ri/ination on

grounds of se.

It as held that dis/issal of a pregnant o/an

re!ruited for an indefinite period !annot "e 0ustified on grounds

relating to her ina"ilit% to fulfil a funda/ental !ondition of her

e/plo%/ent !ontra!t as the prote!tion afforded "% 1o//unit%

la to a o/an during pregnan!% and after !hild"irth !annot "e

dependent on hether her presen!e at or9 during /aternit% is

essential to the proper fun!tioning of the underta9ing in hi!h

she is e/plo%ed. It !on!luded that an% !ontrar% interpretation

ould render ineffe!tive the provisions of the 5ire!tiveGIANENDER KUMAR2016.02.09 17:17I attest to the accuracy andintegrity of this documenthigh court chandigarh

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preventing dis!ri/ination.

%"2)$#%:

Based on the aforesaid dis!ussion, there !an "e no

!on!lusion other than to hold that the a!tion of the respondents

in den%ing appoint/ent to the petitioner /erel% on a!!ount of

her pregnan!% is ar"itrar% and illegal. It is violative of rti!les

)* and )6 of the 1onstitution. It is against the epress

provisions of the International 1onventions referred to a"ove. It

is against the eight of the 0udi!ial pre!edents fro/ /a0or

0urisdi!tions a!ross the glo"e interpreting las prohi"iting gender

dis!ri/ination. Most of all "% for!ing a !hoi!e "eteen "earing

a !hild and e/plo%/ent, it interferes "oth, ith her reprodu!tive

rights and her right to e/plo%/ent. Su!h an a!tion !an have no

pla!e in /odern India.

Page 3 of the ppendi to 5#5#4 letter

No.@*3(>US# "d>5#5#4 dated ''.)(.'((@ to the

etent it la%s don that pregnan!% ould render a !andidate

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as sele!ted, reserved for her to "e offered to her after

!onfine/ent.

But no su!h !onsideration to defer 0oining arises in

the present !ase. Vide order dated pril ', '()* one post had

"een dire!ted to "e 9ept va!ant for the petitioner.

punjab & haryana high court - women cannot be permanently barred from joining the army medical corps...

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