A pregnant petitioner filed a writ petition seeking deferment of physical ability tests for a constable post. The High Court dismissed the petition, noting significant delay in prosecution and that the recruitment process was concluded, rendering the rule non-arbitrary in this context.
No relief granted. The writ petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.6913 of 2016
Neha Kumari, d/o Mundrika Duby, r/o village Dhankura, PostKumardubhi, PS-Chirkunda, District-Dhanbad.
... Petitioner
Versus
... Respondents
(Through V.C)
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Samavesh Bhanj Deo, Advocate For the State : Mr. Navneet Toppo, AC to SC-V For the Respondent-JSSC : Mr. Dr. Ashok Kumar Singh, Advocate
Order No.12/Dated: 4th March 2022
This is an assigned matter by virtue of order dated 6th October 2017 passed on the administrative side by Hon'ble the Acting Chief Justice, High Court of Jharkhand.
2. Briefly stated, the petitioner made application pursuant to Advertisement No. 4 of 2015 issued by the Jharkhand Staff Selection Commission inviting applications for appointment on 6279 posts of Constables in Jharkhand Police. She appeared in the Preliminary test and the Mains examination and was called for physical ability and medical tests to be held on 26th November 2016. As she was carrying pregnancy of seven months, she made a
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representation before the Superintendent of Police, Bokaro on 26th November 2016 for deferring physical ability and medical tests by 3-4 months. However, she did not get any response from the concerned authority and, therefore, approached this Court by filing the present writ petition on 5th December 2016.
3. This writ petition came on Board for hearing on 17th January 2017. On that day, the learned counsel for the petitioner made a statement in the Court that physical ability test conducted for appointment on the post of Constable is just a qualifying examination but the petitioner who had qualified on merits could not participate in the physical ability test on account of her pregnancy.
4. Accordingly, this Court wanted to apprise itself as regards merit position of the petitioner which, however, was not prepared till 7th February 2017. By an order dated 7th February 2017, the respondents were directed to keep one post in the category of Female Constable reserved during pendency of the present writ petition.
5. Thereafter an application for amendment vide I.A No.2420 of 2017 was filed which was allowed on 17th April 2017.
6. The proposed amendments read as under:
For issuance of a writ/Rule/direction for amendment of clause 6(xiii) of Jharkhand State Police Appointment Rules, 2014 framed and notified by Notification contained in Memo No.6992 dated 20.10.2014 (Annexure-1) to the extent granting relaxation/exemption to the petitioner from appearing in the physical examination for appointment on the post of constable.
9. That in paragraph 3 the following sub paragraphs may be added for just and proper decision of the case.
E) Whether the respondents can amend clause 6(xiii) of Jharkhand State Police Appointment Rules, 2014 framed and notified by Notification contained in Memo No.6992 dated 20.10.2014 (Annexure-1) in exceptional cases like the petitioner ?
F) Whether pregnancy is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life hence the petitioner case can be considered for exemption after amending clause 6(xiii) of Jharkhand State Police Appointment Rules, 2014 framed and notified by Notification contained in Memo No.6992 dated 20.10.2014 (Annexure-1) ?
10. That in the prayer portion the following may be added:To amend clause 6(xiii) of Jharkhand State Police Appointment Rules, 2014 framed and notified by
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Notification contained in Memo No.6992 dated 20.10.2014 (Annexure-1) to the extent granting relaxation/exemption to the petitioner from appearing in the physical examination for appointment on the post of constable.”
7. This writ petition was listed on 15th June 2017 and 17th July 2017 before the jurisdictional Court and adjourned for future dates.
8. On 26th March 2021, the present writ petition was listed on Board for hearing. In about last four years no step was taken by the petitioner to prosecute the present writ petition and in the meantime final results have been published and appointments are made.
9. The learned counsel for the petitioner refers to judgment of the Hon'ble Supreme Court in “Khusbu Sharma v. Bihar Police Sub Ordinate Service Commission and Others” (Civil Appeal No.7661 of 2019) to seek support for the petitioner for a direction upon the respondents to provide one opportunity to the petitioner to appear in the physical ability test.
10. The Jharkhand Constable Competitive Examination 2015 is conducted in terms of Jharkhand State Police Appointment Rules, 2014 which was notified on 20th October 2014. Under Clause-6 (xiii), a Constable aspiring for the post of Constable after qualifying the Written examination is required to undergo physical ability test. The respondents have taken a stand that it is mandatory for a candidate to appear and qualify the physical ability test. As there is no provision for relaxation in the mandatory condition of appearing in the physical ability test, the respondents have maintained that no relaxation can be granted to the petitioner or for that matter any other candidate till the time rules are suitably amended which exercise would fall within the exclusive domain of policy decision making.
11. The claim of the petitioner that she qualified in the Written test and was called for physical ability and medical tests is doubted by the respondents on the ground that the roll number and date of birth of the candidate in the name of Neha Kumari which is at sl. no. 302 of the merit list differed from the roll
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number and date of birth disclosed by the petitioner in the writ petition.
12. From the materials on record, I find that except a hand written certificate issued by Dr. (Mrs.) S. Singh of R.P.S Hospital (undated) indicating that the petitioner was carrying pregnancy of seven months, nothing has been brought on record to establish that as on 26th November 2016 the petitioner was pregnant. The petitioner who was seeking deferment of the physical ability test by 3-4 months has remained quite for more than four years and did not take any step in the matter.
13. Mr. Samavesh Bhanj Deo, the learned counsel for the petitioner would refer to the order passed by the High Court of Madras in W.P. No. 12660 of 2017 (U. Ishwarya v. Director of Medical Education, Directorate of Medical Education and Others) to seek support from the observation of the Court that, “it is not only the fundamental right of the lady to give birth to a child and also necessary for existence of mankind and without a lady, a child could not be born in the world. Even nature requires child birth through a lady”.
14. The learned counsel for the petitioner has relied on the following observations in the order passed by High Court of Kerala in W.P.(C) No. 22007 of 2012 (A) titled “Mini. K. T. v. Senior Divisional Manager (Disciplinary Authority), Life Insurance Corporation of India, Divisional Office” to contend that motherhood is a blessing which should not be turned against a pregnant female candidate:
“Motherhood is the mother of all civilization. Family as a social institution is considered as the backbone of the society. Family is the first model of political society (Rosseau on the Social Contract). When people settle down and started living as a commune, the family was the foundation of such commune, and women was the center of such family. No civilization passed without recognising the power of mother and often figuratively projected her as Goddess. (see our own glorious past, as described by Jasodhara Bagchi, a feminist writer in her book, “Interrogating motherhood”).
“The celebration of motherhood has happened in most cultures in the world, and Indian culture is no exception. The oldest available culture artifacts in the pre-Aryan civilization in Mohenjo-daro and Harappa bear testimony to the mother cult. The principle of fertility represented by the embodiment of mother is the oldest testimony to the sense of continuity of the
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species. Not just birthing but the process of nurturance that makes it incumbent upon homo sapiens to recognize the value of the mother.”
15. The learned counsel for the petitioner would also refer to the judgments in “C.B. Muthamma v. Union of India” (1979) 4 SCC 260 and “Air India v. Nergesh Meerza” (1981) 4 SCC 335 to contend that Clause-6 (xiii) in so far as female candidates are concerned is against their basic human and fundamental rights and therefore requires interference by this Court.
16. No doubt the aforesaid observations by the Courts in “ U. Ishwarya” and “Mini. K.T.” enunciate the basic philosophy behind equal rights to a female employee – they all were employed in service – but, the fact-situation in the present case is quite different. In the first place, the present writ petition lacks foundational facts and does not specifically raise the plea for granting exemption or extension of time for a female candidate for appearing in the physical ability test. Secondly, inaction on the part of the petitioner in not prosecuting the writ petition diligently has brought in serious difficulties in her way inasmuch as the selection process has been concluded long back. Moreover, it is stated in the affidavit filed on behalf of respondent no. 2 that requisition for appointment of 2800 posts of constables in Indian Reserve Battalion (IRB), Jharkhand was already sent by the Department of Personnel, Administrative Reforms and Rajbhasha by that time in which the petitioner could have participated.
17. The Jharkhand State Police Appointment Rules, 2014 provides equal opportunity to male as well female candidates. In the police service physical endurance has significant role to play in discharge of their duty by the employees and that seems to be the reason the respondents have asserted that Clause-6 (xiii) is mandatory. It is well settled that the Courts cannot decide conditions for recruitment and the same falls within exclusive domain of the employer. In my opinion, on the ground that Clause-6 (xiii) creates hurdle in the way of a pregnant female candidate to qualify for the post of Constable the said stipulation cannot be held arbitrary and discriminatory. As one can gather
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from the order passed in “Khusbu Sharma” the interference by the Hon'ble Supreme Court was one time measure and in that judgment also the Hon'ble Supreme Court has indicated that sanctity of the examination needs to be maintained. From a reading of the judgment in “Khusbu Sharma” it become more than apparent that in the peculiar facts and circumstances the Hon'ble Supreme Court stepped in to prevent denial of benefits to the selected candidates.
18. In “Khusbu Sharma” the Hon'ble Supreme Court has
observed as under :
“We are persuaded to do the aforesaid also for the reason that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. However that has not happened and in fact, as stated aforesaid, it is on the prodding of this court that these examinations have been held. In view of this fact, we feel it is a fit case where the benefit should be made available to the candidates who may be in the advance stage of pregnancy at the relevant stage of time but have otherwise qualified the test.
We make it clear that the aforesaid is a one time measure as we are informed that now the examinations are being held periodically. We are not inclined to open a flood gate effecting the sanctity of the future examination.”
19. In my opinion, the judgment in “Khusbu Sharma” is not lending any support to the case of the petitioner on account of distinguishing features of this case particularly delay on the part of the petitioner.
20. For the aforesaid reasons, this Court is not inclined to entertain this writ petition and, accordingly, W.P.(S) No.6913 of 2016 is dismissed.
(Shree Chandrashekhar, J.)
Amit/Tanuj
3 issues framed by the court
Whether a delayed writ petition seeking exemption from physical ability tests for a constable recruit can be entertained when the selection process is concluded.
Whether the mandatory requirement to undergo physical ability tests under police appointment rules constitutes arbitrary discrimination against pregnant female candidates.
Whether the one-time measure observed in the Supreme Court judgment in Khusbu Sharma applies to delay cases where recruitment is periodic.
Colour shows how this judgement treated each authority
Khusbu Sharma v. Bihar Police Sub Ordinate Service Commission and OthersDistinguished¶19
Khusbu Sharma v. Bihar Police Sub Ordinate Service Commission and Others (Civil Appeal No.7661 of 2019)
U. Ishwarya v. Director of Medical Education, Directorate of Medical Education and OthersDistinguished¶13
U. Ishwarya v. Director of Medical Education, Directorate of Medical Education and Others
Mini. K. T. v. Senior Divisional ManagerDistinguished¶14
Mini. K. T. v. Senior Divisional Manager (Disciplinary Authority), Life Insurance Corporation of India, Divisional Office
C.B. Muthamma v. Union of IndiaDistinguished¶15
(1979) 4 SCC 260 · Who else cites this
Air India v. Nergesh MeerzaDistinguished¶15
(1981) 4 SCC 335 · Who else cites this
Neha Kumari
The State of Jharkhand
The Home Secretary, Government of Jharkhand
The Director General of Police, Jharkhand
The Director General, Home Guard, Jharkhand
The Jharkhand Staff Selection Commission
SHREE CHANDRASHEKHAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
