The Chairman, Central Selection Board ... vs Ishika Raj And Anr

... ... Appellant/s Versus

1. Ishika Raj, Daughter of Rajendra Mandal, Resident of Village- Barihat Sabour, Police Station-Sabour, District-Bhagalpur. ......Petitioner/Respondent 1st Set. 2. The State of Bihar through Principal Secretary, Home Department, Government of Bihar, Patna.

... ... Respondent/Respondent 2nd Set =============================================== Appearance : For the Appellant/s : Mr. Pushkar Narayan Shahi, Senior Advocate : Mr. Sanjay Pandey, Advocate : Mr. Binod Kumar Mishra, Advocate For the Respondent no. 1: Mr. Yogesh Chandra Verma, Sr. Adv. : Mrs. Prem Sheela Pandey, Advocate For the State : Mr Saroj Kumar Sharma, AC to AAG-3

=============================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE JUSTICE SMT. ANJANA MISHRA ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 01-03-2019

This appeal questions the correctness of the judgment

dated 3rd August, 2017 of the learned Single Judge whereby the Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 2/32

learned Single Judge has accepted the prayer of the respondent-

petitioner 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 Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 3/32

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. Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 4/32

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.

4. It is in this background that the appellants have

come up contending that there is no such fundamental right or

even a legal right available to the candidates to seek

postponement of the holding of the test and thereby prolong it Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 5/32

further. This not being a recognized right, the same would also

amount to discriminating those who may otherwise have come

up for their claim in a similar way but did not choose to raise a

challenge on account of non-availability of any such opportunity

in future. It is, therefore, contended that the learned Single

Judge has overstretched the application of fundamental rights so

as to encompass even a process of a competitive examination

and any interference with the same clearly jeopardizes the entire

selection process. It is, therefore, submitted that the impugned

judgments be set aside and the petitions filed by the respondent-

petitioners be dismissed.

5. The learned Single Judge found that the resistance

put forth by the State through the counter affidavit in denying an

extended opportunity amounted to denying the respondent-

petitioner her right to be considered in public employment that

was unjust given fact that there was a thirteen month gap

between the advertisement dated 31st July, 2015 and the written

examinations which were held on 18th September, 2016. This

long waiting period during which the respondent-petitioner

became pregnant was therefore itself a circumstance taken into

account by the learned Single Judge that a delayed action of the

appellants, without there being any such disclosure of the date Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 6/32

of the holding of the physical test, was itself sufficient to

indicate that the respondent-petitioner could be accommodated

by postponing her Physical Evaluation Test and for this heavy

reliance was placed on a judgment of a Division Bench of the

Kerla High Court in the case of Kerala Public Service

Commission vs. K. Jayasree reported in 2014 (1) KHC 358

that was followed in another judgment of the same High Court

in the case of Kerala Public Service Commission vs. Sini

reported in 2014 (2) Kerala Law Times. The learned Single

Judge also relied on a Division Bench judgment of the Delhi

High Court in the case of Inspector (Mahila) Ravina vs.

Union of India and Ors. (Writ Petition (C) No. 4525 of 2014)

which in turn relied on the judgment of the Apex Court in the

case of Suchitra Srivastava vs. Chandigarh Administration

reported in AIR 2010 SC 235.

6. The learned Single Judge in order to arrive at that

conclusion also took aid of the fundamental rights guaranteed

under Articles 14, 15 and 21 of the Constitution of India to hold

that the State cannot be prevented from making any special

provision for women and children.

7. Apart from the aforesaid stipulations in Part-III, the

learned Single Judge also took note of the duty cast upon the Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 7/32

State under Article 38 of the Constitution of India for the

promotion and the welfare of the people and Article 42 in

particular which casts an obligation on the State to make

provisions for securing just and humane condition of work and

maternity leave as contained under the directive principles of

State Policy.

8. The argument of the State and the appellants was

rejected where they maintained such benefits of maternity would

be available after appointment and not prior thereto on the

ground that the action of the appellants in fixing a schedule was

absent.

9. The learned Single Judge, however, accepted the

argument being sound or logical but it was rejected because the

action of the Board was not found to be genuine in delaying the

process and then denying the opportunity to the respondent

petitioner. The learned Single Judge held that the indefinite

approach of the examining body led to the delay of thirteen

months after the advertisement and this could not have impeded

the right of a female candidate to make reproductive choices in

between an indefinite schedule. This would amount to denial of

an opportunity to get employment if the candidate is not Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 8/32

accommodated and would be insensitive forcing a female

candidate to choose between motherhood and career.

10. The appellant Selection Board resisted the claim of

the respondent-petitioner, firstly, on the ground that this being a

matter of Policy of employment which fell within the domain of

the employer, the same could not be imposed upon under the

cover of protection of fundamental rights inasmuch as a woman

may have a fundamental right to beget a child but that by itself

cannot be a guarantee of employment if she has chosen to opt

for motherhood voluntarily. The State relied on the Apex Court

judgment in the case of Union of India vs Pushpa Rani and

Ors. and other analogous cases reported in (2008) 9 SCC 242. It

was also urged that the judgments of the Kerala High Court and

the Delhi High Court referred to hereinabove have extended the

law as understood by the Apex Court in the case of Air India vs.

Nargesh Meerza and Others, reported in (1981) 4 SCC 335

and Devika Biswas vs. Union of India and Others, reported in

(2016) 10 SCC 726 by placing the said fundamental right on a

pedestal overlooking the fact that the said judgments of the Apex

Court did not concern a situation before employment. The

learned Single Judge allowed the writ petition granting fresh Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 9/32

opportunity of Physical Endurance Test to the respondent-

petitioner and other similarly situated candidates.

11. The selection Board is in appeal and it is urged that

the writ petition was allowed without even considering the terms

and conditions as contained in the advertisement, the notice

inviting the candidates who had cleared the written examination

for undergoing the Physical Endurance Test and without

appreciating that the selections had been prolonged that were

required to be concluded expeditiously in view of the monitoring

of all such selections by the Apex Court that was reflected in the

order passed by the Supreme Court on 5 th of May, 2017 in the

case of Manish Kumar vs. Union of India and Ors. (Writ

Petition (C) No. 183 of 2013).

12. It is also the contention of the Board that the holding

of the selection process in a compartmentalized manner was not

practical as it involves huge expenses and such concessions for

candidates would also create a heavy burden on the Exchequer

of the State.

13. Before we proceed to deal with the arguments

advanced, the first issue that we would deliberate upon is about

the stipulations contained in the advertisement and the notice of

employment of Jail Warders which does not appear to have been Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 10/32

tested or even commented upon by the learned Single Judge.

The respondent-petitioner, namely Ishika Raj, applied for the

post of Jail Warder against the Advertisement No. 03 of 2015. A

copy of the said advertisement has been filed as Annexure-B to

the counter affidavit of the Selection Board in the writ petition.

The selection or appointment of Jail Warders in prisons

throughout the State of Bihar are governed by the Bihar Board

Cadre Rules, 2014, a copy of the same has been filed as

Annexure-A to the counter affidavit. The prescribed criteria

through direct recruitment envisages a written examination, a

race to be conducted, the criteria and standard whereof shall be

the same as prescribed for Constables in Bihar Police and the

Physical Measurement Test as provided in relation thereto.

Clause 6.2 is extracted hereinunder:-

"6.2 Procedure of Direct Recruitment-

6.2.1

There shall be following stages for the process of Direct Recruitment:-

(i) First Stage-A written examination shall be conducted for candidates. On the basis of received applications by the Examination Agency.

(ii) Second Stage-The Examination Agency shall prepare a list of candidates, five times the number Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 11/32

of reported vacancy on the basis of written examination. In case of unavailability of sufficient number of qualified candidates for medical test, the ration of candidates may properly be reduced. All such candidates shall have to undergo for a race.

(iii) Third Stage- Candidates qualified in race, a physical measurement and test shall be followed. On the basis of list of candidates found fit in physical measurement and test, the merit wise and reservation category wise list of candidates equal to the number of vacancies selected by the Examination Agency from the qualified candidates shall be provided to the Appointing Authority.

(iv) Fourth Stage:- A medical test shall be conducted by a Medical Board constituted under prescribed provisions after receiving the list of qualified candidates from the Examination Agency. It will be mandatory for candidates to be found fit in medical examination for appointment.

(v) If some of the candidates do not succeed in the medical test, then the Examination Agency will be asked to recommend names of candidates from the merit list, reservation category wise, against the number of unsuccessful candidates in the medical test by the appointing authority; and Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 12/32

proper action shall be taken by the appointing authority after getting such a list.

6.2.2 Prescribed Criteria for selection through Direct Recruitment:-

(i) Written Examination- The criteria and standard of written examination shall be same as prescribed for Constable in Bihar Police. Besides, minimum marks for written examination and process and provisions for preparing the merit list will be same as applicable for recruitment of constable in Bihar Police.

(ii) Race- The criteria and standard of race examination shall be same as prescribed for constable in Bihar Police.

(iii) Physical Measurement and test- The criteria and standard of physical measurement and test shall be same as prescribed for constable in Bihar Police."

14. The advertisement with regard to physical abilities

provides as under:-

Physical Abilities:-

(i) Run

For Men-Time limit for 1 mile run-6 minutes (those taking more time will be declared disqualified) Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 13/32

For Women-Time limit for 1 kilometer run-6 minutes (those taking more time will be declared disqualified)

(ii) High Jump

For Men-Minimum 4 feet

For Women-Minimum 3 feet

(iii) Long Jump

For Men-Minimum 12 feet For Women- Minimum 9 feet

(iv) Shot Put

For Men-16 pound, minimum 16 feet to throw For Women-12 pound, minimum 10 feet to throw"

15. An important notice was issued by the appellant

Board that was published in the Newspapers and was also

uploaded on the website on the basis whereof the test of Physical

Evaluation Test on the declaration of written examination results

was announced. This notice dated 29th November, 2016 is

Annexure-C to the counter affidavit. Clauses 2, 3, 5 and 6 are

extracted hereinunder:-

"2- fyf[kr ijh{kk ds vk/kkj ij ;ksX; ik;s x;s vH;fFkZ;ksa dks LØhfuax ¼lR;kiu½] "kkjhfjd eki] "kkjhfjd {kerk tk¡p&eki ijh{k.k (Physical Evaluation test {PET}) esa Hkkx ysuk vfuok;Z gksxkA ftldk vk;kstu fnukad &09tuojh] 2017 ls iVuk esa fd;k tk;sxkA Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 14/32

3- HkwriwoZ lSfud rFkk fcgkj jkT; ds x`g j{kd vH;fFkZ;ksa ds fy, vkjf{kr inks ads fo:) mEehnokjksa dh **fcgkj d{kiky laoxZ fu;ekoyh&2014** ds izko/kku ds vuqlkj nkSM+ vkfn "kkjhfjd {kerk tk¡p ugha gksxh fdUrq vH;fFkZ;ksa dh LØhfuax tk¡p] Å¡pkbZ ,oa lhuk dh eki rFkk izek.k&i=ksa dh tk¡p dh tk;sxhA 5- p;fur vH;fFkZ;ksa dh LØhfuax@"kkjhfjd eki@"kkjhfjd {kerk tk¡p&eki gsrq fu/kkZfjr le; ,oa LFkku dh lwpuk izos"k&i= rFkk i'kZn dh osclkbZV ij miyC/k djk;h tk;sxhA 6- LØhfuax@"kkjhfjd eki@ "kkjhfjd {kerk tk¡p &eki ijh{k.k esa fu/kkZfjr frfFk dks izR;sd vH;FkhZ dk lfEefyr gksuk vfuok;Z gS] vU;Fkk os v;ksX; ekus tk;saxs vkSj mUgsa nwljk volj ugha fn;k tk;sxkA"

16. A perusal of the aforesaid entire information

including the terms and conditions of Physical Evaluation Test

was therefore well-known to the respondent-petitioner as well as

to all other candidates which categorically provides that failure

to undergo the PET that is compulsory on the appointed date,

would disqualify a candidate and no further opportunity would

be given.

17. At this juncture, it would be relevant to point out the

claim of the respondent-petitioner where she states, with the

help of two documents, that her expected date of delivery was

between March and April, 2017. It is therefore evident that the

respondent-petitioner had approximately become pregnant long Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 15/32

before the written test was held on 18 th September, 2016, the

results whereof were declared within two months and the

Physical Evaluation Test was notified immediately thereafter.

There is no prayer in the writ petition for quashing any terms

and conditions of the advertisement, the Rules applicable for

selection or the notice dated 29.11.2016. The only prayer made

in the writ petition was to extend the period of four months till

April, 2017 to enable the respondent-petitioner to deliver her

child and then appear in the Physical Evaluation Test.

18. It is also to be noted that along with the counter

affidavit the appellant had brought on record a chart of fourteen

such similar candidates having requested for extension of time

till March 2017, April, 2017 or for a period of six months or for

any other date to be fixed separately for them. This chart

Annexure-D is being reproduced for ready reference:-

"dsUnzh; p;u i'kZn ¼flikgh HkrhZ½ foKkiu la[;k&03@2015 ds varxZr dkjk d{kiky in ij fu;qfDr gsrq fyf[kr ijh{kk ds lQy vH;fFkZ;ksa dh "kkjhfjd tk¡p&eki ijh{k.k ¼fnukad&09-01-2017 ls 19-01-2017½ ds volj ij fuEu efgyk xHkZorh vH;fFkZ;ksa }kjk viuh "kjhfjd tk¡p&eki ijh{k.k dh frfFk dks muds uke ds lkeus vafdr le;kuqlkj c<+kus dk vuqjks/k fd;k x;k gS %&

Ø0la0 vH;FkhZ jkSy ua0 Lke; c<+kus dh vof/k dk uke 1- bZfldk 4123170138 dqN ekg c<+kus ds fy, jkt vuqjks/k Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 16/32

2- Lrqfr 4111240044 ekpZ 2017] rd c<+kus ds dqekjh fy, vuqjks/kA 3- fiz;adk 4115160240 ckn esa dksbZ frfFk fu/kZfjr dqekjh djus ds laca/k esa 4- uhrq 4113090233 Twku 2017 rd c<+kus ds fy, dqekjh vuqjks/kA 5- :Urh 4113370186 vyx ls frfFk fu/kkZfjr djus dqekj ds fy, vuqjk/kA 6- laxhrk 4120050014 ckn esa dksbZ frfFk fu/kkZfjr dqekjh djus ds laca/k esaA 7- fdj.k 4115080702 Ckkn esa dksbZ frfFk fu/kkZfjr dqekjh djus ds laca/k esaA 8- Pkkanuh 4119060428 Ckkn esa dksbZ frfFk fu/kkZfjr dqekjh djus ds laca/k esaA 9- Ykfyrk 4112100258 Ckkn esa dksbZ frfFk fu/kkZfjr dqekjh djus ds laca/k esaA 10- ukt 4123090210 ekpZ 2017 rd c<+kus ds ijohu fy, vuqjks/kA 11- jk/kk 4125060584 N% ekg ds ckn esa dksbZ frfFk dqekjh fu/kZfjr djus ds laca/k esaA 12- dud 4111230109 N% ekg ds ckn esa dksbZ frfFk dqekjh fu/kZfjr djus ds laca/k esaA 13 xk;=h 4120030089 viSzy 2017 rd c<+kus ds dqekjh fy, vuqjks/kA 14 vueksyk 4113110448 N% ekg ds ckn esa dksbZ frfFk dqekjh fu/kZfjr djus ds laca/k esaA

fo"ks'k dk;Z inkf/kdkjh] dsUnzh; p;u i'kZn ¼flikgh HkrhZ½ fcgkj] iVukA"

19. It is therefore evident from the facts in the present

case that the respondent-petitioner had acquired pregnancy long

before the written test itself. This was of course her own choice

but the said choice is now sought to be pleaded as a fundamental

right to seek extension of time in the holding of the

examinations which has been granted by the learned Single Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 17/32

Judge on the ground that the written examinations were held

after thirteen months of the advertisement.

20. We do not find any consideration by the learned

Single Judge of the terms and conditions as indicated in the

advertisement, the 2014 Rules and more particularly the terms

and conditions in the notice dated 29.11.2016 which was not

even challenged.

21. The recital in clause 5 and 6 of the notice dated

29.11.2016 makes it explicitly clear that every candidate has to

undergo the Physical Evaluation Test on the date fixed which is

compulsory, or else they would be treated to be disqualified and

more importantly they will not be given a second opportunity.

The purpose for which a Physical Endurance Test has to be

carried on is to test the physical ability and for which all

candidates who have succeeded in the written examinations are

supposed to undergo the same without fail. They, if acquire an

incapacity voluntarily by entering the stage of pregnancy as in

the present case, the question is, can it be pleaded that a further

extension of time, as desired by them and as per their

convenience, is a right accrued unto them which if not granted

would violate their fundamental rights? Such terms and

conditions of Physical Evaluation Test were not discussed in the Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 18/32

light of above either by the Division Bench of the Kerala High

Court or the Delhi High Court where the voluntary act of

acquiring motherhood was held as a fundamental right in respect

of delayed examinations for gaining employment.

22. We have considered the submissions raised and we

find that the entire judgment of the learned Single Judge

proceeds on a two fold premise, firstly, that there was no fixed

time schedule for holding of the test in the advertisement and

that the selection process spread over for a fairly long time.

Secondly, any denial of an opportunity to participate even after

having cleared the written examinations would be depriving the

respondent-petitioners of an opportunity of employment and

they cannot be discriminated on the ground of sex as that would

violate Article 15 of the Constitution of India. Aid has further

been taken of Article 14 read with Article 21 of the Constitution

of India to conclude that any such denial of opportunity amounts

to infringing the right of a female to have a dignified life and

also amounts to a denial of women empowerment, particularly

in respect of those who have already proved their merit. The

limited postponement of the Physical Endurance Test does not in

any way prejudice the process of selection more in the

background that the respondent-petitioners were duly qualified, Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 19/32

eligible and were within the merit of the selected candidates. It

is in these peculiar facts when holding of the examinations were

spread over for a fairly long time that the learned Single Judge

found that the rights of the respondent-petitioners were being

impinged for no fault on their part.

23. We are unable to subscribe to the said view with

respect, inasmuch as, the right to claim employment on the

strength of such facts where an individual is incapacitated by

virtue of health conditions cannot be said to have a fundamental

right to claim employment. The act of acquisition of pregnancy

is a voluntary act and the right to beget a child is not being

infringed by the State in any manner. It is open to any of the

writ-petitioners to have a child by choice but if the same brings

about any disability or incapacity in facing the Physical

Endurance Test, the same has not been imposed by the State and,

therefore, the same does not get converted into such a right or a

fundamental right so as to be enforced against the State. The

State has nowhere infringed or impinged the right of a female to

have a child. On the other hand, it is the respondent-petitioners

who want a concession in order to enable them to have a family

and protect their family rights at the cost of postponing a

competitive examination. This is not a case where any of the Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 20/32

respondent-petitioners have acquired a vested right after

employment. The benefit of any law relating to maternity during

service cannot be applied in the matters of holding examinations

that have to be completed as expeditiously as possible. Learned

counsel for the appellants are right in their submission that the

process of examinations had to be concluded in view of the

directions issued by the Supreme Court where no further

postponement was permissible. Nonetheless, there is no law that

may compel the State to postpone an examination or Physical

Endurance Test as involved in the present case on the basis of

any such right that may be traceable to Part-III of the

Constitution of India. There is no element of arbitrariness or

illegality in the stand taken by the appellants which in the

opinion of the Court is a justified stand on behalf of the

appellants as against the voluntary act of the respondent-

petitioners to have voluntarily decided to have a child of their

choice. The State does not prevent them from exercise of any

such choice by refusing to postpone the dates of Physical

Endurance Test.

24. A female candidate who enters into a marriage and

conceives of her own choice cannot be a matter of prediction by

the appellant Board thereby breaching the fundamental right of a Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 21/32

woman. The Board cannot control or regulate this fundamental

right of a woman by providing a contingency that might come

into existence by making provisions in the advertisement. The

advertisement is not under-challenge nor the terms and

conditions of the 2014 Rules are questioned. This right of

convenience to appear in the examinations as per the choice of

the candidate by seeking extension of the dates of physical

evaluation on account of a self-acquired incapacity cannot form

the basis of a fundamental right of a woman to seek

employment. The judgments in relation to the post-employment

marriage benefits, therefore, in our opinion cannot be stretched

to the extent of matters relating to holding of examinations or

Physical Efficiency Test before employment. If the logic as

applied is extended, then female candidates in respect of any

examinations whatsoever would claim extension as per her

convenience and choice or extending the dates of examinations

because she by her own choice is unable to undertake the

examinations. The choice therefore to beget a child clearly

involves entering into the stage of a self-imposed incapacity

where a female cannot undertake a Physical Evaluation Test of

the kind presently involved. The candidate knows consciously

that she will not be able to undertake the test, yet she has of her Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 22/32

own choice decided to attain motherhood. A female candidate, as

in the present case has not acquired any vested right of

employment even before clearing the physical examination test

which is essential and compulsory. Thus by her own choice she

incapacitates herself which clearly amounts to a disqualification

as per the terms and conditions above. She does not get

prohibited from again appearing in any fresh examinations and,

therefore, her right to seek an opportunity of employment is not

lost for all times to come. She by her own act having willingly,

free from any influence, has chosen to organize her own family

life. Thus, she has in an intended way exercised her option to

acquire motherhood. There are a large number of candidates

who have not chosen to do so. The Kerala High Court in its

judgment has treated such class of women as a separate class.

This creation of a class is an outcome of voluntary act and not an

act which may be attributable to the State or the Selection

Board. The State or the Board therefore did not choose to violate

the fundamental rights of the respondent-petitioner. The action

of the State in issuing the advertisement or by holding the

Physical Evaluation Test, which the learned Single Judge states

to have been delayed, nowhere declares that a female does not

have a right to beget a child. It only prescribes that all candidates Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 23/32

have to pass the Physical Evaluation Test and on their failure to

appear in the same would bring about an automatic

disqualification. There is no relaxation on the ground of separate

classes of women, one who are pregnant and the other who are

not. The situation would have been different if such pregnancy

was acquired after employment and it is only then that maternity

benefits either in the shape of leave or otherwise are

comprehended.

25. To our mind, the interpretation as given in the said

judgments and followed by the learned Single Judge in the

impugned judgment does not appear to be legally sound as it not

only overlooks the reasonable restrictions that can be placed in

matters of employment for expeditiously concluding the

selection process simultaneously in respect of all female

candidates treating them to be placed on an equal footing. The

interpretation seeks to create an unequal class amongst the

females for extending the benefit on the ground of convenience

and at the cost of impeding the selection process. This also

would violate Article 14 and Article 16 of the Constitution of

India inasmuch as there would be a large number of such

candidates who may not have even applied or would have left

the examinations on account of such incapacity of pregnancy. Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 24/32

26. We may also refer to a Division Bench Judgment of

the Kerala High Court in the case of Kerala Public Service

Commission vs. K. Jayasree reported in 2014 (1) KHC 358

that has been heavily relied on by the learned Single Judge to

arrive at the conclusions in the impugned judgment. In the

aforesaid case, the Division Bench of the Kerala High Court

observed that a pregnant woman cannot be denied an

opportunity to seek her means of livelihood for biological

reasons of her having entered the stage of motherhood. The

Division Bench held that since the final selection list had not

been published therefore the Commission was not required to

conduct a fresh endurance test. This fact in the present case has

to be viewed from the angle that the date which was fixed for

physical endurance test was sought to be advanced to enable the

respondent-petitioners to become capable for appearing in the

test. The Division Bench further held that the primary concern is

to have female candidates which is a larger public interest and,

therefore, a category of such candidates who have qualified the

other tests but they are unable to appear in the physical

endurance test because of their pregnancy or maternity

therefrom, they form a different class.

Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 25/32

27. In our opinion, this sub-classification for the purpose

of giving protection would run counter to Articles 14 and 16

within the category of females themselves. If this interpretation

is accepted then a large number of such females would have

unhesitatingly applied who were also undergoing the same stage

of pregnancy provided there had been any such relaxation given

either in the advertisement or rules. All aspirants for the post

were uniformly informed of the holding of Physical Endurance

Test and it is quite natural that such aspirants who were

undergoing pregnancy or maternity may not have applied

because of their incapacity to face such a test, but had it been

publicly known about the extension of such relaxation, there

would have been many such candidates who could have applied

and would have competed along with the respondent-petitioners.

Thus, by carving out a class of such candidates after the

selections have reached the selection of Physical Endurance Test

would be denying such opportunity to those similarly placed

aspirants who did not apply because of their pregnancy or even

if they had applied may not have chosen to appear in the

examinations because of such a situation. The law therefore in

respect of a class within the class has to be applied uniformly in

respect of similarly situated aspirants. The Division Bench of the Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 26/32

Kerla High Court did not investigate the matter any further and

assumed the existence of this sub-category amongst female

candidates entitled to be protected without any consideration of

the competing claims of similarly situated aspirants. The learned

Single Judge has also not examined the matter from this angle

even though he has ultimately extended benefits to those who

were similarly placed.

28. The flip side of the coin has not been viewed. The

fate of thousands of female candidates waiting in the queue who

have not acquired any health incapacity cannot be made to suffer

at the hands of those who have voluntarily chosen to do so and

are a miniscule number. Opportunity was offered to all including

the petitioners at par with others. They were given a level

playing field with the same opportunity being considered which

they have denied to themselves. It is the petitioners who chose to

waive the opportunity by opting for maternity thereby altering

their own priorities. A voluntary act by them cannot be

transposed as a blame on the appellants as if they had acted

deliberately to defeat the rights of respondent-petitioners.

29. The respondent-petitioners did have a right to

appear in the Physical Evaluation Test and they were offered the

same opportunity. As to what is one's right has been described in Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 27/32

Paragraph 15 of the Apex Court Judgment in the case of Mr. 'X'

vs. Hospital 'Z' reported in (1998) 8 SCC 296. The same is

extracted herein under:-

"15 "Right" is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined "right". In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a "legal right" are that the "right" is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right."

30. The respondent-petitioners therefore had a right of

an opportunity but they gave it up because of their voluntarily

acquired pregnancy. The choice therefore was exercised by them Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 28/32

of their fundamental right to have a child. This right is sought to

be enforced on the ground that they are being impinged on

account of denial of adjustment by granting a separate

opportunity of physical ability test.

31. We find on the other hand that the appellants have

placed a reasonable restriction by giving one opportunity to

everyone to appear in the Physical Evaluation Test and failure to

appear therein would entail a disqualification. Such restriction of

a single opportunity to appear in the Physical Evaluation Test is

neither arbitrary nor discriminatory and is neither against public

interest or public policy. Consequently, in our opinion, the

fundamental right to beget a child is nowhere violated when the

right to appear in the Physical Evaluation Test is protected by

providing an opportunity. It is the respondent-petitioners who

want an additional opportunity or concession or holding of a

separate Physical Evaluation Test for them which in our opinion

is neither a legal right nor a fundamental right. There is no

fundamental right to have a second chance in a matter of

selection and appointment. There is therefore no conflict in the

competing rights of the respondent-petitioners so as to castigate

the appellants of having violated the fundamental rights of the

respondent-petitioners.

Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 29/32

32. On the other hand, it is the competing legal rights of

those who have appeared at the test, on the appointed day and

time, abiding by the terms and conditions that would be

infringed by accommodating the respondent-petitioners on

concession. As stated herein this would also be unfair to those

who either had not applied in absence of any such

announcement for future adjustment and second chance or had

applied and chose to opt out on account of their pregnancy. The

competing rights of those who have succeeded in the PET

cannot be jeopardized at the desired convenience of the

respondent-petitioners. This would be treating others unequally.

33. The appellants have not been found to have planned

the elimination of the respondent-petitioners so as to infer either

malice in fact or in law. If the respondent-petitioners are now

accommodated then those who have faced the test and have been

successful will have to be eliminated. This will be unjust as

against those who have competed against those who have chosen

to abstain voluntarily.

34. In our opinion, unless such a rule is declared or

made known to the aspirants either through an advertisement or

otherwise the same cannot be applied selectively in respect of

candidates who on account the pendency of the final selections Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 30/32

had on their own volition chosen to exercise their right to have a

child.

35. The respondent-petitioners have exercised their own

option knowing fully well that they may have to undergo a PET

any time. This option to beget a child cannot be converted as a

compulsion on the appellants to hold a separate PET after the

candidate delivers a child. This option cannot be termed as a

right to compel the appellants to keep on adjourning the dates of

PET as per the convenience of maternity or stage of pregnancy.

36. In the present case, it may also be placed on record

that this matter of selection was being monitored by the Apex

Court and on 5th of May, 2017 the Apex Court had passed orders

that is part of the record whereby the selections had to be

completed in a time bound manner.

37. These facts have not been dealt with by the learned

Single Judge which clearly makes the present case

distinguishable as against the case before the Kerala High Court.

The judgment of the learned Single Judge was delivered on

03.08.2017 and it appears that the above-quoted direction of the

Apex Court escaped the notice of the Court even though the

order had already been passed by the Apex Court to conclude the

selection process within a time bound frame. In the present case Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 31/32

selections have been concluded and the Physical Endurance Test

has already been held. Accordingly to concede any further

opportunity would be to further delay the appointments of the

selected candidates which would also violate the orders of the

Apex Court dated 5th of May, 2017.

38. In our opinion, the right of a female to choose a

family life and have a child at the pre-employment stage cannot

be a compulsion on the employer to mould the terms and

conditions of the selection process at the convenience of

candidates which is evident from the choice expressed by such

candidates as indicated in the chart reproduced hereinabove.

39. For all the aforesaid reasons, we do not find the

appellant to be under any obligation in law to extend the time for

making it convenient to the respondent-petitioner to avail

another opportunity of Physical Evaluation Test. The

fundamental rights of the respondent-petitioner are nowhere

violated as held by the learned Single Judge and we do not find

ourselves in agreement with either the judgments of the Kerala

High Court or the Delhi High Court as relied on by the learned

Single Judge for extending any such benefit to the respondent-

petitioner.

Patna High Court L.P.A No.1535 of 2017 dt.01-03-2019 32/32

40. Accordingly, the appeal is allowed and the impugned

judgment dated 3rd August, 2017 is set aside. The writ petition

stands accordingly dismissed.

(Amreshwar Pratap Sahi, CJ)

(Anjana Mishra, J) Vikash/-

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