Madras High Court
A.Arulin Ajitha Rani vs State Represented By on 9 July, 2012
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATRE AT MADRAS
DATED: 09-07-2012
CORAM:
THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN
W.P.No.440 of 2011
A.Arulin Ajitha Rani .. Petitioner
Vs.
1.State represented by
The Principal Secretary,
Department of Higher Education,
Fort St. George,
Chennai-600 009.
2.The Secretary,
Department of Information and Public Relations,
Fort St. George,
Chennai-600 009.
3.The Commissioner,
Directorate of Technical Education,
Guindy,
Chennai.
4.The Director,
The Directorate of Collegiate Education,
DPI Complex,
College Road,
Nungambakkam,
Chennai.
5.The Member Secretary,
Tamil Nadu Higher Education Council,
Kamarajar Salai,
Chennai.
6.The Chairman,
Tamil Nadu State Women's Commission,
Ezhilagam, Chepauk,
Chennai-600 005.
7.The Director,
Directorate of Information and Public Relations,
Fort St. George,
Chennai-600 009. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for records of the Government Letter(s)/G.O.Ms.No.127 dated 2.6.2010 of the Higher Education (B1) Department passed by the first respondent and quash the same as unconstitutional and ultra vires of the Constitution.
For Petitioner : Mr.P.T.Perumal
For Respondents : Mr.N.Srinivasan,
Additional Government Pleader.
O R D E R
The petitioner has come up with the above writ petition, challenging a communication issued by the Principal Secretary to Government, Higher Education, Department addressed to the Tamil Nadu State Women's Commission, refusing to grant maternity leave to girl students undergoing higher education in the State.
2. I have heard Mr.P.T.Perumal, learned counsel for the petitioner and Mr.N.Srinivasan, learned Additional Government Pleader for respondents.
3. The petitioner completed a B.Sc., degree in Chemistry from the Madras University. After graduation, she got married and thereafter she studied Master's degree in Social Work from the Madras University. Subsequently, the petitioner joined a 3 year Diploma Course in Direction and Screen Play Writing in the Tamil Nadu Dr. MGR Government Film and Television Institute in the academic year 2004-2005.
4. While undergoing the second year of the course of study, the petitioner conceived and was compelled to go on leave. Since the petitioner fell short of attendance, she was not permitted by the institute to appear for the second year examination.
5. The petitioner filed writ petitions, both for permission to write the second year examination and for permission to continue her course of study in the third year. The writ petitions were dismissed and the writ appeals filed by the petitioner were also dismissed, after finding that she did not have adequate attendance.
6. Thereafter the petitioner obtained some information regarding her attendance and filed a review application. But the review application was dismissed and the Supreme Court appears to have ordered notice in the Special Leave Petitions arising out of the same.
7. In the meantime, the petitioner submitted a representation to the Tamil Nadu State Women's Commission, highlighting the plight of the women students like her and the treatment meted out to them. It appears that the Women's Commission took up the issue with various Departments. In response to the recommendations of the Women's Commission, the Principal Secretary to Government, Higher Education Department has sent a communication which is impugned in the writ petition. By the said communication, the first respondent has taken a stand that no maternity leave can be allowed to students undergoing higher education in Government and Government Aided Institutions. Therefore, though the petitioner herself may not stand to benefit personally from the outcome of this writ petition, the petitioner has come up with a challenge to the said communication, in the larger interest of girl students who happen to marry and who happen to conceive while still undergoing higher education.
8. The impugned order cites two reasons. They are (i) women students undergoing degree courses may invariably be less than 21 years of age and hence the grant of maternity benefit may be seen as an incentive to girls getting married before completing 21 years of age and (ii) women students, who absent themselves due to confinement, are given the facility of undergoing the course of study once again in the next academic year and hence there is no necessity to give the benefit of maternity leave to these students.
9. The seventh respondent has filed a counter affidavit, both on his behalf and on behalf of the second respondent. The second and seventh respondents are actually in administrative control of the Tamil Nadu Film and Television Institute. They are not the persons who have passed the impugned order. Therefore, the focus of the counter filed by respondents 2 and 7 is only limited to the lack of attendance of the petitioner and her failure to fulfill the criteria for being permitted to take the examination. In other words, the counter filed by the respondents 2 and 7 merely proceed on the basis that the petitioner is not entitled to the relief of condonation of lack of attendance or to the benefit of maternity leave.
10. But, in the case on hand, the petitioner is not seeking any relief for herself. It is admitted by the petitioner that her fate is already sealed by the orders passed in her writ petition and writ appeal. She has now challenged only the order of the first respondent passed in response to a recommendation made by the Tamil Nadu State Women's Commission. What is canvassed in the present writ petition is only a question of larger public interest for the grant of maternity leave to women students undergoing higher education in the State of Tamil Nadu. Therefore, the counter filed by respondents 2 and 7 is of no value to the issue raised in the writ petition.
11. Mr.P.T.Perumal, learned counsel for the petitioner has filed a set of documents to show that there are educational institutions which either grant maternity leave or grant condonation of lack of attendance during the period of confinement. These documents, in brief, point out the following:
(i) An official communication bearing No.PIO/RTI-A/C&R III/2006/303 dated 13.11.2006, issued by the University of Madras shows that though the students of the Madras University are not entitled to maternity leave, there is another rule for the condonation of shortage of attendance for married women students. The rule reads as follows:
"In respect of married women students undergoing UG/PG courses, the minimum attendance for condonation (Theory/Practical) shall be relaxed and prescribed as 55% instead of 65% if they conceive during their academic career. Medical certificate from the Doctor attached to the Govt. Hospital (D.G.O.) and the prescribed fee of Rs.250/- therefor together with the attendance details shall be forwarded to the University, to consider the condonation of attendance for the married women students."
(ii) The "Leave Rules for Students" issued by the Office of the Dean of Academic Affairs, IIT Kanpur, under Section 5 of the PG Manual shows that under paragraph 5.3, a female student may be granted maternity leave for a maximum of 3 months and that leave up to six weeks can also be granted for miscarriage including medical termination of pregnancy. It also states that such leave can be combined with any other leave due and will not entail any loss of financial assistantship.
(iii) The Postgraduate Manual - Guidelines and Regulations issued by the Indian Institute of Science Education and Research, Bhopal, shows that under paragraph 6.3 thereof, a female student can be granted maternity leave for a maximum period of three months and that leave up to six weeks can also be granted in case of miscarriage including medical termination of pregnancy. This rule also states that there will be no loss of financial assistantship for students on maternity leave.
(iv) The copies of the relevant pages of the note file obtained by the petitioner under the Right to Information Act shows that on the claim made by the petitioner for the grant of condonation of shortage of attendance and on the recommendation made by the Tamil Nadu State Women's Commission, a note was circulated among the departments of (a) Law, (b) Tamil Development Culture and Religious Endowment, (c) Social Welfare and (d) School Education, so as to ascertain their views. The Higher Education Department appears to have recorded an opinion that the recommendation of the Tamil Nadu State Women's Commission could be accepted and necessary amendment be brought to the Rules. Similarly, the Tamil Development Culture and Religious Endowment Department also appears to have accepted the recommendation of the Tamil Nadu State Women's Commission. The Social Welfare Department has also recorded similar views.
12. Despite all the above, the first respondent has eventually rejected the representation of the Tamil Nadu State Women's Commission, on the two grounds which I have already extracted above.
13. In addition to the information obtained from the University of Madras and IIT Kanpur and Indian Institute of Science Education and Research, Bhopal, the learned counsel for the petitioner also relies upon the following:
(i) Some Articles of the Convention on the Elimination of Discrimination Against Women, adopted by the United Nations;
(ii) the decision of the Supreme Court in Vishaka v. State of Rajasthan ((1997) 6 SCC 241);
(iii) the decision of the Supreme Court in Municipal Corporation of Delhi v. Female Workers (AIR 2000 SC 1274);
(iv) the decision of this Court in Nithya v. University of Madras (1996 WLR 802);
(v) the decision of the Delhi High Court in Neera Gupta v. University of Delhi (1996 DLT 458);
(vi) the decision of this Court in Kavitha Rajagopal v. The Registrar (2008 (1) CTC 374); and
(vii) the decision of the Delhi High Court in Vandana Kandari v. University of Delhi (order dated 30.4.2010).
14. I have carefully considered all the above.
15. The General Assembly of the United Nations adopted the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), on 18th December 1979. India ratified the Convention on 25.6.1993 with some reservations. At the 4th World Conference on Women held in Beijing, the Government of India made an official commitment to formulate and operationalise a national policy and also to set up a Commission for women's rights. This eventually led to the enactment of the Protection of Women against Domestic Violence Act, 2005.
16. Some of the Articles of CEDAW, which may help in throwing some light on the issue raised in the writ petition, are as follows:
(i) Article 4.2 of the Convention declares that the adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory;
(ii) Article 5(a) mandates States Parties to take appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieve the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
(iii) Article 5(b) mandates the States Parties to take appropriate measure to ensure that family education includes a proper understanding of maternity as a social function;
(iv) Article 10(f) mandates the States Parties to take appropriate measures for the reduction of female drop-out rates;
(v) Article 11.2(b) mandates States Parties to take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of employment, seniority or social allowances;
(vi) Article 11.2(d) requires the States Parties to provide special protection to women during pregnancy in types of work proved to be harmful;
(vii) Article 12.2 requires the States Parties to ensure to women, appropriate services in connection with pregnancy, confinement and the post natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation; and
(viii) Article 16.1(e) mandates the States Parties to ensure that women have same rights to decide freely and responsibly on the number and spacing of their children.
17. In Vishaka, the Supreme Court took note of the CEDAW and also the Beijing principles and held that reliance can be placed upon them for the purpose of construing the nature and ambit of Constitutional guarantee of gender equality.
18. In Municipal Corporation of Delhi, the muster roll women workers of the Delhi Municipal Corporation were denied the benefit of maternity leave on the ground that their services were not regularised. The industrial dispute was referred to the Industrial Tribunal which passed an award in favour of the women workers. The award was challenged unsuccessfully before the Delhi High Court and the matter ultimately landed up before the Supreme Court. For dismissal of the appeal filed by the Corporation of Delhi, the Supreme Court relied upon Articles 39, 42 and 43 of the Constitution and also the provisions of Article 11 of CEDAW.
19. In Nithya, a student of a private aided College undergoing an Under Graduate course in an aided College, challenged the refusal of the College to permit her to write the examination on the ground of shortage of attendance. The candidate fell short of required attendance on account of getting married and getting conceived in the course of her studies. While allowing the writ petition, S.M.Ali Mohamed, J, pointed out that under Article 41 of the Constitution, the State has an obligation to make provision for securing education and that under Article 42, the State has to make a provision for securing just and humane conditions of work and for maternity relief. The learned Judge also took note of the statutes of the University of Madras which provided for the appearance in the next examination and the payment of condonation fee. But, the learned Judge pointed out that it was high time that the University of Madras made provisions for granting leave to girl students who get married during the period of studies.
20. In Neera Gupta, two students of M.D. Micro Biology, were refused permission to take the annual examination, as they availed maternity leave for two months. But the Court did not go into the question as to whether the women students were entitled to maternity leave or not. On the contrary, the Court allowed the writ petitions on the ground of Article 14, after finding that other students were granted longer spells of leave.
21. In Kavitha Rajagopal, a student of Government Law College attended college only for 82 days as against the minimum requirement of 115 days out of a total number of working days of 154, due to confinement. She was denied permission to write examination, as she fell short of 19 days even for condonation. In a writ petition filed by her, Prabha Sridevan,J took note of Articles 1, 2 and 3 of the Convention on the Political Rights of Women and Articles 1, 2, 7, 10 and 11(2) of CEDAW and held that the lack of attendance required to be condoned.
22. In Vandhana Kanthari, the student, whose shortage of attendance on account of advanced stage of pregnancy was not condoned by the University, filed writ petition. After referring to the decision of this court in Nithya and also to the decision of the Delhi High Court in Neera Gupta and taking note of Articles 15(3) and 42 of The Constitution, the Delhi High Court held that a female student cannot be deprived of her right to take examination, when her shortage of attendance is due to advanced stage of pregnancy and that such students deserve relaxation under the mandate of The Constitution.
23. Thus, it is seen that both this Court as well as the Delhi High Court have consistently taken the view that the girl students are entitled for condonation of the shortage of attendance occasioned due to pregnancy. Therefore, the stand taken by the first respondent cannot be taken to be in consonance with the Directive Principles of State Policy and the provisions of CEDAW.
24. The debate on Career vs. Family Life for women is age-old. In the United States, where women are perceived to have greater status today than ever before, an article in The Antlantic by Anne-Marie Slaughter, a Princeton Professor, who recently left a high profile job at the State Department, rekindled the debate all over. Before leaving a job which made her one of the few powerful women in the United States, she urged workplaces to change and women to stop blaming themselves. This was seen in some way as a repertoire to the higher-harder-faster school of female achievement, advocated by the Chief Operating Officer of a leading social networking site, who called upon women to follow three rules:-
(i) Require your partner to do half the work at home;
(ii) Don't underestimate your own abilities; and
(iii) Don't cut back on ambition out of fear that you won't be able to balance work and children.
25. Nevertheless, the debate as to whether women can have it all and as to how career and family could be balanced appears to be never ending, as the issue raised in the writ petition. But with a little change of attitude, both at home and at institutions, gender equality can actually be achieved. It depends upon whether the Society can change its mind set or not.
26. The fear that the grant of any concession even to girls who get married before attaining the age of 21 would be seen as destructive of the policy to encourage marriages above the age of 21 years, cannot be a factor to deprive the benefit. In the social context in which we live, marriages before the age of 21 are a matter of hard reality. When it is not illegal for a girl above 18 years of age to get married, it may not be feasible to deprive them of the benefit of maternity leave on the ground that it is the policy of the State to encourage people to get married after completion of 21 years.
27. Therefore, the writ petition is allowed and the impugned order is set aside. The first respondent is directed to formulate a policy in general, for all educational institutions and universities in the State, so as to ensure that girl students, whose attendance falls short of the prescription, on account of marriage and pregnancy, are granted the benefit of condonation of shortage of attendance, so that the natural biological process does not act as a hindrance to the education and empower of women. There will be no order as to costs.
Svn kpl RS To
1.The Principal Secretary, Department of Higher Education, Fort St. George, Chennai-600 009.
2.The Secretary, Department of Information and Public Relations, Fort St. George, Chennai-600 009.
3.The Commissioner, Directorate of Technical Education, Guindy, Chennai.
4.The Director, the Directorate of Collegiate Education, DPI Complex, College Road, Nungambakkam, Chennai.
5.The Member Secretary, Tamil Nadu Higher Education Council, Kamarajar Salai, Chennai.
6.The Chairman, Tamil Nadu State Women's Commission, Ezhilagam, Chepauk, Chennai-600 005.
7.The Director, Directorate of Information and Public Relations, Fort St. George, Chennai 600 009