1. The short facts leading to the writ appeal are as follows :
The appellant herein is a B. Sc., Chemistry graduate of the University of Madras and she secured Second class in the annual examination. She got married to one Mr. Palanivelu in the year 1979. Presently she is the mother of two daughters and she was in the family way of four months at the time of filing the writ petition.
2. The appellant was entertained as a Junior Chemist on and from 1st January, 1986 on contract basis, and Babu Engineering Corporation was given the contract pertaining to chemical test of soil, clay, water, oil and metal within the percincts of the Neyveli Lignite Corporation Ltd., Neyveli. Though the work involving chemical test by the Chemist is necessarily throughout the year, the management of the Neyveli Lignite Corporation Ltd. extracted the work from the Chemist numbering about forty through Babu Engineering Corporation who paid at the rate of Rs. 10 per day to each Chemist and in that capacity, the appellant worked for about three years.
3. The appellant filed W.P. 3920 of 1988 against the respondent to regularise her services and to abolish the contract labour system and the said writ petition has been admitted by this Court.
4. The appellant's father-in-law is an agriculturist by profession. Prior to the commencement of the first mine, the Neyveli Lignite Corporation acquired about 40 acres of dry land and paid compensation at Re. 1 per cent as early as in 1955. During 1979 in connection with the second Thermal power station, about four acres were acquired for public purpose and compensation at the rate of Rs. 10,000 was given to her father-in-law. The appellant's father-in-law is also one of the recognised contractors of the Lignite Corporation and in 1988 he filed W.P. 5638 of 1988 questioning the validity of a contract which originally contemplated three months period and subsequently without any intimation enhanced the period to nine more months without calling for any tender.. The writ petition and W.P. 3920 of 1988 were withdrawn on the representation made by the subordinate officers of the respondent-Corporation that the appellant will be absorbed as a permanent staff as Chemist in the respondent's Corporation. At the relevant period, the appellant was working as a Chemist under the respondent, though on contract basis. Though the appellant was paid Rs. 10 per day, a member of the staff of the respondent Corporation was paid Rs. 1,500 per moth with bonus and other medical and quarters facilities.
5. The then Chairman of the respondent Corporation Mr. M. P. Narayanan, and Mr. Rajamani Iyer, the present Director of Finance, Mr. Thiagarajan, Special Officer to the Chairman and Mr. Sampathy Naik, the present General Manager (Personnel) told the appellant's husband that on the withdrawal of the said writ petitions, orders would be issued by the Chairman of the Neyveli Lignite Corporation providing a permanent job of Chemist in the Corporation. The details as to what transpired between the appellant's husband and the officers of the Corporation are set out in the affidavit filed in support of the writ petitions referred to above were withdrawn on 1st November, 1988, even though there was a beneficial interim order in one of the writ petitions. The appellant further stated that she reliably understood and believed the same to be true that the then Chairman Mr. M. P. Narayanan actually passed orders appointing the appellant as Junior Chairman of the Coal India Ltd., Calcutta. But for reasons best known to the authorities, the said order of the Chairman was not implemented even though the appellant had acted on the representations of the respondent Corporation.
6. The appellant was asked to fill up a pro forma in order to appoint her as Junior Chemist, In column No. 7, the appellant had categorically stated that she was having CARD (Centre of Applied Research and Development) for entry into the Centre for Applied Research and Development wing of the respondent. She had in fact worked as Junior Chemist from 1st January, 1986 to 28th December, 1988, and even today she is working as a casual contract labourer on a daily wage of Rs. 15. Her duty involved chemical test of articles and her name has also been registered in the local Employment Exchange.
7. The appellant was called for an interview for selection as Junior Chemist on 11th February, 1989. However, the interview did not take place and it was postponed. Therefore, by another communication dated 18th March, 1989 the appellant was asked to attend the interview to be held on 4th April, 1989. By a communication dated 14th April, 1989, she was asked to appear before the Medical Officer, on 19th May, 1989. On that date, about forty persons were medically examined. By another communication dated 29th May, 1989 she was asked to appear before the Industrial Medical Officer on 2nd June, 1989. Accordingly, she appeared. Though appointment orders were issued to all the thirtynine persons who were working along with the appellant under the contract labour system, the appellant alone was singled out. When the appellant approached the respondent she was informed that she was in the family way carrying a child of sixteen weeks. Thereupon, the appellant and her husband met Mr. Mani Iyer, Mr. Krishnan and others and the appellant was informed that the appointment order will be issued only after the appellant giving birth to the child and that too after a period of three months from the date of birth of the child.
8. On 4th June, 1989, the appellant issued a lawyer's notice detailing all facts. She informed the respondent Corporation that she had worked as Junior Chemist during her second pregnancy till the eve of giving birth to the child, that she was prepared to work in the same manner and that she will not claim any monetary benefits by reason of her pregnancy if the respondent Corporation objects to the same. For this, no reply was sent by the respondent. It is under these circumstances, the writ petition was filed alleging that her non-selection only on the ground that she was in the family way by sixteen weeks is violative of Arts. 14, 15 and 21 of the Constitution of India. At no point of time, the appellant was let known about this temporary unfitness. In so far as there is no stipulation when the application was made that a pregnant woman cannot be considered, that ground cannot prevail. The appellant would also be entitled to the benefits under the Maternity Benefit Act, 1961. When there is no physical hindrance while the appellant was working under the contract labour system, pregnancy cannot be a ground even to temporarily disqualify her.
9. A counter affidavit was filed on behalf of the Neyveli Lignite Corporation wherein it is stated that the Medical Officer of the Corporation had a discretion to declare a person temporarily unfit in terms of R. 8 of the Medical Benefit Rules. Regulation 21 of the Medical Examination Rules states that 'the duration of pregnancy, if any, should be recorded in case of female candidates. The women in advanced stage of pregnancy should be deemed to be temporily unfit. For this purpose, pregnancy of four months and over may be taken as advanced stage of pregnancy'. Such as clause is not peculiar to the respondent Corporation. Other major public sector Undertakings like Bharat Heavy Electricals Ltd. and the National Thermal Power Corporation also follow similar pattern. The Medical Officer alone is competent to declare the physical fitness of a candidate. The other contentions of the appellant are untenable.
10. The matter came up before our learned brother, Baktavatsalam, J. The learned Judge was of the view that the court cannot issue a writ as prayed for since the Medical Officer alone was competent to say whether a person was physically fit for appointment or not. The court cannot sit in appeal over such a decision. The learned Judge dismissed the writ petition for mandamus. It is against this order, the present writ appeal has been filed.
11. Mr. Prakash, learned Counsel for the appellant, would urge that such a Regulation based on pregnancy is violative of Art. 14 of the Constitution of India. Further, in so far as the Regulation does not classify the category of services, it could arbitrarily be applied and therefore it suffers from the vice of arbitrariness, as well. Looked at from the point of view of Art. 21 of the Constitution, the appellant has a right to life. Such a life does not mean a mechanical one, bases on personal freedom. In the case of a woman, certainly she has every freedom to have a child and the Constitutional right cannot be taken away by a regulation of this character. The right to beget children is a very valuable right. In Air India v. Nargesh Meerza (1981-II-LLJ-314) the right of an air hostess to get married has been recognised and if her services were to depend upon such a position, the rule Supreme Court of the United States of America in several decisions had recognised such a right. The learned Counsel cites the following decisions-Criswold v. Connecticut 381 U.S. 479 Kisentadt v. Baird 405 U.S. 438, Cleveland Board of Education v. La Pillanes 414 U.D. 632, Turner v. Department of Employment (Security) 423 U.S. 44 and Skinner v. Oklahama 316 U.S. 535. Learned Counsel submitted that if the working of the appellant under a contract labour is not hazardous, the same could be so if she is obliged to work under the Corporation as well. Therefore, this cannot be a valid ground at all. Lastly it is submitted that the Maternity Benefit Act 1961 itself has not though of medical unfitness for a pregnancy of 16 weeks old and the Regulation in question cannot exceed a parliamentary legislation and lay down a prescription which cannot be supported even from the medical point of view.
12. Mr. R. Krishnaswami, learned Counsel for the respondent, after referring to the Regulations states that this is one conceived in the interest of the employees themselves. Further, such a regulation requiring medical examination at the time of the first appointment is not peculiar. Such regulations are there in police organisation as well. Where the work is of a hazardous nature, it becomes necessary for the employer to lay down such a condition like this. In any event, as the counter affidavit states, this is only a temporary unfitness. After the delivery of the child, the appellant is entitled to join and her seniority will not any way be interface with. This position has been fully clarified in the counter affidavit filed in the writ appeal.
13. Having regard to the above submissions made on both sides, the only question that arises for our consideration is, whether the regulation in question in relation to medical examination of a female candidate is violative of any of the provisions of the Constitution and is therefore liable to be struck down. We will now straightway, extract the said regulation as under :-
"R. 21 : The duration of pregnancy, if any, should be recorded in case of female candidates. The woman in advanced stages of pregnancy should be deemed to be temporarily unfit. For this purpose pregnancy of four months and over may taken as advanced stage of pregnancy."
14. It is admitted that the appellant was interviewed and she was also selected. However, her selection was withheld on the only ground that she was in the family ways by 16 weeks. The counter affidavit filed in the writ appeal in paragraphs 6 and 7 states as follows :-
"she was in the advanced stage of pregnancy as per rules in force of the respondent company and she was temporarily disqualified from joining duty immediately. She was also advised to report before the Medical Committee after six weeks of confinement. It is also submitted that the appellant is not likely to lose any benefit such as seniority, etc., and as the seniority would be reckoned based upon her position in the selection panel as recommended by the Committee. Orders were issued to 19 outside general candidates out of which the appellant's position is 16 in order of merit as recommended by the selection committee. It is submitted that her position as 16 out of the 19 outside general candidates issued with the offer of appointment will hold good notwithstanding her joining later than the candidates whose places in the panel are below her. The notional seniority for the appellant would be maintained. The only loss that the appellant has to suffer is the loss of wages for the period during which she was not employed and this is inevitable because of the rules in force. She is not actually working during that period.
It is further submitted that the area of work where the appellant has to work as Junior Chemist will be either CARD (Centre for Applied Research) or Fertilizer, B & C factory. In all these areas, a Junior Chemist has to handle chemicals and has to be exposed to the different chemicals and gases which are likely to endanger the health of a pregnant lady. While a normal person can withstand these hazards, a lady carrying a baby is quite likely to be affected by exposure to these elements and which may endanger the life of the child or result in miscarriage. This statement is based upon the medical opinion."
15. We may at once state that we are not in a position to accept what is stated in paragraph 7 of the counter because this was not the stand taken by the respondent before the learned single Judge and this is an ingenious attempt by the respondent to defeat the claim of the appellant. In this connection it should be remembered that the appellant was working as a contract labourer in the very post for which she was selected and the post has not been considered as the one involving health hazard. If the ground of 'health hazard' has not been pressed into service when the appellant was working under the contract labour, how could the same be projected at the time of her permanent appointment We find great difficulty in accepting this argument, and therefore, the rejection of the claim of the appellant for the appointment on the ground of 'health hazard' is not sustainable. Regarding the argument that such 'temporary unfitness' is not anything peculiar to the respondent Corporation, but is also there in similar public sector Corporations like Bharat Heavy Electricals Ltd, and National Thermal Power Corporation, we would refer to a passage occurring at page 166 of Swamy's Complete Manual on Establishment and Administration. The passage reads as under :
"Employment of women candidates in state of pregnancy -
(a) For appointment against posts carrying hazardous nature of duties - Where a pregnant woman candidate is to be appointed against a post carrying hazardous nature of duties, e.g., in Police Organisations, etc., and she has to complete a period of training as a condition of service and who as a result of tests is found to be pregnant of twelve weeks standing or over shall be declared temporarily unfit and her appointment held in abeyance until the confinement is over.
She should be re-examined for a fitness certificate six weeks after the date of confinement, subject to the production of medical certificate of fitness from a registered medical practitioner. The vacancy against which the woman candidate was selected should be 'kept reserved for her. If she is found fit, she may be appointed to the post kept reserved for her and allowed the benefit of seniority in accordance with para 4 of Annexure to MHA OM No. 9/11/55-R.S, dated the 22nd December, 1959.
(b) For appointments against posts which do not prescribe any elaborate training - It shall no longer be necessary to declare a woman candidate 'compulsorily unfit' if she is found to be pregnant during medical examination before appointment against posts which do not prescribe any elaborate training, i.e., she can be appointed straightway on the job."
16. The question now is, whether there could be a prescription of this type in the light of the fundamental rights conferred under Art. 21 of the Constitution of India. That Article reads as follows :
"Art. 21 No person shall be deprived of his life or personal liberty except according to procedure established by law."
'Life' in this Article cannot be considered to be a mechanical one. It is attendant with all that is required to make the life blossom and all enjoyment within the permissible limits of law. Here is the case of a married woman. If she chooses to have a child, can the State or an authority like the respondent corporation impose itself and curtail this life or the personal freedom of the appellant In this connection, we find the various American decisions relied on by the learned Counsel for the appellant throw a good deal of light.
17. In Griswold v. Connecticut (supra) it is observed as follows :-
"The present case, then concerns a relationship laying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot in light of the familiar principle, so often applied by this Court, that a Governmental purpose to control or prevent a activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily, broadly and thereby invade the are of protected freedoms. Would we allow the police to search the sacred precincts of marital bedrooms for tell tale signs of the use of contraceptives The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Right-older than our political parties, older than our schools system. Marriage is a coming together for better or for the worse hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes a harmony in living, not political faiths, a bilateral loyalty not commercial or social projects. Yet, it is an association for as noble a purpose as any involved in our prior decisions."
In the same judgment, the Supreme Court of the United States observed as follows :
"The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it principles of more than one explicitly granted Constitutional rights. Of this whole 'Private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations."
Therefore, if the regulation in question tends to affect the 'Private realm of family life', we consider that the ratio of this judgment will squarely apply.
18. In Eisentadt v. Baird (supra), the Supreme Court of the United States has observed as follows :
"If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship, yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with separate intellectual and emotional make-up. If the right of privacy means anything it is the right of the individual, married or single, to be free from unwarranted Governmental intrusion into matters so fundamental affecting a person as the decision whether to bear or beget a child."
19. In Cleveland Board of Education v. La Fleur (supra), certain teachers instituted civil rights actions in the United States District Court for the Northern District of Ohio challenging the constitutionality of a maternity leave rule of the Board of Education of Cleveland, Ohio, which provided that a pregnant teacher must take maternity leave beginning five months before the expected birth of her child, that the teacher gives notice of her pregnancy at least two weeks prior to the time when she must begin her maternity leave, and that she could become eligible for re-employment not earlier than the beginning of the next school semester after her child was three months old, provided that a doctor issued a certificate attesting to the teacher's health, it was held as follows :
"In an opinion by Stevart, J. expressing the view of five members of the court, it was held that (1) although the provisions for advance notice in the maternity leave rules were rational and perhaps necessary for continuity of instruction, nevertheless, the mandatory employment termination provisions violated the due process clause of the Fourteenth Amendment as not being necessary for continuity of instruction or for keeping physically unfit teachers out of the classroom, and as establishing a conclusive presumption of the physical incapacity of the teacher after the fourth or fifth month of pregnancy, which presumption was neither necessarily nor universally true, and (2) Cleveland provision barring a teacher's return to employment until after her child was three months old was similarly violative of the due process clause, but the Virginia re-employment rule was not unconstitutional."
Douglas : J. concurred in the result
Powell, J. concurring in the result, stated that the issues should be decided in terms of equal protection of the laws, and that under that principle the maternity leave rules were invalid as not having a rational basis.
Rehnquist, J. joined but Burger, C.J. dissented on the grounds that the majority's reliance on the invalidity of irrebuttable presumptions endangered the validity of countless state and federal statutes and that if any generally applicable rule concerning mandatory termination of employment was permissible, the rules in the instant case were not invalid."
In the same judgment, it is further observed as follows :
"Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause of the fourteenth amendment; there is a right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Here again what is required to be noted is that the family life is one of the liberties protected by the due process of law and the same is free from unwarranted governmental intrusion into matters so fundamentally affecting a person whether to bear or beget a child. In the instant case, we are of the view that it is this right conferred under Art. 21 of the Constitution of India viz, right to life, which is sought to be interfered with.
20. The following observations in Turner v. Department of Employment Security (supra) are apt to the situation obtaining in this case :-
"The presumption of incapacity and unavailability for employment created by the challenged provision is virtually identical to the presumption found unconstitutional in Cleveland Board of Education v. La Fleur 414 U.S. 632. In La Fleur, the court held that a school board's mandatory maternity leave which required a teacher to quit her job several months before she expected birth of her child and prohibited her return to work until three months after child birth violated the Fourteenth Amendment. Noting that 'freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause', Cleveland Board of Education v. Lafleur 414 U.S. 632 the court held that the Constitution required a more individualised approach to the question of the teacher's physical capacity to continue her employment during pregnancy and resume her duties after child birth since 'the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter.
It cannot be doubted that a substantial number of women are fully capable of working well into their last trimester of pregnancy and of resuming employment shortly after child birth. In this very case Mrs. Turner was employed intermittently as a clerical worker for portions of the 18 week period during which she was conclusively presumed to be incapacitated. The Fourteenth Amendment requires that unemployment compensation boards no less than school boards achieve legitimate state ends through more individualised means when basic human liberties are at stake, We conclude that the Utah Unemployment Compensation statute's incorporation of a conclusive presumption of incapacity during so long a period before and after child birth is constitutionally invalid under the principles of the La Fleur case (supra)
21. In Skinner v. Oklahoma (supra), dealing with a state statute which provided for the sterilisation of habitual criminal, the question arose as to whether it would constitute a violation of equal protection clause of the Fourteenth Amendment and the Supreme Court of the United States observed that 'marriage and procreation are fundamental to the very existence and survival of the race."
22. In Meyer v. Nebraska 226 U.S. 390 the U.S. Supreme Court has observed as follows :-
"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration, an some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a house, and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognised at common law as essential to the orderly pursuit of happiness by free man."
23. In Air India v. Nergesh Meerza (1981-II-LLJ-314 at 335) the Supreme Court of India observed as follows :
"Coming now to the second limb of the provisions according to which the services of AHs (Air Hostesses) would stand terminated on first pregnancy, we find ourselves in complete agreement with the argument of Mr. Setalvad that this is a most unreasonable and arbitrary provision which shocks the conscience of the Court. The Regulation does not prohibit marriage after four years and if an A.H. after having fulfilled the first condition becomes pregnant, there is not reason why pregnancy should stand in the way of her continuing in service. The Corporation represented to us that the pregnancy leads to a number of complications and to medical disabilities which may stand in the efficient discharge of the duties by the A. Hs. It was said that even in the early stage of pregnancy some ladies are prone to get sick due to air pressure, nausea in long flight and such other technical factors. This, however, appears to be purely an artificial argument because once a married woman is allowed to continue in service then under the provisions of the Maternity Benefit Act, 1961 and the Maharashtra Maternity Rules, 1965 (these apply to both the Corporations as their Head Offices are at Bombay) she is entitled to certain benefits including maternity leave. In case, however, the Corporations feel that pregnancy from the very beginning may come in the way of discharge of the duties of some of the A. Hs. they could be given maternity leave for a period of 14 to 16 months and in the meanwhile there could be no difficulty in the Management making arrangements on a temporary or ad hoc basis by employing additional A. Hs. We are also unable to understand the argument of the Corporation that a woman after bearing children becomes weak in physique of in her constitution. There is neither any legal or medical authority for this bald proposition."
The above observations came to be made by the Supreme Court while dealing with the right of an air hostess to get married.
24. One of us (Mohan, J.) while dealing with more or less a similar situation where a school teacher was dismissed on the ground of her marriage, held in Sivanarul v. State of Tamil-Nadu (1985-II-LLJ-133 at 139), as follows :
"The concept of marriage as viewed by Joseph Addison is as follows -
Marriage enlarges the scope of our happiness and of our miseries. A marriage of love is pleasant ... of interest, easy and where both meet, happy. A happy marriage has in it all the pleasures of friendship, all the enjoyments of sense and reason, and indeed all the sweets of life."
George Elliot states as under :
"What greater thing is there for the human souls than to feel that they are joined for life. to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting."
No less than the Father of Nation, Mahatma Gandhi eloquently said;
"Marriage is a natural thing in life, and to consider it derogatory in any manner is wholly wrong. The idea is to look upon marriage as a sacrament and therefore, to lead a life of self restraint in the married state."
To say that a teacher will lose her services on getting married is to forget the fact that the bloom or light of all life's happiness consists in marriage. It is nothing more than a civilised way of living. To tie it merely to sex is not only obnoxious but is untrue. No wonder Channing Pittock said :- 'Marriage is the greatest educational institution on earth.
"18. What is the reason that is given in the resolution. It is stated that when a teacher takes maternity leave, the children's education will be affected and that due to lack of funds, a substitute cannot be appointed. First of all, this is full of assumptions; in these modern days that one should necessarily beget a child is an assumption unwarranted. Secondly, it is not mere physical union but union between two spirits. As Fredrick William Robertson said;
"Marriage is not a union merely between two creatures. It is a union between two spirits, and the intention of their bond is to perfect the nature of both, by supplementing their deficiencies with the force of contract, giving to each sex these excellences of which it is naturally deficient; to the one, strength of character and firmness of moral will, to the other, sympathy, meekness, tenderness, and just so solemn and glorious as those end are for which the union was intended, just so terrible are the consequences if it be prevented and abused, for there is no earthly relationship which has no such power to ennoble and to exalt. There are two rocks in this world of ours, on which the soul must either anchor or be wrecked. The one is God and the other is the sex opposite."
19. In a case which arose in the Supreme Court of the United States in Cleveland Board of Education, Laflour Cohan Chesterfield Country School Board 414 U.S. 632 the question was whether mandatory maternity leave policies which require all teachers in a system to stop teaching five months before the expected birth of a child violate the teacher's right to due process, Justice Stewart held :
"Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause - overtly restrictive maternity leave regulations can constitute a heavy burden on the exercise of those protected freedoms. The due process clause requires that such rules do not needlessly arbitrarily or capriciously impinge upon this vital area of teacher's constitutional liberty.'
The right to personal life and liberty enshrined in Art. 21 of the Constitution must receive its full scope and meaning and therefore the resolution of this character would be violative of Art. 21. No doubt in Bagulla Babi Raju v. State of A. P. (AIR) A.P. 1073 at 1080, it was observed;
"The argument that the word 'life' in Art. 21 of the Constitution includes 'livelihood' has only to be stated to be rejected."
But in the case on the hand, it is not livelihood, but living a civilised life. In this connection it is appropriate to quote Harivinder Kaur v. Harmandar Singh (supra) wherein it was observed follows :
"Marriage is the very foundation of a civil society. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which the public is deeply interested, for, it is the foundation of the family and of society, without which there could be neither civilisation nor progress Meganatha v. Susheela .
Whether it is English law or the Indian Act, marriage is a voluntary union for life of one man and one woman to the exclusion of all others Hyde v. Hyde 1866-L.R. 1P.D. 130 133, per Lord Penzance."
25. In the above case, it was held that such rule was not only obnoxious, but also opposed to public policy. The same reasoning ought to prevail in this case as well. What we want to emphasise here is a State within the meaning of Art. 12 of the Constitution wanting to interfere with the free married life.. So long as the right to beget a child is considered to be a fundamental right on which we have not the slightest doubt, such a regulation must be held to be not only archaic, but also opposed to even civilised life.
26. An attempt was made to call the restriction as 'temporary unfitness' and that the she could join duty after the birth of the child. On this aspect of the matter, we have already extracted paragraphs 6 and 7 of the counter affidavit. This stand, to our mind, appears to be a ruse to get over a difficult situation. The maintaining of the original seniority and her obtaining the proper place is poor consolation indeed. As the respondent himself has categorically stated, she will have to suffer the loss of wages for the period during which she was not in employment. Who is to compensate her for the loss of money Does it not mean deprivation of livelihood which is a fundamental right contemplated under Art. 21 of the Constitution In these days of acute unemployment, to deprive a woman of her right to earn in spite of her selection is something which we cannot appreciate at all. To say that she is temporarily unfit is something which stand scrutiny from the medical point of view. It is not an uncommon sight in India to see a woman in advanced stages of pregnancy working in agricultural fields, on roads or even in mines where there is every risk. Yet, they dare work, compelled by poverty and by the dire necessity of life.
27. In this connection, we may usefully quote S. 4 of the Maternity Benefit Act, 1961 :-
"S. 4 Employment of, or work by, woman, prohibited during certain periods : (1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery of her miscarriage'.
(2) No woman shall work in any establishment, during the six weeks immediately following day of her delivery or her miscarriage.
(3) Without prejudice to the provisions of S. 6, no pregnant woman shall on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-S (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy, or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
(4) The period referred to in sub-S(3) shall be (a) the period of one month immediately preceding the period of six weeks before the date of the expected delivery;
(b) Any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under S. 6."
S. 5 of the said Act deals with the right of payment of maternity benefit. In the absence of such a criteria as mentioned in sub S. (3) of S. 4 of the Maternity Benefit Act, the regulation in question is clearly unreasonable.
28. The Regulation since so far as it does not classify the category of services, and it is made applicable to all services whether a stenographer or an assistant doing desk work, undoubtedly suffers from the vice of arbitrariness. Therefore, it is violative of Art. 14 of the Constitution as well.
29. To our mind, conclusion, we would only say that what this Regulation wants to perpetuate is : 'Bachelors, wives and old maid's children are always perfect'. Let it be remembered that where children are, there is the golden age. One begets children not merely to keep up the race, but to enlarge our hearts and make us unselfish and full of kindly sympathies and affections, to give our souls higher aims, to call out all our faculties to extend enterprise and exertion and to bring round our fireside bright faces, happy smiles, and loving, tender hearts. If this is sought to be deprived by the Regulation in question the same to be violative of the fundamental rights guaranteed under Art. 21, as well as Art. 14 of the Constitution ?
30. In the result, the order of the learned Judge is set aside and the appeal will stand allowed with cost. Counsel's fee Rs. 1000.