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CWP No.6996 Of 2019
I. The Petitioner Mrs. Sheela Swatheesh who was M.B.B.S.., M.D applied in response to the advertisement inviting applications for grant of SSC in the Army Medical Corps.
II. She was called for the interview on 10.01.2018 and was intimated that she had been selected for grant of SSC in the rank of captain.
III. She was declared unfit in the medical examination on 11.01.2018, subsequently she was declared fit my Appeal Medical Board on 16.02.2018.
IV. She was issued appointment letter in the same date whereby she was asked to report on 10.09.2018 to Commandant of Military Hospital for commencement of employment. a) In the appointment letter it was clearly stated that she would be required to undergo medical inspection on reporting to the unit to concern that there has been no deterioration in health status of her. b) The petitioner reported for duty on 10.09.2018, on the same date it was conveyed to her that she was seven months pregnant but with no complications.
V. Accordingly the Petitioner was asked to wait pending clarification from the HQ as there are no clear instructions or guidelines or rules as to whether pregnancy can be construed as deterioration of health.
VI. The petitioner was intimated that as per The Competent Authority she was unfit to join service vide letter dated on 15.09.2018.
VII. The petitioner approached the Honāble High court under article 226 of Indian Constitution as she does not receive any response for her request to hold a vacancy for her to join service after delivering the child.
VIII. Based on the facts the case rests on the Honāble High Court.
I, ____________________________ son of ____________________ Indian, aged about _____________ residing at ___________________ having temporarily come down to Chennai, do hereby solemnly affirm and sincerely state as follows:
1. I am Respondent herein and as such I am well acquainted with facts and circumstances of the case. I am duly authorize to depose to this counter affidavit on behalf of the Respondent as well. 2. I submit that the present writ petition filed by the Petitioner to direction to call for the records pertained in the impugned letter issued by the Respondent on 15.09. is illegal and to quash the same and pass further order deem to fit and proper for the circumstance of the case.
8. It is further stated that the newly commissioned Medical Officers are first directed to report to a Military Hospital where they are expected to learn about the functioning of Armed Forces Medical Services. Within a few months thereafter, subject to availability of training facility at Officers Training College, AMC Centre & College, Lucknow the newly commissioned officers are detailed to undergo 02 months of training called as Medical Officers Basic Course (MOBC). This course includes Military training which involves strenuous physical exercise along with weapon training as well and the basic qualification requirement (OR) for the course is medical category SHAPE-1. The officers on successful completion of the course are posted to units deployed in Field/Counter Insurgency Areas wherein they are expected to provide medical cover to the troops in close combat support. The petitioner being seven months pregnant was in no position to undertake the training activities or service in field/CI Ops area expected out of a newly commissioned Medical Officer. 9. It is stated that even in case of serving lady officers the guidelines for disposal of pregnant lady officers as laid down at para 62 of AO 09/2011/DGMS clearly delineates that pregnant lady officers should be placed in Medical Category P-2 if asymptomatic and P-3, if symptomatic immediately on the diagnosis of pregnancy. It further stipulates that the lady officers should be advised to begin their maternity leave by the end of the second trimester (six months of pregnancy) or beginning of the third trimester. The petitioner who was admittedly in the beginning of the third trimester of pregnancy was in no position to render services as expected of a newly commissioned officer and was ineligible for grant of commission as such. 10. Justifying the denial of her request to keep a post vacant for her so as to enable her to join after delivering the child, it is stated that as per para 5 of the offer of appointment no request of change of service, place of posting or extension of date of joining could be accepted. The vacancy which remains unsubscribed due to any reason is passed on the candidate next in the merit list prepared at the time of interview. In the aforesaid facts, the question that arises is whether the denial of appointment to the petitioner holding her to be `unfit' solely on account of pregnancy is legal and justified? Consequently, is Page 5 of the Appendix to DGAFMS/DG- 3A letter No. 9450/USG Abd/DGAFMS/DG-3A to the extent it lays down that detection of pregnancy would render a candidate UNFIT for commissioning legal and Constitutional?
11. Further submit that after inspection reported for duty on 10.09.2018 a remark was entered that she was UNFIT join in the service and intimate to her vide letter dated 15.09.2018. 12. It is further submitted that, hence the grounds raised by the petitioner in her affidavit does not have any stand and same is repeated and hence there is noe necessity for rebutting the same, It is therefore, submitted that the grounds raised by the petitioner in support of her affidavit does not have any stand.
It is humbly prayed before this Honourable Court that the Petitionerās claim is not in clarity and in imaginative. So, please dismiss this writ petition.
Solemnly affirmed the contents of this affidavit at Chennai on this the 18th^ day march 2019 and signed his name in my presence.
Before Me
51A (c) (d)?
The writ petition filed by the petitioner before the Honāble High Court is not maintainable as the petition is baseless because of ambiguous āMOTTOā.
51A (c) (d)?
Article 51A is confined to āCITIZENSā unlike some of the articles relating to fundamental rights (e.g.: Art.21) which extend to āALL PERSONSā. As a citizen willing to sacrifice his/her life for Sovereign operation should abide by the fundamental duties as enumerated in the Supreme Law of the Land.
The Maternity condition of the petitioner clearly states her inability to participate in army training program which is very rigorous & mandate for all of the Indian Army Trainees, so no leniency can be shown on her during the training period.
Holding up a vacancy explicitly curtails the opportunity of candidates completely fit and eligible to join the service as the learned counsels know that this is the purest way of discrimination.
Holding up a vacancy till completion of her maternity period is merely a game of uncertainty as maternity is a unique play of nature.
51A (c) (d)?
Provisions as to fundamental duties cannot be enforced by writs. They can be promoted only constitutional methods.
PART IVA ARTICLE 51(c) (d) reads as follows ARTICLE 51A. FUNDAMENTAL DUTIES. ---IT SHALL BE THE DUTY OF EVERY CITIZEN OF INDIA----
(c) TO UPHOLD AND PROTECT THE SOVEREIGNTY, UNITY AND INTEGRITY OF INDIA;
(d) TO DEFEND THE COUNTRY AND RENDER NATIONAL SERVICE WHEN CALLED UPON TO DO SO.
From the learned facts it is known that the petitioner had been selected for grant of SSC in the rank of captain. Requesting the competent authority to hold the vacancy implicitly means her intention of avoiding the fundamental duty stated in art. 51A (c) (d). When she was called upon to report for duty it was found that she was unfit to join the service. As learned counsels we all know that rendering service as a captain in Indian Army Medical Corps is like being a part of Nationās Security, which is obviously a Sovereign function
a) Firstly, it is not a layman job to bundle up the undone works to be completed later. b) Secondly, the rank of captain in Army Medical Corps is for contingency purpose like wars, surgical attacks, and immediate medical need of a soldier whoās life at stake in the course of defending our nation. c) Finally, the recruitment of the above stated post have a very important and inevitable reasons, so leaving a post vacant for private reason of the petitioner serves only injustice to vast group of selfless soldiers serving for our motherland.
It is a proven medical fact that during the course of maternity period the mother should not involve in hard physical labour which pushes both the mother and fetus to several complications which may endanger the life of both the mother and fetus.
a) The Maternity condition of the petitioner clearly states her inability to participate in army training programme which is very rigorous mandate for all of the Indian Army Trainee, hence no leniency can be shown on the petitioner b) Even though the petitioner undergoes the rigorous training if any physical injury occurs to her then who will be responsible? c) Whether the army personnels having the duty to train the selfless candidates who are all fit to join service or the petitioner who needs medical attention and assistance?
I, the standing counsel of respondent agree that there was no condition that the candidate had to unmarried but the advertisement apparently enforces a condition;
āThe tenure for the fresh candidates was five years extendable by another nine years in two spells first one five years and second one of four years, subject to eligibility ā
So, here āSubject to eligibilityā means the candidate should be capable of completing the training programme which involves physical risks. Though she was eligible at the time of issuance of appointment letter dated 16.02.2018 subsequently she became ineligible on 10.09.2018 while reporting to Commandant of Military Hospital for the commencement of employment. The petitioner was intimated the same on 15.09.2018. Therein the petitioner must aware of criteria of eligibility for the commencement of employment. In civil / tortious action āvolenti non fit injuriaā meaning "to a willing person, injury is not done". It is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict.
Volenti is sometimes described as the plaintiff "consenting to run a risk." We accept it is a rule of nature for a women to get pleasure from her motherhood but the predominant condition is to sacrifice our own pleasures and private life for serving in the Indian Army. So, holding up a vacancy explicitly curtails the opportunity of candidates completely fit and eligible to join the service.
Here in this case the prime objective is that the fresh candidate should be eligible during the commencement of employment. So, this might amount to the real gender discrimination which can be substantiated by Art.14 & 16 of the Indian Constitution.
ļ· Feelings of numbness and detachment ļ· Disturbing memories of the birth experience ļ· Nightmares ļ· Flashbacks ļ· Sadness, fearfulness, anxiety or irritability
ļ In rare cases, women may experience postpartum psychosis (PPP), a condition that affects about one-tenth of 1 percent of new mothers. Onset is quick and severe, and usually occurs within the first two to three weeks following childbirth. Symptoms are similar to those of general psychotic reactions such as delusions (false beliefs) and hallucinations (false perceptions), and often include:
ļ· Physical symptoms: Refusal to eat, inability to cease activity, frantic energy. ļ· Mental symptoms: Extreme confusion, memory loss, incoherence. ļ· Behavioral symptoms: Paranoia, irrational statements, preoccupation with trivial things. ļ· A woman who is diagnosed with PPP should be hospitalized until she is in stable condition. Doctors may prescribe a mood stabilizer, antipsychotic or antidepressant medications to treat postpartum psychosis. Mothers who experience PPP are highly likely to suffer from it again following their next pregnancy.
ļ Having a C-Section may having a lifetime risks are followed ļ· Infection ļ· Surgical injury to your bladder or intestines ļ· Amniotic fluid embolism (amniotic fluid or fetal material enters the maternal bloodstream) ļ· Inflammation of the uterus ļ· Bleeding ļ· Risks to future pregnancies
ļ Although India had developed rapidly in the past decades and well equipped in medical facilities but still Maternal Deaths are not fully eradicated.
So, the above mentioned complications may result in deterioration of health status of the petitioner. From the learned fact a medical report issued to the petitioner with a remark that āshe was seven months pregnant but with no complicationsā. In the present era of uncertainty it is not sure the delivery of the petitioner will occur without complications.
The request of the petitioner to hold the vacancy until the delivery of her is merely a theory of risk which will results in trashing of time, manual and financial resources of the sovereign government.
