High Court
Legal Reasoning
1 WP / 766 / 2025 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 766 OF 2025Yogeshwari D/o Sakharam Sontakke,Age : 33 years, Occu. Service asAgri. Field Officer (Now terminated),R/o Ramkrushna Nagar,Near Hanuman Mandir,Basmath Road, Parbhani.. Petitioner Versus1] Maharashtra State Seeds Corporation Limited, Akola, Mahabeej Bhavan, Krushi Nagar, Akola, Through its Managing Director2] The District Manager, Maharashtra State Seeds Corporation Limited, Latur, APMC Building, Shri Chhatrapati Shivaji Market Yard, Latur, Dist. Latur.. Respondents ...Advocate for the petitioner : Mr. Manish P. Tripathi... CORAM : MANGESH S. PATIL & Y. G. KHOBRAGADE, JJ.DATE : 27 MARCH 2025ORDER (MANGESH S. PATIL, J.) :Heard the learned advocate for the petitioner.2.The petitioner is impugning the order dated 13.09.2024whereby he has been relieved from employment for being unable tocomplete the probation period satisfactorily from the post of AssistantField Officer. 2 WP / 766 / 2025 3.Learned advocate for the petitioner would take us throughthe papers and would submit that she was appointed on the post on30.06.2016 on probation. Initially, she was posted at Parbhani andthen was transferred to Latur in the year 2018. She was workingsincerely and diligently. Her husband met with an accident for whichshe had to proceed on leave for around 18 days. She then developedpregnancy related complications and was advised bed-rest. She wasdenied admissible leave. She proceeded on leave without pay for aperiod of six months. She had made representation against herconfidential records for the years 2016-2017 and 2017-2018. She washeard on video-conference. She submitted a detailed representation.She was called upon to furnish evidence when she put up seriousgrievance against the then District Officer, Parbhani. A miscarriageoccurred on 19.10.2019 and she resumed the duties on 20.01.2020.Thereafter, she gave birth to couple of children on 05.01.2022 and27.09.2023 during which period she was on maternity leave. Herservice record was purposely marked as average by the officer againstwhom she had made a grievance. For the period 2019-2020 and2020-2021, she was found to be good and in spite of positive report forsatisfactory completion of the probation, the impugned order waspassed. 3 WP / 766 / 2025 4.Mr. Tripathi would further submit that in order to judge theperformance of the petitioner and similarly placed employees,examination was conducted of all the probationers. Accordingly, shehad appeared at the examination on 30.11.2022. Nothing wasinformed to her about her performance. By the communication dated25.04.2023, she was informed that she could not be confirmed andultimately, by the impugned communication, she has been terminated.5.Learned advocate Mr. Tripathi would submit that thetreatment given to the petitioner, who is a woman having pregnancyrelated complications and was required to proceed on maternity leaveon couple of occasions and the approach of the respondents in thatregard undermines the principles laid down in Sarita Chaodhari Vs.High Court of Madhya Pradesh and another (writ petition (C) No.142 of 2024) decided on 28.02.2025.6.We have considered the submission of the learnedadvocate for the petitioner and perused the papers including thedecision of the Supreme Court in the matter of Sarita Choudhari(supra).7.At the outset, it is necessary to bear in mind theobservations of the Supreme Court in the matter of Sarita Choudhari(supra) wherein it had analyzed the service record of the appellantsand a holistic view was taken in the matter of women workforce with 4 WP / 766 / 2025 specific reference to the Indian Judiciary. The resounding note wasstruck in paragraph no. 17 which reads as under:Women Workforce: Women in the Indian Judiciary:17. To holistically understand women’s effective participation in theJudiciary, it is important to look at three main phenomena: (I) the entryof women into the legal profession; (II) the retention of women andgrowth of their numbers in the profession; and (III) the advancement ofwomen, in numbers, to senior echelons of the profession.17.1 Many have stressed that increased diversity within a judiciary, andensuring judges are representative of society, enables the judiciary asa whole to better respond to diverse social and individual contexts andexperiences. It is a recognition of this fact that a greater representationof women in the judiciary, would greatly improve the overall quality ofjudicial decision making and this impacts generally and also specificallyin cases affecting women.17.2 Advancing women’s greater participation in the judiciary alsoplays a role in promoting gender equality in broader ways:a. Female judicial appointments, particularly at senior levels, can shiftgender stereotypes, thereby changing attitudes and perceptions as toappropriate roles of men and women. b. Women’s visibility as judicial officers can pave the way for women’sgreater representation in other decision-making positions, such as inlegislative and executive branches of government.c. Higher numbers, and greater visibility, of women judges can increasethe willingness of women to seek justice and enforce their rightsthrough the courts.17.3 Article 10 of the International Covenant on Economic Social andCultural Rights states that special protection should be accorded tomothers during a reasonable period before and after child birth. Article11 of CEDAW states that in order to prevent discrimination againstwomen on the grounds of marriage or maternity and to ensure theireffective right to work, State Parties shall take appropriate measures,which can be extracted as under:(a) The right to work as an inalienable right of all human beings;(b) The right to the same employment opportunities, including theapplication of the same criteria for selection in matters of employment;(c) The right to free choice of profession and employment, the right topromotion, job security and all benefits and conditions of service and 5 WP / 766 / 2025 the right to receive vocational training and retraining, includingapprenticeships, advanced vocational training and recurrent training;(d) The right to equal remuneration, including benefits, and to equaltreatment in respect of work of equal value, as well as equality oftreatment in the evaluation of the quality of work.17.4 The freedom from discrimination or equal protection of the lawsduring pregnancy and maternity of a woman are precious rights forwomen workforce. If pregnancy results in the birth of a child, it bringsnot only joy to the parents of the child but also a sense of fulfilment tothe young mother. On the other hand, a pregnancy miscarriage hasdeep physical, mental and psychological aftereffects on a woman.Miscarriage is generally defined as a loss of pregnancy before viability.Psychological consequences include increase in the risk of anxiety,depression, post-traumatic stress disorder, sometimes leading tosuicides. Recurrent miscarriage leads to obstetrics complications andlong-term health problems. Although there is varying amount ofphysical aftereffects including backache and abdominal pain involvedin miscarriages, the psychological and social effects may be moresevere and long lasting. A miscarriage affects a person’s identity,leading to disappointments and challenges to motherhood identity androle, stigma and isolation, amongst other aspects. A number of riskfactors predisposing women to experience significant psychologicaldistress following miscarriage have also been identified. There couldbe psychiatric illness and a previous pregnancy loss could lead toincrease in chances of severe psychological distress.117.5 In Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469, thisCourt castigated the State’s perpetuation of anachronistic gender rolesbased on sex stereotypes which have long discriminated againstwomen. Reliance was placed by the State on the “inherentphysiological differences between men and women” to effectivelysuggest that the “weaker” sex may not undertake tasks that are “tooarduous” for them. This Court rejected the State’s arguments findingthem to not constitute a constitutionally valid basis for denying equalopportunity to women officers.17.6 In Nitisha v. Indian Army, (2021) 15 SCC 125, this Courtsignificantly advanced Indian jurisprudence on indirect discrimination.In this case, this Court explained how the facade of certain structuresas harmless and as a “norm” may in reality reflect the ‘insidiouspatriarchal system’. Cognizant of the transformative intent of ourconstitutional project, this Court noted the need to rebuild societal and1 See: V Klier, P Geller and J Ritsher, 'Affective Disorders in the Aftermath of Miscarriage: A Comprehensive Review' (2002) 5Archives of Women's Mental Health 129-149; Siobhan Quenby and others, ‘Miscarriage Matters: The Epidemiological,Physical, Psychological, and Economic Costs of Early Pregnancy Loss' (2021) The Lancet, May; P Gerber-Epstein, RDLeichtentritt and Y Benyamini, 'The Experience of Miscarriage in First Pregnancy: The Women’s Voices' (2008) 33(1) DeathStudies 1-29; OB Van den Akker, 'The Psychological and Social Consequences of Miscarriage' (2011) 6(3) Expert Review ofObstetrics & Gynecology 295 6 WP / 766 / 2025 legal structures to realise equal opportunity in public employment andgender equality.17.7 Much like ‘it is not enough to proudly state that women officers areallowed to serve the nation in the Armed Forces’, it is not enough tofind comfort solely in the growing number of female judicial officers ifwe are unable to secure for them a sensitive work environment andguidance. The High Court has erred in acting agnostic to, inter alia,claims of insubordination of petitioner-Sarita Chaudhary and acutemedical and emotional conditions battled by petitioner-Aditi KumarSharma. Despite still reeling from the effects of a severe case of Covid19 and a miscarriage, the ACR for 2021 of petitioner-Aditi KumarSharma was downgraded by the Portfolio Judge from ‘B-Very Good’ to‘C- Good’ only considering ‘pendency and disposal’. While gender isnot a rescue for poor performance, it is a critical consideration whichmust weigh for holistic decision-making at certain times and stages of awoman judicial officer.8.In our considered view, the circumstances in which theSupreme Court had to deal with the issue in the matter of SaritaChoudhari was completely on a different footing. There were twowomen judicial officers whose probation period was stated to be notcompleted successfully and were terminated. Except the factors of thepetitioner being a woman and has been terminated for probation beingunsatisfactory, there is no similarity.9.Admittedly, the petitioner was appointed on probation inthe year 2016 and the impugned order has been passed in the year2024, meaning thereby that somehow she could remain in theemployment for a period of more than 8 years. Few of her confidentialreports were average and examination was required to be conducted inrespect of the probationers. Though she claims that legitimate leavewas denied to her, there is nothing on record to substantiate this, rather 7 WP / 766 / 2025 she admits to have proceeded on unpaid leave for a long period of sixmonths.10.Even if the petitioner seeks to invoke sympathy by pointingout that she had pregnancy related complications and miscarriage, allthese are the happening of the period May 2023 onwards, as can beseen from the applications filed by her with respondent no. 2 seekingmedical leave.11.Admittedly, she was extended an opportunity to test herproficiency and capabilities but could not succeed. Though she claimsthat a candidate who was similarly placed and had failed in that testhas been subsequently confirmed, there are no details. There isnothing to demonstrate that apart from failure at the test, even he hadsimilar career graph. Admittedly, petitioner’s her confidential recordwas average, she had also availed unpaid leave for six months.Therefore, she is not entitled to claim any parity on this count.12.The law is trite as regards the probationers. Having foundpetitioner’s performance to be not up to the mark for a period of morethan 8 years, having extended an opportunity to her to appear at thetest, subsequently called upon her and was extended an opportunity ofbeing heard and for the objective reasons, as detailed in the impugnedorder holding her performance not satisfactory that she has beenrelieved during the probation period. This Court with limited power
Decision
8 WP / 766 / 2025 under Article 226 of the Constitution in such cases cannot entertain thepetition. 13.The petition is dismissed. [ Y. G. KHOBRAGADE ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/