Any adequately qualified woman cannot be denied of her right to be considered for employment on the basis of her gender and because the nature of work would require her to work at night, the Kerala High Court observed on Friday, 16 April, LiveLaw reported.
Justice Anu Sivaraman noted that protective provisions cannot stand in the way of a woman being considered for a job, for which she is otherwise eligible, LiveLaw reported.
The court quashed the curb in the notice for a job that allowed only male candidates to apply for the post. As per the HC, the said embargo violated the provisions of Articles 14, 15 and 16 of the Constitution.
The court said, "It is the bounden duty of the respondents who are the government and government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. If that be so, there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours," LiveLaw quoted.
The notification, issued by Kerala Minerals and Metals Limited, a public sector undertaking in Kerala, was challenged by Treasa Josfine, an engineering graduate.
The Graduate Engineer Trainee (Safety) in the company stated that the notification, which only called for male candidates, was discriminatory and that her right to be considered for appointment as Safety Officer was violated.
Further, she also prayed for declaring Section 66(1)(b) of the Factories Act, 1948, unconstitutional as it was violative of articles 14, 15 and 16 of the Constitution, LiveLaw reported.
The mentioned provisions stipulate that no woman shall be required or allowed to work in any factory except between the hours of 6 am and 7 pm.
In its judgment, the HC referenced various previous judgments, in which it was held that the provisions of Section 66(1)(b) are favourable in nature and are used for protecting women from exploitation. The HC also pointed out a recent Supreme Court decision in the Secretary, Ministry of Defence, vs Babita Puniya and others [(2020) 7 SCC 469] case.
The SC had declared that an absolute bar on women seeking command appointment violated the guarantee of equality under Article 14 of the Constitution, noting that submissions premised on presumptions and stereotypes of socially ascribed roles in society result in gender discrimination against women and violate their fundamental rights, LiveLaw reported.
The court said Section 66(1)(b) can be operated and exercised only as a protection and cannot be employed an excuse to deny engagement to a woman who does not need the protection anymore.
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