Allahabad High Court
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Allahabad High Court: While dismissing the writ petitions filed challenging the different criteria set for men and women in the Physical Eligibility Test as notified for the Excise Constable (General Selection), Examination 2016, Saurabh Shyam Shamshery, J. held the same to be non-arbitrary in nature.

Petitioners participated in recruitment process to the post of ‘Excise Constable' according to selection procedure prescribed under Uttar Pradesh Direct Recruitment to Group ‘C' Post in pursuance of an Advertisement issued by the U.P. Subordinate Service Selection Board. There were three major issues for consideration:

(a) Whether challenge to Rules of a recruitment process at instance of unsuccessful candidates would be permissible?

(b) Whether different set of criteria/yard stick for Physical Efficiency Test for male and female candidates has allowed arbitrariness being violative of Article 14 of the Constitution?

(c) Arbitrariness if any, has resulted into an anomaly which leads to selection of 143 female candidates i.e. much more than their 20% reserved quota of 81 seats?

Regarding issue (a) Senior advocate for the petitioner argued that petitioners approached this Court before final result was announced and had challenged the criteria of different yardstick for physical efficiency test for male and female being arbitrary. 143 female candidates were selected much beyond to their 20% quota (81 seats) and it is an eventuality which appears after the final result, as expected by the petitioners and therefore, this petition was filed even before final result was announced, therefore, present writ petition still maintainable at instance of the petitioners not withstanding being unsuccessful candidates.

Counsel appearing on behalf of respondents and other Advocates for other respondents opposed above submission that it is settled law that after participation in recruitment process upto the final stage, it is not open for an unsuccessful candidate(s) to challenge the criteria/rules of selection.

The Court reproduced the relevant pats of the judgment in Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 and Ramjit Singh Kardam v. Sanjeev Kumar, (2020) 20 SCC 209 noting that petitioners had participated in the recruitment process with open eyes, having complete knowledge of different criteria of physical efficiency test for male and female, however, when they anticipated likely to be unsuccessful in final result, they approached this Court just before declaration of final result, challenging the entire notification as well as criteria of physical efficiency test. Thus, the Court was of the opinion that the petitioners have to be estopped from challenging recruitment process as well as physical efficiency test being different for male and female after they have participated therein with open eyes.

Regarding issue (b) and (c) Senior Counsel on behalf of petitioners submitted that there was discrimination between male and female candidates in respect of their respective criteria for physical efficiency test being different and it was comparatively easy for female candidates to score more marks in comparison of male candidates.

Counsel for the Subordinate Services Selection Board submitted that criteria for male and female are on different yardstick details thereof were part of advertisement and also, mentioned in earlier part of this judgment. The different criteria were based on basis of different physical ability of a male and a female.

The Court opined that ground of arbitrariness appears to be baseless on face of it and as it is raised without considering the ratio behind fixing of different yardstick for physical efficiency test for male and female. The Court mentioned the examples of the recently held CommonWealth Games where the difference of criteria of physical efficiency test is based on physical strength of a male and a female as in number of research papers it has come that in a normal situation male has more physical strength than her female counterpart.

The argument to challenge criteria of female for physical efficiency test is not only without any legal basis but is also against women empowerment.”

The Court relied on Saurav Yadav vs. State of Uttar Pradesh & Ors, (2021) 4 SCC 542, wherein it has been categorically held if number of female candidates have satisfied their quota and have entered into general list, on their own, merit, then separate list of women candidates is not required. Thus, issue (b) and (c) was accordingly decided against the petitioners. concluding “Women empowerment can make the society powerful.”

[Pramod Kumar Singh v. State of U.P., Writ – A No. – 4225 of 2022, decided on 30-08-2022]

Advocates who appeared in this case :

Ajay Kumar Rai, Alok Mishra, Binod Kumar Mishra, Advocates, Counsel for the Petitioner;

C.S.C., Chandan Sharma, Siddharth Singhal, Uday Pratap Singh, Vinit Kumar Sharma, Seemant Singh, Advocates, Counsel for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUpSupreme Court Roundups

One of the most popular and auspicious festivals of India, Navratri or Durga Pooja is being celebrated in the country since time immemorial. The legend of Navratri and its origin revolves around the mighty demon, Mahishasura who, having obtained the blessing of immortality from lord Shiva started aiming to win Trilokas (Prathvi, Narka, and Swarg). The might of Mahishasur could be imagined by the saying that he had made even the Devine Trinity/Tridevas (Brahma, Vishnu, and Shiva) helpless as only a woman could defeat him.

To redeem the world from the atrocities of Mahishasura the Trinity created goddess Durga to win over the demon. The battle between goddess Durga and Mahishasur continued for 9 nights, where the devil kept changing his forms to confuse the goddess and at the end of the ninth night, Goddess Durga beheaded Mahishasura and marked her victory over the evil. These nine nights are known as Navratri, while the tenth day is Vijayadashmi, the tenth day that brought the morning of victory.[i]

Interestingly, this year the President had appointed 9 Supreme Court Judges, including 3 women. Therefore, to celebrate the Shakti of Women and her remarkable triumph over the devil of patriarchy, we have curated the 9 remarkable judgments from the Supreme Court of the country to the High Courts that strengthen the path of women empowerment:

1. ‘Not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces’; Army’s evaluation of Women SSC Officers for grant of permanent commission arbitrary: SC

In major win for women Officer in Indian Army, the division bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational.

Read More…

2.Supreme Court issues interim direction allowing women to participate in NDA exams

Taking a significant step towards gender equality, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., issued interim direction permitting the women candidates to take part in the National Defence Academy (NDA) examination.

Read More…

3. Raj HC directs State to take necessary steps for constitution of Rajasthan State Commission for Women as mandated by S. 3 of Rajasthan State Commission for Women Act, 1999

A Division Bench of Manoj Kumar Garg and Sangeet Lodha JJ. directed State to take necessary steps for constitution of Rajasthan State Commission for Women(‘the Commission’) as mandated by section 3 of the Rajasthan State Commission for Women Act, 1999.

Read More…

4. Bom HC | Can a transgender contest election from a seat reserved for women candidate? HC espouses transgender people’s “Right to Self-Perceived Gender Identity”

A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner….(and had) opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”  

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5. Kar HC | “The best thermometer to the progress of a nation is its treatment of its women” Court quoted Swami Vivekananda and Bhagavad Gita while confirming sentence of acid attack accused

A Division Bench of B. Veerappa and V. Srishananda, JJ., allowed the appeal in part and confirmed impugned judgment of conviction and order of sentence. The Court observed that the Court cannot shut its eyes to obnoxious growing tendency of young person like accused resorting to use corrosive substances like acid for throwing on girls, causing not only severe physical damage, but also mental trauma to young girls.

Read More…

6. Ker HC| Muslim women’s right to Khula (extra-judicial divorce) revived; Patriarchal decision in K. C. Moyin overruled.

The Division Bench of A. Muhamed Mustaque and C. S. Dias, JJ., addressed the controversial question regarding rights of Muslim women, i.e.  Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939? The Bench expressed,

“These cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”

Read More…

7. Del HC | PIL seeking paid leave to women employees during menstruation: Centre & State Govt. to consider PIL as representation

In the PIL, it was sought that 4 days leave be granted to all classes of women employees and to pay overtime allowance to menstruating women employees if they opt to work during that period. Various other reliefs such as period rest, clean and separate toilets along with the provision of sanitary napkins be provided to women during their menstruation period.

About the daily wage, muster roll, contractual and outsourced workers, the plea had said they also face severe difficulties during menstruation as their work places lack adequate sanitation and clean toilets and they are not given the facility of earned or sick leave by their employers.

Read More…

8. Ori HC | Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

A Division Bench of S. K. Mishra and Savitri Ratho, JJ. allowed a same-sex couple to live in together and to provide them with all kinds of protection as enshrined in Part III of the Constitution. The Bench held,

“Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation…”

Read More…

9. Ker HC| [Transgender in NCC] “We cannot take recourse to the outdated provisions of 1948 to deal with the realities of life in the year 2021”; Kerala HC directs NCC to consider enrolment of a trans woman in the female wing

“The continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India.”

Read More…

† Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 


Op EdsOP. ED.

“Unwomanly” and “arrogant”: These were some of the comments which Valli Arunachalam, the fourth-generation scion of the Murugappa group (Group), would have to face when she presented her candidature for possibly becoming the first woman director at Ambadi Investments Limited (AIL), the holding company of the Group. As Valli rested her candidature on the combined 8.15% stake inherited from her father in light of Vineeta Sharma v. Rakesh Sharma[1], her campaign came to an abrupt end when 91% of the Board voted against[2] her  candidature in its 79th AGM held on 21-9-2020. While such gender disparity scandals on the Boards of Indian family conglomerates are not unheard of, the issue seems grave when viewed in light of the oft-flouted corporate governance policies established for the same with regards to the listed entities.

The policy measures adopted by the Indian Government and the Securities and Exchange Board of India (SEBI) have led to an increment[3] in the number of women Board members in India from a lowly 5% in 2013 to a moderate 15% in 2019. However, Indian companies have rarely inducted more women on their Boards than the minimum stipulated requirement; only 2.2%[4] of the Nifty-500 firms had more than three women in their boardrooms (2019). Despite various studies[5] showing a positive correlation between the number of women in senior positions and the firm’s performance, there were less than 5% women CEOs in India in 2019[6]. As per the NSE (National Stock Exchange) Infobase (data as on 21-4-2021), there are presently only 2044 women directors in NSE-listed companies as compared to 11416 directors in total. 1235 out of 5524 independent directors are female while 75 NSE-listed companies have no women directors on their Boards.[7]

Apropos of the above, the authors have herein tried to highlight the current mandate of gender diversity in Indian boardrooms and the shortfalls in the present framework along with providing probable suggestions to promote gender diversity at the top echelon of Indian corporate structures.

Extant framework

As examined below, the current framework is a mix of statute, rules and guidelines:

(a)  The Companies Act, 2013 (Act) first introduced a provision mandating a woman director and laid the groundwork for the beginning of adequate representation in Indian boardrooms. The second proviso to Section 149(1) of the Act specifies that such class or classes of companies as may be prescribed shall have at least one-woman director.[8]

(b)  The Companies (Appointment and Qualification of Directors) Rules, 2014 (Rules) elucidates on the statutory provisions enshrined in the Act and specifies the classes of companies that shall have at least one-woman director. As per Rule 3[9], these are:

  1. Every listed company.
  2. Every other public company with either a paid-up capital of INR 100 crores or more, or a turnover of INR 300 crores or more.

A specified company under the provisions of the rule has six months from the date of incorporation to comply with the provisions. Furthermore, in case such a woman director resigns then the company has to fill the vacancy at the earliest but not later than 3 months or the next meeting of the Board, whichever is later.

(c) Section 450 of the Act deals with “punishment where no specific penalty or punishment is provided”.[10] While the second proviso to Section 149(1) and Rule 3 both do not specify any penalty or punishment for non-compliance, Section 450 prescribes punishment for contravention of such provisions. It lays down a structure of fines for companies, officers of such companies or any other person which can extend to INR 2 lakhs for companies and INR 50000 for individuals/officers.

(d) An Equity Listing Agreement is a 54-clause agreement executed between the stock exchange and the entity which is being listed on it. The main purpose of this agreement is to ensure that companies follow good corporate governance practices. The stock exchange on behalf of the market regulator (SEBI) ensures that listed entities comply with the agreement. Clause 49(II)(A)(1) of the agreement specifies that the Board of Directors (BoD) of the company shall have at least one-woman director.[11] The timeline to comply with the same was till 31-3-2015. SEBI vide its circular dated 8-4-2015 prescribed a fine structure for non-compliance with Clause 49(II)(A)(1).[12] Pursuant to this circular, several listed entities were fined by stock exchanges.[13]

(e) The market regulator, SEBI, has a series of regulations to govern and regulate listed entities. Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (Regulations) is one such set of regulations used by SEBI to regulate listed entities. Regulation 17(1)(a) provides that a listed entity should have at least one-woman director on its Board.[14]

To facilitate the implementation of these Regulations, SEBI released a circular dated 22-1-2020 on streamlining of fines for non–compliance of listing obligations and disclosure requirements (LODR) by listed entities and standard operating procedure (SoP) for suspension and revocation of trading of specified securities (circular).[15] Annexure I of this circular prescribes a fine of INR 5000 per day for non-compliance by a listed entity with the provisions of Regulation 17(1). As per Annexure II, non-compliance, and non-payment of fine can result in freezing of shares of the promoter(s). Non-compliance with the provisions of Regulation 17(1) for two consecutive quarters can result in the scrip (share/stock of a listed entity) of the entity being placed in category Z. This means that the scrip is suspended from trading and cannot be traded intraday. The scrip is thus traded on a “trade for trade” basis only on selected days which are specified by the regulator. Pursuant to this, a number of entities were fined[16] under a previous version[17] of these SOPs issued in 2018 for not complying with the Regulations.

The way forward

Based on the above regulatory framework, the authors have observed certain areas which, if given further focus, could help in moving the mandate beyond mere representation, towards equality.

(a) The Ministry of Corporate Affairs, by way of a notification dated 4-1-2017 excluded “Specified International Financial Services Centres (IFSC) Companies” from the purview of the second proviso to Section 149(1) of the Act.[18] While the overall purpose of the said notification was to reduce statutory compliances/hurdles that specified IFSC Companies have to deal with, the issue of ensuring adequate representation of women in BoD should not be reduced to something that is looked upon as a mere statutory compliance/hurdle for a company.

(b) As per the second proviso of Rule 3 of the Rules, any intermittent vacancy of a woman director shall be filled-up by the Board at the earliest but not later than immediate next Board meeting or three months from the date of such vacancy, whichever is later. A maximum period of 120 days is permissible between two board meetings. Thus, any intermittent vacancy of a woman director must be filled up between 90-120 days by the Board. However, Annexure II, Paragraph 2 point (a) of the SEBI circular dated 22-1-2020[19] allows listed companies a period of 180 days (two consecutive quarters) to not comply with LODR Regulation 17(1) before action is initiated for suspension of trading of shares of the said entity. This period in the circular should be reduced to be in consonance with the period stated in Rule 3.

(c) Although the provisions for both independent and women directors are corporate governance measures, however, the dissonance therein is apparent. Rule 3 of the Rules mandates that every public company with either a paid-up capital of INR 100 crores or more or a turnover of INR 300 crores or more must have at least one female director. Rule 4 mandates that every public company with either the paid-up share capital of INR 10 crores or more or turnover of INR 100 crores or more must have independent directors.[20] Thus, in order to widen the base of companies having the gender diversity mandate, it is advisable to lower the pecuniary threshold limits in Rule 3 in a phased manner to a level similar to that in Rule 4.

(d) At present, the Companies Act, associated rules, and SEBI Regulations prescribe one woman director. To increase the number of women directors, this number can be revised to a proportion or a fraction of the Board for certain specified entities.

Concluding remarks

As is indicated from the aforesaid discussion, a holistic framework has been developed in the nation to encourage the representation of women in key positions at corporates. However, the latest figures given by the NSE suggest a stark contrast between the ideated measures and ground realities. The need of the hour is strict implementation of the above framework and modification of the same to increase compliance and coverage rates.

4th year BA, LLB (Hons) student at Rajiv Gandhi National University of Law, Punjab.

†† 4th year BA, LLB (Hons) student at Rajiv Gandhi National University of Law, Punjab.

[1] (2020) 9 SCC 1

[2] See, “Murugappa Group Family Feud Rages On; Valli Arunchalam Denied Board Position

[3] See, “More Women are Joining Boards but Few Get Corner Office

[4] Ibid.

[5] See, IMF Working Paper titled “Gender Diversity in Senior Positions and Firm Performance: Evidence from Europe

[6] Supra note 3.

[7] See, NSE Infobase

[8] S. 149(1), Companies Act, 2013

[9] R. 3, The Companies (Appointment and Qualification of Directors) Rules, 2014

[10] S. 450, Companies Act, 2013 

[11] Cl. 49(II)(A)(1), Equity Listing Agreement

[12] SEBI Circular dated 8-4-2015

[13] See, “Woman Directors: 1,375 BSE, 191 NSE Companies Fined for Non-Compliance”

[14] Regn. 17(1)(a), Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015

[15] SEBI Circular dated 22-1-2020

[16] See, “NSE Penalises 250 Companies for Non-Compliance with Listing, Disclosure Norm”

[17] SEBI Circular dated 3-5-2018

[18] Ministry of Corporate Affairs Notification dated 4-1-2017

[19]Supra note 15.

[20] R. 4, Companies (Appointment and Qualification of Directors) Rules, 2014

Case BriefsSupreme Court

Supreme Court:

“The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services.”

Granting relief to women candidates who could not appear for the physical test during the selection process for Bihar Police held in 2018 because of their pregnancy, the Court has directed the Bihar Police Subordinate Service Commission to conduct a fresh test for such applicants. The bench of Sanjay Kishan Kaul and Krishna Murari, JJ has asked the Commission to conduct the physical test of the candidates and adjust them against vacancies notified this year. The Court said,

“We are of the view that not only the appellant but all such candidates who sought deferment on account of pregnancy alone should be called for PET.”

It was brought to the Court’s notice that the total number of ladies who claimed extension of PET on the basis of pregnancy or injuries is stated to be 78 in all, out of which 73 are on account of pregnancy. Noticing that it is on the prodding of the Supreme Court that these examinations were held, the Court said that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. The Court, hence, held that

“it is a fit case where the benefit should be made available to the candidates who may be in the advance stage of pregnancy at the relevant stage of time but have otherwise qualified the test.”

The Court, hence, directed that out of the candidates so called those who qualify the PET and are otherwise found in the merit for appointment alone would be eligible to be considered for appointment, subject to verification of the factum of pregnancy. Such process should be completed within a period of two months. All such people will, however, take merit at the bottom of the current list as it is the vacancies which are now advertised against which the candidates are being adjusted.

The bench, however, clarified that the aforesaid direction was a one-time measure as now the examinations are being held periodically. It, said,

“We are not inclined to open a flood gate effecting the sanctity of the future examination.”

Case Timeline

  • Bihar Police Subordinate Service Commission issued advertisement dated 16th September, 2017 to fill the vacancies for the post of Police Sub Inspector in the State of Bihar.
  • Preliminary examination was conducted on 11th March, 2018
  • Main examination was conducted on 22nd July, 2018.
  • Physical Evaluation Test (PET) which was scheduled for 25th September, 2018.
  • The appellant being in advance stage of pregnancy where the delivery was expected in the month of October, 2018 sought an extension of PET for three to six months on account of being completely on bed rest as advised by the doctor.
  • There was no response to this representation and the appellant thus filed a writ petition before the Patna High Court which was allowed by order dated 3rd October, 2018, directing the Commission to fix any date after two months after informing her of the date of the PET.
  • The Division Bench overturned this decision on 1st March, 2019.

[Khushbu Sharma v. Bihar Police Subordinate Service Commission, 2019 SCC OnLine SC 1323, order dated 27.09.2019]

Hot Off The PressNews

Supreme Court: The bench of NV Ramana and Ajay Rastogi, JJ has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years. It issued notice to the Centre on a batch of petitions seeking to declare The Muslim Women (Protection of Rights on Marriage) Act 2019 as “unconstitutional” on grounds that it allegedly violates the provisions of the Constitution.

Senior advocate Salman Khurshid said there were many dimensions, including making the practice a punishable offence and jail term of up to three years, which need to be examined by the top court. He said the petitioners were concerned about making the practice of triple talaq among Muslims an offence as the apex court had already declared it to be null and void. Referring to a five-judge Constitution bench verdict which had declared the practice of triple talaq among Muslims as null and void,

“If there is no such thing as triple talaq then what are they making an offence,”

To this the bench asked, suppose if a religious practice is declared as null and void and it is declared as an offence like dowry and child marriage, but if it still goes on then what is the remedy. Responding to the query, Khurshid said several aspects have to be examined and in the triple talaq matter the Constitution bench had already said the practice is void. He said it has to be examined whether the religious practice denies the rights to the woman.

The bench, while agreeing to examine the validity of the 2019 Act, observed that petitioners have also raised the issue of punishment of up to three years and grant of bail to the husband only after the woman is heard by the court.

In the plea filed through advocate Ejaz Maqbool, Jamiat Ulama-I-Hind has claimed that since the pronouncement of talaq by a Muslim husband upon his wife had already been declared “void and illegal”, there was no requirement to enact the law.

“However, the impugned Act criminalises the act of pronouncement of talaq by a Muslim husband and makes it a cognizable offence, without appreciating that such pronouncement had already been declared unconstitutional and amounted to nullity in the eyes of law,”

Referring to the provision of the Act which stipulates punishment of up to three years jail along with fine, the plea said it is an “ill-conceived provision which imposes excessive and disproportionate punishment.”

It claimed that “criminalising a mode of divorce in one particular religion while keeping the subject of marriage and divorce in other religions only within the purview of civil law, also leads to discrimination, which is not in conformity with the mandate of Article 15”.

Article 15 of the Constitution deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(Source: PTI)

Also read:

Triple Talaq void & illegal | Parliament passes the Muslim Women (Protection of Rights on Marriage) Bill, 2019!

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority