JUDGMENT

A.Muhamed Mustaque, J.

Two young lady doctors are before us in these original petitions. They became mothers while they were undergoing post- graduation in MD Radiodiagnosis. Dr.Athira P., the petitioner in O.P.(KAT) No.507/2023 availed maternity leave for six months and Dr.Arya G. Krishnan, the petitioner in O.P.(KAT) No.521/2023 availed maternity leave for four months. They successfully completed post-graduation in the month of December 2022. As a result, their compulsory senior residency programme commenced belatedly. Dr.Athira will complete her one-year compulsory senior residency programme only on 17/01/2024 and Dr.Arya will complete her senior residency programme only by 15/01/2024.

2. The Kerala State Public Service Commission (PSC) invited applications for the post of Assistant Professor in Radiodiagnosis on 16/10/2023, for 9 vacancies. The last date fixed for receiving the application was 15/11/2023. One of the prescribed qualifications is that candidates should have one year experience as Senior Resident in Radiodiagnosis in a NMC recognised Medical College after acquiring post-graduate degree. As we observed earlier, the petitioners would complete their senior residency programme only in 2024 January. They were not able to apply for the post notified as they did not have the prescribed qualifications as on the last date of receipt of the application. They approached the Secretary to Government (Health and Family Welfare Department) and the Director of Medical Education with a representation. They highlighted their problem that the delay occurred in completing the residency programme is due to the maternity leave availed by them and therefore, they may be permitted to apply for the post as they will complete their senior residency programme before the date of written examination proposed for the selection. The Government did not respond. The petitioners approached the Tribunal. The Tribunal noting that they do not possess the requisite qualification as on the last date of receipt of application, held that they cannot be permitted to apply for the post. They came with these original petitions under Article 227 of the Constitution. We, by an interim order, permitted them to apply for the post before the deadline provisionally; accordingly, they applied.

3. These original petitions depict a peculiar problem on the aspiration of women in public employment. And that calls upon us to answer whether becoming a mother entails denial of aspirations in public employment and should women be compelled to choose between career and motherhood. We may have to answer these questions touching upon constitutional principles qua the substantive equality.

4. The biological differences that exist may result in conscious or unconscious bias while developing rules and regulations in the matter of public employment. Our Constitution states about both formal and substantive equality. Formal equality is the result of a conscious approach to treat them equally without there being distinction or differences on gender attributes. Substantive equality on the other hand focuses on the space, if that space is not allowed to exist, it may result in discrimination based on sex. Thus, substantive equality allows us to create space, removing barriers that exist in gender attributes and accommodating differences. Sandra Fredman, Faculty of Law, Oxford University, in her article “Substantive equality revisited”, Sandra Fredman,Substantive equality revisited,Article in International Journal of Constitutional Law · July 2016.(I.CON(2016)Vol.14 No.3,712- 738),https://www.researchgate.net/publication/308182296_Substantive_equality_revisited , last visited on 11/12/2023 analysed substantial equality after adverting to judgments of US Courts and Canada and stated that right to equality should be capable of responding to real wrongs which must be sensitive to the wrongs experienced by women and other out-groups on account of their status and, further opined