Loading...

Even If Child Is Born Prior To Joining Government Service, The Servant Is Entitled To Maternity Leave: Rajasthan HC

While coming out stoutly in favour of the government servant right to maternity leave, the Rajasthan High Court has in a remarkable, righteous and recent decision titled Smt. Neeraj v. State of Rajasthan and others [S.B. Civil Writ Petition No. 4384/2020] delivered on December 7, 2020 held in no uncertain terms that the petitioner (a female government servant) is entitled to grant of maternity leave, irrespective of the fact that she had given birth to the child prior to her joining government service. The legal position on this now thus stands clarified. There can be no disputing it!

To start with, Justice Dinesh Mehta who has authored this latest, leading, learned, landmark and laudable judgment sets the ball rolling by first and foremost asking a key question in para 1 that, “The conundrum, which is required to be resolved in the present case, is, whether a candidate, who has given birth to a child prior to joining the Government service, is entitled for maternity leave under Rule 103 of Rajasthan Service Rules, 1951?

While dwelling on the key facts, it is then pointed out in para 2 of this notable judgment that, “Before venturing into such exercise, it would be apt to take note of certain dates, which have implication on the issue at hands:

(i)The petitioner gave birth to a child on 15.05.2016;

(ii) The petitioner was given appointment on the post of Physical Training Instructor (PTI), Grade-III on 04.06.2016; (iii) Petitioner gave her joining on 06.06.2016;

(iv) Petitioner applied for maternity leave on 21.06.2016; (v) Petitioner did not attend Office from 26.06.2016 to 10.11.2016 (142 days);

(vi) Petitioner’s application for maternity leave was decided vide order(s) dated 13.08.2018 and 17.07.2019; (vii) Petitioner’s services were confirmed w.e.f. 26.09.2018 (vide order dated 21.11.2019);

(viii) The writ petition filed on 19.05.2020.”

Moving on, it is then pointed out in para 3 that, “The petitioner, who was appointed on the post of Physical Training Instructor, Grade-III, vide appointment order dated 04.06.2016, mothered a baby boy on 15.05.2016, just a few days before receiving the appointment order.”

Be it noted, it is then brought out in para 4 that, “As the petitioner had to undergo a Cesarean Section she was not fit enough to join, but with a view to ward off adverse consequence of non-joining, she preferred to give her joining on 06.06.2016.”

While explaining further, it is then mentioned in para 5 that, “For the purpose of taking care of her child and herself, she moved an application for grant of maternity leave on 21.06.2016, while clearly mentioning that she has given birth to a child on 15.05.2016 by cesarean section and, thus, she will be unable to attend the duties. The petitioner had enclosed birth certificate and other relevant documents with the application so filed.” Para 6 then mentions that, “On 10.11.2016, the petitioner reported back on duties after remaining absent for 142 days.”

As it turned out, it is then revealed in para 7 that, “The petitioner’s aforesaid leave application (filed on 21.06.2016) came to be dealt with by the respondents firstly vide communication dated 13.08.2018 whereby 90 days’ leave without payment was sanctioned.”

While continuing in a similar vein, it is then stated in para 8 that, “By another communication dated 17.07.2019, the petitioner was sanctioned a total 142 days’ leave, out of which 90 days were considered as leave without payment as per communication dated 13.08.2018 and 52 days’ leave was treated as extra ordinary leave (EOL), that too without payment.”

To put things in perspective, para 9 then envisages that, “Despite completion of probation period of two years, the respondents extended petitioner’s probation period by 112 days and confirmed her services w.e.f. 26.09.2018, vide order dated 21.11.2019.”

As a corollary, it is then stated in para 10 that, “The petitioner has approached this Court with a grievance that the respondents are not justified in deferring petitioner’s confirmation for a period of 112 days. According to the petitioner, her confirmation ought to have been made effective from 05.06.2018. Petitioner has also called the orders refusing maternity leave in question.”

Truth be told, after hearing both the parties, it is then disclosed in para 21 that, “It would be profitable to have a perusal of the provisions of Rule 103 of the RSR, as existing on the date, when the petitioner applied for maternity leave. The same reads as infra:-

“103 :- Maternity leave may be granted to a female Government Servant with less than two surviving children upto a period of 180 days from the date of its commencement. However, if there is no surviving child even after availing it twice, Maternity Leave may be granted on one more occasion.

During such period, she will be entitled to leave salary equal to pay drawn immediately before proceeding on leave. Such leave shall not be debited to the leave account but such entry should be made in the service book separately.””

To be sure, it is then stated in para 22 that, “This beneficial provision has been incorporated with a view to enable an employee who has mothered a child to recover from post delivery issues and obviate the hardship faced by her, so as to observe the mandate of Maternity Benefit Act, 1961.”

On similar lines, it is also then brought out in para 23 that, “Though not directly in issue, but somewhat analogous provisions in relation to paternity leave also calls for a reference in the context of controversy in question. Rule 103A of the RSR reads as under:-

“103 A: Paternity Leave : A male Government servant with less than two surviving children may be granted paternity leave (maximum two times) for a period of 15 days during confinement of his wife i.e. 15 days before to three months after childbirth; and if such leave is not availed of within this period it shall be treated as lapsed.

During the period of such leave, the Government servant shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. Paternity Leave shall not be debited against the leave account but such entry should be made in the service book separately and may be combined with any other kind of leave (as in the case of maternity leave).

Such leave shall not be allowed in case of miscarriage including abortion of the Government servants wife.””

Needless to say, para 24 then makes it clear that, “A bare look at Rule 103 of the RSR shows that it is employee centric. It has no nexus or correlation with the date or event of child birth. The Rule confers upon a female Government servant with less than two children, a right to avail maternity leave of 180 days. Prerequisite conditions for such availment are- (i) a female should be a Government servant and (ii) she should have less than two surviving children.”

For the sake of clarity, it is then also mentioned in para 25 that, “As against this, if analogous provision contained in Rule 103A of the Rules (which deals with paternity leave) is taken note of, one would find that paternity leave has been linked with or has been given a direct connection with child birth and wife’s confinement. A father can avail such leave during period of confinement i.e. 15 days before to 3 months after child birth. In case such leave is not availed, it automatically lapses, is the mandate of Rule 103A of the Rules.”

What’s more, para 26 then states that, “A comparative and conjoint reading of Rule 103 and Rule 103A makes legislative intention crystal clear. A female Government servant or a mother can avail maternity leave for the period prescribed irrespective of the date of child birth; whereas a male Government servant can avail paternity leave for a period of 15 days during his wife’s confinement. In other words, the date of child birth, is significant in case of paternity leave, whereas it is not of much relevance in case of maternity leave.”

What also deserves to be noted is that para 27 then brings out that, “Another significant aspect is, use of expression – “from the date of its commencement”. Use of such expression too has an important bearing on the issue at hands. It is noteworthy that on the date of insertion of these Rules i.e. 06.12.2004, the legislature had considered it appropriate to confer such entitlement immediately. In other words, rule making authority intended to confer such benefit to all those employees, who had already given birth to a child on such date (06.12.2004), that is why such stipulation (from the date of its commencement) was made, without giving any reference of occurrence of delivery.”

More to the point, para 28 then states that, “In considered opinion of this Court, since on the date of promulgation of these Rules, an employee, who had already given birth, was entitled to avail maternity leave, it will not only be iniquitous, but also discriminatory to exclude an employee, who has given birth to a child a few days ahead of joining the Government service. Needless it is to say, that having joined pursuant to an appointment on substantive post, an incumbent becomes a Government Servant for all practical purposes and a mother’s maternity needs cannot eclipse, simply because she has joined the duties.”

No less significant is what is then stated in para 29 that, “Rule 103 does not create or confer right on the basis of date of birth. It simply provides that maternity leave may be granted to a female Government servant from the date of its commencement. Hence, if on the date of applying for such leave, if a female employee is in requirement of leave for natal needs and also for rearing or looking after the child, it should not, rather, cannot be denied.”

Without mincing any words, it is then observed in para 30 that, “Carving out ‘pseudo-distinction’ by contending that the petitioner was not a Government servant, when the child was born or in other words the child was born prior to joining, is contrary to the provisions of Rule 103 and is in direct conflict with the very purpose of the Rule. Such stance is arbitrary and inequitable, if not, inhumane.”

No wonder, it is then made clear in para 31 that, “Such being the position, this Court is unable to accept the sheet anchor of respondents’ arguments, so vociferously advanced by Mr. Soni, learned counsel for the respondent – State.”

To put it succinctly, it is then pointed out in para 32 that, “Adverting to the preliminary objection regarding delay and laches, this Court, feels that firstly the same is not available to the State and finds that it is liable to be rejected, in the extant factual backdrop.”

Going ahead, it is then stated in para 33 that, “Indisputably, petitioner’s leave application filed on 21.06.2016, remained unattended/unheeded for about two years. It ultimately came to be dealt with by the respondents vide order dated 13.08.2018 and 17.07.2019 – petitioner’s leave came to be sanctioned, but without pay.”

While adding more to this, it is then mentioned in para 34 that, “Leaving that apart, by way of an order passed on 21.11.2019, the respondents even proceeded to defer petitioner’s confirmation for a period of 112 days.” Para 35 then makes it clear that, “Being confronted with such situation, petitioner was constrained to take legal recourse.” Also, para 36 leaves no room for doubt by stating that, “Counting from such date i.e. 21.11.2019, instant writ petition, which has been filed on 19.05.2020, cannot be treated to be belated, by any stretch of argument.”

While adding more to it, it is then stated in para 37 that, “Regardless of what has been stated above, in considered opinion of this Court, the State cannot take such technical plea, particularly when an aggrieved party approaches the Court within a reasonable period i.e. three years from accrual of the cause of action. In such event, the Court is required to ascertain that no third party rights are involved and/or other employees are not adversely affected because of inaction of the petitioner. While opposing a petition on the ground of delay, State is also required to assert that because of the inaction of petitioner for long time, relevant material/evidence to determine the issue has been destroyed/weeded out or not available with it.”

Of course, it is then rightly pointed out in para 38 that, “Unquestionably, present lis or cause neither concerns nor in any manner affects the rights of any other employee. Hence, the doors of Justice can not be slammed on the face of the petitioner, as requested by the respondents.”

Simply put, it is then rightly advised and held in para 41 that, “It does not behove the respondents (who themselves took two years to decide an application that too callously) to raise fingers towards petitioner’s so called inaction, when they themselves are at fault. Preliminary objection, thus, deserves to be and is hereby rejected.”

Not stopping here, it is also then rightly advised in para 42 that, “This Court feels that it is high time when State should focus on merit of the case and confine itself to the permissibility of rights or benefits, to a citizen, instead of raising worthless objections or bogies of delay.”

Quite remarkably, it is then validly held in para 47 that, “As an upshot of discussion aforesaid, this Court reaches to an irresistible conclusion that petitioner is entitled for grant of maternity leave in terms of Rule 103 of the RSR, irrespective of the fact that she had given birth to the child prior to her joining Government service.”

As a corollary, it is then stated in para 48 that, “Impugned orders dated 13.08.2018; 17.07.2019; and 21.11.2019, thus, deserve to be, and are hereby quashed.” Para 49 then states that, “Petitioner’s sanctioned leave of 142 days shall be treated as maternity leave.”

Further, it is then stated in para 50 that, “As a necessary corollary, petitioner shall be entitled to salary for the period of such leave, in accordance with Rule 103 of the RSR and shall be deemed confirmed w.e.f. 05.06.2018 (on completion of two years’ service from the date of her joining).” Para 51 states that, “Consequences to follow; needful be done within three months from today.”

Finally, it is then held in para 52 that, “With a view to harmonize the provisions, upon combined reading of Rule 103 and 103A of the RSR, it is declared that a female Government servant is entitled to avail maternity leave, if she joins within the period of confinement, i.e. 15 days before to three months after the child birth, regardless of the fact that the child was born prior to joining or before issuance of appointment order.”

In short, the crux of this judgment is that all the governments must adhere to what has been laid down by the Rajasthan High Court in this case. Government servant and that too women must get her right. Governments must cooperate with them and not obstruct them in enjoying their rights! It is rightly held that even if a child is born prior to joining government service, the servant is entitled to maternity leave! All the governments must adhere to it in letter and spirit.

Sanjeev Sirohi

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information   
%d bloggers like this: