The High Court of Rajasthan observed that a female government servant who joined government service after her pregnancy would be entitled for maternity leave, irrespective of the fact that she had given birth to the child prior to her joining Government service.
A Single Bench of Justice Dinesh Mehta issued an order to this effect, interpreting Rule 103 of the Rajasthan Service Rules, which governs the grant of maternity leave to female government servants. The High Court of Rajasthan specifically ruled:
“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” Background of the case:
Rule 103 of the Rajasthan Service Rules reads as follows:
- The Court was hearing a petition moved by a female government servant, who was appointed as a Physical Instructor on June 4, 2016.
- She mothered a child on May 15, 2016, a few days before she received her appointment letter. Though she joined work on June 6, she moved an application for maternity leave on June 21, 2016, specifying the date on which she gave birth.
- After 142 days, she reported back for work. After a lapse of around two years, the State government granted her leave for 90 days without salary.
- In July 2019, she was sanctioned leave for the 142 days she was away from work, out of which 90 days were considered as leave without payment and 52 days treated as extraordinary leave without payment.
- She requested for paid maternity leave however, the request was rejected and subsequently her probation period was extended by 112 days and her services were confirmed in November 2019, to take effect from August 2018.
- Aggrieved from this she challenged the orders rejecting her maternity leave request and the delayed confirmation of service. The denial of maternity leave was arbitrary and against Rule 103, she argued.
“Maternity leave may be granted to a female Government Servant with less than two surviving children up to 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.” Petitioner's Contentions
State Counsel's Objections
- That the respondents(State of Rajasthan) were not justified in deferring petitioner’s confirmation by 112 days, while maintaining that respondents’ action in not granting maternity leave to the petitioner is arbitrary and contrary to Rule 103 of the RSR.
- The petitioner counsel relied on Harshita Yadav Vs. State of Rajasthan & Ors. and submits that the petitioner is entitled for maternity leave, irrespective of the fact that she gave birth to a child before entering into the Government Service.
- The State counsel objected to the writ petition contending that it suffered from delay and laches.
- He stated that the petitioner’s request for maternity leave was considered by the government in its orders in 2018 and 2019.
- The counsel also asserted that the Court could not place reliance on Harshita Yadav, because the decision was grounded completely in the Maternity Benefit Act, 1961 and did not consider Rule 103.
- It was additionally submitted that maternity leave as per Rule 103 could be availed only if a child was born to the employee after she joined for work.
The Court observed that it was an employee-centric beneficial provision, incorporated to obviate hardship faced by a mother. It had no connection to the date or event of childbirth. The Court also made reference to a related service rule allowing paternity leave to male government servants during his wife’s ‘period of confinement’ – Rule 103A.Considering both the rules, the Court concluded that the date of childbirth was relevant for paternity leave, but not for maternity leave, because it was not specified in the latter. Thus, Rule 103 did not create a right based on the date of the child’s birth, the Court reasoned.
It added, “Since on the date of promulgation of these Rules, an employee, who had already given birth, was held 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.”
With respect to the State counsel’s contention that the petitioner gave birth before her appointment as a government servant, the bench termed it as a ‘
. Adopting the reasoning urged by the State would go against the Rule, while also being arbitrary, inequitable, and inhumane.
This bench also feels that it is high time when State should focus on merit of the case and confine itself to the permissibility of right or benefits, to a citizen, instead of raising worthless objections or bogies of delay. Hence, the doors of Justice cannot be slammed on the face of the petitioner, as requested by the respondents. Thus, the court directed that petitioner be allowed paid maternity leave and the Court also instructed her confirmation date to be pushed to June 5, 2018. [READ ORDER]