Rajasthan High Court: Dinesh Mehta, J., allowed a petition which was involved the question of whether a woman, who had given birth to a child prior to joining the Government service, was entitled to maternity leave under Rule 103 of Rajasthan Service Rules, 1951 (RSR).
The petitioner’s child was born on 15-05-2016, and she was given an appointment on the post of Physical Training Instructor (PTI), Grade-III on 04-06-2016 and joined on 06-06-2016. She applied for the maternity leave on 21-06-2016 and didn’t attend office from 26-06-2016 to 10-11-2016. The petitioner’s leave application came to be dealt with by the respondents whereby 90 days’ leave without payment was sanctioned. 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 pay as per communication dated 13-08-2018 and 52 days’ leave was treated as extra ordinary leave (EOL), that too without payment. Despite the 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.
The counsel for the petitioner, Mr Bhavit Sharma submitted that the respondents were not justified in deferring petitioner’s confirmation by 112 days while maintaining that respondents’ action in not granting maternity leave to the petitioner was arbitrary and contrary to Rule 103 of the RSR. The counsel for the respondent, Mr Rishi Soni associate to Mr Pankaj Sharma raised a preliminary objection that the petition suffered from delay and laches. He further submitted that maternity leave was permissible only in a case where a child was born after a female joins her duties as a Government servant.
The Court perused the Rule 103 of the RSR and observed that provision had been incorporated with a view to recover from post-delivery issues and obviate the hardship faced by a mother and observe the mandate of Maternity Benefit Act, 1961. The Court also perused Rule 103-A of RSR and while comparing both the rules concluded that 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 childbirth, is significant in case of paternity leave, whereas it is not of much relevance in case of maternity leave.
The Court opined that 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 had given birth to a child a few days ahead of joining the Government service. The Court further explained that Rule 103 does not create or confer right on the basis of date of birth. It simply provided that maternity leave may be granted to a female Government servant from the date of its commencement. Regarding delay and laches the Court felt that it was liable to be rejected as petitioner’s leave application remained unattended/unheeded for about two years and to be sanctioned, but without pay, so it cannot be treated to be belated, by any stretch of argument relying on the judgment of Supreme Court in Port Trust v. Hymanshu International, (1979) 4 SCC 176 where it was held,
“2…The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable….”
The court while allowing the petition held that petitioner is entitled to 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 and Petitioner’s sanctioned leave of 142 days shall be treated as maternity leave and she 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).[Neeraj v. State of Rajasthan, 2020 SCC OnLine Raj 1864, decided on 07-12-2020]
Suchita Shukla, Editorial Assistant has put this story together.