IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 OP.No. 8286 of 2001(J) -------------------------------- PETITIONER: ------------------- DR. SHEELA.S. THALAKKILI THARAYIL, ALUMPEEDIKA.P.O., OCHIRA, KOLLAM. BY ADVS. MR.N.K.SUBRAMANIAN, MR.S.ANANTHAKRISHNAN. RESPONDENTS: ------------------------ 1. THE PRINCIPAL, MEDICAL COLLEGE, TRIVANDRUM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA. 3. THE DIRECTOR, THE DIRECTORATE OF MEDICAL EDUCATION, TRIVANDRUM. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. R1 TO R4 BY GOVERNMENT PLEADER MR. T.K. VIPIN DAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 8286/2001-J: ORDER ON C.M.P. NO. 13336/2001 IN O.P. NO. 8286/2001-J CLOSED 05/06/2009. SD/- V.K.MOHANAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. EQ3-9614/98/DHS. DT. 24/10/1998. EXT.P.2: COPY OF THE ORDER OF APPOINTMENT NO. E3-13607/99/MCT. DTD. 15/10/1999. EXT.P.3: COPY OF THE LETTER DTD. 17/04/2000. EXT.P.4: COPY OF THE JUDGMENT DTD. 26/07/2000 IN O.P. NO. 21062/2000. EXT.P.5: COPY OF THE JUDGMENT DTD. 12/10/2000 IN W.A. 1883/2000. EXT.P.6: COPY OF THE REPRESENTATION DTD. 27/10/2000 BY THE PETITIONER. EXT.P.7: COPY OF THE LETTER NO. G2.12761/2000/DME. DTD. 30/10/2000 BY THE R.3. EXT.P.8: COPY OF THE GOVERNMENT ORDER DTD. 21/08/2000. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- O.P.No. 8286 of 2001 - J --------------------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T The petitioner, who is a Doctor by profession, has approached this Court, seeking a relief of extending the maternity leave benefit in her favour while she was working on provisional basis under the Government service. 2. Initially, the petitioner was appointed as Assistant Surgeon in the Health Service under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules,1958 and her appointment was for a period of one year or till regular hands join duty whichever is earlier. According to the petitioner, after she was relieved from the above post on 4.11.1999, she was again appointed on provisional basis as per Ext.P2 order as Lecturer in Gastroentrology in the Medical Education Department, that was also for a period of one year from the date of joining duty or till P.S.C.hands join duty. The petitioner, while in service on the basis of Ext.P2 order, had availed of leave as she became pregnant with effect from 6.12.1999. She had made a leave application on the above ground which was rejected as per Ext.P3 order stating that O.P.NO.8286 OF 2001 :-2-: the maternity leave is admissible to female provisional hands continuing in service, but for proceeding on leave. According to Ext.P3, the petitioner's service details are not in accordance with the above requirement and hence Ext.P3 was issued rejecting the request for maternity leave and benefit. 3. Challenging Ext.P3 order, the petitioner had preferred a writ petition before this Court which culminated in Ext.P4 judgment by which the writ petition was disposed of with a direction to re-entertain the petitioner in service for the remaining period of temporary appointment until 4.11.2000, if the vacancy still subsists. Aggrieved by the above judgment, the petitioner preferred a writ appeal which was also disposed of as per Ext.P5 judgment directing the petitioner to approach the concerned authority by preferring a representation and directing the concerned authority to take a decision on such representation. Thus, on the strength of Ext.P5 judgment, the petitioner preferred Ext.P6 representation which was rejected as per Ext.P7 proceedings of the Director of Medical Education. On the strength of G.O(P) No.1091/2000/Fin. dated 21.8.2000, a copy of which is produced by the petitioner along with this writ petition as Ext.P8, the Director declined the request for maternity leave. O.P.NO.8286 OF 2001 :-3-: 4. Now, in the third round litigation, the petitioner has approached this Court by preferring this writ petition with a prayer to quash Exts.P3,P7 and P8. The second prayer in the writ petition is to give a direction to the respondents to grant maternity leave benefit to the petitioner. The third prayer is to issue a writ of mandamus declaring that Note 4 of Rule 100 of K.S.R. also is applicable to the employees who have completed continuous service of one year or more irrespective of their mode of appointment. 5. Denying all the allegations and contentions, a counter affidavit is filed for and on behalf of the third respondent wherein the respondents maintained a stand that as the petitioner has no continuous service in the same Department, she is not entitled to get maternity leave in view of Rule 100 Part I of Kerala Service Rules. In the counter, they have also heavily relied on Ext.P8 and stated that provisional service in different departments without break cannot be reckoned as continuous service for the purpose of counting one year service for granting maternity leave. 6. I have heard learned counsel for the petitioner as well as the learned Government Pleader and also perused the materials on record. O.P.NO.8286 OF 2001 :-4-: 7. Learned counsel on the strength of the decision of the Apex Court reported in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another (AIR 2000 SC 1274) submits that denying maternity leave to the petitioner will amount to violation of the salutary principles contained in Articles 14 and 15 of the Constitution of India. It is specifically argued that Ext.P8 Government Order was issued subsequently and the petitioner was in the service much earlier to that Government Order and therefore, the benefit sought by the petitioner cannot be denied on the basis of the subsequent Government Order Ext.P8. It is also the case of counsel for the petitioner that being a social legislation, the benefit envisaged in favour of the females cannot be denied on the basis of arbitrary and unreasonable criteria like the present one as stated in Note 4 of Rule 100 Part I of the K.S.R. and also Ext.P8 Government Order. Therefore, according to the learned counsel, Exts.P3,P7 and P8 are liable to be set aside. 8. On the other hand, the learned Government Pleader vehemently argued that the question of extending the maternity leave benefit is a matter to be decided by the concerned Government. It is also pointed out that the petitioner has O.P.NO.8286 OF 2001 :-5-: voluntarily resigned and relinquished her appointment with effect from 4.11.1999 while she was in service on provisional basis on the strength of Ext.P1 appointment order. Therefore, according to the learned Government Pleader, even if it is conceded that both the services can be treated as under one Department, the benefit of rule will not be available in favour of the petitioner since she had voluntarily resigned from service and there is a break in service and hence it cannot be treated as continuous service. 9. I have carefully considered the contentions advanced by counsel for the petitioner as well as the learned Government Pleader. 10. The fact that the petitioner has voluntarily resigned from service on 4.11.1999 for which she was appointed as per Ext.P1 is beyond dispute. The rule namely, Note 4 of Rule 100 Part-I of the Kerala Service Rules is clear and the same is clarified by Ext.P8 Government Order. Even before issuing Ext.P8 order, what required was there must be continuous service in order to avail this benefit. But, in the case of the petitioner, she had voluntarily resigned from service on 4.11.1999. Therefore, on the basis of the position even prior to Ext.P8 order, the petitioner is not entitled to get the benefit. O.P.NO.8286 OF 2001 :-6-: Regarding the extension of the maternity leave in favour of the female employees in the Government Department, it is for the Government to take a decision and the provisions contained in the Kerala Service Rules are very clear that the Government do not want to extend the said benefit to those who are not having continuous service in a single department. Therefore, this Court is not in a position to hold that the petitioner is entitled to get maternity leave as sought for. 11. The decision referred by the learned counsel for the petitioner i.e., Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another (AIR 2000 SC 1274) arose out of the plea of the provisional employees those who are engaged by the Delhi Municipal Corporation. The facts involved in the said case show that the maternity leave benefits were already extended to the female workers who were in the Delhi Municipal Corporation service, but the said benefit was denied to the provisional employees who are in the muster roll of the said Corporation. It was in the above factual basis, the Honourable Apex Court laid down the above dictum which according to me, is not relevant and applicable in the facts and circumstances O.P.NO.8286 OF 2001 :-7-: involved in the case, especially the rule as on today is very clear and it declares that the maternity leave under the rule shall be admissible to provisional female recruits who are continuing in service in a single department beyond one year provided they will continue in service, but for proceeding on such leave. After having considered the situation in detail, the present rule is made by the rule making authority fixing the criteria for applicability of the benefit, and this Court cannot set aside the said provision, which reflects the Government policy in this matter. In the light of the above facts and circumstances, I am of the view that there is no merit in the writ petition and the petitioner is not entitled to get any of the reliefs as sought for in this writ petition. The writ petition is dismissed, accordingly. V.K.Mohanan, MBS/ Judge. O.P.NO.8286 OF 2001 :-8-: V.K.MOHANAN, J. -------------------------------------------- O.P NO.8286 OF 2001 -------------------------------------------- J U D G M E N T DATED: 5-6-2009 O.P.NO.8286 OF 2001 :-9-: