CW 8707/05 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.8707/05 Gayatri Kumawat Versus State & Ors. DATE OF ORDER : 16/02/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Ashok Yadav, for petitioner Mr. Pradeep Kalwania, Addl. Govt. Counsel, for respondents *** Matter has come up on application for early hearing of the petition. The same stands allowed and looking to the controversy raised herein, at joint request, it has been finally heard and is being decided at admission stage. As alleged, after the vacancies were duly advertised and on her selection, petitioner was appointed as Nurse Gr.II on a consolidated sum of Rs.4500/- per month vide order dt.22nd January, 2000 and while in service she applied for and availed of maternity leave from 12th December, 2002 to 11th March, 2003 as per medical certificate (Ann.2); and she gave birth to a female child on 13th December, 2002 and reported for duty on 12th March, 2003. Thereafter, she again availed of maternity leave and gave birth to a female child on 9th May, 2005 for the period of 135 days, as is evident from documents (Ann.5 & Ann.6 respectively) and reported for duty on CW 8707/05 [2] 11th September, 2005 but, her application was rejected vide order dt.17th September, 2005 on the premise that she being engaged on consolidated salary was not entitled for benefit of maternity leave under the Rules. Counsel submits that upon scope of R.103 of the Rules having been examined by this court in Dr.Hemlata Sarawat Vs. State (2008(2) WLC 638),it has been observed that no distinction could be made on the basis of status of female government servant for the purpose of availing maternity leave under R.103 of the Rules. Relevant Para 22 of judgment [supra] is reproduced as under: “22. The petitioner, even if working on contract basis, has entered into services under the order dated 15/09/2003 (Ann.1) after having been found fit and eligible by the Selection Committee as stated in the said order. Here has not been a back door entry. Merely because the respondents would choose to put her on consolidated salary and state it to be a contractual appointment, the fact that she is a woman employee cannot be lost sight of and the essential benefits fundamentally dealing with the very basics of human rights of allowing maternity benefit to the women cannot be and ought not to have been ignored and the petitioner ought to have been allowed maternity leave as applied for. It may be pointed out that there had been any other reason of denying maternity leave to the petitioner except that she was working on consolidated salary on contract basis. Such being a proposition already declared unacceptable, the action of the respondents is not only illegal but malafide too.” CW 8707/05 [3] Per contra, Govt. Counsel submits that there is circular issued by Govt. dt.06/11/07 – as per which, female Govt. employees appointed on contract basis are entitled for maternity leave only for two months and beyond two months, they are entitled for grant of leave without pay for two & half months. It is not in dispute that the issue raised herein stands resolved by judgment of this Court in Dr.Hemlata Saraswat Vs. State (supra). In instant case, petitioner was appointed on urgent temporary basis on a consolidated salary and merely because respondents have given nomenclature of appointment on consolidated salary, that would not give any justification to deprive such female Govt. servants from maternity leave. As per R.103 of RSR and as has been considered by this Court in Hemlata Saraswat Vs. State (supra), even if female employee is appointed on contract basis or has entered into service on consolidated sum, which cannot be termed as back door entry, no distinction can be made for the purposes of benefits to which one is entitled for U/r 103, RSR. Consequently, writ petition is hereby allowed. Respondents are directed to consider CW 8707/05 [4] case of petitioner and release sanction of maternity leave for two periods (from 12th December, 2002 to 11th March, 2003 & 29th April, 2005 to 10th September, 2005) in terms of R.103, RSR, along with consequential benefits flowing therefrom, within a period of two months. No order as to costs. [AJAY RASTOGI], J. FRBOHRA8707CW0516-2FRB.doc