FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS WRIT PETITION NO. 5494 OF 2011 DR. PRATIBHA ASHOK THORAT VERSUS THE STATE OF MAH AND ORS ... Advocate for Petitioner(s): Shri Nagarsoge S.A. h/f Shri Jadhav N.L. AGP for Respondent(s): Smt. Gondhalekar A.V. ... CORAM : D B BHOSALE & S B DESHMUKH, JJ. Dated: August 08, 2011 ... 1. Heard learned counsel for the parties. 2. Leave to amend. Amendment to be carried out forthwith. 3. The petitioner, in this petition, has made the following prayers :- "(C1) It may kindly be declared that, rule 74(1) of the Maharashtra Civil Services (new rules) 1981 and Govt. resolution ARG-1409/P.K. 8/09/Seva-6 dated 24.8.2009 issued by Government of Maharashtra, Finance Department is arbitrary, unreasonable, unconstitutional and violate Article 14 of the Constitution of India. (C2) The rule 74(1) of the MCS (new) rules 1981 restricting the maternity leave upto to children and Govt. resolution ARG-1409/P.K. 8/09/Seva-6 dated 24.8.2009 issued by Government of Maharashtra, Finance Department may kindly be quashed and set aside." 4. Learned counsel for the petitioner does not press prayer clause (C1). 5. Our attention was invited to Rule 74(1) of the Maharashtra Civil Services Rules ("the said Rules" hereinafter). Rule 74 deals with the maternity leave. (2) WRIT PETITION NO. 5494 OF 2011 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS Under this provision, competent authority can grant to female Government servant in the permanent employment, who dos not have three or more children on the date of the application, maternity leave for a period of 180 days from the date of it's commencement and during this period, such employee is entitled for paid leave salary equal to the pay drawn immediately before proceeding on leave. Admittedly, the petitioner has two leaving children and she desires to proceed on leave for third delivery. 6. From bare perusal of the provisions contained in Rule 74 of the said Rules, we are satisfied that the petitioner, as of right, is not be entitled for maternity leave. In other words, she is not entitled for maternity leave as contemplated by Rule 74 of the said Rules, since she desires to proceed on leave for her third delivery. However, this shall not preclude the petitioner from proceeding on leave for delivery. If the petitioner proceeds on leave for delivery, nature of her leave may be determined by the concerned authority, and if any benefit can be extended to the petitioner, her application may be considered sympathetically. We observe that the concerned authority shall grant leave to the petitioner for delivery without treating it as maternity leave under Rule 74 of the said Rules. 7. With these observations, Writ Petition is disposed of. ( S B DESHMUKH, J. ) ( D B BHOSALE, J. ) akl