IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 WP(C).No. 7779 of 2007(A) ------------------------------------- PETITIONER: ------------------- SUBI MATHAI, HIGHER SECONDARY SCHOOL TEACHER (JUNIOR), MARTHOMA HIGHER SECONDARY SCHOOL, VENMONY, CHENGANNUR TALUK (RESIDING AT KANDATHUM KUZHIYIL, WEST OTHRA P.O., THIRUVALLA TALUK). BY ADV. SRI.N.ASHOK KUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 4. THE MANAGER, THE M.T & E.A.SCHOOLS, CORPORATE- MANAGEMENT, THIRUVALLA 689 101. 5. THE PRINCIPAL, MARTHOMA HIGHER SECONDARY SCHOOL, VENMONY, CHNGANNUR TALUK. R1 TO R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.7779/2007-A: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 03/09/2002 ISSUED BY R.4. TO THE PETITIONER. EXT.P.2: COPY OF THE JOINING REPORT DTD. 03/09/2002 ISSUED BY R.5. EXT.P.3: COPY OF THE COVERING LETTER DTD. 19/05/2003 SUBMITTED BY THE R.5. TO THE R.3. EXT.P.3.A: COPY OF THE REPORT DTD. 07/06/03 OF R.3. EXT.P.4: COPY OF THE LETTER DTD. 03/01/04 ISSUED BY R.2. EXT.P.5: COPY OF THE LETTER DTD. 01/03/2004 SUBMITTED BY R.4. TO THE R.2. EXT.P.6: COPY OF THE ORDER DTD. 21/07/05 OF R.1. EXT.P.7: COPY OF THE ORDER DTD. 12/12/06 OF R.1. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.7779 OF 2007 ---------------------------------------------- Dated this the 4th day of October, 2011 JUDGMENT While the petitioner was in the family way the process for selection and appointment as Higher Secondary School Teachers for which the petitioner was also and applicant, in an aided Higher Secondary School was in progress. Before appointment of the petitioner, the petitioner delivered two children (twins) on 14.8.2002. After the delivery on 14.8.2002, the petitioner was appointed as a Higher Secondary School Teacher and she joined duty on 3.9.2002 in an aided Higher Secondary School. Thereafter, th petitioner applied for maternity leave. She availed of maternity leave for the period from 4.9.2002 to 16.1.2003. She re-joined duty on 17.1.2003. The petitioner's grievance in this writ petition is that maternity leave is not being sanctioned to her. The petitioner approached the Government. But, the Government issued Ext.P6 holding that the petitioner not having been in service at the time of delivery, she is not entitled to W.P.(C)No.7779/07 2 maternity leave but, the petitioner is entitled to leave without allowances for 90 days. The petitioner contends that, subsequently, the Government has added Note 5 to Rule 100 of Part I of KSR, wherein female employees were given the benefit of maternity leave, if they joined service within 135 days from the date of delivery. According to the petitioner, Rule 100 should be interpreted in consonance with the principles in Note 5 added with effect from 6.2.2006. The petitioner seeks the following reliefs: “(i) call for the entire records leading to Exhibits P-3 (a), P-4, P-6 and P-7 and quash the same by the issuance of a writ of Certiorari or any other appropriate writ order or direction; (ii) issue a writ of Mandamus or any other appropriate writ, order or direction, directing the Respondents 1 to 3 to approve the maternity leave availed by the petitioner from 4-9-02 to 16-1-2003 and disburse the entire arrears of salary and other consequential benefits.” 2. The learned Government Pleader submits that Note 5 is not applicable to the petitioner's case since the petitioner joined service much prior to coming into force of Note 5 on 6.2.2006. The learned Government Pleader, therefore, submits that apart from what has been granted by Ext.P6, the petitioner is not entitled to any further benefits. 3. I have considered the rival contentions in detail. I W.P.(C)No.7779/07 3 am of opinion that the petitioner is entitled to have her claims considered more sympathetically. Note 5 to Rule 100 of Part I of KSR added with effect from 6.2.2006 reads as follows: “Note 5:- Female recruits through Public Service Commission who join duty within 135 days from their date of delivery (otherwise than on account of miscarriage) shall, on joining, be granted from the next day the balance potion of maternity leave admissible as on the date of joining duty, subject to the following conditions: (a)Holidays/Vacation falling immediately after the date of joining service cannot be prefixed to the leave. (b) A certificate from the medical officer who attended the delivery showing the date of delivery along with the medical certificate of health as prescribed in Rule 13, Part 1 of Kerala Service Rules should be produced.” Recently, the Government has further respected motherhood by giving maternity leave up to six months. Further, even husbands are being given ten days' paternity leave. The very object of these amendments is to respect motherhood and to come to the assistance of government servants who become mothers. Therefore, I am of opinion that the case of the petitioner should be reconsidered in the light of the above situation, which is obtaining now. Accordingly, the writ petition is disposed of as follows: The petitioner's case shall be reconsidered by the Government taking into account the above said observations. W.P.(C)No.7779/07 4 In any event, if the maternity leave as such cannot be sanctioned to the petitioner, the petitioner shall be given some kind of leave which will not have the effect of break in service for the petitioner. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.7779/07 5