Even if child is born prior to joining government service, the servant is entitled to Maternity Leave: Rajasthan High Court

 on 18 01 2021 at 03:11:37 PM ) SecondaryEducation Bikaner.4. The Block Development Officer Primary EducationDepartment Nokha Dist. Bikaner. RespondentsFor Petitioner(s) : Mr. Bhavit Sharma through Cisco Webex AppFor Respondent(s): Mr. Rishi Soni associate to Mr. Pankaj Sharma AAG through Cisco Webex AppJUSTICE DINESH MEHTAJudgmentReportable 07 12 20201.The conundrum which is required to be resolved in thepresent case is whether a candidate who has given birth to achild prior to joining the Government service is entitled formaternity leave under Rule 103 of Rajasthan Service Rules 1951 [CW 4384 2020]2.Before venturing into such exercise it would be apt to takenote of certain dates which have implication on the issue athands:(i) The petitioner gave birth to a child on 15.05.2016The petitioner was given appointment on the post ofPhysical Training InstructorGrade III on 04.06.2016Petitioner gave her joining on 06.06.2016Petitioner applied for maternity leave on 21.06.2016Petitioner did not attend Office from 26.06.2016 to10.11.2016(vi) Petitioner’s application for maternity leave was decidedvide order(s) dated 13.08.2018 and 17.07.2019Petitioner’s services were confirmed w.e.f. 26.09.2018(vide order dated 21.11.2019)The writ petition filed on 19.05.2020.3.The petitioner who was appointed on the post of PhysicalTraining Instructor Grade III vide appointment order dated04.06.2016 mothered a baby boy on 15.05.2016 just a few daysbefore receiving the appointment order. 4.As the petitioner had to undergo a Cesarean Section she wasnot fit enough to join but with a view to ward off adverseconsequence of non joining she preferred to give her joining on06.06.2016.5.For the purpose of taking care of her child and herself shemoved an application for grant of maternity leave on 21.06.2016 while clearly mentioning that she has given birth to a child on15.05.2016 by cesarean section and thus she will be unable to[CW 4384 2020]attend the duties. The petitioner had enclosed birth certificateand other relevant documents with the application so filed. 6.On 10.11.2016 the petitioner reported back on duties afterremaining absent for 142 days. 7.The petitioner’s aforesaid leave applicationcame to be dealt with by the respondents firstly videcommunication dated 13.08.2018 whereby 90 days’ leave withoutpayment was sanctioned. 8.By another communication dated 17.07.2019 the petitionerwas sanctioned a total 142 days’ leave out of which 90 days wereconsidered as leave without payment as per communication dated13.08.2018 and 52 days’ leave was treated as extra ordinaryleavethat too without payment. 9.Despite completion of probation period of two years therespondents extended petitioner’s probation period by 112 daysand confirmed her services w.e.f. 26.09.2018 vide order dated21.11.2019. 10.The petitioner has approached this Court with a grievancethat the respondents are not justified in deferring petitioner’sconfirmation for a period of 112 days. According to the petitioner her confirmation ought to have been made effective from05.06.2018. Petitioner has also called the orders refusingmaternity leave in question.11.Mr. Bhavit Sharma learned counsel appearing for thepetitioner submitted that the respondents were not justified indeferring petitioner’s confirmation by 112 days while maintainingthat respondents’ action in not granting maternity leave to thepetitioner is arbitrary and contrary to Rule 103 of the RSR.[CW 4384 2020]12.He contended that order dated 21.11.2019 so also therespondents’ action of not sanctioning maternity leave deserve tobe quashed and set aside. 13.Learned counsel relied upon the judgment dated 19.05.2017 rendered by this Court in Harshita Yadav Vs. State of Raj. & Ors. S.B. Civil Writ Petition No.11833 2014 and submitted that thepetitioner is entitled for maternity leave irrespective of the factthat she gave birth to a child before entering into the GovernmentService. 14.Mr. Rishi Soni Associate to Mr. Pankaj Sharma AAG learnedcounsel appearing for the respondent State raised a preliminaryobjection that the petition at hand suffers from delay and laches.15.Highlighting the fact that the petitioner’s application formaternity leave had been considered vide orders dated13.08.2018 and 17.07.2019 he submitted that the petitioner hasapproached this Court in May 2020 after a delay of about a yearand thus her writ petition seeking equitable relief deserves to bedismissed. 16.Apart from the aforesaid preliminary objection an argumentwas advanced that judgment in Harshita Yadav’s casepassed by the Jaipur Bench of this Court is not binding inasmuchas basic provisions of Rule 103 of the RSR governing maternityleave have not been taken into consideration. He stressed thatHarshita Yadav’s judgment solely hinges upon the provisions ofMaternity Benefit Act 1961and provisions of RSR have not been considered.17.Zealously reading the provisions of Rule 103 of the RSR Mr.Soni submitted that maternity leave is permissible only in a case[CW 4384 2020]where a child is born after a female joins her duties as aGovernment servant. Laying much emphasis or stress upon theuse of expression “to a Government servant” in opening line ofRule 103 he argued that on the date of giving birth to a childthe petitioner was not a Government servant andhence she cannot be granted maternity leave. Put it differentlyhis contention has been that since the child was born to thepetitioner prior to joining the Government services she cannotclaim maternity leave under the Rules. 18.It was submitted that the petitioner if so advised could haveapplied for extension of joining in wake of contingency she was in instead of joining in a hurry and claiming maternity leave.19.Mr. Soni relied upon the judgment of Punjab and HaryanaHigh Court dated 04.05.2017 delivered in the case of SweetyDevi Vs. Pt. B.D. Sharma University of Health and Sciences Rohtak S.B. Civil Writ Petition No.9385 2017 and prayed that inlight of this judgment present writ petition be dismissed. 20.Heard.21.It would be profitable to have a perusal of the provisions ofRule 103 of the RSR as existing on the date when the petitionerapplied for maternity leave. The same reads as infra: “103 : Maternity leave may be granted to a femaleGovernment Servant with less than two survivingchildren upto a period of 180 days from the date ofits commencement. However if there is nosurviving child even after availing it twice MaternityLeave may be granted on one more occasion.During such period she will be entitled to leavesalary equal to pay drawn immediately before[CW 4384 2020]proceeding on leave. Such leave shall not bedebited to the leave account but such entry shouldbe made in the service book separately.” emphasis supplied.22.This beneficial provision has been incorporated with a viewto enable an employee who has mothered a child to recover frompost delivery issues and obviate the hardship faced by her so asto observe the mandate of Maternity Benefit Act 1961.23.Though not directly in issue but somewhat analogousprovisions in relation to paternity leave also calls for a reference inthe context of controversy in question. Rule 103A of the RSRreads as under: “103 A: Paternity Leave : A male Governmentservant with less than two surviving children may begranted paternity leavefor aperiod of 15 days during confinement of his wife i.e.15 days before to three months after childbirth andif such leave is not availed of within this period itshall be treated as lapsed. During the period of such leave the Governmentservant shall be paid leave salary equal to the paydrawn immediately before proceeding on leave.Paternity Leave shall not be debited against the leaveaccount but such entry should be made in the servicebook separately and may be combined with anyother kind of leave[CW 4384 2020]24.A bare look at Rule 103 of the RSR shows that it is employeecentric. It has no nexus or correlation with the date or event ofchild birth. The Rule confers upon a female Government servantwith less than two children a right to avail maternity leave of 180days. Prerequisite conditions for such availment are a femaleshould be a Government servant andshe should have lessthan two surviving children. 25.As against this if analogous provision contained in Rule103A of the Rulesis taken noteof one would find that paternity leave has been linked with or hasbeen given a direct connection with child birth and wife’sconfinement. A father can avail such leave during period ofconfinement i.e. 15 days before to 3 months after child birth. Incase such leave is not availed it automatically lapses is themandate of Rule 103A of the Rules. 26.A comparative and conjoint reading of Rule 103 and Rule103A makes legislative intention crystal clear. A femaleGovernment servant or a mother can avail maternity leave for theperiod prescribed irrespective of the date of child birth whereas amale Government servant can avail paternity leave for a period of15 days during his wife’s confinement. In other words the date ofchild birth is significant in case of paternity leave whereas it isnot of much relevance in case of maternity leave. 27.Another significant aspect is use of expression “from thedate of its commencement”. Use of such expression too has animportant bearing on the issue at hands. It is noteworthy that onthe date of insertion of these Rules i.e. 06.12.2004 the legislaturehad considered it appropriate to confer such entitlement[CW 4384 2020]immediately. In other words rule making authority intended toconfer such benefit to all those employees who had already givenbirth to a child on such datethat is why suchstipulationwas made without giving any reference of occurrence of delivery.28.In considered opinion of this Court since on the date ofpromulgation of these Rules an employee who had already givenbirth was entitled to avail maternity leave it will not only beiniquitous but also discriminatory to exclude an employee whohas given birth to a child a few days ahead of joining theGovernment service. Needless it is to say that having joinedpursuant to an appointment on substantive post an incumbentbecomes a Government Servant for all practical purposes and amother’s maternity needs cannot eclipse simply because she hasjoined the duties.29.Rule 103 does not create or confer right on the basis of dateof birth. It simply provides that maternity leave may be grantedto a female Government servant from the date of itscommencement. Hence if on the date of applying for such leave if a female employee is in requirement of leave for natal needsand also for rearing or looking after the child it should not rather cannot be denied. 30.Carving out ‘pseudo distinction’ by contending that thepetitioner was not a Government servant when the child was bornor in other words the child was born prior to joining is contrary tothe provisions of Rule 103 and is in direct conflict with the verypurpose of the Rule. Such stance is arbitrary and inequitable ifnot inhumane. [CW 4384 2020]31.Such being the position this Court is unable to accept thesheet anchor of respondents’ arguments so vociferously advancedby Mr. Soni learned counsel for the respondent State.32.Adverting to the preliminary objection regarding delay andlaches this Court feels that firstly the same is not available to theState and finds that it is liable to be rejected in the extant factualbackdrop. 33.Indisputably petitioner’s leave application filed on21.06.2016 remained unattended unheeded for about two years.It ultimately came to be dealt with by the respondents vide orderdated 13.08.2018 and 17.07.2019 petitioner’s leave came to besanctioned but without pay.34.Leaving that apart by way of an order passed on21.11.2019 the respondents even proceeded to defer petitioner’sconfirmation for a period of 112 days. 35.Being confronted with such situation petitioner wasconstrained to take legal recourse. 36.Counting from such date i.e. 21.11.2019 instant writpetition which has been filed on 19.05.2020 cannot be treated tobe belated by any stretch of argument. 37.Regardless of what has been stated above in consideredopinion of this Court the State cannot take such technical plea particularly when an aggrieved party approaches the Court withina reasonable period i.e. three years from accrual of the cause ofaction. In such event the Court is required to ascertain that nothird party rights are involved and or other employees are notadversely affected because of inaction of the petitioner. Whileopposing a petition on the ground of delay State is also required[CW 4384 2020]to assert that because of the inaction of petitioner for long time relevant material evidence to determine the issue has beendestroyed weeded out or not available with it. 38.Unquestionably present lis or cause neither concerns nor inany manner affects the rights of any other employee. Hence thedoors of Justice can not be slammed on the face of the petitioner as requested by the respondents. 39.Fact situation of the case at hands reminisces of thefollowing observations made by the Courts :In the case of Kaluram Sitaram Vs. the Dominion of India(AIR 1954 BOMBAY 50) while deciding the case between anindividual citizen and the State the Bombay High Court made thefollowing observation: “Now we have often had occasion to say that whenthe State deals with a citizen it should notordinarily rely on technicalities and if the State issatisfied that the case of the citizen is a just one even though legal defence may be open to it itmust act as has been said by eminent judges asan honest person.”4 SCC 176 Supreme Court made followingremarks: “2...The plea of limitation based on this section isone which the court always looks upon withdisfavour and it is unfortunate that a publicauthority like the Port Trust should in all moralityand justice take up such a plea to defeat a justclaim of the citizen. It is high time that governmentsand public authorities adopt the practice of not[CW 4384 2020]relying upon technical pleas for the purpose ofdefeating legitimate claims of citizens and do what isfair and just to the citizens. Of course if agovernment or a public authority takes up atechnical plea the Court has to decide it and if theplea is well founded it has to be upheld by thecourt but what we feel is that such a plea shouldnot ordinarily be taken up by a government or apublic authority unless of course the claim is notwell founded and by reason of delay in filing it theevidence for the purpose of resisting such a claimhas become unavailable....”40.Before raising such an argument the respondents shouldhave better introspected their own action and posed a question toall concerned as to why petitioner’s application for grant ofmaternity leavewas not responded to for twoyears 41.It does not behove the respondentsto raisefingers towards petitioner’s so called inaction when theythemselves are at fault. Preliminary objection thus deserves tobe and is hereby rejected. 42.This Court feels that it is high time when State should focuson merit of the case and confine itself to the permissibility ofrights or benefits to a citizen instead of raising worthlessobjections or bogies of delay.43.Before reaching to a final conclusion it is imperative ratherincumbent upon this Court to dilate upon the judgments cited byrival counsel. Firstly it would be appropriate to go through the[CW 4384 2020]adjudication made by this Court in Harshita Yadav’s casewherein following has been held: "During the course of argument it is not denied thatgrant of salary and other monetary benefits to theemployee and joining of service are entirelydifferent. Petitioner in fact had joined governmentservice on 08.11.2011. At that time she was amother of eight days old child. Petitioner hadproceeded on leave in the month of November 2011. Maternity Benefit Act 1961 is a beneficiallegislation. The State Government is committed thatnewly born child being a future of the nation is notonly reared well but grow as a healthy child. Shri Sanjay Sharma learned Government Counsel has no quarrel with the assertion made by thelearned counsel for the petitioner that eight days oldchild require care attention and nursing by themother. Shri Sanjay Sharma has also not deniedthat State Government is bound by the provisions ofMaternity Benefit Act and has also provided in StateGovernment rules grant of maternity leave.However this court cannot become oblivious of thefact that the petitioner had not completed minimum80 days in preceding twelve months. This is a casewhere this court should balance the equities. Hence it is ordered that the period from 09.11.2011till 27.04.2012 will be considered as a leave of kindin due and for the said period petitioner shall not bepaid any salary or allowances but said period shallbe treated as the one on which petitioner was onduty. Thus for all intent and purposes services ofthe petitioner shall be reckoned w.e.f. 08.11.2011.”44.True it is that above judgment of this Court in HarshitaYadav’s caseis premised upon the provisions of Act of[CW 4384 2020]1961 and Rule 103 of the RSR was not brought to notice of theCourt. But the mere fact that Rule 103 has not been referred inthe case of Harshita Yadavdoes not render the saidjudgment per incuriam. Having regard to the fact that this Courthas now considered and dealt with the respondents’ argumentregarding Rule 103 of the RSR respondents’ action cannot becountenanced. 45.Moving on to the judgment of Punjab and Haryana HighCourt in Sweety Devi’s casesuffice it to observe that thesame has no application on the present case. Because therelevant Rules in Punjab Service Rules are clearly distinguishable.It will not be out of place to reproduce para 8.127of thePunjab Service Rules referred in the judgment of Sweety Devi’scase[CW 4384 2020]cannot claim maternity leave. Punjab & Haryana High Court hasconstrued the date of birth to be the date of confinement which inopinion of this Court with due respect is not a correct positionand proper interpretation. Confinement cannot be confused withdate of child birth or delivery. That apart date of confinement isnot an expression used in Rule 103 of the RSR. Hence this Courtis not persuaded to tow the line drawn by the Punjab & HaryanaHigh Court particularly when there is stark and striking differencebetween the provisions in Punjab Rules and the Rules underconsideration. 47.As an upshot of discussion aforesaid this Court reaches toan irresistible conclusion that petitioner is entitled for grant ofmaternity leave in terms of Rule 103 of the RSR irrespective ofthe fact that she had given birth to the child prior to her joiningGovernment service. 48.Impugned orders dated 13.08.2018 17.07.2019 and21.11.2019 thus deserve to be and are hereby quashed. 49.Petitioner’s sanctioned leave of 142 days shall be treated asmaternity leave. 50.As a necessary corollary petitioner shall be entitled to salaryfor the period of such leave in accordance with Rule 103 of theRSR and shall be deemed confirmed w.e.f. 05.06.2018[CW 4384 2020]she joins within the period of confinement i.e. 15 days before tothree months after the child birth regardless of the fact that thechild was born prior to joining or before issuance of appointmentorder. 53.Petition allowed. Cost made easy. 54.Stay application also stands disposed of.(DINESH MEHTA) J57 Ramesh 

Summary: A female government servant is entitled to grant of maternity leave, irrespective of the fact that she had given birth to the child prior to her joining government service. This decision was taken by the single bench of Hon’ble Justice Dinesh Mehta in the case of Smt. Neeraj W/o Rupa Ram vs. State of Rajasthan [S.B. Civil Writ Petition No. 4384/2020] In the instant case, the petitioner had given birth to her child on 15-5-2016 and she was appointed on the post of Physical Training Instructor (PTI), Grade-III on 04.06.2016. Petitioner then applied for maternity leave on 21-6-2016 and didn’t attend the office from 26-6-2016 to 10-11-2016 (142 days). It was being noted that the petitioner had given birth on 15-5-2016, a few days before being appointed on the post, and because she had undergone surgery for child-birth, she wasn’t fit enough to join. On 10-11-2016, the petitioner reported back for her duty after 142 days of maternity leave. While continuing in a similar vein, it was then stated that, by another communication dated 17.07.2019, the petitioner was sanctioned a total of 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 extraordinary leave (EOL), that too without payment. Despite the completion of a probation period of two years, the respondents extended the petitioner’s probation period by 112 days and confirmed her services w.e.f. 26.09.2018, vide order dated 21.11.2019. The petitioner had approached the Court with a grievance that the respondents had not justified in deferring the petitioner’s confirmation for a period of 112 days. While observing, Court stated that the provisions of Rule 103 of RSR Act which specifies that “Maternity leave may be granted to a female Government Servant with less than two surviving children up to a period of 180 days from the date of its commencement. However, if there is no surviving child even after availing it twice, Maternity Leave may be granted on one more occasion” and “During such period, she will be entitled to leave salary equal to pay drawn immediately before proceeding on leave. Such leave shall not be debited to the leave account but such entry should be made in the service book separately”. Hence, HC stated that “Since on the date of promulgation of these Rules, an employee, who had already given birth, was entitled to avail maternity leave, it will not only be iniquitous but also discriminatory to exclude an employee, who has given birth to a child a few days ahead of joining the Government service”. “Needless it is to say, that having joined pursuant to an appointment on the substantive post, an incumbent becomes a Government Servant for all practical purposes and a mother’s maternity needs cannot eclipse, simply because she has joined the duties”.