Even If Child Is Born Prior To Joining Govt. Service, The Servant Is Entitled To Maternity Leave: Rajasthan High Court

The Rajasthan High Court (Jodhpur Bench) on Monday (07th December) held that petitioner (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. The Bench of Justice Dinesh Mehta specifically ruled, "A female Government servant is entitled to avail maternity leave, if she joins within the period of confinement, i.e. 15 days before to three months after the childbirth, regardless of the fact that the child was born prior to joining or before issuance of appointment order." It may be noted that the Court was dealing with Rule 103 of the Rajasthan Service Rules, which governs the grant of maternity leave to female government servants. The matter before the Court The bench was dealing with the question as to whether a candidate, who has given birth to a child prior to joining the Government service, is entitled to maternity leave under Rule 103 of Rajasthan Service Rules, 1951? The Court was hearing a plea moved by a female government servant, who was appointed on the post of Physical Training Instructor on 04th June 2016, and she mothered a baby boy on 15th May 2016, just a few days before receiving the appointment order. She joined the services on 06th June 2016. She moved an application for grant of maternity leave on 21st June 2016, while clearly mentioning that she gave birth to a child on 15th May 2016. Further, on 10th November 2016, the petitioner reported back on duties after remaining absent for 142 days. After two years, in August 2018, the State government sanctioned her leave for 90 days without payment of salary. Further, in July 2019, was sanctioned a total 142 days' leave, out of which 90 days were considered as leave without payment (as per communication dated 13.08.2018) and 52 days' leave was treated as extraordinary leave (EOL), that too without payment. Significantly, her request for paid maternity leave was rejected. Also, despite the completion of probation period of two years, the respondents extended petitioner's probation period by 112 days and confirmed her services w.e.f. 26th September 2018, vide order dated 21st November 2019. The grievance of the Petitioner/Female Govt. Servant The petitioner approached the Court with a grievance that the respondents are not justified in deferring petitioner's confirmation for a period of 112 days. According to the petitioner, her confirmation ought to have been made effective from 05th June 2018. Petitioner has also called the orders refusing maternity leave in question. It was also contended by her that respondents' action in not granting maternity leave to the petitioner was arbitrary and contrary to Rule 103 of the RSR. Citing the case of Harshita Yadav Vs. State of Raj. & Ors.; S.B. Civil Writ Petition No.11833/2014, she submitted that she was entitled to maternity leave, irrespective of the fact that she gave birth to a child before entering into the Government Service. Court's Order The Court, in its order, observed that Rule 103 of the RSR is employee-centric and that it has no nexus or correlation with the date or event of child birth. The Court also said that the Rule confers upon a female Government servant with less than two children, a right to avail maternity leave of 180 days and those Prerequisite conditions for such availment are- (i) a female should be a Government servant and (ii) she should have less than two surviving children. However, the Court did observe that the date of childbirth is significant in case of paternity leave, whereas it is not of much relevance in case of maternity leave. Importantly, the Court remarked, "On the date of promulgation of these Rules, an employee, who had already given birth, was held 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." The Court further said, "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." "Rule 103 does not create or confer right on the basis of date of birth. It simply provides that maternity leave may be granted to a female Government servant from the date of its commencement", said the Court. Further, the Court rejected the preliminary objection pointed out by the State that the writ petition was filed with a delay. To this, the Court questioned the State and said that it should introspect their own action and posed a question to all concerned, as to why petitioner's application for grant of maternity leave (dated 21.06.2016) ...

Even If Child Is Born Prior To Joining Govt. Service, The Servant Is Entitled To Maternity Leave: Rajasthan High Court

Sparsh Upadhyay

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