Mrs. Rajeshwari Gajballa vs State Of Chhattisgarh
2022 Latest Caselaw 4711 Chatt

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                                                                  NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                          WPS No. 2553 of 2021

     Mrs. Rajeshwari Gajballa, W/o Mr. Vijay Kumar Gajballa, Aged
     About 35 Years, post Data Entry Operator, posted at office of
     District Markfed Officer, Kanker, District- Uttar Bastar Kanker
     (C.G.)
                                                        ---- Petitioner
                              Versus
1.   State of Chhattisgarh, through Secretary, Cooperative
     Department, Mahanadi Bhawan, Naya Raipur, District- Raipur
     (C.G.)
2.   The Additional Collector, District- Uttar Bastar Kanker (C.G.)
3.   Chhattisgarh State Coperative Marketing Federation, through its
     Managing Director, through its Secretary, 6th Floor, Tower C,
     Commercial Complex, CBC, Sector 21, Naya Raipur, Atal Nagar,
     Raipur (C.G.)
4.   District Marketing Officer, Chhattisgarh Rajya Sahakari Vipadan
     Sang Maryadit, District Office, District- Uttar Bastar Kanker
     (C.G.)
5.   Secretary, Chhattisgarh State Coperative Marketing Federation,
     6th Floor, Tower C, Commercial Complex, CBC, Sector 21, Naya
     Raipur, Atal Nagar, Raipur (C.G.)
                                                       ---- Respondents

For Petitioner : Mr. Parag Kotecha, Advocate. For State : Mr. Suyash Dhar Badgaiya, P.L. For Res. 3 to 5 : Mr. Vinod Deshmukh, Advocate.

Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 25.07.2022

1. The petitioner has filed the instant petition claiming following reliefs:-

I. Quash/Set Aside, the letter/order dated 06.03.2021 issue by respondent No. 3.

ii. Direct the respondents to make the payment of salary to the petitioner for maternity leave from 01.02.2020 to 31.07.2020.

iii. Any other relief which this Hon'ble Court deems fit and

proper under the facts and circumstances of the case and in the interest of justice. The cost of the petition may be awarded in favour of the petitioner.

2. The case of the petitioner is that the petitioner who was appointed as Data Entry Operator as Piece Rated Employee (tkWc nj) in Chhattisgarh State Cooperative Marketing Federation, Kanker (for short "the Federation") vide order dated 29.09.2010 (Annexure P/1) upto 30.04.2011 and she is continued on contract basis. The petitioner moved an application (Annexure P/2) for grant of maternity leave to respondent No. 2, which was forwarded to District Marketing Federation, Uttar Bastar Kanker by Additional Collector, Uttar Bastar Kanker on 24.01.2020 (Annexure P/3), thereafter, vide impugned order dated 06.03.2021 (Annexure P/4), application moved by the petitioner for grant of maternity leave has been rejected by respondent No. 4 on the ground that there is no rule in the Federation to provide benefit of maternity leave benefit to the Piece Rated Employee.

3. Learned counsel for the petitioner would refer to the Chhattisgarh Civil Sewa (Samvida Niyukti) Niyam, 2012 (for short "the Niyam, 2012"), which has been amended by the State of Chhattisgarh on 19th September, 2018 providing maternity leave benefit to the contractual appointees, who have been appointed under this rule, wherein it has been held as under:-

"13. Eligibility for leave.- (1) Employee appointed on contract shall be entitled for 18 days casual leave and 3 days optional leave in each calendar year, and in the case of appointment in the middle of the year, or no discharge of his service, calculation of eligibility for casual leave shall be made on proportional basis for full completed months.

Explanation - Incomplete day shall be adjusted/rounded off with the next full day for computation and for Vacation Department calendar year means actual service of 12 months. (2) Maternity leave (with salary) to the female employees, employed on contract, shall be admissible up to 180 days or the expiry of period of contract whichever is earlier. This leave shall not be

admissible for the delivery after two living issues."

4. He would place reliance upon the order passed by Hon'ble Coordinate Bench of this Court in Smt. Anu Bharti Goswami Vs. The State of Chhattisgarh & others (decided on 16.01.2021), wherein it has been held at paragraph 3 as under:-

"3. In view of above, the petition is finally disposed off. It appears that despite authoritative pronouncement of this Court in the case of Devshree Bandhe (supra), in various government offices, distinction between a contractual employee and regular employee is being maintained in the matter of grant of maternity leave. Now, this has to be made clear and the State Government should pass appropriate circular to all the government departments/ agencies/corporations and its instrumentalities that in view of the decision of this Court in the case of Devshree Bandhe (supra), contractual employee is also entitled to the same period of maternity leave as a regular employee."

5. Learned counsel for respondents No. 3 to 5 would oppose the submission made by learned counsel for the petitioner and would submit that the Niyam, 2012 is not applicable to the petitioner and in absence of any rule, the petitioner is not entitled to get any relief by this Court and would pray for dismissal of this petition.

6. Learned State counsel would support the contention raised by learned counsel for respondents No. 3 to 5.

7. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

8. It is not in dispute that the petitioner is working as Job Rated Employee with the Federation, which is cooperative society registered under the Cooperative Societies Act, 1960. When this Court posed specific query to learned counsel for the petitioner whether the Niyam, 2012 is applicable to the Federation and whether the Job Rated employee appointed in the Federation falls within ambit of Civil Service Employee and whether Niyam, 2012 has been adopted by the order of Registrar or not, he

would submit that there is no such adoption by the Registrar and would submit that the case of the petitioner is covered by the judgment passed by Coordinate Bench of this Court in Smt. Anu Bharti Goswami (Supra).

9. Section 3 of the Niyam, 2012 deals with Scope and Application, Section 4 of the Niyam, 2012 deals with Posts of Contract Appointment and Section 5 of the Niyam, 2012 deals with Method of Appointment. Sections 3 to 5 of the Niyam, 2012 are extracted below:-

"3. Scope and Application. - These rules shall apply in relation to every such post/posts and to such persons appointed or who may be appointed under these rules on the post/posts declared as contract appointment post by the State Government under Rule 4.

4. Posts of Contract Appointment. - The following posts shall be called as contract appointment post:- (1) Such posts sanctioned as contract appointment posts in the departmental set up.

(2) Such sanctioned posts in regular establishment in the departmental set up which are likely to remain vacant for a period of one year or more due to unavoidable reasons.

(3) Such posts, which are likely to remain vacant for a period of one year or more due to non-availability of Government servants having minimum eligibility requirement or because of unavoidable reasons it is not possible to fill up the post by promotion, with approval of General Administration Department. (4) Such posts, notwithstanding anything contained in departmental recruitment rules, which require specialization, experience and special qualification declared as contract appointment post by a general or special order in exceptionally special cases by the State Government to maintain the efficiency in public administration, except such post for which legal experience in the judicial service field in required under any law or rule for the time being in force.

(5) Posts sanctioned in the personal establishment of Chief Minister/ Ministers on which appointment are to be made till the tenure of Chief Minister/Ministers (co-terminus).

5. Method of Appointment. - Contractual appointment may be made in the following

manner :-

(1) for the posts mentioned under Rule 4(1), by way of public advertisement;

(2) for the posts mentioned in Rule 4(2) and (3), by contract appointment of retired Government servants;

(3) for the posts mentioned in Rule 4(4) in exceptional special cases, directly by contract appointment, of specific non-government person or retired Government servant on the basis of specialization, experience, special qualification and his suitablility for the post after approval of the Finance Department;

(4) for the posts mentioned under Rule 4(5), person recommended by Chief Minister/Ministers considering the prescribed qualification, eligibility and suitability of the person for the post."

10. Learned counsel for the petitioner is unable to point out whether the Niyam, 2012 is applicable to the job rated employee of the Federation, which is cooperative society registered under the Cooperative Societies Act, 1960 or whether the Federation has adopted the rules made by the State Government in this regard. In absence of any rule or notification, the impugned order dated 06.03.2021 (Annexure P/4) does not warrant any interference by this Court.

11. Accordingly, the instant petition sens merit is liable to be and is hereby dismissed. No order as to costs.

Sd/-

(Narendra Kumar Vyas) Judge

Arun