Himachal Pradesh High Court
Between vs State Of H.P. & Others on 4 January, 2022
Bench: Sabina, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 4th DAY OF JANUARY, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 8227 of 2021
Between:-
MAMTA, AGED ABOUT 46 YEARS,
WIFE OF SH. ANIL KUMAR,
RESIDENT OF VILLALGE RAMPUR JATTA,
P.O. KALA AMB, TEHSIL NAHAN,
DISTRICT SIRMOUR, H.P. AT PRESENT
WORKING AS PEON (CLASS IV) IN DR. YSPGMC &
HOSPITAL NAHAN (173-001).
....PETITIONER
(BY SH. ALANKRIT BHARDWAJ, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY
DEPARTMENT OF HEALTH AND
FAMILY WELFARE SHIMLA.
2. DR. Y.S. PARMAR MEDICAL COLLEGE
& HOSPITAL NAHAN THROUGH ITS
JOINT DIRECTOR (ADMIN). (16002)
3. MEDICAL SUPERINTENDENT, DR. Y.S. PARMAR
MEDICAL COLLGE & HOSPITAL NAHAN (16002)
4. MEMBER SECRETARY ASPTAL/
ROGI KALYAN SAMITI
DR. Y.S. PARMAR MEDICAL COLLEGE
& HOSPITAL NAHAN (16002).
....RESPONDENTS
(SH. SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE
GENERAL FOR R-1 & 2.)
This petition coming on for orders this day, Hon'ble Mr.
Justice Satyen Vaidya, passed the following:
ORDER
By way of instant petition, petitioner has prayed for
following substantive reliefs:-
.
"(i) CIVIL WRIT PETITION under Articles 226/227 of
the Constitution of India for issuance of a writ in
thenature of certiorari quashing the order dated
05.10.2021 (Annexure P-3) and reply dated
13.11.2021 (Annexure P-9) whereby the
respondents have rejected the request of the
petitioner for grant of maternity leave on the
ground that she covered under CCS Rules and
Rule 43-B regarding the benefit of maternity Leave
on adoption of Child has been deleted vide
instruction dated 07.03.2012 and maternity leave
is not admissible despite the fact that the
petitioner is contractual employee of Asptal/ Rogi
Kalyan Samiti, Nahan, Sirmour and CCS Rules are
not applicable on the petitioner.
ii) To further issue a writ of mandamus directing the
respondents to sanction maternity leave from
25.08.2021 as per provisions of The Maternity
benefit Act, 1961 or CCS (Leave) Rules and
consequently to regularize the leave period and
direct the respondents to release the emoluments
of the petitioner and also direct the respondent to
pay cost of litigation and expenses."
2. The case of petitioner is that she is working as Peon on
contractual basis under Rogi Kalyan Samiti, Nahan since 17.1.2005
and is posted at Dr. Y.S. Parmar Medical College & Hospital Nahan
(respondent-2). She claims to be married to one Anil Kumar but
could not beget a child from such relationship for almost eight years.
She adopted a girl child of two months and three days from her
.
biological parents of child on 21.8.2021. She claimed maternity
leave but was denied by respondent No.3 vide communication dated
5.10.2021 (Annexure P-3). Petitioner issued a legal notice, claiming
her rights of meternity leave etc. but her prayer was again rejected
vide reply dated 13.11.2021.
3. Perusal of Annexure P-3 and reply dated 13.11.2021 to
legal notice of petitioner, reveal that only ground to deny the benefit
of maternity leave is Notifiction No.Fin (C)A(3)-II/2003 dated
7.3.2012, which deleted Rule 43B of CCS (Leave) Rules, 1972.
4. Petitioner has also placed reliance on office
memorandum dated 9.4.2018 (Annexure P-8) according to which,
she is entitled to the benefits of maternity leave, as provided under
Maternity Benefits Act, 1961, as amended from time to time.
By virtue of Maternity Benefits (Amendment) Act, 2017,
(6 of 2017), Sub-Sections 4 and 5 have been added to Section 5 of
the said Act, which reads as under:-
"(4) A woman who legally adopts a child below the age of
three months or a commissioning mother shall be
entitled to maternity benefit for a period of twelve weeks
from the date the child is handed over to the adopting
mother or the commissioning mother, as the case may
be.
(5) In case where the nature of work assigned to a
woman is of such nature that she may work from home,
the employer may allow her to do so after availing of the
maternity benefit for such period and on such conditions
as the employer and the woman may mutually agree."
.
5. A Division Bench of this Court in which one of us
(Satyen Vaidya, J.) was a Member in CWP No. 1675 of 2021, titled as
Dr. Pratiba Himral vs. State of H.P. & others, decided on 29.9.2021
has held that a mother, on adoption of a child is entitled to the
benefits of maternity leave. In said case, the child was merely 15
days old at the time of adoption and in the instant case, the child
was only two months and 3 days old at the time of adoption,
whereas, the amended provisions of Maternity Benefits Act have
extended the benefits thereof to a woman, who legally adopts a child
below the age of three months.
6. Admittedly, while rejecting the case of petitioner,
respondents have not taken into consideration the above noted
judgment passed in CWP No. 1675 of 2021, titled as Dr. Pratiba
Himral vs. State of H.P. & others, decided on 29.9.2021. There also
is no reference in the rejection order Annexure P-3 to the claim of
petitioner under the provisions of Maternity Benefits Act.
7. Faced with above position, learned counsel for the
petitioner submits that his client shall be satisfied at this stage, in
case respondent No.2 is directed to re-consider her request for grant
of maternity leave and allied benefits, in light of the judgment in
CWP No. 1675 of 2021, titled as Dr. Pratiba Himral vs. State of H.P.
& others, decided on 29.9.2021 as also the office memorandum
dated 9.4.2018 ( Annexure P-8) read with amended provisions of
.
Maternity Benefits Act.
8. Mr. Ajay Vaidya, learned Senior Additional Advocate
General has fairly submitted that he has no reasons to object to
passing of such an order, being innocuous.
9. We therefore, deem it proper to set aside the order dated
5.10.2021 (Annexure P-3), having been passed without considering
the judgment passed by a Division Bench of this Court in CWP No.
1675 of 2021, titled as Dr. Pratiba Himral vs. State of H.P. & others,
decided on 29.9.2021. Respondent No.2 is thus directed to re-
consider the case of petitiner for grant of maternity leave in light of
above noted judgment and also the observations made hereinabove,
within eight weeks from the date of receipt of this order, by affording
reasonable opportunity of being heard to the petitioner.
10. In view of the aforesaid observations, the writ petition is
disposed of. Pending applications, if any, also stand disposed of.
For compliance to come up on 8.3.2022.
(Sabina)
Judge
(Satyen Vaidya)
4th January, 2022 Judge
(kck)
