Madras High Court
S.P.Muthulakshmi vs The Director Of Medical And Rural ... on 30 June, 2023
1 W.P.(MD)NO.15678 OF 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.15678 of 2023
S.P.Muthulakshmi ... Petitioner
Vs.
1. The Director of Medical and Rural Health Service,
No.359, DMS Complex,
301, Anna Salai,
Chennai – 600 002.
2. The Joint Director of Medical and Rural Health Service,
Theni at Periyakulam,
Theni District. ... Respondents
Prayer: Writ petition filed under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, directing
the 2nd respondent to grant maternity leave of one year from
06.04.2023 to 04.04.2024 to the petitioner as eligible
Maternity leave with pay and all salary benefits based on the
petitioner's representation dated 12.06.2023.
For Petitioner : Mr.N.Marimuthu
For Respondents: Mr.N.Ramesh Arumugam,
Standing counsel.
***
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2 W.P.(MD)NO.15678 OF 2023
ORDER
Heard the learned counsel on either side.
2. The petitioner is working as Pharmacist. She got
married to one Chellapandi and a female child was born on
10.01.2013. She gave birth to second child on 20.9.2021. The
petitioner applied and was granted one year maternity leave.
Now the petitioner has become pregnant once again. The
petitioner gave birth to the third child on 07.04.2023. The
petitioner now wants maternity leave to be granted once again
for her third child birth.
3. The issue raised in this writ petition is no longer
res integra. A learned Judge of this Court vide order dated
25.03.2022 in W.P.No.22075 of 2021 allowed the writ petition.
Aggrieved by the same, the State filed an appeal before the
Hon'ble Division Bench. The Hon'ble Division Bench in
W.A.No.1442 of 2022, dated 14.09.2022 (The Government of
Tamil Nadu Vs. K.Umadevi) held as follows:-
“4.2.So far policy of the State is
concerned, it restricts the benefit of maternity
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3 W.P.(MD)NO.15678 OF 2023
leave to two deliveries/two children. The writ
petitioner therefore could not have asked for and
could not have been granted the benefit of
maternity leave for the third child, as per the
policy of the State.
4.3.Grant of maternity leave is not the
fundamental right. It is either a statutory right or
the right which flows from the conditions of
service. Once the rights of the writ petitioner are
governed by the service conditions as applicable
to her, as framed by the State, the Maternity
Benefit Act, 1961 would be inapplicable. This is
the law, going by even the decision of the
Supreme Court of India relied on behalf of the
writ petitioner in the case of Deepika Singh Vs.
Central Administrative Tribunal and others (Civil
Appeal No.5308 of 2022 arising from S.L.P.(C)
No.7772 of 2021, dated 16.08.2022), more
particularly para:17 thereof. Though learned
Additional Advocate General has rightly relied on
the decision of the Uttarkhand High Court in the
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4 W.P.(MD)NO.15678 OF 2023
case of State of Uttarakhand V.Smt.Urmila
Manish and others (Special Appeal No.736 of
2019, dated 17.09.2019), since the subsequent
decision of the Supreme Court also stipulates this,
further discussion qua the decision of the
Uttarkhand High Court is not required. We find
that, in the facts of the case, it would neither be
necessary nor even open to take aid from the Act
of 1961, to explore, whether the writ petitioner
was entitled to the benefit as claimed by her,
which is inconsistent with the policy of the State,
which is neither under challenge nor can be said
to be illegal or arbitrary in any manner. If the
reasons contained in the order under challenge
are weighed keeping this in view, we find that, the
order of learned Single Judge is unsustainable.
The same therefore needs to be quashed and set
aside.
4.4 So far the reliance on behalf of the
writ petitioner, on the decision of the Punjab and
Haryana High Court in the case of Ruksana Vs.
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5 W.P.(MD)NO.15678 OF 2023
State of Haryana and others (Civil Writ Petition
No.4229 of 2022, dated 21.04.2011) is concerned,
we find that the issue No.iv framed by the Court
in the said case, which may have some bearing, is
not answered by it and in any case, we are not in
agreement with other observations made therein.
As against that, according to us, it is the decision
of the Uttarakhand High Court in the case of State
of Uttarakhand Vs.Smt.Urmila Manish and others
(Special Appeal No.736 of 2019, dated
17.09.2019) which sounds to be a good law, more
particularly in view of the recent decision of the
Supreme Court in the case of Deepika Singh Vs.
Central Administrative Tribunal and others (Civil
Appeal No.5308 of 2022 arising from S.L.P.(C)No.
7772 of 2021, dated 16.08.2022) more
particularly para:17 thereof. In totality, we find
that the writ petitioner was not entitled to relief
as claimed by her and the judgment and order
impugned in this appeal is unsustainable, which
needs to be quashed and set aside.”
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6 W.P.(MD)NO.15678 OF 2023
4. Therefore, the legal position that obtains as of now
is that the employee cannot seek maternity leave for third
child birth. However, if the petitioner applies for leave on loss
of pay, the same shall be granted. This writ petition stands
dismissed. No costs.
30.06.2023
NCS : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
https://www.mhc.tn.gov.in/judis
7 W.P.(MD)NO.15678 OF 2023
To:
1. The Director of Medical and Rural Health Service,
No.359, DMS Complex,
301, Anna Salai,
Chennai – 600 002.
2. The Joint Director of Medical and Rural Health Service,
Theni at Periyakulam,
Theni District.
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8 W.P.(MD)NO.15678 OF 2023
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.15678 of 2023
30.06.2023
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