Punjab-Haryana High Court
Sangita vs State Of Haryana And Others on 22 September, 2023
Neutral Citation No:=2023:PHHC:125285
CWP-6866-2020 2023:PHHC:125285 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(204-A) CWP-6866-2020
Date of Decision : September 22, 2023
Dr. Sangita .. Petitioner
Versus
State of Haryana and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Samrat Malik, Advocate, for the petitioner.
Mr. Harish Rathee, Sr. Deputy Advocate General, Haryana.
HARSIMRAN SINGH SETHI J. (ORAL)
1. Present petition has been filed by the petitioner claiming the
benefit of salary for the maternity leave for a period of 180 days with the
further prayer that she be allowed to continue in service.
2. Certain facts may be mentioned for the correct appreciation of
the issue in hand.
3. The respondents advertised a post of Ayurvedic Medical
Officer (Female) to be filled on contractual basis under the RBSK Scheme.
The petitioner, who was fully eligible, applied for the said post and was
selected and appointed as Ayurvedic Medical Officer vide appointment
letter dated 19.08.2014. The appointment was for a particular tenure, which
tenure was further extended. The last extension to continue in service
available with the petitioner was upto 31.03.2019.
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4. Petitioner, while in service, applied for extraordinary leave
from 28.12.2018 to 25.02.2019. As per the petitioner, the said letter was
submitted but nothing is on record that the same was allowed. The
petitioner submitted her joining report on 26.02.2019 and on the same date
she applied for maternity leave for a period of 180 days. Without getting
the said leave sanctioned, the petitioner again availed the said maternity
leave.
5. After the expiry of 180 days, the petitioner came to join back
the services but she was not allowed to do so on the ground that as the
petitioner was not performing her duties since December 2018 onwards and
there was no leave sanctioned in favour of the petitioner and the term of the
petitioner had already expired on 31.03.2019, the respondents had already
issued an advertisement again in pursuance to which a selection has already
been done.
6. As the petitioner was not being allowed to join the duties, the
present petition was filed claiming the benefit of maternity leave and
continuity in service.
7. It may be noticed that though two reliefs are being sought in
the present petition but at the time of hearing, learned counsel for the
petitioner submits that the petitioner is only pressing her claim for the grant
of salary for maternity leave period and is not pressing her claim for
continuing in service.
8. Learned counsel for the respondents submits that the petitioner
initially applied for the grant of extraordinary leave even while working on
a term appointment in December 2019 and further without getting leave
sanctioned, she availed the same and upon joining on 26.02.2019, the
petitioner again submitted a maternity leave on the same day and without
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getting it sanctioned, she again availed the same which shows that the
petitioner is not interested in performing her duties, hence, the claim of the
petitioner for the grant of maternity leave is not made out though, learned
counsel for the respondents conceded the fact that the term of the petitioner
to continue in service had an approval upto 31.03.2019.
9. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
10. Though, a leave can only be availed after getting the same
sanctioned from the authorities concerned but as the petitioner was claiming
the benefit of maternity leave, which the petitioner is entitled under law
keeping in view the provisions of the Maternity Benefit Act, 1961 as well as
the settled principle of law settled by the Hon'ble Supreme Court of India in
Civil Appeal No. 5010 of 2023 titled as Dr. Kavita Yadav vs. The
Secretary, Ministry of Health and Family Welfare Department and
others, decided on 17.08.2023, the respondents were under obligation to
consider the same and pass appropriate order, when the said application was
made on 26.02.2019 during the subsistence of the appointment of the
petitioner as Ayurvedic Medical Officer. Hence, once the petitioner was
entitled for maternity leave under the Act coupled with the settled principle
of law noticed hereinbefore, the same cannot be declined by the
respondents.
11. At this stage, learned counsel for the respondents submits that
within a period of one month, from the date of the application seeking
maternity leave, the term of the contract between the petitioner and
respondent was to expire on 31.03.2019 hence, under said circumstances,
the petitioner could not have been granted maternity leave for a period of
180 days.
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12. The said argument of the learned counsel for the respondents
cannot be accepted in view of the settled principle of law settled by the
Hon'ble Supreme Court of India according to which, even if the term of
contractual employment expires between the maternity leave, still the same
has to be extended. The relevant paragraph of the judgment of the Hon'ble
Supreme Court of India is as under:-
"10. In our opinion, a combined reading of these
provisions in the factual context of this case would lead to the
conclusion that once the appellant fulfilled the entitlement
criteria specified in Section 5(2) of the Act, she would be
eligible for full maternity benefits even if such benefits exceed
the duration of her contract. Any attempt to enforce the
contract duration term within such period by the employer
would constitute "discharge" and attract the embargo
specified in Section 12(2)(a) of the 1961 Act. The law creates
a fiction in such a case by treating her to be in employment
for the sole purpose of availing maternity benefits under the
1961 Act."
13. Hence, as the petitioner had made an application for the grant
of maternity leave on 26.02.2019 and the contract of the petitioner subsisted
on the said date, the respondents are under obligation to grant the petitioner
the maternity leave for a period she is entitled for under the Maternity
Benefit Act, 1961 and the respondents are directed to grant the said
maternity leave to the petitioner and the salary for the said period.
14. As the petitioner has not pressed the claim for continuity in
service, the same is disposed of as not pressed. Let the salary for which the
petitioner becomes entitled for, for the maternity leave, be calculated by the
respondents and be released in her favour within a period of two months
from the receipt of copy of this order.
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15. The present writ petition is disposed of in above terms.
September 22, 2023 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
Neutral Citation No:=2023:PHHC:125285
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