Rajasthan High Court

Nisha Kumari Yadav W/O Harpal ... vs State Of Rajasthan Through ... on 19 December, 2022

Bench: Sameer Jain

     sHIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 24361/2018

Smt. Mantosh Jat W/o Shri Sandeep, D/o Sh. Ram Swaroop Jat,
Aged About 26 Years, R/o Dhani Holawali, Vill Bamanwas, Post
Chaturbhuj, Tehsil Kotputli, Dist Jaipur (Raj.)
                                                                     ----Petitioner
                                     Versus
1.     State     Of    Rajasthan,          Through         Principal    Secretary,
       Education Department, Government Secretariat, Jaipur
       (Raj.)
2.     The Director, Elementary Education, Rajasthan, Bikaner
       (Raj.)
3.     Development Officer, Panchayat Samiti, Balotra (Raj.)
4.     Panchayat Elementary Education Officer, Gram Panchayat
       Budiwada, District Barmer (Raj.)
5.     The Principal, Govt. Senior Secondary School, Modau,
       Budiwada, District Barmer (Raj.)
                                                                  ----Respondents

Connected With S.B. Civil Writ Petition No. 24208/2018 Nisha Kumari Yadav W/o Harpal Yadav, Aged About 31 Years, Resident Of Vikas Colony, Behind Rajput Hostel, Ghora Pher Chauraha, Alwar (Raj.)

----Petitioner Versus

1. State Of Rajasthan Through Director (Secondary), School Education, Bikaner.

2. Joint Director, School Education, Bharatpur Division, Bharatpur.

3. District Education Officer, Bharatpur.

4. Principal, Government Sr. Secondary School, Dundawal, Nagar, Bharatpur.

----Respondents S.B. Civil Writ Petition No. 2097/2021 Suman Sharma W/o Sachin Sharma, Aged About 29 Years, R/o G-2, 4, Shree Bajarang Residency, Vaishali Prime Dhawas, Ajmer

(2 of 8) [CW-24361/2018]

Road, Jaipur (Raj.).-302021

----Petitioner Versus

1. The State Of Rajasthan, Through Its Additional Secretary, Women And Child Development Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur (Raj.).

2. The Director, Directorate Of Women Empowerment (W.e.), 7, Jhalana Institutional Area, Jaipur (Raj.)

3. The Director, Office Of Child Development Project Officer, Integrated Child Development Services, Mandore, Dist. Jodhpur

----Respondents

For Petitioner(s) : Mr. Mahipal Singh Shekhawat Mr. Ashish Sharma Upadhyay Mr. Akshit Gupta for Mr. Vigyan Shah For Respondent(s) : Mr. Ganesh Meena, AAG with Mr. Saurabh Sharma Mr. Abhishek Sharma for Mr. Aditya Sharma, Dy. G.C.

Mr. Prakash Chand Yadav for Ms. Priyanka Pareek, AGC

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment / Order

Reserved on 14/12/2022 Pronounced on 19/12/2022

1. Since common facts, grounds and prayers are urged in all

these writ petitions, with the consent of parties, these cases were

taken up for final disposal and after hearing arguments advanced

on behalf of both the sides, the judgment was reserved.

2. The common issue raised by learned counsel for the

petitioners in all these writ petitions is qua denial of maternity

leave to the petitioners. It is submitted that denial of maternity

leave was de-hors the Rajasthan Service Rules, 1951, Article 21 of

(3 of 8) [CW-24361/2018]

the Constitution of India, the judgment rendered by Division

Bench of this Court in State of Raj. & Ors. Vs. Smt. Neeraj (DB

Special Appeal Writ No.376/2021), decided on 04/08/2021 as

well as the judgment rendered by coordinate Bench of this Court

in Smt. Neeraj Vs. State of Raj. & Ors. (SB Civil Writ Petition

No.4384/2020), decided on 07/12/2020. It is also argued that

in terms of Rule 103 of the Rajasthan Service Rules, 1951, read

with Section 4 of the Maternity Benefit Act, 1961, the petitioners

are entitled for maternity leave and the respondents, by not giving

effect to the settled position of law, are ignoring the mandate of

law and therefore, the writ petitions need to be allowed.

3. Learned counsel for the respondents are not able to refute

the aforesaid contentions raised by learned counsel for the

petitioners that the provisions of Rule 103 of Rajasthan Service

Rules, 1951 qua grant of maternity leave and the provisions of

Section 4 of the Maternity Benefit Act, 1961 are beneficial piece of

legislation. Learned counsel for the respondents have also

accepted that no SLP has been filed before the Supreme Court

against the judgment of Smt. Neeraj (supra), rendered by the

Division Bench of this Court.

4. For adjudication of the matter, SB Civil Writ Petition

No.24208/2018 is taken as lead file to pursue the facts. The

petitioner therein, being successful in Senior Teachers Examination

2016, got appointment vide order dated 27.09.2018. The

petitioner is having two wards, one son and other daughter. She

got admitted in Devyani Hospital, Alwar on 10/06/2018 for

delivery of her second child and the child (daughter) was born on

11/06/2018. The petitioner in pursuance of the appointment letter

dated 27/09/2018, joined her service on 28/09/2018. She

(4 of 8) [CW-24361/2018]

submitted application on 16/10/2018 for grant of maternity leave

stating therein that at the time of joining services in the School,

her daughter was only 108 days and being in this postnatal

situations, she was not able to maintain her daughter and herself

properly. However, the said application was rejected by the

respondent stating that the issue born to the petitioner was before

joining services, and since the petitioner could not be said to be

'Government Servant' before officially joining, the benefit of

maternity leave could not be extended to her. In this background,

the writ petition was filed.

5. Before this Court advents to the issue under consideration, it

is important to consider the provisions of Rajasthan Service Rules,

1951 more particularly Rule 103 which provides as under:-

"103. Maternity Leave:- Maternity leave may be granted to a female Government servant with less than two surviving children upto a period of 180 days from the date of its commencement. However, if there is no surviving child even after availing it twice, maternity leave may be granted on one more occasion.

During such period, she will be entitled to leave salary equal to pay drawn immediately before proceeding on leave. Such leave shall not be debited to the leave account but such entry should be made in the service book separately.

Note:- Maternity leave may also be granted to a female Government servant with less than two surviving children, in case of miscarriage including abortion, either once or twice subject to total of six weeks during the entire service provided that the application for leave is supported by a certificate from the authorized medical attendant."

6. Further, Section 4(1) of the Maternity Benefit Act, 1961

provides as under:-

"(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, [miscarriage or medical termination of pregnancy]."

(5 of 8) [CW-24361/2018]

7. The relevant findings arrived at by the Division Bench of this

Court in Smt. Neeraj (supra), are reproduced as under:-

"The fact that the respondent delivered a child on 15.05.2016 just before the joining period is not disputed by the parties. It is undisputed that after the delivery of a child, the mother needs rest and a certain period for fulfilling the natal needs of the child. It is of common knowledge that if an employee who has delivered child needs some time to recover from the post delivery issues and to take care of the new born baby. It is precisely for this reason the legislature thought it proper to insert a provision in the shape of Rule 103 of the Rajasthan Service Rules, 1951. The view taken by the learned Single Judge thus, is quite natural and to give a complete meaning and purpose to the legislative intent so that the needs of a female employee are taken care of at the time of delivery of a child.

The argument of the learned Additional Advocate General that Rule 103 of the Rules is applicable only to the serving Government servant is noted to be rejected for the reason that Rule 103 of the Rajasthan Service Rules, 1951 has a nexus with the object sought to be achieved by the legislature i.e. for facilitating the female to overcome the problems and issues at the time of the delivery. Therefore, if a female government servant delivers a child before joining the services but within the confinement period, she will be entitled to get the benefit of Rule 103 of the Rajasthan Service Rules, 1951.

We are gainfully supported by the observations of the Kerala High Court on this issue in the case of Mini K.T. v. Senior Divisional Manager, Life Insurance Corporation of India in Writ Petition No. 22007 of 2012 decided on 21.12.2017, which read as under:-

1. "Motherhood is the mother of all civilization. Family as a social institution is considered as the backbone of the society. Family is the first model of political society (Rosseau on the Social Contract). When people settled down and started living as a commune, the family was the foundation of such commune, and women was the center of such family. No civilization passed without recognising the power of mother and often figuratively projected her as Goddess. (See our own glorious past, as described by Jasodhara Bagchi, a feminist writer in her book, "Interrogating motherhood"):

"The celebration of motherhood has happened in most cultures in the world, and Indian culture is no exception. The oldest available cultural artifacts in the pre-Aryan civilization in Mohenjo-daro and Harappa bear testimony to the mother cult. The principle of fertility represented by the embodiment of mother is

(6 of 8) [CW-24361/2018]

the oldest testimony to the sense of continuity of the species. Not just birthing but the process of nurturance that makes it incumbent upon homo sapiens to recognize the value of the mother."

A child born to a family sees the world first through the eyes of his mother and develops his cognitive skills through the vision of his family. In earlier centuries, predominantly, in agrarian society, the role of woman was limited to taking care of children, household and family. Social conditions of modern family underwent transformation due to industrialisation and urbanisation. As a result, the social and legal concept related to the society also got changed. Motherhood then has become a contentious issue in the modern society, particularly, in economic frontier, as the competing market interests override notions of culture and social justice like gender equity.

Identity of a women is often tangled within the patriarchal structure of a commercially or profit motivated enterprise which dare to see mothering or family responsibility remain subordinate to their interest. Complexity of working environment as above is designed by an architecture without adhering to rules of gender equality; often overwhelmingly to suit men."

23 . Coming back to the question of dignity, those dignity has to be understood in the societal background. Indian cultural and traditional practices would go to show that motherhood is an essential part of family responsibility. International Human Rights Law thus protect dignity of woman and also family. The Constitution thus demand interpretation of its provisions in that background. Person-hood of a woman as mother is her acclaim of individuality essentially valued as liberty of her life. This was so designed by culture, tradition and civilisation. Mother's role in taking care of the child has been considered as an honour; she enjoyed such status because of her position in respect of the child. If on any reason she could not attend her workplace due to her duties towards child (compelling circumstances), the employer has to protect her person-hood as "mother". If not that, it will be an affront to her status and dignity. No action is possible against a woman employee for her absence from duty on account of compelling circumstances for taking care of her child. No service Regulations can stand in the way of a woman for claiming protection of her fundamental right of dignity as a mother. Any action by an employer can be only regarded as a challenge against the dignity of a woman. Motherhood is not an excuse

(7 of 8) [CW-24361/2018]

in employment but motherhood is a right which demands protection in given circumstances. What employer has to consider is whether her duty attached to mother prevented her from attending employment or not. As already adverted above, motherhood is an inherent dignity of woman, which cannot be compromised.

We are in complete agreement with the view taken by the learned Single Judge that since it is a beneficial legislation and if a female government servant is giving birth to a child within the stipulated period of confinement i.e. 15 days before to three months after the birth of the child, she will be entitled to maternity leave. The argument of the learned Additional Advocate General that the respondent was not a Government Servant at the time of delivery of a child has no merit and therefore, the same is liable to be rejected in the light of the discussions made hereinabove. It is reiterated that the purpose and intention of the rule-making authority is to facilitate the female government employees by extending the benefit of maternity leave at the time of delivery of the child.

In view of the discussions made above, the judgment dated 07.12.2020 passed by learned Single Judge is upheld and the appeal is dismissed being bereft of merit.

8. On consideration of Rule 103 of the Rajasthan Service Rules,

1951, Section 4 of the Maternity Benefit Act, 1961 and the

judgment of the Division Bench of this Court in case of Smt.

Neeraj (supra), this Court is of the view that that irrespective of

the fact whether the petitioner was or was not a Government

Employee on the date of giving birth to the child, she will be

entitled for maternity leave for a period of 180 days from the date

of its commencement i.e. the application qua two surviving

children only. The use of word 'Government Servant' and joining

the service at a later stage has been rendered to be redundant by

the findings given by the Division Bench of this Court in Smt.

Neeraj (supra) considering the fact that the Rules made and the