Government servant entitled to maternity leave even if child is born shortly before joining service: Rajasthan High Court

The Rajasthan High Court ruled that a female government servant who joined government service after her pregnancy would be entitled to maternity leave if she joined during her period of confinement, that is 15 days before childbirth till three months thereafter..A Single Bench of Justice Dinesh Mehta issued an order to this effect, interpreting Rule 103 of the Rajasthan Service Rules, which governs the grant of maternity leave to female government servants.."..it is declared that a female Government servant is entitled to avail maternity leave, if she joins within the period of confinement, i.e. 15 days before to three months after the child birth, regardless of the fact that the child was born prior to joining or before issuance of appointment order..", the Court held..The facts.The Court was hearing a petition moved by a female government servant, who was appointed as a Physical Instructor on June 4, 2016. She mothered a child on May 15, 2016, a few days before she received her appointment letter. Though she joined work on June 6, she moved an application for maternity leave on June 21, 2016, specifying the date on which she gave birth..142 days later, she reported back for work..After a lapse of around two years, the State government granted her leave for 90 days without salary. In July 2019, she was sanctioned leave for the 142 days she was away from work, out of which 90 days were considered as leave without payment and 52 days treated as extra ordinary leave without payment. Her request for paid maternity leave was however, rejected.Subsequently, her probation period was extended by 112 days and her services were confirmed in November 2019, to take effect from August 2018..Aggrieved, the petitioner challenged the orders rejecting her maternity leave request and the delayed confirmation of service. The denial of maternity leave was arbitrary and against Rule 103, she averred..In proceedings before the High Court, her counsel relied on Harshita Yadav Vs. State of Rajasthan & Ors. to state that the petitioner is entitled for maternity leave, irrespective of when she gave birth..The State counsel objected to the writ petition contending that it suffered from delay and laches. He stated that the petitioner’s request for maternity leave was considered by the government in its orders in 2018 and 2019. The counsel also asserted that the Court could not place reliance on Harshita Yadav, because the decision was grounded completely in the Maternity Benefit Act, 1961 and did not consider Rule 103. It was additionally submitted that maternity leave as per Rule 103 could be availed only if a child was born to the employee after she joined for work.Because the Rule began with the words ‘to a Government servant’, the counsel went on to argue that the petitioner was not a government servant at the time her child was born to her..What the Court reasoned.Reading the rule, the Court observed that it was an employee-centric beneficial provision, incorporated to obviate hardship faced by a mother. It had no connection to the date or event of childbirth, the Court pointed out.The Court also made reference to a related service rule allowing paternity leave to male government servants during his wife’s ‘period of confinement’ - Rule 103ARule 103A defined the period of confinement as fifteen days before birth of the child to three months after the birth of the child.Considering both the rules, the Court concluded that the date of childbirth was relevant for paternity leave, but not for maternity leave, because it was not specified in the latter. Thus, Rule 103 did not create a right based on the date of the child’s birth, the Court reasoned..The wording of the rule demonstrated that the provision was to be implemented as soon as it was brought in force, without any reference to a date for delivery, the Court added.."..since on the date of promulgation of these Rules, an employee, who had already given birth, was held entitled to avail maternity leave, it will not only be iniquitous, but also discriminatory to exclude an employee, who has given birth to a child a few days ahead of joining the government service. Needless it is to say, that having joined pursuant to an appointment on substantive post, an incumbent becomes a government servant for all practical purposes and a mother’s maternity needs cannot eclipse, simply because she has joined the duties...", the Court stated..With respect to the State counsel’s contention that the petitioner gave birth before her appointment as a government servant, the Court termed it a ‘pseudo distinction’. Adopting the reasoning urged by the State would go against the Rule, while also being arbitrary, inequitable, and inhumane, the Court underscored..The Court also rejected the preliminary objection to the writ petition for delay. Pointing out that it was the State that delayed considering the petitioner’s application for maternity leave by two years, the Court said:"This Court feels that it is high time when State should focus on merit of the case and confine itself to the permissibility of right or benefits, to a citizen, instead of raising worthless objections or bogies of delay.Hence, the doors of Justice can not be slammed on the face of the petitioner, as requested by the respondents.".Hence, the doors of Justice can not be slammed on the face of the petitioner, as requested by the respondents.Rajasthan High Court.Additionally, she was confirmed as an employee only in November 2019, after which she filed her writ petition in May 2020. This was by no means belated, the Court concluded..Directing that the petitioner be allowed paid maternity leave, the Court also instructed her confirmation date to be pushed to June 5, 2018..On these terms, the petition was disposed..Advocate Bhavit Sharma appeared for the petitioner and advocate Rishi Soni, associate to Additional Advocate General Pankaj Sharma represented the State of Rajasthan..[Read judgment ]