Maternity leave is a reproductive right under Article 21 of the Constitution, and restrictive state policies must not obstruct such entitlements, as aligned with international standards.

JUDGMENT :

UJJAL BHUYAN, J.

This civil appeal by special leave takes exception to the judgment and order dated 14.09.2022 passed by the Division Bench of the High Court of Judicature at Madras (High Court) in W.A. No. 1442 of 2022.

2. By the aforesaid judgment and order dated 14.09.2022 (impugned judgment), Division Bench set aside the judgment and order dated 25.03.2022 passed by a learned Single Judge of the High Court in W.P. No. 22075 of 2021 ( K. Umadevi Vs. Government of Tamil Nadu and Others ) whereby direction was issued to the State to sanction maternity leave to the appellant. By reversing the aforesaid decision, Division Bench held that appellant was not entitled to the benefit of maternity leave as claimed by her.

3. Relevant facts may be briefly noted.

4. Appellant married A. Suresh in the year 2006. From the said wedlock, two children were born: first one in 2007 and the second one in 2011. She entered government service in December, 2012 as English Teacher in Government Higher Secondary School, P. Gollapatti, Dharmapuri District in the State of Tamil Nadu. Marriage between the two was dissolved in the year 2017. It is stated that the two children born out of the said wedlock are in the custody of the former husband.

4.1. On 12.09.2018, appellant married M. Rajkumar. Due to conceivement from her second marriage, appellant applied for grant of maternity leave to the authorities for the period from 17.08.2021 to 13.05.2022 (nine months) which was inclusive of both pre-and-post-natal periods.

4.2. The third respondent vide order dated 28.08.2021 rejected the prayer of the appellant. It was stated that as per Fundamental Rule (FR) 101(a) which is applicable to state government employees of Tamil Nadu, maternity leave is available to women state government employees having less than two surviving children. There is no provision for grant of maternity leave for the third child on account of appellant’s re- marriage.

4.3. Aggrieved by rejection of her request for grant of maternity leave, appellant preferred a writ petition before the High Court which was registered as W.P. No. 22075 of 2021. A learned Single Judge of the High Court vide the judgment and order dated 25.03.2022 held that appellant was entitled to grant of maternity benefit. Therefore, rejection of her claim for grant of such benefit was illegal. As such, order dated 28.08.2021 was set aside. Respondents were directed to sanction maternity leave to the appellant as admissible in terms of the latest G.O.Ms. No. 84 of the Personnel and Administrative Reforms (FR-III) Department dated 23.08.2021. Consequential decision was directed to be taken within a period of two weeks from the date of receipt of a copy of the said judgment. Writ petition was accordingly allowed.

4.4. Government of Tamil Nadu and its officers filed intra- court appeal being W.A. No. 1442 of 2022. A Division Bench of the High Court vide the impugned judgment and order dated 14.09.2022 found the judgment of the learned Single Judge to be unsustainable. Division Bench held that the appellant was not entitled to maternity relief as claimed by her. Accordingly, the judgment and order of the learned Single Judge dated 25.03.2022 has been set aside. Conseq