The main legal point established is that even fixed pay employees, who have completed a certain period of service, are entitled to maternity leave under the Gujarat Civil Services (Leave) Rules, 2002 and the Maternity Benefit Act, 1961.

JUDGMENT :

1. Rule returnable forthwith. Ms. Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule for the respondent – State.

2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.

3. Heard Ms. Rucha Gami, learned counsel for the petitioner and Ms. Surbhi Bhati, learned AGP for the respondent-State. Perused the record.

4. By way of this petition, under Article 226 of the Constitution of India, a lady petitioner, who was working as an Assistant Teacher has been denied the benefit of maternity leave of 98 days.

5. While issuing notice, the coordinate Bench of this Court on 16.9.2021 passed the following order :

“Heard learned Advocate Ms. Rucha A. Gami for the petitioner and learned AGP Ms. Dharitri Pancholi for the respondent State.

By way of this petition, the petitioner challenges the decisions passed by the respondent authorities dated 11.09.2019 and 22.10.2020 whereby the maternity leave availed by the petitioner has not been treated as period in service.

Having regard to the same, issue Notice to the respondents, returnable on 11.10.2021.

Learned AGP waives service of notice on behalf of respondent No.1.

Direct service is permitted”

6. The case of the petitioner is that she was appointed pursuant to the GR dated 2.7.1999 as an Assistant Teacher (Vidhya Sahayak) on a fixed pay of Rs.4,500/- by an order dated 22.2.2000. She completed five years of continuous service on 22.2.2005.

7. According to Ms. Gami, learned counsel for the petitioner, the Resolution of the State Government from time to time entitled lady employees to seek benefits of maternity leave. Accordingly, she took maternity leave for a period of 98 days from 15.4.2002 to 3.5.2002 and 11.6.2002 to 28.8.2002. By the impugned orders, the request for leave was rejected on the ground that the petitioner was on fixed pay.

7.1. Ms. Gami would rely on a decision dated 23.12.2003 passed in SCA No.5692 of 2002 of this Court rendered in a case of Bhartiben Babulal Joshi v. Administrative Officer. She would also rely on Rule 69 of the Gujarat Civil Services (Leave) Rules, 2002. Rule 69 of the Rules would provide that a female employee in permanent employment shall be entitled for maternity leave for a period of 135 days. Such leave shall not be debited to the leave account. Sub Rule (2) of Rule 69 further states that a female employee not a permanent employee who has put in one year of continuous service is entitled to maternity leave as provided under sub Rule (1) of Rule 69. Therefore, her submission would be that having completed two years of service on the date when she applied for maternity leave, the petitioner was entitled to the benefits of Rule 69.

8. Ms. Bhati, learned Assistant Government Pleader for the respondent – State submits that the stand of the respondent is justified, inasmuch as, she being a fixed term employee could not avail of the benefit of being paid wages for the period when she was on leave as maternity leave.

9. Considering Rule 69 of the Rules, 2002, it is clear that an employee even if she is not a permanent female employee and who has completed at least one year of service is entitled to maternity leave. Even the decision in the case of Bhartiben Babulal Joshi (Supra) indicates that the Coordinate Bench of this Court considering the decision in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll) reported in 2000(3) GLH 163 considered the question of benefits of maternity leave under the Maternity Benefit Act, 1961. The stand of the government was that in the case of Bhartiben Babulal Joshi (Supra) the petitioner there was not as a Vidhya Sahayak and, therefore, was not entitled to the benefit of maternity leave. In that context, considering the decision in the case of Female Workers (Muster Roll) (Supra), the Court held as under :

“The short question arising for consideration of this Court is as to whether the petitioner who is working a