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2019 Supreme(Raj) 1351
IN THE HIGH COURT OF RAJASTHAN
Alok Sharma, J.
Laxmi Kumari Meena - Appellant
Versus
State Of Rajasthan - Respondent
Civil Misc. Stay Application No. 22176 of 2018 in Civil Writ Petition No. 26467 of 2018
Decided On : 29-04-2019
Mr. Himanshu Jain, Advocate, for the Appellant
The main legal point established is the interpretation of Rule 103 of the Rajasthan Service Rules in relation to granting maternity leave to a government servant in respect of a child born prior to the date of her joining State service.
Headnote:
Maternity Leave - Rajasthan Service Rules - The court prima facie held that Rule 103 of the Rajasthan Service Rules does not apply to grant maternity leave to a government servant in respect of a child born to her prior to the date of her joining State service. The court also considered the provisions of the Maternity Benefit Act, 1961 and the interim order in Tanuja Verma v. State of Rajasthan.
Fact of the Case:
The court considered the applicability of Rule 103 of the Rajasthan Service Rules to grant maternity leave to a government servant in respect of a child born to her prior to the date of her joining State service.
Finding of the Court:
The court dismissed the stay application, holding that Rule 103 of the Rajasthan Service Rules does not apply to grant maternity leave in such circumstances.
Issues: Applicability of Rule 103 of the Rajasthan Service Rules to grant maternity leave in relation to a child born prior to the employee's joining State service.
Ratio Decidendi: The court's decision was influenced by the interpretation of Rule 103 of the Rajasthan Service Rules and the provisions of the Maternity Benefit Act, 1961, as well as the lack of persuasive reasons in the interim order.
Final Decision: The stay application was dismissed, indicating that Rule 103 of the Rajasthan Service Rules does not apply to grant maternity leave in the given circumstances.
JUDGMENT
1. Heard on the stay application.
2. Rule 103 of Rajasthan Service Rules (RSR), provides as under:-
103:- 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.
3. I am prima facie of the considered view that the Rule 103 of the Rajasthan Service Rules (RSR) pertaining to maternity leave to employees of the State Government does not attract to grant to a government servant in respect of a child born to her prior to date of her joining State service. In-fact if an appointeea female gives birth to a child immediately prior to her appointment, she can seek postponement of date of her joining. Section 4(1) and 4(2) of the Maternity Benefit Act, 1961 (hereafter the Act of 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].
(2) No women shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy].
4. Mr. Himanshu Jain, in support of an interim order, relied upon an interim order passed by this Court on 12.10.2018 in the case of Tanuja Verma v. State of Rajasthan SBCWP No. 23013/2018 where it was directed while issuing notice as under:-
"Meanwhile, the petitioner shall be entitled to be granted maternity leave in terms of Rule 103 of the RSR and orders in this regard shall be issued. Leave granted shall be subject to final decision of the writ petition."
5. A perusal of the interim order dated 12.10.2018 indicates that it does not set out any reason which can persuade this Court to pass a similar order more so in view of Section 4(1) and 4(2) of the Act of 1961 and the Courts prima facie view that Rule 103 of RSR cannot relate to birth of a child to an employee prior to her employment. Further Child Care Leave (CCL) can be availed by an employee under Rule 103(C) of RSR.
6. The stay application stands dismissed accordingly.
