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2020 Supreme(Raj) 638
IN THE HIGH COURT OF RAJASTHAN
Dinesh Mehta, J.
Neeraj - Appellants
Vs.
State of Rajasthan and Ors.- Respondent
S.B. Civil Writ Petition No. 4384 of 2020
Decided On : 07-12-2020
For the Appellant :Bhavit Sharma, Advocate
For the Respondents Rishi Soni, Advocate associate to Pankaj Sharma, AAG
A female Government servant is entitled to avail maternity leave under Rule 103 of the RSR, irrespective of the date of the child's birth. The State cannot rely on technical objections to defeat legitimate claims of citizens.
Headnote:
Maternity Leave - Entitlement of Maternity Leave to a Candidate who gave Birth before Joining Government Service - Rajasthan Service Rules, 1951 - Rule 103
Fact of the Case:
The petitioner, who gave birth to a child before joining the Government service, sought maternity leave under Rule 103 of Rajasthan Service Rules, 1951. The respondents initially sanctioned 90 days' leave without payment and later 142 days' leave, including 52 days as extraordinary leave without payment. The petitioner also contested the extension of her probation period and the delay in confirming her services.
Finding of the Court:
The Court held that the petitioner is entitled to maternity leave under Rule 103 of the RSR, irrespective of the fact that she gave birth to the child before joining the Government service. The impugned orders refusing maternity leave and deferring confirmation were quashed, and the petitioner's sanctioned leave was treated as maternity leave. The Court also declared that a female Government servant is entitled to avail maternity leave if she joins within the period of confinement, regardless of the date of the child's birth.
Issues: Entitlement to maternity leave, extension of probation period, delay in confirming services
Ratio Decidendi: A female Government servant is entitled to avail maternity leave under Rule 103 of the RSR, irrespective of the date of the child's birth. The State cannot raise technical objections to defeat legitimate claims of citizens. The date of child birth is not significant in the case of maternity leave, unlike paternity leave.
Final Decision: The petition was allowed, and the impugned orders were quashed. The petitioner's sanctioned leave was treated as maternity leave, and she was entitled to salary for the period of such leave. The petitioner was deemed confirmed w.e.f. 05.06.2018, and the Court declared the entitlement of maternity leave if a female Government servant joins within the period of confinement.
JUDGMENT :
Dinesh Mehta, J.
1. The conundrum, which is required to be resolved in the present case, is, whether a candidate, who has given birth to a child prior to joining the Government service, is entitled for maternity leave under Rule 103 of Rajasthan Service Rules, 1951?
2. Before venturing into such exercise, it would be apt to take note of certain dates, which have implication on the issue at hands:
(i) The petitioner gave birth to a child on 15.05.2016;
(ii) The petitioner was given appointment on the post of Physical Training Instructor (PTI), Grade-III on 04.06.2016;
(iii) Petitioner gave her joining on 06.06.2016;
(iv) Petitioner applied for maternity leave on 21.06.2016;
(v) Petitioner did not attend Office from 26.06.2016 to 10.11.2016 (142 days);
(vi) Petitioner's application for maternity leave was decided vide order(s) dated 13.08.2018 and 17.07.2019;
(vii) Petitioner's services were confirmed w.e.f. 26.09.2018 (vide order dated 21.11.2019);
(viii) The writ petition filed on 19.05.2020.
3. The petitioner, who was appointed on the post of Physical Training Instructor, Grade-III, vide appointment order dated 04.06.2016, mothered a baby boy on 15.05.2016, just a few days before receiving the appointment order.
4. As the petitioner had to undergo a Cesarean Section she was not fit enough to join, but with a view to ward off adverse consequence of non-joining, she preferred to give her joining on 06.06.2016.
5. For the purpose of taking care of her child and herself, she moved an application for grant of maternity leave on 21.06.2016, while clearly mentioning that she has given birth to a child on 15.05.2016 by cesarean section and, thus, she will be unable to attend the duties. The petitioner had enclosed birth certificate and other relevant documents with the application so filed.
6. On 10.11.2016, the petitioner reported back on duties after remaining absent for 142 days.
7. The petitioner's aforesaid leave application (filed on 21.06.2016) came to be dealt with by the respondents firstly vide communication dated 13.08.2018 whereby 90 days' leave without payment was sanctioned.
8. By another communication dated 17.07.2019, the petitioner was sanctioned a total 142 days' leave, out of which 90 days were considered as leave without payment as per communication dated 13.08.2018 and 52 days' leave was treated as extra ordinary leave (EOL), that too without payment.
9. Despite completion of probation period of two years, the respondents extended petitioner's probation period by 112 days and confirmed her services w.e.f. 26.09.2018, vide order dated 21.11.2019.
10. The petitioner has approached this Court with a grievance that the respondents are not justified in deferring petitioner's confirmation for a period of 112 days. According to the petitioner, her confirmation ought to have been made effective from 05.06.2018. Petitioner has also called the orders refusing maternity leave in question.
11. Mr. Bhavit Sharma, learned counsel appearing for the petitioner, submitted that the respondents were not justified in deferring petitioner's confirmation by 112 days, while maintaining that respondents' action in not granting maternity leave to the petitioner is arbitrary and contrary to Rule 103 of the RSR.
12. He contended that order dated 21.11.2019 so also the respondents' action of not sanctioning maternity leave, deserve to be quashed and set aside.
13. Learned counsel relied upon the judgment dated 19.05.2017, rendered by this Court in Harshita Yadav vs. State of Raj. & Ors.; S.B. Civil Writ Petition No. 11833/2014 and submitted that the petitioner is entitled for maternity leave, irrespective of the fact that she gave birth to a child before entering into the Government Service.
14. Mr. Rishi Soni, Associate to Mr. Pankaj Sharma, AAG, learned counsel appearing for the respondent - State raised a preliminary objection that the petition at hand suffers from delay and laches.
15. Highlighting the fact that the petitioner's application for m
