JUDGMENT :

TARLOK SINGH CHAUHAN, J.

1. The short question that arises for consideration in this petition is whether a woman employee working as Language Teacher on contract basis with the Government is entitled to avail maternity leave even in case where she gets the child through arrangement by surrogate parents?

2. The petitioner joined as a Language Teacher on contract basis and is currently posted at Government Senior Secondary School, Showad, District Kullu. The petitioner was blessed with a baby on 10.09.2020 through surrogacy treatment from Fortis La Femme Hospital S-549 Alknanda Don Bosco Road, Greater Kailash II, New Delhi. The petitioner had applied for maternity leave to the Principal, Government Senior Secondary School, Showad, District Kullu( respondent No.4), who in turn forwarded the same to 3rd respondent i.e. Deputy Director, Higher Education, Kullu, seeking clarification as to whether the petitioner is entitled for maternity leave on surrogacy. However, no action whatsoever was taken on the application of the petitioner, constraining her to file the instant petition, seeking therein a direction to the respondents to sanction/grant the maternity leave to the petitioner.

3. The respondents have filed short reply wherein they have not denied that the petitioner had been blessed with a baby through surrogacy and had applied for maternity leave. The only ground taken for non grant of the leave was that as per Notification of H.P. Government issued vide Finance Department No. Fin.(C)-A(3)-1/2008 Loose dated 21.12.2017, maternity leave is admissible on adoption of a child as per Rule 43(1) of CCS (Leave) Rules 1972 for 180 days, but there is no clarification in the said notification regarding admissibility of maternity leave to a female Government employee on surrogacy.

4. We have heard the learned counsel for the parties and have gone through the material placed on record.

5. The question of becoming parents through surrogacy came to be considered by the Hon’ble Supreme Court in Baby Manji Yamada versus Union of India and another (2008) 13 SCC 518. Even though, the dispute therein was between biological parents and host, however, various forms of surrogacy were discussed by the Hon’ble Supreme Court in the said judgment from paragraphs 8 to 16 which read as follows:

“8. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child's genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.

9. The word "surrogate", from Latin "subrogare", means "appointed to act in the place of". The intended parent(s) is the individual or couple who intends to rear the child after its birth.

10. In "traditional surrogacy" (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh of frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic. '

11. In "gestational surrogacy" (also know as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surro