Entitlement to maternity leave for the birth of the third child despite having three children, based on the interpretation of G.O.Ms.No.237 and Fundamental Rules.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order passed by the 4th respondent in A1/019461/2021, dated 30.12.2021, to quash the same and to direct the respondents to sanction maternity leave to the petitioner for 12 months commencing from 20.09.2021 and to quash the same.)

1. This Writ Petition is filed for issuance of a Writ of Certiorarified Mandamus, to quash the impugned order passed by the 4th respondent in A1/019461/2021, dated 30.12.2021 and to direct the respondents to sanction maternity leave to the petitioner for 12 months commencing from 20.09.2021 and to quash the same.

2. The brief facts of the case are that the petitioner joined the fourth respondent Corporation on 12.04.2013 as “Unskilled Worker”. The petitioner's first child was mentally retarded who is having Cerebral Palsy and she is completely immobilized. On 21.11.2015, the petitioner gave birth to another child, namely, Dakshasri. Since the petitioner's first child was mentally retarded, the petitioner and her husband decided to have one more child. The petitioner was conceived a baby on 13.09.2021 and she applied for maternity leave on 20.09.2021. The petitioner was permitted to go on maternity leave and directed to hand over charges. The petitioner submitted a representation on 10.02.2021, requesting to sanction maternity leave but without considering the praying, the fourth respondents rejected the applications, stating that the petitioner is already having two living children and as per G.O.Ms.No.237, Personnel and Administrative Reforms Department, dated 29.06.1993, the petitioner is not entitled to maternity leave. Aggrieved over the same, the petitioner has filed this Writ Petition.

3. This Writ Petition came up for admission and the respondents were directed to take instructions and submit their arguments. The case was again taken up at 2.15 pm for further arguments. Since the submission of the respondents are based on the G.O. Ms. No. 237, Personnel and Administrative Reforms Department, dated 29.06.1993 and the same is considered as counter on behalf of the respondents. The respondents submitted that the petitioner cannot be granted because as per Clause 5(i) of the G.O.Ms.No.237, wherein it clearly states that maternity leave cannot be granted if the employee is having two living children.

4. Heard Mr.M.Saravanan, learned Counsel appearing for the petitioner, Mr.N.Satheesh Kumar, learned Additional Government Pleader appearing for the for the first and second respondents and Mr.K.K.Kannan, learned Standing Counsel appearing for the third and fourth respondent. 5.It has been stated in G.O.Ms.No.237, that the government servant with less than 2 surviving children is allowed for maternity leave. The relevant portion of the said G.O. 237 is extracted under:

“5) The matter was examined in detail and after careful consideration the following orders are issued:

(i) A Women Government servant with less than two surviving children may be allowed maternity leave for a period of 90 days from the date of its commencement.”

6. The said G.O. also states that necessary amendments to the Fundamental Rules will be issued separately. On perusal of the Fundamental Rules, instructions, under Rule 101 (a), it has been stated as under:

“Instructions under Rule 101 (a) - Maternity leave.

1. A competent authority may grant maternity leave on full pay to permanent married women Government servants for a period not exceeding 90 days which may spread over from the pre confinement rest to post confinement recuperation at the option of the Government servant. The maternity leave will not be admissible to married women Government servants with more than three children. Non-permanent, married women Government servants, whether appointed in a regular capacity or under the emergency provisions of the relevant service rules should ta