The interpretation of Rule 43 of the Central Civil Services (leave) Rules 1972, which determines the eligibility for maternity leave based on the number of surviving children a female Government servant has.

JUDGMENT

Sant Prakash, J. (Oral). - The instant petition has been preferred under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari, quashing order/judgment dated 29.01.2021 (Annexure P-4) whereby the Central Administrative Tribunal (for short, 'CAT') has dismissed original application filed by the petitioner, rejecting her claim for grant of maternity leave from 04.06.2019 to 30.11.2019 for her first child namely Viren Pratap Singh, born on 04.06.2019; as well as to quash orders dated 03.09.2019 and 21.01.2020, (Annexures P-2 and P-1, respectively) whereby the respondents have rejected the request of petitioner for grant of maternity leave and converted the same into Earned Leave; with a further prayer to issue an writ of mandamus directing the respondents to sanction maternity leave from 04.06.2019 to 30.11.2019 by treating a newly born baby (Viren Pratap Singh) as her first child and to regularize the leave period.

2. Succinctly, the petitioner is working on the post of Nursing Officer in Post Graduate Institute of Medical Education and Research, Chandigarh-respondent No.3. On 18.02.2014, the petitioner solemnized marriage with Amir Singh as per Hindu rites and rituals. While it was the first marriage of petitioner, her husband namely Amir Singh performed second marriage, his earlier wife namely Sunita Singh having been passed away on 16.02.2013. From the first marriage of Amir Singh, he had two children namely Aryan Singh (born on 01.02.2001) and daughter Kanishka Singh (born on 03.03.2005). On 04.06.2019, a child namely Viren Pratap Singh was born from the wedlock of petitioner and Amir Singh.

3. Petitioner applied maternity leave from 27.06.2019 to 23.12.2019 and availed the same. On 03.07.2019, respondent No.3 sought clarification pertaining to some facts including two children from the first wife of her husband to which she submitted a detailed reply dated 24.07.2019 mentioning all the facts. On 03.09.2019, respondent No.3 rejected the request of petitioner for maternity leave keeping in view the fact that she availed child care leave earlier by showing two surviving children and thus for the third child, the maternity leave was not admissible as per rule and consequently vide office order dated 21.01.2020 the period of leave w.e.f 30.05.2019 to 03.06.2019; 04.06.2019 to 27.10.2019; 27.10.2019 to 06.11.2019; and 07.11.2019 to 31.11.2019 was treated as earned leave, medical leave, half pay leave and extraordinary leave, respectively. The period of extraordinary leave was ordered to be not counted towards increment.

4. Aggrieved petitioner preferred original application thereby challenging orders dated 03.09.2019 and 21.01.2020 before CAT, which was contested by the respondents by filing written statement submitting that the petitioner had applied for and availed Child Care Leave in respect of children, born from the first marriage of her husband, on many occasions from the institute. She also entered the names of aforesaid two children from the first wedlock of her husband, in the office record and availed the facility of medical treatment for them. As she was having two surviving children, maternity leave was not admissible to her.

5. After hearing learned counsel for the parties and perusing the available record, original application preferred by the petitioner was rejected by the CAT vide impugned order dated 29.01.2021, which has been challenged by the petitioner in the instant petition.

6. Learned counsel for the petitioner has contented that the impugned orders are illegal and unsustainable in the eyes of law, inasmuch as, it is a matter of record that petitioner solemnized marriage with Amir Singh on 08.02.2014 being her first marriage, while her husband was a widower having two children namely Aryan Singh and Kanishka Singh from his first marriage. Accordingly, she got entered the names of aforesaid two children and her husband in her service record. However, these peculi