Spouse's children from prior marriage do not count against female servant's maternity leave entitlement for her biological child under CCS Rule 43; courts must purposively interpret to prioritize mother-child welfare over rigid surviving children limit.

ORDER

 Hon’ble Mr. Manish Garg, Member (J):

The present Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-

"i. To direct the respondent to sanction, the Maternity Leave w.e.f. 08.04.2023 to 28.09.2023 for 180 days, for second biological child, to the applicant.

ii. Award cost of litigation to the applicant; and

iii. To pass any such order or orders as may be deemed fit and proper by the Hon'ble Tribunal in the facts and circumstances of the case."

2. As narrated by the learned counsel for the applicant and recorded in the Order dated 05.02.2024 and 18.03.2024, the brief facts of the case are as under:-

2.1. Order dated 05.02.2024, reads as under:-

"The present application has been filed by the applicant seeking Maternity Leave for the second biological child. The applicant has married to Shri Satpal Singh and Shri Satpal Singh had one child from the previous marriage. Accordingly, the total number of children by the couple is three and the respondents vide impugned order dated 12.12.2023, had rejected the claim of the applicant for granting the Maternity Leave for the second biological child. Even though the Supreme Court Judgment in the case of Deepika Singh vs Central Administrative Tribunal & Ors. though, has given the ruling in favor of the second biological child, under similar circumstances, the respondents have stated that DoP&T has not issued guidelines in pursuance to the said judgment. Hence, the judgment may be read in personam than in rem.

Learned counsel for the applicant further states that the Coordinate Bench of Jabalpur has also given a similar kind of order in OA No. 1071 and 1074 of 2017 dated 04.06.2020.

In view of this, learned counsel for the applicant states that the applicant is entitled for getting Maternity Leave for the second biological child irrespective of the fact that her spouse has one more child from the previous marriage."

2.2. Order dated 18.03.2024, reads as under:-

“The applicant is working with the respondents on the post of Statistical Officer. She got married to Sh. Kuldeep Yadav on 30.05.2011 and they got blessed with a girl child on 13.08.2012 for which she had taken maternity leave w.e.f. 06.08.2012 to 01.02.2013. On 02.09.2014, they got separated and after divorce, she got married to one Sh. Shukpal Singh on 11.11.2017 who already has a girl child i.e. Chetna Vishwas from his first marriage which ended as a result of divorce. The applicant added the name of Chetna Vishwas in Form 3 (Details of Family) on 28.11.2017 and thereafter, on 07.04.2023, she got blessed with a second biological child on 07.04.2023 from her second husband Sh. Sukhpal Singh. Consequently, she submitted representation seeking maternity leave, which was rejected vide impugned order dated 12.12.2023 with remarks that since she already has two surviving children, she is not eligible for maternity leave for the 3rd child as per prevalent rules and she was directed to submit the leave application under CCS (Leave) Rules, 1972 for the period of leave availed w.e.f. 08.04.2023 to 28.09.2023 in this office at the earliest. Being aggrieved, she has filed the present OA.

2. During the course of the arguments, the learned counsel for the applicant draws attention to Judgment dated 16.08.2022 of the Hon'ble Supreme Court in Civil Appeal No.5308 of 2022 (Arising out of SLP (C) No.7772 of 2021) titled Deepika Singh vs. Central Administrative Tribunal and Others. The relevant portion of the same reads as under:-

"4. The appellant had her first biological child on 4 June 2019 from her marriage. On 6 June 2019, she applied for maternity leave for the period