Maternity leave entitlement based on actual prior availment, not mere child count; cannot be substituted by child care leave without reasoned order.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

a) “allow the instant Original Application;

b. quash the impugned order No. 160 bearing reference No. HSS/R/220(B) dated 24.07.2024 through the medium of which sanction was accorded for grant of child care leave to the applicant w.e.f. 22.07.2024 to 04.09.2024 instead of grant of maternity leave to the applicant, which the applicant applied for before the respondent no. 3;

c. direct the respondent no. 3 to grant maternity leave to the applicant for a period of 180 days w.e.f. 22.07.2024 to 17.01.2025;

d. direct the respondents to convert the child care leave illegally sanctioned in favour of the applicant vide office order No. 160, bearing reference no. HSS/R/220 (B) dated 24.07.2024;

e. restrain the respondents from treating the period for which the applicant was on leave i..e period from 22.07.2024 as child care leave or any other leave except maternity leave;

f. ANY other order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case;

2. The facts of the case as averred by the applicant in her pleadings, are as follows: -

a) The applicant, Meenakshi Sharma, is a Lecturer (10+2) in the discipline of Mathematics serving under the School Education Department, Union Territory of Jammu and Kashmir. She came to be appointed to the said post vide Government Order No. 384-Edu of 2017 dated 04.07.2017 and was initially posted at Government Higher Secondary School, Berreru, District Doda, vide Order No. 1461-DSEJ of 2017 dated 29.09.2017. After rendering services in District Doda, the applicant was transferred to Government Higher Secondary School, Rehal, Jammu, vide Government Order No. 1291-JK(Edu) of 2021 dated 05.08.2021, where she continues to serve.

b) It is stated that the applicant is a married woman and mother of three children. The first child was born on 18.12.2017, during which period the applicant did not avail maternity leave, as the delivery coincided with winter vacations and she was also undergoing probation. The second child was born on 09.03.2022, for which the applicant, for the first time, availed maternity leave of 180 days, duly sanctioned by the competent authority vide order dated 22.02.2022, and the same stands reflected in her service record.

c) The grievance in the present Original Application arises out of events relating to the birth of the applicant’s third child. The applicant conceived and was in an advanced stage of pregnancy in July 2024 and applied to respondent No. 3 for grant of maternity leave for a period of 180 days with effect from 22.07.2024, anticipating delivery on 01.08.2024. Despite a specific request for maternity leave under Rule 41 of the Jammu and Kashmir Civil Services (Leave) Rules, 1979, as amended, the said request was neither considered nor decided in accordance with law. Instead, vide Office Order No. 160 dated 24.07.2024, respondent No. 3 sanctioned Child Care Leave in favour of the applicant for a limited period up to 04.09.2024, without any consent of the applicant and in complete deviation from the relief sought.

d) The applicant delivered her third child on 01.08.2024. However, even thereafter, the respondents failed to accord maternity leave and continued to treat the applicant as being on Child Care Leave, thereby denying her the statutory protection, pay benefits, and legal entitlements associated with maternity leave. The applicant contends that