JUDGMENT

Dated this the 1st day of December, 2022 This writ petition is filed seeking the following prayers:

“(i) call for the records leading to the passing of Ext.P5 by the 3rd respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction in so far as the same relates to the sanction of leave without allowance.

(ii) issue a writ in the nature of mandamus directing the 3rd respondent to consider Ext.P3 application for maternity leave and sanction the same forthwith taking into account the dictum laid down by the Honorable Supreme Court as well as this Honorable Court.

(iii) issue a writ in the nature of mandamus directing the 1st respondent to consider on merits Ext.P4 representation and pass appropriate orders thereon expeditiously after affording to the petitioner a reasonable opportunity of being heard”

2. Heard the learned counsel for the petitioner and the learned Government Pleader.

3. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as Public Relations Officer in the District Health and Family Welfare Society, Kottayam on 27.08.2008 on contract basis. The contract was being renewed from time to time with a day’s break in service every year. While so, the petitioner conceived and she applied for maternity leave for the period from 23.03.2022 to

31.03.2022 and from 03.04.2022 to 20.09.2022. It is submitted that Ext.P3 application was received and duly forwarded, but the leave was sanctioned only for 9 days from 23.03.2022 to 31.03.2022 and the period of leave from 03.04.2022 to 20.09.2022 was granted as leave without allowance. The petitioner rejoined duty on 21.09.2022 and was permitted to continue thereafter also.

4. The learned counsel for the petitioner submits that the petitioner had been continuing in service from 2008 onwards and that her application was specifically for maternity leave for the period from 23.03.2022 to 31.03.2022 and from 03.04.2022 to 20.09.2022 as evidenced by Ext.P3. It is submitted that the refusal on the part of the respondents to grant the maternity leave for the entire period as sought for and granting only leave without pay for the period from 03.04.2022 to 20.09.2022 is completely unsustainable.

5. A counter affidavit has been placed on record by the 3rd respondent wherein it is contended that maternity leave could have been granted to the petitioner only during the period when her contract appointment subsisted. It is contended that her contract was due to expire on 31.03.2022 which is the reason why maternity leave was granted only from 23.03.2022 to 31.03.2022. It is submitted that thereafter, the period was regularized as leave without allowance and the petitioner was permitted to rejoin duty on 21.09.2022. It is further submitted as follows:

“5. That, the petitioner herein was initially engaged as a Public Relation Officer [PRO] under the NHM, Kottayam in 2008. Fresh engagements on contract were offered to the petitioner for subsequent FYs. On account of elections being held to the Kerala Legislative Assembly, the contracts under the NHM for FY 2020-21 that were due to expire on 31.3.21 were extended till 31.5.21 and fresh engagements on contract after performance appraisals were made for FY 2021-22 only on 2.6.21 with 1.6.21 being the break day between the contracts. The petitioner was engaged on contract from 2.6.21 to 31.3.22 for the FY 2021-22. A true copy of the contract entered into between the petitioner and the NHM, Kottayam dated 2.6.21 is produced herewith and marked EXHIBIT R-3(a).”

It is contended that the benefit of maternity leave would be available only during the period when there is a subsisting contract of appointment and not otherwise.

6. Having considered the contentions advanced, I am of the opinion that in view of the admitted fact that the petitioner had been continuing on a contract basis under the respondents from the year 2008 onwards and since the petitioner was also permi