Judgment

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W.P.No.5063.2018.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 5063 OF 2018

Ku. Shubhangini D/o. Krushnarao Hedaoo,

Aged about 34 years,

R/o. C/o. Rupesh Wasantrao Nimje,

R/o. Shiv Nagar,

Madhuratan Colony, Warud,

Tah. Warud, Distt. Amravati.

…. PETITIONER

// VERSUS //

1)

Education Officer (Secondary),

Zilla Parishad, Amravati.

2)

Headmaster,

Abhimanji Kalmegh High School,

Mangrulipeth,

Tahsil Warud, Distt. Amravati.

…. RESPONDENTS

______________________________________________________________

Shri N. R. Saboo, Advocate for petitioner.

Shri A. A. Madiwale, A.G.P. for respondent No.1.

Shri Kuldeep Mahalle, Advocate for respondent No.2.

______________________________________________________________

CORAM : SUNIL B. SHUKRE AND

ANIL S. KILOR, JJ.

DATED : 31.08.2021

ORAL JUDGMENT : (Per Sunil B. Shukre, J.)

1.

Heard Shri Saboo, learned counsel for the petitioner, Shri

A. A. Madiwale, learned A.G.P. for respondent No.1 and Shri Kuldeep

Mahalle, learned counsel for respondent No.2.

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W.P.No.5063.2018.odt

2.

Rule. Rule made returnable forthwith. Heard finally by

consent of the learned counsel appearing for the parties.

3.

The grievance of the petitioner is that after having attained

motherhood through surrogacy, she was entitled for grant of maternity

leave but, it was denied to her. The claim of the petitioner for grant of

maternity leave was for the period from 11.08.2015 to 10.02.2016. The

Education Officer i.e. respondent No.1 refused to clear the salary bills

of the petitioner for the aforestated period on the ground that the

maternity leave sought by the petitioner was during the period which

was not covered by the Government Resolution dated 20.01.2016. The

Government Resolution dated 20.01.2016 permits maternity leave

even to surrogate mothers, but with prospective effect.

4.

The issue involved in this petition, as rightly submitted by

learned counsel for the petitioner is squarely covered by the view taken

by this Court in the case of Dr. Mrs. Hema Vijay Menon Vs. State of

Maharashtra and Ors., in Writ Petition No. 3288 of 2015, decided on

22.07.2015. In this case, the Division Bench of this Court, relying upon

Rule 74 of the Maharashtra Civil Services (Leave) Rules, 1981 (For

short the “Rules, 1981”) has held that there is nothing in this Rule

which would dis-entitle a woman, who has attained motherhood

through the surrogacy procedure, to maternity leave. This Court further

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W.P.No.5063.2018.odt

found that even the Government Resolution dated 28.07.1995 permits

maternity leave not only to a natural mother but also to an adoptive

mother, who adopts a child on its birth. Therefore, this Court held that

no distinction could be made between natural motherhood and

surrogate motherhood.

5.

We have no reason to disagree with the view taken by the

Co-ordinate Bench of this Court. After-all, motherhood is motherhood

whether it is natural or upon surrogacy. The anxiety, the burden and

the labour pains are just the same for a surrogate mother who carries

foetus of another couple, just as her own foetus. Rule 74 of the Rules,

1981 does not make any distinction between a surrogate mother,

natural mother and adoptive mother. It treats all the mothers and their

motherhood equally and with dignity. Therefore, it is a matter of

surprise for us that respondent No.1, a responsible Officer in the field

of Education, is labouring under confusion about the manner in which

the mothers and their motherhood be treated under rule 74 of the

Rules, 1981, which entitles all mothers, irrespective of their category,

for maternity leave as long as they do not have three or more living

children on the date of the application. In the present case, there is no

dispute that the petitioner is otherwise eligible for availing of the

maternity leave in terms of rule 74 of the Rules, 1981.