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Himachal Pradesh High Court Upholds Commissioning Mother's Right To Maternity Leave Under CCS Rules
Motherhood Beyond Biology: Court Affirms Rights of Commissioning Mothers
The has delivered a significant judgment affirming that a —a woman who has a child through surrogacy—is entitled to maternity leave on par with any other female government servant. Justice Ajay Mohan Goel, presiding over a single bench, quashed the State's refusal to grant maternity leave to Dr. Juhi Manhas, a government employee who became a mother twice through surrogacy.
Case Background: A Mother's Fight for Recognition
Dr. Juhi Manhas, a female government servant in Himachal Pradesh, availed maternity leave for 180 days after the birth of her first child through surrogacy in September 2020, followed by commuted and earned leave. She again sought maternity leave for her second child born via surrogacy in September 2022. However, the State authorities rejected her applications, contending that the notification dated —which explicitly extends maternity leave to surrogate and commissioning mothers—had not been adopted by the . Aggrieved, Dr. Manhas approached the High Court.
Arguments: A Clash of Statutes and Precedents
, representing the petitioner, argued that the issue was no longer open for debate. He pointed to a Division Bench judgment of the same court in (decided on ), which held that a cannot be denied . He submitted that the DoPT notification of June 2024 merely codified what the court had already declared: that motherhood cannot be discriminated against based on the mode of conception.
The State, represented by , countered that since the DoPT notification had not been adopted by the State, there was no legal provision in Himachal Pradesh granting maternity leave to commissioning mothers. The State also pointed to the petitioner's conduct—alleging that she had ignored departmental procedures—and noted that disciplinary proceedings had been initiated against her, though those proceedings were later closed with her .
Legal Analysis: Precedent Cannot Be Ignored
The High Court rejected the State's argument outright. It observed that the Division Bench's judgment in Sushma Devi had attained finality and was binding on the State. The court noted:
"The issue as to whether in the State of Himachal Pradesh, a government female servant can be denied maternity leave on the ground that the child is a surrogate child is no more
."
The judgment extensively cited precedents from the in and the in , both of which held that distinguishing between a natural mother and a would "insult womanhood" and frustrate the object of maternity leave. The court also highlighted the State's own notification dated , which provides 180 days of for female government servants adopting a child below one year. This, the court noted, made the denial of maternity leave to a even more inconsistent.
Key Observations: The Court's Powerful Words
The court quoted the Division Bench's reasoning with approval:
"Motherhood never ends on the birth of the child and a
cannot be refused
. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy."
Justice Goel further observed:
"The petitioner, having become a
on two occasions, has a right to be granted maternity leave on both the occasions and the act of the respondents of denying maternity leave to her is completely unsustainable in law."
Court's Decision: Leave Granted, Salary Released
The High Court allowed the , quashing the impugned communications (Annexures P-22 and P-23) dated and . It directed the respondents to treat the 180-day periods following the birth of each child as maternity leave, and any leave availed immediately thereafter to be adjusted in accordance with . The court also ordered the release of the petitioner's withheld salary for July and August 2021 and eight days of September 2021, with the entire compliance to be completed within two months.
Implications: A Victory for Surrogacy Rights
The judgment reinforces the constitutional rights of motherhood under and the directive principle of maternity relief under . It sends a clear message that state governments cannot rely on the non-adoption of central notifications to deny benefits that have already been recognized by . For commissioning mothers across India, this decision provides a strong legal foundation to claim maternity leave as a matter of right, not discretion.
