The Madras High Court has held that maternity leave, for the third chilld cannot be denied, if claimed for the first as Maternity Leave Rules allows for the same to be taken twice.
The Court was considering a Writ Petition filed by a staff nurse of Government Rajaji Hospital (GRH) seeking directions for approval for maternity leaves for her third pregnancy.
The single-bench of Justice R. Vijayakumar observed, “when they are going to extend the maternity leave to the petitioner for the first time, the State exchequer is not put to any strain. The Rule has to be interpreted in such a manner that a women Government employee would be entitled to seek maternity leave only twice during her service period and it cannot be interpreted in such a manner that the State would be entitled to deny the maternity leave, even if it is claimed for the first time, citing third pregnancy.”
The Petitioner was represented by Advocate S.Malaikani while the Respondent was Government Advocate Mr.T.Amjadkhan.
Facts of Case
The Petitioner, a staff nurse working in Government Rajaji Hospital, Madurai challenged the order passed wherein her request for maternity leave spent was rejected. The petitioner had also challenged the report of the Medical Board wherein she was found fit to resume duty and the request for maternity certificate was rejected on the ground that it is her third pregnancy. While the petitioner was working on a contract basis, out of wedlock through the first marriage, she gave birth to two female children and for both the deliveries, didn’t claim any benefit of maternity leave in view of the fact that she was a contract staff.
Later, the Petitioner divorced her first husband and re-married. Out of the said wedlock through the second marriage, the petitioner got conceived and she applied for maternity leave. The said application, however was rejected on the ground that the petitioner is not entitled to seek maternity leave for the third child. In the impugned order, the Petitioner was instructed to submit an application mentioning any other type of leave which she may prefer to avail. In compliance to the same, the Petitioner sought 90 days medical leave, 169 days earned leave on medical certificate and 106 days leave on loss of pay on medical certificate totalling 365 days. However, the said request was not acceded to by the department and she was referred to the medical board in Government Rajaji Hospital, Madurai. Under the second impugned order, the board passed an order citing that she is fit to resume duty and the maternity certificate requested by her is not justified and it cannot be regularized as a leave on medical grounds since it is her third pregnancy.
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Counsel for the Petitioner argued that his client is availing maternity leave for the first time and therefore, citing that it is a third pregnancy, such a benefit cannot be rejected. He contended that when the maternity benefit has not been availed for the first two children, the benefit claimed for the third child arising out of the second wedlock could be permitted. Reliance was placed on Supreme Court’s decision in Deepika Singh Vs. Central Administrative Tribunal and others to contend that for the third child born through the second wedlock, an employee would be entitled for maternity leave.
On the other hand, Government Advocate for the Respondents relied upon Rule 101 (a) of Fundamental Rules contended that the maternity leave can be granted only to a women Government servant with less than two surviving children and in the present case, the petitioner is already having two surviving children through her first marriage and therefore her request for 12 months maternity leave is not provided for under service regulation.
Reasoning By Court
The Court at the outset noted that the Petitioner has not availed maternity leave for her first two children born through the first wedlock and had sought maternity leave for the first time while she was on the family way through the second wedlock.
The Court looked into the Rules and observed that legislative intent of the said Fundamental Rule is to discourage having more children considering the health condition of the woman and financial constrains involved in bringing up the said children.
“It is also based upon the population control policy of the concerned Government. Limiting the maternity leave to two children is also based upon the fact that the State exchequer may not be burdened with more financial stress by extending maternity leave for many children. Therefore, a purposive in interpretation has to be given to achieve the object of the above said rules. That apart, limiting the maternity leave to two children is intended to suppress the mischief of having more children,” the Court further observed.
The Court accordingly stated that in the present case, the Petitioner has not availed any maternity leave for her first two children born through the first wedlock.
“For the first time, the petitioner is availing the maternity leave for her child born through the second wedlock. In such circumstances, the right of a women employee to have a child through her second wedlock cannot be curtailed invoking the Maternity Leave Rules,” the Court stated.
The Petition was accordingly allowed.
Cause Title: C. Kohila vs. The Additional Chief Secretary Health and Family Welfare Department Secretariat
Source: verdictum
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