HEMLATA SARASWAT Vs. STATE OF RAJASTHAN
LAWS(RAJ)-2008-1-13
HIGH COURT OF RAJASTHAN
Decided on January 28,2008

HEMLATA SARASWAT Appellant
VERSUS
STATE OF RAJASTHAN Respondents


Referred Judgements :-

MUNICIPAL CORPORATION OF DELHI VS. FEMALE WORKERS (MUSTER ROLL) AND ANR. [REFERRED TO]
NEETU CHOUDHARY VS. STATE OF RAJASTHAN AND ORS. [REFERRED TO]


JUDGEMENT

MAHESHWARI, J. - (1.)BY way of this writ petition, the petitioner has questioned the communication dated 27. 4. 2006 (Annex. 3) denying her maternity leave on the ground that she is working as Medical Officer on consolidated salary and there is no provision in the Rules for granting her maternity leave.
(2.)THE petitioner has averred that on the recommendations of the Selection Committee, she came to be appointed on the post of Medical Officer on a consolidated salary of Rs. 8,000/- per month with issuance of appointment order on 15. 9. 2003 (Annex. 1) putting her engagement on contract basis; that accepting the offer of appointment, she joined services and presently is posted at Primary Health Centre, Kantalia, Sojat Road, Pali (Rajasthan ). According to the petitioner, she proceeded on medical leave on 29. 8. 2005 by submitting a leave application; and, after delivering a male child, resumed duties on 11. 1. 2006 with fitness certificate.
The petitioner has stated her grievance in the manner that though entitled, she has been denied maternity leave by the impugned communication dated 27. 4. 2006 (Annex. 3) on the ground that under the service rules, there was no provision for allowing maternity leave to the persons working on consolidated salary; and she has not been allowed maternity leave despite submitting a representation on 17. 2. 2006 (Annex. 4) and serving a notice through lawyer on 17. 4. 2006 (Annex. 5 ).

Assailing such denial of maternity leave, the petitioner has contended, inter alia, that being in employment of the Government of Rajasthan, may be on contract basis and on consolidated salary, the Rules applicable to the employees of the Government of Rajasthan equally apply to her; that Rule 103 of the Rajasthan Service Rules, 1951 provide for maternity leave and she is fully entitled and eligible to get such maternity leave; that the Government has taken a decision to grant maternity leave to the temporary female employees and, thus, the contractual employees are also entitled to get the same benefit. The petitioner has referred to the decisions rendered in Neetu Choudhary vs. State of Rajasthan & Ors. : 2005 (2) DNJ (Raj.) 676 = (2008 (2) RLW 1404); and Smt. Sumitra Choudhary & Ors. vs. State of Rajasthan & others: S. B. Civil Writ Petition No. 3295/2005 decided on 19. 9. 2005 wherein this Court has directed grant of benefit of maternity leave to the temporary employees. It is contended that there is no rationale behind refusal of maternity leave to some of the female employees while granting the same to the others. No reply to the writ petition has been filed; and the core and essential facts as stated by the petitioner in her petition have not been denied.

Learned counsel for the petitioner, while pressing on the grounds aforesaid with reference to the decisions in Neetu Choudhary and Smt. Sumitra Choudhary (supra) has also relied upon the decision of this Court at Jaipur Bench in the case of Smt. Pooja Arora vs. State of Rajasthan & others: S. B. Civil Writ Petition No. 493/2007 decided on 29. 1. 2007 and that of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. : 2000 L. I. C. 1033. The learned Government Counsel has attempted to distinguish the said decisions with reference to the fact that the petitioner is working on contract basis.

Having heard learned counsel for the parties and having perused the material placed on record with reference to the law applicable to the case, this Court is clearly of opinion that the communication dated 27. 4. 2006 (Annex. 3) emanating from the Directorate of Medical & Health Services, Rajasthan, Jaipur denying maternity leave to the petitioner with cryptic observation that the rules do not mention about grant of such leave to the Medical Officer working on consolidated salary cannot be said to be justified nor appears bona fide, particularly for having been issued even after the decisions of this Court in the case of Neetu Choudhary (decided on 19. 4. 2005) and Smt. Sumitra Choudhary (decided on 19. 9. 2005); and this writ petition deserves to be allowed with costs.

(3.)AS shall be noticed hereafter, the aforementioned decision in Neetu Choudhary has been affirmed by the Hon'ble Division Bench with rather strong comments on the attempt on the part of the Government to deny maternity benefit to its employees against the basic norms of equality, and so also against the propositions of gender justice and betterment of status of women; and, in view of settled position of law, there would not have been any necessity to expound further on the principles applicable but for the reason that such litigations are still of recurrence before this Court, it appears apposite to deal with the aspect a bit more in detail in the hope that such perfunctory approach would be corrected by the authorities concerned obviating the necessity of such avoidable litigation and also for the warning that for any such unjustified denial of maternity leave, the Officer concerned might be held personally responsible for the costs and consequences.
The fact that of necessity, the female employees are entitled for maternity benefits and that authorities are not obliging them by extending such benefits is strongly illuminated by the decision of the Hon'ble Supreme Court in the case of Female Workers (Muster Roll) (supra ). Therein, the female workers engaged by the Municipal Corporation, Delhi on Muster Roll basis raised a demand for grant of maternity benefit that was made available only to the regular female employees but was denied to them on the ground that their services were not regularised. On the cause being espoused by the Delhi Municipal Workers Union, the matter was referred for adjudication to the Industrial Tribunal on the question as to whether the female workers working on Muster Roll should be given any maternity benefit? The Municipal Corporation took the stand that the provisions of Maternity Benefit Act, 1961 ('the Act of 1961') or Central Civil Services Rules were not applicable to the female workers engaged on Muster Roll, as they were all engaged only on daily wages. By its award dated 2. 4. 1996 the Tribunal allowed the claim and directed the Corporation to extend the benefit under the Act of 1961 to Muster Roll female workers who were in continuous services for three years or more. Challenge to the said award in writ petition failed before the learned Single Judge of Delhi High Court and intra-Court appeal was dismissed on the ground of delay. Hence, the matter was before the Hon'ble Supreme Court.

The Hon'ble Supreme Court considered it appropriate to deal with the matter on merits; and, while taking note of the hazards of the female workers working even in advanced stage of pregnancy and, again, soon after delivery, in a look for earning their daily bread, unmindful of detriment to their health and to the health of the new born, the Hon'ble Court referred to Clause (3) of Article 15 of the Constitution of India that sanctions making of special provisions for women and children and then to the provisions, of course in Part IV of the Constitution of India containing Directive Principles of State Policy, including Article 42 that reads as under:-      " 42. Provision for just and humane conditions of work and maternity relief - The State shall make provision for securing just and humane conditions of work and for maternity relief. "



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