Recently in Anita Yadav v. State of Rajasthan & Ors., S.B. Civil Writ Petition No.4702/2021, the Jaipur Bench of the Hon’ble Rajasthan High Court had to decide on whether Women entitled to maternity benefit can be availed if the child is born before joining service.
The Petitioner in this case was appointed in Rajasthan’s Secondary Education Department. She applies for maternity leave soon after joining service, and was denied the same. The Petitioner, therefore, files a petition before the Rajasthan High Court and contends that she is entitled to maternity leave, and merely because her child was born before the issuance of appointment order, she cannot be denied the benefit of maternity leave.
The Respondent, which is the Secondary Education Department is directed by the Hon’ble Rajasthan High Court to allow the Petitioner to be on leave and treat is as maternity leave until a decision in this respect has been made.
While this is an interim relief provided by the court, and it remains to be seen as to what the final decision of the court would be, it is interesting to note that on 7th December 2020, the Jodhpur Bench of the Rajasthan High Court had passed an order in Smt. Neeraj v. State of Rajasthan, which dealt with a similar issue.
Issue: In this case, the question before the court was whether a candidate who has given birth before joining Government Service is entitled to maternity benefit as per Rule 103 of Rajasthan Service Rules, 1951. (RSR)
Facts: The timeline was as follows:
- The candidate mothered a child on 15/05/2016
- An appointment letter was issued on 04/06/2016
- In order ward off consequences of late joining, she accepted the appointment letter with a joining date of 06/06/2016.
- She applied for maternity leave on 21/06/2016
- She returned to work on 10/11/2016 after remaining absent for 142 days.
The Respondent i.e., the Department of Education did not treat it is as maternity leave. Accordingly, 90 days out of 142 days were sanctioned and treated as leave without payment vide communication dated 13/08/2018. Vide another communication dated 17/07/2019, the rest of the 52 days were treated as extraordinary leave without payment.
Further, despite completion of probation period of 2 years, the Respondent extended her probation by 112 days and confirmed her services with effect from 26/09/2018 vide Order dated 21/11/2019.
Contention: The Petitioner therefore approached the court alleging that this was unfair, and that her confirmation ought to have been effective from 05/06/2018. She also challenged the refusal to grant maternity leave arbitrary and contrary to Rule 103 of RSR.
The Petitioner relies on this court’s decision in Harshita Yadav v. State of Raj. & Ors., S.B. Civil Writ Petition No.11833/2014, which allows maternity leave irrespective of the fact that the Petitioner gave birth before joining Government service.
The Respondent contends that the judgement in the above cited Harshita Yadav case hinges on the provisions of Maternity Benefit Act, 1961 and not RSR Rules. The Respondent contended that Rule 103 of RSR clearly states that maternity benefit is available when a child is born after a female joins duties as Government Servant, and that on the date of giving birth to the child, the Petitioner was not a Government Servant. The Respondent adds that the Complainant could have applied for extension of joining in wake of contingency she was in, instead of joining in a hurry and claiming maternity leave.
Law: Section 5(2) of the Maternity Benefit Act, 1961 (‘Act’) provides that “No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.”
As per the Act, a woman is not entitled to maternity benefit unless she has worked in the establishment for at least 160 days in the preceding 12 months.
However, the court referred to Rule 103 of RSR which states as follows:
“103 :- Maternity leave may be granted to a female Government Servant with less than two surviving children upto a period of 180 days from the date of its commencement. However, if there is no surviving child even after availing it twice, Maternity Leave may be granted on one more occasion.
During such period she will be entitled to leave salary equal to pay drawn immediately before proceeding on leave. Such leave shall not be debited to the leave account but such entry should be made in the service book separately.”
Observation: The Court observed that a bare look at Rule 103 of RSR shows that it is employee centric. It has no nexus with date or event of childbirth.
It observed that “Another significant aspect is, use of expression – “from the date of its commencement”. Use of such expression too has an important bearing on the issue at hands. It is noteworthy that on the date of insertion of these Rules i.e. 06.12.2004, the legislature had considered it appropriate to confer such entitlement immediately. In other words, rule making authority intended to confer such benefit to all those employees, who had already birth to a child on such date (06.12.2004), that is why such stipulation (from the date of its commencement) was made, without giving any reference of occurrence of delivery.”
Hence, the court decided the following – “In considered opinion of this Court, since on the date of promulgation of these Rules, an employee, who had already given birth, was held entitled to avail maternity leave, it will not only be iniquitous, but also discriminatory to exclude an employee, who has given birth to a child a few days ahead of joining the Government service. Needless it is to say, that having joined pursuant to an appointment on substantive post, an incumbent becomes a Government Servant for all practical purposes and a mother’s maternity needs cannot eclipse, simply because she has joined the duties.”
It further observed that “Carving out ‘pseudo-distinction’ by contending that the petitioner was not a Government servant, when the child was born or in other words the child was born prior to joining, is contrary to the provisions of Rule 103 and is in direct conflict with the very purpose of the Rule. Such stance is arbitrary and inequitable, if not, inhumane.”
Decision: Petitioner is entitled for grant of maternity leave in terms of Rule 103 of the RSR, irrespective of the fact that she had given birth to the child prior to her joining Government service, and her employment shall be deemed confirmed from 05/08/2018.
PAW’s Analysis: It is to be noted that in this case the Petitioner was granted maternity benefit in spite of not being a Government Servant at the time of giving birth, due to the Hon’ble Court’s interpretation of ‘from the date of its commencement’ mentioned in Rule 103 of RSR. Therefore, this decision is applicable to only government servants in Rajasthan to whom the RSR Rules apply.
However, in order to avail of maternity benefit anywhere else in India, Section 5(2) of the Act will be taken into consideration, and the woman entitled to maternity benefit will be given only if she has worked for at least 160 days in the preceding 12 months in the establishment unless similar decisions are passed by other State High Courts as well.