A Jodhpur Bench of Rajasthan High Court held a female government servant is entitled to grant of maternity leave even if she had given birth to the child prior to her joining Government service while dealing with Rule 103 of the Rajasthan Service Rules, which governs the grant of maternity leave to female government servants.
The Bench specifically ruled,
“A female Government servant is entitled to avail maternity leave, if she joins within the period of confinement, i.e. 15 days before to three months after the childbirth, regardless of the fact that the child was born prior to joining or before issuance of appointment order.”
The Court was hearing a plea moved by a female government servant, who was appointed on the post of Physical Training Instructor on 04th June 2016, and she mothered a baby boy on 15th May 2016, just a few days before receiving the appointment order.
She joined the services on 06th June 2016 and moved an application for grant of maternity leave on 21st June 2016 mentioned the exact date of delivery.
The petitioner reported back on duties after remaining absent for 142 days. The State government sanctioned her leave for 90 days without payment of salary in August 2018.
Further, in July 2019, was sanctioned a total 142 days’ leave, out of which 90 days were considered as leave without payment and 52 days’ leave was treated as extraordinary leave (EOL), that too without payment.
Significantly, her request for paid maternity leave was rejected. Also, despite the completion of probation period of two years, the respondents extended petitioner’s probation period by 112 days.
Court’s Observations and Order
The Court observed that Rule 103 of the RSR is employee-centric and that it has no nexus or correlation with the date or event of child birth. The Court also said that the Rule confers upon a female Government servant with less than two children, a right to avail maternity leave of 180 days and those Prerequisite conditions for such availment include that a female should be a Government servant and she should have less than two surviving children.
However, the Court did observe that the date of childbirth is significant in case of paternity leave, whereas it is not of much relevance in case of maternity leave. To this, the Court remarked,
“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.”
The Court further said,
“Needless it is to say, that having joined pursuant to an appointment on the 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.”
“Rule 103 does not create or confer right on the basis of date of birth. It simply provides that maternity leave may be granted to a female Government servant from the date of its commencement“, said the Court.
The Court remarked,
“…high time when State should focus on the merit of the case and confine itself to the permissibility of right or benefits, to a citizen, instead of raising worthless objections or bogies of delay.”
Allowing the petition, the Court held that petitioner’s sanctioned leave of 142 days shall be treated as maternity leave.