Kerala High Court
Nisha Jose vs State Of Kerala on 7 October, 2022
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
WP(C) No.22702/2022 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
Friday, the 7th day of October 2022 / 15th Aswina, 1944
WP(C) NO. 22702 OF 2022(K)
PETITIONER:
NISHA JOSE, AGED 48 YEARS, W/O. KURIAN FRANCIS, PADIKKALA HOUSE,
KORATH LANE, EAST FORT, THRISSUR DISTRICT, KERALA - 680005., PIN -
680005
RESPONDENTS:
1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695001.
2. STATE PROJECT DIRECTOR, SAMAGRA SHIKSHA ABHIYAN (SSI), SSA BHAVAN,
NANDAVANAM.P.O, PALAYAM, THIRUVANANTHAPURAM - 695014.
3. ADDL.R3: THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
4. ADDL.R4: THE DIRECTOR GENERAL OF EDUCATION, DIRECTORATE OF GENERAL
EDUCATION, JAGATHI, THIRUVANANTHAPURAM
5. ADDL.R5: THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH
SERVICE, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, (ADDL.R3 TO
R5 SUO MOTU IMPLEADED AS PER ORDER DATED 7-10-2022 IN WP(C)
22702/2022).
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to issue an interim direction to the 2nd respondent to pass orders
on Ext.P4 and P6 in the light of Rule 101A Part I KSR, pending disposal of
the Writ Petition(Civil).
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S. M.R.VENUGOPAL, DHANYA P.ASHOKAN & S. MUHAMMAD ALIKHAN, Advocates for
the petitioner and of GOVERNMENT PLEADER for respondent 1 & 2, the court
passed the following:-
P.T.O.
WP(C) No.22702/2022 2/8
RAJA VIJAYARAGHAVAN V, J.
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W.P(C) No.22702 of 2022
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Dated this the 7th day of October, 2022
ORDER
I have heard Smt. Dhanya P. Ashokan, the learned counsel appearing for the petitioner and the learned Government Pleader.
2. It appears from the pleadings that the petitioner herein is working as a Specialist Educator (Secondary) under Samagra Shiksha Kerala on contract basis with effect from 2011 onwards. Ext.P1 would reveal that the contract was extended on 02.04.2022 for a period of one year.
3. Her grievance in this writ petition concerns the recalcitrant attitude on the part of the respondents in refusing to sanction maternity leave to which she claims entitlement in terms of Rule 101A of Part I of the Kerala Service Rules.
4. The assertion of the petitioner is that she was diagnosed with Multiple Fibroid Uterus with Right Adnexal Cyst and got admitted in the GEM Hospital & Research Center, Thrissur. Ext.P2 discharge summary reveals WP(C) No.22702/2022 3/8 W.P. (C) No.22702 of 2022 2 that the petitioner underwent a laparoscopic hysterectomy, right ovariectomy, and bilateral salphingectomy under General Anesthesia on 11.5.2022. Her post-operative diagnosis is Multiple Fibroid Uterus + Right Ovarian Tumor with solid and cystic areas. She asserts that she submitted Ext.P6 application before the Co-ordinator and the same was forwarded to the District Project Co-ordinator. However, nothing has transpired thereafter. It is in the said circumstances that she has approached this Court seeking directions.
5. Taking note of the issues highlighted by the petitioner and the entitlement claimed by her, this Court had directed the 2nd respondent to file a counter. It is stated therein that the Medical Certificate produced by the petitioner does not reveal that she underwent hysterectomy. It is also stated therein that Ext.P8 Government Order dated 04.01.2021 issued pursuant to the judgment rendered by this Court in W.P.(C) No.30561 of 2017 can be made applicable only to applications for maternity leave under Rule 100 and 101 of Part I of the KSR and not to applications filed under Rule 101 A.
6. I find that the procedure is that the application submitted by the petitioner, if the same is in order, is required to be forwarded by the 2nd WP(C) No.22702/2022 4/8 W.P. (C) No.22702 of 2022 3 respondent to the DGE who in turn is required to forward the same to the DHS. The said exercise has not been carried out. However, as submitted by Smt. Dhanya Ashokan, the stand of the respondents is clearly discernible from the assertions in the counter affidavit and according to her, a decision has been taken to reject her application on unsustainable grounds.
7. Having considered the records made available, the submissions advanced, and the counter affidavit filed by the 2nd respondent, I am of the view that the stand taken by the respondents that the application filed by the petitioner is not in order cannot be sustained. The fact that the petitioner underwent a hysterectomy is borne out from Ext.P2. The petitioner asserts that Ext.P2 was placed before the respondents. It is true that in Ext.P3, the fact that the petitioner underwent a hysterectomy is not seen stated. If the respondents had any doubt, they could have directed the petitioner to produce the discharge certificate or any other record.
8. The second reason stated for non-consideration of the application is that Ext.P8 order granting benefits to female officers who are appointed on contract basis can be made applicable only to applications filed under Rule 100 and 101 of the KSR. On going through the statutory rules such an inference cannot be arrived at.
WP(C) No.22702/2022 5/8W.P. (C) No.22702 of 2022 4
9. Rule 100 of Part I of the KSR deals with maternity leave. It reads as under:
Rule 100. A competent authority may grant to a female officer, maternity leave on full pay for a period of 180 days from the date of its commencement.
10. Note 4 under Rule 100 is of some relevance. It reads as under:
Note 4. Maternity leave under this rule and Rule 101 shall be admissible to provisional female recruits continuing in service in a single department beyond one year provided they would continue in service but for proceeding on such leave.
11. In view of Note 4, even provisional female recruits continuing in service in a Single Department beyond one year are entitled to claim maternity leave, provided that if they had not proceeded on such leave, they would continue in service.
12. Rule 101 was incorporated in the Rule book with effect from 01.06.1965. Rule 101 reads as follows:
Rule 101: Leave under Rule 100 may also be granted to female officers in case of miscarriage, including abortion, subject to the condition that the leave does not exceed six weeks and application for the leave is supported by a certificate from a medical attendant.
13. Rule 101A was inserted by G.O.(P) No. 216/2012/Fin. Dated WP(C) No.22702/2022 6/8 W.P. (C) No.22702 of 2022 5 11.4.2012 and the same has come into effect with effect from 1.4.2009.
Rule 101A reads as under:
Rule 101A: Leave under Rule 100 may also be granted to female officers in case of hysterectomy subject to the condition that the leave does not exceed 45 days and application for the leave is supported by a certificate from the medical attendant.
14. A reading of Rules 100, 101 and 101A clearly reveals that the intention of the law makers was to grant leave under Rule 100 to female officers in cases of miscarriage, including abortion, and for undergoing hysterectomy. I fail to understand the reason why while issuing Ext.P8 order, the concerned respondent failed to include leave applications under Rule 101A as well. However, it is for the concerned department to answer. The petitioner has not arrayed the Secretary, Department of Finance, the Director General of Education and the Director of Health Services, whose presence is required for a complete adjudication of the issues involved.
I suo motu implead the Secretary to Government, Finance Department, Government Secretariat, Thiruvananthapuram, 695001, the Director General of Education, Directorate of General Education, Jagathi, Thiruvananthapuram and the Director of Health Services, Directorate of Health Services, General Hospital Junction, Thiruvananthapuram as WP(C) No.22702/2022 7/8 W.P. (C) No.22702 of 2022 6 additional respondents 3 to 5. The learned Government Pleader shall take notice.
The learned Government Pleader shall place on record a counter affidavit adverting to the issues raised above.
Post on 10.11.2022.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
sru
07-10-2022 /True Copy/ Assistant Registrar
WP(C) No.22702/2022 8/8
APPENDIX OF WP(C) 22702/2022
Exhibit P1 TRUE COPY OF THE AGREEMENT DATED 02/04/2022 EXECUTED BY
THE PETITIONER
Exhibit P2 TRUE COPY OF THE DISCHARGE SUMMARY DATED 13/05/2022
ISSUED FROM GEM HOSPITAL, PARAVATTANI
Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 20/05/2022
ISSUED BY DR. C.J. VARGHESE, GEM HOSPITAL
Exhibit P4 TRUE COPY OF THE LEAVE APPLICATION DATED 10/05/2022
SUBMITTED BY THE PETITIONER
Exhibit P6 TRUE COPY OF THE LEAVE APPLICATION DATED 13/06/2022
SUBMITTED BY THE PETITIONER
Exhibit P8 TRUE COPY OF THE GOP NO.2/2021/FIN DATED 4/01/2021
ISSUED BY THE GOVERNMENT OF KERALA IS PRODUCED HEREWITH AND MARKED AS EXHIBIT P8.