Madras High Court
I.Jegatha vs The State Of Tamil Nadu on 8 September, 2015
W.P.(MD)No.13282 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 19.12.2024
DELIVERED ON : 10.01.2025
CORAM:
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
W.P.(MD)No.13282 of 2017
and
W.M.P(MD)Nos.10341 & 10342 of 2017
I.Jegatha ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
School Education Department,
Secretariat, Fort St.George,
Chennai-600 009.
2.The Director of School Education,
DPI Campus,
Chennai-600 006.
3.The Joint Director of School Educational
(Higher Secondary),
DPI Campus, College Road,
Chennai-600 006.
4.The Chief Educational Officer,
Tirunelveli District,
Tirunelveli.
5.The Headmaster,
Avvaiyar Girls Higher Secondary School,
Pavurchatram-627 808,
Tirunelveli District. ... Respondents
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W.P.(MD)No.13282 of 2017
Prayer in W.P(MD)No.13282 of 2017 : Writ Petition filed under
Article 226 of the Constitution of India, praying this Court to issue a Writ
of Certiorarified Mandamus, to call for the records relating to the
proceedings of 4th respondent in Mu.mu.No.6023/A3/2015, dated
08/09/2015 and to quash the same and consequently direct the
respondents to grant time scale of pay to the petitioner from 01.06.2006 in
the post of PG Assistant (Physics) apart from regularization of service for
the maternity leave period from 26.05.2006 to 23.08.2006 with salary and
other consequential benefits along with interest.
Prayer in W.M.P(MD)No.10341 of 2017 : Writ Miscellaneous Petition
filed under Article 226 of the Constitution of India, praying this Court to
dispense with the production of the original impugned order issued by the
4th respondent in Mu.Mu.No.6023/A3/2015, dated 08.09.2015 for the
present WP.
Prayer in W.M.P(MD)No.10342 of 2017 : Writ Miscellaneous Petition
filed under Article 226 of the Constitution of India, praying this Court to
grant an order of interim stay staying the operation of the impugned order
issued by the 4th respondent in Mu.Mu.No.6023/A3/2015, dated
08.09.2015 pending disposal of the above WP.
For Petitioner : Mr.F.Deepak
For R1 – R4 : Mr.J.Ashok
Additional Government Pleader
For R5 : No Appearance
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W.P.(MD)No.13282 of 2017
ORDER
Heard both sides.
2. The petitioner, a postgraduate woman teacher, filed this writ petition to claim her salary for the maternity leave period and to rectify her date of regularization. The regularization date was postponed by the third respondent because it coincided with her maternity leave. Consequently, her joining date was set after the maternity leave ended, and she is now seeking the associated monetary benefits.
3. The succinct facts of the case necessary to dispose of this petition are as follows: The petitioner was appointed as a Postgraduate Assistant in a Higher Secondary School by the Teachers Recruitment Board on 02.03.2006, initially on consolidated pay for a period of five years. She applied for maternity leave from 26.05.2006 to 23.08.2006, the maximum allowable ninety days at that time, which was granted by the Head Master of the concerned school but without pay. During her maternity leave, the Government issued Order G.O.Ms.No.99, School Education Department dated 27.08.2006, which regulated the service of teachers on a scale of pay effective from 01.06.2006. However, the third respondent regularized https://www.mhc.tn.gov.in/judis 3 of 12 W.P.(MD)No.13282 of 2017 the petitioner's service by proceedings in Na.Ka.No. 59869/WIV/W18/2006 dated 18.10.2006 starting from her post-maternity leave joining date of 24.08.2006, rather than from 01.06.2006, because she was on leave. This postponement of regularization delayed her increment date from 1st April to 1st July, resulting in financial loss.
4. The petitioner's request to have her service regularized from 01.06.2006 was initially ignored for several years and, after a reminder, was finally rejected by the fourth respondent through the impugned order bearing Mu.mu.No.6023/A3/2015 dated 08.09.2015. Consequently, she has filed this writ petition praying to have this order quashed and seeks the associated monetary benefits. In contra, the respondent opposed the petitioner's claims and the 4th respondent filed a counter-statement supporting the impugned order. It was stated in the counter that since the petitioner was appointed on consolidated pay, she was only entitled to casual leave and she was not entitled to any other leave and hence the maternity leave from 26.05.2006 to 23.08.2006 was sanctioned without pay. According to Clause 8 of the agreement she signed, she was entitled to casual leave at a rate of one day per duty month. Since the petitioner was not in service as of 01.06.2006, according to G.O.Ms.No.99 dated https://www.mhc.tn.gov.in/judis 4 of 12 W.P.(MD)No.13282 of 2017 27.06.2006 her service was regularized from 24.08.2006, the date she resumed duty after her leave on loss of pay. The respondent thus requested the dismissal of the petition.
5. The questions arising for consideration are: Was the petitioner appointed on consolidated pay, and therefore not a regular government servant, making her ineligible for maternity leave? Since the petitioner was on leave on 01.06.2006, could her service not be regularized from 01.06.2006? Given the agreement between the petitioner and the department, is it that petitioner is not entitled to claim maternity leave benefits in violation of the terms of the agreement?
6. The respondents rely on Tamil Nadu Fundamental Rule 101(a), arguing that only permanent married women government servants are entitled to 90 days of maternity leave during the relevant period and that non-permanent married women government servants, regardless of their category, are not entitled to maternity leave and that however, such employees may be granted earned leave if eligible, or otherwise, leave will be granted on a loss of pay basis.
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7. Section 5 of The Maternity Benefit Act 1961 states that every woman is entitled to maternity benefits, and employers are liable to provide them. This section does not distinguish between permanent and non-permanent employees. The celebrated citation in this regard is Municipal Corporation of Delhi vs Female Workers (Muster Roll) and another (2000) 3 SCC 224. In this case, the Hon'ble Apex Court, referencing Article 11 of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, ruled that women employees on the muster roll of the Delhi Municipal Corporation are entitled to all benefits provided under the Maternity Benefit Act 1961. This legal precedent challenges the department's claim that non- permanent married women government servants are not entitled to maternity benefits, debunking it as a myth. Furthermore, the law is now well-settled that once maternity leave has been sanctioned, the leave period must be treated as a full duty period. Thus, the department's argument that the petitioner's service could not be regularized as of 01.06.2006 because she was not on duty is unsustainable. Even though the petitioner was on leave, she should be treated as if she were on duty. https://www.mhc.tn.gov.in/judis 6 of 12 W.P.(MD)No.13282 of 2017
8. The respondents also refer to clause 8 of the agreement entered into by the petitioner with the department, which is reproduced in the counter as follows:
“8. He/She shall during his/her temporary service under this agreement be eligible, subject to the exigencies of public service for the Casual leave at rate of of one day per duty month. No other leave is admissible.” Section 27 of the Maternity Benefit Act 1961 nullifies any agreement inconsistent with the provisions of the Act unless the terms of the said agreement are more favourable to the woman than those of the Act. In this case, clause 8 of the agreement contravenes the provisions of the Maternity Benefit Act 1961 by curtailing the rights conferred under the Act, making this clause void and unenforceable.
9. In a similar case, the Gauhati High Court recently ruled in Mrs. Sangeeta Kormel Yadav vs Union of India and 4 Ors on 10 September 2024 as follows:
7. There is no dispute to the fact that the petitioner was serving as a part time teacher in Kendriya Vidyalaya, ONGC, Sivasagar from 29.06.2012 to 04.03.2015 with artificial breaks in between. According to the petitioner, she got married to her husband on 13.10.2013 and thereafter, delivered a baby boy on 12.04.2015. Although she is no longer employed in Kendriya Vidyalaya, ONGC, Sivasagar, it is her case that she is entitled to receive maternity benefits in terms of the relevant provisions of the Act of 1961.
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8. The Apex Court in Municipal Corporation of Delhi (supra) took into consideration the provisions provided under the Act of 1961, more particularly, Section 2 and Section 5 of the said Act. The Apex Court opined that Article 14 of the Constitution of India clearly provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. It went on to refer to the case of Hindustan Antibiotics Ltd Vs. Workmen, reported in AIR 1967 SC 948, wherein the Apex Court held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. The provision of Article of the Constitution was also taken note of by the Apex Court. It was therefore opined that the provision of the Act of 1961 nowhere provides that only regular employees would be given the benefits of maternity leave and not those engaged on casual basis or muster roll or daily wage basis. Under the circumstances, the Apex Court held that the provisions of the Act of 1961 would be applicable to woman employees irrespective of their nature of engagement.
9. In the case of Dr. Kavita Yadav (supra), the case of Municipal Corporation of Delhi (supra) was also taken into consideration and the Apex Court in the given facts of that case on making an independent analysis of the provisions of the Act of 1961 held that the same did not lead to an interpretation that the maternity benefits cannot survive or go beyond the duration of employment of an employee. Even in a case where the applicant woman dies after delivery of the child, the benefit as per the last proviso to Section 5(3) of the Act of 1961 would be available. The Apex Court further opined that the expression "discharge" is of a wide import, and it would include "discharge on conclusion of the contractual period." By virtue of the operation of Section 27 of the Act of 1961, the same would override any agreement or contract of service found inconsistent with the Act of 1961.
Based on the discussion above, the department's contention is completely untenable.
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10. On the petitioner's side, there are claims for monetary benefits with interest. The respondent's side pleads laches and seeks dismissal of the petitioner's claim. Upon reviewing the documents, it appears that the petitioner is not responsible for the delay. The petitioner rejoined duty after her maternity leave on 24.08.2006. The regularization order, which regularized the petitioner's service effective from 24.08.2006, was issued by the third respondent on 18.10.2006. Although the petitioner's representation is not filed here with the case, reference No.2 from the letter of the fourth respondent dated 29.03.2007 addressed to the second respondent, with a copy marked to the Head Master of the school, indicates that the Head Master forwarded the petitioner’s representation to the fourth respondent on 20.02.2007. This suggests that the representation must have been made on or before 20.02.2007. The first respondent did not accept the representation, as informed to the fourth respondent by letter No.5975/pa.ka.2(1)/2014-3, dated 19.09.2014. Subsequently, the fourth respondent issued the impugned order on 08.09.2015 and communicated it to the Head Master of the School. The writ petition was then filed on 17.07.2017. Therefore, the petitioner's 2007 representation, which was resolved in 2015, cannot be attributed to her fault. Hence, the https://www.mhc.tn.gov.in/judis 9 of 12 W.P.(MD)No.13282 of 2017 department's contention to deny the monetary benefits to the petitioner is not justifiable.
11. In fine, the impugned proceedings of the 4th respondent in Mu.mu.No.6023/A3/2015 dated 08.09.2015 are hereby quashed. Consequently, the respondents are directed to regularize the maternity leave period as a duty period with salary and to grant the time scale of pay to the petitioner from 01.06.2006 in the post of P.G.Assistant (Physics), along with attendant monetary benefits and 6% interest per annum, within six (6) weeks from the date of receipt of a copy of this order.
12. Accordingly, this Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
10.01.2025 NCC : Yes / No Index : Yes / No Internet : Yes/ No gbg https://www.mhc.tn.gov.in/judis 10 of 12 W.P.(MD)No.13282 of 2017 To
1.The Principal Secretary to Government, School Education Department, Secretariat, Fort St.George, Chennai-600 009.
2.The Director of School Education, DPI Campus, Chennai-600 006.
3.The Joint Director of School Educational (Higher Secondary), DPI Campus, College Road, Chennai-600 006.
4.The Chief Educational Officer, Tirunelveli District, Tirunelveli.
https://www.mhc.tn.gov.in/judis 11 of 12 W.P.(MD)No.13282 of 2017 DR.A.D.MARIA CLETE, J.
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