Jammu & Kashmir High Court - Srinagar Bench
Dr. Shazia Benazir vs State Of J&K And Others on 26 August, 2020
Bench: Chief Justice, Puneet Gupta
1
S. No. 206
Advance List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 972/2013
(Through Video Conferencing)
Dr. Shazia Benazir
Mrs. Basser-ul-Haq Hussaini
.... Petitioners
Through: None.
v.
State of J&K and others
.... Respondents
Through: Mr. Shah Aamir, AAG, with Ms. Sharaf
Wani for Respondents in SWP No.972/2013.
SWP No. 1899/2013
Mrs. Basser-ul-Haq Hussaini
.... Petitioners
Through: None.
v.
State of J&K and others
.... Respondents
Through: None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
26.08.2020
1. This writ petition was filed in year 2013 by the petitioners who were engaged as contractual doctors in the year 2007 under NRHM Scheme by the respondents. The petitioner No. 1 was engaged in terms of order dated 24.02.2007 and the petitioner No. 2 in terms of order dated 23.04.2008.
SYED TASADUQ QADRI 2020.08.28 12:08 I attest to the accuracy and integrity of this document 22. The writ petition was filed contending that the petitioner no.1 delivered a baby on 30.03.2013 and petitioner no. 2 on 02.01.2013 requiring maternity leave and consequential benefits. The respondents had sanctioned maternity leave of 60 days without honorarium in favour of the petitioners.
3. The petitioners have stated that they are entitled to 180 days maternity leave instead of 60 days and have placed reliance on the SRO 255 of 2012 dated 11.07.2012 as also payments for this period.
4. In this background, the petitioners have prayed for the following reliefs:
"i) A writ, order or direction including one in the nature of Mandamus, declaring the impugned decision of the respondents so far as the same relates to application of SRO 255 of 2003 to the female employees of NRHM including the petitioners as also clause
(iii) of Rule (10) of SRO 255/2003 as ultra vires with a further writ in the nature of certiorari, quashing and setting aside the said decision in relation to application of SRO 255/2003 to the grant of maternity leave to the female employees of NRHM including the petitioners as also clause (iii) of Rule (10) of SRO 255/2003.
ii) A writ, order or direction including one in the nature of Mandamus, commanding upon the respondents to give the same treatment to the petitioners as given to the beneficiaries of Rule 41 of J&K Civil Services (Leave) Rules, 1979 and grant them the maternity leave for a period of 180 days alongwith remunerations."
5. Objections have been filed by the respondents stating as follows:
"2. That the petitioners claim maternity leave for 06 months (180 days) as per the J&K Civil Service Leave Rules, 1979, though the same is not applicable to the persons appointed / engaged under NRHM Scheme. The appointment / engagement, made under NRHM Scheme, is governed by the guidelines of Government of India, which do not provide for 180 days maternity leave to the doctors engaged on consolidated basis under NRHM Scheme. It is submitted that the petitioners are not holding the posts substantively, but are holding the posts on consolidating basis and as such are not entitled to the benefit of Rule 41 of J&K Civil Services (Leave) Rules (as amended vide SRO 255 of 2012 dated 11.07.2012.
It is in place to submit here that a proposal to extend the benefit of SRO 418 of 2007 to the female employees engaged under NRHM Scheme, whereby the following benefits are admissible to contractual employees of J&K State is under consideration of the governing body of NRHM.
3. That the petitioners have accepted their consolidated based appointment under National Rural Health Mission Scheme and as such are governed by the guidelines of NRHM formulated by the Government of India as well as State Government. There is no such SYED TASADUQ QADRI 2020.08.28 12:08 I attest to the accuracy and integrity of this document 3 provision of maternity leave provided under the guidelines for the doctors engaged on consolidated basis under NRHM scheme.
4. That the rules framed under Notification SRO 255 dated 05th of August, 2003 to the extent of Rule 10 thereof pertaining to leave available to a contractual appointee are still to be applied to the case of the petitioners. As submitted above, the proposal is under consideration of the Governing Body of NRHM, as such, challenge thrown to the said SRO is misconceived and misplaced. It is worthwhile to submit over here that after proceeding on the said period of leave, petitioners have no right and locus to seek benefit of maternity leave as available to regular government employees as the petitioners are not similarly circumstanced with the government employees who hold such positions on substantive basis. The absence of petitioner doctors from their duties has been causing serious prejudice on the aim and object of NRHM under which scheme petitioners were engaged in the department...."
6. No rejoinder has been filed by the petitioners to the reply filed by the respondents.
7. We find that by an order dated 18.10.2013, the petitioner no. 1 was allowed to withdraw from the writ petition (SWP No. 972/2013).
8. On 18.12.2018, we were informed that the issues raised in the petition are considered in SWP No. 1899/2013. We directed the writ petition to be listed along with the writ petition (SWP No. 1899/2013). This writ petition is also listed today.
9. It is noteworthy that none appeared for the petitioners when the cases were listed on 10.10.2018 when adverse orders were deferred in the interest of justice.
10. So far writ petition (SWP No. 1899/2013) is concerned, notice was issued in this matter vide order dated 04.10.2013. It is seen from the record of the writ petition (SWP No. 1899/2013) that the petitioner had been working on ad hoc basis pursuant to order dated 31.12.2007 issued by the Principal District & Sessions Judge, Srinagar, and claimed maternity leave in July 2014.
11. The reliefs being claimed are relatable to the relief sought in the present writ petition. SWP 1899/2013 has not been listed after 23rd of April, 2015.
None appears in this writ petition as well when the matter was called out.
SYED TASADUQ QADRI 2020.08.28 12:08 I attest to the accuracy and integrity of this document 412. We find from the record that the same counsel appears for petitioners in SWP No. 972/2013 and SWP No. 1988/2013 and the petitioners are seeking the same relief, so both these writ petitions are being taken together for consideration.
13. The relief of maternity leave claimed by the petitioners in SWP No. 972/2013 and SWP No. 1899/2013 are relatable to delivery of children by the petitioner in 2013 and 2014 respectively.
14. Seven years have passed since the filing of the aforesaid writ petitions. Certainly, the relief of maternity leave for deliveries of children in 2013 and 2014 and consequential benefit cannot be granted at this stage. Clearly the substantive relief sought in these writ petitions has been rendered infructuous.
15. Moreover, there is no appearance on behalf of the petitioners when the matters were called out. No useful purpose will be served to keep these writ petitions pending on board.
16. Both the writ petitions are dismissed alongwith connected CMs. Interim directions, if any, shall stand vacated.
(PUNEET GUPTA) (GITA MITTAL)
JUDGE CHIEF JUSTICE
SRINAGAR
26.08.2020
TASADUQ
SAB:
SYED TASADUQ QADRI
2020.08.28 12:08
I attest to the accuracy and
integrity of this document