Rajasthan High Court - Jaipur
Harshita Yadav vs State Of Raj And Ors on 19 May, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 11833 / 2014
Harshita Yadav
----Petitioner
Versus
State Of Raj And Ors
----Respondent
_____________________________________________________ For Petitioner(s) : Mr. R.P. Garg For Respondent(s) : Mr. Sanjay Sharma, Govt. Counsel _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Order 19/05/2017 Present petition has been filed under Article 226 of the Constitution of India praying that the respondents be directed to grant maternity leave to the petitioner and pay all consequential benefits thereof by sanctioning maternity leave to the petitioner for a period of 171 days.
Briefly stated, petitioner had applied for the post of Senior Teacher (Maths) and after conclusion of selection process, she being successful was appointed as Senior Teacher (Maths) at Alwar. Appointment letter dated 7.10.2011 was issued in favour of the petitioner and as per appointment letter issued, petitioner had to join her place of posting on or before 09.11.2011. When appointment letter was issued, petitioner was having full fledged pregnancy. Petitioner on 31.10.2011 delivered a child. To save her job, on 08.11.2011, a day before the last date stipulated in the appointment letter, petitioner joined her services. Having joined (2 of 3) [CW-11833/2014] on 08.11.2011, in order to care toddler, petitioner submitted an application for grant of maternity leave w.e.f. 09.11.2011. It is undeniable fact that the petitioner having availed maternity leave, joined her place of posting and is continuously working with the respondents to their satisfaction.
In the present petition, two prayers have been made; firstly, the respondents be directed to sanction maternity leave in favour of the petitioner and petitioner be paid salary for the period on which she remained on maternity leave. Secondly, for fixation of pay and for confirmation, on the day she joined the government service, same be reckoned as commencement of period of job.
Respondents have submitted that after availing maternity leave, petitioner joined on 28.04.2012.
Shri Sanjay Sharma, learned Government Counsel, has relied upon Section 5(2) of the Maternity Benefit Act, 1961 to contend that maternity benefits are not to be extended to an employee who has worked less than 80 days in twelve months immediately preceding the date of her expected delivery. Shri Sanjay Sharma has submitted that the petitioner ought to have sought extension of time to join the government service and after giving birth to child, should have joined the government service.
During the course of argument, it is not denied that grant of salary and other monetary benefits to the employee and joining of service are entirely different. Petitioner, in fact, had joined government service on 08.11.2011. At that time, she was a mother of eight days old child. Petitioner had proceeded on leave in the month of November, 2011. Maternity Benefit Act, 1961 is a (3 of 3) [CW-11833/2014] beneficial legislation. The State Government is committed that newly born child being a future of the nation, is not only reared well, but grow as a healthy child.
Shri Sanjay Sharma, learned Government Counsel, has no quarrel with the assertion made by the learned counsel for the petitioner that eight days old child require care, attention and nursing by the mother. Shri Sanjay Sharma has also not denied that State Government is bound by the provisions of Maternity Benefit Act and has also provided in State Government rules grant of maternity leave. However, this court cannot become oblivious of the fact that the petitioner had not completed minimum 80 days in preceding twelve months. This is a case where this court should balance the equities.
Hence, it is ordered that the period from 09.11.2011 till 27.04.2012 will be considered as a leave of kind in due and for the said period, petitioner shall not be paid any salary or allowances, but said period shall be treated as the one on which petitioner was on duty. Thus, for all intent and purposes, services of the petitioner shall be reckoned w.e.f. 08.11.2011.
With the directions issued above, present writ petition stands disposed of.
(KANWALJIT SINGH AHLUWALIA)J. Govind/