Central Administrative Tribunal - Chandigarh
Samriti Sharma vs Education Deptt., Ut Chandigarh on 25 March, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGRH BENCH
...
(Hearing through Video Conference)
Order Pronounced on:
Order Reserved on : 14.02.2022
Original Application No. 060/34/2019
M.A. No. 060/88/2019
CORAM: HON'BLE MRS. HINA P.SHAH, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
1. Samriti Sharma, AGED 35 YEARS, W/o Sh. Harish Sharma, TGT
Science Non Medical (Group-B) on contract basis (Guest Faculty),
Govt. High School, Indira Colony, Mani Majra UT. Chandigarh,
resident of House No. 71, Sector 12-A, Panchkula, Pin Code-134112.
2. Archana, aged 37 years, D/o Sh. Krishan Kumar, W/o Sh. Paramjeet
Verma, lastly posted at Govt. Model Senior Secondary School,
Sector 32, Chandigarh as TGT Science Medical on contract basis
(Guest Faculty) at present regularly appointed at Govt. Model
School, Naohra, Distt. Patiala, resident of House No. 1102, Phase-2,
Maya Garden, Zirakpur-140603.
...Applicants
(By Advocate: Shri. Ranjivan Singh)
Versus
1. Union of India, through Secretary, Department of Education, Govt. of
India, North Block, New Delhi, Pin Code-110001.
2. Secretary, Department of Education, U.T. Chandigarh, Chandigarh
Administration, UT Secretariat, Sector 9, Chandigarh, Pin Code -
160009.
3. Secretary, Department of Personnel, U.T. Chandigarh, Chandigarh
Administrtion, U.T. Secretariat, Sector 9, Chandigarh, Pin Code -
160009.
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4. Director School Education, Chandigarh Administration, U.T.
Secretariat, Sector 9, Chandigarh, Pin Code - 160009.
5. District Education Officer (S), U.T. Chandigarh, Chandigarh
Administration, Vatika School Complex, Sector 19, Chandigarh, Pin
Code - 160019.
...Respondents
(By Advocate: Shri Anuj Ahluwalia for respdts. No. 2 to 5)
ORDER
Per : Mrs. Hina P.Shah MA No. 060/88/2019 MA No. 060/88/2019 has been filed by the applicants seeking leave of this Tribunal to join together and to maintain a joint Original Application before this Tribunal. Prayer made in the said MA is allowed for the reasons stated therein. Accordingly, the applicants are permitted to join together and to maintain a joint Original Application before this Tribunal.
Original Application The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) For setting aside the letter/memo No. 1619-DSE-UT-S2-11(Misc) 2016 dated 04.07.2016 (A-7) issued by the Director School Education, Chandigarh Administration whereby rejecting the claim of release of full salary for the period they availed extended maternity leave i.e. for the period 23.09.2016 to 23.12.2016 annd 21.12.2016 to 20.03.2017 in view of notification dated 24.01.2013 (A-2) whereby restricting the said salary to 84 days/12 weeks only.
(ii) For setting aside Notification No. 28/1/94-IH(7)-2013/1508 dated 24.1.2013 (A-
2) as issued by the respondent Administration whereby restricting the release of salary to 84 days/12 weeks while granting the Maternity Leave to the contractual employees being illegal, arbitrary, unjust and violative of the provisions of Articles of 14 and 16 of the Constitution of India and further against the spirit of 3 settled position of law as elaborated in the OA providing full salary to the contractual employees for the period they remained on duly sanctioned maternity leave.
(iii) For directing the respondents to grant/release the salary to the applicant for duly sanctioned Maternity Leave for extended period 23.09.2016 to 23.12.2016 and 21.12.2016 to 20.3.2017 alongwith interest @ 18% p.a. in view of the law laid down by this Hon'ble Court in the matter of Sonika Kohli Vs. Union of India (OA No. 429-CH/03 decided on 27.8.2003) and also in view of the judgement passed by this Hon'ble Court in OA No. 742-CH/2009 titled as Rupinderjit Kaur Vs. Union of India and further as held in Neetu Arora's case (OA No. 1162-CH- 2012)."
2. The facts as stated by the Applicants is that they were appointed as TGT's on contractual basis, (Guest Faculty) on a monthly consolidated salary of Rs.8000/- as per their appointment orders issued by District Education Officer, U.T., Chandigarh. The Applicants had applied for maternity leave at different spells during their service tenure as per chart mentioned below:
Sr. No. Name of the applicants Period Sanctioned for Maternity Leave
1. Samriti Sharma 01.07.2016 to 22.09.2016 = 84 days (paid)
2. Archana 28.09.2016 to 20.12.2016 = 84 days (paid) While they were availing maternity leave they further applied for extension of maternity leave which was duly sanctioned by the competent authority as under:
Sr. No. Name of the applicants Period Sanctioned for Maternity Leave
1. Samriti Sharma 23.09.2016 to 23.12.2016 = 92 days (unpaid)
2. Archana 21.12.2016 to 20.03.2017 = 90 days (unpaid) 4 The Applicants were informed that their maternity leave stands sanctioned as per Chandigarh Administration's Policy and it was decided by Administration that those teachers who proceeded on maternity leave may be allowed to join duty after availing maternity leave applied which may not exceed 180 days. Accordingly, the Applicants joined duty, but were not paid salary for the extended period. In case of Applicant no.1, out of total spell from 1.07.2016 to 23.12.2016, salary was paid only for 84 days and in respect of Applicant no.2, out of total spell from 28.09.2016 to 20.03.2017, salary of 84 days only was paid. The release of 84 days' salary was as per Administrative letter/notification dated 24.01.2013. As per earlier notification of Administration dated 4.01.2012, decision was for grant of maternity leave for 6 months but without pay. Thus in case of both the Applicants, salary of 92 days and 90 days respectively are unpaid. The Applicants represented to the authorities for grant of salary of duly sanctioned maternity leave, but it was conveyed to them that benefit of salary beyond 84 days has been granted only to those who have approached judicial forum. The Applicants thereafter served legal notice, but Respondent no.3 vide letter /memo dated 4.07.2017 (Annexure A/7) rejected their claim and thus aggrieved by the arbitrary and illegal action of the Respondents, the Applicants have approached the Hon'ble Tribunal for redressal of their grievance. The Applicants had earlier approached this Hon'ble Tribunal by filing OA No.1046/2017 which was dismissed as withdrawn vide order dated 23.10.2018 with liberty to file fresh OA since the impugned notification was not challenged by them. 5
3. The Applicants in support of their arguments have relied on number of judgements which are as under:
a) Sonika Kohli V/s. UOI decided by CAT, Chandigarh in OA No.429/2003 on 27.08.2003.
b) Smt. Rupinderjit Kaur V/s. UOI decided by CAT, Chandigarh in OA No.742/2009 on 28.10.2010.
c) Smt. Neeta Arora V/s. UOI decided by CAT, Chandigarh in OA No.1162/2012 on 12.12.2012.
4. The Respondent nos. 2 to 5 have filed their reply stating that the Department of Personnel, Chandigarh Administration has issued instructions on 4.01.2012 for grant of maternity leave to the contractual female employees, and relevant portion is as under:
"......It has been decided to allow maternity leave without pay of twelve weeks to such female employees working in various departments of Union Territory Administration. This leave without pay will be admissible only to such employees who have completed a minimum one year of contract successfully."
Thereafter again instructions were issued by Administration on 24.01.2013 and relevant portion is as under:
"......It has been decided by the Chandigarh Administration to grant the maternity leave of twelve weeks with pay to such female employees working on contract basis in various departments of Chandigarh Administration who have completed a minimum of one year service successfully."
Subsequently, another clarification was issued by Administration on 6.12.2013 and relevant portion is as under:-
"......It has been decided by the Chandigarh Administration that all the female contractual employees who proceeded on maternity leave period to 24.01.2013 (i.e. the date of issuance of the instructions) are to be paid the wages/pay benefits for the maternity period of the maternity leave from 24.01.2013 till the expiry of the maternity leave."6
5. Respondents further stated that before instructions dated 24.01.2013, the contractual female employees would avail maternity leave but it was without pay. In the case of the Applicants, maternity leave applied and availed is as per chart mentioned below:
Sr. No. Name, Date of joining Maternity Extended Designation/School Leave applied maternity leave
1. Smt. Samriti Sharma 18.09.2008 01.07.2016 to 23.09.2016 to w/o Sh. Harish Sharma, 22.09.2016 = 23.12.2016 = Science Non Medical 84 days (paid) 92 days Mistress (contract (unpaid) basis) (Guest Faculty), Govt. High School, Indira Colony, Manimajra, Chandigarh
2. Smt. Archana, Science 08.09.2009 28.09.2016 to 1.12.2016 to Mistress 20.12.2016 = 20.03.2017 = (contract/Guest 84 days (paid 90 days faculty), GMSSS-32, (unpaid) Chandigarh
6. It was further stated that the Applicants have already been paid salary for 84 days for maternity leave in accordance with the instructions of Department of Personnel, Chandigarh Administration dated 24.01.2013(Annexure A/2). Thus the claim of the Applicants for payment of salary of maternity leave over and above entitlement has been rightly rejected by the Department vide letter / memo dated 4.07.2017 (Annexure A/7) issued by Respondent no.4. Thus, as the OA does not deserve any merits, same deserves to be dismissed.
7. The Applicant has not filed any Rejoinder denying the submissions of the Respondents.
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8. Heard the parties by video conferencing and perused the material available on record.
9. The applicant as well as the respondents reiterated their submissions as made earlier.
10. The question which requires consideration is whether the applicants working on contractual basis are entitled for release of full salary for the period they availed maternity leave.
11. As seen, the factual matrix of the case is that applicants were appointed as contractual teachers (Guest Faculty) as TGT (Science) vide orders dated 17.09.2008 and 8.09.2008 respectively. They applied for maternity leave for different spells as mentioned below:
Sr. No. Name of the applicants Period Sanctioned for Maternity Leave
1. Samriti Sharma 01.07.2016 to 22.09.2016 = 84 days (paid)
2. Archana 28.09.2016 to 20.12.2016 = 84 days (paid) They further applied for extended period which was duly sanctioned by the competent authority for the period as mentioned below:
Sr. No. Name of the applicants Period Sanctioned for Maternity Leave'
1. Samriti Sharma 23.09.2016 to 23.12.2016 = 92 days (unpaid)
2. Archana 21.12.2016 to 20.03.2017 = 90 days (unpaid) 8 The cases of the Applicants were forwarded by the Head of concerned schools to the District Education Officer, Chandigarh for approval of leave.
The Chandigarh Administration as per policy made it clear while sanctioning the maternity leave of contractual teachers and advised that they may be allowed to join duties after availing maternity leave applied which may not exceed 180 days. The Applicants thereafter joined their duties after availing duly sanctioned maternity leave.
12. We have noticed that as per policy prevailing at the respective time, the Authorities have paid salary of maternity leave availed by the Applicants for 84 days, though they have availed duly sanctioned maternity leave from 1.07.2016 to 23.12.2016 in case of Applicant no.1 and 28.09.2016 to 20.03.2017 in case of Applicant no.2. It is seen that the said restrictions have been laid down by the Administration as per Letter No.8/1/94-IH(7)-2013/1588 dated 24.01.2013 (Annexure A/2 ). We have also noted that the policy of the Administration in respect of maternity leave to contractual female employees was different at different times.
13. We find that the grounds raised by the Applicants are duly sustainable and also agree that the female contractual employees were paid salary of availed maternity leave as per law laid down by this Court in similar cases along with interest and therefore not releasing salary of availed maternity leave is unjustified and arbitrary and in violation of Article 14 and 16 of Constitution of India as even the contractual teachers 9 are entitled to grant of maternity benefits for the period the said leave was duly sanctioned by the authorities.
14. We are in agreement with the judgements relied by the Applicants in case of Sonika Kohli, Rupinderjit Kaur and Neetu Arora which have been allowed by the Hon'ble Tribunal in terms of the decisions taken in cases of Krishnan Kumar (supra) and Rekha Rani's case which was upheld by Hon'ble Punjab and Haryana High Court and it was held that female contractual employees are entitled to paid maternity leave. Thus denial of benefit without any justified reasons /logic cannot be accepted. Thus Applicants are entitled to grant of full salary for the period the same was duly sanctioned by the authorities.
15. Also as per the law laid down by Apex Court in Municipal Corporation of Delhi V/s. Female Workers (Muster Roll) reported in (2000) SCC 224, Hon'ble Supreme Court has observed that in case of a woman irrespective of the place where she is working and irrespective of the capacity of her appointment, the nature and tenure of her appointment and the duties performed by her, when it comes to granting her the benefit of facilities required to give birth to a child, the employer is duty bound under the Constitution to provide her all the benefits and that is why it has been held by the Supreme Court that the benefit of Maternity Benefit Act,1961 should be conferred to even muster roll employees working in the Delhi Municipal Corporation. Even the Punjab & Haryana High Court has also granted similar benefits and allowed identical writ petitions in case of 10 Anima Goel V/s. Haryana State Agricultural Development Corporation (2007) Vol.III LLJ page 64 besides several other identical cases by various High Courts.
16. On the other hand, we do not agree with the submissions of the Respondents that they are entitled only for salary of 84 days of maternity leave as per the policy of the Chandigarh Administration as the said Policy itself is illegal, arbitrary and in violation of Article 14 and 16 of the Constitution of India. Also after the said policy, when there were several issues raised before the administration, after reconsideration, the Administration has come up with the policy dated 30.01.2018 to grant maternity leave of twenty six (26) weeks with pay to female employees working on contractual basis in various departments of Chandigarh Administration in terms of Maternity Benefit (Amendment) Act, 2017 subject to fulfilment of conditions of the Maternity Benefit Act, 1961. Thus in present case, the Applicants are entitled to duly sanctioned maternity leave with pay in accordance with rules as applicable to regular teachers and as paid to other similarly situated teachers in similar cases decided by this Hon'ble Tribunal and thus Respondents are directed to release full salary for the period the Applicants availed duly sanctioned maternity leave.
17. In view of the observations made above, the impugned letter/memo dated 4.07.2016 (Annexure A/7) as well as the impugned notification dated 24.01.2013 (Annexure A/2) are hereby quashed and set 11 aside. The Respondents are directed to release the salary to the Applicants for duly sanctioned maternity leave for extended period from 23.09.2016 to 23.12.2016 in case of Applicant no.1 and for extended period from 21.12.2016 to 20.03.2017 in case of Applicant no.2 along with interest from the date the said salary was due till the date of payment, at the prevailing rate of interest allowed for General Provident Fund. In above terms OA deserves to be allowed and same is accordingly allowed. No costs.
(RAKESH KUMAR GUPTA) (HINA P. SHAH)
MEMBER (A) MEMBER (J)
ND*
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