Rajasthan High Court - Jodhpur
State Of Rajasthan & Ors. vs . Smt. Dr.Monika Sharma on 23 April, 2010
Bench: A.M.Sapre, Dinesh Maheshwari
1
24 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
::ORDER:
State of Rajasthan & Ors. Vs. Smt. Dr.Monika Sharma D.B. Special Appeal (W)) No. 01703/2009 .....
Date of order : 23.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Y.P.Khileri, for the appellants.
Mr.B.L.Swami, for the respondent.
<><><> Heard on the application made by the appellant under Section 5 of the Limitation Act for condonation of 51 days' delay in filing the present appeal.
We have gone through the cause stated in the application and in our opinion, it constitutes a sufficient cause for the purpose of condoning the delay. There is no deliberate delay on the part of the appellant in filing the present appeal and, therefore, the delay deserves to be condoned on the grounds stated in the application.
Accordingly and in view of the aforesaid, the application for condonation of delay is allowed. The delay in filing the present appeal is hereby condoned.
The appeal be registered to its regular number. Having regard to the issue involved, we have further heard the learned counsel for the appellant on admission and have perused the material placed on record. 2 This intra-court appeal is directed against the order dated 10.09.2008 passed in CWP No.6967/2008 whereby the learned Single Judge of the Court has allowed the writ petition filed by the respondent and has held her entitled for maternity leave as per the provisions contained in Rule 103 of the Rajasthan Service Rules, 1951.
Briefly put, the relevant facts of the case are that after facing the process of selection under the advertisement dated 06.11.2006 (Annex.1), the respondent (writ petitioner) came to be employed as Senior Resident (PG) in the specialty of gynecology by the order dated 23.12.2006 (Annex.2). While being posted with the Principal and Controller, RNT Medical College, Udaipur, the writ petitioner approached this Court in writ jurisdiction on the grievance that the respondents were denying her maternity leave on the ground that she was employed on consolidated salary. The learned Single Judge found that the issue whether a person working on consolidated salary/contract basis/fixed term was entitled for maternity leave or not, had been adjudicated by this Court in favour of the employee in the case of Durgesh Sharma Vs. State of Rajasthan & Ors.: 2008 (2) RLW 1304 (Raj.); and issued the writ prayed for.
It is sought to be contended in this appeal that the writ- petitioner is not entitled for the benefits under the Rajasthan Service Rules for having not been appointed on regular basis; and the learned Single Judge has erred in granting benefits that are not available as per her service conditions. 3
Having heard the learned counsel for the appellant and having considered the law applicable to the case, we are clearly of opinion that the order passed by the learned Single Judge calls for no interference.
This Court has consistently held that the female employees, employed whether on temporary basis or on consolidated salary, are entitled to maternity leave. In the case of Neetu Choudhary Vs. State of Rajasthan & Ors.: 2005 (2) DNJ (Raj.) 676 a learned Single Judge of this Court held the employee, appointed as Nurse Gr.II on urgent temporary basis on consolidated salary, entitled to maternity leave. In the appeal taken by the appellant-State against the said decision in Neetu Choudhary's case, being D.B.Civil Special Appeal No.02542/2006 (DRJ), a Division Bench of this Court while dismissing the appeal on 31.10.2006, pronounced rather heavily against the posture adopted by the Department and said,-
''A bizarre argument has been advanced by the appellant in this case. The appointment against the sanctioned post under the rules being offered, the respondent was appointed after regular selection. However, other benefits along with benefit of maternity leave are being denied to the women employees of the State, which is against the very basic norms of equality of law and, moreover, on the one hand the Government at all forums is talking about the gender equality, gender justice and betterment of status of women and, on the other hand, it is denying the benefit of maternity leave to its own employees under the guise that appointment is not under the regular Rules, forgetting it that appointment in first place was given after due selection by following regular process of selection. On the first principles of a welfare State, her appointment cannot be treated as a back-door entry to deny the basic benefit of maternity leave to women employees of the State.'' 4 The writ petitioner, even if working on urgent temporary basis and on consolidated salary, had been appointed after due selection in terms of the advertisement dated 06.11.2006 (Annex.1) and has not secured back-door entry. Merely because the appellants would choose to put her on consolidated salary, the fact that she is a woman employee cannot be lost sight of. The essential benefits fundamentally dealing with the very basics of human rights cannot be and ought not to have been ignored; and the writ petitioner ought to have been allowed maternity leave as applied for. It may be pointed out that there had not been any other reason of denying maternity leave to the writ petitioner except that she was working on consolidated salary. Such a proposition having already been pronounced against, the action of the appellants in denying maternity leave to the writ petitioner was entirely inexplicable.
The learned Single Judge has not committed any error in allowing the writ petition and granting the reliefs prayed for.
The appeal remains bereft of substance and is, therefore, dismissed on merits. No costs. /s.soni./ (DINESH MAHESHWARI ),J. ( A.M.SAPRE ),J.