Central Administrative Tribunal - Chandigarh
Deepika Singh vs Pgi Chandigarh on 29 January, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.N0.060/00155/2020 Order pronounced on: 29.01.2021
(Order reserved on: 28.01.2021)
HON'BLE MS. AJANTA DAYALAN, MEMBER (A)
Deepika Singh, aged about 38 years, wife of Sh. Amir Singh,
resident of House No. 2811, Sector-21, Panchkula, Haryana, at
present working as Nursing Officer (Group B) in Post Graduate
Institute of Medical Education and Research, Chandigarh-160012.
.... Applicant
(BY ADVOCATE: MR. DHIRAJ CHAWLA)
VERSUS
1. Union of India through Secretary, Ministry of Health and Family
Welfare, Nirman Bhawan, New Delhi-110011.
2. Post Graduate Institute of Medical Education and Research,
Chandigarh, Sector-12, Chandigarh-160012 through its Director
3. Medical Superintendent, Post Graduate Institute of Medical
Education and Research, Chandigarh, Sector-12, Chandigarh-
160012
4. Senior Administrative Officer (H), Post Graduate Institute of
Medical Education and Research, Chandigarh, Sector-12,
Chandigarh-160012
Respondents
(BY ADVOCATE: MR. SANJAY GOYAL)
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ORDER
HON'BLE MS. AJANTA DAYALAN, MEMBER (A)
1. Present Original Application has been filed by the applicant Deepika Singh seeking setting aside of the order dated 21.1.2020 (Annexure A-1) and letter dated 3.9.2019 (Annexure A-2) rejecting her claim for maternity leave from 27.6.2019 to 23.12.2019.
2. The facts of the case are not disputed. The applicant married Amir Singh on 18.2.2014. However, Amir Singh had earlier married Sunita Singh. From her, he had two children namely son Aryan Singh and daughter Kanishka Singh. Sunita Singh expired on 16.2.2013. Thereafter the applicant married Amir Singh and had a son from him Viren Partap Singh.
3. The applicant applied for maternity leave from 27.6.2019 to 23.12.2019. The respondents PGIMER sought some clarification from her. But vide impugned letter dated 3.9.2019 (Annexure A-2), the respondents have rejected her claim for maternity leave. It is stated in that letter that as the applicant had already two surviving children and has also availed of Child Care Leave on this basis, her request has not been accepted. Further, it is stated in the letter that the child born by her has to be treated as her third child for which maternity leave is not admissible as per Rules.
4. The respondents have contested the claim of the applicant. Inter-alia, they have stated that the applicant has applied for and availed Child Care Leave for the first time for her elder son Aryan born on 1.2.2001. She applied and 3 claimed Child Care Leave in respect of both children on many occasions from the Institute. She has also got entered the names of two children from first wedlock of her husband in the office record and is availing facility of medical treatment for them from PGIMER. They have, therefore, averred that in view of availing of all the benefits of leave due on account of children under Central Civil Services (Leave) Rules, 1972 in respect of her two children, her application for maternity leave from 27.6.2019 to 23.12.2019 was not accepted. As she was already having two surviving children and maternity leave is not admissible to the applicant having more than two surviving children as per Rule 43 of the CCS (leave) Rules, 1972, her claim was rightly rejected by respondents.
5. I have heard the opposite counsel and have also gone through the pleadings. I have also given thoughtful consideration to the matter.
6. It is clear from the pleadings on record that that the applicant has requested for entering the names of her two children from first wedlock of her husband in the office record. In this connection, Annexure R-1 has been annexed by the respondents. This letter is dated 4.5.2015 and is from the applicant making a request to "enter the name of my children in the official record". The names of two children were accordingly entered in the respondents' record. Since then, the applicant is applying and availing Child Care Leave for both the children on many occasions from the Institute. This fact is not denied by the applicant herself either in the written pleadings or in the arguments.
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7. I also appreciate the argument of the learned counsel for the applicant that maternity leave is distinguishable from the Child Care Leave. The learned counsel for the applicant argued that even though the applicant has availed of Child Care Leave but she has never availed of maternity leave. He also emphasised the fact that the maternity leave is being taken by the applicant for her first pregnancy after her first marriage and as such same is admissible as per Rule 5 (3) of The Maternity Benefit Act, 1961, which reads as under :-
"(3) The maximum period for which any woman shall be entitled to maternity benefit shall be [twenty-six weeks of which not more than eight weeks] shall precede the date of her expected delivery."
8. I, however, note that the applicant's counsel has relied upon provisions of The Maternity Benefit Act, 1961 (Annexure A-6). But, this Act is applicable to establishments as specified in the Act itself. Rule 2 of the Act reads as follows:-
"2. Application of Act. -
- [(1) It applies, in the first instance,-
(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;
(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]"
9. It is clear from the bare perusal of the Act that same does not apply to the Central Government employees. Same is, therefore, not applicable to the applicant as well in the present O.A. 5
10. The Rule that is applicable to the applicant is Central Civil Services (Leave) Rules, 1972. Rule 43 thereof reads as follows:-
"(1) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant leave for a period of {180 days} from the date of its commencement.
xxxx (C) "Subject to the provision of this rule, a woman Government servant may be granted child care leave by an authority competent to grant leave for a maximum period of 730 days during her entire service for taking care of her two eldest surviving children, whether for rearing or for looking after any of their needs, such as education, sickness and the like". It is, thus, clear that the maternity leave can be granted to a female government servant only if she has less than two surviving children. As per her own request, the applicant has already shown her two children from the first marriage of her husband as her children and she has been availing benefit in their respect on many occasions earlier and subsequent to her marriage. Therefore, for all practical purposes and as far as respondent department is concerned, she has already two surviving children and she is taking benefit for them from the respondent department by way of Child Care Leave and other benefits.
11. In view of the above, any child born to her now will be considered only as a third child and cannot be taken as the first child. It may be true that Viren Partap Singh is first child born to her after her first pregnancy with her husband. But, of her own choice, the applicant has already got the names of other two children from her husband's first marriage entered in the record of the office as her children and is availing 6 benefits on their behalf including Child Care Leave. The Rule position is clear and for all practical purposes, the applicant has two surviving children. As such, any child born to her now can only be considered as third child.
12. In view of the above, the decision of the respondents to reject her maternity leave is correct even though it may be first maternity for the applicant herself.
13. Thus O.A is dismissed being devoid of merit.
14. There is no order as to costs.
(AJANTA DAYALAN) MEMBER (A) Place: Chandigarh Dated: 29.01.2021 HC*