Kerala High Court
Radhamani P.R vs State Of Kerala on 30 November, 2015
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939
WP(C).No. 22381 of 2016 (W)
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PETITIONER(S):
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RADHAMANI P.R.,
W/O.CHANDRABOSE C.N.,
H.S.A.(PHYSICAL SCIENCE),
T.R.K. HIGH SCHOOL, VANIYAMKULAM,
PALAKKAD DISTRICT - 679 522,
RESIDING AT CHEMNALI PARABIL HOUSE,
"SREERANJINI", EAST MANISSERY,
MANISSERY P.O., PALAKKAD - 679 521.
BY ADVS. K.JAJU BABU (SR.)
M.U.VIJAYALAKSHMI
ARJUN SANTHOSH
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT EDUCATIONAL OFFICER,
PALAKKAD - 678 001.
4. THE HEADMISTRESS,
T.R.K. HIGH SCHOOL,
VANIYAMKULAM, PALAKKAD DISTRICT - 679 522.
R4 BY ADV. T.R.SADEESAN
R1-R3 BY GOVERNMENT PLEADER MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rvs.
WP(C).No. 22381 of 2016 (W)
APPENDIX
PETITIONER(S)' EXHIBITS :
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EXT. P1 TRUE COPY OF JUDGMENT DATED 30.11.2015IN W.P.(C)
0732/2015 OF THIS HON'BLE COURT.
EXT. P2 TRUE COPY OF GOVERNMENT ORDER GO(P)NO.2/2016/FIN DATED
12.01.2016.
EXT. P3 TRUE COPY OF THE BIRTH CERTIFICATE OF PETITIONER'S SON
CERTIFIED BY REGISTRAR OF BIRTH & DEATH ON
19.12.2014.
EXT. P4 TRUE COP OF THE LEAVE APPLICATION DATED 22.04.2015
SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT. P5 TRUE COPY OF THE LETTER DATED 29.12.2015 SUBMITTED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT. P6 TRUE COPY OF THE CERTIFICATE DATED 16.12.2014 ISSUED
BY DR.PADMAJA DIVAKAR FROM PADMAJA FERTILITY CLINIC
HYDERABAD.
EXT. P7 TRUE COPY OF THE GOVERNMENT ORDER GO(RT)
NO.1304/2016/G.EDN DATED 04.04.2016.
EXT. P8 TRUE COPY OF JUDGMENT DATED 04.03.2013 IN W.P.(C)
NO.8188/2012 OF THE MADRAS HIGH COURT.
RESPONDENT(S)' EXHIBITS :
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NIL.
/TRUE COPY/
P.A. TO JUDGE
rvs.
P.V.ASHA, J.
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W.P(C) No.22381 of 2016-W
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Dated this the 13th day of July, 2017
JUDGMENT
The petitioner is working as an H.S.A in an aided school. Since she was childless for 23 years, she got a baby boy through surrogacy procedure on 09.12.2014 as borne out from Ext.P6 letter from the hospital and Ext.P3 letter of the petitioner. She had submitted an application for maternity leave from 18.12.2014 to 31.3.2015 in order to nurse that baby. As the leave was not granted, she approached this Court in W.P(c).No.20732 of 2015, which was disposed of as per Ext.P1 judgment directing the 1st respondent to consider her representation in the light of the judgment reported in Geetha V. v. Kerala Live Stock Development Board Ltd., Tvm and Another [2015(1) KHC 165].
2. In Geetha's case (supra), this Court after elaborately considering the provisions relating to the maternity leave as well as the surrogacy procedure found that the petitioner therein is entitled to all the benefits an employee could have on post delivery sans the leave involving the health of the mother after the delivery and that she is entitled to child W.P(C) No.22381 of 2016-W 2 specific statutory benefits.
3. But in the case of the petitioner herein the respondents rejected her claim saying that Ext.P2 order issued on 12.01.2016 does not have any retrospective effect. Ext.P2 is a general order by which the Government extended the benefit of maternity leave of 180 days from the date of delivery to the female Government employees who are genetic mothers of children born on surrogacy on production of medical certificate from an authorised medical officer. Even though a hearing was held on the basis of Ext.P5 judgment by the 1st respondent, the 1st respondent issued Ext.P7 order on 4.4.2016 saying that leave availed by the petitioner cannot be converted to maternity leave as Ext.P2 order does not have any retrospective effect. The petitioner is challenging the order Ext.P7. The petitioner relies on the judgment Ext.P8, rendered by the High Court of Madras where also it is held that a woman employee is entitled to get maternity leave even in cases where she get a child through surrogate parents.
4. The respondents have filed a counter affidavit stating that the petitioner had applied for leave w.e.f 08.12.2014 to 31.03.2015 and that leave cannot be converted as maternity leave in the light of Ext.P2 order as it does not have any retrospective effect. It is also stated that as per Rule W.P(C) No.22381 of 2016-W 3 102A of Part 1 KSR, the female State Government employees are eligible for maternity leave and child adoption leave for 180 days each and that is applicable only with prospective effect.
5. Heard the learned counsel for the petitioner as well as the learned Government Pleader.
6. As this Court as well as the High Court of Madras have already held that the surrogate mothers/the genetic mothers who got babies on surrogate procedure are entitled to maternity leave and when Government have already issued Ext.P2 order in tune with the directions contained in Ext.P1 judgment, the benefit cannot be restricted to those mothers who got babies on or after the date of that order. As long as the respondents cannot have a case that the petitioner does not come within the purview of the definition of "mother" envisaged in Ext.P2 order the denial of maternity leave to the petitioner is arbitrary. The case of the petitioner considered in Geetha's case (supra) was in respect of leave availed prior to Ext.P2 order and in that case this Court held that such mothers are entitled to maternity leave. Therefore, the petitioner who is similarly situated is also entitled to the grant of the benefits treating the leave period as maternity leave. There cannot be any classification of such mothers like the petitioner on the basis W.P(C) No.22381 of 2016-W 4 of the date on which Ext.P2 order was issued. Such cut off date does not have any reasonable nexus with the object to be achieved and results in negation of equality.
The respondents are directed to grant the benefits due to the petitioner allowing her maternity leave for the period from 08/09.12.2014 to 31.03.2015 within three months from the date of receipt of a copy of this judgment.
The writ petition is allowed accordingly.
Sd/-
(P.V.ASHA, JUDGE) rtr/