Central Administrative Tribunal - Chandigarh
Dr. Shivani D/O Sh. P.D. Garg vs Union Territory on 31 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.1472-CH-2012 Date of pronouncement: 08.07.13 (Orders reserved on: 31.05.2013) (One Month summer vacations intervened. Honble Member (A) was on leave from 1.7.2013 (11.15 AM onwards) to 5.7.2013). CORAM : HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE MR. RANBIR SINGH, MEMBER (A) 1.Dr. Shivani D/o Sh. P.D. Garg, W/o Sh. Dinesh Goyal, working as Assistant Professor (Zoology), Post Graduate Government College for Girls, Sector 11, Chandigarh. 2.Ms. Manju Singmar W/o Sh. Ashok Kumar, working as Assistant Professor (English), Post Graduate Government College for Girls, Sector 11, Chandigarh. . Applicants Versus 1.Union Territory, Chandigarh through its Administrator. 2.Secretary, Education, Union Territory, Chandigarh, Sector 9, Chandigarh. 3.Director, Higher Education, U.T. Chandigarh. 4.Principal, Post Graduate Government College for Girls, Sector 11, Chandigarh. Respondents By: Mr. R.K. Sharma, Advocate counsel for the applicants. Mr. Aseem Rai, Advocate, counsel for the respondents O R D E R
JUSTICE S.D. ANAND, JM
1.The controversy herein is qua the duration for which the maternity benefit is available to the female employees of the contractual hue. The entitlement, on point of fact, to the grant of maternity benefit is not in dispute.
2.The applicants would claim entitlement to the grant of maternity leave for a period of 6 months by relying upon the view obtained by this Tribunal in O.A.No. 33-CH-2011 (Vandana Jain & Ors Vs. UOI etc.) decided on 31.3.2011; while the plea raised by the respondents is that the U.T. dispensation having brought into being its own policy formulation, is not obliged to be governed by the Punjab Government instructions or the instructions issued by the Government of India, in terms of the accepted recommendations of the 6th Central Pay Commission.
3.In resistance, the respondents rely upon the view obtained by a learned Division Bench of the Punjab & Haryana High Court in C.W.P. No. 23841 of 2011 (Kiran @Dr. Kiran Bajaj Vs. State of Haryana etc.) decided on 28.1.2013 and also the interim order dated 2.4.2013 2.4.2013 granted by another learned Division Bench of the Punjab and Haryana High Court in CWP No. 6873 of 2013 (Union Territory, Chandigarh & ors. Vs. Central Administrative Tribunal & Ors). The plea raised thereby is that the contractual Lecturers would, in terms thereof, be entitled only to the maternity leave for a duration of 12 weeks.
4.The learned counsel appearing on behalf of the applicants, then, relied upon judgment dated 16.5.2013 rendered by a learned Single Bench of the Punjab and Haryana High Court in CWP No. 5142 of 2013 (Reena Singla Vs. State of Punjab & Ors). Reliance in particular, was placed by the learned counsel for the applicants upon the fact that the learned Single Bench had duly noticed provisions of the Maternity Benefit Act as also the instructions issued by the State of Punjab and the Central Government and had, thereafter, upheld the entitlement of the female employees of the Sarva Shiksha Abhiyan Society, Chandigarh, to the grant of 180 days of maternity leave.
5.The relevant part of the observations in CWP No. 5142 of 2013 are extracted here under :
In the present case, the claim of the petitioner is limited to the extent of grant of maternity leave of 180 days. It is true that under the Maternity Benefit Act, 1961, a woman is entitled to maternity leave of six weeks. However, there is no bar to the grant of benefits over and above the said period, as specified in Section 5 of the 1961 Act. The State of Punjab as well as the Central Government having adopted the norm of 180 days to be the maternity leave, the employees, who are working in the State of Punjab under the SSA Society, would be entitled to the same benefit of 180 days. As per Rule 8.137-A of the Punjab Civil Services Rules Volume-I Part-I and the circular dated 19.10.2012 (Annexure P-5) issued by the Director Education Department (Secondary Education) Punjab, petitioner would be entitled to the grant of 180 days of maternity leave. Even under Rule 43(1) of Central Civil Services (Leave) Rules, 1972, maternity benefit has been now enhanced to 180 days from 135 days, which is in consonance with recommendations of the Sixth Central Pay Commission relating to maternity and child care leave. Government of India has itself, in its report submitted before the United Nations in its combined fourth and fifth periodic reports relating to Convention on the Elimination of All Forms of Discrimination against Women, in para 27 stated that maternity leave for Government and public sector employees has been increased from 135 days to 180 days. In its Children's Alternative Report to UNCRC, again the Government of India has stated that the maternity leave for Government employees has been increased from 135 to 180 days. By the Government of West Bengal, Andhra Pradesh, Maharashtra, Tamil Nadu and Jharkhand, where the SSA Scheme is being run, 180 days of maternity leave is being granted to its employees. The scheme admittedly being a Central Government sponsored scheme, the employees covered under the said scheme would be entitled to the same benefits as the employees of the Government of India as far as the maternity leave is concerned because the said benefit to an employee is a beneficial scheme, which is relatable to the public policy of the Government and in consonance with the Articles 39 and 42, Part-IV of the Constitution of India containing the directive principles of State Policy
6.It may be noticed that the grant of maternity benefit to the female contractual employees in terms of the accepted recommendations of the 6th CPC had been ordered by a learned Division Bench of this Tribunal in Vandana Jains case (supra). Apart therefrom, the directions qua various other facets too had been granted therein. It is only the direction qua the preparation of the subject-wise common seniority list of contractual employees which has been ordered to be stayed by the High Court.
7.It was common ground during the course of hearing that a number of contractual lecturers have already availed of the benefit of maternity leave for a period of 180 days in the light of that judgment.
8.The view obtained in CWP No. 23841 of 2013 was relatable to an employee of the concerned University. It is the validity of the instructions issued by the University which were under challenge therein. The plea raised was that the grant of lesser duration of maternity benefit to the contractual employees as against regular employees was discriminatory. The judgment discarded the plea of discrimination. The applicability or otherwise of the instructions issued by the Government of India in terms of the accepted recommendations of the 6th CPC, and instructions issued by the Punjab Government were not under adjudication in that case.
9.Even at the cost of repetition, it may be indicated that in Vandana Jains case too, we had directed the grant of maternity benefit in terms of the accepted recommendations of the 6th CPC.
10.The interim order dated 2.4.2013 in CWP No. 6873 of 2013 also provides for the grant of benefit in terms of the Punjab Government Circular dated 24.1.2013. In the Single Bench judgment delivered subsequent thereto (16.5.2013 Annexure A-8), the learned Single Bench noticed that The State of Punjab as well as the Central Government having adopted the norm of 180 days to be the maternity leave, the employees, who are working in the State of Punjab under the SSA Society, would be entitled to the same benefit of 180 days.
11.The position that, thus, emerges from the discussion in the preceding paras is as under:
(1)This Tribunal had directed grant of maternity benefit to the contractual employees in accord with the accepted recommendations of the 6th Central Pay Commission which (CPC) provides for relevant duration to be 180 days. As noticed in the order, Annexure A-8, Punjab Government instructions as also instructions issued by Government of India also provide for maternity benefit for a duration of 180 days. The learned counsel for the respondents did not find any fault with the factual accuracy of the fact-based observations made by the learned Single Judge, which stand extracted in paras 5 and 10 of this order.
(2)The Administrative instructions issued by the Chandigarh Administration, which (instructions) are at variance with the orders granted by the Tribunal on judicial side, and which are further at variance with the instructions issued by the Government of India and the Government of Punjab, cannot hold the forte.
(3)There is one peculiar feature relatable to the contractual employees in the Chandigarh Administration which requires to be noticed hereunder. Inspite of the fact that the relevant rule - formulation is in place, regular appointments to the posts of teachers/lecturers have not come to be made in the last more than a decade or so. It is in appreciation of that factual scenario that this Tribunal had granted a direction that the contractual employees shall not be replaced by employees of that character and till the arrival of the regular appointees. The view obtained by this Tribunal was in respectful accord with the view obtained by the Honble Apex Judicial Dispensation as also the High Court in a number of judicial pronouncements. A direction was granted by the Tribunal that the contractual employees shall continue all along till the arrival of regular appointee and that they shall be entitled to the salary for summer vacations period as well. In the present case too, the applicant (Dr. Shivani) is continuing in service since 2000 in terns of the judgment dated 27.4.2011 in O.A.No. 368-CH-2011 (Ms. Madhu Bala & Another Vs. Chandigarh Administration etc.) delivered by this Tribunal and applicant no. 2 (Ms. Manju Singmar) is also in service since 2010. The fact that there is dire need for teachers would be evident from the fact that a presentation was made on behalf of the Chandigarh Administration in O.A.No. 33-CH-2011 that a plea for sanction of 212 additional vacancies of Lecturers had been made to the Government of India. In the course of that judgment, we had requested the learned Senior Standing Counsel for UOI to find out the exact status of the relevant matter. The learned Senior Standing Counsel had pleaded inability to obtain that information in view of the fact that his having established telephonic contact with certain named officers too had not elicited any response. That scenario of inability on the part of the learned Senior Central Govt. Standing Counsel would be apparent from para 39 and 49 of that judgment which are, for facility of reference, extracted hereunder :-
39. As noticed, in an earlier part of the judgment, we required the learned Senior Standing Counsel appearing on behalf of Union of India to find out the exact status of the plea forwarded by the Union Territory to the Government of India for sanction of 212 additional posts of lecturers. In spite of grant of adequate opportunity, the learned counsel was not in a position to obtain that information from the Government of India. We would have expected the learned Senior Standing Counsel to obtain the relevant information particularly in view of the identification of the addressed quarters as noticed in the course of interim order dated 21.3.2011. For clarity, it may be indicated that it was on that date that the learned Senior Standing Counsel appearing on behalf of Union of India informed that he had contacted as many as five different officers, at different hierarchical placements with the Government of India, but his efforts at obtaining the relevant information proved abortive as each one of them (i.e. the officers contacted) passed on the buck to the other. He also informed the Bench that, faced with that situation, he had addressed a letter as well in the relevant behalf to Shri H.R.Joshi, an officer of the rank of a Director. It was in the context of that factual averment that the learned Standing Counsel for the Union Territory Administration informed the Bench that the relevant communication (for the creation of 212 additional vacancies) had, in fact, been addressed to Shri H.R.Joshi, Director.
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49. The inability (for whatever reason) on the part of the learned Senior Standing Counsel in obtaining the status report (in the context of the request for sanction of 212 additional vacancies of Lecturers) notwithstanding, we trust that the U.T. Administration would (in its own discretion as well) pursue the matter with the Government of India, for the purpose of getting it expedited.
12.In the light of the aforementioned discussion, we are of the considered opinion that the applicants are entitled to maternity benefit for duration of 180 days which (duration) had been sanctified with the accepted recommendations of 6th CPC as also instructions issued by State of Punjab.
13.The effectuation of this order must conclude within a period of two months from today.
14.The parties shall bear their own costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D. ANAND) MEMBER (J) (RANBIR SINGH) MEMBER(A) Place: Chandigarh Dated: __________ HC*