Central Administrative Tribunal - Delhi
Sunita vs M/O Law And Justice And Company Affairs on 13 February, 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1126/2017
Order reserved on 05th February 2018
Order pronounced on 13th February 2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Smt. Sunita
w/o Sh. Shyam Sunder
aged about 48 years
r/o Flat No.30, Triveni Apartments
H-3 Vikas Puri, New Delhi - 110 018
Group B, Posted as PA
Ministry of Law & Justice
..Applicant
(Mr. Nilansh Gaur, Advocate)
Versus
Union of India
Ministry of Law & Justice
Legislative Department
Official Legislative Wing
Through its Secretary
Shastri Bhawan, New Delhi
..Respondent
(Mr. Gyanendra Singh, Advocate)
ORDER
This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985. The applicant has prayed for the following main relief:-
"8.1 Set aside the impugned order at Annexure A-1 and direct the respondent to grant maternity leave of 180 days to the applicant w.e.f. 14.2.2017 with all consequential benefits admissible in law, treating her to be covered under Rule 43 of the CCS (Leave) Rules, 1972 and entitled to Maternity Leave."
2. The factual matrix of the case, as noticed from the records, is as under:-
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2.1 The applicant is working as a Personal Assistant (Hindi) in the Legislative Department, Official Language Wing, Ministry of Law & Justice, Government of India. As she was unable to conceive due to medical issues, she entered into Annexure A-2 Gestational Surrogacy Agreement dated 25.06.2016 with one Mrs. Rekha Devil. The surrogate mother delivered two baby girls on 13.02.2017 (Annexure A-3 (colly.)) at Max Hospital, Gurgaon.
The applicant, being the biological mother, applied for grant of 180 days maternity leave to her w.e.f. 13.02.2017 vide Annexure A-4 application dated 08.03.2017 addressed to the Joint Secretary, Legislative Department. Her application was rejected vide impugned Annexure A-1 O.M. dated 22.03.2017 on the ground that according to FRSR Leave Rule 43, maternity leave for 180 days cannot be granted to a government servant on getting surrogacy baby.
Being aggrieved by the Annexure A-1 O.M., the applicant has filed the instant O.A. praying for the relief as indicated in paragraph (1) above.
3. In response to the notice issued, the respondent entered appearance and filed its reply. On completion of pleadings, the case was taken up for hearing the arguments of both the parties. The arguments of Mr. Nilansh Gaur, learned counsel for applicant and Mr. Gyanendra Singh, learned counsel for respondent were heard.
4. Mr. Nilansh Gaur, learned counsel for applicant drew my attention to Rule 43 of CCS (Leave) Rules, 1973, which reads as under:-
"43. Maternity Leave (1) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an 3 authority competent to grant leave for a period of (135 days) from the date of its commencement.
(2) During such period, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
NOTE :- In the case of a person to whom Employees‟ State Insurance Act, 1948 (34 of 1948), applies, the amount of leave salary payable under this rule shall be reduced by the amount of benefit payable under the said Act for the corresponding period. (3) Maternity leave not exceeding 45 days may also be granted to a female Government servant (irrespective of the number of surviving children) during the entire service of that female Government in case of miscarriage including abortion on production of medical certificate as laid down in Rule 19:
Provided that the maternity leave granted and availed of before the commencement of the CCS(Leave) Amendment Rules, 1995, shall not be taken into account for the purpose of this sub-rule.
(4) (a) Maternity leave may be combined with leave of any other kind.
(b) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave for a period not exceeding 60 days and leave not due) up to a maximum of one year may, if applied for, be granted in continuation of maternity leave granted under sub-rule (1).
(5) Maternity leave shall not be debited against the leave account."
5. The learned counsel further submitted that the commissioning mother (biological mother) is entitled for grant of maternity leave and that this issue has been decided by several High Courts and it is no more res integra. In this regard, he drew my attention to the following judgments of Hon‟ble High Court as under:-
i) Judgment of Hon‟ble High Court of Chhattisgarh at Bilaspur in W.P. (S) No.101/2017 titled Devshree Bandhey v. Chhattisgarh State Power Holding Company Limited & others decided on 20.02.2017, wherein it has been held as under:-4
"24. Maternity means the period during pregnancy and shortly after the child's birth. If maternity means motherhood, it would not be proper to distinguish between a natural and biological mother and a mother who has begotten a child through surrogacy. The object of maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance of the woman and her child. Maternity leave is intended to achieve the object of ensuring social justice to women. Motherhood and childhood both require special attention. Not only are the health issues of the mother and the child considered while providing for maternity leave but the leave is provided for creating a bond of affection between the two.
25. Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development."
ii) Judgment of Hon‟ble Delhi High Court in Rama Pandey v. Union of India & others, 2015 (221) DLT 756 wherein it has been held as follows:-
"24. In view of the discussion above, the conclusion that I have reached is as follows :-
(i). A female employee, who is the commissioning mother, would be entitled to apply for maternity leave under sub-rule (1) of Rule 43.
(ii). The competent authority based on material placed before it would decide on the timing and the period for which maternity leave ought to be granted to a commissioning mother who adopts the surrogacy route.
(iii). The scrutiny would be keener and detailed, when leave is sought by a female employee, who is the commissioning mother, at the pre-
natal stage. In case maternity leave is declined at the pre-natal stage, the competent authority would pass a reasoned order having regard to the material, if any, placed before it, by the female employee, who seeks to avail maternity leave. In a situation where both the commissioning mother and the surrogate mother are employees, who are otherwise eligible for leave (one on the ground that she is a commissioning mother and the other on the ground that she is the pregnant women), a suitable adjustment would be made by the competent authority.
(iv). In so far as grant of leave qua post-natal period is concerned, the competent authority would ordinarily grant such leave except where there are substantial reasons for declining a request made in that behalf. In this case as well, the competent authority will pass a reasoned order."
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iii) Judgment of Hon‟ble High Court of Judicature at Bombay at Nagpur in Dr. Mrs. Hema Vijay Menon v. State of Maharasthra & others (W.P. No.3288/2015) decided on 22.07.2015, wherein it has held as follows:-
"8. As rightly pointed out on behalf of the petitioner, there is nothing in Rule 74 of the the Maharashtra Civil Services (Leave) Rules, 1961, which would disentitle a woman, who has attained motherhood through the surrogacy procedure to maternity leave.
Rule 74 provides for maternity leave to a female government employee. We do not find anything in Rule 74 which disentitles the petitioner to maternity leave, like any other female government servant, only because she has attained motherhood through the route of surrogacy procedure. It is worthwhile to note that by the Government Resolution dated 28.07.1995, maternity leave is not only provided to a natural mother but is also provided to an adoptive mother, who adopts a child on its birth. The only reason for refusing maternity leave to the petitioner is that there is nothing in the Government Resolution, dated 28.07.1995 for providing maternity leave to the mother who begets the child through surrogacy. If the Government Resolution, dated 28.07.1995 provides maternity leave to an adoptive mother, it is difficult to gauge why maternity leave should be refused to the mother, who secures the child through surrogacy. In our view, there cannot be any distinction whatsoever between an adoptive mother that adopts a child and a mother that begets a child through a surrogate mother, after implanting an embryo in the womb of the surrogate mother. In our view, the case of the mother who begets a child through surrogacy procedure, by implanting an embryo created by using either the eggs or sperm of the intended parents in the womb of the surrogate mother, would stand on a better footing than the case of an adoptive mother. At least, there cannot be any distinction between the two. Right to life under Article 21 of the Constitution of India includes the right to motherhood and also the right of every child to full development. If the government can provide maternity leave to an adoptive mother, it is difficult to digest the refusal on the part of the Government to provide maternity leave to a mother who begets a child through the surrogacy procedure. We do not find any propriety in the action on the part of the Joint Director of Higher Education, Nagpur, of rejecting the claim of the petitioner for maternity leave. The action of the respondent Nos. 1 to 3 is clearly arbitrary, discriminatory and violative of the provisions of Articles 14 and 21 of the Constitution of India. It is useful to refer to the unreported judgment of the Delhi High Court in the case of Rama Pande vs. Union of India, and relied on by the learned counsel for the petitioner, in this regard."6
Mr. Gaur vehemently argued that the impugned Annexure A-1 O.M. dated 22.03.2017 is illegal and deserves to be quashed and set aside.
6. Per contra, Mr. Gyanendra Singh, learned counsel for respondent submitted that the maternity leave issue has been dealt with in Rule 43 of CCS (Leave) Rules, 1973. This rule makes it absolutely clear that a commissioning mother (biological mother) is not entitled for grant of maternity leave. Mr. Singh has also placed on record a copy of O.M. dated 01.04.2016 issued by the Department of Personnel, Public Grievances & Pensions, Department of Personnel & Training (DoPT) on the subject of „Proposals on Child Care Leave (CCL) and Maternity Leave‟.
7. I have considered the arguments of both the parties and also perused the documents placed on record.
8. The DoPT, in its aforesaid O.M. dated 01.04.2016, has stipulated as under:-
"(a) Maternity/CCL in case of surrogacy:
There is no provision at present for any kind of Leave for surrogate/commissioning mothers. It is proposed that 180 days maternity leave may be granted to the surrogate as well as commissioning mothers, in case either/both of them are Government servants. The commissioning mother also requires time for bonding with her child and to take care of him/her and hence would also become eligible for Child Care Leave. Paternity Leave may also be granted in case of surrogacy."
9. From the reading of the aforesaid O.M., it is quite clear that 180 days maternity leave can be granted to the surrogate as well as commissioning mothers, in case either/both of them are Government servants. The O.M. reasons out that even the commissioning mother also requires some time 7 for bonding with her child and to take care of him/her and hence would be eligible for child care leave (CCL). This O.M. even provides for grant of paternity leave in case of surrogacy. The judgments cited by learned counsel for applicant have clearly held that the commissioning mother is entitled for grant of maternity leave. Hence, taking into consideration the aforementioned judgments of Hon‟ble High Courts as well as reading the DoPT O.M. dated 01.04.2016 constructively, I am of the view that the applicant, being commissioning mother, is entitled for grant of maternity leave of 180 days.
10. Accordingly, the impugned Annexure A-1 O.M. dated 22.03.2017 is hereby quashed and set aside. The respondent is directed to sanction 180 days of maternity leave as per the request of the applicant vide Annexure A- 4 letter dated 08.03.2017. This shall be done within a period of four weeks from the date of receipt of a copy of this order. It was informed by learned counsel for applicant that the applicant has been paid salary for 180 days maternity leave, which she has already availed. The respondent is accordingly directed not to effect any recovery and regularize the salary paid by way of sanctioning the maternity leave of 180 days.
11. The O.A. is accordingly disposed of. No order as to costs.
( K. N. Shrivastava ) Member (A) /sunil/