Himachal Pradesh High Court
At Nerh Chowk vs State Of Himachal Pradesh And Others on 29 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
ON THE 29th DAY OF SEPTEMBER, 2021 BEFORE HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN & HON'BLE MR. JUSTICE SATYEN VAIDYA Between:-
r to CIVIL WRIT PETITION No. 1675 of 2021 DR. PRATIBA HIMRAL, W/O SHRI ASHWANI RAJ SHAH, R/O TYPE-V, BLOCK A, SET NO.101, RESIDENTIAL COMPLEX SLBSGMC MANDI AT NERH CHOWK, DISTRICT MANDI, H.P., PRESENTLY WORKING AS ASSOCIATE PROFESSOR ON CONTRACT BASIS IN THE DEPARTMENT OF MEDICINE AT SLBSGMC MANDI AT NERH CHOWK, DISTRICT MANDI, H.P. ......PETITIONER.
(BY SH. KARAN SINGH PARMAR, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY HEALTH TO THE GOVERNMENT OF H.P., SHIMLA-2.
2. DIRECTOR OF MEDICAL EDUCATION & RESEARCH IN SHIMLA-2.
3. DIRECTOR HEALTH SERVICES, SHIMLA-2.
::: Downloaded on - 31/01/2022 23:08:56 :::CIS 24. PRINCIPAL SHRI LAL BAHADUR SHASTRI GOVERNMENT MEDICAL COLLEGE (SLBSGMC) MANDI AT NER CHOWK, .
DISTRICT MANDI, H.P. ......RESPONDENTS.
(SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL, FOR RESPONDENTS- 1 TO 4) This petition coming on for admission after notice this day, Hon'ble Mr. Justice Tarlok Singh r ORDERto Chauhan, passed the following:
CMP No.11621 of 2021.
For the reasons stated in the application, the amendment as prayed for, is allowed. Application stands disposed of.
Amended writ petition is taken on record.
CWP No. 1675 of 2021.
The instant petition has been filed for grant of the following substantive reliefs:-
"i) That the Notification dated 07.03.2012 (Annexure PA-1 substituted as Annexure P-7A may very kindly be quashed and set aside.
ii) That the action of the respondents to deny maternity leave/Child Care Leave to the petitioner and order of recovery dated 08.02.2021 may be held illegal, wrong and respondents may be directed ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 3 to pay the petitioner the payment for the period of 13.06.2020 to 25.09.2020 with the interest rate of .
9% Annum on the account of recoveries made with all Consequential Benefits.
iii) That the respondents may very kindly be directed to treat the period from 13.06.2020 to 25.09.2020 as a Service Period.
iv) That the petitioner may also be held entitled for child care leave."
2.
adopted a female child r to The undisputed facts are that the petitioner on 11.03.2020, who was born on 25.02.2020.
3. Now, the moot question is whether the petitioner can claim the benefit of maternity leave of 180 days in terms of Section 43 of the CCS (Leave) Rules, which is reproduced 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 authority competent to grant leave for a period of 1[180 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.::: Downloaded on - 31/01/2022 23:08:56 :::CIS 4
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.
2[(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 servant in case of miscarriage including abortion on production of medical certificate as laid down in Rule 19: r 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) upto a maximum of 1[two years] 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."
::: Downloaded on - 31/01/2022 23:08:56 :::CIS 54. Somewhat an identical issue came up before this Court in CWP No. 4509 of 2020, titled Sushma Devi .
versus State of Himachal Pradesh and others, decided on 04.03.2021, regarding entitlement of maternity leave to surrogacy parents and while dealing with this issue, the question of maternity leave to the adoptive mother was also considered in para-8 of the judgment, referred supra, which reads as under:-
"8. Once, the respondents admit that the minor child is that of the petitioner, then she is entitled to the leave akin to the persons, who are granted leave in terms of the rules (ibid). The purpose of the said rules is for proper bonding between the child and parents. Even, in the case of adoption, the adoptive mother does not give birth to the child, yet the necessity of bonding of the mother with the adopted child has been recognized by the Central Government."
5. This issue has been considered in detail by the learned Single Judge of the Delhi High Court in Rama Pandey versus Union of India and others 2015 Labour Industrial Cases 3921 wherein it was held that the commissioning mother's entitlement to maternity leave ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 6 cannot be denied only on the ground that she did not bear the child.
.
6. A Division Bench of the Bombay High Court in Dr. Mrs. Hema Vijay Menon versus State of Maharashtra and others AIR 2015 Bombay 231 while following the aforesaid judgment observed as under:
"7. On hearing the learned counsel for the parties, it appears that the Joint Director of Higher Education, Nagpur, was not justified in refusing maternity leave r the petitioner. According to Oxford English Dictionary, maternity means- motherhood. 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 or has adopted a child from the date of his/ her birth. 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. It is said that being a mother is one of the most rewarding jobs on the earth and also one of the ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 7 most challenging. To distinguish between a mother who begets a child through surrogacy and a natural .
mother who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through surrogacy, as her own. A commissioning mother like the petitioner would have the same rights and obligations towards the child as the natural mother. Motherhood never ends on the birth of the child and a commissioning mother like the petitioner cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the petitioner did not give birth to the child, the child was placed in the secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others. A maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs rearing and that is the most crucial period during which the child requires the care and attention of his mother. There is a tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten the child.
::: Downloaded on - 31/01/2022 23:08:56 :::CIS 88. 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 ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 9 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."
7. Similar reiteration of law can be found in the judgment rendered by the learned Single Judge of the Chhattisgarh High Court in Devshree Bandhe versus Chhattisgarh State Power Holding Company Limited and others 2017 Labour Industrial Cases 1506 wherein it was held as under:
::: Downloaded on - 31/01/2022 23:08:56 :::CIS 10"22.According to Shorter Oxford English Dictionary (Fifth Edition), "maternity" means (1) the quality or .
condition of being a mother; motherhood and (2) the qualities or conduct characteristic of a mother; motherliness. According to other Oxford English Dictionaries, "maternity" means motherhood.
23. According to Black's Law Dictionary (Eighth Edition), "maternity" means the state or condition of being a mother, especially a biological one;
motherhood.
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.
26. The Supreme Court in Lakshmi Kant Pandey (AIR 1984 SC 469) (supra) while expanding the scope of ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 11 right to life held that right to life includes the right to motherhood and also the right of every child to full .
development, and observed as under: -
"6. ... Children are a "supremely important national asset" and the future well-being of the nation depends on how its children grow and develop. The great poet Milton put it admirably when he said: "Child shows the man as morning shows the day" and the Study Team on Social Welfare said much to the same effect when it observed that "the physical and mental health of the nation is determined largely by the manner in which it is shaped in the early stages". The child is a soul with a being, a nature and capacities of its own, who must be r helped to find them, to grow into their maturity, into fulness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. ..."
27. In Municipal Corporation of Delhi (AIR 2000 SC 1274, paras 30 and 35) (supra), the question before the Supreme Court was whether female workers working in muster roll in the Corporation are entitled for maternity benefit at par with regular employees under the provisions of the Maternity Benefit Act, 1961. The Supreme Court noticed the constitutional provisions contained in Articles 38, 39, 42 and 43 of the Constitution of India and Sections 2 and 5 of the Maternity Benefit Act, 1961 as well as Article 11 of the "Convention on the Elimination of all Forms of Discrimination against Women" adopted by the United Nations on 18-12-1979 and held that female workers working in muster roll are entitled to all ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 12 benefits conceived under the Maternity Benefit Act, 1961. It was observed as under: -
.
"33. ... To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. ..."
38. These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between the r Municipal Corporation of Delhi and the women employees (muster roll); and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary notification under the proviso to sub- section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages."
8. Article 42 of the Constitution of India reads as under:
"42. Provision for just and humane conditions of work and maternity relief:- The State shall make provision for securing just and humane conditions of work and for maternity relief."::: Downloaded on - 31/01/2022 23:08:56 :::CIS 13
9. It was long felt that the working women were .
unable to depute their time towards their children due to exigencies of service. Hence, the concept of grant of child care leave was introduced to ensure the welfare of the child so as to enable the mother to avail child care leave whenever she feels that the child needs the care. This is in tune with the international covenants which India is a signatory.
10.
r and treaties to As rightly held by the Bombay High Court, the object of the maternity leave is to protect the dignity of motherhood by providing for full and healthy maintenance to 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.
11. 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. To distinguish between a mother who begets a child through adoption and a natural mother, who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 14 through adoption. Motherhood never ends on the birth of the child and a commissioning mother cannot be refused .
paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through adoption. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother.
r The tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. A bond of affection has also to be developed.
12. In view of the aforesaid discussion, we find merit in this petition and the same is accordingly allowed and order of recovery dated 08.02.2021 (Annexure P-7) is quashed. The respondents are directed to sanction/grant maternity leave to the petitioner in terms of Rule 43(1) of the CCS (Leave) Rules, 1972 and treat the same as service period. Pending application, if any, also stands disposed of.
13. However, before parting, we make it clear that this judgment is being rendered in the peculiar facts and circumstances of the case, more particularly, in the background that the child that was adopted on 11.03.2020, ::: Downloaded on - 31/01/2022 23:08:56 :::CIS 15 was born on 25.02.2020 i.e. only 15 days old at the time of adoption. It is for this reason that we have not gone into .
the constitutional validity of the Notification dated 07.03.2012 (Annexure PA-1) whereby the benefits of Section 43 of the CCS (Leave) Rules, 1972, have been withdrawn.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
r Judge
29th September, 2021.
(krt)
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