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rj high court

Even if child is born prior to joining government service, the servant is entitled to Maternity Leave: Rajasthan High Court

A female government servant is entitled to grant of maternity leave, irrespective of the fact that she had given birth to the child prior to her joining government service. This decision was taken by the single bench of Hon’ble Justice Dinesh Mehta in the case of Smt. Neeraj W/o Rupa Ram vs. State of Rajasthan [S.B. Civil Writ Petition No. 4384/2020]

In the instant case, the petitioner had given birth to her child on 15-5-2016 and she was appointed on the post of Physical Training Instructor (PTI), Grade-III on 04.06.2016. Petitioner then applied for maternity leave on 21-6-2016 and didn’t attend the office from 26-6-2016 to 10-11-2016 (142 days). It was being noted that the petitioner had given birth on 15-5-2016, a few days before being appointed on the post, and because she had undergone surgery for child-birth, she wasn’t fit enough to join. On 10-11-2016, the petitioner reported back for her duty after 142 days of maternity leave.

While continuing in a similar vein, it was then stated that, by another communication dated 17.07.2019, the petitioner was sanctioned a total of 142 days’ leave, out of which 90 days were considered as leave without pay as per communication dated 13.08.2018 and 52 days’ leave was treated as extraordinary leave (EOL), that too without payment.

Despite the completion of a probation period of two years, the respondents extended the petitioner’s probation period by 112 days and confirmed her services w.e.f. 26.09.2018, vide order dated 21.11.2019. The petitioner had approached the Court with a grievance that the respondents had not justified in deferring the petitioner’s confirmation for a period of 112 days.

While observing, Court stated that the provisions of Rule 103 of RSR Act which specifies that “Maternity leave may be granted to a female Government Servant with less than two surviving children up to a period of 180 days from the date of its commencement. However, if there is no surviving child even after availing it twice, Maternity Leave may be granted on one more occasion” and “During such period, she will be entitled to leave salary equal to pay drawn immediately before proceeding on leave. Such leave shall not be debited to the leave account but such entry should be made in the service book separately”.

Hence, HC stated that “Since on the date of promulgation of these Rules, an employee, who had already given birth, was entitled to avail maternity leave, it will not only be iniquitous but also discriminatory to exclude an employee, who has given birth to a child a few days ahead of joining the Government service”. “Needless it is to say, that having joined pursuant to an appointment on the substantive post, an incumbent becomes a Government Servant for all practical purposes and a mother’s maternity needs cannot eclipse, simply because she has joined the duties”.

Hence, HC opined that Government servants and that too women must get her right. Governments must cooperate with them and not obstruct them from enjoying their rights. It is rightly held that even if a child is born prior to join government service, the servant is entitled to maternity leave.

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