A woman employee who is on provisional service would be entitled to maternity leave: Kerala High Court

A woman employee who is on provisional service would be entitled to maternity leave is upheld by the Kerala High Court in the case of Vandana Sreemedha J. v. State Of Kerala through Justice Devan Ramachandran


Since December 16, 2016, the petitioner has been employed on a contract as a counsellor by respondent 3’s district child protection officer, with occasional days off and annual contract extensions. Evidently, she worked in this position from August 23, 2020, to January 17, 2021, just on a daily wage basis. On November 28, 2020, she gave birth to a kid, forcing her to take maternity leave from November 26, 2020, to January 17, 2021.

The petitioner claimed that her request for maternity leave had not yet been granted. In the subsequent selection procedure, she again placed first, and as a result, she was instructed to begin working as a counsellor on January 18, 2021. She had reapplied for maternity leave, but she had to breastfeed her child frequently at that point because he was only 51 days old. The petitioner claimed that respondent 2, Director of the Women and Child Development Department rejected her request for leave without providing a compelling explanation.

Later, respondent 2 quickly issued an order to terminate her employment due to her illegal absence. Thus, the petitioner’s maternity leave was denied by the State, and who was afterwards fired from her job on the grounds of unapproved absence. The State relied on Note 4 to Rule 100 of Part I of the Kerala Services Rules to support its claim that the petitioner was not authorised to request maternity leave the day after beginning contract employment. In a similar vein, the state argued that the Authorities were justified in terminating the petitioner’s employment after issuing the orders in Jisha P. Jayan v. Sree Sankaracharya University of Sanskrit, 2013, which relied on the High Court’s ruling that only a contract employee who has been in service for at least one year or more is entitled to maternity leave.


The Court expressed the hardship of pregnant women in general by saying that being a working mother is more difficult, and life as a new mother is like riding a roller coaster. The details of parenting, which require navigating a plethora of daily difficulties that ultimately affect the child’s health and future, can never be completely considered.

The Court concluded that a woman employee who is on provisional service would be entitled to maternity leave, provided she was continuing beyond one year, by applying the strict letter of Note 4 to Rule 100 of Part I of the Kerala Services Rules. The Court also stated that there was no question that the petitioner had been working for the respondent as a Counselor under contract for a number of years, with only occasional breaks of a day or two, and every time her contract was extended.

Therefore, it was the responsibility of the competent Authorities to determine whether the petitioner qualified for maternity leave under these circumstances. However, shockingly, instead of doing so, the respondent had held ostensibly that the petitioner’s request could not be granted and to cut an especially harsh figure, it had determined that her absence was unapproved, ordering the termination of her contract employment and directing the appointment of the next rank holder.

To make matters worse, the respondent 2 even threatened to take legal action against the respondent 3 for having chosen and appointed the petitioner without proper care, implying that he should not have given her a job just because she had just given birth and needed time off to care for her newborn.

According to the Court, the people like the petitioner, who bravely faces life’s challenges every day trying to balance their personal and professional lives to the best of their abilities, the orders impugned in this writ petition can only serve to undermine their confidence and morale.

Since the petitioner had not been replaced and the position was still vacant, the Court reversed the impugned orders and ordered that she be put back in her position immediately. It also instructed them to reconsider the petitioner’s request for leave after giving her a chance to be heard as soon as possible.

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