Government servant entitled to maternity leave even if child is born shortly before joining service: Rajasthan High Court
After a lapse of around two years, the State government granted her leave for 90 days without salary. In July 2019, she was sanctioned leave for the 142 days she was away from work, out of which 90 days were considered as leave without payment and 52 days treated as extra ordinary leave without payment. Her request for paid maternity leave was however, rejected.
The State counsel objected to the writ petition contending that it suffered from delay and laches. He stated that the petitioner’s request for maternity leave was considered by the government in its orders in 2018 and 2019. The counsel also asserted that the Court could not place reliance on Harshita Yadav, because the decision was grounded completely in the Maternity Benefit Act, 1961 and did not consider Rule 103. It was additionally submitted that maternity leave as per Rule 103 could be availed only if a child was born to the employee after she joined for work.
Because the Rule began with the words ‘to a Government servant’, the counsel went on to argue that the petitioner was not a government servant at the time her child was born to her.
Reading the rule, the Court observed that it was an employee-centric beneficial provision, incorporated to obviate hardship faced by a mother. It had no connection to the date or event of childbirth, the Court pointed out.
The Court also made reference to a related service rule allowing paternity leave to male government servants during his wife’s ‘period of confinement’ – Rule 103A
Rule 103A defined the period of confinement as fifteen days before birth of the child to three months after the birth of the child.
Considering both the rules, the Court concluded that the date of childbirth was relevant for paternity leave, but not for maternity leave, because it was not specified in the latter. Thus, Rule 103 did not create a right based on the date of the child’s birth, the Court reasoned.
The Court also rejected the preliminary objection to the writ petition for delay. Pointing out that it was the State that delayed considering the petitioner’s application for maternity leave by two years, the Court said:
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