Himachal Pradesh High Court invokes constitutional rights, allows 12-week maternity leave to govt teacher for third child

It came on record that the teacher married a person who had lost his first wife and child from the previous marriage and was having his first child with the petitioner woman. However, the (Central Civil Services) (Leave) Rule 43, 1972 doesn’t have a provision allowing maternity leave when having a third child.

It states, “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 180 days from the date of its commencement.”

The court, however, ruled, “Such cases are not merely to be adjudicated but need to be decided, inter-alia, in furtherance of Articles 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 21 (protection of life and personal liberty), and 42 (just and humane conditions of work and maternity relief) of the Constitution of India, to protect the dignity and essence of a woman and duly conscious of the progressive march of the dynamic law over the years with societal advancement.”

Case

The woman moved the high court seeking maternity leave under the CCS rules for her third biological child from the second marriage, which deals with the regulations governing leave for Central government employees.

The woman gave birth to her third child in August, but the state has declined to accept her application for granting her the benefit of maternity leave under the Rule 43 of following which she moved the high court.

Arguments

Representing the petitioner-government employee, senior advocate Vaibhav Tanwar argued that the provisions of the Maternity Benefit Act, 1961 are required to be read into Rule 43 of the CCS (Leave) Rules, more particularly, in the given facts of the case.

He further submitted that petitioner’s first marriage was dissolved on ground of cruelty committed upon her by her first husband, her second child-a daughter, from her first marriage suffers from Tuberous Sclerosis (nervous system related disease) and petitioner’s second husband’s marriage took a tragic turn who had lost his first wife and the sole child in a road accident. In this background, the couple had their first child (petitioner’s third biological child).

He also submitted that petitioner intends to utilise the child care leave under Rule 43(3) of the CCS (Leave) Rules for the well being of her second daughter, who requires permanent care and treatment.

For the state, advocate general Anup Rattan, additional advocate general L N Sharma, deputy advocates general Sikander Bhushan and Swati Draik and assistant advocate general Shalabh Thakur argued that being a regular government employee, maternity leave can be allowed to the petitioner only as per Rule 43 of the CCS (Leave) Rules and not under the Maternity Benefit Act.

They further argued that the petitioner cannot be granted maternity leave as she has already availed maternity leave for the birth of her two children. Leave cannot be granted to her for the third child.

Decision

While granting the maternity leave the court highlighted that the petitioner is a woman who at the age of 43 years has been compelled by the circumstances to give birth to and nurture her second husband’s sole biological child.

“The CCS (Leave) Rules of 1972 though do not allow maternity leave to a woman for her third biological child, but the Maternity Benefit Act, 1961 in terms of provision to Section 5(3) incorporated by way of amendment in the Act in the year 2017 does, though period of maternity leave for the third child is less than provided for the first two children,” the court held on November 18 order.