New Delhi, Jul 2 (ILNS) The Supreme Court has agreed to consider a petition filed by a woman challenging the Punjab and Haryana High Court order, which had turned down her appeal for maternity leave as her newborn biological child is not her first kid, since she is already having two step children from her second marriage.
The matter was listed before a Bench of Justices DY Chandrachud and MR Shah, who agreed to consider the SLP.
Justice Chandrachud said, “It’s an interesting question of law, we will hear this.” The Bench has issued notice in the matter, but no stay was granted on the High Court order, as prayed by the Counsel for the petitioner.
Petitioner Deepika Singh said while this was her first marriage, but second of her husband, whose previous wife had passed away, leaving two children behind. Deepika said she was working as Nursing Officer in Post Graduate Institute of Medical Education and Research, Chandigarh. She had applied for maternity leave and availed the same.
But later after seeing her record, the Department has cancelled the same on the ground that since she already had two surviving children and availed Child Care Leave on that basis, her request was not accepted. “The claim of the petitioner that child born by her was required to be treated as her first child for the purpose of maternity leave, was not admissible under the rule,” it stated.
“The issue involved in the present case is that the petitioner applied for maternity leave as per rules, which stipulates maternity leave for two children. However, the respondents rejected the application for grant of maternity leave while treating two step-children of petitioner as biological children,” stated the plea.
The petitioner raised an important question of law as to “Whether CCS (Leave) Rules, 1972 can be interpreted in a way to include even the step children of the petitioner to deny her the benefit of maternity leaves?”
As to Whether the Maternity Leave sought by the petitioner is governed by Rule 43 of the Central Civil Services (Leave Rules), 1972 as stated by the Courts below whereby Maternity benefit is given to a female Government servant with less than two surviving children (as per statute).
Whether the Maternity Leave sought by the petitioner is in contradiction of Rule 5(3) of The Maternity Benefit Act, 1961 whereby the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.
Whether only the Biological child of the petitioner can be considered for the purpose of grant of maternity leave under CCS (Leave) Rules, 1972.
Whether CCS (Leave) Rules, 1972 should have been read in the manner which does not defeat the purpose of the Statute as authorities should have distinguished between Step Children and biological child of petitioner.
6. Whether the respondents ought to have exercised the powers of relaxation as per the provision of Rule 65 of the CCS (Leave) Rules, 1972 i.e. Power to Relax in the peculiar facts and circumstances of the present case.”
The plea stated, “in any case Rule 43 of the CCS (Leave) Rules, 1972 cannot be interpreted in the manner which defeat the very purpose of framing the Statute which grants the benefit of maternity leave of 180 days to a female Government servant for the proper care of her first newly born child out of her legal wedlock and as such previous two children born from the previous marriage of Sh. Amir Singh cannot be treated to be two children of the petitioner (Rather they can be treated as Step Children) for the purposes of this rule especially when she has given birth for the first time in her life to her own biological son on 04.06.2019.”
Furthermore, the petitioner also placed reliance on the judgment passed by Division Bench of Hon’ble P&H High Court in CWP No. 4229 of 2011, titled as Ruksana vs. State of Haryana, 2011 (2) SCT 789 wherein in para 13 and 14 it was held as under:-“A. Maternity Benefit Act, 1961, Sections 5 and 27 – Punjab Civil Services Rules, 1953, Rule 8.127, Note 4 – Maternity leave –Birth of third child-Maternity leave denied to petitioner on the ground that it is not admissible to female Govt. employee having more than two children as per Note 4 of Rule 8.127 of the 1953 Rules – Challenged – Held that restriction imposed under Rule 8.127, Note 4, is contrary to the provisions of Sections 5 and 27 of the Act – Govt. cannot deny maternity leave for birth of a third child – petitioner entitled to maternity leave for expecting a third child as envisaged under Section 5 of the Act read with Rule 8.127 of service Rules.
B. Maternity Benefits Act, 1961, Section 5 – Maternity benefits – Curtailment of benefits applying Note 4 of Rule 8.127 of Civil Service Rules, 1953 – Held that, the rules framed by State Govt. will not curtail the benefit which has accrued to the petitioner, till an amendment is carried out in the Act.”
The High Court in its order had held that “Though, the petitioner is not the biological mother of the two children born from the first wedlock of her husband, she cannot deny the fact that now she is the mother of them also after having married to Amar Singh. In this way, the petitioner has already two surviving children. Not only this, she has also availed CCL for them from the respondent Department. In this view of the matter, any child born to her is to be considered as a third child. We are of the considered view that the CAT has rightly observed in the impugned order that “………for all practical purposes, the applicant has two surviving children. As such, any child born to her now can only be considered as a third child.”
The petitioner has further contended that High Court has also completely ignored that the CCS rules are inconsistent with the provisions of Maternity Benefit Act whereby CCS rules completely denies the maternity benefit to the Government Female Employee who had more than one living child. Thus, Maternity Benefit Act allow complete maternity benefits to female employee upto two living children and thereafter partial maternity benefits to female employee. ILNS/MS/RJ