Aaliya Tabasum vs State of J. and K.

Mansoor Ahmad Mir, J.—The petitioner was appointed as stipendiary Senior Resident in the specialty of Gynaecology and Obstetrics in

Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar, (for short, 'SKIMS'). The case of the petitioner is that she had applied for

maternity leave but was granted forty five days' leave with rider to resume her duties on expiry thereof. The petitioner states that, as a Government

servant, governed by the Rules and Regulations framed by the Government in this behalf, which include Leave Rules, she was entitled to 180 days'

Maternity Leave in terms of SRO 225 dated 11th July, 2012 [Refer 2012 (16) JKS JK-51]. Precisely, the case of the petitioner is that she was

entitled to Maternity Leave for 180 days with full pay. It is submitted that since the Respondent-SKIMS has denied the said benefit to her, she has

been meted with both hostile as well invidious hostile discrimination thereby denying her right to equality enshrined in the Constitution of India.

Accordingly, it is prayed that the communication dated 11.08.2012 addressed to the petitioner by the respondent No. 3 be quashed and the

respondents be directed to allow her to complete the tenure period as stipendiary Senior Resident in the Respondent-SKIMS in terms of the order

dated 24.02.2011.

Respondents have resisted the writ petition on the ground that the petitioner is governed by the rules which are applicable to the employees of

the SKIMS, the details of which have been given in paragraphs 5 & 6 of the counter.

I have heard learned counsel for the parties and considered the matter.

The short, but very significant question that arises in this writ petition is whether any female employee working in the capacity as that of the

petitioner can be denied the benefit of SRO 225 dated 11.07.2012?

Admittedly, SRO 225 dated 11.07.2012 essentially is an amendment incorporated in Rule 41 of the Jammu and Kashmir Civil Services (Leave)

Rules, 1979 (for short, 'Leave Rules'), whereby a female employee is entitled to 180 days' Maternity Leave instead of 135 days. A copy of this

SRO has also been endorsed to the Director, SKIMS, Soura, Srinagar. It is not the case of the respondents that the said SRO is not applicable to

the employees of SKIMS. Mr. Mohammad Iqbal Dar, learned counsel for the respondents 1 to 3 vehemently argued that since the Maternity

Leave of the petitioner was not covered under the rules, therefore, she is not entitled to the reliefs claimed by her, especially so because the leave

rules of 1979 are not applicable to an employee who is working against a tenure post in the respondent-department. The argument of Mr. Dar is

wholly misconceived and devoid of any merit, because this question has already been discussed by the apex Court in a series of judgments. In a

very recent judgment in Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and Another, , the Supreme Court has held that a

women employee cannot be discriminated in respect of right to equal remuneration, including benefits, and to equal treatment in respect of work of

equal value, as well as right to paid leave. It has been further held that in order to achieve just social order, everyone has to be provided what is

legally due and inequities are to be obliterated. It would be profitable to extract paragraph 33 of the judgment hereunder:

Taking into consideration the enunciation of law as settled by this Court as also the High Courts in various decisions referred to above, the

activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall

within the definition of ""industry"". The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore,

be ""workmen"" and the dispute between them and the Corporation would have to be tack led as an industrial dispute in the light of various statutory

provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not

different.

What emerges from the reproduction abovementioned is that all women employees have to be provided the benefit of Maternity Leave in a

dignified manner so that they may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimized for forced

absence during the pre or post-natal period. It sound preposterous, when all the women Government employees can avail 180 days' Maternity

Leave, how can the same be denied to the petitioner or the other set of employees in the hospital situated similarly to the petitioner. Thus, the

action of the respondent-Institute in denying leave of 180 days to the petitioner as is granted to Government female employees is on the face of it

discriminatory in nature which offends the relevant provisions of the Constitution of India.

In Municipal Corporation of Delhi v. Female Workers (Muster Roll) (supra), the Supreme Court has held that the women employee whether on

temporary, casual or muster roll basis, are entitled to Maternity Leave as of employees on regular basis. In this regard, I deem it appropriate to

reproduce paragraphs 27 and 36 of the judgment hereunder:

The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of

State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be

compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is

provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different

provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity

leave and not to those who are engaged on casual basis of on muster roll on daily wage basis.

Taking into consideration the enunciation of law as settled by this Court as also the High Courts in various decisions referred to above, the

activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall

within the definition of ""industry"". The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore,

be ""workmen"" and the dispute between them and the Corporation would have to be tack led as an industrial dispute in the light of various statutory

provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not

different.

The judgment aforementioned, in my opinion, squarely answers the arguments advanced at the Bar by Mr. M.I. Dar, learned counsel for the

SKIMS.

It may also be mentioned here that this Court in Tasneem Firdous v. State and others, 2006 (3) JKJ [HC] 432 : SLJ 2006 699, while dealing

with the case of a lady employee engaged under Rehbar-e-Taleem Scheme has also dealt in detail with an identical issue involved therein. The

scheme provided that an employee engaged in terms of the scheme would be entitled to 30 days' Maternity Leave, that too without honorarium, on

the ground that the employee engaged under the Scheme is not a regular employee; therefore, not entitled to the benefit of Maternity Leave as

envisaged under the Jammu and Kashmir Civil Service (Leave) Rules, 1979. This Court, while examining all the aspects of the matter, relying on

the Supreme Court judgment in Municipal Corporation of Delhi v. Female Workers (Muster Roll) supra, allowed the writ petition with a command

to the respondents to provide the same benefit to the employees appointed under Rehbar-e-Taleem Scheme as are being provided to other

employees who are on regular establishment of the Government.

In light of the above discussion and law laid down by the apex Court and this Court, there seems to be no reason or justification for the

respondents not to grant the benefit of Maternity Leave of 180 days in favour of the petitioner as has been given to the employees of the other

department. The question involved in this petition, as mentioned in paragraph 5 above, is, accordingly, answered in negative. It is held that the

petitioner cannot be allowed to be subjected to any discrimination and denied the benefit of the provisions of SRO 225 dated 11.07.2012.

It becomes imperative to mention here that there may be some practice or norm prevalent in the SKIMS which might be disentitling the

employees such as the petitioner from the benefits of SRO 225 dated 11.07.2012. The institute is a governmental hospital and its employees

cannot be allowed to be treated differently than the other Government employees. Therefore, it is for the Government and the authorities of the

SKIMS to bring all such norms and practices within the mandate of Articles 14 and 16 of the Constitution and take immediate and positive steps

to obliterate such discriminatory practices and norms.

In light of the above, this petition is allowed. The impugned communication dated 11.08.2012 containing the decision of the SKIMS is

quashed. Respondents are directed to extend the benefit of 180 days' Maternity Leave in favour of the petitioner as envisaged under the provisions

of SRO 225 dated 11.07.2012. Though this is a fit case deserving imposition of costs, yet, taking a lenient view, I refrain from passing an order as

to costs.