Tasneem Firdous vs State and others

The petitioner as ""RehbareTaleem"" in Middle School Yaripora of Anantnag District, applied for three months Maternity Leave on 06.07.2004

which was sanctioned only to the extent of one month without remuneration/honorarium. Aggrieved thereby, she challenges C.E.O's said order

no.337 Edu of 2004 dated 16.06.2004 and seeks its quashment on the ground that it violates her constitutional, legal, and other rights. Materials

appended with the memo of petition include relevant orders/certificates issued by different authorities.

In reply, official respondents have inter alia pleaded that leave was sanctioned to petitioner in terms of Govt. order no. 337 of 2004 where

under only 30 days maternity leave without honorarium was available to her, because she is not in regular employment of the Government, but on

probation for a period of five years, after successful completion whereof, she would be entitled to claim regular appointment and thereafter only the

maternity leave benefit under section 14 of J and K Civil Services (Leave) Rules 1979 would be available to her and presently she could not claim

the said leave at par with regular Government employees etc. During course of arguments counsel for rival sides have reiterated the contents of

their respective pleadings.

I have heard learned counsel and considered the matter. The fact that petitioner has delivered a baby on 09.06.04 in L.D. Hospital is not

denied, nor that she applied for maternity leave for three months which was not allowed by concerned C.E.O who while acting under Government

order no. 337 Edu of 2004 dated 16.06.2004 allowed only 30 days without any honorarium/remuneration. In admitted circumstances as such, the

moot question that emerges for consideration is petitioner's title to maternity leave at par with Govt. employees and the resultant validity of

aforesaid Government order where under maternity leave of 30 days only is allowed to RT's.

To start with , it would be appropriate to notice that under a scheme promulgated under the Government order no. 396 Edu of 2000 dated

28.04.2000 commonly known as ""RehbareTaleem scheme"" the Government chose to engage qualified local candidates for certain Government

schools so as to assure full time attendance of teachers in schools'. According to scheme, the R.T's to be appointed from amongst a panel required

to be prepared by the concerned Village Level Committee with approval of the concerned officers of Education Department and a committee

headed by concerned Dy. Commissioner are initially engaged on monthly remuneration/honorarium of Rs.1500/ with a stipulation that after putting

in five years as such they would be entitled for appointment in regular cadre as teachers in the concerned schools. It appears that in the original

scheme there was no provision regarding grant of casual/medical and earned leave etc which ultimately was provided for in June 2004 vide

aforesaid order No. 337 of 2004, which is reproduced herein below verbatim:

In government order no. 396 Edu of 2000 dated 28.04.2000 after the para relating to ""Payment of Honorarium"" the following shall be added.

Entitlement of leave; A person engaged under the RehbareTaleem Scheme shall be entitled to:i. 15 days casual leave in a calendar year with

honorarium . ii. 30 days leave without honorarium on account of accident, serious illness and maternity in a calendar year. Hi. The leave so availed

shall not constitute a break in continuous engagement as such.

This issue with the concurrence of Finance Department conveyed vide their U.O no. A/9(77) 340 dated 31.5.2004...

Thus, a person engaged as R.T under the scheme would besides 15 days casual leave per year with honorarium be entitled to 30 days leave on

account of accident, serious illness, and maternity, but without any honorarium with a stipulation that the leave period would not constitute a break

in the engagement. In terms of order, therefore, what appears to entitle RT's to 30 days leave would be either an accident, or serious illness, or

maternity. Incidentally the order is too cryptic and short to have anything by way of a preamble, explanation, or appendix, which could reflect the

considerations and features/factors, those have gone into making thereof; particularly with reference to maternity leave which has unusually be

restricted to 30 days without honorarium/remuneration. There is also nothing in the said order nor has anything been brought forward to suggest as

to what necessitated or occasioned deviation from the usual period available to female employees in case of maternity leave. It may be appropriate

to notice the provisions of Rule 41(1) of J and K Civil Services (Leave) Rules 1979 at this stage, where under 135 days maternity leave is

permissible to female employees long with 15 days to their male spouse in the following terms:

A female Govt. Servant with less than two surviving children may be granted maternity leave by the authority competent to grunt leave for a period

which may extend upto 135 days from the date of its commencement. During such period she shall be paid leave salary equal to pay drawn

immediately before proceeding on leave.

In terms thus the maternity leave rule applicable to female RT's is materially different from the general rule above quoted; for which no explanation

is forthcoming from any where.

An omission to indicate reason for departure from the above said Rule which by now is well settled and generally accepted, becomes

conspicuous because ordinarily it would be very difficult to draw a line of distinction between a female employee here and a female employee there

in so far as the question of maternity and attending inconvenience/difficulties etc is concerned, irrespective of the nature of their employment. If

those at the helm have in their wisdom thought it necessary to prescribe 135 days maternity leave pre/post delivery for female employees

irrespective of the nature or status of their employment that essentially suggests that the factum of their being females and the

uncertainties/expediencies attending motherhood and pre/post natal care of the child and not the type of employment is the cause and justification

for the same. This means that the government order relied upon by the respondents is not only wanting in its own terns but does not even subscribe

to the standard set forth under the leave rules aforesaid. That the female RT's being only employees on probation do not qualify for full dressed

maternity leave like regular female employees, is a statement where under they appear to have been constituted into a class by themselves and then

discriminated against, without any regard for the fact that given the demands of motherhood and attending circumstances along with the nature and

magnitude of accompanying inconvenience, which would certainly not be different whatever the class, cadre/nature and status of a female

employees employment. This strongly suggests an objective review/reconsideration of the aforesaid government order.

In subjective context the matter assumes a larger dimensions, because it overflows the contours of an individual case or a singular instance and

almost borders on the rights of women and obligation of the State to protect and preserve them, to which, besides statutory/ constitutional

considerations, the international covenants also bind the government. Reference in this behalf may be made to ""Convention on the Elimination of all

Forms of Discrimination against Women"" adopted b.y Community of nations on 18.12.79 to which government of India too is the signatory;

Article 11 para (2) whereof reads as under: (as reflected in a Supreme Court Judgment reported as (2000) 3 SCC 224.

In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work,

States/Parties shall take appropriate measures: (a) to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of

maternity leave and discrimination is dismissals on the basis of marital status:

(b) to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities

and participation in public life, in particular through promoting the establishment and development of a network of childcare facilities;

(d) to provide special protection to women during pregnancy in types of work proved to be harmful to them "".

Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge

and shall be revised, repealed or extended as necessary.

Coupled therewith is the constitutional mandate of section 22 of the State Constitution read with Article 42 of the Constitution of India, where

under among other things the right to maternity benefits as well as adequate medical care in all employment with regard to women is provided for.

Read together these provisions, make it compulsory for the State to amend the maternity leave rules in relation to its female employees without

reference to the nature or length or status of their service. Reference in this behalf may be made to above said judgment of apex court in ""Municipal

Corporation of Delhi vs. Female Workers"" [(2000) 3 SCC 224], where under while considering grant of maternity leave in favour of female

workers on muster roll as different from regular female workers, the Hon'ble court upheld the decision of concerned Industrial Tribunal, allowing

claim of muster roll female workers and directed Delhi Municipal Corporation to extend the benefit of maternity leave to them under maternity

benefit Act 1961. Few passages from the said judgment may be quoted with benefit.

In para 6 of the judgment while considering constitutional contours of the matter the Hon'ble Court observed as under:

6......... It is in this background that we have to look our Constitution which, in its Preamble, promises social and economic justice. We may first

look at the fundamental rights contained in Part III of the Constitution Article 14 provides that the State shall not deny to any person equality

before law or the equal protection of the laws within the territory of India. Dealing with this article visavis the labour laws, this Court in Hindustan

Antibiotics Ltd. v. Workmen has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated

on equal basis. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of

birth or any of them. Clause (3) of this article provides as under:

15.(3) Nothing in this article shall prevent the State from making any special provision for women and children."" ""7. In Yousuf Abdul Aziz v. State

of Bombay it was held that Article 15(3) applies both to existing and future laws.

In light of the above quoted para even if one tends to think that RT's cannot be equated with workers under Labour Laws, still then the

consideration of equal protection could be invoked in their favour on the basis that while female employees employed in the Government in other

capacities and jobs are given, 135 days maternity leave, the female RT's can perhaps for the purpose of such leave not be converted into a

separate class for differential treatment to their detriment particularly because the benefit of maternity leave flows from the fact of womanhood

which does not admit of any subclassification. However, proceeding further Hon'ble Apex court was also pleased to observe:

From part HI, we may shift to Part IV of the Constitution containing the Directive Principles of State Policy. Article 38 provides that the State

shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social,

economic and political shall inform all the institutions of the national life. Subclause (2) of this article mandates that the State shall strive to minimize

the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities.

Article 39 provides, inter alia , as under:

Certain principles of policy to be followed by the State. The state shall, in particular, direct its policy towards securing

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood.

(b) (c) * * * *

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women , and the tender age of children are not abused and that citizens are not forced by

economic necessity to enter avocation unsuited to their age or strength;

(f) * * *

Adverting to applicability of maternity benefit Act as canvassed by the learned counsel before apex court by contending that the Act not having

been extended to the Delhi Municipal Corporation, the benefit available to female employees/workers there udner could not be given to them, the

Hon'ble Court in para 32 and 33 of the judgment made following observation:

32......This is a narrow way of looking at the problem which essentially is human in nature and anyone acquainted with the working of the

Constitution, which aims at providing social and economic justice to the citizens of this country, would out rightly reject the contention. The

relevance and significance of the doctrine of social justice has, times out of number, been emphasized by this Court in several decisions. In ""Crown

Aluminium Works v. Workmen "" this Court observed that the Constitution of India seeks to create a democratic, welfare State and secure social

and economic justice to the citizens. In ""J.K. Cotton Spg. and Wvg. Mills Co. Ltd v. Labour Appellate Tribunal of India"" Gajenjdragadkar .).,( as

his Lordship then was), speaking for the Court, said:

Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that

industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow,

or onesided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of

socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities; nevertheless, in dealing with industrial

matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.

A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who

constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood.

Whatever be the nature of their duties, their avocation and the place where they work, they must be provided all the facilities to which they are

entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman

who is in service, the employer has to be considerate and sympathetic towards her and must realize the physical difficulties which a working

woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth. The

Maternity Benefit Act, 1{>61 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of

motherhood honourably, peaceably, undeterred by the fear of being victimized for forced absence during the preor postnatal period.

Looking at the subject in view of the Constitutional Principles mentioned above and the scope of their application as envisaged, it appears that the

government order under discussion does not fully conform to either the Constitutional requirements or the general demands of social and class

justice that has continuously been stressed upon by all High Courts and apex Court to bring round the State to regulate its activities whether

administrative or legislative, within the frame work of fundamental rights and in accordance with the directive principles, an essential component

whereof is a compassionate approach and attitude towards women. Instantly the Govt. order under reference does not appear to conform to the

norms and standards formulated and prescribed by the apex court from precedent to precedent and ultimately developed into a cluster of binding

principles.

Accordingly, and in view of what has been stated above, 30 days limitation on maternity leave available to female RT's as against 135 days

available to other female employees, as proper recast. That two spells of maternity leave of 135 days each that a RT may avail during five years of

probation may result in reducing the period of actual teaching experience by eight months, can be suitably taken care of cannot be approved of or

acknowledged, and as such requires to be reconsidered. However, till government forms appropriate alternate rules, the female RT's would be

governed by provisions of the Civil Service (Leave) Rules 1979, in so far as the maternity leave is concerned. In the result the withholding of

remuneration/honorarium of petitioner for 30 days of earned leave availed by her is directed to be released in her favour.

The matter stands accordingly disposed of along with all connected CMP(s). Copies of this order be communicated to all the CEO's besides

Director Education, Commissioner/Secretary Education and the Chief Secretary of the State, and publicized for information of RT's.