DR. DAIZY PHILIP Vs. THE STATE OF KERALA

JUDGEMENT

(1.) Heard both sides. The Writ Appeal is directed against the Judgment of K.A. Abdul Gafoor, J. dated 9th January 1998 in O.P. 478/98. The appellant filed the Original Petition to quash Ext. P-4 order dated 22nd March 1997 and to declare that Note 4 below R.100 Part I K.S.R. is unsustainable under law and to declare that she is eligible for full salary for 51 days maternity leave granted from 21st February 1995 to 12th April 1995. Ext. P-4 reads thus:

(2.) Two things are clear from the above order: (i) Appellant/petitioned was appointed as a temporary provisional employee, (ii) Appellant/petitioner is not in service beyond One year and as such she is not eligible for maternity leave. Ext. P-4 was challenged by the appellant on the ground that it is arbitrary and discriminatory. According to the appellant Note 4 below R.100, Part I is inconsistent with the provisions contained in R.100 and Government in matters like this should adopt a liberal view towards the betterment of women in this country including liberalisation in grant of maternity leave. According to the learned counsel for the appellant the provisions incorporated in K.S.R. during 1980s regarding grant of maternity leave have undergone radical changes at National level in the recent past and it is high time that such liberalised provisions are adopted in Kerala too in keeping with the national policy of women's welfare. He has also invited our attention to R.100, Part I K.S.R. and Notes 1, 3, and 4 therein which have been extracted in the affidavit. Learned Single Judge, on a careful consideration of the arguments advanced by the learned counsel for the appellant dismissed the Original Petition on the ground that the appellant/petitioner being a temporary employee will not be eligible for maternity leave since she was not in continuous service beyond one year. Learned Judge has also referred to the provisions and held that Note 4 is not opposed to the natural rights available to the motherhood and the service conditions are governed in such a matter that is suitable for the management and employee and when one is under employment, necessarily, his contract of service is governed by the conditions of service applicable as per the statutes. Therefore he rejected the contentions of the learned counsel for the appellant that Note 4 is opposed to the directive principles and cannot be accepted because the directive principles are not enforceable in a court of law. In the instant case the appellant was appointed in a private collage by the management of that college from 8th June 1994 to 12th April 1995, that too in a deputation vacancy of another teacher. That short term appointment had been approved by the University as per Ext. P1. In the meanwhile the appellant applied for maternity leave. The management granted it as recorded by the Principal in the service book as per Ext. P-2 but the payment has to be effected by the Government. However the pay master viz., Deputy Director of Collegiate Education, Kottayam has not sanctioned the payment since, according to him, the leave is inadmissible. As pointed out by the Government pleader the grant of leave is governed by rules in Party K.S.R. which is made applicable as per the first statutes to the private college teachers as well. R.100 to Note 4 reads as follows:

(3.) We have carefully gone through the above rule and in our opinion Note 4 is clear enough that a provisional female recruit viz., a temporary employee will not be eligible for maternity leave unless she continues in service beyond one year as provided in the rules. Here, as already noticed the term of appointment of the appellant was from 8th June 1994 to 12th April 1995 and the maternity leave applied for by the appellant was from 21st February 1995 to 12th April 1995. The period of leave and period of appointment terminated on the very same day. Therefore, as rightly pointed out by the learned Government Pleader a temporary recruit will not be eligible for maternity leave, unless the incumbent continues in service beyond one year. Therefore in our opinion the order passed by the authorities declining to grant the benefit is perfectly in consonance with Note 4 to R.100 Part I K.S.R. Writ Appeal therefore fails and the Judgment of the learned Single Judge is confirmed. In the result we hold that the appellant is not entitled for any relief in this appeal. Writ Appeal fails and is dismissed. C.M.P. No. 439/98 also stands dismissed. No costs.