BHARTIBEN BABULAL JOSHI Vs. ADMINISTRATIVE OFFICER

JUDGEMENT

(1.) Heard learned advocate Mr. AR Thakkar for the petitioner; Mr. Siraj Ghori,learned AGP for the respondent No.2. Learned advocate Mr. B.N. Kakadia who is appearing for the respondent No.1 has not remained present today. This Court has admitted this petition by issuing rule thereon by order dated 23.12.2002 and the matter was expedited. Earalier, this matter was notified for final hearing on 16.12.2003 but in view of the absence of the learned advocate Mr. Kakadia, the matter was adjourned to 18.12.2003 while clarifying that the matter will be considered by this court on merits on the next adjourned day i.e. 18.12.2003 if learned advocate Mr. Kakadia will not remain present on 18.12.2003. Inspite of such order, on 18.12.2003, learned advocate Mr. Kakadia had remained absent and in the interest of justice, the matter was adjourned to 23.12.2003. Today also, when the matter was called out in the first round, learned advocate Mr. Kakadia has not remained present. Even in the second round also, same was the situation. In view of that, the matter was taken up for hearing in absence of the learned advocate Mr. Kakadia.

(2.) The short question arising for consideration of this Court is as to whether the petitioner who is working as Vidya Sahayak (Assistant Teacher) with the respondents is entitled for the maternity leave with salary or not. The facts of the present petition are to the effect that the petitioner was appointed as Vidya Sahayak (Assistant Teacher) under the control of of the respondents by order dated 5.11.1998. The petitioner resumed duties as such in school no. 3 in Nagrik Prathmik Shala Palitana. Thereafter, the petitioner had proceeded on maternity leave from 7th September, 1999 to 28th October, 1999 and thereafter from 24.11.1999 to 24.12.1999, in all, 83 days the petitioner remained on maternity leave. The maternity leave was sanctioned by the respondents in favour of the petitioner but it was a leave without pay. The petitioner therefore approached the respondents by way of representation and her representation in that regard was also rejected by the respondents.The petitioner, thereafter, served the respondents with a legal notice dated 1.4.2002 through her advocate in that regard which was replied by the respondents through their advocate Shri Kakadia on 29.4.2002 wherein contention was raised by the respondents that according to the Government Resolution, the petitioner is not entitled for the maternity leave and at the relevant time, the petitioner was working on probation and was not regularly appointed and, therefore, the petitioner is not entitled for the benefit of maternity leave with pay. It has also been contended by the respondents in their reply to the legal notice that the maternity leave was enjoyed by the petitioner with break and, therefore, the petitioner is not entitled for such benefit. I have taken into consideration these contentions raised by the respondent in its reply to the legal notice.

(3.) No affidavit in reply has been filed by either of the respondents before this Court.