K.KALAISELVI Vs. CHENNAI PORT TRUST

JUDGEMENT

(1.) The short question that arises for consideration in this writ petition is whether a woman employee working in the Chennai Port Trust is entitled to avail maternity leave even in case where she gets the child through arrangement by Surrogate parents? The petitioner is working as an Assistant Superintendent in the Traffic department of the Chennai Port Trust. She had put in 24 years of service. She is married. Her son (Shyam Sundar) aged 20 years died the to road accident on 31.01.2009. After his birth, the petitioner has removed her uterus due to some problem on 30.04.2008. Therefore, she in order to have a child had entered into an arrangement with Prashanth Multi Speciality hospital, Chennai to have a baby through surrogate procedure. Finally with the consent of her husband and his cooperation, a female baby was born on 08.02.2011 through a host mother. She had incurred substantial expenditure towards treatment. In order to look after the newly born baby, she had applied for maternity leave. But she was informed that she was not entitled for maternity leave (post delivery) for having a child through surrogate procedure though such a rejection was not possible in case of a person adopting a child. The petitioner, therefore, requested for sanction of maternity leave to look after the newly born girl child and reimburse the medical expenses and also to issue the FMI Card incorporating the newly born child through her representation, dated 17.6.2011. She sent a reminder on 13.8.2011. However, by proceedings, dated 22.11.2011, she was informed that the Chairman of the Port Trust had granted her two months period leave as a special case, which will be treated as an eligible leave. But the leave granted on 17.9.2011 for a period of 59 days from 08.02.2011 to 07.04.2011 vide medical certificate dated 17.09.2011 was subsequently cancelled. Her request for inclusion of the female child in the FMI card was also rejected. She was informed by a letter dated 05.12.2011 that inclusion of her daughter name G.K. Sharanya in the FMI Card does not arise. The petitioner produced before the respondent Port Trust all documents relating to surrogate arrangement, hospital expenditures incurred by her as well as the birth certificate given by the Corporation of Chennai evidencing that the female child was born on 08.02.2011. The name of the parents are described as the petitioner being the mother and her husband as her father. It is under these circumstances, writ petition came to be filed seeking to set aside the order dated 05.12.2011 and for a consequential direction to the Chennai Port Trust to grant leave to the petitioner on equal footing in terms of Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987, which benefit was granted to adoptive parents.

(2.) In order to appreciate the contentions, it is necessary to extract Rule 3A, which reads as follows:

(3.) When the writ petition came up on 28.03.2012, this court admitted the writ petition and in the two direction applications, notice was ordered. On notice from this court, a counter affidavit has been filed by the respondent, dated 31.5.2012.