RUKSANA Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner, who was appointed as a Multipurpose Health Worker (Female) on 18.7.2007 in the State of Haryana, by way of present writ petition has questioned the validity of Note 4 to Rule 8.127 of the Punjab Civil Services Rules Volume I Part I so far it restricts grant of benefit of maternity leave to the birth of two living children. In this writ petition, it has been prayed that by issuing writ in the nature of certiorari Note 4 to the above said Rules be quashed being ultra vires to the Constitution of India and contrary to the mandatory dictum of law laid in the Maternity Benefit Act, 1961 (hereinafter referred to as "the Act"). Not only the vires of the Note in question appended to Rule have been assailed being contrary to the Act but it has also been urged that the Note cannot sustain in the eyes of law being contrary to right of equality, guaranteed under Articles 14 and 16 of the Constitution of India as it suffers from the vice of discrimination. Along with the above said two thrust arguments, Executive Instructions issued by the Government of Haryana which bring to an end the distinction of two living children born before or after entering into the service have also been challenged. Petitioner, who has conceived a child as a first one from the second marriage has also contended that the child to be born first from the second marriage, cannot be construed as third child to deny benefit of maternity leave. Thus, this Court should hold interpretation of the provisions of Rules by her employer as bad on the facts and law of the case.

(2.) Before we could formulate questions of law, which have been posed to be answered by us, it will be necessary to note brief facts of the case, various provisions of the Act and relevant Rules.

(3.) The Petitioner was appointed as a Multipurpose Health Worker (female) on the recommendation of the Haryana Staff Selection Commission, Panchkula vide appointment letter (Annexure P1) dated 18.7.2007. Before joining the Government service, the Petitioner was married to one Farukh Ali and two children were born from the wedlock, who were earlier staying with the Petitioner. According to Petitioner, marriage has been dissolved on 13.1.2010 by way of decree of divorce granted by the District Judge, Family Court, Faridabad and thereafter custody of the children is with their father. The decree of divorce was made subject matter of challenge in the appeal before this Court. Vide order dated 9.2.2011 (Annexure P2), passed by this Court, the decree of divorce granted to the Petitioner has attained finality. After the decree of divorce was granted by the Court of the District Judge, Family Court, Faridabad, the Petitioner has solemnized marriage with one Mukim Khan on 27.4.2010. It is stated that from the second marriage, the Petitioner was expecting a child in March 2011. The Petitioner had applied for grant of maternity leave vide application (Annexure P5). On 16.2.2011, the Respondent-State denied maternity leave to the Petitioner on the ground that she was already having two living children.