POOJA SINDHU Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner has approached this Court, who is a regular employee of the Haryana Government working as a Lecturer in English in the School Education Department and prays for converting the earned leave which she was forced to take on the birth of her 3 rd child as maternity leave as per the provisions contained under the Maternity Benefit Act, 1961 (hereinafter referred to as 'the Act'), which was not granted to her.

(2.) The petitioner had two children from her marriage. On 12.4.2011 a third child was born. Petitioner vide letter dated 22.5.2011 requested the Principal, Government Senior Secondary School, Village Dabra, Hisar (respondent No.4) to grant her maternity leave. Along with the said application judgment passed by this Court in CWP No. 4229 of 2011 titled Ruksana vs. State of Haryana and others was also attached asserting that she is entitled to the grant of maternity benefits on the birth of third child. The maternity leave was denied to the petitioner vide letter dated 7.9.2011 (Annexure P-4) by respondent No.4 relying upon the instructions dated 19.11.1991 and 25.9.1992, according to which maternity leave could be granted upto two living children for six months along with pay and it was stated there is no instruction to grant maternity leave along with pay for the third child. It is this order, which is challenged by the petitioner on the ground that these instructions which are based upon Rule 8.127(1) read with note 4 thereof of Chapter 8 of the Punjab Civil Service Rules, Vol. I, Part-I are contrary to the provisions as contained under Section 27 of the Act.

(3.) Counsel for the petitioner on this basis contends that the claim of the petitioner for grant of maternity leave based upon aforementioned instructions read with Rule 8.127(1) note 4 of the Punjab Civil Service Rules, Vol. I part-I cannot be sustained in the light of the Division Bench judgment of this Court in Ruksana's case , wherein it has been held that the Act nowhere restricts the benefit of payment of maternity benefits to birth of two children and unless the Act is amended Government cannot restrict the beneficial provisions of Act to a woman employee for the birth of a third child. Such a restriction imposed under the Rules is contrary to Section 27 of the Act and cannot sustain in the eyes of law. Copy of the judgment passed in Ruksana case has been appended as Annexure P-3. Accordingly, prayer has been made for quashing the communication dated 7.9.2011 (Annexure P-4) denying the petitioner the maternity leave and for issuing a writ of mandamus for treating the earned leave availed of by the petitioner as maternity leave.